Tamara Lee v. Daniel Bunch

FILED
COURT OF APPEALS
R8 fO li
IN THE COURT OF APPEALS OF THE STATE OF WASHING
2015 JUN - 4 AM 8: 36
DIVISION II
Sir E 0 _ WASHINGTON
In re the Matter of the Marriage of: No. 45810 -1 - II
BY
DANIEL E. BUNCH,
Respondent,
v.
TAMARA LEE, UNPUBLISHED OPINION
Appellant,
TAMARA LEE and EVA CARLETON, ,
Appellants,
v.
DANIEL E. BUNCH,
Respondent.
MELNICK, J. — Tamara N. Lee and her attorney, Eva Carleton, appeal the trial court' s
orders denying Lee' s contempt motion and granting Daniel E. Bunch' s motion for CR 11 sanctions
against Carleton. Because the contempt motion lacked a proper evidentiary basis, we affirm in
part the order denying that motion. We hold, however, that the trial court erred by finding that
Lee' s failure to prove that Bunch has outstanding financial obligations affirmatively demonstrates
that those obligations have been satisfied and we reverse that part of the order. Because CR 11
sanctions for bringing the contempt motion were appropriate, we affirm the order imposing
We Lee Carleton' for attorney fees on appeal because they have not
sanctions. deny and s request
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substantially prevailed, and we deny Bunch' s request for appellate fees and costs because the
appeal is not wholly frivolous.
FACTS
Lee and Bunch married in 2003 and separated in 2011. After Bunch sought dissolution of
the marriage, the trial court entered a temporary child support order for their five- year -old daughter
on November 9, 2012. The temporary order required Bunch to pay $720. 05 per month, 78 percent
expenses, 76 of uninsured medical expenses. The
of day care and educational and percent
temporary order directed Bunch to make the support payments to the Division of Child Support
DCS) and to make separate payments for child care costs within five days of receiving receipts
from Lee.
On May 24, 2013, following trial, the court entered a decree of dissolution and a final child
support order. This order required Bunch to pay $ 300 a month in child support plus his
proportionate share of work -related, licensed day care jointly agreed to by the parties, and it
required Bunch to make all support payments to DCS. The order did not address back support.
The dissolution decree required Bunch to pay $ 400 a month in maintenance for eight months. As
part of the property settlement, the dissolution decree also awarded Lee a percentage of Bunch' s
retirement pension and TSP ( Thrift Savings Plan) account.
On August 16, Lee filed a " motion and declaration to show cause re contempt" against
Bunch, alleging that he failed to pay $ 3, 654. 68 in child support, child care, medical expenses,
maintenance, and retirement payments between November 2012 and July 2013. Clerk' s Papers
CP) at 78. Both Lee and Carleton signed the purported declaration below a provision stating,
The above statements are Sworn to and Subscribed as being true and accurate to the best of my
knowledge and information this 15th day of August, 2013." CP at 84. The attached exhibits
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included copies of administrative regulations, handwritten and unsigned receipts, checks, court
orders, correspondence, and other documents.
On August 19, counsel for Bunch asked Carleton to withdraw the motion for contempt
because it was inappropriate and baseless. Counsel pointed out that the supporting " declaration"
did not comply with the standards required by statute and court rule. CP at 191. When Carleton
did not withdraw the contempt motion, Bunch' s attorney moved for CR 11 sanctions against her.
He argued that the purported declaration and the attachments sought to introduce information over
which Carleton had no personal knowledge and that they were not filed under penalty of perjury.
Bunch attached a DCS record showing that he was current in his child support obligations from
December 2012 to August 2013.
On September 19, Lee filed a " motion/ declaration" for an order to show cause regarding
contempt. CP at 209. Lee stated that Bunch owed $ 3, 210. 94 for child support, educational
support, pension payments, and other obligations incurred between November 2012 and August
2013. The " motion/ declaration" was signed by both Lee and Carleton under a provision stating,
The above statements are Sworn to and Subscribed as being true and accurate to the best of my
knowledge and information this 19th day of September, 2013." CP at 218. This pleading
described advice from a DCS caseworker and referred to the attached exhibits, most of which had
been attached to the initial motion. In opposing this motion, Bunch filed DCS documentation
showing that he had met his support obligations through September 2013.
When the parties' motions came before the court on September 27, the trial court granted
Bunch' s motion to dismiss the hearing based on Carleton' s failure to follow procedure in
presenting her motion. In its order, the trial court struck Lee' s motion for contempt but ruled that
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she could refile it " as appropriate." CP at 407. The court also continued Bunch' s motion for CR
11 sanctions.
Lee filed another " motion/ declaration" for contempt on October 4. CP at 409. In this
pleading she alleged that Bunch was delinquent for child support, child care, educational, and
medical expenses of $2, 031. 86 incurred between November 1, 2012, and August 31, 2013, and
that he owed pension payments totaling $ 1, 179. 08. Lee requested interest and attorney fees as
well. Both Lee and Carleton signed the " motion/ declaration" after a statement again providing,
The above statements are Sworn to and Subscribed as being true and accurate to the best of my
knowledge and information this 19th day of September, 2013." CP at 419. The
motion/ declaration" again referred to the DCS caseworker' s advice and the exhibits that followed.
At oral argument on November 14, Lee acknowledged that Bunch had made the pension
payments and withdrew that part of her motion. Lee focused on the allegation that Bunch still
owed her for child care and kindergarten expenses incurred from November 2012 through August
2013. 1 When the trial court asked why these costs had not been addressed during trial, Lee replied
that the arrearages were not as apparent then as they became later.
Bunch responded that per the DCS documentation, he was current on child support and
maintenance, and that the only ongoing dispute concerned his child care obligation. RP 28. He
added that Lee had not proved the obligation she alleged, that her figures kept changing, and that
her documentation was in " complete disarray." Report of Proceedings ( RP) ( Nov. 14, 2013) at 28.
He argued further that Lee had provided no proof that her child care expenses were work -related
or justified, two conditions required for reimbursement under the law and the final support order.
1 Lee did not refer to any outstanding obligations for medical expenses during the hearing.
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Bunch argued for CR 11 sanctions based on the following: Carleton signed materials as a
witness; many of the materials were not based on Lee' s or Carleton' s personal knowledge; none
of the materials was signed under oath or penalty of perjury; there was no proof that the child care
sums requested were work -related; and the pension obligation was not enforceable through a
contempt motion.
The trial court ruled that Bunch' s child support, maintenance, and retirement payments
were current. The court denied the motion for contempt on these matters. The court then observed
that the only dispute focused on " day care /child care /kindergarten" expenses. RP (Nov. 14, 2013)
at 59. The court turned to a discussion of Lee' s motion:
What I focused my attention on is the submission from Ms. Lee .... That
is probably two inches of material with tabs and the color chart that we have been
talking about at tab two, but it is entitled Motion/Declaration for an Order to Show
Cause re Contempt, or, in the alternative, Motion to Compel Petitioner to Pay and
Motion for Judgment and Motion for Attorney' s Fees and Other Sanctions. It is
signed by Ms. Carleton, as attorney for Tammy Lee, but not by her. There is no
bar number, and it is signed by Tamara Lee as respondent.
Above both of those signatures is the following: " The above statements are
sworn to and subscribed as being true and accurate to the best of my knowledge
and information this 19th day of September 2013."
The materials that follow have absolutely no evidentiary value. That is not
a declaration. There is a specific statutory jurat that is required to eliminate the
need for a sworn affidavit, and that form is not followed in these materials, and,
consequently, the exhibits that were submitted, other than copies of court orders,
which I take judicial notice of, are inadmissible hearsay. That means, there' s no
evidence upon which to base a finding of contempt against Mr. Bunch for this child
care /day care /kindergarten request.
RP ( Nov. 14, 2013) at 60 -61.
Accordingly, the trial court denied Lee' s motion for contempt and granted Bunch' s request
for CR 11 sanctions. The trial court imposed sanctions primarily because the motion for contempt
lacked factual support and because Carleton had acted as a witness in bringing and arguing the
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motion. The trial court ordered Carleton to pay sanctions of $1, 040 based on the time required for
the day' s hearing.
The trial court entered written orders denying the motion for contempt, awarding CR 11
sanctions, and denying reconsideration. Lee and Carleton now appeal those orders.
ANALYSIS
I. CONTEMPT ORDER
We review a trial court' s decision in a contempt proceeding for abuse of discretion. Weiss
v. Lonnquist, 173 Wn. App. 344, 363, 293 P.3d 1264, review denied, 178 Wash. 2d 1025 ( 2013). The
sanctions imposed for contempt will not be disturbed absent a clear showing of abuse. Yamaha
Motor Corp. v. Harris, 29 Wn. App. 859, 866, 631 P.2d 423 ( 1981). A court abuses its discretion
when its decision is based on untenable grounds or made for untenable reasons. Weiss, 173 Wn.
App. at 363.
Lee sought an order holding Bunch in contempt for his failure to comply with the
temporary and final support orders. Disobedience of a court order is grounds for a contempt
sanction. RCW 7. 21. 010, . 020; see also RCW 26. 18. 050( 1) ( party may initiate contempt action
when obligor fails to comply with support or maintenance order). On appeal, Lee argues that the
trial court abused its discretion by finding, due to the deficiencies in her pleadings, that there was
no basis to hold Bunch in contempt.
The civil rules provide that motions may be supported by affidavits. CR 7( b)( 4). An
affidavit is a declaration of facts that is sworn to by the declarant before an officer authorized to
administer oaths. State v. Forest, 125 Wn. App. 702, 706, 105 P.3d 1045 ( 2005). An unsworn
declaration may be substituted for an affidavit as long as it complies with RCW 9A. 72. 085. GR
13. An unsworn declaration is permissible under the statute if it ( 1) recites that it is certified or
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declared to be true perjury; ( 2) is subscribed by the person; ( 3)
by the person under penalty of
states the date and place of its execution; and ( 4) states that it is so certified or declared under the
laws of the state of Washington. RCW 9A.72. 085; Brackman v. City of Forest Park, 163 Wn.
App. 889, 896, 262 P.3d 116 ( 2011).
The contempt " motion/ declaration" before the court stated that "[ t] he above statements are
Sworn to and Subscribed as being true and accurate to the best of my knowledge and information
this 19th day of September, 2013." CP at 419. The assertion that the statements were sworn did
not make them so. See RCW 5. 28. 010 ( oath must be administered by court, judge, clerk, court
reporter, or notary public).2 Nor did this attestation provide that the purported declaration was true
under penalty of perjury and under the laws of Washington, as required under RCW 9A.72. 085.
As a result, the declaration had no legal effect.
Lee now argues that her attestation substantially complied with the requirements of RCW
9A.72. 085, but the authority she cites focuses largely on liberal pleading requirements and not on
the requirements in RCW 9A.72. 085. See, e. g., Colorado Nat' l Bank of Denver v. Merlino, 35
Wn. App. 610, 614, 668 P.2d 1304 ( 1983) ( court will measure the sufficiency of a motion not by
its technical format or its language but by its content).
Brackman cited two decisions that addressed substantial compliance under RCW
9A. 72. 085. 163 Wn. App. at 897 -98. In the first, the claimant stated, " I declare under penalty of
under the laws of the State of Washington that the foregoing is true and correct." Johnson
perjury
v. King County, 148. Wn. App. 220, 223, 198 P.3d 546 ( 2009). Although the claimant failed to
2 Nor did the assertion that the statements were true " to the best of my knowledge and information"
establish that they were based on personal knowledge. CP at 419. See ER 602 ( witness may not
to matter without personal knowledge thereof); Davis v. West One Auto. Grp., 140 Wn.
testify
App. 449, 455 n. 1, 166 P.3d 807 ( 2007) ( declaration was faulty for failing to comply with RCW
9A.72. 085 and for failing to establish first -hand knowledge of attached exhibits).
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state the place of signing, she verified the information in her claim under penalty of perjury, and
she set forth her address and the location of the accident. Johnson, 148 Wash. App. at 228 -29.
Consequently, her claim substantially complied with RCW 9A.72.085. Johnson, 148 Wash. App. at
229 -30. In the second case, a certificate of service on law firm pleading paper was signed under
of perjury and stated that the signer was an employee of a Seattle law firm. Manius v.
penalty
Boyd, 111 Wash. App. 764, 769 -70, 47 P.3d 145 ( 2002). This certificate substantially complied with
RCW 9A.72. 085 as well. Manius, 111 Wash. App. at 769 -70.
In Brackman, however, the certificate at issue was not made under penalty of perjury. 163
Wash. App. at 897 -98. Therefore it failed to substantially comply with RCW 9A.72. 085. Brackman,
163 Wn. App. at 897. Similarly, a signed but unsworn letter that did not state that it was made
under penalty of perjury is insufficient to satisfy RCW 9A. 72. 085. Young Soo Kim v. Choong-
Hyun Lee, 174 Wn. App. 319, 327, 300 P.3d 431 ( 2013). The Young Soo Kim court emphasized
that " we are aware of no case ... that excuses in whole, the requirement that statements purporting
to establish a necessary element of a claim or defense, be in the form of sworn affidavits or
declarations made under penalty of perjury." 174 Wash. App. at 327.
Here, Lee failed to state that her purported declaration was made under penalty of perjury
3
under the laws of Washington. Consequently, her attestation did not substantially comply with
the requirements in RCW 9A.72. 085.
Lee now argues that she was not given notice of these deficiencies or an opportunity to
cure them. But the record shows otherwise. Bunch' s attorney responded to her first two motions
by stating that they were not properly certified and sworn, and the trial court struck the second
3 She also failed to state the place of execution, but the pleading paper' s reference to Carleton' s
address arguably satisfied this requirement.
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motion in an order stating that it could be refiled as appropriate. Despite this notice, Lee did not
include the penalty of perjury clause until she moved for reconsideration. Lee had both notice of
the deficiency and an opportunity to cure it.
Lee also argues that the trial court erred by finding, as part of its contempt order, that "[ n] o
back child support, medical support, child care costs, educational expenses, transportation
expenses, other special expenses, or maintenance is owed." CP at 612. Lee contends that her
failure to support her claim that such arrearages existed did not mean that Bunch' s obligations had
been satisfied.
The trial court addressed this objection during the presentation of findings:
I made specific findings on some of those [ obligations] but not all of those.
However, the motion was to establish amounts owing under all of those categories.
Ms. Lee, as the moving party, bore the burden of providing evidence to [ support]
those aspects of her request. She failed to do so. And consequently, a finding is
appropriate that there was none proven, and thus none is owed.
RP ( Dec. 20, 2013) at 12.
We disagree with this reasoning in part. During the contempt hearing, the trial court found
that Bunch was current in his payments for back child support, maintenance, and retirement. The
only issue was whether Bunch owed $ 2, 031. 86 in unpaid day care /child care /kindergarten
expenses incurred between November 1, 2012, and August 31, 2013. Bunch did not argue then,
and he does not argue now, that he has fully satisfied these obligations. Rather, he has continuously
asserted that he cannot verify Lee' s figures from the documentation provided.
Lee' s failure to provide admissible evidence for her allegations regarding Bunch' s
outstanding obligations for day care /child care /kindergarten expenses does not prove that such
obligations do not exist. We reverse the trial court' s order insofar as it finds. that Bunch has .
satisfied his obligations for child care and educational expenses incurred between November 1,
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2012, and August 31, 2013. The evidence is insufficient to sustain that finding. See In re Marriage
of Rideout, 150 Wash. 2d 337, 351 - 52, 77
P.3d 1174 ( 2003) ( we review factual findings for
substantial evidence).
Lee also contends that the trial court erred by denying her motion for contempt because
Bunch made late support and pension payments to satisfy his obligations. Where the amounts
owing were paid before the contempt hearing, the trial court did not abuse its discretion in finding
no disobedience of a court order sufficient to warrant sanctions. See King v. Dep' t ofSoc. & Health
Servs., 110 Wash. 2d 793, 797, 756 P.2d 1303 ( 1988) ( intentional disobedience of lawful court order
is contempt). Furthermore, Lee conceded during the hearing that she withdrew challenges to the
pension obligations. Regardless, a contempt proceeding cannot be used to enforce the pension
payments which were part of the property settlement. In re Marriage of Curtis, 106 Wash. App.
191, 199 -200, 23 P.3d 13 ( 2001).
We hold that the trial court did not abuse its discretion by denying Lee' s motion for
contempt but that the court erred in finding that Bunch satisfied all of his obligations, specifically,
the obligations for child care and educational expenses incurred between November 1, 2012, and
August 31, 2013.
II. CR 11 SANCTIONS
CR 11 her. We
Carleton argues that the trial court erred by imposing sanctions against
review a trial court' s imposition of CR 11 sanctions for abuse of discretion. Stiles v. Kearney, 168
Wash. App. 250, 260, 277 P.3d 9 ( 2012).
CR 11 deals with two types of filings: those lacking a factual or legal basis ( baseless
filings), and those made for improper purposes." MacDonald v. Korum Ford, 80 Wash. App. 877,
883, 912 P.2d 1052 ( 1996). This case concerns a baseless filing. " A filing is ` baseless' when it is
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not well grounded in fact,' or when it is ` not warranted by ... existing law or ... a good faith
argument for alter[ ing] existing law. ' Stiles, 168 Wash. App. at 261 ( quoting MacDonald, 80 Wn.
App. at 883 -84)).
A trial court may not impose CR 11 sanctions for a baseless filing "unless it also finds that
the attorney who signed and filed the [ pleading, motion or legal memorandum] failed to conduct
a reasonable inquiry into the factual and legal basis of the claim." Bryant v. Joseph Tree, Inc.,
119 Wash. 2d 210, 220, 829 P.2d 1099 ( 1992) ( emphasis in original). Courts use an objective
standard in evaluating an attorney' s conduct and test the appropriate level of prefiling investigation
by inquiring what was reasonable to believe when the pleading was filed. Stiles, 168 Wash. App. at
261 - 62. The court should impose sanctions only when it is clear that a claim has no chance of
success. MacDonald, 80 Wash. App. at 884. The court must make findings specifying the actionable
conduct. Stiles, 168 Wash. App. at 262.
Contrary to Carleton' s assertion, the trial court did enter findings supporting its decision to
grant CR 11 sanctions. The trial court found that opposing counsel had notified Carleton that her
motion was frivolous and formed a basis for sanctions, yet she persisted in pursuing the motion
over a matter of months. The court also found that Carleton acted not only as Lee' s attorney but
also as a witness, and that she failed to provide any evidence supporting the motion for contempt
filed on her client' s behalf. The trial court then summarized these findings:
B] ecause Attorney Carleton filed a motion without any evidence or supporting
facts, acted simultaneously as attorney and witness, ignored warnings from
opposing counsel pointing out these deficiencies, and persisted in pursuing the
underlying motion which was denied in full[,] it is appropriate that sanctions be
imposed against Ms. Carleton personally.
CP at 609.
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The advocate -witness rule generally prohibits attorneys from testifying in cases they are
litigating. RPC 3. 7( a); United States v. Edwards, 154 F.3d 915, 921 ( 9th Cir. 1998). But Rules of
Professional Conduct violations cannot be grounds for sanctions because a breach of an ethics rule
provides only a disciplinary remedy and not a private remedy. Just Dirt, Inc. v. Knight Excavating,
Inc., 138 Wn. App. 409, 417, 157 P.3d 431 ( 2007). We agree with Carleton that the trial court
should not have based its sanctions on her " ethically problematic" conduct in simultaneously
acting as both advocate and witness. CP at 609.
However, the trial court also based its imposition of sanctions on the attestation
deficiencies in the declaration filed with Lee' s contempt motion. Because of these deficiencies,
Lee' s motion completely lacked factual support. Carleton received notice of these deficiencies
before she filed the third motion that the trial court addressed during the November hearing.
Nevertheless, she persisted in pursuing a motion that was supported only by a deficient declaration.
The record does not show that Carleton made a reasonable prefiling inquiry into the problems with
her motion. As filed, the motion had no chance of success. We hold that the trial court did not
abuse its discretion by imposing CR 11 sanctions.
Attorney fees may be awarded as part of a CR 11 sanction. In the Matter ofKelly, 170 Wash.
722, 740, 287 P.3d 12 ( 2012), review denied, 176 Wash. 2d 1018 ( 2013). Such an award must
App.
be limited to the fees reasonably spent in responding to the sanctionable pleadings. Just Dirt, Inc.,
138 Wash. 418. The trial Bunch' s request for almost $ 10, 000 in sanctions
App. at court rejected
based on his attorney' s work in responding to all of Carleton' s motions. The court instead awarded
sanctions of $ 1, 040 based on the time reasonably required to prepare for and appear at the
November hearing. The trial court did not abuse its discretion in awarding sanctions for this
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amount. See Gander v. Yeager, 167 Wn. App. 638, 647, 282 P.3d 1100 ( 2012) ( reviewing
reasonableness of attorney fee award for abuse of discretion).
III. ATTORNEY FEES ON APPEAL
Both parties request an award of attorney fees and costs on appeal. Because Lee and
Carleton have not substantially prevailed, we reject their request for costs and statutory attorney
fees under RAP 14. 2. See Hurley v. Port Blakely Tree Farms L.P., 182 Wash. App. 753, 774, 332
P.3d 469 ( 2014) ( RAP 14. 2 provides for award of costs to party that substantially prevails on
appeal), review denied, 182 Wash. 2d 1008 ( 2015).
Bunch requests reasonable attorney fees and costs under CR 11 and RAP 18. 9. CR 11 is a
superior court rule that does not explicitly authorize us to award sanctions. Schorno v. Kannada,
167 Wn. App. 895, 904, 276 P.3d 319 ( 2012); but see Skilcraft Fiberglass, Inc. v. Boeing Co., 72
Wn. App. 40, 48, 863 P.2d 573 ( 1993) ( award of attorney fees on appeal authorized by CR 11
where sanctions have been imposed in the trial court because responding to the appeal could be
viewed as a cost of collecting the judgment), abrogated on other grounds by Morin v. Burris, 160
Wash. 2d 745, 161 P.3d 956 ( 2007).
RAP 18. 9 authorizes us to award sanctions against a party who files a frivolous appeal. An
appeal is frivolous if we are convinced that it presents no debatable issues on which reasonable
minds could differ and is so lacking in merit that there is no possibility of reversal. In re Marriage
of Foley, 84 Wn. App. 839, 847, 930 P.2d 929 ( 1997). A civil appellant has a right to appeal under
RAP 2. 2, and all doubts as to whether the appeal is frivolous should be resolved in the appellant' s
favor. Streater v. White, 26 Wash. App. 430, 434 -35, 613 P.2d 187 ( 1980).
Having concluded that the trial court erred in finding that Bunch satisfied all of his financial
obligations, and having rejected one of the trial court' s reasons for imposing CR 11 sanctions, we
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conclude that this appeal was not frivolous. Accordingly, we deny Bunch' s request for attorney
fees and costs under RAP 18. 9.
We reverse that part of the trial court' s contempt order finding that Bunch has satisfied the
child care and educational obligations in question, but we otherwise affirm the contempt order.
We also affirm the court imposing CR 11 sanctions. Finally, we deny both parties' requests for an
award of attorney fees and costs on appeal.
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.
We concur:
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