Opinion
No. 36749-1-II.
February 24, 2009.
Appeal from a judgment of the Superior Court for Grays Harbor County, No. 05-3-00292-1, David E. Foscue, J., entered August 6, 2007.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Hunt, JJ .
Leonard Simpson appeals the terms of his dissolution decree, arguing that the trial court should have granted him a continuance so he could hire an attorney and obtain evidence for the trial. He also argues that the trial court abused its discretion by not ruling on his motion for contempt, in its property distribution, and by ordering him to pay child support. Finding no reversible error, we affirm.
FACTS
Leonard and Shirley Simpson married in 1958 and separated in March 2003. Kimberly and Breauna are two dependent children involved in this case. Leonard is the great grandfather of Kimberly and the step-great grandfather of Breauna. The children lived with Leonard and Shirley after birth, and Shirley obtained third party custody of the children. Leonard never obtained legal custody. Although neither party adopted the children, they supported and raised them together because the children had little or no contact with their parents.
We refer to the parties by their first names for clarity and mean no disrespect.
Leonard filed a dissolution petition on July 21, 2005. Shortly thereafter, on September 26, 2005, the trial court ordered Shirley to pay debts owed to the Department of Revenue, give a particular check to Leonard, continue to keep the books on the couple's businesses, not come on the Friendly Auto Sales premises, and not take cash or checks from the business except for certain business needs. On March 13, 2006, Leonard moved for contempt, alleging that Shirley had not paid the Department of Revenue debt or provided Leonard with a monthly accounting for the business. He filed a second motion on January 24, 2007, arguing that Shirley took funds and documents without authorization. On February 5, 2007, the trial court ruled that it would hear the contempt issues at the trial.
Friendly Auto Sales was a community-owned business.
On the first day of trial, Leonard moved to continue because he wanted an attorney. Although Leonard had an attorney earlier, he had been unrepresented since June 2006. Leonard spoke with an attorney about a week before trial, but he could not afford to hire him. The trial date had already been rescheduled at least twice. The trial court denied Leonard's motion.
Leonard argues that a letter dated December 26, 2006, also amounted to a request for a continuance. There is no such letter in the record. A letter dated December 27, 2006, states Leonard's concerns regarding Shirley's conduct, but it is not a proper pleading requesting a continuance.
Shirley asserts, without citation to the record, that the trial was also continued when Leonard's attorney withdrew.
After denying the continuance, the trial court explained that it would "take evidence on the contempt" during the dissolution trial. The court informed Leonard that as the petitioner, he had the right to present his testimony first. RP (Mar. 1, 2007) at 14. Leonard asked, "On the contempt?" and the trial court responded, "On everything." Report of Proceedings (RP) (Mar. 1, 2007) at 14. Leonard did not mention the contempt issue again during trial, but he did present testimony consistent with his argument that Shirley had violated the September 26, 2005 order. The trial court noted that it made no finding regarding contempt at trial. On August 6, 2007, the trial court entered the dissolution decree following a hearing. At the hearing, the trial court stated that "as far as the contempt is concerned, I will reserve on that and allow it to — I hope it goes away. But I'm not going to foreclose that if there is substantial evidence to support it." RP (Aug. 6, 2007) at 73. The final decree contains the following annotation: "The petitioner has the right to renew his Motions for Contempt previously filed but not ruled upon. . . ." Clerk's Papers (CP) at 209.
The record suggests that Shirley may have violated the order by selling vehicles, taking business information from the premises, not accounting for business finances, and keeping the business' money.
The decree also deemed Kimberly and Breauna dependent. Shirley retained custody of the children. The trial court found that Leonard and Shirley had acted as the "sole parents" for the children and ordered Leonard to pay child support to Shirley. Breauna's and Kimberly's biological mother and father had already been ordered to pay child support to Shirley. On September 10, 2007, the State moved to vacate the child support order, which the trial court granted on November 26, 2007.
Because Shirley also receives funding from the State of Washington for the children, the State is a respondent in this matter.
At the time of dissolution, the parties owned the following community property: six rental properties, a family home, the property and business Friendly Auto Sales, one vehicle, and a variety of personal property. They also owed various debts. They had no separate property. The trial court awarded Shirley the rental property, the family home, the vehicle, and household goods. The court awarded Leonard the Friendly Auto Sales property and business, including the estimated $57,000 worth of inventory; any assets from a previous towing business; and various items of personal property, including a motor home. The trial court ordered Shirley to pay $6,081 of the debt and Leonard to pay over $131,435 of the debt.
Leonard moved for reconsideration or for a new trial on April 25, 2007. The trial court denied the motion.
The record does not include a written order denying the motion or a transcript of the hearing on May 7, 2007.
ANALYSIS I. Standard of review
We review the issues before us for an abuse of discretion. State v. Downing, 151 Wn.2d 265, 272, 87 P.3d 1169 (2004) (motion to continue); In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999) (property distribution); Appliance Buyers Credit Corp. v. Upton, 65 Wn.2d 793, 800, 399 P.2d 587 (1965) (failure to exercise discretion [rule on the motion for contempt] can be abuse of discretion). A trial court abuses its discretion when its decision is "`manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'" Mayer v. Sto Indus. Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006) (quoting Assoc. Mortgage Inv. v. G.P. Kent Constr. Corp., 15 Wn. App. 223, 229, 548 P.2d 558 (1976)). Leonard bears the burden of proving abuse of discretion. See Dugger v. Lopez, 142 Wn. App. 110, 118, 173 P.3d 967 (2007) (citing Childs v. Allen, 125 Wn. App. 50, 58, 105 P.3d 411 (2004)).
II. Motion to Continue
Leonard argues that the trial court should have granted his motion to continue on the day of trial because he did not have a lawyer and because he did not have property value evidence. He contends that the trial court could not properly distribute the property without his own evaluation of assets and debts. We disagree for several reasons.
First, Leonard's lack of counsel on the first day of trial did not warrant a continuance. A court may consider the lateness of a request in determining whether to grant or deny a motion to continue. Rich v. Starczewski, 29 Wn. App. 244, 245-46, 628 P.2d 831 (1981). A trial court does not abuse its discretion in denying a continuance when a party knows the date a cause is set for trial, and requests the continuance "merely to suit his personal convenience." See Chamberlin v. Chamberlin, 44 Wn.2d 689, 702, 270 P.2d 464 (1954) (quoting Donaldson v. Greenwood, 40 Wn.2d 238, 243, 242 P.2d 1038 (1952)). For example, a trial court did not abuse its discretion by denying an unrepresented party a continuance where the party had over two years to obtain an attorney. St. Romaine v. City of Seattle, 5 Wn. App. 181, 182, 486 P.2d 1135 (1971). Here, Leonard filed the petition for dissolution pro se in 2005. He later hired an attorney, but he had not had an attorney for about nine months before the March 2007 trial. He had ample time to hire an attorney before the trial date, or to at least give the trial court and Shirley earlier notice that he would ask for a continuance.
Second, Leonard's claimed lack of evidence did not warrant a continuance. A court may continue a trial based on the absence of evidence when the moving party presents an affidavit listing the witnesses or witness, asserting the materiality of the evidence to be obtained, and showing that he or she exercised due diligence to obtain the evidence. CR 40(e). Leonard presented no evidence of his own evaluations of community real estate and debt. Nothing in the record shows that Leonard ever attempted to obtain evaluations; nor did he submit an affidavit explaining how the evidence would contribute to his case. Because Leonard did not comply with CR 40(e) requirements, his claimed lack of evidence did not justify a continuance.
Furthermore, even a court's complete failure to value an asset is not significant enough to warrant reversal as long as the trial court has made a fair, just, and equitable division of the marital property. In re Marriage of Wright, 78 Wn. App. 230, 237, 896 P.2d 735 (1995). Here, Shirley presented her own property evaluations. Significantly, Leonard accepted her values on the "car lot," home, rentals, and mortgage balances. The trial court did not abuse its discretion in denying Leonard's continuance motion.
III. Contempt Motion
Leonard next argues that the trial court abused its discretion by failing to rule on his contempt motion. Shirley counters that the trial court was unable to determine that she violated a court order because Leonard's proof was incomplete and ineffective.
When a trial court reserves ruling on an issue, the moving party must "again raise the issue at an appropriate time to insure that a record of the ruling is made for appellate purposes." State v. Noltie, 116 Wn.2d 831, 844, 809 P.2d 190 (1991) (citations omitted). The trial court is not obligated to renew a party's motion for that party. Here, the trial court reserved ruling on Leonard's written motion for contempt until the dissolution trial. At the beginning of trial, Leonard asked the trial court if he could present testimony "on the contempt," to which the court responded affirmatively. Leonard asserts that "the [t]rial [c]ourt did not question [him] regarding his . . . motions for contempt. . . ." Reply Br. of Appellant at 7. Because the trial court reserved the motion for trial, Leonard had the burden of expressly requesting the court to rule on the motion during trial. See Noltie, 116 Wn.2d at 844. Although Leonard presented testimony during the dissolution trial on the factual bases of his contempt motion, he did not reassert his motion during trial. The trial court did not abuse its discretion in failing to rule on the contempt motion.
IV. Property Distribution
Leonard argues that the trial court abused its discretion in distributing the debts and awarding Shirley the rental property and family home because it did not consider each required factor. We disagree.
Leonard rests his argument in part on his CR 60 motion: that the property distribution was an "irregularity," that "extraordinary circumstances" warranted relief from judgment, and that the trial court abused its discretion in not vacating the judgment. Br. of Appellant at 18-19. However, he does not provide the transcript or the court's ruling on the CR 60 motion to this court. Thus, we are unable to review the reconsideration ruling under RAP 9.2(b).
Trial courts have broad discretion in distributing property and liabilities in marriage dissolution proceedings. RCW 26.09.080. The trial court must make a "just and equitable" distribution of the marital property after considering (1) the nature and extent of separate and community property, (2) the duration of the marriage, and (3) the economic circumstances of each spouse at the time of division. RCW 26.09.080. The distribution need not be equal, but it must be equitable. In re Marriage of Nicholson, 17 Wn. App. 110, 117, 561 P.2d 1116 (1977). "The key to an equitable distribution of property is not mathematical preciseness, but fairness." In re Marriage of Clark, 13 Wn. App. 805, 810, 538 P.2d 145 (1975). Fairness is attained by considering all circumstances of the marriage and by exercising discretion, not by using inflexible rules. Clark, 13 Wn. App. at 810. Appellate courts frequently uphold disproportionate property awards. See, e.g., In re Marriage of Donovan, 25 Wn. App. 691, 696-97, 612 P.2d 387 (1980) (awarding wife two-thirds of net assets after 14-year marriage when husband could still work).
Contrary to Leonard's contention, the trial court here considered each of the required factors. First, the court considered all the community property (there was no separate property). Second, it considered the almost 50-year marriage. Third, the court considered that Shirley had medical conditions that might prevent her future employment, that she has two children to raise, that Leonard would likely work again because he was able-bodied, and that there was a disparity in social security income. Although the trial court awarded Shirley all of the rental property, it was her only source of income, and it produced only about $1,900 per month, with a $964 mortgage payment. The court estimated Leonard's income at $62,000 per year. Leonard's argument that the trial court did not consider that the "economics of the country" would make his business less viable is unsupported by reasoned argument. Although the court did not distribute the property and debt equally in the instant case, we find its division of the property and debts just and equitable and well within its discretion because it considered each of the required factors.
Shirley testified that she has high blood pressure, diabetes, and that both of her knees give out on her in the winter. Leonard argues on appeal that there was no medical documentation of Shirley's condition. Because he did not contest this issue at trial, we will not review it. See RAP 2.5(a).
V. Child Support Order
Finally, the parties ask us to decide whether a court can order a noncustodial great grandparent to pay child support, even though the trial court vacated that order. Leonard argues that Shirley "should be prohibited from bringing such issue before the superior court again." Reply Br. of Appellant at 12.
