IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

IN RE THE MARRIAGE OF: c=> -; c: ) No. 71413-9-1 c_. r•• i__. ROBIN MAELEE HITZ, 'fS '-',"' ) DIVISION ONE O"- : ;1 Respondent 

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UNPUBLISHED OPINION ERIC JAMES HITZ, Appellant. FILED: June 15, 2015 Spearman, C.J. — Eric Hitz challenges trial court orders effectuating the provisions of a dissolution decree. He contends that the trial court "lostjurisdiction" over the case and had no authority to enter subsequent orders after the trialjudge disqualified himselffrom the case based on a conflict of interest. But in making this argument, Hitz misrepresents the relevant facts. Furthermore, no authority supports Hitz's claim that the dissolution case became a new proceeding for purposes ofthe statutory entitlement to a change ofjudge when the bankruptcy court lifted a stay and allowed the dissolution to proceed. We affirm. FACTS In 2010, Robin Hitz petitioned the Whatcom County Superior Court to dissolve 

### her marriage to Eric Hitz. While married, the parties owned and operated a business and the Bank ofthe Pacific (Bank) was the major creditor. At least twice during the dissolution trial, the trial courtjudge, Judge Ira Uhrig, disclosed the existence of aNo. 71413-9-1/2 

### relationship between a business owned by his family and the Bank. The parties waived any potential conflict ofinterest and proceeded withthe trial. After a nine-day trial, the court entered final orders dissolving the marriage. The decree assigned to Robin the 

### task ofliquidating the community assets and paying the debts owed.1 The proceeds

were then to be equally divided. The dissolution court retained authority to hear any disputes that arose during the process of liquidation. In the months that followed, Robin filed several motions seeking to force Eric to cooperate with the liquidation process setforth inthe decree. In connection with a dispute regarding the disbursement offunds from the sale ofthe marital home, Eric's parents filed a separate lawsuit against Robin and Eric in 2012. They raised claims based on an unsecured promissory note. 

### InApril 2012, the court held a hearing forthe purpose ofentering an agreed 

### order disbursing the sale proceeds. The agreed order designated funds to Eric's parents insatisfaction of the judgment entered in their 2012 lawsuit, funds to the Bank and the remaining funds to the parties inequal amounts. 

### At this hearing, the court also discussed a letter received the previous day from 

### Eric's counsel, inquiring about whetherthe court would recuse itself from the post-trial dissolution proceedings.2 Judge Urhig acknowledged that he had previously voluntarily 

### disqualified himself in the 2012 case filed by Eric's parents because of the Bank's interest and potential involvement inthat case. Thejudge explained, however, that he 

### now believed his disqualification in that case had been unnecessary in light of a recent

1Because the parties share a surname, we refer to the parties by their firstnames forclarity. 2Although Eric's brief purports to reproduce his formercounsel's letter, this document is not included in the record on appeal. 2No. 71413-9-1/3 judicial ethics opinion and his lack ofany financial interest inthe outcome. With respect to the dissolution, thejudge noted that he disclosed the relationship with the Bank, the parties waived any potential conflict, and no relevant facts had changed. The court ruled 

### there was no need for disqualification.3 The court then signed the parties' agreed order without objection. Eric filed two motions after this hearing seeking Judge Uhrig's recusal. He also 

### filed an affidavit ofprejudice. He argued that the voluntarily disqualification in his 

### parents' 2012 lawsuit required recusal in all related cases, including his own previously filed dissolution. Eric did not note his motions for a hearing. 

### In August 2013, after a significant delay caused by Eric's bankruptcy filing and 

### resulting stay of the proceedings, the court heard a motion for attorney fees based on Robin's previous request and a motion for restraining orders. Shortly before the hearing, Ericfiled a second affidavit of prejudice against Judge Uhrig. The court summarily 

### denied the affidavit. The court granted Robin's motion, awarded approximately$18,000 

### in attorney fees to her and entered restraining orders against Eric. The court denied Eric's motion for reconsideration and imposed $5,000 insanctions against Ericunder CR 11. He appeals. DISCUSSION 

### As a preliminary matter, we note thatin order to comply with the Rules of 

### Appellate Procedure (RAP), an appellant's briefmustcontain "argument in supportof the issues presentedfor review, togetherwith citations tolegal authority and references to relevant parts of the record." RAP 10.3(a)(6). In thiscase, Eric'slegal arguments are based on assertions of facts that are largely unsupported by any reference to the 3The court also explained its reasoning in a letter emailed to the parties. 3No. 71413-9-1/4 record. Some ofthe facts he cites are supported by inaccurate citations, or worse, plainly belied by the record. Nevertheless, despite these deficiencies, the record on appeal provides us with sufficient factual background to allow us to resolve Eric's substantive claims. Eric asserts that there is "no dispute" that Judge Uhrig "voluntarily recused or disqualified himselffrom the Hitz dissolution" and thereby "lostjurisdiction" in the case. 

### Brief ofAppellant at 1, 15. He cites the following language from our decision in Skagit County v. Waldal. 163 Wn. App. 284, 288, 261 P.3d 164 (2011): "once a judge has 

### recused, thejudge should take no other action inthe case exceptforthe necessary ministerial acts to have the case transferred to anotherjudge." InWaldal, a Skagit 

### County Superior Courtjudge entered an orderquashing subpoenas. Then, after all the 

### judges on that court recused themselves from the case, the initialjudge entered two further orders. Eric's assertion of law is correct as far as itgoes, but the argument 

### mischaracterizes the record. It is abundantly clearfrom the record and from portions of 

### Eric's ownbriefing on appeal and his motions below that the trialjudge did not, in fact,

recuse himself in the Hitzdissolution proceeding.4 In fact, the judge expressly declined 

### to do so. Waldal iswholly inapposite. Ericfails to establish that the trial court lacked 

### authority to enter the orderdenying hismotion for reconsideration or any otherpost-trial
order. Eric also claims that the trial court erred indismissing his August 2013 affidavit of 

### prejudice. RCW4.12.050 allows parties toobtain a newjudge byfiling a motion and
4To the extent Eric contends for the first time in his reply briefthat his waiver of the potential conflict ofinterest at trialwas invalid, we do not considerthe argument. See Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).No. 71413-9-1/5 

### affidavit ofprejudice before the assignedjudge makes any discretionary rulings inthe

case. RCW 4.12.050 precludes a party from making "more than one such [recusal] application in any action or proceeding underthis section. . . ." RCW 4.12.050(1). Thus, the statute does not compel a change ofjudge when the motion is untimely or when a party submits a second motion. Rhinehart v. Seattle Times Co., 51 Wn. App. 561, 578- 79, 754P.2d 1243(1988). Eric contends that, as a result of the bankruptcy court's order granting relieffrom the automatic stay and allowing the liquidation ofproperty identified in the dissolution decree, the Whatcom County post dissolution proceedings were "new" for purposes of RCW 4.12.050 and he was entitled to a change ofjudge under the statute. Eric cites State ex rel. Mauerman v. Superior Court, 44 Wn.2d 828, 271 P.2d 435 (1954). In that 

### case, the Washington Supreme Court held that a petition to modifythe custody 

### provisions of a dissolution decree was a new proceeding within the meaning of Washington statutes that entitle litigants to one change of judge. Therefore, the mother in that case had a right to file an affidavit of prejudice and thereby disqualify the judge who had presided overthe dissolution. This case does not involve a modification action. No party filed any petition that 

### changed the nature or objective of the ongoing proceedings. Eric cites no authority supporting the position that an order granting relief from a bankruptcy stay creates a
new proceeding for purposes of RCW 4.12.050. 

### The assignedjudge made numerous discretionary rulings before Ericfiled his 

### affidavit in August2013. And in July2012, more than a year earlier, Eric hadfiled an affidavit ofprejudice. The court did not err.No. 71413-9-1/6 

### Finally, we reject Eric's requestforfees incurred on appeal. He presents no argument or authority in support ofsuch a request and his claims plainly fail. Robin asks this court to award her attorney fees on appeal and to impose sanctions under RAP 18.9(a) and CR 11. An award of attorney fees on appeal is authorized by CR 11 where sanctions have been imposed inthe trial court pursuant to that rule, as responding to the appeal "could reasonably be viewed as a cost of 

### collecting thejudgment" entered by the trial court. Skilcraft Fiberglass, Inc. v. Boeing Co., 72 Wn. App. 40, 48, 863 P.2d 573 (1993). abrogated on other grounds by Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956 (2007). RAP 18.9 also authorizes this court to 

### award sanctions against a party who uses the Rules of Appellate Procedure for the 

### purposes of delay, files a frivolous appeal, or fails to complywith the Rules of Appellate Procedure. Anappeal isfrivolous ifwe are convinced that itpresents no debatable issues on which reasonable minds could differ and is so lacking in merit that there is no 

### possibility ofreversal. In reMarriage ofFoley, 84Wn. App. 839, 847, 930 P.2d 929 (1997). Acivil appellant has a rightto appeal under RAP 2.2, and all doubts as to whether the appeal isfrivolous should be resolved in favor of the appellant. See Streaterv. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980). Given the factual record, there is no debatable basis for arguing that the trialjudge lacked authority to 

### enter orders in this proceeding and no relevant legalauthority supports Eric'sclaim that the bankruptcy court's actioninstigated a new proceeding. The appeal isfrivolous. 

### Exercising ourdiscretion, we do not imposeadditional sanctions but awardRobin attorney fees and costs subject to hercompliance with RAP 18.1(d).No. 71413-9-1/7

Affirmed.

WE CONCUR: 

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