                                                                                   FILED
                                                                           COUNT OF APPEALS
                                                                            STATE OF ,11:2'.3;        '
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             IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                 DIVISION ONE

In the Matter of the Marriage of                          No. 75294-4-1

GINGER ANN GALANDO,                                       DIVISION ONE

                                Respondent,

                   and                                    UNPUBLISHED OPINION

MATTHEW PAUL GALANDO,

                                Appellant.                FILED: August 28, 2017

        SCHINDLER, J. — The court entered an order of contempt finding Matthew Paul

Galando intentionally violated parenting plan provisions, the order of child support, and

the order to list the house for sale. We conclude the court erred in finding Matthew

violated one of the parenting plan provisions and requiring Matthew to comply with

unrelated orders to purge the contempt, but in all other respects, affirm.

                                                 FACTS'

        On January 20, 2016, Ginger Ann Galando filed a motion for an order to show

cause why Matthew Paul Galando should not be held in contempt. Ginger asserted

Matthew violated the parenting plan by failing to enroll in a state-certified drug and

alcohol program, provide copies of urinalysis(UA)test results, attend Narcotics

         The facts are more fully set forth in the linked case, In re Marriage of Galando, No. 74427-5-I
(Wash. Ct. App. Aug. 28, 2017).
No. 75294-4-1/2

Anonymous/Alcoholics Anonymous(NA/AA) meetings, obtain a psychological

evaluation, activate OurFamilyWizard,2 comply with the telephone contact requirements,

and refrain from making derogatory remarks to the children about Ginger. Ginger

asserted Matthew violated the child support order by failing to pay $466.92 in medical

expenses due December 15, 2015 and $310.28 in medical expenses due January 27,

2016. Ginger also asserted Matthew did not comply with the court order to list the

house for sale.

       The court scheduled a show cause hearing for January 29. At Matthew's

request, the court continued the hearing to February 5. When Matthew did not appear

on February 5, the court issued a bench warrant. Matthew retained new counsel. The

court granted the motion to quash the bench warrant and scheduled the show cause

hearing for April 5.

       On March 30, Matthew filed a declaration and response to the motion for

contempt. Matthew states, "I have satisfied almost all of the provisions" Ginger claims,

including paying the uninsured medical bills, cooperating with the special master to list

the house for sale, and activating OurFamilyWizard. Matthew states he is in the

process of obtaining drug and alcohol treatment and a psychological evaluation with Dr.

Wendy Hutchins-Cook.

       At the show cause hearing on April 5, the court found Matthew had made

"substantial steps in trying to come into compliance" with the court orders but had not

"fully complied."




       2 OurFamilyWizard is a website that provides parents with communication tools for scheduling
and sharing information about the children.


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No. 75294-4-1/3

       On April 22, the court entered an "Order on Show Cause Re Contempt/

Judgment." The court found Matthew "intentionally failed to comply with several lawful

orders of the Court": the "Final Parenting Plan, Final Order of Child Support, Findings of

Fact and Conclusions of Law, and Decree of Dissolution."

      The court found that Matthew "willfully refused to comply" with the requirement to

enroll and participate in a drug and alcohol treatment program until he obtained an

assessment on March 31 and that he "is scheduled for outpatient treatment... to begin

on 4/6/16." The court found Matthew "willfully refused to comply" with the requirement

to schedule a psychological evaluation until April 5 and "did not provide any reason for

his failure to comply" when the show cause for contempt motion was filed on January

21.

      The court found Matthew willfully refused to comply with the requirement to sign

up for OurFamilyWizard until March 25, refused to comply with the "telephone contact

requirement of Final Parenting Plan," and violated the prohibition against discussing

litigation with the children and making derogatory remarks about Ginger.

      The court found that although Matthew paid the uninsured medical bills, payment

was "not timely." The court found Matthew "did not provide any reason for his failure to

comply with this requirement at the time of filing of the contempt motion on 1/21/16.

Respondent willfully refused to comply until 3/9/16."

      The court found Matthew "willfully refuses" to comply with the requirement to

obtain UA testing and attend weekly NA/AA meetings. The court found Matthew

violated the parenting plan by consuming alcohol and marijuana.




