FILED
OCT 22, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re: ) No. 30851-1-111
)
RICHARD WIXOM, )
)
Appellant, )
)
v. ) PUBLISHED OPINION
)
LINDA WIXOM, )
)
Respondent. )
BROWN, A.C.J.- Richard Wixom and his former attorney, Robert Caruso,
individually appeal joint and several CR 11 monetary sanctions imposed by the trial
court for their intransigence during a domestic relations case involving Mr. Wixom's
former wife, Linda Wixom. We find no trial court error and affirm.
FACTS
The facts are drawn mainly from In re Marriage of Wixom, 182 Wn. App. 881,
332 P.3d 1063 (2014) (Wixom I), review denied, 353 P.3d 632 (2015). The Wixoms'
marriage was dissolved in March 2009, resulting in a split custody decree. In March
2011, the parties counter-petitioned to modify the parenting plan. Mr. Wixom asked for
placement of the couple's youngest child, J.W., alleging J.W.'s two older siblings were a
bad influence, Ms. Wixom's failure to supervise, her untreated mental illness, her
No. 30851-1-111. .
In re Marriage of Wixom
continuing drug abuse, and ongoing criminal behavior. In April 2011, the trial court
found adequate cause to proceed to a trial on the parties' modification petitions. Mr.
Wixom retained Mr. Caruso as counsel before trial.
Following a seven-day trial, the trial court dismissed Mr. Wixom's modification
request and granted Ms. Wixom's request, entering 195 findings of fact, including:
183. Richard Wixom and Mr. Caruso engaged in a course of
conduct that was not in good faith beginning in late July
2011 and continued through trial.
184. Richard Wixom and Mr. Caruso pursued allegation and
innuendos not well-grounded in fact. Instead these
allegations and innuendos were interposed for the improper
purpose of harassing and causing unnecessary and
needless increase in the cost of litigation.
185. There has been an ongoing attempt by Richard Wixom
and Mr. Caruso to harass, embarrass, threaten, and
intimidate the GAL, the Court Commissioner, and Linda
Wixom herself.
188. There is a basis for Linda Wixom to receive CR 11
sanctions and attorney's fees based upon intransigence
against Richard Wixom and Mr. Caruso.
Clerk's Paper (CP) at 1241-42.
Later, in conclusion of law 9, the court stated, "The Court finds and concludes
there was a conspiracy in this case. The conspiracy was between Mr. Caruso and
Richard Wixom to wage an all-out war against Linda Wixom, her attorneys, the GAL,
and the Court." CP at 1244. The court ordered Mr. Wixom and Mr. Caruso, jointly and
severally to pay 90 percent of Ms. Wixom's attorney fees from July 31,2011 through
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January 19, 2012 "as CR 11 Sanctions and Attorney Fees based on intransigence." CP
at 1210. The court entered judgment in favor of Ms. Wixom for $51,778.58 in attorney
. fees and $3,949.84 in costs.
Represented by Mr. Caruso, Mr. Wixom appealed, raising 53 assignments of
error relating to the trial court's modification and attorney fees/sanctions decision. This
court disqualified Mr. Caruso from representing Mr. Wixom because of the apparent
conflict, directing independent counsel and additional briefing.
Mr. Caruso, by independent counsel, next asked for reconsideration, asserting
unsuccessfully the trial judge should have been disqualified. We reasoned, '''The brief
would assert a new issue into the appeal. Any such motion for disqualification should
have been made before the trial court and before rulings by the trial court.'" In re
Marriage of Wixom, 2015 WL 3549607, at *2, 353 P.3d 632 (Mar. 31,2015) (quoting
this court's order, denying reconsideration). On review, our supreme court agreed,
stating: "The trial judge was not asked to disqualify himself, and based on the facts that
were placed on the record it is doubtful his impartiality could reasonably be questioned.
Mr. Caruso fails to show that the Court of Appeals erred or departed from accepted
practice by refUSing to review this claim of error that was not raised in the trial court." Id.
at *5.
Mr. Wixom, by new counsel, withdrew all issues relating to the court's placement
decision. The sole remaining issue here is whether the trial court erred in ordering Mr.
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Wixom and ML Caruso to be jointly and severally liable for Ms. Wixom's attorney fees
as CR 11 sanctions.
ANALYSIS
A. Attorney Fees as CR 11 Sanctions
The issue is whether the trial court erred in awarding Ms. Wixom 90 percent of
her attorney fees as CR 11 sanctions for intransigence by ML Caruso and Mr. Wixom.
Mr. Caruso contends no authority exists for the court's sanction ordeL ML Caruso and
ML Wixom both argue substantial evidence does not support the award. 1
We review de novo whether a statutory, contractual, or equitable basis exists for
an attorney fees award. Gander v. Yeager, 167 Wn. App. 638, 282 P.3d 1100 (2012).
Because the trial court has weighed the evidence, our review is limited to determining if
the trial court's findings of fact are supported by substantial evidence and, if so, whether
the findings support the conclusions of law and the judgment. Sac Downtown Ltd.
P'ship v. Kahn, 123 Wn.2d 197,202,867 P.2d 605 (1994).
Determining intransigence is necessarily factual, but may involve foot-dragging,
obstructing, filing unnecessary or frivolous motions, refusing to cooperate with the
opposing party, noncompliance with discovery requests, and any other conduct that
1 In Wixom I, this court limited Mr. Caruso and Mr. Wixom from adding to their
previous brief on "whether the award entered by the trial court should be upheld." 182
Wn. App. at 909. Thus, solely the arguments originally raised are addressed.
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makes the proceeding unduly difficult or costly. In re Marriage of Greenlee, 65 Wn.
App. 703, 708, 829 P.2d 1120 (1992) We review attorney fees awards based on
intransigence for an abuse of discretion. In re Marriage of Bobbitt, 135 Wn. App. 8, 29
30, 144 P.3d 306 (2006). Discretion is abused when the court's decision is outside the
range of acceptable choices or based on untenable grounds or untenable reasons. In
re Marriage of Littlefield, 133 Wn.2d 39,47,940 P .2d 1362 (1997).
Initially, Mr. Caruso reargues the attorney fees/sanctions are improper because
the trial judge should have been recused for conflict of interest. This argument has
been decided by our Supreme Court in answer to Mr. Caruso's motion for discretionary
review and will not be addressed further.
"[A]ttorney fees may be awarded only when authorized by a private agreement, a
statute, or a recognized ground in equity." Fisher Props., Inc. v. Arden-Mayfair, Inc.,
106 Wn.2d 826,849-50,726 P.2d 8 (1986). Attorney fees in dissolution proceedings
may be awarded "after considering the financial resources of both parties." RCW
26.09.140. Intransigence is a basis for attorney fees in dissolution proceedings. In re
Marriage of Crosetto, 82 Wn. App. 545, 564, 918 P.2d 954 (1996). "Intransigence" may
be shown by "litigious behavior, bringing excessive motions, or discovery abuses." In re
Marriage of Wallace, 111 Wn. App. 697, 710,45 P.3d 1131 (2002).
Mr. Caruso incorrectly argues we must separately address attorney fees for
intransigence and CR 11 sanctions. But, this court has clearly held, "Attorney fees may
be awarded as part of a CR 11 sanction." In re Kelly and Moesslang, 170 Wn. App.
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722,739,287 P.3d 12 (2012). The goal of CR 11(a) is to prevent baseless filings and
filings made for improper purposes. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 217,
829 P.2d 1099 (1992). If a party engages in such conduct, "the court ... may impose
... an appropriate sanction, which may include an order to pay to the other party or
parties the amount of the reasonable expenses incurred because of the filing of the
pleading, motion, or legal memorandum, including a reasonable attorney fee." CR
11 (a). Thus, the trial court did not err in ordering attorney fees based on intransigence
as a CR 11 sanction.
Mr. Caruso and Mr. Wixom next challenge whether the facts support such an
award. Our review is limited to determining whether the trial court's findings of fact are
supported by substantial evidence and, if so, whether the findings support the
conclusions of law and the judgment. Sac Downtown Ltd. P'ship, 123 Wn.2d at 202.
To begin, both challenge the court's finding (labeled conclusion of law 9), "The
Court finds and concludes there was a conspiracy in this case. The conspiracy was
between Mr. Caruso and Richard Wixom to wage an all-out war against Linda Wixom,
her attorneys, the GAL, and the Court." CP at 1244. Mr. Caruso and Mr. Wixom argue
the court's use of the word conspiracy amounted to a legal finding of civil conspiracy.
We disagree. No argument or legal authority was presented regarding conspiracy.
Instead, the court referred to the ordinary meaning of conspiracy, not a claim for relief.
The court summarized in finding of fact 185, "There has been an ongoing attempt by
Richard Wixom and Mr. Caruso to harass, embarrass, threaten, and intimidate the GAL,
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In re Marriage of Wixom
the Court Commissioner, and Linda Wixom herself." CP at 1242. The court found
actions showed Mr. Wixom and Mr. Caruso conspired "to wage an all-out war against
Linda Wixom, her attorneys, the GAL, and the Court." CP at 1244.
Turning to whether substantial evidence supports the court's conclusions, the
trial court painstakingly set forth findings of fact supporting the improper course of
conduct pursued by Mr. Caruso and Mr. Wixom. This court repeated most of those
findings in Wixom I. Relevant now, the record shows Mr. Wixom and Mr. Caruso
engaged in a bad faith course of conduct, pursued allegations and innuendos not well-
grounded in fact, increased the cost of litigation, and continued to embarrass, threaten,
and intimidate participants. These facts support the court's findings of fact 183, 184,
and 185. In turn, these findings support finding of fact 188 stating, "There is a basis for
Linda Wixom to receive CR 11 sanctions and attorney's fees based upon intransigence
against Richard Wixom and Mr. Caruso." CP at 1242. This "finding" is actually a
conclusion of law and since it is supported by the findings, it is proper. See State v.
Reader's Digest Ass'n, Inc., 81 Wn.2d 259, 501 P.2d 290 (1972) (finding of fact that is
actually a conclusion of law is treated as a conclusion on appeal).
In sum, we hold the trial court was authorized under CR 11 and In re Marriage of
Crosetto, 82 Wn. App. at 564 to order Mr. Caruso and Mr. Wixom to pay Ms. Wixom's
attorney fees for intransigence. Substantial evidence supports the court's intransigence
findings of fact and conclusions of law.
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B. Joint and Several Liability
The next issue is whether the trial court erred in ordering Mr. Wixom and Mr.
Caruso to be jointly and severally liable for the attorney fees. Mr. Caruso and Mr.
Wixom each argue the other should be solely responsible for the attorney fees. In
imposing joint and several liability for the fees, the trial court gave Ms. Wixom the right
to recover as much as 100 percent of the fee award from Mr. Wixom, or, alternatively,
Mr. Caruso. Whether an award of that type to Ms. Wixom was appropriate is the only
matter at issue in this appeal. The men's rights inter se are not before us. Cf. RCW
4.22.040(1).2 Any claim that Mr. Wixom or Mr. Caruso might try to assert for
contribution would require factual development and legal briefing that has so far not
taken place. Whether a legal basis exists for attorney fees is a question of law we
review de novo. Gander, 167 Wn. App. at 282.
CR 11 sanctions may be based on intransigence. In re Marriage of R.E., 144
Wn. App. 393,406, 183 P.3d 339 (2008). Courts may order parties and their attorneys
to be jointly and severally liable for attorney fees. See OlWick v. Fox, 65 Wn. App. 71,
92,828 P.2d 12 (1992) ("The liability of appellants' attorney for this appeal shall be joint
2 RCW 4.22.040(1) provides in relevant part:
A right of contribution exists between or among two or more
persons who are jointly and severally liable upon the same
indivisible claim for the same injury, death or harm, whether
or not judgment has been recovered against all or any of
them. It may be enforced either in the original action or by a
separate action brought for that purpose. The basis for
contribution among liable persons is the comparative fault of
each such person.
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and several.") Considering Orwick, Mr. Caruso incorrectly argues he has immunity from
the sanctions. Moreover, sanctions may be imposed against the attorney alone. See
Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 224, 829 P.2d 1099 (1992) (attorney held
liable for fees as CR 11 sanctions). Contrary to Mr. Caruso's arguments, attorneys may
become liable in domestic relations contexts. Lee v. Kennard, 176 Wn. App. 678, 691,
310 P.3d 845 (2013). In Lee, Division One of this court upheld sanctions for an
attorney's intransigence in submitting a false document in a dissolution proceeding. Id.
Thus, considering these,authorities, we hold attorneys and clients can both be liable for
intransigence. Because evidence supports the challenged findings, both Mr. Wixom
and Mr. Caruso were intransigent during the modification proceedings.
Notably, as Mr. Wixom points out, ",[AJbout half of the practice of a decent lawyer
is telling would-be clients that they are damned fools and should stop." Watson v.
Maier, 64 Wn. App. 889, 891, 827 P.2d 311 (1992) (quoting McCandless v. Great At!. &
Pac. Tea Co., 697 F.2d 198,201-02 (7th Cir.1983». Sanctions, therefore, are
appropriate for "lawyers who do not know when to stop." Id.
Finally, Mr. Caruso argues the trial court violated his due process rights by
ordering him to be jointly and severally liable for Ms. Wixom's attorney fees. U.S.
CONST. amend. XIV; WASH. CONST. art. I, § 3. Due process requires, at a minimum,
notice and an opportunity to be heard before a property taking. Olympic Forest
Products, Inc. v. Chaussee Corp., 82 Wn.2d 418, 422-23, 428-29,511 P.2d 1002
(1971). Mr. Caruso fails to provide relevant legal authority showing he was entitled to
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further due process than afforded before the court imposed sanctions. Bald assertions
of a violation of constitutional rights are insufficient to warrant reversal. In re Pers.
Restraint of Lord, 152 Wn.2d 182, 188, 94 P.3d 952 (2005). Both Mr. Caruso and Mr.
Wixom were intransigent during the modification proceedings. Accordingly, we hold the
trial court did not err in ordering joint and several liability for 90 percent of Ms. Wixom's
attorney fees.
C. Attorney Fees on Appeal
In the last sentence of Mr. Wixom's brief he baldly asks us to sanction Mr.
Caruso on appeal "for pursuing his attacks on appellant." Mr. Wixom's Br. (Sept. 8,
2014) at 8. Because his request does not set forth the applicable law to warrant fees
and does not comply with RAP 18.1 (b) (requiring party to dedicate a section of brief to
fee request), we deny Mr. Wixom's request. Ms. Wixom requests RAP 18.9(a) attorney
fees for defending against what she considers is a 'frivolous appeal. An action is
frivolous if, considering the action in its entirety, it cannot be supported by any rational
argument based in fact or law. Dave Johnson Ins., Inc. v. Wright, 167 Wn. App. 758,
785,275 P.3d 339 (2012). While many aspects of this case are irregular, because this
court previously directed the parties to brief the attorney fees/sanctions issue we cannot
now say this appeal is entirely frivolous. However, the custody issues originally raised
by Mr. Wixom, and subsequently withdrawn, are devoid of merit. As such, pursuant to
RAP 18.9(a), and conditioned on her further compliance with RAP 18.1, we grant Ms.
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Wixom's. request for attorney fees incurred defending against the custody issues on
appeal.
Affirmed.
Brown, J.
WE CONCUR:
Lawrence-Berrey, J.
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