In Re The Marriage Of: Foster Jones, Respondent V. Mashawna Ausler, Appellant

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
FOSTER JONES,
Respondent,
and
MASHAWNAAUSLER,
Appellant.
NO. 73367-2-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	June 20, 2016
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Leach, J. — Mashawna Ausler appeals several trial court decisions in this quiet
title case. 	She challenges the conversion of the case from one seeking dissolution of a
committed intimate relationship to a quiet title action. 	In addition, she argues the trial
court erroneously awarded the house to Foster Jones, failed to award her sufficient
compensation 	by miscalculating the value of the 	house and 	denying wages Jones
allegedly owed her, and abused its discretion when it denied her request for a trial
continuance. 	Finally, she attacks the continuing restraining order entered against her
and the order requiring her to vacate the property within seven days. 	Finding no error,
we affirm.
FACTS
Foster Jones 	and 	Mashawna Ausler were 	romantically 	involved 	sporadically
between 2002 and 2014. 	In 2007, Jones purchased a house on South 114th Street in

No. 73367-2-1/2
Seattle, Washington. 	He added Ausler to the title later that year. 	The 	relationship
ended in 2014 after Ausler assaulted Jones. 	In May 2014, Jones filed a petition for
dissolution of committed intimate relationship. 	Jones asked the court to declare him the
sole owner of the house.
In October 2014, the trial court converted the matter to a quiet title action. 	Both
parties agreed that no committed relationship ever existed between them. 	This left as
the 	only issue 	resolution of title to the 	house. 	Specifically, 	Ausler stated 	in 	her
declaration that her relationship with Jones "does not meet the standard for 'committed
intimate relationship' or a 'meretricious relationship.'" 	She emphasized that she and
Jones never married, they did not live together continuously, their relationship was "not
stable or committed," and that "Foster was not monogamous and was even married to
another woman during the time [they] were together." 	At the October hearing, the court
elected to convert the dissolution action to a quiet title action because Ausler and Jones
shared title to a house but were not in an intimate relationship. Ausler did not object.
In April 2015, the parties appeared for a bench trial. 	Both parties testified, and
the court admitted 16 exhibits offered by Jones. 	The court made written findings of fact,
conclusions of law, and entered a judgment quieting title to the house to Jones. 	The
court 	equally divided the 	equity 	in the 	house 	and 	awarded 	Jones 	approximately
$8,000.00 for utilities and legal fees related to Ausler's misuse of Jones's other rental
properties. 	The court made a net cash award of $399.19 to Ausler, which Jones paid
immediately.
Ausler appeals.
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No. 73367-2-1/3
ANALYSIS
Ausler raises several arguments on appeal. 	Finding no error, we affirm.
Conversion to Quiet Title Action
Ausler 	contends 	the 	trial 	court 	erred 	when 	it converted 	Jones's 	action 	for
dissolution of a committed intimate relationship to a quiet title action. 	But because
Ausler raises this argument for the first time on appeal, we need not address it.
Ausler conceded in two separate declarations that she was not in a committed
relationship with Jones. 	At the October 2014 hearing, the trial court stated that both
parties conceded the dispute was not a domestic matter. The court proposed the action
be converted to a quiet title action. Ausler did not object. Ausler signed the trial court's
order recharacterizing the matter as a quiet title action without objection. We generally
will not consider issues raised for the first time on appeal.1 	Similarly, the invited error
doctrine prohibits a party from setting up an error at trial and then complaining of it on
appeal.2 	Here, Ausler conceded 	there was 	no committed 	relationship to dissolve,
inducing the court to recharacterize the dissolution as a quiet title action. 	She then
failed to object to the recharacterization and disputes it for the first time on appeal. We
therefore 	need 	not 	address 	Ausler's 	claim 	that 	the 	trial 	court 	erred 	when 	it
recharacterized the action.
1 RAP 2.5(a); Roberson v. Perez, 156 Wn.2d 33, 39, 123 P.3d 844 (2005).
2 Laviqne v. Chase. Haskell. Haves & Kalamon. P.S., 112 Wn. App. 677, 681, 50
P.3d 306 (2002).
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No. 73367-2-1/4
Request for Continuance
Ausler challenges the trial court's denial of her request for a continuance. 	Ausler
has failed to show the trial court abused its discretion here.
