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DO NOT CITE. SEE GR 14.1(a).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
| Docket Number: |
67578-8 |
| Title of Case: |
James White, App. V. Trena L. Steensland, Res. |
| File Date: |
06/11/2012 |
SOURCE OF APPEAL
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| Appeal from Snohomish Superior Court |
| Docket No: | 97-5-00897-1 |
| Judgment or order under review |
| Date filed: | 08/09/2011 |
| Judge signing: | Honorable Eric Z Judge Lucas |
JUDGES
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COUNSEL OF RECORD
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Counsel for Appellant(s) |
| | James Arthur White (Appearing Pro Se) |
| | 9521 64th Dr Ne |
| | Marysville, WA, 98270 |
Counsel for Respondent(s) |
| | Paula Mcmanus |
| | Attorney at Law |
| | 3306 Wetmore Ave |
| | Everett, WA, 98201-4323 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage of )
B.W., ) No. 67578-8-I
A minor child. )
) DIVISION ONE
JAMES ARTHUR WHITE, )
) UNPUBLISHED OPINION
Appellant, )
)
v. )
)
TRENA LOUISE FRYE, NKA )
TRENA STEENSLAND, ) FILED: June 11, 2012
)
Respondent. )
Grosse, J. -- James White and Trena Steensland are the parents of
B.W., born on April 20, 1995. White and Steensland have a long history of
contested hearings and mutual allegations of parental deficiency and
misconduct. This appeal is the second time this parentage matter has been
before this court. On appeal this time is the superior court's order denying
White's motion for revision of a commissioner's ruling denying White's motion to
hold Steensland in contempt. Because we conclude that the superior court did
not abuse its discretion in denying White's motion for revision and that the
court's findings are supported by substantial evidence in the record, we affirm
the superior court's order. We award Steensland her attorney fees incurred on
appeal pursuant to RCW 26.09.160(7).
White's motion for revision involves an earlier motion for contempt White
filed. With regard to the earlier motion, the superior court found, in a May 2,
No. 67578-8/2
2011 order:
Respondent/mother has failed to comply with the terms of the
Parenting Plan (Final Order) and the Order entered on January 11,
2011, by not cooperating with the visitation supervisor (Bridget
Llewellyn) regarding supervised visitation for the father, and by not
cooperating with Dr. Nyman regarding reintegration therapy for the
father and child.
The court ordered that White was to have residential time with B.W. twice per
week for up to four hours at a time.
On May 23, 2011, White filed another motion for contempt, which is the
subject of this appeal. In that motion, White asked the court to find Steensland
in contempt for her failure to comply with the court's May 2, 2011 order and also
asked the court to change the visitation supervisor. White alleged that
Steensland refused to schedule visits between B.W. and White and that, at
Steensland's urging, the current visitation supervisor also refused to set up
visits.
A court commissioner denied White's motion to hold Steensland in
contempt and his motion to change the visitation supervisor. As to contempt, the
commissioner found:
The court will not address the old issues. This hearing is a
review of the contempt. The court will not find contempt at this
time. From the materials submitted for the hearing, the court finds
that the mother is attempting to take the child to the visits with the
father, but she has no control if the child chooses to leave rather
than visit with the father. The mother is again instructed that she is
required to take the child to the visits.
White moved for revision of the commissioner's order.1 The superior
1 White's motion for revision is not in the record.
2
No. 67578-8/3
court denied White's motion, finding that B.W. "is source of bad attitude, not mother."
The court also denied White's motion to change the visitation supervisor. In its oral
ruling, the court noted that "even though the mother does have an attitude, the
child has his own mind at the age of 16, and the source of the bad attitude that is
interfering with the visitation is not the mother, but rather the son himself." White
appeals.
In an appeal from an order denying revision of a court commissioner's
ruling, we review the superior court's decision, not the commissioner's ruling.2
Our review of the superior court's decision is for abuse of discretion.3 We review
the superior court's findings as to contempt to determine whether they are
supported by substantial evidence.4
The superior court's sole finding in its order denying White's motion for
revision and to change the visitation supervisor is that B.W., not Steensland, "is
source of bad attitude," apparently meaning, as the commissioner found: "[T]he
mother is attempting to take the child to the visits with the father, but she has no
control if the child chooses to leave rather than visit with the father." The
superior court's finding is supported by substantial evidence. For example, Don
Layton, the therapeutic supervisor, stated in a declaration that at a meeting he
set up between White and B.W., B.W. "bolted after 20 minutes, walking a couple
of blocks to where his mother and grandmother were waiting." It is apparent
from this statement that Steensland did all she was required to do by bringing
2 In re the Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010).
3 Williams, 156 Wn. App. at 27.
4 Williams, 156 Wn. App. at 28.
3
No. 67578-8/4
B.W. to the scheduled meeting and that it was B.W.'s own, independent decision to cause
the meeting to end after only 20 minutes. Layton said of B.W.:
Even when advised that he will be held responsible for
disrespecting a court order, he allows his emotions to control his
decisions and walks away. His behavior during the twenty minutes
I observed him with his father was rejecting and rude, culminating
in his decision to remove himself from a stressful -- no matter how
court ordered -- situation.
