In re Lesinski

506 P.3d 1277

In the MATTER OF the MARRIAGE OF Jennifer Catherine LESINSKI, f/n/a Mienko, Respondent, and Joseph Anthony MIENKO, Appellant.

No. 55093-8-II

Court of Appeals of Washington, Division 2.

Filed March 29, 2022

Catherine Wright Smith, Valerie A. Villacin, Smith Goodfriend PS, 1619 8th Ave., N, Seattle, WA, 98109-3007, for Appellant.

Cameron J. Fleury, McKinley Irvin, 1201 Pacific Ave., Ste. 2000, Tacoma, WA, 98402-4314, for Respondent.

PUBLISHED OPINION

Glasgow, J. ¶ 1 After Joseph Mienko and Jennifer Lesinski dissolved their marriage in 2013, the trial court entered a parenting plan requiring their two sons to spend summers with Mienko in Washington and return to Lesinski in Michigan for the school year. In summer 2020, their 13-year-old son JM decided he did not want to return to Michigan.

¶ 2 Lesinski secured a court order directing both parents to facilitate the transfer of JM back to Lesinski's care on August 16, 2020. Early that morning, Lesinski arrived to pick up JM, but JM refused to leave his room in Mienko's home, and neither Mienko, Lesinski, nor law enforcement used physical force to attempt to move him. JM's adult sister confronted Lesinski on JM's behalf, and Mienko tried to negotiate with Lesinski in front of JM.

¶ 3 In a hearing the next day, Mienko requested a writ of habeas corpus allowing law enforcement to force JM to return to Lesinski, which Mienko thought would convince JM to voluntarily go with Lesinski. The commissioner granted the writ. Upon having the writ explained to him, JM agreed to return to Michigan and was in Lesinski's custody by the afternoon of August 17, 2020.

¶ 4 That same day the commissioner issued an order to show cause for contempt against Mienko. After a hearing, the commissioner found contempt and imposed a civil fine and ordered Mienko to pay attorney fees. A judge declined to revise the order finding contempt.

¶ 5 Mienko appeals. He argues that he complied with the court orders before the contempt hearing, he was subjected to a punitive sanction, and he could not purge the contempt when he had already returned JM to Lesinski. Lesinski seeks attorney fees on appeal.

¶ 6 We affirm the order to show cause and the contempt order because the sanctions were not punitive and the orders were supported by substantial evidence. We deny Lesinski's request for attorney fees on appeal.

FACTS

¶ 7 In October 2013, a trial court entered a parenting plan for Lesinski and Mienko's three children, NM, JM, and EM. The parenting plan ordered that NM would live with Mienko in Washington while JM and EM would reside with Lesinski in Michigan during the school year. In the summers, JM and EM lived with Mienko from one week after the end of school until one week before the new school year. Lesinski and Mienko would jointly make all major decisions regarding the children. The parenting plan stated that the parties could arrange for additional parenting time by mutual agreement.

¶ 8 In 2020, under the parenting plan, JM and EM should have returned to Michigan on August 24, but Mienko agreed to an earlier transfer date of August 16 so Lesinski could take a family vacation with JM and EM. In July 2020, Mienko e-mailed Lesinski informing her that JM wanted to remain in Washington for the following school year, despite the parenting plan. Mienko explained:

In facilitating [JM's] return to you, the only tools I have are conversation or violence (i.e. physical coercion or intimidation). The only tool I intend to use is conversation. As such, there are limits to what I see as my reasonable facilitation of his return to you.

... I do not intend to restrain [JM] into your vehicle, nor do I intend to allow anyone else to do so.

... I do not intend to verbally or physically intimidate [JM] to coerce him into your vehicle, nor do I intend to allow anyone else to do so.

Since it seems unlikely that you and I will agree on [JM's] precise future before August 16, my hope is that [JM] will comply with my efforts. Practically speaking; however, some portion of this is up to [JM].

Suppl. Clerk's Papers (SCP) at 152 (boldface omitted).

¶ 9 On August 13, 2020, Lesinski filed a petition to change the parenting plan for JM and EM to "limit [Mienko's] parenting time and participation" to "protect the children." SCP at 125. Lesinski sought to shorten the children's time with Mienko in the summer, requiring their return to Michigan two weeks before the new school year. And she requested that she be named the sole decision-maker regarding the children's education. That same day, Lesinski also requested an adequate cause decision for the proposed change to the parenting plan and an immediate restraining order against Mienko. She argued that Mienko had "engaged in a scheme of parental alienation" against her, "threatened to withhold" the children, and had told the children "they can decide where they want to live." SCP at 133. Lesinski also sought an order requiring Mienko to return JM and EM to her at 6:00 a.m. on August 16, 2020, and for an order for "a civil standby," where law enforcement would supervise the transfer of the children. SCP at 134 (boldface omitted).

