Erickson v. Erickson

• Decision Date: 14 December 2022
• Docket Number: Docket No. 48335
• Citation: 521 P.3d 1089
• Parties: Amy J. ERICKSON, Petitioner/Respondent, v. Joshua ERICKSON, Respondent/Appellant.
• Court: Idaho Supreme Court

521 P.3d 1089

Amy J. ERICKSON, Petitioner/Respondent,

v.Joshua ERICKSON, Respondent/Appellant.

Docket No. 48335

Supreme Court of Idaho, Boise, May 2022 Term.

Opinion Filed: December 14, 2022

Rainey Law Office, Boise, attorney for Appellant. Rebecca Rainey argued.

Eismann Law Offices, Nampa, attorney for Respondent. Ryan Martinat argued.

BEVAN, Chief Justice.

This appeal concerns the proper legal standards for assessing discovery sanctions against trial counsel, and for proving the character of property during divorce proceedings. Appellant Josh Erickson argues the magistrate court erred by applying the community property presumption to three retirement accounts¹ he owned prior to marriage. Josh² argues that he failed to produce documents during discovery that could have established these accounts were his separate property because the Respondent, Amy Erickson, did not give timely notice that she was seeking an interest in the retirement accounts. Josh argues the magistrate court then imposed inequitable sanctions at trial for his alleged discovery violations by preventing him from presenting evidence relevant to the claims Amy was permitted to make outside the discovery window. Josh appealed the magistrate court's decision to the district court, which affirmed. Josh now appeals to this Court. Amy cross-appeals the district court's denial of her request for attorney fees.

I. FACTUAL AND PROCEDURAL BACKGROUND

Josh and Amy were married on September 29, 2017. At the time of marriage, Josh worked for Slayden Construction in Spokane, Washington. Before marriage, Josh worked for T-O Engineers from 2012 to 2014, and McMillan and Associates from 2014 to shortly before his marriage in 2017. On February 12, 2019, less than two years after their marriage, Amy filed for divorce citing irreconcilable differences. As to the parties’ property, Amy's petition pleaded that "community property and incurred community debts ... should be determined, valued and equitably divided between the petitioner and the respondent as provided in Idaho Code Section 32-712 as amended." She also sought that "[t]he separate property of the respondent should be identified and confirmed to be the separate property of the respondent."

Josh filed an answer, requesting that the parties’ respective separate property and debt be confirmed to them, and the parties be awarded an equitable division of their community property and debt. Soon after, the magistrate court entered a scheduling order setting the trial date for September 10, 2019. The order required several things of both parties. First, the order designated that all discovery be completed no later than 42 days before trial, which was July 30, 2019. It also required the parties to "comply with the automatic disclosure provisions set forth in Idaho Rules of Family Law Procedure 401," including the admonition that "failure to do so may, in the [c]ourt's discretion, subject the non-compliant party to sanctions, including those sanctions set forth in Idaho Rules of Family Law Procedure Rules 444 and 447 [now Rule 417]." The order also required the parties to file a pretrial memorandum "no later than 7 days before the pre-trial conference." (Emphasis in original.) Finally, as relevant to this appeal, the magistrate court ordered "[t]he parties and their respective counsel shall appear before this [c]ourt on August 22, 2019 at 1:30 PM for a pre-trial conference. " (Emphasis in original.)

As the magistrate court ordered, under Idaho's Family Law Procedural Rules (Rules), both Amy and Josh are required to make mandatory disclosures to each other "within 35 days after the filing of a responsive pleading." I.R.F.L.P. 401(a). Of note here, Josh had to provide "complete copies of the following documents":

(2) all monthly or periodic bank, checking, savings, brokerage, and security account statements in which any party has or had an interest for the period commencing 6 months prior to the filing of the petition and through the date of the disclosure; [and]

(3) all monthly or periodic statements and documents showing the value of all pension, retirement, stock option, and annuity balances, including Individual Retirement Accounts, 401(k) accounts, and all other retirement and employee benefits and accounts in which any party has or had an interest for the period commencing 6 months prior to the filing of the petition and through the date of the disclosure, or if no monthly or quarterly statements are available during this time period, the most recent statements or documents that disclose the information ....

I.R.F.L.P. 401(f)(2) and (3) (emphasis added).

