### FILED 

## COURT OF APPEALS DIVISION II 

## 201514n AN 9=27 SPAT i IN THE COURT OF APPEALS OF THE STATE OF WAF S 

## n161/

4

DANIEL LANCE KULMAN,

v. ANNE SETSUKO GIROUX, DIVISION II
Respondent,

Appellant. BY P"J Y No. 45722 -

9 -II

UNPUBLISHED OPINION

WORSWICK, J. — Anne Giroux appeals a superior court commissioner' s contempt order 

### against Giroux forher refusal to complywith orders to obtain a mental health evaluation for herselfandto enroll her children with anewtherapist approved bythe guardian ad litem (GAL). Giroux argues that the contempt sanctionwas punitive because she was unable to complywith the purge condition and because her one day ofconfinement was a determinate term of confinement that she could not shorten by compliance. Because the contempt sanction was not punitive, we affirm. FACTS Anne Giroux and Daniel Kulman were divorced in 2006 and had two children together. Residential time for their two children was subjectto a 2009 agreed parenting plan, which made 

### Girouxthe primary residential parent and gave Kulman only supervised visitation until he completed domestic violence treatment. The children were in talk therapy.No. 45722 - 9 -II 

### After one ofthe children became ill,the State initiated dependency proceedings and 

### removed the children from Giroux' s home, motivated in part by concerns about Giroux's mental health. The State later dismissed the dependency and returned the children to Giroux. A. : 

### Kulman's Motion To Mods the Parenting Plan and the Commissioner 's Order Requiring Therapy In 2012, after Kulman had completed his domestic violence treatment, he moved to 

### modify the parenting plan. On March 27, 2013, the commissioner entered an order requiring 

### therapy and a mental health assessment (therapy order)that included two pertinent provisions. 

### First,the therapy order required Girouxto enroll the children in therapywith Jamie Kautz forthe 

## purpose ofeventually reunifying the children with Kulman.1 Second,thetherapyorderrequired Giroux to obtain a mental health assessment:

Giroux] shall obtain a mental health assessment at Comprehensive Life Center or 

### another centerwith a sliding scale. Full collateral information shall be provided by the GAL.... It is anticipated the assessment will be free and ifnot [Grioux] may 

### bring motion for instructions. Clerk' s Papers ( CP) at 11. 

### Giroux moved to revise the therapy order. On May 2, 2013, the superior court entered a revision orderthat allowed the GAL to select a therapist for the children 

### otherthan Kautz. The GAL subsequently provided the names offourtherapists approved by Kulman' s insurance for Giroux to choose from. B. 

### Order Setting Deadline To Comply 

### On May 31, 2013, the superior court heard both Giroux' s motion to continue the date of the evidentiary hearing to modifythe parenting plan and Kulman's motion to subpoena Giroux's
1 It appears the commissioner and the GAL wanted to enroll the children with a newtherapist because they wanted a neutral therapist for the reunification counseling.No. 45722 - 9 -II

medical records. .0n that date, the superior court addressed Giroux' s failure to comply with the 

### therapy order. Giroux argued that she did not enroll the children with one ofthe four GAL - approved therapists because she did not wantto breakthe continuity ofthe children's therapy by 

### enrolling them with a newtherapist. Giroux argued she could not afford to obtain herown mental health assessment:

MS. GIROUX]: It' s not a matter of, you know — how am I supposed to do what I can' t financially do? I mean, let' s be reasonable. THE COURT]: 

### There are resources within our community. I believe you can get one on a low-income basis. Comprehensive Mental Health was suggested. There is Community Health. There' s Greater Lakes Mental Health. There' s Good Samaritan Behavioral Health. There are resources within our community. You need to access them. 

### MS. GIROUX]: I have called. I wrote everysingle person' sname down and phone number, and I don' t have —I don't have the money. THE COURT]: 

### Ifit isn't done by 30 days from today,then we' ll address why.... MS. GIROUX]: 

### Okay. I' ll get all ofmy bank receipts and showyou. Verbatim Report of Proceedings (VRP) (May 31, 2013) at 23. The superior court entered an 

### order giving Giroux 14 daysto initiate therapy forthe children with one ofthe GAL - approved therapists and 30 days to begin the process ofobtaining a mental health examination,which 

### could be with a provider with a sliding fee scale as long as the GAL had collateral input deadline order). C. 

### Contempt Order and Review Hearing Order 

### Kulman filed a contempt motion in July of2013 because Giroux had neither enrolledthe children with a GAL - approved therapist nor obtained a mental health assessment. Giroux again argued that she did not want to enroll the children with a GAL-approved therapist because it 

### would break the continuity ofher children's therapy.

3No. 45722 - 9 -II The commissioner heard the motion on November 21, 2013. Giroux had neither enrolled the children with a GAL - approved therapist nor obtained a mental health assessment. The commissioner entered a contempt order against Giroux, which found Giroux had intentionally 

### failed to comply with the March 27 therapy order andthe May 31 deadline order. The contempt order also ruled that Giroux had the present ability to comply with these orders, but lacked the willingness to comply. The contempt order also stated the following: The [commissioner] sentences Anne Giroux to an indeterminatejail sentence. The sentence is suspended until 12/4/2013, ifAnne Giroux does not purge contempt then she shall report to the Pierce County Jail on 12/4/2013 .... Bail will be 500 cash. 

