Opinion
Nos. 60060-5-I; 60160-1-I.
June 9, 2008.
Appeals from a judgment of the Superior Court for King County, No. 98-3-08060-8, Donald D. Haley, J. Pro Tem., entered April 5, 2007.
Affirmed in part, reversed in part, and remanded by unpublished per curiam opinion.
Richard MacGibbon and his attorney challenge Civil Rule (CR) 11 sanctions imposed by a court commissioner in child support and maintenance proceedings arising out of the dissolution of his marriage with his wife Deborah. Richard also contends the commissioner erred by finding him in contempt for failing to obtain required disability insurance. In a consolidated appeal, Richard challenges a later ruling by another commissioner declining to vacate the sanctions imposed by the first commissioner. We hold the first commissioner did not abuse his discretion in imposing CR 11 sanctions for Richard's frivolous motion to eliminate his maintenance obligation. Nor did the second commissioner err in declining to vacate that order. We conclude, however, that the ruling regarding Richard's continuing contempt cannot be sustained because the court did not afford Richard a sufficient opportunity to prove that he could not presently comply with the order. We therefore affirm the award of sanctions and the denial of the motion to vacate, but vacate the portion of the order containing the contempt finding and remand for further proceedings limited to the issue of contempt only.
We use the parties' first names for the sake of clarity.
FACTS
Richard and Deborah MacGibbon were married for approximately 20 years and had six children. After a contentious dissolution trial, the court found that extensive maintenance was appropriate because Deborah had stayed home throughout the marriage to raise the children and support Richard in his lucrative career as an airline pilot. To equalize the parties' post-dissolution standard of living, the court entered a decree of dissolution that orders maintenance based on a formula rather than a fixed sum. Until Richard's 60th birthday in 2009, he must pay Deborah one half of his "gross income from all sources," after deducting child support and income taxes. The decree specifies monthly base rates below which maintenance payments may not fall and sets mechanisms for annually determining the payment amounts. In addition, the decree requires Richard to obtain life and disability insurance with Deborah as the named beneficiary sufficient to pay the base monthly maintenance.
Clerk's Papers at 462.
Since the entry of the decree of dissolution, Richard has filed 12 appeals from the decree and related support and maintenance proceedings. Four are relevant here.
See Nos. 60160-1-I, 60063-0-I, 60060-5-I, 59669-1-I, 57770-1-I, 57223-7-I, 56226-6-I, 54180-3-I, 53981-7-I, 47772-2-I, 47672-6-I and 46304-7-I. See also In re MacGibbon, 383 B.R. 749 (Bkrtcy. W.D. Wash. 2008) (published case arising out of Richard's attempt to discharge his maintenance obligation in bankruptcy court).
In Richard's appeal of the decree, he raised numerous issues, including the trial court's division of property and award of maintenance to Deborah. In December 2001, this court affirmed in most respects in an unpublished opinion, except for a remand for a minor correction regarding child support.
In re Marriage of MacGibbon, noted at 109 Wn. App. 1041, 2001 WL 1565599 (Wash.App. Div. 1 Dec. 10, 2001) (No. 46304-7-I), review denied, 148 Wn.2d 1015 (2003).
In a second appeal, Richard challenged a post-trial finding of contempt for his failure to obtain the required life and disability insurance. With the exception of a minor issue concerning prejudgment interest, this court affirmed.
MacGibbon v. MacGibbon, noted at 109 Wn. App. 1041, 2001 WL 1565872 (Wash.App. Div. 1 Dec. 10, 2001) (Nos. 4762-6-I, 47772-2-I).
While those appeals were pending, Deborah requested assistance from the Division of Child Support (DCS) of the Department of Social and Health Services in collecting unpaid maintenance and support. In administrative proceedings to determine Richard's maintenance obligation for tax year 2000, an administrative law judge (ALJ) ordered that Richard pay Deborah over $90,000 in additional maintenance for that year. To calculate the maintenance obligation, the ALJ included proceeds of Richard's sale of California real property that he received in the dissolution. Richard petitioned for judicial review in superior court, which affirmed the ALJ decision. Richard then appealed to this court, arguing that gross income from all sources under the decree should not include income from the sale of the California property. This court affirmed in a 2005 unpublished opinion, holding that "[u]nder the doctrine of res judicata, Richard is not entitled to a second appeal in order to make new arguments regarding the maintenance ordered by the trial court." The court concluded that Richard's failure to challenge the dissolution decree's maintenance formula in the first appeal precluded raising the issue in the later appeal.
