FILED JANUARY 27, 2022 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In the Matter of the Marriage of ) No. 37753-9-III ) RACHEL M. MIDDLETON, ) ) Respondent, ) ) UNPUBLISHED OPINION and ) ) ROBERT W. MIDDLETON, ) ) Appellant. )
LAWRENCE-BERREY, J. — Robert W. Middleton appeals the trial court’s property
and attorney fee award in this marital invalidity action. We affirm and deny both parties’
requests for attorney fees on appeal.
FACTS
In 2013, Rachel M. Middleton believed she got married to Robert W. Middleton.
In 2018, she learned that Robert1 was still married to his previous spouse. On March 29,
2019, after a domestic violence incident, Rachel filed this petition for invalidity.
1 We refer to parties by their first names to avoid overuse of “Mr.” and “Mrs.” No. 37753-9-III Marriage of Middleton
Protection orders
On April 8, 2019, Rachel moved for a temporary protection order against Robert in
which she also asked the court to divide their debts and property. A hearing was
scheduled for May 3. On May 1, Robert filed a lengthy declaration objecting to the
division of property “as part of temporary orders.” Clerk’s Papers (CP) at 27. He argued
these issues would be better addressed at trial.
The next month, Rachel filed a “Petition for Order for Protection,” alleging Robert
had violated the temporary order on several occasions. CP at 36-42. Robert filed a
lengthy response with numerous exhibits disputing her allegations.
On July 17, after a contested hearing, the court granted Rachel’s protection order.
The court also awarded her attorney fees to be determined based on her counsel’s fee
statement. This statement was not filed until after the trial in this matter.
Invalidation proceedings
Robert did not respond to Rachel’s March 2019 petition for invalidity. On
October 11, 2019, Rachel filed a “Motion for Default.” CP at 234-35. On October 30,
2019, after a hearing on the default motion, Robert responded pro se. He filed another
pro se response on June 19, 2020. Neither response was offered or admitted at trial.
2 No. 37753-9-III Marriage of Middleton
The parties proceeded to trial on June 22, 2020. Robert moved to change venue,
arguing Judge Gary Libey had not been fair to him and he wanted “a judge who is not
impartial and not shown bias against [him].” Report of Proceedings (RP) at 119. Judge
Libey said he did not recall meeting Robert before that morning in the hallway. An
argument ensued, ultimately ending in the court denying any motion to change venue or
continue the trial.
Rachel and Robert each testified. Rachel offered 15 exhibits,2 including mortgage
statements, car payments, and credit card bills. Robert represented himself and did not
call witnesses or offer exhibits. Throughout trial, Robert continually interrupted Rachel
and her attorney and ignored the court’s orders to be quiet. The parties discussed the
following relevant assets and liabilities:
Malden property
Rachel testified that the parties’ community home in Malden was purchased in
January 2016 for $75,000.00 with a down payment of between $9,000.00 and $10,000.00.
When the parties separated, they still owed $64,439.62 on the mortgage. Rachel argued
the home was a community asset with a gross value of $75,000.00 and a net value of
$10,561.00, and it should be awarded to her.
2 These exhibits are not part of the appellate record.
3 No. 37753-9-III Marriage of Middleton
Robert testified that he paid a $15,000 down payment on the Malden property
using his separate funds. The funds came from time loss payments resulting from a
workplace accident that happened before the marriage. He did not have any paperwork
showing deposits of those payments because he did not have a bank account at the time.
He explained: “I used a $15,000 [cashier’s] check to the payment that came back and
asked me to sign a paperwork that I was going to give it as a gift and I did it in protest
because I knew we needed a house and I wish I wouldn’t have.” RP at 216.
Robert pointed out that the parties were unable to get an appraisal on the
community home because they could not participate in mediation given Rachel’s
protection order against him. He testified that the Malden property was worth between
$120,000 and $150,000 according to an online appraisal.
Retirement funds
Rachel requested that the entirety of her retirement fund, which she started in
2003, be awarded to her. The court asked to confirm its value because “it is a potential
community asset” but “she’s got it listed as zero.” RP at 201. Rachel stated the value
was less than $5,000 because she withdrew $17,000 in 2017 to pay for her mother’s
funeral and $6,000 to pay for two of the parties’ vehicles. Robert stated (during his cross-
4 No. 37753-9-III Marriage of Middleton
examination of Rachel) that he wanted one-half of Rachel’s retirement funds from the
time they were married.
