Huesch v. Huesch

• Decision Date: 07 March 2022
• Docket Number: 82344-2-I
• Parties: In the Matter of the Marriage of: DANIEL HUESCH, Respondent, v. ANJA HUESCH, Appellant.
• Court: Washington Court of Appeals

In the Matter of the Marriage of: DANIEL HUESCH, Respondent, v. ANJA HUESCH, Appellant.

No. 82344-2-I

Court of Appeals of Washington, Division 1

March 7, 2022

UNPUBLISHED OPINION

HAZELRIGG, J.

Anja Huesch appeals from a King County Superior Court Final Divorce Order. She alleges the trial court erred (1) by denying her motion to compel, (2) by declining to award attorney fees, and (3) by declining to consider her post-trial request to enforce an alleged agreement regarding the child's tuition. Both parties request attorney fees on appeal. Because the trial court did not abuse its discretion, we affirm and decline to award fees to either party.

FACTS

Anja and Daniel Huesch^[1] were married in Germany in 2012. They have one child, K.H., who was born in Germany in 2012. Daniel worked at a tech start-up, which was later acquired by Amazon. The couple moved to Seattle in 2015, where Daniel works for Amazon as a software development manager. Anja has an advanced degree in American Studies and has been a stay-at-home mother. In September 2018, Daniel petitioned for dissolution of the marriage, stating it was "irretrievably broken." There was extensive litigation in the case, which eventually concluded with a five-day trial.

The court issued its findings of fact and conclusions of law about a marriage, along with a final divorce order and parenting plan, in January 2021. Anja timely appeals.

ANALYSIS

I. Denial of Motion to Compel

Anja first argues the court erred in denying her motion to compel Daniel to comply with King County Superior Court Local Family Law Rule 10 (LFLR 10). This rule requires each party to submit a financial declaration and supporting documents in proceedings involving issues of child support, spousal maintenance, property settlement, or payment of the child's expenses. King County Super. Ct. Local Fam. Law R. 10.

In reviewing a trial court's interpretation of a local court rule, we uphold the trial court's application "unless the construction placed thereon is clearly wrong or an injustice has been done." Snyder v State, 19 Wn.App. 631, 637, 577 P.2d 160 (1978). Additionally, "observation of local rules is largely discretionary in the trial court," and trial courts may "relax and suspend its own special rules of procedure." Id. We presume the trial court "disregarded the rule (if it did) for sufficient cause." Id.

Here the court construed Anja's motion as a discovery motion filed after the discovery deadline had passed. It held that regardless of the motion's identity as a discovery motion, Anja's counsel "knew or should have known that the Financial Declaration was not current," and "failed to act with diligence" by neglecting to bring a motion until the second to last day of trial. Anja fails to cite any authority to support her contention that her motion was "not a motion to compel discovery," or that it was timely. Additionally, the court found Daniel had not complied with LFLR 10 and ordered a remedy in the form of an adverse inference.

Without more, Anja has not met her burden to demonstrate the court's interpretation of LFLR 10 "is clearly wrong or" that "an injustice has been done."^[2]

II. Post-Trial Evidence of Tuition Agreement

Anja contends the trial court abused its discretion by declining to consider Anja's argument to delay capping Daniel's tuition contributions. She first raised this issue in a post-trial memorandum, and alleges that the judge's email inviting the parties to identify errors "where there is no disagreement between the parties regarding the underlying substance" authorized such additional information. Anja claims there is no "honest" dispute between the parties regarding Daniel's promise to pay K.H.'s full 2020-2021 tuition, but he challenges whether this binding agreement exists at all.

As a preliminary matter, Anja cites no authority for her contention that the court abused its discretion in declining to consider the evidence. RAP 10.3(a)(6) requires a party to submit argument supported by citations to legal authority in its briefing.

A court's decision to decline to reopen "a cause for additional evidence is within the discretion of the trial court," and we will not reverse unless the court abuses its discretion which causes prejudice. Estes v. Hopp, 73 Wn.2d 263, 270, 438 P.2d 205 (1968). As a general rule, after trial, if "evidence was available but not offered until after that opportunity passes, the parties are not entitled to another opportunity to submit that evidence." Wagner Dev., Inc. v. Fidelity and Deposit Co. of Md, 95 Wn.App. 896, 907, 977 P.2d 639 (1999).

Here, the emails Anja alleges demonstrate the agreement between herself and Daniel were sent in April 2019, May 2019, and February 2020. Trial began November 16, 2020. Anja had an opportunity to submit the evidence prior to or during trial, but failed to do so. The court did not abuse its discretion in declining to hear the post-trial evidence.^[3]

III. Denial of Attorney Fees

Anja next argues the trial court abused its discretion by declining to award her reasonable attorney fees and costs, particularly without the information required by LFLR 10 and without considering the income of Daniel's girlfriend with whom he resides.^[4] We review a court's ruling regarding attorney fees under RCW 26.09.140 for an abuse of discretion. In re Marriage of Nelson, 62 Wn.App. 515, 521, 814 P.2d 1208 (1991). Although Anja frames this argument in terms of an abuse of discretion, in her reply brief she contends entitlement to attorney fees is an issue of law reviewed de novo, citing cases unrelated to RCW 26.09.140 or family law generally. Our case law is clear that a trial court's decision not to award attorney fees under this provision is reviewed for an abuse of discretion, and we will not reverse unless the court's decision "is untenable or manifestly unreasonable." In re Custody of Salerno, 66 Wn.App. 923, 926, 833 P.2d 470 (1992).

A decision whether to award attorney fees is a discretionary decision, and neither party is entitled to "fees as a matter of right." In re Marriage of Terry, 79 Wn.App. 866, 871, 905 P.2d 935 (1995). Rather, the court determines "whether one party has a need and the other party has the ability to pay," and then determines whether to award fees. Id. "The party challenging the award bears the burden of proving" the court's decision was "clearly untenable or manifestly unreasonable." In re Marriage of Knight, 75 Wn.App. 721, 729, 880 P.2d 71 (1994).

First, we note that while the trial court made its decision regarding fees without the information required by LFLR 10, it imposed an adverse inference against Daniel and determined his financial resources based on his 2019 W-2 and tax return, which did include the assets Anja avers were missing from Daniel's financial declaration.

Anja also alleges the trial court's decision is based on insufficient findings because it failed to consider the income of Daniel's girlfriend. She cites to In re Marriage of Bobbitt for support. See 135 Wn.App. 8, 30, 144 P.3d 306 (2006).

In that case, Division II of this court vacated a judgment for attorney fees and remanded for the trial court to make findings of fact and conclusions of law, finding the trial court failed to "provide sufficient findings of fact and conclusions of law to develop an adequate record for appellate review." Id. The court in Bobbitt failed to include information about a party's new husband's income, household expenses, and assets. \j± However, the court also failed to make any findings beyond stating the fees were awarded "for the necessity of having to pursue this action," neglecting to make any findings regarding either parties' need or ability to pay, and making no findings regarding intransigence. Id.

The case before us is distinct. While the court did not consider the income of Daniel's girlfriend, it did consider that Daniel received a loan of $103, 000 from her. There was also testimony that his girlfriend worked as a "senior marketing operations manager at Microsoft," and that she owned the home they resided in together, and that her income was six figures.^[5] But, Daniel and his girlfriend were not married at the time of the court's ruling. Daniel's partner testified that although she and Daniel were in a committed relationship, Daniel was sharing all household expenses when he had the funds to do so and they had executed a cohabitation agreement under the terms of which all of her separate property remained separate. Anja's attorney conceded to the court that Daniel's girlfriend had no legal obligation to cover any of his debts. Based on these facts, there was sufficient evidence to support the court's decision not to consider his partner's income in assessing Daniel's ability to pay Anja's attorney fees.

The court also considered testimony by Daniel about his assets and debts, particularly the assets "drained" by litigation. It recognized that Daniel took out a loan to pay the property settlement to Anja, and that his future Reserve Stock Units would be used to repay that debt.^[6] The court found Daniel's testimony that he has little cash and no real property or significant assets, credible. Based on this record, it was not an abuse of discretion to decline to award discretionary attorney fees to Anja.^[7]

IV. Attorney Fees on Appeal

Both Anja...