Marriage Of Curtis Glavin Nehring And Deborah Katherine Nehring ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
March 17, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
CURTIS GLAVIN NEHRING, No. 52217-9-II
Respondent,
v.
DEBORAH KATHERINE NEHRING, UNPUBLISHED OPINION
Appellant.
LEE, A.C.J. — Deborah Nehring appeals the superior court’s final orders dissolving her
marriage to Curtis Nehring.1 The superior court entered the dissolution based on binding
arbitration. Deborah argues we should reverse the final orders because the arbitration was not
properly recorded and the arbitration order is not supported by substantial evidence. Because
neither of these issues are statutory grounds for vacating an arbitration award, we affirm the
superior court’s orders in this case.
Curtis requests attorney fees for responding to a frivolous appeal. We agree and grant
Curtis’s request for attorney fees.
FACTS
Deborah and Curtis were married for 44 years. Curtis filed a petition for dissolution of the
parties’ marriage. The parties stipulated to binding arbitration. The parties agreed the arbitration
would decide the following issues: (1) the division of property and debts, (2) spousal maintenance,
1
Because the parties have the same last name, their first names are used for clarity. We intend no
disrespect.
No. 52217-9-II
(3) attorney fees, professional fees and costs, and (4) any other unresolved issues within the
pleadings.
Following arbitration, the arbitrator issued a ruling and made the following distribution of
the property associated with the husband’s income and business assets:
15. The Columbia River Bar Pilot Safety Net Program is analogous to an annuity
which will pay Husband at such time as he retires as a bar pilot. It is fair and
equitable that whatever amount Husband receives at the conclusion of his
employment from the Safety Net be equally divided between the parties. This
determination is also related to the fact that Husband will receive considerably
more in Social Security than Wife and because the court declines to award
indefinite support. Each party will be responsible to pay tax on their one-half
share.
....
19. Through his employment as a Columbia River bar pilot, Husband has various
business interests including Saddle Mountain, Inc., Stop Water, LLC and
Columbia River Bar Pilot’s, LLC. During the pendency of the case, Husband
received a payment of $4,387 for Kapok which is no longer operating.
....
22. The Stop Water, LLC shall be awarded to Wife at the time Husband receives
payment for that asset.
23. It is fair and equitable for Wife to be awarded the balance of the Columbia
River Bar Pilot’s, LLC, which relates to a pay out of accounts receivable at the
time Husband departs his employment. The court finds that asset to be valued
at $30,460 at present.
24. Husband’s interest in Saddle Mountain, Inc. is, at present, found to be
$410,000. That asset shall be awarded to Husband exclusively. In allocating
these business interests, it is recognized that Wife may not be able to be
awarded the asset in the traditional sense. Husband will need to, in essence,
hold these in trust for Wife until he is eligible to receive them, at which time
he will provide 100% of Stopwater and CRBP LLC payouts to Wife along with
all necessary documentation.
Third Supplemental Clerk’s Papers (CP) at 1319-21. The arbitrator also made the following
determination regarding maintenance,
26. Husband’s income is determined to be $480,000. Based upon the statutory
facts as set forth in RCW 26.09.090, it is fair and equitable for Husband to pay
spousal maintenance of $13,500 per month. In the event Husband reverts to
half time employment, Husband’s obligation shall be reduced by 50%. This
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No. 52217-9-II
support award shall be secured by life insurance for so long as support is
owing.
27. The court finds that Husband’s support obligation shall be terminated at such
time as he permanently leaves his employment at the Columbia River Bar
Pilots.
Third Suppl. CP at 1322. As to the parties’ outstanding tax debt, the arbitrator found,
8. The parties have substantial debt owing to the federal government for unpaid
taxes. Both parties are expected to enter into payment agreements with the
Internal Revenue Service through their respective professional representatives.
The current amount of the IRS liability exceeds $370,000.
....
20. Regarding the parties’ IRS debt, the only allocation the court can make is that
the parties remain equally responsible for the liability owing. The court further
finds that in the event either party loses their home due to the federal tax
liability or if the asset allocation as provided for herein is frustrated by the
collection efforts of the IRS, it would be a basis to adjust the allocation of
property and/or maintenance as set forth herein.
Third Suppl. CP at 1317, 1320-21. The arbitrator also included a detailed distribution of assets
and liabilities. Based on the detailed property distribution, the husband was awarded 45.3 percent
of the marital assets and the wife was awarded 54.7 percent of the marital assets.
The superior court entered final orders consistent with the arbitrator’s decision. Debbie
filed a motion for reconsideration with the superior court. The superior court denied Debbie’s
motion for reconsideration.
Debbie appeals.
ANALYSIS
Debbie argues that we should vacate the superior court’s final orders and the arbitration
decision underlying the award. Debbie asserts that we should vacate the arbitration award because
the arbitration was not fully recorded, the arbitrator’s decision was not supported by substantial
evidence, and “any terms in the final orders that leave a spouse in an unjust situation is facial legal
error.” Reply Br. of Appellant at 1. We apply the limited standard of review statutorily applicable
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to arbitrations and reject Debbie’s assertion that any allegedly unjust property distribution is facial
legal error. Accordingly, we affirm the arbitration award and the resulting final orders.
A. LEGAL STANDARDS FOR REVIEWING ARBITRATION AWARD
In her opening brief, Debbie argues that we should vacate the final orders and the
underlying arbitration award because the arbitration was not fully recorded and the arbitrator’s
award was not supported by substantial evidence. Debbie only cites to the standards of review we
would apply to a superior court’s dissolution orders following a trial. Debbie does not cite to the
statutory standards for reviewing arbitration awards in the Uniform Arbitration Act, chapter 7.04A
RCW, or the judicially recognized standards for reviewing arbitration awards.
In response, Curtis argues that our review of an arbitration award is extremely limited and
Debbie fails to demonstrate any of the grounds that would support vacating an arbitration award.
Specifically, Curtis asserts that our review is limited to facial legal error. Curtis also asserts that
the parties cannot “stipulate around” the statutory limits of review in a stipulated order for
arbitration. Br. of Resp’t at 19. We agree with Curtis.
As an initial matter, the stipulated order for binding arbitration states, “Each party shall
have the right to appeal the arbitrator’s determination thusly entered on the same basis as if the
judge had rendered the determination after an evidentiary trial.” CP at 266. However, Barnett v.
Hicks makes clear that “[l]itigants cannot stipulate to jurisdiction nor can they create their own
boundaries of review [for arbitrations].” 119 Wn.2d 151, 161, 829 P.2d 1087 (1992). Therefore,
despite the parties’ stipulation, our scope of review is limited to the statutory grounds in the
Uniform Arbitration Act, chapter 7.04A RCW.
Under the Uniform Arbitration Act, judicial review of an arbitration award is extremely
limited because Washington courts accord “substantial finality” to an arbitrator’s decision.
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No. 52217-9-II
Davidson v. Hensen, 135 Wn.2d 112, 118-19, 954 P.2d 1327 (1998). A court may only vacate an
arbitrator’s award based on the statutory grounds listed in RCW 7.04A.230. Westmark Props.,
Inc. v. McGuire, 53 Wn. App. 400, 402, 766 P.2d 1146 (1989) (citing former RCW 7.04.160
(1943), recodified as RWC 7.04A.230).
RCW 7.04A.230(1) provides that an arbitration award may be vacated if:
(a) The award was procured by corruption, fraud, or other undue means;
(b) There was:
(i) Evident partiality by an arbitrator appointed as a neutral;
(ii) Corruption by an arbitrator; or
(iii) Misconduct by an arbitrator prejudicing the rights of a party to the
arbitration proceeding;
(c) An arbitrator refused to postpone the hearing upon showing of sufficient
cause for postponement, refused to consider evidence material to the controversy,
or otherwise conducted the hearing contrary to RCW 7.04A.150, so as to prejudice
substantially the rights of a party to the arbitration proceeding;
(d) An arbitrator exceeded the arbitrator’s powers;
(e) There was no agreement to arbitrate, unless the person participated in
the arbitration proceeding without raising the objection under RCW 7.04A.150(3)
not later than the commencement of the arbitration hearing; or
(f) The arbitration was conducted without proper notice of the initiation of
an arbitration as required in RCW 7.04A.090 so as to prejudice substantially the
rights of a party to the arbitration proceeding.
These grounds must appear on the face of the arbitration award. Westmark Props., 53 Wn. App.
at 402.
We will also vacate an arbitration award if there is facial legal error.2 Broom v. Morgan
Stanley DW Inc., 169 Wn.2d 231, 239, 236 P.3d 182 (2010). The facial legal error standard is a
2
The facial legal error standard is contained in RCW 7.04A.230(1)(d) because an arbitrator
exceeds his or her powers when the arbitration award contains an error of law. Broom v. Morgan,
169 Wn.2d 231, 240, 236 P.3d 182 (2010) (citing former RCW 7.04.160 (1943), recodified as
RCW 7.04.230).
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No. 52217-9-II
very narrow ground for vacating an arbitration award. Broom, 169 Wn.2d at 239. The court has
explained,
When judicial review is limited to the face of the award, the purposes of arbitration
are furthered while obvious legal error is avoided. But courts may not search the
arbitral proceedings for any legal error, courts do not look to the merits of the case,
and they do not reexamine evidence. Despite arguments to the contrary, the facial
legal error standard does not permit courts to conduct a trial de novo when
reviewing an arbitration award.
Broom, 169 Wn.2d at 239. We apply this standard carefully and we only use it to vacate an
arbitration award in rare circumstances. Broom, 169 Wn.2d at 239.
B. ISSUES CHALLENGING THE ARBITRATION AWARD3
1. Recording of Arbitration Proceedings
Debbie argues that certain portions of the arbitration were not recorded per the parties’
agreement. This does not meet any of the defined statutory criteria in RCW 7.04A.230(1). And
because the failure to record certain portions of the arbitration does not appear on the face of the
award, it cannot be a facial legal error. Accordingly, the alleged failure to record certain,
unidentified portions of the arbitration is not a statutory ground for vacating the arbitration award
under RCW 7.04A.230(1).
3
We note that Debbie does not identify, address, or apply the standard for reviewing and vacating
an arbitration award in her opening brief. Generally, we will not consider issues or assignments
of error that are not supported by argument or citation to authority. RAP 10.3(a)(6); Bercier v.
Kiga, 127 Wn. App. 809, 824, 103 P.3d 232 (2004), review denied, 155 Wn.2d 1015 (2005). And
“[p]assing treatment of an issue or lack of reasoned argument is insufficient to merit judicial
consideration.” Holland v. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290, review denied,
136 Wn.2d 1015 (1998). However, here, we exercise our discretion and address whether the issues
that Debbie raised satisfy any of the statutory grounds for vacating an arbitration award.
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2. Substantial Evidence
Debbie argues that the arbitrator’s findings of fact are not supported by substantial
evidence. However, we do not review the evidence supporting an arbitration award. Westmark
Props., 53 Wn. App. at 402. None of the statutory criteria in RCW 7.04A.230(1)(a)-(f) involves
evaluating the evidence underlying the arbitrator’s decision. And under the facial legal standard,
we are precluded from evaluating the merits of the case or reexamining the evidence, both of which
would be required to evaluate Debbie’s claim that the arbitrator’s findings are not supported by
substantial evidence. Broom, 169 Wn.2d at 239. Therefore, lack of substantial evidence cannot
be a facial legal error.
Debbie also argues that Broom and related case law do not address arbitrations in
dissolutions of marriages and, therefore, “it is not legal authority for review of dissolution
arbitrations or, at the very least, is weak authority.” Reply Br. of Appellant at 1. However, RCW
7.04A.030(2) provides that, after July 1, 2006, “this chapter governs agreements to arbitrate even
if the arbitration agreement was entered into before January 1, 2006.” Here, the parties entered
into a stipulated order for binding arbitration on March 21, 2017, well after July 1, 2006.
Therefore, under RCW 7.04A.030(2), the Uniform Arbitration Act applies to the parties arbitration
agreement.
Because the Uniform Arbitration Act applies to this case, case law interpreting and
applying the Uniform Arbitration Act also applies. And because lack of substantial evidence
cannot be facial legal error, Debbie fails to satisfy any of the statutory grounds under RCW
7.04A.230(1) for vacating the arbitration award.
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3. Property Distribution
Debbie argues that in a dissolution, any unjust property distribution is a facial legal error.
However, Debbie does not explain how the terms of the dissolution order render the order facially
erroneous. She only claims “[i]t is plain and obvious that these byzantine final orders are facial
legal error.” Reply Br. of Appellant at 1.
Although the order in this case contains some highly detailed provisions, the terms of those
provisions are clearly set out. And the complexity of the order reflects the complexity of the assets
that are being distributed in the order. Moreover, there is no legal basis for asserting that an order
is unjust simply because it is complicated, let alone that an order meets the facial legal error
standard of review simply because it is complicated. DeHeer v. Seattle Post-Intelligencer, 60
Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities are cited in support of a proposition,
the court is not required to search out authorities, but may assume that counsel, after diligent
search, has found none.”). Accordingly, the argument that the order in this case is facially
erroneous fails.
Debbie also implies that the orders are unjust because they require future litigation and do
not provide her with finality and security. Debbie asserts that Shaffer v. Shaffer, 43 Wn.2d 629,
630-31, 262 P.2d 763 (1953), requires finality in dissolution decrees. However, Shaffer does not
support Debbie’s argument.
In Shaffer v. Shaffer, the trial court awarded the couple’s primary property asset to the
couple as joint owners or tenants in common. 43 Wn.2d at 629. The Supreme Court determined
that the parties “have a right to have their respective interests in their property after they are
divorced, definitely and finally determined in the decree which divorces them[,]” and the trial court
failed to do this by essentially leaving the property as community property. 43 Wn.2d at 631. The
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Supreme Court reversed the trial court because the trial court failed to perform its statutory
responsibility to divide property in a dissolution. 43 Wn.2d at 630-1. Shaffer does not stand for
the proposition that a trial court’s dissolution is unjust or improper if it does not provide absolute
finality for the parties. Rather, Shaffer simply requires that the trial court perform its statutory
duty to actually determine the parties’ interests in the property subject to distribution. 43 Wn.2d
at 630-31.
Here, there is no facial legal error because the arbitrator, and the subsequent final orders
entered by the superior court, actually determined the parties’ interest in all of the distributed
properties. Although the actual amount and time of distribution of that interest will not be
determined until some point in the future, that is not the same as the trial court simply refusing to
distribute property and leaving it as joint community property. Accordingly, Debbie’s argument
that the lack of finality in the order is facial legal error also fails.
Moreover, dissolutions, distribution of property, and maintenance are all determined by
clear statutory criteria. RCW 26.09.080 requires a just and equitable division of property, it does
not require finality. Nothing on the face of the superior court’s order or the arbitration award
demonstrates that the arbitrator failed to consider the statutory criteria required by RCW 26.09.080
or made an unjust award of property in violation of RCW 26.09.080.
Similarly, maintenance is determined by RCW 26.09.090 and requires an award of
maintenance as the court, or in this case, arbitrator, deems just. It does not require maintenance
for a set period of time or for a set amount. And nothing in RCW 26.09.090 prohibits the
termination of maintenance when a spouse’s employment terminates. Accordingly, the
maintenance provision in the final orders is not unjust on its face and it is not a facial legal error.
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Debbie has failed to demonstrate that there is any facial legal error in the arbitration award
or the superior court’s order adopting the arbitration award. Therefore, Debbie has failed to show
a statutory basis under RCW 7.04A.230(1) for vacating the arbitration award. Accordingly, we
affirm the arbitration award and the superior court’s orders.
ATTORNEY FEES ON APPEAL
Curtis argues that he should be awarded attorneys’ fees on appeal as sanctions for
responding to Debbie’s frivolous appeal. RAP 18.9(a) authorizes this court to order a party who
files a frivolous appeal to pay attorney fees to the opposing party. “‘[A]n appeal is frivolous if
there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid
of merit that there was no reasonable possibility of reversal.’” Granville Condo. Homeowners
Ass’n v. Kuehner, 177 Wn. App. 543, 557-58, 312 P.3d 702 (2013). We award Curtis attorney
fees for responding to Debbie’s frivolous appeal.
Here, Debbie did not address the appropriate statutory standard for vacating an arbitration
award in her opening brief, she raised issues that cannot satisfy the standard for facial legal error,
and her final argument—that a complicated order must be unjust and facial legal error—is devoid
of any merit and has no reasonable chance of resulting in a reversal. Therefore, Debbie’s appeal
is frivolous.
Accordingly, we affirm the superior court’s final orders in this case, and we award Curtis
attorney fees on appeal.
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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.
Lee, A.C.J.
We concur:
Worswick, J.
Cruser, J.
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