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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of            )
                                            )       No. 66510-3-I
KENNETH KAPLAN,                             )
                                            )       DIVISION ONE
                      Respondent,           )
                                            )
              and                           )       UNPUBLISHED OPINION
                                            )
SHEILA KOHLS,                               )       FILED:  February 13, 2012
                                            )
                      Appellant.            )
________________________________)

       Becker, J. -- Sheila Kohls appeals two orders of the trial court finding her 

in contempt for violating a parenting plan and a child support order.  She also 

appeals the trial court's order refusing to enforce the child support order against

her former husband, Kenneth Kaplan.  Because Kohls fails to demonstrate any 

abuse of discretion in the orders before this court on review, we affirm and 

award fees to Kaplan for this appeal.  

                                         Facts

       Kohls and Kaplan were married in 1992.  They have two children, a son 

and a daughter. The court dissolved their marriage in 2005.  The parenting plan 

designated Kohls the primary residential parent.  The plan provided for joint  

No. 66510-3-I/2

decision making on major decisions, including "non-emergency health care."  

The order on child support required Kaplan to make regular child support 

payments to Kohls.  It required Kohls to share certain costs, including day care, 

counseling, and educational expenses to the extent Kaplan proved he had no 

funds for this purpose paid for by the children's paternal grandfather.  Soon after 

the dissolution, a dispute arose between Kohls and Kaplan concerning the 

appropriate course of evaluation and care for their daughter, whom a teacher 

suspected suffered from attention deficit disorder.  The parties involved their 

attorneys in the dispute.  They began a series of litigation proceedings now 

spanning seven years, including motions before arbitrators, court 

commissioners, and superior court judges.  There have been two reviews by this 

court.  Central to the conflict was Kohls' wish to modify the parenting plan to 

obtain sole decision making authority over decisions affecting the children's 

health care.  In her first appeal, Kohls argued successfully that her motion to 

modify was entitled to a hearing.  In re Marriage of Kaplan, noted at 144 Wn. 

App. 1015 (2008).  

       On remand, the superior court held a four-day hearing on Kohls' motion to 

modify the parenting plan.  Both parties testified, as well as two expert 

witnesses.  Over 300 exhibits were considered.  The court issued a 12-page 

memorandum decision in June 2009, concluding there were no grounds for 

modifying the parenting plan.  The court found that Kohls had lied about certain 

matters and that her testimony was "often histrionic and exaggerated" and 

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No. 66510-3-I/3

suffered from an "overall lack of credibility."  The court concluded that Kohls had 

intentionally violated the parenting plan's joint decision making requirement 

when she selected a health care provider for their daughter.  When Kohls 

appealed the superior court's denial of her motion to modify the plan, this court 

affirmed the superior court's ruling.  In re Marriage of Kaplan, noted at 158 Wn. 

App. 1021 (2010), review denied, 171 Wn.2d 1004 (2011).  

       While the second appeal was pending, the parties were litigating in the 

trial court the new matters which gave rise to the present appeal.  In May 2010, 

Kaplan moved for a finding of contempt and to enforce an arbitration decision 

requiring the parties to communicate by e-mail.  He argued Kohls was in 

contempt of the parenting plan's joint decision making provision because she 

continually failed to notify him of medical appointments for the children. He also 

argued she was in contempt of the child support order because she refused to 

pay her agreed share of the children's school book expenses.

       The day after Kaplan filed his motion for contempt, Kohls filed a motion to 

enforce the child support order against Kaplan.  She contended that he had 

failed to pay medical bills to Children's University Medical Group, the medical 

group had written off the bills as "bad debt," and the situation was likely to 

endanger the children's ability to continue to receive services there.  A 

commissioner heard both motions and ruled in favor of Kohls.  

       The superior court extensively revised the commissioner's ruling. The 

court found Kohls in contempt of the parenting plan for failing to notify Kaplan of 

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No. 66510-3-I/4

medical appointments.  According to the findings, the commissioner 

"misapprehended the core significance of this particular problem for these 

parents and the children."  The court dismissed Kohls' argument that the medical 

appointments in question were "routine," quoting Kohls' own statements that her 

son suffered from "life-threatening" and "serious medical conditions."  The court 

also rejected as "false" Kohls' statements that Kaplan had not been involved in 

the children's medical care, calling her statements "another manifestation" of her

determination that Kaplan "must engage parenting her way. It is bad faith." The 

superior court did not discuss Kaplan's motion for contempt regarding the 

educational cost-sharing issue.  

       Kaplan filed a motion for reconsideration and clarification.  He requested 

that the court address the means by which Kohls should purge her contempt, 

including requirements that she (1) consult with Kaplan before scheduling 

medical appointments for the children; (2) have e-mail access in her home and 

check her e-mail daily; and (3) pay attorney fees for Kaplan's litigation of his 

successful motion.  He asked the court to clarify that he was not responsible for 

paying fees for doctor visits for which he was not given notice.  Kaplan also 

asked the court to reconsider the commissioner's award of over $2,900.00 in 

attorney fees to Kohls as well as the order requiring Kaplan to pay a sum to the 

medical group.  

       In an order issued November 19, 2010, the superior court granted each of 

Kaplan's requests.  After reviewing the invoice from the medical group showing a 

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No. 66510-3-I/5

zero balance owing, the court vacated its previous ruling upholding Kohls'

motion to enforce and found Kohls in contempt of the order on child support for 

failing to pay her agreed 28 percent share of the children's educational 

expenses.  Kohls was ordered to pay $188.63 to Kaplan for her share of the 

children's school book expenses.  The court awarded Kaplan $13,435.33 in 

attorney fees for costs related to the contempt proceedings. This appeal 

followed.

                                     CONTEMPT 

       This court reviews a trial court's decision in a contempt proceeding for an 

abuse of discretion.  In re Marriage of James, 79 Wn. App. 436, 439-40, 903 

P.2d 470 (1995).  A trial court's challenged factual findings regarding contempt 

will be upheld on appeal if they are supported by substantial evidence.  In re 

Marriage of Rideout, 150 Wn.2d 337, 350, 77 P.3d 1174 (2003).  We do not 

weigh conflicting evidence or substitute our judgment for that of the trial court.  In 

re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234, review denied, 129 

Wn.2d 1030, 1031 (1996).  Unchallenged factual findings are verities on appeal.  

In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999).

       Contempt of court is defined in part as intentional disobedience of a lawful 

court order.  In re Marriage of Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012 

(1995), citing RCW 7.21.010(1).  In the context of dissolution and parental 

support, contempt is governed by RCW 26.09.160.  Under that statute, a court 

"shall find" a party in contempt based on a written finding, after a hearing, "that 

the parent, in bad faith, has not complied 
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No. 66510-3-I/6

with the order establishing residential provisions for the child." RCW 

26.09.160(2)(b); see James, 79 Wn. App. at 440.  The party moving for contempt 

has the burden of proving contempt by a preponderance of the evidence, by 

providing evidence that the offending party "acted in bad faith or engaged in 

intentional misconduct or that prior sanctions have not secured compliance with 

the plan."  James, 79 Wn. App. at 442.  

                 Contempt With Respect to Medical Appointments

       Kaplan thoroughly documented his motion for contempt.  He explained by 

declaration:

       Both of our children have been diagnosed with and medicated for 
       ADD in the past, and Sheila and I have different perspectives on 
       how that issue should be addressed.  It is imperative that both of 
       us be involved in meeting with the doctors, hearing their thoughts, 
       and sharing our own.  Sheila refuses to accept this, and even after 
       Judge Doerty's ruling where he noted numerous instances of her 
       violation of joint decision making, continues to make appointments 
       for the children without consulting or notifying me.

