No. 33883-1-II.The Court of Appeals of Washington, Division Two.
April 10, 2007.
Appeal from a judgment of the Superior Court for Cowlitz County, No. 99-5-00280-8, James E. Warme, J., entered September 12, 2005.
Affirmed by unpublished opinion per Hunt, J., concurred in by Armstrong and Penoyar, JJ.
HUNT, J.
Gregory Howe appeals numerous trial court findings of fact and an award of attorney fees to Mia Frye, against whom Howe initiated two contempt proceedings under RCW 26.09.160 based on allegations that Frye interfered with his parental rights under their agreed Parenting Plan. Frye cross-appeals the trial court’s finding her in contempt for frustrating three phone calls between Howe and their child. We affirm the trial court’s finding Frye in contempt.
We award appellate attorney fees to Frye for responding to Howe’s appeal; we deny her request for attorney fees for her cross-appeal. FACTS Gregory Howe and Mia Frye had a child, G, on March 19, 1991. The couple soon separated, and Frye returned to her family’s home in Kelso. Howe remained in the Seattle area. The parties have a long history of conflict, including Howe’s previous motions for contempt and motions to modify the parenting plan. I. Parenting Plan In 2001, Howe and Frye agreed to a parenting plan, which established Frye as G’s primary residential caregiver. Howe has residential care of G every other weekend, optional 10 a.m. to 4 p.m. residential care every other Friday, and telephonic visits every Tuesday from 7:30 to 8:30 to commence after G’s third birthday. The plan further provides that if G is too sick to attend a visitation, Howe may contact G’s physician to verify the medical information.[2] 1. Preschool In 2003, Frye enrolled G in a preschool program at Little Christian Daycare. Frye gave Little Christian a redacted copy of the Parenting Plan that omitted certain pages dealing with Howe’s parental rights and responsibilities; Little Christian Daycare employees were aware that the Parenting Plan they had received from Frye was incomplete. Frye did not inform Howe about G’s preschool enrollment, but Howe soon learned from G that he had started attending school. Several weeks after G began attending preschool, Howe arrived at the school to meet with the staff and to see G’s file. Because Howe arrived after the school had closed for the day, he did not meet G’s teacher, but he was able to see the classroom and to learn about G’s educational program. When he asked for G’s file, the staff refused to show the file to Howe because it contained some of Frye’s personal information; the staff based this decision on conversations with their legal counsel.[3] Little Christian invited Howe to provide any documentation that he wished for the file, but Howe chose not to do so. Some time later, Howe returned to Little Christian, again demanding to see G’s file.
He became somewhat belligerent with the staff, which caused the teachers to move the children out of hearing range. When Howe left, he threatened legal action against Little Christian for interfering with his constitutional rights as a parent. Although at least one staff member found Howe “rude” and “condescending” based on his behavior at Little Christian, according to Little Christian staff, Frye neither prevented Howe from coming to the school nor made any comments that colored their impression of Howe. 2. Elementary school Frye enrolled G in kindergarten at Castle Rock Elementary. Again, she did not immediately inform Howe. The school did not require Frye to provide the complete Parenting Plan; rather, Frye had to submit only those sections that she believed were pertinent. When Frye submitted the Parenting Plan to Castle Rock’s principal, she omitted pages 10, 11, and 12, which included express language about Howe’s right to attend school functions. Two days after G’s enrollment, Howe visited Castle Rock Elementary, met with the principal, and learned of the missing pages from the Parenting Plan. Several days later he faxed over missing page 10, which allows Howe to attend school functions. The record does not show that Frye ever sought to restrict Howe’s involvement with Castle Rock or G’s activities at the school. 3. Medical records G’s medical file at the Child and Adolescent Clinic also possessed a redacted copy of the Parenting Plan.[4] It does not appear from the record that the plan’s missing pages affected Howe’s ability to confer with G’s healthcare providers. B. Cancelled Residential Visits Howe alleged that Frye cancelled G’s residential visitation with him five times between 2001 and 2004. On four of these occasions, Frye claimed that G was too sick to travel; thus, she invoked the applicable Parenting Plan clause to cancel the visit. The first time Frye cancelled a visit was in June 2001, when G was suffering from pneumonia. Frye obtained a physician’s note that stated G was too sick to travel. As was his right under the Parenting Plan, Howe contacted the doctor and learned more about G’s illness. After persuading the doctor that he could care for G adequately, the doctor changed her mind and allowed