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No. 75294-4-1/4

       The court found the failure to comply with the treatment and monitoring

conditions resulted in "significant harm to the children."

       Respondent's failure to comply with the above treatment and monitoring
       requirements, thus deliberately abdicating his residential time, is a
       violation of section. . .(2) of the Parenting Plan which states "absence,
       inconsistency, and conflict are opposed to the best interests of the
       children." Respondent's willful refusal to comply with the Parenting Plan
       and intentionally remove himself from any contact with the children has
       resulted in significant harm to the children.

       With respect to the parenting plan violations, the court found:

      [X]     MATTHEW GALANDO, Respondent, has not complied with:

             [X]     the residential (visitation) provisions of the Parenting Plan
                     and had the ability to comply with the Parenting Plan, and is
                     presently unwilling to comply. The noncompliance with the
                     residential provisions was in bad faith.

             [X]     the treatment requirements and provisions of the Parenting
                     Plan set forth above and had the ability to comply with the
                     Parenting Plan, and is presently unwilling to comply. The
                     noncompliance with the residential provisions was in bad
                     faith.

             [X]     the communication requirements and provisions of the
                     Parenting Plan set forth above and had the ability to comply
                     with the Parenting Plan, and is presently unwilling to comply.
                     The noncompliance with the residential provisions was in
                     bad faith.

       The court found Matthew violated the order to list the family home for sale by

January 18, 2016.

       Respondent signed a listing agreement on January 13, 2016 but it
       included the requirement that the property not be actively listed or
       marketed until February 11, 2016, which was after the date required by
       the Findings. Respondent refused to release information about the house
       sale until after this motion was filed. Respondent refused to sign the
       Order Appointing Special Master and required filing of a motion. The
       house was listed for sale on 3/31/16 with Respondent's belated
       cooperation. Respondent did not provide any reason for his failure to
       comply with this requirement. Respondent affirms he is moving out of the


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No. 75294-4-1/5

       home. Updates for the status of the house sale shall be provided to the
       Court from the Special Master.

       The court found Matthew had the ability to comply with "all aspects of the court

orders" but "willfully and intentionally refused to comply with the orders."

       Respondent... has willfully and intentionally refused to comply with the
       orders. He has intentionally inflicted significant emotional harm to his
       children as a result of his willful violation of the court orders. He has failed
       to provide any explanation for his failure to comply with all aspects of the
       court orders. Respondent's belated compliance with portions of the court
       orders provides further evidence of his ability to comply at all times.

       The court entered specific conditions to purge the findings of contempt. As to the

parenting plan provisions, the court ordered confirmation and full compliance with the

alcohol and drug treatment program, the psychological evaluation, monitoring

requirements, and participation in NA/AA. The court ordered full compliance with the

parenting plan, child support order, decree of dissolution, the findings of fact and

conclusions of law entered in the dissolution proceeding, and the order appointing

special master for six months. The court ruled that further delay in payment "for any

reason whatsoever" would result in "jail time."

       There shall be no delay in payment for any reason whatsoever. If
       payments are not made as required in a timely manner, it shall be a
       deliberate violation of these purge conditions and Petitioner may pursue
       contempt motion and jail time will be ordered.

                                         ANALYSIS

       Matthew does not dispute the contempt finding that he willfully, intentionally, and

in bad faith did not obtain UAs or attend NA/AA meetings and consumed alcohol and

marijuana. Matthew challenges other contempt findings and some of the conditions to

purge the contempt.




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No. 75294-4-1/6

       The trial court in a dissolution proceeding has the authority to enforce its orders.

In re Marriage of James, 79 Wn. App. 436, 439, 903 P.2d 470 (1995). "Punishment for

contempt of court is within the sound discretion of the trial court" and will not be

reversed absent an abuse of discretion. James, 79 Wn. App. at 439-40.

       A court abuses its discretion if its decision is manifestly unreasonable or based

on untenable grounds or untenable reasons. In re Marriage of Katare, 175 Wn.2d 23,

35, 283 P.3d 546 (2012). A court bases its decision on untenable reasons if it uses an

incorrect standard or the facts do not meet the correct standard. In re Marriage of

Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362(1997). We review findings of fact for

substantial evidence. In re Marriage of Rideout, 150 Wn.2d 337, 352, 77 P.3d 1174

(2003). "Evidence is substantial if it is sufficient to persuade a fair-minded, rational

person of the declared premise." Merriman v. Cokeley, 168 Wn.2d 627,631, 230 P.3d

162(2010). Unchallenged findings are verities on appeal. Merriman v, 168 Wn.2d at

631.

       In determining whether the facts support finding contempt, the court "must strictly

construe the order alleged to have been violated, and the facts must constitute a plain

violation of the order." In re Marriage of Humphreys, 79 Wn. App. 596, 599, 903 P.2d

1012(1995).

       Matthew contends the court did not have the authority to find him in contempt for

the violations he addressed before the show cause hearing. We disagree. Chapter

7.21 RCW governs civil contempt proceedings. Under RCW 7.21.010(1)(b), a court

may find a person in contempt without regard to whether the person has complied with

the court order at the time of the show cause hearing. RCW 7.21.010(1)(b) defines
No. 75294-4-1/7

"contempt of court," in pertinent part, as "intentional...[d]isobedience of any lawful

judgment, decree, order, or process of the court." RCW 7.21.030(3) allows the court to

order a contemnor to pay losses suffered as a result of the contempt and costs incurred

in the contempt proceedings for any person found in contempt of court "without regard

to whether it is possible to craft a coercive sanction." In re Application by Rapid

Settlements, Ltd., for Approval of Transfer of Structured Settlement Payment Rights,

189 Wn. App. 584, 601, 359 P.3d 823(2015). We also note that RCW 26.18.050(1)3

states a court may find a parent in contempt if "there is reasonable cause to believe the

obligor has failed to comply with a support or maintenance order" and RCW

26.09.160(2)(b) states that the court shall find a parent in contempt if "the parent, in bad

faith, has not complied with the order."

       Matthew contends the court erred by finding him in contempt for deliberately

abdicating residential time with the children. RCW 26.09.160(2)(b) states:

       If, based on all the facts and circumstances, the court finds after hearing
       that the parent, in bad faith, has not complied with the order... , the court
       shall find the parent in contempt of court.

RCW 26.09.160 requires a finding that the parent "acted in bad faith or committed

intentional misconduct." James, 79 Wn. App. at 441.

       Matthew argues the court could not find him in contempt because "[n]o finding of

bad faith was made here." Contrary to Matthew's argument, the court specifically found

that he acted in bad faith in violating the parenting plan—"noncompliance with the

residential provisions was in bad faith." The Order on Show Cause Re




       3 Emphasis added.

        Emphasis added.


                                             7
No. 75294-4-1/8

Contempt/Judgment states, in pertinent part:

        Respondent's failure to comply with the above treatment and monitoring
        requirements, thus deliberately abdicating his residential time, is a
        violation of section. ..(2) of the Parenting Plan which states "absence,
        inconsistency, and conflict are opposed to the best interests of the
        children." Respondent's willful refusal to comply with the Parenting Plan
        and intentionally remove himself from any contact with the children has
        resulted in significant harm to the children.[51

        Matthew argues he did not act in bad faith because "to have contact of any kind

with the children... would have constituted a violation of the visitation suspension

provision of the parenting plan." The unchallenged findings do not support his

argument. Because Matthew intentionally refused to comply with the parenting plan,

the court did not abuse its discretion by finding that he acted in bad faith.

        Matthew also challenges the finding that his refusal to contact the children

resulted in significant harm. But Matthew does not challenge the finding that his

absence from the lives of the children is "opposed to the best interests of the children."

Matthew also concedes that his "refusal to be in contact with the children even when

they tried to contact him caused them to be extremely upset." The record supports

finding Matthew in contempt for deliberately abdicating residential time with the children

.by not complying with the treatment and monitoring requirements of the parenting plan.

