IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 74221-3-1

DIVISION ONE

UNPUBLISHED OPINION

In the Matter of the Parenting )

and Support of )

BAINYA SHAY, Child. )

THOMAS 0. BAICY, )

Appellant, )

and )

DANELLE M. SHAY, )

Respondent. )

FILED: January 9, 2017

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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

attorney fees. Because the trial court did not abuse its discretion, we affirm. But because

Baicy raises a debatable issue on appeal, we deny respondent Danelle Shay's request

for sanctions.

Background

Baicy and Shay are the parents of a daughter, Bainya, born in 2005. 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.
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In addition, a 2011 child support order requires Baicy to pay Shay $402.93 per

month. As of November 2014, Baicy had paid less than $400.00 that year.

That month, Shay asked the trial court to find Baicy in contempt of the trial court's

orders in failing to pay child support and violating the 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 the trial court repeatedly delayed holding a contempt hearing. 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 could find a lawyer. When Baicy did

not appear on 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 commissioner finally held the contempt hearing on July

29,2015.

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

practice of counting weekends, he found that November 14-16 was the second weekend

of November, not the third, and that Baicy was thus in contempt. And he found that Baicy

had not fulfilled his child support obligations or produced evidence to support his defense

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.
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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 order de novo. We review a trial court's factual

decisions in a contempt proceeding for abuse of discretion.1 We will affirm a contempt

finding "even though the trial court did not rely on any particular theory as long as a proper

basis can be found."2 When the trial court weighs competing documentary evidence to

make credibility determinations about bad faith, we review those 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 mindful that Baicy and Shay are acting pro se,

we hold self-represented litigants to the same standard as attorneys.6

Analysis

Contempt of Parenting Plan

Baicy asserts that the trial court misinterpreted the parenting plan in finding that it

requires the parties to count weekends by Fridays. We affirm the trial court's

interpretation.

1 In re Marriage of James, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995).

2 State 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).

5 Ethridoe v. Hwang. 105 Wn. App. 447, 460, 20 P.3d 958 (2001).

6 In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
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We strictly interpret an order providing the basis for contempt proceedings.7

Where an order is ambiguous, we use general rules of construction that apply to statutes,

contracts, and other writings to determine the intent of the court that entered the original

order.8 We thus discern this order's meaning both from its plain language and using the

context rule: we view the document as a whole, including its subject matter and objective,

the circumstances surrounding its making, the parties' subsequent acts and conduct,

"'and the reasonableness of respective interpretations advocated by the parties.'"9

Here, the commissioner found 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. In denying 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 of that practice cannot support a contempt finding.

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

7 Graves v. Duerden. 51 Wn. App. 642, 647, 754 P.2d 1027 (1988).

8 In re Marriage of Chavez, 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 Scott Galvanizing, Inc. v. Nw. EnviroServices, Inc., 120

Wn.2d 573, 580-81, 844 P.2d 428 (1993)).

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her reply in support of the motion. Baicy also alleges, without citing evidence, that Shay

consented to him taking Bainya the November 7 weekend.

We need not decide ifthe trial court would be justified in finding Baicy in contempt

for taking Bainya on a weekend other than the one Shay named in her contempt motion.

Like the rest of the parties' conduct after the trial court entered the parenting plan, Baicy

taking Bainya for the November 7 weekend is among the circumstances we can consider

in interpreting the parenting plan and the reasonableness of the parties' different

interpretations.10

Interpreting the parenting plan de novo, we agree with the trial court'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 4:00 p.m. if

school not in session) Friday until school resumes (or 8:00 a.m. if school not in session)

Monday the first, third, and fourth 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 not resolve what the court meant by the "first, third, and

fourth weekends," however, since many single weekends fall into two months. Baicy's

proposed interpretation—that a weekend isSaturday and Sunday—would suffer from the

10 See Litowitz, 146 Wn.2d at 528.

11 Webster's Third New International Dictionary 2592 (2002).
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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. Baicy does not contest that 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

different understanding, he should have asked the court for guidance rather than keeping

his daughter two consecutive weekends—a result not permitted under any interpretation

ofthe parenting plan. The commissioner properly considered that "pattern of practice" in

interpreting the weekend provision.14 In light ofthis practice as well as the phrase's plain

language, the most reasonable interpretation ofthe "first, third, and fourth weekends" is

the weekends beginning on the first, third, and fourth Fridays of the month.

Baicy also contendsthatthe trial court lacked the authority to hold a hearing in July

2015 on Shay's November 2014 contempt motion. Baicy provides no relevant 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 the time permitted by law." Instead, the record shows

that Baicy's own actions caused the delay in the hearing.

12 In re Marriage of Thompson, 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 after trial in May

2011. Baicy points out that the final parenting plan has been in place only since

September 2012. This distinction does not affect our analysis.

14 See Litowitz, 146 Wn.2d at 528.

15 We need not consider arguments not supported by citation to pertinentauthority.

Cowiche Canvon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).

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Because the trial court had the authority to hold the contempt hearing and did not

misinterpret the parenting plan, its contempt order was not a manifest abuse of discretion.

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 inability to pay child support. The trial court found that Baicywas not credible

in claiming that he could not comply with the child support order. The trial court was in

the best position to make that evaluation.18 Baicy points to no evidence that he used "due

diligence" to seek employment or otherwise become able to pay. Nor does 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).

18 Rideout, 150 Wn.2d at 351.
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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

compulsory counterclaim.21 Baicy also alleged other claims 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 to which the rules about counterclaims apply.24 His claims are

not properly before this court on appeal. The trial court orders that Baicy appealed 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 of the 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).

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Moreover, a May 2012 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 now asserts. And Baicy's claim that applying

the advance permission order to his contempt motion response would "shackle [his] due

process right[s]" lacks merit as none of the claims Baicy asserted 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 of court."26 And "the court shall order"

the contemnor to pay the other parent's attorney fees and costs.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 of contempt, 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

attorney fees when the attorney providing the legal services is in an intimate relationship

with the party.

Baicy's legal argument lacks merit. Baicy relies on two cases interpreting federal

law. In one, the United States Supreme Court held that a statute that allows attorneys

enforcing civil rights statutes to recover attorney fees does not allow pro se litigants who

26 RCW 26.09.160(2)(b).

27RCW26.09.160(2)(b)(ii).

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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

Education Act (IDEA)29 does not allow parents of a disabled child to recover attorney fees

for representing their child in IDEA 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 adopt and apply that narrow rule to this case in the 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 for sanctions for having to respond to a frivolous appeal. An appeal is

frivolous "if the 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

against finding 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 In re 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).

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Applying this standard, we deny Shay's request for sanctions. While we reject

Baicy's arguments, he presents a debatable argument for extending 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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WE CONCUR: