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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NO. 70945-3-1

DIVISION ONE

In the Matter of the Marriage of )

NIGORA KHAKIMOVA, )

Respondent, )

and )

SHUKHRAT KHAKIMOV, )

Appellant. )

UNPUBLISHED OPINION

FILED: June 9, 2014

Leach, J. — In this dissolution action, Shukhrat Khakimov, acting pro se, appeals

the trial court's pretrial ruling excluding his untimely disclosed witnesses and exhibits.

He also challenges trial court orders distributing the parties' property, denying a new

trial and a change in judge, and awarding attorney fees to Nigora Khakimova. Because

the limited record provided by Shukhrat fails to establish error as to any issue on

appeal, we affirm.

FACTS

Nigora and Shukhrat were married in 1987 in Uzbekistan.1 Nigora filed for

dissolution in 2011. The trial court issued a scheduling order requiring the parties to

disclose witnesses and exhibits by April 9, 2012. The order stated,

1 Because this case involves parties with similar last names, we refer to the

parties by their first names for clarity.
No. 70945-3-1 / 2

NONCOMPLIANCE WITH THE TERMS OF THE ABOVE ORDER may

result in the exclusion of evidence or be considered an abandonment of

claims or the failure to prosecute or defend diligently. Noncompliance

may result in the entry of a judgment against the non-complying/defaulting

party, with respect to either a specific issue or the entire case. The court

may impose such additional sanctions, including the award of terms

and/or attorney fees, as it deems appropriate.

Shukhrat, proceeding pro se, failed to timely file a list of witnesses and exhibits.

On April 20, 2012, Nigora filed a motion in limine to exclude any witnesses and exhibits

not timely disclosed. On April 23, 2012, Shukhrat filed a witness list, and the parties

filed a joint statement of evidence. On May 3, 2012, the first day of trial, the trial court

granted Nigora's motion and excluded all of Shukhrat's proposed witnesses and

exhibits.

On June 5, 2012, the trial court entered a decree of dissolution and written

findings of fact and conclusions of law. The trial court awarded Nigora the community's

condominium in Uzbekistan and 2004 Chevy Impala and awarded Shukhrat the

community's house in Uzbekistan and 1999 Ford Taurus. The trial court awarded each

party the financial accounts and personal property in that party's name or possession

and granted Nigora a judgment of $2,281 against Shukhrat for his share of the

community's debt. The court awarded Nigora $4,000 in attorney fees

due to the husband's intransigent conduct such as his failure to cooperate

with the wife's attorney, failure to correctly and fully respond to the

interrogatories, failure to appear for his deposition, failure to participate in

the alternative dispute resolution, failure to abide by the case schedule

deadlines with regards to disclosure of witnesses and the exchange of

exhibits.

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No. 70945-3-1 / 3

Shukhrat filed a CR 59 motion for a new trial in which he argued (1) the

Uzbekistan house and condominium were his separate property, not community

property; (2) the trial court lacked jurisdiction over the Uzbekistan real property; and (3)

the distribution of community assets and debts was inequitable. He also made various

claims of fraud against Nigora and her attorney. The trial court denied the motion.

Shukhrat appeals the exclusion of his untimely witnesses and exhibits, the

decree of dissolution, several of the findings of fact and conclusions of law, the order

denying his motion for a new trial, and an order denying his posttrial motion for a

change in judge.

DISCUSSION

The trial court has broad discretion to divide property in a dissolution action, and

the trial court's decision will not be disturbed on appeal absent an abuse of that

discretion.2 This court also reviews a trial court's rulings on motions in limine, the denial

of a CR 59 motion for a new trial, and an award of attorney fees for abuse of discretion.3

We review a trial court's findings of fact for substantial evidence.4

A trial court's decision "is presumed to be correct and should be sustained

absent an affirmative showing of error."5 The party presenting an issue for review has

2 In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005).

3 Gammon v. Clark Equip. Co., 38 Wn. App. 274, 286, 686 P.2d 1102 (1984)

(motions in limine), aff'd, 104 Wn.2d 613, 707 P.2d 685 (1985); Aluminum Co. of Am. v.

Aetna Cas. & Sur. Co.. 140 Wn.2d 517, 537, 998 P.2d 856 (2000) (CR 59 motions); In

re Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999) (attorney fees).

4 In re Marriage of Schweitzer, 132 Wn.2d 318, 329, 937 P.2d 1062 (1997).

5 State v. Wade. 138 Wn.2d 460, 464, 979 P.2d 850 (1999).

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No. 70945-3-1 / 4

the burden of providing a record adequate to establish the errors claimed.6 An

"insufficient record on appeal precludes review of the alleged errors."7 If an incomplete

record fails to affirmatively establish an abuse of discretion, we may affirm the

challenged decision.8

Moreover, an appellant must provide "argument in support of the issues

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

parts of the record."9 Arguments that are not supported by any reference to the record

or by citation of authority need not be considered.10 Pro se litigants are held to the

same standard as attorneys and must comply with all procedural rules on appeal.11

Motion in Limine

Shukhrat claims the trial court erred in granting Nigora's motion to exclude his

proposed witnesses and exhibits. King County Local Civil Rule (KCLCR) 4(j) requires

that parties disclose witnesses and exchange copies of exhibits by the date provided in

the case schedule. "Any witness or exhibit not listed may not be used at trial, unless the

Court orders otherwise for good cause and subject to such conditions as justice

requires."12 In addition, KCLCR 26(k)(4) provides that any witness not timely disclosed

may not be called to testify at trial.

6 Wade, 138 Wn.2d at 464; see also RAP 9.2,9.9,9.10.

7 Bulzomi v. Dep't of Labor & Indus., 72 Wn. App. 522, 525, 864 P.2d 996 (1994).

8 State v. Sisouvanh, 175 Wn.2d 607, 619-20, 290 P.3d 942 (2012).

9 RAP 10.3(a)(6).

10 Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549

(1992).

11 In re Marriage of Olson. 69 Wn. App. 621, 626, 850 P.2d 527 (1993).

12 KCLCR 4(j).
No. 70945-3-1 / 5

However, a trial court's discretion to exclude witnesses is not absolute. Though

argued by neither party here, exclusion of witnesses as a sanction for untimely

disclosure is permissible only when (1) there is willful or deliberate violation of the

discovery rules and orders, (2) the violation substantially prejudiced the other party's

ability to prepare for trial, and (3) the trial court explicitly considered whether a lesser

sanction would have sufficed.13 These findings must be made on the record, either

orally or in writing.14 A trial court abuses its discretion when it excludes witnesses

without these findings.15

The record is clear that Shukhrat failed to timely provide a list of witnesses and

copies of exhibits to Nigora by April 9, 2012, the date provided in the scheduling order.

Shukhrat appears to argue that good cause justified his late disclosure, claiming that he

was ill prior to trial and that he did not realize he would need witness testimony. To the

extent Shukhrat claims that the trial court abused its discretion in considering this to be

a willful or deliberate violation, the record is insufficient to permit review. The trial

court's ruling was made orally on the first day of trial. Shukhrat did not file a verbatim

report of any of the proceedings as part of this appeal. Without demonstrating what

factors the trial court relied upon in making its decision, Shukhrat does not meet his

burden to show the trial court abused its discretion.16

13 Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997).

14 Teter v. Deck, 174 Wn.2d 207, 217, 274 P.3d 336 (2012).

15 Burnet, 131 Wn.2dat494.

16 In reply, Shukhrat argues that the trial court should have exercised other

remedies for his late disclosure, including ruling on the evidence on a case-by-case
No. 70945-3-1 / 6

Division of Property

Shukhrat reiterates his argument made below that the trial court erred in finding

the Uzbekistan property to be community property, claiming that both the house and

condominium are instead owned by his parents. But in order to properly challenge

findings of fact on appeal, Shukhrat must demonstrate "why specific findings of the trial

court are not supported by the evidence and [must] cite to the record to support that

argument."17 Because Shukhrat has not provided a verbatim report of any of the

proceedings or designated any of the exhibits considered by the court at trial, he does

not meet this burden to demonstrate error.

Citing Brown v. Brown,18 Shukhrat argues that the trial court lacked jurisdiction to

adjudicate the parties' interests in the Uzbekistan property. But in In re Marriage of

Kowalewski,19 the Washington Supreme Court held that a trial court's personal

jurisdiction over the spouses and subject matter jurisdiction over the marital dissolution

action encompasses the power to distribute spouses' personal interests in all property,

including foreign real estate.20 Consistent with Kowalewski, the trial court properly

adjudicated the parties' interests in the Uzbekistan real property in the context of their

dissolution.

basis. We do not consider an issue raised and argued for the first time in a reply brief.

Cowiche Canyon, 118 Wn.2d at 809.

17 In re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998).

18 46 Wn.2d 370, 372, 281 P.2d 850 (1955).

19 163 Wn.2d 542, 544, 553, 182 P.3d 959 (2008).

20 Kowalewski, 163 Wn.2d at 549-50.
No. 70945-3-1 / 7

Shukhrat claims that the trial court's division of the cars was inequitable because

the Chevy Impala awarded to Nigora was more valuable than the Ford Taurus awarded

to him. Again, the record is inadequate to review this claim because it contains no

evidence of the cars' value or the basis for the trial court's decision. Shukhrat also

argues that Nigora lied about her income and stole valuable china, silver, and antiques

belonging to him. But the persuasiveness, credibility, and weight of the evidence are

matters for the trier of fact and are not subject to review by this court.21

Posttrial Motions

Shukhrat failed to establish any of the grounds under CR 59(a) justifying a new

trial. The trial court did not abuse its discretion in denying his motion. Shukhrat also

assigns error to an order denying his posttrial motion for a change in judge. Because

the record contains neither Shukhrat's motion nor a transcript of the trial court's hearing

on the motion, we decline to review it.

Trial Court Award of Attorney Fees

Shukhrat contends that the trial court erred in awarding attorney fees to Nigora

without considering his ability to pay. But findings as to a party's ability to pay are not

required for an award of fees based on intransigence.22 Shukhrat also claims that

Nigora inflated the amount of time her attorney spent on the case, but there is no

evidence to support such a claim. On the basis of the record before us, Shukhrat does

not demonstrate the trial court abused its discretion in the award or the amount of fees.

21 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990).

22 Mattson, 95 Wn. App. at 604.
No. 70945-3-1 / 8

Attorney Fees on Appeal

Citing RAP 18.9(a), Nigora requests attorney fees on appeal, arguing that

Shukhrat's appeal is frivolous. We agree and award Nigora attorney fees on appeal,

subject to her compliance with RAP 18.1(d).23

Affirmed.

WE CONCUR:

^r„^cx few, '

23 Shukhrat has filed three motions connected with his appeal. Shukhrat's first

two motions allege various abuses against him, including that (1) the trial court judge

was biased against him and violated rules of judicial conduct; (2) Nigora misrepresented

her income, assets, and ownership of the Uzbekistan property; and (3) Nigora's attorney

threatened and intimidated him. As the proper place for Shukhrat to raise these claims

was in his opening brief, we deny his motions. Shukhrat's third motion was to strike

Nigora's opening brief, in which he claimed that Nigora served him with a different

version than that filed with this court. He also made various other allegations of fraud

and discrimination. A commissioner of this court denied Shukhrat's motion, and we

deny his motion to modify the commissioner's ruling. We include Nigora's attorney fees

associated with responding to these motions as part of our award of appellate fees.