  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE
In the Matter of Parenting and                )      No. 79689-5-I
Support of M.E. and A.E.,                     )
MEELA PRIBIC,

              Respondent,                     )
       v.                                     )
                                              )      UNPUBLISHED OPINION
MICHAEL ERICKSON,                             )
                                              )      FILED: March 2, 2020
              Appellant.                      )

       VERELLEN,   J.   —   Michael Erickson challenges the trial court’s denial of his

motion for contempt against Meela Pribic. Erickson argued Pribic violated the

parenting plan. The purpose of the provision at issue was to incentivize Pribic to

ensure the children’s attendance at sporting events. Pribic presented evidence

that the boys were absent only due to illness or a conflict with other parenting plan

provisions. She also presented evidence that she made efforts to otherwise

ensure the boys’ attendance. Because the provision at issue is silent as to what

happens in the event of illness and conflicts with other parenting plan provisions

that do not support any relief, we conclude these facts do not constitute a plain

violation of the parenting plan. The trial court did not abuse its discretion when it

denied Erickson’s motion.
No. 79689-5-1/2


          Therefore, we affirm.

                                         FACTS

          Erickson and Pribic are the parents of two boys, a ten-year-old and an

eight-year-old. Erickson and Pribic never married. In 2016, Pribic filed a petition

to establish a parenting plan. In March of 2018, before trial, the parents engaged

in mediation and entered an agreed parenting plan. In January of 2019, Erikson

brought a motion for contempt against Pribic. The court denied the motion,

determined Erickson brought the motion in bad faith, and awarded Pribic

attorney’s fees. Erickson moved for reconsideration. The court denied his motion.

          Erickson appeals.

                                      ANALYSIS

I. Contempt

       Erickson contends the trial court abused its discretion when denied his

contempt motion.

      We review a trial court’s decision on contempt for abuse of discretion.1

“‘Failure to comply with a provision in a parenting plan or a child support order may

result in a finding of contempt of court, under RCW 26.09.160.”2

RCW 26.09.160(2)(a) provides,

      A motion may be filed to initiate a contempt action to coerce a parent
      to comply with an order establishing residential provisions for a child.
      If the court finds there is reasonable cause to believe the parent has


      1    In re Marriage of James, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995).
      2    kI. at 443 (quoting RCW 26.09.184(6)).




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       not complied with the order, the court may issue an order to show
       cause why the relief requested should not be granted.

       “If a trial court finds after a hearing that a parent has ‘not complied with the

order establishing residential provisions’ of a parenting plan in ‘bad faith,’ the court

‘shall find’ the parent in contempt of court.”3 When determining whether the facts

support the trial court’s contempt decision, we must “strictly construe the order

alleged to have been violated, and the facts must constitute a plain violation of the

order.”4

       Here, Erickson alleged Pribic violated section (5)(a)(iii) of the parenting

plan. Section (5)(a)(iii) of the parenting plan provides, ‘It is expected that the

children do not miss sports/activities when they are with the mother, if the children

have to miss an event then the mother shall reimburse the father $50.00 for each

event (game/practice/recital/etc.) that are missed.”5 In his declaration, Erickson

argued:

      When negotiating the final parenting plan, it was a high priority for
      the kids to play their sports and it was a high priority for them and me
      to make sure they did not miss these events. The solution we
      agreed to was that Meela would pay $50 each time they missed an
      event when they are with her. In return, I agreed to cover 100% of
      sports fees and medical fees, along with other concessions in the
      parenting plan. In 2018, the boys missed 13 games and practices
      when with Meela. I have asked her to reimburse me $650 but she



       ~ In re Marriage of Rideout, 150 Wn.2d 337,349,77 P.3d 1174 (2003)
(quoting RCW 26.09.160(2)(b)).
       ~ In re Marriage of Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012
(1995).
       ~ Clerk’s Papers (CP) at 8.




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       has refused. She claims the responsibility to reimburse me for
       missed events is not even in the parenting plan.{6J

       In her response, Pribic explained the reasons the boys missed each of the

thirteen events. Twelve out of thirteen of the absences were due to illness.7 One

of the absences occurred on Mother’s Day.8 Erickson does not challenge these

factual assertions. Rather, Erickson argues section 5 requires Pribic to pay

regardless of the reason for the boys’ absences.

       The trial court held a hearing on Erickson’s motion on February 7, 2019.

Erickson’s attorney indicated the purpose of section 5 was to ‘ensure that the

children participate in these events” and “not be withheld if the mother just doesn’t

want to take them.”9 The court inquired whether Erickson had evidence that the

mother was withholding the children for no reason. Erickson’s attorney

elaborated: “We’re here on a principle to make sure    .   .   .there is some financial

responsibility that the mother needs to be aware of.”1°

       Pribic’s attorney argued the motion was unreasonable.11 Pribic’s attorney

contended there was no evidence that Pribic did not take the kids to the events for



       6 CP at 3.
       ~ CP at 31-36.
       8 CP at 37 (“In the Parenting Plan, I have Mother’s Day as a special

occasion.  .   .I believe the provisions that I have Mother’s Day has priority over the
                   .


