There have not been many published family law cases of late. I thought since there were a couple of unpublished decisions, I would mention them, even though they do not seem to offer much in terms of legal interpretations, but sometimes it’s interesting to see what’s happening in other family law cases.
In Re Marriage Of: Halligan,, App., Docket No. 71391-4; Opinion Author: Linda Lau; Concurring; Dwyer and Shindler; Counsel for Appellant John Halligan (Pro Se); Counsel for Respondent Micheal Schein
Brief Facts: Couple married 9/1995 and separated 6/2012. One child born in 2011. Husband gross income ~$13,000; W gross income ~$3,200. Total assets about $564k distributed 60% to Wife and 40% to Husband. For a seventeen year marriage, wife was awarded five years of maintenance at $3,500. There was also a child support award amount, but the amount was unclear (at one point it looked as if the $3,500 may have been maintenance and child support, but I think it was on top of the $3,500 in maintenance).
Issue 1: Retirement Benefits: The parties used Steven Kessler, whom the court described as “an experienced certified public accountant” to calculate the value of their retirement plans. Husband did not challenge the valuation of one of the retirement pensions during the expert’s testimony, but did on his direct testimony. The admission of the report without objection and the lack of questioning the expert on this point were significant factors and the court felt his opinion was largely unchallenged factored heavily into the court’s decisions as there was nothing in the record to indicate that the trial court’s decision to rely on Kessler’s opinion was unreasonable or an abuse of discretion.
Issue 2: Attorney’s Fees: Husband also challenge the award of attorney’s fees to Wife at the trial level. When a party seeks to challenge the attorney’s fees, they must establish that “the court used its discretion in an untenable or manifestly unreasonable manner.” Wife had incurred attorneys fees of $60,621 and the court awarded $18,000 in attorney’s fees. Division 1 declined to overturn the court’s award of attorney’s fees.
Issue 3: Exclusion of Expert Witness: Husband attempted to provide the testimony and report of Neil Bennett, a vocation counselor. He did not disclose it in a timely manner and the court sanctioned Husband by excluding the witness. Here Division I notes that in Husband’s appeal he made factual assertions not supported by the record in violation of RAP 10.3(a)(6). Division I noted that when a trial court imposes a severe sanction, such as witness exclusion, the record must clearly demonstrate that the court considered (1) whether the violation was willful or deliberate; (2) whether the violation substantially prejudiced the opponent’s ability to prepare for trial; and (3) whether a lesser sanction would probably suffice. Division I noted that the trial court considered all three factors on the record and there is no evidence of abuse of discretion in the exclusion of the testimony.
An notes is that the trial court rejected the claim that a continuance automatically extended all discovery deadlines without entry of a new case scheduling order or the court’s approval.
Issue 4: Post-Separation Payments to Fidelity 401(k): The post-separation payments to the 401(k) were connected to a loan from the 401(k) to buy the property. The trial court noted this and found no need to provide credit for payment to a debt assigned under temporary orders. Division I found no abuse of discretion and also noted that mischaracterization of property is not grounds for setting aside the trial court’s property distribution if the division of the property is fair and equitable and that this post-separation payment was not crucial to the court’s decision.
Issue 5: Federal Tax Exemption: Husband made an argument that there was a scrivener’s error in allocating the tax exemption to the Wife instead of alternating, but the record indicates that the tax exemptions were awarded in connection with the amount of child support payments.
issue 6: Verification of Work-Related Daycare Expenses: Husband wanted some sort of proof for work-related daycare expenses, but he failed to provide any meaningful legal argument or citation to relevant authority and the court declined to consider his argument.
Attorney’s Fees on Appeal: Despite an overall tone of the opinion that sounded like there were at least some points the court thought were without merit, the court did not award attorney’s fees on appeal.
In Re The Marriage Of: Robin Maelee Hitz, Res. And Eric James Hitz, App.; Docket No. 71413-9; Opinion Author: Spearman, Concurring: Applewick & Dwyer; Counsel for Appellant: T Reinhard G ‘ron’ Wolff; Counsel for Respondent: Robin Maelee Hitz (Appearing Pro Se).
Husband appeals, claiming that the trial court “lost jurisdiction” (Division I’s quote) ove the case. Division I notes Husband misrepresents relevant facts and that no authority supports is claim that the dissolution became a new proceeding for purposes of the statutory entitlement to a change of a judge when the bankruptcy court lifted a stay and allowed the dissolution to proceed.
Brief Facts: Husband and Wife owned a business together. The judge disclosed a relationship owned by his family and the bank and the parties waived any potential conflict. There was a nine-day trial. The decree assigned Wife the responsibility of liquidating the community assets as paying debts owed. Husband didn’t cooperate and his parents filed a lawsuit against the parties in 2012 claiming an unsecured promissory note (the judge disqualified itself from this case, but noted he thought it had been unnecessary). In April 2012, funds were ordered to be divided between the bank, the parents pursuant to their lawsuit and the parties. Husband filed motions for recusal without noting his motions for hearing. At some point Husband also filed for bankruptcy. After a stay lifted pursuant to the bankruptcy filing, the court denied the motion for recusal, awarded Wife $18,000 in attorney fees and entered a restraining order against Husband. The court also denied Husband’s motion for reconsideration an imposed sanctions against Husband of $5,000 under CR 11.
Division I Discussion: Division I notes that appellant’s brief must contain an argument with legal authority and references to the relevant part of the orders and that Husband’s legal arguments are based on assertions of fact largely unsupported by any reference to the records and that some citations are inaccurate or contradicted by the record.
Recusal – Division I notes that Husband’s argument is factually incorrect as the judge recused himself in a different case and expressly declined to recuse himself in this case. The affidavit of prejudice was also untimely and Husband’s argument that the bankruptcy court granting relief from the automatic stay did not somehow create a new action. It was not a modification, but a continuation of the original issue.
Attorney’s Fees – Husband’s request for attorney’s fees was denied. The court did find that appeal was frivolous, but did not impose additional sanctions. The court did award attorney’s fees for wife.
Nathan Brown, Iii, Appellant V. Mi K. Brown, Respondent, Docket No. 71398-1, Opinion Author: Dwyer; Concurring: Spearmand and Appelwick; Attorney for Appellant: Nathan Brown III (Appearing Pro Se); Attorney for Respondent: Joseph Orry-leroy Baker
Father’s petition for a parenting plan modification was dismissed and sanctions were imposed for his failure to comply with the court’s scheduling order. Court affirmed and found his appeal frivolous and awarded fees to Mother.
Basic Facts: Original parenting plan provided three sons reside a majority of time with Mother. Father sought to modify. A superior court commissioner entered orders finding adequate cause for a trial and appointed a GAL. After the GAL filed her report Father filed a motion for a temporary order adopting his proposed parenting plan and “several provisions of the GAL report” and terminating child support based on the age of the oldest child and requesting a change of residence for the other two children. The commissioner denied the request for change in the residential schedule pending trial and stated that no child support adjustment was properly before the court. Over the next couple of months Father did not file pleadings required by the case schedule or the pretrial conference order, including no witness or exhibit list, no financial declaration, and no trial brief. Mother filed a motion to dismiss the petition with prejudice and terms based on Father’s file to comply with the case schedule. The court found there was “absolute noncompliance” with court orders and nothing would suggest mitigating circumstances and awarded terms in the amount of 75% of Mother’s attorney fees.
Division I Discussion: While dismissal is disfavored it is justified when a party willfully and deliberately disregards reasonable court orders, resulting in prejudice to the other party, and impairing the efficient administration of justice under CR 41(b). Disregard of a court order without reasonable excuse or justification is deemed willful.
Division I rejects the following claims by Father:
1 – Commissioner’s temporary order resolved issues making trial unnecessary (new issue on appeal). The temporary order was only temporary pending trial – argument rejected.
2 – The “or” was disjunctive and therefore terms and sanctions should not have been awarded. Plain language is clear that this is not what the statute intends- argument rejected.
3- The trial court erred in placing the sanctions on Father instead of Father’s attorney. Statute is clear sanctions can be on individual or attorney – argument rejected.
4- Mother was not prejudiced and that Mother failed to sufficiently mitigate her prejudice. Mother’s attorney had to prepare and also attempted to follow-up with Father’s attorney to make sure deadlines were met – argument rejected.
5- Father was not sufficiently warned about sanctions (new issues on appeal). Terms are clear under KCLCR 4(g)(4), plus Mother’s attorney had numerous calls, e-mails and letters to Father’s counsel regarding failure to comply with case schedule – argument rejected.
Division I granted Mother’s request for fees on appeal. The court stated that Father’s appeal presented no debatable issues and mother entitled to an award of fees and costs on appeal.