Opinion
No. 36807-2-II.
April 21, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 01-3-03636-9, John A. McCarthy, J., entered August 31, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Penoyar, A.C.J., and Bridgewater, J.
UNPUBLISHED OPINION
This is Ronald K. Bobbitt's second appeal on several issues that arose after he and Kimberly S. Esser dissolved their marriage. He argues first that he is entitled to prejudgment interest on the proceeds of Esser's unauthorized sale of his property, which she did to satisfy judgments she had against him. Bobbitt also challenges the trial court's award of attorney fees and guardian ad litem (GAL) fees against him because of his intransigence in a proceeding to modify the parenting plan. Finally, Bobbitt requests attorney fees that he incurred in a previous appeal to this court. We affirm the trial court and deny Bobbitt's request for fees.
FACTS
A. Modification Proceeding
Esser and Bobbitt dissolved their marriage in 2002. A year after the dissolution, Esser petitioned to modify the parenting plan pertaining to their only child, K.B.; the trial court granted Esser the relief she sought.
1. Attorney Fees
The trial court also awarded Esser $10,000 in attorney fees against Bobbitt "for the necessity of having to pursue this action." Clerk's Papers (CP) at 32. We reversed that award on appeal because the trial court had not made sufficient findings of fact regarding the parties' relative needs and Bobbitt's ability to pay. In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006); see RCW 26.09.140. We also cautioned the trial court that although it could award attorney fees for a party's intransigence, it must find facts sufficient to support the conclusion. Bobbitt, 135 Wn. App. at 30.
On remand, the trial court awarded Esser $5,000 in attorney fees because of Bobbitt's intransigence and lack of cooperation, entering these findings of fact and conclusions of law:
FINDINGS OF FACT
1. [Bobbitt] refused to see the parties' son for a substantial period of time after the decree of dissolution, which led to [Esser's] petition for modification of the residential schedule.
2. [Bobbitt] trespassed on the property of [Esser] and manipulated the parties' son to take pictures of trash cans. [Bobbitt's] purpose in doing so was to attempt to prove that [Esser] was an unfit mother.
3. [Bobbitt] harassed [Esser] at her place of employment with false allegations regarding her use of office time.
4. [Bobbitt] manipulated the parties' son to contact his grandparents and ask them why they were against him.
5. The parties' son suffered as a result of [Bobbitt's] actions by making the child feel as if he must choose between his parents.
6. When the GAL began her investigation in April of 2003, [Bobbitt] failed to pay his share of the GAL's retainer and failed to schedule an appointment with her or provide her with any written materials. This conduct resulted in a delay of the modification proceedings. [Bobbitt] did not request to meet with the GAL until September of 2003.
7. [Bobbitt] harassed [Esser's] current husband requiring him to take legal action to obtain a restraining order.
8. [Bobbitt] made a complaint to Child Protective Services against [Esser] that was unfounded and made solely for the purpose of harassment.
9. [Bobbitt] violated the court's order making it necessary for [Esser] to file a motion for contempt.
10. [Bobbitt] failed to take the parties' son to his counseling appointments.
11. [Bobbitt] unilaterally removed the parties' son from the custody of the person that [Esser] had arranged as a caregiver while she was [on] a business trip and refused to return the parties' son to such person.
12. [Bobbitt] made it a practice of blaming his problems on everyone but himself, including his own attorneys, the GAL and [Esser].
13. [Bobbitt] did not object to the appointment of Dr. Klein until after Dr. Klein's report was filed.
14. [Bobbitt] did not object to the GAL until February 18, 2004, which was nearly a year after her appointment on March 20, 2003
CONCLUSIONS OF LAW
1. [Bobbitt's] conduct improperly placed the parties' son in the middle of the modification action.
2. [Esser] was required to go through a lot of unnecessary litigation as a result of [Bobbitt's] actions.
3. The modification proceedings were delayed because of [Bobbitt's] actions.
CP at 490-92.
2. Guardian Ad Litem Fees
Before the original modification proceeding, the trial court appointed Virginia Ferguson as a GAL on the parties' stipulation. Under her fee agreement, Ferguson billed Bobbitt for 50 percent of her fees, for a total of $5,779.74. Bobbitt paid $1,179.75 of the fees but refused to pay the rest, contending that Ferguson refused to work with him or interview his witnesses. Ferguson moved with a supporting declaration for a judgment against Bobbitt for the remaining $4,070.74 of her fees; the trial court granted the motion. But we reversed the award on appeal, holding that Ferguson had violated GALR 2(b), (f), (g), and (o), and that the trial court therefore should have used its discretion to consider reducing Bobbitt's share of the GAL fees instead of basing its ruling only on Ferguson's invoices. Bobbitt, 135 Wn. App. at 26, 32.
On remand, the trial court granted Bobbitt's motion to be relieved from any further obligation owing to Ferguson. But it denied Bobbitt's motion for reimbursement of the $1,179.75 he had already paid because of his intransigence during the time period after Ferguson was appointed.
3. Litigation Regarding the Yakima Property
As part of the property distribution in the dissolution decree, Bobbitt had been awarded the "Property located in Yakima, Washington" along with the mortgage liability on that property. CP at 14. A few months after the court entered its decree of dissolution, Bobbitt stopped making mortgage payments on the Yakima property, and the lender contacted Esser for payment. Esser moved for permission from the court to sell the Yakima property and to place the proceeds into her attorney's trust account "to facilitate the payment of her existing judgments against Bobbitt" on various other issues. CP at 15. The trial court granted the motion, and Esser sold the property. We reversed this ruling on appeal, holding that the trial court lacked the equitable power to authorize the sale and "remand[ed] for a hearing to determine a proper allocation of the net sale proceeds in Esser's attorney's trust fund." Bobbitt, 135 Wn. App. at 13.
On remand, the trial court allocated the $10,058.30 in sale proceeds to Bobbitt but "offset" that amount by other judgments he owed to Esser totaling $13,996.37. CP at 492-93. Bobbitt requested prejudgment interest on the $10,058.30, but the trial court denied the request, reasoning in part that Bobbitt had not asked "to have [the money] placed in some sort of an interest-bearing account and by virtue of the fact it was placed [in a non-interest-bearing trust account] by way of a court order." Report of Proceedings at 21.
We also had instructed the trial court to consider Bobbitt's motion for attorney fees relating to the property issue. Bobbitt, 135 Wn. App. at 13. The trial court concluded that Bobbitt was not entitled to attorney fees on the property issue because he had failed to produce any evidence on remand that he incurred attorney fees on that issue. Nonetheless, it stated that "in reducing the previous attorney fee award of $10,000 to [Esser], this court is taking into consideration the fact that [Bobbitt] unnecessarily incurred attorneys fees in responding to [Esser's] improper motion to compel the sale of the Yakima property." CP at 492.
ANALYSIS I. Prejudgment Interest on Proceeds from Sale
Bobbitt argues that the trial court erred in denying him prejudgment interest on the proceeds of Esser's unauthorized sale of the Yakima property. We review a trial court's order on prejudgment interest for an abuse of discretion. Scoccolo Const., Inc. v. City of Renton, 158 Wn.2d 506, 519, 145 P.3d 371 (2006). A trial court abuses its discretion when its order is manifestly unreasonable or based on untenable grounds or reasons. Olver v. Fowler, 161 Wn.2d 655, 663, 168 P.3d 348 (2007).
As a preliminary matter, that the money was not actually collecting interest is not sufficient reason alone to deny Bobbitt prejudgment interest. Prejudgment interest is designed to compensate the plaintiff for the loss of the use of money to which he was entitled, not to prevent unjust enrichment to the defendant who had the actual use of it. See Hadley v. Maxwell, 120 Wn. App. 137, 141, 84 P.3d 286 (2004); 16 David K. DeWolf Keller W. Allen, Washington Practice: Tort Law Practice § 5.12, at 190 (3d ed. 2006). But we can affirm the trial court on any basis the record supports. In re Marriage of Rideout, 150 Wn.2d 337, 358, 77 P.3d 1174 (2003).
When a judgment is reversed after the judgment creditor has already executed on it, the judgment debtor's recourse is provided by RAP 12.8. State v. A.N.W. Seed Corp., 116 Wn.2d 39, 44, 802 P.2d 1353 (1991). That rule provides that,
[i]f a party has . . . involuntarily . . . satisfied a trial court decision which is modified by the appellate court, the trial court shall enter orders and authorize the issuance of process appropriate to restore to the party any property taken from that party, the value of the property, or in appropriate circumstances, provide restitution.
RAP 12.8.
In determining the proper remedy under RAP 12.8, courts look to the law of restitution as reflected in the Restatement of Restitution. Ehsani v. McCullough Family P'ship, 160 Wn.2d 586, 591, 159 P.3d 407 (2007). Section 74 of the Restatement states:
A person who has conferred a benefit upon another in compliance with a judgment, or whose property has been taken thereunder, is entitled to restitution if the judgment is reversed or set aside, unless restitution would be inequitable or the parties contract that payment is to be final.
Restatement of Restitution § 74, at 302-03 (1937) (quoted in Ehsani, 160 Wn.2d at 592).
And section 156 of the Restatement provides:
[A] person who has a duty to pay the value of a benefit which he has received, is also under a duty to pay interest upon such value from the time he committed a breach of duty in failing to make restitution if, and only if:
(a) the benefit consisted of a definite sum of money, or
(b) the value of the benefit can be ascertained by mathematical calculation from the terms of an agreement between the parties or by established market prices, or
(c) payment of interest is required to avoid injustice. Restatement of Restitution § 156, at 618.
A person does not necessarily breach the duty to make restitution by being in possession of things to which another is entitled; in most cases, there is no breach of duty until the recipient has notice of the facts that create the duty. Restatement of Restitution § 156 cmt. a, at 619.
In this case, Esser sold the Yakima property with the express permission of the trial court. Our later decision that the trial court improperly handled the sale does not mean that Esser had a legal duty at that time to pay the proceeds to Bobbitt. In fact, that duty never arose because it was offset by Esser's judgments against Bobbitt.
Moreover, the trial court had ample additional reasons to deny Bobbitt prejudgment interest. First, Bobbitt had stopped making payments on the property. If Esser had not assumed the payments and sold the property, Bobbitt would have lost his equity in it. In addition, some of Esser's judgments predated any liability she had to Bobbitt from the wrongful sale and the judgments exceeded the amount of Bobbitt's judgment. Under these circumstances, the trial court did not abuse its discretion in denying Bobbitt prejudgment interest.
II. Attorney Fees in Modification Proceeding
Bobbitt argues that the trial court erred in awarding Esser $5,000 in attorney fees because of his intransigence in the modification proceeding. We review a trial court's award of attorney fees for abuse of discretion. In re Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954 (1996).
Bobbitt contends that even if the findings regarding his actions are true, they are irrelevant because his actions did not cause any additional legal services. Bobbitt is correct that a trial court may generally base an attorney fee award on intransigence only where that intransigence causes additional litigation. See In re Marriage of Burrill, 113 Wn. App. 863, 873, 56 P.3d 993 (2002). "Intransigence includes foot dragging and obstruction, filing repeated unnecessary motions, or making the trial unduly difficult and costly by one's actions." Bobbitt, 135 Wn. App. at 30. But where the party's misconduct permeates the entire proceedings, the court need not segregate which fees were incurred as a result of intransigence and which were not. Burrill, 113 Wn. App. at 873 (citing In re Marriage of Sievers, 78 Wn. App. 287, 312, 897 P.2d 388 (1995)). In this case, Bobbitt is correct that some of the findings of fact the trial court entered do not directly apply to the costs of either the modification or the Yakima property proceedings. But those findings support the conclusion that Bobbitt's bad behavior permeated the entire proceedings. Thus, the trial court did not abuse its discretion in awarding attorney fees on that basis.
Bobbitt assigns error to each of those findings in his brief but makes no argument as to whether substantial evidence supports the findings. In the absence of such a clear challenge, we treat findings of fact as verities on appeal. In re Estate of Lint, 135 Wn.2d 518, 532-33, 957 P.2d 755 (1998).
For instance, finding of fact seven relates to Esser's husband's need to take legal action to obtain a restraining order because of Bobbitt's harassment.
Bobbitt also suggests that he should not have to pay attorney fees for his own intransigence because Esser had done "an awful lot of things that caused additional legal work for [him]." Br. of Appellant at 14. He appears to base this argument solely on the fact that Esser's original motion to sell the Yakima property lacked legal authority. But the merit of a party's actions is only one element of intransigence, and Bobbitt does not show that Esser made the motion merely to make the proceedings more difficult and expensive. The trial court did not abuse its discretion in weighing Bobbitt's intransigence more heavily than any impropriety in Esser's motion.
Finally, Bobbitt argues that the record does not support the $5,000 attorney fee award to Esser. He asserts that the "true source of the $5000 amount is that it is the exact amount offered in settlement discussions," but his cites to the record do not support this contention. Br. of Appellant at 17. In fact, the record contains evidence that Esser spent significantly more than the $5,000 awarded. Under these circumstances, the trial court did not abuse its discretion in awarding $5,000.
III. Attorney Fees from Yakima Property Litigation
Bobbitt lists the trial court's denial of attorney fees to him from the Yakima property litigation as an "issue" on appeal.
Br. of Appellant at 6. But Bobbitt has not complied with RAP 10.3(a)(6), which requires a party to include argument on any assigned errors in his brief, including citations to legal authority and references to relevant parts of the record. Moreover, Bobbitt's argument would fail on its merits. The trial court denied this request for fees because Bobbitt had "failed to produce any evidence that he incurred attorneys fees related to this specific issue." CP at 492. Bobbitt does not refute this reasoning, and while the record does contain billing statements from Bobbitt's lawyer, they relate only to the modification proceeding.
IV. GAL Fees
Bobbitt argues that the trial court "did not go far enough" when it failed to require Ferguson to reimburse him for the $1,179.75 he had already paid her. Br. of Appellant at 19. Specifically, Bobbitt argues that (1) intransigence is not a valid legal basis to award GAL fees and (2) he could not have been intransigent because Ferguson did not satisfy minimum standards under the GAL rules.
Bobbitt's motion lacks merit because the law presumes that a GAL will be paid according to the fee agreement entered into by the parties. See RCW 26.12.175(1)(d). We remanded for the trial court to exercise its discretion to evaluate the GAL's fees and costs under the circumstances. Bobbitt, 135 Wn. App. at 31-32. The trial court did so, and its findings support the conclusion that Bobbitt's intransigence caused some of Ferguson's fees. The trial court did not abuse its discretion in reducing but not eliminating Bobbitt's obligation to the GAL.
IV. Attorney Fees in First Appeal
Bobbitt requests attorney fees that he incurred in the first appeal "based on the intransigence of [Esser's] legal strategy and tactics that forced two appeals." Br. of Appellant at 20. He claims that RCW 26.09.140 allows us to award fees for the modification trial, the first appeal, and the remand hearing.
Bobbitt asserts that Esser conceded our authority to award retroactive fees below. But what Esser stated below was that "[i]f Mr. Bobbitt had believed that he was entitled to his attorneys fees on appeal, it was his obligation to make a request for fees pursuant to RAP 18.1. He did not do so, and this court does not have the authority on remand to award him attorney fees on appeal, as such authority is solely within the province of the Court of Appeals." CP at 423.
We deny Bobbitt's request. Bobbitt had the opportunity to ask for fees in the first appeal under RAP 18.1, and he failed to do so. RCW 26.09.140 does not provide legal authority for his request now, providing only that "[u]pon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney's fees in addition to statutory costs." This statute plainly refers only to the current appeal, not past appeals.
V. Attorney Fees in Current Appeal
Esser requests fees on appeal under RAP 18.1, arguing that "intransigence is a basis for awarding fees on appeal, separate from RCW 26.09.140 (financial need) or RAP 18.9 (frivolous appeal)." Br. of Resp't at 22 (citing In re Marriage of Mattson, 95 Wn. App. 592, 605, 976 P.2d 157 (1999)). She argues that Bobbitt did not file either his statement of arrangements or opening brief until the court sanctioned him, and she adds that he did not provide her with copies of the transcripts from the trial court hearings. But Esser is the respondent in this appeal and she does not explain how Bobbitt's delays caused her additional expense or difficulty. We deny Esser's request.
The record belies this latter assertion; in a declaration to this court, Esser's attorney testified that he received a copy of the transcript on May 8, 2008.
We affirm the trial court and deny both parties' requests for fees on appeal.
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.
BRIDGEWATER, J. and PENOYAR, A.C.J., concur.