Opinion
No. 28976-1-III.
Filed: May 5, 2011.
Appeal from a judgment of the Superior Court for Spokane County, No. 08-3-01109-5, Linda G. Tompkins, J., entered March 25, 2010.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, C.J., and Korsmo, J.
The trial court here refused to revise a commissioner's ruling that denied a motion to enforce an agreement modifying a final parenting plan. Like other decisions in family law cases, we are reluctant to change the trial court's decision absent abuse of discretion because the parties' emotional and financial interests are best served by finality. In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985). We conclude the court did not abuse its discretion here, affirm its decisions, and award costs to the respondent.
FACTS
Denise Wilkie (nka Denise Hoffman) and Gregory Wilkie divorced in April 2009. Their final parenting plan provided that their two children would live with Ms. Wilkie during the school year but would visit Mr. Wilkie every other Friday to Sunday, every Wednesday evening before the weekend visit, and every Wednesday to Thursday after the weekend visit:
We refer to the appellant as Ms. Wilkie in accordance with the original case caption.
Upon enrollment in school, the children shall reside with [Ms. Wilkie], except for the following days and times when the children will reside with or be with the other parent:
From 3:00 p.m. Friday to 7:00 p.m. Sunday every other week
and
From 3:00 p.m. to 8:00 p.m. on the Wednesdays before the weekend the children are to spend with the father. From 3:00 p.m. Wednesday to 8:00 a.m. Thursday (overnight) on the Wednesdays before the weekend the children are to spend with the mother.
Clerk's Papers (CP) at 2. Mr. Wilkie was to transport the children to and from these visits as long as he lived four blocks away from Ms. Wilkie. The transportation arrangement could be modified if either party moved.
Mr. Wilkie moved to Davenport in June 2009. His attorney informed Ms. Wilkie's attorney by letter on November 4 that Mr. Wilkie wanted to change the parenting plan's "transportation language to say the receiving parent shall provide the transportation." CP at 14. Ms. Wilkie's attorney responded in a November 30 letter that Ms. Wilkie "would be willing to provide transportation from Davenport if Mr. Wilkie desires to move up the exchange time by 30 minutes so that the children arrive home at the same time." CP at 15-16. Mr. Wilkie's attorney, by letter on December 7, then offered two solutions to the transportation issue:
1) Ms. [Wilkie] may pick up the children at 7:30 p.m. on Wednesday evening in exchange for a 7:30 pick-up time on Sunday evenings during the school year. This would shorten [Mr. Wilkie's] Wednesday visitation by one-half hour, but he would make up that time on Sunday evening by extending the pick-up time to 7:30 p.m.
2) In the alternative, Mr. Wilkie would suggest that his weekend visitation during the school year be extended to Monday morning rather than Sunday evening and he will bring the children directly to school. If this schedule is adopted, it would take the place of the current Sunday and Wednesday evening visitation during the school year.
CP at 17.
Ms. Wilkie accepted the second option by letter on January 12, 2010. She assumed the change would take effect that weekend. And she confirmed that the change would affect the school schedule only, that "Mr. Wilkie will extend his weekend until Monday morning when he will bring the children to school," and that "[p]er the terms of your letter/offer, the Wednesday evening mid-week will be eliminated." CP at 19.
In a letter dated January 15, Mr. Wilkie's counsel requested that the new schedule begin the week of January 22. The attorney also confirmed that "[Mr. Wilkie] will not have the children that following Wednesday, January 27, but will keep them over until Monday morning February 1 when he receives them on Friday the 29th. He will deliver them to school that morning and the Wednesday visitation will not start again until the school year has ended." CP at 20; Report of Proceedings (RP) (Mar. 25, 2010) at 17.
On January 19 (the next business day), Mr. Wilkie's attorney informed Ms. Wilkie's attorney that there might have been confusion about Mr. Wilkie's request to change the parenting plan. Counsel for Mr. Wilkie clarified that, under the second solution to the transportation issue, the children would stay with Mr. Wilkie every other Friday to Monday and visit him every Wednesday evening:
OPTION #2
From 3:00 p.m. Friday to 8:00 a.m. Monday morning every other week.
From 3:00 p.m. to 7:30 p.m. EVERY Wednesday. (in this option, only the Wednesday overnights are moved to Sunday overnights. Mr. Wilkie would still have EVERY Wednesday with the kids like he does now, just no overnight during the week.)
CP at 22.
Ms. Wilkie's attorney replied that Mr. Wilkie's original offer and follow-up correspondence clearly showed he traded his Wednesday evening visits during the school year for an extra overnight on his weekends. Counsel wrote, "There is offer and acceptance and this is a binding agreement." CP at 23.
Ms. Wilkie moved to enforce the agreement. A commissioner concluded there had been no mutual assent and denied the motion. Ms. Wilkie moved to revise the commissioner's ruling. The revision hearing was set for March 18. On March 17, Ms. Wilkie asked Mr. Wilkie to agree to a continuance; Mr. Wilkie refused. Ms. Wilkie did not notify the trial court of the motion's ready status, and the court struck the motion from the docket. Ms. Wilkie appeared through counsel on March 18 and requested a continuance. Mr. Wilkie objected to a continuance because Ms. Wilkie failed to inform the court of her motion's ready status. The trial court agreed that "[t]he failure to call in ready [wa]s a problem" and said it would consider sanctions. RP (Mar. 18, 2010) at 15. It then reset Ms. Wilkie's revision motion for March 25.
On March 25, the trial court noted that the matter would be reviewed de novo and heard argument. It then advised Ms. Wilkie's attorney that it did not consider the supplemental memorandum she had filed that day. The court ultimately found no mutual assent, concluded there had been no agreement, and denied Ms. Wilkie's motion to revise the commissioner's ruling:
I recognize that the parties did intend and attempt to begin a process of negotiations on terms not only of the transportation . . . but any adjustments that may need to be made to the schedule based on the additional distance.
Here I am satisfied that the matter was somewhat clouded, if you will, by various versions and some typographical errors as to references to terms and or dates and the final analysis that there was no meeting of the minds is appropriate. . . . I don't want to enforce a settlement that was not subject to all of the formalities of Rule (2), nor to infer that these efforts were not valuable. They were, but they did not result in any sort of memoralization [sic] of an offer acceptance, revocation.
RP (Mar. 25, 2010) at 23. The trial court also sanctioned Ms. Wilkie $300 for failing to confirm her motion's ready status; the failure had caused the court to strike the matter from the March 18 docket and "an unnecessary incurring of attorney time and court time" at the March 18 hearing. RP (Mar. 25, 2010) at 24.
The trial court requested that Mr. Wilkie's attorney prepare the order denying Ms. Wilkie's motion. The court said the order "can be just a two sentence order. The revision is denied and 300.00 terms are imposed for the required rescheduling from the March 18th hearing." RP (Mar. 25, 2010) at 26. The written order includes these terms and incorporates the trial court's oral ruling. It also states that "the requested revision should be denied for lack of abuse of discretion by the Commissioner's original decision." CP at 99.
Ms. Wilkie appeals the order denying her motion to revise the commissioner's ruling.
DISCUSSION
Standard of Review
"Once the superior court makes a decision on revision, 'the appeal is from the superior court's decision, not the commissioner's.'" State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004) (quoting State v. Hoffman, 115 Wn. App. 91, 101, 60 P.3d 1261 (2003)). The superior court here entered a decision on revision. That, then, is the decision we review. And we review it for abuse of discretion. In re Marriage of Dodd, 120 Wn. App. 638, 644, 86 P.3d 801 (2004). Trial Court Reviewed Commissioner's Ruling De Novo
Ms. Wilkie first contends the court applied the wrong standard of review. We review that question of law de novo. Qwest Corp. v. Wash. Utils. Transp. Comm'n, 140 Wn. App. 255, 259, 166 P.3d 732 (2007).
When reviewing a court commissioner's ruling, a trial court reviews the record before the commissioner de novo. Ramer, 151 Wn.2d 106; In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). This standard of review allows the trial court to determine its own facts from the commissioner's record and requires no deference to the commissioner's ruling. Iturribarria Perez v. Bazaldua Garcia, 148 Wn. App. 131, 138, 198 P.3d 539 (2009); Dodd, 120 Wn. App. at 645. The trial court, however, may adopt the commissioner's findings, either implicitly or explicitly. In re Estate of Larson, 36 Wn. App. 196, 674 P.2d 669 (1983), rev'd in part on other grounds, 103 Wn.2d 517, 694 P.2d 1051 (1985); In re Marriage of Bralley, 70 Wn. App. 646, 855 P.2d 1174 (1993); In re Dependency of B.S.S., 56 Wn. App. 169, 782 P.2d 1100 (1989).
Ms. Wilkie asserts that the trial court's order shows the trial court reviewed the commissioner's ruling for abuse of discretion. The order says "the requested revision should be denied for lack of abuse of discretion by the Commissioner's original decision." CP at 99. But the trial court's oral ruling (which the written order incorporates) shows the court applied the correct standard of review — the de novo standard. And the trial court did not simply defer to the commissioner's decision and review the record for substantial evidence. It considered the various letters in evidence, found that those letters did not establish mutual assent and, based on that finding, concluded that there was no contract. RP (Mar. 25, 2010) at 23. The trial court, then, reviewed the commissioner's ruling under the correct standard of review. Trial Court Not Required to Consider Memorandum of Authorities
Ms. Wilkie also contends that the trial court erred by not considering the memorandum of authorities she filed to support her revision motion. She says a party must be allowed to file a memorandum of authorities to show the trial court where the commissioner erred. She argues that a revision motion is like a summary judgment motion and points out that memoranda of authorities are appropriate in a summary judgment proceeding. We generally review de novo the interpretation and application of court rules and statutes. Spokane County v. Specialty Auto Truck Painting, Inc., 119 Wn. App. 391, 396, 79 P.3d 448 (2003), aff'd, 153 Wn.2d 238, 103 P.3d 792 (2004); Lund v. Benham, 109 Wn. App. 263, 267, 34 P.3d 902 (2001). But it appears Ms. Wilkie did not preserve this assignment of error for appeal.
Ms. Wilkie did not clearly object when she learned the trial court had not considered her memorandum. She simply yielded to the ruling and submitted that case law generally allows a party to file a legal brief any time before a hearing or trial:
Certainly. Just for the record then I would note and I appreciate your ruling, as you say I'm bound by that, but I would note that the case law is clear that a brief can be filed anytime up to hearing or trial or even during a trial and that as it's not evidence and it's just oral — or it's just argument that there's no time restrictions.
RP (Mar. 25, 2010) at 22. In response, the trial court said, as a practical and procedural matter, it did not have time to review the memorandum. This court "may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a). But Ms. Wilkie's claim fails even if we review it.
The summary judgment rule expressly allows a summary judgment motion to be accompanied by "memoranda of law." CR 56(c). But the rule does not govern motions to revise a commissioner's ruling in Spokane County. RCW 2.24.050 and Spokane County Local Administrative Rule (LAR) 0.7 do.
RCW 2.24.050 says nothing about memoranda of authorities. It says a party who wants a commissioner's ruling revised demands revision only by written motion:
All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner. Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner, and unless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.
RCW 2.24.050 (emphasis added). Similarly, LAR 0.7 does not mention memoranda of authorities but states in subsection (a) that "[r]evision shall be initiated by filing a motion on a form approved by the Court[.] The motion must specify each portion of the Order for which revision is sought." The only other document that the local rule expressly authorizes is a transcript of the commissioner's oral ruling, which has to be filed at least two days before the revision hearing. LAR 0.7(b). In addition to a motion and a transcript, LAR 0.7(d) permits each party 10 minutes of oral argument.
Neither RCW 2.24.050 nor LAR 0.7, then, authorizes a party to file a memorandum of authorities or requires a court to consider one when filed anyway. Oral argument is the appropriate time for a party to cite legal authority for its position, and failure to do so is the party's fault, not the trial court's fault. The court here appropirately refused to consider Ms. Wilkie's memorandum of authorities. Trial Court Properly Denied Motion to Revise Commissioner's Ruling
Ms. Wilkie next contends the trial court erred by concluding that the parties did not have an enforceable settlement agreement. Her argument challenges the propriety of the commissioner's ruling but, again, our review is of the trial court's decision. Ramer, 151 Wn.2d at 113.
The trial court here found the Wilkies did not mutually assent to any modification of the visitation schedule. Mutual assent to the same bargain is an essential element of a binding agreement, and whether it exists is a question of fact. Yakima County (W. Valley) Fire Prot. Dist. No. 12 v. City of Yakima, 122 Wn.2d 371, 388, 858 P.2d 245 (1993); Hoglund v. Meeks, 139 Wn. App. 854, 871, 170 P.3d 37 (2007). Our review of the trial court's finding of no mutual assent is more deferential than the trial court's review of the commissioner's findings. Dodd, 120 Wn. App. at 645. Ordinarily, we would review the trial court's finding for substantial evidence. Id. at 646. But Ms. Wilkie does not challenge the court's finding of no mutual assent. Unchallenged findings of fact are verities on appeal. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992). And the court's finding of no mutual assent supports the conclusion that there was no agreement. The trial court, then, did not err by refusing to revise the commissioner's ruling.
Moreover, substantial evidence in the record supports the trial court's finding of no mutual assent even if Ms. Wilkie had challenged it. Hoglund, 139 Wn. App. at 871. Mr. Wilkie's December 7 letter offered to change his weekend visit to Friday evening until Monday morning (instead of until Sunday evening) in exchange for giving up "the current Sunday and Wednesday evening visitation during the school year." CP at 17. Viewing this language in the light most favorable to Mr. Wilkie, Mr. Wilkie was offering to swap his current Wednesday overnights and Sunday evening visits for Wednesday evening visits and Sunday overnights. His January 15 letter and the parenting plan support this view. In the letter, Mr. Wilkie said that the "Wednesday visitation will not start again until the school year has ended" (CP at 20), and the parenting plan's summer schedule shows the children stay overnight with Mr. Wilkie every Wednesday instead of every other Wednesday. Thus, the evidence shows Mr. Wilkie was offering to give up only his Wednesday overnights during the school year, not his Wednesday evenings. This evidence, coupled with Ms. Wilkie's expressed intent that Mr. Wilkie would be giving up all of his Wednesday overnights and Wednesday evening visits during the school year for an extended weekend, is substantial evidence in support of the finding that the parties did not agree to the same modification. Trial Court Properly Imposed Sanctions
Lastly, Ms. Wilkie asserts that the trial court erred by sanctioning her for violating LAR 0.7. She says she did not violate the rule. We review a trial court's decision to impose sanctions for abuse of discretion. See Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993) (CR 11). Discretion is abused when it is exercised in a manifestly unreasonable manner or on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Again, LAR 0.7 is a procedural rule governing motions for revision in Spokane County. It requires that a moving party timely notify the trial court of its motion's "ready status." LAR 0.7(d). It provides that a motion will be stricken for failure to comply with the rule's notification requirements. Id. And it authorizes the court to impose sanctions if (1) the "matter" is stricken due to noncompliance with the rule, and (2) the nonmoving party appears for the hearing:
The moving party shall confirm with the other party whether they are ready for hearing, or whether a continuance may be requested. The moving party shall notify the Judicial Assistant to the Presiding Family Law Judge by noon, two days before the hearing date, as to the ready status of the motion. Failure to comply with this rule will result in the motion being stricken. The non-moving party may be granted sanctions if they appear at the time set for hearing and the matter is stricken due to non-compliance with the rule by the moving party.
Id. (emphasis added).
The trial court imposed sanctions on the ground that both preconditions to LAR 0.7(d) sanctions were satisfied: Mr. Wilkie appeared at the March 18 hearing date, and Ms. Wilkie's motion had been stricken from the March 18 hearing docket because she had not notified the court of the motion's ready status. Ms. Wilkie claims LAR 0.7 required her to notify the court only if her motion was ready for hearing. But we do not read the rule so narrowly.
LAR 0.7(d) does not require a moving party to notify the court only when its motion is "ready," i.e., "prepared for immediate movement." Webster's Third New International Dictionary 1890 (1993). It requires a party to notify the court of the motion's "status," i.e., its "state of affairs." Id. at 2230. A motion's status includes being ready and not being ready. LAR 0.7(d), then, required Ms. Wilkie to notify the trial court that her revision motion was not ready and needed to be continued. She failed to comply with the requirement. And, as a result, the court struck her motion. The imposition of sanctions, then, was based on tenable grounds. Mr. Wilkie's Request for Costs Granted
Both parties request costs under RAP 14.2. That rule authorizes an award of costs (statutory attorney fees and certain reasonable expenses) to the substantially prevailing party on appeal. And, as the substantially prevailing party, Mr. Wilkie is entitled to his costs. Conclusion
We affirm the trial court's order denying Ms. Wilkie's motion to revise the commissioner's ruling and grant Mr. Wilkie's request for costs.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. KORSMO, J., concur.