                                                                                              FILED
                                                                                     COURT OF APPEALS
                                                                                           DIVISION I#
                                                                                   2013   JUL,I 6 :       46

                                                                                     STATEVILAOSRINGT
                                                                                     BY—
                                                                                                      T




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II



ROBERT ROSS,
                               Respondent,                          No. 42906 3 II
                                                                              - -


         V.

                                                             UNPUBLISHED OPINION
TONI HAMILTON,
                               Appellant.


         TOLLEFSON, J. . case comes before us for the second time. In an earlier
                    T.
                     P This

appeal from a property distribution order entered in the dissolution of Robert Ross and Toni

Hamilton's committed intimate relationship, we reversed a $ 500 judgment to Ross. Ross v.
                                                          17,

Hamilton,noted at 161 Wn. App. 1005,2011 WL 1376767, at *9. Following our mandate, Ross

moved for disbursal to him of the balance of the remaining funds held in the clerk's registry, and

the trial court granted his motion on December 12, 2011. Hamilton appeals that order, claiming

that the trial court failed to recognize (1) interest in the $ 7, 00 judgment held in the clerk's
                                           her               1 5

registry and (2) interest, yet to be determined, in Ross's retirement account. Because the
                her

17, 00 judgment to Ross was part of the fiends held in the clerk's registry and we reversed that
  5

judgment, we hold that the trial court erred when it ordered disbursal of all funds in the clerk's

registry to Ross's attorney. Accordingly, we reverse the trial court's December 12 order insofar


1
    Judge Brian M.Tollefson is serving as judge pro tempore of the Washington State Court of
Appeals, Division II,under   CAR   21( ).
                                     c
No. 42906 3 II
          - -



as it required the clerk to release the $ 7, 00 judgment to Ross, and we remand for further
                                        1 5

proceedings consistent with this opinion.
                                                 FACTS


        Robert Ross and Toni Hamilton were in a committed intimate relationship from 1990 to

2005, during which time they lived together and had a joint bank account. Ross v. Hamilton,

2011 WL 1376767, at * 7. Hamilton purchased various parcels of real property in her name,
                    6 -

but both parties contributed labor and funds to the renovation and upkeep of those properties.

Ross   v.   Hamilton, 2011 WL 1376767, at *    1 -2.


            Ross and Hamilton separated in 2005 and a subsequent trial resolved the division of their

assets. Ross v. Hamilton, 2011 WL 1376767, at *
                                              3. In February 2009, the trial court ordered

that the proceeds from the sale of real property located on Island View Lane in Cathlamet,

Washington, totaling $ 57, 67.be deposited with and held by the trial court clerk. Ross
                     67,
                     3   7

received $ 0, 00.of those funds in May 2009 by order of the court.
         00
         3 0

            In October 2009, the trial court concluded that the couple had shared a 15 year
                                                                                       -

committed intimate relationship and awarded Ross 50 percent of the proceeds from the sale of

the Island View property, certain interests in two other properties, 50 percent of his 401( )
                                                                                          k

account, and a $ 7, 00 judgment. Ross v. Hamilton, 2011 WL 1376767, at *3.The $ 7, 00
               1 5                                                            1 5

judgment represented one half of a $ 5, 00 cash payment made on the Island View property.
                         -         3 0

Ross v. Hamilton, 2011 WL 1376767, at * . Finally, the trial court ordered that the funds held
                                      3

by the court clerk be released.to Ross's attorney. The funds held in the clerk's registry included
the $ 500 judgment.
    17,

            Hamilton appealed, arguing, inter alia, that the trial court erred when it awarded Ross the

17, 00 judgment as one half of the $ 5, 00 cash payment on the Island View property. Ross v.
  5                    -           3 0

                                                       2
No. 42906 3 II
          - -


Hamilton, 2011 WL 1376767, at * 1. In an unpublished opinion filed on April 12, 2011, we

reversed the trial court's decision awarding Ross the $ 500 judgment. Ross v. Hamilton, 2011
                                                      17,

WL 1376767, at *
               9. We held that the trial court erred in awarding this judgment because

although the trial court stated that the purpose of the judgment was to reimburse Ross for one -

half of a cash payment made on the Island View property, Ross received 50 percent of the

proceeds from the sale of that property in the trial court's order; thus, the additional $ 7, 00
                                                                                         1 5

judgment constituted a double reimbursement of those funds. Ross v. Hamilton, 2011 WL

1376767, at * . Accordingly,we vacated the $ 7, 00 award and remanded for proceedings
            9                              1 5

consistent with our opinion. Ross v. Hamilton, 2011 WL 1376767, at *9 10.
                                                                      -

       After Hamilton's unsuccessful petition to the Washington State Supreme Court for

review, we issued our mandate requiring further proceedings in accordance with our opinion. In

October 2011, Ross moved the trial court under RAP 8. and RAP 12. for an order releasing all
                                                    6           5

funds held by the court clerk. Hamilton objected to Ross's motion to release the funds.

        She contended that Ross's motion to release all funds held by the trial court clerk failed

to accountfor the expenditures Hamilton made to maintain some of the real property since trial.

She also claimed an interest in a portion of Ross's retirement account and an interest in multiple

pieces of real and personal property at issue in the dissolution of their committed intimate

relationship. Finally, she argued that she should receive the $ 7, 00 awarded to Ross as a
                                                              1 5

judgment. She claimed that she should receive the funds from the trial court clerk before they

were distributed to Ross because the $ 500 had been deducted from her share of the property
                                     17,

distribution. Hamilton asked the court to order " division of the proceeds which properly
                                                a

allocates to each party their respective interest"in the funds. Clerk's Papers at 31.



                                                  3
No. 42906 3 II
          - -



       At the November 7,2011, argument on the motion to release funds, the parties and the

trial court discussed the proper valuation of Hamilton's interest in Ross's 401( ), the trial
                                                                               k and

court ordered the parties to provide additional information about the status of the account.

Regarding the other issues Hamilton raised, the trial court concluded that they should have been

addressed in the previous proceedings.

       Ross later filed a declaration explaining the status of the 401( ) suggested.that
                                                                      k and

because the division of Ross's retirement funds remained unsettled, the trial court might require

that some funds remain in the registry to protect Hamilton's claimed 50 percent interest in the

account. Ross estimated that $ 20, 00 would be more than sufficient to protect Hamilton's
                             1 0

interest.


        On December 12, 2011, the trial court granted Ross's motion to release funds and ordered

the court clerk to release all remaining funds to Ross's trial counsel. Hamilton appealed that

order. She also filed a notice of cash supersedeas with the trial court that included a $ 5, 00
                                                                                        2 0

bond as well as the funds previously deposited with the clerk.

        Ross moved the trial court for an order limiting the application of the stay pending
                                                                                -

appeal, rejecting Hamilton's motion for supersedeas bond, and for CR 11 sanctions. The trial

court issued an order limiting application of the stay and rejecting Hamilton's proposed

supersedeas arrangements. The trial court ordered the clerk to disburse all funds held by the

court except the $ 000 bond and an additional $ 37, 00.
                 25,                          1 0

        Hamilton filed an amended notice of appeal seeking review of the trial court's December

13 order requiring the trial court clerk to release some.of the funds to Ross's attorney. We

considered this amended notice of appeal as a motion objecting to the trial court's supersedeas

decision under RAP    1 and
                     h)
                     8. (       denied Hamilton's request for relief from the December 13      order,
No. 42906 3 II
          - -



thus refusing her amended notice of appeal. Ruling on Mot. to Object to a Supersedeas Decision

of the Trial Ct.,
                Ross v. Hamilton,No. 42906 3 II Wash. Ct. App.Feb. 14, 2012).Hamilton
                                           - - (

appeals the trial court's December 12, 2011, order granting Ross's motion to release all funds

from the clerk's registry.

                                           ANALYSIS


I.     STANDARD OF REVIEW


       Superior courts must strictly comply with directives from an appellate court which leave
no discretion to the lower court."State v. Schwab, 134 Wn. App. 635, 645, 141 P. d 658 (2006),
                                                                               3

aff'd,163 Wn. d 664, 185 P. d 1151 (2008).By contrast, where we issue a mandate that merely
            2             3

requires the trial court to " onsider"certain issues, we review the trial court's conduct on remand
                            c

for an abuse of discretion. Harp v.Am. Surety Co.off.Y., Wn. d 365, 368 69,311 P. d 988
                                                       50  2            -       2

1957).Here, our opinion resolving the first appeal unambiguously vacated the $ 7, 00
                                                                             1 5

judgment to Ross; accordingly, we review de novo the issue of whether the trial court complied

with our mandate.

IL     THE TRIAL COURT ERRED WHEN IT DISBURSED ALL FUNDS TO ROSS


       Hamilton argues that the trial court erred when it ordered the release of all remaining

funds held by`he trial court clerk because we vacated the $ 7, 00 judgment to Ross that was
             t                                            1 5

part of those funds. We agree that the trial court erred when it ordered disbursal of the funds.

        The record shows that Hamilton deposited $ 500 in the clerk's registry pursuant to the
                                                 17,

trial court's order awarding a $ 7, 00 judgment to Ross. We reversed this order, holding that
                               1 5

the $ 7, 00 judgment constituted a double reimbursement of Ross's 35, 00 cash payment on
    1 5                                                            $0

the Island View property when the trial court had already awarded him 50 percent of the

proceeds from the sale of that property. Ross v. Hamilton, 2011 WL 1376767, at * .
                                                                               9
                                                 z
No. 42906 3 II
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Accordingly, we reverse the trial court's December 12 order insofar as it required the clerk to

release the $ 7, 00 judgment to Ross, and remand for further proceedings consistent with this
            1 5
        2
opinion.

III.   ATTORNEY FEES


       Ross argues that Hamilton's appeal is frivolous and requests attorney fees under RAP

18.1 and RCW 4.4.for defending against a frivolous appeal. "An appeal is frivolous if,
             185
               8

considering the entire record, it has so little merit that there is no reasonable possibility of

reversal and reasonable minds could not differ about the issues raised."
                                                                       Johnson v. Jones, 91

Wn. App. 127, 137, 955 P. d 826 (1998).Because we hold that the trial court erroneously
                        2

ordered all funds to be released from the clerk's registry, we hold that Hamilton's appeal was not

frivolous and deny Ross's request for fees.

        We reverse the trial court's December 12 order to the extent that it released the $ 500
                                                                                          17,

judgment to Ross contrary to our decision reversing that judgment and remand for further




2
  Hamilton also argues that the trial court erred when it ordered the release of all funds in the
registry because it had yet to calculate her interest in those funds for various offsets, including
her interest in Ross's retirement account. But the record does not show what, if any, resolution
the trial court has made of Hamilton's additional claims to those funds and there is no evidence
that the trial court has failed to comply with our ruling in Hamilton's original appeal other than
its failure to comply with our reversal of the $ 500 judgment to Ross..Accordingly, we decline
                                               17,
to address Hamilton's claim further.
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No. 42906 3 II
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proceedings consistent with this opinion.

       A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

040,
2.6.it is so ordered.
 0



                                                                                            i

                                                     TOLLEFSON, IfT.
We concur:




 O ANSON, J.




WORSWICK, C. .
           J




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