Marriage of Haugh, In re

• Citation: 58 Wn.App. 1,790 P.2d 1266
• Decision Date: 22 May 1990
• Docket Number: No. 9995-4-III,9995-4-III
• Parties: In re the MARRIAGE OF John Roy HAUGH, Appellant, and Florence Ashley Focht, Respondent.
• Court: Washington Court of Appeals

Page 1

58 Wn.App. 1

790 P.2d 1266

In re the MARRIAGE OF John Roy HAUGH, Appellant,

and

Florence Ashley Focht, Respondent.

No. 9995-4-III.

Court of Appeals of Washington,

Division 3, Panel Four.

May 22, 1990.

John Haugh, Seattle, pro se.

Lee B. Vandegrift, Young, Monnette & Vandergrift, Wenatchee, for respondent.

THOMPSON, Judge.

John R. Haugh appeals an order clarifying the military pension award provisions of a decree dissolving his marriage with Florence Ashley Focht (formerly Haugh), and finding him in contempt. We reverse and remand for reclarification of the decree.

Mr. Haugh and Ms. Focht were married on December 30, 1955. The marriage was dissolved on March 13, 1985. The decree awarded custody of their child to Ms. Focht, and made the following provision regarding Mr. Haugh's military pension:

3.9 iPension. The Petitioner [Mr. Haugh] is currently receiving $1,440.00 a month retirement pay from the United States Navy before deductions, for life insurance and federal income taxes. Petitioner's pension is based on 26 years of service and Petitioner and Respondent were married 22 of the years Petitioner was in the armed services. Said 22/26ths of the Naval pension is deemed to be community property. Respondent is awarded $609.23 a month of the Naval pension with the $609.23 to be paid to Respondent by the United States Navy. This is on [sic ] part based on a finding that Petitioner's federal income tax liability will be reduced as a result of the award to Respondent. Until the necessary paper work can be completed so that the payments are received by Respondent directly from the United States Navy, the Petitioner shall be ordered to pay to the Respondent $609.23 a month from his retired pay. The payments received directly from the Petitioner are due by the 15th of each month starting March, 1985.

The parties returned to court 2 years later. They stipulated, among other things, to a change in custody of the child. The court commissioner, after finding the earlier decree failed to account for future increases or decreases in Mr. Haugh's pension, concluded:

4. That in as much as the Court did not determine nor address the effect of any increases or decreases in the gross monthly retirement benefit, this Court must now determine the effect of such increases or decreases based upon the specific findings of the Court at the time of entry of the Decree of Dissolution;

5. That any increase or decrease in the gross monthly retirement benefit should be shared proportionately by Petitioner and Respondent in the following manner: that Respondent should be awarded 42.30% of any increase in the gross monthly retirement benefit and similarly, any decrease in the gross monthly retirement benefit should be shared at the rate of 42.30%;

6. It is clear to this Court that at the time of entry of the Decree of Dissolution, the Court intended that Respondent was to receive approximately half of that portion of the retirement benefit characterized as community property and as such, Respondent should receive the benefits in the same manner of any increases and should suffer the consequences of any decrease in this asset so as to preserve the equitable distribution set forth by the Court in the Decree of Dissolution of Marriage.

This clarification was entered on January 6, 1988. On July 14, 1988, Ms. Focht sought further modification, in part because the Navy refused to make direct payments to her on the basis of the January 6 order. ¹ Also, it had become apparent that the Navy, before allocating the shares of retirement pay, was withholding amounts for federal income taxes on the entire amount, and was reporting the entire retirement pay, and withholding, on Mr. Haugh's W-2 form. ² On April 12, 1989, the court entered the order at issue here. It provided:

2. RETIREMENT CLARIFICATION: ... The Decree of Dissolution of Marriage entered in the above matter, as previously modified, and as previously clarified, is clarified further as follows: The Petitioner's retirement payment from the United States Navy is awarded to the parties as follows:

(a) The Navy shall deduct the appropriate amount of federal withholding tax from the entire gross amount of the retired pay. The Navy shall issue to the Petitioner a W-2 statement each year, which reports the entire gross pay to the IRS as the Petitioner's income. The W-2 statement shall further show the entire federal income tax withheld. Except as provided in this sub-paragraph, the Petitioner shall be solely responsible for and hold the Respondent FOCHT harmless from the federal income tax consequences of the receipt of military retirement pay. The Court finds that the amount withheld by the Navy and reported on the Petitioner's W-2 statement is sufficient to discharge both the Petitioner's and Respondent's federal income tax liability for receipt of the retired pay, except for an average deficiency of $525.00 per year. The Petitioner should be responsible for 57.7% of the average deficiency and the Respondent should be responsible for 42.3% of the average deficiency. Therefore, the Respondent FOCHT shall pay to the Petitioner, no later than the 1st day of April each year, commencing the 1st day of April, 1986, the sum of $225.00, which shall discharge her obligation for the deficient income tax payable on the entire gross military retirement pay.... If the withheld amount plus the $225.00 payment from the Respondent results in a refund to the Petitioner, the refund shall be his sole and separate property. If the withheld amount plus the $225.00 payment results in a deficiency owing by the Petitioner, he shall be solely responsible to pay such deficiency and hold the Respondent harmless therefrom.

