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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
No. 72459-2-1
JOHN PHILLIP HALL,
DIVISION ONE
Appellant,
UNPUBLISHED OPINION
and
DIANE ELIZABETH HALL a/k/a DIANE
ELIZABETH VAN NATTER,
Respondent. FILED: September 28, 2015
Appelwick, J. — Hall appeals the order denying revision of a
commissioner's order denying his request for equitable relief based on an alleged
violation of the terms of a dissolution decree. Hall fails to demonstrate any abuse
of discretion by the superior court judge. We affirm.
FACTS
On January 3, 2014, the trial court entered a dissolution decree dividing
the property and dissolving the marriage of John Hall and Diane Van Natter.1
Consistent with the parties CR 2A agreement, the court allocated a condominium
1 Although Van Natter was known as Diane Hall during the marriage,
because the dissolution decree directed her name to be changed to Diane
Elizabeth Van Natter, we refer to her by that name in this opinion.
No. 72459-2-1/2
located in Edmonds to Hall, allowing him "six months to refinance the Edmonds
property and remove [Van Natter] from any obligation thereon, or the same shall
be sold." Further, "[i]f the net proceeds from the sale or refinancing of the
property . . . exceed $25,000.00, the excess shall be split evenly between the
parties." The decree provides, "Each party shall promptly execute any
documents or provide any reasonable assistance necessary to effectuate the
transfer of property or other terms of this decree." The decree also restrains
each party "from contacting the other except through counsel."
In a letter to Van Natter's attorney dated May 21, 2014, Hall described his
April 14 mediation meeting with "Chase," the lender on the mortgage on the
Edmonds property. According to Hall, Chase refused to proceed without Van
Natter's "presence or appointed proxy" because she "was the originator of the
2005 delinquent loan." In his letter, Hall requested that Van Natter, "either
herself or by proxy" agree to add Hall to the loan so he could negotiate with
Chase for a reduction of principal and monthly payments. "[T]hough Diane would
remain on the loan, the foreclosure process would terminate, I would fully service
the new loan, and I would then be in much better position to find a new lender to
refinance the reduced loan and take Diane off entirely."
Hall sent a note dated June 3, 2014, to Van Natter's attorney asking for a
response to his letter. Hall's attorney sent a letter to Van Natter's attorney on
June 5, 2014, stating Hall "needs [Van Natter's] cooperation to add him to the
Chase mortgage so that Chase will deal with him directly and he in turn can
No. 72459-2-1/3
continue the negotiations to obtain a favorable loan mitigation which in turn would
allow him to more easily refinance the existing loan in a timely fashion."
In a letter dated June 10, 2014, Van Natter's attorney informed Hall that
"Diane Van Natter will cooperate in your refinance of the condominium subject to
the provisions of the Decree of Dissolution, provided that documents are
provided by the bank directly to me, or via escrow. However, pursuant to the
Decree of Dissolution, this refinance needs to be accomplished by you, not as
any kind of co-borrower with Diane."
On July 3, 2014, Hall filed a motion to compel Van Natter to assist him in
his loan modification efforts by "facilitating addition of [Hall's] name and removal
of [Van Natter's] name on the existing mortgage with Chase Bank." Hall also
requested a stay, waiver, or elimination of the provision requiring the sale of the
Edmonds property. He also sought appointment of a special master, at Van
Natter's expense, to sign "any and all documents relating to the condominium
and the mortgage" in the event she refused to do so. Finally, Hall requested
orders directing Van Natter to produce items of personal property and files
relating to litigation concerning the condominium and mortgage.
In response, Van Natter filed a declaration stating that she executed a quit
claim deed during the marriage to convey the Edmonds property to Hall, that Hall
did not inform her of any mediation regarding the mortgage on the Edmonds
property, that Hall had not complied with the decree regarding refinancing or
selling the Edmonds property, and that the requested items were in Hall's
possession or missing. Van Natter requested an award of attorney fees of
No. 72459-2-1/4
$750.00. In reply, Hall produced a copy of an e-mail his attorney sent to Van
Natter's attorney on July 14, 2014, requesting that Van Natter execute an
attached special limited power of attorney.2
After a hearing, a court commissioner denied Hall's motion but did not
award fees to Van Natter. Hall filed a motion for revision. The superior court
judge denied Hall's motion for revision and awarded Van Natter $500.00 "as
terms." Hall appeals.
DISCUSSION
On a motion for revision of a commissioner's ruling, the superior court
judge reviews the commissioner's findings of fact and conclusions of law de novo
based upon the evidence and issues presented to the commissioner. In re
Marriage of Moody. 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). The
superior court "is not required to defer to the fact-finding discretion of the
commissioner," but "is authorized to determine its own facts based on the record
before the commissioner." In re Marriage of Dodd, 120 Wn. App. 638, 644-45,
86 P.3d 801 (2004). On appeal, we review the superior court's ruling, not the
commissioner's. In re Marriage of Fairchild, 148 Wn. App. 828, 831, 207 P.3d
449 (2009); RCW 2.24.050.
As a general rule, the provisions in a dissolution decree as to property
disposition "may not be revoked or modified, unless the court finds the existence
of conditions that justify the reopening of a judgment under the laws of this state."
RCW 26.09.170(1). However, a trial court has the power to enforce the
2 No attachments to the e-mail message appear in the record.
No. 72459-2-1/5
provisions of its decree as long as it does not modify the decree. In re Marriage
of Greenlee. 65 Wn. App. 703, 710, 829 P.2d 1120 (1992). "The court's
equitable jurisdiction includes the ability to grant whatever relief the facts
warrant." In re Marriage of Farmer. 172 Wn.2d 616, 625, 259 P.3d 256 (2011).
We will not disturb the trial court's findings of fact as long as substantial evidence
supports the findings. In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170
P.3d 572 (2007). This court will not substitute its judgment for that of the trial
court or weigh the evidence. In re Marriage of Rich, 80 Wn. App. 252, 259, 907
P.2d 1234 (1996).
First, Hall faults the court for not finding that Van Natter violated the terms
of the decree requiring her to "promptly execute any documents or provide any
reasonable assistance necessary to effectuate the transfer of property or other
terms of this decree," when "virtually all" the evidence in the record "would seem
to support" such a finding. We disagree with Hall's characterization of the
evidence.
The record reveals that Hall and his attorney sent three letters to Van
Natter's attorney between May 21 and June 3, requesting "cooperation" and her
agreement or "proxy" for Hall's negotiations with Chase. But, the letters do not
request her signature on any particular document or request that she
independently contact Chase. Van Natter's attorney responded on June 10,
indicating her willingness to cooperate by signing documents provided directly to
her attorney by the bank or escrow. Nothing in the record suggests that Van
Natter refused to sign any document provided to her attorney by the bank or
No. 72459-2-1/6
escrow as she had agreed. It was not until July 14 that Hall's attorney, rather
than the bank or escrow, e-mailed Van Natter's attorney a specific document and
requested her signature. Nothing in the decree of dissolution requires that she
become a coborrower in order to facilitate Hall's refinance.
In his motion to compel or for other relief, Hall claimed that Van Natter's
failure to fulfill her duties under the decree justified an equitable remedy. In
determining Hall's motion for revision of the commissioner's order, the superior
court judge had the authority to make a factual determination as to whether Van
Natter violated the decree. See Marriage of Dodd. 120 Wn. App. at 644-45. The
superior court judge did not enter written findings of fact and conclusions of law.3
However, we presume the absence of a finding on the material question of
whether Van Natter violated the decree is a negative finding against Hall, the
party with the burden of proof. Fettig v. Dep't of Soc. & Health Servs., 49 Wn.
App. 466, 478, 744 P.2d 349 (1987). And the record contains substantial
evidence to support the court's presumed finding that Van Natter's conduct was
reasonable under the circumstances. Hall obviously disagrees with the court's
view of the facts and circumstances, but he fails to demonstrate any abuse of
discretion by the superior court judge. The court properly denied Hall's request
for equitable relief.
Hall also raises two issues based on assignments of error to the
commissioner's order. In particular, he contends that the commissioner erred by
3 The order simply states, "Petitioner's motion for revision is denied.
Respondent is awarded $500.00 as terms."
No. 72459-2-1/7
denying relief based on his failure to make a showing of likely success in his loan
modification efforts, and that a comparison between the clerk's minute entry
describing the commissioner's oral findings of fact and conclusions of law and
the minute entry memorializing the hearing by the superior court judge reveal an
abuse of discretion. Because the findings and conclusions of the commissioner
are not determinative and we review only the decision of the superior court judge,
we do not address these claims of error. Marriage of Fairchild, 148 Wn. App. at
831; RCW 2.24.050.
Van Natter requests attorney fees on appeal under RAP 18.1 and RCW
26.09.140, which provides that "[u]pon 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." In light of the trial
court's award of terms below and the lack of merit in Hall's briefing, we exercise
our discretion and grant Van Natter's request for fees, subject to her compliance
with RAP 18.1.
Affirmed.
WE CON