In re the Marriage of: Duane R. Cook and Elaine M. Cook

FILED
Aug. 11, 2016
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. 33243-8-111
)
DUANE R. COOK, 	)
)
Respondent, 	) 	UNPUBLISHED OPINION
)
and 	)
)
ELAINE M. COOK, 	)
)
Appellant. 	)
PENNELL, J. - 	Duane Cook and Elaine Cook have a divorce decree requiring them
to cooperate in the sale of their home. Both claim breach. The superior court
commissioner sided with Ms. Cook, but on revision the superior court judge sided with
Mr. Cook. We agree with the superior court judge's disposition and therefore affirm.
FACTS
The parties' decree of dissolution provides, in pertinent part, as follows:
3.4 	SALE OF FAMILY HOME
The family home of the parties shall be immediately listed for sale and sold
at a price which reasonably reflects the fair market value of the same
(appraised at $450,000.00 and therefore sale price should be reasonably
close to this value) .... [B]oth parties shall mutually employ the services of
a licensed real estate agent to assist with the sale of the property and each
party shall fully cooperate in the sale of the real property. Such cooperation
shall include ... signing all documents necessary to list the property,
maintain the property in a manner directed by the real estate agent, and
make the property available for potential buyers. . . . Each party shall also
have access to the realtor and neither party shall change the listing price, the
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terms of the sale, or the realtor without the written consent of the other or
upon an order of the court after hearing .... All offers of purchase shall be
communicated to each party in a timely manner.
In the event the parties are unable to agree on any matter or issue regarding
the home, the issue shall be decided on the ex parte motion calendar with
the Spokane County Superior Court on five days' notice to the opposing
party . . . . The judicial officer may then decide the issues. . . . The
associated costs and expense of each party shall be borne by that party.
Clerk's Papers (CP) at 16-17.
Consistent with the decree, the parties retained a real estate agent who listed the
home at an above-market price of $469,900. Thereafter, an offer came in at the market
value of $450,000. The agent communicated the offer to Ms. Cook. According to the
agent, Ms. Cook then told her "she needed to speak with someone and would be in
touch." CP at 37. According to Mr. Cook, Ms. Cook refused to agree to the sale. The
real estate agent observed that Ms. Cook was generally uncooperative in the sale process.
Thereafter, the agent worked with Mr. Cook to propose a counteroffer of $455,800,
which the agent believed to be a reasonable price. The counteroffer was accepted.
A few days after signing off on the counteroffer, Mr. Cook filed a motion in
superior court to require the sale of the home. Ms. Cook responded, alleging a violation
of the decree. Ms. Cook complained that the counteroffer had never been communicated
to her and that she would not have agreed to the counteroffer in any event. Ms. Cook
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explained she had hoped Mr. Cook would agree to her purchase the home. Because he
did not do so and instead accepted a counteroffer without her consent, Ms. Cook sought
the court's permission to purchase the home herself.
The superior court commissioner ruled in favor of Ms. Cook and entered an order
allowing her to purchase the home. The order gave Ms. Cook a deadline for making an
offer and stated that the offer must net Mr. Cook more than he would receive under the
existing agreement for $455,800. Prior to the offer deadline, Mr. Cook filed a motion to
revise the commissioner's order. On revision, the superior court judge granted relief to
Mr. Cook. The judge found the decree regarding the sale of the home clear and required
Ms. Cook to sign the counteroffer in the amount of $455,800. Ms. Cook appeals.
ANALYSIS
When ruling on a motion for revision, the superior court reviews the
commissioner's decision based on the evidence and issues before the commissioner. In re
Marriage of Moody, 137 Wn.2d 979, 993, 976 P.2d 1240 (1999). Where, as here, "the
evidence before the commissioner did not include live testimony," the superior court's
review is de novo. Id. 	On appeal, this court reviews the superior court's ruling, not the
commissioner's. In re Marriage of Fairchild, 148 Wn. App. 828,831,207 P.3d 449
(2009).
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Both parties allege the other side violated the terms of the decree. Ms. Cook
claims Mr. Cook accepted a counteroffer without consulting her. Mr. Cook argues that
Ms. Cook never worked with him or the agent in good faith. 	There may well be fault on
both sides. In the end, we agree with the superior court that the parties' decree required
both Mr. and Ms. Cook to sell the home at a price reasonably close to the fair market
value of $450,000. Both the original offer and the counteroffer met this requirement.
Given this circumstance, the superior court judge appropriately ordered the sale. The
ruling is affirmed.
Because no sufficient showing has been made to justify an award of attorney fees,
each side shall bear its own costs.
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.
Pennell, J.
WE CONCUR:
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