(b) The Petitioner is permanently restrained from authorizing any deductions from his gross military retirement pay which would result in a lesser disposable retirement pay as defined by the Uniformed Services Former Spouses' Protection Action, Public Law 97-252, as amended, hereafter called the Act.... The Petitioner shall indemnify and hold the Respondent harmless from any authorized deductions from the gross pay which result in lesser disposable retirement pay as defined by the Act, which deductions are made by the Petitioner or by third party creditors of the Petitioner.

....

(d) The Petitioner, JOHN ROY HAUGH, is awarded fifty-seven and seven-tenths percent (57.7%) of his disposable retirement pay from the United States Navy as defined by the Act. The Respondent, FLORENCE ASHLEY FOCHT, is awarded forty-two and three-tenths percent (42.3%) of the Petitioner's disposable retirement pay from the United States Navy as defined by the Act.

Finally, the order held Mr. Haugh in contempt of court for his "wilful obstruction" of Ms. Focht's visitation rights. It sentenced him to 10 days in jail, suspended on the condition that visitation is provided on the previously ordered schedule.

We first address whether the court erred in holding Mr. Haugh in contempt of court. It is unclear precisely what he is challenging here. In his statement of the issues, he appears to contend the court erred in failing to notify him of his right to a jury trial and appointed counsel. He does not support this contention with argument, and instead addresses various factual matters.

Because the factual basis for imposing the contempt sanction is not in the record, it is impossible to review the issues Mr. Haugh raises. The appellant has the burden of perfecting the record so that the court has before it all the evidence relevant to the issue. RAP 9.2(b); State v. Rienks, 46 Wash.App. 537, 544, 731 P.2d 1116 (1987), review denied, 110 Wash.2d 1021, 755 P.2d 173 (1988); Allemeier v. University of Washington, 42 Wash.App. 465, 472-73, 712 P.2d 306 (1985), review denied, 105 Wash.2d 1014 (1986). Also, a contention unsupported by legal argument is deemed waived. State v. Adams, 107 Wash.2d 611, 615, 732 P.2d 149 (1987).

At any rate, the contention lacks substantive merit. There are two basic categories of contempt orders: punitive (criminal) and coercive (civil). State v. Boatman, 104 Wash.2d 44, 700 P.2d 1152 (1985). Both categories require certain, although different, procedural safeguards. In re Marriage of Nielsen, 38 Wash.App. 586, 588, 687 P.2d 877 (1984). If the order is punitive, the person cited for contempt is entitled to a trial by jury, Boatman, 104 Wash.2d at 48, 700 P.2d 1152, but if the proceeding is civil, a jury trial is not required. State v. Browet, Inc., 103 Wash.2d 215, 218, 691 P.2d 571 (1984).

In determining whether a particular contempt sanction is civil or criminal, we look to the substance of the proceeding and the character of the relief that the proceeding will afford. If the purpose of the contempt sanction is punitive and results in a determinate jail sentence, with no opportunity for the contemnor to purge himself of the contempt, it is criminal. If the purpose of the sanction is to coerce compliance with a lawful court order, and a contemnor is jailed only so long as he fails to comply with such order, then the contempt is civil. State v. Browet, Inc., 103 Wash.2d 215, 218, 691 P.2d 571 (1984).

In re King, 110 Wash.2d 793, 799, 756 P.2d 1303 (1988).

In this case, the court's order clearly was coercive. It ordered Mr. Haugh to spend 10 days in jail, but suspended the sentence on condition that he comply with the previously ordered visitation schedule. Mr. Haugh was not entitled to a jury trial.

Even in a civil contempt proceeding, an indigent person is entitled to appointed counsel. Tetro v. Tetro, 86 Wash.2d 252, 254-55, 544 P.2d 17 (1975); In re Marriage of Wulfsberg, 42 Wash.App. 627, 713 P.2d 132 (1986). Here, however, the record does not indicate Mr. Haugh claimed to be indigent, nor does it show he ever requested appointed counsel. His argument on appeal is without merit.

Mr. Haugh next contends the court erred in concluding the original decree required...