Opinion
66463-8-I
09-17-2012
In the Matter of the Marriage of MICHAEL A. TIPPIE, Appellant, v. MARY V. WILSON, Respondent. and
UNPUBLISHED OPINION
Ellington, J.
In this action to enforce a dissolution decree, a court commissioner found Michael Tippie in contempt and the superior court denied his motion to revise. Contrary to Tippie's assertions on appeal, the contempt order is supported by adequate findings, the challenged findings are supported by substantial evidence, and the alleged deficiency in the purge clause is not supported by the record. We therefore affirm.
FACTS
Tippie and Mary Wilson married in 2002 and divorced in 2008. The dissolution court awarded Tippie the family home, which was appraised at $550,000. The property was encumbered by a first mortgage with Chase Home Finance, LLC, and a line of credit with Flagstar Bank. The dissolution decree required Tippie to "assume, pay, indemnify and hold [Wilson] harmless from the mortgages" and to "make a good faith effort to obtain releases of [Wilson] from the foregoing obligations and pending release, . . . make all payments thereon on or before the due dates of such payments." The decree also awarded Tippie his separate property cabin, which was valued at $60,000.
Clerk's Papers at 142.
On September 9, 2010, Wilson filed a motion to enforce the decree, to hold Tippie in contempt, and to impose sanctions, including authorization for Wilson to sell the family home and some of Tippie's assets under CR 70. In a supporting declaration, she claimed Tippie had not made good faith efforts to refinance and release her from the mortgages as required by the decree. She alleged that in March and July of 2009, Tippie told her he was not obligated to refinance with an unfavorable rate, that rates were too high, and that his credit score was too low to obtain a good rate. According to Wilson, Tippie earned $160,000 a year during this period. He then lost his job in September 2009, stopped making mortgage payments in early 2010, and listed the home for sale in March 2010. In August 2010, Chase issued a notice of trustee's sale, which it set for November 29, 2010. Wilson alleged that she contacted Flagstar and learned that if Chase foreclosed, Flagstar would look to her for the balance remaining on its mortgage.
On September 23, 2010, a court commissioner held the first of three hearings on Wilson's motion. Tippie stated under oath that he had made good faith efforts to refinance and/or sell the family home. He alleged that one month after entry of the dissolution decree, his company began deferring half of his salary. His employment terminated in September 2009, without payment of back wages. He was unemployed between September 2009 and October 2010. He listed the family home for sale in March 2010, but had been unable to sell it. He had intended to refinance the mortgages as soon as his former employer paid him his back wages, but that payment never occurred. He denied willfully disobeying the provisions of the decree and insisted he simply lacked the financial ability to comply.
The commissioner entered an order enforcing the decree, but reserved Wilson's requests for a contempt order and CR 70 authority for future hearings. The commissioner ordered Tippie to relist the home for sale, to provide the court with verification of the liquidation or status of his assets, including the status of a lien on his cabin for a loan from his former girlfriend, and to return funds to his son's GET account that he had transferred to his step-daughter's account. The commissioner restrained Tippie from selling or encumbering his assets.
On October 7, 2010, the commissioner held a review hearing. Tippie said the original listing agent for the family home dropped the listing shortly after the first hearing and that he had only recently found a new agent. He also provided a document indicating that he owed $18,193 on the cabin loan. Wilson's counsel told the commissioner it had been difficult to find a new listing agent for the home because agents insisted the parties meet with a real estate attorney regarding a short sale, but Tippie "made it clear that he . . . will meet, but he will not pay. He will not contribute a nickel to any of the costs that would be necessary to move this process along."
Report of Proceedings (RP) (Oct. 7, 2010) at 14.
Counsel also pointed out that while Tippie had transferred funds back to his son's account as directed by the court, he had waited until the day before the review hearing to do it.
After indicating her dissatisfaction with Tippie's efforts, the commissioner expressed hope that a short sale of the family home would occur in the near future and set another review hearing for October 28, 2010.
At the October 28 hearing, Wilson's counsel stated that Tippie had just started a new job paying $5,000 a month with a $2,000 monthly expense account. Counsel alleged that when he suggested Tippie could start making mortgage payments with his new salary, Tippie said he could not afford to. Tippie told the commissioner that his former girlfriend had issued a notice of default and intended to foreclose her lien on his cabin. The commissioner and Wilson's counsel noted, respectively, that it was "interesting" and "suspicious" that the former girlfriend loaned Tippie money when he was unemployed, but now that he had a job, she was serving a notice of a default.The commissioner suggested Tippie could put the cabin on the market and use the equity to make payments on the mortgages, but Tippie replied that it would be hard to sell because the cabin would soon be inaccessible due to snow.
RP (Oct. 28, 2010) at 9.