¶ 10 Mienko appeared pro se at a hearing on these motions on August 14, 2020, telling the commissioner that he did not "intend[,] in any way, to suggest that [the children] have any sort of agency in this process" and had "never told [the children] that they can decide where they live." Verbatim Report of Proceedings (VRP) (Aug. 14, 2020) at 9. "I've made this clear to [JM], that he's going ... that he needs to go." Id.

¶ 11 In her ruling, Commissioner Terri Farmer stated:

THE COURT: I think -- thankfully, I don't think you need much of an order here. I think I will draft an order just for the sake of your son, to some degree, because he's a teenager, correct?

MR. MIENKO: Yes, Your Honor.

THE COURT: He doesn't really have any choice. That's what he need[s] to understand. Until the court order is changed, he has no choice.

I think that's all this order is going to reflect, that he's to return with his mom as planned on the 16th .... Both parents are to facilitate that.

I don't think law enforcement is going to help anything. ... [I]t will only get worse with law enforcement.

Id. at 11-12 (emphasis added). The commissioner's written order instructed that Mienko "shall return the children to [Lesinski] as planned on 8/16/20. The child does not have a choice in this matter. They must follow the court order. Both parents shall facilitate the return of the children." Clerk's Papers (CP) at 3. The commissioner crossed out language requiring the transfer to occur by 6:00 a.m.

¶ 12 When Lesinski arrived at 6:00 a.m. on August 16, 2020, JM refused to leave his room to get into Lesinski's car. Mienko helped load JM's belongings into Lesinski's car, and Mienko invited her into JM's room to try to convince JM to leave with her. Mienko let Lesinski talk alone with JM.

¶ 13 NM, JM's adult sister, confronted Lesinski on JM's behalf, arguing that JM had the right to decide where to live. When JM continued to refuse to leave his room, Lesinski called law enforcement, but all of the adults, including the officer who arrived, were unwilling to physically force JM into Lesinski's car. Mienko pleaded and attempted to negotiate with Lesinski in front of JM. Mienko asked Lesinski to leave JM in Washington until the parties could " ‘talk to the Court about this next week.’ " CP at 21. Lesinski eventually left Mienko's home without JM.

¶ 14 Later that day, Mienko e-mailed Lesinski's attorney and offered to attempt the exchange again without NM present. Lesinski did not act upon this offer.

¶ 15 The parties returned to court on August 17, 2020, before Commissioner Clint Johnson. The commissioner analogized JM's refusal to return to Michigan to refusing to attend school and stated, "We're not going to hold a child in contempt, but there is clear case law that says it is the parent's obligation to fulfill the terms of the Parenting Plan, even with a resistant child. And sometimes that may mean hands on." VRP (Aug. 17, 2020) at 40-41. The commissioner warned Mienko, "You are hugely potentially at risk to be found in contempt. And the fact that [JM], a 13-year-old, is digging in his heels, quite frankly, is not a defense. ... We don't let 13-year-olds call the shots." Id. at 41. "The order of the Court is [JM] is leaving with his mom. And if that doesn't happen today, then I will sign an order that directs law enforcement to retrieve [JM]." Id. at 42.

¶ 16 Mienko reiterated that he was not willing to physically force JM to go with Lesinski and requested a writ of habeas corpus, which would allow law enforcement to do so. Mienko thought this would effectively encourage JM to go with his mother. The commissioner stated that he would sign an order for a writ of habeas corpus if Lesinski's counsel prepared one, unless Mienko "comes up with a plan that makes arrangements for an exchange today." Id. at 48.

¶ 17 When Mienko explained the concept of a writ of habeas corpus to JM that same day, JM relented and was transferred to Lesinski's custody on the afternoon of August 17, 2020. Mienko alerted Lesinski's counsel that, pursuant to the commissioner's directions, he had a plan for transfer that did not require the involvement of law enforcement, and JM was agreeing to go with his mother. Nevertheless, Lesinski's counsel submitted the writ of habeas corpus, but it is possible that counsel submitted it to the commissioner before hearing from Mienko. It is also possible that there was a lack of communication between Lesinski and her counsel after JM was transferred into her care. When the commissioner issued the signed writ and warrant so that counsel could present them to law enforcement, counsel no longer had any need to take this next step because JM had already gone with his mother. Law enforcement was not contacted.

¶ 18 In the meantime, also on August 17, 2020, Lesinski filed a motion for a contempt...