No. 60433-3-I.The Court of Appeals of Washington, Division One.
July 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 02-3-04386-4, Jay V. White, J., entered July 17, 2007.
Reversed and remanded by unpublished per curiam opinion.
[EDITORS’ NOTE: This case is unpublished as indicated by the issuing court.]PER CURIAM.
Barry Foster was ordered to pay maintenance to Cindy Foster for 60 months. According to Cindy, he made only 48 payments and refused to pay more. Cindy filed a motion asking a court commissioner to order Barry to show cause why he should not be found in contempt. The commissioner denied Cindy’s motion and the superior court denied her motion for revision, under the mistaken belief that there was no longer a court order to enforce. We reverse and remand for further proceedings consistent with this opinion.
FACTS
Cindy and Barry Foster married in July 1978 and separated in May 2002. Barry filed for divorce in July 2002. In November 2002, the parties agreed to a temporary order providing that Barry would pay Cindy “$2,250.00 per month as undifferentiated child support and maintenance.”
Cindy and Barry signed and entered a decree of dissolution on February 3, 2003.[1] The decree indicated that Barry would pay maintenance “in the amount of $765 per month for a period of 60 months, beginning in February, 2002.” (Emphasis added.)
Barry stopped paying maintenance in February 2007. He told Cindy he had fulfilled his maintenance obligation because the decree ordered him to pay maintenance for 60 months, beginning in February 2002. Cindy, however, believed the parties intended the decree to state that maintenance payments were to begin in February 2003, when the decree was entered. She asserted that Barry paid maintenance for 48 months, instead of 60 months as the decree required. In April 2007, Cindy filed a motion for an order asking Barry to show cause why the decree should not be modified or vacated under CR 60 based upon extraordinary circumstances leading to manifest injustice. Apparently, Cindy failed to confirm her motion, and it was stricken. In May 2007, she filed a motion for an order directing Barry to appear and show cause why he should not be found in contempt of the decree of dissolution or, in the alternative, why the decree of dissolution should not be set aside under CR 60(b)(4) or (11) and for any other reason.
A commissioner denied Cindy’s motion. The commissioner reasoned that to find Barry in contempt, she must find he violated a valid court order, but in her opinion, the decree indicated support ended in February 2007 and, therefore, Barry was not in contempt.[2] The commissioner also rejected Cindy’s request for relief under CR 60(b)(4) and (11) because Cindy had not established the elements of fraud, and her motion to amend or vacate was not brought within one year.
Cindy filed a motion for revision, arguing that Barry should be found in contempt for failing to pay maintenance for 60 months. She asserted that even if the decree correctly stated that maintenance was to begin in February 2002, the decree also required Barry to make 60 payments, which he failed to do. A judge denied Cindy’s motion for revision based upon his determination that Cindy failed to show that Barry had disobeyed a court order. Cindy moved for reconsideration, but the judge denied it. This appeal followed.
ANALYSIS
Cindy contends that the superior court erred in denying her motion for revision. We agree.
On revision, the superior court generally reviews the commissioner’s findings of fact and conclusions of law de novo based upon the evidence presented to the commissioner. RCW 2.24.050 (“revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner”); State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132
(2004) (where the evidence before the commissioner did not include live testimony, the superior court judge’s review of the record is de novo). If appropriate, the superior court may remand to the court commissioner for further proceedings, including taking additional evidence. In re Marriage of Moody, 137 Wn.2d 979, 992, 976 P.2d 1240 (1999). An appeal following the superior court’s decision on revision is from the superior court’s decision, rather than the commissioner’s decision. Ramer, 151 Wn.2d at 113.
If an obligor does not pay maintenance as ordered, Washington law allows the obligee to initiate a contempt action. RCW 26.18.050(1). The court may use a contempt action to enforce a support order until the obligor pays all the support required under the decree, including any amounts in arrears: “As provided in RCW 26.18.040, the court retains continuing jurisdiction under this chapter and may use a contempt action to enforce a support or maintenance order until the obligor satisfies all duties of support, including arrearages, that accrued pursuant to the support or maintenance order.” RCW 26.18.050(5); see also RCW 26.18.040(3) (“The court retains continuing jurisdiction under this chapter until all duties of either support or maintenance, or both, of the obligor, including arrearages, have been satisfied.”).
The statute is clear. If an obligor fails to pay all that the court ordered, the obligee may initiate a contempt action to ensure that the entire amount owed is paid, regardless of whether the decree implies that the obligation to pay support will end by a particular date. See State ex rel. Wulfsberg v. MacDonald, 103 Wn. App. 208, 211, 11 P.3d 333 (2000) (court’s authority to enforce child support arrearages under RCW 26.18.050 extends past a child’s majority and dependency). If the commissioner finds there is reasonable cause to believe the obligor has not complied with the maintenance order, the court may require the obligor to appear and show cause why the relief requested should not be granted. RCW 26.18.050(1).
