IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON DIVISION ONE IN RE MARRIAGE OF, MICHAEL D. PEASE, Appellant,

and

ELEANOR M. RANDECKER-PEASE Respondent. No. 71327-2-1

ORDER GRANTING MOTION, FOR CLARIFICATION, WITHDRAWING AND REPLACING OPINION AND DENYING EXTENSION OF TIME TO FILE COST BILL

A motion for reconsideration was filed by respondent, Eleanor M. Randecker

### Pease asking the courtfor clarification ofthe unpublished opinion filed in this case on March 2, 2015 and a motion for extension oftime to file respondent's cost bill and 

### affidavit. The panel has considered the motion for clarification and determined itshould be granted. Now, therefore, it is hereby ORDERED that the motion for clarification is granted and the opinion ofthis court filed March 2, 2015 is withdrawn and replaced with a revised opinion. 

### IT IS FURTHER ORDERED that respondent's motion for extension to file a cost bill and affidavit is denied. SO ORDERED. Dated this' ,2015. 

# ^jW^-^ Cvj , WE CONCUR 

# 4^,j r-o
CJ"S

PC —i:'."IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON IN RE MARRIAGE OF MICHAEL D. PEASE, Appellant,

v. ELEANOR M. RANDECKER-PEASE, Respondent. No. 71327-2-1 DIVISION ONE

UNPUBLISHED OPINION FILED: March 23, 2015 Spearman, C.J. — Michael Pease was found incontempt ofcourtfor 

### failing to complywith a court order requiring him to make monthlymaintenance 

### payments to Eleanor Randecker-Pease. Heappeals the trial court's finding that hisfailure to pay was intentional. He also argues that the trial courtfailed to make the requisite finding that he had the present ability to pay. Finding no error, we
affirm. FACTS Michael Pease and Eleanor Randecker-Pease filed for legal separation 

### and negotiated a distribution of maritalassets. Under the November 8, 2007 decree, Pease was ordered to pay maintenance of$5,507 per month. While this entire amount was characterized as "maintenance," it included a $3,200 

### mortgage payment, an additional $1,000 payment to be applied to principal, and payment of$1,247 to Randecker-Peaseforexpenses. The payment amount 

### varied slightly based on increases in required loan payments, the sale of theNo. 71327-2-1/2 

### house, and an agreed upon yearly increase inexpenses based on the Consumer Price Index forthe Seattle Metropolitan Area. Beginning inSeptember 2010, Pease was also responsible for paying the monthly premium for RandeckerPease's health insurance. As of May 2013, the total maintenance obligation was $5,724.33. 

### Pease filed for modification ofmaintenance payments and conversion of 

### the legal separation into a divorce inJanuary 2013. Randecker-Pease responded to Pease's motion and later moved for an order holding Pease incontemptfor 

### failing to pay maintenance and health insurance. At a hearing on April 12, 2013, the King County Commissionerdeclined to hold Pease incontempt, finding that he "did not have the ability to pay," but also that he admitted that he owed "large


### sums of money" to Randecker-Pease. Clerk's Papers (CP) at 117. The case proceeded to trial by affidavit on the requestfor modification ofmaintenance payments and to determine thejudgment amount. 

### On April 19, 2013, the parties appeared before a different King County Commissionerfor hearing on the petition to modify. 

### Pease submitted declarations withtestimony aboutfacing multiple health 

### difficulties and being laid offfrom his job in 2008. He testified about looking for 

### workin IT management, receiving unemployment compensation until June 2010, and taking out additional loans to pay billsand college expenses for his daughter. He attempted to start a tax business and market an e-book series, but was unable to find work in various fields. He went on inactive status with the 

