Opinion
No. 57658-5-I.
December 11, 2006.
Appeal from a judgment of the Superior Court for King County, No. 03-3-07384-2, Jacqueline L. Jeske, J. Pro Tem., entered December 27, 2005.
Counsel for Appellant(s), John Stratford Mills, Attorney at Law, Tacoma, WA.
Counsel for Respondent(s), Craig Jonathan Hansen, Hansen Law Group, Bellevue, WA.
Affirmed in part and reversed in part by unpublished per curiam opinion.
Aziz Afallouss appeals the trial court's order imposing attorney fees and addressing his failure to comply with the parenting plan for his child with his former wife Aime. Because the court did not find Aziz in contempt, made no findings regarding the parties' need and ability to pay, and did not find intransigence on Aziz's part, we must reverse the award of attorney fees. The court's order directing Aziz to give seven days written notice of his inability to comply with the plan's residential schedule is a permissible clarification of the preexisting notice requirement. But the order that he pay for daycare resulting from rescheduling is a new requirement that constitutes an impermissible modification of the decree. We affirm in part and reverse in part.
For clarity's sake, the parties' first names are used. No disrespect is intended.
FACTS
Aime moved to have Aziz held in contempt for repeatedly violating provisions of the parenting plan governing his residential time with the parties' child. The problem was that Aziz failed to give timely notice, or sometimes any notice, when he was unable to adhere to the residential schedule. After a hearing, a superior court commissioner pro tem found Aziz had violated the parenting plan, but did not find him in contempt. Rather, the commissioner found that Aziz's "failure to comply [with the] parenting plan was not willful, based on [the] lack of clarity on how father is required to notify mother when he cannot take the child." The commissioner nonetheless awarded Aime $350 of the $1,500 in attorney fees she requested. The commissioner also directed that in the future, Aziz must give seven days notice by mail or e-mail if he is unable to take the child at the scheduled time, and must pay costs of daycare incurred resulting from any changes not caused by his job for which he fails to give such notice.
Aziz appeals.
Attorney fees
Aziz first challenges the award of $350 attorney fees to Aime. He contends that a contempt proceeding under RCW 26.09.160 requires a finding of willful contempt before a court may impose fees. We agree.
We review family law proceedings for an abuse of discretion, which we find only if a trial court's decision is "manifestly unreasonable or based on untenable grounds or untenable reasons." "A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard." In Washington, "[a]ttorney fees may be recovered only when authorized by statute, a recognized ground of equity, or agreement of the parties."
In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
Id. at 47.
Perkins Coie v. Williams, 84 Wn. App. 733, 742-43, 929 P.2d 1215 (1997).
Aime brought her action under RCW 26.09.160, which provides that one parent may "initiate a contempt action to coerce a parent to comply with an order establishing residential provisions for a child." In such a case, if the court finds "that the parent, in bad faith, has not complied with the order establishing residential provisions for the child, the court shall find the parent in contempt" and "shall order . . . [t]he [noncomplying] parent to pay, to the moving party, all court costs and reasonable attorneys' fees incurred as a result of the noncompliance." Contrary to Aime's contention, this statute clearly requires a finding of contempt as a prerequisite to an award of fees. Because the trial court expressly refused to find Aziz in contempt, an award of fees was not authorized by the statute.
RCW 26.09.160(2(a).
Aime's alternative claims of other bases for the fee award also fail. The court made no findings regarding the parties' need and ability to pay, which are required to support an award under RCW 26.09.140. Nor did the court make any finding that Aziz had engaged in obstructive behavior, delaying tactics or otherwise acted to increase legal costs unnecessarily to support an award of fees based on his intransigence. Indeed, the court's express finding that Aziz did not willfully violate the parenting plan implicitly contradicts such a theory.
In re Marriage of Rideout, 150 Wn.2d 337, 357-58, 77 P.3d 1174 (2003).
See 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 (1992).
notice and daycare payment requirements
Aziz next challenges the trial court's orders that he provide Aime a week's written notice if his work schedule conflicts with his residential time with their child. He also challenges the requirement that he pay all resulting daycare costs if notice is not timely. He contends that the court's new requirements constitute a modification of the terms of the parenting plan which is impermissible without adherence to the statutory modification procedure.
A clarification of a dissolution decree is "merely a definition of the rights which have already been given and those rights may be completely spelled out if necessary." A court may clarify a decree by defining the parties' respective rights and obligations, if the parties cannot agree on the meaning of a particular provision. A modification, on the other hand, occurs when a party's rights are either extended beyond or reduced from those originally intended in the decree, and may only follow a prescribed statutory process.
Rivard v. Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969).
Rivard, 75 Wn.2d at 419.
Id.
As for the requirement of a week's written notice, we note that the parties' parenting plan contains the requirement that "[i]f the father is unable to care for the child then he shall notify the mother and give her the option to do so. The child shall not be placed with babysitters or other providers if the mother is able to care for the child." Setting a specific time and method for communicating the required notice was a permissible clarification of the parenting plan because neither of the parties' rights were expanded or reduced. And we reject Aziz's contention, for which he cites no authority, that the commissioner could not clarify the requirements of the decree because Aime had not moved for clarification. Aziz has not challenged the court's finding that he was not in compliance with the parenting plan and that the reason for this was because of this provision's lack of clarity as to the required notice. Under these circumstances, we find no abuse of discretion by the commissioner in clarifying the existing notice requirement and therefore affirm that portion of the order.
See, e.g., Rivard, 75 Wn.2d at 419 (upholding the court's clarification that the father could have the children on alternate weekends and one evening per week, when the parties could not agree on the meaning of the divorce decree's phrase "reasonable visitation rights").
We note that Aziz does not argue that a decree may not be clarified during a contempt proceeding of the type before the trial court. Thus, we do not address that issue here.
As for the requirement that Aziz pay daycare costs resulting from a short notice change of plans, however, the court's language goes beyond explaining the provisions of the existing parenting plan or filling in undefined details. The order on its face imposes new requirements for Aziz to pay daycare costs beyond what was previously required. It is not a clarification of the existing plan, and amounts to a modification that cannot be sustained because no action for modification was pending. We accordingly reverse that portion of the commissioner's order.
See RCW 26.09.260 and .270 (establishing the requirements and procedure for a modification hearing based upon a substantial change in circumstances).
Attorney fees on appeal
Aime has requested an award of fees based upon RCW 26.09.160, RCW 26.09.140, and what she characterizes as Aziz's intransigence. Because we do not sustain a finding of contempt, RCW 26.09.160 is inapplicable. Aime has not filed the required affidavit to allow for an award under RCW 26.09.140. See RAP 18.1(c). And we do not find intransigence on Aziz's part from the record before us. We accordingly deny the request for fees on appeal.
We affirm the clarification of the decree and reverse the award of fees and the imposition of a requirement to pay daycare costs beyond the scope of the existing decree.
For the Court:
Susan Agid, Marlin Appelwick, Concurring.