In re the Marriage of Sandra Kay Hunt & Samuel Earl Hunt

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FILED

OCTOBER 23, 2014

In the Office of the Clerk of Court
WA State Court of Appeals, Division II

COURT OF APPEALS, DIVISION III, STATE OF WASHINGTON

In re the Marriage of: No. 31584-3-Ill

SANDRA KAY HUNT, )
)

Respondent, ) ORDER AMENDING

) OPINION

and )
)
SAMUEL EARL HUNT, )
)
Appellant. )

The court hereby amends its opinion filed August 28, 2014, by adding the
following paragraphs after the last full paragraph on page 11:

Ms. Hunt requests attorney fees pursuant to RAP 14.1, 14.2, 14.3,
18.1, and 18.9. Title 14 concerns an award of costs, not an award of
attorney fees. RAP 18.1 concerns an award of fees when authorized by
statute, rule, or contract. Ms. Hunt identifies RAP 18.9 in this regard.

RAP 18.9 permits an award of reasonable attorney fees for
prevailing against a frivolous appeal. “An appeal is frivolous if,
considering the entire record, it has so little merit that there is no
reasonable possibility of reversal and reasonable minds could not differ
about the issues raised.” Johnson v. Mermis, 91 Wn. App. 127, 137, 955
P.2d 826 (1998). We conclude that Mr. Hunt’s arguments, although
generally weak, are not frivolous under the governing standard. We
therefore deny Ms. Hunt's request to award her reasonable attorney fees.

No. 31584-3-III
In re Marriage of Hunt

DATED: October 23,

2014

ct 4\

Lawrence-Berrey,

y/o

‘Korsmo, J. 7

paring <I

Fearing, J. ny

...
FILED
.AUGUST 28, 2014
In tbe Office of tbe Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF TIlE STATE OF WASHINGTON
DIVISION THREE
In re the Marriage of: 	) 	No. 31584-3-ill
)
SANDRA K.A Y HUNT, 	)
)
Respondent, 	)
)
and 	) 	UNPUBLISHED OPINION
)
SAMUEL EARL HUNT, 	)
)
Appellant. 	)
LAWRENCE-BERREY, J. - 	Samuel Hunt appeals the 1rial court's property and debt
dis1ribution in his dissolution proceedings with Sandra Hunt. He contends that the 1rial .
court failed to include three community debts in the division. He also contends that the
, trial court abused its discretion when it refused to accept additional documentation on the
debts after trial. Finding no error, we affirm.

No. 31584·3·III
In re Marriage of Hunt
FACTS
Sandra and Samuel Hunt' separated on September 11,2011, after approximately
five years of marriage. A dissolution of marriage trial was held. The parties debated over
the distribution of personal property and debts as well as property and debts related to
their sheep ranch and their butchering business, C&L Lockers.
On January 31, 2013, the court issued a memorandum decision. The court found,
"Overall, the wife's evidence was found to be more credible than that of the husband.
The wife was much better at documenting and backing up her claims. 	The husband's
unsupported testimony about sheep deaths, property destruction, business debts, and the
post-separation sale of his sheep business to a friend rendered much of his evidence
difficult to believe." Clerk's Papers (CP) at 40. The court attached a dissolution property
schedule to the memorandum opinion.
. Following the memorandum decision but before the final decree was entered,
Samuel filed a "Motion to Reopen, Reconsider and to Clarli)r."2 CP at 8. Amongother
matters, Samuel contended that the trial court's decision failed to include three debts
owed by the community. Two of the alleged debts were loans owed to Walter Miller for
I To avoid confusion, we refer to the parties by their first names.
2 Sandra also filed a motion for reconsideration, which has no bearing on this
appeal.
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No. 3I 584-3-III
In re Marriage of Hunt
the purchase of livestock. Samuel included with the motion a bank balance sheet from
February 2012 that showed the Walter Miller loans. This document was part of the trial
evidence. On the loan document, one loan amounted to $182,490. Samuel contended
that only one-half of this loan was owed by the community and the other one-half was
owed by a third-party business partner, Dillon Summers. The second loan amounted to
$46,410. As additional evidence, Samuel attached two contracts with Walter Miller for
the purchase of livestock. The contracts were dated October 2010 and April 2011.
Samuel did not produce these contracts at trial.
,
The third debt was owed ·by C&L Lockers. Samuel called attention to an exhibit
entered at trial, which listed five amounts due on a spreadsheet. Also, he provided the
court with verification for two of the debts owing at the time of the separation, totaling
over $21,000. This verification evidence was not produced at trial.
The court held a hearing on the motion. Samuel contended that the court should
admit the additional documentation attached to the motion because it corroborated and
clarified testimony that was already presented at trial. The trial court did not allow
Samuel to reopen trial and submit the new evidence. The court found that it would be
improper to allow Samuel to reopen and reargue the substantial business debts that were
supported by only weak evidence at trial. The trial court noted that it struggled with
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No. 3I 584-3-III
In re -Marriage of Hunt
Samuel's evidence at trial because, in some instances, all he offered to support his figures
were interrogatory answers. He noted that Sandra accepted some of the figures, so the
trial court did, too.
The court found that the new evidence was not any better. The court recognized
that the new evidence to support the C&L Lockers debt did not match the figures he gave
in his interrogatory answers submitted at trial. For the Walter Miller debts, the court
found that the evidence at trial was weak and not credible. The court noted a substantial
debt like the one claimed would have been entered into by contract, and that the contract
was needed at trial. Furthennore, the court found that it was too late to accept what·
Samuel alleged to be contracts to support the figures that were used. While the court
granted reconsideration to address other matters, it denied reconsideration for these debts.
Samuel appeals.
ANALYSIS
Trial Court's Denial orMotion to Reopen/Reconsider. 	Samuel contends that the
trial court abused its discretion by refusing to consider the additional documents after
trial. He contends that the additional documentation corroborated the trial evidence and
was needed to rehabilitate his credibility.
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. \
No. 31584-3-III
In re Marriage of Hunt
A trial court's memorandum opinion is not a fmal decision and may be modified or
abandoned before entry of the final judgment. Chandler v. Doran Co., 44 Wn.2d 396,
400,267 P.2d 907 (1954). "A motion to reopen a case for additional testimony is
. addressed to the sound discretion of the trial court, and the court's ruling will not be·
disturbed except for manifest abuse." Rogers Walla Walla, Inc. v. Ballard, 16 Wn. App.
81,90,553 P.2d 1372 (1976).
In Winston v. Bacon, 8 Wn.2d 216,229, III P.2d 764 (1941), the trial court did
not abuse its discretion when it refused to take evidence after entering a memorandum
decision when the proffered evidence went to the heart of the controversy and reopening
the case to admit the evidence would result in extensive additional litigation regarding
hypothetical questions and technical responses. 	The reviewing court found, "The attempt
to produce this evidence was made after the rendition of the memorandum decision, in
order to eliminate the weaknesses in the appellants' proof which had been pointed out by
the court. The vice in such a procedure is obvious." Id.
The trial court did not abuse its discretion when it refused to admit the additional
evidence Samuel produced after trial. The evidence was not newly discovered; it could
have been produced at trial with reasonable diligence. The 201 o and 20 11 Walter Miller
contracts Samuel'wished to submit and the proof of debts incurred by C&L Lockers prior
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No. 31584-3-II1
In re Marriage of Hunt
to 2011 were available to Samuel before trial. Furthennore, the trial court found that the
additional evidence presented by Samuel was weak and conflicted with the trial evidence.
Particularly, the trial court referred to the conflicting trial and posttrial evidence regarding
the C&L Lockers' debt. Indeed, Samuel's new evidence showed a debtof$16,308.55
owed by C&L Lockers to Ameristar Meats, while trial testimony shows this same debt to
be $5,200.00.
Winston supports the trial court's decision not to reopen the trial to admit
additional evidence. The contracts and bills did not conclusively address the community
debt owed by the parties. Instead, admitting the additional evidence would have also
required the trial court to reopen trial and. take evidence on the balance of these
obligations at the time of separation and to detennine what portion of the Walter Miller
debts belonged to the community. The additional evidence sought to eliminate the
weaknesses in Samuel's case identified by the trial court's memorandum decision. The
trial court did not abuse its discretion in refusing the additional evidence.
Trial Court's Consideration of Community Debts. 	Next, Samuel argues that the
·trial court abused its discretion when it failed to consider the community debts owed to
Walt Miller and the community debts owed by C&L Lockers. He contends that the
property distribution was not equitable and fair because it omitted these obligations.
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No. 31584-3-III
In re Marriage of Hunt
"The trial court's considerable discretion in making a property division will not be
disturbed on appeal absent a manifest abuse of that discretion. A manifest abuse of
discretion is a decision manifestly unreasonable or exercised on untenable grounds or for
untenable reasons." In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863
(1989) (citations omitted). "The trial court's decision will be aftlr:med unless no
reasonable judge would have reached the same conclusion.'~ In re Marriage ofLandry,
103 Wn.2d 807, 809-10, 699 P .2d 214 (1985). The purpose of giving the trial court such
deference -is because the trial court "is in the best position to assess the assets and
liabilities of the parties" in its duty to formulate a just and equitable outcome. In re .
Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999). "The trial court's
credibility determinations and resolution of the tru~ from competing evidence will not be
disturbed on appeal." Buck Mountain Owners' Ass 'n v. Prestwich, 174 Wn. App. 702,
720,308 P.3d 644 (2013).
In a dissolution action, the trial court is tasked with distributing all property and
liabilities before it, both community and separate. In re Marriage of Stachofsky, 90 Wn.
App. 135,142,951 P.2d 346 (1998). The trial court must make a just and equitable
disposition after considering the extent and nature of the separate and community
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No. 3 1584-3-III
In re Marriage of Hunt
property, the duration of the marriage, and the economic circumstances of each spouse at
the time the division becomes effective. RCW 26.09.080.
"The valuation of property in a divorce case is a material fact." In re Marriage of
Greene, 97 Wn. App. 708, 712, 986 P.2d 144 (1999). Factual issues will not be retried on
appeal but will be accepted if supported by substantial evidence. In re Marriage of
Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991). Substantial evidence is a
quantum of evidence sufficient to persuade a rational, fair-minded person that the premise
is. true. 	Wenatchee Sportsmen Ass 'n v. Chelan County, 141 Wn.2d 169, 176,4 P.3d 123
(2000).
As to Samuel's ftrst contention, we disagree that the trial court abused its
discretion by deciding not to include debts to Walter Miller in the property distribution.
The court determined that Samuel's evidence was weak and not credible when it came to
these two debts. The court noted the absence of contracts to support these debts. The
court also noted that Samuel's February 2012 balance sheet was insufftcient to support
the debts because the balance sheet was prepared by Samuel for the bank and the bank
was not associated with the loans.3
.. 	.
3 Testimony of Sandra established that the values on the bank balance sheet are
provided by the individual requesting the balance sheet. The banker does not know the
values to include on the balance sheet until provided.
8

, 	,
No. 31584-3-III
In re Marriage of Hunt
The court's findings on the Walter Miller debts are supported by substantial
evidence. While Samuel's bank balance sheet lists two debts to Walter Miller as of
February 2012, Samuel did not present contracts or account statements to support the
amount owed. Also, Samuel's trial testimony regarding the Walter Miller obligations did
not support the obligations because it was inconsistent and indecipherable at times.
Samuel's testimony never refers to the February 2012 bank balance sheet to establish the
debts to Walter Miller. Instead, he references a Walter Miller debt in discussion with his
transactions with Mr. Summers. Samuel testified that he only owed one-half of an April
2011 loan from Walter Miller; although no evidence in the record before us on appeal
listed the original loan amount as of that date or the lesser amount due. Next, he testified
that he sold a large amount of ewes in early September 2011 and paid Walter Miller
$66,000. Based on this sale, he testified the loan was reduced to $176,000 and that he
owed one-half this amount, equaling $88,000. Neither of these amounts are consistent
with the higher amount of $182,490 listed on the February 2012 bank balance sheet.
Then, Samuel testified that Mr. Summers bought Samuel's sheep, taking over the $88;000
debt. Thus, Samuel contended that he no longer owed the debt to Walter Miller because
Mr. Summers took over his obligation. Sandra was not questioned about the loans. Thus,
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No. 3 1584-3-III
In re Marriage of Hunt
she provides no supporting testimony. For the smaller loan, there is no testimony in the
record addressing this loan.
Given the inconsistent testimony, the trial court did not abuse its discretion when it
found that the evidence of the debt was not credible. Sufficient evidence supports the
trial court's decision to exclude the alleged Walter Miller debts from the property
distribution.
As to Samuel's second contention, the trial court di~ address the community
obligations owed by C&L Lockers and determined that no debt existed. The trial court
listed the value of C&L as $0. This is supported by Samuel's closing statement that C&L
Lockers did not have any value. The value is also supported by the testimony of Sandra.
Sandra answered affinnatively when Samuel's counsel asked her if the net worth of C&L
Lockers was zero when the company's liabilities were subtracted from its assets.
While Samuel presented a spreadsheet he created which listed five debts and their
amounts, these debts were not listed on the C&L Lockers' company balance sheet as of
September 11, 2011, even though the balance sheet contained the company's assets,
liabilities, and equity. Furthermore, he did not substantiate these debts with receipts or
other documentation. The trial court weighed t:p.e conflicting evidence and found that the
10

. ,
No. 31584-3-III
In re Marriage of Hunt
evidence and testimony for the C&L Lockers' debts listed on Samuel's spreadsheet was
not credible.
The evidence at trial does not support Samuel's contentions on appeal. 	Samuel
failed to substantiate the debts with documentation, although he had the ability and
control over the documentation to do so. Equally, both the trial testimony and exhibits
contain passing references to Walter Miller transactions that were never fully explained or
summarized, although it is clear from the evidence, as discussed above, that the dealings
with Walter Miller were a continuing phenomenon, and included both sales and
purchases. There is simply no credible evidence in the record to corroborate Samuel's
contentions. His testimony at trial was inconsistent and insufficient. Therefore, the trial
court did not abuse its discretion when it refused to include the alleged debts in the
property distribution. The property distribution was fair and equitable.
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No. 31584-3~III
In re Marriage of Hunt
We affIrm.
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.
~(\
Lawrence-Berrey, J.
WE CONCUR:
Fearing,J. 	.
12