FILED
MAY 21, 2020
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Marriage of: )
) No. 35888-7-III
JERRIE RENEE KULESZA, )
)
Respondent, )
)
and ) UNPUBLISHED OPINION
)
KONRAD PATRICK KULESZA, )
)
Appellant. )
FEARING, J. — Konrad Kulesza appeals the dissolution court’s finding that he
violated the dissolution decree. We affirm.
FACTS
Jerrie Renee Kuleza n/k/a “Jerrie Bee Anthony” and Konrad Kulesza married in
August 2010 and separated in February 2015, when Anthony filed for a marital
dissolution. Kulesza worked as a nuclear engineer. The couple bore two children.
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At the time of separation, Jerrie Anthony accused Konrad Kulesza of assaulting
her. Kulesza denied the assault. He contends the false accusation led to financial
difficulties and undue sympathy toward Anthony from the dissolution court.
Konrad Kulesza claims that, after the separation and on March 25, 2015, he retired
an Equiline line of credit that encumbered the family’s Richland home. He presented the
dissolution court no evidence of such payment. On appeal, Kulesza identifies the amount
paid as $17,923.31, but he does not cite to the record to confirm this figure. The parties
borrowed other funds on a line of credit against the home.
On April 23, 2015, the dissolution court entered a temporary order of child support
and spousal maintenance that directed Konrad Kulesza to monthly pay $500 in spousal
support and $1,200 in child support. CP 96-97. The court also awarded Jerrie Anthony
temporary custody of the family residence and ordered Kulesza to pay the monthly
mortgage on the home.
According to Konrad Kulesza, the stress caused by the the marital dissolution and
difficulty in visiting his children impacted his physical and mental health. As a result, he
absented himself for many days from employment. His absences either led to his
dismissal or resignation from employment on August 27, 2015. Jerrie Anthony then
obtained employment, and Kulesza cared for the children during Anthony’s work hours.
Kulesza later gained employment and subsequently lost that position.
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On August 19, 2015 and before Konrad Kulesza’s first cessation in employment,
Jerrie Anthony and Kulesza mediated a resolution as to the division of assets and debts.
On December 18, 2015, the parties reached an agreement toward a parenting plan. The
parties did not sign any settlement agreement, however, until February 1, 2016. The
settlement agreement, captioned CR 2A Mediated Agreement, read in part:
Wife shall be awarded [one hundred percent] of husband’s
VanGuard IRA Retirement Plan with the agreement that she will be
responsible for payment of all the taxes on the distribution and the
community debt that is to be paid from a portion of the IRA proceeds.
Upon final decree of dissolution being entered and a subsequent QDRO
being completed, wife shall withdraw from the IRA account a minimum of
$70,000 in order to pay the outstanding community debts of the parties. A
comprehensive list shall be updated and attached to this agreement. These
debts must be paid as soon as possible and no later than one month from the
date of completion of the QDRO. Any remaining funds shall be released to
wife. This agreement is based upon acknowledgement that wife shall
require these funds to get started out on her own. In exchange, wife agrees
that she will not file a notice of intended relocation away from the Tri-cities
area for a period of at least (3) three years from the date the final decree
dissolution is entered.
Clerk’s Papers (CP) at 227 (emphasis added). On appeal, Konrad Kulesza blames the
delay in the signing of settlement agreement on Jerrie Anthony, but cites to no facts in the
record supporting this contention.
On February 3, 2016, the trial court entered the parties’ agreed dissolution decree.
The decree attached and incorporated the February 1 settlement agreement. The
dissolution decree awarded Konrad Kulesza the family home in Richland and obligated
him to pay the mortgage and the home equity line of credit loan associated with the
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property. With the entry of the decree, Kulesza did not pay spousal maintenance, but
paid $1,000 per month for child support.
Between the time of the mediation and the entry of the divorce decree, Konrad
Kulesza withdrew an unidentified sum from the VanGuard IRA retirement account.
After the entry of the decree, Konrad Kulesza invaded the VanGuard IRA account five
times before he assigned the account to Jerrie Anthony. The first two postdecree
withdrawals occurred respectively on February 9 and 23, 2016. The five withdrawals
amounted to $82,978. A portion of this amount went to income taxes resulting in
Kulesza receiving a net sum of $58,096. CP 551; RP 209.
From the withdrawals from the VanGuard IRA retirement account, Konrad
Kulesza paid community debts of $17,380. RP 209. Thus, Kulesza pocketed $40,716.
He could have paid additional community debits, including a debt to U.S. Bank in the
amount of $4,450 and a debt owed to Citibank in the sum of $1,230, but he chose
otherwise.
On February 12, 2016, Jerrie Anthony signed a qualified domestic relations order
(QDRO) as required under the parties’ agreement and the dissolution decree so that the
holder of the VanGuard IRA retirement account would assign the account to Anthony.
Konrad Kulesza told her she must pay $300 for the QDRO to be prepared, and, on
February 12, she went to Kulesza’s attorney’s office and paid the sum. The trial court
entered the QDRO on April 14, 2016.
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PROCEDURE
As a result of Konrad Kulesza’s withdrawal of funds from the VanGuard IRA
retirement account, Jerrie Anthony filed a motion to enforce the 2016 decree of
dissolution. In response, Konrad Kulesza argued that the settlement agreement was
ambiguous. He further argued that Jerrie Anthony delayed entry of the QDRO such that
he needed to invade the VanGuard IRA account. The delay left him floundering in
community debt payments, and he needed the funds from the IRA account to pay
community debt. He claimed he informed Anthony that he needed the funds to pay debts
and that he was taking the money.
In response to Jerrie Anthony’s motion, Konrad Kulesza further asked to receive
credit, from the amounts he withdrew from the VanGuard IRA retirement account, for
payment of a cell phone bill and car insurance premiums because the payments benefited
Jerrie Anthony. He also sought credit for retiring the Equiline home equity line of credit
on March 25, 2015, a month after the parties separated.
After reviewing evidence and entertaining argument, the dissolution court entered
findings of fact. Finding of fact 3 read in part:
The parties attended mediation in August 2015 and executed a CR
2A agreement signed February 1, 2016. The CR 2A agreement was
attached and incorporated into the Decree of Dissolution which was signed
by the court on February 3, 2016. Attached to the CR 2A agreement and
Decree was a list of community assets and debts, with a total of 11 debts
listed for Petitioner to pay with a total of approximately $26,000.00.
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The CR 2A agreement incorporated into the Decree states that in
part that:
Wife shall be awarded 100% of Husband’s Vanguard
IRA Retirement Plan with the agreement that she will be
responsible for payment of all taxes on the distribution and
the community debt that is to be paid from a portion of the
IRA proceeds. Upon a final decree of dissolution being
entered and a subsequent QDRO being completed, wife shall
withdraw from the IRA account a minimum of $70,000.00 in
order to pay the outstanding community debts of the parties.
A comprehensive list shall be updated and attached to this
agreement. These debts must be paid as soon as possible and
no later than one month from the date of completion of the
QDRO. Any remaining funds shall be released to wife[....]
Decree at 9. Mr. Kulesza withdrew money six days after the Decree was
entered and again two weeks later. He made a total of five withdraws after
the Decree was entered and before the account was turned over to Ms.
Anthony.
After the Decree was entered, a Qualified Domestic Relations Order
(“QDRO”) was signed by Ms. Anthony on February 12, 2016. Mr. Kulesza
demanded that Ms. Anthony pay $300.00 to get the QDRO prepared and
Ms. Anthony paid $300.00 to Mr. Kulesza’s attorney’s office. The QDRO
was entered with the court on April 14, 2016, approximately two months
after the Decree was entered.
After the Decree was entered, $82,978.00 was withdrawn from the
Vanguard IRA Retirement Plan (“IRA”). Mr. Kulesza actually received
$58,096 after applicable taxes and fees. Mr. Kulesza paid community debts
totaling $17,300.00 from the monies he received. Ms. Anthony received
$18,435.00.
. . . The Court finds that the CR 2A agreement incorporated in to the
Decree is not ambiguous. It is not disputed that Mr. Kulesza unilaterally
invaded the IRA after the Decree was signed. Mr. Kulesza actually
invaded the account before, but the CR 2A agreement was signed
contemporaneously with the Decree and the Court declines to reach behind
the Decree and address funds withdrawn from the IRA prior to the date of
the Decree.
. . . The Court . . . finds that the QDRO was entered two months
after Ms. Anthony signed the document, which is not an unreasonable
delay. The Court further finds the delay was not Ms. Anthony’s fault.
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....
The Court finds that Mr. Kulesza made five withdraws totaling
$82,978.00 after the Decree was entered and prior to Ms. Anthony
receiving the account via the QDRO. The Court also finds that Mr.
Kulesza used the money to pay some community debts, but that a number
of community debts remain unpaid even though he had the money to pay
the debts but decided not to. The Court further finds that this litigation was
due to Mr. Kulesza’s actions and that he violated the CR 2A agreement and
the Court’s order when he invaded the IRA after entry of the Decree. The
Court finds that Mr. Kulesza’s actions prevented Ms. Anthony from paying
off the community debts she was ordered to pay pursuant to the Decree.
The Court rejects any argument that Mr. Kulesza should receive
credit for paying interest on community debt because the non-payment of
community debt was due to Mr. Kulesza’s actions in relation to the IRA.
The Court also rejects the argument that Mr. Kulesza should receive credit
for paying cell phone bills and car insurance bills for the benefit of Ms.
Anthony that he paid after the Decree was signed because he was not
required to do so by the terms of the Decree and because Ms. Anthony was
not required to contribute to any payments for cell phone or car insurance
paid on her behalf by Mr. Kulesza.
....
The Court finds that Mr. Kulesza should not receive credit for
paying off the home equity line of credit because he made the decision to
pay it off by himself without obtaining court permission, nor was any proof
provided of how the line of credit was paid off. The Court understands that
the home equity line of credit account acquired during the marriage was not
the same home equity line of credit account enumerated in the CR 2A
agreement table of debts. The Court finds that whether Mr. Kulesza paid
off the line of credit, got a line of credit to pay it off, or didn’t pay it off
himself, the parties contemplated he would be responsible for the line of
credit and he is therefore not entitled to credit.
....
The Court finds that the actions of Mr. Kulesza are the embodiment
of bad faith, and that his actions were intransigent. The Court finds that
Mr. Kulesza should pay reasonable attorney’s fees and costs. The
attorney’s fees and costs listed in the Cost Bill submitted by Petitioner’s
attorney are reasonable and appropriate because of Mr. Kulesza’s actions
resulted in Ms. Anthony bringing this motion.
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CP at 551-53 (alteration in original).
In essence, the trial court found the settlement agreement unambiguous. The court
found Konrad Kulesza to be in violation of the dissolution decree by withdrawing funds
from the VanGuard IRA account, but declined to find him in violation for the withdrawal
of funds before February 3. As a result of the dissolution court’s findings, the court
entered judgment against Konrad Kulesza in favor of Jerrie Anthony for the amount of
$45,120 as compensation due to her pursuant to the award of the Vanguard IRA
Retirement Account under the terms of the dissolution decree. The court also awarded
Anthony $13,405 in reasonable attorney fees and costs in the sum of $1,000. The court
affirmed that Konrad Kulesza must pay the remaining community debts of the US Bank
credit card account number ending in 3095 in the sum of $4,450 plus any accrued interest
and the Citi credit card account number ending in 9259 in the sum of $1,230 plus any
accrued interest.
LAW AND ANALYSIS
Konrad Kulesza assigns seven errors to the dissolution court’s rulings:
1. The trial court erred when finding his actions entailed bad faith.
2. The trial court erred when it refused to consider facts before the
date of the dissolution decree.
3. The trial court erred when ruling that the settlement agreement
unambiguous.
4. The trial court erred when it ordered him to pay $45,120.
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5. The trial court erred when it ordered him to pay $13,405 in
attorney fees and $1,000 for costs.
6. The trial court erred when it ordered him to pay the community
debt owed on the US Bank credit card and the Citi credit card.
7. The trial court erred when it declined to credit him for paying off
the home equity loan.
We address these assignments in a different order. We conflate assignment of error 2
with assignment 7, and combine assignments of error 1, 4, 5, and 6.
RAP 10.3(g) reads:
. . . A separate assignment of error for each finding of fact a party
contends was improperly made must be included with reference to the
finding by number.
Konrad Kulesza identifies no findings of fact by number for purposes of his assignments
of error. If the appellant assigns no error to the findings of fact, the trial court’s findings
become the established facts of the case. State v. Roggenkamp, 115 Wn. App. 927, 943,
64 P.3d 92 (2003), aff’d 152 Wn.2d 614, 106 P.3d 196 (2005). Application of this rule
assists us in resolving this appeal.
Ambiguity of Settlement Agreement
Konrad Kulesza assigns error to the dissolution court’s interpretation of the
settlement agreement. We deem the court’s ruling regarding the language of the
settlement agreement to be legal, rather than factual, in nature. Therefore, we review the
ruling despite the failure to assign error to any finding of fact.
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The dissolution decree incorporated Jerrie Anthony and Konrad Kulesza’s
settlement agreement. Interpretation of a dissolution decree is a question of law. In re
Marriage of Thompson, 97 Wn. App. 873, 877, 988 P.2d 499 (1999). This court applies
de novo review to questions of law. In re Marriage of Thompson, 97 Wn. App. at 877.
When the decree incorporates an agreement, we must ascertain the parties’ intent
at the time of the agreement. In re Marriage of Smith, 158 Wn. App. 248, 255, 241 P.3d
449 (2010). If the language of the decree is unambiguous, there is no room for
interpretation. In re Marriage of Smith, 158 Wn. App. at 256. Generally, this court
limits its review to the language of the decree when discerning the agreement’s intended
effect. In re Marriage of Smith, 158 Wn. App. at 256.
Konrad Kulesza suggests that the dissolution court impermissibly modified the
decree. A decree is modified when rights given to one party are extended beyond the
scope originally intended or reduced. In re Marriage of Thompson, 97 Wn. App. at 878.
We observe no modification of the decree entered by the dissolution court.
We agree with the dissolution court that, at least as far as the pending dispute is
concerned, the agreement contained no ambiguity. The agreement and the decree
awarded the entire amount in the VanGuard IRA retirement account to Jerrie Anthony.
Kulesza provides no meaningful argument regarding an ambiguity. The main theme of
Kulesza’s appeal does not surround an ambiguity in the settlement agreement, but rather
that the lower court failed to consider financial hardships and other facts that occurred
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before and after the entry of the agreement. He retroactively challenges the agreement he
entered as unfair rather than unclear.
Facts Pre-dating Decree
Konrad Kulesza next asks this court to consider predecree facts which he
maintains demonstrate financial hardship toward him to fulfill the terms of the dissolution
decree. Kulesza emphasizes the large amount of community debt faced by himself and
Jerrie Anthony after separation but before entry of the decree. Kulesza explains that as of
March 12, 2015, less than a month after separation, the debts faced by the parties totaled
$75,046.70 which represented a $3,598.04 increase in community debt. Kulesza argues
the trial court never acknowledged the financial declarations he submitted on March 12,
2015, October 6, 2015, and October 8, 2015, which disclosed the amount of the debt he
faced.
Konrad Kulesza further contends that he faced further financial hardship due to a
temporary order of child support and spousal maintenance entered on April 23, 2015.
The order demanded that he monthly pay $500 in spousal support and $1,200 in child
support. He contends the award of spousal maintenance pursuant to RCW 26.09.090 was
based on insufficient evidence of the appropriate statutory factors and purpose of spousal
maintenance and the trial court chose to overlook the financial circumstances. He
contends these awards exceeded his financial means and the dissolution court based the
award on the accusation against him of domestic violence.
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All of these arguments raised by Konrad Kulesza could have been asserted by him
before entering the settlement agreement on February 1, 2016. He could have also
withheld his signature to the agreed February 3 dissolution decree if he deemed the
settlement unfair. Kulesza cites no authority on which we could rule that the dissolution
court erred by failing to consider facts known to Kulesza before entry of the dissolution
decree when determining whether to enforce the terms of the decree. We observe that,
although Kulesza acts pro se on appeal, excellent dissolution counsel represented him
before the dissolution court.
Bad Faith
Konrad Kulesza claims the dissolution court committed error by finding him in
bad faith when violating the terms of the dissolution decree. Nevertheless, he assigned
no assignment of error to the finding of fact that found him to have acted in bad faith.
For this reason alone, we reject the assignment of error. Even if we addressed the merits,
we would affirm the dissolution court.
In addition to asserting that the trial court should have reviewed his financial
condition before the entry of the decree, he maintains that the court should have
considered the financial situation between the date of the decree and his violations of the
decree when withdrawing funds from the VanGuard IRA retirement account. We
respond to this assignment of error with the same answer as to the previous assignment of
error. At the time of signing the settlement agreement and the dissolution decree,
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Kulesza knew that his financial condition would not change in the coming months. He
cites no authority that would allow us to reverse the dissolution court because of its
refusal to consider his financial condition at the time of violation of the decree.
Konrad Kulesza also asserts that the entry of the QDRO was delayed and this led
to an increase of debt. He blames the delay on Jerrie Anthony and suggests the delay
excuses his violation of the dissolution decree. Nevertheless, the dissolution court found
that Anthony did not cause any delay. Kulesza assigned no error to this finding of fact.
Therefore, we do not review this contention.
We observe that the settlement agreement did not direct Jerrie Anthony to pay the
community debt until assignment of the VanGuard IRA retirement account to her and the
assignment was not complete until after entry of the QDRO. The signed agreement
afforded Anthony thirty days from the date of the QDRO to pay the debt. Although
Konrad Kulesza contends the unpaid community debts threatened to cause him
bankruptcy, he provides no explanation for this dire predicament, nor does he cite the
record to any evidence of an impending bankruptcy.
The finding of bad faith and intransigence supported the dissolution court’s award
to Jerrie Anthony of reasonable attorney fees and costs. On appeal, Konrad Kulesza does
not challenge the reasonableness of the amount of the awards.
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As a whole, Konrad Kulesza misunderstands the nature of an appeal. Kulesza
wishes this court to provide a fresh view and review the case in its entirety as to whether
the dissolution court rulings were fair. Nevertheless, appellate courts play a limited role
in the American judicial system. Because the trial court directly sees and hears the
parties, the trial court deserves some deference in its rulings, particularly factual rulings.
We do not second guess the fairness of a dissolution court’s ruling unless the rulings are
not based on the facts or contrary to the law.
Sanctions
On appeal, Jerrie Anthony seeks sanctions on the basis that Konrad Kulesza
litigated a frivolous appeal. If an attorney represented Anthony on appeal, we would
award reasonable attorney fees and costs based on the nature of the appeal. Because of
the lack of legal representation, we deny sanctions.
CONCLUSION
We affirm the dissolution court’s rulings and deny Jerrie Anthony an award of
sanctions on appeal.
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Korsmo, J.
______________________________
Pennell, C.J.
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