A party must be aggrieved in order to seek review by the appellate court. RAP 3.1. An issue is moot if the matter is "`purely academic.'" City of Sequim v. Malkasian, 157 Wn.2d 251, 258-59, 138 P.3d 943 (2006) (quoting State v. Turner, 98 Wn.2d 731, 733, 658 P.2d 658 (1983) (quoting Grays Harbor Paper Co. v. Grays Harbor County, 74 Wn.2d 70, 73, 442 P.2d 967 (1968))). Nevertheless, we may review a moot case if it presents an issue of continuing and substantial public interest. In re Marriage of Horner, 151 Wn.2d 884, 891, 93 P.3d 124 (2004) (citing Westerman v. Cary, 125 Wn.2d 277, 286, 892 P.2d 1067 (1994)).
We consider three factors to determine whether an issue of continuing and substantial public interest exists: "`(1) whether the issue is of a public or private nature; (2) whether an authoritative determination is desirable to provide future guidance to public officers; and (3) whether the issue is likely to recur.'" Horner, 151 Wn.2d at 891-92 (quoting Westerman, 125 Wn.2d at 286-87). We may also consider "the `level of genuine adverseness and the quality of advocacy of the issues,'" and "`the likelihood that the issue will escape review because the facts of the controversy are short-lived.'" Horner, 151 Wn.2d at 892 (quoting Westerman, 125 Wn.2d at 286-87).
Here, the vacated child support order is moot; the trial court vacated the order. "Vacate" means "[t]o nullify or cancel; make void; invalidate." Blacks Law Dictionary 1584 (8th ed. 2004). Thus, we cannot provide effective relief to Leonard because he is no longer required to pay child support. Moreover, the underlying issue is not likely to recur; neither party points to any Washington authority requiring extended family to pay child support, even if that family member is a de facto parent or has assumed the role of in loco parentis. Under these circumstances, we are unwilling to address the issue.
In contrast, a parent or step-parent (until final dissolution) is statutorily required to pay child support. RCW 26.16.205. Those who voluntarily assume the role of a parent may also provide support, but are not required to do so. See Taylor v. Taylor, 58 Wn.2d 510, 512, 364 P.2d 44 (1961) (recognizing that in loca parentis status is temporary based on the intent of the party assuming the obligation); State ex rel. D.R.M. v. Wood, 109 Wn. App. 182, 186, 34 P.3d 887 (2001) (refusing to find a new cause of action requiring third party nonparent to pay child support).
VI. Attorney Fees
Shirley requests reasonable attorney fees on appeal under RAP 18.1 and RCW 29.09.140. In his reply brief, Leonard also requests attorney fees.
We may award attorney fees if properly requested in an opening brief under RAP 18.1. RCW 26.09.140 authorizes us to exercise our discretion in a dissolution matter to "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." RCW 26.09.140. "A party relying on RCW 26.09.140 `must make a showing of need and of the other's ability to pay fees in order to prevail.'" In re Marriage of Hoseth, 115 Wn. App. 563, 575, 63 P.3d 164 (2003) (quoting Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 808, 929 P.2d 1204 (1997)).
Appellate courts have granted attorney fees under RCW 26.09.140 to the party who submits an affidavit of need as RAP 18.1 requires when the other party does not submit a contravening affidavit or challenge the amount requested. See In re Marriage of Ambrose, 67 Wn. App. 103, 834 P.2d 101, 110, 834 P.2d 101 (1992); In re Marriage of Fox, 58 Wn. App. 935, 940, 795 P.2d 1170 (1990); In re Marriage of Sanborn, 55 Wn. App. 124, 130-31, 777 P.2d 4 (1989). When a party does not contend that their financial circumstances have changed since trial, we may look to the party's financial circumstance at trial to determine whether to grant attorney fees on appeal. See In re Marriage of Combs, 105 Wn. App. 168, 177, 19 P.3d 469 (2001) (accepting the trial court's determination that each party should bear its own costs and fees when the party requesting fees on appeal did not contend a change in financial circumstances since trial). We find that Shirley's affidavit adequately shows her need, and given that Leonard did not contest her affidavit or file his own, the record reflects that Leonard has the ability to pay. Thus, we award Shirley attorney fees in the amount to be determined by a commissioner of this court under RAP 18.1(f), provided that Shirley complies with RAP 18.1(d). We decline to award Leonard attorney fees because he did not request them in his opening brief; he requested them for the first time in his reply brief. See RAP 18.1(b).
Affirmed.
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, P.J. and HUNT, J., concur.