        Matthew contends the court erred by finding him in contempt for making

derogatory remarks about Ginger to the children. The parenting plan provides, in

pertinent part:

        8.       Affections. Each parent agrees to exert every reasonable effort to
                 maintain free access and unhampered contact and communication
                 between the children and the other parent, and to promote the

          5(Emphasis added.) We also note Matthew does not challenge the findings that he had the
ability to comply fully with the parenting plan or that he "willfully and intentionally refused to comply" with
the provisions.


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No. 75294-4-1/9

             emotions of affection, love and respect between the children and
             the other parent. Each parent agrees to refrain from words or
             conduct, and further agrees to discourage other persons from
             uttering words or engaging in conduct, which would have a
             tendency to estrange the children from the other parent, to damage
             the opinion of the children as to the other parent, or which would
             impair the natural development of the children's love and respect
             for the other parent.



       13.   Children's Involvement. Neither parent shall ask the children to
             make decisions or requests involving the residential schedule.
             Neither parent shall discuss the residential schedule with the
             children except for plans, which have already been agreed to by
             both parents in advance. Neither parent shall advise the children of
             the status of child support payments or other legal matters
             regarding the parents' relationship. Neither parent shall use the
             children, directly or indirectly, to gather information about the other
             parent or take verbal messages to the other parent. The father
             shall not use the children to deliver payments, mail, or any financial
             information to the mother.



       15.   Derogatory Comments. Neither parent shall make derogatory
             comments about the other parent or their spouse or allow anyone
             else to do the same in the children's presence. Neither parent shall
             allow or encourage the children to make derogatory comments
             about the other parent or their spouse.

The contempt order states, in pertinent part:

      Failure to comply with section...(8),(13), and (15) of Parenting Plan
      when he discussed issues relating to litigation, residential schedule, and
      made derogatory remarks about mother to the children. Respondent has
      deliberately inflicted emotional harm and distress upon the parties'
      children.

       Matthew argues that "nothing in the record indicates" he made derogatory

remarks about Ginger and there is "no evidence that if made they caused significant

emotional harm." The record does not support his argument. Ginger testified that

Matthew told the children that Ginger "was the person keeping them from seeing him"


                                            9
No. 75294-4-1/10

and the conversation "upset[M.G.] greatly." The unchallenged findings show that

contrary to the best interests of the children, Matthew's failure to comply with the

parenting plan and intentionally abdicating his residential time resulted in "significant

harm to the children." The court did not abuse its discretion by finding Matthew in

contempt for making derogatory remarks about Ginger to the children.

       Matthew contends the court erred by finding him in contempt for failing to contact

the children by telephone. Matthew argues the parenting plan does not require him to

speak with the children. We agree with Matthew.

       Section 4 of the parenting plan states:

      Telephone/Skype[6]Access. When the children are not residing with a
      given parent that parent shall be permitted unimpeded and unmonitored
      telephone or Skype access with the children of not less than two calls per
      week at reasonable times and for reasonable durations. The GAL
      recommends that the children call the non-residential parent every
      Tuesday, Thursday, Saturday and Sunday at 5 p.m. These calls shall be
      brief(no more than 20 minutes combined for both children) and shall be
      initiated by the residential parent on behalf of the children.M

Although the provision is permissive, the court found that Matthew willfully refused to

comply with telephone contact as a requirement of the parenting plan. The order on

contempt states, in pertinent part:

       Failure to comply with telephone contact requirement of Final Parenting
       Plan, section. . .(4), page 21. False claims of failure to allow contact are
       denied. Respondent willfully refuses to comply. Respondent has
       deliberately inflicted emotional harm and distress upon the parties'
       children.[8]

Because the parenting plan does not require telephone contact, the court erred in

finding Matthew in contempt for violating that parenting plan provision.


       6 Skypeis a live video chat and long-distance voice calling service.
       7 Emphasis added.

       8 Emphasis added.



                                                   10
No. 75294-4-1/11

       Matthew challenges finding him in contempt for failing to list the family home for

sale by January 18, 2016. The record shows the court ordered Matthew to list the

house for sale by January 18, 2016. But Matthew claims the court cannot hold him in

contempt for violating a finding of fact and the court did not specify a date for the sale of

the home in the decree of dissolution.

