N ED COURT OF APPE,, LS Di VFv'lopq 7T
2014 FEB -- 4 AM 9. 17 IN THE COURT OF APPEALS OF THE ASHIING ON STATFSgf, T DIVISION II r? y_r
Ty In re the Marriage of: I No. 43232 -3 -II
MERRY ELIZABETH WOECK,
Appellant,
V. UNPUBLISHED OPINION
DOUGLAS DAVID WOECK, .
PENOYAR, J. — Merry Woeck appeals the. trial court' s decision to enforce a separation
agreement between Merry' and Douglas Woeck. She argues that the agreement is unfair and that
it is voidable based on allegations of domestic abuse. We remand for the trial court to hold an
evidentiary hearing and enter findings of fact and conclusions of law regarding Merry' s claims of
duress and undue influence arising from allegations of domestic abuse.
FACTS
Douglas and Merry married in October 2001. Merry petitioned for dissolution on August
11, 2011. That same day, the parties signed a separation agreement. Merry, who is a practicing
attorney, drafted the agreement. Merry consulted with an attorney before drafting the agreement,
and Douglas was represented by a separate attorney throughout the dissolution proceedings.
On November 29, 2011, before the trial court entered the dissolution decree, Merry filed
an order for protection - harassment petition against Douglas after she received threatening calls
and texts. She also petitioned for an ex parte restraining order in January 2012. The trial court
dismissed the order for protection- harassment petition because of the pending restraining order.
1 For clarity, we refer to the parties by their first names. We intend no disrespect. . 43232 -3 -II
On February 21, 2012, the trial court entered a restraining order prohibiting Douglas from
contacting Merry for one year.
In February 2012, Douglas filed a motion to enforce the separation agreement. Merry
filed a counter motion to void the separation agreement. She argued that ( 1) Douglas breached
the agreement by committing domestic abuse and failing to perform under the deadlines in the
agreement and ( 2) she entered the agreement under severe emotional duress. The trial court
considered the motions to enforce and to void the agreement and the declarations included with
2 each and enforced the separation agreement. Merry appeals.
ANALYSIS
I. STANDARD OF REVIEW
Parties to a marriage may enter into a written separation contract providing for
maintenance, property disposition, a parenting plan and child support, and the release from
obligations. RCW 26. 09. 070( 1). A separation contract is binding on the trial court unless, after
considering the parties' economic circumstances and any other relevant evidence, it finds that the
contract was unfair at the time of its execution. RCW 26. 09. 070( 3).
Before RCW 26. 09. 070, the trial court had discretion to adopt separation agreements. In
re Marriage of Shaffer, 47 Wn. App. 189, 193, 733 P. 2d 1013 ( 1987). It could disregard an
agreement if it determined that the terms were not just and equitable. Shaffer, 47 Wn. App. at
193. But RCW 26.09. 070 gives parties the ability to distribute their property as they see fit.
Accordingly, the trial court can no longer disregard a separation agreement for not conforming to
2 The agreement was enforced by a different judge than the one who entered the restraining order against Douglas. Merry referenced the restraining order' s case number in her motion to void the agreement, but the record from the restraining order proceedings was not before the trial judge who enforced the agreement. 2 43232 -3 -II
the court' s view of an equitable distribution; instead, the court is limited to deciding whether the
agreement was unfair when it was executed. Shaffer, 47 Wn. App. at 194. In determining
whether a separation agreement is unfair, the trial court considers ( 1) whether the parties have
fully disclosed the amount, character, and value of the property involved and ( 2) whether the
agreement was entered into fully and voluntarily on independent advice and with full knowledge
by the spouse of her rights. 3 Shaffer, 47 Wn. App. at 194 ( quoting In re Marriage of Cohn, 18
Wn. App. 502, 506, 569 P. 2d 79 ( 1977)).
We review a motion to enforce a settlement agreement de novo. In re Marriage of
Bernard, 165 Wn.2d 895, 903, 204 P. 3d 907 ( 2009); Lavigne v. Green, 106 Wn. App. 12, 16, 23
P. 3d 515 ( 2001). Where, as here, the moving party relies on documentary evidence in a motion
to enforce a settlement agreement, the trial court proceeds as if it is considering a summary
judgment motion. Condon v. Condon, 177 Wn.2d 150, 161, 298 P. 3d 86 ( 2013); Brinkerhoff v.
Campbell, 99 Wn. App. 692, 696, 994 P. 2d 911 ( 2000). The parties' submissions must be read in
the light most favorable to the nonmoving party. Condon, 177 Wn.2d at 162. If there is an issue
of material fact, the trial court should resolve the issue with an evidentiary hearing. Brinkerhoff,
99 Wn. App. at 697. If the nonmoving party raises an issue of material fact and the court
enforces the agreement without first holding an evidentiary hearing, its decision is manifestly
3 Merry argues in her reply brief that we should apply the test from In re Marriage ofForan, 67 Wn. 242, 249, 834 P. 2d 1081 ( 1992), to determine whether the agreement was fair. This App. test first requires the court to consider the substantive fairness of the agreement and then requires the court to consider procedural fairness, applying the same test as Shaffer and Cohn for procedural fairness. Foran, 67 Wn. App. at 249. But Foran involved a prenuptial agreement rather than a separation agreement. App. at 246. Under RCW 26. 09. 070( 3), the court' s 67 Wn. focus is not on how equitable the separation agreement is but whether it is procedurally fair. Shaffer, 47 Wn. App. at 193 -94. Therefore, the procedural fairness test from Cohn is most applicable here. 3 43232 -3 - II
unreasonable and based on untenable grounds or reasons. Brinkerhoff, 99 Wn. App. at 697; State
ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 ( 1971).
II. PROPERTY VALUE
First, Merry argues that the trial court erred when it failed to determine the value of the
parties' property, specifically, Douglas' s 401( k) benefits, before entering the dissolution decree.
But the trial court does not have to determine the value of the parties' property when the property
is divided by a separation agreement. Instead, the trial court considers whether the parties fully
disclosed the amount, character, and value of the property involved. Shaffer, 47 Wn. App. at
194. Here, there is evidence that Merry reasonably should have known the value of the 401( k).
A separation agreement must adequately identify the parties' assets and put the parties on
notice that the assets exist. Yeats v.
Free access — add to your briefcase to read the full text and ask questions with AI
N ED COURT OF APPE,, LS Di VFv'lopq 7T
2014 FEB -- 4 AM 9. 17 IN THE COURT OF APPEALS OF THE ASHIING ON STATFSgf, T DIVISION II r? y_r
Ty In re the Marriage of: I No. 43232 -3 -II
MERRY ELIZABETH WOECK,
Appellant,
V. UNPUBLISHED OPINION
DOUGLAS DAVID WOECK, .
PENOYAR, J. — Merry Woeck appeals the. trial court' s decision to enforce a separation
agreement between Merry' and Douglas Woeck. She argues that the agreement is unfair and that
it is voidable based on allegations of domestic abuse. We remand for the trial court to hold an
evidentiary hearing and enter findings of fact and conclusions of law regarding Merry' s claims of
duress and undue influence arising from allegations of domestic abuse.
FACTS
Douglas and Merry married in October 2001. Merry petitioned for dissolution on August
11, 2011. That same day, the parties signed a separation agreement. Merry, who is a practicing
attorney, drafted the agreement. Merry consulted with an attorney before drafting the agreement,
and Douglas was represented by a separate attorney throughout the dissolution proceedings.
On November 29, 2011, before the trial court entered the dissolution decree, Merry filed
an order for protection - harassment petition against Douglas after she received threatening calls
and texts. She also petitioned for an ex parte restraining order in January 2012. The trial court
dismissed the order for protection- harassment petition because of the pending restraining order.
1 For clarity, we refer to the parties by their first names. We intend no disrespect. . 43232 -3 -II
On February 21, 2012, the trial court entered a restraining order prohibiting Douglas from
contacting Merry for one year.
In February 2012, Douglas filed a motion to enforce the separation agreement. Merry
filed a counter motion to void the separation agreement. She argued that ( 1) Douglas breached
the agreement by committing domestic abuse and failing to perform under the deadlines in the
agreement and ( 2) she entered the agreement under severe emotional duress. The trial court
considered the motions to enforce and to void the agreement and the declarations included with
2 each and enforced the separation agreement. Merry appeals.
ANALYSIS
I. STANDARD OF REVIEW
Parties to a marriage may enter into a written separation contract providing for
maintenance, property disposition, a parenting plan and child support, and the release from
obligations. RCW 26. 09. 070( 1). A separation contract is binding on the trial court unless, after
considering the parties' economic circumstances and any other relevant evidence, it finds that the
contract was unfair at the time of its execution. RCW 26. 09. 070( 3).
Before RCW 26. 09. 070, the trial court had discretion to adopt separation agreements. In
re Marriage of Shaffer, 47 Wn. App. 189, 193, 733 P. 2d 1013 ( 1987). It could disregard an
agreement if it determined that the terms were not just and equitable. Shaffer, 47 Wn. App. at
193. But RCW 26.09. 070 gives parties the ability to distribute their property as they see fit.
Accordingly, the trial court can no longer disregard a separation agreement for not conforming to
2 The agreement was enforced by a different judge than the one who entered the restraining order against Douglas. Merry referenced the restraining order' s case number in her motion to void the agreement, but the record from the restraining order proceedings was not before the trial judge who enforced the agreement. 2 43232 -3 -II
the court' s view of an equitable distribution; instead, the court is limited to deciding whether the
agreement was unfair when it was executed. Shaffer, 47 Wn. App. at 194. In determining
whether a separation agreement is unfair, the trial court considers ( 1) whether the parties have
fully disclosed the amount, character, and value of the property involved and ( 2) whether the
agreement was entered into fully and voluntarily on independent advice and with full knowledge
by the spouse of her rights. 3 Shaffer, 47 Wn. App. at 194 ( quoting In re Marriage of Cohn, 18
Wn. App. 502, 506, 569 P. 2d 79 ( 1977)).
We review a motion to enforce a settlement agreement de novo. In re Marriage of
Bernard, 165 Wn.2d 895, 903, 204 P. 3d 907 ( 2009); Lavigne v. Green, 106 Wn. App. 12, 16, 23
P. 3d 515 ( 2001). Where, as here, the moving party relies on documentary evidence in a motion
to enforce a settlement agreement, the trial court proceeds as if it is considering a summary
judgment motion. Condon v. Condon, 177 Wn.2d 150, 161, 298 P. 3d 86 ( 2013); Brinkerhoff v.
Campbell, 99 Wn. App. 692, 696, 994 P. 2d 911 ( 2000). The parties' submissions must be read in
the light most favorable to the nonmoving party. Condon, 177 Wn.2d at 162. If there is an issue
of material fact, the trial court should resolve the issue with an evidentiary hearing. Brinkerhoff,
99 Wn. App. at 697. If the nonmoving party raises an issue of material fact and the court
enforces the agreement without first holding an evidentiary hearing, its decision is manifestly
3 Merry argues in her reply brief that we should apply the test from In re Marriage ofForan, 67 Wn. 242, 249, 834 P. 2d 1081 ( 1992), to determine whether the agreement was fair. This App. test first requires the court to consider the substantive fairness of the agreement and then requires the court to consider procedural fairness, applying the same test as Shaffer and Cohn for procedural fairness. Foran, 67 Wn. App. at 249. But Foran involved a prenuptial agreement rather than a separation agreement. App. at 246. Under RCW 26. 09. 070( 3), the court' s 67 Wn. focus is not on how equitable the separation agreement is but whether it is procedurally fair. Shaffer, 47 Wn. App. at 193 -94. Therefore, the procedural fairness test from Cohn is most applicable here. 3 43232 -3 - II
unreasonable and based on untenable grounds or reasons. Brinkerhoff, 99 Wn. App. at 697; State
ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 ( 1971).
II. PROPERTY VALUE
First, Merry argues that the trial court erred when it failed to determine the value of the
parties' property, specifically, Douglas' s 401( k) benefits, before entering the dissolution decree.
But the trial court does not have to determine the value of the parties' property when the property
is divided by a separation agreement. Instead, the trial court considers whether the parties fully
disclosed the amount, character, and value of the property involved. Shaffer, 47 Wn. App. at
194. Here, there is evidence that Merry reasonably should have known the value of the 401( k).
A separation agreement must adequately identify the parties' assets and put the parties on
notice that the assets exist. Yeats v. Estate of Yeats, 90 Wn.2d 201, 206, 580 P.2d 617 ( 1978).
But the agreement does not have to list the exact amount of each asset. See Cohn, 18 Wn. App.
at 508. In Cohn, the court affirmed the parties' property settlement agreement, holding that there
was sufficient evidence to conclude that the wife reasonably should have known the extent of the
husband' s property. 18 Wn. App. at 508. There, the wife knew the husband had independent
financial means, the parties discussed their finances when drafting an antenuptial agreement,
information on the husband' s accounts was mailed to their shared residence and kept where the
wife had access to it, the property settlement agreement referenced the husband' s separate funds,
and there was no evidence of deliberate concealment by the husband. Cohn, 18 Wn. App. at 508.
Similarly, here, although the separation agreement did not list the amount of Douglas' s
401( k), it sufficiently identified the asset, and Merry had the ability .to determine its value.
Merry drafted the separation agreement and she had access to information regarding Douglas' s 401( k). She submitted notice of his 401( k) to the court, and the notice included Douglas' s
11 43232 -3 - II
mailing address, which was the parties' shared home. Additionally, Merry is a practicing
and she presumably knows how to request information through discovery. If Douglas attorney
was not willingly providing her with information regarding his assets, she could have used the
discovery process to request additional information about his 401( k). Instead, she agreed to
accept $ 5, 000 from his 401( k) in exchange for relinquishing her rights to the rest of his benefits
and pensions.
Merry correctly points out that the court considers the parties' economic circumstances
when reviewing a motion to prevent enforcement of a separation contract. RCW 26. 09. 070( 3).
But this does not mean that the trial court considers economic disparity in the agreement; rather,
under RCW 26. 09. 070( 3) and the Cohn factors, the parties' economic circumstances are relevant
only insofar as they pertain to whether each party was fully informed about the others' property,
received independent advice, and entered the agreement voluntarily. Shaffer, 47 Wn. App. at
195. The separation agreement is not per se unfair merely because it does not list the amount of
Douglas' s 401( k).
III. DURESS AND UNDUE INFLUENCE
Merry next argues that the separation agreement is voidable because she was under
duress and Douglas exerted undue influence. We review the record de novo to determine
whether Merry has raised a triable issue of voluntariness. Lavigne, 106 Wn. App. at 16. We
hold that she did raise an issue of voluntariness and that the trial court erred by not holding an
evidentiary hearing regarding her allegations of duress and undue influence.
A party asserting duress must produce evidence that the other party' s wrongful or
oppressive conduct deprived her of her free will at the time she entered into the agreement.
Retail Clerks Health & Welfare Trust Funds v. Shopland Supermarket, Inc., 96 Wn.2d 939, 944-
E 43232 -3 -II
45, 640 P. 2d 1051 ( 1982). A party asserting undue influence must prove unfair persuasion that
seriously impairs the free and competent exercise of judgment. In re Estate of Jones, 170 Wn.
App. 594, 606, 287 P. 3d 610 ( 2012).
Whether the agreement was a material fact. See Merry voluntarily signed separation
Shaffer, 47 Wn. App. at 194 ( before entering a separation agreement, the trial court must
determine whether the agreement was entered into fully and voluntarily). In her declaration,
Merry alleged that she was the victim of domestic abuse and stated that she " wanted to get out of
the house and out from under Doug' s thumb so bad that [ she] would have signed almost
anything." Clerk' s Papers at 225. Douglas denied Merry' s accusations. If Merry' s accusations
are true, they would arguably show that she did not freely enter into the agreement.
Accordingly, there is a factual dispute over a material issue and the trial court erred when it failed to hold an evidentiary hearing. We remand for the trial court to conduct an evidentiary
hearing and to enter findings of fact and conclusions of law regarding Merry' s claims of duress and undue influence.
III. ATTORNEY FEES
Both parties request attorney fees on appeal. We deny both requests.
Merry requests attorney fees in her opening brief, but she does not cite any authority
supporting her request. RAP 18. 1( a) allows a party to request fees on appeal "[ i] f applicable law
grants to a party the right to recover reasonable attorney fees or expenses." Here, Merry failed to
provide the applicable law in her opening brief. She cites to RCW 26. 09. 140 in her reply brief,
but she also admits that she has not yet incurred any fees on appeal. Additionally, she failed to
file a financial affidavit with this court as RAP 18. 1( c) requires. We deny her request.
2 43232 -3 -I1
Douglas requests attorney fees under RCW 4. 84. 185, arguing that this appeal is frivolous.
An appeal is frivolous. if it presents no debatable issues upon which reasonable minds could
differ and is so lacking in merit that there is no possibility of reversal. In re Marriage of Foley,
84 Wn. App. 839, 847, 930 P. 2d 929 ( 1997). Merry' s appeal presented debatable issues and is
not frivolous. We deny Douglas' s request.
We remand for the trial court to hold an evidentiary hearing and enter findings of fact and
conclusions of law regarding Merry' s claims of duress and undue influence arising from
allegations of domestic abuse.
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
2. 06. 040, it is so ordered.
We concur: