Daniel Huesch, V. Anja Huesch ( 2022 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: ) No. 82344-2-I
)
DANIEL HUESCH, ) DIVISION ONE
)
Respondent, ) UNPUBLISHED OPINION
)
v. )
)
ANJA HUESCH, )
)
Appellant. )
)
HAZELRIGG, J. — Anja Huesch appeals from a King County Superior Court
Final Divorce Order. She alleges the trial court erred (1) by denying her motion to
compel, (2) by declining to award attorney fees, and (3) by declining to consider
her post-trial request to enforce an alleged agreement regarding the child’s tuition.
Both parties request attorney fees on appeal. Because the trial court did not abuse
its discretion, we affirm and decline to award fees to either party.
FACTS
Anja and Daniel Huesch1 were married in Germany in 2012. They have one
child, K.H., who was born in Germany in 2012. Daniel worked at a tech start-up,
which was later acquired by Amazon. The couple moved to Seattle in 2015, where
1Because the parties share the same last name, we use their first names for clarity. No
disrespect is intended.
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 82344-2-I/2
Daniel works for Amazon as a software development manager. Anja has an
advanced degree in American Studies and has been a stay-at-home mother. In
September 2018, Daniel petitioned for dissolution of the marriage, stating it was
“irretrievably broken.” There was extensive litigation in the case, which eventually
concluded with a five-day trial.
The court issued its findings of fact and conclusions of law about a marriage,
along with a final divorce order and parenting plan, in January 2021. Anja timely
appeals.
ANALYSIS
I. Denial of Motion to Compel
Anja first argues the court erred in denying her motion to compel Daniel
to comply with King County Superior Court Local Family Law Rule 10 (LFLR 10).
This rule requires each party to submit a financial declaration and supporting
documents in proceedings involving issues of child support, spousal
maintenance, property settlement, or payment of the child’s expenses. KING
COUNTY SUPER. CT. LOCAL FAM. LAW R. 10.
In reviewing a trial court’s interpretation of a local court rule, we uphold
the trial court’s application “unless the construction placed thereon is clearly
wrong or an injustice has been done.” Snyder v. State, 19 Wn. App. 631, 637,
577 P.2d 160 (1978). Additionally, “observation of local rules is largely
discretionary in the trial court,” and trial courts may “relax and suspend its own
special rules of procedure.” Id. We presume the trial court “disregarded the rule
(if it did) for sufficient cause.” Id.-2-
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Here, the court construed Anja’s motion as a discovery motion filed after
the discovery deadline had passed. It held that regardless of the motion’s identity
as a discovery motion, Anja’s counsel “knew or should have known that the
Financial Declaration was not current,” and “failed to act with diligence” by
neglecting to bring a motion until the second to last day of trial. Anja fails to cite
any authority to support her contention that her motion was “not a motion to
compel discovery,” or that it was timely. Additionally, the court found Daniel had
not complied with LFLR 10 and ordered a remedy in the form of an adverse
inference.
Without more, Anja has not met her burden to demonstrate the court’s
interpretation of LFLR 10 “is clearly wrong or” that “an injustice has been done.”2
II. Post-Trial Evidence of Tuition Agreement
Anja contends the trial court abused its discretion by declining to consider
Anja’s argument to delay capping Daniel’s tuition contributions. She first raised
this issue in a post-trial memorandum, and alleges that the judge’s email inviting
the parties to identify errors “where there is no disagreement between the parties
regarding the underlying substance” authorized such additional information. Anja
claims there is no “honest” dispute between the parties regarding Daniel’s promise
to pay K.H.’s full 2020–2021 tuition, but he challenges whether this binding
agreement exists at all.
As a preliminary matter, Anja cites no authority for her contention that the
court abused its discretion in declining to consider the evidence. RAP 10.3(a)(6)
2 Accordingly, the court did not err in making Conclusion of Law 87, 88, 91, or 92.
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requires a party to submit argument supported by citations to legal authority in its
briefing.
