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In the matter of Jeanne M. Horton

September 16, 1996

IN RE THE MATTER OF J.R.H., MINOR. JEANNE M. HORTON, RESPONDENT, AND BRIAN K. WUTZKE, APPELLANT.


Appeal from Superior Court of Snohomish County. Docket No: 895009471. Date filed: 03/14/95. Judge signing: Hon. Kathryn E. Trumbull.

Authored by Ronald E. Cox. Concurring: C. Kenneth Grosse, Ann L. Ellington. WE Concur

The opinion of the court was delivered by: Cox

COX, J. -- Brian Wutzke appeals the trial court's order holding him in contempt for failing to comply with the residential provisions of a parenting plan. Because the trial court failed to give Wutzke the opportunity to testify at the contempt hearing as permitted under applicable local court rules, we reverse and remand.

Jean Horton and Brian Wutzke are the parents of J.H., a child with special needs. J.H. was born in October 1989 and has Down's Syndrome.

Horton and Wutzke were never married and do not reside together. In July 1990, the Snohomish County Superior Court entered an Agreed Order of Paternity, Child Custody, Support and Visitation upon Horton's petition for determination of parentage. The order designated Horton as the custodial parent and also set forth a parenting plan that provided: "The child shall reside with the mother except, alternating weekends and holidays, and 1 night a week with the father."

In August 1994, Horton sought an order of contempt against Wutzke for allegedly violating the residential provisions of the July 1990 agreed order. Essentially, Horton claimed that Wutzke failed to comply with his responsibilities by often canceling plans at the last minute and either leaving her to care for J.H. or requiring her to enlist the services of a day care provider for J.H.'s care.

A court commissioner held a contempt hearing, found no violation of the paternity order, and denied Horton's request to hold Wutzke in contempt. But the commissioner also "clarified" the terms of the paternity order, making Wutzke's residential time mandatory and setting forth specifics regarding each parent's responsibilities. That order was entered on August 29, 1994.

Wutzke moved for reconsideration of the order. He argued that the court lacked authority to require him to exercise his visitation rights, to impose specific visitation times to which he did not agree, and to require him to use a specific day care provider or pay for full expenses of work-related day care. The commissioner denied the motion. Wutzke then moved to revise the commissioner's order. A superior court Judge substantially denied the motion with minor exceptions. Wutzke did not appeal this order.

In February 1995, Horton sought an order of contempt against Wutzke for allegedly violating the visitation provisions of the August 1994 order.

She also moved for further clarification of the order. Wutzke filed a response (including a request to call witnesses at the contempt hearing) and supporting affidavits.

The court held a hearing but denied Wutzke's request to call and examine witnesses. The court then entered an order on March 14, 1995, holding Wutzke in contempt of the visitation provisions of the August 1994 order. In the same order, the court "clarified" the August 1994 order.

Wutzke appeals.

I

Scope of Review

We must first determine what is properly before us for review. In his notice of appeal, Wutzke designates the March 14, 1995, order and the August 29, 1994, order upon which the former order was based. In his assignments ...


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