No. 55945-1-I.The Court of Appeals of Washington, Division One.
May 30, 2006.
Appeal from a judgment of the Superior Court for King County, No. 93-2-29534-1, Mary Yu, J., entered February 22, 2005.
Reversed by unpublished opinion per Coleman, J., concurred in by Appelwick, C.J., and Agid, J.
Counsel for Appellant(s), Patricia S. Novotny, Attorney at Law, 3418 NE 65th St Ste a, Seattle, WA 98115-7397.
Counsel for Respondent(s), Michael G. Brannan, Law Ofc of Michael G. Brannan, 2033 6th Ave Ste 800, Seattle, WA 98121-2567.
COLEMAN, J.
Lona R. Flemmer was prohibited by a court order from making any `reporting’ of abuse of her daughter by the daughter’s father, Magdi M. Fahim, to anyone except a court-appointed transition officer. Flemmer subsequently told a friend about a worrisome telephone conversation with her daughter. The friend called a 911 dispatcher, and authorities were sent to Fahim’s residence. The court held Flemmer in contempt of court for violating the order and awarded Fahim attorney fees.
We vacate the contempt order and the award of attorney fees. Because the language of the court order, strictly construed, prohibited Flemmer only from making reports of suspected abuse to an official agency, Flemmer did not violate the order by conversing with her friend.
FACTS
Lona R. Flemmer and Magdi M. Fahim lived in a meretricious relationship. In April 1992, their daughter was born. Flemmer and Fahim split apart. During the daughter’s childhood, Flemmer made complaints of child abuse by Fahim to the Eastside Sexual Assault Center and Harborview Emergency Room. Officials conducted interviews, but findings of sexual abuse were inconclusive. When a Child Protective Services worker later interviewed the daughter, the daughter denied experiencing any inappropriate touching by Fahim. The social worker concluded that there was no sexual abuse, but that the daughter was experiencing emotional distress from her parents’ separation.
In 2001, the daughter alleged abuse by Fahim to her psychotherapist and school counselor. The daughter did not make any disclosure of sexual abuse during an interview at the Regional Justice Center. A superior court ordered a parental access evaluation by psychologist Marsha Hedrick. In her evaluation, Hedrick concluded that `[a] careful review of the documentation and the interviews with Nichol yielded little to support a finding that she had been sexually abused by her father.’ Hedrick noted that Flemmer made many referrals to Child Protective Services `and repeatedly tape recorded herself and others interviewing Nichol about sexual abuse using leading questions.’ Hedrick added that the daughter `has been primed to make false statements about her father sexually abusing her for over six years. In some respects, it’s surprising that it took her so long.’
In March 2003, the superior court prohibited Flemmer from reporting abuse to anyone other than a court-appointed transition officer. The order reads,
Any abuse disclosures shall first be made to Terry Bader and may also be made directly to Judge Yu afterward. . . . The mother is specifically admonished not to make any reporting or cause any 3rd party to make any reporting of abuse of any type, other than to Ms. Terry Bader. Jail time will be considered as a sanction if she fails to comply.
In November 2004, Flemmer received a disturbing voice mail message from her daughter. Flemmer called her daughter and spoke to her. Right before the daughter hung up, Flemmer heard Fahim yelling at the daughter. She telephoned a friend, Jeanne Pratt, out of worry over the daughter. Pratt said that she thought the 911 dispatcher should be called. Flemmer told Pratt she would try to reach the daughter by telephone. While Flemmer tried to contact her daughter again, Pratt telephoned the King County Sheriff’s Office 911 dispatcher and reported that Fahim was endangering the daughter. When Flemmer found out about Pratt’s call, she asked Pratt to stop the police from going to Fahim’s home. An officer from the Sheriff’s Office was dispatched to Fahim’s residence. The officer spoke to Fahim and the daughter and ascertained that nothing was wrong.
Fahim moved for an order of contempt and for other relief. The court ruled that Flemmer was in contempt of court for failing to comply with the provisions of the March 2003 order requiring her not to make a referral of child abuse to anyone other than Terry Bader. The court noted that it did not find that Flemmer asked Pratt to call the 911 dispatcher. The court also awarded Fahim attorney fees. Flemmer appeals.
ANALYSIS
Flemmer argues on appeal that the superior court erred in holding her in contempt because she did not violate the March 2003 order. She acknowledges that the March 2003 order prohibited her from making `any reporting’ of abuse to anyone but the transition counselor and from `caus[ing] any 3rd party’ to make such a report. She argues, however, that this language does not encompass the act of telling a friend about her concern for her daughter. We agree.
`In determining whether the facts support a finding of 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). The critical language of the order reads, `The mother is specifically admonished not to make any reporting or cause any 3rd party to make any reporting of abuse of any type, other than to Ms. Terry Bader.’ This language indicates that in light of the history of complaints, Flemmer must stop making complaints that lead to official investigations. The structure of the order indicates as well that `reporting’ means a report to an official agency. A broader definition encompassing Flemmer’s conversation with her friend would render superfluous the prohibition against `caus[ing] any 3rd party’ to make a report, as Flemmer would necessarily violate the first part of the order any time she informed another person about her concerns or beliefs.
Given Flemmer’s history of difficult behavior, one can sympathize with the superior court’s frustration over the act in question. But this court must focus on the written text of the order in light of the history of the case. Because `reporting’ in the context used here means a report to an official agency, Flemmer’s telephonic conversation with Pratt cannot be said to fall within the ambit of the order. If the superior court had found that Flemmer asked Pratt to call a 911 dispatcher or that Flemmer knew that Pratt would make such a call and that Flemmer called her for that purpose, the court would have had adequate grounds for determining that Flemmer caused a third party to make a report to an official agency. Contempt would have been appropriate. But in the absence of such a finding, Flemmer’s conversation cannot be construed as violative of the March 2003 order.
We vacate the contempt order and the award of attorney fees to Fahim.[1]
APPELWICK, and AGID, JJ., concur.