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IN THE COURT OFAPPEALS FOR THE STATE OF WASHINGTON
Inthe Matter ofthe Marriage of MICHAELA FELLOWS, Appellant, and CHARLES FELLOWS, Respondent. No. 74643-0-1 DIVISION ONE

UNPUBLISHED OPINION

FILED: November 28, 2016 

### Mann, J. — MichaelaOsborne1 appeals the trial court's ruling that she was in contemptof court for violating the dissolution decree relating to her marriage with former husband Charles Fellows. The trial court found Osborne incontempt after she intentionally violated the court's order by damaging the couple's former home before 

### vacating it. Because substantial evidence supports the trialcourt's finding ofcontempt and proper imposition of a remedial, not punitive sanction, we affirm.

1Appellant's last name is now Osborne.No. 74643-0-1/2
FACTS This case arises out ofdissolution proceedings involving Michaela Osborne and Charles Fellows. The trial court distributed the parties' assets and granted the decree ofdissolution on June 30, 2015. The decree of dissolution awarded the family home, located at 10021 SE 192nd Place, Renton, Washington, to Fellows but permitted 

### Osborne to remain living there for an additional 60 days. Osborne had untilAugust 30, 2015, to remove her belongings from the property and quitclaim her interest in it to Fellows. The decree ordered Fellows to pay $54,000 to Osborne for her equity interest
in the home. At the conclusion of trial, counsel for Fellows asked the court to "issue an oral 

### ruling to not do something to the house or destroyit."2 The courtruled that The house needs to be maintained in the condition it is. I'm—I don't want 

### to see—there's no need forthe parties to be back here again. This is 

### going to be the cleanestway forthese parties tojust—there's nothing that should be holding you together, including this house, so the house needs to be in a livable condition.[3] 

### The court also granted Osborne a permanent protection order against Fellows. 

### On July 8, 2015, the trial courtpresented itswritten ruling and further
commented: 

### The home should be in—ifthere's any sabotage or anything done to the home, Iwill allow—consider a contempt motion here and will address any 

### potential reduction ofdamages. Ithink the easiestwayto—I think [Osborne] is aware that she needs to leave the home intact. Do not damage itin any way, shape, orform. Ifthat's a concern, the parties may come backfor a contempt consideration and address any damages that 

### may have occurred.[4]

2Report ofProceedings (RP) (June 30, 2015) at 240. 3RP (June 30, 2015) at 240. 4RP (July 8, 2015) at 251. -2-No. 74643-0-1/3 Osborne vacated the home within the designated time period. On August 31, 2015, Fellows came by the house and saw a hole inthe front door and paint splashed
on the exterior and the deck. He called the police and reported the damage. The police contacted Osborne, who told them that she had possession ofthe house until 

### September 8, 2015, and "anything that she does to her house until then is okay."5 According to the police, Osborne "would not admit to actually being the one that damaged the residence," but claimed that her children did it, and that itwas a 

### "temporary lapse in judgment."6 The parties do not dispute the extent ofthe damage done to the house. Paint
was splattered and streaked across the interior and exterior ofthe house. There were holes in the walls, doors, cabinets, floors, and ceilings. The baseboards, doorframes, and windowsills were damaged. There were cracks and chips in the tile, the countertops, the bathroom sinks, and one ofthe mirrors. There were numerous 

### handwritten messages on the walls addressed to "Chuck" and "Chucky."7 There was a small round hole and writing scratched into the front door. The estimate costto repair the damage and replace the fixtures totaled $144,937.49. Fellows moved for an order ofcontempt on October 2, 2015. On October 26, 

### 2015, he filed a declaration of a private investigator he had hired, which contained a report of a conversation with one ofthe couple's neighbors. The report included 

### statements fromthe neighbor about seeing "a hole inthe front door and paint on the side ofthe house."8 According to the investigator, Osborne had told her neighborthat

5Clerk's Papers (CP) at 577. 6 CP at 578. 7CP at 148, 158, 164-170, 180. 8 CP at 424. -3-No. 74643-0-1/4 

### she "did it," inreference to the damage to the house, and that she "couldn't wait until Charles saw the house."9 Osborne filed a declaration on November 3, 2015, which 

### included police reports of Fellows' priorharassment and violation ofthe protective order. She also included declarations from witnesses stating that the house was in livable condition before Osborne moved out. In her declaration, Osborne admitted to removing the refrigerator, the stove, the 

### dishwasher, and speakers from the walls of the house. She stated that she "onlytook what wasn't inthe house when we purchased it."10 She also admitted to the "minimal 

### writing on the walls, and the carving on the front door," butargued that Fellows had 

### "[seen] the writing before he moved out of the house."11 She declared that when she left on August 28, 2015, "itwas in a livable condition, with nodamages to the cabinetry,


### nopainton thewalls, no holesin thewalls, or any of the otherdamages."12 According to Osborne, her children and her niece tracked paint inside and made handprints on the walls when she went to the house with the Renton Police. Osborne also stated in her declaration that she believed Fellows damaged the house himselfand blamed her. Fellows submitted a declaration in reply contesting all of 

### Osborne's assertions and included the police investigation report fromthe night he discovered the house had been damaged. 

### Atthe hearing on November 9, 2015, thetrial courtfound Osborne to be in contempt of court for"intentionallyfail[ing] tocomplywith the oralruling of Judge

9 CP at 424. 10 CP at 431. 11 CP at 428. 12 CP at 428.No. 74643-0-1/5
Galvan and lawful orders ofthe court dated on 7/8/2015."13 The trial court found that 

### Osborne violated the order by "willfully and purposefullydestroying] the family home."14 The trial courtfound that Osborne had the past and present ability to comply with the order but did not have the present willingness to comply with the order. As a result, the trial court ruled that Osborne was in contempt of court and that she may purge the 

### contempt by "[p]ay[ing] the monies awarded to Charles Fellows perthe Judgment 

### Summary contained herein."15
ANALYSIS We review a trial court's decision in a contempt proceeding for an abuse of discretion. In re Marriage ofJames, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995). 

### An abuse ofdiscretion is present only ifthere is a clear showing thatthe exercise of 

### discretion was manifestly unreasonable, based on untenable grounds, or based on untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). 

### Any"intentional.
. . [disobedience of any lawfuljudgment, decree, order or 

### process of the court" is a contempt of court as defined by RCW7.21.010(1)(b). Where 

### the superior court basis its contemptfinding on a court order, the order "must be strictly construed in favor ofthe contemnor" and the facts found "must constitute a plain violation ofthe order." Dep't of Ecology v. Tiger Oil Corp.. 166 Wn. App. 720, 768, 271 

### P.3d 331 (2012). The moving party has the burden of provingcontempt by a 

### preponderance of the evidence. James, 79 Wn. App. at 442.

13 CP at 502. 14 CP at 502. 15 CP at 503.No. 74643-0-1/6 

### Osborne first assigns error to the trial court's findings of fact regarding her failure to comply withthe court's order and "willfully and purposefully destroying] the family home."16 A trial court's factual findings regarding contempt will be upheld on appeal if 

### they are supported bysubstantial evidence.17 In re Marriage ofRideout, 150Wn.2d 337, 350, 77 P.3d 1174 (2003). Substantial evidence exists if a rational, fair-minded 

### person would be convinced ofthe truth ofthe declared premise. Hegwine v. Longview Fibre Co., Inc., 162 Wn.2d 340, 353, 172 P.3d 688 (2007). Even ifthere are several 

### reasonable interpretations of the evidence, it is substantial if itreasonably supports the 

### finding. Fred Hutchinson Cancer Research Ctr. v Holman, 107 Wn.2d 693, 713, 732 P.2d 974 (1987). The trial courtfound that Osborne "intentionally failed to comply withthe oral 

### ruling ofJudge Galvan and lawful orders of the court dated on 7/8/2015," by"willfully 

### and purposefully destroying] thefamily home."18 Osborne admitted towriting on the walls and carving into the front door. She also stated in her declaration that the children made the handprints and tracked paint into the house. The police report included Osborne's statements that "she technically didn't do the damage to the house," but the 

### children did, and that "she could do whatevershe wanted to herhouse."19 Based on her

16 Br. ofAppellant at 5-6; CP at 502. 17 In herreply brief, Osbornearguesfor a de novo review oftherecord because thetrial court's decision was based entirely on the parties' declarations andwritten submissions. Ifthe partiesdo not dispute theunderlying factsbutonlytheconclusions drawn from thefacts, denovo review isappropriate where thetrial courtrelied solely ondocumentary evidence and there were no questions ofcredibility. In re Marriage of Lanaham and Kolde. 153 Wn.2d 553, 559, 106 P.3d 212 (2005). For a contempt 

### proceeding such as this one, however, where credibility is anissue, thesubstantial evidence standard applies. In reMarriage ofRideout. 150Wn.2d 337, 350-52, 77 P.3d 1174(2003). 18 CP at 502. 19CP at 578.No. 74643-0-1/7



### own admissions and the evidence in the record,20 a rational, fair-minded person could findthat Osborne violated the court's order by willfully and purposefully damaging the family home. Next, Osborne argues that the trial court based the contemptfindings on inadmissible hearsay evidence, namely the police report and the report of a private investigator's interview with a neighbor. Fellows argues that Osborne failed to objectto the inclusions ofthese statements at trial, and therefore has not preserved the errorfor appeal. We agree. It is well settled that objections to evidence cannot be raised for the first time on appeal. Sepich v. Dep't of Labor and Indus., 75 Wn.2d 312, 319, 450 P.2d 940 (1969), 

### citingOmeittv. Dep't of Labor and Indus., 21 Wn.2d 684, 152 P.2d 973 (1944).21 We decline to exercise our discretion to consider Osborne's challenge to the admissibility of the reports under these circumstances. Her counsel at the contempt hearing spoke to the authenticity ofthe police report but did not contest the statements contained in itas hearsay. She was also aware ofand had the opportunity to address the submission of 

### the investigator's report, but chose not to speakto it. Osborne waived any objection to

20 Osborne argues that Fellows onlypresented "unsubstantiated circumstantial evidence" that she did the damage to the house. Br. of Appellant at 15. This is of no consequence. Circumstantial evidence is just as good as direct evidence. Rogers Potato Service, LLC v. Countrywide Potato. LLC, 152Wn.2d 387, 391, 97 P.3d 745 (2004). 21 Osborne argues that the appellate court may review arguments brought up for the first time on appeal where the issue involves sufficiency of the evidence. RAP 2.5(a)(2) provides that an appellant may raise for the first time on appeal "the failure to establish facts upon which relief can be granted." This exception applies only where the proof of particular facts at trial is required to sustain a claim. Mukilteo Ret. Apts.. LLC v. Mukilteo Investors. LP. 176 Wn. App. 244, 246, 310 P.3d 814 (2013). DivisionThree recently examined the rule and held that it"should be read, as itwas intended to be read, as applying solely to insufficient proof of an essential element of a party's case. That description does not apply to the trial court's actions." State v. Clark. No. 32839-2-III, slip op. at 10 (Wash. Ct. App. Sept. 8, 2016), http://www.courts.wa.gov/opinions/pdf/328392_pub.pdf. While Osborne does argue that Fellows has failed to provide sufficientevidence to support a finding of contempt, her belated objection to the reports as hearsay would not fall within RAP 2.5(a)(2).No. 74643-0-1/8 the reports as hearsay at the hearing and cannot raise the issue for the first time on appeal. RAP 2.5(a). 

### Finally, Osborne argues that the contempt charge was punitive and entered in violation ofher constitutional rights. According to Osborne, the trial court intended to 

### punish her for her past acts without the due process safeguards required by one facing criminal charges. Fellows argues that the contempt was remedial, not punitive, and was only imposed to compensate forthe damage done to the house. Under RCW 7.21.030(1), a trial court can impose "remedial" sanctions on a 

### person forcontempt of court after notice and hearing. However, under RCW 7.21.040(1)-(2) a trial court may impose "punitive" sanctions only after a complaint or information is filedbased on probable cause. In addition, the trial court must provide 

### those due process rights afforded to criminal defendants before imposing a punitive sanction. In re Pers. Restraint of King, 110 Wn.2d 793, 800, 756 P.2d 1303 (1988). 

### A"punitive sanction" is "a sanction imposed to punish a past contemptof court 

### for the purpose ofupholding the authority of the court." RCW7.21.010(2). A"remedial sanction" is one that is "imposed for the purpose of coercing performance when the 

### contemptconsists ofthe omission orrefusal toperform an act that is yetin the person's 

### powertoperform." RCW7.21.010(3). Asanction will beconsidered remedial rather thanpunitive ifthe contemnoris able to purge the contemptthrough an affirmative act. In re Dependency ofA.K., 162 Wn.2d 632, 646, 174 P.3d 11 (2007). 

### Osborne declines to mention that the trial court provided herwith a method of 

### purging thecontemptwhen she argues that her sanction waspunitive. Here, thetrial courtexpressly ruled thatOsborne may purge thecontemptby paying themonies

-8-No. 74643-0-1/9 awarded to Fellows in accordance with thejudgment. Furthermore, RCW 7.21.030(3) allows the court to order a contemnorto pay losses suffered as a result of the contempt and costs incurred inthe contempt proceedings for any "person found in contempt of court." See State ex rel. Chard v. Androw, 171 Wash. 178, 17 P.2d 874 (1933). The contempt is remedial and Osborne was not entitled to further due process rights. Both parties ask for fees on appeal under RAP 18.1. The rule entitles a party to reasonable fees and costs ifan applicable law grants that right. RAP 18.1(a). Under RCW 7.21.030(3), a court may order a person found in contempt of court to pay a party for any costs incurred in connection with the contempt proceeding, including reasonable 

### attorney fees. This includes fees incurred by a party defending the appeal of a 

### contempt order. R.A. Hanson Co. v. Magnuson, 79 Wn. App. 497, 505, 903 P.2d 496 (1995). We award Fellows his fees and costs on appeal subjectto his compliance with RAP 18.1(d). Affirmed. 

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WE CONCUR:



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