No. 35051-3-II.The Court of Appeals of Washington, Division Two.
July 25, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 04-3-02168-4, Linda CJ Lee, J., entered June 2, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Hunt, JJ.
VAN DEREN, A.C.J.
Darrel E. Bowman appeals the trial court’s denial of his motion to enforce a dissolution provision that would force his former wife, Christina Palmerston-Bowman, to sell the family home. Bowman contends that the trial court’s ruling should be reversed because it is an erroneous ruling arising from judicial bias. Finding no evidence of judicial bias or error, we affirm.
FACTS
Darrel Bowman and Christina Palmerston-Bowman’s marriage was dissolved on June 10, 2005. The family home and three of Bowman’s retirement accounts were awarded to Palmerston-Bowman. Two of these retirement accounts were to be transferred “through the use of a Qualified Domestic Relations Order [(QDRO)][1] or any other document that may be necessary to complete the transfer of interest.” Clerk’s Papers (CP) at 12. The decree also stated: “If [Palmerston-Bowman’s] payments on the secured obligation against the family home awarded to her become more than sixty (60) days past due in an amount equal or greater than one month[‘]s payment, then [Palmerston-Bowman] will list the family home for sale.” CP at 11.
Palmerston-Bowman’s September 2005 house payment was over sixty days late. Bowman’s March 2006 credit report reflected the past due payment. On March 21, 2006, Bowman’s counsel sent a letter to PalmerstonBowman’s counsel requesting that the home be put up for sale pursuant to the terms of the decree of dissolution or, alternatively, that the home be refinanced in her name alone. When Palmerston-Bowman failed to place the home up for sale or refinance, Bowman filed a motion to enforce the decree.
A hearing on the matter was held on June 2, 2006. Counsel for Palmerston-Bowman informed the trial court that Bowman had not completed the QDROs for the transfer of the two retirement accounts until that day. Counsel also conceded that one of Palmerston-Bowman’s house payments had been late. “The payment [that] was due on September 1 of 2005 . . . was paid electronically by [Palmerston-Bowman] on November 2?, 2005, which was 61 days late. And it was posted by the lender to the account on November 3?, 2005, which is 62 days late.” Report of Proceedings (RP) at 6.
The undisputed reason for the late payment was that Bowman failed to reimburse Palmerston-Bowman for health care insurance payments for their two children in the amount of $444 during this time period, as required by the decree of dissolution. Palmerston-Bowman also asserted that had the retirement account transfers, as well as the insurance payment obligations, been timely addressed by Bowman, her house payment would not have been late. She argued that Bowman’s failure to meet his own obligations in a timely manner placed him before the court with “unclean hands,” and, therefore, his motion for enforcement should be denied. RP at 6. Finally, she noted that the house payment was only sixty days past due for two weeks and that the payments had been completely current since March 2006.[2] RP at 8.
The trial court ruled:
This is difficult, because although the court order that was signed with regard to the house issue did specifically say that the house shall — the wife shall list the house for sale if payments are more than 60 days past due in an amount equal to or greater than one month’s payment, I also recognize, because I’ve been there myself, sometimes you send in a payment and it doesn’t get posted right away, which it appears that sometimes it may have, or at least one of the times it happened here.
This Court has reviewed all of the pleadings in this matter, and I am going to deny the husband’s request to force the sale of the home. This isnot — and I’ll make it very clear — not permission for the wife to default on her payments in the future. I’m taking into consideration all of the circumstances surrounding what happened in this situation.
RP at 10-11.
Bowman appeals.
ANALYSIS
I. Judicial Bias
Bowman’s primary contention is that his motion for enforcement was denied based on judicial bias and, therefore, he was denied his right to a fair hearing. “Due process, the appearance of fairness, and Canon 3(D)(1) of the Code of Judicial Conduct require disqualification of a judge who is biased against a party or whose impartiality may be reasonably questioned. The trial court is presumed to perform its functions regularly and properly without bias or prejudice.” Wolfkill Feed and Fertilizer Corp. v. Martin, 103 Wn. App. 836, 841, 14 P.3d 877
(2000). A judicial proceeding is valid only if it has an appearance of impartiality, that is, that a reasonably prudent and disinterested person would conclude that all parties obtained a fair, impartial, and neutral hearing. State v. Bilal, 77 Wn. App. 720, 722, 893 P.2d 674 (1995) (citation omitted). This appearance of fairness doctrine seeks to prevent the problem of a biased or potentially interested judge. State v. Carter, 77 Wn. App. 8, 12, 888 P.2d 1230 (1995). A violation of the appearance of fairness doctrine requires evidence of a judge’s actual or potential bias. Carter, 77 Wn. App. at 11.
Bowman asserts:
The judge[,] as opposed to hearing the evidence and ruling on the terms of the decree, justified disregarding the plain language of the dissolution decree because “she has been there herself.” A judge interjecting her history of late mortgage payments into this hearing is evidence of not only the appearance of unfairness, but evidence of actual or potential biased [sic] against [Bowman]. This judge is saying in effect that she will not enforce this provision of the decree, because, she has been in the same position as [Palmerston-Bowman].
A fair and unbiased judge would never interject her late mortgage payment history into the hearing.
Br. of Appellant at 6 (quoting RP at 10).
Bowman mischaracterizes the trial court’s statement. As the record shows, the trial court was aware that Palmerston-Bowman actually paid her September payment more than sixty days late. The trial court’s statement that, “I’ve been there myself,” was in response to counsel’s argument and referred to the trial court’s experience with late postings rather than late payments. RP at 10. Bowman’s suggestion that it demonstrates personal bias ignores the context in which the statement was made. It is clear that the statement did not suggest that Palmerston-Bowman’s payment was past due because of a late posting. Therefore, the comment on posting was dicta, not relevant to the trial court’s ruling.
Furthermore, the trial court stated that it had “reviewed all of the pleadings,” RP at 10, and was “taking into consideration all of the circumstances,” RP at 11, in making the decision. Under these circumstances, a reasonably prudent and disinterested person would conclude that Bowman obtained a fair, impartial, and neutral hearing. Bowman’s claim of judicial bias is without merit.
II. Clarification versus Modification
Bowman asserts that by denying his motion to enforce the dissolution decree, the trial court effectively modified the dissolution decree. Palmerston-Bowman responds that, under the circumstances, “it would be inequitable and unjust to require [Palmerston-Bowman] to sell her home.” Br. of Resp’t at 7.
A. Standard of Review
Palmerston-Bowman, relying on Rabey v. Dept. of Labor Industries, 101 Wn. App. 390, 396-97, 3 P.3d 217 (2000), argues that we review a trial court’s decision on whether to grant equitable relief for an abuse of discretion. We disagree.
Rabey involved an appeal from the Department of Labor and Industries rejecting a widow’s application for survivor benefits related to her husband’s death. The instant appeal more closely resembles In re Marriage of Thompson, 97 Wn. App. 873, 988 P.2d 499 (1999). In that case, the trial court issued a decree of dissolution with a property distribution plan, then, on the parties’ cross-motions to enforce the decree, the trial court sanctioned the former wife, reducing her monetary award to less than that specifically stated in the original decree. Thompson, 97 Wn. App. at 875-877. On appeal, the appropriate standard of review was determined to be de novo because, in the absence of a petition to modify or reopen the decree, the trial court may only interpret or clarify the meaning of the decree’s terms, which involves a question of law:
[The former husband] argues that a judge’s order enforcing a decree should be reviewed for abuse of discretion because it is analogous to an order of contempt. See State v. Caffrey, 70 Wn.2d 120, 122, 422 P.2d 307 (1966) (contempt order reviewed for abuse of discretion). In both situations, he argues, the judge must determine whether a party has violated an order. [The former husband] does not cite authority in support of this analogy, and we do not see the two situations as comparable. The interpretation of a dissolution decree is a question of law. Chavez v. Chavez, 80 Wn. App. 432, 435, 909 P.2d 314, review denied, 129 Wn.2d 1016 (1996). Questions of law are subject to de novo review by the appellate court. McDonald v. State Farm Fire and Cas. Co., 119 Wn.2d 724, 730-31, 837 P.2d 1000 (1992). If a decree is ambiguous, the reviewing court seeks to ascertain the intention of the court that entered it by using the general rules of construction applicable to statutes and contracts. See In re Marriage of Gimlett, 95 Wn.2d 699, 704-05, 629 P.2d 450 (1981); Kruger v. Kruger, 37 Wn. App. 329, 331, 679 P.2d 961 (1984).A trial court does not have the authority to modify even its own decree in the absence of conditions justifying the reopening of the judgment. RCW 26.09.170(1); Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811
(1947). An ambiguous decree may be clarified, but not modified. RCW 26.09.170(1); In re Marriage of Greenlee, 65 Wn. App. 703, 710, 829 P.2d 1120, review denied, 120 Wn.2d 1002 (1992). A decree is modified when rights given to one party are extended beyond the scope originally intended, or reduced. A clarification, on the other hand, is merely a definition of rights already given, spelling them out more completely if necessary. Rivard v. Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969).
Thompson, 97 Wn. App. at 877-78.
B. Clarification of Decree Provision
Here, Bowman asked the trial court to enforce one of the decree’s provisions in his favor. The trial court, in considering the contested decree provision, interpreted the provision and clarified its relationship to the other decree provisions that imposed financial obligations on Bowman in responding to his enforcement request. Bowman argues that the trial court’s ruling modifies the decree.
Bowman argues that “[t]he “purpose of the 60day provision in the dissolution decree and findings was to prevent [Palmerston-Bowman] from negatively affecting [Bowman’s] credit.” Br. of App. at 7. And he argues that the late payment shown on his credit report damaged his credit and made it difficult to secure financing for a new home. CP at 18-22. But damage to Bowman’s credit could not be cured by the sale of the house and he does not appeal the trial court’s ruling on any basis other than judicial bias, even though other relief might have been formulated by the trial court upon his request.[3]
In response to Bowman’s concerns, the trial court specifically reiterated that Palmerston-Bowman must make timely house payments. It also stated that it had reviewed all the circumstances, including the fact that Bowman had failed to meet his own financial obligations to Palmerston-Bowman, thereby adversely affecting her ability to pay the mortgage in a timely manner. When reviewing the record as a whole, we conclude that the trial court’s ruling was a correct interpretation and application of the decree’s provisions that addressed both parties’ financial obligations and the need to protect them both from adverse financial consequences resulting from their dissolution.
Furthermore, the record reveals that the trial court’s ruling reflected a limited and practical interpretation and clarification of the sale provision and Bowman’s assertion the denial of his motion amounted to a verbal modification of the sale provision is not supported by the record.
We affirm.
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: Bridgewater, J., Hunt, J.
(d)(3) (2000).