FILED
AUG. 20, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
IN THE MATTER OF THE MARRIAGE ) OF: ) No. 32022-7-III ) DIANEL. WOOD ) ) Respondent, ) ) UNPUBLISHED OPINION and ) ) ZALE K. WOOD, ) ) Appellant. )
FEARING, J. -. Zale Wood assigns error to most rulings of the trial court in his
divorce action with Diane Wood, Zale's wife for forty-nine years. Since the trial court
applied the correct legal standards and properly exercised its discretion, we affirm the
judgment and decree of marital dissolution entered below.
FACTS
Diane and Zale Wood married on July 5, 1960 in Yakima. In 1980, the Woods
purchased a Yakima County home on seventeen acres, and they resided together in the
home until their separation. The couple begat and nurtured two now adult children. No. 32022-7-111 In re the Marriage of Wood
Throughout most of the marriage, Zale worked in construction as a member of the
Teamsters Union. He retired and began drawing a Teamsters pension in 2002, but still
continued to work on occasion. The Teamsters pension was a principal retirement asset.
Diane worked as a homemaker throughout the marriage. In 2009, Diane and Zale Wood
separated.
PROCEDURE
On April 7, 2009, Diane Wood filed a petition for legal separation. Diane later
converted the separation petition to a divorce petition. In her petition, Diane stated that
her monthly income was $577.40 in Socifll Security benefits and her monthly expenses
were $4,516.00. Diane listed Zale's monthly income as $8,932.10.
On May 18,2009, the trial court issued temporary orders requiring Zale Wood to
pay Diane $2,221 per month in spousal maintenance and the two home mortgage
payments in the aggregate of $1,779 per month. The maintenance and mortgage
payments amounted to $4,000 per month. Diane continued to reside in the family home.
On January 4, 2010, the trial court lowered Zale's spousal maintenance obligation to
$1,190 per month, in light of his temporary unemployment. The trial court continued to
order Zale to pay the two mortgage payments, and the court ordered Zale to notifY Diane
once he started work again or garnered unemployment benefits.
In April or May 2010, Zale Wood returned to work, but did not notifY Diane or the
court. On September 16,2010, Zale suffered serious injuries in a workplace accident.
No. 32022-7-III In re the Marriage of Wood
The injuries prevented Zale from working, and he began receiving worker compensation
benefits.
On May 6,2011, Zale Wood moved the court for an order allowing him to retrieve
his personal property from the Woods' residence and holding Diane in contempt for
selling the martial community's animals, without accounting for the sales. In response,
Diane agreed that Zale could retrieve his personal property at any time. During oral
argument before this appeals court, Zale's counsel could not answer whether Zale has
garnered all of his personal property. Wash. Court of Appeals oral argument, In re the
Marriage of Wood, 32022-7-III (June 10,2015) at 7:40. At oral argument, Diane's
counsel stated that Zale collected all of his personal property. Wash. Court of Appeals
oral argument, In re the Marriage of Wood, 32022-7-III (June 10,2015) at 15:50).
On May 12,2011, Diane Wood requested an increase in maintenance. On June 1,
2011, the trial court increased Zale Wood's spousal maintenance obligation to $1,750 per
month and continued the direction for Zale to pay the two mortgage payments. The court
ordered Diane to provide an accounting of the proceeds from any animal sales. The trial
court also ordered the parties to arrange a time for Zale to visit the Yakima property and
retrieve his possessions.
On August 29, 2011, the trial court found Zale Wood in contempt for willful
violation of the June 1 maintenance order. The court awarded Diane Wood $1,650 in
maintenance owed between June 1 and August 31; $1,300 in attorney fees due by
November 30, 2011; and $500 in attorney fees due by December 31, 2011.
The marriage dissolution proceeded to trial on April 9, 2013. At trial, Diane
proposed raising Zale Wood's maintenance obligation to $2,996, but relieving him of the
mortgage payments. Diane filed a current benefits statement she received from the Social
Security Administration, stating that her monthly benefit, after Medicare deductions, was
$651, for a yearly total of$7,812.