provision that would require me to take the children to sports event.”).
       ~ Report of Proceedings (RP) (Feb. 7, 2019) at 8.
       10 Id. at 10.


         j~ at 19 (“Bringing a contempt motion when you concede that the child
was sick for every event except for one on Mother’s Day and—for $650 when you



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“whatever reason,” her attorney argued the motion was punitive.12 “And so, under

the circumstances of this case,          .   .   .   there is no contempt, there is no bad faith.”13

        At the conclusion of the hearing, the court denied the motion. The court

determined section 5 was ambiguous because it “is silent about what happens in

the event that a child is ill.”14

       I can’t find that this is unambiguous to the point where I can make a
       finding that Ms. Pribic willfully violated the court order in either not
       taking the kids or in not paying a monetary penalty for failing to take
       the kids when they’re ill. I also can’t make a finding that she willfully
       violated the court order in interpreting the parenting plan in such a
       way that Mother’s Day had priority over the sporting events that were
       scheduled on that day.



                    [O}ne of the things that’s influencing me is the evidence
       that’s before me is that Ms. Pribic has made a lot of efforts to make
       sure that the boys get to their practices and get to their games and
       their tournaments.    .  I don’t really have any evidence before me
                                 .   .


       that Ms. Pribic is not taking all reasonable steps to honor the
       parenting plan.[151

       The purpose of the rule of strict construction “is to protect persons from

contempt proceedings based on violation of judicial decrees that are unclear or

ambiguous, or that fail to explain precisely what must be done.”16 Under strict



earn $22,000 per month and the other side doesn’t earn anything because they’re
in school, there’s a significant concern with respect to that.”).
       ‘2~Lat20-21.
       13 Id. at 21.

       14 Id. at 27.

       15 kI. at 28-29.

       16 Graves v. Duerden, 51 Wn. App. 642, 647-48, 754 P.2d 1027 (1988).




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construction, section (5)(a)(iii) is ambiguous as to whether Pribic is required to pay

for missed events due to sickness or an apparent conflict with other parenting plan

provisions (for example, Mother’s Day). Erickson asserts the purpose of section 5

“was to ensure that Ms. Pribic had some financial responsibility.   .   .   as well as to

incentivize Ms. Pribic to ensure the children’s attendance at their events.”17 In light

of this purpose, the ambiguity in section 5, and evidence of Pribic’s effort to ensure

the boys’ attendance, the facts do not constitute a plain violation of the parenting

plan.

        We conclude the trial court did not abuse its discretion when it denied

Erickson’s contempt motion.

II. Bad Faith

        Erickson argues the court abused its discretion when it entered a bad faith

finding and awarded Pribic her reasonable attorney’s fees.

        We review a trial court’s award of attorney fees for abuse of discretion.18

When a party moves for contempt under ROW 26.09.160, the court may award

attorney fees to the nonmoving party “if the court finds the motion was brought

without reasonable basis.”19

        After the court denied Erickson’s motion for contempt, the court determined

the motion was brought in bad faith and awarded Pribic her reasonable attorney’s



        17   Appellant’s Br. at 22.
        18   Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 147, 859 P.2d 1210 (1993).
        19   ROW 26.09.160(7).




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fees. “And this motion, it’s a punitive motion.      .   .   .   I am quite convinced it wasn’t

designed for Mr. Erickson to get $650; it was designed to teach Ms. Pribic a

lesson.”2°

            We agree it was within the discretion of the trial court to find Erickson

brought the motion in bad faith. Erickson did not have a reasonable basis for

bringing the contempt motion. Notably, Erickson took the position in the trial court

that the purpose of the provision was to ensure participation “not be withheld if the

mother just doesn’t want to take them.”21 This concern is different from Pribic not

taking the boys to practices or games because they are ill. And there is evidence

that Pribic was working diligently to ensure the boys attended sporting events.

The purpose of section 5 was not served by Erickson’s contempt motion, given

that the absences were mainly due to illness and not Pribic’s intentional violation

of the parenting plan.

            We conclude the trial court did not abuse its discretion it awarding fees to

P rib ic.

lii. Fees on Appeal

            Erickson requests fees on appeal under ROW 26.09.140 and RAP 18.1.

Erickson is not the prevailing party, and he failed to devote an adequate section of

his opening brief to this issue. We deny his request for fees.




            20   RP (Feb. 7,2019) at 28.
            21   Id. at 8.




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       Pribic also requests fees on appeal under RCW 26.09.140 and RAP 18.1.

RCW 26.09.140 provides for attorney fees on appeal. In considering whether to

award fees under RCW 26.09.140, we consider the “arguable merit of the issues

on appeal and the parties’ financial resources.”22 Pribic’s financial declaration

establishes the dramatic disparity in the parties’ financial resources. Erickson has

the ability to pay and Pribic has need. We grant Pribic’s request in an amount to

be determined by a commissioner of this court upon Pribic’s compliance with

RAP 18.1.

      Therefore, we affirm.




WE CONCUR:




                 ~‘   ~4’I’
                                                                              F




      22   In re Marriage of Raskob, 183 Wn. App. 503, 520, 334 P.3d 30 (2014).
