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In re Marriage of Tabitha Jane Woodie

November 21, 1996

IN RE THE MARRIAGE OF TABITHA JANE WOODIE, RESPONDENT, AND BRYCE WAYNE WOODIE, APPELLANT.


Appeal from Superior Court of Yakima County. Docket No: 91-3-01383-0. Date filed: 07/26/94. Judge signing: Hon. Lani-Kai Swanhart.

Authored by Frank L. Kurtz. Concurring: Dennis J. Sweeney, John A. Schultheis.

The opinion of the court was delivered by: Kurtz

KURTZ, J. Bryce Woodie failed to comply with a court order requiring him to pay child support of $199 per month. Tabitha Woodie moved for an "Order to Show Cause Re Contempt." She served Mr. Woodie in Oregon with notice of the proceeding, but he did not appear. The court ruled the contempt proceeding was coercive in nature and ordered Mr. Woodie to show cause why he should not be found in contempt. Mr. Woodie was again served in Oregon. Again, he did not appear. He was later arrested on a bench warrant. At a show cause hearing, Mr. Woodie asserted that the proceeding was punitive in nature because jail time was contemplated. He argued he was entitled to a jury trial.

The court reaffirmed its decision that the proceeding was coercive, not punitive. The trial Judge questioned Mr. Woodie about his employment, residence, and possessions. Mr. Woodie told the court he was healthy and did seasonal farm work in Umatilla, Oregon. He also said he supports two other children, does not own any property, lives with his brother, and only has the clothes on his back. The court ruled: "Mr. Woodie does have the present ability to pay $350 toward his obligation . . . ." It ordered Mr. Woodie jailed until he paid the amount due. *fn1

Mr. Woodie moved for modification of the contempt order and/or release pending appeal. He asked the trial court to find that he did not have the ability to pay as demonstrated by the fact that he remained in custody in lieu of paying the "modest amount" due. But the court disagreed. It indicated it was astonished that Mr. Woodie had not paid the $350 amount due. The court, however, recognized that it was inappropriate to keep Mr. Woodie in jail because "it's not serving any purpose." The court modified the contempt ruling and ordered Mr. Woodie released. It gave him approximately three months to purge the contempt.

On appeal, Mr. Woodie contends the trial court erred in ruling the contempt was coercive. He further asserts he did not receive adequate notice of the contempt proceedings. We agree with the trial court that the contempt proceeding was coercive. We reverse the order of contempt because the trial court did not make a specific finding of bad faith or intentional misconduct. RCW 26.09.160(2)(b).

Discussion

Contempt is the intentional "disobedience of any lawful judgment, decree, order, or process of the court[.]" RCW 7.21.010(1)(b); In re King, 110 Wash. 2d 793, 797, 756 P.2d 1303 (1988). Civil contempt is intended "to coerce compliance with a lawful court order . . . ." Id. at 799. " contemnor is jailed only so long as he fails to comply with such order . . . ." Id. at 799. Civil contempt generally benefits another party; it is conditional and indeterminate, that is to say, the "contemnor carries the keys of the prison door in his own pocket and can let himself out by simply obeying the court order." Id. at 800. Civil contempt coerces future behavior that complies with a court order. Id. at 800; State v. Boatman, 104 Wash. 2d 44, 47, 700 P.2d 1152 (1985). A court may order imprisonment in a civil contempt proceeding only to the extent it serves a coercive purpose. RCW 7.21.030(2)(a); King, 110 Wash. 2d at 802-03 (court has discretion to determine, on a case-by-case basis, at what point incarceration for civil contempt no longer serves a coercive purpose).

In comparison, criminal contempt is punitive and is imposed primarily to vindicate the authority of the court. State v. John, 69 Wash. App. 615, 619, 849 P.2d 1268 (1993). It punishes for past behavior. King, 110 Wash. 2d at 800. A criminal contempt sanction is determinate and unconditional; the contemnor has no opportunity to purge himself of the contempt. John, 69 Wash. App. at 618.

If a party fails to comply with the provisions of a decree, a contempt action may be initiated. RCW 26.09.160(2)(a). If, based on all the facts and circumstances, the court finds that the parent "in bad faith, has not complied with the order establishing residential provisions for the child, the court shall find the parent in contempt of court." RCW 26.09.160(2)(b) (emphasis added). The statute requires the trial court to specifically find bad faith or intentional misconduct as a predicate for its contempt judgment. In re James, 79 Wash. App. 436, 440, 903 P.2d 470 (1995); In re Humphreys, 79 Wash. App. 596, 599, 903 P.2d 1012 (1995).

Undisputedly, Mr. Woodie disobeyed a court order. The record before us does not include findings of fact setting forth the basis for the court's judgment. Although the court voiced its "astonishment" that Mr. Woodie had not paid the amount due, it did not find that Mr. Woodie's failure to pay the support obligation was in bad faith or an act of intentional misconduct. For that reason, we reverse the order of contempt.

In light of our holding, we do not reach the issue of whether Mr. Woodie received adequate notice of the proceeding.

Reversed.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for ...


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