Humphrey v. Humphrey
| Decision Date | 12 August 2014 |
| Docket Number | No. 31336-1-III,31336-1-III |
| Court | Washington Court of Appeals |
| Parties | In re the Marriage of: SELISA HUMPHREY, Appellant, and LLOYD HUMPHREY, Respondent. |
LAWRENCE-BERREY, J. — Selisa Humphrey appeals from an order of dissolution of her 17-year marriage to Lloyd Humphrey. She contends that the trial court erred in (1) denying her CR 37(b) motion for an order of default as a sanction against Mr. Humphrey for discovery abuses; (2) finding that money removed from a safe in Mr. Humphrey's house was traceable to recent withdrawals from community bank accounts; (3) valuing a gun collection at $40,000; (4) awarding her monthly maintenance of $800; and (5) revoking a pretrial order. Finding no error, we affirm.
Selisa Humphrey and Lloyd Humphrey were married on March 1, 1993, and separated on July 29, 2010. Prior to marriage they lived together for six years. At the time of trial, Ms. Humphrey was age 58 and Mr. Humphrey was age 77. There were no children of the marriage or prior relationship.
Both parties are in poor health and neither was employed at the time of trial. Mr. Humphrey suffers from chronic anxiety, depression, posttraumatic stress disorder and chronic back and neck pain. Mr. Humphrey is retired after a career as a mental health counselor. Ms. Humphrey worked as a receptionist until 2000 when she was found to be totally disabled due to an anxiety disorder and a diagnosis of bipolar disorder.
Before trial, Mr. Humphrey repeatedly delayed the discovery process. On August 26, 2010, Ms. Humphrey served Mr. Humphrey with a first set of interrogatories and request for documents. By March 11, 2011, he had not responded to the requests for information. The court ordered him to have responses in by April 22, 2011. When Mr. Humphrey responded on April 28, 2011, his answers were incomplete. On May 23, 2011, the court ordered that the outstanding discovery was to be provided by June 9, 2011, and imposed sanctions of $3,000. Mr. Humphrey failed to provide answers or documents by June 9, 2011. On June 30, 2011, the court ordered Mr. Humphrey to pay $2,700 insanctions and $1,000 in attorney fees for failing to comply with the May 23, 2011 discovery order.
The delays continued. Throughout the summer of 2011, Mr. Humphrey failed to comply with discovery orders. On August 16, 2011, he was found in contempt and ordered to hire an appraiser to inventory and value all the property at his home by September 22, 2011. Following a contempt hearing on September 22, 2011, the court again ordered Mr. Humphrey to hire an appraiser and warned him that failure to do so would result in the striking of his pleadings and an order of default. On October 19, 2011, a court commissioner found Mr. Humphrey in contempt, noting he "failed to comply with all the purge conditions outlined in the September 22, 2011 order on show cause contempt." Clerk's Papers (CP) at 329. The order disallowed Mr. Humphrey from providing values on his personal property at the time of trial, ordered him to provide a list of his firearms, and allowed Ms. Humphrey on his property to inventory personal property.
On the first day of trial, Ms. Humphrey filed a CR 37(b) motion to strike all of Mr. Humphrey's pleadings and to find him in default. Ms. Humphrey argued that Mr. Humphrey's failure to comply with discovery orders was willful and prejudiced her ability to present evidence at trial, particularly evidence related to the value of a guncollection. The court deferred a decision, finding an insufficient showing of prejudice at that juncture. The court noted that Mr. Humphrey's dilatory response to discovery requests, although willful, was not substantially prejudicial because the value of most of the property at issue was a matter of public record. The court noted there was some prejudice to Ms. Humphrey regarding some cash and vehicles, but stated, "I'm going to defer that ruling until I've looked more closely at this." Report of Proceedings (RP) at 32-33.
At the end of trial, the court revisited Ms. Humphrey's motion for default. It noted that Mr. Humphrey had ultimately complied with most of the discovery requests, including the provision of financial records and a walk-through of Mr. Humphrey's property. The court ultimately denied the motion, finding in part that without a "sum certain," default was "simply not available to me as a practical matter." RP at 593. The judge also noted that Mr. Humphrey's intransigence had been addressed by previous awards of attorney fees and sanctions. However, the court acknowledged that "the discovery phase was strung out, complicated, made more difficult than it had to be," and therefore awarded an additional $10,000 in attorney fees to Ms. Humphrey. RP at 594-95.
The court awarded each party their separate property, including their respective homes, personal property, and awarded Mr. Humphrey $27,000 of the community real property and Ms. Humphrey $17,000 of the community real property. This disparity was offset by a community property equalization payment to Ms. Humphrey of $10,700. Bank accounts were divided equally. The court also awarded Ms. Humphrey $40,000 for her interest in a gun collection, the balance of previously imposed attorney fees and sanctions, $900 and $6,050, respectively. Mr. Humphrey was ordered to pay Ms. Humphrey monthly maintenance of $800 through Mr. Humphrey's lifetime.
Ms. Humphrey appeals.
ANALYSIS
Discovery Sanction. Ms. Humphrey first argues that the trial court abused its discretion in denying her CR 37(b) motion for a default judgment. She contends "[t]he trial court erroneously based [its] decision to deny the request for a default as a sanction under CR 37 because there was not a sum certain and as such the court determined that default was 'simply not available to me as a practical matter.'" Br. of Appellant at 17 (quoting RP at 593). Ms. Humphrey asserts the court could have addressed this concern by conducting an evidentiary hearing under CR 55(b)(2), which gives the court discretion to conduct a hearing when the amount of judgment is uncertain after entry of a default
Default judgments are not favored in the law. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979). The overriding policy is that controversies should be determined on their merits, not by default. Id. (quoting Dlouhy v. Dlouhy, 55 Wn.2d 718, 721, 349 P.2d 1073 (I960)).
Under CR 37(b), entry of a default judgment may be a valid sanction for a discovery violation. CR 37(b), (d); Smith v. Behr Process Corp., 113 Wn. App. 306, 324, 54 P.3d 665 (2002). A court may make "such orders in regard to the failure as are just," including excluding evidence to rendering a judgment by default. CR 37(b)(2); see Magana v. Hyundai Motor Am., 167 Wn.2d 570, 583-84, 220 P.3d 191 (2009). When a trial court imposes default in a proceeding as a sanction for violation of a discovery order, it must consider whether: (1) the party's refusal to obey the discovery order was willful or deliberate, (2) the violation substantially prejudiced the moving party's ability to prepare for trial, and (3) a lesser sanction would be sufficient. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997); Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 688, 690, 132 P.3d 115 (2006).
We review a court's decision regarding discovery sanctions for an abuse of discretion. Magana, 167 Wn.2d at 582. A trial court has broad discretion in decidingwhether to impose sanctions, including an order of default, and its determination will not be disturbed absent a clear abuse of that discretion. Graham v. Yakima Stock Brokers, Inc., 192 Wash. 121, 126, 72 P.2d 1041 (1937). This standard "gives the trial court wide latitude in determining appropriate sanctions, reduces trial court reluctance to impose sanctions, and recognizes that the trial court is in a better position to determine this issue." Smith, 113 Wn. App. at 324.
In its oral ruling, the trial court noted there was no sum certain and therefore default was not a "practical" sanction. RP at 593. It also refused to strike exhibits, pointing out the case suffered from RP at 593. The court evaluated the Burnet factors and concluded that although Mr. Humphrey's intransigence during discovery was willful, Ms. Humphrey was not substantially prejudiced (apart from evaluating the value of the firearms), and that alternative sanctions were appropriate. In concluding that lesser sanctions sufficed, the court found Mr. Humphrey had been sanctioned with attorney fees and financial sanctions as follows:
Attorney's fees were ordered by the Court to be paid for the wife by the husband as follows: February 23, 2011, $600; May 23, 2011, $300; and July 1, 2011, $1000 (paid from husband's account) leaving $900 due. Sanctions were imposed against the husband as follows: $3,000 on May 23, 2011; $2,700 on June 30, 2011 (paid from husband's account); $2,500 on August 6, 2011; and $800 on September 22, 2011, leaving $6,050 due.
CP at 463 (emphasis in original). The court also imposed an additional $10,000 in attorney fees due to Mr. Humphrey's intransigence during discovery.
In evaluating the court's use of its broad discretion here, we reiterate that default is a severe sanction to be employed only when it is apparent a lesser sanction will not suffice and the disobedient party's conduct has been willful and substantially prejudiced the opponent's ability to prepare for trial. Burnet, 131 Wn.2d at 494. Here, the lesser sanctions advanced the purpose of discovery, compensated Ms. Humphrey for the discovery failings, and allowed the trial to go forward on the merits.
Although Mr. Humphrey needlessly extended the discovery process, Ms. Humphrey was not substantially prejudiced. On appeal, she contends the trial court should have entered a default judgment and then employed a CR 55(b)(2)1...
To continue reading
Request your trial