FILED FEBRUARY 3, 2026 In the Office of the Clerk of Court WA 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of the Marriage of ) ) No. 39074-8-III NANCY A. MAYBERRY, ) (Consolidated with ) No. 40250-9-III) Respondent, ) ) and ) UNPUBLISHED OPINION ) STANLEY A. MAYBERRY, ) ) Appellant. )
STAAB, A.C.J. — In the anchor case, Stanley Mayberry appeals the trial court’s
finding of contempt. He argues the court erred because his financial declaration sufficed
as uncontroverted evidence of his inability to pay spousal support as ordered. Nancy
Mayberry responds that the court’s finding of contempt was supported by its
determination that Stanley’s financial declaration lacked credibility.
In the consolidated dissolution case, Stanley appeals the court’s finding that a coin
collection was community property, which in turn increased the total value of community
property divided by the court. Nancy argues that Stanley failed to overcome the
presumption that the coin collection was community property. Alternatively, Nancy
contends that the characterization was immaterial because the ultimate distribution was
fair and equitable. Finally, Stanley argues the court erred when it ordered 12 percent No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
compound interest on unpaid judgments. In response, Nancy urges this court to deny
review because the issue is moot.
We find no abuse of discretion and affirm.
BACKGROUND
Stanley A. Mayberry and Nancy A. Mayberry were married in 1977. In August
2020, after 43 years of marriage, Nancy1 filed for divorce. In his response, Stanley
provided a list of specific items he wanted when the assets were divided, including gold,
items left to him from his father and grandfather, guns, knives, fishing gear, a Ford F-
150, a safe that was made by a childhood friend, and a coin collection. He also filed a
financial declaration “2020 declaration”. In the 2020 declaration, Stanley reported
income from three sources totaling $5,615 per month. He received $1,235 from Social
Security, $3,279 in Veterans Affairs (VA) disability, and $1,101 from a California
pension. Stanley’s reported expenses totaled $4,629 per month, which included $1,215
for healthcare, $740 for transportation, and $680 in personal expenses.
In January 2021, a superior court commissioner entered a temporary family law
order (TFO) ordering Stanley to pay $1,000 spousal support to Nancy per month. The
first payment was a partial payment of $500 retroactively due December 15, 2020. On
February 8, 2021, a superior court judge revised the TFO. The revised TFO increased
1 Because the parties share the same last name, this opinion uses their first names to avoid confusion. No disrespect is intended.
2 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
spousal support to $2,215 per month. Additionally, the first payment of $2,215 was
retroactively due December 1, 2020. The court noted that the amount was decided so as
to “leave both parties the ability to pay their expenses after the Court found [Stanley]’s
expenses suspect.” Clerk’s Papers (CP) at 96-97.
Contempt proceedings
Stanley did not pay spousal support for December 2020, January 2021, or
February 2021, causing Nancy to file a motion for contempt “2021 contempt”. She
requested judgment for $6,645 plus attorney fees. Following a hearing on the matter, the
court found that Stanley was able to follow the TFO and intentionally failed to do so.
The court further found that he was able and willing to follow the TFO moving forward.
Accordingly, the court found Stanley in contempt. The court awarded Nancy a judgment
of $6,645 for past due spousal support and $500 attorney fees and costs.
From March 2021 through November 2021, Stanley paid spousal support each
month in amounts ranging from $2,215 to $6,645. Notwithstanding these payments,
Stanley never satisfied the past due amount in whole. By November 2021, Stanley owed
$1,775 in past due spousal support and had yet to pay the $500 attorney fee award.
Stanley did not make any payments in December 2021, January 2022, or February 2022.
Nancy filed a second motion for contempt “2022 contempt”, requesting judgment for
$8,420 in past due spousal support and an additional $1,500 attorney fees and costs.
3 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
Stanley submitted a second financial declaration “2022 declaration”. In this
declaration, Stanley reported a total monthly income of $6,463 and $6,619 in monthly
expenses. This time, his expenses included $2,175 for healthcare, $1,419 for
transportation, and $950 for personal expenses.
At the 2022 contempt hearing, Stanley asserted his inability to pay as an
affirmative defense. He relied on his 2022 declaration and explained that he required
multiple caregivers throughout each month to cook, clean, and provide transportation.
Moreover, he claimed he was only able to pay spousal support in the past year by
exhausting a recent windfall of backpay from the VA.
Nancy challenged Stanley’s declaration of expenses. She argued that some of
Stanley’s claimed expenses tripled or quadrupled since his previous financial declaration.
She understood that Stanley’s medical care was “100 [percent] covered by the VA,” yet
he reported monthly healthcare expenses of $1,215 in his first declaration and $2,175 in
the second. RP (Mar. 4, 2022) at 17; see CP at 49-50, 162. Nancy also disputed
Stanley’s claimed transportation costs.
In addition to arguing his inability to pay, Stanley also asserted the TFO was void
because only $1,123 of his monthly income was within the reach of the court. He argued
that income from VA disability and Social Security were exempt. In response, the
commissioner requested additional briefing on whether veterans disability payments
could be used to calculate and pay spousal support. Based on that briefing, and satisfied
4 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
that the payments could be considered, the commissioner found the TFO was legally
valid. Even so, the commissioner denied the contempt motion, finding there was no
evidence of bad faith and that Stanley proved his inability to pay. In response, Nancy
filed a motion to revise the commissioner’s ruling.
At the revision hearing, the superior court judge echoed Nancy’s concerns regarding
the credibility of Stanley’s financial declarations. The court noted the sudden inflation of
expenses and lack of supporting documentation, opining that the 2022 declaration was
“more suspect” than the 2020 declaration. Stanley’s counsel explained that he made every
effort to obtain additional evidence of the expenses but was only provided the 2022
declaration. After reviewing the evidence considered by the commissioner, the court
determined that Stanley had the ability to pay and intentionally failed to do so.
Accordingly, the court granted Nancy’s motion to revise and found Stanley in contempt.
The court awarded $8,420 past due spousal support and $7,248 in lawyer fees and costs. It
also ordered Stanley to pay the $500 attorney fee from the 2021 contempt.
Dissolution proceedings
Trial for dissolution began on November 1, 2023. In advance of trial, Nancy
submitted a joint trial management report in which she specified that the coin collection
was community property and recommended it be divided among the parties equally. The
collection was valued at $2,853.25 based on a recent appraisal Nancy obtained. Stanley
5 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
did not respond to the report, nor did he contribute recommendations for the valuation,
characterization, or division of assets and liabilities.
At trial, Nancy testified that Stanley received the coin collection from his father.
She also testified that she understood the collection also belonged to her, referring to
herself and Stanley as “co-trustees.” RP (Nov. 1-2, 2023) at 248. Stanley did not testify
at trial and offered no other evidence on the issue.
Following trial, the court divided assets based on its findings. The court
considered the length of the marriage, the nature and extent of the separate and
community property, and the economic circumstances of each party. It noted that Nancy
spent several decades as Stanley’s caregiver, which reduced her earnings and retirement
savings. Regarding the coin collection, the court found that it was a gift to both parties.
Based on its findings, the court awarded Nancy “a larger share of the community
property” and “a portion of Stanley Mayberry’s separate property.” CP at 1500. Finally,
the court ruled that “[a]ny previous orders for specific financial relief that have not been
paid should be reduced to a judgment at 12 [percent] compounded annual interest.” CP at
1499. Under the final divorce order, the court confirmed that “all such payments were
satisfied out of community funds prior to the trial and are no longer owed.” CP at 1506.
Stanley appeals.
6 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
ANALYSIS
1. CONTEMPT
Stanley argues that the superior court abused its discretion by finding him in
contempt for failing to pay spousal support because he offered undisputed evidence of his
inability to pay. He further argues that the corresponding $500 attorney fee should be
reversed because the contempt cannot stand, or alternatively, because the fee was
duplicative. Nancy responds that the court made a proper credibility judgment as to
Stanley’s evidence, which supports the contempt finding. She contends that the $500
attorney fee was neither assessed nor paid twice as Stanley asserts. We agree with Nancy
on both points.
A superior court judge reviews a commissioner’s ruling de novo based on the
evidence and the issues presented to the commissioner. RCW 26.12.215; RCW 2.24.050;
In re Marriage of Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). On appeal, we
review the superior court’s decision, not the commissioner’s. In re Estate of Wright, 147
Wn. App. 674, 680, 196 P.3d 1075 (2008). The superior court’s finding of contempt will
not be disturbed on appeal absent an abuse of discretion. In re Marriage of Eklund, 143
Wn. App. 207, 212, 177 P.3d 189 (2008). “A trial court abuses its discretion by
exercising it on untenable grounds or for untenable reasons.” Id. Credibility
determinations are not reviewed on appeal. Id.
7 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
“Contempt of court” is an “intentional disobedience of a lawful court order.” In re
Humphreys, 79 Wn. App. 596, 599, 903 P.2d 1012 (1995). In a dissolution proceeding,
the court may enforce its orders in a contempt proceeding. Stablein v. Stablein, 59
Wn.2d 465, 466, 368 P.2d 174 (1962). A party is presumed to be capable of performing
according to a court order. Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995).
The inability to comply with a court order is a defense if the party is unable to comply
through no fault of their own. Britannia Holdings Ltd. v. Greer, 127 Wn. App. 926, 933-
34, 113 P.3d 1041 (2005). The non-compliant party bears “the burden of production and
the burden of persuasion regarding [their] claimed inability to comply with the court’s
order. Moreman, 126 Wn.2d at 40. “‘[T]he evidence must be of a kind the court finds
credible.’” Id. at 41 (quoting In re Pers. Restraint of King, 110 Wn.2d 793, 804, 756
P.2d 1303 (1988)).
Here, the trial court properly limited its review to that which was considered by
the commissioner. The evidence included Stanley’s financial declarations from 2020 and
2022. On the 2020 declaration, Stanley reported monthly income of $5,615 and monthly
expenses of $4,629. On the 2022 declaration, Stanley reported monthly income of
$6,463 and monthly expenses of $6,619.
Nancy contested Stanley’s declaration of expenses. For example, his reported
health care expenses increased from $1,215 in 2020 to $2,175 in 2022. Stanley explained
that he required multiple caregivers throughout each month to cook, clean, provide
8 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
transportation, and perform other caretaking duties. Nancy disputed these costs,
understanding that Stanley’s medical care was “100 [percent] covered by the VA.” RP
(Mar. 4, 2022) at 17.
Nancy also disputed Stanley’s claimed transportation costs, which reportedly
increased from $740 per month in 2020 to $1,419 per month in 2022. Nancy’s counsel
referred to Stanley’s gas expenditures as “somewhat humorous,” arguing, “So, we’ve got
the insurance of $200.00, car payment of $319.00, $400.00 of gas, $500.00 to Uber.
Remember, Your Honor, [Stanley] said in his response his car was stolen in June of 2021.
So, how does he have gas expenses?” RP (Mar. 4, 2022) at 18.
On revision, the court echoed Nancy’s concerns regarding the credibility of
Stanley’s financial declarations. The court noted that “a mere declaration which had
previously been found to be suspect . . . all of a sudden inflates by more than $2,000
without any supporting documentation is very concerning.” RP (Apr. 21, 2022) at 23.
And “there were no bank statements that show . . . this is what’s coming in and this is
what’s going out. Really, all we have is a declaration that, frankly, is more suspect than
the one that was filed . . . in December of 2020.” RP (Apr. 21, 2022) at 23-24.
In sum, the court found that Stanley failed to provide credible evidence proving
his inability to pay. We will not disturb the trial court’s credibility determinations on
appeal. See Eklund, 143 Wn. App. at 212. As such, the court did not abuse its discretion
by holding Stanley in contempt.
9 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
Stanley argues that his financial declaration was undisputed evidence and all he
needed to prove his inability to pay. This argument fails for multiple reasons. First, the
evidence was highly disputed, as discussed above. Second, Stanley carried the burden of
production and persuasion, and the court found that his declaration alone was not credible
enough to meet this burden. Finally, Stanley was aware that the court would likely
expect supporting documentation.
Stanley cites Smith v. Pacific Pools, Inc., 12 Wn. App. 578, 582, 530 P.2d 658,
661 (1975) in support of his assertion that the trial court cannot ignore uncontradicted
evidence. But Smith held that if “the court rejects uncontroverted credible evidence, or
capriciously disbelieves uncontradicted evidence, then the finding is not binding upon the
appellate court.” Id. Here, the court found Stanley’s evidence was not credible and we
conclude its decision to disbelieve his declaration was not capricious.
Next, Stanley asserts that because the finding of contempt was error, the
corresponding attorney fees should be reversed. Nancy argues that she is entitled to fees
regardless of whether Stanley was held in contempt or not because the contempt
proceeding was an action to enforce spousal support. Because the finding of contempt
was not error, we need not reach this issue.
Finally, Stanley asserts that the same $500 attorney fee was levied against him
twice. This contention is simply not true. In addition to the $7,248 fee award, the
revising court included $500 from the “previous contempt motion.” See CP 293. An
10 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
uncontested accounting of the various judgments and payments confirms that the $500
attorney fee awarded from the first contempt hearing order was only charged once.
Stanley apparently misunderstands what the court was referring to as the “previous
contempt” motion for which the fee was awarded. Stanley believes the court awarded
$7,248 for the motion to revise and $500 for the contempt motion that was the subject of
the revision. He claims this was duplicative because $7,248 included the fees for both
the contempt motion and its revision. Stanley is correct that the $7,248 award satisfied
the fees for both the motion and revision. However, when the court included $500 for the
“previous contempt” motion, it was not referring to the 2022 contempt motion on
revision; it was referring to the unpaid fee award from the 2021 contempt motion filed
and decided one year prior. As such, the fee award was not erroneously duplicative.
The trial court did not abuse its discretion by finding that Stanley had the ability to
pay the ordered spousal support and holding him in contempt for failing to do so.
2. CHARACTERIZATION OF COIN COLLECTION
Stanley argues that the court mischaracterized the coin collection as community
property because it was inherited by Stanley from his father. He contends the
mischaracterization inflated the total value of community property, thus affecting the
ultimate distribution. Nancy maintains that the coin collection was gifted to her and
Stanley jointly; regardless, even if the collection was mischaracterized, it was of little
value and characterizing it differently would not have changed the asset division.
11 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
Property is presumed to be community property if acquired during marriage. See
In re Marriage of Zahm, 91 Wn. App. 78, 86, 955 P.2d 412 (1998). But an asset acquired
during marriage by gift or inheritance is separate property. In re Marriage of Chumbley,
150 Wn.2d 1, 5, 74 P.3d 129 (2003). A party wishing to establish that an asset acquired
during marriage is separate property must present clear and convincing evidence to rebut
the presumption. Id. at 5-6; Zahm, 91 Wn. App. at 86. “We review the factual findings
supporting the trial court’s characterization for substantial evidence.” In re Marriage of
Schwarz, 192 Wn. App. 180, 192, 368 P.3d 173 (2016). “‘Substantial evidence’ is
evidence sufficient to persuade a fair-minded person of the truth of the matter asserted.”
In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014).
Whether property is characterized as separate or community is not controlling. In
re Marriage of Kraft, 119 Wn.2d 438, 449, 832 P.2d 871 (1992). Instead, the question is
“‘whether the final division of the property is fair, just and equitable under all the
circumstances.’” Id. (quoting Baker v. Baker, 80 Wn.2d 736, 745-46, 498 P.2d 315
(1972)). Remand is appropriate if “‘(1) the trial court’s reasoning indicates that its
division was significantly influenced by its characterization of the property, and (2) it is
not clear that had the court properly characterized the property, it would have divided it
in the same way.’” Kraft, 119 Wn.2d at 449 (quoting In re Marriage of Shannon, 55
Wn. App. 137, 142, 777 P.2d 8 (1989)).
12 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
Here, in accordance with these rules, because the coin collection was acquired
during marriage, it is presumed to be community property. Thus, Stanley was required to
present clear and convincing evidence to rebut this presumption. See Chumbley, 150
Wn.2d at 5-6. He failed to do so.
First, in his response to petition about a marriage, Stanley made the following
request:
I want my gold, I want all my things left to me from my father & grandfather, my guns, my knifes [sic], my fishing gear, my 2005 Ford F-150 (400,000 [illegible]), my safe was made special for my father & myself (childhood friend made it), coin collection, etc. (see attached)[2] memories I want all my things that belong to me.
CP at 1161 (most capitalization omitted). This request demonstrates Stanley’s desire to
be awarded the coin collection but it does not indicate that the collection was his alone by
way of gift or inheritance. In fact, it is listed separately from “things left to me from my
father & grandfather” and, unlike the safe, does not include additional language clarifying
the collection’s origin or personal meaning.
Next, on the joint trial management report, Nancy indicated that the coin
collection was community property and recommended it be divided equally. Stanley did
not respond to the report, nor did he contribute recommendations for the valuation,
2 The attachment, if any, was not included in the clerk’s papers.
13 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
Finally, at trial, Nancy testified that although Stanley received the coin collection
from his father, she understood the collection also belonged to her, referring to herself and
Stanley as “co-trustees.” RP (Nov. 1-2, 2023) at 248. Nancy was in physical possession
of the collection and had it professionally appraised, intending that the value be divided
equally. Stanley did not testify at trial and offered no other evidence on the issue.
In sum, there is sufficient evidence to persuade a fair-minded person that the coin
collection was a gift to both parties. Moreover, Stanley failed to present clear and
convincing evidence that the coins were his separate property.
Regardless, even if the trial court mischaracterized the coin collection, Stanley’s
argument fails because the trial court’s reasoning does not indicate that the final division
of property was significantly influenced by such characterization. See Kraft, 119 Wn.2d
at 449. The court awarded Nancy “a larger share of the community property” and “a
portion of Stanley Mayberry’s separate property.” CP at 1500. It did so “[g]iven the
length of the marriage, the nature and extent of the separate and community property and
the economic circumstances of each party.” CP at 1500.
The coin collection, which was appraised at $2,853.25, represented less than two
percent of the total value of community personal property. Because the coin collection’s
value was relatively low and Nancy was awarded a larger portion of community property
and a portion of Stanley’s separate property, it cannot be said that the characterization of
the coin collection significantly influenced the final division of assets.
14 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
The trial court did not err by characterizing the coin collection as community
property; any mischaracterization did not significantly influence the overall property
division.
3. POST-JUDGMENT INTEREST
Stanley argues that the trial court erred when it ordered 12 percent compound
interest on unpaid judgments because compound interest was not authorized by statute or
contract. Nancy responds that the issue was not preserved for appeal and is moot because
there were no unpaid judgments subject to the interest. Although Stanley’s
understanding of the law is correct, we decline to review the issue because it is moot.
A court may only impose simple interest on a judgment unless compound interest
is authorized by statute or agreement. See Caruso v. Local Union No. 690, 50 Wn. App.
688, 689-90, 749 P.2d 1304 (1988); see RCW 4.56.110. Here, the court imposed 12
percent compound interest on any unpaid judgments from prior contempt proceedings. In
doing so, the trial court did not apply or reference a statute or agreement authorizing
compound interest.
“ʻA case is moot if a court can no longer provide effective relief.’” Herrera v.
Villaneda, 3 Wn. App. 2d 483, 492, 416 P.3d 733 (2018) (quoting Blackmon v. Blackmon,
155 Wn. App. 715, 719, 230 P.3d 233 (2010)).
Here, there was never an unpaid judgment subject to compound interest. The court
found: “Previous orders for contempt and attorney fees—Any previous orders for specific
15 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
financial relief that have not been paid should be reduced to a judgment at 12 [percent]
compounded annual interest.” CP at 1499. However, the divorce decree clarified that
“for those amounts owed prior to trial, it is confirmed that all such payments were
satisfied out of community funds prior to the trial and are no longer owed.” CP at 1506.3
Because compound interest only applied to previous unpaid judgments and there
were no unpaid judgments, effective relief is not available, and the issue is moot.
4. ATTORNEY FEES
Both parties request attorney fees for this appeal. We discuss each request in turn.
A. Stanley’s request
Stanley requests attorney fees under RCW 26.09.140, which provides the court
with discretion to award fees and costs to either party in a dissolution proceeding “after
considering the financial resources of both parties.” The court also contemplates “ʻthe
arguable merit of the issues on appeal.’” In re Marriage of Johnson, 107 Wn. App. 500,
505, 27 P.3d 654 (2001) (quoting In re Marriage of Griffin, 114 Wn.2d 772, 779, 791
P.2d 519 (1990)). To consider the parties’ financial resources under this statute, “they
must file financial declarations no later than ten days before oral argument.” Id.; RAP
18.1(c).
3 For the same reasons, the error is harmless. See Lavington v. Hillier, 22 Wn. App. 2d 134, 148, 510 P.3d 373 (2022) (stating “an error is harmless when it does not materially affect the outcome of the trial”). Neither party discusses harmless error in their briefing.
16 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
Here, the finding of contempt was not error, and the issues Stanley appeals are
limited in merit. Additionally, Stanley did not file the necessary financial affidavit as
required by RAP 18.1(c). “An appellate court will not consider an award of attorney fees
on appeal under RAP 18.1 and RCW 26.09.140 when a party seeking fees fails to comply
with RAP 18.1(c).” In re Marriage of Crosetto, 82 Wn. App. 545, 565-66, 918 P.2d 954
(1996). We decline Stanley’s request for attorney fees.
B. Nancy’s request
Nancy requests fees under RCW 26.18.160 for the issues pertaining to the spousal
maintenance enforcement action, and additional fees as sanctions for filing a frivolous
appeal. RCW 26.18.160 provides that “[i]n any action to enforce a support or
maintenance order under this chapter, the prevailing party is entitled to a recovery of
costs, including an award for reasonable attorney fees.” Nancy asserts that the “spousal
support contempt actions were brought under RCW [sic] chapter 26.18” thus entitling her
to fees. Br. of Resp’t at 29. This argument fails for two reasons.
First, it appears that the contempt actions were brought under ch. 7.21 RCW
concerning contempt of court, not ch. 26.18 RCW. See RCW 7.21.010. Second, ch.
26.18 RCW governs enforcement of child support. Nancy does not cite any case law
supporting her argument that the statute also applies to enforcement of spousal support
orders. Instead, each of the cases Nancy points to in support of her position pertain to
17 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
enforcement of child support orders. See Br. of Resp’t at 29-31.4 As such, Nancy fails to
provide authority entitling her to fees on appeal under this statute.
Nancy also asks this court to award her attorney fees as a sanction against Stanley
for filing a frivolous appeal. An appellate court may award attorney fees as sanctions
when the opposing party files a frivolous appeal. RAP 18.9(a); Advocs. for Responsible
Dev. v. W. Wash. Growth Mgmt. Hr’gs Bd., 170 Wn.2d 577, 580, 245 P.3d 764 (2010).
An appeal is frivolous if it “presents no debatable issues upon which reasonable minds
might differ” and “is so devoid of merit that there is no possibility of reversal.” Id. at
580. Close calls as to whether the appeal is frivolous are resolved in favor of the
appellant. Id. If an appellant raises at least one debatable issue, the appeal is not
frivolous, and attorney fees should not be awarded as sanctions. Id. at 580-81.
As a threshold matter, Nancy’s request for frivolous attorney fees fails because she
does not allege and argue that each of Stanley’s issues are devoid of merit. Instead, she
limits her argument to the issue regarding the characterization of the coin collection and
the issue regarding compound interest.
Nancy argues that Stanley’s challenge regarding the coin collection is frivolous
because characterization of property is not a conclusion of law like he suggests; rather, it
is a discretionary finding of fact and there is insufficient evidence to find the coins were a
4 Citing In re Marriage of Nelson, 62 Wn. App. 515, 519-20, 814 P.2d 1208 (1991); In re Marriage of Hunter, 52 Wn. App. 265, 273-74, 758 P.2d 1019 (1988).
18 No. 39074-8-III (consol. with No. 40250-9-III) In re Marriage of Mayberry
legal “inheritance.” However, this argument presents an oversimplification of the
analysis. Instead, “characterization of property is a mixed question of law and fact.” In
re Marriage of Watanabe, 199 Wn.2d 342, 348, 506 P.3d 630 (2022). On cross-
examination, counsel asked Nancy, “Were those coins part of Stanley’s inheritance from
his father?” RP (Nov. 1-2, 2023) at 248. She answered, “He did receive those from his
father, yes. I—him [sic] and I are co-trustees on that.” RP (Nov. 1-2, 2023) at 248. This
testimony, and the other scant evidence discussed above, suggests a debatable issue upon
which reasonable minds can differ. See Advocs. for Responsible Dev., 170 Wn.2d at 580.
The appeal is not frivolous.
We affirm the superior court and deny both parties attorney fees on appeal.
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.
_________________________________ Staab, A.C.J. WE CONCUR:
_________________________________ _________________________________ Fearing, J.P.T.† Cooney, J.
† George B. Fearing, a retired judge of the Washington State Court of Appeals, is serving as a judge pro tempore of this court pursuant to RCW 2.06.150(1).