Opposition Brief — Halvorsen v. Halvorsen

Supreme Court, U.S. |

FILED

2 APR 2 191

No. 90-1377

4 E CLERK

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

MARY CATHERINE HALVORSEN,

Petitioner,

V.

ALBERT (BOYER) HALVORSEN,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Washington

BRIEF IN OPPOSITION

PAUL D. CAREY

(Counsel of Record)

BETTS, PATTERSON & MINEs, P.S.

800 Financial Center

1215 Fourth Avenue

Seattle, Washington 98161-1090

(206) 292-9988

Attorney for Respondent

Witeon - Eras Printing Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

oe Se ee ee

220

REASONS FOR DENYING THE WRIT...

I. THE TELEPHONE APPEARANCE ISSUE...

Il. THE MARCH 7, 1999 ORDER GRANTING

THE MOTION TO UA

r cena 8

APPENDICES:

Appendix A:

Unpublished opinion and decision of Court of

Appeals for State of Washington, Division I,

, onemtapatounaseatiamss

Appendix B:

Unpublished opinion and decision of Court of

Appeals for State of Washington, Division II,

. ssisbealibblieatt

Appendix C:

Order Directing Execution of Quit Claim Deed,

Dated August 4, 1992 .

Appendix D:

Order Granting Motion to Quash and For Related

Relief, Dated March 7, 199900

Appendix E:

Notice of Appeal to Supreme Court of Washington,

e ciessiniepeistiiacuhieuiiies

Appendix F:

Affidavit for Attorneys’ Fees Under RAP 18.9......

11

la

10a

18a

25a

28a

ais

ii

TABLE OF CONTENTS—Continued

Page

Appendix G:

Order Denying Petitioner’s Motion to Modify 5

Clerk’s Ruling; Granting Court’s Motion for

Dismissal and Granting Respondent’s Motion to

Dismiss, Dated June 8, 1990 31a

Appendix H:

Washington Rule of Appellate Procedure 18.99 32a

iii

TABLE OF AUTHORITIES

CASES

Boyles v. Dept. of Retirement Systems, 105 Wn.2d

499, 716 P.2d 869 (1986) *

Federal Land Bank v. Redwine, 51 Wn. App. 766,

755 P. 2d 822 (1988) —

Griggs v. Averbeck Realty, 92 Wn. 24 576, 599 P. 2d

r Rae

Livingston v. Livingston, 43 Wn. App. 669, 719

P. 2d 166 (198

Marriage of Wherley, 34 Wn. App. 344, 661 P.2d

155 (1983) ........... . —

RULES

Washington Court Rules:

Washington Rules of Appellate Procedure 18.9

Page

10

10

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 90-1377

MARY CATHERINE HALVORSEN,

0 Petitioner,

ALBERT ( BOYER) HALVORSEN,

Respondent.

On Petition for a Writ of Certiorari to the

Supreme Court of Washington

BRIEF IN OPPOSITION

INTRODUCTION

The petition for a writ of certiorari filed by Mary

Catherine Halvorsen in this matter is utterly without

merit and should be denied. Her four latest “appeals”

to the Supreme Court of Washington were frivolous, and

they were therefore properly dismissed on the merits

with an award of sanctions payable to Respondent. At

bottom, the petition merely seeks to relitigate settled

matters of state law and raises no issue worthy of this

Court’s review.

STATEMENT

Mary Catherine Halvorsen (herein “Mary Catherine,”

as she prefers), refuses to comply with terms of a 1978

divorce decree relating to what is known as “the North-

woods Terminal property.” Her latest appeals to the

Supreme Court of Washington. dismissal of which give

2

rise to her instant petition, all arise from that refusal.

In fact, that refusal has been at the heart of several

prior appeals by Mary Catherine in this matter, includ-

ing an earlier petition to this Court. (IIa.

Albert (Boyer) Halvorsen and Mary Catherine Hal-

vorsen were divorced by a Decree of Dissolution entered

on February 23 1978 after a lengthy trial in King

County Superior Court. (11a.) As part of the division

of property, Mary Catherine was awarded one-half of

what is known to the parties as “the Northwood Termi-

nal property,” which was then and is now the business

premises of Boyer Towing, Inc. (herein “BTI’’) in Ketchi-

kan, Alaska. Mr. Halvorsen is the founder of BTI, and

has at all times been the president and a major share-

holder of the company. The Northwoods Terminal prop-

erty was then (and is now) essential to the operations

of BTI, and the Decree of Dissolution provided that Mr.

Halvorsen or BTI could purchase Mary Catherine’s one-

half interest in that property for a fixed amount, pay-

able in installments.

Mary Catherine first appealed from numerous aspects

of the 1978 divorce decree under Cause No. 7841-1-I in

Division I of the Court of Appeals of the State of Wash-

ington. As the court there said in an unpublished de-

eision issued July 14, 1980 (la):

The wife appeals from a judgment and decree dis-

solving her marriage to Boyer Halvorsen.

She challenges the property division, award of child

support and the failure of the trial court to award

her maintenance and attorneys’ fees. We modify the

provision of the Decree relating to the ‘Northwoods

Terminal property’ and affirm the judgment and de-

cree in all other respects.

The trial of this action ran from December 20, 1977

through January 13, 1978. The verbatim report of

proceedings comprises seven volumes, meticulously

summarized in 38 pages of detailed findings of fact

3

and followed by ten pages of carefully drafted con-

clusions of law.

Basically the issues raised by the appellant are fac-

tual and she is attempting to have this court re-try

the case.

The court declined, of course, to retry the entire case,

but did modify the award to Mary Catherine with re-

spect to the Northwoods Terminal property. Specifically,

the amount payable to Mary Catherine for her interest

in the Northwoods Terminal Property was increased

from the sum of $234,906 to the sum of $300,025.00.

Mary Catherine next filed three additional pro se ap-

peals, which were consolidated and decided by Division

II of the Court of Appeals of he State of Washington

in an unpublished decision issued on January 12, 1982

(10a). As that court then said:

The petitioner, Mary Catherine Halvorsen, acting

pro se in three consolidated cases, appeals various

orders relating to the enforcement of the decree

dissolving her marriage to the respondent. The pe-

titioner raises a plethora of issues in her three ap-

peals, all of which we find to be without merit. All

the orders appealed from are accordingly affirmed.

Referring specifically to Mary Catherine’s renewal of

her insistent claims with respect to the Northwoods Ter-

minal property, Division II of the Court of Appeals fur-

ther observed that:

The petitioner also argues that the trial court ex-

ceeded its jurisdiction in adding a paragraph to the

decree, while the decree was being appealed, giving

the respondent a half-share of the Northwoods Ter-

minal property. The petitioner does not contend that

the paragraph added to the decree is inconsistent

with the original terms of the decree; instead, she

argues that because the decree did not award the

half-share of the property to either party, she and

the respondent should share it as tenants-in-common.

