In re Marriage of Bobbitt

• Decision Date: 25 July 2006
• Docket Number: No. 31997-7-II.,No. 32603-5-II.,No. 32727-9-II.,31997-7-II.,32727-9-II.,32603-5-II.
• Citation: 135 Wn. App. 8,144 P.3d 306
• Court: Washington Court of Appeals
• Parties: In re the Marriage of Kimberly S. BOBBITT, n/k/a Kimberly S. Esser, Respondent, and Ronald K. Bobbitt, Appellant.

144 P.3d 306

135 Wn. App. 8

In re the Marriage of Kimberly S. BOBBITT, n/k/a Kimberly S. Esser, Respondent, and Ronald K. Bobbitt, Appellant.

No. 31997-7-II.

No. 32727-9-II.

No. 32603-5-II.

Court of Appeals of Washington, Division Two.

July 25, 2006.

COPYRIGHT MATERIAL OMITTED

Philip A. Dunlap, Kent, WA, for Appellant.

Carol J. Cooper, Davies Pearson PC, John Russell Hickman, Tacoma, WA, for Respondent.

Virginia R. Ferguson, Tacoma, Guardian Ad Litem.

PART PUBLISHED OPINION

VAN DEREN, J.

¶ 1 Ronald Bobbitt appeals an order authorizing the 2004 sale of real property awarded to him in a 2002 dissolution decree and orders entered during a custody modification proceeding. He argues that the trial court¹ erred in (1) granting his former wife, Kimberly Esser, f/k/a Kimberly Bobbitt, authority to sell the "Yakima" property when the dissolution decree awarded the property to him; (2) denying his motion to remove the Guardian Ad Litem (GAL); (3) entering judgment against him for GAL fees; and (4) awarding attorney fees to Esser.

¶ 2 We hold that the trial court lacked the equitable power to authorize Esser's sale of Bobbitt's property and we remand for a hearing to determine a proper allocation of the net sale proceeds in Esser's attorney's trust fund and for consideration of Bobbitt's request for attorney fees relating to that issue. Additionally, we hold that the trial court did not have sufficient information to determine the parties' relative need and ability to pay attorney fees and it failed to enter findings of fact or conclusions of law in support of its award of attorney and GAL fees, thus we vacate the fee awards and remand for rehearing. We affirm the trial court's denial of Bobbitt's motion to remove the GAL.

I. YAKIMA PROPERTY

¶ 3 When Kimberly Esser and Ronald Bobbitt dissolved their marriage in 2002, the decree (1) awarded Bobbitt the "Property located in Yakima, Washington" as his separate property; (2) assigned to Bobbitt the mortgage liability for the Yakima property; and (3) provided that Bobbitt "shall pay . . . [o]ne half of the parties' I.R.S. debt, both Federal and State (to be paid from proceeds of real property and vehicle sales.[) ]" Clerk's Papers (CP) at 646. Although he was not required to sell it, Bobbitt listed the Yakima property for sale immediately following entry of the decree. The decree did not contain a legal description of the Yakima property, although the assessor's tax parcel number and the legal description of the former family home, also awarded to Bobbitt, were properly included. The parties did not execute a quit claim deed or otherwise convey Esser's interest in the Yakima property to Bobbitt, and both parties' names remained on the mortgage.

¶ 4 In November 2002, the Yakima property mortgage holder informed Esser that Bobbitt had not made mortgage payments for four months and that he was not returning telephone calls. At oral argument, the parties clarified that the mortgage broker never commenced foreclosure proceedings, but following the telephone call from the mortgage holder, Esser voluntarily paid $580 to bring the payments current, made payments on the property, and paid two years' back taxes.

¶ 5 When an offer to purchase the property was made in October, 2004 Esser moved for permission (1) to sell the property with a special power of attorney allowing her to sign all documents necessary for the sale and (2) to place the proceeds of the sale in her attorney's trust account to facilitate the payment of her existing judgments against Bobbitt, including back child support and attorney fees and other sums she claimed he owed her. CP at 706. Esser's declaration in support of the motion acknowledged that the property had been awarded to Bobbitt but asserted that they had not executed a quit claim deed, so their names remained on the title and they were both liable for the mortgage. Before she received permission to execute the sale, she signed a purchase and sale agreement on October 8, 2004. Esser acknowledged to the trial court that the dissolution decree required that proceeds from the sale of real property be used for community debt, including a debt owed to her uncle, Dave Nelson. The court granted Esser's motion on November 5, 2004, and Esser sold the property in November, 2004. The proceeds remain in Esser's attorney's trust account pending further court order.

¶ 6 Bobbitt appeals. He argues that the trial court abused its discretion or acted beyond its jurisdiction in authorizing Esser to sell the Yakima property awarded to him as his separate property in the dissolution decree. We agree.

¶ 7 It has been the rule in Washington that the trial court does not have jurisdiction to order the sale of the parties' assets without their consent because there is no statutory grant of such power to a trial court. High v. High, 41 Wash.2d 811, 822-23, 252 P.2d 272 (1953); Arneson v. Arneson, 38 Wash.2d 99, 101, 227 P.2d 1016 (1951). Despite this rule, there are cases in which the trial court ordered a sale based on the facts of the case. Pugel v. Pugel, 74 Wash.2d 281, 444 P.2d 783 (1968); Murphy v. Murphy, 44 Wash.2d 737, 270 P.2d 808 (1954); Shay v. Shay, 33 Wash.2d 408, 205 P.2d 901 (1949); In re Marriage of Sedlock, 69 Wash.App. 484, 849 P.2d 1243 (1993); cf. In re Marriage of Trubner-Biria, 72 Wash.App. 858, 861, 866 P.2d 675 (1994) (noting that the court "does not have unfettered discretion to compel the sale of property in a dissolution of marriage."). But in each case the trial court's consideration of the issue occurred during the pendency of the case or at the conclusion of the trial, not after a full and final division of the property had been made, as occurred here. And the issue of the court's jurisdiction to order sale of the real property was not raised, except in Sedlock. 69 Wash.App. at 501, 849 P.2d 1243.

¶ 8 In Sedlock, at the conclusion of the trial, the court divided the real property three-fifths to wife and two-fifths to husband as tenants-in-common, and ordered the property be placed on the market in a set amount of time at its fair market value. 69 Wash. App. at 498, 849 P.2d 1243. Furthermore, Sedlock distinguished High and Arneson but did not disagree with them. 69 Wash.App. at 502-503, 849 P.2d 1243.

¶ 9 Bobbitt relies on Byrne v. Ackerlund, in which the dissolution decree incorporated a property settlement agreement awarding a parcel of real property to Ackerlund and a $2,500 judgment to Byrne secured by a lien on the real property. Byrne, 108 Wash.2d 445, 739 P.2d 1138 (1987). Our Supreme Court held that the court of appeals improperly allowed Byrne's forced sale of the property to satisfy the lien because "the decree imposed on Ackerlund no obligation whatsoever to sell the property. Rather, Ackerlund's sale of the property can appropriately be viewed as a `condition precedent' to the accrual of Byrne's right to enforce payment on her liens." Byrne, 108 Wash.2d at 456, 739 P.2d 1138. The Court reasoned that "where one party holds title and the other a lien, the parties' respective interests are more removed [than in a tenancy in common]. A lien is merely an encumbrance to secure an obligation and involves no characteristics of co-ownership." Byrne, 108 Wash.2d at 450, 739 P.2d 1138.

¶ 10 Here, Bobbitt's argument is even more compelling because there was no property settlement agreement and the court did not give Esser a lien, security interest, or any other remaining interest in the Yakima property. Rather, the dissolution decree awarded the Yakima property in its entirety to Bobbitt, subject to payment of community debts if he sold it. Consistent with Washington law, even though the liability for the mortgage was assigned to Bobbitt, Esser was still subject to the mortgage owed the third-party community creditor, namely the mortgage holder. See 19 KENNETH W. WEBER, WASHINGTON PRACTICE: FAMILY AND COMMUNITY PROPERTY LAW § 14.11, at 278 (1997) ("distribution of the community property to the spouses does not prevent a community creditor from pursuing the former community property in the hands of either spouse. From the perspective of the creditor it makes no difference that the decree which terminated the marriage allocated the debt to be paid by one spouse or the other.").

¶ 11 The decree acted as a conveyance of the Yakima property between Bobbitt and Esser even though it did not contain the property's legal description. Esser knew that it was awarded in its entirety to Bobbitt even though the mortgage holder could collect payments from Esser if Bobbitt did not pay. Furthermore, Esser's attorney prepared and filed the dissolution decree without Bobbitt's signature, even though he was acting pro se, and there is nothing in the record on appeal to show that Bobbitt got actual notice of the presentation of the decree.

¶ 12 We construe the decree language against Esser under these circumstances. See Holaday v. Merceri, 49 Wash.App. 321, 322-23, 325, 742 P.2d 127 (1987) (noting that ambiguities in a separation agreement providing for the division of property, and incorporated into the dissolution decree, should be construed against the drafter/husband who was the only party represented by counsel when the parties entered into the agreement). Both Esser and Bobbitt knew that the Yakima property was awarded solely to Bobbitt. Esser's post-dissolution claim of being a co-owner of the property with Bobbitt has no basis in fact or law, nor can Esser assert a good faith misunderstanding of the property's status as Bobbitt's sole and separate property.

¶ 13 Furthermore, when Esser realized that Bobbitt was not paying the mortgage as ordered by the decree, she need not have paid back taxes or the missed and on-going mortgage payments until the property sold two years later. Those obligations were Bobbitt's. No foreclosure action was instituted that would have affected her credit rating. In fact, at oral argument the parties did not...