In re Marriage of MacGibbon, noted at 128 Wn. App. 1027, 2005 WL 1579767, at *2 (No. 53981-7-I).
Meanwhile, Deborah sought DCS assistance in recovering past due maintenance for tax years 2001 and 2002. As a result, ALJs determined that Richard's maintenance obligations for those years should be calculated by including proceeds of retirement accounts distributed to Richard, which he intended to roll into new accounts. Richard again unsuccessfully sought superior court review and then appealed to this court. In the course of addressing several issues, in a July 2007 partly published decision, this court affirmed including the retirement funds in the calculation of Richard's maintenance obligation.
See In re MacGibbon, 139 Wn. App. 496, 53 (unpublished portion), 161 P.3d 441 (2007) (Nos. 57223-7-I, 57770-1-I) ("The decree is quite specific in stating that the maintenance shall be based on 'gross income from all sources.' Had the decree meant 'taxable income,' it would have said so.").
With regard to the issues now before the court, in October 2006, Richard filed a motion in the superior court to determine maintenance and child support for 2004 and 2005 and to adjust his 2006 maintenance obligation. Shortly thereafter, Richard also filed a motion to adjust DCS records relating to prior child support payments. A retired judge, sitting as a pro tem commissioner, denied Richard's motions, awarded Deborah attorney fees and reserved ruling on Deborah's request for CR 11 sanctions for another date to follow additional briefing without oral argument. Richard filed a motion for revision, which was denied. The revision judge indicated that if the pro tem commissioner imposed CR 11 sanctions, that judge would hear any resulting motion to revise. Richard filed an appeal of the revision judge's order, but later withdrew the appeal.
Richard suggests in his brief that the revision judge meant to reserve the question of sanctions for himself. That contention is not supported by the record.
See No. 59669-1-I.
In March 2007, Deborah filed her motion for CR 11 sanctions. After considering the written submissions of both parties without oral argument, in a ruling signed on April 5, the pro tem commissioner found that Richard's motions involved issues resolved in previous proceedings, were frivolous and asserted in bad faith, and were part of a continuing effort to avoid payment of monies long due. The court also found that Richard's tactics in these motions were "particularly egregious." The commissioner ordered monetary sanctions under CR 11 against both Richard and his counsel. The commissioner further ordered that because of Richard's continuing contempt for failing to maintain the disability insurance required by the decree, Richard was restrained from further litigation in the case until he purged himself by complying with that requirement.
Clerk's Papers at 744.
See Clerk's Papers at 599.
Richard did not file a motion to revise the ruling, but did file a notice of appeal. He also filed a motion to vacate the CR 11 ruling before a different commissioner. That motion was also denied. Without moving to revise, Richard appealed the denial of that motion. This court has consolidated the two appeals.
CR 11 Sanctions
Richard and his attorney challenge the award of sanctions under CR 11. A grant or denial of sanctions is reviewed for abuse of discretion. A trial court abuses its discretion when its decision or order is manifestly unreasonable, or when discretion is based on untenable grounds or untenable reasons.
Skilcraft Fiberglass v. Boeing Co., 72 Wn. App. 40, 44, 863 P.2d 573 (1993).
State v. Brown, 132 Wn.2d 529, 572-73, 940 P.2d 546 (1997).
Richard first contends that the pro tem commissioner's findings are insufficient to support the sanctions order. The findings are more than sufficient. The court expressly found that Richard's motions were frivolous, were asserted in bad faith and without reasonable cause, and came after multiple prior determinative rulings, so were barred by res judicata. The court further found Richard had harassed Deborah through the courts with the apparent motivation of causing her as much distress and expense as possible as she attempted to defend her interests, and detailed several reasons why Richard's legal arguments were frivolous.
See Biggs v. Vail, 124 Wn.2d 193, 201, 876 P.2d 448 (1994).
Richard faults the trial court for failing to address a declaration he filed from a family law practitioner who opined that Richard's position that only taxable income should be included in the decree's consideration of gross income from all sources was a reasonable argument. In her declaration, however, the attorney acknowledged that she did not review the entire file and did not review the supporting documents for the motions. The trial court's findings indicated that it considered all of Richard's materials. Given the available reasons for discounting the declaration, we find Richard's complaint without merit.
Richard complains that the court failed to examine and make findings upon his "pre-filing inquiry" as required by Doe v Spokane Inland Empire Blood Bank. But it is clear from the findings that the court examined the basis for the motion and found it wanting. Nothing in Doe requires particular language in a finding.
55 Wn. App. 106, 111, 780 P.2d 853 (1989).
Next, Richard contends the findings are not supported by the evidence. He contends his motions were well-founded and therefore could not support an award of sanctions. This argument is frivolous, as were the motions.
Richard's 2006 motion to reduce the maintenance amounts to zero dollars for 2004 through 2006 was the primary issue before the court at the October hearing. According to Richard's documentation, he suffered a job-related injury in December 2003 and most of his income since then consisted of disability benefits. He explained that he had learned only recently, when the Internal Revenue Service answered an inquiry by his employer, that those benefits were nontaxable. Richard took the position that gross income from all sources in the decree meant only taxable income, and therefore asserted that his 2004 income of more than $160,000 in disability benefits resulted in a maintenance award to Deborah of nothing for that year. Similarly, Richard contended that the more than $100,000 in disability benefits he received in 2005 likewise would not be considered, and projected a similar result for 2006. For the same reason, Richard objected to any of his real estate capital gains being considered. He therefore asked the court to determine that he owed no maintenance whatsoever for 2004, 2005, and 2006.
On appeal, Richard fails to acknowledge this central feature of the written motion for which he was sanctioned, and focuses instead on what he argues are other problems with the first commissioner's ruling, which he contends failed to address all of the areas of dispute between the parties. But Richard withdrew his appeal of the revision judge's decision affirming the first commissioner's substantive decision. Accordingly, the other features of that decision apart from its rejection of Richard's request to reduce maintenance retroactively to zero are not before us.
See Clerk's Papers at 539.
Richard's attempts to justify this reading of the decree are untenable and frivolous. To reach his conclusion, he takes half of one paragraph of the lengthy decree provisions addressing maintenance out of context and inaccurately characterizes it as a separate adjustment provision. Richard further overlooks the structure of the maintenance provisions in the decree, ignores the decree's expressed intent that maintenance should equalize the parties' lifestyles, and misreads the prior decisions of this court. The trial court's characterization of Richard's argument as yet another impermissible attempt to litigate the maintenance provision was supported by the evidence. And the inference the court drew regarding Richard's motivation and his counsel's awareness of that motivation is amply supported by the sad history of this case.
For example, the decree clearly contemplated that in the event Richard was injured and his income consisted of disability payments, maintenance would nonetheless continue because it required Richard to maintain disability insurance with Deborah as a named beneficiary in an amount sufficient to pay the base maintenance amount.
Deborah points out additional problems with Richard's submissions in support of his motions; what he claimed were his amended tax returns were unsigned and were not verified as compliant with accepted accounting principles as required by the decree. Richard responds that we should not consider these troubling problems because Deborah did not specifically argue them to the trial court. We need not rule on this basis because, even without considering this argument, the court did not abuse its discretion by imposing sanctions for the above reasons.
Contrary to Richard's contention, the result we reach is not inconsistent with this court's 2007 determination not to award Deborah attorney fees in Richard's last appeal before this one. The two situations are not comparable. In that case, Richard's argument that retirement funds he intended to roll over into new funds should not be considered gross income, though unavailing, was tenable because the distributions would not result in present cash in Richard's pocket. Here, however, it was frivolous to argue that the decree's maintenance provision, expressly structured to provide an equal lifestyle, should result in Richard receiving a substantial income annually while Deborah received nothing.
The trial court's decision to impose sanctions under CR 11 was not an abuse of discretion.
The trial court's CR 11 ruling also briefly references Richard's attempt to adjust DCS records to reflect what he claimed was overpaid child support for the parties' two oldest children in 2001 and 2002. See Clerk's Papers at 110-24. We would affirm the award of the challenged sanctions even without reference to this additional basis, but note that the court's finding that Richard had not factually supported his claim for such an adjustment was well taken. Richard actually withdrew the argument as to one child when Deborah pointed out Richard's error.
Litigation Bar and the Purge Condition for Continuing Contempt
A court may, in its discretion, place reasonable restrictions on a litigant who abuses the judicial process. The history of this litigation clearly establishes abuse of judicial process. But here, the litigation bar was imposed not for abuse of judicial process, but as a sanction for contempt of a specific court order. Richard's years-long noncompliance with this requirement of the decree is well documented. But the rules governing contempt sanctions require us to reverse.
In re Marriage of Giordano, 57 Wn. App. 74, 78, 787 P.2d 51 (1990).
Respondent's brief includes an appendix from the clerk's papers listing the actions filed and orders entered in the dissolution and subsequent related litigation, as of May 15, 2007. Printed in small font and single spaced, the list runs to 10 pages.
The decree required Richard to obtain disability insurance naming Deborah as beneficiary. He has never done so.
Richard contends Deborah had the burden of proving he had not obtained the insurance. On the contrary, the decree plainly requires Richard to prove compliance.
A contempt sanction is appropriate only when the contemnor has the present ability to purge the contempt by complying with the order. Here, the trial court made no finding to that effect, and did not address Richard's claim that because of his present disability he cannot now obtain the required insurance. regarding the child's graduation date, and Richard's own submission provided evidence that the oldest child was enrolled in a high school continuation program when she withdrew from a former school, thus satisfying the condition that she continue in secondary school to receive support.
See Britannia Holdings Ltd. v. Greer, 127 Wn. App. 926, 932, 113 P.3d 1041 (2005) (court may only exercise contempt power on a finding that a person has failed to perform an obligation actually within their power to perform).
Deborah points out that Richard failed to comply for fully three years before late 2003, when he claims to have become disabled. This does not, however create a present ability to comply. Deborah also questions the bona fides of Richard's disability. We reserve such issues for the trial court on remand.
We therefore vacate the contempt portion of the order and remand for a hearing addressing whether Richard has the present ability to purge himself of the contempt.
Motion to Vacate
Richard also contends that the second commissioner erred by denying his motion to vacate the first commissioner's ruling. CR 60(b) allows a court to relieve a party from a final judgment for a variety of reasons, including an irregularity in obtaining the judgment. A trial court's denial of a motion to vacate under CR 60(b) will be overturned on appeal only if the court manifestly abused its discretion.
Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000).
Most of Richard's arguments regarding the motion to vacate merely repeat his unpersuasive arguments rejected above or are moot in light of our resolution of the contempt issue. Remaining are his contentions that the second commissioner should have vacated the earlier ruling because of what Richard claims were irregularities in the first ruling.
To the extent that Richard contends that the second commissioner should have vacated the order because of Deborah's alleged noncompliance with local procedural rules, it has long been held that observation of local rules is largely discretionary in the trial court, which has the inherent power to waive its own rules. A trial court's interpretation of a local rule will not be disturbed unless the interpretation was clearly wrong, or an injustice has been done. We find no such error here.
Raymond v. Ingram, 47 Wn. App. 781, 784, 737 P.2d 314 (1987); Snyder v. State, 19 Wn. App. 631, 637, 577 P.2d 160 (1978).
Snyder, 19 Wn. App. at 637.
Richard also contends the second commissioner should have vacated the first commissioner's CR 11 ruling because of a court delay in mailing the order to the parties. Although the first commissioner's ruling was dated April 5, Richard's counsel asserted that he did not receive his copy until seven days later. As a result, he argued, he was unable to file a motion for revision within the ten days allowed by statute.
Richard does not address the second commissioner's finding of fact in response to that argument:
Mr. McGlothin failed to timely file a [m]otion for [r]evision when he had the ability to do so. Mr. McGlothin had a responsibility to his client to control his workload and to maintain his docket so that all of his cases can be handled competently. Counsel failed to do this and then tried to minimize his responsibility, and penalize Ms. MacGibbon, through this CR 60 motion.
Clerk's Papers at 765-66.
Because Richard did not assign error to this finding, it is a verity. Moreover, as Deborah pointed out to the trial court, Richard's counsel actually had three working days and a weekend in which to file a motion to revise, which could have been as simple as placing an appropriate cover document on the existing pleadings. We see no irregularity compelling the second commissioner to grant Richard's requested relief.
Fuller v. Empl. Sec. Dep't, 52 Wn. App. 603, 606, 762 P.2d 367 (1988).
In his reply brief, Richard argues the court should strike the statement of the case and appendix in Deborah's response brief. His motion is denied, as it is not properly presented in a brief. RAP 17.4(d). We note, however, that we are well aware of the extent to which both parties have filed argumentative statements of the case in their briefs. We also note that contrary to Richard's contention, the appendix to Deborah's brief about which Richard complains is an accurate representation of a portion of the trial record. See Clerk's Papers at 1531-40.
Attorney Fees on Appeal
Deborah requests fees on a number of bases. Although the bulk of Richard's claims lack merit, his challenge to the contempt portion of the trial court's order was partly meritorious. The appeal itself is therefore not frivolous. We decline to award fees for the appeal.
conclusion
The award of CR 11 sanctions was not an abuse of discretion, nor was it error to decline to vacate that order. Those rulings are affirmed. The portion of the order containing the contempt finding is vacated and remanded for further proceedings limited to the issue of contempt only.
FOR THE COURT: