Opinion
Nos. 24392-0-II, (consolidated) 25456-5-II.
Filed: January 26, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Clark County, No. 98-3-00055-1, Hon. James D. Ladley, January 28, 1999, Judgment or order under review.
Counsel for Appellant(s), Kenneth Thomason (Appearing Pro Se), P.O. Box 950, La Center, WA 98629.
Counsel for Respondent(s), John F. Vomacka, Attorney At Law, 12204 S.E. Mill Plain Blvd., Vancouver, WA 98684.
Kenneth Thomason appeals orders made during a dissolution proceeding.
We affirm.
Facts
Kenneth and Carla Thomason married in the 1980s. They later had three children. In 1998, Carla filed for dissolution of the marriage.
Before trial, Kenneth and Carla stipulated to a parenting plan that provided:
The dispute resolution process and decision making process may be reviewed in six months [from 9-24-98] and no threshold level must be shown. The threshold level equal to the statutory state standard would apply to the residential time if modification of residential time was requested six months from the time of this agreement.
Clerk's Papers at 34.
When Kenneth and Carla offered the stipulation to the court, Kenneth's counsel stated, '[N]o threshold level needs to be shown regarding the decision making and the dispute resolution and . . . the threshold level equal to the statutory minor modification would apply to the residential time.' The court responded, 'That's my understanding, as long as the modification was indeed a minor modification, yes.' Kenneth asked for clarification on the 'minor modification' language, and the court stated:
Report of Proceedings (Sep. 24, 1998) at 8-9.
Report of Proceedings (Sep. 24, 1998) at 9.
That's a statutory situation . . . so a minor modification does not need the threshold that a major modification needs. A major modification would be a change of custody, that type of thing. A minor modification is a modification that involves less than 24 days a year[.]
Report of Proceedings (Sep. 24, 1998) at 9.
Kenneth then agreed to the stipulation.
In November 1998, Kenneth filed a 'Motion for Order for Clarifying Changes to Certain Provisions of Agreed Parenting Plan.' He asserted that the 'threshold level' described in the stipulation was inconsistent with the parties' intent and asked the court to strike it. The trial court denied the motion.
Clerk's Papers at 79.
Kenneth moved for reconsideration, asserting that Carla's counsel had engaged in 'misconduct' and 'fraud' by failing to explain the 'threshold level' requirement to him and his attorney. The trial court denied that motion also.
During trial, Kenneth submitted a proposed property division. He listed an 'engagement ring, anniversary ring solitaire, and a diamond necklace' as community property with a combined value of $2,950. He asked that these items be awarded to him, explaining: 'My position is that I gave these to [Carla] out of sentiment and I want to be able to pass them to my daughter.' He also listed a 'fresh water pearl necklace and wedding ring' as Carla's separate property, explaining: '[T]hose obviously have sentimental value for her . . . and my position is not that I would like to give those to [my daughter]. It is that the other things that I've listed in my list are what I would like to see passed on to [my daughter].'
None of the more than 100 exhibits, nor a substantial portion of the transcript of trial, have been provided in the record on appeal. '[T]he appellant bears the burden of complying with the Rules of Appellate Procedure (RAP) and perfecting his record on appeal so the reviewing court has before it all the evidence relevant to deciding issues before it.' Rhinevault v. Rhinevault, 91 Wn. App. 688, 692, 959 P.2d 687 (1998), review denied, 137 Wn.2d 1017 (1999). The court need not reach the merits of an issue if this burden is not met. Rhinevault, 91 Wn. App. at 692 (citing State v. Wheaton, 121 Wn.2d 347, 365, 850 P.2d 507 (1993)). Kenneth has not met this burden. Nevertheless, we proceed as did the court did in Rhinevault: 'although the designated record and briefing in this case teeter on a tightrope of inadequacy, with some difficulty we have gleaned an outline of the facts sufficient to resolve the issues before us.' Rhinevault, 91 Wn. App. at 693.
Report of Proceedings (Nov. 23, 1998) at 109.
Report of Proceedings (Nov. 23, 1998) at 112.
Report of Proceedings (Nov. 23, 1998) at 112.
The court adopted most of Kenneth's proposed property division. It determined, however, that the 'engagement ring, anniversary ring solitaire, and diamond necklace' were Carla's separate property, because 'he gave them to [Carla] out of sentiment[.]' It divided the community property 55 percent to Carla and 45 percent to Kenneth.
Report of Proceedings (Nov. 30, 1998) at 82.
On January 28, 1999, over Kenneth's objections, the trial court entered the final Parenting Plan and Decree of Dissolution. On February 25, 1999, Kenneth filed this appeal.
The court also entered Findings of Fact and Conclusions of Law, but they have not been provided in the record on appeal. See supra note 2.
