Marriage of Bostain
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division II
State of Washington
Opinion Information Sheet
Docket Number: 30450-3-II
Title of Case: Marriage of Denise Bostain, Respondent v.
Learl (Larry) Bostain, Appellant
File Date: 05/17/2005
SOURCE OF APPEAL
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Appeal from Superior Court of Cowlitz County
Docket No: 02-3-00205-1
Judgment or order under review
Date filed: 05/15/2003
Judge signing: Hon. Jill M Johanson
JUDGES
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Authored by Christine Quinn-Brintnall
Concurring: C. C. Bridgewater
J Dean Morgan
COUNSEL OF RECORD
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Counsel for Appellant(s)
Kurt Allen Anagnostou
Attorney at Law
1801 1st Ave # 4a
PO Box 1793
Longview, WA 98632-8110
Counsel for Respondent(s)
Robert Harold Falkenstein
Attorney at Law
950 12th Ave Ste 100
PO Box 868
Longview, WA 98632-7537
Kenneth Wendell Masters
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Marriage of No. 30450-3-II
DENISE CHERYL BOSTAIN,
Respondent,
and
LEARL LEROY BOSTAIN, UNPUBLISHED OPINION
Appellant.
QUINN-BRINTNALL, C.J. Learl L. 'Larry' Bostain appeals a dissolution
decree dividing property between him and his former wife, Denise C.
Bostain, now known as Denise C. Nelson. He contends that the trial court
erred in finding that a meretricious relationship existed before the
couple's marriage and in failing to honor their 'non-marital agreement.'
He also contends that the trial court improperly considered parol evidence
undermining both the non-marital agreement and a quit claim deed
transferring interest in the parties' home from joint ownership to Bostain
individually. Bostain also asserts that the trial court erred in entering
a contempt order that he is unable to comply with and in imposing attorney
fees and a penalty of $50 per day until he complies with the order.
We hold that the trial court did not err in finding a meretricious
relationship existed prior to marriage. We also hold that the couple's
'non-marital' agreement was not a valid prenuptial agreement and did not
establish the intent of the parties. Essentially, the court divided the
assets acquired during the relationship and marriage equally and gave each
his or her separate property.1 It did not abuse its discretion in doing
so. Nor is it apparent from the record Bostain has provided that the court
abused its discretion in finding Bostain in contempt of court and in
ordering that he pay attorney fees and a penalty of $50 per day until he
complied with the court's order. Thus, we affirm.
FACTS
Relationship
Bostain and Nelson met in December 1990, while Nelson was out with her
church singles group. Bostain was married at the time. He separated from
his wife in April 1991, and filed for dissolution of the marriage in
October of that same year.
Nelson had also been married, but her husband died in 1988, in a car
accident that also seriously injured her. Nelson had been living with her
grandmother while recovering from her injuries. Bostain began staying with
Nelson in August 1991.
In April 1992, Nelson purchased a home on Palm Drive in Kelso,
Washington, with funds she received from her deceased husband's employer, a
railroad company. In May, Bostain moved in with her.
Bostain worked as a pipe fitter at Weyerhaeuser and Nelson stayed home
with her son from her previous marriage.2 Nelson would cook and clean
house and do 'all the regular things you do as a stay at home wife,
mother.' 1 Report of Proceedings (RP) at 23. Bostain would also cook.
Bostain paid $300 per month in 'rent' to Nelson. 2 RP at 172.
The two spent no significant time apart and maintained a relationship
similar to that of a married couple. They traveled together to Hawaii, Las
Vegas, and Reno and attended car shows together. Nelson estimated that
Bostain proposed to her 10 times during their relationship before they were
eventually married in January 1999. Nelson testified that if she had
married Bostain, she would have lost her late husband's railroad pension
that she was using to raise her son.3
Following the April 1993 dissolution of his marriage, Bostain received
money from the sale of his prior home and wanted to apply the proceeds to
the purchase of another home. Bostain and Nelson searched for a new home
together but found nothing suitable. Nelson went to a real estate agent
she knew who helped them locate property on Sparks Drive in Kelso near the
Palm Drive residence. Bostain bought the unimproved lot for $17,933.92.
Nelson testified that she paid the $2,000 earnest money on the property,
although Bostain asserted that he paid her back.
The couple also hired a contractor and went to Portland to select a
design for the new home. Bostain paid the contractor a down payment of
$33,235 from his separate funds and took out a loan for the remaining
$80,000. Nelson testified that she participated in nearly all aspects of
putting together the new home, helping to select everything from siding to
carpeting. Bostain's testimony downplayed Nelson's involvement as merely
giving 'her opinion and her opinion only.' 2 RP at 192-93. Nelson
provided the appliances for the new home from her Palm Drive residence.
At the time, Nelson was concerned that title to this home (that, she
testified, the parties considered 'ours') was being taken in Bostain's name
alone. It was because of this concern that, in November 1993, Bostain quit
claimed the property 'for and in consideration of love and affection . . .
to Learl Leroy Bostain and Denise Cheryl Nelson.' Ex. 6. At trial,
Bostain testified that he transferred the property because he wanted
Nelson, not his children from a prior marriage, to have the property if he
died.
Nelson and Bostain moved into the Sparks Drive residence in February
1994.4 Nelson paid Bostain $300 per month she paid the utilities and wrote
Bostain a check for the remainder with the notation 'house payment.' 1 RP
at 118. She also paid the property taxes on the residence.
The two also generally paid for their own clothing and cars and kept
separate bank accounts. They purchased a 1965 Corvette together and built
a garage for it at the Sparks Drive residence. Nelson wrote checks for
over $6,000 for materials for the garage.
At trial, Bostain introduced a document called the 'Amended: Non-
Marital Agreement,'5 which the parties apparently executed in November
1993. Ex. 14. Bostain had it prepared by Alan Rudberg, a non-lawyer whom
Nelson referred to as a 'pretend attorney.' 1 RP at 72. The non-marital
agreement provided that Bostain and Nelson would be responsible for their
own expenses and that property each acquired would remain separate. It
also provided that Bostain would be responsible for a $300 payment to
Nelson while he resided with her and, if Bostain were to 'purchase and
reside in any other residence . . . {and Nelson chooses to reside with
him}, then she shall assume the same financial considerations that
{Bostain} is currently obligated to make to her.' Ex. 14. The document
was signed by Bostain and Nelson and notarized by P. Stuart McAllister in
Cowlitz County on November 2, 2003. At trial, Nelson acknowledged that she
thought it was her signature on the document because '{n}obody else could
write like me.' 1 RP at 68. But she had no recollection of meeting with
Rudberg nor reading or signing the document. She had no recollection of
the parties having shared financial information at the time nor did she
receive any legal advice regarding the document. Bostain testified that
they entered into the agreement at Nelson's request because 'she was
concerned about {his} ex-wife or children getting her property.' 2 RP at
185.
In November 1997, the parties transferred the Sparks Drive property
back into Bostain's name via quit claim deed. Nelson testified that she
only agreed to the transfer because they were trying to settle a claim
against Louisiana-Pacific (LP) for faulty siding and LP raised an issue of
title; Nelson and Bostain agreed they would put her name back on the title
once the matter was settled. Bostain testified that they made the second
transfer because he was no longer worried about his health after successful
heart surgery.
Marriage
Bostain and Nelson married on January 12, 1999. After they married,
each put the other on their checking accounts and they invested jointly in
a Continental Investors account. Bostain retired6 in January 2002 when
Weyerhaeuser offered him early retirement and he received a pension buyout
payment of $251,736. He also received his 401(k) account and a performance
share account from Weyerhaeuser.
Dissolution
Nelson petitioned for dissolution of the marriage on April 12, 2002.
Trial occurred on December 5 and 12, 2002. At trial, Nelson sought her
separate property (which consisted of investments and various accounts)
plus half of the property acquired during their relationship and marriage.
On February 18, 2003, the court entered its findings and conclusions.
The court found a meretricious relationship beginning in May 1992 and
entered 'Additional Findings of Fact' regarding the meretricious
relationship. Clerk's Papers (CP) at 95. The court found the non-marital
agreement invalid, stating:
The court finds that neither party had the advice of attorneys, that there
was not full disclosure of assets of the parties, that the parties did not
know their legal rights with regard to their relationship and that {Nelson}
could not waive rights she did not know she had. In addition, there was
failure of proof as to the circumstances surrounding the alleged execution
of the document. No attorney was involved in drafting the agreement.
CP at 91.
The court also characterized the property, awarded each party his or
her separate property, and split community property and 'community-like'
property acquired during the meretricious relationship evenly between the
two, with the exception of their joint investment account, which it split
according to their contributions. Among other things, the court found that
the Sparks Drive residence, which it valued at $157,000, was community or
community-like property, subject to an offset of Bostain's $49,000 separate
property contribution. The court adopted in its findings Nelson's version
that Bostain said he would transfer the Sparks property back to joint
ownership after the LP matter was resolved.
The court also found 10/35 (the ratio of the number of years of the
relationship and marriage to the number of years of Bostain's employment)
of Bostain's Weyerhaeuser pension to be community property. The court also
identified the portions of Bostain's 401(k) and performance-sharing plan
contributed during the meretricious relationship and marriage and divided
the amount between Bostain and Nelson. The court ordered that Bostain pay
Nelson $123,424.
CR 60(b) Motion
On April 4, after the court entered its February 18 findings and
conclusions, but before entry of the May 15 final decree, Bostain brought a
'CR 60 Motion for Relief from Judgment' based on Bostain's discovery of an
excise tax affidavit in Nelson's handwriting stating that Bostain 'was
adding {Nelson} to this property because he had a bad heart and thought he
was going to die. Then on Aug. 21, 1997, he had open-heart surgery and he
is well now and going to live so that is why she's giving the property back
to Learl L. Bostain.' CP at 104. Bostain urged the court to 'reopen the
trial.' CP at 115. In the motion, he also argued that the parol evidence
rule would prevent the court from considering evidence contradicting the
1997 transfer of the property to Bostain individually. Although the
underlying basis is not entirely clear from Bostain's motion, he also urged
the court to 'reopen' its decision regarding the non-marital agreement,
asserting that the agreement was valid under the law regarding pre-nuptial
agreements.
Following a May 14, 2003 hearing, the trial court entered a May 28
written order denying the motion, finding that Bostain had not met his
burden under CR 60 because there was no mistake (CR 60(b)(1)), no new
evidence that could be considered for the first time (CR 60(b)(3)), and no
fraud (CR 60(b)(4)).
Decree and Contempt
The court entered a decree of dissolution on May 15, 2003, after a one-
day trial regarding personal property. Bostain and Nelson were to exchange
property on June 3, 2003.
Bostain filed his first notice of appeal on June 4, 2003.
On June 30, 2003, Nelson moved that the trial court find Bostain in
contempt for failing to permit the transfer of certain items awarded to
her. Nelson submitted a declaration from Robert Argle, the individual whom
the court had charged to oversee the personal property transfer. On July
18, 2003, relying on this declaration, the trial court issued a letter
ruling ordering a $1,000 sanction for Bostain's willful refusal to transfer
the property and a $50-per-day sanction for every day after August 15,
2003, that Bostain did not return the property.
On August 12, 2003, the court again found Bostain in contempt for
failing to transfer certain property and set an August 31, 2003 transfer
deadline and ordered him to pay $50 for every day past that date that the
property was not returned.7 Then, on September 12, the court
ordered Bostain to pay $1,000 attorney fees 'for the contempt previously
ordered based on the 8/25/03 attorney fee declaration.'8 Order Den. Mot.
for Recons. attached to Am. Notice of Appeal.
ANALYSIS
Meretricious Relationship
Bostain contends that the trial court erred in determining that he and
Nelson entered into a meretricious relationship in May 1992 that continued
until their marriage.
'A meretricious relationship is a stable, marital-like relationship
where both parties cohabit with knowledge that a lawful marriage between
them does not exist.' Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d
831 (1995). Our Supreme Court developed the equitable 'meretricious
relationship' doctrine because the legislature has not provided a statutory
means of resolving the property distribution issues that arise when
individuals who have lived in a marital-like relationship and acquire what
would have been community property had they been married. See In re
Marriage of Lindsey, 101 Wn.2d 299, 678 P.2d 328 (1984). Income and
property acquired during a meretricious relationship should be
characterized in a manner similar to income and property acquired during
marriage. Therefore, there is a rebuttable presumption that both parties
owned all property acquired during a meretricious relationship. Connell,
127 Wn.2d at 351 (citing Estate of Madsen v. Comm'r of Internal Revenue, 97
Wn.2d 792, 796, 650 P.2d 196 (1982)). And all property considered to be
owned by both parties is before the court and is subject to a just and
equitable distribution. Connell, 127 Wn.2d at 351 (citing Lindsey, 101
Wn.2d at 307). In sum, once a trial court determines the existence of a
meretricious
relationship, the trial court then: (1) evaluates the interest each party
has in the property acquired during the relationship and (2) makes a just
and equitable distribution of the property. Connell, 127 Wn.2d at 349
(citing Lindsey, 101 Wn.2d at 307).
To determine the existence of a meretricious relationship, the trial
court must consider five factors on a case-by-case basis: (1) continuous
cohabitation; (2) duration of the relationship; (3) purpose of the
relationship; (4) pooling of resources and services for joint projects; and
(5) intent of the parties. In re Marriage of Pennington, 142 Wn.2d 592,
601-02, 14 P.3d 764 (2000).
We review the trial court's finding of a meretricious relationship as
a mixed question of law and fact. '{T}he trial court's factual findings
are entitled to deference, but the legal conclusions flowing from those
findings are reviewed de novo.' Pennington, 142 Wn.2d at 602-03. The
court considers the factors equally and need not analyze each factor
separately; these 'factors are neither exclusive nor hypertechnical.'
Pennington, 142 Wn.2d at 602.
First, the trial court found that Bostain and Nelson cohabitated
continuously from May 1992 until and after their marriage in 1999. Bostain
argues that it is improper to count the time that Bostain was married to
another person, but he cites no authority for this proposition. Moreover,
although Bostain's dissolution was not final until a year later, he
separated from his wife in April 1991, and filed for dissolution in October
of that same year. Cf. Pennington, 142 Wn.2d at 597, 603 (for asserted 10-
year period of meretricious relationship: one party was married the
majority of time parties lived together; parties separated, dated other
people, and lived apart; and when resumed living together, had a nonsexual
relationship).
Second, the court found that the duration of relationship 10 years
without interruption weighed in favor of finding the existence of a
meretricious relationship. Bostain does not dispute that this factor
supports the existence of a meretricious relationship here.
Third, the court found that '{t}he purpose of the relationship was a
marital-type of relationship. The parties provided mutual love, caring,
support, sex, friendship and companionship. Basically, the parties treated
one another as though they were married.' CP at 95 (emphasis added).
Bostain does not appear to dispute the court's findings on this factor, but
he implies that a court should disregard this because in Pennington, where
the court found no meretricious relationship existed, the court had made a
similar finding. But here we hold that the trial court's finding is
supported by substantial evidence and that it weighs in favor of a
meretricious relationship.
Fourth, the court found that Bostain and Nelson did not have joint
accounts until they were married, but they had pooled their resources and
services in other ways. For example, Nelson 'contributed to the cooking,
cleaning and assisted with the decorating, planning and building of the
Sparks Drive residence, as well as contributing financially to the
Corvette, the . . . mortgage and the building of a garage on the property.'
CP at 95. Moreover, '{t}he parties . . . made joint decisions throughout
the relationship.' CP at 95. Bostain argues that the result in Pennington
should have controlled the trial court's decision. We disagree. While
Bostain and Nelson maintained a certain degree of financial independence,
the trial court, on substantial evidence, found several factors not present
in Pennington: Bostain and Nelson built a home during the relationship and
Nelson helped plan the home. Nelson also contributed to the mortgage
payments and paid the taxes and other home-related expenses. Substantial
evidence supports the trial court's finding that Bostain and Nelson pooled
their resources.
Fifth, the trial court here found that the parties intended 'to be in
a marriage-like or meretricious relationship.' CP at 96. Bostain proposed
to Nelson several times, they purchased a car together, built a home and
garage together, and Bostain worked out of the home as the primary income
earner so Nelson could stay home with her son. The trial court
acknowledged that Bostain and Nelson offered different explanations for
these activities, but it found Nelson's explanation more credible.
On appeal, Bostain argues that the non-marital agreement sets out the
intent of the parties and the trial court must enforce it. But the court
found that the couple's actual practice, including the fact that they
married, outweighed any evidence of intent stated over five years earlier
in the non-marital agreement.
The record contains substantial evidence supporting the trial court's
finding of a meretricious relationship and we will not disturb its
judgment.
Enforcement of Non-Marital Agreement
As noted above, Bostain contends that the couple's non-marital
agreement is a valid pre-nuptial agreement that controls property
distribution. But the trial court ruled that the agreement failed the test
for valid prenuptial agreements. Bostain did not argue for an alternative
standard at trial. But on appeal, he also argues that the trial court
erred in considering 'parol evidence' about the agreement.
Parol Evidence Rule
In general we do not review an alleged error not raised at trial. RAP
2.5(a). Bostain did not object to the admission of the alleged parol
evidence until he incorporated a parol evidence argument in his CR 60(b)
motion. In this motion for new trial he asserted fraud as a basis for
relief from judgment based on 'discovery' of an excise tax affidavit and
argued that Nelson should not have been permitted to 'testify contrary to
the . . . Non-Marital Agreement.' CP at 113. But the non-marital
agreement was not the asserted basis for Bostain's CR 60(b) motion. Thus,
Bostain's objection to the court's consideration of parol evidence is not
properly preserved for our review.
But we take the time to note that Bostain's argument misreads the parol
evidence rule. '{P}arol or extrinsic evidence is not admissible to add to,
subtract from, vary, or contradict written instruments which are
contractual in nature and which are valid, complete, unambiguous, and not
affected by accident, fraud, or mistake.' Buyken v. Ertner, 33 Wn.2d 334,
341, 205 P.2d 628 (1949).9 The parol evidence rule only applies to a
writing intended by the parties as an 'integration' of their agreement,
i.e., a writing intended as the final expression of the agreement's terms.
Emrich v. Connell, 105 Wn.2d 551, 556, 716 P.2d 863 (1986). Thus, in
determining whether an agreement is integrated, the trial court may
properly consider evidence of negotiations and circumstances surrounding
the formation of the contract. M.A. Mortenson Co. v. Timberline Software
Corp., 93 Wn. App. 819, 827, 970 P.2d 803 (1999) (citing Denny's Rests.,
Inc. v. Sec. Union Title Ins. Co., 71 Wn. App. 194, 202, 859 P.2d 619
(1993)), aff'd, 140 Wn.2d 568 (2000). Bostain's argument presupposes that
the non-marital agreement was an integrated, valid, and complete agreement
between the parties. But these matters were clearly disputed.
Particularly in light of the fact that the parties married, it is clear
that the 'non-marital' agreement was not the final expression of an
agreement between the parties. The trial court did not err in refusing to
enforce the 'non-marital' agreement on this ground.
Prenuptial Agreement
In the alternative, Bostain urges us to treat the agreement as a
prenuptial agreement under DewBerry v. George, 115 Wn. App. 351, 62 P.3d
525, review denied, 150 Wn.2d 1006 (2003). DewBerry set out the
controlling test for valid prenuptial agreements from In re Marriage of
Matson, 107 Wn.2d 479, 730 P.2d 668 (1986), as follows:
The first prong of Matson asks whether the agreement made a fair and
reasonable provision for the spouse not seeking enforcement. If the answer
is yes, the agreement is valid. If the answer is no, the second prong asks
whether there was full disclosure of the value and nature of the property
involved and whether there was full knowledge and independent advice about
each spouse's rights.
