No. 26584-6-III.The Court of Appeals of Washington, Division Three.
December 4, 2008.
Appeal from a judgment of the Superior Court for Lincoln County, No. 05-3-02309-5, Philip W. Borst, J., entered October 23, 2007.
Affirmed by unpublished opinion per Kulik, A.C.J., concurred in by Brown and Korsmo, JJ.
KULIK, A.C.J.
Craig Mosher appeals the denial of his motion to vacate his decree of dissolution. The decree awarded each spouse one-half of the equity in the marital residence. Mr. Mosher contends that the trial court erred by awarding his former wife, Maria Moreno, interest in one-half of the equity from the date the decree was entered. Ms. Moreno requests an award of reasonable attorney fees and costs on appeal pursuant to RAP 18.1 and also asks for sanctions against Mr. Mosher under RAP 18.9(a). We hold that the trial court did not abuse its discretion and that there was no reasonable basis for Mr. Mosher’s argument. Therefore, we affirm the trial court and impose sanctions Page 2 against Mr. Mosher.
FACTS
Maria Moreno Mosher and Craig Winton Mosher were married on September 12, 1997, in Pacific Grove, California. The parties separated on July 1, 2005. Two weeks later, Ms. Moreno filed a petition for dissolution of marriage in Lincoln County Superior Court. On October 18, Ms. Moreno and Mr. Mosher, both pro se, filed findings of fact and conclusions of law and a decree of dissolution. The decree awarded each party one-half of the equity in their real property, which consisted solely of the marital residence. Mr. Mosher retained the home.
On July 20, 2005, Mr. Mosher signed a document acknowledging a lien balance owed by Mr. Mosher to his former wife, Ms. Moreno, in the amount of $30,000. According to the document, the amount owing was the remainder of a $60,000 “equity buy out at the time of our dissolution.” Clerk’s Papers (CP) at 25. This document also acknowledged that the first half of the buyout was paid to Ms. Moreno in July 2005. The remainder was to be paid in full, and in one lump sum, “on or about June or July 2007, when I have secured additional income from my military retirement.” CP at 25. This agreement was signed by Mr. Mosher and notarized.
On July 18, 2007, counsel for Ms. Moreno sent a letter to Mr. Mosher, reminding him of his obligation to make the final payment on his equity buyout by July 31. Mr. Mosher was also reminded that the payment was agreed upon and ordered pursuant to the decree of dissolution and findings of fact and conclusions of law, filed on October 18, 2005, as well as the written, notarized agreement dated July 20, 2005. The record indicates that a final payment was never made.
As a result, on September 17, Ms. Moreno filed a “Motion and Declaration to Enforce Property Settlement Agreement.” CP at 21-27. In her motion, Ms. Moreno asked the trial court to enforce the equalization payment provisions in the July 2005 document, which she referred to as a “property settlement” agreement, and enter a judgment against Mr. Mosher in the amount of $30,000, with interest to accrue at a rate of 12 percent. CP at 22.
On October 4, Mr. Mosher, through his attorney, filed an order to show cause requesting that the decree of dissolution and findings of fact and conclusions of law be vacated pursuant to CR 60(b). In an attached declaration, Mr. Mosher testified that he had been under the care of Dr. Michael Rice for “issues with Post Traumatic Stress Syndrome since October, 2004.” CP at 30. He further stated that at the time the decree and findings were entered, he was under the influence of various prescription drugs that he was taking for his condition. Finally, Mr. Mosher stated:
I did not understand that my marriage would actually be ended by signing the Decree and Findings as I thought my wife and I would be getting back together.
I was attempting to get myself well and mend our relationship. The medication made me very agreeable and open to suggestion.
CP at 30. In support of his motion, Mr. Mosher filed sealed personal health care records, which consisted of an e-mail he sent to Dr. Rice and the doctor’s progress notes.
Ms. Moreno filed a declaration in response to Mr. Mosher’s CR 60 motion. Ms. Moreno argued that the motion had no basis in fact, because Mr. Mosher’s own evidence established that he was not treated for post-traumatic stress disorder. She further argued that Mr. Mosher perjured himself in his August 7, 2007, declaration “when he testified that he did not understand that our marriage was ending, and that he was not capable of signing the pleadings because he was under the influence of `various prescription drugs.'” CP at 33. Consequently, Ms. Moreno asked the trial court to award her attorney fees and costs and sanction Mr. Mosher’s counsel, David Miller, under CR 11 for filing a frivolous motion.
A hearing on both motions was held on October 23, 2007. Both parties were represented by counsel. During oral argument, Mr. Mosher requested that the court vacate the decree under unspecified provisions of CR 60.