Kaplan complained of four specific occasions when Kohls took the children to 

medical appointments without notifying him of the appointments.  The court 

made a specific finding of Kohls' "bad faith" and concluded that she was "in 

contempt with respect to notification of medical appointments."  

       A finding of contempt will be upheld if the appellate court can find any 

proper basis for the finding.  Trummel v. Mitchell, 156 Wn.2d 653, 672, 131 P.3d 

305 (2006).  In reviewing a contempt finding, we look for facts constituting a 

plain order violation and strictly construe the order.  Humphreys, 79 Wn. App. at

599.

       The court did not abuse its
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No. 66510-3-I/7

discretion in finding Kohls in contempt with respect to notification of medical 

appointments. The parenting plan (Section 4.2) plainly lists "non-emergency 

health care" as a category of "Major Decisions" for which decision making is to 

be "Joint." Kohls does not dispute that she failed to notify Kaplan of the medical 

appointments in question.  Her failure to involve Kaplan in making decisions 

concerning the appointments was a plain violation of the joint decision making 

provision.  It provided tenable grounds for the finding of contempt.  Humphreys, 

79 Wn. App. at 599. The court's order also met the requirement of entering a 

specific finding of bad faith. 

       Kohls' arguments on appeal are unpersuasive.  Her first argument is that 

the parenting plan imposes no requirement that she involve Kaplan in "routine"

medical appointments during which no major decisions take place. But the plan 

contains no carve-out for "routine" appointments, or for nonemergency 

appointments during which only "minor" decisions are made or anticipated.  All

decisions concerning nonemergency health care are deemed "major" decisions

in this parenting plan.  This interpretation is consistent with the parties' years of 

costly litigation, including three appeals to this court, based on their 

disagreements over how the children's nonemergency medical conditions should 

be evaluated and treated.  The commissioner's conclusion that notice was not 

required under the plan for "routine" appointments is not determinative.  This 

court reviews decisions of the superior court judge, not the commissioner.  RCW 

2.24.050.

                                              7 

No. 66510-3-I/8

       Kohls' second argument is that the parenting plan contains no provision 

expressly requiring her to give Kaplan advance notice of medical appointments.  

But under any meaningful definition of "joint decision making," advance notice to 

all participants must be required.  Without advance notice of a medical 

appointment, Kaplan's ability to participate in decisions concerning the 

appointment would be nullified.    

       Third, Kohls argues her unilateral action was permissible with regard to 

one of the appointments because it involved an "emergency," as her son's 

headaches were increasing in severity.  This theory of "emergency" is notably at 

odds with her description of the appointment, however:

       Certainly no "major decision" was made at the pediatrician's office.  
       The doctor did not diagnose the problem or prescribe any course 
       of treatment.  Rather, the doctor merely referred [our son] for a CT 
       scan in order to determine what treatment decisions should be 
       made.

Brief of Appellant at 34.  The "emergency" theory also fails to address the other 

three appointments the superior court considered in finding Kohls in contempt 

"with respect to notification of medical appointments."

       Kohls contends the superior court's finding of bad faith was insufficient to 

support its finding of contempt, because the court was referring to statements 

she made during litigation, after the events in question.  The trial court makes 

determinations regarding bad faith after balancing competing testimony and 

documentary evidence and weighing credibility.  James, 79 Wn. App. at 442;

see also Rideout, 150 Wn.2d at 351-52.  The superior court did not limit its 

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No. 66510-3-I/9

finding of bad faith to Kohls' statements made in court; rather, her statements in 

court were "another manifestation" of the bad faith reflected in her efforts to 

thwart joint decision making.  Moreover, the court was entitled to consider Kohls' 

statements made in court in support of its overall credibility determination.  See

James, 79 Wn. App. at 442.  

