IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 74221-3-1 DIVISION ONE

UNPUBLISHED OPINION Inthe Matter ofthe Parenting ) and Support of ) BAINYA SHAY, Child. ) THOMAS 0. BAICY, ) Appellant, ) and ) DANELLE M. SHAY, ) Respondent. ) FILED: January 9, 2017 G£3

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Leach, J. — Thomas Baicy appeals trial court decisions finding him in contempt for violating a parenting plan and failing to pay child support and ordering him to pay attorneyfees. Becausethetrial courtdid not abuse its discretion, we affirm. Butbecause Baicy raises a debatable issue on appeal, we deny respondent Danelle Shay's request for sanctions. Background Baicyand Shayarethe parents of a daughter, Bainya, born in2005. The parenting plan provides that Baicy take Bainya on the first, third, and fourth weekends of each month. After taking Bainya the weekend of November 7, 2014, Baicy also took Bainya the weekend of November 14.No. 74221-3-1/2



### In addition, a 2011 child support order requires Baicy to pay Shay $402.93 per month. As ofNovember 2014, Baicy had paid less than $400.00 that year. That month, Shay asked the trial courtto find Baicy incontempt ofthe trialcourt's 

### orders infailing to pay child support and violatingthe parenting plan's weekend allocation 

### provision. The trial court ordered Baicy to appear and show cause why he should not be found in contempt on both accounts. 

### The parties and thetrial court repeatedlydelayed holding a contempthearing. The 

### trial court originally set a December 2, 2014, date. The parties agreed to continue the 

### hearing to January 27, 2015, in part so that Baicy couldfind a lawyer. When Baicy did notappearon that date, the trial court issued a bench warrant for his arrest. On July 15, 2015, the trial court quashed that warrant because Baicy agreed to attend a contempt 

### hearing two weeks later. A court commissionerfinally held the contempt hearing on July 29,2015. 

### The commissioner ruled for Shay on several points. Using Baicy and Shay's 

### practice ofcounting weekends, hefound that November 14-16 was the second weekend ofNovember, notthe third, and that Baicy was thus incontempt. And he found that Baicy 

### had notfulfilled his childsupportobligations orproduced evidence to support hisdefense that he lacked the ability to pay. The commissioner awarded attorney fees and costs to 

### Shay and her attorney, Richard Cassady. The trial court affirmed these rulings and denied Baicy's motion for revision.No. 74221-3-1/3 

### Baicy appeals the trial court's orders finding him in contempt for violating the 

### parenting plan and failing to pay child support. He also appeals the trial court's award of attorney fees and costs to Shay. Standard of Review 

### We review the meaning of a court orderde novo. We review a trialcourt's factual decisions in a contempt proceeding for abuse ofdiscretion.1 We will affirm a contempt finding "even though the trial court did not rely on any particulartheory as longas a proper basis can be found."2 When the trial court weighs competing documentary evidence to 

### make credibility determinations about bad faith, we reviewthose findings for substantial evidence.3 We interpret parenting plans and child support orders de novo as questions of law.4 Also, we review whether a party is entitled to recover any attorney fees as an 

### issue of law de novo.5 Although we are mindfulthat Baicy and Shay are acting pro se, 

### wehold self-represented litigants to the same standard as attorneys.6 Analysis Contempt of Parenting Plan 

### Baicy asserts that the trial courtmisinterpreted the parenting planin finding that it requires the parties to count weekends by Fridays. We affirm the trial court's interpretation. 1 In re Marriage ofJames, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995). 2State v. Boatman, 104 Wn.2d 44, 46, 700 P.2d 1152 (1985). 3 In re Marriage of Rideout, 150 Wn.2d 337, 351-52, 77 P.3d 1174 (2003); ln_re Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999). 4 In re Marriage of Cota. 177 Wn. App. 527, 534, 312 P.3d 695 (2013); Kirshenbaum v. Kirshenbaum. 84 Wn. App. 798, 803, 929 P.2d 1204 (1997). 5Ethridoe v. Hwang. 105 Wn. App. 447, 460, 20 P.3d 958 (2001). 6Inre Marriage ofOlson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).No. 74221-3-1/4 We strictly interpret an order providing the basis for contempt proceedings.7 Where an order is ambiguous, we use general rules ofconstruction that apply to statutes, contracts, and otherwritings to determine the intent ofthe court that entered the original 

### order.8 We thus discern this order's meaning both from its plainlanguage and using the contextrule: we view the document as a whole, including its subjectmatterand objective, the circumstances surrounding its making, the parties' subsequent acts and conduct, 

### "'and the reasonableness ofrespective interpretations advocated bythe parties.'"9 Here, the commissionerfound that since May 2011 both Baicy and Shay followed the practice of counting weekends by Fridays. The commissioner and trial court interpreted the otherwise ambiguous weekend provision of the parenting plan in light of that practice. Indenying Baicy's motion to revise the contempt order, the trial court also found that Baicy's argument was not credible because Baicy had also taken Bainya on the previous weekend, meaning that under either counting method he took Bainya on Shay's weekend with her. Baicy asserts that the parenting plan does not describe the practice of counting weekends by Fridays, so his violation ofthat practice cannot support a contemptfinding. He also challenges the trial court's reasoning that Baicy was in contempt either on the November 7 or November 14 weekends because Shay did not raise this argument until

7Graves v. Duerden. 51 Wn. App. 642, 647, 754 P.2d 1027 (1988). 8Inre Marriage ofChavez, 80 Wn. App. 432, 435-36, 909 P.2d 314 (1996). 9 In re Marriage of Litowitz, 146 Wn.2d 514, 528, 48 P.3d 261 (2002) (internal quotation marks omitted) (quoting ScottGalvanizing, Inc. v. Nw. EnviroServices, Inc., 120 Wn.2d 573, 580-81, 844 P.2d 428 (1993)). -4-No. 74221-3-1/5

her reply in support ofthe motion. Baicy also alleges, without citing evidence, that Shay consented to him taking Bainya the November 7 weekend. We need not decide ifthe trial courtwould bejustified in finding Baicy in contempt for taking Bainya on a weekend otherthan the one Shay named in her contempt motion. Likethe rest ofthe parties' conduct after the trial court entered the parenting plan, Baicy 

### taking Bainya for the November7 weekend is among the circumstances we can consider in interpreting the parenting plan and the reasonableness of the parties' different 

### interpretations.10 Interpretingthe parenting plan de novo, we agreewiththetrialcourt's conclusions. 

### The plain language of the weekend provision is ambiguous. That provision states that 

### Bainya "will reside with or be with [Baicy]: from the time school lets out (or 4:00p.m. if school not in session) Fridayuntil school resumes (or 8:00 a.m. ifschool not insession) 

### Monday thefirst, third, andfourth weekends." Webster's defines "weekend" as "the end of the week : the period between the close of one working or business or school week and the beginning of the next (as from Friday evening to Monday morning or from 

### Saturday evening to Tuesday morning)."11 The term's context within the provision indicates that the court intended a weekend to mean the period from Friday afternoon to 

### Monday morning. This does notresolve what the court meant by the "first, third, and fourth weekends," however, since many single weekends fall into two months. Baicy's 

### proposed interpretation—thataweekend isSaturdayandSunday—would sufferfrom the

10 See Litowitz, 146 Wn.2d at 528. 11 Webster's Third New International Dictionary 2592 (2002).No. 74221-3-1/6



### same imprecision. Because the provision is ambiguous, we interpret it using the context rule.12 

### Applying that rule, we agree with the shared conclusion of the commissioner and the trial court. Baicydoes notcontestthat the parties' practice since at least September 2012 has been to count weekends by Fridays.13 This practice indicates that Baicy and 

### Shay shared an understanding of the parenting plan's meaning; if Baicy sincerely had a differentunderstanding, he should have asked the court forguidance ratherthan keeping 

### his daughter two consecutive weekends—a result notpermitted under any interpretation 

### ofthe parenting plan. Thecommissionerproperly considered that "pattern ofpractice" in interpreting the weekend provision.14 In lightofthis practice as well as the phrase's plain 

### language, themost reasonable interpretation ofthe "first, third, andfourth weekends" is the weekends beginning on the first, third, and fourth Fridays of the month. 

### Baicyalso contendsthatthetrialcourtlackedtheauthoritytohold ahearing inJuly 2015 on Shay's November2014 contempt motion. Baicy provides norelevant authority 

### to support his argument that the trial court lacked personal jurisdiction over him. We therefore decline to consider it.15 Baicy also cites no support for his assertion that the 

### eight-month period was "beyond thetime permitted by law." Instead, the record shows that Baicy's own actions caused the delay in the hearing. 12 Inre Marriage ofThompson, 97 Wn. App. 873, 878, 988 P.2d 499 (1999); see Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990). 

### 13 Shay dates the practice to the orders the trial court entered aftertrial in May 

### 2011. Baicy points out that the final parenting plan has been in place only since September2012. Thisdistinction does not affect ouranalysis. 14See Litowitz, 146 Wn.2d at 528. 

### 15We need not consider arguments not supported bycitationto pertinentauthority. Cowiche Canvon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). -6-No. 74221-3-1/7

Because the trial court had the authority to hold the contempt hearing and did not misinterpretthe parenting plan, its contemptorderwas not a manifest abuse ofdiscretion. We affirm the order finding Baicy in contempt for taking Bainya for the weekend of November 14, 2014. Contempt of Child Support Order Baicy also challenges the order finding him in contempt for failing to pay child support, claiming that he lacked the ability to comply. To find a parent in contempt of a parenting plan or child support order, the trial 

### court must make a specific finding of bad faith.16 Where a parent asserts as a defense that he or she cannot comply with a support order, the parent must "establish that he or she exercised due diligence in seeking employment, in conserving assets, or otherwise 

### in rendering himselfor herself able to complywith the court's order."17 Here, substantial evidence supports the trial court's finding that Baicy failed to 

### establish his inabilityto pay childsupport. The trial court foundthatBaicywas not credible in claiming that he could not comply with the child support order. The trial court was in 

### the bestposition to make that evaluation.18 Baicy points to noevidencethat he used "due diligence" to seek employment or otherwise become able to pay. Nordoes he point to 

### any evidence to rebut the trial court's finding that he failed to provide complete financial records. Instead, the record supports the trial court's observations of numerous gaps in

16RCW26.09.160(2)(b). 17 RCW 26.18.050(4). 18Rideout, 150 Wn.2d at 351.No. 74221-3-1/8



### the documentation he provided.19 We affirm the order finding Baicy in contempt of the child support order. Alleged Counterclaims Next, Baicy asserts that the trial court should have decided claims Baicy made in his response to Shay's contempt motion. We disagree. Baicy alleged in his response that Shay and Cassady had brought a frivolous 

### motion and asked that the trial court sanction them.20 Baicy contends this was a 

### compulsorycounterclaim.21 Baicyalso alleged otherclaims unrelated to Shay's contempt motion: that Shay should be held in contempt for using the vacation provision of the 

### parenting plan in bad faith and that the trial court should modify the plan.22 He asserts that these are permissive counterclaims.23 The allegations Baicy made in his response were not counterclaims as Shay's 

### motion was not a pleading towhich the rules about counterclaims apply.24 His claims are not properly before this court on appeal. The trial court orders that Baicyappealed define 

### the scope of our review.25 Those orders did not address the claims Baicy now asserts. We therefore decline to address those claims. 

### 19 For example, Baicy's financial declaration claimed $4,504.84 in total monthly household expenses, but the expenses he listed add up to only$2,204.34. And the bank account records Baicy provided showed numerous transfers to a Visa card account, but he provided no records for that account. 