G to visit with Howe. The next incident occurred in August 2002, when Frye took G to the clinic after he broke out in a rash and was running a high temperature. At first, the doctor feared G had contracted scabies, but it turned out to be an allergic reaction to flea bites. Frye contacted Howe about G’s upcoming visit and how they were to handle G’s skin problems. As was frequently the case, the couple’s interaction became heated and Frye threatened to withhold the visit. Despite the threat, Howe had his visit with G. In December 2003, G came down with the flu. Frye obtained a doctor’s note that G was not to attend the scheduled visit with Howe and notified Howe by email. Nonetheless, Howe said he would come anyway, drove to Kelso, and called the police, who met him at Frye’s residence. Frye showed the doctor’s note to the police and allowed everyone to see G asleep in his room. The police left, satisfied that Frye had acted in accordance with the Parenting Plan. On May 28, 2004, Howe sought to exercise a prearranged, optional Friday daytime visit whereby he would pick up G in Kelso at 10 a.m. and Frye would pick G up in Bellevue at 4 p.m. When Howe arrived to pick up G, Frye informed him she would not allow him to take G unless he promised to return G to Kelso, because she did not want to make the drive to Bellevue. Frye also claimed that her car was in the repair shop, but this claim later turned out to be false. Howe signed an email saying he would return G to Kelso, choosing not to enforce the Parenting Plan requirement that Frye pick up G in Bellevue after the visit. But Howe later decided that he would not bring G back to Kelso, as agreed; and he did not call Frye to inform her of his change in plans. After waiting for Howe at 4 p.m. in Kelso, Frye eventually drove to Bellevue to retrieve G. Again, despite the contested exchange, Howe had his residential visit with G, and the visit transpired according to the Parenting Plan. In June 2004, G developed an ear infection. The doctor ordered rest and no activities, such as swimming. Frye emailed Howe to cancel his visit with G, even though she did not have a physician’s note specifically precluding a residential visit. Although Howe had contacted the clinic in the past when he questioned Frye’s cancellation of a visit with G, he did not contact the clinic on this occasion. Howe did not visit with G on this date. C. Telephone Visits Starting at the age of three, Howe could call G every Tuesday evening between 7:30 and 8:30. Howe alleged that Frye interfered with these phone calls 12 times during the approximately two years between G’s third birthday and the contempt proceedings. According to Frye, G was so young he did not want to talk or he would not quite understand what he was to do on the phone. According to Howe, Frye actively engaged in frustrating these phone calls either by putting G to bed before 7:30 or by being unavailable on her cellular phone during the prescribed telephonic visit time. II. Procedural History Howe initiated the instant contempt proceedings by alleging 21 violations of the Parenting Plan. These allegations included that Frye (1) failed to provide complete copies of the parenting plan to G’s schools and medical providers, (2) interfered with Howe’s custodial visits, and (3) prevented telephonic visits between Howe and G. A. Pretrial Discovery Before trial, the parties engaged in lengthy discovery. Howe subpoenaed five witnesses, served subpoena duces tecum on nine entities, asked Frye to produce over 20 items, and deposed numerous witnesses. Frye moved the trial court to limit the pre-trial depositions and document production. The trial court (1) found that Howe’s subpoenas “went beyond the scope of the issues,” commenting that Howe appeared to be engaging in a “fishing expedition,” (2) granted Frye’s motion, (3) awarded Frye $500 in attorney fees, and (4) awarded Wayne Frye (Mia Frye’s father) attorney fees for an oppressive subpoena. B. Contempt Trial The contempt trial lasted nearly five days, during which Howe presented testimony from six witnesses. Both Howe and Frye testified about their differing versions of the events that led to Howe’s contempt allegations. They also produced emails and calendars confirming their respective versions of the times when Howe was unable to talk with G on the telephone. Ernest Cook, Frye’s ex-boyfriend, whom she had dated intermittently between August 2002 and March 2003,[5] testified that he had witnessed Frye’s interference with phone calls on several occasions when Frye put G to bed early, sat G down to play video games right before the scheduled phone call, or refused to accept Howe’s call if it was a second too early or too late. But Cook could not remember specific dates, and he recalled that the weekly conversations between Howe and G occurred on Thursdays rather than Tuesdays. Frye countered Cook’s testimony about missed or frustrated phone calls with testimony and evidence that either the phone calls did take place or she was not at fault for any missed phone time. Frye testified that these dates fell during a time when she and Howe were apparently trying to improve their relationship; for example, Frye and G spent both Thanksgiving and Christmas with Howe in the Seattle area; thus, there was no incentive to frustrate phone calls during this period. And Howe’s own phone records demonstrate that for the January 2003 call, he first called Frye’s father, then called Frye’s old land line, but failed to call Frye’s cellular phone.