In re the Marriage of Kimberly Laubach & Arthur Laubach, III

FILED
JUNE 5, 2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Marriage of: 	)
) 	No. 31680-7-111
)
KIMBERL Y LAUBACH, 	)
)
Respondent, 	)
) 	UNPUBLISHED OPINION
and 	)
)
ARTHUR LAUBACH, III, 	)
)
Appellant. 	)
FEARING, J. 	This case is one of many illustrating harm to a child when his
divorced parents squabble. Neither parent will change his or her behavior because the
other parent is totally to blame for that harm. 	Courts are rarely capable of solving the
problem of bickering parents.
Arthur Laubach appeals the trial court's denial of his motion to hold his former
wife, Kimberly Laubach, in contempt for allegedly violating a parenting plan directing
that he be notified of health care for their son. We affirm the trial court since the trial
court did not abuse its discretion when finding that Kimberly Laubach did not act in bad
faith when failing to comply with the plan.
FACTS
Arthur and Kimberly Laubach divorced and agreed to a parenting plan for their

No. 31680-7-111
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two children in June 2010. Arthur lives in Colorado; Kimberly and their two children
live in Washington State. As of2010, their daughter, G.L., was five years old and their
son, B.L., was 11.
After the marriage dissolution, Arthur and Kimberly mediated a new parenting
plan, which the court approved on April 14,2011. In relevant portion, that plan provides:
Affection: Each parent shall exert every effort to maintain free
access, or unhampered contact between the children and the
other parent, so as to foster affection between the children and
the other parent. Neither parent shall do anything that will
estrange the children from the other parent, nor shall a parent
do anything that would tend to injure a child's opinion of the
other parent, or to impair in any way the natural development
of the children's love and respect for both parents.
4.1 	Day-to-Day Decisions
Each parent shall make decisions regarding the day-to-day care and
control of each child while the child is residing with that parent.
Regardless of the allocation of decision making in this parenting
plan, either parent may make emergency decisions affecting the
health or safety of the children.
4.2 	Major Decisions
Major decisions regarding each child shall be made as follows:
Education .... [X] joint
Non-emergency health care .... [X] joint
Religious upbringing [X] petitioner
Clerk's Papers (CP) at 43,45.
At some point, B.L. began to cut himself as a coping mechanism. B.L. saw a
therapist, who assisted him in improving his relationship with his father and in managing
peer relationships.
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On March 28, 2012, Kimberly took B.L. to a doctor for a wellness visit. The
doctor diagnosed B.L. with depression and prescribed the antidepressant Prozac.
Kimberly did not inform Arthur ofthe visit or prescription for two reasons. First, B.L.
showed concern about his father knowing of his mental health therapy and his taking
antidepressants. Kimberly wished to respect her son's privacy. 	Second, Kimberly did
not believe that their parenting plan required her to notify Arthur.
B.L. stayed with Arthur for a month during the summer in 2012. B.L. arrived at
his father's home with his medications, including Prozac, but no instructions from his
mother to his father concerning the medications. During that time, Arthur learned of the
March 28,2012 doctor visit and B.L.'s taking of antidepressants. During the visit,
Kimberly and B.L. engaged in texts, some of which were negative toward Arthur. 	On
July 21,2012, Kimberly wrote, "I hate you being there," and "two can play this butthole
game." CP at 3, 5.
PROCEDURE
On November 29,2012, Arthur moved the court to find Kimberly in contempt,
alleging (1) Kimberly violated section 4.2 of their parenting plan for non-emergency
health care when she failed to inform him of the March 28 doctor visit and prescription
for Prozac and (2) Kimberly violated the section titled "affection" when texting B.L.
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The trial court heard argument on December 7. The clerk's notes for that hearing
read:
[Kimberly] shall have sole decision making regarding education and
medical issues and shall advise [Arthur] 14 days prior to the effective date
of that decision. 	[Arthur] shall submit his thoughts in writing within seven
days to [Kimberly] and she shall give good faith consideration to his
concerns and communicate to him whether she accepts or denies those
concerns.
Court was concerned regarding the parties ability to communicate
effectively. Court found the parties have demonstrated an inability to
communicate, the geographic distance made it more difficult, and that there
had been domestic violence between them in the past. Court [0 ]rdered
[Arthur] have full access to the medical and education records of the
children. Court found [B.L.] did have issues with visitation and the parties
need to positively encourage him to see visitation as positive[.]
CP at 15.
In its written order, dated December 28, the court found:
Kimberly Laubach ... intentionally failed to comply with a lawful
order of the court dated on April 14,2011.
[Kimberly] violated the terms of the parenting plan by
referencing [Arthur] as a butthole to their son in a text
conversation she had with their son. This conversation
took place on or about July 21, 2012.
CP at 16-17. The court allowed for Kimberly to purge the contempt by avoiding
reference to Arthur in any derogatory manner to the children for the next six months.
On January 7, 2013, Arthur moved for reconsideration. In that motion, Arthur
noted that the trial court failed to address the contempt charge regarding non-emergency
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medical care. Arthur also asked the court to reconsider its decision giving Kimberly sole
decision making authority for education and medical issues.
Kimberly filed a responsive declaration to Arthur's motion for reconsideration on
January 18. There, Kimberly declared:
[B.L.] is currently refusing to talk to [his mental health counselor] because
he does not want his dad to read the records of his treatment. [B.L.] needs
mental health counseling and [Arthur]'s insistence on obtaining his records
has caused [B.L.] to stop engaging in treatment. I can't make [B.L.] talk to
[his counselor].
CP at 27. 	In the declaration, Kimberly clarified her understanding of their parenting plan.
She declared that, during mediation, Arthur led her to believe he wanted notification of
elective surgeries and thus they checked the joint decision making box.
The trial court denied the motion for reconsideration on March 5. In its letter
ruling, the court wrote:
Based on the court's review of this information, the court denies
[Arthur]'s motion for reconsideration. As the court previously ruled,
[Arthur] has failed to prove that [Kimberly] acted in bad faith by failing to
notify him of the March 28, 2012 well-child appointment. Further, the
court finds [Kimberly]'s declaration persuasive regarding her
understanding of what types of information [Arthur] wished to receive.
Thus, although [Kimberly] failed to provide information or consult with
[Arthur] as required by the parenting plan then in effect, her actions were
not taken in bad faith.
CP at 31.
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LAW AND ANALYSIS
Arthur contends the trial court erred when it denied his motion to hold Kimberly in
contempt, under RCW 26.09.160, for withholding information ofB.L.'s wellness visit
and prescription for antidepressants. He does not appeal the remedy granted for
Kimberly's contempt citation for demeaning him to B.L.
This court reviews a trial court's decision in a contempt proceeding for abuse of
discretion. In re Marriage ofJames, 79 Wn. App. 436, 440, 903 P.2d 470 (1995). "A
trial court abuses its discretion by exercising it on untenable grounds or for untenable
reasons." James, 79 Wn. App. at 440.
A court's decision is manifestly unreasonable if it is outside the
range of acceptable choices, given the facts and the applicable legal
standard; it is based on untenable grounds if the factual findings are
unsupported by the record; it is based on untenable reasons if it is based on
an incorrect standard or the facts do not meet the requirements of the
correct standard.
In re Marriage ofLittlefield, 133 Wn.2d 39,47,940 P.2d 1362 (1997). Even when the
record is entirely documentary, the superior court's findings should be given deference
and evaluated to determine if there is substantial evidence to support them. In re
Marriage of Rideout, 150 Wn.2d 337,359-60,349,77 P.3d 1174 (2003). In turn, this
court reviews whether those findings support the trial court's conclusions of law.
Rideout, 150 Wn.2d at 350.
In relevant portion, RCW 26.09.160 reads:
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(1) The performance of parental functions and the duty to provide child
support are distinct responsibilities in the care of a child. If a party fails to
comply with a provision of a decree or temporary order of injunction, the
obligation of the other party to make payments for support or maintenance
or to permit contact with children is not suspended. An attempt by a parent,
in either the negotiation or the performance of a parenting plan, to
condition one aspect of the parenting plan upon another, to condition
payment of child support upon an aspect of the parenting plan, to refuse to
pay ordered child support, to refuse to perform the duties provided in the
parenting plan, or to hinder the performance by the other parent of duties
provided in the parenting plan, shall be deemed bad faith and shall be
punished by the court by holding the party in contempt of court and by
awarding to the aggrieved party reasonable attorneys' fees and costs
incidental in bringing a motion for contempt of court.
(2)(a) A motion may be filed to initiate a contempt action to coerce a
parent to comply with an order establishing residential provisions for a
child. If the court finds there is reasonable cause to believe the parent has
not complied with the order, the court may issue an order to show cause
why the relief requested should not be granted.
