In re Marriage of Butler

1

In the Matter of the Marriage of: BRIAN BUTLER, Respondent, and SAORI KATANI, Appellant.

No. 57861-1-II

Court of Appeals of Washington, Division 2

July 9, 2024

UNPUBLISHED OPINION

Veljacic, J.

Saori Kitani appeals the superior court's order granting Brian Butler's motion to enforce their settlement agreement their final divorce order, and the superior court's findings of fact and conclusions of law pertaining thereto. Kitani argues that the superior court lacked jurisdiction over the marriage. Specifically, she asserts that because the parties filed a joint petition for divorce in Japan, recorded it with the respective ward, and received a receipt of acknowledgement of the petition, they were no longer married such that the superior court no longer had jurisdiction to address the division of property in Washington for an already-dissolved marriage. She argues that the trial court erred when declining to exercise comity toward the Japanese acknowledgment of petition for divorce such that no further proceedings would be necessary in Washington. Kitani also argues that the terms of the settlement agreement regarding the division of property were not fair and equitable. Finally, Kitani moves to strike the declaration attached to Butler's response brief and requests sanctions under RAP 10.3(6).

We conclude the superior court had jurisdiction to address division of property. We also conclude that the superior court did not abuse its discretion when declining to exercise comity toward the Japanese acknowledgment of petition for divorce. However, we reverse and remand for a fair and equitable distribution of real and personal property.

We grant Kitani's motion to strike the declaration attached to the response brief but deny her request for sanctions. Finally, we reverse the superior court's award of attorney fees and costs to Butler and deny his request for attorney fees on appeal as he fails to meet the requirements of RAP 18.1.

FACTS

I. Background

In 2015, Butler and Kitani met while Butler was living and working in Japan. Two years later, Butler and Kitani moved to the United States and were married in Washington. In 2019 Kitani returned to Japan. Butler later requested she return to Washington; she did so for five months.

In January of 2020, Kitani learned she was pregnant with the couple's son. Following the news, the couple proceeded to purchase a home in Bonney Lake in March of that year. However, shortly after purchasing the home, Kitani returned to Japan. Butler remained in Washington. In September, Kitani gave birth in Japan.

II. Dissolution Proceedings

In May 2021, Butler and Kitani began participating in alternative dispute resolution (ADR) in Japan for the dissolution of their marriage.^[1] Meanwhile, in June, Butler commenced dissolution proceedings in Pierce County, Washington. The first ADR session in Japan occurred in July. Butler and Kitani each retained Japanese counsel. Kitani was served process regarding the Washington dissolution proceeding on September 15. Both Butler and Kitani had Washington attorneys in addition to their counsel in Japan. Kitani's Washington attorney filed their notice of appearance on October 25.

Due to the ongoing ADR proceeding in Japan, Butler and Kitani submitted a "stipulation and agreed order" to stay the Washington proceedings, which the superior court signed. Clerk's Papers (CP) at 14.

On July 1, 2022, Butler and Kitani reached an agreement via ADR and executed the document entitled "Settlement Agreement." The agreement provided for parenting, child support, conveyance of the Bonney Lake property to Butler, spousal maintenance, and finalization of the dissolution in both Japan and Washington. The agreement read, in relevant part:

1(1) [Butler] and [Kitani] agree to divorce today.

(2) [Butler] and [Kitani] shall file divorce papers in Washington State of the United States, and divorce notification in Japan immediately after the agreement is reached. . . . [Butler] and [Kitani] shall cooperate in good faith in the procedures and delivery of documents necessary for the divorce in both countries.

. . . .

(4) [Butler] shall sell the Property after the divorce is finalized in the United States and Japan.

(5) If [Butler] or [Kitani] respectively fails to promptly complete the divorce proceedings in the United States, the failing party shall pay all costs, including attorney's fees, incurred by the other party as a result of such failure.

2(1) [Agreement that son would live with Kitani in Japan, and she shall have custody]

. . . .

5 (1) [Kitani] shall transfer [her] share of ownership interest in the property to [Butler]. [Kitani] shall agree and shall not object to [Butler] submitting on behalf of [Kitani] the documents necessary for the transfer proceedings of ownership to the Pierce County District Justice Bureau prepared by [Kitani] as part of the divorce proceedings in Washington State of the United States under 1(2) above.^[2]

. . . .

(7) [Butler] and [Kitani] mutually confirm that, except as provided in

1(5) above, neither party shall make any claim against the other party for all costs (including attorneys' fees) involved in the divorce proceedings in the United States.

CP 65-69 (emphasis added).

Consistent with the agreement, on July 3, Kitani submitted a joint "petition for divorce" with the respective ward in Japan. In return, the ward provided Kitani with an "acknowledgement of receipt of petition for divorce" (receipt) and a "certificate of all records (certificate of family register)" (certificate), noting the family registries had been updated.

III. Motions Filed in Washington After Signing of The Settlement Agreement

On August 31, 2022, the superior court stay expired.

The next day, Butler's Washington attorney moved for a default judgment against Kitani because Kitani had not filed a response to the dissolution proceedings in Washington.

Two weeks later, and three days before the motion for default was to be heard, Kitani filed her "response to the petition about a marriage," asserting the superior court lacked jurisdiction over the marriage and requesting it exercise comity toward the receipt of petition for divorce provided by the Japanese ward.

Butler responded that the settlement agreement provided that he and Kitani were still required to finalize the dissolution in Washington regardless of the acknowledgment of petition for divorce from the Japanese ward.

On September 19, the trial court denied Butler's motion for default judgment because Kitani filed a response to the petition about a marriage and a response opposing Butler's motion for default before the hearing.

On September 29, Butler filed a motion to enforce the settlement agreement. He argued that the agreement was not enforceable without a divorce order from the superior court. Butler supported his motion with a declaration. In it, he stated that the agreement clearly requires that he and Kitani must finalize the divorce in both Japan and Washington, and that he was unable to record the quitclaim deed to the Bonney Lake property and corresponding real estate excise tax affidavit due to "a representative of the recorder's office [telling] [him] that [he] need[ed] to show a divorce order entered" prior to recording a new deed changing ownership. CP at 325.

Kitani reasserted that the superior court lacked jurisdiction as she and Butler were already validly divorced in Japan, and she requested dismissal of the proceedings.

On October 21, the superior court granted Butler's motion to enforce the settlement agreement. A week later, a written order was entered to that effect. In its order, the court acknowledged the settlement agreement required the parties to finalize the divorce in Washington. Consequently, the superior court declined to exercise comity, noting that the "divorce paper submitted to the [ward] is not an order or a judgment." CP at 339. It then ordered the parties to submit final divorce orders by December 2, and granted Butler attorney fees and costs pursuant to sections 1(2) and (5), and section 5(7) of the settlement agreement.

After the superior court's ruling, Kitani filed a declaration from a Japanese attorney, Naoko Ishihara. In the declaration, Ishihara stated that pursuant to Japanese civil code, married couples can divorce upon mutual consent. Ishihara stated that the procedure is administrative in nature, with no court involvement. Consequently, divorce by agreement allows parties to register the divorce with the ward, which in turn changes the status of the parties from married to divorced in the family registries. Ishihara explained that the updated status in the family registry certifies the "personal events occurring" and therefore, the mutual agreement is legally effective "upon the acceptance" of the divorce notification by the ward; this terminates the marriage. CP at 357. Therefore, Ishihara opined that Kitani and Butler were "legally divorced under Japanese law." CP at 357.

Additionally, Ishihara opined that the settlement agreement was duly entered as it was executed following Japanese arbitration. Consequently, Ishihara stated the agreement is valid under the general principles of contract law unless void due to several factors, none of which apply here.

Ishihara concluded that the terms of the settlement agreement provide that the parties would submit the notification in Japan, which Kitani did, effectively making the divorce legal under Japanese law. It is unclear whether the superior court considered this declaration given that it was filed after the superior court issued its order.

Butler responded to Ishihara's declaration with several arguments aimed at undercutting the credibility of the declaration. However,...