Tahat v. Tahat

• Decision Date: 31 July 2014
• Docket Number: No. 31454–5–III.,31454–5–III.
• Citation: 334 P.3d 1131,182 Wash.App. 655
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE OF Hasan TAHAT, Respondent, and Mary Rose Tahat, Appellant.

182 Wash.App. 655

334 P.3d 1131

In re the MARRIAGE OF Hasan TAHAT, Respondent and Mary Rose Tahat, Appellant.

No. 31454–5–III.

Court of Appeals of Washington, Division 3.

July 31, 2014.

Ellen Marie McLaughlin, Law Office of Ellen M. McLaughlin, Yakima, WA, for Appellant.

Robert George Velikanje, Law Ofc of Robert G. Velikanje, Yakima, WA, for Respondent.

Opinion

FEARING, J.

¶ 1 In this marriage dissolution appeal, we resolve two related procedural questions (1) was a letter ruling by the trial court a “decision” for purposes of commencing the period in which a party must file a motion for reconsideration under CR 59 and (2) whether a trial court should allow the nonmoving party an opportunity to respond before the trial court grants a motion for reconsideration. We answer the first question in the negative and the second question in the affirmative.

FACTS

¶ 2 The parties, Mary Rose and Hasan Tahat, met as graduate students in the Philippines. Mary received her doctorate in molecular and cellular protozoology. Hasan received his masters in engineering. The couple married in 1988. During their marriage the Tahats had two children. At the time of the marital dissolution, neither child was a dependent.

¶ 3 In 1995, the Tahats moved to the United States. They decided one of them should remain home with the children. Mary Tahat assumed this noble role, which included cleaning house and preparing meals.

¶ 4 Hasan Tahat worked at the Yakima Regional Clean Air Agency (YRCAA). As an employee at the Clean Air Agency, Hasan contributed to a defined benefits plan and a deferred compensation plan. With the money he would have spent on lunch at a restaurant, Hasan invested in the stock market. At the time of their separation, the stock market account totaled $39,000. After the parties filed for divorce, Hasan lost most of the value of the account by gambling that he attributes to postseparation depression.

¶ 5 In 2007, before the couple separated, they purchased, for $200,000.00, a home on Summitview Avenue, in Yakima. The Tahats used $29,506.17 in proceeds from the sale of their previous home as a down payment. Because of bad credit, Mary's name was not added to the title to the Summitview residence.

¶ 6 Mary returned to work outside the home, in 2008, when their eldest child entered prestigious Whitman College.

Mary worked as a science teacher at the Yakima Valley School District.

¶ 7 The Tahats lived together on Summitview Avenue until August 2010, when Mary moved from the residence. After the Tahats separated, Hasan refinanced the home. The home's value had depreciated in the interim. A broker valued the residence at $168,000, an amount less than the debt on the home.

¶ 8 At the time of separation, the Tahats owed $3,956.33 on a Visa credit card and $1,700.00 to Jeffrey Talbot, their immigration attorney. Mary Rose did not use the credit card after separation, but she paid $2,123.00 on the card to avoid further damage to her credit. Hasan Tahat continued to use the Visa card.

PROCEDURE

¶ 9 In April 2011, the couple, without legal representation, jointly petitioned for divorce. In August 2011, Mary Rose Tahat hired an attorney, Troy Lee. Hasan continued to represent himself. On September 8, Mary, through counsel, filed a response to the petition for dissolution, despite having earlier joined the petition. The response did not seek spousal maintenance.

¶ 10 Hasan Tahat failed to disclose, in discovery, the value of his retirement and stock accounts. In March 2012, the court ordered Hasan to produce his retirement and stock account statements. For his delay, the court fined Hasan $150. Anticipating Hasan's compliance, the court scheduled trial for June 18. In May 2012, Mary moved to continue trial because of her lawyer's preplanned vacation. Trial was reset for August 7.

¶ 11 On June 1, 2012, attorney Robert Velikanje appeared on behalf of Hasan Tahat. Thereafter, Hasan alleged Mary inherited a substantial sum of money from her father, to which he claimed an entitlement. To substantiate his claim, Hasan scheduled depositions of Mary's brothers for the day before trial.

¶ 12 On July 27, 2012, Mary Rose Tahat again moved for a continuance, this time because she and her brothers planned a vacation the week of trial. Hasan Tahat objected, claiming Mary sought to delay and prevent him from deposing her brothers. The court granted Mary's motion and reset trial for November 13, 2012.

¶ 13 On November 6, 2012, Hasan Tahat's counsel conducted the deposition of Mary Tahat. When asked, during the deposition, if she sought spousal maintenance, Mary responded in the negative.

¶ 14 On November 13, 2012, Mary Tahat terminated the services of attorney Troy Lee. To accommodate Mary's new counsel, the court continued trial to December 11, 2012, “with monetary terms.” Clerk's Papers (CP) at 100. On November 28, 2012, Mary moved for another trial continuance so that her new attorney could adequately prepare. Her motion was denied and that attorney withdrew.

¶ 15 On December 6, 2012, less than a week before trial, Mary Tahat retained a third attorney, Ellen McLaughlin. On December 11, 2012, the day trial began, Mary moved to amend her pleadings to include a claim for spousal maintenance. The court denied her request as tardy and prejudicial. The trial court denied a renewed motion to amend the pleadings at the beginning of the second day of trial.

¶ 16 At trial, the parties presented testimony relevant to the distribution of the stock market account, the Summitview residence, and the money Hasan alleged Mary inherited. Rather than seeking ownership of the house, Mary requested the court apportion half the down payment to her. Hasan demurred, offering her the house with its liabilities. Mary and her brothers testified that she, as their half-sister, never inherited any money from their father's estate.

¶ 17 Trial ended on December 12, 2012. At the conclusion, the trial court declared, “I'll have a written decision to you by the end of [the] week.” Report of Proceedings (RP) at 187 (emphasis added).

¶ 18 On December 14, 2012, the court sent counsel a three-page letter on court stationery. Because we must decide whether the letter constitutes a “decision” under CR 59, we repeat the entire letter. Throughout this opinion we will refer to the December 14 epistle as “the letter ruling,” although we attach no legal significance to the term:

December 14, 2012

Re: Tahat 11–3–00430–1

Dear Counsel:

This family law litigation is concerned solely with the identification of property and liabilities of the parties, its characterization and its division.

The parties married in 1988 and separated on August 1, 2010. Two children were born of the marriage, both of whom have attained adulthood. Both husband and wife have doctorates. The husband is employed by the Yakima Regional Clean Air Authority. The wife is employed by the West Valley School District as a science teacher.

The husband focused a great deal of his energy upon the supposed existence of a large inheritance which the wife has received or will receive. The inheritance is from the Philippines and is the proceeds from the sale of family owned property. Mr. Tahat's evidence concerning this inheritance is based upon conversations he had with his wife at some time in the past and observations he made when they first married and lived in the Philippines. Mrs. Tahat counters with her own testimony, denying the existence of any inheritance, either presently or in the future. Similarly, three of her brothers testified that she had not received and will not receive any inheritance because she was not an heir of the deceased [her stepfather] or she may not be named as an heir to property owned by her mother or she relinquished any rights-in the property by giving one of her siblings a power of attorney. In Re Marriage of Hurd, 69 Wash.App. 38 (1993) [Bequest in will of living testator creates only an expectation in devisee]

There was testimony concerning a bank account at the Bank of the Philippines which was opened by Robert Dy, the wife's brother or half brother. Mr. Dy said that he borrowed funds and placed them in the account at the bank in order to facilitate the parties' immigration to the United States in 1995. He then withdrew the funds and used the proceeds to pay back the loan. These funds cannot reasonably be considered an asset of the wife or of the community.

All in all, despite various bits of testimony cited by the husband's counsel, there is no concrete evidence of a large separate property asset belonging to the wife consisting of property, or the proceeds of the sale of property, or an expectation of the same, located in the Philippines, or elsewhere.

The case therefore devolves into a division of assets and liabilities.

The family home is located at 110 North 90th Avenue. A letter from a realtor places its value, approximately one year after separation, at $168,000. It is encumbered with a mortgage in the amount of $170,000 as a result of a refinance entered into by the husband approximately 6 months ago. And curiously, title is held by the husband as his separate property, although community assets were the source of funds used to purchase the house. The wife, although her position was not entirely clear to the court, does not want the house, but only wants 50% of the down payment. This is a reasonable request. Therefore, the house, and all encumbrances on it, is awarded to the husband. The wife is awarded $12,936.00 representing one half of the proceeds from the sale of the parties' previous house on Tieton Drive.

Both parties have PERS 3 retirement accounts, which will be divided by QDRO. The husband, additionally, has a deferred compensation account, which will also be divided by [a] QDRO. The $1,000 balance left after the Cobalt was paid off is awarded to the husband.

There was stock account at U.S. Bancorp, which was a community asset dissipated by the husband after separation. The wife is awarded $19,661, which is 50%

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