Also, attached to Layton's declaration is a letter written in June 2011 from
B.W. to Steensland in which B.W. explains why he ran away, stating:
Sorry mom for running away but I don't want to have to visit him
and the caurts [sic] and counsalers [sic] just aren[']t listening to me
also all this stress is going to give me a heart attack I just can[']t do
this anymore its [sic] making me depressed and this was the lesser
of the 2 choices so I picked this one I didn't want to have to do this
but I will be back when this is all over.
Lisa Glendenning, the reunification therapist, stated in a report she
prepared shortly before the hearing on White's motion for revision that B.W. "is a
typical teenager who doesn't like to be told what he has to do."
White, as the party seeking to hold Steensland in contempt, has the
burden of establishing Steensland's bad faith by a preponderance of the
evidence.5 He has failed to meet this burden. In his brief, White simply alleges
that Steensland is not allowing B.W. to visit with him, but cites to no evidence in
the record in support of his assertion. Indeed, absent from the record is any
evidence that Steensland failed to comply with the court's May 2, 2011 order.
The evidence shows, as the superior court found, that the reason the visits
between B.W. and White have not occurred as ordered is that B.W. does not
5 See Williams, 156 Wn. App. at 28.
4
No. 67578-8/5
want to visit with White.
The sole authority White cites is In re the Marriage of Rideout.6 In that case,
the Supreme Court held:
[W]here a child resists court-ordered residential time and where
the evidence establishes that a parent either contributes to the
child's attitude or fails to make reasonable efforts to require the
child to comply with the parenting plan and a court-ordered
residential time, such parent may be deemed to have acted in "bad
faith" for purposes of [the contempt statute].[7]
Rideout does not support White's position because here the evidence
does not establish that Steensland contributed to B.W.'s attitude or failed to
make reasonable efforts to require him to comply with court-ordered residential
time. Rideout is distinguishable from this case and does not compel the reversal
of the superior court's order.
In sum, the superior court was correct in finding that B.W. is the source of
the "bad attitude," not Steensland. The superior court did not abuse its
discretion in denying White's motion for revision of the commissioner's order
denying his contempt motion and motion to change the visitation supervisor.8
Both parties request an award of attorney fees. Because we affirm the
superior court's order, White is not entitled to an award of attorney fees.
6 150 Wn.2d 337, 77 P.3d 1174 (2003).
7 Rideout, 150 Wn.2d at 356.
8 White provides no argument regarding the superior court's denial of his
request to change the visitation supervisor. Accordingly, we do not address it.
See Jenkins v. Palmer, 116 Wn. App. 671, 66 P.3d 1119 (2003). Also, White
argues that the superior court violated his right to equal protection of the law by
"not forwarding this case to the prosecutor for Domestic Violence Custodial
Interference." This issue is not before us on White's appeal from the order on
the motion for revision, and we do not address it.
5
No. 67578-8/6
Steensland requests an award of attorney fees under RCW 26.09.160(7), which
provides that upon a motion for contempt, "if the court finds the motion was
brought without reasonable basis, the court shall order the moving party to pay
to the nonmoving party, all costs, reasonable attorneys' fees, and a civil penalty
of not less than one hundred dollars." A statute allowing for an award of
attorney fees at the superior court also supports an award of attorney fees on
appeal.9 We award Steensland her attorney fees on appeal pursuant to RCW
26.09.160(7).10 Because Steensland did not request an award of attorney fees
in the superior court, we deny her request for an award of attorney fees incurred
in the superior court.11
WE CONCUR:
9 CHD, Inc. v. Boyles, 138 Wn. App. 131, 141, 157 P.3d 415 (2007), review
denied, 162 Wn.2d 1022 (2008).
10 We deny White's motion to strike Steensland's financial declaration. Because
we award Steensland her attorney fees on appeal, her financial declaration is
not frivolous.
11 Because we award Steensland her attorney fees on appeal under RCW
26.09.160(7), we do not address her request for an award of fees under CR 11.
6
No. 67578-8/7
7
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