4

Thus, despite the clear intention of the trial court

to award half of the Northwoods Terminal property

to each spouse, she claims three quarters of it. (13a)

Division II of the Court of Appeals dispensed with

that irrational argument in short order, and then turned

to Mary Catherine’s second argument with respect to the

Northwoods Terminal property, stating:

The petitioner’s second argument that the modifica-

tion was invalid is that the trial court had no juris-

diction over property located in Alaska. This issue

cannot be raised in this appeal because it goes to

the validity of the decree itself, which was affirmed

in the earlier appeal. In any event, the decree was

a valid exercise of the court’s in personam jurisdic-

tion over the parties, even though it affected real

property outside the jurisdiction. (Cit tion omitted.)

During the course of the various appeals just described,

and thereafter, Boyer Towing, Inc. made payment in full

to Mary Catherine for her interest in the Northwoods

Terminal property. She failed, however, to provide a

fulfillment deed, and counsel for Mr. Halvorsen therefore

wrote to Mary Catherine requesting that she provide

BTI with a deed to the Northwoods Terminal property.

Mary Catherine replied:

The Northwoods property is half mine and I have

no intention of selling it.

Moreover, said Mary Catherine:

I have never acknowledged the divorce decree be-

cause I believe I was totally defrauded.

Mr. Halvorsen promptly moved for an order requiring

Mary Catherine to show cause why she should not be

ordered to execute the requisite deed.

At the conclusion of a show cause hearing on August 4,

1989, Commissioner Ralph Moldauer of the King County

Superior Court entered an Order Directing Execution of

5

Quit Claim Deed (18a; herein “the August 4, 1989

Order“). Mary Catherine’s motion to vacate that order

was denied on August 18, 1989. Mary Catherine has not

appealed in any way from the August 18, 1989 order,

and both that order and the August 4, 1989 Order Direct-

ing Execution of Quit Claim Deed are final and non-

appealable. Mary Catherine nonetheless refuses to comply

with those orders, and refuses to provide the requisite

deed.

Because of Mary Catherine’s refusal to provide the

requisite deed, Mr. Halvorsen next filed the August 4,

1989 order in Ketchikan, Alaska under the Uniform

Enforcement of Judgments Act. Before Mr. Halvorsen

could proceed to enforce the Washington order in the

Alaska courts, however, Mary Catherine launched a series

of new pleadings, all of which she cross-filed in both

Washington and Alaska. The primary pleading thus filed

by Mary Catherine was a “Motion to Vacate the 1978

Decree of Dissolution with its Attendant Judgments

under 60(b) (5).” The theory advanced in her Motion

to Vacate is that the February 23, 1978 divorce decree,

which was affirmed by both Division I and Division II

of the Court of Appeals of the State of Washington, is

nonetheless “void” for want of personal jurisdiction over

Mary Catherine. Specifically, she claims that when Mr.

Halvorsen cross-petitioned for dissolution (in response to

her Petition for Separate Maintenance) she was not

served with a Summons. Her contention is patently with-

out merit. The facts of record are that Mary Catherine

joined in the petition for dissolution. Moreover, she re-

peatedly sought affirmative relief in both the trial court

and on appeal, and she cannot now deny the court’s in

personam jurisdiction. Indeed, Mary Catherine received

affirmative relief in her first appeal when Division I of

the Washington Court of Appeals increased the amount

payable to her for her interest in the Northwoods Ter-

minal property.

6

Mr. Halvorsen promptly filed, in the trial court under

the caption of the original divorce proceeding, a motion

for an order quashing Mary Catherine’s motion to vacate

the original divorce decree, scheduling the hearing for

March 7, 1990. Mary Catherine was personally served

with notice of that hearing and was provided with all

supporting materials on February 13, 1990. That notice

generated another barrage of pleadings and correspond-

ence by Mary Catherine. In the trial court, she filed an

“Answer to Motion to Quash and For Related Relief,”

an “Answer to Memorandum of Authorities,” a (pro-

posed) “Order Denying Motion to Quash and Related

Relief,” a “Motion for Appearance by Telephone Con-

ference,” and a (proposed) “Order Granting Motion to

Appear by Telephone Conference.” At the same time, and

in an attempt to stall the trial court proceeding, she filed

in the Supreme Court of Washington a “Notice of Ap-

peal,” a “Motion for Stay” and a (proposed) “Order for

Stay.” She also directed a letter dated February 17, 1990

to the Chief Justice of the Supreme Court of Washington

demanding a stay of proceedings in the trial court. She

also wrote a letter dated February 18, 1990 to the “Cal-

endar Assignment Clerk, King County Superior Court”

demanding that no less than nine King County Superior

Court judges recuse themselves from hearing Mr. Hal-

vorsen’s motion to quash scheduled for hearing on March

7, 1990.

In her Answer to the Motion to Quash, Mary Cather-

ine stated, in part:

Mary Catherine filed a motion to vacate the decree

of dissolution but did not note it for a hearing be-

cause she has offered to settle this matter out of

court.

The apparent reference is to her June 21, 1989 demand

letter stating that “The Northwoods Terminal property

is half mine and I have no intention of selling it

[and] I have never acknowledged the divorce decree be-

cause I believe I was totally defrauded.”

As Mary Catherine further stated in her answer to

Mr. Halvorsen’s motion to quash:

Mary Catherine’s motion to vacate is not an indi-

rect attempt to avoid compliance with the court’s

order directing execution of quit claim deed entered

by Family Court Commissioner Pro Temp Ralph

Moldauer [on August 4, 1989]. Mary Catherine ob-

jected to family court’s jurisdiction in particular

and King County Superior Court’s jurisdiction in

general. No further appeals were pursued because

Mary Catherine does not recognize the jurisdiction

of the state of Washington to dispose of the state of

the out-of-state Alaskan property. A quit claim deed

directly affects title to property and this order di-

recting the quit claim deed to Alaska property di-

rectly affects out-of-state property which is beyond

the jurisdiction of the court. As far as she is con-

cerned that [August 14, 1989] order is void ab

initio and is in effect no order at all.

It clearly mattered not to Mary Catherine that Division

II of the Washington Court of Appeals had squarely re-

solved precisely the same jurisdictional issue against her

in its January 12, 1982 decision. (10a.)

Mary Catherine’s motion to appear by telephone (for

the Motion to Quash set for March 7, 1990) was heard

and denied on March 1, 1990. The motion to quash Mary

Catherine’s motion to vacate the February 23, 1978 de-

cree of divorce was heard and granted on the merits

on March 7, 1990. Mary Catherine chose not to appear,

and she instead filed a series of four appeals in the Su-

preme Court of Washington, all of which were dismissed

as frivolous. This petition followed.

8

REASONS FOR DENYING THE WRIT

The basic problem here is that although Mary Cather-

ine has been paid in full for her one-half interest in the

Northwoods Terminal property, she refuses to execute a

fulfillment deed. She refuses to do so because she also

refuses “to acknowledge” the 1978 divorce decree even

though it has twice been affirmed on appeal. The Au-

gust 4, 1989 order directing that she execute the requisite

deed is final and non-appealable, but she refuses to com-

ply. Mary Catherine’s motion to vacate the February

1978 divorce decree, her motion for telephone appear-

ance, her motion for stay, and her four latest “appeals”

to the Supreme Court of Washington all flow inexorably

from those irrational refusals. Those matters were all

raised by Mary Catherine’s third appeal (27a) from the

trial court orders of March 1, 1990 (denying telephone

appearance) and March 7, 1990 (quashinging her motion

to vacate the 1978 divorce decree). The third appeal

was frivolous, however, and the result was that all four

appeals were dismissed by the Supreme Court of Wash-

ington on June 8, 1990 (3la), with appropriate sanc-

tions under Washington’s Rule of Appellate Procedure

18.9. (28a)

It is well established in Washington that an appeal

is frivolous under RAP 18.9 if:

There are no debatable issues upon which reasonable

minds might differ, and it is so totally devoid of

merit that there is no reasonable possibility of re-

versal.

Federal Land Bank v. Redwine, 51 Wn. App. 766, 770,

755 P.2d 822 (1988). See also, Boyles v. Dept. of Re-

tireemnt Systems, 105 Wn.2d 499, 506-07, 716 P.2d 869

(1986).

Applying that standard to Mary Catherine’s third ap-

peal to the Supreme Court of Washington requires that

it be considered in two parts, as follows:

9

I. THE TELEPHONE APPEARANCE ISSUE

Mary Catherine complains that she was not allowed

to appear in the trial court by telephone to resist Mr.

Halvorsen’s motion to quash her motion to vacate the

1978 divorce decree. Her request to appear by telephone,

however, was addressed to the sound discretion of the

trial court and was made solely for her convenience. Mr.

Halvorsen’s motion to quash was made necessary in the

first place by Mary Catherine’s own motion to vacate

the original divorce decree. Moreover, Mary Catherine

was personally served with notice of the scheduled March

7, 1990 hearing (and provided with all supporting ma-

terials) on February 13, 1990, nearly three weeks in

advance, and she filed extensive written materials in

response.

It was clearly no abuse of discretion for the trial

court to deny Mary Catherine’s motion to appear by

telephone at the hearing scheduled for March 7, 1990.

The test is whether “no reasonable person would have

taken the position adopted by the trial court.” Griggs

v. Averbeck Realty, 92 Wn.2d 576, 599 P.2d 1289 (1979).

No such abuse of discretion occurred in the denial of

Mary Catherine’s motion to appear by telephone. More-

over, the fact is that the entire question of a telephone

hearing on March 7, 1990 is a red herring. It would

have made absolutely no difference whether Mary Cather-

ine had appeared in person, by telephone or by holo-

graphic image at the March 7, 1990 hearing. Nothing

she could have said would alter the dispositive fact that

her motion to vacate the 1978 divorce decree was and

is without merit.

II. THE MARCH 7, 1999 ORDER GRANTING THE

MOTION TO QUASH

Mr. Halvorsen’s motion to quash was made necessary

by Mary Catherine’s motion to vacate the Divorce Decree

of February 23, 1978. Her motion to vacate, however,

10

raised no debatable issues upon which reasonable minds

could possibly differ.” The theory advanced by Mary

Catherine on her motion to vacate was that the 1978

decree is void“ for lack of personal jurisdiction because

she was allegedly not served with a summons when, in

response to her initial Petition for Separate Maintenance,

Mr. Halvorsen cross-petitioned for dissolution of the mar-

riage of the parties. The dispositive fact, however, is

that no summons was required on that cross-petition be-

cause, as stated in both the Decree of Dissolution and the

Findings of Fact entered on February 23, 1978:

.. . counsel for petitioner-wife having in his opening

statement stated that petitioner-wife will not oppose

the entry of a decree of dissolution

Where both spouses join in a petition for dissolution,

there is no party to respond to the petition for dissolu-

tion, and no necessity for service of process. Marriage of

Wherley, 34 Wn. App. 344, 661 P.2d 155 (1983). As

the Wherley court noted, a decree of dissolution is en-

tered “by consent” where both spouses join in the peti-

tion for dissolution. Such was the case here.

Moreover, and even if the foregoing were not so, the

record discloses that Mary Catherine repeatedly invoked

jurisdiction of the Washington courts by seeking relief

during a lengthy trial and on appeal. Indeed, the dollar

amount payable to Mary Catherine for her interest in

the Northwoods Terminal property was increased by

Division I of the Washington Court of Appeals in its

July 14, 1980 decision. (la) Having thus invoked the

jurisdiction of the Washington courts for affirmative re-

lief, and having received affirmative relief from those

courts, Mary Catherine cannot now assert that those

same courts lacked jurisdiction. Livingston v. Living-

ston, 43 Wn. App. 669, 710 P.2d 166 (1986).

After taking the foregoing matters into account, the

Supreme Court of Washington properly dismissed all

four of Mary Catherine’s latest appeals as frivolous on

the merits. The court’s further award of sanctions pay-

11

able to Mr. Halvorsen was based on counsel's affidavit

supporting that award. (28a)

CONCLUSION

For the reasons stated above, the petition for writ of

certiorari should be denied. It raises no issue worthy of

consideration by this Court, and is instead merely an

attempt to relitigate matters properly resolved in the

state court under established Washington law.

PAUL D. CAREY

(Counsel of Record)

BETTS, PATTERSON & MINEs, P..

800 Financial Center

1215 Fourth Avenue

Seattle, Washington 98161-1090

(206) 292-9988

Attorney for Respondent

DATED this 3rd day of April, 1991.

APPENDICES

la

APPENDIX A

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

No. 7841-1-I

DIVISION ONE

IN RE THE MARRIAGE OF

MARY CATHERINE HALVORSEN,

* Appellant,

ALBERT ( BOYER) HALVORSEN,

Respondent.

Filed Jul. 14, 1980

RINGOLD, J.—The wife appeals from a judgment and

decree dissolving her marriage to Boyer Halvorsen.

She challenges the property division, award of child

support and the failure of the trial court to award her

maintenance and attorneys fees. We modify the provi-

sion of the decree relating to the “Northwoods Terminal

Property” and affirm the judgment and decree in all

other respects.

The trial of this action ran from December 20, 1977,

through January 13, 1978. The verbatim report of pro-

ceedings comprises seven volumes, meticulously sum-

marized in 38 pages of detailed findings of fact and fol-

lowed by 10 pages of carefully drafted conclusions of law.

