Opinion
No. 65743-7-I
03-12-2012
In re the Marriage of MONINDER PAL, Respondent, v. KULJIT SINGH, Appellant.
UNPUBLISHED
COX, J. — Kuljit Singh appeals an order enforcing a decree of dissolution distributing marital property and a subsequent order denying revision of an order denying reconsideration. Because Singh's appeal from the order denying revision lacks merit, we affirm that order. His appeal from the order enforcing the decree is untimely. We dismiss it. Respondent Moninder Pal's request for attorney fees on appeal is granted.
In 2005, Singh and Pal negotiated a dissolution decree awarding Pal a $20,000 judgment as "a property equalizing payment. . . ." The decree provided that if Singh did not satisfy the judgment, "the wife shall be able to collect said judgment from the Boeing [retirement] assets awarded to husband above."
Clerk's Papers at 30.
Clerk's Papers at 210
Singh filed a bankruptcy petition. In February 2006, the federal bankruptcy court entered an order granting Singh a discharge under 11 U.S.C. sec. 727.
In September 2009, Pal moved for an order enforcing the decree. She alleged that Singh had not paid the judgment in the decree, and therefore she was entitled, under the terms of the decree, to collect the judgment from his retirement benefits. The court granted the motion and specifically ordered that the judgment amount "shall be obtained from the first available Boeing retirement account of the respondent . . . ." There is no indication in the record that the court was informed of Singh's bankruptcy filing.
Clerk's Papers at 181.
In March 2010, Pal again moved for an order enforcing the decree. Noting that the Boeing plan administrator was requesting clarification in light of Singh's bankruptcy, Pal argued that Singh was bound by the 2009 order enforcing the decree, and that she was entitled to the judgment amount regardless of the bankruptcy order.
On April 28, 2010, the court granted the motion, stating in its order that "even if Respondent successfully bankrupted the judgment on page one of the decree of dissolution, the Respondent's obligation to pay to the Petitioner her share of community asset[s] from his Boeing retirement benefits remains." The clerk's minute entry states:
Clerk's Papers at 82.
The decree in this matter clearly states that either the amounts get paid directly by the husband, or the amounts will come out of the retirement asset. Despite the husband's bankruptcy, he still owes the money, and must pay it from the retirement asset. . . . The
court has considered the bankruptcy issue, and the court finds that there is no discharge in the bankruptcy of the amounts specified in the decree.
Clerk's Papers at 81.
On May 19, 2010, Singh filed an untimely motion for reconsideration of the order enforcing the decree.
On June 1, 2010, the court denied the motion for reconsideration.
On June 11, 2010, Singh filed a declaration and motion in which he sought "review" of the order denying reconsideration and the underlying order enforcing the decree. In her responsive declaration, Pal alleged that Singh had never served his untimely motion for reconsideration, and that his motion to review or revise the decision denying reconsideration of the enforcement order was untimely.
On June 25, 2010, the court denied Singh's motion for review or revision for failure to follow court rules.
On July 23, 2010, Singh filed a notice of appeal from the June 25 order and the underlying April 28, 2010 order enforcing the decree.
Singh contends the court commissioner erred in granting Pal's motion to enforce the decree and judgment because the debt had been discharged in his bankruptcy proceedings. He contends the commissioner also erred in awarding Pal interest and attorney fees. We do not consider these claims because, for the reasons set forth below, Singh's appeal of the commissioner's order enforcing the decree is untimely.
A party must normally file a notice of appeal within 30 days of the decision for which review is sought. RAP 5.2(a). The 30-day period is extended, however, by a timely motion for reconsideration. RAP 5.2(a), (e). In this case, the order enforcing the decree was entered on April 28, 2010. Absent a timely motion for reconsideration, the notice of appeal should have been filed within 30 days. Singh did not file a notice of appeal within the 30-day period. Nor did he file a timely motion for reconsideration. Under CR 59(b), a motion for reconsideration had to be filed within 10 days of the April 28, 2010 decision. Singh, however, did not file his motion until May 19, 2010. The motion was therefore untimely.
Griffin v. Draper, 32 Wn. App. 611, 613, 649 P.2d 123 (1982) (untimely motion for reconsideration has no effect on commencement of the time for filing an appeal from the underlying judgment); Schaefco, Inc. v. Columbia River Gorge Commission, 121 Wn.2d 366, 367-68, 849 P.2d 1225 (1993) (because motion for reconsideration was untimely, it did not extend the 30-day limit for filing the notice of appeal).
Singh timely moved to revise the ruling denying reconsideration. But he offered no basis for concluding that the motion for reconsideration was timely filed. And while he timely appealed the superior court's denial of his motion to revise, he still fails to provide any basis for concluding that his motion for reconsideration was timely filed. Accordingly, his motion to revise the order on reconsideration was properly denied, his appeal of the June 25, 2010 order denying revision is without merit, and his appeal of the underlying April 28, 2010 order enforcing the decree is untimely and must be dismissed.
Schaefco, Inc., 121 Wn.2d at 368.
ATTORNEY FEES
Pal requests attorney fees on appeal under RCW 4.84.185. That statute authorizes an award of fees if an appeal is frivolous. An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there was no reasonable possibility of reversal.Because Singh's appeal of the order denying revision is frivolous, and because there are no debatable issues regarding the untimeliness of Singh's appeal of the order enforcing the decree, we award Pal fees on appeal, subject to her compliance with RAP 18.1(d).
Building Industry Association of Washington v. McCarthy, 152 Wn. App. 720, 746, 218 P.3d 196 (2009).
We affirm in part, dismiss in part, and award fees.
_____________ WE CONCUR:
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