During the quarrelsome trial, the trial court declined to consider Zale or Diane
Wood's conduct regarding preservation of the financial wealth of the marital estate. The
court commented:
A lot of times in these situations people want to talk about who spent the money during the divorce, where the money went during the divorce and the truth is it doesn't matter. We are where we are and the debt is what it is as of-at least as of the date of separation. Debt incurred after separation may be the responsibility of the person incurring that debt but for money that was badly invested, poorly spent, whatever, before the separation, that's part of marriage and so we're not going to spend a lot of time talking about who spent what during the marriage because it ends up not making any difference. Like I said, you are where you are.
Report of Proceedings (RP) (Apr. 9, 2013) at 10-11. In addition to Zale claiming Diane
squandered property, Diane argued that Zale lost money on gambling.
On April 10,2013, the trial court issued an oral ruling awarding the Yakima home
and acreage to Zale Wood and ordering Diane Wood to cooperate in its sale; requiring
Zale to continue paying both mortgages; awarding Diane the personal property in the
house, except for Zale's clothes, tools, stock truck, and tractor; and granting the divorce.
The trial court further ruled:
I'm going to equalize the income. Yes, the L&I is Mr. Wood's separate property. But when I'm considering how to divide things, I'm considering ... what's the ... relative financial condition of the parties and so on and this L&I ... is designed as a replacement for income that he would have been getting and so ... Ijust factor that in. So, basically it's going to be-she gets her Social Security. He gets his L&I and then the various pension payments and so on would be divided so that net they come out equal in terms of what their monthly income is. Then if ... there's a change in the L&I, either up or down, that would by agreement of the parties, would be considered grounds for modification and so I'm ordering that when there's a determination made on the future of that L&I, if there's any change to it, then that can be brought back to Court if you can't agree on how it should be changed. You can bring it back to Court for modification of the maintenance.
RP (Apr. 102013) at 169. The division of the parties' combined income would begin on
April 15, 2013. Zale Wood would pay $1,750 in maintenance payments per month until
the couple's property sold.
On May 22,2013, Diane Wood moved the court to hold Zale in contempt for
failing to comply with the June 1,2011 maintenance order; the August 29,2011 contempt
order; and the April 10,2013 trial oral ruling. On May 31, 2013, the court held Zale in
contempt for making untimely and incomplete maintenance payments. The court ordered
him to pay $300 in back maintenance and $250 in attorney fees. Nevertheless, the trial
court denied Diane's request to hold Zale in contempt for unpaid maintenance payments
equivalent to her share of his pensions, noting that Diane needed to determine whether
No. 32022-7-111 In re the Marriage of Wood
she was entitled to more social security benefits before the court could finalize Zale's
maintenance obligation.
On July 30, 2013, Diane Wood noted a hearing for August 9 to present proposed
findings of fact and conclusions of law, and a decree of dissolution. Diane proposed a
judgment against Zale for $7,986 in unpaid maintenance between February 1,2013 and
July 31, 2013. She sought future maintenance in the sum of $4,50 1 monthly and an
award of reasonable attorney fees and costs. The findings and conclusions listed Zale's
worker compensation payments as the couple's community property. On August 8, 2013,
the day before the hearing, Zale Wood filed an objection to the amount of maintenance in
the proposed findings, Diane Wood's request for attorney fees, and to Diane's inclusion
of her separate credit cards as community liabilities.
On August 9, 2013, the court conducted a hearing to enter findings of fact,
conclusions of law, and a decree of dissolution. Zale Wood informed the trial court that
the Yakima property sold with a net profit of approximately $8,000. Diane stated that
she contacted the social security administration, and it informed her that she was entitled
to no additional benefits. The parties agreed to reduce Zale's maintenance obligation if
Diane incurred more social security benefits in the future. Zale continued to object to the
amount of maintenance proposed by Diane, and he argued that the maintenance
calculation did not reflect a reduction in his worker compensation benefits. The trial
court expressed frustration with the parties' failure to perform arithmetic calculations,
No.3 2022-7-III In re the Marriage of Wood
and he ordered them to cooperate to revise the final orders to accurately reflect Zale's
current monthly income from pensions and benefits.
Two weeks later, Diane Wood rescheduled entry of the final decree of dissolution,
and findings and conclusions for September 18,2013. Diane mailed a copy of her
proposed order to Zale Wood's attorney on August 21,2013, before she rescheduled a
hearing. The second version of the proposed findings still listed Zale's worker
compensation benefits as community property. The second proposed decree divided the
net proceeds from the sale of the house between the parties, awarded Diane $5,630 for
back maintenance, and granted Diane $4,094 in future monthly maintenance. The
proposed decree directed that future maintenance be reduced proportionate to the amount
of payment Diane monthly receives from qualified domestic relations orders on Zale's
pensions.
On September 3,2013, Zale Wood's attorney withdrew. On September 18,2013,
the day of the second hearing for entry of the final decree, Zale moved to continue the
hearing because he had yet to replace his lawyer. The trial court denied the motion to
continue. Zale argued, without counsel, the merits of the entry of the findings and
conclusions and contended that the facts did not support the trial court's oral ruling. Zale
objected to the amount of maintenance that the trial court ordered him to pay. At the
close of the September 18 hearing, the trial court entered the findings of fact, conclusions
of law, and divorce decree as proposed by Diane.
No. 32022-7-II1 In re the Marriage of Wood
Zale Wood obtained new counsel on September 23, 2013. On September 30,
2013, Zale moved for reconsideration, which motion the trial court denied.
LAW AND ANALYSIS
On appeal, Zale Wood contends: (1) the trial court abused its discretion in denying
Zale's motion to continue the September 18,2013 presentment hearing, (2) the trial court
violated article IV, section 20 of the Washington Constitution and RCW 2.08.240 by
failing to provide Zale a final decision within ninety days of the trial, (3) the trial court
abused its discretion in denying Zale a court order to retrieve personal property from the
Woods' former residence, (4) the trial court abused its discretion by excluding testimony
at trial regarding the parties' contributions and misconduct during their forty-nine year
marriage, (5) the trial court erred in taking into consideration Zale's monthly social
security and worker compensation disability benefits when calculating Diane's spousal
maintenance award, (6) the trial court abused its discretion under RCW 26.09.090 in
awarding spousal maintenance, and (7) the trial court abused its discretion under RCW
26.09.080 in its division of the parties' assets and liabilities. We address the contentions
in such order.
Issue 1: Whether the trial court abused its discretion in denying Zale Wood's
motion to continue the September 18,2013 presentment hearing?
Answer 1: No.
We first address two purported procedural errors assigned by Zale Wood. Zale
. argues that the trial court erred in denying his motion to continue the September 18, 2013
hearing, after his attorney withdrew on September 3,2013. Zale argues that, even though
Diane Wood complied with CR 52(b)'s requirement of giving lO-days' notice of entry of
final orders to the opposing party, he lacked time to review the findings of fact and
conclusions of law due to his residence in Puyallup and his attorney's withdrawal. Zale
asserts prejudice as a result of the trial court's denial of his motion to continue the
presentment hearing until he could hire another attorney. Diane responds that Zale's
motion for a continuance was untimely and meritiess, and she observes that the trial court
gave Zale the opportunity to file a motion for reconsideration to correct any error in the
findings of fact, conclusions of law, or dissolution decree.
This court reviews a trial court's denial of a motion for a continuance for manifest
abuse of discretion. Molsness v. City of Walla Walla, 84 Wn. App. 393,400,928 P.2d
1108 (1996). A trial court manifestly abuses its discretion if no reasonable person would
take the view adopted by the court. Eagle Pac. Ins. Co. v. Christensen Motor Yacht
Corp., 85 Wn. App. 695, 709, 934 P.2d 715 (1997), aff'd, 135 Wn.2d 894, 959 P.2d 1052
(1998).
We hold that the trial court below did not abuse its discretion in denying Zale
Wood's motion for a continuance. Although his attorney's withdrawal created
inconvenience, Diane Wood provided Zale ample notice of presenting the final orders to
the trial court. During the presentment hearing, Zale did not argue that orders prepared
by Diane failed to reflect the trial court's oral rulings or that Zale needed an attorney to
draft a correct version of the orders to mirror the trial court's rulings. Zale instead
continued his ongoing objection to the amount of maintenance the trial court ordered and
the trial court's division of property. Thus, Zale was not prejudiced by the trial court's
denial of his motion for a continuance, and we find no abuse of discretion in denying the
motion to continue.
Issue 2: Whether the trial court violated article IV, section 20 ofthe Washington
Constitution and RCW 2.08.240 by failing to issue afinal decision within 90 days?
Answer 2: No.
Zale Wood next contends that the trial court violated article IV, section 20 of
Washington's Constitution, and RCW 2.08.240 by deferring, during its April lO, 2013
oral ruling, his duty to value assets and liabilities until a later date. Zale argues that the
intervening five months between the trial court's oral ruling and the entry of written
findings of fact, conclusions of law, and the decree of dissolution resulted in Diane
Wood, not the court, deciding the material facts and issues in the case favorable to her.
He complains that the trial court failed to assign value to the family residence, household
goods, personal property, or liabilities of the parties, which failure misled him to
conclude his divorce was not final.
Diane Wood responds that the parties understood the trial court's oral ruling as
shown by Zale's listing and selling the Yakima property prior to entry of the final decree
lO No. 32022-7-III In re the Marriage 0/ Wood
of dissolution and in compliance with the oral ruling. She maintains that the only dispute
unresolved after trial was whether she might be eligible for an increase in social security
benefits. Diane observes that Zale never objected to the trial court's direction that the
parties sell their home and gather more information about Diane's social security benefits
before presenting final orders.
Article IV, section 20 of Washington's Constitution provides, in relevant part:
"Every cause submitted to a judge of a superior court for his decision shall be decided by
him within ninety days from the submission thereof." RCW 2.08.240 repeats this
command.
Zale Wood may argue that the trial court's failure to enter a final order within
ninety days of its oral ruling in April 2013 automatically voids the decree of dissolution.
The law is to the contrary. The superior court is a court of general jurisdiction, and
nothing in the constitutional provision lessens that jurisdiction or otherwise forbids a
judgment after the expiration ofthe ninety-day period. State v. Regan, 76 Wn.2d 331,
341,457 P.2d 1016 (1969); State v. Dooly, 14 Wn.2d 459,467, 128 P.2d 486 (1942).
The mere fact that the judgment was not rendered within ninety days does not of itself
constitute error on which the judgment may be reversed. Moylan v. Moylan, 49 Wash.
341, 344, 95 P. 271 (1908). Reviewing courts are even less inclined to reverse a tardy
judgment if the trial court makes an oral ruling at the close of trial. See W. Philadelphia
Title & Trust Co. v. City o/Olympia, 19 Wash. 150, 155,52 P. 1015 (1898).
No. 32022-7-111 In re the Marriage o/Wood
Even assuming violation of the constitutional deadline for decision voids a ruling,
the trial court does not violate the rule if the parties fail to timely present orders or if the
trial court seeks additional information from the parties. An old, but controlling decision,
is West Philadelphia Title & Trust, 19 Wash. at 151-52, a commercial paper case. W.J.
Casebeer sought to enforce warrants against the City of Olympia and paid to him by a
company contracted by the city to grade and improve its streets. The trial court made an
oral ruling in favor of the city on July 3,1891, but did not enter findings of fact and
conclusions of law until January 23, 1892. Casebeer sought to have the judgment vacated
on appeal on the basis that the trial court failed to file the findings and conclusions within
ninety days as provided in the Washington Constitution. Our Supreme Court disagreed,
while noting that the trial court made an oral ruling at the close of trial that could have
been reduced to judgment at any time. W. Philadelphia Title & Trust, 19 Wash. at 155.
The language of the constitutional provision has not changed since the state constitution's
adoption in 1889.
lale Wood's trial court issued an oral ruling at the close of the Woods' marital
dissolution trial, and the court entered final findings and conclusions approximately five
months later. The trial court was willing to sign findings of fact, conclusions of law, and
a final order within weeks, if not days, of its April oral ruling. The parties dallied in
obtaining important information needed to finalize the dissolution. In the meantime, lale
violated court orders necessitating contempt motions. lale Wood caused much of the
delay. Zale objected to Diane's first attempt to present final orders in August 20l3. He
then tried to delay again by moving for a continuance on the day of the second
presentment hearing. Zale cannot now, on appeal, claim an error to which he himself
contributed, and in fact seemed to endorse. See State v. Momah, 167 Wn.2d 140, 153,
217 P.3d 321 (2009). The trial court's delay in entering findings of fact and conclusions
of law do not warrant reversal of the written orders.
Issue 3: Whether the trial court abused its discretion in denying Zale Wood a
court order to retrieve personal property from the Woods' former residence?
Answer 3: We refuse to address this assignment oferror since Zale Wood
provided no argument in his appeal brief
Zale Wood assigns error to the trial court's denial of his request for a court order
to retrieve personal property from the Woods' former residence. Nevertheless, Zale
presents no argument in support of this assignment of error. RAP 10.3(a)(6) provides
that an appellate brief should contain "argument in support of the issues presented for
review, together with citations to legal authority and references to relevant parts of the
record." Assignments of error not argued or further referred to in a brief or orally are
treated as abandoned by an appellant. Talps v. Arreola, 83 Wn.2d 655,657,521 P.2d
206 (1974).
We note that the trial court granted Zale Wood possession of his personal
property. If he has not garnered the possessions due to the fault of Diane, he remains free
l3
I No. 32022-7-III In re the Marriage of Wood
to enforce the order.
Issue 4: Whether the trial court abused its discretion by excluding testimony
regarding the parties' contributions and misconduct during their forty-nine year
marriage?
Answer 4: No.
Zale Wood contends the trial court abused its discretion by excluding evidence of
the Woods' respective contributions to the marital estate and each party's conduct in
preserving or wasting community assets. A trial court may consider gross fiscal
improvidence, the squandering of marital assets, or the deliberate and unnecessary
incurring of tax liabilities in dividing the assets and liabilities of a marital estate. In re
Marriage ofSteadman, 63 Wn. App. 523, 528, 821 P.2d 59 (1991). Stated differently,
the trial court has discretion to consider whose negatively productive conduct depleted
the couple's assets and to apportion a higher debt load or fewer assets to the wasteful
marital partner. In re Marriage of Williams, 84 Wn. App. 263, 270-71, 927 P.2d 679
(1996). Because the trial court has discretion, the trial court may ignore any waste of
assets. In Marriage of Williams, the trial court ignored, when distributing marital
property, the wife's squandering of$12,000 through gambling debts.
The Wood trial court did not consider the parties' financial behavior in dividing
the marital estate. The trial court encountered enough difficulty preventing the parties
from arguing with each other in open court about whether one slept with someone else or
lied. In a contentious trial, the court did not abuse its discretion by preventing the
proceeding from degenerating into bickering about waste of the couple's assets.
If the trial court wished to consider the parties' financial conduct, the trial court
could have awarded Diane more because ofZale's purported gambling. Also, if the
couple's history was such that Zale Wood contributed to the financial success of the two
and Diane squandered financial assets, this history could harm Zale in the end. Diane's
inability to handle money could lead the judge to award her a higher sum so that her
needs are met despite her waste. Thus, Zale should be happy that the trial court excluded
evidence of waste.
A principal factor for the trial court to consider when dividing marital assets is the
economic circumstances of each spouse at the time the division of the property is to
become effective. RCW 26.09.080(4). The trial court's paramount concern when
distributing property in a dissolution action is the economic condition in which the decree
leaves the parties. In re Marriage ofGillespie, 89 Wn. App. 390, 399, 948 P.2d 1338
(1997). The court may consider the parties' prospects for future earnings, their education
and employment histories, their necessities and financial abilities, their foreseeable future
acquisitions and obligations. Friedlander v. Friedlander, 80 Wn.2d 293,305,494 P.2d
208 (1972); Gillespie, 89 Wn. App. at 399. Thus, Washington law parrots the slogan
made famous by Karl Marx: from each according to his or her ability, to each according
to his or her needs.
Issue 5: Whether the trial court erred in taking into consideration Zale Wood's
social security and L&I disability benefits when calculating spousal maintenance?
Answer 5: No.
Zale Wood contends the trial court improperly considered his social security and
worker compensation benefits in its calculation of Diane's award of lifetime spousal
maintenance. He argues that social security benefits are the separate and indivisible
property of the spouse who earned them and are not marital property subject to division
or weight when awarding maintenance. He also argues that his worker compensation
benefits are his separate property, and the trial court abused its discretion in awarding
Diane fifty percent of those benefits. Diane contends that the trial court merely
considered Zale's social security and worker compensation benefits when evaluating the
relative incomes of the two parties in calculating the amount of maintenance needed in
order to "equalize" the parties' incomes. She argues that the court did not abuse its
discretion, because it did not actually attach or assign Zale's social security or worker
compensation benefits to Diane. We agree with Diane.
RCW 26.09.090 governs awards of spousal maintenance. The statute provides, in
relevant part:
(l) 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:
16 No. 32022-7-III In re the Marriage o/Wood
(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. . .. (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 ... (d) The duration of the marriage ... (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.
RCW 26.09.090.
This court reviews the trial court's award of maintenance for abuse of discretion.
In re Marriage o/Zahm, 138 Wn.2d 213,226-27,978 P.2d 498 (1999). An award of
maintenance that is not based on a fair consideration of the statutory factors constitutes an
abuse of discretion. In re Marriage o/Crosetto, 82 Wn. App. 545, 558,918 P.2d 954
(1996). Ultimately, the court's main concern must be the parties' economic situations
post-dissolution. In re Marriage o/Williams, 84 Wn. App. at 268 (1996). The only
limitation on amount and duration of maintenance under RCW 26.09.090 is that, in light
of relevant factors, the award must be just. In re Marriage 0/ Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990).
Zale Wood correctly notes that a spouse's right to receive social security benefits
is nontransferable and nonassignable. 42 U.S.C. § 407(a); In re Marriage o/Zahm, 138
Wn.2d at 220-21. Nevertheless, our Supreme Court has held that a trial court may
consider divorcing spouses' social security benefits when fashioning ajust and equitable
maintenance award. Zahm, 138 Wn.2d at 227. Consideration of such benefits aids the
trial court in determining the relative needs of the parties and their respective ability to
pay maintenance. Zahm, 138 Wn.2d at 223.
In Zahm, 138 Wn.2d at 227, our state high court upheld a trial court's decision to
consider, when establishing an award of maintenance, the social security benefits to
which a divorcing spouse was entitled. The Zahm court first held that a trial court does
not abuse its discretion by mischaracterizing social security benefits as community
property, so long as the court does not actually attempt to assign one spouse's future
social security benefits as part of an equitable division of property in a divorce
proceeding. Zahm, 138 Wn.2d at 220-21. The court applied this same reasoning when
upholding the trial court's maintenance award.
The trial court below did not assign a portion of Zale or Diane Wood's social
security benefits in its division of the parties' community property and liabilities.
Although Diane included both Zale's and her social security incomes in her initial
estimate of the parties' total combined income, the trial court stated that it used such
information to help evaluate the relative positions of the parties in fashioning an award of
maintenance to Diane. The Zahm court held such an analysis permissible. Therefore, the
trial court qid not abuse its discretion in considering the parties' social security benefits
when fashioning its maintenance award for Diane Wood.
lale Wood repeats the same argument regarding his worker compensation benefits
and his union pension, but again the argument fails. Washington's Industrial Insurance
Act Title 51 RCW does not allow garnishment of disability benefits for the purpose of
satistying a spousal maintenance obligation. RCW 51.32.040{l). Nor does it allow
assignment of those benefits for the purpose of dividing marital property. In re Marriage
ofDugan-Gaunt, 82 Wn. App. 16, 19-20, 915 P.2d 541 (1996). A disability pension
resulting from a disability occurring after permanent separation should be characterized
as separate property of the disabled spouse but may be considered as affecting his ability
to pay alimony. In re Marriage ofHuteson, 27 Wn. App. 539, 542,619 P.2d 991 (l980).
The written findings' characterization of lale Wood's worker compensation
benefits as being community property may be a clerical error. Diane Wood agreed the
benefits were separate property. In its oral ruing, the trial court recognized the benefits as
separate property. Even if the error was not clerical in nature, reversal is not needed.
As taught in In re Marriage ofZahm, 138 Wn.2d 213 (1999) and In re Marriage
ofHuteson, 27 Wn. App. 539, mischaracterization of separate property as community
property does not, on its own, render a subsequent division of property, or order of
maintenance, unjust and inequitable. Although the trial court mischaracterized lale's
worker compensation benefits, the final divorce decree does not award the payments to
Diane, nor does the decree garnish the benefits for the purpose of paying maintenance. In
No. 32022-7-II1 In re the Marriage o/Wood
the trial court's equitable award, an increase or decrease in worker compensation benefits
accordingly increases or decreases the spousal maintenance.
RCW 26.09.090 directs the trial court to fashion ajust award of maintenance.
Diane remained at home, during the parties' lengthy marriage, to care for the children and
tend the household. Diane's work at home allowed Zale to work injobs where he
accumulated pensions and a higher amount for social security. Diane expected to live in
retirement based in part on Zale's pension and social security benefits. The trial court did
not abuse its discretion by considering the worker compensation benefits when
establishing Zale's maintenance obligation to Diane.
Issue 6: Whether the trial court abused its discretion under RCW 26. 09. 090 in
awarding spousal maintenance?
Answer 6: No.
Zale Wood next assigns error to the trial court awarding spousal maintenance.
This assignment of error differs from the preceding assignment in that Zale now argues
the trial court should not have awarded any maintenance. He argues, in part, that the trial
court failed to consider his poor health and need for surgery. Diane Wood responds that
the trial court considered all relevant statutory factors before awarding maintenance. We
agree with Diane.
Our previous discussion quoted the spousal maintenance statute, RCW 26.09.090,
and the factors on which the trial court should grant maintenance. We review the trial
court's decision on an award of maintenance for abuse of discretion. In re Marriage of
Zahm, 138 Wn.2d at 226-27 (1999). Ultimately, the court's main concern must be the
parties' economic situations postdissolution. In re Marriage of Williams, 84 Wn. App. at
268 (1996). The only limitation on amount and duration of maintenance under RCW
26.09.090 is that, in light of relevant factors, the award must be just. In re Marriage of
Bulicek, 59 Wn. App. at 633 (1990).
The trial court concluded in its final marital dissolution decree that "[a]ll statutory
factors exist for an award of maintenance to wife." CP at 193. The trial court did not
abuse its discretion in so ordering. During a disorganized and volatile trial and several
contempt hearings, the trial court heard testimony regarding both parties' health and
financial situations, and the couple's community and separate debts. The trial court
sought to place each in the same financial situation by ordering lale Wood to pay
maintenance to Diane. The final decree orders maintenance for life, but directs that
maintenance be modified depending on lale's worker compensation benefits. In
addition, the maintenance of $4,094 per month is reduced by the amount Diane receives
from laIe's pensions. Given the length of the parties' marriage, the disparity of income
between the two, and the provision reducing maintenance relative to the property
division, the trial court did not abuse its discretion.
Issue 7: Whether the trial court abused its discretion under RCW 26. 09. 090 when
dividing the marital estate?
Answer 7: No.
Zale Wood next assigns error to the trial court's division of property. He argues
that the trial court failed to assign values to all assets before dividing them. Diane Wood
contends that the trial court considered all relevant statutory factors before dividing
property. She also observes that Zale Wood contributed to any potential error in the trial
court's calculations because he failed to provide valuations of properties. Once again, we
RCW 26.09.080 governs disposition of marital property. The statute provides, in
In a proceeding for dissolution of the marriage ... the court shall, without regard to misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to: (1) The nature and extent of the community property; (2) The nature and extent of the separate property; (3) The duration of the marriage or domestic partnership; and (4) The economic circumstances of each spouse or domestic partner at the time the division of property is to become effective.
RCW 26.09.080.
As with an award of maintenance, this court reviews the division of property for
an abuse of discretion. In re Marriage ofMuhammad, 153 Wn.2d 795,803, 108 P.3d
779 (2005). The trial court has broad. discretion, which will only be reversed if exercised
on untenable grounds or for untenable reasons. In re Marriage ofRockwell, 141 Wn.
App. 235, 242-43, 170 P.3d 572 (2007). We recognize that the trial court sits in the best
position to assess the assets and liabilities of the parties and to determine what constitutes
an equitable outcome. In re Marriage ofBrewer, 137 Wn.2d 756,769,976 P.2d 102
(1999).
A just and equitable division does not require mathematical precision, but rather
fairness, based on a consideration of all the circumstances of the marriage, both past and
present, and an evaluation of the future needs of parties. In re Marriage ofLarson &
Calhoun, 178 Wn. App. 133, 138,313 P.3d 1228 (2013), review denied sub nom., In re
Marriage ofLarson, 180 Wn.2d 1011,325 P.3d 913 (2014); In re Marriage ofCrosetto,
82 Wn. App. at 556 (1996). In a long-term marriage of twenty five years or more, the
trial court's objective is to place the parties in roughly equal financial positions for the
rest of their lives. Rockwell, 141 Wn. App. at 243.
Diane Wood received approximately $600 per month in social security benefits,
while Zale Wood received roughly three times that amount, plus pension and worker
compensation benefits. The major asset accumulated for retirement was Zale's pension
benefits. The trial court divided Zale's pensions between the parties. The court ordered
the Woods' Yakima property sold to pay off its outstanding mortgages, and for the
parties to divide the net proceeds from the sale. It awarded some household items and
personal property to Zale, including the stock truck, tractor, farm implements he
requested, and his personal papers.
Although the trial court based its property division on calculations provided by
Diane, Zale had multiple opportunities to present different calculations or propose a
different division, but he did neither. Any failure of the trial court to exercise
mathematical precision in its division of the Woods' property resulted from Zale Wood's
intransigence in producing documentation requested by Diane and the court. Under these
circumstances, the trial court did not abuse its discretion in its division of the marital
estate.
Issue 8: Whether Zale or Diane Wood is entitled to attorney fees on appeal?
Answer 8: No.
Zale and Diane Wood each request an award of reasonable attorney fees on appeal
underRCW 26.09.140. Diane also seeks an award of fees under CR 11. We deny each
party's request for fees.
RAP 18.1(a) permits a party to recover attorney fees on appeal if an applicable law
grants the party that right, and the party includes a request for fees in its brief. RCW
26.09.140 provides, in relevant part:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorneys' fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry ofjudgment.
Upon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorneys' fees in addition to statutory costs.
In determining w4ether to award fees under RCW 26.09.140, this court examines
the arguable merit of the issues on appeal and the financial resources of the respective
parties. In re Marriage ofKing, 66 Wn. App. 134, 139,831 P.2d 1094 (1992). Because
of the equal division of assets and spousal maintenance awarded Diane Wood, we find
that each party has the wherewithal to pay his or her attorney fees.
Diane Wood also contends that this court could award her attorney fees and costs
under CR 11 for a frivolous appeal. This court abides by the following considerations
when determining whether an appeal is frivolous:
(1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous ifthere are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.
Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980); see also Griffin v. Draper,
32 Wn. App. 611, 616, 649 P.2d 123 (1982).
Most of Zale Wood's arguments are frivolous, but we find at least one assignment
of error that contains a debatable issue. Some law supports Zale's contention that the
trial court could consider Diane's waste of assets when distributing the parties' property.
CONCLUSION
We affirm all rulings of the trial court. We deny each party an award of
reasonable attorney fees.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
Fearing, J~ 1
WE CONCUR:
~)ALJr. Brown, A.C.J.