In Re The Marriage Of: Kathryn M. Cox, V. John Joseph Cox ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: ) No. 81966-6-I
)
KATHRYN M. COX, )
)
Appellant, )
) DIVISION ONE
and )
)
JOHN JOSEPH COX, )
) PUBLISHED OPINION
Respondent. )
)
MANN, C.J. — Kathryn Cox appeals the trial court’s order issuing a writ of
restitution. The order stems from a dissolution proceeding between Kathryn and John
Cox. Kathryn 1 argues that the trial court did not have subject matter jurisdiction to issue
the writ, that the writ was an improper form of relief, and that the court lacked authority
to enter contempt sanctions. We affirm.
FACTS
Kathryn and John Cox married in 1986. Kathryn petitioned for dissolution in
2016. Following a bench trial, the trial court entered a decree of dissolution in July
2017. The decree ordered that Kathryn and John’s family home “shall be listed for sale
with an agreed upon real estate agent within 90 days of the date of entry of this order.”
1 We refer to the parties by their first names for clarity. We intend no disrespect.
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The order further stated “both spouses shall promptly execute all documents necessary
to facilitate the sale of the Real Property” and take no action “further encumber[ing] the
Real Property.” All decisions regarding the sale were to “be made by the parties jointly
and promptly, without unreasonable delay, and with any disputes submitted to
arbitration.” Pending sale, Kathryn and John were to hold the home in “equal shares, as
Tenants in Common (without right of survivorship).” The court permitted Kathryn to
“occupy the [home] pending sale,” but she was to “maintain it in reasonable show
condition and facilitate showings at reasonable times.”
Kathryn appealed the final decree to this court which affirmed the trial court’s
decision in an unpublished decision. In re Marriage of Cox, No. 77634-7-I (Wash. Ct.
App. June 10, 2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/776347.pdf.
Kathryn has refused to leave the home since entry of the dissolution decree in
2017. Following entry of this court’s mandate, John attempted to enforce the decree
and facilitate sale of the home. On March 4, 2020, the trial court granted John’s motion
to compel arbitration. On March 13, 2020, the arbitrator granted John’s request to
enforce the decree and ordered the sale of the home, requiring that John and Kathryn
sign a listing agreement within 10 days of the decision. Despite the arbitrator’s order,
Kathryn continued to occupy and inhibit the sale of the home.
On April 18, 2020, John sought a second arbitration. The arbitrator granted
John’s request for an order appointing a special master to sign “any and all documents”
on behalf of Kathryn to effectuate the sale of the home. Despite two arbitrations,
Kathryn continued to occupy and inhibit the sale of the home.
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On June 17, 2020, John sought a third arbitration. The arbitrator entered an
order requiring that Kathryn vacate the home by no later than July 27, 2020. The
arbitrator further determined that should Kathryn fail to vacate the property, John “shall
be entitled to a civil standby officer to forcibly remove [her].” Finally, the arbitrator
granted John the “sole decision making on the sale process for the residence.”
On July 21, 2020, the trial court confirmed all three of the arbitration awards and
entered judgment in favor of John. Kathryn did not appeal this order.
On September 16, 2020, John sought a writ of restitution from the trial court to
forcibly remove Kathryn from the home. After briefing, on October 8, the trial court
ordered that a writ of restitution be issued. After the sheriff refused to serve the writ due
to a scrivener’s error, an amended writ was issued on November 9, 2020. The
amended writ was consistent with the sheriff’s Covid-19 policy of allowing an additional
30 days to execute the writ. The sheriff served, but did not execute, the writ on
November 17, 2020.
The same day that the sheriff served the writ, Kathryn posted a supersedeas
bond with the trial court to stay the writ pending appeal. Kathryn’s counsel contacted
the sheriff, informing them that the bond stayed the matter. Relying on RAP 8.1(b)(2), 2
the sheriff agreed not to enforce the writ.
On December 23, 2020, John moved to extend the writ, dissolve the stay of
enforcement, and assess terms for contempt. On January 8, 2021, the court denied
2RAP 8.1(b)(2) states:
Except where prohibited by statute, a party may obtain a stay of enforcement of a
decision affecting rights to possession, ownership or use of real property or of tangible
personal property, or intangible personal property, by filing in the trial court a
supersedeas bond or cash, or alternate security approved by the trial court pursuant to
subsection (b)(4).
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John’s motion, finding that Kathryn had stayed the writ pending appeal by posting the
supersedeas bond.
This appeal follows.
ANALYSIS
A. Writ of Restitution
Kathryn argues first that the trial court erred in granting a writ of restitution
outside an action under the forcible entry and unlawful detainer statute, ch. 59.12
RCW. 3 We disagree.
A court’s authority to enforce its orders is well settled by Washington statute.
“every court of justice has power . . . to compel obedience to its judgments, decrees,
orders and process, and to the orders of a judge out of court, in an action, suit or
proceeding pending therein.” RCW 2.28.010(4). Further, “[e]very judicial officer has
power . . . to compel obedience to his or her lawful orders as provided by law.” RCW
2.28.060(2). When no proceeding is prescribed, a court may draw from its implied
powers to compel obedience:
When jurisdiction is, by the Constitution of this state, or by statute,
conferred on a court or judicial officer all the means to carry it into effect
are also given; and in the exercise of the jurisdiction, if the course of
proceeding is not specifically pointed out by statute, any suitable process
3 Kathryn’s briefing argues that the trial court lacked “subject matter jurisdiction” to issue the writ
of restitution. She is incorrect. Subject matter jurisdiction “refers to the court, in which a party files a suit
or a motion, being the correct court for the type of suit or character of a motion.” In re Estate of Reugh,
10 Wn. App. 2d 20, 48, 447 P.3d 544 (2019). “Superior courts are courts of general jurisdiction” and thus
have “the power to hear and determine all matters, legal and equitable, . . . except in so far as these
powers have been expressly denied.” In re Marriage of Thurston, 92 Wn. App. 494, 498, 963 P.2d 947(1998). The controlling question when determining subject matter jurisdiction is “whether the court
possessed the authority to adjudicate the type of controversy involved in the action.” Ronald Wastewater
Dist. v. Olympic View Water and Sewer Dist., 196 Wn.2d 353, 372, 474 P.3d 547 (2020). Here, the type
of controversy is the Cox’s dissolution proceeding. It is well understood that the trial court has subject
matter jurisdiction over this type of controversy. See Farmer v. Farmer, 172 Wn.2d 616, 624, 259 P.3d
256 (2011) (“Dissolution proceedings invoke the court’s equitable jurisdiction.”).
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or mode of proceeding may be adopted which may appear most
conformable to the spirit of the laws.
RCW 2.28.150.
The Washington Supreme Court expounded on the implied powers to compel
obedience during dissolution proceedings in Robinson v. Robinson, 37 Wn.2d 511, 516,
225 P.2d 411 (1950):
It is inconceivable that a court in a [dissolution] proceeding can divide the
property between the parties and yet have no power to make that division
effective if the parties are recalcitrant. . . . If a court in equity could not
enforce its decrees, obviously the court would be rendered impotent and
we would have neither law nor order but every one could do as he or she
pleased. Of course, such a situation cannot be countenanced by the
courts for a moment.
Kathryn’s recalcitrance put the trial court in just such a situation. The trial court
ordered the sale of the marital home within 90 days of the entry of its dissolution order.
Over four years later and after three arbitrations, the appointment of a special master,
and potential threat of removal by sheriff, Kathryn remains in the home in direct
disobedience of the trial court’s order. As such, the trial court selected what, within its
equitable discretion, it believed to be a suitable process for enforcing its order: a writ of
restitution.
While it is true that the trial court did not follow the statutory process under
forcible entry and unlawful detainer statute, ch. 59.12 RCW, it did not need to. Title 59
RCW addresses landlord and tenant rights. Here, until the family home is sold, the
Coxes own the property as tenants in common. As such, John is not Kathryn’s landlord
and cannot bring and unlawful detain action under ch. 59.12 RCW. While the unlawful
detainer statute, RCW 59.12.090, does allow a plaintiff landlord to seek a writ of
restitution to restore the property to the plaintiff, there is no authority for the proposition
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that a writ of restitution is only available under ch. 59.12 RCW. By entering a writ of
restitution the trial court chose an equitable remedy that allowed it to effectuate its order
using a process familiar both to the court as well as the sheriff’s office serving and
enforcing the writ.
B. Contempt and Injunctive Relief
Kathryn also argues that the trial court lacked authority to issue a writ of
restitution: (1) outside the statutory process for contempt under RCW 7.21.040 and (2)
outside the statutory provisions for injunctive relief under ch. 7.40 RCW. Both
arguments fail. While the trial court found Kathryn in contempt, 4 as discussed above,
the writ of restitution was properly issued under the trial court’s equitable power to
enforce the dissolution decree. The trial court did not issue the writ of restitution as a
remedy for either contempt or for injunctive relief.
Affirmed.
WE CONCUR:
4 We uphold a finding of contempt “as long as a proper basis can be found.” State v. Hobble, 126
Wn.2d 283, 291, 892 P.2d 85 (1995). The record offers ample bases to find Kathryn in contempt. After
disobeying multiple trial court orders and impeding the sale of the marital home for over four years,
Kathryn’s actions support the trial court’s contempt finding.
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