### The contemnor may purge the contempt as follows: 

### By scheduling her mental health assessment with collateral input from GAL and enrolling the children in [therapy] with [ five named therapists]. This shall be accomplished by 12/4/2013.
The court shall review this matter ... on'... 12/5/ 13 .... The jail shall transport Anne Giroux ... ifshe is in custody at the time ofthe review. CP at 279 -80. 

### Giroux did not comply by December 4, 2013, but avoided confinement by paying $500 bail. At the December 5, 2013 review hearing, Giroux still had not complied. The commissioner entered an order at the review hearing that stated: Contempt has not been purged. Anne Giroux is still unwilling to comply with the court's order regarding re-unification [therapy]. A review hearing is set for 12/ 10/2013 .... The court orders that if proof of an 

### appointment for re-unification [therapy] for Daniel Kulman and the children using one of five named therapists] is not provided [Kulman] will have custody ofthe children and the mother will be incarcerated on 12/ 10/2013.

4No. 45722 - 9 -II CP at 273 -74. D. Confinement Order and Release Order 

### At the December 10, 2013 review hearing, Giroux had not complied. The commissioner
entered a confinement order: 

### Based upon a finding of civil contempt Anne Giroux shall be incarcerated in the Pierce County Jail on 12/10/2013 for one day. There shall be a review hearing on 12/ 11/ 2013. The Pierce County jail shall transport Anne Giroux ... if bail has not been paid. Bail shall be set at $ 1, 000. 00 cash. CP at 286. This confinement order contained no purge clause. 

### Atthe December 11, 2013 review hearing, after Giroux had spent one day in 

### confinement, Giroux still had not complied. Giroux' s attorney argued the confinement had become more punitive than coercive becausejail would not convince Giroux to comply with the orderto enroll her children with another therapist. Kulman stated that he had contacted one of 

### the five therapists in the order, and had scheduled potential therapy appointments forthe children. Kulman requested residential time with the children to take them to these
appointments. Instead, the commissioner called the GAL and scheduled an appointment between the GAL and the children. The commissioner entered a release order that released Giroux from 

### custody and scheduled another review hearing: Anne Giroux shall be released on condition that she comply with the court' s order to allow GAL to interview the children on Monday.

Anne Giroux shall appear at a review hearing on 12/20/2013 .... Anne 

### Giroux shall initiate the previously ordered mental health assessment before the review date.

5No. 45722 - 9 -II The GAL shall interview the children at [ Giroux' s] residence on 12/ 16/2013. 

### Anne Giroux shall take all reasonable actions necessary to implement the residential time of [Kulman]. CP at 289 -

91. The commissioner stated she would incarcerate Giroux again if she did not allow 

### the childrento be interviewed bythe GAL on December 16. Giroux appeals onlythe November 21, 2013 contempt order, and does not appeal the December 10 confinement order. ANALYSIS 

### Giroux argues that the superior court erred by entering apunitive contempt order. We disagree. We reviewfindings ofcontempt and the appropriateness of contempt sanctions for abuse
of discretion. State v. Berty, 136 Wn.App. 74, 83, 147 P. 3d 1004 (2006). But we review whether a court' s contempt sanction is punitive de novo as a question of law. See In re Interest ofSilva, 166 Wn.2d 133, 140 - 41, 206 P.3d 1240 (2009); 

### State v. Salazar, 170 Wn.App. 486, 492 - 93, 291 P. 3d 255 ( 2012); In re Interest ofM. B., 

### 101 Wn.App. 425, 454, 3 P.3d 780 (2000). Because Giroux argues thatthe contempt sanction is punitive, our review is de novo.

RCW 7.21. 010( 1)( b) defines " contempt of court" as intentional "[ d] isobedience ofany lawful judgment, decree, order, or process ofthe court." Washington statutes distinguish between criminal contempt sanctions that are punitive and civil contempt sanctions that are
remedial. State v. TA.W., 144 Wn.App. 22, 24, 186 P. 3d 1076 ( 2008); see In re Marriage of 

### Didier, 134 Wn.App. 490, 500 - 02, 140 P.3d 607 (2006). A remedial sanction is " imposed for the purpose of coercing performance when the contempt consists ofthe omission or refusal to perform an act that is yet in the person' s power to

6No. 45722 - 9 -I1
perform." RCW 7.21. 010(3). The remedial contempt power given a court is intended to operate 

### to coerce a party to comply with an order orjudgment. A remedial contempt sanction will stand 

### ifit served coercive, ratherthan punitive, purposes. Didier, 134 Wn.App. at 501 -02. 

### Conversely, apunitive sanction is " imposedto punish apast contempt ofcourt forthe
purpose of upholding the authority of the court." RCW 7.21. 010(2). Before a punitive contempt sanction is imposed, a prosecutor must file a criminal complaint and the contemnor must receive those due process rights extended to other criminal defendants. ' See RCW 7.21. 040(2)( a); Smith v. Whatcom County Dist. Court, 147 Wn.2d 98, 105, 52 P. 3d 485 ( 2002) (quoting In re Pers. Restraint ofKing, Dept. ofSoc. and Health Sery 's., 110 Wn.2d 793, 800, 756 P.2d 1303 1988)). Because no criminal complaint or criminal due process existed here, the contempt sanction must be remedial to stand. Whether a contempt sanction was remedial or punitive turns on "the substance ofthe proceeding and the character of the relief that the proceeding will afford." 

### King, 110 Wn.2d at 799. 

### In determining whether a particular sanction was remedial orpunitive we do not looktothe subjective intent ofthe court. M. B., 

### 101 Wn.App. at 439. Instead we lookto the actual
character ofthe relief. 101 Wn.App. at 439. " Ifthe purpose ofthe sanction is to coerce 

### compliance with a lawful court order, and a contemnor isjailed only so long as [ she] fails to comply with such order, then the contempt is [ remedial]." King, 110 Wn.2d at 799. But' "[i]fthe purpose ofthe contempt sanction is punitive and results in a determinate jail sentence, with no opportunity for the contemnor to purge himself of the contempt, it is [ punitive]." 110 Wn.2d at 799. " 

### As long as there is an opportunity to purge,the factthatthe sentence is determinate does

7No. 45722 - 9 -II

not render the contempt punitive." M. B., 101 Wn.App. at 439. But the opportunity to purge and
obtain release must be present " at all times. ". 

### Didier, 134 Wn.App. at 504. I. INABILITY TO COMPLY WITH THE PURGE CONDITION Giroux argues that the November 21, 2013 contempt order was punitive because Giroux 

### was unable to comply with the purge condition. We disagree. Confinement ceases to be coercive once the contemnor lacks the ability to complywith 

### the order she is charged with violating. King, 110 Wn.2d at 804. Continuing aperson' s confinement for contempt for not performing an act she can no longerperform makes the
sanctions purely punitive. 

### 110 Wn.2d at 804. Inabilityto comply is an affirmative defense to remedial contempt, and a contemnor bears the burden ofproduction and persuasion in presenting
such a defense. 110 Wn.2d at 804. " The contemnor must offer evidence as to [her] inabilityto comply and the evidence must be of a kind the court finds credible." 110 Wn.2d at 804. A. Enrollment Requirement 

### Giroux argues that she was unable to comply with the requirementto enroll her children with a GAL -

approved therapist because she believed suchenrollment would breakthe continuity 

### ofher children' s therapy. We disagree. Giroux has offered no evidence that she was unable to comply with the contempt order. 

### Giroux' s beliefthat compliance with the order was contraryto her children' s best interest is 

### evidence ofGiroux's unwillingness to comply, not her inabilityto comply. Thus, Giroux failed 

### to meet herburdenofproving she was unable to complywith the requirement to enroll her children with a GAL - approved therapist. B. Mental Health Evaluation

8No. 45722 - 9 -II Giroux argues that she was unable to comply with the requirement to schedule a mental health evaluation because she could not afford it. We disagree. 

### Here, the therapy order stated that ifthe mental health evaluation was not free, Giroux 

### could bring amotion for instructions. Boththe therapy order and the deadline orderstated that Giroux could obtain an assessment at a centerwith a sliding fee scale. The superior court provided a number of potential centers she could approach. 

### While Giroux asserted that she was unable to pay because she had no money, and that she 

### had made calls to the centers, she did not sufficiently explain why a sliding scale would have 

### prevented herfrom scheduling a mental health evaluation that was free. Moreover, she did not make a motion for instructions, as provided for in the order. Thus, Giroux failed to meet her burden of production and persuasion to prove that she was unable to comply with the requirement to schedule a mental health evaluation for herselfdue to her inability to pay. C. 

