Opinion
No. 37794-2-II.
January 26, 2010.
Appeal from a judgment of the Superior Court for Kitsap County, No. 06-2-02800-9, M. Karlynn Haberly, J., entered May 9, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Penoyar, A.C.J., and Hunt, J.
Brenda Bryant petitioned the Kitsap County Superior Court to distribute property that she claimed belonged to her by virtue of her committed intimate relationship with Alex Lopez. Lopez asserted that the two never had a committed intimate relationship and filed a CR 12(b)(6) motion to dismiss Bryant's petition. The trial court denied Lopez's motion but, on February 29, 2008, following a hearing, it found that no committed intimate relationship existed, determined that Lopez alone owned most of the disputed property, and entered a judgment in Lopez's favor including an award of $200 in attorney fees. On May 9, 2008, the trial court found Bryant in contempt of its February 29, 2008 order for failing to return Lopez's property in good condition and imposed $14,807.94 in damages.
Bryant appealed the May 9, 2008 contempt order, claiming that (1) the trial court lacked subject matter jurisdiction to distribute the couple's property in its February 29, 2008 order after finding that Bryant and Lopez did not have a committed intimate relationship, and (2) the court lacked authority to award Lopez any attorney fees. Bryant timely appeals only the May 9, 2008 contempt order and has failed to provide a transcript of the February 2008 proceedings. Thus, we evaluate Bryant's challenges solely on the pleadings and because Bryant's challenges lack merit, we affirm.
FACTS
On December 4, 2006, Bryant filed a pro se petition in Kitsap County Superior Court to dissolve an alleged committed intimate relationship with Lopez and to distribute the couple's real and personal property. On December 28, 2006, Lopez filed a CR 12(b)(6) motion to dismiss which the trial court denied.
On December 29, 2006, the trial court entered a temporary restraining order (TRO) restricting both parties from disturbing the peace or entering the home, work place, or school of the other party. Additionally, the trial court enjoined Lopez from transferring or disposing of any property or changing any insurance policies. The trial court required Lopez to vacate the couple's Port Orchard, Washington residence and permitted Bryant to occupy the residence temporarily. Both parties became responsible for their own future debts and were obligated to pay 50 percent of the mortgage and utilities for the Port Orchard residence. The Port Orchard residence's title is held exclusively in Lopez's name; Bryant contributed only $500 in earnest money at the time it was purchased. On April 13, 2007, the trial court found Bryant in violation of the December 29, 2006 TRO due to a "bank error" and ordered Bryant to pay Lopez $100 in attorney fees. Neither party appealed this ruling.
During oral argument, Bryant confirmed that the title of the Port Orchard residence does not include her name.
A bench trial commenced on February 6, 2008. On February 29, 2008, the trial court entered an order granting Lopez's motion for a directed verdict, finding that the couple did not have a committed intimate relationship. The trial court then awarded Lopez the Port Orchard residence, $200 in attorney fees, and a $3,113.16 judgment for Bryant's failure to pay her mortgage and utility obligations on the Port Orchard residence as required by the TRO. Additionally, the trial court found that the following items at the Port Orchard residence were Lopez's separate property: a GMAC pickup, all major appliances, one 26-inch television, one digital versatile disc/videocassette recorder (DVD/VCR) combo, one 5-foot bird cage containing a large Amazon talking parrot, one 3-foot octagonal oak cabinet fish aquarium base, one queen-size bed, one Craftsman riding lawnmower, one aluminum ladder, one picnic table, four machetes, four shovels, two rakes, two chainsaws, three plastic gas cans, one garden sprayer, one weed wacker, and one 6-foot Jacuzzi jetted tub. Finally, the trial court awarded Bryant the couple's car, finding Lopez had gifted it to Bryant during the relationship. Neither party appealed this order.
The February 29, 2008 court order awards the "7205 Beach Drive, Bremerton, Washington" residence to Lopez. CP at 55 (emphasis added). This appears to be a scrivener's error as every other reference to the residence in the record indicates it is located in Port Orchard, Washington.
