In re Marriage of Kosnoff

In the Matter of the Marriage of MARY ANN KOSNOFF, n/k/a MARY ANN MCCORMICK, Respondent, and TIMOTHY DAVID KOSNOFF, Appellant.

No. 80922-9-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 19, 2021

UNPUBLISHED OPINION

VERELLEN, J. — A trial court has the discretion to hold a party in contempt of court when they intentionally violate a court order. A dissolution decree required that Timothy Kosnoff pay spousal maintenance until he was retired from the practice of law. The trial court found Kosnoff chose to not pay spousal maintenance while still practicing law. Because the court's findings of fact are supported by substantial evidence, the court did not abuse its discretion.

Kosnoff also contends the court lacked subject matter jurisdiction to enter a contempt order because his separation contract allowed for arbitration of spousal maintenance disputes and the court lacked personal jurisdiction because the order authorizing substitute service was flawed. But a superior court's subject matter jurisdiction extends to the enforcement of dissolution decrees it issued. Because his ex-wife moved to enforce the dissolution decree, the court properly exercised its authority to enforce its own order. And because Kosnoff was personally served, any issues with substitute service are moot.

Therefore, we affirm.

FACTS

Attorney Timothy Kosnoff focused on representing victims of sexual abuse. Kosnoff was married to Mary Ann McCormick. They agreed to a separation contract and dissolved their marriage in February of 2013. The dissolution decree ordered spousal maintenance "as set forth in the Separation Contract."¹ Section 3.1 of the separation contract required that Kosnoff pay McCormick one-third of his annual income "as maintenance through the tax year in which he retires from the practice of law."² The separation contract also contained several arbitration provisions, including in the spousal maintenance section.

In late 2018, Kosnoff notified McCormick that he planned to retire from practicing law on December 31 of that year. He stopped paying monthly maintenance as of December 31. In April of 2019, he confirmed he had retired as of December 31, 2018.

Also in 2019, a team of lawyers considering sexual abuse litigation against the Boy Scouts of America sought Kosnoff's expertise in handling such cases. According to Kosnoff, he "agreed to provide [his] knowledge and expertise toassist them in their efforts to build a mass-tort case against the [Boy Scouts]."³ That July, Kosnoff appeared on NBC's Today Show to discuss sexual abuse cases against the Boy Scouts. McCormick saw the appearance, found additional media appearances by Kosnoff, and concluded he had not retired from practicing law, and, therefore, still had a duty to pay maintenance. That October, McCormick's attorney wrote to Kosnoff to ask whether he was practicing law and still owed maintenance. Other than acknowledging receipt of the letter, Kosnoff did not respond.

In November, McCormick filed a motion to compel Kosnoff to show cause why he should not be held in contempt, arguing he failed to comply with the spousal maintenance provision of the dissolution decree. Because Kosnoff had relocated to Puerto Rico and could spend up to six months at a time sailing, McCormick also moved for substitute service. Judge Michael Scott granted the motions and set a show cause hearing for December 19, 2019. Kosnoff received the show cause order by e-mail and filed a motion to quash the order authorizing substitute service.

Kosnoff and his attorney appeared before Commissioner Paul Eagle for the show cause hearing. Kosnoff objected to the hearing, arguing he had never been properly served. Commissioner Eagle declined to rule on the question of service because Kosnoff's motion to quash was before Judge Julie Spector, and she was scheduled to consider it the next day. As a result, Commissioner Eagle continuedthe hearing, and McCormick proposed setting it for January 29. The court told the parties to agree on a date and adjourned the hearing.

McCormick's attorney, Brad Evens, immediately attempted to serve process on Kosnoff in the hallway outside the courtroom, but Kosnoff refused and left the courthouse. Kosnoff's attorney took the documents handed to him by Evens. The parties agreed to hold the contempt hearing on January 29, and Commissioner Eagle entered an "alias" show cause order setting a hearing for that day.⁴ Judge Spector later denied Kosnoff's motion to quash.

Kosnoff did not appear at the January 29 contempt hearing before Commissioner Camille Schaefer, although his attorney did. His attorney argued the hearing was improper because Kosnoff was never properly served process and because the arbitration provisions in the separation contract deprived the court of subject matter jurisdiction. Commissioner Schaefer concluded that the dispute was not subject to arbitration and found that Kosnoff was practicing law, was still subject to the dissolution decree, and was in contempt by intentionally violating the dissolution decree. In making its ruling, the court relied on news articles and the "Abused in Scouting" website's discussion of the Boy Scout case.

