Marriage of Trubner-Biria, In re

• Decision Date: 07 February 1994
• Docket Number: No. 30653-7-I,TRUBNER-BIRI,R,30653-7-I
• Citation: 72 Wn.App. 858,866 P.2d 675
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE of Karenespondent, and Ali Biria, Appellant.

Page 858

72 Wn.App. 858

866 P.2d 675

In re the MARRIAGE of Karen TRUBNER-BIRIA, Respondent and Ali Biria, Appellant.

No. 30653-7-I.

Court of Appeals of Washington Division 1.

Feb. 7, 1994.

Michael R. Green, Bellevue, for appellant.

Jill Salmi, Seattle, for respondent.

GROSSE, Judge.

Ali Biria(Ali) appeals a contempt order for his alleged noncompliance with a provision in a decree of dissolution.Specifically, the trial court ordered that Ali not occupy the former family home pending its sale under a property settlement agreement despite the fact that his former wife, Karen Trubner-Biria(Karen), has been paid in full for her interest and has quitclaimed that interest to him.In addition, the trial court set a date by which the house must be sold, and awarded attorney fees to Karen.We reverse, holding that Karen no longer has any interest in the property subject to protection through the judicial process.

The marriage between Karen and Ali was dissolved in 1991.The dissolution decree incorporated a property settlement agreement, signed in December of 1990, dividing the property of the parties.With recognition of the fact that Karen and Ali owed approximately $100,000 to Ali's father, Abdul Biria, the agreement sought to "irreparably divide certain community property and satisfy certain claims" prior to execution of a separation agreement or entry of a decree of dissolution.The agreement was signed by Karen, Ali, Abdul Biria, and respective counsel.The agreement set forth the parties' intent to sell the house as soon as possible, subject to approval of Abdul Biria.After satisfying obligations to Karen in the amount of $25,000, the balance of any sales price was to be paid to Abdul Biria in satisfaction of his $100,000 claim against the community.The parties were not to live in the house pending sale.The house was to be listed and an aggressive effort made to sell it as soon as possible.However, even if the house did not sell right away, payment of the $25,000 was to be made to Karen in two installments on dates certain.Once Karen had been paid, she was to quitclaim her interest to Ali.The agreement specifically set out that the sales price and the terms of any sale were "subject solely to the direction of Abdul Biria".

The house did not sell but Karen was timely paid her $25,000 interest in the house.Ali did not live in the house for 10 months.However, after Karen was paid in full, the house was reconveyed to him giving him clear title.Ali moved back into the home to avoid paying both the mortgage and rental on an apartment.Karen did not approve and brought an action for contempt based on an alleged breach of the agreement.

In the affidavit accompanying her motion, Karen indicated she was initially given temporary possession of the house.However, Ali indicated he could not pay the mortgage, child support, and rent on an apartment, and sought to force a sale.Karen fully acknowledged that Ali's father, Abdul Biria, was in a position to sue to get his money from the house.Because of the interests involved, the parents of the couple negotiated a settlement "pursuant to which [Karen] would leave the house and would be paid $25,000, and Ali and his father would release [Karen] from liability and sell the house."

According to Ali, he could not afford to pay the mortgage on the house, rent on an apartment, and child support.The housing market was depressed and his father did not want the house to sell until he could recoup his investment.The property is subject to a $93,000 mortgage, and the asking price is $229,000, a sum Karen believes to be $20,000 to $30,000 too high.Karen argues the delay is a ruse to allow Ali to stay in the home.She does not want her former husband to take their child to the former "family home."

The trial court erred in ordering Ali to vacate a home...