### Washington State BarAssociation during thattime because he could not meetNo. 71327-2-1/3 his licensing obligations. He began receiving Social Security Disability payments in November 2012. InJanuary 2013, Pease submitted a financial declaration showing a monthly income of$2,439, monthly expenses of$1,232, and recently paid debts of $4,220.56. Randecker-Pease submitted declarations and exhibits showing that Pease had consistently refused to pay and indicated that she would "need to sue [him] for divorce in orderto be paid anything [he] owe[d] [her]," and that he would "look to reduce [his] obligations to [her] by what ever(sic) means necessary." CP at 310; CP at 341-2. She submitted evidence ofPease's endeavors to earn money through a "hush, hush website" and a money-doubling scheme, and his request to her for a loan of $8000. CP at 56. The Commissionerdenied the petition, finding "numerous inconsistencies in the petitioner's bank statements relating to deposits and withdrawals," and that Pease "chooses to pay things otherthan his court ordered obligation, and does not make even partial payments toward his court ordered obligation." CP at 356- 360. The commissioner also found that Pease had "submitted no evidence that he is limited in all types ofwork, and no evidence whatsoever that he [is] unable to pursue limited employment." CP at 357. Additionally, the court found that Pease, from his own declaration, had a monthly income surplus of$1,207, which meant that "he had money with which to pay the respondent's health insurance premiums and chose not to." CP at 358. Both parties filed motions for revision seekingjudicial review ofthe denials of the motions for contempt and to modify the order of maintenance. OnNo. 71327-2-1/4 November 22, 2013, the trial court granted Randecker-Pease's motion for 

### revision and found Pease incontempt. Pease appeals.1 DISCUSSION Pease argues thatthe standard ofreview is de novo, because the decision was based on written material only. Brief ofAppellant at 10. He cites a 

### number ofcases that supportthis rule, including Inre Estate ofBowers, 132 Wn. App. 334, 339, 132 P.2d 916 (2006); Progressive Animal Welfare Soc. v. University ofWashington, 125 Wn.2d 243, 252, 884 P.2d 592 (1994); Amren v. Citv of Kalama, 131 Wn.2d 25, 32, 929 P.2d 389 (1997); Housing Authority of Citv of Pasco and Franklin County v. Pleasant, 126 Wn. App. 382, 387, 109 P.3d 

### 422 (2005). Randecker-Pease disagrees, citing In re Marriage of Rideout, 150 Wn.2d 337, 350, 77 P.2d 1174 (2003) as supportfor appellate review based on the substantial evidence standard. Br. of Respondent at 9. 

### InRideout, the state Supreme Court observed thatthe general rule 

### relating to de novo reviewapplies only when the trial court has not seen or heard testimony requiring it to assess the credibility of the witnesses. 150Wn.2d at 351. The court held, however, that the substantial evidence standard is 

### appropriate "where competing documentary evidence had to be weighed and conflicts resolved." ]d. The Rideout court rejected the argumentthat an appellate 

### court is in "as good a position tojudge credibility ofwitnesses when the record is 

### entirelydocumentary," reasoning that "trial courts are betterequipped than

1The trial court denied Pease's motion forrevision regarding the denial of hispetition to modify the order of maintenance. Pease has notappealed this denial nor has he appealed the judicialfindings that the Commissioner'sfindings of fact and conclusions of law"arewell supported bythe facts and the law." CP at 411.No. 71327-2-1/5 

### multijudge appellate courts to resolve conflicts and draw inferences from the evidence." Rideout at 352. Under Rideout, substantial evidence is the appropriate standard ofreview for the trial court's factual findings. A trial court must make findings offact that setforth the basis for its 

### judgmentofcontempt. Inre Marriage ofJames, 79 Wn. App. 436, 440, 903 P.2d 470 (1995). Indetermining whetherfacts support a finding ofcontempt, the court 

### must strictly construe the order alleged to have been violated, and the facts must constitute a plain violation ofthe order. Inre Marriage ofHumphreys, 79 Wn. App. 596, 903 P.2d 1012 (1995). Whether contempt is warranted is a matter within the trial court's discretion; unless that discretion is abused, itshould not be 

### disturbed on appeal. King v. State ofWash., Dep't ofSocial & Health Services, 110 Wn.2d 793, 798, 756 P.2d 1303 (1988). 

### Pease argues that inorderto find him incontempt, the trial courtwas 

### required to determinewhether or not he had the present ability to pay the monthly maintenance payments. Randecker-Pease argues thatthe trial court 

### only had tofind intentional disobedience inorderto find and hold Pease in contempt. 

### RCW7.21.010(1 )(b) defines "'contemptofcourt'" as "intentional... 

### [disobedience of any lawfuljudgment, decree, order, orprocess of the court." The primary purpose ofcivil contempt power is to coerce a party to comply with 

### an order orjudgment. State v. Breazeale, 144 Wn.2d 829, 31 P.3d 1155 (2001). A trial court may impose a contempt sanction under its inherentconstitutional authority or under statutory provisions governing contempt of court. State v.No. 71327-2-1/6 Jordan, 146Wn. App. 395, 190 P.3d 516 (2008). Contempt requires a finding of "[i]ntentional disobedience." King, 110 Wn.2d at 797 (citing Matthewson v. Primeau, 64 Wn.2d 929, 934, 395 P.2d 183 (1964)). Inability to comply is an affirmative defense and Pease has both the burdens of production and persuasion, jd. at 804. He must offer evidence as to his inability to comply and the evidence must be ofa kind the court finds credible. ]d. Pease argues that Britannia Holdings, Ltd. v. Greer, 127 Wn. App. 926, 

### 113 P.3d 1041 (2005), precludes a finding ofcontemptwhen a trial courtfails to find thatthe contemnor has the present ability to comply with the order. Randecker-Pease argues that Britannia has no application to this case, because itwas a civilcollection case, not a family law matter, and involved incarceration


### as a sanction. Furthermore, she argues thateven ifBritannia did apply, the trial courtfound that Pease had the "present ability but is unwilling to comply withthe court's order." CP at 144. 

### We agree withRandecker-Pease and find that Britanniadoes not apply. In Britannia, the appellants challenged the purge clause requiring them to pay the amount owed, not the underlying finding ofcontempt. 127 Wn. App. at 930. The 

### appellants had been found incontemptof court forknowingly disobeying court orders. ]d. The Brittania court found that the purge clause calling forincarceration
was impermissibly penal ratherthan coercive, without a finding thatthe 

### appellants had the present ability to pay. 127 Wn. App. at 934. Here, Pease is not challenging the purge clause and is under no threat ofincarceration. The trialNo. 71327-2-1/7 

### courtwas therefore under no obligation to findthat Pease had the present ability to pay before entering a judgment ofcontempt. 

### Pease assigns errorto a number ofthe trial court's factual findings. We address onlythe alleged errors that are ofconsequence to the trial court's decision.2 First, Pease argues thatthe trial court erred when it found that he had 

### intentionally failed to make his maintenance payments. We disagree. The trial courtfound that there was "clear, convincing, and cogentevidence of [Pease's] intentional failure to make his maintenance payments." CP at 144. Our review of 

### the record reveals multipleexamples in which Pease declined to leverage his credentials and pursue limitedemployment, invested inquestionable business 

### ventures, paid debts otherthan maintenance, and verbally challenged Randecker-Pease to enforce the orderagainst him. We conclude that substantial 

### evidence supports the trialcourt's finding that Pease intentionally failed to make payments to Randecker-Pease. 

### Second, Pease argues thatthere are no facts in the record that show that he has the present ability to comply withthe court ordered maintenance 

### provisions or to purge contempt. Again, this is not a requirementfor a finding of contempt, and Pease had the burden to show that he was unable to comply. The record shows that the trial court considered all ofthe evidence and expressly

2Pease disputes a number ofparticularfindings that are appurtenant to thetrial court's ultimatefinding that he intentionally failed to make his maintenance payments. He argues that the trialcourt erred when it found that he "used his severance package inappropriately." Br. of Appellantat 1. He also contends that the trial court erred byfinding that he "'heldout' for a higher payingjob beforelowering expectations and pursuing a wider range" of jobs. Id. Hefurther claims itwas errorfor the courtto findthat he did not "show a good faith effort to work and conserve assets." Id Finally, Pease argues that the trial courtabused its discretion byconcluding that he had the presentability to pay maintenance but was "unwilling to do so," and that nonpayment of health insurance premiums was "evidence ofcontempt." ]<± 7No. 71327-2-1/8 found that he did have the present ability. We deferto the fact finder on witness credibility and the persuasiveness ofthe evidence. In re Marriage of Akon, 160 Wn. App. 48, 57, 248 P.3d 94 (2011). We decline to disturb the trial court's findings with regard to Pease's present ability to pay his court ordered obligations. Finally, Pease assigns errorto the trial court's failure to provide "a viable method for [him] to purge contempt, and comply with the non-modifiable maintenance order." Br. ofAppellant at 1. He correctly states the rule that "'[a]n order ofremedial civilcontempt mustcontain a purge clause underwhich a 

### contemnorhas the ability to avoid a finding ofcontempt and/or incarceration for non-compliance. In re Detention of Rebecca K., 101 Wn. App. 309, 314, 2 P.3d 501 (2000).'" Id at 15. The contempt order contains an express purge clause that states "[t]he contemnor may purge the contempt by resuming payments as required by court order, and by arranging for payment ofthe maintenance arrearages in a manner agreeable to the respondent." CP at 145. Pease argues thatthis clause is improper because itdoes not allow him to "perform an act that is yetwithin his or her powerto perform." Br. ofAppellant at 15. He cites RCW 7.21.030(2), and reiterates that he is unable to make the maintenance payments. The identified language of RCW 7.21.030(3) sets forth the definition of a "remedial sanction," distinguishing it from a "punitive sanction." As discussed in Britannia, this distinction applies to ensure that incarceration for civilcontempt serves a coercive, not a penal purpose. 127 Wn. App. at 933; see also Hippie v.

8No. 71327-2-1/9 

### McFadden, 161 Wn. App. 550, 562, 255 P.3d 730 (2011) (courtdeclined to dismiss malpractice action based on contempt). Because incarceration is not 

### included inthe purge clause, the trial court is not required to find a current ability to perform the acts previously ordered. Randecker-Pease asks for attorney fees on appeal for violation of RAP 

### 18.9(a). She contends that he advances frivolous legal arguments and that he 

### acted withintransigence when he failed to provide a complete record forappeal. RAP 18.1 (a) entitles a party to attorney fees if a statute authorizes the 

### award. Under RAP 18.9(a), an appellate court may order a party to pay sanctions if he or she uses these rules for the purpose ofdelay, files a frivolous appeal, or 

### fails to comply withthe rules ofappellate procedure. An appeal is frivolous if there are no debatable issues upon which reasonable minds might differand it is


### so totally devoid of merit that there is not reasonable possibility of reversal. In re Marriage ofSchnurman, 178 Wn. App. 634, 644, 316 P.3d 514 (2013) review denied, 180 Wn.2d 1010, 325 P.3d 914 (2014) (citing Tiffany Family Trust v. Citv of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005)). All doubts as to whetherthe 

### appeal is frivolous should be resolved in favor of the appellant. Id. Anappeal that is affirmed simply because the arguments are rejected is notfrivolous, id. While we have rejected all ofPease's arguments, the record contains 

### conflicting factual findings regarding his ability to pay the required maintenance. Raising at least one debatable issue precludes finding thatthe appeal as a whole is frivolous. Advocates for Responsible Dev. v. West. Wash. Growth Mgmt. Hearings Bd.. 170Wn.2d 577, 580-1, 245 P.3d 764 (2010). Resolving all doubtsNo. 71327-2-1/10 in Pease's favor, we decline to find that his appeal was so totally devoid of merit

as to be frivolous. Second, Randecker-Pease requests that we award fees on the basis of 

### intransigence, because Pease failed to provide a complete record for appeal. Intransigence includes obstruction and foot dragging, filing repeated unnecessary 

### motions, or making a proceeding unduly difficult and costly. In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006). The appellate record shows that as a result of Pease's failure, Randecker-Pease was required to file a 

### supplemental designation ofclerk's papers on March 21, 2014. While this may have been a frustration and inconvenience to Randecker-Pease, it does not rise to the level ofintransigence. We conclude that Randecker-Pease is not entitled 

### to attorney fees on either asserted ground. Affirm.

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