                      Contempt with Respect to School Books

       Section 3.15 of the child support order in effect at the time of the 

contempt proceedings required Kohls to participate in cost-sharing for 

"educational expenses."  The order conditioned her obligation to pay 28 percent 

of educational expenses "to the extent [Kaplan] proves he has no funds for this 

purpose paid by his father."  The court found Kohls in contempt for refusing to 

pay her 28 percent share of the children's school book expenses.  

       Kohls argues that the superior court abused its discretion because her 

obligation to share these costs was never triggered.  She implies in her brief on 

appeal that Kaplan should have been required to prove that an educational trust 

set up by the grandfather did not cover the expenses.  The child support order 

imposed no such requirement on Kaplan.  Kaplan explained to the superior court

that his father had passed away, and he had been paying the educational 

expenses himself for "several years." Among the evidence he provided to the 

court was a photocopied tuition check made out from his personal account in 

2009.  This court cannot reweigh the evidence on appeal.  In re Marriage of 

Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002), review denied, 149 Wn.2d 

1007 (2003).  Substantial evidence 
                                              9 

No. 66510-3-I/10

supported the superior court's finding that Kaplan no longer possessed funds 

from his father for the children's educational costs.  Accordingly, the court did 

not err in finding that Kohls was responsible.  Her refusal to contribute her 

proportional share toward the children's school books -- a clear "educational 

expense" -- was a plain violation of the order presently in effect.  Humphreys, 79 

Wn. App. at 599.  

       Kohls argued that she reasonably believed the cost-sharing provision of 

the child support order was superseded by Kaplan's later statement during 

arbitration that he was willing to pay the "entire cost" of private school.  Whether 

Kaplan made statements during arbitration excusing her failure to pay was a 

question of fact for the trial judge.  Kaplan said he agreed to pay the entire cost 

of private school tuition only.  His version was supported by the child support 

order in effect at the time of the alleged contempt, which set up a distinction 

between "educational expenses" and "tuition." "Educational expenses" were 

listed among the set of costs subject to the 72/28 percent cost sharing.  A 

statement below this provision provided that "tuition" at the Seattle Jewish 

Community School would be "determined by arbitration with Larry Besk."  

       The superior court heard both parties' arguments and evidence on this 

matter.  The court accepted Kaplan's position, finding that his "agreement to pay 

private school tuition does not act as a modification absolving Ms. Kohls of 

responsibility for all other educational expenses." This court does not reweigh 

the evidence on appeal.  Burrill, 113 Wn. App. at 868. We find no abuse of 

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No. 66510-3-I/11

discretion in this determination. 

                                 Contempt Sanctions

       If the trial court finds, after conducting a hearing on contempt, that a 

person has "failed or refused to perform an act that is yet within the person's 

power to perform," the court may find the person in contempt of court and 

impose sanctions, including an "order designed to ensure compliance with a 

prior order of the court." RCW 7.21.030(2)(c).  A contempt sanction is within the 

sound discretion of the trial court, and will not be disturbed on appeal absent a 

showing of an abuse of discretion.  Humphreys, 79 Wn. App. at 599.  Civil 

contempt sanctions must be (1) "designed to serve remedial aims," i.e., they 

must be "directed at obtaining future compliance"; (2) within the power of the 

contemnor to fulfill; and (3) "reasonably related to the cause or nature" of the 

contempt.  In re Interest of M.B., 101 Wn. App. 425, 450, 3 P.3d 780 (2000), 

review denied, 142 Wn.2d 1027 (2001).  

        "In order to purge the contempt," the court required Kohls to (1) consult 

and coordinate with Kaplan concerning all medical appointments for the children; 

(2) have e-mail access in her home and check her e-mails daily to facilitate this 

communication; and (3) pay all uninsured charges, including copays, for "any 

medical expenses incurred (past or future) for visits that Mr. Kaplan did not 

receive notice of."

       Kohls disputes the first and third sanctions. She argues they were 

improper because the contempt order included no "purge clause" permitting her 

to avoid the finding of contempt and the 
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No. 66510-3-I/12

concomitant sanctions.  For the proposition that a purge clause is mandatory, 

she relies on language in In re Marriage of Didier, 134 Wn. App. 490, 500-01, 

140 P.3d 607 (2006) (quoting In re Interest of Rebecca K., 101 Wn. App. 309, 

314, 2 P.3d 501 (2000)), review denied, 160 Wn.2d 1012 (2007).  Both Didier

and Rebecca K. discussed purge clauses in the context of actual or threatened 

incarceration and therefore have no application here.

       Kohls also argues that as a first-time contemnor, she should have been

permitted to escape sanctions by promising to comply in the future. We 

disagree.  As this court has previously explained:

       A contemnor's promise of compliance is the first step.  But where 
       that promise is demonstrably unreliable, the court can insist on 
       more than mere words of promise as a means of purging contempt.
       To conclude otherwise would render the statutes unenforceable 
       and reduce the court to the level of beggar.

M.B., 101 Wn. App. at 448.  In M.B. we noted specifically that a court may reject 

as unreliable a contemnor's promise to comply, "even on a first contempt."  M.B., 

101 Wn. App. at 450.

       The first sanction, regarding notification of medical appointments, was

clearly proper; it simply required Kohls to comply with the existing requirements 

of the parenting plan.  Her promises to comply in future were "demonstrably 

unreliable." M.B., 101 Wn. App. at 448.  The superior court was familiar with the 

history of this dispute, having concluded after the four-day hearing in 2009 that 

Kohls had intentionally violated the joint decision making provision with respect 

to the children's health care. 

                                              12 

No. 66510-3-I/13

       The other disputed sanction required Kohls to "pay all uninsured charges, 

including copays, for any medical expenses incurred (past or future) for visits 

that Mr. Kaplan did not receive notice of."  This too was appropriately remedial 

and "reasonably related to the cause or nature" of her contempt.  M.B., 101 Wn. 

App. at 450.  Kohls argues that the application of this sanction to past 

appointments is punitive and therefore exceeds the court's civil contempt 

authority.  It is true that civil contempt sanctions must be directed at obtaining 

future compliance.  M.B., 101 Wn. App. at 450.  Leaving Kohls with the 

responsibility for otherwise uninsured costs she incurred unilaterally -- in 

violation of the parenting plan -- serves that purpose. 

           MOTION TO ENFORCE ON BEHALF OF A THIRD PARTY

       A trial court's decision regarding enforcement, like contempt, is reviewed 

for an abuse of discretion.  State ex rel. Shafer v. Bloomer, 94 Wn. App. 246, 

250, 973 P.2d 1062 (1999).  We conclude the superior court did not abuse its 

discretion in refusing to enforce the child support order against Kaplan on behalf 

of the third party medical group.  The evidence before the superior court showed 

a zero balance owing.  Despite Kohls' evidence that some portion of previous 

bills had been written off as "bad debt," she provided no evidence that the 

children's continued care was endangered by Kaplan's past failure to pay the 

bill.  Rather, the invoice evidence suggested that Kohls herself had requested to 

have the written off portion of debt revived the day before she submitted her 

motion.  The superior court and the commissioner both perceived that Kohls'

motive was retaliation.  The court
                                              13 

No. 66510-3-I/14

reasonably concluded that Kohls' stated concerns were both speculative and 

disingenuously brought to the court's attention and that they did not warrant 

court action.  

       Kohls complains that by failing to pay a medical bill because he disputed 

the care the children received there, Kaplan was conditioning payment of child 

support on the parenting plan's joint decision making provision, in violation of 

RCW 26.09.160(1).  This argument is misplaced.  The statute provides that such 

behavior may be punishable by contempt.  But Kohls did not move for contempt, 

and as a result, there is no ruling before us for review.

