No. 47223-2-I.The Court of Appeals of Washington, Division One.
Filed: November 13, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Whatcom County, No. 99-3-00516-3, Hon. Michael F. Moynihan, August 11, 2000, Judgment or order under review.
Counsel for Appellant(s), Philip J. Buri, Brett Daugert, 300 N Commercial St, Bellingham, WA 98227-5008.
Counsel for Respondent(s), David G. Porter, 103 E Holly St Ste 409, Bellingham, WA 98225-4728.
MARLIN J. APPELWICK
We are asked to determine whether a recommended property division in a pro se joint petition for dissolution constitutes an enforceable separation contract. Although a petition for dissolution may contain a separation contract, a joint petition that contains a recommended property division is not a separation contract per se. Because the petition in this case does not satisfy the elements of a separation contract, we reverse and remand.
FACTS
On August 18, 1995, Desire Duvall-Wilson married Brian Wilson and moved into a house he owned. In June 1998, the couple sold that house and used the net proceeds plus a gift from Wilson’s parents to purchase a home at 912 South Hills Drive in Bellingham, Washington. Years later, Duvall-Wilson and Wilson discussed ending their marriage. Without the assistance of attorneys, they discussed how to divide their property and Duvall-Wilson filled out by hand a court form for a summons and petition for dissolution of marriage. The petition for dissolution named Duvall-Wilson as the petitioner and Wilson as the respondent. That petition states, in part:
1.7 PROPERTY
There is community or separate property owned by the parties. The court should make a fair and equitable division of all the property.
[X] The petitioner’s recommendation for the division of property is set forth below.
[X] The petitioner should be awarded the parties’ interests in the following property: 50% of sale after expenses of family home at 912 South Hills Drive, Bellingham, Washington 98226. . . . See Exhibit 1.
The referenced Exhibit 1 includes the following language:
The net proceeds from the sale of the family home shall be divided equally (50/50) by the Escrow Company, and distributed by two separate checks to each Party in their own names, after the deductions.
Duvall-Wilson signed the petition but did not verify it under oath or declaration.[1] Wilson signed the petition on the line where Duvall-Wilson was to have signed, declaring under penalty of perjury that it was true and correct.[2] Farther down below the signatures is a hand-written statement that reads, `I agree that this is an uncontested divorce.’ This statement is signed by Wilson. The petition was filed on August 30, 1999, and Duvall-Wilson and Wilson separated on September 9, 1999.
On February 10, 2000, Wilson through an attorney filed a `response to petition’ in which he admitted and denied allegations in Duvall-Wilson’s petition for dissolution of marriage. Specifically, he denied the above-quoted section 1.7 of the petition because ‘[t]he proposed division is not fair nor equitable.’ On February 16, 2000, Duvall-Wilson and Wilson sold the Bellingham house.
On June 8, 2000, Duvall-Wilson through an attorney filed a motion for summary judgment on the petition for dissolution of marriage, urging the trial court to enforce the provisions set forth in the petition. The trial court judge granted Duvall-Wilson’s motion and entered an `order specifying facts without material controversy[.]’ That order included the following language:
[T]he following facts appear to be without substantial controversy.
1. The parties have agreed to share equally (50%) from the proceeds of the sale of the Bellingham residence[.] . . .
NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED and DECREED that, in the trial of this cause, the aforementioned facts shall be deemed established, and that said trial shall be conducted accordingly.
On July 31, 2000, a trial was held. Following trial, the trial court entered findings of fact and a decree of dissolution. It identified the Bellingham house as `community property,’ and indicated that Wilson `joined’ Wilson-Duvall’s petition for dissolution of marriage. The trial court characterized the pro se petition for dissolution as a `separation contract’ and divided the proceeds from the sale of the Bellingham home equally between Duvall-Wilson and Wilson:
2.7 SEPARATION CONTRACT
A written separation contract, which is also the petition for dissolution of marriage, was executed on August 29, 1999, and is filed herein. The parties have agreed to share equally (50%) from the proceeds of the sale of the Bellingham residence which is currently being held in the Whatcom Superior Court registry. The separation contract/petition for dissolution of marriage was fair at the time of its execution. The separation contract/petition for dissolution of marriage should be approved with the terms of the separation contract incorporated into the Decree of Dissolution of Marriage.
