### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matterofthe Marriage of No. 78988-1-I GILLIAN K. HOPSON, f/k/a Gillian K. Ben-Artzi, DIVISION ONE

Respondent, UNPUBLISHED OPINION and ERIC BEN-ARTZI,

Respondent, KILGOURWILLIAMS GROUP; COLIN KILGOUR; and DANIELWILLIAMS,

Intervenor-Appellants, LABATON SUCHAROW LLP,

Intervenor-Respondent. FILED: December 9, 2019 APPELWICK, C.J.

— Hopson and Ben-Artzi dissolved their marriage in 2014. At the time, Ben-Artzi had a whistleblower claim pending before the SEC. The dissolution decree awarded each ofthem 50 percent ofthe net proceeds of any whistlebloweraward. Ben-Artzi laterentered into contractswith Kilgour, Williams, and KWG, which had provided himwith expertservices inthewhistlebloweraction. The contracts increased KWG’s expert services fee and required Ben-Artzi to pay Kilgour and Williams a portion of his award. The SEC awarded Ben-Artzi $8,250,000. Hopson then moved to create a child supporttrustfortheir children,No. 78988-1-1/2

funded by Ben-Artzi’s award share. Thetrial courtordered the creation ofthetrust, and requested thatthe SEC forward payments to Hopson and the court registry. Kilgour, Williams, and KWG arguethatthetrial courtviolated CR 60 andthefederal government’s sovereign immunity. We affirm. FACTS In September2006, Gillian Hopson1 and Eric Ben-Artzi were married in New York. In March 2013, they separated while living in Washington. Hopson served Ben-Artzi with a petition fordissolution on March 30, 2013. In April 2013, while the dissolution proceedings were pending, Ben-Artzi, acting as the president of Model Risk LLC, entered into a written agreement with Kilgour Williams Group (KWG). Under the agreement, KWG agreed to provide Ben-Artzi expert services in support of his whistleblower claim against his former employer, Deutsche Bank AG. The agreement also required Model Risk to pay KWG a fee equal to three percent “of the gross value of any Award paid to The Claim as granted bythe [Securities and Exchange Commission (SEC)]’s Office.” Labaton Sucharow, LLP (Labaton) represented Ben-Artzi in the whistlebloweraction. Ben-Artzi agreed to pay Labaton 1 8 percentofany proceeds awarded to him bythe SEC. On May 21, 2014, the trial court issued a decree dissolving Hopson and Ben-Artzi’s marriage. In thedecree, itordered Ben-Artzi and his attorneysto “keep the wife apprised and advised of the developments and progress of

1 The dissolution decree changed Gillian’s last name from Ben-Artiz to Hopson.
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proceeds

. . . or any other such monetary dispensation

. . . in any action,

. . . including

. . . thewhistleblowermatterbeforethe SEC and its derivative
or related proceedings.” It stated that “[t]his shall occur not less than quarterly each year, or within 10 days of entry of an important ruling, order, award, or judgment, etc.” The trial court awarded “50% of the net proceeds” of “the whistleblower matter before the [SEC]’ to both Hopson and Ben-Artzi. In its findings offact and conclusions of law, it provided: Direct litigation costs shall be paid from the gross proceeds before calculation ofthe netcommunityproceeds, and shall include attorney feesfor[Ben-Artzi’s] attorneysThad Guyerand JordanThomas; fees paid to experts who testified or were identified in discovery as testifying experts; court reporter expenses for transcription necessary in the litigation; and anyotherexpenses directly related to the litigation and agreed bythe parties. ltfurtherfound that Ben-Artzi “should be ordered to pay indirect litigation expenses from his portion ofthe litigation proceeds described above, notthewife’s portion.” It stated that his obligations “shall include

. . . fees for {KWG].” The trial court also ordered Hopson and Ben-Artzi to payfortheirchildren’s “reasonable and necessary post-secondary educational expenses.” Specifically, it ordered Hopson to pay 25 percent and Ben-Artzi to pay 75 percent of such expenses. Ben-Artzi appealed the dissolution decree, findings of fact and conclusions of law, order of child support, and parenting plan. In re Marriage of Ben-Artzi, No. 72063-5-I, slip. op. at 1 (Wash Ct. App. Aug. 10, 2015) (unpublished), http://www.courts.wa.gov/opinions/pdf/720635.pdf. This court affirmed each order in August2015. fri.
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As the whistleblower proceeding progressed, Ben-Artzi and KWG entered into a new agreement. On August 1, 2014, KWG’s fee was amended from three to five percent, and Ben-Artzi agreed to sell, assign, and transfer KWG’s work productto Cohn Kilgourand Daniel Williams in orderforthem to submittheir own claim to the SEC. In exchange, Kilgour and Williams agreed to pay Ben-Artzi 60 percent of the gross amount of all monetary awards resulting from their claim. Hopson was not a party to this agreement, and the record does not indicate that she was advised ofthe agreement. In June 2015, while Ben-Artzi’s appeal of the dissolution decree was pending, Hopson moved for a temporary restraining order prohibiting Ben-Artzi from disposing ofthe proceeds in anyway. Shefiled the motion after learning that the SEC had ordered Deutsche Bankto pay a $55 million fine. Citing Ben-Artzi’s history of not complying with court orders, Hopson asserted that ‘that pattern of behavioris predictive ofhis compliance relatedto anySEC.

. . proceeds he obtains without properdisbursal bythe Court.” Laterthat month, thetrial courtfound that it had the authorityto direct Ben Artzi “to deposit sums anticipated to be received in to this Court’s registry pending disposition of his appeal.” It entered an order restraining and enjoining him from transferring, or removing, encumbering, concealing, taking possession ofor in anyway disposing ofany net proceeds received from anyentity pursuantto both thewhistle blowercomplaintwith the SEC and the OSHAwrongful termination suit.

. . except in so faras necessary to transmit the funds to the registry of the Whatcom County Superior Court, to be held by the clerk of court pending motion and hearing and any ruling ofthe Court ofAppeals.

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The SEC issued a preliminary determination ofthe whistleblower claim in July 2016, recommending an $8,250,000 award for Ben-Artzi.2 In August 2016, the Financial Times published an article Ben-Artzi wrote renouncing his award. Eric Ben-Artzi, We Must Protect Shareholders from Executive Wroncidoinq, FIN. TIMES, August 21, 2016. In the article, Ben-Artzi explained that he was disappointed that the SEC imposed a fine on Deutsche Bank’s shareholders instead ofthe managers responsiblefor“‘inflating thevalue ofits massive portfolio ofcredit derivatives.” He observed that his lawyers and Hopson had a claim on a portion ofthe award, and requested that his share ‘be given to Deutsche and its stakeholders.” That same month, Kilgour and Williams entered into another agreement with Ben-Artzi after learning that he had publicly renounced his award. They felt that his “recent media campaign” impaired their likelihood of successfully appealing the SEC’s denial of their application for an award. As a result, they requested that he directthe SEC to paythem $2,500,000 of his award share. “[l]n addition to the contracted amount payable to [KWG),” Ben-Artzi agreed to direct the SEC to make the following payments out of his award share: (1) $247,500 to KWG, undertheApril 2013 contract, (2) $1,250,000to Kilgour, and (3) $1 250,000 toWilliams.

2 Kilgour and Williams note that the SEC recommended against granting them an award. On November 8, 2019 the United States Court ofAppeals forthe Second Circuit denied theirappeal. Kilgour, v. Sec. and Exch. Comm’n, F.3d 2019 WL 5849495, at *10 (2nd Cir. Nov. 8, 2019)
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The SEC issued its final determination on November 30, 2017, awarding Ben-Artzi “15% ofthe monetary sanctions collected in the Covered Action, for a payout ofmore than $8,000,000.”~ It also made note ofthe orders in Hopson and Ben-Artzi’s dissolution proceedings, stating, [l]n an order entered on May 21, 2014, and later affirmed by the Washington State Court ofAppeals, the Divorce Court decreed how the proceeds from any award to [Ben-Artzij are to be distributed among various interested parties, including [Ben-Artzi’s] former spouse, [Ben-Artzi’s] former counsel, and Claimants #3 and #4 for theirfirm’s services as an expert. Two weeks later, Hopson moved for an order directing the SEC to deposit thefunds awarded to Ben-Artzi intothe court registryfordisbursement, lessthe 1 8 percent owed to Labaton under its representation agreement. She argued that she was “entitled to her 50% share of the remaining SEC award monies as community property.” A hearing on the motion was setfor December29, 2017. On December 26, Kilgour, Williams, and KWG moved to continue the hearing and intervene. They argued that Hopson’s claim to 50 percent of the remaining award “is aviolation ofthe terms ofthe Findings and the Decree in this case, and fails to protect equitable lienholders protected by both the Findings and the Decree as it attempts to make an award of gross proceeds.” (Emphasis added.) Neither their motion nor Kilgour’s declaration attached to the motion

~ Kilgour, Williams, and KWG note that the SEC denied their claims, and they appealed. They state that, as of December 21, 2018, their appeal was awaiting oral argument. 6No. 78988-1-1/7

mentioned theirAugust 2016 agreement with Ben-Artzi.4 The trial court granted the motion to intervene, but denied the motion fora continuance.5 On January3, 201 8, thetrial courtgranted Hopson’s motion. Itdirected the SEC to deposit“anyand all monies awarded underthe Orderto

. . . Eric Ben-Artzi, less 18% to be paid to Labaton Sucharow, into the Whatcom County Superior Court registry.” It also stated that, upon receipt of the funds into the registry, “Petitioner and Respondent and other Joined third parties may each petition the Court byseparate motion for release ordisbursement offunds consistentwith the allocations previously ordered by this Court.” The SEC’s Office of the General Counsel responded to thetrial court’s orderon January 8, 2018. It stated thatthe SEC could not transfer the funds to the court’s registry until the “successful resolution of any appeals that are filed challenging the underlying order that granted the award.” A few days later, Hopson filed another motion. She sought to update the consolidated judgment entered on December 16, 2015,6 disburse the funds to be received from the SEC, and fund a support and education trust for her children with Ben-Artzi. She requested that the SEC award be disbursed as follows: (1)

~ Oftheirthree agreements with Ben-Artzi, Kilgour attached onlythe 2013 and 2014fee agreements to his declaration.

~ The trial court also allowed Labaton to intervene. 6 The trial court had entered an orderfinding that Ben-Artzi owed Hopson $450,982.88 in “total outstanding judgments, past due child support, past due maintenance, attorney fees, discovery sanctions, appellate attorney fees and costs, and other recovery amounts.” It also found that he owed her$40,922.80 in intereston those amounts.
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$4,335,185.60 to Hopson, (2) $2,429,814.40 to Ben-Artzi, and (3) $929,187.00 to
a support and education trustforthe benefit oftheirchildren. Hopson asked that the trust be funded by Ben-Artzi’s “separate property share ofthe SEC proceeds.” In a declaration attached to her motion, she stated, “Given the persistent and extreme intransigence exhibited by Ericthroughoutthis case, this Court should order such a trust be created and funded by Eric in an amount sufficient to guarantee all future child support due and post-secondary education.” As an alternative, she asked thatthetrial courtorderBen-Artzi to place “the equivalent of two years’ of child support in the court’s registry pursuant to RCW26.18.150.” In response, Kilgour, Williams, KWG, and Labaton argued that Hopson’s request for the establishment of an educational trust should have been raised at trial. Theystated, “[T]he courtshould concern itselfwith established current debts and not future, or hypothetical debts.” And, they addressed the August 2016 agreement between Kilgour, Williams, and Ben-Artzi. Pursuanttothe agreement, they requested that Kilgourand Williams each be paid $1 ,250,000.00 out of Ben Artzi’s share ofthe net proceeds. Kilgour, Williams, and KWG also asserted that the action implicated sovereign immunity principles. Hopson argued in response thatthe trial court lacked jurisdiction to rule on Ben-Artzi’s contractual obligations to KWG. And, she contended that none of Kilgour, Williams, and KWG’s claimed fees should be deducted from the SEC award.

8No. 78988-1 -119
Ben-Artzi also argued that the trial court lacked jurisdiction to decide whether Kilgour, Williams, and KWG were entitled to the amounts they claimed. Alternatively, he asserted that Kilgourand Williams lacked contractual rights to be paid $1,250,000 each underthe August2016 agreement. Asto Hopson’s motion, he stated, As I stated in the previous hearing, I am eagerfor Gillian to receive the funds as determined by previous court orders as soon as possible. I hopethe courtwill then quickly liftthe sanctions imposed against me, so that I can safely re-enterthe [United States] and see my sons. However, I ask once again that my taxes be taken into account. As reiterate[d] my request for withholding Israeli income taxes of50%, a requestthatwas ignored bythe court in the previous hearing. As an alternative, I ask the court to withhold 30% [United States] Federal taxes in accordance with IRS Publication 515. At a hearing on Hopson’s motion, Ben-Artzi opposed the trial court “awarding anything” to Kilgour, Williams, and KWG. When asked whether he opposed the establishment ofthe trust, he stated, No, I do not, Your Honor, so long as it doesn’t, I understand that if there is insufficientfunds fortaxes then if I do not, if I do not oppose this then it will be more difficult for me to negotiate with a tax authority. So I think I might have to formally object. OnAugust24, 2018, thetrial court issued itsfindings and orderon Hopson’s motion. It found that “[t]he parties agree that 18% of the award should be paid directly to Mr. Ben-Artzi’s attorneys in the SEC matter, Labaton Sucharow, LLP.” And, it clarified that the direct litigation costs to be deducted from the award in calculating the net proceeds include KWG’s three percent fee under the 2013 contract. It explained, The Intervenors’ fees were 3% of any SEC award when this Court entered its Findings and Decree. Entry ofthe Findings and Decree
9No. 78988-1 -1/10

was afinal resolution ofthe parties’ shares ofanySEC award. While Ben-Artzi was free to change his agreementwith {KWG], he did not have authorityto change orpledge Ms. Hopson’s interest, which was to be determined based on a net award of79%. Anyamounts owing to {KWG] undersubsequentagreements are the responsibility of Mr. Ben-Artzi. Determination of any fees Mr. Ben-Artzi may owe to IKWG1 is, ofcourse, outsidethis Court’s iurisdiction. (Emphasis added.) The trial court awarded Hopson 50 percent ofthe net proceeds ofthe SEC award, $3,258,750.00, plus $696,262.38 for priorjudgments and assessments, and $828,186.25 as trustee for a child support and postsecondary educational expensestrustaccount. Italso awarded Ben-Artzi 50 percentofthe net proceeds, less the additional amounts awarded to Hopson, for a total of award of $1,734,301.37. The trial court stated its basisfor creating the trust: The Courtfinds the arrangements setforth below in paragraph 3.3, to fund child supportand post-secondary educational expenses, are reasonable and necessary to assure the adequate support of the children. Thisfinding is based on all the circumstances ofthis case, including Respondent, Eric Ben-Artzi’s agreement to this arrangement; the lack of proximityand contact between the parents; and the history of nonpayment of support throughout the pendency ofthe case. RCW26.18.030; Bryantv. Bryant, 68 Wn.2d 97[, 411 P.2d 4281 (1966). Last, the trial court requested that the SEC forward the amounts due to Hopson tothe court registry. Itexplained, “Asthis is afinal orderofthis Court, this order remains subject to modification only in the eventthatthe SEC award is not paid as described in Section 2 ofthis order.” Kilgour, Williams, and KWG appeal. Ben-Artzi does not appeal.

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DISCUSSION The appellants7 make two arguments. First, they argue thatthe trial court violated CR 60 by creating a trust that modified the dissolution decree. Second, they argue that the trial court violated sovereign immunity by requesting that the SEC forward payments to the court registry. I. A Motion Under CR 60Was Not Required The appellants argue first that the trial court’s order creating the trust modified the dissolution decree in violation of CR 60. They note that the 2014 decree did not create a trust for child support and educational expenses. Thus, theycontend thatthe ordercreating thetrust “effected a modification ofthe decree because it reduced Dr. Ben-Artzi’s share ofthe net proceeds ofthe whistleblower award by $828,186.25 to fund a trust forthe future support and education ofthe children.” The appellants rely on In re Marriage of Bobbitt, 135 Wn. App. 8, 144 P.3d 306 (2006). There, Esser and Bobbitt’s dissolution decree awarded Bobbitt a property in Yakima “as his separate property.” jç~ at 14. It also assigned him the property’s mortgage liability. j~ç~ After Esser found out that Bobbitt had failed to make mortgage payments for four months, she started making the payments herself. kl. When an offer to purchase the property was made, she moved for permission to sell it and place the proceeds in her attorney’s trust account. ki. at 14-15. The trust was meant to facilitate the payment of her existing judgments

~Throughoutthe remainderofthe opinion, we referto Kilgour, Williams, and KWG collectivelyas “the appellants.”
iiNo. 78988-1-1/12

against Bobbitt, including backchild support. j.çj. at 15. Thetrial court granted her motion. ki. On appeal, Bobbitt argued thatthe trial court abused its discretion or acted beyond its jurisdiction in authorizing Esser to sell the property. ki. This court agreed. ki. at 18. It noted, “It has been the rule in Washington thatthe trial court does not have jurisdiction to order the sale of the parties’ assets without their consent because there is no statutory grant of such powerto a trial court.” at 15. While trial courts have ordered sales in some cases, this court explained that “the trial court’s consideration of the issue occurred during the pendency of the
case oratthe conclusion ofthetrial, notafterafull and final division ofthe property had been made.” ki. at 15-16. And, “[njot only did the decree award the Yakima property entirely to Bobbitt, but italso appear[ed]to allocate anysale proceedsforcommunitytaxdebt and fora debt owed to Dave Nelson.” ki. at 18. Thus, this court held thatthetrial court erred in allowing Esser to sell Bobbitt’s property “to enhance her ability to collect herjudgments against Bobbitt.” Id. Itstated, “Because the time forappeal had run on the property division, her remedywas to file a Civil Rule 60 motion to vacate the decree orenforce anyjudgments by process of law.” Id. Here, the trial court did not modify the property division in the dissolution decree. Itstill awarded both Hopson and Ben-Artzi 50 percentofthe net proceeds ofthe SEC award. It also ordered that a separate amouht, $696,262.38, of Ben Artzi’s share be awarded to Hopson to satisfy his outstandingjudgments, including back child support. The appellants do not assign errorto that determination.
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And, unlike Bobbitt, the trial court did not allow Hopson to sell Ben-Artzi’s award share to collect on her judgments against him. Rather, it ordered the creation of a trust for future child support funded by Ben-Artzi’s share, and appointed Hopson as trustee. It ordered that $828,186.25 ofthe funds awarded to Ben-Artzi be placed in thetrust. Thetrust is meanttofacilitate paymentof Ben Artzi’s future child support obligations in the face of his history of not paying child support, his move to Israel, and his failure to pay his outstanding obligations from the propertydivision in the decree. Hopson did not askthe trial courtto modifythe dissolution decree. Nordid the courtpurportto modifythedecree. Inthedecree, thetrial court had determined that Hopson is responsible for 25 percent and Ben-Artzi is responsible for 75 percent “of a child’s reasonable and necessary post-secondary educational expenses.” It also approved the final order ofchild support requiring Ben-Artzi to pay$1,778.00 per month. The court utilized these provisions in creating thetrust: $828,186.25 of the funds awarded to Respondent, Eric Ben-Artzi above, shall be placed in a professionally managed investment account, with Ms. Hopson or herdesignee to serve as trustee.
a. $21 1,582 ofthese funds represent child support thatwill be due and payable in the amount of $1,778.00 per month, until each child reaches the age of 18, and those funds shall be disbursed to Ms. Hopson on a monthly basis. b. $616,604.25 shall be retained in trust and applied tofund 75% of the direct costs of post-secondary education forthe two children of the marriage. Direct costs include tuition, school fees, and reasonable living expenses for each child. Petitioner, Gillian Hopson, shall paythe remaining 25% ofthese costs, as provided in the decree.

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Rather than a modification of the decree, Hopson sought enforcement of thedecree in theform ofajudgmentforbackchild support, including attorneyfees. And, in lightofBen-Artzi’sfailureto payand his moveto Israel, she asked the court to create a support and educational trust fortheir children, funded by Ben-Artzi’s award share. In the order creating the trust, the court cited RCW 26.18.030 as support for the trust arrangement. Chapter 26.18 ROW governs child support enforcement. This citation suggests that the court understood the trust as a mechanism to enforce Ben-Artzi’s child support obligations, not as a modification tothem. Hopson relies on Abel v. Abel, 47Wn.2d 816, 821, 289 P.2d 724 (1955), to supportthatthe trial court had authorityto create the trust. In Abel, the trial court established a trust in a third person forthe benefit ofthe parties’ children. ki. at 820. It did so at the conclusion of a dissolution proceeding, not in an order on a post-decree motion. jç[~ The State Supreme Court affirmed. ki. at 824.’ It held that, underformer ROW26.08.110 (1 949),8 in the exercise of its discretion in providing forthe welfare of minor children, [the trial court] has authority to impound property of the parties in athird person trusteeforthe benefitofthe children, in such amounts and upon such terms and conditions as the court shall approve and deem reasonable. j~. at 821. It also noted that one ofthe parties ora third person may be named as trustee. ki.

8The provisions governing child supportand child supportenforcementare now governed by chapter26.09 ROWand chapter26.18 ROW, respectively.
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Here, thetrial courtfoundthe creation ofthetrust reasonableand necessary based on “Ben-Artzi’s agreement to this arrangement; the lack of proximity and contact between the parents; and the historyof nonpaymentofsupportthroughout the pendency ofthe case.” But, itdid so in an order on a post-decree motion, not in the dissolution decree. Abel is silent as to whetherthe trial court has authority to create such a trust in post-decree order. The trial court in which the prior support order was entered “retains continuingjurisdiction under [chapter26.1 8 RCW] until all duties ofeithersupport
ormaintenance, or both, ofthe obligor, including arrearages, have been satisfied.” RCW26.18.040(3). And, chapter26.18 ROWisto be “liberallyconstruedtoassure thatall dependentchildren are adequatelysupported.” ROW26.18.030(3). These provisions suggest that a trial court has authorityto create a trust to facilitate the enforcement of a child support order. A proceeding to enforce a child support obligation may be commenced by filing a motion in an existing action. ROW 26.18.040(1)(b). Ohapter26.18 ROWdoes not require a partyto bring a OR 60(b) motion in orderto enforce anotherparty’s child support obligations. Anyargument to the contrary is without merit. Even if we were to construe the trust’s creation as a modification to the dissolution decree, thetrust modified Ben-Artzi’s child support obligations, notthe propertydivision. Under ROW26.09.170(1), Hopson was not required tofile a OR 60(b) motion to modify the child support order incorporated in the decree. Any claim to the contrary lacks merit. ROW26.09.170(1) provides that “the provisions of any decree respecting maintenance or support may be modified

. . . except as
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otherwise provided in this section, only upon a showing ofa substantial change in circumstances.” Washington courts have consistently held that a substantial change in circumstances is “onethatwas notcontemplated atthetime the original orderofsupportwas entered.” In re Marriage ofScanlon, 109 Wn. App. 167, 173, 34 P.3d 877 (2001). A trial court generally has broad discretion to modify child support when there has been a substantial change in circumstances. In re Marriage of Goodell, 130 Wn. App. 381, 388, 122 P.3d 929 (2005). We review modifications to child support orders for manifest abuse of discretion. In re Marriage ofSchumacher, 100 Wn. App. 208, 211, 997 P.2d 399 (2000). The trial court found the creation of the trust reasonable and necessary based on “all the circumstances ofthe case, including

. . . Ben-Artzi’s agreement to this arrangement; the lack of proximity and contact between the parents; and the history of nonpayment ofsupportthroughout the pendency ofthe case.” It is undisputed that since entry of the child support order, Ben-Artzi has moved to Israel and owes Hopson almost $700,000.00 in past judgments, including $44,450.00 in back child support. Thesefacts clearlysupportfinding a substantial change in circumstances and modification to the child support order. Thus, even if the trial court modified Ben-Artzi’s support obligations, it did not abuse its discretion in doing so in the absence ofa motion underCR 60(b). However, we need not decide this issue. Ben-Artzi does not appeal the creation ofthetrust, and the appellants lacka properbasisfordoing so. Whilethe appellants challenge the trust’s creation, they do not claim any authorization from Ben-Artzi to represent him. And, they cite no legal authority allowing a third party
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creditor of a child support debtor to intervene on appeal of that child support obligation. “Where no authorities are cited in support ofa proposition, the court is not required to search out authorities, but may assume that counsel, after diligent search, has found none.” DeHeer v. Seattle Post-Intelliqencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962). The appellants argue that they are entitled to a five percentfee, based on the postdecree contract they entered with Ben-Artzi in August 2014. They also argue thatthey are entitled to $2,500,000 from Ben-Artzi’s award share, based on another postdecree contract they entered with him in August 2016. Ben-Artzi entered the2016 contractafterthetrial court had restrained himfrom encumbering the net proceeds of the award. The appellants contend that the trial court improperly modified the dissolution decree without applying CR 60(b) when it imposed the trust for future child support. They argue that they are aggrieved because thetrustwill interferewith theirclaims against Ben-Artzi. The trial court allowed the appellants to intervene below to assert their interest in the litigation costs awarded in the original decree. The order at issue clarified that KWG is owed thethree percentfeefrom the net proceeds ofthe SEC award. But, the court declined to rule on the appellants’ interest in Ben-Artzi’s award share. It stated, [T]he issue beforethe Court is howthe settlementorthe [SEC]funds should be divided between [Ben-Artzi] and Ms. Hopson. I do not intend to rule on KilgourWilliams’ entitlementto payment. I don’tsee that issue as being before the Court at all except insofar [as] they may be entitled underthe contractual agreementsthatwere made in this case.

17No. 78988-1-1118 Astothe claim of[$]1 .25 million I see thatas a claim between Mr. Ben-Artzi and Mr. Kilgourand Mr. Williams and Iwon’t be making a determination on entitlementto thosefees. The onlydetermination I’ll be making is as to howthe various costs should be divided between Ms. Hopson and Mr. Ben-Artzi. In a dissolution proceeding, “the court has practically unlimited powerover the property” in the case, “but only as between the parties.” In re Marriage of Soriano, 44Wn. App. 420, 422, 722 P.2d 132 (1986) (quoting Arneson v. Arneson, 38 Wn.2d 99, 102, 227 P.2d 1016 (1951)). “The dissolution court has no power over the property as to the rights of third parties claiming an interest in the property.” ~ The courtdid notassertauthorityoverthe appellant’s property. The court properly declined to adjudicate the appellants’ postdissolution contractual claims against Ben-Artzi. At oral argument, the appellants stated that their claims against Ben-Artzi
are in litigation in New York. Any claim of conflicting priority of claims to the whistleblower award is premature and not properly before this forum. Therefore, the appellants are not aggrieved bythetrial court’s order. Because neither Hopson nor Ben-Artzi—the only parties to the decree and child, support order—appealed the order creating the trust, that order is now the lawofthe case. ~ Tornetta v. Allstate Ins. Co., 94Wn. App. 803, 809, 973 P.2d 8 (1999) (“A final order from which no appeal is taken becomes the law of the case.”). The appellants lack a proper legal basis to challenge the trust’s creation. And, theirargumentthat a motion underCR 60(b) was required is frivolous.

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II. Federal Sovereign ImmunityWas NotViolated The appellants argue second thatthetrial courtviolated sovereign immunity by requesting thatthe SEC forward paymentto Hopson as trustee ofthe support and education trust. They contend that “[t]he federal government’s sovereign immunity deprives courts ofjurisdiction to direct the disposition of assets in the Treasury ofthe United States.” “An action seeking specific relief against a federal official, acting within the scope of his delegated authority, is an action againstthe United States, subjectto the governmental privilege ofsovereign immunity.” State v. Vance, 1 84Wn. App. 902, 916, 339 P.3d 245 (2014). Asuit againstthe United States is defined broadly
as “any action seeking a judgment that would: 1) ‘expend itself on the public treasury or domain;’ 2) ‘interfere with the public administration;’ or 3) ‘restrain the Government from acting’ or ‘compel it to act.” Fed. Bureau of Investigation v. Super. Ct., 507 F. Supp. 2d 1082, 1094 (ND. Cal. 2007) (quoting Washington v. Udall, 417 F.2d 1310, 1315 (9th Cir. 1969)). Whether the trial court violated sovereign immunity is a question of lawthatthis court reviews de novo. See Cost Mgmt. Servs., Inc. v. Cityof Lakewood, 178Wn.2d 635, 641, 310 P.3d 804 (2013) (“We reviewquestions of law de novo.”). Quoting 15 U.S.C. 

### § 78u-6(g)(1)-(2)(A), the appellants assert that the trial court violated sovereign immunity because the “Investor Protection Fund, from which the SEC pays whistleblower awards, ‘is established in the Treasury of the United States.” But, the trial court did not compel or direct the SEC to forward payments to the court registry. Instead, it “requested” that the SEC forward
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Hopson the amountto be placed in the trust. The appellants do not dispute this. Nor do they cite authorityto support that such a request, rather than a direction, violates sovereign immunity. Accordingly, thetrial courtdid notviolate the federal government’ssovereign immunity. The appellants’ argumentthatitdid isfrivolous. Ill. Attorney Fees A. Appellants Hopson first argues that because the appellants’ sovereign immunity argument isfrivolous, theyshould be sanctioned with an award offees under RAP 18.9(a). She also requests “interest on the withheld child support trust fund, payablefrom sums otherwise allocated to [the appellants],” under RAP 1 8.9(a). In addition to the appellants’ making a frivolous argument, she asserts that their appeal was undertaken forthe purpose ofdelay. Under RAP 18.9(a), this court may ordera party,

. . . who usesthese rulesforthe purpose ofdelay, files a frivolous appeal, orfails to complywith these rulesto payterms or compensatory damages to anyother partywho has been harmed by the delay orthefailure to comply orto pay sanctions to this court. An appeal is frivolouswhen, “considering the entire record, the court is convinced thatthe appeal presents no debatable issues upon which reasonable minds might differ,” and “the appeal is so devoid ofmeritthatthere is no possibility of reversal.” Advocates for Responsible Dev. v. W. Wash. Growth Mqmt. Hearings Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010) Raising at least one debatable issue precludes a finding thatthe entire appeal is frivolous. kJ. at 580-81. The appeal

20No. 78988-1-1121

here isfrivolous. Accordingly, we award Hopson attorneyfees underRAP 18.9(a), subjectto hercompliancewith RAP 18.1. Hopson requests compensatory damages in the form of interest on the support and education trust predicated on the delay caused bythis appeal. But, her request is premature because of the appeal, pending concurrently with this case, in the United States Court ofAppealsforthe Second Circuitto set aside the SEC’s denial of Kilgour’s and Williams’s whistleblower award applications. That appeal has since been denied. Kilgourv. Sec. and Exch. Comm’n, F.3d
—, 2019 WL 5849495, at *10 (2nd Cir. Nov. 8, 2019). However, nothing in the record before us established that the award was available for disbursement, but forthe appeal in this case. And, the court in the NewYorkaction may determinethatthe appellants’ postdecree contracts with Ben-Artzi are valid. In that case, there will likely be another action to determine the priority of claims on the award. Without knowing the resolution ofthose claims, evidence that Hopson was damaged by the appellants’ alleged delay in this case is lacking. Thus, the claim is not ripe for resolution. Should evidence in support ofthat claim become available, it is a claim properly initiated in the trial court. As a result, we deny Hopson’s request for compensatory damages under RAP 18.9(a), without prejudice. B. Ben-Artzi Hopson also requests attorneyfees under RAP 18.1. Although Ben-Artzi is not a party on appeal, she requests that he pay the fees from his share of the whistleblower award. She cites a hold harmless provision in the dissolution decree.
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RAP 18.1(a) allows this court to award reasonable attorney fees if applicable law grants a party the right to recover such fees. Under RCW 26.09.140, “the appellate court may, in its discretion, order a party to payforthe costto the other party of maintaining the appeal and attorneys’ fees in addition to statutory costs.” And, the decree’s hold harmless provision states, “Each party shall hold the other party harmless from any collection action relating to separate
or community liabilities set forth above, including reasonable attorney fees and costs incurred in defending against any attempts to collect an obligation of the other party.” To support her request for fees, Hopson contends that Ben-Artzi’s “postdecree scheming and agreements with [the appellants], intended to limit [her] share ofthe SEC proceeds and evade his child support obligations, have caused this litigation as surely as though he were prosecuting these claims for [the appellantsj.” But, Ben-Artzi did not appeal the order creating the trust. And, even if his actions created competing claims forthe SEC award, Hopson’s actions also invited the appellants to intervene in this case. In her first motion requesting that the SEC deposit funds into the court registry for disbursement, Hopson failed to account for KWG’s three percent fee under the 2013 agreement. She accounted only for Labaton’s 18 percent fee, asking thetrial courtto direct “the SEC to depositthe SEC award, less 18%, tothe Whatcom County Superior Court registry.” In response to her motion, the appellants intervened to assert their interest in the gross proceeds ofthe award.

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Underthedecree, expertfees in the SEC action areto bedeductedfrom the award before calculating the net proceeds due to Hopson and Ben-Artzi. A determination of breach of the terms of the decree is a factual issue properly raised in the trial court. Hopson did not seek attorney fees below based
on a breach ofthe decree’s hold harmless provision. Accordingly, we decline to award Hopson attorneyfees against Ben-Artzi. We affirm and award Hopson attorneyfees under RAP 18.9(a), againstthe appellants, subjectto her compliance with RAP 18.1.

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## / WE CONCUR: 

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