       Kohls contends the court erred by considering supplemental evidence 

submitted by Kaplan with his motion for revision.  A motion for revision must be 

decided on the basis of the factual record before the commissioner.  In re 

Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999).  The record 

reflects that the court based its denial of Kohls' motion in part on evidence 

submitted by Kohls in connection with Kaplan's motion for reconsideration in the 
superior court.1

       Under the doctrine of "invited error," a party may not complain on appeal 

about an error that she affirmatively participated in creating.  In re Dependency 

of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995) ("This court will deem an 

error waived if the party asserting such error materially contributed thereto.").

Because Kohls herself invited the court to consider evidence that was not part of 

       1 See Clerk's Papers at 379.

                                              14 

No. 66510-3-I/15

the record before the commissioner, we deem this claim of error to be waived.  

                     Attorney Fees For Contempt Proceedings

       Kohls contends the court abused its discretion by awarding an excessive 

amount of attorney fees.  

       Upon a finding of contempt in the parental support context, a court "shall 

order" the parent in contempt to pay to the moving party "all court costs and 

reasonable attorneys' fees incurred as a result of the noncompliance." RCW 

26.09.160(2)(b)(ii).  An order of fees under this section is mandatory. In re 

Marriage of Eklund, 143 Wn. App. 207, 215, 218, 177 P.3d 189 (2008). The 

amount of attorney fees awarded is within the trial court's discretion and must 

relate to the costs associated with the current contempt proceeding.  Eklund, 

143 Wn. App. at 218.  Here, the court awarded Kaplan $13,435.33 in fees to 

cover filing and arguing his motions for contempt, revision, and reconsideration, 

and for responding to Kohls' withdrawn motions for reconsideration and change 

of judge.  This was a lengthy series of actions undertaken in the course of the 

contempt proceedings.  The fees awarded to Kaplan were reasonable.

       The superior court's award of fees to Kaplan also included fees to cover 

his response to Kohls' "retaliatory" motion to enforce.  Kaplan was entitled to 

fees for this purpose.  RCW 26.18.160 provides for mandatory attorney fees to 

the prevailing party in an action to enforce a child support order, where the 

losing party "acted in bad faith in connection with the proceeding." RCW 

26.18.160.  Substantial evidence -- including invoice evidence showing Kohls 

requested to have the medical group's 
                                              15 

No. 66510-3-I/16

bills revived against Kaplan just before bringing her motion to enforce -- supports

the court's conclusion that Kohls' motive was retaliatory.  Reviving settled bills 

and filing a motion in retaliation can reasonably be deemed actions taken in "bad 

faith."  

       We conclude the award of fees to Kaplan was not an abuse of discretion.

                              Attorney Fees on Appeal

       Both parties request attorney fees and costs for this appeal.  Kohls 

requests fees under RCW 26.09.140, which permits an award of fees in 

consideration of "the financial resources of both parties."  Determining whether a 

fee award is appropriate requires the court to consider the parties' relative ability 

to pay and the arguable merits of the issues raised on appeal.  Leslie v. Verhey, 

90 Wn. App. 796, 807, 954 P.2d 330 (1998), review denied, 137 Wn.2d 1003 

(1999).  Kohls timely submitted a financial affidavit.  Kaplan submitted an 

affidavit along with a motion for an extension of time to file it.  His motion is 

granted.  Having considered the merits of Kohls' appeal as well as the financial 

resources available to both parties, we exercise our discretion and deny Kohls' 

request for fees under RCW 26.09.140.  

       Kaplan requests fees under RCW 26.09.160(2)(b)(ii), the same provision 

that entitles him to a mandatory award of his trial court fees.  Because Kohls 

failed to comply with the court-ordered parenting plan in bad faith, she is 

responsible for paying reasonable attorney fees and costs that Kaplan incurred 

to enforce the court's order.  See Eklund, 143 Wn. App. at 218-19.  Fees on 

appeal are awarded to Kaplan subject to 
                                              16 

No. 66510-3-I/17

compliance with RAP 18.1, to the extent of fees incurred for defending the order 

of contempt.

       Affirmed.

WE CONCUR:

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