The commissioner then found Tippie in contempt, ruling in part as follows:
There is contempt with regard to taking all reasonable steps to comply with the order, which has resulted in the foreclosure process of the former family home, and the . . . significant potential of liability, on the part of Ms. Wilson, given there was no refinance done and there was never an effort to take her off of the loan, any--there was not appreciable effort made. And at this point in time, there has been, as indicated, some steps taken to market the home and to list the home, but there continues to be substantial reluctance to be pro-active in taking the steps necessary, to limit the liability of Ms. Wilson.
The Court has provided a significant period of time here to get things moved forward, and, as indicated, there have been some steps taken, the Court is appreciative of that fact. The Court does not feel that there has been a showing that all reasonable steps have been taken, and, in fact, now . . . that there has been employment secured that there has been still either no payments made on the Flagstar account and/or efforts to make interest payments, apparently, on the cabin, which is a source of funds, potentially, to pay the Flagstar, and get Ms. Wilson out from under her liability in this matter. The Court feels that there has been a knowing and willful failure dealing with the decree.
RP (Oct. 28, 2010) at 14-15.
The commissioner ruled that the contempt could be purged either "by bringing the Chase and Flagstar obligations allocated to him in the Decree current and obtaining the release of [Wilson] from said obligations, or by taking the steps listed on page 5." The latter alternative required Tippie to maintain the payments on the Flagstar mortgage to avoid default, make interest payments on the cabin debt, make a good faith effort to delay foreclosure pending a sale of the cabin, confirm full efforts to market the family home, complete a financial package for a short sale application, and take no further advances on the cabin loan except to apply against the Flagstar debt.
Clerk's Papers at 3.
The commissioner imposed contempt sanctions, including a $100 penalty, attorney's fees, and an order granting Wilson authority under CR 70 to execute a short sale of the family home, sell Tippie's securities, exercise his stock options, and sell his cabin.
The commissioner's order recited that the contempt sanctions were appropriate under chapters 7.21, 26.09, 26.10, 26.26 RCW, and/or RCW 26.18.040.
Tippie moved to revise the commissioner's ruling, and the superior court denied the motion. He appeals.
DISCUSSION
We review contempt rulings for abuse of direction and will uphold a contempt finding "'as long as a proper basis can be found.'" In dissolution proceedings, a contempt order must include a finding that the contemnor's failure to comply with prior orders was either intentional or done in bad faith. The prior orders "must be strictly construed in favor of the contemnor, " and "[t]he facts found must constitute a plain violation of the order." When, as here, an appeal is taken from an order denying revision of a court commissioner's decision, we review the superior court's decision, not the commissioner's.
Trummel v. Mitchell, 156 Wn.2d 653, 671–72, 131 P.3d 305 (2006).
Stella Sales, Inc. v. Johnson, 97 Wn.App. 11, 20, 985 P.2d 391 (1999) (quoting State v. Boatman, 104 Wn.2d 44, 46, 700 P.2d 1152 (1985)).
In re Marriage of James, 79 Wn.App. 436, 440, 903 P.2d 470 (1995); In re Marriage of Davisson, 131 Wn.App. 220, 225-26, 126 P.3d 76 (2006).
Stella Sales, 97 Wn.App. at 20.
Johnston v. Beneficial Mgmt. Corp. of America, 96 Wn.2d 708, 713, 638 P.2d 1201 (1982).
In re Marriage of Williams, 156 Wn.App. 22, 27, 232 P.3d 573, 575 (2010); In re Estate of Wright, 147 Wn.App. 674, 680, 196 P.3d 1075 (2008).
Tippie first contends the superior court failed to make adequate findings of fact. We disagree.
Although the superior court did not enter its own findings and conclusions, a denial of revision constitutes an adoption of the commissioner's decision and findings.The commissioner's findings in this case are set forth in her written order and oral ruling. Contrary to Tippie's assertions, the commissioner made the requisite finding that his failure to comply with prior orders was either intentional or done in bad faith. The court expressly found in its written findings that Tippie "willfully" failed to take all reasonable steps to comply with prior court orders.
In re Dependency of B.S.S., 56 Wn.App. 169, 171, 782 P.2d 1100 (1989).
Tippie also claims the court failed to make a finding that he had the current ability to perform the acts previously ordered. A court may impose remedial contempt sanctions only if it finds that the person "has failed or refused to perform an act that is yet within the person's power to perform." The law presumes that a person is capable of performing the actions required by a court, and the defendant has the burden of both production and persuasion as to any claimed inability to comply. The clerk's minute entry in this case states:
Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995)).