A court’s decision to decline to reopen “a cause for additional evidence is
within the discretion of the trial court,” and we will not reverse unless the court
abuses its discretion which causes prejudice. Estes v. Hopp, 73 Wn.2d 263, 270,
438 P.2d 205 (1968). As a general rule, after trial, if “evidence was available but
not offered until after that opportunity passes, the parties are not entitled to another
opportunity to submit that evidence.” Wagner Dev., Inc. v. Fidelity and Deposit Co.
of Md., 95 Wn. App. 896, 907, 977 P.2d 639 (1999).
Here, the emails Anja alleges demonstrate the agreement between herself
and Daniel were sent in April 2019, May 2019, and February 2020. Trial began
November 16, 2020. Anja had an opportunity to submit the evidence prior to or
during trial, but failed to do so. The court did not abuse its discretion in declining
to hear the post-trial evidence.3
III. Denial of Attorney Fees
Anja next argues the trial court abused its discretion by declining to award
her reasonable attorney fees and costs, particularly without the information
required by LFLR 10 and without considering the income of Daniel’s girlfriend
with whom he resides.4 We review a court’s ruling regarding attorney fees under
RCW 26.09.140 for an abuse of discretion. In re Marriage of Nelson, 62 Wn.
App. 515, 521, 814 P.2d 1208 (1991). Although Anja frames this argument in
3 Accordingly, the trial court did not err in making Conclusion of Law 96.
4 Daniel’s briefing does not respond to the argument that the court erred in failing to
consider his girlfriend’s income.
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terms of an abuse of discretion, in her reply brief she contends entitlement to
attorney fees is an issue of law reviewed de novo, citing cases unrelated to RCW
26.09.140 or family law generally. Our case law is clear that a trial court’s
decision not to award attorney fees under this provision is reviewed for an abuse
of discretion, and we will not reverse unless the court’s decision “is untenable or
manifestly unreasonable.” In re Custody of Salerno, 66 Wn. App. 923, 926, 833
P.2d 470 (1992).
A decision whether to award attorney fees is a discretionary decision, and
neither party is entitled to “fees as a matter of right.” In re Marriage of Terry, 79
Wn. App. 866, 871, 905 P.2d 935 (1995). Rather, the court determines “whether
one party has a need and the other party has the ability to pay,” and then
determines whether to award fees. Id. “The party challenging the award bears
the burden of proving” the court’s decision was “clearly untenable or manifestly
unreasonable.” In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71(1994).
First, we note that while the trial court made its decision regarding fees
without the information required by LFLR 10, it imposed an adverse inference
against Daniel and determined his financial resources based on his 2019 W-2
and tax return, which did include the assets Anja avers were missing from
Daniel’s financial declaration.
Anja also alleges the trial court’s decision is based on insufficient findings
because it failed to consider the income of Daniel’s girlfriend. She cites to In re
Marriage of Bobbitt for support. See 135 Wn. App. 8, 30, 144 P.3d 306 (2006).
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In that case, Division II of this court vacated a judgment for attorney fees and
remanded for the trial court to make findings of fact and conclusions of law,
finding the trial court failed to “provide sufficient findings of fact and conclusions
of law to develop an adequate record for appellate review.” Id. The court in
Bobbitt failed to include information about a party’s new husband’s income,
household expenses, and assets. Id. However, the court also failed to make
any findings beyond stating the fees were awarded “for the necessity of having
to pursue this action,” neglecting to make any findings regarding either parties’
need or ability to pay, and making no findings regarding intransigence. Id.The case before us is distinct. While the court did not consider the income
of Daniel’s girlfriend, it did consider that Daniel received a loan of $103,000 from
her. There was also testimony that his girlfriend worked as a “senior marketing
operations manager at Microsoft,” and that she owned the home they resided in
together, and that her income was six figures.5 But, Daniel and his girlfriend were
not married at the time of the court’s ruling. Daniel’s partner testified that
although she and Daniel were in a committed relationship, Daniel was sharing all
household expenses when he had the funds to do so and they had executed a
cohabitation agreement under the terms of which all of her separate property
remained separate. Anja’s attorney conceded to the court that Daniel’s girlfriend
had no legal obligation to cover any of his debts. Based on these facts, there
was sufficient evidence to support the court’s decision not to consider his
partner’s income in assessing Daniel’s ability to pay Anja’s attorney fees.
5 She testified she was unable to give an approximation of her salary, but that it was “fair
to say that it’s six figures.”
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The court also considered testimony by Daniel about his assets and debts,
particularly the assets “drained” by litigation. It recognized that Daniel took out a
loan to pay the property settlement to Anja, and that his future Reserve Stock
Units would be used to repay that debt.6 The court found Daniel’s testimony that
he has little cash and no real property or significant assets, credible. Based on
this record, it was not an abuse of discretion to decline to award discretionary
attorney fees to Anja.7
IV. Attorney Fees on Appeal
Both Anja and Daniel request their respective attorney fees on appeal.
Anja requests fees under RCW 26.09.140. Daniel requests his fees as a
sanction, alleging Anja’s appeal is frivolous, or alternatively, because it is
intransigent.
This court has authority to award attorney fees where authorized by
statute, agreement, or equitable grounds. In re Marriage of Greenlee, 65 Wn.
App. 703, 707, 829 P.2d 1120 (1992). Under RCW 26.09.140, this court may
“order a party to pay for the cost to the other party of maintaining the appeal.”
See also In re Marriage of Kaufman, 17 Wn. App. 2d 497, 521, 485 P.3d 991(2021). Under RAP 18.9, this court may order a party to pay compensatory
damages or sanctions for filing a frivolous appeal. See In re Custody of S.A.-M.,
6 Anja argues because Daniel has the ability to repay this debt, he must also have the
ability to repay her attorney fees and costs, questioning why this debt “takes priority.” This
contention misses the reality that the debt was incurred to comply with his legal duty to provide
Anja property under their settlement agreement.
7 Accordingly, the trial court did not abuse its discretion in making Conclusion of Law 107–
11.
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17 Wn. App. 2d 939, 955, 489 P.3d 259 (2021). “An appeal is frivolous when it
presents ‘no debatable issues upon which reasonable minds could differ,’ and is
lacking in merit ‘that there [is] no reasonable possibility of reversal.’” Id.(alterations in original) (quoting Mahoney v. Shinpoch, 107 Wn.2d 679, 691, 732
P.2d 510 (1987)). Separate from sanctions under RAP 18.9, this court may
award fees based on intransigence. In re E.J.S., 16 Wn. App. 2d 776, 785–86,
483 P.3d 110. The party requesting fees bears the burden to demonstrate “the
other party acted in a way that made trial more difficult and increased legal costs,
like repeatedly filing unnecessary motions or forcing court hearings for matters
that should have been handled without litigation.” In re Marriage of Pennamen,
135 Wn. App. 790, 807, 146 P.3d 466 (2006).
The trial court found Anja has zero income and is not voluntarily
unemployed. It also found Daniel does not have the ability to pay Anja’s attorney
fees. Based on these findings, we find neither party has the ability to pay the
other’s attorney fees and decline to award fees under RCW 26.09.140.
While Anja ultimately does not prevail in any of her assigned errors, her
appeal is not so lacking in merit “that there is no reasonable possibility of
reversal,” and we decline to award fees as a sanction under RAP 18.9.
Finally, the trial court declined to find intransigence by Anja. While the
litigation at the trial court level and before this court has been complex, we
likewise decline to find Anja has been intransigent and we decline to award fees
on that basis.
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Finding no error in the trial court’s rulings, we affirm.
WE CONCUR:
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