The trial court denied Wilson’s motion for reconsideration and he appeals.
DISCUSSION I. Recommended Property Division
Wilson contends that the trial court erred by granting Duvall-Wilson’s motion for summary judgment on the issue of dividing the proceeds from the Bellingham house evenly between him and Duvall-Wilson, as Duvall-Wilson recommended in the pro se petition for dissolution that he signed under penalty of perjury. He argues that the recommended property division in the petition does not constitute a binding separation contract. Summary judgment is appropriate if, considering all evidence and reasonable inferences therefrom in the light most favorable to the nonmoving party, `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ CR 56(c); see Van Dinter v. City of Kennewick, 121 Wn.2d 38, 47, 846 P.2d 522
(1993). When reviewing summary judgment orders, this court engages in the same inquiry as the trial court. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).
Either or both parties to a marriage may initiate a proceeding for dissolution of marriage. RCW 26.09.020. Such a proceeding begins with the filing of a petition for dissolution of marriage in superior court. RCW 26.09.010(2), (4). That petition must be on a court-approved form and include, inter alia, a statement specifying whether there is community or separate property owned by the parties to be disposed of. RCW 26.09.006(1), RCW 26.09.020(1)(g). Upon the filing of a petition for dissolution of marriage, parties may enter into a written separation contract disposing of any property owned by both or either of them. RCW 26.09.070(1). Such a separation contract is binding upon the court unless it finds, after considering the economic circumstances of the parties and any other relevant evidence produced by the parties, `that the separation contract was unfair at the time of its execution.’ RCW 26.09.070(3); see In re Marriage of Burke, 96 Wn. App. 474, 479, 980 P.2d 265[979 P.2d 265, (1999). Absent a valid separation contract disposing of property, the trial court has discretion to make the ultimate determination of how the property is to be divided. See In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990).
A petition is the initial pleading in a proceeding to obtain a decree of dissolution. RCW 26.09.010(4). “A verified assertion in a pleading is a conclusive concession of the truth of the matter pleaded. Such an assertion is not treated procedurally as evidence, but it may be relied upon by the parties and the court as part of the case.” In re Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 157 (1983) (quoting Brecher v. Gleason, 27 Cal.App.3d 496, 499 n. 1, 103 Cal.Rptr. 831 (1972)). A party is, however, permitted to amend his or her pleadings. CR 15(a). He or she may do so `once as a matter of course’ if a responsive pleading has not been served or if the action has not been placed upon the trial calendar. CR 15(a). Thereafter, the party must obtain leave of court to amend a pleading. CR 15(a). Under such circumstances, `leave shall be freely given when justice so requires.’ CR 15(a). The civil rules, including CR 15(a), apply to petitions for dissolution of marriage. RCW 26.09.010(4).
Although a petition for dissolution may contain a separation contract, a joint petition for dissolution that contains a property division is not a separation contract per se. At issue in this case is whether the joint petition for dissolution constitutes an enforceable separation contract or whether it is merely a pleading that may be amended. The record indicates that Duvall-Wilson and Wilson discussed the contents of the petition pertaining to property division and voluntarily signed the petition for dissolution. The language in the petition, however, does not resemble a contract. `A traditional bilateral contract is formed by the exchange of reciprocal promises. The promise of each party is consideration supporting the promise of the other.’ Govier v. North Sound Bank, 91 Wn. App. 493, 499, 957 P.2d 811 (1998). The petition contains a recommendation from the petitioner that the court divide the net proceeds from the sale of the Bellingham house evenly between the parties. The petition asks the court to make a fair and equitable division of all the property. It also instructs the court how to issue checks to each party. The petition, which is hand-written on a mandatory form, satisfies the requirements of RCW 26.09. The language in the petition does not, however, indicate that the parties intended the petitioner’s recommended property division be binding upon the court. Moreover, the petition does not appear to be a disposition of property that Duvall-Wilson and Wilson drafted after an exchange of reciprocal promises, as required for a contract. Thus, the petition does not satisfy the elements of a separation contract. Rather, it is a pleading that may be amended. Wilson was therefore entitled to withdraw his joinder and to file a responsive pleading at the time he did so. RCW 26.09.010(4).
Duvall-Wilson nonetheless argues that Wilson’s declaration under penalty of perjury that `this is an uncontested divorce’ must be regarded as a stipulation under CR 2A. She urges this court to conclude based upon this statement that Wilson is bound to an even division of the net proceeds from the Bellingham house.
CR 2A states:
RULE 2A. STIPULATIONS
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.
The party moving to enforce a settlement agreement has the burden of proving that there is no genuine dispute regarding the agreement’s existence and material terms. In re Marriage of Ferree, 71 Wn. App. 35, 41, 856 P.2d 706 (1993).
In this case, it is undisputed that the joint petition for dissolution was never `made and assented to in open court on the record, or entered in the minutes[.]’ CR 2A. Because Duvall-Wilson and Wilson signed the petition pro se, the document was not `subscribed by the attorneys denying the same.’ CR 2A. It therefore does not satisfy the requirements for a stipulation set forth in CR 2A.
Moreover, the term `divorce’ is ambiguous under Washington law. In 1973, the Legislature repealed the Divorce, Annulment and Separate Maintenance Act and enacted the Dissolution of Marriage Act. RCW 26.09; RCW 26.08 (repealed by 1973 Laws of Wash, 1st Ex. Sess., ch. 157, § 30. Thus, Wilson’s statement that he agreed to an `uncontested divorce’ offers no guidance as to whether he intended merely not to contest that the marriage was irretrievably broken or whether he intended to join Duvall-Wilson’s recommended property division. For summary judgment purposes, Wilson is entitled to all reasonable inferences from the evidence. Thus, Duvall-Wilson did not sustain her burden of proving that there is no genuine dispute regarding the agreement’s existence and material terms.
Because the joint petition for dissolution does not satisfy the elements of a separation contract, the recommended property division in that petition is not binding on the parties or the court. We, however, offer no opinion on the fairness of the recommended property division. We reverse the summary judgment order and remand this case to the trial court for trial on the property issues.
II. Attorney Fees
Duvall-Wilson urges this court to order Wilson to pay her costs and attorney fees under RAP 18.9(a) for defending a frivolous appeal and under RCW 26.09.140 for Wilson’s intransigence. Because Wilson’s appeal is not frivolous, we decline to award Duvall-Wilson costs or fees under RAP 18.9(a). RCW 26.09.140 states:
The court . . . after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney’s fees or other professional fees in connection therewith[.]
“The purpose of the statutory authority is to make certain that a person is not deprived of his or her day in court by reason of financial disadvantage.” In re Marriage of Burke, 96 Wn. App. 474, 479, 980 P.2d 265, [979 P.2d 265] (1999) (quoting 20 Kenneth W. Weber, Washington Practice: Family and Community Property Law § 40.2, at 510 (1997)). A court may, however, award attorney fees under this provision without regard to the financial resources of the requesting party when one party’s intransigence causes the other party to incur additional fees. In re Marriage of Crosetto, 82 Wn. App. 545, 563-64, 918 P.2d 954
(1996). Because there is no indication that Duvall-Wilson was or would be deprived of her day in court or that intransigence was an issue, we decline to award costs or fees under this provision.
Reversed and remanded.
WE CONCUR: GROSSE, J., COLEMAN, J.