Basically the issues raised by the appellant are factual

and she is attempting to have this court retry the case.

We have reviewed the entire record, including the trial

eT

2a

judge’s carefully considered 23-page oral decision and

conclude that all of the findings of fact are supported by

substantial evidence and will not be disturbed on appeal.

The able trial judge did not abuse his discretion in the

award of child support and in the disallowance of main-

tenance and attorneys fees to the wife. The trial court

has wide discretion and a reviewing court will not sub-

stitute its judgment as what constitutes proper child

support and maintenance where the trial court fixed the

award considering the applicable criteria from RCW

26.09.090 and .100. In re Marriage of Nicholson, 17

Wn. App. 110, 561 P:2d 1116 (1977). Similarly, the

trial court properly considered the standards articulated

in numerous cases such as Robertson v Robertson, 19

Wn. App. 425, 575 P.2d 1092 (1978); In re Harshman,

18 Wn. App. 116, 567 P.2d 667 (1977); and In re Mar-

riage of Young, 18 Wn. App. 462, 569 P.2d 70 (1977).

There is no abuse of discretion demonstrated.

In making the division of the property between the

parties the trial judge sought to divide the community

property equally. Except as to the Northwoods Terminal

Property, the trial court properly concluded the respec-

tive interests of the community and the separate estate

of each.

NORTHWOODS TERMINAL PROPERTY

The trial court made the following finding of fact and |

conclusion of law with respect to the Northwoods Termi- |

nal Property:

28. Properties were acquired jointly by the par-

ties after the marriage as follows:

e. In early 1969, the parties purchased a water-

front property in Ketchikan (the “Northwoods Ter-

minal Property” herein) for the purpose of provid-

ing badly needed loading and distribution facilities

for Boyer Towing. The property was placed in use

3a

by Boyer Towing even before the purchase was con-

summated and rent of $1,325 per month was paid

to the parties. The rental arrangement was formal-

ized by a written lease which commenced as of Sep-

tember 1, 1969, and terminates on August 31, 1979,

at a rental of $1,325 per month which has been paid

quarterly. The lease provided that rentals would be

renegotiated at the end of five (5) years and in-

cluded an arbitration provision in the event the par-

ties could not agree on a revised rental figure. No

action was taken at the end of five (5) years to in-

crease the rental payments. When purchased, the

property was relatively unimproved, containing an

abandoned sawmill which in its then condition was

not useable as a building. Boyer Towing made and

paid for substantial improvements to the building

to make it useful as a warehouse. Such Improve-

ments included the replacement of much of the un-

derlying pilings, construction of a floor, closing in of

the ends of the building, repairing the roof, painting

the building, and other improvements. As so im-

proved, the warehouse has a stipulated fair market

value of $38,088. In addition to the foregoing im-

provements to the warehouse, Boyer Towing made

and paid for other substantial improvements to the

overall property. These included filing and grading;

the installation of a small office building having a

stipulated fair market value of $9,752: the installa-

tion of large oil storage tanks and associated con-

crete foundation, holding tank, walkways, piping

and fence, having a stipulated fair market value of

$26,882; the construction of a dock having a stipu-

lated fair market value of $25,245; and the con-

struction of a loading ramp having a stipulated fair

market value of $32,072. The stipulated fair mar-

ket value of the land alone as filled and graded but

without the other improvements described above

amounts to $469,812. All of the land and improve-

4a

ments are essential to the continued operation of

Boyer Towing.

Conclusion of law No. 8. reads:

The community’s interest in the Northwoods Ter-

minal Property is limited to the real estate which

should be considered community property for pur-

poses of this proceeding. Petitioner has failed to

establish a separate property claim or interest in the

Northwoods Terminal Property entitling her to a

greater ownership interest therein than Respondent.

She has also failed to establish any legal or equit-

able basis for compensating her or the community

for improvements to the property made and paid for

by Boyer Towing. Those improvements have not re-

verted to the community and there is no indication

that such a reversion will take place in the foresee-

able future.

The wife contends that inasmuch as the Northwoods

Terminal real estate has always been community prop-

erty, the improvements made by Boyer Towing, Inc., be-

came part of the realty and therefore inured to the com-

munity estate. The respondent husband contends that

most of the improvements are removable and therefore

are not fixtures. Should they be deemed fixtures, he ar-

gues, they are trade fixtures and properly owned by the

tenant Boyer Towing, Inc. Proper characterization of the

improvements as separate or community property turns,

then, upon a determination whether the improvements

are fixtures, or trade fixtures.

Nowhere in the findings or the oral decision does the

court indicate his decision whether the improvements are

fixtures or his determination of the separate or commu-

nity character of the improvements. From the court’s

statement that the petitioner “has . failed to estab-

lish any legal or equitable basis for compensating her or

the community for improvements” we may infer that

the trial court conceived the character of the improve-

5a

ments as separate property. Because in] making the

property division, the court must bear in mind the cor-

rect community or separate property status of the prop-

erty to be divided,” and because “if it fails to do so, its

division of the property constitutes reversible error,” we

examine the character of that property. Pollock v. Pol-

lock, 7 Wn. App. 394, 399, 499 P.2d 231 (1972); see

also Blood v. Blood, 69 Wn.2d 680, 682, 419 P.2d 1006

(1966).

Our analysis starts with the restatement of the com-

mon law principle in Lipsett Steel Prod., Inc. v. King

County, 67 Wn.2d 650, 652, 409 P.2d 475 (1965):

“The true criterion of the fixture is the united

application of these requisites: (1) Actual annexa-

tion to the realty, or something appurtenant thereto;

(2) application to the use or purpose to which that

part of the realty with which it is connected is ap-

propriated; and (3) the intention of the party mak-

ing the annexation to make a permanent accession

to the freehold.” . . .

See also, Department of Revenue v. Boeing, 85 Wn.2d

663, 667, 538 P.2d 505 (1975).

As indicated by a noted authority:

Fixtures may be said to be in the twilight zone

between real and personal property. Persona! prop-

erty, in order to lose its character as a chattel and

become a fixture, must be annexed to the realty

either actually or constructively, must be appro-

priated to the use of that part of the realty with

which it is connected and must be intended as a per-

manent accession to the freehold.

1 G. Thompson, Real Property, § 55 at 181-82 (1980).

There is no question the improvements are actually an-

nexed to the realty and that the improvements are ap-

propriated to the use of that part of the realty with

da

that they are not trade fixtures, and that, therefore, they

are community property.

The trial court erred in failing to ascribe the value of

the repairs and improvements to the community. Pollock

*. Pollock, supra. The petitioner's interest in the North-

woods Terminal Property must be increased to include

one-half the value of the improvements.

The decree provides an option “to either Boyer Towing

or respondent husband to elect on or before July 30.

1979, to pay petitioner wife the sum of $234,906 for her

interest in the Northwoods Terminal Property.” We

modify the decree to increase the wife's interest therein

to $300,925, and modify the right provided to Boyer

Towing and to respondent husband to purchase her in-

terest for the sum of $300,925. We further modify the

decree by amending the date, July 30, 1979, in the de-

cree, to read: “The end of business hours 30 days after

the mandate pursuant to RAP 12.5(b) is issued by the

State Court of Appeals.” The decree is affirmed in all

other respects.

This case has entailed extensive litigation, an extraor-

dinary number of motions and counsel fees now ex-

ceeding $100,000. The respondent husband requested

tnat this court impose attorneys’ fees upon the petitioner

as sanctions under RAP 10.7. The petitioner's brief is

126 pages long. with a 46-page appendix. The length of

petitioner's brief violates RAP 10.4(b). Furthermore,

the brief violates RAP 10.3(a)(3) and RAP 10.3(g). It is

difficult to find the claimed errors, issues and arguments

in petitioner's brief. The references to the findings are

not helpful to determine challenged portions of the find-

ings which are hidden in the labrythine appendix.

We have given serious consideration to the respond-

ent’s request for the imposition of attorneys’ fees as

sanctions but consider the comment here a sufficient rep-

rimand. Each party shall hear his or her own attorneys’

fees and costs incurred in this appeal.

———— . ——————— ——

10a

APPENDIX B

IN THE COURT OF APPEALS

OF THE STATE OF WASHINGTON

No. 5110-II

No. 5453-Il

No. 5791-II

Division Two

Unpublished Opinion

IN THE MATTER OF THE MARKIAGE OF

MARY CATHERINE HALVORSEN,

Appellant,

and

ALBERT ( Boum HALVORSEN,

Respondent.

Filed January 12, 1982

PEARSON, J.—The petitioner, Mary Catherine Hal-

vorsen, acting pro se in three consolidated cases, appeals

various orders relating to the enforcement of the decree

dissolving her marriage to the respondent. The peti-

tioner raises a plethora of issues in her three appeals, all

of which we find to be without merit. All the orders

appealed from are accordingly affirmed.

The petitioner and the respondent were married in

May 1965. At that time, the respondent owned and

operated a successful barge-towing operation which con-

tinued to prosper during the marriage. The record on

appeal suggests that the respondent was considerably

more wealthy than the petitioner when they married.

The couple had three children, born in 1966, 1968, and

1970. In October 1976, the couple separated, and their

marriage was dissolved, after an extensive trial, by a

decree of the King County Superior Court on February

23, 1978. The petitioner appealed the dissolution decree

to Division I of this court; the decree was affirmed in

all but one minor respect on July 14, 1980. Her motion

for reconsideration was denied on August 11, 1980: her

motion for review by the Supreme Court was denied on

November 7, 1980; and her mandamus petition to the

United States Supreme Court was denied on April 27,

1981.

Only two provisions of the decree are directly relevant

to this appeal. One provision awarded the petitioner a

hulf-interest in property purchased by the couple in

Alaska (the Northwoods Terminal Property); this half-

interest was subject to an option to purchase in favor of

the respondent. The decree did not explicitly provide for

the disposition of the other half of the Northwoods prop-

erty. The second relevant provision declared the family

residence on Bainbridge Island to be the respondent's

separate property, but the petitioner was given the right

to live in the residence until her youngest child reached

IS years of age. The respondent was given “the righ*

to unrestricted but reasonable use of and access to the

garage” attached to the residence. He was also required

to keep the exterior of the residence in “reasonably good

condition and repair.”

The first of the three consolidated appeals arises out

of two orders made by the King County Superior Court

on November 30, 1979. The first of these orders allowed

the respondent to inspect the interior of the Bainbridge

Island residence once every three months. The second

order added a paragraph to the dissolution decree award-

ing the respondent an undivided half share in the North-

woods Terminal Property. This appeal was filed in Divi-

sion I on December 28, 1979, and was transferred to

this court on October 22, 1980.

l2a

The petitioner attacks on a number of grounds the

trial court's order granting the respondent limited in-

spection rights of the Bainbridge Island residence. Most

of the petitioner's arguments are directed at the provi-

the dissolution decree declaring the residence to

rally

lenge to the decree in this appeal. Seattle-First Nat'l

Bank v. Kawechi, 91 Wn.2d 223, 588 P.2d 725 (1978)

Only two of the petitioner's arguments directly challenge

the inspection order. First, she argues that the order

violates her Fourteenth Amendment right to privacy. No

authority was cited for this proposition. The limited in-

spection right appears to be a reasonable measure to

enforce the provisions of the decree; the petitioner is

entitled to two weeks" notice before inspections, she may

reschedule an inspection conflicts with her activities, and

inspections are limited to one hours every three months.

This does not violate the petitioner's right to privacy.

Second, the petitioner argues that the trial court was

without jurisdiction to grant the limited inspection right.

No authority is cited in support of this proposition. It

is clear that, although was pending when the

had jurisdiction to en-

force its decree pending appeal because the petitioner

| RAP 7.2ic). Fite v.

Lee, II Wn. App. 21, 31, 521 P.2d 964 (1974).

13a

share it as tenants-in-common. Thus, despite the clear

intention of the trial court to award half of the North-

woods Terminal Property to each spouse, she claims

three quarters of it.

The petitioner makes two arguments that the order

modifying the decree was invalid. First, the order was

entered while the decree was under appeal to Division |

of this court. The trial court is authorized to modify a

decision that is on appeal only with the permission of

the appellate court. RAP 7.2%, No such permission

was obtained prior to the making of the modification at

issue here. However, the modification appears to us to

be quite reasonable; it is consistent with the other terms

of the decree, and the petitioner makes no argument that

it unfairly represents the intent of the trial court. Jus-

tice seems to require here that compliance with RAP

7.2(e) be waived pursuant to RAP 1.2 a. Accordingly,

we hold that the technical irregularity of failure to ob-

tain prior appellate court permission for the modification

does not impair the validity of the order.

The petitioner’s second argument that the modifica-

tion was invalid is that the trial court had no jurisdic-

tion over property located in Alaska. This issue cannot

be raised in this appeal because it goes to the validity of

the decree itself, which was affirmed in the earlier ap-

peal. In any event, the decree was a valid exercise of the

court's in personam jurisdiction over the parties, even

though it affected real property outside the jurisdiction.

See Annot., 34 A.L.R.3d 962, £4/a] (1966). The orders

of November 30, 1979, are therefore both valid and en-

forceable.

The petitioner's second appeal is from orders made by

Commissioner Gaddis of the King County Superior Cour‘.

On February 17, 1981, Commissioner Gaddis appointed

a referee to investigate difference between the petitioner

and the respondent regarding the respondent's right to

visit his children. The cost of the referee's services was

— A . — — —

1a

to come out of funds held in trust for the children. On

March 3, 1981, Commissioner Gaddis found the peti-

tioner in contempt for failing to comply with an order

of April 17, 1979, to allow the respondent reasonable use

of the garage at the Bainbridge Island residence, and

awarded the respondent $750 attorney's fees. Both of

these orders were affirmed by Judge Scholfield of the

King County Superior Court. The petitioner's appeal to

this court from these orders was consolidated with her

previous appeal.

The petitioner contends, first, that she was improperly

held in contempt for failing to allow the respondent rea-

sonable use of and access to the garage. She argues that

because she never locked the garage she did not deny the

respondent access to it. However, it is uncontested in the

affidavits filed in respect of the contempt motion that the

petitioner restricted the respondent's use of the garage

by storing personal property in it. The construction of

a decree is a question of law for a reviewing court to

decide. In re Marriage of Gimlett, 95 Wn.2d 699, 704-

05, 629 P.2d 450 (1981). In this case, it is clear that

the petitioner denied the respondent the unrestricted use

of the garage, and the contempt order is therefore

affirmed.

Second, the petitioner contends that the order of April

17. 1979, is void because it was issued while an appeal

of the decree was pending. It is not clear from the we-

ord before us whether in fact review had been accepted

by an appellate court on April 17, 1979. Nevertheless,

even if an appeal had been pending, the order to enforce

the decree would be valid, since enforcement of the de-

cree was neither superseded by the trial court, RAP

7. 2e, nor stayed by this court, RAP 8.3.

The petitioner next contends that the order of Feb-

ruary 17, 1981, requiring her to clean out the garage

and remove her cars, trash and personal property, was

15a

an improper modification of the decree. However, the

affidavits in the record make it clear that the petitioner

belongings restricted the respondent's use of the garage.

The order was a reasonable measure to enforce the clear

meaning of the decree. It was a clarification of the de-

cree, rather than an invalid modification. Rivard „.

Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969). The

petitioner also claims that the order of February 17,

1981, declaring that the respondent had no obligation to

wash windows or clean the Bainbridge Island residence,

is an invalid modification of the decree. Again, the order

merely clarified the provision in the decree requiring the

respondent to keep the exterior of the residence in “rea-

sonably good condition and repair.”

The petitioner claims that the Commissioner was with-

out jurisdiction to rule on the validity of the trial court's

April 17, 1979, order. As discussed already, the April 17

order was valid. Moreover, the petitioner cites no au-

thority to support her contention and it therefore need

not be considered on appeal. Ju re Marriage of Croley,

91 Wn.2d 288, 294, 588 P.2d 738 (1978). In any event,

the Commissioner's jurisdiction is clearly established by

King County Superior Court Local Rule 0.5, pursuant

to RCW 2.24.040/4).

The petitioner claims that she was denied her Four-

teenth Amendment right to equal protection of the law

because her motions were heard by a commissioner

rather than a judge. The contention is not supported by

authority, and ia without merit.

Her next point, also without supporting authority, is

that the Commissioner was without jurisdiction under

RCW 2.24.050 to award attorney's fees in the contempt

motion. The Commissioner's authority is derived from

RCW 2.24.0040 (4% which provides that commissioners

shall have authority to act as referees in matters re-

ferred to them by the superior court. The superior court

in Local Rule 0.5 referred to commissioners all matters

16a

relating to motions in marriage dissolution cases. An

award of attorney's fees on a motion for contempt to

enforce a dissolution decree is within this broad juris-

diction.

The petitioner challenges, without citing authority, the

order of February 17, 1981, providing that the fees of

the referee be paid out of funds held in trust for the

children. The referee was appointed to resolve differ-

ences between the petitioner and respondent over visita-

tion of the children. The referee’s study is for the chil-

dren’s benefit and it is not an abuse of discretion to set

reasonable terms for the use of funds held in trust for

the children. Abel v. Abel, 47 Wn.2d 816, 289 P.2d 724

(1955).

Finally, in the petitioner's catalog of grievances, is the

contention, unsupported by authority, that the Commis-

sioner abused his discretion in awarding respondent at-

torney's fees of $150 on March 3, 1981. Fees may be

awarded in contempt proceedings. RCW 7.20.100. An

award of fees is within the Commissioner's discretion,

and will be upset only on the basis that no reasonable

person would have made the award. State ex rel. Carroll

v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

The respondent requests an award of attorney's fees

on this appeal on the basis that RCW 7.20.100 author-

izes an award of attorney's fees incurred by a party

in defending a contempt order. Johnston v. Beneficial

Management Corp., 26 Wn. App. 671, 677-78, 614 P.2d

661 (1980). The request is based also on the petitioner's

failure to comply with RAP 10.30 (4) and (5). The

petitioner failed in her original brief to make reference

to the record, but filed an amended brief which complies

with the rule. However, most of the “issues” raised by

the petitioner are unsupported by authority. Although

she is not represented by counsel on this appeal, the pe-

titioner is a well educated woman and has had experi-

ence in appellate procedure. She has been previously ad-

l7a

monished by another division of this court for her failure

to comply with RAP 10.3. We award the respondent at-

torney’s fees in the amount of $4,000 in this appeal.

We now consider briefly the third of the consolidated

appeals. On July 13, 1981, the petitioner moved the King

County Superior Court for increased child support,

pending her two consolidated appeals. Commissioner

Gaddis denied the motion on August 4, 1981, on the

grounds that he had no jurisdiction pending an appeal.

RAP 7.2(e). The respondent appealed to this court. On

August 31, 1981, this appeal was consolidated with the

two previous appeals. The petitioner then moved this

court for a temporary increase in child support. This

motion was denied on October 8, 1981, on the grounds

that the trial court had been given permission to modify

the child support under RAP 7.2/e). The issue in the

third appeal has therefore been rendered moot, having

been disposed of by the order of October 8, 1981.

All of the orders appealed from are accordingly af-

firmed and respondent is awarded attorney's fees of

$4,000 incurred in defending the contempt order of

March 3, 1981.

A majority of the panel having determined that this

opinion will not be printed in the Washington Appellate

Reports but will be filed for public record pursuant to

RCW 2.06.040, it is so ordered.

WE CONCUR:

Pearson, J.

s/ [IMegible]

Inegible

18a

APPENDIX ©

IN THE SUPERIOR COURT

OF WASHINGTON FOR ANG COUNTY

No. D-80812

IN RE THE MARRIAGE OF

MARY CATHERINE HALVORSEN,

Petitioner,

and

Apert (Rover! HALVORSEN,

Respondent.

ORDER DIRECTING EXECUTION

OF QUIT CLAIM DEED

THIS MATTER having come on for having before the

undersigned Judge Court Commissioner of the above-

entitled court, upon the motion of Albert (Boyer) Halvor-

sen for an order directing that Mary Catherine Halvorsen

show cause why she should not be ordered to execute a

quit claim deed conveying her interest in what is known

as the Northwoods Terminal property to Boyer Towing.

Ine, and the court having considered the submissions of

the parties and reviewed the records and files herein, and

the court being otherwise fully advised in the premises,

and the court finding that the relief sought by Albert

(Boyer: Halvorsen should be granted, it is hereby

ORDERED, ADJUDGED AND DECREED that Mary

Catherine Halvorsen is hereby directed to execute a quit

claim deed in the form attached hereto conveying her in-

terest in what le known as the Northwoods Terminal

property to Royer Towing, Inc. and to deliver said quit

th 20a

TRANSAMERICA Transamerica

Title Insurance Services Title Insurance Company

This Space Provided

for Recorder’s Use

FILED FOR RECORD AT REQUEST OF

WHEN RECORDED RETURN TO

Name Livingston Wernecke

Betts Patterson & Mines, P.S.

Address 800 Financial Center

1215 Fourth Avenue

City, State, Zip Seattle, WA 98161

LPB-12

QUIT CLAIM DEED

THE GRANTOR MARY CATHERINE HALVORSEN,

a single woman, 10924 N.E. Bill Point Court, Bainbridge

Island, Washington 98110,

for and in consideration of the fulfillment of the Real

Estate Contract dated July 31, 1979,

conveys and quit claims to BOYER TOWING, INC.,

P. O. Box 8000, Ketchikan, Alaska 99901

the following described real estate, situated in the

Ketchikan Recording District, First Judicial together

with all after acquired title of the grantor(s) therein.

District, State of Alaska,

SEE EXHIBIT A ATTACHED HERETO

Dated 1989

MARY CATHERINE HALVORSEN

(Individual)

22a

poses therein mentioned, and on oath stated that

authorized to execute the said instrument and that the

seal affixed is the corporate seal of said corporation.

Witness my hand and official seal hereto affixed the day

and year first above written.

Notary Public in and for the State of Washington,

residing at

My appointment expires:

=

EXHIBIT A

PARCEL NO. 1

All and entire Lot Four (4), Block One-A (1 A) Tide

lands Addition to U. S. Survey 1408, Ketchikan, Alaska,

together with all improvements situate thereon; together

with the appurtenances thereunto belonging or in any-

wise appertaining.

PARCEL NO. 2

All and entire Lot Two (2), Block One-B (1-B), Tide-

lands Addition to U. S. Survey 1813, Ketchikan, Alaska,

together with all improvements situate thereon; together

with the appurtenances thereunto belonging or in any-

wise appertaining.

PARCEL NO. 3

All and entire the following described portion of U. S.

Survey 1408: Commencing at Corner Number Two 2

meander corner of U. S. Survey 1408; thence East on the

North Line of U. S. Survey 1813, a distance of 117.50

feet to intersect the southwesterly sideline of Tongass

Avenue; thence N 50°00’ W along the southwesterly side-

line of Tongass Avenue 219.20 feet; thence S 52“ 45˙ W

16 feet to the meander line of U. S. Survey 1408; thence

southerly along said meander line back to the true point

of beginning; together with all improvements situate

thereon; together with the appurtenances thereunto be-

longing or in anywise appertaining.

PARCEL NO. 4

All and entire that following described portion of U. S.

Survey 1813: Commencing at Corner No. 1 Meander

Corner of U. S. Survey 1813, which point is a true point

of beginning of the tract herein described; thence from

said true point of beginning, East along the north bound-

ary line of U. S. Survey 1813, a distance of 131.02 feet

24a

to the southwest line of Tongass Avenue; thence S 5000’

E on the southwest line of Tongass Avenue 165.10 feet;

thence S 4324’ W a distance of 192.00 feet, more or less,

to the Meander line of U. S. Survey 1813; thence north-

westerly along said Meander line back to the true point

of beginning; together with all improvements situate

thereon; together with the appurtenances thereunto be-

longing or in anywise appertaining.

25a

APPENDIX D

SUPERIOR COURT OF WASHINGTON

FOR KING COUNTY

No. D-80812

IN RE THE MARRIAGE OF:

MARY CATHERINE HALVORSEN,

Petitioner,

V.

ALBERT ( BOYER! HALVORSEN,

Respondent.

ORDER GRANTING MOTION TO

QUASH AND FOR RELATED RELIEF

(Clerk's Action Required

THIS MATTER having come on for hearing before the

undersigned Judge of the above-entitled Court upon the

motion of Albert (Boyer) Halvorsen for an order quash-

ing the motion of Mary Catherine Halvorsen to vacate

the Decree of Dissolution of Marriage entered herein on

February 23, 1978, Albert (Boyer) Halvorsen appearing

through his attorney Payl D. Carey of the law firm of

Betts, Patterson & Mines, P.S.. and Mary Catherine

Halvorsen appearing in person pro se, and the Court hav-

ing reviewed the records and files herein and considered

the argument and submissions made by the parties and

being otherwise fully advised in the premises, it is hereby

ORDERED, ADJUDGED AND DECREED that the

motion of Albert (Boyer) Halvorsen is hereby granted

and Mary Catherine Halvorsen's motion to vacate the

Decree of Dissolution of Marriage entered herein on Feb-

ruary 23, 1978 is hereby quashed, and it is further

ORDERED, ADJUDGED AND DECREED that Mary

Catherine Halvorsen shall not plead or otherwise act fur-

ther in this matter in any way until she has fully com-

plied with this Court's August 4, 1989 order directing

execution of quit claim deed by delivering a fully executed

deed in the requisite form to Boyer Towing, Inc.

DATED this 7 day of March, 1990.

loyd Bever

Judge

Presented by:

Betts, PaTTerson & Mines, P.S.

By: Paul D. Carey

Pal. D. CAREY

WSBA 200135

Attorneys for Albert Boyer

Halvorsen

Approved as to Form, Notice of

Presentation Waived:

By:

MARY CATHERINE HALVORSEN

Petitioner, Pro Se

LS eee

27a

APPENDIX E

THE SUPERIOR COURT OF WASHINGTON

FOR KING COUNTY

No. D-80812

IN RE THE MARRIAGE OF

MARY CATHERINE HALVORSEN,

Petitioner,

v.

ALBERT (| BOYER! HALVORSEN,

Respondent.

NOTICE OF APPEAL

Filed Mar. 19, 1990

Notice is hereby given that Mary Catherine Halvorsen

appeals the Order of March 1, 1990 denying her the right

to appear by telephone and the Order of March 7, 1990,

granting a Motion to Quash Her Motion to Vacate, to the

Washington State Supreme Court.

DATED this 13th day of March 1990.

s/ Mary Catherine Halvorsen

MARY CATHERINE HALVORSE

Pro se

28a

APPENDIX F

IN THE WASHINGTON STATE SUPREME COURT

No. 56792-0

MARY CATHERINE HALVORSEN,

Appellant,

vs.

ALBERT ( BOYER) HALVORSEN,

Respondent.

AFFIDAVIT FOR ATTORNEYS FEES

UNDER RAP 18.9

STATE OF WASHINGTON )}

ss.

COUNTY OF KING )

Paul D. Carey, upon being first duly sworn, on oath

states as follows:

1. I am counsel of record in this matter for the re-

spondent, Albert (Boyer) Halvorsen. I am a member in

good standing of the Bar of the State of Washington,

have personal knowledge of all matters set forth herein,

and would be competent to testify thereto if called upon

to do so.

2. I make this affidavit in support of an award of at-

torneys’ fees and costs in this matter under RAP 18.9

3. The four appeals recently filed by Mary Catherine

Halvorsen in this matter are all redundant and ulti-

mately frivolous, as shown in the Motion to Dismiss filed

with this affidavit. All of those appeals arise because

,

29

Mary Catherine refuses to comply with terms of à 1978

divorce decree. She has been paid in full for her inter-

est in a parcel of real property covered by that decree,

refuses to provide a fulfillment deed, and refuses to com-

ply with an August 4, 1989 order of the King County

Superior Court directing that she execute and deliver

the requisite deed. Instead, she has manufactured pro-

cedural confusion and delay with a Motion to Vacate the

1978 decree of divorce, and with motions for telephone

appearance and stays, all of which she has now parleyed

into four spurious appeals to this court. Indeed, her four

“Notices of Appeal” are sufficiently confused that Mary

Catherine has now moved for “clarification” of the pro-

cedural mess created by her own redundant flings.

4. The motion to vacate the 1978 divorce decree.

though groundless, has stalled efforts to enforce the di-

vorce decree and the August 4, 1989 order in the Alaska

courts, and clouds title to the Northwoods Terminal

property. That delay is now being compounded by her

four present appeals to this court.

5. Mary Catherine filed her motion to vacate the 1978

divorce decree in King County Superior Court in Janu-

ary of 1990. The numerous pleadings filed by Mary

Catherine in the trial court and on appeal have been

complex and confusing, and have required extensive writ-

ten responses and several court appearances. Those ef-

forts on behalf of Mr. Halvorsen and Boyer Towing.

Inc. have to date consumed 77.2 hours of attorney and

paralegal time, and reasonable attorneys’ fees of

$10,500.00, plus costs of $701.75. Just explaining the

procedural history and unraveling the confusing appeals

for purposes of a motion to Dismiss has consumed 25

pages of explanation and an appendix of 33 exhibits.

The cost of service of process on Mary Catherine alone

exceeds $200.00, each time, because she has moved to a

remote village in Vancouver, British Columbia. and her

home is only accessible by boat, weather permitting. Ab-

30a

sent her refusal to comply with lawful court orders, how-

ever, and her refusal to provide a deed to property for

which she was long ago paid in full, all such fees and

costs would be totally unnecessary.

6. I respectfully submit that Mary Catherine’s be-

havior in this matter is inexcusable, and that the court

should dismiss the pending appeals and direct that she

reimburse Mr. Halvorsen and Boyer Towing, Inc. for the

full amount of all attorneys’ fees and costs they have

incurred in this matter since January of 1990.

DATED this 9th day of May, 1990.

/s/ Paul D. Carey

PauL D. CAREY

Affiant

SUBSCRIBED and SWORN to before me on this 9th

day of May, 1990, by Paul D. Carey.

s Paula R. Gohrich

Notary Public for the

State of Washington

Residing at Seattle, WA

My Commission expires 09 29 92

——

0 8la

APPENDIX G

THE SUPREME COURT OF WASHINGTON

No. 56972-0

MARY CATHERINE HALVORSEN,

Petitioner,

V.

ALBERT ( BOYER) HALVORSEN,

Respondent.

ORDER DENYING PETITIONER'S MOTION TO

MODIFY CLERK’S RULING; GRANTING COURT'S

MOTION FOR DISMISSAL AND GRANTING

RESPONDENT'S MOTION TO DISMISS

This matter came before Department I of the Court

on its June 5, 1990, Motion Calendar on Petitioner's

. Motion to Modify Clerk Ruling; Court’s Motion for Dis-

missal and Respondent’s Motion to Dismiss. Department

I having considered the motion and the files herein:

Now, therefore, it is hereby

ORDERED:

That Petitioner’s Motion to Modify Clerk's Ruling is

denied; Court’s Motion for Dismissal is granted and Re-

spondent’s Motion to Dismiss is granted.

Respondent’s motion for terms is granted. Petitioner,

Halvorsen, is ordered to pay $5,500.00 as compensatory

damages to Respondent. If the award is not paid by

August 1, 1990, the Clerk of the Supreme Court is di-

rected to transmit the award to King County Superior

Court with direction to enter a judgment is accordance

with the award.

DATED at Olympia, Washington this 8th day of June,

1990.

Keith M. Callow

Chief Justice

32a

APPENDIX H

RULE 18.9 VIOLATION OF RULES

(a) Sanctions. The appellate court on its own initia-

with these rules to pay terms or compensatory damages

to any other party who has

the failure to comply. The appellate court may condi-

tion a party's right to participate further in the

on compliance with terms of an order or ruling including

payment of an award which is ordered by the party.

If an award is not paid within the time specified by the

court, the appellate court will transmit the award to the

superior court of the county where the case arose and

direct the entry of a judgment in accordance with the

award. ,

(b) Dismissal on Motion of Commissioner or Clerk.

The commissioner or clerk, on 10 days’ notice to the par-

ties, may (1) dismiss a review proceeding as provided

in section (a) and (2) except as provided in Rule 18.8

(b), will dismiss a review proceeding for failure to

timely file a notice of appeal, a notice for discretionary

review, a motion for discretionary review of a decision

of the Court of Appeals, or a petition for review. A

party may object to the ruling of the commissioner or

clerk only as provided in Rule 17.7.

(e) Dismissal on Motion of Party. The appellate court

will, on motion of a party, dismiss review of a case (1)

for want of prosecution if the party seeking review has

abandoned the review, or (2) if the application for re-

view is frivolous, moot, or solely for the purpose of delay.

or (3) except as provided in Rule 18.8(b), for failure to

timely file a notice of appeal, a notice for discretionary

review, a motion for discretionary review of a decision

of the Court of Appeals, or a petition for review.

(d) Objection to Ruling. A counsel upon whom sanc-

tions have been imposed or a party may object to the

ruling of a commissioner or the clerk only as provided in

Rule 17.7.

[Amended effective September 1, 1990.)