In Re The Marriage Of: Vinh Dang v. Anh Thu Thi Vu ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of ) No. 69747-1-
VINH QUOC DANG, )
Respondent, )
and )
ANH-THU THI VU, ) UNPUBLISHED OPINION
Appellant. ) FILED: April 28, 2014
Verellen, A.C.J. — Appellate review of the trial court's decision in a dissolution
proceeding is highly deferential. Here, Anh-Thu Thi Vu challenges most of the trial
court's findings of fact. Some of the arguments are raised for the first time on appeal
and almost none include citation to authority. Because Vu fails to meet her burden on
appeal to show that the trial court's findings were not supported by substantial evidence
or that the trial court abused its discretion, we affirm. Additionally, because her appeal
is frivolous, we award Vinh Dang attorney fees and costs on appeal.
FACTS
Vu and Dang married in September 2006. More than three months before their
marriage, the parties executed a prenuptial agreement. After their marriage, Vu moved
into Dang's home. During the marriage, Vu and Dang retained their separate bank
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accounts and opened a joint checking and savings account into which they both
contributed equal amounts of money to cover combined household expenses.
In April 2011, Dang moved out of the home and in November 2011, he filed for
dissolution. The main issues at trial were whether the prenuptial agreement was
enforceable, the division of property, maintenance, and the reimbursement of expenses
Vu incurred while living in Dang's home after he moved out. The trial began in October
2012, but was continued for almost a month due to Vu's illness. On the fourth day of
trial, the parties stipulated that the prenuptial agreement was enforceable on the issue
of division of property, but not maintenance. As a result, the trial court divided the
couple's property according to the terms of the prenuptial agreement with Vu receiving
property valued at approximately $275,000. The trial court declined to award
maintenance, but did order Dang to reimburse Vu for some of the expenses she
incurred to maintain the home. Finally, the trial court found that Vu was intransigent
because she needlessly increased the duration of the trial by concealing assets and
making misrepresentations to the court about the assets she had available at
separation. As a result, the trial court awarded Dang $8,000 in attorney fees.
Vu appeals. She had an attorney at trial but represents herself on appeal.
DISCUSSION
Pro se litigants are held to the same standard as attorneys and must comply with
all procedural rules on appeal.1 Failure to do so may preclude appellate review.2 An
appellant must provide "argument in support of the issues presented for review,
1 In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
2 State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999).
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together with citations to legal authority and references to relevant parts of the record."3
Failure to support assignments of error with legal arguments precludes review.4
Arguments that are not supported by references to the record, meaningful analysis, or
citation to pertinent authority need not be considered.5
We review a trial court's findings of fact for substantial evidence.6 "Substantial
evidence to support a finding of fact exists where there is sufficient evidence in the
record 'to persuade a rational, fair-minded person of the truth of the finding.'"7
Unchallenged findings are verities on appeal.8
Service of Process
Vu argues that service was not proper because her brother and sister in law
waited for her inside of her home and served her with the summons when she arrived.
We disagree.
Because this argument is raised for the first time on appeal, we need not reach
it.9 Even so, Vu fails to demonstrate that service was improper. Pursuant to
RCW 4.28.080(15), personal service may be made at a person's place of usual abode
3 RAP 10.3(a)(6).
4 Howell v. Spokane & Inland Empire Blood Bank, 117 Wn.2d 619, 624, 818 P.2d
1056(1991).
5 Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549(1992); State v. Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990); RAP 10.3(a).
e Heqwine v. Lonqview Fibre Co., Inc., 162 Wn.2d 340, 352-53, 172 P.3d 688(2007).
7 Id, at 353 (quoting In re Estate of Jones, 152Wn.2d 1, 8, 93 P.3d 147 (2004)).
8 Cowiche Canyon, 118 Wn.2d at 808.
9See RAP 2.5(a); State v. McFarland, 127 Wn.2d 322, 332-33, 899 P.2d 1251(1995) ("As a general rule, appellate courts will not consider issues raised for the first
time on appeal.").
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with someone of suitable age and discretion who resides therein.10 She appears to
argue that service was improper solely because the presence of her brother and sister
in law in her home frightened her. She cites no authority for this argument. Therefore,
she has not met her burden to show that service was improper.
Prenuptial Agreement and Division of Property
Vu argues that the prenuptial agreement was not enforceable under California
law and the trial court should not have relied upon it when distributing the couple's
separate and community property. But because Vu stipulated in open court that the
prenuptial agreement was valid, we disagree.
A trial court may enforce the terms of a stipulation under Civil Rule (CR) 2A.
"The purpose of CR 2A is to give certainty and finality to settlements."11 CR 2A requires
a stipulation in open court on the record or evidence of the agreement in writing and
subscribed by the attorneys denying it.12 We review a trial court's decision to enforce a
stipulation for abuse of discretion.13
Here, Vu stipulated in open court on the record that the prenuptial agreement
was valid regarding the distribution of separate and community property and debts. In
discussing the stipulation, the trial court observed that Vu would receive a larger division
of property under the prenuptial agreement than she would receive without the
prenuptial agreement. Both Vu's attorney and the trial court separately asked Vu
whether she understood the stipulation. She answered "yes" each time. Vu claims that
10 Sheldon v. Fettiq. 129 Wn.2d 601, 607, 919 P.2d 1209(1996).
11 Condon v. Condon, 177 Wn.2d 150, 157, 298 P.3d 86 (2013).
12 CR 2A; Bryant v. Palmer Coking Coal Co., 67 Wn. App. 176, 178, 858 P.2d
1110(1992).
13 Morris v. Maks, 69 Wn. App. 865, 868, 850 P.2d 1357 (1993).
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she agreed to the stipulation because she was "sick and traumatized" and agreed to
whatever her attorney and the trial court said.14 But she raises this issue for the first
time on appeal and does not explain why she was unable to explore this issue in a
posttrial motion. On the record before us, Vu unequivocally agreed to the stipulation in
open court. Vu does not establish that the trial court abused its discretion in enforcing
the stipulation.
Vu generally argues it would be fair to award her at least half of the property the
trial court awarded to Dang. But she presents no persuasive argument why the trial
court's proposed division of assets based upon the prenuptial agreement was an abuse
of discretion.
Maintenance
Vu argues that the trial court abused its discretion in declining to award her
maintenance. We disagree.
Maintenance is a flexible tool by which the parties' standard of living may be
equalized for an appropriate period of time.15 The only limitation on amount and
duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors,
the award must be just.16 Those factors include, but are not limited to: (1) the financial
resources of the party seeking maintenance; (2) the time needed to acquire education
necessary to obtain employment; (3) the standard of living during the marriage; (4) the
duration of the marriage; (5) the age, physical and emotional condition, and financial
obligations of the spouse seeking maintenance; (6) and the ability of the spouse from
14 Appellant's Opening Br. (Amended) at 23.
15 In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984).
16 Bulicek v. Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990).
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whom maintenance is sought to meet his needs and obligations while providing the
other spouse with maintenance.17 We review a trial court's award of maintenance for
abuse of discretion.18
Here, the trial court expressly considered the above factors and found that
maintenance was not necessary. Vu challenges the trial court's finding on only the first
factor: that she had enough financial resources to meet her needs independently. She
argues that her monthly personal expenses, including $1,600 for rent, $300 for a cell
phone, $800 for food, $200 for hair treatments, and $950 for savings, exceed her
monthly income and this justifies an award of maintenance. But given that she was
awarded assets with a value of approximately $275,000, exclusive of her pension plan,
the trial court did not abuse its broad discretion in finding that this factor did not weigh in
favor of maintenance. Furthermore, even if Vu did not have adequate financial
resources, she does not explain why the first factor alone outweighs the five other
factors to be considered. For these reasons, her argument is not persuasive.
Award of Attorney Fees at Trial
Vu assigns error to the trial court's finding that she was intransigent and that
Dang was entitled to attorney fees based on her intransigence but cites no compelling
authority on this issue. Because substantial evidence supports the trial court's finding,
we affirm the award of fees.
17 RCW 26.09.090.
18 In re Marriage of Mueller, 140 Wn. App. 498, 510, 167 P.3d 568 (2007).
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A trial court may award a party legal fees caused by the other party's
intransigence.19 Intransigent conduct includes making a trial unduly difficult with
increased legal costs.20 The party's ability to pay the fee is irrelevant.21
Here, the trial court made the following finding regarding Vu's intransigence:
The court finds that the wife needlessly increased the husband's
attorney's fees by attempting to conceal assets she received, and even
during trial, when evidence of her deception became clear, she continued
to make misrepresentations to the court as to the assets she had available
to her, which caused the trial to drag on for days beyond the time
necessary to establish facts known to the wife by her own bank
statements, further increasing the husband's attorney's fees for trial
preparation, as well as for actual days in trial. The court find[s] the wife's
actions in this regard to constitute intransigence and makes an award of
attorney's fees to the husband.[22]
Vu contends that she did not conceal assets or misrepresent to the court the
amount of assets she had available. But the record supports the trial court's finding.
