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 7r-> ^'-}

UNPUBLISHED OPINION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 "lost jurisdiction" over

the case and had no authority to enter subsequent orders after the trial judge

disqualified himself from 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 of the

statutory entitlement to a change of judge 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 of the Pacific (Bank) was the major creditor. At least twice during the

dissolution trial, the trial court judge, Judge Ira Uhrig, disclosed the existence of a
No. 71413-9-1/2

relationship between a business owned by his family and the Bank. The parties waived

any potential conflict of interest and proceeded with the trial. After a nine-day trial, the

court entered final orders dissolving the marriage. The decree assigned to Robin the

task of liquidating 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 set forth in the decree. In connection with a

dispute regarding the disbursement of funds from the sale of the marital home, Eric's

parents filed a separate lawsuit against Robin and Eric in 2012. They raised claims

based on an unsecured promissory note.

In April 2012, the court held a hearing for the purpose of entering an agreed

order disbursing the sale proceeds. The agreed order designated funds to Eric's parents

in satisfaction of the judgment entered in their 2012 lawsuit, funds to the Bank and the

remaining funds to the parties in equal amounts.

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

Eric's counsel, inquiring about whether the 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 in that case. The judge 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 first names for clarity.

2Although Eric's brief purports to reproduce his former counsel's letter, this document is not

included in the record on appeal.

2
No. 71413-9-1/3

judicial ethics opinion and his lack of any financial interest in the outcome. With respect

to the dissolution, the judge 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 of prejudice. 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 in sanctions against Eric under

CR 11. He appeals.

DISCUSSION

As a preliminary matter, we note that in order to comply with the Rules of

Appellate Procedure (RAP), an appellant's brief must contain "argument in supportof

the issues presented for review, together with citations to legal authority and references

to relevant parts of the record." RAP 10.3(a)(6). In this case, Eric's legal 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.

3
No. 71413-9-1/4

record. Some of the 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 himself from the Hitz dissolution" and thereby "lost jurisdiction" in the case.

Brief of Appellant 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, the judge should take no other action in the case except for the necessary

ministerial acts to have the case transferred to another judge." In Waldal, a Skagit

County Superior Court judge entered an order quashing subpoenas. Then, after all the

judges on that court recused themselves from the case, the initial judge entered two

further orders.

Eric's assertion of law is correct as far as it goes, but the argument

mischaracterizes the record. It is abundantly clear from the record and from portions of

Eric's own briefing on appeal and his motions below that the trial judge did not, in fact,

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

to do so. Waldal is wholly inapposite. Ericfails to establish that the trial court lacked

authority to enter the order denying his motion for reconsideration or any other post-trial

order.

Eric also claims that the trial court erred in dismissing his August 2013 affidavit of

prejudice. RCW 4.12.050 allows parties to obtain a newjudge byfiling a motion and

4To the extent Eric contends for the first time in his reply brief that his waiver of the potential

conflict of interest at trial was invalid, we do not consider the argument. See Cowiche Canyon

Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
No. 71413-9-1/5

affidavit of prejudice before the assigned judge makes any discretionary rulings in the

case. RCW 4.12.050 precludes a party from making "more than one such [recusal]

application in any action or proceeding under this section. . . ." RCW 4.12.050(1). Thus,

the statute does not compel a change of judge 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 relief from

the automatic stay and allowing the liquidation of property 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 of judge 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 modify the 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 over the 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 assigned judge made numerous discretionary rulings before Eric filed his

affidavit in August 2013. And in July 2012, more than a year earlier, Eric had filed an

affidavit of prejudice. The court did not err.
No. 71413-9-1/6

Finally, we reject Eric's request for fees incurred on appeal. He presents no

argument or authority in support of such 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 in the trial court pursuant to

that rule, as responding to the appeal "could reasonably be viewed as a cost of

collecting the judgment" 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 comply with the Rules of Appellate

Procedure. An appeal is frivolous if we are convinced that it presents no debatable

issues on which reasonable minds could differ and is so lacking in merit that there is no

possibility of reversal. In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929

(1997). A civil appellant has a right to appeal under RAP 2.2, and all doubts as to

whether the appeal isfrivolous should be resolved in favor of the appellant. See

Streater v. 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 trial judge lacked authority to

enter orders in this proceeding and no relevant legal authority supports Eric's claim that

the bankruptcy court's action instigated a new proceeding. The appeal isfrivolous.

Exercising our discretion, we do not impose additional sanctions but award Robin

attorney fees and costs subject to her compliance with RAP 18.1(d).
No. 71413-9-1/7

Affirmed.

WE CONCUR:

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