On March 22, 1999, Kenneth sought new court orders pertaining to joint residential time, decision making, credit cards, and attorney fees. Except for the credit cards, the trial court denied relief. It stated by letter:
The parenting plan contemplates that the issue of decision making may be reviewed without a threshold. The modification of the parenting plan as to residential time requires a threshold finding. Without the threshold requirement the parties could initiate modification proceedings on a whim and continuously have this matter in court.
Mr. Thomason desires joint residential time. This would require a major modification. None of the criteria under RCW 26.09.260 for a major modification has been met. Although there is not a formal petition for modification before the court, I will consider substance over form and deem the documents filed by Mr. Thomason as a petition to modify.
The next issue is whether or not there has been a substantial change in circumstances to justify a minor modification of the parenting plan.
The agreed parenting plan was formulated immediately after the testimony of Dr. Kirk Johnson. Dr. Johnson's testimony and findings constitute the benchmark that will be used to determine the necessary change of circumstances. Dr. Johnson concluded that parental cooperation is the number one concern in a joint custody determination. He further concluded that he had been involved in few situations that appear less amenable to a joint custody arrangement.
The issue is whether or not there has been a substantial change from the benchmark as established by Dr. Johnson.
Mr. Thomason has been counseling with Ronald J. Miller. I have received communications from Mr. Miller noting the ongoing counseling. The communications document the goals being sought but do not document progress. The only gauge I have as to Mr. Thomason's progress and the necessary change of circumstances is Mr. Thomason's writings presented to the court.
Mr. Thomason's motion, response, and supplemental response only touch lightly on Mr. Thomason's progress. These documents are an out-and-out attack on Mrs. Thomason and underscore Dr. Johnson's finding of lack of parental cooperation. Mr. Thomason may give lip service to getting along with Mrs. Thomason, but the documents filed indicate that 90% of the fault lies with Mrs. Thomason and that he and the children are victims of her shortcomings. Mr. Thomason discusses how he and Mr. Miller agree that Mrs. Thomason is the problem and but for her actions, all would be well.
Both parents love the children. The children love both parents. Can they parent jointly? No! Mr. Thomason's animosity seethes throughout his pleadings. Cooperation as contemplated by Dr. Johnson is not possible. Nothing has changed. The threshold for a minor modification has not been met. The motion is denied.
Cooperation is necessary for joint decision making. Joint decision making under the circumstances is not possible. The motion as to joint decision making is denied.
Mr. Lee's analysis on the credit cards is correct and will be adopted.
The parenting plan contemplated a review. Although premature, this is the review. No attorneys fees will be awarded.
Clerk's Papers at 72-73.
On April 5, 1999, Kenneth moved for reconsideration, citing CR 60(b)(4). He again asserted that Carla's counsel had engaged in 'misconduct' and 'fraud' by failing to explain the 'threshold level' requirement to him and his attorneys. The court denied the motion.
In October 1999, Kenneth filed a 'Motion and Declaration for Supplemental Order on 1998 Taxes.' He asked the trial court to allow him to claim all three children on his tax return, rather than the one child the court had allowed in the dissolution proceeding. He also raised other tax issues. The trial court denied the motion and awarded Carla $500 in attorney's fees.
Clerk's Papers at 139.
On January 3, 2000, Kenneth filed a 'Notice of Discretionary Review' that was really a second notice of appeal. Treating it as such, this court consolidated it with Kenneth's notice of appeal filed February 25, 1999.
Analysis
Kenneth generally makes two arguments: (I) The stipulation on 'threshold levels' is invalid. (II) The trial court improperly divided property and allocated taxes.
I. Stipulation
CR 2A provides as follows:
No agreement or consent between parties or attorneys in respect to the proceedings in a cause, the purport of which is disputed, will be regarded by the court unless the same shall have been made and assented to in open court on the record, or entered in the minutes, or unless the evidence thereof shall be in writing and subscribed by the attorneys denying the same.
In general, a party is bound by an agreement that complies with CR 2A. To overturn such an agreement, a party must show fraud, mistake, or misunderstanding.
Baird v. Baird, 6 Wn. App. 587, 589, 494 P.2d 1387 (1972).
Snyder v. Tompkins, 20 Wn. App. 167, 173, 579 P.2d 994, review denied, 91 Wn.2d 1001 (1978); Baird, 6 Wn. App. at 589; see also Washington Asphalt Co. v. Harold Kaeser Co., 51 Wn.2d 89, 91, 316 P.2d 126 (1957). A party may also show lack of jurisdiction, but the trial court obviously had jurisdiction here.
We review for abuse of discretion only. Here, the trial court found no fraud, mistake, or misunderstanding. It reasoned:
In re Patterson, 93 Wn. App. 579, 586, 589, 969 P.2d 1106 (1999).
[Kenneth] is very precise, [he] has a college degree. [He] has been a very proficient and able earner of money and he is up to speed on everything. So for him [to claim] not to understand this is almost insulting to me to say that. . . . I mean, he can't truthfully make me believe that he didn't understand what he was entering into because that makes no sense.
Report of Proceedings (Nov. 30, 1998) at 52.
The record is devoid of evidence of fraud, and it amply supports the view that there was no mistake or misunderstanding. When the parties offered their CR 2A stipulation, the court engaged in a colloquy with counsel for Carla and for Kenneth and with Kenneth himself. The court's purpose was to ensure that all were aware of the terms of the CR 2A stipulation. Kenneth responded by agreeing to the stipulation, which merely tracked the mandatory language of the controlling statutes. There was no mistake or misunderstanding on Kenneth's part, and even if there were, it would have been wholly unilateral. The trial court did not abuse its discretion by enforcing the CR 2A stipulation.
See RCW 26.09.260 to .270.
See In re Estate of Harford, 86 Wn. App. 259, 260, 262-63, 936 P.2d 48 (1997) ('The principles of the law of contracts apply to review of settlement agreements. Under contract principles, a mutual mistake may justify vacation of a settlement agreement. . . . The mistake must be mutual, not unilateral[.]'), review denied, 135 Wn.2d 1011 (1998); Gill v. Waggoner, 65 Wn. App. 272, 276, 828 P.2d 55 (1992) (A unilateral mistake will not invalidate a contract unless the other party to the contract knows of or is charged with knowledge of the mistake).
II. Property Division
Kenneth contends that the trial court erred by awarding the 'engagement ring, anniversary ring solitaire, and a diamond necklace' to Carla as her separate property. He does not otherwise specifically challenge the trial court's division of property.
A trial court may divide both separate and community property. In making its division, it 'must have in mind the correct character and status of the property,' but its failure in that regard does not necessarily warrant reversal. We review for abuse of discretion. In Johnson v. Dar Denne, the Washington Supreme Court held that gifts of jewelry and other 'personal adornment,' purchased with community funds, can become separate property to the recipient:
Brewer v. Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999) (citing Friedlander v. Friedlander, 80 Wn.2d 293, 303, 494 P.2d 208 (1972)).
Blood v. Blood, 69 Wn.2d 680, 682, 419 P.2d 1006 (1966); Brewer, 137 Wn.2d at 766.
In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985); Konzen v. Konzen, 103 Wn.2d 470, 478, 693 P.2d 97, cert. denied, 473 U.S. 906 (1985).
Johnson v. Dar Denne, 161 Wn. 496, 296 P. 1105 (1931).
[W]hen the rights of creditors are not involved, and as between the husband and wife only, jewelry or articles of personal adornment, acquired after marriage with community funds, but worn and used solely by the wife, will be held to be the separate property of the wife by gift from the husband upon comparatively slight evidence. Here we have evidence that the husband stated that these rings had been by him given to the wife, and that they were her property.
Johnson, 161 Wn. at 497.
Here, Kenneth gave the jewelry to Carla as a gift, 'out of sentiment.' Based on Johnson, then, we conclude that the trial court properly characterized the jewelry as Carla's separate property.
Parenthetically, we observe that even if the trial court had mischaracterized the jewelry as Carla's separate property, reversal would not be warranted. The characterization of property alone is not controlling; the trial court must dispose of property in a just and equitable manner, considering all the circumstances. Therefore, when a trial court mischaracterizes property as separate or community, remand is required only if (1) the trial court's reasoning indicates the nature of the property significantly influenced how it was divided, and (2) the trial court might have divided the property differently if it properly characterized the property's nature. These criteria are not met here. The value of the jewelry was small in comparison to the value of all the property. There is no indication, either mathematically or in review of the theory supporting the trial court's property division, that the characterization of the jewelry as separate property had any impact on the trial court's overall property division. Even if the trial court's characterization of the jewelry was in error, which it was not, the error was harmless.
In re Marriage of Kraft, 119 Wn.2d 438, 449, 832 P.2d 871 (1992); In re Marriage of Washburn, 101 Wn.2d 168, 177, 677 P.2d 152 (1984); Konzen, 103 Wn.2d at 477-78; In re Marriage of Pearson-Maines, 70 Wn. App. 860, 864 n. 3, 855 P.2d 1210 (1993); see also RCW 26.09.080.
See In re Marriage of Kraft, 119 Wn.2d 438, 449, 832 P.2d 871 (1992).
Kenneth also contends the trial court erred by refusing to reallocate tax deductions. The trial court considered Kenneth's arguments and entered a reasoned judgment. That judgment created a mechanism by which Kenneth could receive the benefit he sought without imposing a burden on Carla. The trial court did not abuse its discretion.
See Order Denying Motion for Supplemental Order (December 3, 1999) at 2.
Three times during the various proceedings, Kenneth filed an Affidavit of Prejudice against the trial court judge. CP 162, 166, 188. The judge made discretionary rulings before the filing of the first one. The affidavits were untimely, and the trial court judge was not required to honor them. State v. Dennison, 115 Wn.2d 609, 801 P.2d 193 (1990).
Kenneth's remaining arguments do not warrant discussion.
Affirmed.
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.
WE CONCUR: SEINFELD, J., HUNT, A.C.J.