IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of ) No. 79625-9-I
)
MADALYN MARIE MILLER, )
)
Respondent, )
)
and )
)
ZACHARY RICHARD MILLER, ) UNPUBLISHED OPINION
)
Appellant. )
)
VERELLEN, J. — A party to a dissolution action is entitled to notice and an
opportunity to be heard on matters affecting his rights. But his due process rights are
not harmed when he has notice, skips his opportunity to be heard, and has a
judgment entered against him. Because Zachary Miller 1 had proper notice of the
action against him and chose not to attend the dissolution trial, the court did not err
by entering judgment.
The court did not err by concluding three of Zachary’s four businesses were
community property when the only evidence presented at trial showed they were
founded or purchased during the parties’ marriage.
1 We refer to the parties by their first names because they have the same last
name.
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Because trial courts have broad discretion to divide community property based
on the circumstances of the entire marriage and mathematical equality is not
required, the court did not abuse its discretion by awarding two of the couple’s three
real properties to Madalyn Miller.
Trial courts can award attorney fees in a dissolution action based on
RCW 26.09.140 or a party’s intransigence, among other bases. The court did not err
by awarding Madalyn attorney fees.
Therefore, we affirm.
FACTS
Madalyn and Zachary Miller married on January 26, 2012, and separated on
January 26, 2017. Zachary received notice of the dissolution action on January 19,
2018. Because Zachary never responded, the court granted a default judgment
dissolving the marriage in May of 2018. He timely moved to vacate the default
judgment, and the court vacated it that August. A mediation hearing was held in
December of 2018, but Zachary did not appear. Trial was set for February of 2019.
Madalyn scheduled a discovery conference with Zachary for January 7, 2019,
but he did not participate. That evening, she served Zachary with a motion to compel
discovery, and he responded with “F___ You!”
Trial was held on February 7, 2019, but Zachary did not attend. Based on the
evidence presented, the court awarded Madalyn two of the couple’s three residential
properties. It also determined three of four businesses controlled by Zachary—a real
estate limited liability corporation and two gyms—were community property, awarded
them to him, and offset the award with a $38,000 payment to Madalyn. The court
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noted that Zachary had demonstrated a “failure to cooperate throughout this entire
proceeding” and awarded Madalyn attorney fees.2
Zachary appeals.
ANALYSIS
Zachary has failed to comply with the Rules of Appellate Procedure and his
obligations as the appellant, and he misperceives the purpose of an appeal.3 He has
not satisfied the requirement of making assignments of error.4 Because he does not
challenge the trial court’s findings of fact, those findings are verities. 5 He makes
repeated references to facts that are not part of the record on appeal, but he is
limited to the record on appeal.6 Because he has not cited any legal authority
supporting his arguments, we are not required to address his arguments.7 And he
asks for relief that is not appropriate on appeal.8
2 Report of Proceedings (RP) (Feb. 7, 2019) at 31.
3
Pro se appellants are accountable to the same rules as appellants
represented by counsel. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d
527 (1993).
4 See RAP 10.3(a)(4) (requiring assignments of error).
5 In re Marriage of Rideout, 150 Wn.2d 337, 353, 77 P.3d 1174 (2003);
RAP 10.3(g) (requiring a separate assignment of error for each allegedly erroneous
finding of fact).
6 See RAP 9.1(a) (record on review consists of clerk’s papers, a report of
proceedings, and exhibits); RAP 10.3(a)(5)-(6) (requiring reference to the record for
factual statements and for arguments made in briefs).
7 State v. Marintorres, 93 Wn. App. 442, 452, 969 P.2d 501 (1999).
8See Appellant’s Br. at 6 (he asks this court to issue a subpoena, but
appellate courts do not issue subpoenas).
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He appears to argue the court erred by entering the dissolution order because
he was not present at the trial. Zachary was entitled to notice of the trial and an
opportunity to be heard on issues affecting his property interests.9 But a court may
enter judgment against a person “who, after adequate notice, fails to make a timely
appearance.”10 Zachary admits he knew the trial date but explains he chose not to
attend because he and Madalyn “were taking actions towards a mutually agreed
settlement” and this left “the impression that th[e] February 7th court date was no
longer needed.”11 This argument is not supported by the record. No evidence shows
he and Madalyn entered into or were arguably close to a settlement agreement.12
Zachary received both notice of trial and an opportunity to be heard. He failed to use
that opportunity. Zachary fails to show the court erred by entering a dissolution
decree.
Zachary argues the court mischaracterized two of his three businesses as
community property. A trial court in a dissolution proceeding has broad discretion to
make a just and equitable distribution of property based on the factors enumerated in
RCW 26.09.080.13 The court may distribute all property, whether characterized as
9 In re Marriage of Wherley, 34 Wn. App. 344, 347, 661 P.2d 155 (1983).
10
See Boddie v. Connecticut, 401 U.S. 371, 378, 91 S. Ct. 780, 28 L. Ed. 2d
113 (1971).
11 Appellant’s Br. at 2.
12 We decline to take notice of the supplemental evidence Zachary appended
to his notice of appeal. Even if we did, the e-mails between him and Madalyn show
mere negotiations and no genuine agreement. And because those e-mails predated
Madalyn’s efforts to litigate in January 2019, it was not reasonable to believe a
settlement existed at the time of trial.
13 In re Marriage of Wright, 179 Wn. App. 257, 261, 319 P.3d 45 (2013).
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community or separate.14 We will affirm the trial court’s determinations unless an
appellant demonstrates the court manifestly abused its discretion.15 This occurs if
the court’s decision is based on untenable factual or legal grounds.16 Additionally,
we presume property acquired during a marriage belonged to the community unless
a party presents “clear and convincing evidence” the property was separate.17
The unrebutted evidence in the record reveals the real estate limited liability
corporation began during the marriage.18 And Zachary agrees the Duvall and
Snohomish gym businesses were acquired during the marriage.19 His sole argument
is that the gyms are his separate property because they were initially funded by the
company found to be his separate property. No evidence in the record supports this
contention. Zachary fails to meet his burden to clearly and convincingly trace the
funds supporting the gyms to a separate source and to show the gyms did not
become so commingled with community property that they lost their separate
character.20 He fails to show the court erred by classifying the businesses as
community property.
14 Id.
15 Id.
16 In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
17 In re Marriage of Chumbley, 150 Wn.2d 1, 5, 74 P.3d 129 (2003).
18 See Report of Proceedings (RP) (Feb. 7, 2019) at 20.
19 See Appellant’s Br. at 2-3.
20See Chumbley, 150 Wn.2d at 5-6 (separate property acquired during
marriage must remain “traceable and identifiable” and not be commingled to remain
separate).
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Zachary contends the court abused its discretion by awarding Madalyn two of
the couple’s three real properties. He argues “[o]ne party being given 1/3 equity and
the other party receiving 2/3 of the equity is unfair an[d] unequitable and must be
reconsidered.”21 But a trial court has “‘broad discretion’ to determine what is just and
equitable based on the circumstances of each case.”22 Because a just and equitable
division “‘does not mean that the court must make an equal distribution’”23 and
Zachary’s sole argument is that the division was wrong because it was unequal, he
fails to show the court abused its discretion.
Zachary contends the court erred by awarding Madalyn attorney fees. We
review de novo whether a statutory, contractual, or equitable basis exists for an
award of attorney fees.24 Zachary argues he “should not be forced to pay for a legal
expense that were [sic] a result of Ms. Miller [sic] free will to pursue.”25 But
RCW 26.09.140 authorizes an award of attorney fees to either party to a dissolution
action.
Attorney fees from a dissolution also may be awarded due to one party’s
intransigence.26 “‘When intransigence is established, the financial resources of the
21 Appellant’s Br. at 3.
22
In re Marriage of Larson & Calhoun, 178 Wn. App. 133, 138, 313 P.3d 1228
(2013) (quoting In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572
(2007)).
23
Id. (quoting In re Marriage of DewBerry, 115 Wn. App. 351, 366, 62 P.2d
525 (2003)).
24 Wixom v. Wixom, 190 Wn. App. 719, 724, 360 P.3d 960 (2015).
25 Appellant’s Br. at 3.
26 Wixom, 190 Wn. App. at 725.
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spouse seeking the award are irrelevant.’”27 “Intransigence” includes foot dragging,
obstruction, and discovery abuses.28
Here, the court found Zachary failed to “cooperate throughout this entire
proceeding.”29 Zachary also failed to provide discovery, despite a court order
requiring that he do so. Zachary actively obstructed the litigation process, including
saying he would “blow [Madalyn’s attorney’s] head off” if her attorney attempted to
“go after his businesses.”30 These circumstances support an award of attorney fees
due to intransigence.31
Madalyn requests attorney fees incurred on appeal. Although Madalyn cites
RAP 18.1 and RCW 26.09.140, she argues an award of fees is justified “based on
the lack of merit” and frivolousness of Zachary’s appeal.32
RAP 18.9(a) authorizes an award of attorney fees as a sanction for filing a
frivolous appeal.33 An appeal is frivolous when the appellant presents no debatable
issues on which reasonable minds might differ and presents issues “so totally devoid
27In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006) (quoting
In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989)).
28 Wixom, 190 Wn. App. at 725; Bobbitt, 135 Wn. App. at 30.
29 RP (Feb. 7, 2019) at 31.
30 Clerk’s Papers at 32.
31 We note the trial court did not expressly award attorney fees on the basis of
intransigence. See CP at 14. But it did find Madalyn required assistance to pay
attorney fees and Zachary had the ability to do so. Id. Also, we may affirm a trial
court’s ruling on any basis supported by the record. In re Marriage of Raskob, 183
Wn. App. 503, 514-15, 334 P.3d 30 (2014).
32 Resp’t’s Br. at 10.
33 Kinney v. Cook, 150 Wn. App. 187, 195, 208 P.3d 1 (2009).
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of merit that there is no reasonable possibility of reversal.”34 Although we resolve all
doubts regarding frivolousness in favor of the appellant,35 the record here allows no
reasonable basis on which to reverse the trial court. Because he has not made
assignments of error, relies on information that is not part of the record on appeal,
fails to cite any legal authority, and fails to establish the trial court manifestly abused
its discretion, Zachary filed a frivolous appeal. We award Madalyn attorney fees from
this appeal upon compliance with RAP 18.1.
Therefore, we affirm.
WE CONCUR:
34 In re Marriage of Schnurman, 178 Wn. App. 634, 644, 316 P.3d 514 (2013).
35 Id.
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