Shukhrat Khakimov, Appellant V. Nigora Khakimova, Respondent

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UNPUBLISHED OPINION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