We review a trial court's decision to deny a continuance for abuse of discretion.3
A trial court abuses its discretion only if it makes a manifestly unreasonable decision or
bases it on untenable reasons.4 	A trial court may consider many factors when deciding
a 	continuance 	request, 	including diligence 	of the 	moving 	party, 	materiality of the
evidence sought, due process, orderly administration of its docket, 	prejudice to the
parties, and the potential impact on the trial.5 	Typically, a motion for a continuance
should be supported by an affidavit showing the materiality of the evidence obtained
and that the moving party acted with due diligence to obtain the evidence.6
Ausler has failed to show the trial court abused its discretion here. 	The trial court
notified Ausler of the trial date and the specific evidence she needed to provide five
months in advance. 	Ausler e-mailed the court requesting a continuance on April 1,
2015, roughly one week before the trial was to start on April 9. 	She told the court that
she was not "trial ready" but did not specify what evidence she sought to obtain during
the proposed continuance. 	On appeal, Ausler fails to cite any authority demonstrating
the trial 	court abused 	its discretion. 	She cites two cases for the 	proposition that
3 Harris v. Drake, 116 Wn. App. 261, 287, 65 P.3d 350 (2003).
4 In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
5 In re Recall of Lindquist, 172 Wn.2d 120, 130, 258 P.3d 9 (2011).
6 CR 40(e); Odom v. Williams, 74 Wn.2d 714, 717, 446 P.2d 335 (1968).

No. 73367-2-1/5
Washington courts strongly prefer to resolve disputes on the merits.7 	This authority
does not apply. 	The trial court here resolved the dispute on the merits when it divided
equity in the property, made an award in favor of Ausler, and quieted title in Jones.
Under these circumstances, the trial court did not abuse its discretion when it denied
Ausler's request for a continuance.
Property Award. Valuation, and Order to Vacate Property
Ausler contends the trial court erred when it awarded the property to Jones and
that 	it miscalculated 	the 	value 	of the 	property 	and 	other 	liabilities owed 	to 	her.
Substantial evidence supports the trial court's findings of fact and that those findings
support the trial court's legal conclusions.
We limit our review of a bench trial to determining whether substantial evidence
supports the trial court's findings of fact and whether those findings support the trial
court's legal conclusions.3 	Substantial evidence is the "quantum of evidence sufficient
to persuade a rational fair-minded person the premise is true."9 	In a quiet title action,
[a]ny person having a valid subsisting interest in real property, and a right
to the possession 	thereof, 	may recover the same by action ... to be
brought. . . against the person claiming the title or some interest therein,
and may have judgment in such action quieting or removing a cloud from
plaintiff's title.'10!
7 See Showalter v. Wild Oats, 124 Wn. App. 506, 510, 101 P.3d 867 (2004); Bus,
Servs. of Am. II. Inc. v. WaferTech LLC, 159 Wn. App. 591, 245 P.3d 257 (2011).
3 Standing Rock Homeowners Ass'n v. Misich, 106 Wn. App. 231, 242-43, 23
P.3d 520 (2001).
a Sunnvside Vallev Irriq. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003).
10 RCW 7.28.010.

No. 73367-2-1/6
The trial court correctly awarded the property to Jones. 	We note that Ausler
failed to assign error to any of the trial court's findings, so they are verities on appeal.11
Regardless, substantial evidence supports the trial court's findings of fact, and those
findings support the trial court's legal conclusions.
The parties agreed that both Ausler and Jones held record title to the house. 	But
Ausler does not dispute that Jones made the down payment on the house and that he
made every mortgage payment. 	The parties did dispute the purpose of putting Ausler's
name on the deed. 	Jones claimed it was a mere convenience in the event of a default
on the mortgage. 	Ausler claimed it was because they viewed the house as a joint
asset. 	But Jones provided several exhibits demonstrating he had 	made all financial
contributions to the house. 	Ausler provided only her own testimony. 	She conceded that
she never made any mortgage payments and testified that the basis for her claim of title
was her living in the house. 	Ausler falsely contends the parties owned the house as
joint tenants with right of survivorship. 	But a joint tenancy is created only by a written
instrument expressly declaring the interest to be a joint tenancy. 	The record contains
no 	such 	instrument, 	and Ausler failed 	to 	demonstrate the 	requirements for a 	joint
tenancy. 	Under these circumstances, the trial court correctly awarded the property to
Jones.
When the trial court awarded the property to Jones, it also awarded Ausler 50
percent of the equity in the property based on a $350,000 appraised value. 	Ausler
11 See Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 808, 828 P.2d
549(1992).

No. 73367-2-1/7
contends this value is too low. 	Because Ausler raises this argument for the first time on
appeal, we need not address it.12 	But even if Ausler properly preserved this argument,
substantial 	evidence 	supports 	the 	trial 	court's 	valuation 	of 	the 	property. 	Jones
submitted two exhibits showing the property's value. 	Ausler did not object and did not
offer contradictory evidence. 	The trial court adopted the appraiser's undisputed opinion
of the property's value, reflected by the calculation of equity in its findings of fact. 	Not
only are these findings verities due to Ausler's failure to assign any error, but they are
also 	supported 	by substantial 	evidence. 	The 	trial court 	did 	not 	miscalculate 	the
property's value.
Nor did the trial court err when it declined to award additional compensation for
Ausler's actions as property manager. 	In addition to her share of the equity in the
property, Ausler argued Jones owed her wages for her work as a property manager of
the 	property. 	She 	claimed 	she 	was 	available 	24 	hours 	per 	day 	to 	arrange 	for
maintenance and utility work at Jones's other rental houses. 	Ausler testified her due
compensation amounted to $15 per hour for 24 hours per day continuously for 12 years.
She offered no evidence to support her claim other than her own testimony.
The trial court declined to include Ausler's alleged wages in the calculation of
Jones's liabilities. 	The lack of any written finding of fact relating to this compensation
demonstrates the trial court found Ausler's testimony not credible. 	We treat a trial
court's decision not to make a finding of fact as a finding against the party bearing the
12 See RAP 2.5(a); Roberson, 156 Wn.2d at 39.
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No. 73367-2-1/8
burden of proof on that issue.13 	Indeed, the trial court's oral ruling shows it found
Ausler's testimony not credible and that Ausler was compensated with free rent:
You've just claimed that you were . . . entitled to $15 an hour, full-
time work, five days a week, seven days a week, 24 hours, and you're
also working full-time for the Seattle School District. 	Both cannot be true.
At best, you were a property manager. 	At worst, you stole from Mr. Jones
over and over again.
You've essentially lived rent-free there for years, and that's your
compensation, and that's—that's all that the Court can do for you based
on 	the 	information that's 	been 	provided 	to 	the 	Court. 	The 	rent 	is
considerable considering that you were working full-time in the last eight
years for [the] Seattle School District as a secretary. I can accept that on
its face, but you don't get double salary when you've absolutely provided
no information or the documentation to the Court.
When a trial court's written order is inadequate, we may look to the trial court's
oral ruling to interpret that order.14 	The trial court's oral statement shows that Ausler
failed to meet her burden to prove Jones owed her additional compensation. 	Ausler
provided no evidence supporting her claims other than her own testimony, and the trial
court found her testimony not credible. 	We do not weigh the credibility of evidence or
substitute our opinions for those of the trier of fact.15 	Thus, the trial court did not err
when it declined to award Ausler additional compensation.
Finally, Ausler disputes the trial court's order insofar as it required her to vacate
the property within seven days following the judgment. 	But ejectment is the proper
remedy following a quiet title action, and the trial court has broad discretion in granting
13 Xieng v. Peoples Nat'l Bank, 120 Wn.2d 512, 526, 844 P.2d 389 (1993).
" Wallace Real Estate Inv. Inc.. v. Groves, 72 Wn. App. 759, 770, 868 P.2d 149
(1994).
is Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266
(2009).
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No. 73367-2-1/9
this 	relief.16 	Ausler has cited 	no authority demonstrating the trial court abused 	its
discretion here. 	Further, the issue is 	now moot. 	Because the trial 	court correctly
awarded Jones sole ownership of the property, we cannot grant Ausler any meaningful
relief even if the trial court erroneously required her to vacate the property within seven
days following the judgment.
Restraining Order
Ausler argues the trial court erroneously granted a continuing restraining order
against her. 	She contends that the record lacks sufficient evidence to support the
restraining order. Again, we disagree.
A trial court has broad discretion to grant or deny a request for a continuing
restraining order.17 Ausler cites no authority supporting her argument that the trial court
abused its discretion when it granted Jones's request for a continuing restraining order.
We 	typically 	do 	not consider arguments 	unsupported 	by 	citation 	to 	authority.18
Regardless, the record shows the trial court acted within its discretion here. 	The trial
court entered a finding indicating a 	continuing 	restraining order was proper due to
domestic violence. 	Because Ausler did not assign error to this finding, it is a verity on
appeal.19 	Moreover, substantial evidence supports the trial court's finding of domestic
violence. 	Jones argued in his pleadings that Ausler had twice assaulted him, once in
August 2012 and again in April 2014. 	Jones also submitted an exhibit containing a
16 See RCW 7.28.010; Corp. of Catholic Bishop of Nesquallv v. Gibbon, 1 Wash.
592,21 P. 315(1889).
17 In re Marriage of Stewart, 133 Wn. App. 545, 550, 137 P.3d 25 (2006).
18 RAP 10.3(a)(6); Cowiche Canyon, 118 Wn.2d at 809.
19 Cowiche Canyon, 118 Wn.2d at 808.

No. 73367-2-1/10
sheriff's report detailing a third assault Ausler orchestrated in December 2014, while the
quiet title action was pending. 	Ausler lured Jones to the property by claiming there was
an 	emergency. 	When 	he 	arrived, 	Ausler's daughter and 	her daughter's 	boyfriend
assaulted 	Jones while Ausler watched 	and 	cheered them 	on. 	A separate exhibit
contained photos of the injuries Jones sustained during that assault. 	The trial court
therefore did not abuse its discretion when it granted Jones's request for a continuing
restraining order.
Posttrial Motions and Attorney Fees
Ausler filed several motions after the judgment seeking reconsideration or a new
trial.20 	She claimed that Jones lied and misrepresented facts during the trial. 	She also
argues the trial court judge was biased against her. 	These arguments fail.
We 	review a 	trial 	court's denial 	of a 	motion 	to 	reconsider for 	an 	abuse of
discretion.21 	The trial court did not abuse its discretion here. 	Ausler argued Jones lied
during trial, and she submitted declarations allegedly supporting her claims. 	But she
based these arguments on evidence available and known to Ausler before trial. 	She
therefore waived these arguments by failing to raise them during trial.
Ausler's claim that the trial court judge was biased is similarly untimely. A litigant
who objects to a particular trial judge must timely raise that objection or the objection is
waived.22 	A 	litigant may 	not 	proceed 	to 	trial with full 	knowledge 	of 	potentially
20 Appellant filed a motion to allow appendices to appellant's brief. Appellant's
motion is denied.
21 Barret v. Freise, 119 Wn. App. 823, 850, 82 P.3d 1179(2003).
22 Williams & Mauseth Ins. Brokers v. Chappie, 11 Wn. App. 623, 626, 524 P.2d
431 (1974).
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No. 73367-2-1/11
disqualifying information, wait for an adverse ruling, and then claim unfair prejudice.23
To show bias, Ausler relies on the trial judge's ruling in another case between the same
parties where the judge entered a temporary protection order in favor of Jones. 	She
knew about this evidence during trial and yet did not make any claim of bias until after
receiving an unfavorable ruling from the court. 	Ausler has therefore waived her claim
that the trial court judge was biased against her.
Finally, we deny Ausler's request for attorney fees. 	Pro se litigants are generally
not entitled to attorney fees for their work representing themselves.24 Further, neither of
the 	statutes 	Ausler 	cites 	applies. 	RCW 	26.09.140 	addresses 	fees 	in dissolution
proceedings. 	As discussed above, the trial court converted this action to a quiet title
action. 	For the same reason, RCW 7.52.480, providing fees in a partition action, does
not apply.
CONCLUSION
For the foregoing reasons, we affirm.
WE CONCUR:
VUu-eftP. 	tyf 	KoeeM
23 Williams & Mauseth, 11 Wn. App. at 626.
24 In re Marriage of Brown, 159 Wn. App. 931, 939, 247 P.3d 466 (2011).
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