In Re The Marriage Of: Robin Maelee Hitz, Res. And Eric James Hitz, App. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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IN RE THE MARRIAGE OF:
) No. 71413-9-1 c_. r • i __.
ROBIN MAELEE HITZ, 'fS '-',"'
) DIVISION ONE O"- : ;1
Respondent 7r-> ^'-}
UNPUBLISHED OPINION
ERIC JAMES HITZ,
Appellant. FILED: June 15, 2015
Spearman, C.J. — Eric Hitz challenges trial court orders effectuating the
provisions of a dissolution decree. He contends that the trial court "lost jurisdiction" over
the case and had no authority to enter subsequent orders after the trial judge
disqualified himself from the case based on a conflict of interest. But in making this
argument, Hitz misrepresents the relevant facts. Furthermore, no authority supports
Hitz's claim that the dissolution case became a new proceeding for purposes of the
statutory entitlement to a change of judge when the bankruptcy court lifted a stay and
allowed the dissolution to proceed. We affirm.
FACTS
In 2010, Robin Hitz petitioned the Whatcom County Superior Court to dissolve
her marriage to Eric Hitz. While married, the parties owned and operated a business
and the Bank of the Pacific (Bank) was the major creditor. At least twice during the
dissolution trial, the trial court judge, Judge Ira Uhrig, disclosed the existence of a
No. 71413-9-1/2
relationship between a business owned by his family and the Bank. The parties waived
any potential conflict of interest and proceeded with the trial. After a nine-day trial, the
court entered final orders dissolving the marriage. The decree assigned to Robin the
task of liquidating the community assets and paying the debts owed.1 The proceeds
were then to be equally divided. The dissolution court retained authority to hear any
disputes that arose during the process of liquidation.
In the months that followed, Robin filed several motions seeking to force Eric to
cooperate with the liquidation process set forth in the decree. In connection with a
dispute regarding the disbursement of funds from the sale of the marital home, Eric's
parents filed a separate lawsuit against Robin and Eric in 2012. They raised claims
based on an unsecured promissory note.
In April 2012, the court held a hearing for the purpose of entering an agreed
order disbursing the sale proceeds. The agreed order designated funds to Eric's parents
in satisfaction of the judgment entered in their 2012 lawsuit, funds to the Bank and the
remaining funds to the parties in equal amounts.
At this hearing, the court also discussed a letter received the previous day from
Eric's counsel, inquiring about whether the court would recuse itself from the post-trial
dissolution proceedings.2 Judge Urhig acknowledged that he had previously voluntarily
disqualified himself in the 2012 case filed by Eric's parents because of the Bank's
interest and potential involvement in that case. The judge explained, however, that he
now believed his disqualification in that case had been unnecessary in light of a recent
1 Because the parties share a surname, we refer to the parties by their first names for clarity.
2Although Eric's brief purports to reproduce his former counsel's letter, this document is not
included in the record on appeal.
2
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judicial ethics opinion and his lack of any financial interest in the outcome. With respect
to the dissolution, the judge noted that he disclosed the relationship with the Bank, the
parties waived any potential conflict, and no relevant facts had changed. The court ruled
there was no need for disqualification.3 The court then signed the parties' agreed order
without objection.
Eric filed two motions after this hearing seeking Judge Uhrig's recusal. He also
filed an affidavit of prejudice. He argued that the voluntarily disqualification in his
parents' 2012 lawsuit required recusal in all related cases, including his own previously
filed dissolution. Eric did not note his motions for a hearing.
In August 2013, after a significant delay caused by Eric's bankruptcy filing and
resulting stay of the proceedings, the court heard a motion for attorney fees based on
Robin's previous request and a motion for restraining orders. Shortly before the hearing,
Eric filed a second affidavit of prejudice against Judge Uhrig. The court summarily
denied the affidavit. The court granted Robin's motion, awarded approximately $18,000
in attorney fees to her and entered restraining orders against Eric. The court denied
Eric's motion for reconsideration and imposed $5,000 in sanctions against Eric under
CR 11. He appeals.
DISCUSSION
As a preliminary matter, we note that in order to comply with the Rules of
Appellate Procedure (RAP), an appellant's brief must contain "argument in support of
the issues presented for review, together with citations to legal authority and references
to relevant parts of the record." RAP 10.3(a)(6). In this case, Eric's legal arguments are
based on assertions of facts that are largely unsupported by any reference to the
3The court also explained its reasoning in a letter emailed to the parties.
3
No. 71413-9-1/4
record. Some of the facts he cites are supported by inaccurate citations, or worse,
plainly belied by the record. Nevertheless, despite these deficiencies, the record on
appeal provides us with sufficient factual background to allow us to resolve Eric's
substantive claims.
Eric asserts that there is "no dispute" that Judge Uhrig "voluntarily recused or
disqualified himself from the Hitz dissolution" and thereby "lost jurisdiction" in the case.
Brief of Appellant at 1, 15. He cites the following language from our decision in Skagit
County v. Waldal. 163 Wash. App. 284, 288, 261 P.3d 164 (2011): "once a judge has
recused, the judge should take no other action in the case except for the necessary
ministerial acts to have the case transferred to another judge." In Waldal, a Skagit
County Superior Court judge entered an order quashing subpoenas. Then, after all the
judges on that court recused themselves from the case, the initial judge entered two
further orders.
Eric's assertion of law is correct as far as it goes, but the argument
mischaracterizes the record. It is abundantly clear from the record and from portions of
Eric's own briefing on appeal and his motions below that the trial judge did not, in fact,
recuse himself in the Hitz dissolution proceeding.4 In fact, the judge expressly declined
to do so. Waldal is wholly inapposite. Eric fails to establish that the trial court lacked
authority to enter the order denying his motion for reconsideration or any other post-trial
order.
Eric also claims that the trial court erred in dismissing his August 2013 affidavit of
prejudice. RCW 4.12.050 allows parties to obtain a newjudge by filing a motion and
4 To the extent Eric contends for the first time in his reply brief that his waiver of the potential
conflict of interest at trial was invalid, we do not consider the argument. See Cowiche Canyon
Conservancy v. Boslev. 118 Wash. 2d 801, 809, 828 P.2d 549 (1992).
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affidavit of prejudice before the assigned judge makes any discretionary rulings in the
case. RCW 4.12.050 precludes a party from making "more than one such [recusal]
application in any action or proceeding under this section. . . ." RCW 4.12.050(1). Thus,
the statute does not compel a change of judge when the motion is untimely or when a
party submits a second motion. Rhinehart v. Seattle Times Co., 51 Wash. App. 561, 578-
79, 754P.2d 1243(1988).
Eric contends that, as a result of the bankruptcy court's order granting relief from
the automatic stay and allowing the liquidation of property identified in the dissolution
decree, the Whatcom County post dissolution proceedings were "new" for purposes of
RCW 4.12.050 and he was entitled to a change of judge under the statute. Eric cites
State ex rel. Mauerman v. Superior Court, 44 Wash. 2d 828, 271 P.2d 435 (1954). In that
case, the Washington Supreme Court held that a petition to modify the custody
provisions of a dissolution decree was a new proceeding within the meaning of
Washington statutes that entitle litigants to one change of judge. Therefore, the mother
in that case had a right to file an affidavit of prejudice and thereby disqualify the judge
who had presided over the dissolution.
This case does not involve a modification action. No party filed any petition that
changed the nature or objective of the ongoing proceedings. Eric cites no authority
supporting the position that an order granting relief from a bankruptcy stay creates a
new proceeding for purposes of RCW 4.12.050.
The assigned judge made numerous discretionary rulings before Eric filed his
affidavit in August 2013. And in July 2012, more than a year earlier, Eric had filed an
affidavit of prejudice. The court did not err.
No. 71413-9-1/6
Finally, we reject Eric's request for fees incurred on appeal. He presents no
argument or authority in support of such a request and his claims plainly fail.
Robin asks this court to award her attorney fees on appeal and to impose
sanctions under RAP 18.9(a) and CR 11. An award of attorney fees on appeal is
authorized by CR 11 where sanctions have been imposed in the trial court pursuant to
that rule, as responding to the appeal "could reasonably be viewed as a cost of
collecting the judgment" entered by the trial court. Skilcraft Fiberglass, Inc. v. Boeing
Co., 72 Wash. App. 40, 48, 863 P.2d 573 (1993). abrogated on other grounds by Morin v.
Burris, 160 Wash. 2d 745, 161 P.3d 956 (2007). RAP 18.9 also authorizes this court to
award sanctions against a party who uses the Rules of Appellate Procedure for the
purposes of delay, files a frivolous appeal, or fails to comply with the Rules of Appellate
Procedure. An appeal is frivolous if we are convinced that it presents no debatable
issues on which reasonable minds could differ and is so lacking in merit that there is no
possibility of reversal. In re Marriage of Foley, 84 Wash. App. 839, 847, 930 P.2d 929
(1997). A civil appellant has a right to appeal under RAP 2.2, and all doubts as to
whether the appeal is frivolous should be resolved in favor of the appellant. See
Streater v. White, 26 Wash. App. 430, 434-35, 613 P.2d 187 (1980). Given the factual
record, there is no debatable basis for arguing that the trial judge lacked authority to
enter orders in this proceeding and no relevant legal authority supports Eric's claim that
the bankruptcy court's action instigated a new proceeding. The appeal is frivolous.
Exercising our discretion, we do not impose additional sanctions but award Robin
attorney fees and costs subject to her compliance with RAP 18.1(d).
No. 71413-9-1/7
Affirmed.
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WE CONCUR: