Marriage Of Marialyce Esser, V. Gerald Esser ( 2021 )

Filed
Washington State
Court of Appeals
Division Two
August 10, 2021
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Marriage of: No. 53648-0-II
MARIALYCE ESSER,
Appellant,
UNPUBLISHED OPINION
and
GERALD JEROME ESSER,
Respondent.
SUTTON, J. — Marialyce Esser (Mari) appeals the trial court’s order denying her motion to
dismiss this dissolution action filed by Gerald Esser.1 Mari argues that (1) the court erred by
proceeding to trial without conducting a Gannon2 pretrial hearing, (2) the court erred by excluding
lay witness testimony regarding whether Gerald was incapacitated, (3) the record is not sufficient
to establish that the trial court articulated an adequate basis for finding that payments by Gerald’s
children on his behalf were a community debt, and (4) she is entitled to an award of appellate
attorney fees and costs.3 Gerald argues that the doctrine of abatement applies such that this appeal
1
We refer to the parties by their first names and intend no disrespect.
2
In re Marriage of Gannon, 104 Wn.2d 121, 702 P.2d 465 (1985) (holding that a special hearing
is necessary to determine whether marriage dissolution is in the best interest of an incompetent
spouse).
3
Mari also argues that we should remand this matter to a new judge. We do not reach this issue.
No. 53648-0-II
must be dismissed and he is entitled to an award of reasonable appellate attorney fees and costs as
Mari’s motion for discretionary review and this appeal are both frivolous.
We hold that the doctrine of abatement does not apply. Regarding Mari’s arguments, we
hold that (1) whether a Gannon hearing was required was questionable, and even assuming one
was required, the trial court held an adequate hearing during trial and properly applied Gannon,
(2) the trial court properly excluded lay witness testimony regarding whether Gerald was
incapacitated, and (3) the court articulated an adequate basis based on the record for its
determination that the payments by Gerald’s children were a community debt. We (4) deny Mari’s
request for appellate attorney fees and costs and grant Gerald’s request for reasonable appellate
attorney fees and costs because Mari’s motion for discretionary review and this appeal are both
frivolous. We affirm the trial court’s decree of dissolution.
FACTS
Mari and Gerald Esser were married on June 11, 1989, and separated in September 2016.
In 2014, Gerald was diagnosed with Alzheimers, and he and Mari agreed to stay married during
his disease. Mari and Gerald then began having heated arguments.
In September 2016, Mari and Gerald got into a physical altercation. Later at trial, Mari
testified that she told Gerald she was leaving because she was afraid if she stayed, he would kill
her. Gerald’s neighbor testified that Gerald left the house and went to the neighbor’s house, where
he told his neighbor that he could not go back to the house because he was afraid he would be
killed, and he requested the neighbor call the police. The neighbor called the police, who then
arrested Mari.
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A. GERALD’S CHILDREN SOUGHT LEGAL PROTECTION, A GUARDIAN WAS APPOINTED, AND
CHANGES WERE MADE TO GERALD’S WILL
After the physical altercation, Gerald moved in with his daughter for a period of time.
Gerald moved back into the house after having assurance that Mari would not be there, and his son
then lived with him for a year. Meanwhile, Gerald’s daughter and son attempted, without success,
to obtain a vulnerable adult protection order against Mari to protect Gerald. In 2016, a Guardian
Ad Litem (GAL) was appointed for Gerald upon Mari’s request; Gerald signed a durable power
of attorney for health care and durable power of finances. Mari’s stated purpose for seeking the
GAL was to maintain the finances for herself and Gerald and to maintain control over Gerald’s
healthcare decisions. Gerald said he wanted a divorce from Mari.
B. GERALD FILED FOR DISSOLUTION
Mari filed a petition for legal separation in December of 2016. In January 2017, the parties
mediated and reached a settlement regarding the separation. The GAL stated that Gerald was
“sufficiently competent” and had the “requisite capacity” to understand and sign the settlement
agreement. Clerk’s Papers (CP) at 13. Mari and a bookkeeping services company were appointed
co-attorneys-in-fact and were obligated to provide monthly accountings. The guardianship action
was subsequently dismissed.
In August 2017, Gerald filed a petition for dissolution. Gerald was not incapacitated when
he filed this petition. Mari did not respond. And Mari failed to produce the monthly financial
reports that were required of her.
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C. A COURT-APPOINTED LITIGATION GAL WAS APPOINTED
In March 2018, at Mari’s request, the trial court appointed a litigation guardian ad litem
(LGAL) for Gerald. The LGAL was ordered to “investigate and make a confidential report”
regarding Gerald’s physical and/or mental health conditions, and whether these affected his ability
to make informed choices regarding the dissolution litigation. CP at 525. The LGAL reported
that Gerald’s dementia was mild in November 2016, but by May 2018, Gerald suffered from
chronic progressive cognitive dysfunction and could not make medical, financial, or personal
decisions.
In June 2018, Mari filed a motion to expand the duties of the LGAL “to include full
decision-making authority on behalf of Gerald Esser with respect to all contested issues in this
case.” CP at 44. She also requested the case be set for trial. The court granted this motion.
The trial court found Mari in contempt numerous times for discovery violations and for her
continuing failure to produce the required financial reports. The trial court sanctioned Mari after
she failed to fully comply with the court’s discovery orders, and it warned her that she could be
limited in her evidence at trial.
D. MARI REQUESTED A SPECIAL HEARING UNDER GANNON RIGHT BEFORE TRIAL
Two weeks before trial, Mari filed a motion to dismiss the case, arguing that Gerald and
the LGAL had failed to follow the requirements of Gannon, which requires a special hearing to
determine whether dissolution would be in Gerald’s best interest. The trial court denied this
motion as untimely but ruled that the issue would be addressed at trial. Mari informed the court
that she intended to bring a preliminary motion to determine whether the dissolution was in
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Gerald’s best interest. The court agreed that it could be determined as a preliminary motion or
motion in limine at trial.
E. MARI SOUGHT DISCRETIONARY REVIEW AND A STAY OF TRIAL DUE TO THE GANNON ISSUE
Three days before trial was set to begin, Mari sought discretionary review with us. The
next day, Mari moved to stay the trial pending our review, which the trial court denied. She then
requested we stay the trial. In response to Mari’s motion for discretionary review, Gerald argued
that discretionary review was moot and a waste of judicial resources as trial had not concluded.
Thus, he requested attorney fees and costs for having to respond to a frivolous motion for
discretionary review. We denied Mari’s motion to stay the trial. The case was tried to the bench
starting June 20, 2019.
F. THE TRIAL BEGAN AND THE COURT LATER RULED ON THE GANNON ISSUE
The trial began with a discussion of Gannon and whether dissolution was in Gerald’s best
interest. Mari argued that her due process rights were being violated because the court was
required to hold a Gannon hearing prior to trial, and Gerald argued that whether the court could
proceed to trial without this pretrial hearing was moot. The trial court determined that resolution
of this issue would be best determined in the context of the trial. The court ruled that Gerald, as
the petitioner for dissolution, had the burden of proving by clear, cogent, and convincing evidence
that dissolution was in his best interest.
The parties presented evidence regarding the Gannon issue. The trial court heard testimony
regarding the domestic violence issues between the parties, as well as testimony that Mari was not
properly caring for the community assets, nor providing for Gerald’s health care. Gerald filed the
petition for dissolution before he was deemed incompetent, unlike the petitioner in Gannon whose
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No. 53648-0-II
petition was filed on his behalf after he was determined incompetent; he argued that therefore, he
intended to proceed with the dissolution and that it was in his best interest.
After Gerald rested his case, Mari filed a motion for judgment of dismissal on the merits.
She argued that Gerald failed to meet his burden under Gannon of showing that dissolution was in
his best interest. That same day, Mari filed a motion for reconsideration of the court’s denial of
her initial motion to dismiss. The trial court denied the motion for judgment of dismissal on the
merits.
Following the conclusion of trial, the trial court found that dissolution was in Gerald’s best
interest. The court stated:
I think based on the evidence that the court has heard so far, there is clearly enough
to continue forward with the trial and that it is in the best interest of [Gerald] based
on the domestic violence the court has heard and the need for assets in order to, for
him to have availability of those assets to live on.
Verbatim Report of Proceedings (VRP) at 463.
G. THE COURT EXCLUDED A LATE-DISCLOSED EXPERT AND LAY TESTIMONY ABOUT GERALD’S
DEMENTIA
On the fourth day of trial, Mari sought to call an expert witness whom she had not
previously disclosed. The trial court excluded the expert witness’s testimony because Mari had
failed to disclose this expert witness. Throughout the trial, Mari then sought to elicit testimony
from lay witnesses regarding Gerald’s dementia symptoms. Mari asked a managing broker who
previously worked with Gerald about his experiences with Gerald, and his impression about
Gerald’s ability to work on real estate issues over time and whether his ability had diminished.
And Mari attempted to testify about her own observations of Gerald and Gerald’s family members’
observations of his “infirmities.” VRP at 701.
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The trial court excluded lay witness testimony regarding Gerald’s mental state because
Mari had no expert testimony to corroborate the proffered lay witnesses’ testimony about Gerald’s
mental condition and symptoms. The court also ruled that evidence Mari sought to offer regarding
Gerald’s mental condition at the time he filed the petition for dissolution was not relevant:
“[w]hether he was incapacitated before I don’t find relevant to the issue of is it in his best interest
because the court makes that decision based on the fact that he’s incapacitated now.” VRP at 699.
H. THE COURT FOUND THAT THE GUARDIANSHIP AND ASSISTED LIVING EXPENSES PAID FOR BY
GERALD’S CHILDREN WERE A COMMUNITY DEBT AND ORDERED HIS CHILDREN TO BE
REIMBURSED FOR THESE PAYMENTS
The trial court awarded Mari all the community properties except one. The court ordered
that one of the community properties be sold and the proceeds used to pay certain community and
separate debts, including debts for Gerald’s guardianship fees and assisted living costs, with the
remainder being divided between the parties. The court relied on Gerald’s children’s testimony
that they paid for Gerald’s guardianship fees in the amount of $36,513.95 and assisted living costs
in the amount of $66,951.34, as well as various additional expenses in the amount of $4,906.17,
for a total payment of $108,371.46. Both children requested reimbursement; Gerald also requested
this in his trial brief and in his closing statement.
Mari did not object to or make any argument as to the trial court’s finding that these
payments made on behalf of Gerald were a community debt.
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No. 53648-0-II
I. THE COURT ENTERED THE FINAL DECREE AND DENIED RECONSIDERATION4
The trial court entered its final decree of dissolution on August 22, 2019. Mari’s counsel,
Denton, objected, arguing that she was not ready for entry of the final orders.
Denton filed an incomplete motion for reconsideration after the ten-day deadline had
passed. The next week, Denton also filed a motion asking the trial court to reconsider its entry of
a final order over her objection. Denton argued for the first time that the community should not
be required to reimburse Gerald’s children.
Once final orders were entered post-trial, we converted the discretionary review to an
appeal by right. Order Converting Notice of Discretionary Review to a Notice of Appeal (Sept.
18, 2019). Gerald renewed his request for attorney fees and costs. We denied the motion without
prejudice and held that Gerald could renew his request in his appellate brief. Gerald died
December 6, 2019, while this appeal was pending.
ANALYSIS
I. ABATEMENT
Gerald’s counsel argues that we cannot grant Mari’s requested relief because Gerald died
while this appeal was pending. We disagree.
A dissolution decree may be vacated upon the death of a party, thereby abating, or ending,
the action. In re Marriage of Fiorito, 112 Wn. App. 657, 662, 50 P.3d 298 (2002). If a party on
appeal dies while the appeal is pending in a dissolution proceeding, and the other party is
4
Mari does not assign error to any of the trial court’s findings of fact, so they are verities on appeal.
Herring v. Pelayo, 198 Wn. App. 828, 833, 397 P.3d 125 (2017).
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No. 53648-0-II
challenging the property provisions of a final divorce decree, abatement does not apply. In re
Marriage of Tulleners, 11 Wn. App. 2d 358, 368, 453 P.3d 996 (2019).
Here, because this case is on appeal and Mari is challenging a decree of dissolution that
includes a division of property, the rule of abatement does not apply. Thus, Gerald’s argument
fails.
II. GANNON HEARING WAS HELD
Mari argues that the trial court erred by proceeding to trial without first conducting a
pretrial Gannon hearing.5 We hold that whether a Gannon hearing was required here is
questionable, but even assuming one was required, the trial court conducted a Gannon hearing
during trial and correctly applied Gannon after considering the evidence at trial.
A court is required to appoint a GAL “[w]hen an incapacitated person is a party to an
action.” RCW 4.08.060. The trial court also has inherent authority to appoint a GAL for a litigant
in a civil matter upon a finding of incompetency. Vo v. Pham, 81 Wn. App. 781, 784, 916 P.2d
462 (1996). In Gannon, the parties were legally separated and the wife sought separate spousal
maintenance. At the time Gannon was decided, most courts around the country would not allow
a guardian to seek dissolution on behalf of an incompetent person. 104 Wn.2d at 123. Our
Supreme Court stated that
Generally, a guardian should not determine this question for the
incompetent. However, there may be circumstances in which a court may authorize
a general guardian or a GAL to seek a dissolution. Unless this course of action is
available, the competent party is vested with absolute, final control over the
marriage. This is not equitable. The relevant situations in which such authorization
may be appropriate are potentially so varied that we do not attempt to enumerate
them here. In such situations the court’s primary consideration must be the best
5
Mari does not challenge the trial court’s finding that dissolution was in Gerald’s best interest.
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No. 53648-0-II
interests of the ward, although the court must also bear in mind possible legal
obligations to a spouse.
Gannon, 104 Wn.2d at 124 (internal citations omitted).
In cases in which the guardian or GAL believes a dissolution to be in the
best interests of the incompetent ward, such authority must be sought specifically
by a special petition for that purpose. The court must then hold a hearing to obtain
evidence of what action is in the best interests of the ward. The discretion of the
trial court will test these matters, again with great emphasis upon the interests of
the ward and the necessities and interests of the competent spouse.
Gannon, 104 Wn.2d at 125.
Mari, who raised the Gannon issue only two weeks before trial, argues that our Supreme
Court held in Gannon that the guardian must file a special petition in every dissolution case in
which one of the parties has a guardian appointed by the court, and the court must hold a pretrial
Gannon hearing. We disagree. Gannon provides that a trial court may allow a guardian to pursue
a dissolution on behalf of a person who is incapacitated only when the court finds it is in the best
interest of that person to pursue dissolution, taking into consideration the competent spouse’s legal
obligations. 104 Wn.2d at 125.
Further, whether a Gannon hearing was required here is questionable. In this case, Gerald
filed the petition for dissolution before he was deemed incompetent, unlike the petitioner in
Gannon whose petition was filed on his behalf after he was determined incompetent. The Gannon
procedure applies where a guardian seeks to petition for dissolution on behalf of a ward deemed
incompetent in order for the court to make a preliminary determination as to whether the
dissolution should proceed because it is in the ward’s best interest. 104 Wn.2d at 125. Here,
Gerald’s intentions to seek dissolution were clear before he became incompetent.
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Even assuming a Gannon hearing was required, the trial court held one concurrently with
the trial. We are not persuaded by Mari’s argument that there is a strict timing required for when
a court must hold a Gannon hearing. Thus, we hold that even if a Gannon hearing was required
here, the trial court did hold a Gannon hearing and properly applied Gannon to the facts of this
case.
III. THE COURT PROPERLY EXCLUDED LAY WITNESS TESTIMONY OF GERALD’S INCAPACITY
Mari argues that the trial court erred by excluding evidence regarding Gerald’s incapacity
at the time he filed the petition for dissolution. We hold that the lay witness testimony of Gerald’s
incapacity was not relevant, and thus, the trial court properly excluded it.
We will reverse a trial court’s evidentiary rulings only upon a showing of abuse of
discretion. Bengtsson v. Sunnyworld Int’l, Inc., 14 Wn. App. 2d 91, 99, 469 P.3d 339 (2020). “A
trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362(1997). Further, even if a trial court’s evidentiary rulings were erroneous, the appellant must also
show that the error was prejudicial. “Error will not be considered prejudicial unless it affects, or
presumptively affects, the outcome of the trial.” Brown v. Spokane County Fire Prot. Dist. No. 1,
100 Wn.2d 188, 196, 668 P.2d 571 (1983).
Relevant evidence is generally admissible, while irrelevant evidence is generally
inadmissible. ER 402. Evidence is relevant if it has “any tendency to make the existence of any
fact that is of consequence to the determination of the action more probable or less probable than
it would be without the evidence.” ER 401.
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A lay witness may testify as to his or her opinions only if they are “(a) rationally based on
the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue, and (c) not based on scientific, technical, or other specialized
knowledge.” ER 701. ER 702 provides that “[i]f scientific, technical, or other specialized
knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, training, or education, may testify thereto in
the form of an opinion or otherwise.” Under ER 702, specialized knowledge or experience is
required to discern whether Gerald had an incapacity.
Here, the trial court did not allow Mari’s lay witnesses to testify about Gerald’s incapacity
and related behavior because it ruled that the testimony was irrelevant without corroboration by
expert testimony. The court also excluded Mari’s expert witness testimony for late disclosure,
which ruling Mari does not challenge on appeal. The court ruled that it could not determine
Gerald’s incapacity based on the lay witness testimony alone.
A reasonable lay person with general experience does not have knowledge from which to
rationally diagnose a person’s incapacity. The court’s exclusion was proper because the lay
witnesses could not opine as to Gerald’s mental condition in the absence of corroborating expert
testimony. ER 701, 702. Therefore, their testimony was not relevant. ER 401.
Because the evidence from the lay witnesses was not relevant without expert testimony,
we hold that the trial court properly excluded the lay witnesses’ testimony regarding whether
Gerald was incapacitated at the time he filed his petition for dissolution.
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IV. THE COURT ARTICULATED AN ADEQUATE BASIS FOR FINDING THAT
PAYMENTS BY GERALD’S CHILDREN ON HIS BEHALF WERE A COMMUNITY DEBT
Mari argues that based on the record, the trial court erred by ordering her to pay $47,862.70
to Gerald’s children without articulating an adequate basis for its determination that this amount
was a community debt.6 We hold that the record is sufficient for our review and the trial court did
articulate an adequate basis when it characterized the payments by Gerald’s children in the correct
amount of $108,371.46 as a community debt.
In a dissolution proceeding, the findings of fact and conclusions of law must be sufficient
“to suggest the factual basis for the ultimate conclusions.” Lawrence v. Lawrence, 105 Wn. App.
683, 686, 20 P.3d 972 (2001); CR 52. “A court is not required to make findings in regard to every
item of evidence introduced in a case, but it is necessary that it make findings of fact concerning
all of the ultimate facts and material issues.” Wold v. Wold, 7 Wn. App. 872, 875, 503 P.2d 118(1972).
Here, the trial court ordered that “the following shall be paid prior to the division of the net
proceeds to the parties: . . . [a]ny and all care and living expenses incurred for [Gerald] by [Gerald’s
children] for July 2019 and August 2019.” CP at 327. The court’s determination was based on
testimony by Gerald’s children that they paid the guardianship and assisted living expenses for
him after Mari failed to adequately provide for his needs. The court was not required to enter a
written finding for every single issue. Wold, 7 Wn. App. at 875.
6
Mari claims the total payment amount is $47,862.70, but that is not correct as written in the final
dissolution order. See CP at 326.
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We hold that based on this record, the trial court articulated an adequate basis for this
finding.
V. APPELLATE ATTORNEY FEES AND COSTS
Both parties request an award of attorney fees and costs on appeal, and Gerald also requests
fees for having to respond to the motion for discretionary review. We deny Mari’s request and
grant Gerald’s request for reasonable appellate attorney fees and costs because the motion for
discretionary review and the appeal are both frivolous.
RAP 18.1(a) authorizes a party to recover reasonable attorney fees and costs so long as the
party “request[s] the fees or expenses.” The party must do so in a separate section of his or her
opening brief. RAP 18.1(b).
We may award attorney fees and costs based on the parties’ financial resources. RCW
26.09.140. “In considering the financial resources of both parties, the appellate court balances the
needs of the requesting party against the other party’s ability to pay.” In re Marriage of Kaplan,
4 Wn. App. 2d 466, 488, 421 P.3d 1046 (2018).
We may order a party who files a frivolous appeal “to pay terms or compensatory damages
to any other party who has been harmed.” RAP 18.9(a). “Appropriate sanctions may include, as
compensatory damages, an award of attorney fees and costs to the opposing party.” Yurtis v.
Phipps, 143 Wn. App. 680, 696, 181 P.3d 849 (2008). An appeal is frivolous where “it presents
no debatable issues and is so devoid of merit that there is no reasonable possibility of reversal.”
Carrillo v. City of Ocean Shores, 122 Wn. App. 592, 619, 94 P.3d 961 (2004). We consider the
record as a whole to determine whether an appeal is frivolous. In re Marriage of Tomsovic, 118
Wn. App. 96, 110, 74 P.3d 692 (2003). The fact that an appeal is ultimately unsuccessful is not
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dispositive of whether it is frivolous, and we resolve doubts in favor of the appellant. Tomsovic,
118 Wn. App. at 110.
There is no evidence in the record to establish that Mari is unable to afford paying for her
attorney costs and fees. Mari received all of the community properties except one. Mari asserts
that she has filed for bankruptcy, but there is nothing in the record to support this assertion.
Therefore, we deny Mari’s request for attorney fees and costs.
We award Gerald his reasonable appellate attorney fees and costs because Mari’s motion
for discretionary review and this appeal are entirely devoid of merit. There is no case law to
support Mari’s assertion that a special petition was required in this case. And even if a Gannon
hearing were required here, the trial court did hold a Gannon hearing on the issue as part of the
trial. Mari’s other arguments are similarly devoid of merit, and there is no reasonable chance of
reversal. Carrillo, 122 Wn. App. at 619.
Accordingly, we grant Gerald’s request for an award of reasonable appellate attorney fees
and costs for responding to the motion for discretionary review and this appeal.
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CONCLUSION
We affirm the trial court’s decree of dissolution, grant Gerald’s request for an award of
reasonable appellate attorney fees and costs, and deny Mari’s request.
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.
SUTTON, J.
We concur:
LEE, C.J.
WORSWICK, J.
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