### Inability To Comply During Confinement Giroux argues thatthe December 10 confinement order that she did not appeal made the November 21 contempt order punitive because she was unable to schedule a mental health 

### evaluation or enroll her children with a GAL - approved therapist during her one day of confinement. Butthe record contains no facts supporting that Giroux was unable to comply with the purge condition while injail. Thus, Giroux failed to meet her burden ofshowing that she 

### was unable to complywith the purge condition during her confinement. II. ONE DAY OF DETERMINATE CONFINEMENT THAT COMPLIANCE COULD NOT SHORTEN Giroux argues that the December 10, 2013 confinement order she did not appeal made 

### the November 21, 2013 contempt order punitive by imposing adeterminate one day of

9No. 45722 - 9 -II 

### confinement that Giroux could not shorten by complying with the contempt order' s purge condition. We disagree. Here, the November 21 contempt order imposed indeterminate confinement, but suspended that indeterminate confinement. The December 10 confinement order lifted the 

### suspension on this indeterminate confinement for one day, pending another review hearing. The release order reinstated the suspension on the indeterminate confinement. 

### Assuming without deciding thatthe confinement order imposed a determinate sentence 

### ofone day,the record supports that this sanctionwas coercive ratherthan punitive. First, because the confinement orderwas merely lifting the suspended confinement from the contempt order, the contempt order' s purge clause always applied. Thus, Giroux could have secured her 

### release at any time, even during the one day ofconfinement, by complying with the purge condition. Cf.Didier, 134 Wn.App. at 503 (contempt order imposing 30 days ofconfinement was punitive because it imposed confinement and stated that if contemnor complied during the
confinement period, commissioner " may entertain" a motion to modify the order). Second, 

### looking to the character ofthe reliefthatthe contempt proceeding would afford, Giroux had not complied with the order priorto the imposition ofone day ofconfinement, and the superior court 

## immediatelyfollowedthe one day ofconfinementwith anotherreview hearing to determine whether Giroux had complied. This shows that the reliefwas designed to quickly coerce future compliance that had not yet occurred, rather than to punish past noncompliance. 

### Thus, looking atthe substance ofthe contempt proceeding and the character ofthe relief that the contempt proceeding would afford, the sanction' s purpose was to coerce compliance 

### with a lawful court order, notto punish a past act by imposing a determinatejail sentence with

10No. 45722 - 9 -II 

### no opportunity forthe contemnorto purge herselfofthe contempt. Therefore, we hold,thatthe 

### confinement orderdid not makethe contempt orderpunitive.2 ATTORNEY FEES 

### Kulman requests attorney fees on appeal under RCW 4.84. 185 for defending a frivolous appeal, and under RCW 26. 09. 160( 1) -( 

### 2) for prevailing in an appeal ofa contempt order. We deny Kulman' s requests. 

### RCW 4.84. 185 allows attorneyfees for havingto defend frivolous appeals. Fernando v. Nieswandt, 87 Wn.App. 103, 112, 940 P.2d 1380 ( 1997). An appeal is frivolous if ' there are no debatable issues upon which reasonable minds could differ and when the appeal is so totally devoid of any merit that there was no reasonable possibility of reversal. "' 87 Wn.App. at 111- 12 ( quoting Mahoney v. Shinpoch, 107 Wn.2d 679, 691, 732 P. 2d 510 ( 1987)). Here, whether a 

### determinatejail sentence ofone day is punitive or remedial is a debatable issue upon which reasonable minds could differ, and the appeal was not so totally devoid ofany merit that there 

### was not a reasonable possibility ofreversal. Thus,the appeal is not frivolous, and Kulman is not entitled to fees under this provision.

RCW 26.09. 160( 1) -( 

### 2) allows attorney fees for filing a motion to initiate a contempt
action to coerce compliance with an order " establishing residential provisions for a child." RCW 26.09. 160( 1) -( 

### 2) applies onlyto contempt orders initiated to coerce compliance with those

2 Giroux argues that certain terms such as " sentenced," " bail," and " incarceration" in the contempt order shows the commissioner' s punitive thinking, and therefore reveal thatthe contemptwas punitive. Br. ofAppellant at 14. But the commissioner' s word choice does not 

### control our analysis. This is particularly true because allowing the commissioner' s punitive 

### thinkingto control the analysis would lookto the commissioner's subjective intent,whichwe do not do. See M.

B., 101 Wn.App. at 439.

11No. 45722 - 9 -II particular provisions of an order that established residential provisions for a child. See In re 

### Marriage ofRideout, 150 Wn.2d 337, 358 -59, 77 P.3d 1174 (2003). 

### Here, Giroux was held in contempt for failing to complywith provisions to enroll her children with a GAL - approved therapist and to schedule a mental health evaluation for herself. These provisions did not establish residential provisions for a child. Thus, we hold that Kulman is not entitled to attorney fees on appeal under RCW 26.09. 160( 1) -( 2).

We affirm. 

### Amajorityofthe panel having determinedthatthis opinion will notbe printed inthe Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

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