Opinion
No. 37028-0-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 01-3-01055-4, Robert L. Harris, J., entered November 2, 2007.
Affirmed by unpublished opinion per Van Deren, C.J., concurred in by Houghton and Hunt, JJ.
Sam Angelo appeals the trial court's order finding him in contempt for noncompliance with the decree dissolving the marriage with his former spouse, Marilyn Angelo. He contends that the trial court erred by finding him in contempt, asserting that the trial court had vacated the provision regarding payments in lieu of maintenance and that Marilyn, who sought vacation of the property portion of the dissolution decree, was, therefore, judicially estopped from seeking to enforce it. We affirm and award attorney fees on appeal to Marilyn.
We refer to the parties by their first names to avoid confusion. We mean no disrespect.
FACTS
This is the second appeal in the dissolution of Marilyn and Sam's marriage. In January of 2008, we issued an opinion providing the background facts and we will not repeat them here, save for details relevant to the present appeal. In re Marriage of Angelo, 142 Wn. App. 622, 175 P.3d 1096, review denied, 164 Wn.2d 1017 (2008).
Marilyn and Sam filed an agreed dissolution decree that incorporated their separation contract. Angelo, 142 Wn. App. at 629. The separation contract expressly stated that Sam would make payments on the Bridge Road property and, "[b]ecause this payment is being made in lieu of [Sam] making direct maintenance payments to [Marilyn], his obligation is . . . subject to the court's contempt powers." Clerk's Papers (CP) at 30.
On August 21, 2002, Marilyn requested that the trial court vacate the "property portion of the dissolution decree" because Sam had failed to comply with their out-of-court agreement; the trial court did so on April 18, 2003. Angelo, 142 Wn. App. at 631. On May 10, 2006, the trial court awarded judgment to Marilyn on her tort claims and Sam appealed. Angelo, 142 Wn. App. at 634-35.
While the case was before us on appeal, on September 11, 2007, Marilyn filed a contempt motion in the dissolution action, Clark County cause number 01-3-01055-4. On November 2, 2007, the trial court found Sam in contempt for failure to make the final balloon payment on the Bridge Road property "[i]n lieu of additional spousal maintenance" and awarded judgment against him in the amount of $130,093 for the unpaid balance and $1,500 for attorney fees. CP at 9.
Sam appeals the contempt ruling.
ANALYSIS
I. Standard of Review
We review a trial court's decision in a contempt proceeding for an abuse of discretion. Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995). "A trial court abuses its discretion by exercising it on untenable grounds or for untenable reasons." In re Marriage of Myers, 123 Wn. App. 889, 892-93, 99 P.3d 398 (2004).
II. Trial Court's Authority To Impose Contempt Sanction during Appeal
Sam did not post bond or seek to stay enforcement of any orders while the prior case was on appeal. See RAP 8.1. Thus, the trial court retained authority over contempt proceedings. RAP 7.2(c); see In re Marriage of Burrill, 113 Wn. App. 863, 873-74, 56 P.3d 993 (2002) (trial court had authority to award husband judgment for damage done by the wife to the family home while the appeal was pending).
III. Vacation of Decree's Property Provisions
Sam argues that when the trial court vacated the property portion of the dissolution decree, it not only vacated the division of property, but also the requirement that Sam make payments on the Bridge Road property "[i]n lieu of additional spousal maintenance." CP at 9.
Paragraphs 3.3 and 3.7 of the decree of dissolution, describing Marilyn's award of property and spousal maintenance, respectively, both incorporate the separation contract.
He contends that he was under no obligation to pay the final balloon payment on the Bridge Road property and, therefore, the trial court erred by holding him in contempt for his failure to do so.
Sam nevertheless contends that the court erred by finding him in contempt because section six of the separation contract, which describes the nature of the Bridge Road property payments, is ambiguous. Accordingly, since classification of future payments as spousal maintenance or property division depends on the "circumstances and intent of the parties," Sam argues that we should construe the separation contract against Marilyn, whose attorney drafted the contract. Thompson v. Thompson, 82 Wn.2d 352, 356, 510 P.2d 827 (1973).
"Our `collateral bar' rule states that a court order cannot be collaterally attacked in contempt proceedings arising from its violation, since a contempt judgment will normally stand even if the order violated was erroneous or was later ruled invalid." State v. Coe, 101 Wn.2d 364, 369-70, 679 P.2d 353 (1984). "However, we have long recognized at least one exception: a contempt conviction will fall if the underlying order was not within `the scope of the jurisdiction of the issuing court,' but Sam has not argued, and cannot show, that this exception applies. Coe, 101 Wn.2d at 370 (citations omitted) (quoting Mead School Dist. No. 354 v. Mead Educ. Ass'n, 85 Wn.2d 278, 280, 534 P.2d 561 (1975)). Sam had a right to challenge this portion of the decree as ambiguous in the prior appeal, but chose not to exercise that right.
Even so, we see nothing ambiguous about the provisions in the separation contact requiring Sam to make payments towards the Bridge Road property. It clearly and repeatedly denotes these payments as maintenance under the section entitled "Provisions for Maintenance." CP at 9. Sam contends that "Section 6 [is] inconsistent with spousal maintenance because, unlike maintenance, it does not terminate upon [Sam's] death or [Marilyn's] remarriage or death[] and . . . the obligation . . . continue[s] until `[Marilyn's] property is paid in full.'" Br. of Appellant at 13 (quoting CP at 10). But under RCW 26.09.170(2) parties can expressly agree that a maintenance obligation continue beyond either party's death or the obligee-spouse's remarriage.
Sam also contends, without citation to authority, that the non-taxable nature of the payments is only consistent with a property division. Sam is generally correct that amounts received by a person as alimony or separate maintenance payments constitute gross income to the payee and the payor may deduct such amounts. 26 U.S.C. §§ 71, 215. But if the dissolution decree or separation contract specifically designates otherwise qualifying amounts as nondeductible to a payor or excludable from income of a payee, then those provisions will control, and these amounts will not be considered to be taxable or deductible alimony or separate maintenance. See 26 U.S.C. § 71(b)(1)(B). Here, the separation contract provides that these payments in lieu of additional maintenance "should not be considered taxable income to [Marilyn], nor deductible by [Sam]." CP at 30.
Sam's appeal relies on the trial court's April 18, 2003, order vacating the property portion of the decree of dissolution to support his argument that the court also vacated his obligation to make payments on the Bridge Road property. The trial court's vacation order stated:
1. [Marilyn's] Motion to Vacate the Property portion of the Decree is granted. Both parties shall have continued temporary use of properties awarded in Decree.
2. All other provisions in the Decree of Dissolution entered February 12, 2002, and the Separation Contract incorporated therein shall remain in full force and effect.
CP at 15.
Although we agree that the order lacks some degree of clarity regarding the exact vacated property provisions, the record does not show that Sam filed a request to subsequently clarify the order. Nor did he challenge this order in his first appeal. In fact, following the vacation order on April 18, 2003, Sam continued to make monthly payments on the Bridge Road contract in compliance with the decree of dissolution for four years, that is, until the balloon payment came due on April 19, 2007. Because nothing in the trial court's order vacating the property provisions addresses vacation of maintenance obligations or payments in lieu of maintenance, Sam's argument fails.
Neither party provided a record of the hearing on the vacation order; thus, we cannot review the trial court argument or ruling.
Marilyn argues that Sam should be estopped from challenging the order to vacate. Equitable estoppel requires "`(1) an admission, statement, or act inconsistent with the claim afterward asserted; (2) action by the other party on the faith of such admission, statement, or act; and (3) injury resulting from allowing the first party to contradict or repudiate [such admission, statement, or act].'" In re Marriage of Barber, 106 Wn. App. 390, 396, 23 P.3d 1106 (2001) (alteration in original) (internal quotation marks omitted) (quoting In re Marriage of Hunter, 52 Wn. App. 265, 271, 758 P.2d 1019 (1988)).
Here, Sam continued to make payments for four years after the court vacated the property part of the decree. Marilyn asserts that these payments caused her to rely on the effectiveness of the separation contract and bring the present appeal. Finally, she asserts that if Sam
is now allowed to claim that the obligation under the real estate contract is part of the property division, [she] is injured as she has no redress while the dissolution action is still pending to cause the husband to meet this obligation, and the home where [she] and [the] children reside will be at risk for foreclosure.
CP at 15-16. But "[c]ourts do not favor equitable estoppel, and the party asserting it must prove every element with clear, cogent, and convincing evidence." Barber, 106 Wn. App. at 396. And because we affirm the contempt ruling on other grounds, we need not decide Marilyn's equitable estoppel claim.
IV. Judicial Estoppel
Sam also contends that Marilyn is "judicially estopped from enforcing `maintenance' payments on property awarded to [her], as required by Section 6 of the Separation Contract, if [she] has previously caused the actual award of property to [her], as set forth in Section 2, to be vacated." Br. of Appellant at 9. For support, he cites the judicial estoppel rule from Save Columbia Credit Union Committee v. Columbia Community Credit Union, 134 Wn. App. 175, 186, 139 P.3d 386 (2006), "the party to be estopped must be asserting a position that is inconsistent with an earlier position, the party seeking estoppel must have relied on and been misled by the other party's first position, and it must appear unjust to permit the estopped party to change positions."
But in Save Columbia we held that the trial court properly refused to apply judicial estoppel against a nonprofit corporation composed of credit union members suing their credit union and its board of directors. 134 Wn. App. at 178, 186. The nonprofit's statement that the directors were "`presently members of the board of directors'" was not inconsistent with their later argument that the directors were serving in violation of the organization's bylaws. Save Columbia, 134 Wn. App. at 186 (quoting Save Columbia CP at 436).
Similarly here, Marilyn requested that the trial court vacate the property division provided in the decree. The trial court agreed, vacating the "[p]roperty portion" of the decree but specifying that "[a]ll other provisions of the Decree of Dissolution entered February 12, 2002, and the Separation Contract incorporated therein shall remain in full force and effect." CP at 15. As such, we hold that (1) Marilyn did not seek to vacate the maintenance provision, (2) the trial court did not vacate the maintenance provision, and (3) Marilyn's enforcement of the maintenance provision is not inconsistent with her earlier position. Sam's judicial estoppel argument fails.
V. Contempt Order for Failure To Pay Maintenance
Sam contends that the trial court abused its discretion by finding him in contempt for failure to pay the balloon payment on the Bridge Road property. When the trial court found Sam in contempt, it entered an unchallenged finding of fact that Sam violated the dissolution decree by failing to comply with the trial court's maintenance order. We consider unchallenged findings to be verities on appeal. Young v. Young, 164 Wn.2d 477, 482 n. 2, 191 P.3d 1258 (2008).
The trial court found:
The Decree of Dissolution incorporating the Separation Contract provided that [Sam] was to make the payments on the Bridge Road property directly to Rodney Peterson in lieu of spousal maintenance[.] That Contract provided a balloon payment would be made on or before April 19, 2007[.] [Sam] acknowledged contracting Rodney Peterson to extend the terms of the Contract, and made an oral agreement not to pay the balloon payment. The Contract payment and the balloon payment were ordered in lieu of maintenance, and [Sam] has failed to comply with the maintenance order of the Court[.]
In the findings of fact, the trial court appears to use both "Petitioner" and "Respondent" to refer to Sam, given that Sam petitioned for dissolution, but Marilyn petitioned for the contempt ruling. Accordingly, these findings are somewhat confusing to read but are overall clear in context.
CP at 111 (emphasis added). Because these findings are verities on appeal, we review the trial court's contempt ruling based on Sam's failure to pay maintenance, and Sam's claim that the payments were part of the vacated property provisions fails.
RCW 7.21.010(1)(b) defines "[c]ontempt of court" as intentional "[d]isobedience of any lawful judgment, decree, order, or process of the court." In a dissolution proceeding, the trial court has authority to enforce its decree and orders using its contempt powers. In re Marriage of Mathews, 70 Wn. App. 116, 126, 853 P.2d 462 (1993). Contempt for nonpayment is appropriate "only if payment is related to support." In re Marriage of Curtis Phillips, 106 Wn. App. 191, 199, 23 P.3d 13 (2001).
"If . . . the parties designate certain payments as support money, such designation, when it becomes part of a decree, will be accepted as representing the intention of the court unless other portions of the decree make it apparent that the payments were intended as part of a property settlement." Berry v. Berry, 50 Wn.2d 158, 161, 310 P.2d 223 (1957). Here, both parties signed the separation contract, which clearly and repeatedly denotes the Bridge Road payments as payments "[i]n lieu of additional spousal maintenance," under the section entitled "Provisions for Maintenance." CP at 9. Thus, Sam cannot meet his burden of showing that these payments were not for spousal maintenance.
Furthermore, the trial court found that Sam "deliberately failed to comply" with the maintenance provision of the dissolution decree and that he intentionally missed the balloon payment on the Bridge Road property, despite his ability to comply with the order. CP at 111. Sam does not challenge any of these findings, making them verities on appeal. See Young, 164 Wn.2d at 482 n. 2. Finally, the agreed separation contract, which the parties incorporated into the decree of dissolution, stated that this "obligation is . . . subject to the court's contempt powers." CP at 30. Thus, the trial court did not abuse its discretion by finding Sam in contempt for failure to pay maintenance when he refused to pay the balloon payment that came due in 2007.
VI. Attorney Fees
Both Marilyn and Sam seek attorney fees and costs on appeal. "An award of attorney fees and costs may be granted in an appellate court's discretion under RCW 26.09.140. Upon a request for fees and costs under RCW 26.09.140, courts will consider `the parties' relative ability to pay" and `the arguable merit of the issues raised on appeal.'" In re Marriage of Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779 (2005) (quoting In re Marriage of Leslie Verhey, 90 Wn. App. 796, 807, 954 P.2d 330 (1998)).
We may also award attorney fees under RCW 7.21.030(3) to "[a] party defending the appeal of a contempt order." Curtis, 106 Wn. App. at 202. In addition, the separation contract provides that "[i]n the event of litigation to enforce any terms, provisions or conditions of this Contract, whether in an action relating to dissolution (including post-decree proceedings such as modification or appeal), or in a separate proceeding, the prevailing party may be awarded reasonable attorney fees and costs." CP at 13.
Under RAP 18.1(c), each party has until no later than ten days prior to the oral argument to serve upon the other, and file, a financial affidavit. Because we find no merit to Sam's arguments on appeal, we award attorney fees and costs to Marilyn in an amount to be determined by a commissioner of this court, noting her compliance with RAP 18.1(c).
Sam seeks attorney fees and costs "[b]ecause this appeal is the fruit of the contradictions within an over-reaching and even unconscionable contract drafted by the wife's counsel." Br. of Appellant at 15. But he cites no legal authority and RAP 18.1 requires counsel to support fee requests with argument and citation to legal authority. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998); see RAP 18.1(b). We deny Sam's request for fees and costs.
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.
Houghton, J. and Hunt, J., concur.