Mr. Mosher first challenged the decree on the basis that it failed to include the legal description or address of the marital residence and failed to include a money judgment summary. Mr. Mosher then attacked the July 2005 letter, arguing that it also did not contain the legal description or address of the property, was signed by only one of the parties, and was not incorporated into the decree. Consequently, Mr. Mosher argued that the document was not valid on its face and was, at most, “an offer of settlement.” Report of Proceedings (RP) at 5. He further claimed that even if Ms. Moreno attempted to enforce the offer of settlement under contract law, it would fail for lack of consideration. He asserted that there was no property settlement agreement and nothing for the trial court to enforce. Finally, Mr. Mosher argued that he was under the influence of psychotropic drugs at the time he signed the documents.
Ms. Moreno responded that the medical records submitted by Mr. Mosher indicate that he was oriented in time and space and understood the dissolution proceedings. She noted that by the time the dissolution was finalized, Mr. Mosher’s depression was in remission and he was no longer taking the prescribed medication. She argued that under CR 60, Mr. Mosher had one year after the passing of the disability to bring forth a CR 60 motion, which he failed to do. Lastly, Ms. Moreno argued that the parties’ intent in entering into the “property settlement agreement” was clear in light of the fact that they owned only one piece of real property.
In its oral ruling, the trial court found that Mr. Mosher had not established any basis for vacating the decree. First, the trial court found that there was no clear, cogent, and convincing evidence that Mr. Mosher was incapable of making decisions. Second, the trial court found that there was no evidence that a vacation of the decree would result in a different property distribution. In addition, the trial court found that Mr. Mosher failed to establish good cause for bringing his CR 60 motion beyond the one-year time limit. Then, noting that the parties had only one piece of property, the trial court stated “both parties know what they’re talking about from what I see from the affidavit. . . . [T]he agreement is clear that they agreed to split the equity in the property.” RP at 9. Accordingly, the trial court found that the decree should be amended to include the description of the property.
The court concluded that it did not have grounds to vacate the decree. It also determined that the decree should be enforced and the equity in the property split between the parties. Consequently, the trial court ordered that Ms. Moreno was entitled to one-half of the equity in the property at the time of the dissolution, plus interest from the date of the decree. The trial court specified that Mr. Mosher would be given credit for the payments already made. At the close of the hearing, the attorneys were instructed to figure out the value of the property at the time of the dissolution.
On October 23, 2007, the trial court entered a written order denying Ms. Moreno’s motion to enforce the property settlement agreement and Mr. Mosher’s CR 60 motion to vacate. The order incorporated the trial court’s oral ruling. The order read as follows:
It is ORDERED that: Motion to enforce CR 60 are both Denied. Parties to comply with terms of Decree entered in this matter. Court does award interest on amount of equity awarded to wife at time of Decree. Court did not determine equity or value of property. Decree is amended to include legal description of family residence.
CP at 40. Mr. Mosher now appeals.
ANALYSIS
Mr. Mosher first contends that the trial court erred by denying his CR 60(b) motion to vacate the 2005 decree of dissolution. Mr. Mosher argues that the trial court ignored the fact that the October 18, 2005, findings and conclusions and resulting dissolution decree contained no legal description of any real property which was purportedly being divided and distributed under the final divorce decree. He further argues that the separate document which Ms. Moreno has proffered as a binding contract or property settlement agreement with regard to the alleged property division was neither mutually binding on its face nor supported by consideration.
CR 60(b) provides that a court may relieve a party from a final judgment, order, or proceeding under specified circumstances. A trial court’s denial of a motion to vacate under CR 60(b) will not be disturbed absent a showing of a manifest abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). The trial court abuses its discretion only when its decision is manifestly unreasonable or based upon untenable grounds or untenable reasons. In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989). In his motion to show cause, Mr. Mosher asked the court to vacate the decree of dissolution pursuant to CR 60(b), but failed to indicate which of the subsections he relied upon in making his motion. Further, in oral argument, Mr. Mosher made reference only to CR 60. On appeal, he provides no argument addressing any provision of that court rule.
Because Mr. Mosher failed to specify the basis for his motion, Ms. Moreno responded to what she identified as the relevant subsections of CR 60: CR 60(b)(1), mistake, inadvertence, surprise, excusable neglect or irregularity in obtaining the judgment or order; CR 60(b)(2), erroneous proceedings against a person of unsound mind, “when the condition of such defendant does not appear in the record, nor the error in the proceedings”; and CR 60(b)(11), for any other reason justifying relief from the judgment. Ms. Moreno argues that the trial court did not abuse its discretion by denying Mr. Mosher’s motion to vacate because he filed the motion nearly two years after the decree had been entered and, therefore, the motion was untimely. Ms. Moreno further argues that the facts of the case do not support a vacation of the decree under any of the provisions of CR 60(b). We agree that the subsections identified by Ms. Moreno are the only potentially applicable provisions of CR 60(b). We also find no abuse of discretion.
CR 60(b) expressly provides that the “motion shall be made within a reasonable time” and “not more than 1 year after the judgment, order, or proceeding was entered or taken” if the motion is brought under either subsection (1) or (2). Additionally, if the party entitled to relief is a “person of unsound mind, the motion shall be made within 1 year after the disability ceases.” CR 60(b). Here, the trial court entered findings of fact and conclusions of law and a decree of dissolution on October 18, 2005. Mr. Mosher then filed a motion to vacate the decree on October 4, 2007, nearly two years after the dissolution was finalized. To the extent that Mr. Mosher relied on either CR 60(b)(1) or (2) as the basis for his motion, it was untimely. CR 60(b).
Even assuming the motion was timely for purposes of CR 60(b)(11), the trial court did not abuse its discretion by denying relief under that subsection of the rule. CR 60(b)(11) grants the court discretion to vacate an order or final judgment for “[a]ny other reason justifying relief from the operation of the judgment.” Despite the rule’s broad language, Washington courts have consistently held that the use of CR 60(b)(11) should be limited to situations involving extraordinary circumstances not covered by any other section of CR 60(b). In re Marriage of Furrow, 115 Wn. App. 661, 673, 63 P.3d 821 (2003) (citin In re Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367
(1985)). The circumstances alleged here are covered by either CR 60(b)(1) or (2). Accordingly, CR 60(b)(11) does not provide a basis for relief. Because the motion to vacate the decree and findings of fact and conclusions of law in the dissolution action was untimely and lacked merit, the trial court did not abuse its discretion by denying it.
Finally, we consider Mr. Mosher’s contention that the court erred by enforcing the terms of the purported property settlement agreement. Mr. Mosher argues that the July 2005 letter, as a document separate from the decree, is unenforceable under contract law because it lacks the elements of mutuality and consideration. Mr. Mosher’s argument is unpersuasive.
In its oral ruling, the trial court expressly stated that it was enforcing the terms of the decree, not the terms of the July 2005 letter, as evidenced by the following exchange:
MR. MILLER: Judge there’s no — again, there’s no way you can incorporate the letter that they referred to.
THE COURT: I’m not incorporating the letter. It says in there that they’re to split the real property 50/50, the equity.
MR. MILLER: So the letter is not incorporated?
THE COURT: No that’s in the decree.
RP at 9-10 (emphasis added). As properly noted by the trial court, the decree of dissolution and findings of fact and conclusions of law both provide that each spouse was to receive one-half of the equity in the “residence/real property” and also referred to the “house.” CP at 17, 11. The trial court correctly enforced the property distribution, as it was clear that the real property referred to was the marital residence, the only real property that the parties owned.
Moreover, the single order Mr. Mosher appealed from clearly states that Ms. Moreno’s motion to enforce the agreement was denied. The order reads as follows: “It is ORDERED that: Motion to enforce CR 60 are both Denied. Parties to comply with terms of Decree entered in this matter.” CP at 40. Finally, at the end of the hearing, the trial court instructed the parties to determine the value of the residence at the time of the dissolution. The trial court ordered that Ms. Moreno was entitled to one-half of that amount, to be determined, plus interest from the date of the decree. Accordingly, Mr. Mosher is mistaken in his belief that the trial court enforced the terms of the July 2005 letter. The trial court did not err by denying the motion.
Mr. Mosher next assigns error to the trial court’s decision to amend the decree and award Ms. Moreno interest in one-half of the equity in the marital real property from the date the decree was entered. In his appellate brief, however, Mr. Mosher provides no argument addressing this error.
It is well established that assignments of error without argument in an opening brief are deemed abanDONed and are not open to consideration on their merits. Valley View Indus. Park v. City of Redmond, 107 Wn.2d 621, 630, 733 P.2d 182 (1987); State v. Veltri, 136 Wn. App. 818, 821-22, 150 P.3d 1178 (2007). Since this assignment of error is not supported by argument or citation to authority, we need not consider it.
Ms. Moreno seeks an award of reasonable attorney fees and costs in defending against this appeal, pursuant to RAP 18.1, and sanctions against Mr. Mosher, pursuant to RAP 18.9.
RAP 18.1 allows the recovery of attorney fees or expenses on appeal where permitted by applicable law. RCW 26.09.140 authorizes an appellate court to award attorney fees and costs incurred in maintaining or defending any proceeding under the dissolution statute, chapter 26.09
RCW. Because a challenge to a decree entered under the dissolution statute is a continuation of the original action brought under chapter 26.09 RCW, fees may be awarded under the statute on a motion to vacate In re Marriage of Moody, 137 Wn.2d 979, 994, 976 P.2d 1240 (1999). In determining whether it should award fees, the court must balance the financial need of the party seeking the fees against the ability of the other party to pay. State ex rel. J.V.G. v. Van Guilder, 137 Wn. App. 417, 430, 154 P.3d 243 (2007). However, a court may award attorney fees when one party’s intransigence causes the other party to incur additional legal expenses, regardless of the relative financial ability of the parties. In re Marriage of Schumacher, 100 Wn. App. 208, 216-17, 997 P.2d 399 (2000).
Ms. Moreno properly devoted a section of her opening brief to the request, as required by RAP 18.1(b). However, RAP 18.1(c) requires a party seeking such an award to submit a financial affidavit at least 10 days prior to the date the case is set for oral argument or consideration on the merits. Failure to comply with this requirement precludes an attorney fees award. In re Marriage of Spreen, 107 Wn. App. 341, 351, 28 P.3d 769 (2001). Ms. Moreno failed to timely submit a financial affidavit demonstrating her need; therefore, we deny Ms. Moreno her reasonable attorney fees and costs on appeal.
In addition, RAP 18.9(a) authorizes sanctions for an appeal that is frivolous or brought for the purpose of delay. Moreover, CR 11 discourages filings that are not “well grounded in fact [and] warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law [and that are] not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.” Appropriate sanctions may include an award of attorney fees and costs to the opposing party See Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d 219
(2007).
Ms. Moreno asks this court to impose sanctions against Mr. Mosher under RAP 18.9, arguing that this appeal was instituted for the purpose of delay and is frivolous. Ms. Moreno points out that Mr. Mosher is in sole possession of the marital residence and three-fourths of the equity in that property. In her request for sanctions, Ms. Moreno contends that Mr. Mosher failed to raise any debatable issues upon which reasonable minds might differ and that his tactics evidence an intent to delay his final payment to her. In reply, Mr. Mosher requests sanctions based upon Ms. Moreno’s alleged efforts “to evade the issues framed by appellant, and to mislead this court,” and otherwise attempt to delay and obstruct review. Reply Br. of Appellant at 8.
Sanctions against Mr. Mosher are appropriate under RAP 18.9. The record supports that Mr. Mosher used the rules for the purpose of delay and filed a frivolous appeal. “An appeal is frivolous when there are no debatable issues on which reasonable minds would differ, when the appeal is so devoid of merit that there was no reasonable possibility of reversal, or when the appellant fails to address the basis of the trial court’s decision.” Matheson v. Gregoire, 139 Wn. App. 624, 639, 161 P.3d 486 (2007). Moreover, a frivolous action is one that “cannot be supported by any rational argument on the law or facts.” Rhinehart v. Seattle Times, Inc., 59 Wn. App. 332, 340, 798 P.2d 1155 (1990).
Applying this standard, Mr. Mosher’s appeal is frivolous. Even resolving all doubts in his favor, this appeal has raised no debatable issues upon which reasonable minds could differ. Further, Mr. Mosher’s brief cites no authority for reversal based on existing law, nor does it make a rational, good faith argument for modification of existing law. More importantly, Mr. Mosher failed to address the basis of the trial court’s decision and provided no argument challenging the trial court’s finding that his motion to vacate was untimely. Washington courts have long held that “[i]t is incumbent on counsel to present the court with argument as to why specific findings of the trial court are not supported by the evidence and to cite to the record to support that argument.” In re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998).
In addition, Mr. Mosher failed to identify which of the 11 subsections of CR 60(b) he was relying on as a basis for relief. Further, Mr. Mosher failed to provide any argument specifically addressing that rule, either at trial or on appeal. “It is not the function of trial or appellate courts to do counsel’s thinking and briefing.” Orwick v. City of Seattle, 103 Wn.2d 249, 256, 692 P.2d 793 (1984). Nor is it the function of the appellate court to “comb the record with a view toward constructing arguments for counsel.” Lint, 135 Wn.2d at 532. Because there was no reasonable basis to argue that the trial court abused its discretion, we hold that the appeal is frivolous and impose sanctions against Mr. Mosher pursuant to RAP 18.9(a).
In conclusion, we affirm the trial court and impose sanctions of $1,000 against Mr. Mosher.
A majority of the panel has determined 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.
BROWN and SWEENEY, JJ., concur.