Shukhrat Khakimov v. Nigora Khakimova ( 2014 )

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of ) NO. 70945-3-1
NIGORA KHAKIMOVA, ) DIVISION ONE
Respondent, )
and )
UNPUBLISHED OPINION
SHUKHRAT KHAKIMOV, )
FILED: June 9, 2014
Appellant. )
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:
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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.