Angelo v. Angelo

Decision Date18 January 2008
Docket NumberNo. 35548-5.,35548-5.
Citation175 P.3d 1096,142 Wn. App. 622
CourtWashington Court of Appeals
PartiesIn re the Marriage of Samuel ANGELO, Petitioner/Appellant, v. Marilyn ANGELO, Respondent/Respondent, v. Marilyn Angelo, Plaintiff/Respondent, v. Samuel T. Angelo, an individual; Sam Angelo Construction, Inc., a Washington corporation; Lewis T. Angelo and Miki M. Angelo, husband and wife; Joseph T. Angelo, an individual; Theodore C. Angelo and Mary Jane Angelo, husband and wife; and Gordon D. Foster, Jr. and Sherryl L. Foster, husband and wife; and Ted Angelo Brothers, a Washington general partnership, Defendants/Appellants.

Samuel Angelo, Kalama, WA, pro se.

Samuel Angelo Construction, Inc., Kalama, WA, pro se.

Curtis Alan Welch, Duggan Schlotfeldt & Welch Law Firm, Carolyn Marie Drew, Horenstein & Drew PLLC, Vancouver, WA, Catherine Wright Smith, Valerie A Villacin, Edwards Sieh Smith & Goodfriend PS, Seattle, WA, for Respondent/Respondent.


¶ 1 Samuel Angelo and Sam Angelo Construction, Inc. (SAC) appeal the trial court's consolidation of a tort claim with a marital dissolution action and its subsequent judgment awarding $36,095 in damages, $194,014.52 in attorney fees, and $8,650.05 in costs to Samuel's former spouse, Marilyn,1 based on her claims that Samuel fraudulently transferred real property that they owned during their marriage. Samuel and SAC contend that the trial court erred by: (1) consolidating the dissolution action with a tort claim; (2) omitting findings of fact on the nine elements of fraud;2 (3) denying Samuel and SAC's motion to dismiss because it erroneously determined that Marilyn was a creditor under the Uniform Fraudulent Transfer Act (UFTA), chapter 19.40 RCW; and (4) awarding attorney fees and costs to Marilyn.3 Samuel and SAC argue that we should vacate the judgment and attorney fees to Marilyn and that they should be awarded attorney fees and costs on appeal. At oral argument, we learned that the trial court has not completed the consolidated property dissolution case and that no hearing or trial is scheduled to complete it. We, therefore, address only the tort claims and grant Samuel and SAC's requested relief. We vacate the trial court's findings of liability and its award of damages and attorney fees and costs against Samuel and SAC And we remand for dismissal of Marilyn's tort claims and for further proceedings in the dissolution action, consistent with this opinion.


¶ 2 Samuel and Marilyn were married on March 1, 1989. Samuel, his father, and his brothers worked together in construction and speculated in real property. They bought parcels of real property with mortgages solely for investment purposes, including rental properties. They also built on various parcels and then either sold or rented the improved parcels for profit. The Angelo brothers operated a partnership, the Ted Angelo Brothers (TAB), and Samuel started his own partnership, SAC, naming Marilyn as an officer of the company. "SAC[,] prior to their marital difficulties[,] had a value in excess of a million dollars." Clerk's. Papers (CP) at 3706.

¶ 3 Samuel and Marilyn separated on January 1, 2000, and Samuel filed a petition for dissolution on June 28, 2001. The parties filed an agreed dissolution decree on February 12, 2002, based on a separation contract reached after extensive discovery, including Samuel's deposition and production of documents related to the property owned and transferred during the marriage and after separation. The separation contract was incorporated into the decree and allocated post-dissolution ownership and management of 24 parcels of real property; but by the time the settlement agreement was entered, SAC's total asset value was less than $100,000.

¶ 4 Two weeks after entry of the decree, Marilyn filed a motion to compel Samuel's compliance with the dissolution decree, declaring that he had engaged in unauthorized transfers of marital property and had otherwise failed to comply with the separation contract.4 Marilyn declared under penalty of perjury that "Samuel had transferred numerous pieces of real property ... into the names of family members," CP at 75, and that "it was very clear that [Samuel] had deliberately and systematically depleted the community of hundreds of thousands of dollars in real property and [she had] agreed to accept ... what was left." CP at 78. She also asserted that Samuel had sold real property immediately before he agreed to award her that same real property in the dissolution decree.

¶ 5 On March 5, 2002, Marilyn moved for relief from judgment based on CR 60(b)(4) and (ll)5 and sought to modify the dissolution decree to provide for "benefit of the bargain" damages based on Samuel's unauthorized real property transfers to, family members. CP at 98. Samuel moved to dismiss Marilyn's action, asserting that: (1) the trial court lacked subject matter jurisdiction under CR 12(b)(1) and, (2) because she had not shown fraud, Marilyn, had failed state a claim under CR 12(b)(6). Marilyn asserted that Samuel's "misrepresentations and subsequent actions have made the property settlement portion of the Separation Contract unenforceable" and requested "that the Court vacate and amend the property portion of the Decree." CP at 158.

¶ 6 On March 26, the parties reached an out-of-court agreement that: (1) Samuel would give Marilyn a deed of trust on certain properties; (2) the family members would release all claims to three previously transferred properties and hold Marilyn harmless; (3) Samuel would repair Marilyn's car and transfer title to her; and (4) Samuel's attorney would prepare the documents to implement their agreement. Marilyn accepted these terms against the advice of her counsel; but she later refused to sign the agreement and, on August 21, 2002, she renewed her earlier CR 60(b)(4) and (11) motion for relief from judgment and for attorney fees.

¶ 7 This time, Marilyn asked the trial court to vacate the property portion of the dissolution decree, enjoin Samuel from "transferring or further encumbering any of the properties that are the subject of the Separation Contract," and to "award attorney fees for this action and to facilitate further discovery" because Samuel had reneged on the out-of-court agreement. CP at 172. Marilyn further declared that Samuel was in arrears on his spousal maintenance and insurance payments and asked that Samuel be held in contempt and ordered to honor his obligations under the terms of the separation contract. Finally, Marilyn told the trial court that she was in the process of filing an attached complaint for damages against Samuel and SAC, Lewis and Mickey Angelo, Joseph Angelo, and Theodore Angelo under the UFTA "for their participation in the fraudulent transfer of properties." CP at 177.

¶ 8 On August 29, Marilyn moved to consolidate her motion for relief from judgment in the dissolution case with her tort claims, asserting common issues of law and fact.6 Samuel renewed his motion to dismiss, added additional grounds under CR 12(b), responded that Marilyn's attempt to consolidate was frivolous under well-settled case law, and urged the trial court to deny her motion and award Samuel attorney fees. Samuel also advised the trial court that Marilyn's attorney drafted the separation contract and that Marilyn admitted she knew of the assets she now accused him of fraudulently transferring and it was her duty to value all the assets prior to the dissolution, particularly, in light of the extensive discovery that preceded the dissolution.

¶ 9 On September 6, Samuel filed a third motion to dismiss Marilyn's motion to consolidate and for CR 11 sanctions against Marilyn for filing a frivolous motion to consolidate a dissolution action with a tort claim. Samuel also provided the trial court additional information on the disposition of the community property; restated his earlier arguments, and asserted equitable estoppel and lathes as defenses to Marilyn's claims. At the hearing on the motions, the trial court's inquiry showed that Samuel had made significant misstatements to it and the court ordered him to provide further information on the properties and proof of payment of spousal support. On January 16 and, again, on January 22, 2003, Samuel provided the trial court with financial statements and information on various real properties.

¶ 10 On February 7, 2003, the trial court granted Marilyn's motion to consolidate the actions under CR 42(a),7 "finding that there are common questions of law or fact between these two cases; consolidation will simplify discovery and improve efficiency; and because of the timing of the alleged transfers of property referenced in the fraudulent transfer Complaint as such transfers relate to the dissolution." CP at 693.

¶ 11 On April 18, the trial court vacated the property portion of the dissolution decree without any finding or explanation and reserved ruling on Marilyn's request for attorney fees.. The trial court further ordered that "fain other provisions of the Dissolution Decree entered February 12, 2002, and the Separation Contract incorporated therein" remain in full force and effect and that "[t]he determination of final property distribution to [Samuel and Marilyn] is reserved pending determination of" Marilyn's civil complaint. CP at 749. On June 3, the trial court; ordered Samuel to pay Marilyn $7,500 in temporary attorney fees "to assist her in dealing with financial transactions that have occurred." CP at 756.

¶ 12 On May 11, 2004, Samuel and SAC filed yet another CR 12(b) motion to dismiss, this time asserting that, because the separation contract had been vacated, Marilyn did not have a claim and was, therefore, not a creditor under the UFTA. The trial court denied the motion, finding that Marilyn, "at the time of the conveyance had an interest in, a tenancy in common, or a financial offset due to the fact that...

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