[6] Finally, Frye’s calendar indicated that the November 2002 phone call took place as scheduled. At the end of trial, the trial court issued one finding of contempt for Frye based on her having frustrated three Tuesday evening phone conversations between Howe and G during the alleged two-year period.[7] The trial court consolidated the three missed phone calls into one finding of contempt, for which he ordered Frye to pay Howe $500. The trial court found no violations on Howe’s remaining 18 allegations. It found that, Frye’s provision of redacted copies of the Parenting Plan to Little Christian Daycare, Castle Rock Elementary, and the Child and Adolescent Clinic was not a violation of the Parenting Plan. Therefore, this action could not serve as a basis for holding Frye in contempt. With respect to the residential visit contempt allegations, the trial court noted that in every instant, Howe either had his visitation or failed to exercise his right to contact G’s physician. Page 9 Therefore, the trial court found no violation of the Parenting Plan. In addition, the trial court declined to order residential make-up time between Howe and G, noting, “I’ll consider some equitable remedy, but I don’t see it as a visitation issue.” Report of Proceedings (RP) at 645. The trial court then found that Howe should shoulder the majority of the parties’ attorney fees for the contempt action because he was responsible for driving up the cost of the litigation. The trial court noted: This is the essence of the award of attorney’s [sic] fees. The scope of the litigation is inappropriate, and it seems to reflect Mr. Howe’s desire to control the situation. That’s why the litigation was so expensive. That’s why it was. . . . Howe made this litigation expensive; and he’s going to bear the brunt of that. RP at 717-18. The trial court devised a formula whereby it calculated the entire sum of the attorney fees, and divided that number by the parties’ respective incomes. This formula resulted in Howe being responsible for $9,510 of Frye’s $21,227 attorney fees. The trial court then reduced Frye’s judgment by the $500 she owed Howe for the telephone-call contempt. Thus, Howe owed Frye a net total of $9,010.[8] C. Appeals Howe appeals numerous findings of fact and the trial court’s award of attorney fees to Frye.[9] Frye cross-appeals the trial court’s finding her in contempt for frustrating the three phone calls. ANALYSIS I. Contempt Findings Howe assigns error to essentially all of the trial court’s findings of fact. He argues that these factual errors led the trial court to its erroneous finding of no contempt on the majority of Howe’s allegations.[10] Frye cross-appeals the trial court’s finding her in contempt for frustrating three telephone calls between Howe and G. We hold that the record supports the trial court’s findings. A. Standard of Review An appellate court will not reverse a trial court’s decision in a contempt proceeding absent an abuse of discretion. In re Marriage of James, 79 Wn. App. 436, 440, 903 P.2d 470 (1995). We uphold the trial court’s factual findings if substantial evidence supports them. In re Marriage of Myers, 123 Wn. App. 889, 892-93, 99 P.3d 398
(2004). In reviewing contempt violations concerning parenting plans, we strictly construe the parenting plan to see whether the alleged conduct constitutes “a plain violation” of the plan In re Marriage of Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012 (1995). B. “Redacted” Parenting Plan Howe’s first three assignments of error pertain to the trial court’s finding that Frye did not act in contempt when she supplied incomplete copies of the Parenting Plan to Little Christian Daycare, Castle Rock Elementary, and the Child and Adolescent Clinic. Howe further alleges that the trial court erred in finding that Frye did not make disparaging comments about him to personnel at these institutions. In making his allegations, Howe did not claim that Frye violated any specific provision in the Parenting Plan. Consistent with this lapse, the trial court specifically found that Frye was not in contempt of the Parenting Plan because no specific language in Plan requires Frye to provide these entities with any copy of the Parenting Plan, complete or incomplete. Thus, under a strict construction of the Parenting Plan, there was no violation of a court order. See Humphreys, 79 Wn. App. at 599. Accordingly, we hold that the trial court did not abuse its discretion in finding no contempt of a parenting plan provision that does not exist. Nonetheless, Howe makes a blanket assertion that Frye’s providing schools and the clinic with partial copies of the Parenting Plan demonstrate her deliberate effort to “hinder Mr. Howe in his performance of his parental function and parenting plan `duties.'” Appellant’s Brief at 32. But Howe provides no citations to the record to substantiate this claim. Therefore, we need not address the merits of this argument.