Opinion
No. 62151-3-I.
March 9, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-3-00700-5, James H. Allendoerfer, J., entered June 18, 2008.
Affirmed by unpublished per curiam opinion.
The trial court has the authority to enforce the provisions of a property disposition in a dissolution decree as long as it does not modify the decree. Because the commissioner's order directing the ex-husband to keep current on the mortgage or sell or refinance the home did not modify the decree, we affirm.
FACTS
In July 2006, the trial court signed a decree dissolving the marriage of Matthew and Jennifer Beals and awarding the family home in Edmonds to Matthew, subject to Jennifer's lien of $41,000. The decree also provides:
Husband shall have as his sole and separate debt and hold the Wife harmless from all liability thereof: All encumbrances, liens, debts, liabilities, and/or other legal duties attached to any property awarded to him herein, including the first and second mortgage on the family home.
In May 2008, Jennifer filed a motion seeking an order directing Matthew to keep current on the mortgage payments or sell the home. In the motion, she claimed that since entry of the decree, Matthew "has made nearly every payment late and several times he has been more than two months behind." In support, she filed a declaration stating that her credit has been "ruined as a direct result of this nonpayment of the mortgage" because she is still on the loan and Matthew refuses to refinance or sell the home. She contended that the possibility of foreclosure put her credit at further risk and also threatened her $35,000 lien. Jennifer also included mortgage account statements indicating late payments. She asked the court to enforce the hold harmless provision in the decree.
The parties agree that $6,000 of the original lien has been satisfied.
In response, Matthew filed a declaration stating that 1) the decree clearly awarded him the home and did not require sale, was not appealed, and cannot be modified on the motion calendar; 2) his cash flow is irregular for his work as an independent contractor and he pays the mortgage when he has funds available; and 3) he and his fiancée intend to refinance the mortgage.
A commissioner entered the following order:
Matthew Beals will bring the mortgage current by July 3, 2008. If the mortgage is not paid by the 14th of any month it is due the home will be immediately placed on the market and sold for an amount that will at least cover the Petitioner's $35,000 lien. The father can also opt to refinance the home. Meaning the first time he misses a payment as of July 2008 the home will be sold or refinanced.
Matthew appeals.
DISCUSSION
Relying on In re Marriage of Bobbitt, Matthew contends the commissioner lacked authority to order him to sell the house. The trial court awarded Bobbitt a parcel of real property in the dissolution of his marriage to Esser. Bobbitt listed the property for sale. When Esser learned that Bobbitt was not making mortgage payments, she voluntarily brought the payments current, paid back taxes, and continued to make payments on the property. Two years later, a purchase offer was made, and Esser sought and obtained a court order allowing her sell the property and retain the proceeds to satisfy her judgments against Bobbitt, including back child support and attorney fees. This court determined that the trial court's order was an improper modification of the property division because Esser had no legitimate post-dissolution claim to the property or the proceeds from the sale. Also, she need not have paid Bobbitt's obligations on the property as "[n]o foreclosure action was instituted that would have affected her credit rating."
135 Wn. App. 8, 144 P.3d 306 (2006).
Bobbitt, 135 Wn. App. at 14.
Bobbitt, 135 Wn. App. at 14.
Bobbitt, 135 Wn. App. at 14-15.
Bobbitt, 135 Wn. App. at 17-18.
Bobbitt, 135 Wn. App. at 18.
But here, Jennifer claimed that Matthew's failure to timely pay the mortgage was harming her credit score and risking a foreclosure. She did not seek any interest in the property or the proceeds of any sale beyond that awarded her in the decree. Instead, she asked the court to enforce the hold harmless provision contained in the decree. The trial court has the power to enforce the provisions of the decree as long as in so doing it does not modify the decree. A decree is modified when rights given to one party are extended or reduced beyond the scope originally intended.
See, e.g., In re Marriage of Greenlee, 65 Wn. App. 703, 710, 829 P.2d 1120 (1992) (under hold harmless clause of dissolution agreement, respondent had clear legal right, which was enforceable in court, to be held harmless with respect to claim against former husband).
Greenlee, 65 Wn. App. at 710.
In re Marriage of Thompson, 97 Wn. App. 873, 878, 988 P.2d 499 (1999).
The decree assigned the obligation for the mortgage to Matthew. By ordering Matthew to make timely payments of the mortgage, the commissioner did not extend or reduce any right or obligation beyond the scope originally intended. And, contrary to Matthew's assertion, the order does not require the sale of the home even in the event of a late payment. Instead, the order provides that Matthew may choose to refinance the loan. Because the commissioner's order was an enforcement of the property division, rather than a modification, the court did not violate RCW 26.09.170.
RCW 26.09.170(1) provides in pertinent part: "The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state."
Matthew also assigns error to the following finding of fact in the commissioner's order denying reconsideration: "Ex-husband has failed to pay the mortgage to the detriment of the ex-wife who is still on the mortgage. This greatly affects her credit rating." Matthew contends that this finding is not supported by adequate evidence. But Matthew did not dispute Jennifer's statement in her declaration that her "credit score is still ruined as a direct result of this nonpayment of the mortgage." Because the commissioner was entitled to rely on Jennifer's declaration, we will not disturb this finding on appeal.
In re Marriage of Lutz, 74 Wn. App. 356, 370-71, 873 P.2d 566 (1994).
Jennifer also presents a bare request for attorney fees on appeal in the introduction and conclusion of her brief, with no argument or citation to authority regarding the grounds for fees. We therefore deny her request for attorney fees on appeal.
RAP 18.1(b); Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998).
Affirmed.