                                                                              FILED
                                                                            DEC 3, 2013
                                                                   In the Office of the Clerk of Court
                                                                 W A State Court of Appeals, Division III


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         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Marriage of: 	                       )
                                               )         No.30937-I-III
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KIRSTEN MARIE HESS,

                      Respondent,
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       and
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                                                         UNPUBLISHED OPINION                                 I,
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SCOTT DAMON HESS,                              )	
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                      Appellant.
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       KORSMO, C.J. -      This appeal arises from a series of contempt allegations 


involving a parenting plan. We conclude that the trial court correctly concluded there 	                    I
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was no contempt in the four matters before us, but we reverse the award of attorney fees 	                   j
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to the mother. We thus affmn in part and reverse in part.

                                           FACTS
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       Representing himself in this court, as he did in the trial court, appellant Scott Hess

challenges the trial court's determination that his former wife, Kristen Nachtmann, was

not in contempt on four occasions where the couple's parenting plan went awry. The

couple's marriage was dissolved in 2006. At that time, a parenting plan was entered

governing the custody of their son, EJH, who was born two years earlier.
No. 30937-1-111
Marriage ofHess


       Ms. Nachtmann was awarded primary custody, but EJH was to reside with Mr.

Hess every other weekend and eight hours on one additional Saturday each month.

Holiday visitations were addressed separately and mediation was required for any issues

other than child support. A revised plan alternated authority to decide which Saturday

would provide the additional eight hours and also addressed holidays that fell on

weekends.

       In November, 2011, Mr. Hess filed a motion to show cause why Ms. Nachtmann

should not be held in contempt for six alleged violations of the parenting plans. After a

hearing, the court issued a written decision in February, 2012, that agreed Ms.

Nachtmann had intentionally not notified Mr. Hess when EJH was not attending school.

The court found that Ms. Nachtmann was not in contempt on the other five allegations.

The court awarded costs and fees, but not attorney fees, to Mr. Hess on the count he

prevailed on. The court awarded costs and attorney fees of $3,462.45 to Ms. Nachtmann

on the five remaining counts.

       Mr. Hess then timely appealed to this court.

                                        ANALYSIS

       Mr. Hess challenges the court's ruling on four of the five failed contempt

allegations as well as the award of attorney fees. Both parties seek attorney fees or costs

for this appeal pursuant to RCW 26.09.140. We will address the contempt allegations

and attorney fees/costs as separate issues.

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Marriage ofHess


       Contempt Ruling

       Mr. Hess argues that the court erred in determining that Ms. Nachtmann was not in

contempt in four instances in which he complained otherwise. Without repeating the

incidents in this opinion, we can summarize the claims by noting that in several instances

visitation (or other notice) did not occur as planned for various reasons such as late notice

or confusion over holiday dates. The trial court concluded that there was no contempt

due to lack of intent and/or contribution to the problem by Mr. Hess.

       Numerous standards guide review of this claim. Contempt of court is the

intentional disobedience of a lawful court order. In re Marriage ofHumphreys, 79 Wn.

App. 596, 599, 903 P.2d 1012 (1995), (citing RCW 7.21.010(1)). In the context of

dissolution and parental support, contempt is governed by RCW 26.09.160. Under that

statute, a court "shall find" a party in contempt based on a written finding, after a hearing,

"that the parent, in bad faith, has not complied with the order establishing residential

provisions for the child." RCW 26.09.160(2)(b); see In re Marriage ofJames, 79 Wn.

App. 436, 440,903 P.2d 470 (1995). The party moving for contempt has the burden of

proving contempt by a preponderance of the evidence, by providing evidence that the

offending party "acted in bad faith or engaged in intentional misconduct or that prior

sanctions have not secured compliance with the plan." Id. at 442. A contempt ruling

must be supported by a finding that a violation of a previous court order was intentional.

Holiday v. City ofMoses Lake, 157 Wn. App. 347, 355, 236 P.3d 981 (2010).

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       This court reviews a trial court's decision in a contempt proceeding for an abuse of

discretion. James, 79 Wn. App. at 439-40. This court does not weigh conflicting

evidence or substitute our judgment for that of the trial court. In re Marriage ofRich, 80

Wn. App. 252, 259, 907 P.2d 1234 (1996). A trial court's challenged factual findings

regarding contempt will be upheld on appeal if they are supported by substantial

evidence. In re Marriage ofRideout, 150 Wn.2d 337,350, 77 PJd 1174 (2003).

However, because it is the role of the trial court, not the appellate court, to find facts, a

reviewing court lacks the ability to find persuasive evidence that the trier of fact failed to

find persuasive. Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225

PJd 266 (2009).

       Mr. Hess's appeal of the contempt ruling largely runs afoul of this last principle.

This court is capable of determining whether or not the evidence supports a court's

finding of fact. Id. It is not capable of countermanding a determination that something

did not happen because that would make this court, not the trial court, the determiner of

what did occur. Id.

       Whether or not someone acted with the requisite intent is a factual question. Id.

Thus, even where, as here, the other salient facts are not in dispute (e.g., EJH did not

spend the weekend with his father when he was supposed to), the fact of intent still must

be proved. If the trier of fact was not convinced that Ms. Nachtmann acted intentionally,

the fact that EJH was not where he was supposed to be was insufficient to prove

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contempt. That is largely what happened here. This court cannot find intent where the

trial court did not.

       The trial court did not err in its determination that Ms. N achtmann was not in

contempt in the challenged instances.

       Attorney Fees and Costs

       Mr. Hess challenges the court's award of attorney fees to Ms. Nachtmann.

Invoking RCW 26.09.140, Mr. Hess seeks his costs in this appeal and Ms. Nachtmann

seeks her costs and attorney fees. The trial court awarded costs and/or attorney fees in

accordance with the claims on which each party prevailed. We conclude that the trial

court erred in assessing attorney fees against Mr. Hess. Exercising our discretion, we

decline to award fees or costs to either party on appeal.

       Several statutes are at issue here. In a case of a first violation of the residential

provisions of a parenting plan, a parent who acted in bad faith shall be ordered to

reimburse "all court costs and reasonable attorneys' fees incurred as a result of the

noncompliance." RCW 26.09.160(2)(b )(ii). However, when the court finds that a party

brought a contempt action under this statute "without reasonable basis," it shall order the

moving party to pay costs and "reasonable attorneys' fees." RCW 26.09.160(7).

       A pro se litigant is not entitled to attorney fees due to the fact that none were

incurred. In re Marriage ofBrown, 159 Wn. App. 931, 938-39, 247 P.3d 466 (2011).

Another statute of potential application is RCW 7.21.030(3), which permits the trial court

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to order a party found in contempt to pay "reasonable attorney's fees" to the party that

suffered a loss from the contempt. This statute is discretionary with the trial court, even

when contempt is found. Holiday v. City ofMoses Lake, 157 Wn. App. 347,355-56,236

P.3d 981 (2010).

       Whenever a court orders "reasonable" attorney fees, it must enter findings in

support of the award in accordance with the lodestar methodology after determining the

amount of work necessary and the appropriate hourly fee for that work. Mahler v. Szucs,

135 Wn.2d 398, 434-35, 957 P.2d 632 (1998). A court's award of attorney fees is

reviewed for abuse of discretion. Id. at 435. The findings are necessary for an appellate

court to review the award. Bentzen v. Demmons, 68 Wn. App. 339, 350,842 P.2d 1015

(1993).

       With this background, we now turn to the challenged award. Ms. Nachtmann

sought fees in the trial court under both RCW 26.09.140 and .160(7).1 As to the latter

statute, the primary problem for respondent is that the trial court never found that the

contempt action was without reasonable basis. Although this court can affirm a trial

court ruling on the basis of a reason existing in the record, we are not in a position to rule

as a matter of law that Mr. Hess brought this action for an improper purpose such as


       1 As the allegedly contemptuous party, Ms. Nachtmann was not eligible for
attorney fees under either RCW 7.21.030 or RCW 26.09.160(2) despite her successful
defense of those claims. Instead, those statutes act simply to remediate the costs of
enforcing a contempt action to the injured party.

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harassment or that he acted without a reasonable basis. Indeed, the fact that he prevailed

on one of his theories largely negates those possibilities. Although it is conceivable that

he had mixed motives in bringing his motion, in the absence of written findings to that

effect we cannot say that is the case here. Accordingly, RCW 26.09.160(7) does not

support the trial court's award of attorney fees.

       RCW 26.09.140 permits both the trial and appellate courts, in their discretion, to

award fees largely in accordance with need and the other side's ability to pay. Nothing in

the statute conditions this award on whether a party prevails in an action or not. In light

of the trial court's assessment of fees in accordance with the issues on which the parties

prevailed, it is clear that the court did not award fees under this statute. Indeed, we are

not aware of any statute, other than the competing sections ofRCW 26.09.160(2) and (7)

when appropriate findings exist, that could have authorized an award of the type niade

here. Because neither statute supports the fee award under these facts, we reverse it.

       We also exercise our discretion under RCW 26.09.140 to deny both parties their

requested fees and costs in this appeal. In light of the fact that both parties have prevailed

on one substantial issue, there is no prevailing party and no party will be accorded

statutory fees or costs. RAP 14.2; RAP 14.3.

       Affirmed in part and reversed in part.




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      A majority of the panel has detennined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.



                                                      Korsmo, C.J.

WE CONCUR: 





      Brown, 1.




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