IN RE MARRIAGE OF BLAKELY, 22022-2-III (Wash.App. 2-8-2005)

Nos. 22022-2-III, 22566-6-IIIThe Court of Appeals of Washington, Division Three. Panel Four.
Filed: February 8, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County. Docket No. 95-3-01916-0. Judgment or order under review. Date filed: 04/01/2003. Judge signing: Hon. Linda G Tompkins.

Counsel for Appellant(s), Robert R Cossey, Robert R Cossey
Associates PS, 628 1/2 N Monroe St, Spokane, WA 99201-2161.

Counsel for Respondent(s), Gary Joseph Gainer, Richter-Wimberley PS, 422 W Riverside Ave Ste 1300, Spokane, WA 99201.

Dennis Patrick Hession, Richter Wimberley PS, 422 W Riverside Ave Ste 1300, Spokane, WA 9920.

Jeffrey L Fisher, Attorney at Law, 1501 4th Ave Ste 2600, Seattle, WA 98101-1664.

Counsel for Other Parties, James Peter Ps Spurgetis, Washington Mutual Financial Center, 601 W Main Ave Ste 820, Spokane, WA 99201.

SWEENEY, J.

This is a consolidated appeal from multiple court orders in a dissolution and an order for attorney fees awarded in Ralph Blakely, Jr.’s separate criminal matter. Mr. Blakely challenges the court’s orders for lack of due process because he was in prison at the time and did not attend the hearings. He claims the court lacked subject matter jurisdiction to order the sale of real property in Montana. And he also claims the trial judge should have honored his `order for recusal.’ We find no error and affirm.

FACTS
Ralph Blakely, Jr. and Yolanda Blakely were married on December 6, 1973. A court dissolved their marriage on August 1, 2000. On April 1, 2003, the court established child support and approved the sale of Mr. and Ms. Blakely’s Montana property. On November 3, 2003, and November 4, 2003, Mr. Blakely filed both an order for recusal of the judge and an amended order for recusal of the judge. The court ignored both and entered two more orders. The first disbursed proceeds remaining in a joint account from the dissolution matter. The second awarded attorney fees to Mr. Blakely’s attorney, Jeffrey Fisher, in a separate criminal matter. Mr. Blakely was neither present nor represented at either the March 18, 2003 or the November 4, 2003 hearings.

DISCUSSION Due Process
Mr. Blakely argues that he was denied meaningful access to the courts since he was in prison and unable to attend the hearings.

We review the trial court’s decision to deny a prisoner the right to personally appear in a civil matter for an abuse of discretion. In re Darrow, 32 Wn. App. 803, 808, 649 P.2d 858
(1982).

The due process clause grants prisoners the `right of access to the courts.’ State ex rel. Taylor v. Dorsey, 81 Wn. App. 414, 421, 914 P.2d 773 (1996). But the right is not absolute. Id. `Due process requires only that `prisoners be afforded meaningful access to the courts.” Id. (quoting Whitney v. Buckner, 107 Wn.2d 861, 866, 734 P.2d 485 (1987)).

The prisoner must assert the right of access and make a motion to personally appear before the court. Dorsey, 81 Wn. App. at 422-23. The court then balances competing interests. Id. Due process rights may be accommodated by a telephonic appearance, a deposition, or by his lawyer’s participation. Id. at 423; Darrow, 32 Wn. App. at 808.

Here, Mr. Blakely had notice of both the March 18 and the November 4, 2003 hearing dates. He did not move for an order to be personally present at either. And the court then appropriately commented: (1) `Because [Mr. Blakely’s] participation would be approved by the Court if he requested to appear by telephone conference. I am satisfied if he wanted to be here, he has in the past had opportunities to participate by telephone conference,’ Report of Proceedings (RP) at 19-20; and (2) `[T]he Court will also reiterate the fact if Mr. Blakely has concerns and wishes to participate telephonically, that he is able to do that by him calling our court office and requesting telephonic [sic] we will then, after he requests directly, then we will place the call to the prison, but he needs to make that inquiry and he can do that directly.’ RP at 59-60.

The court adequately addressed Mr. Blakely’s right to appear and defend.

Subject Matter Jurisdiction for The Sale of Property
Mr. Blakely next argues that the trial court exceeded its jurisdiction when it ordered the sale of property located in Montana and placed restrictions on the title to the land.

We review a challenge to the court’s jurisdiction de novo. Young v. Clark, 149 Wn.2d 130, 132, 65 P.3d 1192 (2003).

A contest over the title of land must be litigated in the state where the property is located. Silver Surprize, Inc. v. Sunshine Mining Co., 74 Wn.2d 519, 526, 445 P.2d 334 (1968). However, “where the action is aimed at the personal relations of the parties in connection with property beyond the [court’s] jurisdiction, it is well recognized that courts may afford relief.” Id. (emphasis added) (quoting Smith v. Fletcher, 102 Wash. 218, 220, 173 P. 19 (1918)).

The trial court did not decide title to the property here. It authorized the parties to accept a purchase offer: `The parties have received a purchase offer for the . . . Montana [property]. . . . The purchase offer is reasonable, considering the liabilities against the property.’ Clerk’s Papers (CP) at 125. `It is necessary that the real property be liquidated to allow distribution under the terms of the Decree entered in this matter and the incorporated Second Stipulated Agreement.’ CP at 126. Under the stipulated agreement each was to receive `an undivided one-half interest in the property acquired by them during the marriage . . . regardless of how title is held or the name on an account.’ CP at 143.

