In re Marriage of Bays, No. 21801-5-III (WA 2/7/2006)
| Decision Date | 07 February 2006 |
| Docket Number | No. 21801-5-III,21801-5-III |
| Court | Washington Supreme Court |
| Parties | In re the Marriage of: DAVID BAYS, Respondent, and LINDA J. ERICKSON, a/k/a SVARE a/k/a BAYS a/k/a LINJERICKS SOCIETY, Appellant. |
Appeal from Superior Court of Pend Oreille County. Docket No: 01-3-00023-3. Judgment or order under review. Date filed: 02/18/2003. Judge signing: Hon. Paul Arthur Bastine.
Counsel for Appellant(s), Linda Jean Erickson Bays (Appearing Pro Se), PO Box 301, Kettle Falls, WA 99141.
Counsel for Respondent(s), Douglas D. Lambarth, Lambarth Law Office, PO Box 366, 102 S Union Ave, Newport, WA 99156-9668.
Linda Bays, representing herself, failed to appear at her scheduled marriage dissolution trial. Considering the attendant circumstances, the trial court proceeded to trial, granting David Bays a marriage dissolution decree. On appeal, Ms. Bays contends the case was improperly assigned to a visiting judge and decided in violation of a bankruptcy stay. Further, Ms. Bays contends the court erred in denying her continuance requests, conducting the trial in her absence, making certain property rulings, denying her CR 60 and CR 59 motions, and finding her in contempt of a temporary restraining order. We find no error, and affirm.
In 1998, 80-year old David Bays married 51-year old Linda Bays. Mr. Bays had recently lost his wife of 54 years, and he had not fully recovered. Prior to this marriage, Mr. Bays owned a home in Ione, Washington furnished with expensive antiques, he had some credit cards which were paid in full every month, social security benefits, a State pension, a savings account, and some certificates of deposit.
Ms. Bays soon convinced Mr. Bays to pay $18,000 to resolve a title dispute over a home in Republic, Washington, which she owned under the name Linjericks Society. Ms. Bays prepared documents transferring the Republic property to Mr. Bays and her mother as tenants in common. By April 1998, Ms. Bays had isolated Mr. Bays from his family and began spending large amounts of his income, making charges on his existing credit cards, opening new cards in his name, disposing of his personal property, liquidating his assets, and convincing him to move to the Republic home. Ms. Bays convinced Mr. Bays to make her the beneficiary of his insurance policies and execute a new will and powers of attorney to her benefit. Mr. Bays was ill during this time.
In April 1999, Mr. Bays took a second mortgage on his Ione home for $152,750 at Ms. Bays' request. Ms. Bays assured him she would rent the home out and use the income to make the loan payments. Mr. Bays used $52,899.21 of the loan funds to pay off a vendor's interest in Ms. Bays' Republic property. At that time, Ms. Bays asserted Mr. Bays would be one-half owner in the property, which consisted of two parcels of land. In August 1999, Ms. Bays prepared a quit claim deed, signed by Mr. Bays, which granted Parcel A of the Republic property back to Ms. Bays and the Linjerick Society.
By October 1999, Mr. Bays was essentially out of money. Nine certificates of deposit totaling $13,724.57 had been cashed and spent. Mr. Bays had paid for a $30,000-$40,000 addition to the Republic home, approximately $42,000 in other miscellaneous items and improvements to the property, and $30,000 in gold. In June 2000, he lost the Ione home because the loan payments had not been made. By that time, new credit card debt in his name totaled almost $60,000.
In October 2000, Mr. Bays executed a document prepared by Ms. Bays, which purported to convey Mr. Bays' interest in Parcels A and B of the Republic property to Ms. Bays in consideration of a life estate in the basement of the property and one dollar. In November 2000, Ms. Bays executed a quit claim deed for Parcel B of the Republic property to her son, Kelly Case. In April 2001, Mr. Bays filed for dissolution in Pend Oreille County. Then, the court issued an ex-parte restraining order which prevented Ms. Bays from `transferring, removing, encumbering, concealing or in any way disposing of any property.' CP at 1769. Because the local judges were unable to hear the case, Spokane County Superior Court Judge Ellen Clark was initially assigned as a visiting judge.
Mr. Bays filed for bankruptcy on June 20, 2001. Because of the bankruptcy, Judge Clark entered an agreed order of continuance. Judge Paul Bastine followed Judge Clark on the family law docket and took over the case, entering a case scheduling order in October 2001, setting trial for February 16, 2002. On July 1, 2002, the court entered an amended order setting trial for October 7, 2002. The order lifting the automatic stay was filed on August 1, 2002.
On September 14, Ms. Bays wrote a rambling, lengthy letter to her attorney, criticizing him, referring to an enclosed Notice of Dismissal, and directing him to withdraw if he could not represent her in the manner she expected. On September 23, 15 days before trial, her attorney filed a notice of immediate withdrawal. At the September 27 pretrial hearing, Ms Bays denied firing her attorney, but told the court, `Mr. Stenzel's not my attorney, for the record.' Record of Proceedings (RP) at 23-24. She explained, `He's already withdrawn.' RP at 24. Judge Bastine asked Mr. Stenzel, `Is it your understanding that your services have been terminated on this case?' RP at 32. Mr. Stenzel replied, `Yes.' Id.
On September 27, Ms. Bays filed several motions, partly asking for a venue change from Pend Oreille County to Stevens County, and a trial continuance to allow time to find a lawyer and prepare for trial. She filed a physician's note providing: CP at 245. Judge Bastine denied the motions as untimely, but indicated Ms. Bays could renew the motions on the date of trial. According to her October 1, 2002 declaration, Ms. Bays filed bankruptcy that day `to allow the bankruptcy court to deside {sic} assets and liabilities.' CP at 1670. On the morning of trial, October 7, Mr. Bays' counsel told the court that he had secured relief from the automatic stay the Friday before the Monday trial so trial could proceed as scheduled. According to Mr. Bays' counsel, Ms. Bays participated in the bankruptcy proceedings by arguing `at some length' and `was perfectly healthy at that time to argue.' RP at 171.
On October 7, before the case was called to trial, Ms. Bays unsuccessfully attempted to contact Judge Bastine. She filed a declaration which detailed the extent of her illnesses, and related she could not leave the house or attend the trial. Ms. Bays filed a physician's note stating she was `acutely ill' with bronchitis, diarrhea, agitation, depression and paranoia. CP at 378. The physician recommended she not represent herself in court as scheduled. Mr. Bays' counsel reviewed Ms. Bays numerous efforts to secure a continuance, including the bankruptcy proceedings and told the court he was ready to proceed with subpoenaed witnesses. Mr. Bays' counsel argued against a continuance saying, `I believe, based upon her consistent conduct . . . that she hoped that this trial would never occur.' RP at 173.
The trial court carefully reviewed the medical information and reasoned Ms. Bays was, nevertheless, physically able to be present. The court noted it had denied a prior continuance request as untimely at the pretrial conference, but had given Ms. Bays the `opportunity to present additional information or to argue the motion.' RP at 174. It reasoned Ms. Bays had been represented previously `by competent counsel who could have appropriately made motions if they were appropriate at that time.' RP at 174. It declined to grant Ms. Bays' motion for continuance because she had not presented proper evidence that she could not proceed. `{T}here's no case here that she is so ill that it was inappropriate — or unable to appear.' RP at 175.
After hearing from Mr. Bays' witnesses and considering his evidence, the court granted Mr. Bays' petition for dissolution. The court found Ms. Bays breached a fiduciary duty to Mr. Bays, exercised undue influence over him and engaged in fraudulent conveyances. As a result, the court set aside five property transfers involving Mr. Bays, Ms. Bays and/or various third parties, reinstated two real estate contracts in Mr. Bays' favor, ordered equitable reimbursement to Mr. Bays for $52,233.33, placed an equitable lien on the Republic property for that amount, ordered a sale of the Republic property, and attributed $15,000 in community debt to Ms. Bays. On October 11, Ms. Bays filed excise tax affidavits and a warranty deed for the Republic property, purportedly signed by Mr. Bays in October 2000. As a result, Mr. Bays filed a motion to show cause for contempt for violation of the restraining order. Judge Linda Tompkins found Ms. Bays in contempt for an attempted transfer of property and ordered her to reconvey the property to Mr. Bays. When Ms. Bays did not reconvey the property to Mr. Bays, the court ordered her to pay attorney fees and $50 a day for every day she failed to do so.
In late October through January 2003, Ms. Bays, pro se, filed numerous post-trial motions, including a CR 60(b) motion for relief from judgment because of irregular procedure and acute illness, a CR 59 motion to amend the judgment, and a motion to show cause for contempt against Mr. Bays. After hearings, all motions were denied. In April 2003, Ms. Bays filed another CR 60(b) motion through newly retained counsel related to jurisdiction. The court declined to rule on the motion. Ms. Bays appeals.
The issue is whether Judge Bastine had authority to hear this case as a visiting judge in Pend Oreille County.
A request for a superior court...
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