### 20 Baicy based this claim on the bare assertion that Shay and Cassady "should have known" that November 14-16 was the third weekend ofthe month. 21 See CR 13(a). 22 This claim asserted that Shay abuses the provision and does not give reasonable advance notice about "vacations" with Bainya. 23 See CR 13(b). 24 See CR 13(a), (b); CR 7(a). 25 RAP 2.4(a). -8-No. 74221-3-1/9 

### Moreover, a May2012 order requires Baicy to seek advance permission from the 

### trial court before filing claims. The record contains no indication that Baicy received this 

### permission before asserting the claims he nowasserts. And Baicy's claim that applying the advance permission orderto his contempt motion response would "shackle [his] due 

### process right[s]" lacks meritas none of the claims Baicyasserted in his response to the contempt motion were defenses. Attorney Fees in Child Support Proceeding 

### When the trial court finds that a parent has violated a child support order in bad 

### faith, "the court shall find the parent in contempt ofcourt."26 And "the court shall order" 

### the contemnorto pay the other parent's attorneyfees andcosts.27 The trial court here ordered Baicy to pay Shay's attorney fees and costs for Cassady's work as her attorney. 

### Baicy does not contest that the statute requires, upon a finding ofcontempt, that the trial court order the parent in contempt to pay attorney fees and costs. He instead 

### asserts that Washington courts should recognize an exception to this rule restricting 

### attorneyfeeswhen theattorney providing thelegal services is in anintimate relationship with the party. 

### Baicy's legal argument lacks merit. Baicy relies ontwo cases interpreting federal law. In one, the United States Supreme Court held that a statute that allows attorneys 

### enforcing civil rights statutes torecover attorneyfees does notallow pro se litigants who

26 RCW 26.09.160(2)(b). 27RCW26.09.160(2)(b)(ii). -9-No. 74221-3-1/10



### are attorneys to recover fees.28 In the other, the Fourth Circuit applied the judicially created "special circumstances" doctrine and held that the Individuals with Disabilities 

### EducationAct(IDEA)29 does not allowparents of a disabled child to recover attorneyfees 

### forrepresenting theirchild inIDEA proceedings.30 These federal cases do not support Baicy's broad proposition that Washington courts should prohibit attorney fees when the attorney represents "a person with whom 

### the attorney bears a close relation." The Fourth Circuit noted that "[c]ourts have universally recognized that this 'special circumstances' exception is very 'narrowly limited.'"31 We see no reason to adoptand applythatnarrow rule to this case inthe broad



### manner Baicy promotes. Nothing in the statutory scheme or Washington case law 

### supports this result. The trial court thus did not abuse its discretion in awarding Shay attorney fees and costs. Appellate Fees under RAP 18.9 

### Shay asks forsanctions for having to respond to a frivolous appeal. Anappeal is frivolous"ifthe appellate court is convinced that the appeal presents no debatable issues 

### upon which reasonable minds could differ and is so lacking in merit that there is no 

### possibility of reversal."32 We consider the record as a whole and resolve all doubts 

### againstfinding an appeal frivolous.33

28 Kav v. Ehrler, 499 U.S. 432, 111 S. Ct. 1435, 113 L. Ed. 2d 486 (1991) (interpreting 42 U.S.C. § 1988). 2920U.S.C. §§ 1400-1487. 30 Doe v. Bd. of Educ. of Baltimore County, 165 F.3d 260 (4th Cir. 1998). 31 Doev.Bd.ofEduc, 165 F.3d at 264. 32 Inre Marriage of Foley. 84 Wn. App. 839, 847, 930 P.2d 929 (1997). 33 Delanvv. Canning, 84 Wn. App. 498, 510, 929 P.2d 475 (1997). -10-No. 74221-3-1/11 Applying this standard, we deny Shay's request for sanctions. While we reject 

### Baicy's arguments, he presents a debatable argumentforextending a narrow principle of federal law to overturn the attorney fees award. Conclusion The trial court correctly interpreted the parenting plan and thus did not abuse its discretion in finding Baicy in contempt of that plan. Because substantial evidence supported the trial court's factual conclusions about Baicy's ability to pay, the trial court also did not abuse its discretion in finding him in contempt of the child support order. Baicy's remaining arguments also lack merit. We affirm.



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## *"V* EL WE CONCUR: