Dorin Dunca, Appellant V. Andreea Dunca, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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In re the Marriage of: )
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No. 76235-4-1 2.
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DORIN DUNCA, )
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DIVISION ONE Cfl
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Appellant, )
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ANDREEA DUNCA, )
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UNPUBLISHED
Respondent. ) FILED: April 16. 2018
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Cox, J. — Dorin Dunca appeals from the decree that dissolved his
marriage to Andreea Dunca. He contends the trial court erred in denying a
continuance when he was unable to appear for trial and his counsel withdrew.
But after considering the circumstances, including Dorin's decision to leave the
country, his failure to comply with court-ordered support obligations that resulted
in undisputed acute financial distress for his former wife, and his failure to advise
the court of his financial circumstances or express any willingness to appear for
an expedited trial date, the trial court did not abuse its discretion in denying a
continuance and proceeding with the dissolution trial. We affirm.
Andreea and Dorin Dunca were married in 2003 in Bucharest, Romania.
The couple have three children, who were 12, 9, and 2 at the time of the

No. 76235-4-1/2
dissolution trial. Dorm' is a telecommunications engineer who earned
approximately $146,000 In 2015. Andreea is a mortgage loan assistant who is
currently earning about $40,000 per year.
On May 19, 2016, Andreea filed a petition for dissolution of the marriage.
Both Andreea and Dorin were represented by counsel.
On June 8, 2016, the trial court entered temporary orders requiring Dorin
to pay monthly child support of $3,696.75 and restraining both parties from
"transferring, removing, encumbering, concealing or in any way disposing of any
property except in the usual course of business or for the necessities of life." The
court also ordered Dorin to pay 69 percent of the medical expenses for the
youngest child, who has special medical needs.
The court permitted Andreea to live in the family home and ordered Dorin
to pay "the mortgage, taxes, insurance and HOA fees" on the home. Based on
Andreea's need and Dorin's ability to pay, the court awarded Andreea $3,000 in
attorney fees. The temporary restraining order prohibited Dorin from coming
within 500 feet of the family home or Andreea's workplace, except for purposes
of exchanging the children for residential time. The superior court denied
revision on August 5, 2016.
On October 17, 2016, Andreea learned that Dorin had quit his job and
traveled to Romania. Dorin informed his children by e-mail that he had moved to
'For purposes of clarity, we use the parties' first names.
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Romania. T-Mobile, Dorin's former employer, notified Andreea that the company
no longer provided medical insurance for her and the children.
On October 18, the court entered an ex parte restraining order, halting
Dorin's visitation with the children. The court set the return hearing for November
3. Doffs attorney, who was present at the ex parte hearing, filed a notice of
withdrawal on the following day, October 19.
On November 3, the trial court entered an order "freez[ing1" certain
specified financial accounts. If the financial institutions were unable to freeze the
accounts, the court ordered Dorin to provide a full accounting and transfer °all
liquid funds" into the trust account of Andreea's attorney. The court's order noted
that Dorin's attorney was present at the October 18 hearing and had received
notice of the November 3 hearing before withdrawing.
On November 4, 2016, Andreea moved to have the trial court change the
April 17, 2017 trial date and schedule a trial as soon as possible. In a supporting
declaration, Andreea stated that Dorin had left the country and likely would not
return. Andreea alleged that because Dorin had stopped paying all court-ordered
support obligations, including child support and mortgage payments, she faced
an imminent threat of bankruptcy. Andreea also submitted evidence indicating
that Dorin had been liquidating the accounts identified in the court's November 3
order.
On November 15, the trial court granted Andreea's motion and
rescheduled trial for November 30, 2016. On the same date, attorneys Michelle
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Dellino and Hugo Johnson of the Dellino Law Group entered a notice of
appearance on Dorin's behalf.
On November 28, Dorin moved to continue the new trial date. Counsel
stated that they had a conflict for the trial date and needed time to adequately
prepare for trial. In a supporting declaration signed on November 22, Dorin
acknowledged that he had recently moved to Romania. Neither Dorin's motion
nor his supporting declaration addressed Dorin's failure to pay his court-ordered
support obligations or liquidation of the accounts identified in the November 3
order. Both counsel and Dorin asked the court to reinstate the original trial date
of April 17, 2017.
In her response to Dorin's motion, Andreea recited in detail the financial
hardship that Dorin's actions had caused. She also identified certain accounts
that Dorin had liquidated and transferred to Romania, in violation of the
November 3 court order. Andreea informed the court that Dorin had declined her
offer of a continuance in exchange for his payment of the outstanding support
obligations. Andreea asked the court not to delay the trial more than 1 to 2
weeks and to condition any continuance on Dorin's compliance with the
November 3 court order.
On November 29, the trial court denied Dorin's motion to continue the trial
date.
Dorin moved for reconsideration, and the trial court heard argument on the
motion when the parties appeared for trial on November 30. Rachel Broderick
from the Dellino Law Group advised the court that she was "standing in" for
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Dorin's two "attorneys of record"from the firm, who were out of town. Broderick
explained that the firm had not yet reviewed the discovery or financial information
and that "at this point we're just not ready to go through with trial today,
especially since the attorneys of record just aren't here and couldn't make it."
Broderick asserted that Dorin had just gotten a job in Romania and "does want to
try and make an effort and fix things."
When the court asked Broderick to address Dorin's liquidation of various
accounts and his failure to transfer the funds to a trust account, she responded
that "[w]e really would like time to try and figure out a plan with Mr. Dunca," but
acknowledged she was unaware of any offer by Dorin to return the funds.
The trial court denied reconsideration:
Under those circumstances, where it seems unrebutted that
[Dorin] left relatively abruptly to return to Romania and that he
liquidated accounts in violation of[a] court order and that he failed
to transfer funds in violation of a second court order, that I can't put
very much weight to his representations that he's looking for a job
and he will try to do better.
So I think under those circumstances I do see something of
an emergency. The medical care issue [for the youngest child] is, I
think, a significant issue. ...
I can see that there is a need to establish some level of
support here, certainty here or finality here. And that your client,
given the circumstances, of absenting himself and the manner in
which he proposes to address this family's needs doesn't allow me
to put a great deal of weight on his representations that he is
undertaking to find some other financial way of dealing with thisPi
2 Report of Proceedings(November 30, 2016)at 11-12.
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No. 76235-4-116
Counsel for Dorin then moved to withdraw. The court granted the motion,
noting that counsel "is here on behalf of Mr. Dunca at the beginning of this trial."
The case proceeded to trial, and the court entered a final dissolution
decree and related orders. The court awarded Andreea $15,000 in attorney fees
based on the following findings:
The court finds an award of $15,000 i[s] appropriate based
not only on need vs. ability to pay, but Dorin Dunca's bad faith, and
intransigence, which has cost Andreea Dunca thousands of dollars
in attorney fees and which will likely cost her more in enforcing this
order. The court finds that Dorin Dunca's fleeing of the country,
hurt Andreea Dunca financially, left her with no other choice than to
file numerous motions to protect her interest as best she could, and
is prima facie evidence of bad faith litigation. The court finds Dorin
Dunca is in standing violation of multiple court orders, including
support orders, the parenting plan, and orders concerning restraints
on finances as well as orders requiring him to disclose his accounts
and turn over funds to Andreea Dunca's attorney for safekeeping
until tria1.131
Dorin appeals.
Continuance
Dorin contends the trial court erred by denying his motion for a
continuance and motion for reconsideration. He argues the court failed to
consider the prejudice resulting from his inability to be present at trial and the
denial of an opportunity to be represented by counsel.
The trial court has broad discretion to grant or deny a trial continuance,
and we review its decision only for a manifest abuse of discretion." When
exercising its discretion, the court may properly consider:
3 Clerk's Papers 18.
4 Trummel v. Mitchell, 156 Wn.2d 653,670, 131 P.3d 305(2006).
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the necessity of reasonably prompt disposition of the litigation; the
needs of the moving party; the possible prejudice to the adverse
party; the prior history of the litigation, including prior continuances
granted the moving party; any conditions imposed in the
continuances previously granted; and any other matters that have a
material bearing upon the exercise of the discretion vested in the
court.151
The trial court abuses its discretion if its decision is manifestly unreasonable or is
based on untenable grounds or done for untenable reasons.°
Dorin claims that the trial court should have granted a continuance
because he had only recently retained counsel on November 15, 2016, and the
trial was rescheduled from April 17,2017 to November 30, 2016. Dorin also
asserts, without citation to the record, that he was "unable to attend the new trial
date on such short notice."
But Dorin's arguments, both in the trial court and on appeal, completely
ignore the circumstances surrounding Andreea's request to expedite the trial
date. The record before the trial court was undisputed that Dorin had suddenly
moved to Romania without notice and stopped paying all of his court-ordered
obligations, including child support, mortgage payments, and medical expenses
for the children. Dorin violated two court orders when he liquidated several
accounts and failed to transfer the proceeds to a trust account. In seeking a
continuance, Dorin did not challenge Andreea's contentions that his
abandonment of support obligations caused her significant financial distress,
including the risk of bankruptcy and foreclosure of the family home. The trial
5 Id. at 670-71.
6 State ex rel. Carroll v. Junker 79 Wn.2d 12, 26,482 P.2d 775(1971).
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court's findings that Dorin violated multiple court orders and caused Andreea
financial harm are unchallenged on appeal.
Nor does the record support Dorin's claim that he was "merely asking the
court for a brief continuance, to allow his counsel to be able to appear and
represent his interests? Counsel for Dorin learned of the November 30 trial date
on November 15, the day they filed their notice of appearance. Andreea
provided her proposed trial exhibits to opposing counsel on November 21. But
counsel waited until November 28 to request a continuance and inform the court
that they had a conflict for the scheduled trial date. Counsel did not inform the
court how long they might need to prepare or when counsel would next be
available for a trial. Rather, without any further explanation, counsel asked the
court to reinstate the original trial date of April 17, 2017.
In his supporting declaration, Dorin also asked the court, without further
explanation, to reinstate the original trial date. Dorin provided no meaningful
information on his financial circumstances or ability to appear for trial. Nor did he
indicate how he intended to comply with his support obligations. Dorin also
declined Andreea's offer of a continuance conditioned on Dorin's payment of his
support obligations.
A party's ability to appear personally and counsel's decision to withdraw
are not controlling, but factors the court should consider when determining
whether to grant a continuance. In Odom v. VVilliams,7 the defendant failed to
7 74 Wn.2d 714,446 P.2d 335(1968).
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appear for the first day of a jury trial, and his counsel orally moved for a
continuance, based in part on the defendant's alleged illness. When the trial
court denied a continuance, the defendant's counsel withdrew, and the trial
proceeded. Citing, among other things, the untimeliness of the motion, the
defendant's actions that delayed scheduling the trial, the defendant's "deliberate
absence"from the trial, the potential hardship to the other side and its witnesses,.
and counsel's inability to predict when the defendant might be available for trial,
our Supreme Court held that the trial court did not abuse its discretion in denying
a continuance.°
Here, the trial court considered, among other things, the belated nature of
the motion, Dorin's undisputed failure to comply with support obligations and his
responsibility for Andreea's resulting financial harm, Dorin's failure to address his
support obligations, and counsel's failure to advise the court of the time needed
to prepare for trial or indicate any availability for trial before the originally
scheduled trial date. Under the circumstances, the court reasonably determined
that Andreea's financial need presented an emergency and that she needed
stability and finality in order to address the situation. The court did not abuse its
discretion in denying Dorin's motion for a continuance.
Because Dorin challenges only the trial court's denial of a continuance, we
do not address the provisions of the dissolution decree.
° Id. at 717-18.
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Andreea requests an award of attorney fees on appeal for Dorin's
Intransigence. Dorin has not challenged the trial court's award of attorney fees
for intransigence, and "a party's intransigence in the trial court can also support
an award of attorney fees on appearg But Andreea does not demonstrate any
Intransigence on appeal, or that the earlier intransigence affected the narrowly
framed assignment of error. Accordingly, we deny Andreea's request for
attorney fees on appeal.
Affirmed. 612( M
WE CONCUR:
cce-tre,
° In re Marriage of Mattson, 95 Wn. App. 592, 606, 976 P.2d 157(1999).
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