Rachel testified that she was unaware of any retirement funds in Robert’s name.
On cross-examination, Robert confirmed: “Now, you don’t know nothing about my
retirement or anything, correct?” RP at 189. Rachel said she did not. Rachel’s attorney
sent out discovery requests to Robert regarding his retirement funds, if any, but received
no response.
Other assets and liabilities
Rachel provided a spreadsheet of assets and debts for distribution.3 Robert did not
provide his own proposed assets and debts worksheet, but he disagreed with Rachel’s
distributions and valuations.
Rachel requested three vehicles and testified to their value: (1) a 2014 Ford Fusion
with a net negative value of $4,799, (2) a 2017 Ford Flex with a net negative value of
$6,499, and (3) a Willys Jeep worth $4,500. Rachel requested the court award her the
parties’ car hauler/trailer worth $4,000, an antique Ford tractor, and a utility trailer worth
$1,500.
3 Unfortunately, Rachel’s assets and debts spreadsheet is not in the record, although it is frequently referenced during testimony and was ultimately adopted by the trial court.
5 No. 37753-9-III Marriage of Middleton
Rachel requested the court award two vehicles to Robert. First, the parties
previously owned a 2002 Subaru Outback, which was worth $3,000. Robert had
possession of that vehicle and Rachel believed he sold it. Robert testified that he had
traded the Subaru to pay his $500 rent and that he still owed more money. Second, the
parties purchased a 1996 34-foot Dolphin motorhome during the marriage that was worth
$15,000. Robert had possession of the motorhome and did not object to its value or
distribution.
Rachel requested household appliances worth about $3,000 and electronics worth
$500 be awarded to her. Robert appeared to dispute her valuation, arguing that the stove,
washer, and dryer were worth “no less than $1,000” and the refrigerator, “[l]ooking
online,” was worth $2,000—all of which he paid for with his debit card.4 RP at 210.
Rachel requested an antique Murphy bed worth $200 and a Sleep Number bed worth
$4,200. Robert disputed the Sleep Number bed valuation, arguing it was worth $5,000
and was also purchased with his debit card.
4 The values Robert assigns to the appliances add up to $3,000. He may be referencing other goods not discussed at trial such as furniture, the receipts of which he attached to his response to Rachel’s invalidation petition.
6 No. 37753-9-III Marriage of Middleton
Finally, Rachel asked that she be awarded two of their dogs who were not breeding
females and who had no monetary value. Robert would be awarded the other two dogs
who could still be bred.
Rachel testified to the parties’ debts: they had a PayPal credit card with an
unknown balance, a J.C. Penney’s credit card with a $480.68 balance, a Merrick Bank
credit card with a $2,200.00 balance, a Chase Bank credit card with a $492.86 balance,
and a First Interstate Bank credit card with a $300.00 limit and an unknown balance.
Rachel agreed to take on the credit card debts, regardless of whether they were
community or separate. She also agreed to take on the Dish Network bill and the parties’
Les Schwab bill for services to their vehicles during the marriage.
Rachel requested that Robert be awarded his own medical bills, noting that some
were in her name because he was on her insurance, as well as an outstanding Frontier
Internet bill that was in Robert’s name.
Financial standing
At the time of trial, Rachel earned around $53,000 yearly working as an insurance
agent.
Robert testified that he had been receiving time loss payments from June 2010 to
November 2019 due to a workplace injury. He received a $34,372.44 payment in
7 No. 37753-9-III Marriage of Middleton
November 2015 for the period between April 2014-2015. At the time of trial, Robert had
no monthly income and was living with a friend. He did not provide financial records or
a financial declaration to the court.
The parties had a joint savings account, but did not have a joint checking account.
Rachel frequently gave Robert cash for items they purchased.
Trial court’s ruling
After hearing both parties’ testimony, the court found that Robert was married to
another person when he married Rachel and he “admitted under oath that he thinks he’s
still married to [the other person].” RP at 221. The court treated the matter as a petition
to invalidate the marriage, which requires consideration of the same factors as dissolution.
Regarding the parties’ credibility, the court found:
The Court has considered the testimony of [Rachel] and finds that her testimony is credible, well-documented, and researched and to the point. On the other hand, [Robert’s] testimony is erratic, unreliable, not credible, and has been totally a challenge for the Court to consider because of it’s [sic] lack of direction and lack of focus.
RP at 221.
The court continued:
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[Rachel]’s spreadsheet[5] is reasonable and fair and is adopted by the Court as the distribution to the parties. The . . . Court will not award the equalizing payment of $1,994. However, the—all the other documentation, all the other assets as listed will be distributed per the Exhibit.
Rachel requested attorney fees, which had been reserved in the original protection
order, in the amount of $8,000. During trial, she testified that the amount of attorney fees
is directly attributable to Robert’s behavior because he “[says] things that make no sense
and he refuses to communicate in a civil manner.” RP at 137. Robert protested the fee
award, arguing that he has no income and is on disability, and said, “You are a bunch of
hypocrites.” RP at 224. The court asked for Rachel’s attorney to itemize the fees before
ruling: “[Robert]’s conduct has made the matter more litigious than necessary and the
Court will award fees.” RP at 224. Robert commented, “this is kangaroo court Whitman
County” and stated that he is friends with Donald Trump, Jr. before being directed to
leave the courtroom. RP at 224. The court ultimately awarded Rachel $6,961 in attorney
fees and costs.
Robert did not attend the presentment hearing. On August 19, 2020, the trial court
entered an invalid marriage order and findings and conclusions about a marriage. The
court adopted Rachel’s proposed assets and liabilities division. Rachel was awarded the
5 This spreadsheet is not part of the record on appeal. 9 No. 37753-9-III Marriage of Middleton
Malden property, the Ford Fusion, the Ford Flex, the Willys Jeep, the Ford tractor, the
utility trailer, the Sleep Number and Murphy beds, all household appliances and
electronics, and two of the parties’ four dogs. Rachel was also awarded her retirement
account. She was assigned all debts associated with the property awarded, as well as all
debts in her name including medical bills, five credit card bills, a Dish Network bill, and a
Les Schwab bill.
Robert was awarded the motorhome, the Subaru Outback, two antique China
cabinets, a 1965 boat and trailer, and two of the parties’ four dogs. He was assigned all
debts in his name including medical bills, the trash bill, and the Frontier Internet bill.
Robert timely appealed.
ANALYSIS
Robert contends the trial court erred in awarding Rachel the Malden property
without awarding him an equitable lien to reflect a down payment he claims to have made
with separate funds. We disagree.
10 No. 37753-9-III Marriage of Middleton
At a marriage invalidation trial, the court makes a just and equitable distribution of
the parties’ assets and liabilities based on factors enumerated in RCW 26.09.080.6 In re
Marriage of Larson, 178 Wn. App. 133, 137, 313 P.3d 1228 (2013). We review the
distribution and valuation of property for abuse of discretion. In re Marriage of Brewer,
137 Wn.2d 756, 769, 976 P.2d 102 (1999). A court abuses its discretion if its decision is
manifestly unreasonable or based on untenable grounds. In re Marriage of Chandola,
180 Wn.2d 632, 642, 327 P.3d 644 (2014).
Separate property is that which was owned prior to marriage or acquired
afterward by gift, bequest, devise, descent, or inheritance. RCW 26.16.010. Community
property is all nonseparate property acquired during the marriage by either spouse.
RCW 26.16.030. We presume all property acquired during marriage is community
property, but a party may rebut this presumption with clear and convincing evidence that
the property was acquired with separate funds. In re Marriage of Chumbley, 150 Wn.2d
1, 5-6, 74 P.3d 129 (2003); In re Marriage of Skarbek, 100 Wn. App. 444, 449, 997 P.2d
447 (2000).
6 The rules governing property distribution in invalidation petitions are the same as those for dissolution proceedings. RCW 26.09.040(3).
11 No. 37753-9-III Marriage of Middleton
Robert argues that under the “mortgage rule,” he maintains an interest in the
Malden property because he contributed separate property toward its purchase. The
mortgage rule provides that when one party makes a cash payment toward real property at
acquisition, that party retains a fractional share of the ownership proportionate to that
payment no matter how the remaining obligation on the property is paid. Chumbley, 150
Wn.2d at 7-8 (quoting Harry M. Cross, The Community Property Law in Washington
(Revised 1985), 61 WASH. L. REV. 13, 40 (1986)).
The trial court did not make any finding on whether Robert made a cash payment
from his separate funds when the parties acquired the Malden property. Instead, the trial
court found Rachel credible and Robert not credible.
Rachel testified that the parties paid a down payment of approximately $9,000
toward the Malden property. Robert offered no evidence aside from his own testimony
that he used $15,000 of separate funds for the down payment. Based on the trial court’s
credibility determination, we presume the down payment was paid by the parties, not
separately by Robert. For this reason, the mortgage rule does not apply.
RACHEL’S RETIREMENT ACCOUNT
Robert contends the trial court erred in awarding Rachel her entire retirement
account when community contributions were made during the marriage. We disagree.
12 No. 37753-9-III Marriage of Middleton
As discussed above, trial courts have considerable discretion in distributing and
categorizing property during marriage invalidation proceedings, and we do not reverse
those decisions absent an abuse of discretion. Brewer, 137 Wn.2d at 769; In re Marriage
of Doneen, 197 Wn. App. 941, 949, 391 P.3d 594 (2017).
Although the record contains minimal information regarding Rachel’s retirement
account, we conclude that the trial court did not abuse its discretion in awarding it to her.
Rachel testified that it had around $5,000 in it when the parties married and around
$5,000 at the time of their dissolution because multiple family emergencies caused her to
withdraw funds. Those withdrawals were community expenses because they occurred
during marriage, and Robert brought no evidence to the contrary. Thus, although it did
not explicitly rule on the issue, we can discern from the record that the trial court found
Rachel’s retirement account had no community value and only separate value. Robert
was therefore not entitled to a portion of Rachel’s retirement fund.
JUST AND EQUITABLE DISTRIBUTION
Robert contends the trial court erred by failing to make a just, fair, and equitable
property division. We disagree.
A trial court’s distribution of property need not be equal, but it must be fair, just,
and equitable. In re Marriage of Hadley, 88 Wn.2d 649, 656, 565 P.2d 790 (1977).
13 No. 37753-9-III Marriage of Middleton
“Fairness is attained by considering all circumstances of the marriage and by exercising
discretion, not by utilizing inflexible rules.” In re Marriage of Tower, 55 Wn. App. 697,
700, 780 P.2d 863 (1989). The trial court has considerable discretion in determining what
is just and equitable. Doneen, 197 Wn. App. at 949. Because the trial court is in the best
position to determine what is fair in each case, we reverse only if there has been a
manifest abuse of discretion. Id.; Brewer, 137 Wn.2d at 769; In re Marriage of
Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). Again, a trial court abuses its
discretion when its decision is made on untenable grounds or for untenable reasons. State
ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Robert’s argument seems to rest on the fact that the trial court failed to enter
findings on the values of the property before it. While we agree that the court should
have entered findings on the values of the assets and liabilities, we know that the court
adopted Rachel’s proposed spreadsheet.
A party presenting an issue for review has the burden of providing an adequate
record to establish such error. State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942
(2012). In this appeal, Robert has not provided Rachel’s proposed distribution and
spreadsheet. Regardless, an appellate court may affirm so long as the incomplete record
14 No. 37753-9-III Marriage of Middleton
sufficiently supports the decision. Id. As discussed below, the record is adequate for us
to affirm.
In its oral decision, the court stated it declined to award an equalizing payment of
$1,994. From this, we infer that the property award was roughly equal. Because the
evidence shows the property award was roughly equal, we reject Robert’s argument that
the property award was not just, fair, and equitable. We discern no abuse of discretion.
ATTORNEY FEES
Robert contends the trial court erred in awarding attorney fees to Rachel. He
argues she has not demonstrated need, he does not have the financial resources to pay,
and he was not intransigent. Both parties seek fees on appeal. We address the issues in
turn.
Attorney fees at trial
After considering the financial resources of both parties, a court may order a party
to pay the reasonable attorney fees of the other party for maintaining or defending a
dissolution action. RCW 26.09.140. Another basis for awarding attorney fees is
intransigence. In re Marriage of Wixom, 190 Wn. App. 719, 725, 360 P.3d 960 (2015).
Intransigence may be shown by “litigious behavior, bringing excessive motions, or
discovery abuses.” In re Marriage of Wallace, 111 Wn. App. 697, 710, 45 P.3d 1131
15 No. 37753-9-III Marriage of Middleton
(2002). Washington courts have also found parties intransigent when they are “motivated
by their desire to delay proceedings or to run up costs.” In re Kelly, 170 Wn. App. 722,
740, 287 P.3d 12 (2012); see also In re Marriage of Foley, 84 Wn. App. 839, 846, 930
P.2d 929 (1997) (finding intransigence when husband caused delays by filing frivolous
motions, refusing to appear for deposition, and refusing to read correspondence from
wife’s attorney). When intransigence has been established, the ability of one spouse to
pay is no longer relevant. In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d
197 (1989).
The trial court found that Rachel incurred fees and costs and needed help paying
them, and Robert had the ability to help pay. Although the court did not use the word
“intransigent,” it found Robert “made this matter more litigious than it needed to be
which caused [Rachel] to incur additional attorney fees.” CP at 357.
The trial court awarded Rachel total attorney fees and costs of $6,961. Some of
these fees and costs were undoubtedly related to her successful petition for a protection
order. To that extent, the court’s oral finding that Rachel incurred fees and costs and
needs help paying is supported by the record. In addition, the trial court awarded Robert
$4,000 more in net property. This greater net property award supports the trial court’s
16 No. 37753-9-III Marriage of Middleton
finding that Robert had the ability to pay. Largely because of these two considerations,
we discern no abuse of discretion in the trial court’s attorney fee award.
Attorney fees on appeal
Both parties request fees on appeal. For the reasons set forth below, we decline to
grant an award of attorney fees to either party.
Rachel’s fee request
Rachel’s request for fees appears at the end of a section of her brief devoted to
why this court should reject Robert’s fee request. It states: “[Rachel] also respectfully
requests an award of attorney fees and costs under RCW 26.50.060(g) and RAP 18.1(d) if
she is successful.” See Resp’t’s Br. at 13.
RAP 18.1(b) provides: “The party must devote a section of its opening brief to the
request for the fees or expenses.” This procedure is mandatory. Pruitt v. Douglas
County, 116 Wn. App. 547, 560, 66 P.3d 1111 (2003). Furthermore, parties must make
arguments and cite to authority to support a fee request. Austin v. U.S. Bank of Wash.,
73 Wn. App. 293, 313, 869 P.2d 404 (1994). RAP 18.1(b) “requires more than a bald
request for attorney fees on appeal.” Phillips Bldg. Co. v. An, 81 Wn. App. 696, 705, 915
P.2d 1146 (1996).
17 No. 37753-9-III Marriage of Middleton
Even if we were to overlook the fact that Rachel did not devote a separate section
to this request, the two authorities she cites do not support her request.
RCW 26.50.060(1)(g) provides that a court may, upon notice and after hearing,
require the respondent in a domestic violence proceeding to pay costs and reasonable
attorney fees. That statute does not mention fees on appeal. Although Robert had notice
and a hearing on fees awarded at the trial level, the domestic violence statute does not
support a fee award on appeal of a marriage invalidation petition. Nor did Rachel provide
argument as to why it should.
RAP 18.1(d) provides that a party will file an affidavit detailing expenses incurred
and services performed by counsel within 10 days of a decision awarding that party the
right to reasonable attorney fees and expenses. But Rachel has not cited a statute or court
rule that would entitle her to fees on appeal in the first place.
For these reasons, we deny her fee request.
Robert’s fee request
Robert requests fees pursuant to RCW 26.09.140 and RAP 18.1. Under
RCW 26.09.140, appellate courts have the discretion to grant attorney fees. In doing so,
we consider the parties’ relative ability to pay and the merit of the issues on appeal.
Muhammad, 153 Wn.2d at 807.
18 No. 37753-9-III Marriage ofMiddleton
The issues raised by Robert on appeal have little merit. We exercise our discretion
and deny his request for attorney fees.
Affirmed.
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.
l ,awrence-Berrey, J.
WE CONCUR:
OJ d-owrqs. Jc~ Siddoway, A.CJ. Staab, J.