[11] RAP 10.3(5). In addition, Howe assigns error to the trial court’s finding that Frye made no disparaging comments to these entities. He cites one page from the five-day trial record as evidence of Frye’s disparaging comments; this single citation concerns Frye’s statement that Howe has been a “problem.” The Parenting Plan, however, addresses only disparaging comments made in G’s presence. And Howe produced no evidence that Frye made such disparaging comment in G’s presence. Thus, Howe fails to show that the trial court erred in finding that Frye’s comment was not a violation of a court order. We further note that the record supports the trial court’s finding that Frye’s comment was a minor, isolated incident. The record is devoid of any testimony linking Frye’s provision of redacted or incomplete copies of the Parenting Plan to a violation of a court order. And there is no evidence that such actions or any of Frye’s interactions with Little Christian Daycare, Castle Rock Elementary, and the Child and Adolescent Clinic negatively impacted Howe’s ability to engage in G’s educational development or his healthcare. Thus, Howe’s arguments on this point fail. B. Residential Visits 1. Bellevue pick-up Howe next challenges the trial court’s finding that Frye did not act in contempt when she attempted to “renegotiate” the travel arrangements for the May 28, 2004 visit. Howe takes umbrage with the trial court’s use of the term “negotiate” because, in his opinion, Frye blatantly lied about car trouble in an effort to force Howe to return G to Kelso instead of following the Parenting Plan requirement that Frye drive to Bellevue to pick-up G after the visit. But this trial court decision involved interpreting and weighing evidence, a function that the appellate courts will not disrupt. See State v. Walton, 64 Wn. App. 410, 415-16, 824 P.2d 533, review denied, 119 Wn.2d 1011 (1992) Furthermore, although the trial court found Frye dishonest about her car troubles, nonetheless, Howe had his residential visit with G on May 28, and the pick-up and drop-off occurred according to the Parenting Plan, including Frye’s driving to Bellevue to retrieve G. Accordingly, Frye did not violate the Parenting Plan or any other court order. Thus, Howe has failed to show error in the trial court’s finding. 2. Medical reasons Howe also challenges the trial court’s findings that Frye did not violate a court order by invoking medical excuses to deny his residential visits with G on four occasions. On two of these scheduled visits, Howe contacted the doctor to inquire about the possibility of a visit with G regardless of the illness. Howe then had his visits with G without interference. On the third occasion, Frye possessed a note from the doctor, which the Kelso police verified. Thus, the only visit of concern is the June 10, 2004 visit, when Frye claimed G had an ear infection and was unable to travel. The trial court specifically found no contempt because Howe chose not to exercise his rights under the Parenting Plan, as he had done in the past, to contact G’s doctor and to override Frye’s decision to keep G at her home for medical reasons. Based on the evidence surrounding the four missed visits, the trial court found that (1) the visits occurred and, thus, there was no violation of the Parenting Plan; (2) Frye exercised her rights and kept G at home supported by a note from G’s doctor; or (3) Howe chose not to exercise his rights under the Parenting Plan to contact G’s doctor and to seek reconsideration of the medical recommendation that G not travel for these scheduled visits. The record supports the trial court’s finding that under these three scenarios, Frye did not violate a court order, namely the Parenting Plan. C. Telephonic Contact The trial court found that Frye frustrated telephonic contact on three occasions in violation of the Parenting Plan. For failing to provide phone calls on these occasions, the trial court fined Frye $500. 1. Howe’s direct appeal Howe contends the trial court erred consolidating those three occasions into one finding of contempt. Howe implies that this “consolidation” is contrary to the language in RCW 26.09.160, because nothing in the statute allows the trial court’s grouping of three separate phone calls into one act of contempt. Howe, however, provides no analysis of the statute or relevant case law to support this position. Thus, we do not consider his argument. RAP 10.3(5).[12] 2. Frye’s cross-appeal Frye cross-appeals the trial court’s finding that she frustrated three telephone calls on November 12 and December 3, 2002, and on January 21, 2003. The trial court based its finding on Cook’s testimony that, during the months he and Frye were romantically involved, he witnessed Frye frustrate phone calls between Howe and G, even though he did not remember exact dates or times. The trial court credited Cook’s testimony in finding Frye in contempt. Frye argues that this finding is not supported by substantial evidence because: (1) Cook Page 16 could not remember dates or times; (2) thus, the trial court had no basis for finding a violation on the specific dates noted in its Findings of Fact and, therefore, the trial court abused its discretion when it noted these dates simply because out of Howe’s 12 allegations, they were the only dates that fell in the window when Cook and Frye were romantically involved; and (3) Frye’s testimony demonstrates that either the missed phone call actually occurred or she was not to blame for the missed contact. We agree with Frye’s assertion that the evidence supporting the trial court’s finding is far from overwhelming. Nonetheless, this factual finding relies primarily on witness credibility when the court was forced to choose between believing Howe and Cook and believing Frye. The trial court expressly chose to believe Cook. In her cross appeal, Frye essentially asks us to weigh the credibility of several witnesses’ testimonies and to enter a finding contrary to the trial court’s. We do not, however, invade the province of the fact finder in making such credibility determinations. Instead, we defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence Walton, 64 Wn. App. at 415-16. II. Other Findings A. Frye’s Ability to Comply with the Parenting Plan Howe challenges the trial court’s finding that Frye is able and willing to comply with the Tuesday evening phone call provision of the Parenting Plan. Specifically, the trial court found that, as of the time of trial, Frye had regular cellular service, which enabled her to comply with the Parenting Plan.[13] Howe challenges this finding of fact by citing to a page in the record where Frye stated that she does not believe she acted in bad faith, and she tries to follow the Parenting Plan. Apparently, Howe extrapolates from these comments that Frye understands the Parenting Plan but has chosen to ignore it because she has prevented phone access in the past. Again, however, Howe fails to cite to the record to demonstrate his claimed lack of support for the trial court’s belief that Frye will now act in accordance with the Parenting Plan. RAP 10.3(5). Absent such specific citations to the record, we need not undertake to evaluate whether the record supports this finding See In re Disciplinary Proceeding Against Haskell, 136 Wn.2d 300, 310-11, 962 P.2d 813 (1998) (declining to address insufficiently briefed challenges). B. Residential Make-Up Time Howe also asks us to reverse the trial court’s finding that he is not entitled to court-ordered make-up residential time to compensate for the missed phone calls. At trial, Howe sought residential time to compensate for the three missed phone calls. But, upon finding Frye in contempt, the trial court indicated that it would not order additional residential time but it would consider an “equitable remedy.”[14] Again, without citation to the record or any legal authority, Howe argues that the evidence does not support the trial court’s order. RCW 26.09.160(2)(b)(i) provides that the trial court should allocate time to the moving party if the contemnor has failed to comply with a court order. The statute mandates that the “additional time shall be equal to the times missed with the child.” RCW 26.09.160(2)(b)(i). But Page 18 neither the statute nor case law require residential make-up time in these circumstances. Nor does the record show why the trial court should have ordered additional residential time to replace the three missed phone calls. Thus, we hold that the trial court acted within its discretion when it decided that Howe was not entitled to court-ordered additional residential time. III. Attorney Fees A. At Trial The trial court ordered Howe to pay $9,510 of Frye’s attorney fees, offset by the $500 Frye owed Howe for the telephone call contempt, for a net of $9,010 Howe had to pay Frye. Howe challenges the trial court’s order granting Frye these attorney fees on several grounds. 1. Contempt sanction First, he argues that the $500 ceases to function as a contempt sanction because Frye does not have to pay any money where her fine offsets part of the attorney fees he owes her. According to Howe, the sanction needs to “penalize” Frye, and the trial court failed to punish Frye sufficiently. We disagree. RCW 26.09.160 does not use the terms “penalize” or “punish.” Instead, the statute encourages trial courts to impose penalties in order to coerce compliance with court orders. See In re Marriage of Farr, 87 Wn. App. 177, 186, 940 P.2d 679 (1997), review denied, 134 Wn.2d 1014 (1998). Moreover, the trial court possesses wide discretion in setting the amount of attorney fees in a contempt action, as long as the fees are reasonable and “incurred as a result of noncompliance” with a court order. See In re Parentage of Schroeder, 106 Wn. App. 343, 353, 22 P.3d 1280 (2001). Here, there is no showing that the trial court abused its discretion by finding that $500 was sufficient to ensure Frye’s compliance with the Parenting Plan and to compensate Howe for the attorney fees he incurred in establishing three missed phone calls. 