Washington

Warning: The following opinion is provided for purposes of discussion only. We have not Shepardized™ this opinion, and do not know the subsequent disposition of this case nor whether the effect of the opinion has been overruled or superceded by other law.

In re Marriage of Aversano,
No. 52350-3-I (Wash.App.Div.1 04/26/2004)

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE

No. 52350-3-I

2004.WA.0000533

April 26, 2004

IN RE THE MARRIAGE OF: ANTHONY PAUL AVERSANO, JR., RESPONDENT,
AND DIAN LANGLOIS-AVERSANO, APPLLANT.

SOURCE OF APPEAL Appeal from Superior Court of King County Docket No: 93-3-08194-8 Judgment or order under review Date filed: 04/15/2003 Judge signing: Hon. Michael S Spearman

Counsel OF Record

Counsel for Appellant(s) Sally F. Olsen Olsen & Olsen 216 Ericksen Ave NE Bainbridge Island, WA 98110-2820

Steven L. Olsen Olsen & Olsen 216 Ericksen Ave NE Bainbridge Island, WA 98110-2820

Counsel for Respondent(s) Charles Nelson Berry Attorney at Law 600 Stewart St Ste 1500 Seattle, WA 98101-1257

The opinion of the court was delivered by: Grosse, J.

Concurring: Ronald E. Cox, Susan R. Agid

UNPUBLISHED OPINION

On a motion to revise a superior court commissioner's order, the superior court is limited to reviewing the records of the case and the findings of fact and conclusions of law entered by the court commissioner. There is no evidence in the record properly before the court to show that a judgment owed to Dian Langlois-Aversano (Dian) by her former spouse, Anthony Paul Aversano (Anthony) was assigned or extinguished. Reversed.

FACTS

Dian and Anthony were married for over 9 years until the marriage was dissolved following a trial. The trial court awarded the home and surrounding land to Dian as her separate property as it was hers prior to the marriage. The court determined that Anthony gained no community interest in the property. The court granted judgment of $39,000 to Dian personally against her former spouse to ensure coverage of a second mortgage debt of approximately the same amount. The judgment was ordered because Anthony used Dian's property as collateral for his personal debt. Due to the financial condition of both spouses at the time of dissolution, the court devised a plan for Anthony to pay the debt owed to Dian in monthly installments equal to those due on the second mortgage on Dian's property at the interest rate charged by the bank. The dissolution court characterized the judgment obligation as being in lieu of family support to preclude Anthony from discharging the obligation in bankruptcy. The same finding indicates that a satisfaction of judgment should be filed upon extinguishment of the obligation, not including refinancing.*fn1 The Judgment Summary in the Decree of Dissolution set forth that Dian shall have a judgment for $39,000 pursuant to the findings and conclusions.

Some four months after the dissolution decree was entered, Dian filed a wage earner bankruptcy plan in a Chapter 13 proceeding. At the time, the real property had a number of liens against it. An agreement was reached between Dian and Fremont Dock Company, Inc. (Fremont), one of her judgment creditors, for Fremont to purchase the property in lieu of foreclosure. The agreement was in writing and was specifically approved by the bankruptcy court.

As ordered, Anthony paid a number of monthly installments on the second mortgage, but made the payments only until the property was quitclaimed by Dian in lieu of foreclosure. After that he made no payments to Dian or to the bank.

The record shows the estimated value of the property at the time of sale/deed in lieu as a range from $244,000 to $325,000, but the agreement between Fremont and Dian stated the fair market value of the property was $295,000. The agreement and the amendment state that Fremont purchased the property in full satisfaction of its allowed judgment lien of $69,914, subject to consensual liens senior to Fremont's and subject to Fremont paying Dian a homestead exemption in the amount of $30,000.

Contrary to the implication from a statement made later by Fremont's Owner/President, Suzanne Burke, the agreement does not set forth that Dian would assign her judgment against Anthony to Fremont. In fact, there is no formal written assignment of the judgment from Dian to Fremont in the record before the court. Further, paragraph 13 of the Agreement indicates that no promises or representations, express or implied, have been made other than the terms expressly stated therein.

Approximately 8 years after the sale, Anthony filed a motion seeking to compel Dian to sign a satisfaction of the judgment against him because the second mortgage was paid off by Freemont after its purchase of the property from Dian. Argument was heard by a commissioner of the superior court based on declarations, affidavits and oral argument by counsel.

Anthony argued that when Dian sold the home to Fremont, which in turn paid off the second mortgage debt, his debt to Dian was satisfied and that under the terms of the dissolution decree and its findings and conclusions he was entitled to a satisfaction of judgment. Dian argued that regardless of her selling the home in lieu of foreclosure, which she acknowledged extinguished the second mortgage, Anthony was not relieved from paying the judgment amount to her, as otherwise Anthony is absolved from paying his debt to her. The commissioner agreed with Dian and denied Anthony's motion, finding that Anthony never satisfied Dian's judgment against him in the amount of $39,000, that the obligation continued and that he must pay the balance owing on the judgment, plus interest.*fn2 The commissioner awarded attorney fees and costs to Dian in the amount of $1540.

Anthony sought reconsideration of the decision. On reconsideration Anthony filed a number of new declarations, including one from Burke indicating that Fremont increased the purchase price it paid to Dian to cover the $39,000 debt to her and later collected that amount from Anthony. But no objective proof or other supporting documentation of any assignment or re-payment was provided.

Dian argued in response that Anthony's argument was untimely, but if considered, disagreed that Anthony continued to pay any second mortgage payments to Fremont as alleged by Burke.

In making a decision on reconsideration, the commissioner considered the pleadings before her at the time of argument on the motion, as well as the oral decision of the trial court at the dissolution hearing, but stated she would not consider additional documents that could and should have been provided at the time of the hearing. The commissioner denied Anthony's motion for reconsideration and granted additional fees to Dian.

Anthony filed a motion for revision of the court commissioner's ruling. Again, he provided supplemental memoranda and declarations. Dian objected to the supplemental evidence. By letter ruling, later reduced to an order, the trial court granted the motion for revision and ordered satisfaction of the judgment. In doing so, the trial court relied on the later-filed documents and the agreement between Dian and Fremont, determining that the agreement contemplated an assignment of Dian's judgment to Fremont. The court determined the house was not sold for its fair market value, but for $39,000 higher than the fair market value. The revision court further indicated that Dian's eight year delay in attempting to enforce the judgment was more significant than Anthony's eight year delay in obtaining a satisfaction of judgment. Dian appeals.

DISCUSSION

On a motion to review a commissioner's ruling, the superior court reviews de novo based on the record before the commissioner and the commissioner's findings and conclusions.*fn3 A motion to revise is governed by RCW 2.24.050.*fn4 The statute limits the scope of review to the record of the case and to the findings and conclusions of law entered by the court commissioner.*fn5 In an appropriate case, the superior court may determine that remand to the commissioner for further proceedings is necessary.*fn6

Even if the superior court could have considered the additional evidence provided, after full review of the record we find the superior court's determination to revise not supported. Nowhere in the dissolution decree, the Findings and Conclusions, the transcript of the dissolution court's decision, or in the agreement between Dian and Fremont approved by the bankruptcy court, is there any evidence that the $39,000 judgment possessed by Dian against Anthony was transferred or assigned to Fremont or any other owner of the property. The judgment was never assigned. If the judgment was assigned, Anthony would not be required to seek satisfaction from Dian in any event. Satisfaction would have to be obtained from Fremont.

The superior court reasoned that had the house been sold for its fair market value Dian's argument might have merit. But, in fact, the agreement approved by the bankruptcy court specifically indicated the fair market value was $295,000, not the $256,000 figure used by the superior court. There was evidence before the commissioner that the value of the property was anywhere between $244,000 and $325,000. Even if the superior court believed Dian assigned, or otherwise provided for assignment, the court should have remanded the case back to the commissioner for further proceedings to determine whether an assignment had been made, or for objective proof of payment by Anthony to Fremont of the amount to support such a determination.

Further, the superior court's finding that Dian's delay in enforcing her judgment established that it had been satisfied as part of the 1995 bankruptcy proceedings is not supported. The fact that Dian had not yet filed to recover on her judgment before her former spouse sought a satisfaction of the judgment is irrelevant. Under RCW 4.16.020(2), an action to enforce a judgment must be commenced within ten years, unless the period is extended under RCW 6.17.020 (if amount of judgment is considered for child or family support an additional ten year extension may be allowed). The initial ten year period does not run until November of 2004.*fn7

The judgment debt between Dian and Anthony was not extinguished or satisfied by the sale to Fremont. Anthony never satisfied the debt owed to Dian. The order of the superior court on revision of the court commissioner's order is reversed and the decision of the court commissioner is reinstated. Dian's request for an award of reasonable attorney's fees and costs on appeal under RAP 18.1 and RCW 26.09.140 is granted.

We reverse.

Opinion Footnotes

*fn1 The Findings of Fact and Conclusions of Law contemplated a possible refinancing of the loan, but did not contemplate a sale of the property.

*fn2 The commissioner reduced the interest rate to the statutory judgment rate, not the rate of the note, which had been slightly higher.

*fn3 In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999); In re Parentage of Hilborn, 114 Wn. App. 275, 278, 58 P.3d 905 (2002).

*fn4 'All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. . . . Such revision shall be upon the records of the case, and the findings of fact and conclusions of law entered by the court commissioner, and unless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.' RCW 2.24.050.

*fn5 Under the statute and the case law, the superior court erred by considering additional evidence, because the evidence was properly rejected as untimely by the court commissioner.

*fn6 Marriage of Moody, 137 Wn.2d at 992.

*fn7 Under the facts here, it is just as likely that Dian was waiting to proceed because she was entitled to interest on the judgment as long as Anthony failed to pay it, an amount of interest better than the current market rate. Anthony could stop any accrual of interest by paying the judgment.

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