In Re The Marriage Of: Gwendolyn Kaseburg, And Jeffrey Kaseburg ( 2013 )

I HEED
C. 001' OF APPEALS
IVISIIM'l11
2613 DEC - 3 All 9: 22
STATE OF 1 4ASMK i Q'' 1
T``(
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the Marriage of No. 43190 -4 -II
GWENDOLYN KASEBURG,
Respondent,
and
JEFFREY KASEBURG, UNPUBLISHED OPINION
1,
1
QUINN- BRINTNALL, P. J. — The day after Jeffrey Kaseburg and Gwendolyn Bowman' s
April 2011 dissolution trial concluded, police seized $20, 000 from Kaseburg' s safe during a drug
raid of his home.' Kaseburg told police he was hiding the money from Bowman. In addition,
although the trial court awarded Bowman the family home, she later learned that it was subject to
a $ 94, 396. 88 federal tax lien related to the restaurant business awarded to Kaseburg. In light of
these developments, Bowman successfully moved the trial court to clarify the dissolution decree
to reflect that Kaseburg should be responsible for all debts related to the restaurant and to award
her the $ 20, 000 seized by police.
Although sometimes referred to as " Gwendolyn Kaseburg," the Respondent has indicated in
her brief that she now goes by " Gwendolyn Bowman." For clarity, we refer to her as " Bowman"
throughout.
No. 43190 - -II
4
Kaseburg now appeals, arguing that ( 1) the trial court lacked jurisdiction to address either
issue without Bowman bringing a separate cause of action, or ( 2) the trial court abused its
Z
discretion because substantial evidence does not support its decisions on these issues. We
disagree. Because the trial court properly reserved ruling on the $ 20, 000 until it was clear that
the money was not subject to civil forfeiture, and Kaseburg has failed to establish that the trial
court erred in awarding this money to Bowman, we affirm the trial court' s ruling on this issue.
And, in relation to the tax lien, the record provided does not indicate that the trial court erred in
clarifying the decree, thereby awarding the tax lien to Kaseburg. Accordingly, we affirm.
FACTS
After living together for approximately seven years, Kaseburg and Bowman married on
August 18, 2000. Shortly before their wedding, Kaseburg asked Bowman to sign a prenuptial
agreement. The agreement listed " Mad Dogs Cafe and 85% of its net assets," $ 50, 000 in cash,
and substantial as the separate property of Kaseburg. Clerk' s Papers ( CP) at 263. It
property
failed to disclose " any of the approximately $ 692, 000 in promissory notes [ Kaseburg] owed his
parents" and provided that Bowman would receive almost nothing in the event of divorce. CP at
342. Bowman signed the agreement.
The couple separated in 2008 and Bowman filed for divorce in 2009. The. parties'
dissolution proceeding began on April 21, 2011, and, after four days of testimony,3 the trial court
delivered a memorandum decision stating that ( 1) the prenuptial agreement was invalid, ( 2) the
2 Kaseburg also assigns error to the trial court' s denial of his motion for reconsideration in his
brief.However, he has failed to provide any argument supporting this assignment of error.
Accordingly, we refrain from addressing this issue. RAP 10. 3( a)( 6); Holland v. City of Tacoma,
90 Wash. App. 533, 538, 954 P.2d 290, review denied, 136 Wash. 2d 1015 ( 1998).
3
Kaseburg failed to designate any of this testimony for appellate review.
2
No. 43190 -4 -II
parties had a meretricious relationship from 1993 until the date of their marriage, and ( 3) " the
husband should be awarded the restaurant business and ... the wife should be awarded the
CP 322. Neither party has appealed
Buckley] home and property subject to the mortgage." at
this decision.
The day after the dissolution proceeding ended, police seized $ 20, 000 from Kaseburg' s
4
safe during a drug raid of the Buckley home. According to the probable cause determination,
o] fficers also found $ 20, 000 in his safe, which he claimed he [ was] hiding from his ex- wife."
CP at 71. After learning of Kaseburg' s arrest and his statement to police, Bowman moved the
trial court to award her the $ 20, 000. Kaseburg opposed the motion, arguing that the trial court
should reserve on that issue as the $ 20, 000 was potentially subject to civil forfeiture. The
ruling
trial court agreed with Kaseburg and shortly thereafter issued its dissolution decree. The decree
repeated much of what was contained in the court' s memorandum decision but, in addition,
specifically noted that Bowman should refinance the Buckley home within approximately 90
days.
While attempting to secure refinancing for the Buckley home, Bowman discovered that
the Internal Revenue Service ( IRS) had burdened it with a $ 94,396. 88 tax lien related to unpaid
payroll taxes for the restaurant. Because of this, Bowman moved the trial court in November
2011 for ( 1) release of the $ 20, 000 held by the Pierce County Sheriff's Department and ( 2)
clarification of the dissolution decree. More specifically, Bowman requested that the decree " be
clarified indicating that Mr. Kaseburg is responsible for any and all taxes including employee
4
The record indicates that the prosecuting attorney intended on charging Kaseburg with
unlawful possession of marijuana with intent to deliver and potential enhancements related to
firearms. Kaseburg stated during a later motion in the dissolution proceedings that he pleaded to
a misdemeanor, although no further information is available.
3
No. 43190 -4 -II
quarterly payroll] taxes, income taxes, corporate taxes, and all other forms of taxes on the
business." CP at 74.
Kaseburg opposed the motion, again arguing that the trial court should reserve ruling on
the issue until it became clear whether the $ 20, 000 seized by police would be subject to civil
forfeiture proceedings. Kaseburg also argued ( seemingly for the first time in these proceedings)
that Bowman ran the diner under a separate business entity, GEF Enterprises, LLC, for
5
approximately two years. Kaseburg contended that the name stood for " Gwens Entrepreneurial
Future Enterprises, LLC," that the tax lien related solely to that entity, and that Bowman should
be entirely responsible for disposing of that debt. CP at 83. On December 16, 2011, the trial
court .ruled that it would .reserve ruling on both issues " until further information is presented
concerning details of said [ tax] lien." CP at 136.
In February 2012, Bowman again moved the court to release the $ 20, 000 to her and
clarify the dissolution decree. At the motion hearing, Bowman argued that Kaseburg had
testified repeatedly at trial that he did not have any money, was living off his parents, and that
the hidden money was " yet another example of [ Kaseburg' s] deliberate and willful attempt to
deceive this Court." Report of Proceedings ( RP) ( Feb. 10, 2012) at 4. Kaseburg argued that the
court had specifically found that he had $ 382, 000 from the sale of property and, in result, " that
he would have $ 20, 000 in his safe makes perfect sense." RP ( Feb. 10, 2012) at 7. Kaseburg also
argued that he had recently sold a number of items, including a snow mobile and tractor, which
further explained the large quantity of cash in the safe. The trial court, however, noted that there
5 Bowman filed a declaration in response, arguing that Kaseburg' s allegations about GEF
Enterprises were " an outrageous lie." CP at 149. At the motion hearing, Bowman argued that
t] o stand before this Court and now say, [ Kaseburg] didn' t own GEF Enterprises, flies in the
face of days of testimony in this case." Report of Proceedings ( RP) ( Feb. 10, 2012) at 8.
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No. 43190 -4 -II
was " no testimony with regard to the $ 20, 000 that [ Kaseburg] had cash stashed in the home at
the time of trial." RP ( Feb. 10, 2012) at 9.
In relation to the tax issue, Bowman argued,
You' ve heard this argument. You' ve heard the testimony. I' m not going
to spend a whole lot of time repeating what you already know. But clearly it was
Mr. Kaseburg' s testimony that he owned Mad Dog' s Diner and the multiple
organizations and LLC' s and business creations which operated Mad Dog' s
Diner. At no point was my client an owner of any of those enterprises, whether it
was Mad Dog' s Diner, GEF Enterprises, Doggie Style Enterprises or anything
else. And, in fact, his whole position at trial is [ Bowman] had no interest in any
of these businesses' creations.
On February 10, 2006, you know, clearly, we had testimony in the form of
representation to the Liquor Control Board. That was evidence at trial. He
acknowledged that he owned Mad Dog' s Family Diner, GEF Enterprises, LLC, of
61
which [ he] closed. [ And then informs them that he has the new company,
Doggie Style Enterprises.
This is an issue and an important one, because I believe, and I truly
believe, that if there was any testimony that was credible of Mr. Kaseburg during
the trial, the Court obviously gave him the benefit of the doubt when he testified
there was no tax indebtedness. You relied upon the fact and it was your intent,
and I think very clearly your intent, to award Gwen [ Bowman] the family home,
subject to the underlying mortgage, and this is all. And then when we have
possession of the home and [ Bowman] then tries to refinance, she finds out she
can' t refinance because of this tax lien, of which no one knew about despite the
fact that it was filed in April of 2010, and which Mr. Kaseburg testified did not
exist.
So I' m simply asking that we enter an order clarifying the decree that
Kaseburg] is responsible for the indebtedness, all indebtedness on GEF
Enterprises.
RP ( Feb. 10, 2012) at 2 -3.
Kaseburg argued that " it' s clear that the sole owner of GEF enterprises was Gwen
Bowman]" because the trial court' s findings of fact from the dissolution proceeding state that
6 In a June 2004 letter to the Liquor Control Board, Kaseburg represented that he was " the only
person of interest of the old Mad Dog' s Caf6 Inc." and assigned " all the business property to
GEF Enterprises LLC." - CP at 401. In February 2006, Kaseburg again wrote the Liquor Control
Board assigning " all the business assets from GEF Enterprises to Doggie Style Enterprises
L.L.C." CP at 389.
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No. 43190 -4 -II
Bowman managed the restaurant 12 hours a day. RP ( Feb. 10, 2012) at 4. Kaseburg also argued
that he " cannot go out and personally resolve this lien.... The only person who can do this is
Bowman]. And this is not a personal liability. It' s a liability of the LLC and can go away if she
would take some action to do that." RP ( Feb. 10, 2012) at 5.
After the conclusion of both parties' arguments, the trial court ruled in favor of Bowman:
I will be granting the request of the petitioner with regard to the tax lien and the
20, 000 cash taken from the sheriff in this regard. I am concerned because the
testimony at trial did not present any testimony that GEF Enterprises was solely
owned by [ Bowman]. And it would appear that the tax lien references her as GEF
Enterprises, care of Gwen Kaseburg. So that' s not dispositive at this point.
RP ( Feb. 10, 2012) at 10 -11. Kaseburg interjected at that point, arguing that some evidence
supported a finding that Bowman was " the sole member of that corporation" and that she ran the
the tax began. RP ( Feb. 10, 2012) at 11. The trial court,
business during the years problems
however, responded by stating, "[ I] t' s my understanding from the other testimony that it was not
an issue then [ at trial], it was her business, it was her enterprise, solely owned by her, or I' m sure
you .would have brought that up at the time." RP ( Feb. 10, 2012) at 11. The trial court then
entered an order clarifying that Kaseburg would be responsible for all restaurant- related debt,
especially the debts of GEF Enterprises, LLC. The court also awarded Bowman the $20, 000.
A later, for reconsideration of the court' s decision. He argued,
week Kaseburg moved
inter alia, that the trial court erred in not dismissing the motions because " the motions dealt with
undisposed property and debt [ and an] independent action was required," that " a formal hearing,
with testimony was required to address the issues before the Court," and that the court abused its
discretion in awarding the $ 20, 000 to Bowman and requiring Kaseburg to assume the IRS debt.
CP at 155. After hearing argument from both parties on the motion, the trial court denied the
reconsideration request:
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No. 43.190 -4 -II
The Court does have a right to rely on the testimony of Mr. Kaseburg
from trial]. His testimony was clear with regard to these issues of ownership, as
well as [ there] not being any tax liability. So it was an easy matter to make a
ruling in this regard granting the clarification and denying reconsideration.
RP ( March 9, 2012) at 13.
Kaseburg now appeals. He argues that the trial court lacked jurisdiction to dispose of the
20, 000 and the tax liability or, alternatively, that the trial court abused its discretion in ruling as
it did without an adequate factual basis.
DISCUSSION
SEIZED MONEY
Kaseburg argues that the trial court lacked jurisdiction to dispose of the money seized by
police in a posttrial decree or, alternatively, that the trial court abused its discretion in awarding
the funds to Bowman. Neither argument is persuasive. Accordingly, we affirm the trial court' s
ruling awarding the money to Bowman.
A. JURISDICTION
that the trial lacked jurisdiction to dispose of the $ 20, 000 seized
Kaseburg argues court
by police after it had already entered its dissolution decree. Because RCW 26. 09. 080 expressly
authorizes the trial court, after it has entered a dissolution decree, to dispose of additional
property it was aware of but lacked jurisdiction to address, we disagree.
Whether a particular court has jurisdiction is a question of law reviewed de novo."
Young v. Clark, 149 Wash. 2d 130, 132, 65 P.3d 1192 ( 2003). Generally, "[ a] party to a marriage
dissolution has the right to have his interest in the property of the parties definitely and finally
determined in the decree which dissolves the marriage." In re Marriage ofLittle, 96 Wash. 2d 183,
194, 634 P.2d 498 ( 1981). However, RCW 26. 09. 080 expressly authorizes a trial court to " make
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No. 43190 -4 -II
such disposition of the property and the liabilities of the parties, either community or separate, as
shall appear just and equitable" in a " proceeding for disposition of property following dissolution
of the marriage ... by a court which ... lacked jurisdiction to dispose of the property" at the
time it entered a dissolution decree. As Division' Three of this court has stated,
By explicitly authorizing a trial court to conduct a second -stage proceeding
dividing property where jurisdiction was lacking at the time of trial, the statute
RCW 26. 09. 080] implicitly authorizes bifurcation. When a court lacks
jurisdiction to dispose of property at the time of the dissolution trial, it may
dissolve the legal status of the marriage while deferring those issues over which
the court does not have jurisdiction.
In re Marriage of Vigil, 162 Wash. App. 242, 249, 255 P.3d 850, review denied, 173 Wash. 2d 1005
2011).
Here, the $ 20, 000 seized by police was potentially subject to civil forfeiture at the time
the trial court entered the dissolution decree. RCW 10. 105. 010, concerning property involved
with commission of a felony, and RCW 69.50. 505, concerning property involved in a violation
of the Uniform Controlled Substances Act, ch. 69. 50 RCW, both require forfeiture hearings
before a law enforcement officer or administrative law judge, or removal to a court of competent
jurisdiction, before the property may be released to any interested party. Thus, when Bowman
first moved to have the trial court award her the $ 20, 000 ( prior to entry of the dissolution
decree), the court lacked jurisdiction to dispose of the money and appropriately reserved ruling
on this issue.
Later, after the police released the seized money to the trial court, it attained jurisdiction
to dispose of the funds under RCW 26. 09. 080. In re Marriage ofFarmer, 172 Wash. 2d 616, 625,
259 P.3d 256 ( 2011) ( " With its equitable authority invoked [ under RCW 26. 09. 080], the court
retains jurisdiction over all issues related to the decree of dissolution to ensure justice is
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No. 43190 -4 -II
administered properly.... The court' s continuing equitable jurisdiction includes the ability to
grant whatever relief the facts warrant. "). Accordingly, Kaseburg' s contention that the trial court
lacked jurisdiction to dispose of the $ 20, 000 after it entered the dissolution decree lacks merit.
B. AWARDING SEIZED FUNDS TO BOWMAN
Kaseburg argues that the trial court abused its discretion in awarding the $ 20, 000 to
Bowman because it ignored its own findings of fact incorporated in the dissolution decree and
other evidence presented that offered an innocent explanation of the origins of the $ 20, 000.
Because nothing in the record suggests that the trial court ignored its own findings and, further,
the record reflects that Kaseburg attempted to conceal this money from Bowman and the court,
we disagree.
Under RCW 26. 09. 080 trial courts have broad discretion in the distribution of
property.... The trial court is in the best position to assess the assets and liabilities of the
parties and determine what is `` fair, just and equitable under all the circumstances. "' In re
Marriage of Brewer, 137 Wash. 2d 756, 769, 976 P.2d 102 ( 1999) ( quoting In re Marriage of
Hadley; 88 Wash. 2d 649, 656, 565 P.2d 790 ( 1977). " The spouse who challenges such decisions
bears the heavy burden of showing a manifest abuse of discretion on the part of the trial court."
In re Marriage of Landry, 103 Wash. 2d 807, 809, 699 P.2d 214 ( 1985). Thus, we affirm the trial
court' s decision " unless no reasonable judge would have reached the same conclusion." Landry,
103 Wash. 2d at 809 -10.
7
Kaseburg relies on Hanson v. Hanson, 55 Wash. 2d 884, 887, 350 P.2d 859 ( 1960), for the
proposition that a trial court " cannot change the terms of [a] divorce decree" as its " jurisdiction
extends only to [ its] enforcement." But this statement involved interpretation of former RCW
26. 08. 110 ( 1949), which was repealed in 1973. RCW 26. 09. 080 unequivocally contemplates " a
proceeding for disposition of property following dissolution of the marriage."
No. 43190 -4 -II
In addition, when it appears that one party has concealed assets, the trial court has " a
right to take that factor into consideration in dividing the property." In re Marriage of
Nicholson, 17 Wn. App. 110, 118, 561 P.2d 1116 ( 1977). As the Washington Supreme Court
has stated,
It was the duty of appellant to make a full and fair disclosure of all property, both
The court was
separate and community, as he had its management and control.
not satisfied that he had done so. In such a situation, appellant must not be
surprised if the courts take that fact into consideration in making an equitable
distribution of property.
Rentel v. Rentel, 39 Wash. 2d 729, 736, 238 P.2d 389 ( 1951).
Here, it is undisputed that Kaseburg submitted a financial declaration to the trial court
just before the dissolution trial began in April 2011 indicating that he had no cash on hand. In
addition, the prosecuting attorney' s declaration for determination of probable cause ( related to
the dissolution trial states that "[ o] fficers also
the incident that occurred the day after ended)
found $ 20, 000 in [ Kaseburg' s] safe, which he claimed he [ was] hiding from his ex- wife." CP at
71.
Kaseburg submitted information attempting to explain away these inconsistencies after
Bowman and the court learned of the $ 20, 000. For instance, he argued in a declaration that the
statement to police " was twisted around," that he received large sums of cash for selling various
items ( a snowmobile and a dump truck) during the course of the dissolution trial, and that his
money in his home CP 78. In addition, Kaseburg
girlfriend was storing large sums of safes. at
argued that because the trial court' s findings of fact state that he kept most of the proceeds from
a 2006 sale of land netting him approximately $ 382, 000, " the fact that he would have $ 20, 000 in
his safe makes perfect sense." RP ( Feb. 10, 2012) at 7.
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No. 43190 -4 -II
But Kaseburg fails to explain how any reasonable judge weighing such competing
evidence must have decided in his favor, as the appellate standard of review requires. Landry,
103 Wash. 2d at 809 -10. Here, the trial court was clearly concerned about the adequacy of
Kaseburg' s explanations for the money. On the day it awarded the money to Bowman, it asked
there any " testimony to the $ 20, 000 that he had ... stashed in
Kaseburg whether was with regard
8
the home at the time of trial. " RP ( Feb. 10, 2012) at 9. In addition, Kaseburg failed to explain
why he would have saved large sums of cash from a sale of land made five years before ( or why
he omitted it on his pretrial financial declaration) or why he sold his snowmobile or dump truck
for cash.
On' appeal, Kaseburg has " the heavy burden of showing a manifest abuse of discretion on
the part of the trial court." Landry, 103 Wash. 2d at 809. Because Kaseburg has failed to meet this
burden, we conclude that the trial court did not abuse its discretion in awarding the $ 20, 000 to
Bowman.
GEF ENTERPRISES TAX LIEN
Kaseburg next argues that the trial court lacked jurisdiction to dispose of the federal tax
lien against GEF Enterprises or, alternatively, that the trial court abused its discretion in
awarding the debt to him. Based on the limited record submitted for our review, it appears the
trial court properly awarded the debt to .Kaseburg as part of a modification of the dissolution
decree. Accordingly, we conclude that the trial court had jurisdiction to dispose of the federal
tax lien and, in doing so, did not abuse its discretion in awarding the debt to Kaseburg.
8
Kaseburg admitted that there was not.
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No. 43190 -4 -II
A. CLARIFICATION OF THE DECREE
Kaseburg argues that the trial court improperly modified the dissolution decree because
an independent action must be filed to dispose of liabilities that have not been previously
disposed of in a dissolution decree. Because the trial court properly clarified its previous ruling
related to the parties' respective debts, we disagree.
A trial court does not have the authority to modify even its own decree in the absence of
conditions justifying the reopening of the judgment." In re Marriage of Thompson, 97 Wash. App.
873, 878, 988 P.2d 499 ( 1999) ( citing RCW 26. 09. 170( 1)). However, an ambiguous decree may
be clarified. Thompson, 97 Wn. App. at 878. Whether a dissolution decree is ambiguous is a
question of law subject to de novo review, In re Chavez, 80 Wash. App. 432, 435, 909 P.2d 314,
review denied, 129 Wash. 2d 1016 ( 1996), and "[ u] nlike a modification, amendment, or alteration,
which must be accomplished under. CR 59, CR 60 or some other exception to preclusion, a
clarification' can be accomplished at any time." Kemmer v. Keiski, 116 Wash. App. 924, 933, 68
P.3d 1138 ( 2003). To be ambiguous, a decree must be " fairly susceptible to two different,
reasonable interpretations." Wm. Dickson Co. v. Pierce County, 128 Wash. App. 488, 493 -94, 116
P.3d 409 ( 2005).
Here, the dissolution decree awarded the restaurant business to Kaseburg. As Bowman
argues,
I] t is reasonable to infer that Mr. Kaseburg was also to be responsible for all
debts associated with the restaurant, including unpaid payroll taxes due, if any.
However,] since the Decree specifically mentions certain debts associated with
the restaurant ( and assigns them to Mr. Kaseburg), but does not mention any
unpaid taxes, it is also reasonable to infer that the Decree embodies no intention
regarding that debt. CP 67. The Decree is susceptible to two different reasonable
interpretations, and hence is ambiguous.
Br, of Resp' t at 20.
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No. 43190 -4 -II
We agree with Bowman' s argument concerning the ambiguity of the decree: at the time
the trial court issued the dissolution decree, it clearly intended on disposing of all the parties'
assets and debts apart from the $ 20, 000 seized by police. Accordingly, the trial court properly
undertook clarification of the decree, effectively defining rights it had already granted. See
Rivard v. Rivard, 75 Wash. 2d 415, 418, 451 P.2d 677 ( 1969) ( A modification occurs when " rights
given to one of the parties [ are] either extended beyond the scope originally intended or where
those rights are reduced, giving the party less rights than those he originally received. A
clarification, on the other hand, is merely a definition of the rights which have already been
given and those rights may be completely spelled out if necessary.").
'
B. AWARDING THE DEBT To KASEBURG
Kaseburg argues that the trial court abused its discretion in awarding him the payroll tax
debt because it failed to " set forth the existence or non -existence of determinative factual
matters, based upon the evidence provided to the Court." Br. of Appellant at 22. Although the
record designated for our review is sparse, we disagree.9
Where a dissolution decree is ambiguous, " a reviewing court seeks. to ascertain the
intention of the court entering the original decree by using general rules of construction
applicable to statutes, contracts and other writings." In re Marriage of Gimlett, 95 Wash. 2d 699,
704 -05, 629 P.2d 450 ( 1981). This is " not a question of fact, but is a question of law for this
court" to decide de novo. Leavy, Taber, Schultz & Bergdahl v. Metro. Life Ins. Co., 20 Wash. App.
503, 504, 581 P.2d 167 ( 1978). Accordingly, we must determine ( based on the limited evidence
9 Although we address this issue on the merits, we note that the appellant bears the burden of
providing an adequate record for our review. Story v. Shelter Bay Co., 52 Wash. App. 334, 345,
760 P.2d 368 ( 1988); RAP 9. 2( b), 9. 6( a). If an appellant fails to satisfy this burden, " the trial
court' s decision ... must stand." Story, 52 Wash. App. at 345.
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No. 43190 -4 -II
before us) whether the trial court intended on awarding all business related liabilities to Kaseburg
when it originally divided the parties' assets and debts.
Here, the trial court listened to extensive testimony concerning the parties' assets and
liabilities prior to entering its decree of dissolution. And although Kaseburg has failed to
designate any of that testimony for review, it is clear from the record that ( 1) prior to posttrial
motions ( when it became clear that there was an outstanding debt for nearly $ 100, 000 related to
the restaurant), Kaseburg consistently argued that he was the sole ( or majority) owner of the
restaurant; and ( 2) the potential issue of outstanding payroll taxes was presented to the court at
trial.
At the dissolution trial, Kaseburg argued that the prenuptial agreement should be upheld
because Bowman had contributed " no financial or labor contribution of any kind" to Mad Dog' s
Diner. CP at 292. Tax returns from 2003 to 2005 showed that while the parties filed joint 1040
tax returns, Kaseburg listed himself as the sole proprietor of the restaurant on the form' s
Schedule C during those years. In addition, Kaseburg wrote the Washington State Liquor
Control Board in 2004, stating, " I Jeff Kaseburg being the only person of interest of the old Mad
Caf6 Inc. do the business property to GEF Enterprises LLC." CP at 401.
Dog' s hereby assign all
And early in 2006, again wrote the Liquor Control Board stating,
I Mad Diner ( G. E.F. Enterprises L.L.C.) Of which I closed. I
own Dog' s Family
DBA. As
have company called Doggie Style Enterprises L.L. C. Which is
a new
the Mad Dogs Diner & Pub. I here -by assign all the business assets from GEF
Enterprises to Doggie Style Enterprises L.L.C.
CP at 389. In a 2009 declaration, Kaseburg maintained that " Mad Dogs Diner is my separate
property." CP at 266. Additionally, Kaseburg testified at trial that all payroll taxes had been
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No. 43190 -4 -II
paid and the trial court admitted exhibit 85, a document related to the outstanding payroll tax
debt.
Although the original dissolution decree did not expressly mention any tax debts, the
record indicates that the trial court attempted to ascertain and dispose of any such debts during
the course of the trial. Accordingly, when it became clear that an outstanding restaurant -
related
debt discussed at trial had been overlooked in the decree, the trial court did not abuse its
discretion in clarifying the dissolution decree and explicitly " spell[ ing] out" that the debt
obligation should belong to Kaseburg. 10 Rivard, 75 Wash. 2d at 418.
ATTORNEY FEES
Kaseburg argues that pursuant to RCW 26.09. 140, he is entitled to attorney fees on
appeal. But Kaseburg misinterprets this attorney fee provision. RCW 26. 09. 140, unique to
dissolution proceedings, allows this court the discretion, " after considering the financial
resources of both parties," to award reasonable fees or costs to a party —irrespective of which
party has prevailed on appeal. Kaseburg has provided no evidence that Bowman stands in a
better financial position than he does to pay for the costs of his appellate proceeding. Further,
Kaseburg has failed to file an affidavit of financial need as required by RAP 18. 1( c).
Accordingly, we deny Kaseburg' s request for appellate attorney fees.
The trial court properly reserved ruling on the $ 20, 000 until it was clear that the money
was not subject to forfeiture, Kaseburg has failed to establish that the trial court erred in
to
As previously noted, after denying Kaseburg' s motion for reconsideration related to the tax
debt, the court stated,
The Court does have a right to rely on the testimony of Mr. Kaseburg. His
testimony [ at trial] was clear with regard to these issues of ownership, as well as
there] not being any tax liability. So it was an easy matter to make a ruling in
this regard granting the clarification and denying reconsideration.
RP ( March 9, 2012) at 13.
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No. 43190 -4 -II
awarding this money to Bowman, the record provided does not indicate that the trial court erred
in clarifying the dissolution decree to dispose of the payroll tax debt, or in awarding the tax lien
to Kaseburg. Accordingly, we affirm.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2. 06. 040, it is so ordered.
mil ave,
Q INN-BRINTNALL, P.J.
MAXA, J.
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