After the trial, Bryant indicated she would move from the Port Orchard home by March 3, 2008. On March 4, 2008, Lopez entered his Port Orchard home and found parts of the property destroyed and many of the pieces of personal property awarded to him by the court either missing or damaged. Damage to the Port Orchard home included missing cabinetry, a cracked toilet tank, holes in the walls, a missing mirror, water damage in the bathroom, a broken entry door, a broken microwave, and fish parts left in the dryer.
On March 7, 2008, Lopez filed a contempt motion alleging that Bryant failed to comply with the trial court's February 29, 2008 order by not returning pieces of personal property at the Port Orchard residence and for damaging Lopez's personal and real property; he included photographic exhibits of the damage and requested $11,826 in damages. On April 24, 2008, after filing an insurance claim and receiving an appraisal, Lopez submitted insurance business documents and asked the trial court to amend the requested award amount to $14,807.94.
On May 9, 2008, the trial court held a hearing on Lopez's contempt motion. After hearing Bryant's jurisdictional challenges, the trial court found Bryant in contempt of the February 29, 2008 court order for intentionally failing to comply with requirements to return Lopez's personal property. The trial court also found Bryant "caused damage waste to the property while in her care and control and did not take steps to protect the property and/or she purposely damaged the property." Clerk's Papers (CP) at 110. The trial court based its contempt finding on Bryant's good faith obligation to preserve the Port Orchard home granted to her for use under the TRO. It also relied on Bryant's never having mentioned property damage or waste during the February 2008 trial and her testimony during that proceeding that it was "a lovely home." Report of Proceedings (RP) at 14-15.
The trial court ordered Bryant to return the remaining pieces of personal property awarded to Lopez in the February 29, 2008 order that he had not yet received, including one refrigerator, one 26-inch television, one DVD/VCR combo, one 5-foot bird cage and the large Amazon talking parrot, one queen-size bed, parts of and the keys to the Craftsman lawnmower, four machetes, one rake, two chainsaws, two plastic gas cans, one garden sprayer, one weed wacker, and one 6-foot Jacuzzi jetted tub. The trial court also awarded Lopez $14,807.94 for the damages to his property, but it did not award Lopez attorney fees. Bryant appeals.
DISCUSSION
First, we note that Bryant filed a timely appeal from the trial court's May 9, 2008 contempt order only. Thus, although she attempts to raise issues regarding the trial court's February 29 order, these issues are before us only to the extent that Bryant may argue that the trial court lacked authority to find her in contempt of an invalid order. The collateral bar rule prohibits collateral attacks on a court order in contempt proceedings arising from violations of a court order, because contempt judgments normally stand even if the violated order is later deemed erroneous or invalid. State v. Noah, 103 Wn. App. 29, 46, 9 P.3d 858 (2000), review denied, 143 Wn.2d 1014 (2001). But a contempt order must be reversed if the underlying order is void as it would be if the court lacked jurisdiction to enter it. Noah, 103 Wn. App. at 46.
Bryant contends that the trial court's contempt order is invalid because the trial court lacked subject matter jurisdiction to enter the February 29 order. We disagree. The subject matter jurisdiction of Washington's superior courts is set out in article IV, section 6 of the Washington Constitution. Bryant's claim that the Kitsap County Superior Court lacked subject matter jurisdiction to rule on her dissolution and property distribution petition is baseless.
Article IV, section 6 of the Washington Constitution states:
Superior courts and district courts have concurrent jurisdiction in cases in equity. The superior court shall have original jurisdiction in all cases at law which involve the title or possession of real property, or the legality of any tax, impost, assessment, toll, or municipal fine, and in all other cases in which the demand or the value of the property in controversy amounts to three thousand dollars or as otherwise determined by law, or a lesser sum in excess of the jurisdiction granted to justices of the peace and other inferior courts, and in all criminal cases amounting to felony, and in all cases of misdemeanor not otherwise provided for by law; of actions of forcible entry and detainer; of proceedings in insolvency; of actions to prevent or abate a nuisance; of all matters of probate, of divorce, and for annulment of marriage; and for such special cases and proceedings as are not otherwise provided for. The superior court shall also have original jurisdiction in all cases and of all proceedings in which jurisdiction shall not have been by law vested exclusively in some other court; and said court shall have the power of naturalization and to issue papers therefor. They shall have such appellate jurisdiction in cases arising in justices' and other inferior courts in their respective counties as may be prescribed by law. They shall always be open, except on nonjudicial days, and their process shall extend to all parts of the state. Said courts and their judges shall have power to issue writs of mandamus, quo warranto, review, certiorari, prohibition, and writs of habeas corpus, on petition by or on behalf of any person in actual custody in their respective counties. Injunctions and writs of prohibition and of habeas corpus may be issued and served on legal holidays and nonjudicial days.
Moreover, our review of the pleadings reveals that Bryant asked the trial court to distribute the property. Bryant's original court petition asked for the following relief:
1. The Court determine the properties of the parties subject to distribution[.]
2. The Court determine the indebtedness of the parties subject to allocation.
3. The Court decree a fair and equitable distribution of the meretricious property and a fair and equitable allocation of the meretricious debts.
Our Supreme Court now uses the term "committed intimate relationship" in lieu of "meretricious relationship" because of the latter's inherently negative connotations. Olver v. Fowler, 161 Wn.2d 655, 657 n. 1, 168 P.3d 348 (2007). We similarly adopt the use of "committed intimate relationship."
4. For such other relief as may be appropriate.
CP at 4. Bryant claims that the trial court's dismissal of the committed intimate relationship petition extinguished its authority to distribute "the couple's" property. But Bryant explicitly asked the trial court to determine the property rights and responsibilities of each party without reference to the alleged committed intimate relationship. Thus, Bryant's petition asked the trial court to distribute the couple's property and determine responsibility for the debts listed regardless of whether it found a committed intimate relationship existed. Bryant requested the relief the trial court provided and may not now claim that she lacked sufficient notice of the trial court's property distribution decision.
In addition, the trial court was required to return the Port Orchard residence and the accompanying personal property to Lopez. Bryant sought and obtained a TRO granting her the right to live in the Port Orchard residence despite Lopez's having sole title to the home. When the trial court dismissed Bryant's petition, it ended the TRO and Bryant no longer had any right to occupy the Port Orchard house. The Port Orchard residence belonged solely to Lopez, and the trial court appropriately acted to unwind the TRO and return the Port Orchard home to Lopez. May 9, 2008 Contempt Order
Bryant also asserts that the trial court did not have authority to award Lopez $200 in attorney fees in its February 29, 2008 court order. But a party has only 30 days to appeal a trial court's order or final judgment. RAP 5.2(a), (e). And on June 2, 2008, Bryant appealed only the May 9, 2008 contempt order. Although Bryant asserts that the trial court erred by awarding $10,968.08 in attorney fees to Lopez, the record shows that the trial court found that he incurred that amount in fees but in the February 29, 2008 order, it awarded him only $200. Bryant failed to timely appeal the February 29, 2008 order and we will not consider this issue further.
Bryant challenges the trial court's May 9, 2008 contempt authority arguing that (1) it lacked jurisdiction to enter the February 29, 2008 distribution order and that she cannot be in contempt of an invalid order, (2) collateral estoppel and res judicata prohibited Lopez from filing a contempt motion, (3) the trial court abused its discretion when finding her in contempt, and (4) the damages awarded are not authorized by statute. Having already held that the trial court had jurisdiction to enter the February 29, 2008 property distribution order, we disagree with Bryant's remaining arguments.
A. Collateral Estoppel and Res Judicata
Collateral estoppel bars the relitigation of an issue by a party who has had a full and fair opportunity to present his or her case, even if the subsequent litigation presents a different claim or cause of action. In re Marriage of Mudgett, 41 Wn. App. 337, 342, 704 P.2d 169 (1985). Collateral estoppel applies only if four basic requirements are met: (1) the identical issue was decided in the prior action, (2) the first action resulted in a final judgment on the merits, (3) the party against whom preclusion is asserted was a party or in privity with a party to the prior adjudication, and (4) application of the doctrine does not work an injustice. Hanson v. City of Snohomish, 121 Wn.2d 552, 562, 852 P.2d 295 (1993).
Res judicata bars an action when a "prior judgment has a concurrence of identity in four respects with a subsequent action." Rains v. State, 100 Wn.2d 660, 663, 674 P.2d 165 (1983). "There must be identity of (1) subject matter; (2) cause of action; (3) persons and parties; and (4) the quality of the persons for or against whom the claim is made." Rains, 100 Wn.2d at 663 (citing Seattle-First Nat'l Bank v. Kawachi, 91 Wn.2d 223, 225, 588 P.2d 725 (1978)). The policy underlying res judicata is that a person should be entitled to only one fair adjudication of an issue and not more. See Schoeman v. New York Life Ins. Co., 106 Wn.2d 855, 858-60, 726 P.2d 1 (1986).
Lopez's contempt order is the result not of relitigation of previously heard issues but rather a new determination of whether Bryant complied with the February 29, 2008 court order. Collateral estoppel and res judicata do not bar Lopez's contempt motion.
B. Abuse of Discretion
Bryant next argues that the trial court abused its discretion in its May 9, 2008 contempt order when it found she (1) had possession of the property awarded to Lopez, (2) caused property damage and/or waste, and (3) had the present ability to comply with the order. We disagree.
On appeal, Bryant also claims that she did not fail to comply with the February 29, 2008 court order because it did not explicitly order her to return any property to Lopez. Bryant did not raise this issue at the trial court level based on the record before us and, under RAP 2.5(a), we will not consider this issue for the first time on appeal.
Punishment for contempt of court is within the discretion of the trial court and will not be disturbed on appeal absent an abuse of discretion. Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995). A trial court abuses its discretion by exercising it on untenable grounds or for untenable reasons. In re Marriage of James, 79 Wn. App. 436, 440, 903 P.2d 470 (1995). A decision is based on untenable grounds if the record does not support the factual findings. In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997). We uphold the trial court's factual findings if supported by substantial evidence. In re Marriage of Myers, 123 Wn. App. 889, 893, 99 P.3d 398 (2004). Substantial evidence is evidence sufficient to "persuade a fair-minded, rational person of the truth of the declared premise." Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986).
Here, substantial evidence supports the trial court's findings and the trial court did not abuse its discretion in holding Bryant in contempt. The TRO granted Bryant the exclusive possession and occupancy of the Port Orchard residence where Lopez's personal property was located. For the almost 14-month duration of the TRO, both the house and its contents were under Bryant's sole control and responsibility. After the February 29, 2008 court order, Bryant indicated she would leave the house by March 3, 2008. Lopez went to his home the next day and soon thereafter presented the trial court with a sworn declaration and photographic evidence of extensive real property damage and a list of missing personal property. At the May 9, 2008 contempt trial, the trial court held that Bryant had a duty to preserve the home and belongings of the Port Orchard residence in her exclusive possession under the trial court's December 2006 TRO. Based on this duty and the trial court's recollection that, during the three-day February 2008 trial, Bryant never mentioned any damage or waste to the property, the trial court found her in contempt of court for damaging and failing to return all of Lopez's property. To the extent Bryant challenges the credibility of the evidence before the trial court, we do not review credibility determinations or weigh evidence on appeal. In re Marriage of Meredith, 148 Wn. App. 887, 891 n. 1, 201 P.3d 1056, review denied, 167 Wn.2d 1002 (2009).
During the February 2008 trial, Bryant gave "a glowing description" of a "lovely home." RP at 14-15.
During the contempt proceeding, the trial court stated that an implicit duty of care for both the home and personal property existed that did not need to be explicitly stated in the TRO:
It's inconceivable to me that a court could sign an order placing Ms. Bryant in possession of this home, in Mr. Lopez's name, and she has a right to destroy the home. I mean, there is good faith involved in these kinds of proceedings. . . . She ha[d] an obligation and a duty to preserve the home.
RP at 13. We agree that such a duty exists. See RCW 59.18.130(4), (5) (imposing a duty on tenants to "not intentionally or negligently destroy, deface, damage, impair, or remove any part of the structure or dwelling . . . including . . . furniture, furnishings, and appliances" and to "[n]ot permit a nuisance or common waste" on rental property); RCW 62A.9A-207(a) (imposing a duty of reasonable care on a secured party "in the custody and preservation of collateral in the secured party's possession"); RCW 62A.2-509(3) (imposing a duty of care on a merchant seller for goods until the buyer receives the goods and on nonmerchant sellers until they tender delivery of the goods); Theobald v. Satterthwaite, 30 Wn.2d 92, 95, 190 P.2d 714 (1948) (stating a duty of care falls on a bailee because he possesses the property and has custody and control over it). When one party has possession of property owned by another, a duty of care flows from the possessor to the true owner. Here, Bryant possessed the Port Orchard home and its contents while Lopez had title to the home. Thus, even without explicit direction in the TRO, until she returned everything to Lopez, Bryant had a duty to care for Lopez's home and his personal property located in it.
Furthermore, Bryant asserts only that the trial court lacked authority to enter an enforceable property distribution order; she has never rebutted Lopez's claim that if the property distribution order is valid, she was in contempt of the February 2008 court order when she failed to return Lopez's real and personal property in a condition reasonably similar to the condition it was in when she acquired it or provide a reasonable explanation for any damage (i.e., storm damage). Thus, on the record before us, substantial evidence supports the trial court's finding that Bryant had exclusive possession and control over both the Port Orchard home and its contents and was responsible for the waste and damage that occurred while they were in her care.
The party seeking review, Bryant, has the burden to perfect the record so that, as the reviewing court, we have all relevant evidence before us. Bulzomi v. Dep't of Labor Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994) (citing State v. Vazquez, 66 Wn. App. 573, 583, 832 P.2d 883 (1992)). An insufficient appellate record precludes review of the alleged errors. Bulzomi, 72 Wn. App. at 525 (citing Allemeier v. Univ. of Wash., 42 Wn. App. 465, 472-73, 712 P.2d 306 (1985), review denied, 105 Wn.2d 1014 (1986)).
As for Bryant's argument that the trial court failed to find Bryant had the current ability to fulfill the February 29, 2008 order requirements, finding five of the May 9, 2008 court order states, "[Bryant] has the present ability to comply with the order as follows by providing the missing items of personal; [sic] property. [Bryant] does not have the present willingness to comply with the order." CP at 109. Further, in civil contempt cases, "'the law presumes that one is capable of performing those actions required by the court.'" Moreman, 126 Wn.2d at 40 (quoting King v. Dep't of Soc. Health Servs., 110 Wn.2d 793, 804, 756 P.2d 1303 (1988)). And it is well established in Washington law that the contemnor, here Bryant, has the burden of showing an inability to comply with a court order. Moreman, 126 Wn.2d at 40-41 n. 4 (quoting Smith v. Smith, 17 Wash. 430, 432, 50 P. 52 (1897)). Bryant offers no explanation to support her argument that she lacked the ability to comply with the February 2008 court order other than a brief mention at the May 9, 2008 trial that she was presently unemployed. We fail to see how her employment status in May 2008 limited Bryant's ability to care for and return real and personal property from December 2007 through February 2008. Bryant has failed to meet her burden of rebutting the presumption that a contemnor has the ability to comply with a court order.
C. May 9, 2008 Damages Award
Finally, Bryant asserts that the $14,807.94 damage award in the May 9, 2008 contempt order is not authorized under chapter 7.21 RCW. Although Bryant cites statutes and case law in her brief, she provides no clear argument how this law applies to her particular situation and entitles her to relief. "Without argument or authority to support it, an assignment of error is waived." State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citing Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986)); see also Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 ("Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration."), review denied, 136 Wn.2d 1015 (1998). As we held above, substantial evidence supports the trial court's factual finding that Lopez's property sustained $14,807.94 in damages while in Bryant's care. The photographs Lopez presented at the contempt hearing establish that much of the damage was intentional. We discern no error.
We affirm the trial court's May 9, 2008 order holding Bryant in contempt and awarding Lopez $14,807.94 in damages for the waste and destruction of his property while in Bryant's care. Neither party requested attorney fees on appeal and we award none.
Bryant failed to timely appeal the February 29, 2008 order and it is final.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and PENOYAR, A.C.J., concur.