2. Prevailing party; Howe’s intransigence Next, Howe argues that Frye is the losing party because the trial court found her in contempt and, thus, it was Frye, not Howe, who should have been responsible for all the parties’ attorney fees.[15] This argument ignores two critical points. First, although Howe prevailed on three of his 21 allegations, he failed to show contempt on the remaining 18 allegations. In repeatedly declaring Frye “the contemnor,” Howe ignores that the trial court found that Frye did not violate the Parenting Plan in the vast majority of his allegations. RCW 21.09.160(2)(b)(ii) requires Frye to compensate Howe for only the three missed phone calls, not for the remaining 18 unsubstantiated claims. Second, the record demonstrates that the trial court awarded attorney fees to Frye because of Howe’s intransigence and his running up of litigation costs, not based on the specific outcome of the contempt hearings, namely which party primarily prevailed. Regardless of the parties’ relative financial abilities, a trial court may award attorney fees when one parent’s intransigence causes the other parent to incur additional legal services. In re Marriage of Schumacher, 100 Wn. App. 208, 216-17, 997 P.2d 399 (2000). Washington courts have found intransigence when one party engages in obstructive behavior or delay tactics, files unnecessary motions, fails to cooperate with the attorney, or participates in other activities that make trial unduly difficult or that increase legal costs unnecessarily. See, e.g., In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929 (1997); In re Marriage of Crosetto, 82 Wn. App. 545, 564, 918 P.2d 954 (1996); In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120, review denied, 120 Wn.2d 1002 (1992). These cases justify the trial court’s award of attorney fees to Frye based on Howe’s similar intransigence. The trial court found that Howe unnecessarily increased the costs of the litigation. His apparent desire to order numerous depositions, subpoenas, and document production persuaded the trial court that his litigation strategy was both unnecessary and oppressive. At the end of the day, Howe was responsible for his own legal fees and approximately $9,000 of the $24,000 legal fees that Frye incurred because of the extensive scope of Howe’s litigation. We hold that the trial court did not abuse its discretion in awarding Frye less than half of her attorney fees based on Howe’s intransigence. B. On Appeal Frye asks us to award her appellate attorney fees based on Howe’s continued intransigence on appeal. We grant this request in part.[16] 1. Howe’s direct appeal Intransigence is a basis for awarding fees on appeal, separate from RCW 26.09.140 (financial need) or RAP 18.9 (frivolous appeals). Chapman v. Perera, 41 Wn. App. 444, 455-56, 704 P.2d 1224, review denied 104 Wn.2d 1020 (1985). The financial resources of the parties need not be considered when intransigence by one party is established Greenlee, 65 Wn. App. at 711; In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1998). On appeal, as in the trial court below, Howe has escalated the cost of this litigation. He has appealed essentially every aspect of the trial court’s Findings of Fact, without complying with the Rules on Appeal. Howe’s raising of numerous issues, many of which he fails to substantiate or to support with the required citation to the record or legal argument, makes it cumbersome and costly for Frye to defend herself on appeal. Howe’s desire to engage in a protracted and highly contested contempt hearing below and then to appeal is his decision. But in electing this course of action, we agree with the trial court that, in these circumstances, Howe should bear the brunt of the appellate costs for Frye as well as for himself. Howe unabashedly demonstrated his intransigence at trial. The manner in which he has pursued his appeal of the trial’s outcome justifies an attorney fee award to Frye on appeal. In re Marriage of Wallace, 111 Wn. App. 697, 710, 45 P.3d 1131 (2002), review denied, 148 Wn.2d 1011 (2003); Perera, 41 Wn. App. at 456; Eide v. Eide, 1 Wn. App. 440, 445-46, 462 P.2d 562 (1969). 2. Frye’s cross-appeal Frye chose to cross-appeal the trial court’s single finding of contempt based on three missed phone calls. She has not prevailed on this point. Therefore, we deny her request for attorney fees on appeal attributable to her cross appeal. We affirm the trial court’s finding Frye in contempt. We award appellate attorney fees to Frye for responding to Howe’s appeal; we deny her request for attorney fees for her cross-appeal. We direct our commissioner to determine the appropriate award based on Frye’s attorney fees attributable to her response to Howe’s appeal, excluding her attorney fees solely attributable to her cross appeal. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered. Hunt, J. We concur: Armstrong, P.J. Penoyar, J.