PROCEEDINGS/COURT'S FINDINGS:
The court finds a knowing and willful failure to take steps to comply with the decree . . . . [N]ow that petitioner has secured employment, no payments are being made on the Flagstar account, nor efforts to make interest payments on the cabin which is a source of funds potentially to pay the Flagstar account and get respondent's liability off that. . . . Based on the [current] employment contract and the sums available there, the court does not have any information that it is not possible for petitioner to make the Flagstar payments.
Clerk's Papers at 20-21. The minute entry tracks the court's oral opinion. See RP (Oct. 28, 2010) at 14-15.
These findings demonstrate that the court found Tippie had the current ability to comply with its prior orders and that he had not demonstrated otherwise.
See State v. Mecca Twin Theater, 82 Wn.2d 87, 92-93, 507 P.2d 1165 (1973) (while formal finding of present ability to comply is preferred, remand is unnecessary where the finding is inferable from the record); In re Guardianship of Wells, 150 Wn.App. 491, 500-02, 208 P.3d 1126 (2009) (although trial court entered no written finding on current ability to comply with orders, review of transcript and order of contempt showed that court implicitly made the finding). Furthermore, even if a written finding were required on this point, the absence of such a finding would be deemed to be a finding against the party with the burden of proof. Pacesetter Real Estate, Inc. v. Fasules, 53 Wn.App. 463, 475, 767 P.2d 961 (1989). It is the alleged contemnor's burden to demonstrate the inability to comply with court orders. Mecca Twin Theater, 82 Wn.2d at 92.
Tippie next contends the finding that he willfully disobeyed the decree is contrary to the record and evidence demonstrating his inability to comply. We review findings of fact to determine whether they are supported by substantial evidence. The challenged finding is supported by substantial evidence.
Williams, 156 Wn.App. at 28.
The court found that Tippie willfully failed to comply with decree provisions requiring him to hold Wilson harmless from the mortgage debt, to "make a good faith effort to obtain releases of [Wilson] from the [mortgage] obligations and pending release, . . . [to] make all payments thereon on or before the due dates of such payments." This finding is supported by Wilson's declaration in support of her motion to enforce the decree. As noted above, Wilson alleged that during the first six months after entry of the decree, Michael refused to refinance the mortgages because he felt the rates were too high. She also quoted a letter from her lawyer to Tippie's counsel that recounted Tippie's inadequate efforts to refinance or release Wilson prior to losing his job. Wilson alleged that Tippie was earning $160,000 a year during this period.
Clerk's Papers at 142.
The challenged finding is also supported by evidence that, despite a new job and substantial equity in his cabin, Tippie had made no recent efforts to resume payments on, or to renegotiate the status of, the family home mortgages or the cabin loan. Tippie could have put his cabin on the market but had not done so. He did not dispute that his new job paid $5,000 a month and came with a $2,000 monthly expense account. As noted above, it was Tippie's burden to prove his inability to comply with the prior court orders. He offered little proof that he could not resume making payments on the debts or prevent foreclosure of the cabin loan, and the court found that his explanations were not credible.
A contemnor must "'offer evidence as to his inability to comply and the evidence must be of a kind the court finds credible.'" Moreman, 126 Wn.2d at 40-41 (quoting In re Pers. Restraint of King, 110 Wn.2d 793, 804, 756 P.2d 1303 (1988)). Credibility determinations are the province of the trial court and are not reviewable on appeal. State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).
Finally, Tippie argues that the purge clause in the contempt order did not afford him a sufficient opportunity to purge the contempt. Specifically, he contends the "order . . . to repay the past due mortgage debt within two weeks of the Order did not allow Petitioner the opportunity to clear the Contempt." But the purge clause contains no time limit. Tippie admits as much, stating in his reply brief that "[i]n the absence of any specified timeline, this would mean to make up the deficit by the next due payment."Tippie cites nothing supporting this interpretation of the order. He thus fails to establish any deficiency in the purge clause.
Appellant's Br. at 24.
Reply Br. at 10.
Tippie also states that "[i]n light of bankruptcy law, the contentions that Respondent has brought before the Washington state courts under the CR 70 action should be deferred to the Federal Court and should be vacated at this time in WA State Court." Appellant's Br. at 28-29. Wilson contends we should not consider this claim because it involves matters outside the record and, in any event, is not supported by meaningful analysis or authority. We agree with Wilson. See Saunders v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (courts need not consider issues unsupported by adequate argument and authority). In addition, we note that in response to this court's inquiry regarding the status of any bankruptcy stay, the parties indicated that Wilson's bankruptcy petitions were voluntarily dismissed and that no bankruptcy proceedings are currently pending.
The superior court did not abuse its discretion in denying Tippie's motion to revise the commissioner's order of enforcement and contempt. We deny both parties' requests for attorney fees on appeal.
Affirmed.