       We treat a finding for what it really is. Para-Med. Leasing, Inc. v. Hangen,48

Wn. App. 389, 397, 739 P.2d 717(1987). The decree incorporates the findings of fact

and conclusions of law. Finding of fact 2.9 states the house "shall be listed for sale

within 60 days, no later than 1/18/2016." The unchallenged contempt findings of fact

state Matthew listed the home for sale on February 11, 2016. The court did not err by

finding that Matthew did not comply with the order.

       Matthew contends the purge conditions that require him to comply with the

parenting plan, child support order, and decree of dissolution, including the timely

payment of maintenance, are punitive. Matthew also asserts the conditions are not

related directly to the orders he violated.

       A "remedial sanction" is "imposed for the purpose of coercing performance when

the contempt consists of the omission or refusal to perform an act that is yet in the

person's power to perform." RCW 7.21.010(3). By contrast, a "punitive sanction" is

"imposed to punish a past contempt of court for the purpose of upholding the authority

of the court." RCW 7.21.010(2). To determine whether sanctions are punitive or

remedial, we look to whether the contempt sanction "'has a coercive effect—whether

the contemnor is able to purge the contempt and obtain his release by committing an




                                              11
No. 75294-4-1/12

affirmative act.'" In re Interest of Silva, 166 Wn.2d 133, 141-42, 206 P.3d 1240(2009)9

(quoting In re Dependency of A.K., 162 Wn.2d 632, 646, 174 P.3d 11 (2007)). A purge

condition must reasonably relate to the cause or nature of the contempt. In re Interest

of M.B., 101 Wn. App. 425, 450, 3 P.3d 780(2000).

      The order on contempt states, in pertinent part:

      Full compliance with payment of all expenses as required under the Order
      of Child Support, as well as any and all other financial obligations, such as
      maintenance. There shall be no delay in payment for any reason
      whatsoever. If payments are not made as required in a timely manner, it
      shall be a deliberate violation of these purge conditions and Petitioner may
      pursue contempt motion and jail time will be ordered.



      OTHER:

      The findings of contempt will be purged only upon MATTHEW GALANDO
      successfully complying with the provisions set forth in the parties' Final
      Parenting Plan, Final Order of Child Support, Decree of Dissolution and
      Findings of Fact and Conclusions of Law entered under this cause number
      on November 18, 2015 and with Order Appointing Special Master, entered
      under this cause number on February 5, 2016, for a period of six months
      (180 days)from the date of the entry of this Order.

      In the event Respondent, Matthew Galando, fails to comply with the
      provisions set forth in the Final Parenting Plan, Final Order of Child
      Support, Decree of Dissolution, Findings of Fact and Conclusions of Law
      and Order Appointing Special Master, then further sanctions, including
      attorney's fees and costs and return to imprisonment, may be awarded as
      the Court deems just and equitable under the circumstances.

      The court did not err by ordering coercive conditions that relate to the violations

and the contempt findings and require compliance with the parenting plan, child support

order, and decree, including full compliance with the parenting plan and timely payment

of all expenses required by the child support order. But to the extent the purge



      9 Internal   quotation marks omitted.


                                              12
No. 75294-4-1/13

condition requires Matthew to comply with unrelated provisions of the decree of

dissolution and the findings of fact and conclusions of law, it is an abuse of discretion.

        We reverse the finding of contempt and purge condition related to telephone

contact and the purge condition to comply with orders that are unrelated to the findings

of contempt. In all other respects, we affirm. Upon compliance with RAP 18.1, Ginger

is entitled to reasonable attorney fees and costs on appea1.1°




                                                         --r-Q__QA\ilaQS1-e„,
WE CONCUR:




         -iN--‘‘ c-keri
                              6cF




         10 Under RCW 7.21.030(3), a court may "order a person found in contempt of court to pay a party
for any losses suffered by the party as a result of the contempt and any costs incurred in connection with
the contempt proceeding, including reasonable attorney's fees." See also R.A. Hanson Co., Inc. v.
Magnuson, 79 Wn. App. 497, 505, 903 P.2d 496(1995).


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