In Re The Marriage Of: Isabelle Kuhlmeyer, Resp v. Sean Kuhlmeyer, App ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of:
DIVISION ONE
ISABELLE KUHLMEYER,
No. 78765-9-I
Respondent,
and UNPUBLISHED OPINION
SEAN KUHLMEYER,
Appellant. FILED: January21, 2020
DWYER, J. — Sean Kuhlmeyer appeals an arbitration award entered in this
lengthy, hotly disputed marital dissolution action. He contends that the arbitrator
was partial, refused to consider his evidence, and entered an award containing
facial legal errors. He also appeals the trial court’s order confirming the
arbitration award and all of the other orders entered in this action. We affirm.
The record before us is voluminous and the procedural history is
convoluted. Therefore, we set forth only those facts necessary to address the
issues on appeal. Sean and Isabelle Kuhlmeyer married in 2000, later had a
child, and separated in 2016. In February 2017, Isabelle1 petitioned for
dissolution of the marriage.
1 Because the parties share the same last name, we refer to them by their first names.
No. 78765-9-1/2
In January 2018, the parties agreed to arbitrate their disputes with Cheryll
Russell. The arbitration was governed by chapter 7.04A RCW. The parties
authorized the arbitrator to determine a final parenting plan, each party’s income,
a child support order, the division of assets and debts, a restraining order, and an
award of attorney fees.
Arbitration was conducted over two days. The parties testified, counsel
argued,2 and a substantial volume of exhibits were introduced. In May 2018, the
arbitrator entered a comprehensive 153-page award that set forth findings and
conclusions resolving all issues. Sean did not agree with any of the rulings,
contending that the arbitration award was “a travesty of justice” and “rife with
errors.”
In June 2018, Sean moved to vacate the arbitration award and requested
a new trial. He also filed for bankruptcy and demanded that all issues before the
arbitrator be re-litigated. Isabelle then asked the superior court to affirm the non
financial issues resolved in binding arbitration.
Subsequently, the court entered an order partially confirming the
arbitration award (reserving resolution of financial issues pending the completion
of Sean’s bankruptcy), findings and conclusions, and an order restraining Sean
from contacting lsabelle for 60 months. The court also entered a final parenting
plan that restricted Sean’s parenting time with, and the ability to make major
decisions about, the child. The court imposed those parenting restrictions, under
2 Sean, an attorney licensed in Washington, represented himself throughout the relevant
portion of these proceedings, while lsabelle was represented by counsel. Sean is also
representing himself on appeal.
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RCW 26.09.191, based on Sean showing “no evidence of being able to stop his
compulsively self-destructive litigation pattern, short of vindication, which h[e] is
unlikely to get” and his abusive use of conflict “that endangers and damages the
psychological development” of their child.
In July 2018, Sean filed a “motion and request for exercise of sua sponte
powers” and asked the court to consider new evidence of alleged misconduct by
Isabelle’s counsel in conjunction with his motion to strike the arbitration award.3
Isabelle responded by asking the court for relief from Sean’s incessant and
frivolous motions.
After a hearing, the court found Sean’s repeated filings needlessly
increased Isabelle’s litigation costs and that his threats to continue improper
litigation were harassing and abusive. Thus, in an effort to impede Sean’s “ability
to abusively use court filings and legal proceedings to harass” Isabelle, the court
prohibited Sean from filing any more motions unless he submitted “a one-page
statement regarding its subject matter” to the court and received approval to file
the motion.4 The court further awarded Isabelle attorney fees “for the necessity
of reviewing thousands of pages of improper filings and addressing multiple
improperly filed and frivolous motions.” The court denied Sean’s grievance
~ Sean also filed a grievance against the guardian ad litem (GAL) appointed for the child
and asked the court to disregard the GAL’s reports.
~ In its July 31, 2018 order on case management prohibiting Sean from sending e-mails
to the court, the trial court observed: “In the past eight weeks, [Sean] has filed approximately 38
motions. .. . He also has emailed [sic] this court 31 times since June 2, 2018. Frequently, the
emails [sic] improperly seek legal advice on how to file more motions, or to complain of some
other, unrelated, situation.” The court noted that Sean ‘has engaged in repetitive litigation that is
harassing and abusive.”
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No. 78765-9-1/4
against the GAL, motion to vacate the arbitrator’s award, motion for new trial, and
motion for sanctions against Isabelle’s counsel.
In August 2018, Sean filed a notice of appeal challenging numerous
orders entered by the trial court between February and July 2018. Isabelle then
filed a motion for contempt in which she asserted Sean was failing to comply with
(1) the temporary child support order, (2) the communications provision of the
parenting plan by continuing to contact her, (3) the restraining order by not
surrendering his weapons,5 and (4) the order directing him to obtain court
permission prior to filing future motions. Following yet another hearing, the court
found Sean in “contempt of court”6 and denied Sean’s request for permission to
file several other motions.7
In September 2018, the court denied Sean’s motion to reconsider the
contempt order. That same month, the bankruptcy court dismissed Sean’s
petition after concluding that his petition “was filed in bad faith,” “to prevent the
resolution of the dissolution proceeding” with Isabelle, and “unfairly manipulate[]
the bankruptcy code.”8
~ The court required Sean to surrender his weapons in a provision entered in a November
2017 restraining order.
6 In making its contempt findings, the court noted how Sean had ‘been warned in multiple
court orders to follow the orders of this court” and that “[n]otwithstanding the warnings, [he] filed
almost 500 pages of documents less than two court days before this hearing[,]” with the “vast
majority of the content” of his materials asserting “frivolous claims.”
~‘ Specifically, on August 29, 2018, the court denied Sean permission to file a motion to
modify the parenting plan, a motion for contempt against lsabelle, and a motion “regarding
personal property.”
8 The bankruptcy court summarized how Sean intended to use the bankruptcy code to
disadvantage Isabelle in the dissolution proceedings as follows:
[T]he debtor [Sean] wants to use an asset in which [Isabelle] has a substantial
economic interest to satisfy [lsabelle’s] claims against him, arising out of the
marriage dissolution. While that is egregious under almost any circumstance, it
is made even worse here by the additional facts that: (1) [Isabelle] has occupied
the home and paid the mortgage since 2016; (2) [Isabelle] is exposed to the risk
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No. 78765-9-1/5
In October 2018, the trial court denied Sean’s numerous requests to file
motions to reconsider and/or for a contempt order against Isabelle. The court
stated: “The potential motions either are repetitive of motions that have been
previously denied, or have no merit on their face.”
In November 2018, Sean filed a second notice of appeal challenging
various orders entered in the proceeding between August and October 2018.
In December 2018, the court entered findings and conclusions regarding
financial issues, a final order confirming the arbitration award and assessing
sanctions against Sean, a final dissolution decree, and a final child support order.
The court denied Sean’s motion for a continuance and for a new trial as repetitive
of past motions and denied his other motions as meritless. Sean challenged
these orders in January 2019 in a third notice of appeal.
All of Sean’s notices of appeal are now before us for resolution.
Sean’s appeals challenge the arbitration award and ask us to “reverse all
orders of the trial court.”
Ill
Washington law strongly favors the use of arbitration and our courts
accord substantial finality to arbitration awards rendered in accordance with the
parties’ agreement and chapter 7.04A RCW. Davidson v. Hensen, 135 Wash. 2d
112, 118, 954 P.2d 1327 (1998). Accordingly, judicial review of an arbitration
that she would be unable to take Washington State’s $125,000 homestead
exemption, to which she would be entitled but for this case; and (3) the debtor
didn’t file this case until after the arbitrator involved in the dissolution case
concluded the home should be awarded to [Isabelle].
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No. 78765-9-1/6
award is exceedingly limited. Davidson, 135 Wash. 2d at 119. A court may disturb
an award only on the narrow grounds listed in RCW 7.04A.230(1) and only when
those grounds appear on the face of the award. Westmark Props., Inc. v.
McGuire, 53Wn. App. 400, 402, 766 P.2d 1146 (1989).
In an appeal from an arbitrator’s award, “an appellate court is strictly
proscribed from the traditional full review.” Barnett v. Hicks, 119 Wash. 2d 151, 157,
829 P.2d 1087 (1992). Accordingly, our review of an arbitrator’s award is
confined to a review of the decision by the court that confirmed, vacated,
modified, or corrected that award. Expert Drywall, Inc. v. Ellis-Don Constr., Inc.,
86 Wash. App. 884, 888, 939 P.2d 1258 (1997).
The party seeking to vacate the award bears the burden of proof. Hanson
v. Shim, 87 Wash. App. 538, 546, 943 P.2d 322 (1997).
A
Sean first argues that the arbitrator was partial. He claims that the
arbitrator exhibited bias by refusing to review his evidence and exhibits. This
claim has no merit.
Under RCW 7.04A.230(1)(b)(i), an arbitration award may be vacated if
there has been ‘[e]vident partiality by an arbitrator appointed as a neutral.” Case
law suggests that evident partiality is based on a relationship or circumstance
that raises an inference of bias that the arbitrator has a duty to disclose. ~
Schreifels v. Safeco Inc. Co., 45 Wash. App. 442, 445-46, 725 P.2d 1022 (1986)
(recognizing split as to whether the “evident partiality” standard should constitute
an appearance of bias, actual bias, or the reasonable person standard falling
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No. 78765-9-1/7
somewhere in the middle); S&S Constr., Inc. v. ADC Prors., LLC, 151 Wash. App.
247, 258, 211 P.3d 415 (2009) (a court must ask whether the arbitrator’s
relationship to the parties “creates a reasonable inference of the presence of bias
or the absence of impartiality”).
Here, Sean does not allege any relationship or circumstance that the
arbitrator failed to disclose. Nor does anything on the face of the arbitration
award suggest unfairness or bias in the proceedings. Also, the fact that Sean
agreed to use this arbitrator undercuts his “evident partiality” argument.
B
Sean cites RCW 7.04A.230(1)(c) which provides grounds for vacation if
the arbitrator “refused to consider evidence material to the controversy. . . so as
to prejudice substantially the rights of a party to the arbitration proceeding.” He
claims that the arbitrator refused to consider multiple declarations from “people
attesting Isabelle was making false claims,” and “had substantial anger, drinking,
and mental-health issues.” Because this claim is not supported by the record, we
reject it.
Here, the face of the arbitration award lists 178 documents that the
arbitrator reviewed in the proceeding, including the 13 declarations Sean
submitted to support his positions.9 Additionally, over the span of 18 pages, the
arbitration award “summarized” all of Sean’s arguments relating to his claims
~ Notably, some of the documents before the arbitrator consisted of several hundred
pages. For instance, Sean’s arbitration brief was “approximately 500+ sheets of paper and most
Exhibits [were] printed back-to-back with 2-4 pages per sheet.” His pre-arbitration statement on
financial issues was “approximately 600+ sheets of paper and the Exhibits [were] printed back-to
back with 4 pages to a sheet.”
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No. 78765-9-1/8
against Isabelle on the issue of parenting. The face of the arbitration award does
not exhibit a failure to consider Sean’s evidence.
C
Next, Sean contends that the arbitrator exceeded her authority by
rendering an award with numerous facial legal errors.1° We disagree.
An arbitrator exceeds his or her powers within the meaning of RCW
7.04A.230(1)(d) when the arbitration award exhibits a facial legal error. Broom v.
Morgan Stanley DW, Inc., 169 Wash. 2d 231, 239-40, 236 P.3d 182 (2010). The
facial legal error standard is a “very narrow ground for vacating an arbitral award”
that furthers the “purposes of arbitration” while preventing “obvious legal error.”
Broom, 169 Wash. 2d at 239. Furthermore, the facial legal error standard
does not extend to a potential legal error that depends on the
consideration of the specific evidence offered or to an indirect
sufficiency of the evidence challenge. Courts are not permitted to
conduct a trial de novo when reviewing the award, they “do not look
to the merits of the case, and they do not reexamine evidence.”
“The error should be recognizable from the language of the award.”
Salewski v. Pilchuck Veterinary Hosp., Inc., 189 Wash. App. 898, 904, 359 P.3d
884 (2015) (footnotes and internal quotation marks omitted) (quoting Broom, 169
Wash. 2d at 239; Cummings v. Budget Tank Removal & Envtl. Servs., LLC, 163
Wash. App. 379, 389, 260 P.3d 220 (2011)). Where the arbitration award sets forth
10 Specifically, he claims that the arbitrator erred by (1) refusing to acknowledge
lsabelle’s allegations that he committed domestic violence were false; (2) refusing to analyze
Isabelle’s dishonesty; (3) improperly analyzing the grounds to issue a restraining order against
him; (4) wrongly imposing a 60-month, instead of a 12-month, restraining order; (5) failing to
correct a finding of ‘bad faith” entered in the final orders that was never litigated in the arbitration;
(6) failing to reprimand Isabelle’s counsel for “using highly inflammatory language” and insulting
him; (7) failing to award him “substantially equal” parenting time and improperly analyzing the
statutory factors to impose limitations on his parenting time and decision-making authority; and
(8) dividing the assets and debts inequitably.
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No. 78765-9-119
the arbitrator’s factual findings and conclusions, we consider any issues of law
evident in those findings and conclusions as part of the “face of the award.”
Cummings, 163 Wash. App. at 389.
Here, Sean essentially asks us to address the merits of the arbitration
award, but we decline to look beyond the face of the award. Not only does Sean
fail to identify any facial legal error in the arbitration award, he does not cite a
single page of the 153-page award to support his arguments. Instead, the record
before us demonstrates that the arbitrator resolved all of the parties’ issues
based on the specific facts and evidence in this case. The arbitrator considered,
in great detail, all of Sean’s arguments and, ultimately, rejected them. We
conclude that the arbitration award exhibits no facial legal errors.
In sum, because he has failed to satisfy his burden, we hold that Sean is
not entitled to vacation of the arbitration award under RCW 7.04A.230(1).
IV
Sean contends that all of the orders entered in this case contain error, but
he does so by merely reciting the various claims he raised before the arbitrator
and trial court. An appellate brief must include “argument in support of the issues
presented for review, together with citations to legal authority and references to
relevant parts of the record.” RAP I O.3(a)(6).
Here, Sean fails to cite to any legal authority or to any of the several
dozen orders contained in the record to support his claim of systemic error. We
are not required to scour the record to find support for this claim. In re Estate of
Lint, 135 Wash. 2d 518, 532, 957 P.2d 755 (1998) (declining to scour the record and
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No. 78765-9-I/iC
construct arguments for counsel). Because Sean’s claims of error are
insufficiently briefed, we decline to address them and affirm the trial court’s
orders.
V
Finally, Isabelle seeks an award of appellate fees pursuant to RAP 18.1,
RCW 26.09.140,11 and also on the basis of Sean’s alleged intransigence. Having
considered the arguments set forth by the parties and the record before us, we
exercise our discretion and decline Isabelle’s request for an award of appellate
fees.
Affirmed.12
WE CONCUR:
~I
~ That statute provides, “[ujpon any appeal, the appellate court may, in its discretion,
order a party to pay for the cost to the other party of maintaining the appeal and attorneys’ fees in
addition to statutory costs.” RCW 26.09.140.
12 Sean has filed a document in this appeal (No. 78765-9-I) entitled “Appellant-
Respondent-Father’s Petition/Motion for a Writ of Mandumus Commanding the Trial Court to
Address Issues of Fact, and Request for Relief.” This is an unauthorized brief. RAP 10.1(b).
The brief is stricken. Additionally to the extent Sean still has any motions pending in this court,
we deny them.
Sean has also filed a document in this appeal (No. 78765-9-I) entitled “Fourth Notice of
Appeal.” The purpose of this filng is unclear. If the document seeks permission to amend the
notice of appeal in No. 78765-9-I that permission is denied. If the document seeks permission to
expand the issues in this appeal beyond those identified in appellant’s opening brief, that
permission is denied. If the document seeks other relief, that request is denied.
Sean may commence original actions, commence appeals, or seek discretionary review
under different cause numbers by taking necessary steps to comply with the Rules of Appellate
Procedure and applicable statutes (including the payment of necessary filing fees).
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