Kosnoff appeals.

ANALYSIS

I. Service of Process

Kosnoff argues the court erred by granting McCormick's motion for substitute service. McCormick contends the issue is moot because Kosnoff was personally served. Because effective personal service of process is always adequate,⁵ Kosnoff's alleged error is moot if personal service of process was effective.⁶

We review de novo whether service of process was effective.⁷ The plaintiff bears the burden of establishing service was proper.⁸ Once established, the defendant must show by clear and convincing evidence that service was ineffective.⁹

RCW 4.28.080(16) authorizes personal service by delivering process to the defendant personally.¹⁰ CR 4(c) allows "anyone who is competent, over 18 yearsof age, and not a party" to serve process.¹¹ A party's attorney can accomplish personal service on the opposing party.¹² Personal service of process can be effective even if the defendant refuses to accept it.¹³ Because the relevant portion of RCW 4.28.080(16) is substantially similar to Federal Rule of Civil Procedure 4(e)(2), we can look to the federal courts' interpretations of parallel rules for guidance.¹⁴ "Sufficient [personal] service may be found where there is a good faith effort to comply with the requirements of [Federal Rule of Civil Procedure] 4(e)(2) which has resulted in placement of the summons and complaint within the defendant's immediate proximity and further compliance with Rule 4(e)(2) is only prevented by the defendant's knowing and intentional actions to evade service."¹⁵ Personal service under RCW 4.28.080(16), like its federal equivalent, can be effective when service substantially complies with its requirements.¹⁶

Here, Evens announced in the hearing that he intended to personally serve Kosnoff. Once outside the courtroom, Evens immediately attempted to hand Kosnoff a packet containing the show cause order, a motion for contempt, adeclaration in support of the contempt motion, a proposed contempt order, and other documents. Kosnoff hurried past Evens and refused to accept service. Evens handed the documents to Kosnoff's attorney instead and documented those events with a declaration of service. Because a party cannot willfully thwart the judicial process by refusing an otherwise effective service,¹⁷ the unchallenged declaration of service established personal service on Kosnoff himself.¹⁸

Kosnoff argues service was not effective because the show cause order Evens served was dated for the December 19 hearing that had just concluded, and he never received formal service of the January 29 hearing. But this difference is immaterial. The "process" here is the motion to show cause for contempt, and it was served. Adequate notice of the continued hearing date is a separate matter,¹⁹ and Kosnoff fails to show he did not have notice. Kosnoff's attorney agreed to the January 29 hearing date, and "[t]he attorney's knowledge is deemed to be the client's knowledge, when the attorney acts on his behalf."²⁰ Kosnoff knew the rescheduled contempt hearing would be held on January 29. Hecites no authority that the plaintiff must serve a new notice on a defendant when a hearing is continued with both parties present.²¹

Kosnoff was personally served process. Kosnoff knew the contempt hearing was rescheduled for January 29. Because McCormick effected personal service on Kosnoff for the contempt hearing, any issues involving substitute service for the hearing are moot.

II. Contempt

We review a court's decision to hold a party in contempt for abuse of discretion.²² A court abuses its discretion when its decision rests upon untenable factual grounds or was made for untenable legal reasons.²³

Kosnoff argues the court erred by finding him in contempt because, first, the matter was arbitrable; second, the court relied upon inadmissible hearsay evidence; and, third, neither the law nor facts supported a contempt finding.

Kosnoff contends the trial court lacked subject matter jurisdiction to find him in contempt of the dissolution decree because the separation contract requires arbitration. "'Subject matter jurisdiction refers to a court's ability to entertain a typeof case.'"²⁴ Superior courts have the authority to decide motions to enforce maintenance obligations.²⁵ We review a challenge to the court's subject matter jurisdiction de novo as a question of law.²⁶

Kosnoff misunderstands the issue that was before the trial court. McCormick moved for Kosnoff to be held in contempt for failing to comply with the dissolution decree issued by the trial court. Kosnoff raised the availability of arbitration as a defense but never moved to compel arbitration.²⁷ Thus, the issue before the court was whether it had the authority to interpret and enforce the dissolution decree.

King County Superior...