Dang presented evidence that, according to Vu's bank records, she withdrew cash of
$140,000 on September 6, 2011, and $25,506 on October 21, 2011, neither of which
were accounted for in her financial declaration, filed in November 2011.23 On the fourth
day of trial, after considerable testimony from Vu tracing the deposits and withdrawals
from her various bank accounts, the trial court asked the parties to meet during a recess
to determine whether Vu had assets of approximately $165,000 available at the date of
separation. After the recess, Vu confirmed that she had "$165,806, including her payroll
19 In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120 (1992).
20 id,
21 In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929 (1997).
22 Clerk's Papers at 17-18.
23 Vu's financial declaration, filed on November 16, 2011, claimed that her
available assets included $20 cash on hand and $1,000 on deposit in banks.
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income."24 Had this amount been previously disclosed, the parties could have avoided
spending a large amount of time tracing Vu's bank account activity to determine the
actual amount of assets available to her at separation. As such, the trial court did not
abuse its discretion in finding Vu was intransigent by failing to disclose her available
assets.
Vu argues that her health was poor and that she needed the money withdrawn to
pay for various expenses. Neither of these alleged facts account for her failure to timely
disclose the amount of assets she had at the date of separation. Additionally, she
argues Dang objected to her withdrawal of $45,000 in August 2012. But because that
withdrawal happened after the date of separation it was not relevant to the finding of
intransigence.
Vu also argues that Dang was intransigent because he concealed assets at trial.
Because this argument was not presented below, we do not review it on appeal.25
Reimbursement of Expenses
Vu argues that the trial court erred by refusing to reimburse her for expenses she
claims benefited the community, by reimbursing her for only half the cost of heating oil,
and by failing to order a specific amount of reimbursement for the overpayment of
utilities. We disagree.
A dissolution is an equitable proceeding in which the trial court has broad
discretion to fashion remedies.26
24 Report of Proceedings (Nov. 15, 2012) at 384.
25 See RAP 2.5(a); McFarland, 127 Wn.2d at 332-33.
26 In re Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001).
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No. 69747-1-1/9
Here, the trial court exercised its discretion by declining to reimburse Vu for
several expenses:
The wife made a claim for various expenses advanced by her
during the parties' separation. The court finds the following expenses
were not made for the benefit of the community, or of Mr. Dang:
1. The hotel bill in the amount of $278.75;
2. The alarm installation of $1,887.66, which will not be used by
Mr. Dang;
3. The cost to change locks on Mr. Dang's house in the amount of
$208.05;
4. The wife's medical expenses incurred post separation in the
amount of $4,681.09.^
While Vu claims that all of these expenses were necessary for her health and safety,
she does not present persuasive authority or argument that the trial court was
compelled to order Dang to reimburse her for these particular expenses. Therefore, she
has not met her burden to show that the trial abused its discretion.
As to the cost of refilling a furnace oil tank at the home, the trial court expressly
found the oil was "for the benefit of the community."28 Vu argues she did not use any oil
and should have been reimbursed for the full amount and not just half the cost of the oil.
But it was within the broad discretion of the trial court to find that the fuel oil was
purchased for the benefit of the community and should be split equally by the parties.
Finally, Vu argues that the trial court should have ordered Dang to provide utility
billing statements to show that she was correctly reimbursed for her overpayment of any
utilities. But because she does not claim that the reimbursement she received from
27 Clerk's Papers at 18.
28 Id.No. 69747-1-1/10
Dang was incorrect and she did not raise the concern in the trial court, she does not
establish any basis for relief on appeal.
Order to Vacate Home
Vu argues that on a day that she was not present in court due to illness, the trial
court improperly entered an order requiring her to vacate Dang's home. When the order
was entered, Vu's attorney was present in court and represented her interests. Vu cites
no authority that the trial court abused its discretion merely because she was absent but
her attorney was present when the trial court made this ruling.
Vu's Testimony
Vu argues that she was not given enough time to testify about her spousal
abuse, financial issues, or health concerns. Out of the four days of trial, Vu testified for
most of two days. Her briefing does not identify any matters that she would have
testified to that would have affected the outcome of this case. Vu does not establish
she was denied ample time to testify.
Vu argues that the trial court erred by refusing to allow her to testify as to her lay
opinion regarding her medical and mental health issues. This claim is not supported by
the record. Rather, the trial court excluded any testimony regarding the causation of her
medical diagnoses because she was not qualified as a medical expert. Additionally,
she cites no persuasive authority in support of this argument.
Date of Separation
Vu argues that the trial court erred in finding that the date of separation was
April 30, 2011, rather than November 10, 2011, when Dang filed for dissolution.
Because substantial evidence supports the trial court's finding, we disagree.
10
No. 69747-1-1/11
Dang testified that he moved out of the home in April 2011 and began sleeping at
his sister's home. He also testified that by April 2011, he had made it clear to Vu that
he was not interested in reconciliation. Based upon this testimony, there was
substantial evidence that the parties separated in April rather than November.
Other Matters
Vu makes various other arguments that are not supported by citation to the
record or to persuasive authority. We find none of them persuasive.
Vu argues that the trial court erred by appointing her attorney to take her to the
emergency room when she was ill during trial rather than calling 911. It is unclear how
this claim affects the legal determinations in this case. Because Vu does not show how
this action prejudiced her in any way, this argument is not persuasive.
Vu argues that the trial court should have continued the trial due to her poor
health. She ignores the fact that the trial court did continue her trial nearly a month due
to her poor health, from October 17 until November 14. Even so, this argument is not
persuasive because she does not pointto anywhere in the record where she requested
such an additional continuance.29
Vu argues that her attorney intimidated her, threatened her, controlled her, and
did not effectively advocate for her. As a result, she contends that she "just said yes to
everything."30 The record before us does not reflect any such duress, intimidation or
abuse. She does not explain why she was unable to raise this before the trial court in a
posttrial motion. And Vu cites no authority that she is entitled to relief for alleged
ineffective assistance of counsel in a civil trial.
29 See RAP 2.5(a); McFarland, 127 Wn.2d at 332-33.
30 Appellant's Opening Br. (Amended) at 13.
11
No. 69747-1-1/12
Vu argues that the trial court was biased against her and, as a result, ruled
against her on most issues. She claims that the source of that bias was a letter she
sent to another judge complaining that the trial court entered the order to vacate the
home outside of her presence. This argument was not raised below,31 and the letter
she relies upon is not included in the appellate record.32 Vu does not establish any
bias.
For the first time in her reply brief, Vu argues that she should have been awarded
attorney fees below. Arguments raised for the first time in a reply brief generally will not
be considered.33
Finally, Vu presents extensive argument about alleged abuse she suffered by
Dang. Allegations of spousal abuse are always troubling, but Vu does not explain how
the alleged abuse had any impact on the legal questions before the trial court during the
dissolution.
Attorney Fees on Appeal
Vu seeks attorney fees under RAP 18.1 and RCW 26.09.140. We may award
attorney fees after considering the relative resources of the parties and the merits of the
31 See RAP 2.5(a); McFarland, 127 Wn.2d at 332-33.
32 State v. Vazquez, 66 Wn. App. 573, 583, 832 P.2d 883 (1992) ("party seeking
review has the burden of perfecting the record so that the reviewing court has before it
all the relevant evidence" to the issues raised on appeal); State v. Wheaton, 121 Wn.2d
347, 365, 850 P.2d 507 (1993) (where the record is inadequate for review of an issue,
an appellate court will not reach the issue).
33 Cowiche Canyon, 118 Wn.2d at 809 ("An issue raised and argued for the first
time in a reply brief is too late to warrant consideration.").
12
No. 69747-1-1/13
appeal.34 Because Vu's appeal is meritless and she was awarded substantial property
in the dissolution, we decline to award her attorney fees on appeal.
Dang also requests an award of attorney fees under RAP 18.9, claiming that Vu's
appeal is frivolous. An appeal is frivolous if there are no debatable issues on which
reasonable minds can differ and is so totally devoid of merit that there was no
reasonable possibility of reversal.35 The court considers the record as a whole and
resolves all doubts against finding an appeal frivolous.36
Here, reviewing the record as a whole, Vu's appeal is frivolous. Her descriptions
of the proceedings below are contrary to the record and her arguments are not
supported by legal authority. Accordingly, we award Dang attorney fees and costs as
sanctions against Vu for this frivolous appeal, subject to Dang's compliance with
RAP 18.1.
We affirm the trial court.
WE CONCUR:
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34 In re Marriage of Valente, Wn. App. , 320 P.3d 115, 122(2014).
35 In re Recall of Charges Against Feetham, 149 Wn.2d 860, 872, 72 P.3d 741(2003).
36 Delanvv. Canning, 84 Wn. App. 498, 510, 929 P.2d 475 (1997).
13