Similarly, the trial court did not place restrictions on the title. It did not order that a life estate be created in the property or that one was previously in existence. Mr. and Ms. Blakely agreed to give Mr. Blakely’s father a life estate in the property. This was then a condition of the purchase offer. The trial court also did not decide who was responsible for the liabilities in the property. The assignment of liabilities again followed negotiations between Mr. and Ms. Blakely and the purchasers.

The trial court did not exceed its jurisdiction when it approved of the parties’ decision to sell the property pursuant to this negotiated purchase offer.

Recusal
Mr. Blakely argues that the court failed to address his order and amended order for recusal of the judge. We review the trial court’s denial of a motion to recuse a judge for an abuse of discretion. In re Marriage of Farr, 87 Wn. App. 177, 188, 940 P.2d 679 (1997). A party may move to recuse a judge for prejudice. RCW 4.12.040. Both a motion for recusal and an affidavit must be filed before the judge makes any rulings. RCW 4.12.050. `Prejudice is deemed established’ if these requirements are met and the judge must step down. State v. Cockrell, 102 Wn.2d 561, 565, 689 P.2d 32 (1984). But if the party moves to recuse the judge after a ruling has already been made, he must demonstrate prejudice on the part of the judge. State v. Cameron, 47 Wn. App. 878, 884, 737 P.2d 688 (1987). `Casual and unspecific allegations of judicial bias provide no basis for appellate review. . . .’ Rich v. Starczewski, 29 Wn. App. 244, 246, 628 P.2d 831 (1981).

Mr. Blakely filed an `Order Recusal of Judge’ on November 3, 2003, and an `Amended Order for Recusal of Judge’ on November 4, 2003. CP at 446, 480. However, Mr. Blakely did not file a motion or an affidavit with the court. And Mr. Blakely filed his order for recusal after several rulings had been made by the judge.

Even if the court were to accept Mr. Blakely’s `Amended Order for Recusal of Judge’ as both a motion and an affidavit, it does not demonstrate prejudice on the part of the judge. CP at 480. The amended order states: `Ralph Howard Blakely Jr. moved the court for: Recusal of Judge because Judge Linda Tompkins became acquainted with Lorene Blakely who worked for her court, (Lorene is daughter of Yolanda) above Plaintiff [and] cannot be fair [and] impartial.’ CP at 480 (emphasis added). Mr. Blakely does not indicate nor does this record show the specific nature of the relationship between the judge and Lorene Blakely.

Mr. Blakely did not meet the statutory requirements to seek a recusal of the judge under RCW 4.12.050. The issue was not properly before the court.

Subject Matter Jurisdiction for Child Custody
Mr. Blakely argues that the court lacked jurisdiction to enter an award for child custody since Washington was not the child’s home state.

We review de novo whether the trial court had jurisdiction to decide the issue of child custody under the Uniform Child Custody Jurisdiction and Enforcement Act (the Act). In re Marriage of Murphy, 90 Wn. App. 488, 493, 952 P.2d 624 (1998). The Act governs child custody. RCW 26.27.201.

But Mr. Blakely does not challenge a child custody order. He assigns error to the court’s child support order. Child support is not an issue that is governed by the Act.

Attorney Fees
Mr. Blakely argues that an award of $25,000 in attorney fees in the case of Blakely v. Washington, ___ U.S. ___, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004) was excessive. Mr. Fisher appealed Mr. Blakely’s separate criminal matter to the United States Supreme Court. At that time Mr. Blakely’s assets were subject to this pending dissolution proceeding. Mr. Fisher filed a motion in the dissolution proceeding for payment of his attorney fees.

We review the trial court’s decision to award attorney fees for an abuse of discretion. Allard v. First Interstate Bank of Wash., N.A., 112 Wn.2d 145, 148, 768 P.2d 998, 773 P.2d 420 (1989). An abuse of discretion occurs where the decision is “manifestly unreasonable or based upon untenable grounds or reasons.” Id. (quoting Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P.2d 692 (1984)).

Under RCW 4.84.020, attorney fees must be reasonable. Mr. Blakely challenges the award of attorney fees granted on November 4, 2003. But he argues that the court awarded his attorney $25,000 in attorney fees. It did not. The court order states: `IT IS HEREBY ORDERED that the $5,309.00 in attorney’s fees and $442.71 in costs that Mr. Fisher incurred in completing the litigation concerning Mr. Blakely’s petition for a writ of certiorari to the U.S. Supreme Court is reasonable. Mr. Fisher shall be paid these sums.’ CP at 475-76. And Mr. Blakely does not contest this amount.

The court’s order then states:

IT IS FURTHER ORDERED that Mr. Fisher is entitled to the payment of reasonable attorney’s fees and costs . . . for work in the U.S. Supreme Court pertaining to the merits of Mr. Blakely’s appeal. The Court grants estimated attorney’s fees and costs in the amount of $25,000 toward this end, subject to this Court’s future review as to their reasonableness. After oral argument in the U.S. Supreme Court, Mr. Fisher shall submit an itemized fee request to this Court. . . .

CP at 476 (emphasis added). The order assures Mr. Fisher that he would be compensated for reasonable attorney fees for future work on Mr. Blakely’s criminal case. The court did not actually award Mr. Fisher $25,000 at the November 4, 2003 hearing. It simply provided an estimated cap on any future award. Mr. Fisher was directed to seek review of his fees and costs once they were incurred to determine whether they were reasonable. He was also required to `submit an itemized fee request’ after he argued the case. CP at 476.

The amount of $5,751.71 for fees and costs was not contested. No further amount was actually awarded by the court. The court did not abuse its discretion.

We affirm the decision of the trial court.

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.

KATO, C.J. and SCHULTHEIS, J., concur.