(b) If, based on all the facts and circumstances, the court finds after
hearing 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 of court. Upon a finding of contempt, the court shall
order:
(i) The noncomplying parent to provide the moving party additional
time with the child. The additional time shall be equal to the time missed·
with the child, due to the parent's noncompliance;
(ii) The parent to pay, to the moving party, all court costs and
reasonable attorneys' fees incurred as a result of the noncompliance, and
any reasonable expenses incurred in locating or returning a child; and
(iii) The parent to pay, to the moving party, a civil penalty, not less
than the sum of one hundred dollars.
The court may also order the parent to be imprisoned in the county
jail, if the parent is presently able to comply with the provisions of the
court-ordered parenting plan and is presently unwilling to comply. The
parent may be imprisoned until he or she agrees to comply with the order,
but in no event for more than one hundred eighty days.
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(4) For purposes of subsections (1), (2), and (3) of this section, the
parent shall be deemed to have the present ability to comply with the order
establishing residential provisions unless he or she establishes otherwise by
a preponderance of the evidence. The parent shall establish a reasonable
excuse for failure to comply with the residential provision of a court
ordered parenting plan by a preponderance of the evidence.
(Emphasis added.)
To find a parent in contempt of court under RCW 26.09.160, the trial court must
first make a specific finding that the parent acted in bad faith or committed intentional
misconduct, such as disobeying a prior court order or using custodial time in a manner
calculated to manipulate the other party into changing a parenting plan. James, 79 Wn.
App. at 441. A parent who refuses to comply with duties imposed by a parenting plan is
considered to have acted in bad faith. 	Rideout, 150 Wn.2d at 349; RCW 26.09.160(1).
Courts presume that parents have the present ability to comply with parenting plans.
RCW 26.09.160(4). The burden is on a noncomplying parent to establish by a
preponderance of the evidence that he or she lacked the ability to comply with the
residential provisions of a court-ordered parenting plan or had a reasonable excuse for
noncompliance. Rideout, 150 Wn.2d at 352-53; RCW 26.09.160(4).
Arthur argues that Kimberly's refusal to perform the duties provided in the
parenting plan, by providing him notice of medical care, is per se bad faith under RCW
26.09.160(1). He accurately states the law, but misstates the facts. 	RCW 26.09.160
requires that a parent's refusal to comply with a parenting plan be deemed bad faith. 	In
l
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this case, however, Kimberly did not refuse to comply with their parenting plan. 	She
misunderstood its scope.
Arthur next argues that Kimberly acted in bad faith in a manner analogous to
Rideout. In Rideout, Sara Rideout repeatedly failed to deliver her and Christopher
Rideout's daughter for scheduled residential time. 	When Christopher filed contempt
charges, Sara responded that Christopher's dispute was with his 13-year-old daughter.
The daughter did not wish to visit her father. 	Sara did not dispute she failed to deliver the
daughter at the designated time and place, but argued that her failure to comply was not
in bad faith. 	The trial court rejected Sara's deflection of responsibility. The Supreme
Court affirmed a contempt citation, writing:
that where 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 ofRCW 26.09.160(1).
Rideout, 150 Wn.2d at 356-57.
Arthur remonstrates that, like Sara Rideout, Kimberly misconstrues any conflict as
between him and their son, and has thus contributes to their son's recalcitrance to
communicate with his father. Arthur emphasizes Kimberly's acquiesce to B.L. 's desire
to keep medical information from him and Kimberly's derogatory texts to B.L.
The trial court expressly found that Kimberly misunderstood the scope of the
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parenting plan. To support this finding, the court pointed to her statement that, "[d]uring
mediation [Arthur] lead me to believe he wanted notification of elective surgeries and
that was why we were checking the joint decision making box." CP at 25-26. 	Given the
limited evidence in this case and this court's deference to the trial court, the evidence is
sufficient to support the trial court's finding. 	The finding of fact, in tum, supports the
trial court's conclusion that Kimberly violated the parenting plan, but not in bad faith.
ATTORNEY FEES AND COSTS
Arthur requests attorney fees and costs on appeal under RCW 26.09.l60(2)(b)(ii).
The statute reads, in relevant part:
(b) If, based on all the facts and circumstances, the court finds after
hearing 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 of court. Upon a finding of contempt, the court shall
order:
(ii) The parent to pay, to the moving party, all court costs and
reasonable attorneys' fees incurred as a result of the noncompliance, and
any reasonable expenses incurred in locating or returning a child.
Since we rule the trial court did not abuse its discretion when denying the contempt
charge, attorney fees are not available to Arthur.
CONCLUSION
We affirm the trial court's refusal to hold Kimberly Laubach in contempt for
withholding medical care information from Arthur Laubach.
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Siddoway, C.J.
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