115 Wn. App. at 364.
The non-marital agreement at issue here fails to satisfy either prong
of this test. First, the agreement disproportionately favors Bostain and
does not make a fair and reasonable provision for Nelson. More
importantly, as the favored party, Bostain had the burden to show 'full and
fair disclosure of all material facts' to Nelson before she signed the
agreement. Friedlander v. Friedlander, 80 Wn.2d 293, 302, 494 P.2d 208,
(1972). Although an exact accounting of the property is not required,
Friedlander, 80 Wn.2d at 302, he did not meet his burden of demonstrating
that Nelson had been provided a full and fair disclosure of all material
facts. The 'non-marital' agreement signed over five years before the
couple married was not a valid pre-nuptial agreement and the trial court
had no duty to enforce it.10
Parol Evidence Rule and Quit Claim Deed
Bostain also argues that the trial court improperly considered parol
evidence to invalidate the 1997 quit claim deed transferring interest in
the Sparks Drive property from joint ownership back to Bostain
individually.
Bostain did not raise this parol evidence claim below. Nor did he
show that the quit claim deed was a complete, integrated agreement between
the parties to which the parol evidence rule might apply. More
importantly, because all property acquired during a meretricious
relationship is presumed to be owned by both parties and is subject to a
just and equitable distribution by the court,11 the character of the Sparks
Drive property would not likely alter the trial court's property
distribution decision. The fact that title has been taken in the name of
one of the parties does not rebut the presumption of common ownership.
Connell, 127 Wn.2d at 351 (citing Lindsey, 101 Wn.2d at 306-07; Merritt v.
Newkirk, 155 Wash. 517, 520, 285 P. 442 (1930)).
Once the trial court found a meretricious relationship, unless Bostain
rebutted the presumption of common ownership, the community-like property
acquired by either party during the relationship was before the trial court
for just and equitable distribution. Here the trial court found that
Bostain and Nelson intended to create joint ownership in the residence and
that the property was transferred back to Bostain in 1997 only because of
the LP lawsuit. Substantial evidence supports these findings and the trial
court did not err.
Denial of CR 60(b) Motion for Relief from Judgment
Bostain also contends that the trial court erred in denying his CR
60(b)(3) motion for relief from judgment12 based on 'newly discovered
evidence.' Br. of Appellant at 31. We disagree.
In its order denying Bostain's motion, the trial court found:
{Bostain} did not exercise due diligence in discovering the excise tax
affidavit presented in {his} CR60 motion for the first time. Specifically,
both parties had signed the excise tax affidavit and both parties had equal
knowledge of its existence but neither party produced {it} at trial.
CP at 154.
We review a trial court decision on whether to vacate an order under
CR 60(b) for abuse of discretion. Luckett v. Boeing Co., 98 Wn. App. 307,
309, 989 P.2d 1144 (1999), review denied, 140 Wn.2d 1026 (2000). A court
abuses its discretion when it bases its decision on untenable grounds or
untenable reasons. Luckett, 98 Wn. App. at 309-10.
Under CR 60(b)(3), a litigant may move a trial court to vacate a
judgment in light of '{n}ewly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial under rule
59(b).' See Isla Verde Int'l Holdings, Inc. v. City of Camas, 99 Wn. App.
127, 142, 990 P.2d 429 (1999), aff'd on other grounds, 146 Wn.2d 740
(2002).
In Isla Verde, we stated that the moving party had no basis to bring
the motion because '{t}he untimely proffered evidence came from sources
under the {moving party's} control.' 99 Wn. App. at 142. Here, Bostain
signed the excise tax affidavit and, with minimal diligence, could have
produced the tax affidavit at trial. Bostain's argument that the document
was not actually available because both he and Nelson had forgotten about
it lacks merit. Whether Bostain and Nelson forgot about the affidavit is
not the standard required by CR 60(b)(3).
Nor does Bostain's argument that the property distribution was
obtained by fraud entitle him to relief. He relies on Pettet v. Wonders,
23 Wn. App. 795, 599 P.2d 1297, review denied, 93 Wn.2d 1002 (1979), which
dealt with vacation of a judgment for fraud where a party raised
substantial questions of whether certain evidence had been forged and
perjury committed at trial. 23 Wn. App. at 800-01. Although Bostain
repeatedly implies that Nelson committed fraud or perjured herself, the
trial court specifically determined that Nelson did not commit fraud: Both
parties' declarations indicated that they had forgotten about the
affidavit. The trial court did not abuse its discretion in refusing to
grant Bostain relief from the judgment on grounds of fraud.
Contempt Order and Attorney Fee Award
Finally, Bostain contends that the court erred in finding him in
contempt. The trial court entered two orders in connection with this
finding: (1) an August 12, 2003 contempt order that he pay $50 per day for
every day past August 31, 2003, that he did not return certain personal
property to Nelson; and (2) a September 12, 2003 order that he pay $1,000
in attorney fees.
A court in a dissolution proceeding has the authority to enforce its
decree in a contempt proceeding. In re Marriage of Mathews, 70 Wn. App.
116, 126, 853 P.2d 462, review denied, 122 Wn.2d 1021 (1993). In the
absence of an applicable special statute, or when a special statute exists
but does not address a particular point of law governing contempt
proceedings, the general contempt provisions in chapter 7.21 RCW apply.
Under these statutory contempt provisions, the trial court has discretion
to impose remedial sanctions if necessary.
A remedial sanction is 'a sanction imposed for the purpose of coercing
performance when the contempt consists of the omission or refusal to
perform an act that is yet in the person's power to perform.' RCW
7.21.010(3). Under RCW 7.21.030(2),
{i}f the court finds that the person has failed or refused to perform an
act that is yet within the person's power to perform, the court may find
the person in contempt of court and impose one or more of the following
remedial sanctions:
(a) Imprisonment . . . .
(b) A forfeiture not to exceed two thousand dollars for each day the
contempt of court continues.
(c) An order designed to ensure compliance with a prior order of the
court.
(d) Any other remedial sanction other than the sanctions specified in
(a) through (c) of this subsection if the court expressly finds that those
sanctions would be ineffectual to terminate a continuing contempt of court.
In addition to imposing a remedial sanction, a court in a civil
contempt action may 'order a person found in contempt of court to pay a
party for any losses suffered by the party as a result of the contempt and
any costs incurred in connection with the contempt proceeding, including
reasonable attorney's fees.' RCW 7.21.030(3) (emphasis added).
Punishment for contempt is within the trial court's sound discretion
and we will not disturb it on appeal absent an abuse of that discretion.
Mathews, 70 Wn. App. at 126; see also Moreman v. Butcher, 126 Wn.2d 36, 40,
891 P.2d 725 (1995). An abuse of discretion is present only if there is a
clear showing that the exercise of discretion was manifestly unreasonable,
based on untenable grounds, or based on untenable reasons. Moreman, 126
Wn.2d at 40.
Bostain bore the burden of both production and persuasion regarding
his claimed inability to comply with the court's order. See Moreman, 126
Wn.2d at 40. And in order to fulfill this burden, Bostain had to offer
evidence that the trial court found credible. See Moreman, 126 Wn.2d at 40-
41.
Remedial Sanction for Contempt
Bostain argues on appeal that he should not have to pay $50 per day
until the property which he asserts is one mirror that he does not have is
returned. He asserts that there was substantial evidence before the court
that he did not have the mirror and thus he lacked the ability to comply
with the court's order. Bostain refers to 'two declarations besides his
own' indicating that he does not have the mirror. Br. of Appellant at 13.
He cites to CP at 73-76. But in neither set of clerk's papers do these
pages correspond to any declaration and we have not found such declarations
in the record.
The trial court had discretion to impose the remedial sanction of $50
per day to secure the return of several items. Substantial evidence in the
record supports the trial court's findings that Bostain possessed the
various items that the trial court ordered him to return. See RAP
10.3(a)(5) (brief of appellant must contain citations to relevant parts of
record). Thus, we affirm the finding of contempt and the remedial
sanction.
Payment of Attorney Fees for Contempt
Bostain also asserts that the court erred in imposing attorney fees for the
contempt proceedings because the trial court made no finding as to their
reasonableness.