The decree indicated that Barry was to pay maintenance for 60 months starting in February 2002. Cindy presented bank records to show that Barry did not begin paying maintenance until February 2003, and he quit paying after only 48 payments. The commissioner, therefore, should have required Barry to prove either that he paid all 60 payments, or that he lacked the means to comply with the maintenance order. See RCW 26.18.050(1) and (4) (obligor may appear to show why relief requested should not be granted or, if the obligor contends he lacked the means to comply with the support, he shall establish that he exercised due diligence in seeking employment, conserving assets, or otherwise rendering himself able to comply with the court’s order). The commissioner did not require Barry to prove either that he complied with the decree, or was unable to do so.
A decision on a motion for contempt is reviewed for an abuse of discretion. Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725
(1995). Discretion is abused when its exercise is manifestly unreasonable or based upon untenable grounds or reasons. Moreman, 126 Wn.2d at 40.
The superior court affirmed the commissioner’s decision, which was based upon a conclusion that contempt was not a remedy available to Cindy because the decree indicated “that support ended in February [2007].” The decree, however, did not specifically state that the maintenance payments were to end in February 2007, but even if it had, Cindy presented evidence that Barry had not fulfilled his obligations under the decree. Contempt, therefore, was an appropriate remedy. Under these circumstances, the superior court abused its discretion when it denied Cindy’s motion for a contempt order.
Cindy argues that this case should reversed and remanded for the superior court to enter an order of contempt. Although we agree with her that the case must be remanded, we do not agree that the superior court must enter an order of contempt. Rather, upon remand, the court must consider the evidence to determine whether Barry complied with the decree. If the court is unable to determine from the existing record whether Barry complied, the court may conduct whatever proceedings it deems necessary to resolve the matter. See In re Dependency of B.S.S., 56 Wn. App. 169, 170, 782 P.2d 1100 (1989).
Because Cindy contends that Barry did not begin paying maintenance until February 2003, rather than February 2002 as the decree ordered, she argues that he owes her for 12 maintenance payments, plus interest based upon each of the 48 payments having been made 12 months late, for a total of $15,192.90. Barry responds that Cindy is not entitled to that amount because her calculations were not presented to either the commissioner or the superior court. Cindy, however, never had an opportunity to present her calculations because neither the commissioner nor the judge resolved whether Barry was in contempt. Upon remand, if the court determines that Barry failed to pay what the decree required, the court should also determine which payments he failed to pay. The amount Barry owes in interest, if any, should be based upon that determination.
Cindy also argues that the trial court erred by failing to award her attorney fees. Under RCW 26.18.160, the party who prevails in an action to enforce a maintenance order is entitled to costs, including attorney fees, unless the prevailing party is the obligor, in which case, the court may award fees only if the obligee acted in bad faith:
In any action to enforce a support or maintenance order under this chapter, the prevailing party is entitled to a recovery of costs,
including an award for reasonable attorney fees. An obligor may not be considered a prevailing party under this section unless the obligee has acted in bad faith in connection with the proceeding in question.
Barry argues that Cindy was not entitled to attorney fees because her motion for a show cause order on contempt indicated she was not asking for sanctions. The only authority he cites in support of his argument is RAP 2.5(a), which allows this court to refuse to consider a claim of error not raised in the trial court. Because Cindy asked the superior court to award her attorney fees and we are reviewing the superior court judge’s decision, Barry’s argument is not persuasive. Whether or not Cindy is entitled to the attorney fees she expended in her proceedings before the commissioner and the superior court, however, will depend upon the superior court’s decision on remand.
Cindy also asks for her attorney fees on appeal. When a statute allows an award of attorney fees in the trial court, an appellate court has the authority to award fees to the prevailing party on appeal. Hwang v. McMahill, 103 Wn. App. 945, 954, 15 P.3d 172 (2000). Cindy is the prevailing party in this court and, therefore, she is entitled to her fees on appeal. The superior court is directed to determine the amount of fees and expenses to award after remand.
Barry asks this court to dismiss Cindy’s appeal as frivolous and award him his attorney fees on appeal, citing RAP 18.9, which allows this court to sanction a party and dismiss an appeal if it is frivolous. RAP 18.9(a) and (c)(2). Cindy’s appeal is not frivolous. Barry’s request for attorney fees and dismissal is denied.
CONCLUSION
The superior court abused its discretion when it failed to determine whether Barry satisfied his obligations under the decree. We reverse and remand for the trial court to determine whether Barry was in contempt and to award attorney fees to the prevailing party.