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Court of Appeals Division I
State of Washington

Opinion Information Sheet

			

  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Marriage of              )
                                               )      No. 66927-3-I
 SUDESH S. KOTHARI,                            )
                                               )      DIVISION ONE
                      Appellant/               )
                       Cross-Respondent,       )
                                               )      UNPUBLISHED OPINION
              and                              )
                                               )      FILED: June 11, 2012
 KUNJLATA S. KOTHARI,                          )
                                               )
                      Respondent/              )
                       Cross-Appellant.        )
                                               )

       Leach, C.J.  --        Sudesh Kothari appeals a         dissolution decree, final 

parenting plan, and order of child support.  Kunjlata Kothari cross-appeals.  

Because  we conclude Sudesh's noncompliance with the  rules of appellate 

procedure precludes review of his claims, and because Kunjlata's cross-appeal 

lacks merit, we affirm.

                                        FACTS

       The  Kotharis married in 1993 and divorced in 2011.  They have two 

teenage children.  Sudesh has a PhD in biogenetics and has worked in the 

biotech industry.  At the time of trial, he had not worked for a company for more 

than seven years but had spent several years trying to develop an ultimately  

No. 66927-3-I/2

unsuccessful start-up company.  Kunjlata has a graduate degree in business 

administration and works for Microsoft, earning in excess of $200,000 per year.  

       At the conclusion of the dissolution proceedings, the court entered a 

lengthy memorandum decision.  Among other things, the court found that the 

parties had "a history of . . . acting independently with money" and had each lost 

substantial community funds through           irresponsible investments and risky 

endeavors.  The court also found no evidence supporting Sudesh's "theories 

that the wife has hidden substantial moneys in unknown foreign 'secret 

accounts'" or diverted community funds to improper purposes under the guise of 

loan payments.  The court awarded each party the financial accounts, personal 

property, and vehicles in their name or possession.  It awarded Sudesh the 

condominium  owned by the community, his retirement account, and  half of 

Kunjlata's 401(k) fund.  It awarded Kunjlata the other half of her 401(k) fund, the 

family home, and a $50,000 judgment against Sudesh's share of her 401(k) for 

conduct that "escalated the wife's attorney fees and his own fees to a wholly 

unnecessary level." 

       The court found that Sudesh had been voluntarily unemployed for a 

substantial period but was capable of obtaining employment and earning at least 

$4,000 to $5,000 per month.  The court awarded him temporary maintenance of 

$2,000 per month for one year "to maintain a home and act as a father to his two 

children."  Sudesh has been incarcerated, however, since July 2011 on charges 

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No. 66927-3-I/3

that he unlawfully entered Kunjlata's residence and assaulted her.  

       The court adopted the parenting evaluator's recommendation  and 

designated Kunjlata the primary residential parent.  The court ordered Sudesh to 

pay Kunjlata $100 per month in child support beginning in 2011.  
       Sudesh appeals.1 Kunjlata cross-appeals.    

                                      DECISION

       Our review is governed by principles that apply equally to litigants who 
retain counsel and those who appear pro se.2        We view the evidence in the light 

most favorable to the prevailing party and defer to the trial court on matters of
witness credibility and conflicting testimony.3    We only review findings to which 

error is assigned and that review is limited to determining whether the findings 
are supported by substantial evidence.4 We consider only the evidence that was 

before the trial court.  See RAP 9.1 through 9.11.  Arguments that are not 

supported by pertinent authority, references to the record,              or meaningful 
analysis need not be considered.5  

       1 We deny Sudesh's motion to modify the commissioner's ruling striking 
his "Response to Reply Brief of Respondent" because the brief is not authorized 
by the Rules of Appellate Procedure.
       2 In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
       3 Hegwine v. Longview Fibre Co., 132 Wn. App. 546, 556, 132 P.3d 789 
(2006), aff'd, 162 Wn.2d 340, 172 P.3d 688 (2007).
       4 Hegwine, 132 Wn. App. at 555-56.  
       5 RAP 10.3(a); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 
809, 828 P.2d 549 (1992) (arguments not supported by authority); State v. 
Elliott, 114 Wn.2d 6, 15, 785 P.2d 440 (1990) (insufficient argument); Saunders 

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No. 66927-3-I/4

       We will not disturb rulings concerning parenting plans and child support 
absent a manifest abuse of discretion.6       Such rulings are seldom changed on 

appeal because the emotional and financial interests affected by them are best 
served by finality.7    An abuse of discretion must also be shown before we will 

disturb a court's property distribution.8   The trial court is in the best position to 

determine what is fair and equitable and  has broad discretion in distributing
property in dissolution proceedings.9  

       Turning to the appeals before us, we conclude that  neither party has 

demonstrated a basis for relief.  Despite notice that his briefs violated specific 

rules of appellate procedure, Sudesh did not amend his filings and remains in 

violation of the rules.   The briefs contain no page references to a record that 

includes over 1,300 pages of transcripts, nearly 1,200 pages of clerk's papers, 

and a number of lengthy exhibits. The briefs contain no assignments of error, no 

citations to authority, no discussion of the applicable standard of review, and no

meaningful legal analysis.     As Kunjlata points out, these deficiencies make it 

v. Lloyd's of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (issues 
unsupported by adequate argument and authority); State v. Camarillo, 54 Wn. 
App. 821, 829, 776 P.2d 176 (1989) (no references to the record), aff'd, 115
Wn.2d 60, 794 P.2d 850 (1990).
       6 In re Marriage of Christel, 101 Wn. App. 13, 20-21, 1 P.3d 600 (2000) 
(parenting plan); In re Marriage of Fiorito, 112 Wn. App. 657, 663, 50 P.3d 298 
(2002) (child support).
       7 See In re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990);
In re Parentage of Jannot, 149 Wn.2d 123, 127-28, 65 P.3d 664 (2003).
       8 In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999).
       9 Brewer, 137 Wn.2d at 769.

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No. 66927-3-I/5

nearly impossible for her to respond.  Neither Kunjlata nor this court has any 

obligation to search the record for the testimony, exhibits, or other portions of the 
record that Sudesh challenges or relies upon.1  Nor are we required to flesh out 

his conclusory arguments or search the law for authority supporting them.  We 

conclude that the deficiencies in Sudesh's briefs preclude review.  

       We note, however, that the majority of Sudesh's claims are not reviewable 

in any event because they rest on allegations of false testimony or the trial 

court's alleged failure to credit or rely on certain evidence.  The persuasiveness, 

credibility, and weight of the evidence are matters for the trier of fact and are not 
subject to review by this court.11

       In her cross-appeal, Kunjlata contends the court abused its discretion in 

dividing the parties' property.  She calculates that the court divided the property

80/20 percent in favor of Sudesh.  She requests "a fair and equitable" division of 

53/47 percent.  This would be achieved, she contends, by reducing Sudesh's 

       1 In re Estate of Lint, 135 Wn.2d 518, 532, 957 P.2d 755 (1998) (courts 
are not obligated "to comb the record" where counsel has failed to challenge 
specific findings and support arguments with citations to the record); Cowiche, 
118 Wn.2d at 819 ("It is not the function of the appellate court to search through 
an entire deposition to locate relevant testimony."); Orwick v. City of Seattle, 103 
Wn.2d 249, 256, 692 P.2d 793 (1984) ("It is not the function of trial or appellate 
courts to do counsel's thinking and briefing."); Mills v. Park, 67 Wn.2d 717, 721, 
409 P.2d 646 (1966) ("We are not required to search the record for applicable 
portions thereof in support of the plaintiffs' arguments.");  Fishburn v. Pierce 
County Planning & Land Servs. Dep't, 161 Wn. App. 452, 468, 250 P.3d 146 
(courts will not comb the record to find support for appellant's arguments), 
review denied, 172 Wn.2d 1012 (2011). 
       11 State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990). 

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No. 66927-3-I/6

share of her 401(k)       fund from    $235,000 to $51,750.          Kunjlata has not 

demonstrated an abuse of discretion. 

       RCW     26.09.080 authorizes courts to dispose of marital property in 

whatever manner "shall appear just and equitable after considering all relevant 

factors." Relevant factors include the duration of the marriage, the nature and 

extent of community and separate property, the economic circumstances of the 

parties, the need for maintenance, and the dissipation or wasting of marital 
assets.12  Here, the court's distribution followed findings that the parties had a 17-

year marriage, had been equally irresponsible with community funds, and had 

very different financial circumstances and future earning power.        These findings 

support a disparate division in Sudesh's favor.  

       Kunjlata argues, however, that an 80/20 percent  division is untenable.  

But her calculation is based on an incomplete list of the awarded assets.  As 

Sudesh pointed out in his response to Kunjlata's motion for reconsideration 

below, a consideration of other assets, including investment and savings 

accounts,    arguably results in a significantly less disparate division.  

       12 RCW 26.09.080; In re Marriage of Wallace, 111 Wn. App. 697, 708, 45 
P.3d 1131 (2002) (trial court may consider party's waste of assets); In re 
Marriage of Williams, 84 Wn. App. 263, 267-71, 927 P.2d 679 (1996) (courts 
consider duration of marriage, parties' financial resources, ability to meet their 
needs independently, and conduct depleting marital assets); In re Marriage of 
Steadman, 63 Wn. App. 523, 528, 821 P.2d 59 (1991) (trial court may consider 
one spouse's "gross fiscal improvidence" or "squandering of marital assets"); In 
re Marriage of Rink, 18 Wn. App. 549, 553, 571 P.2d 210 (1977) (court may 
consider maintenance in dividing property).

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No. 66927-3-I/7

Furthermore, the trial court repeatedly noted that percentages based on 

snapshots of the current value of real property assets, especially those with a 
negative value, are not particularly meaningful in the current economic climate.13  

In these circumstances, we conclude Kunjlata has not demonstrated a manifest 

abuse of discretion. 

       Kunjlata next contends the court abused its discretion in awarding Sudesh 

maintenance.  She argues that this award, together with her other obligations,

leaves her with a negative cash flow that adversely affects her ability to meet the 

children's needs.  She also argues that the award is untenable because Sudesh 

was voluntarily unemployed and allegedly refused to find work as ordered prior 

to trial.    

       Awards of maintenance are "a flexible tool by which the parties' standard 
of living may be equalized for an appropriate period of time."14              "The only 

       13 The court stated in part:
       it used to be quite easy to do a chart of assets and liabilities and 
       then figure out what an appropriate percentage point is to split 
       between a husband and a wife and depending on their various 
       earning capacities and child situation.
              It's much more difficult now given the fact that we have so 
       many real estate assets that have negative value. . . . 
              When a party makes a decision that they want to keep the 
       house and they're going to have to service the mortgage, then I 
       don't think it's at the same time appropriate to say, "Well, we'll give 
       you minus 240 [thousand] on your balance sheet because you are 
       taking the responsibility of taking that house."  I mean, that is -- it's 
       just using the same analysis we used to use when the market was 
       either rising or stable, it just doesn't work here.  So, I mean, if one 
       party wants to take the [Mercer Island] house and keep it, they're 
       going to have the responsibility of serving it.  

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No. 66927-3-I/8

limitation on amount and duration of maintenance under RCW 26.09.090 is that, 
in light of the relevant factors, the award must be just."15      "The trial court may 

properly consider the property division when determining maintenance, and may 
consider maintenance in making an equitable division of the property."16            The 

spouse alleging error bears the burden of showing an abuse of discretion on the 
part of the trial court.17  

       In awarding monthly maintenance of $2,000 for the calendar year 2011, 

the trial court acknowledged that Sudesh had been voluntarily unemployed, but 

concluded that he needed short term support "to be able to maintain a home and 

act as a father to his two children."  Considering the parties' financial
circumstances, the relevant statutory criteria,18 and the short duration of the 

       14 In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984).
       15 In re Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990).
       16 In re Marriage of Estes, 84 Wn. App. 586, 593, 929 P.2d 500 (1997).
       17 In re Marriage of Sheffer, 60 Wn. App. 51, 56, 802 P.2d 817 (1990).
       18 RCW 26.09.090(1) provides in part: 
              (1) In a proceeding for dissolution of marriage . . . the court 
       may grant a maintenance order for either spouse .  .              . . The 
       maintenance order shall be in such amounts and for such periods 
       of time as the court deems just, without regard to misconduct, after 
       considering all relevant factors including but not limited to: 
              (a) The financial resources of the party seeking 
       maintenance, including separate or community property 
       apportioned to him or her, and his or her ability to meet his or her 
       needs independently, including the extent to which a provision for 
       support of a child living with the party includes a sum for that party; 
              (b) The time necessary to acquire sufficient education or 
       training to enable the party seeking maintenance to find 
       employment appropriate to his or her skill, interests, style of life, 
       and other attendant circumstances; 
              (c) The standard of living established during the marriage or 

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No. 66927-3-I/9

maintenance obligation, we cannot say the court abused its discretion.19          

       Kunjlata argues in conclusory fashion that the court abused its discretion 

in requiring her to pay the expenses for a condominium that the court divided 

equally between the parties.  She contends the court "made no finding that [she] 

had any ability to pay those costs in addition to her obligations for her children 

and the mortgage on the family home."  But she cites no authority requiring such 

a finding.  Moreover, the court awarded Kunjlata all rental income  from the 

condominium, the condominium was leased through January 2012, and it was to 

be listed for sale when the lease expired.  Kunjlata has not demonstrated an

abuse of discretion.    

          Finally,  Kunjlata has moved to seal the briefs on appeal or, in the 

alternative, to remove them from the court's website.  Citing GR 15 and GR 22, 

she contends the briefs "contain statements which are highly offensive to her, 

are not of legitimate concern to the public, and constitute an unreasonable 

       domestic partnership; 
              (d) The duration of the marriage or domestic partnership; 
              (e) The age, physical and emotional condition, and financial 
       obligations of the spouse or domestic partner seeking 
       maintenance; and 
              (f) The ability of the spouse or domestic partner from whom 
       maintenance is sought to meet his or her needs and financial 
       obligations while meeting those of the spouse or domestic partner 
       seeking maintenance.   
       19 To the extent Kunjlata contends maintenance should be reconsidered in 
light of Sudesh's unanticipated incarceration, those changed circumstances are 
more properly addressed in a modification proceeding in the superior court.

                                            9 

No. 66927-3-I/10

invasion of her and her children's privacy."  She notes that Sudesh alleges in his 

briefs that she is a pathological liar, that she stole community assets, and that 

she has attempted suicide.  She also claims that the briefs contain sensitive 

financial information, and that unlike superior court filings, the briefs on appeal 

are available by typing a litigant's name into a search engine.  

       Initially, we note that the parties' financial source documents and 

confidential reports have been sealed on appeal.  The only question before us is 

whether the parties' briefs on appeal should be sealed or, alternatively, whether 

the briefs should be removed from this court's website.       It is Kunjlata's burden to 

identify "compelling privacy or safety concerns that outweigh the public interest 
in access to the court record."2  This burden includes application of the five-part 

analysis set forth in Seattle Times Co. v. Ishikawa, 97 Wn.2d 30, 640 P.2d 716 
(1982).21  She has not met this burden.

       Kunjlata nowhere addresses the Ishikawa factors.  In addition, she fails to 

demonstrate a compelling basis for sealing.  Sudesh's allegations of perjury, 

theft, and emotional instability are just that -- allegations.  As such, they do not 

raise compelling privacy or safety concerns.  The references in Kunjlata's briefs 

to the parties' net worth and assets, while possibly warranting redaction, do not 
warrant sealing the briefs.22  Kunjlata does not request redaction, however, and

       2 GR 15(c)(2) (emphasis omitted); see In re Dependency of G.A.R., 137 
Wn. App. 1, 11, 150 P.3d 643 (2007).
       21 Indigo Real Estate Servs. v. Rousey, 151 Wn. App. 941, 215 P.3d 977 
(2009). 

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No. 66927-3-I/11

has not complied with this court's general order requiring submission of a 
proposed redacted brief when redaction is sought.23   Her motion to seal the 

briefs or remove them from this court's website is denied. 

       Affirmed.

WE CONCUR:

       22 "A court record shall not be sealed . . . when redaction will adequately 
resolve the issues."  GR 15(c)(3). 
       23 See General Order of Division I, In re Sealed or Redacted Materials
(Wash. Ct. App.), available at
http://www.courts.wa.gov/appellate_trial_courts/'fa=atc.genorders&div=I.

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