Aside from the mandatory disclosure required by the Rules, Amy served discovery requests on Josh. Regrettably, other than a few pages of documents attached to an affidavit filed by Amy's counsel, the record contains no responses from Josh to Amy's request for production.³ From what we can glean from the record available, Amy apparently requested that Josh produce "all physical evidence relating to [his] retirement plans." Josh's answer conveyed that he produced documents related to his retirement accounts in response to the discovery request and previously via mandatory disclosures. Whatever documents Josh produced were not made part of the record, but it appears they were deficient, given that Amy's counsel sent a meet and confer letter to Josh's counsel on June 21. The letter stated that Josh's response failed to include documents for these accounts and time periods:

a. E-Trade Securities Individual⁴ – September 29, 2017 through and including October 31, 2018.

b. E-Trade Securities – Individual – April 1, 2019 through current.

c. E-Trade Securities – ROTH IRA – September 29, 2017 through and including September 30, 2018.

d. McMillen Jacobs Associates, Inc., 401K – September 29, 2017 through and including September 30, 2018.

e. T-O Engineers 401K – September 29, 2017 through and including September 30, 2018.

f. JUB 401K – No documents produced.

A subsequent email from Josh's counsel explained that some documents were produced in response; however, they are not in the record. On appeal, Amy contends "the discovery supplement was still deficient in relation to [the request for documents related to Josh's retirement plans or investment account]. Josh had failed to produce many of the documents requested in Amy's counsel's June 21st letter."

As required by the magistrate court's scheduling order, Amy filed her pretrial memorandum seven days before the pretrial conference. Josh did not file his pretrial memorandum until nearly six hours after the pretrial conference. In Amy's memorandum, she explained that she was seeking an interest in Josh's retirement accounts:

The parties disagree on the character of certain assets as to whether such asset is community property or separate property. The respondent has several investment and retirement accounts. The respondent has moved significant amounts of money around between bank accounts, retirement accounts, and investment accounts during the marriage. The source of the transferred funds is not known, which thereby calls into question the character of the asset as to whether it is community or separate property.

....

The petitioner asserts that funds in the parties’ joint bank accounts, retirement accounts, and investment accounts were comingled as explained above. The respondent appears to claim that the investment accounts and retirement accounts are his separate property. The respondent has the burden of proof to show that the retirement accounts and investment accounts are his separate property. In Batra v. Batra , 135 Idaho 388, 395, 17 P.3d 889 (Ct. App. 2001), the Idaho Court of Appeals cited the law on commingling as follows:

Where the parties have commingled their separate and community funds in a bank account, and treat them as one, it all becomes community property. Gapsch v. Gapsch , 76 Idaho 44, 277 P.2d 278 (1954). The commingling doctrine is a special application of the general presumption that all property acquired during the marriage is community property. Houska v. Houska , 95 Idaho 568, 512 P.2d 1317 (1973). The party who asserts that the property is separate has the burden of persuasion, and must prove the property is separate with reasonable certainty and particularity.⁵

Attached to Amy's pretrial memorandum was a property and debt schedule that confirmed that she was seeking a community property interest in all of Josh's retirement accounts. At first, Amy only sought a $22,907 equalization payment; however, the property and debt schedule admitted as an exhibit at trial increased that amount to $53,915.94. Josh's late-filed pretrial memorandum did not address Amy's commingling claims, nor did it attempt to trace his separate property, or include a property and debt schedule.

The pretrial conference was held as scheduled. Amy and her counsel appeared, while neither Josh nor his trial counsel appeared. As a result, the conflicting claims over the accounts listed in the meet and confer letter were not discussed and the conference was of little utility. On the eve of trial, September 9, 2019, the magistrate court held another pretrial conference hearing via telephone at Josh's counsel's request. Both counsel participated. Josh asked for a continuance based on his concern that Amy submitted a property and debt schedule claiming a "$61,000 equalization payment" that was never mentioned during the mandatory disclosures or during the informal discovery requests. Amy responded that she had no information on Josh's retirement accounts during discovery; thus, she could not provide detailed schedules about her claims. But Amy suggested her pretrial memorandum put Josh on notice of her position (as set forth above) that Josh had commingled bank accounts, retirement accounts, and investment accounts, placing the burden on Josh to prove each was separate property. Amy claimed Josh was trying to provide proof at the last minute by...