As part of its August 12, 2003 'Order on Show Cause,' the court
awarded Nelson 'attorney fees for having to bring the contempt motion.'
Ord. on Show Cause re Contempt/J. attached to Am. Notice of Appeal. The
amount of attorney fees was 'to be established upon presentation of
{Nelson's attorney's} affidavit.' Ord. on Show Cause re Contempt/J.
attached to Am. Notice of Appeal. The September 12 order further stated
'attorney's fees are assessed for the contempt previously ordered based on
the 8/25/03 attorney fee declaration.' Ord. Den. Mot. for Recons. attached
to Am. Notice of Appeal.
The challenged order does not state that the $1,000 attorney fees are
'reasonable' as required by RCW 7.21.030(3). But the order references an
attorney fee declaration that is not included in the record on appeal.
The party seeking review bears the burden of perfecting the record so
that an appellate court has before it all of the evidence relevant to the
issue. Dash Point Vill. Assoc. v. Exxon Corp., 86 Wn. App. 596, 612, 937
P.2d 1148, 971 P.2d 57 (1997). Bostain has failed to satisfy his burden to
provide a record adequate for us to review the issues he raises. The trial
court's decision must stand. See RAP 9.2(b); RAP 9.6(a); see also RAP
10.3(a)(5) (brief of appellant must cite relevant parts of record).
Thus, we affirm the trial court in all respects.
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.
QUINN-BRINTNALL, C.J.
We concur:
MORGAN, J.
BRIDGEWATER, J.
1RCW 26.09.080 states:
In a proceeding for dissolution of the marriage . . . the court shall,
without regard to marital misconduct, make such disposition of the property
and the liabilities of the parties, either community or separate, as shall
appear just and equitable after considering all relevant factors including,
but not limited to:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage; and
(4) The economic circumstances of each spouse at the time the division
of property is to become effective, including the desirability of awarding
the family home or the right to live therein for reasonable periods to a
spouse with whom the children reside the majority of the time.
2 Nelson asserts that she is disabled and unable to work because she
suffers from constant pain due to the fact that she broke her neck in the
car accident. Bostain disputes this and points out that Nelson exercises,
went dancing with him, and performed house work.
3 Nelson's son, Shane, was born in 1979.
4 Nelson sold the Palm Avenue residence in April 1994, and she kept the
proceeds of the sale in her separate account.
5 Bostain testified, 'There was {a document} made up before, but {Nelson}
didn't like it and we made up another one . . . {t}o her satisfaction.' 2
RP at 186.
6 At the time of trial, Bostain was also receiving unemployment
compensation of $496 per week.
7 It is unclear from the record and Bostain's briefing whether the court
enforced the terms of the July 18 letter ruling, i.e., whether it required
Bostain to pay $50 per day for the dates between August 15 and August 31.
8 That attorney fee declaration does not appear in the record.
9 See also Berg v. Hudesman, 115 Wn.2d 657, 667, 801 P.2d 222 (1990)
('extrinsic evidence is admissible as to the entire circumstances under
which the contract was made, as an aid in ascertaining the parties'
intent').
10 In his reply brief, for the first time, Bostain also urges this court to
find the agreement valid based on sample agreements found in Washington
Practice. See 21 Kenneth W. Weber, Washington Practice: Family and
Community Property Law sec.sec. 57.36-.37, at 368-78 (1997). Similar to
the requirement of full disclosure in the case of prenuptial agreements,
these sample forms contain language advising the parties of their rights.
For example, one sample agreement states: '{P}arties intend . . . {to}
supercede any rights either party may have under {Lindsey, 101 Wn.2d 299},
line of cases and other cases and statues defining the rights and duties of
people living together without marriage.' 21 Wash. Practice sec. 57.36, at
369. See also 21 Wash. Practice sec. 57.37, at 376. Such language is not
present in the non-marital agreement here and is precisely what the trial
court found lacking.
11 Connell, 127 Wn.2d at 351.
12 Bostain's Assignment of Error No. 11 refers to this as a motion for
reconsideration. See CR 59(b).