IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of No. 86073-9-I
JANICE A. HODGE, DIVISION ONE
Appellant, UNPUBLISHED OPINION and
MICHAEL R. HODGE,
Respondent.
SMITH, J. — This is the second appeal in this matter. Janice Hodge and
Michael Hodge separated after 38 years of marriage. Following a dissolution
trial, the court entered findings of fact and a decree distributing the parties’
assets and Janice appealed. This court remanded for the trial court to (1) correct
the lien against the community reimbursing Michael for his separate contribution
to maintain the family home pending dissolution; (2) redistribute Michael’s
California Public Employees’ Retirement System pension; (3) reconsider the
award of Michael’s survivor benefit; and (4) recalculate maintenance. On
remand, the court entered orders amending its decree and supplementing its
findings. Janice again appeals. Finding the court did not abuse its discretion, we
affirm but award Janice costs and fees. No. 86073-9-I/2
FACTS
Janice and Michael Hodge1 married in California in May 1981.2 During the
marriage, Janice worked in the insurance industry and Michael worked in risk
management for several California cities. Prior to his work in risk management,
Michael served in the United States Marine Corps, where he sustained injuries
resulting in a permanent disability.
In 2001, the parties purchased a house in North Bend, Washington, where
they intended to retire. In 2003, Michael retired and in 2004, the parties, along
with their two children, moved into the North Bend home. When Michael retired,
he received a pension under the California Public Employees’ Retirement
System (CalPERS). Michael elected to receive a lower monthly payment in
exchange for a 100 percent survivor benefit. He named Janice the sole
beneficiary of the survivor benefit so she would receive Michael’s full monthly
pension after his death. Michael also collected Social Security benefits and a
monthly disability benefit from the United States Department of Veterans Affairs
(VA).
The parties made extensive modifications to the North Bend property with
funds from the sale of their California home, a construction loan, and a $50,000
grant from the VA. Sometime in 2007, Janice’s mother and sister moved into an
1 We refer to the parties by their first names solely for the purpose of clarity and to avoid confusion. 2 The facts concerning the Hodges’ initial trial and appeal come from this
court’s unpublished opinion in In re Marriage of Hodge, No. 82557-7-I (Wash. Ct. App. Jan. 3, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/ 825577.pdf.
2 No. 86073-9-I/3
accessory dwelling unit (ADU) on the property. Janice’s mother passed away a
few years later, but Terry, Janice’s sister, was still living in the ADU at the time of
dissolution.
Janice and Michael separated in August 2019, and Janice petitioned for
dissolution in October 2019. In January 2020, Janice sought temporary
dissolution orders. A commissioner entered a temporary financial order that
allowed Janice to stay in the marital home and ordered Michael to pay the
mortgage and home equity line of credit (HELOC) to “preserve the community
asset.” The court also ordered Michael to pay Janice monthly maintenance of
$2,000. During this time, Michael resided in a fifth wheel trailer owned by the
parties.
The court held a three-day trial in January 2021. At trial, the parties
disputed the allocation of Michael’s CalPERS survivor benefit. Janice wanted to
be removed as the beneficiary and have Michael receive the entire pension. If
Janice were to be removed as the beneficiary, she would receive a lump-sum
payout for her community share and Michael would receive an estimated
increase in his monthly pension payments of between $400 to $1,500.
The court did not remove Janice as the beneficiary. Instead, in its findings
and conclusions, it designated the $434,333 survivor benefit as community
property and awarded it to Janice. The court valued the parties' North Bend
home at $1.4 million, subject to a $59,818 mortgage and a $206,881 HELOC.
The court recognized that under the temporary order, Michael paid the parties'
full mortgage and HELOC obligations during separation from his separate VA
3 No. 86073-9-I/4
and Social Security benefits: $85,068 on the mortgage and $21,114 on the
HELOC, for a total of $106,182. The court valued Michael's CalPERS pension at
$1,044,365 and designated $644,838 as community property. It found Michael
received a monthly income of $6,757 from that pension. Finally, the court
ordered Michael to pay $1,750 per month in maintenance for the rest of Janice’s
life, secured by a life insurance policy.
Before a final decree was entered, Michael requested a hearing to clarify
the court’s findings concerning the CalPERS survivor benefit. Michael argued
that after his death, Janice would receive the survivor benefit providing monthly
income until her death, rendering life insurance to secure maintenance
unnecessary. Janice objected, arguing the court had not yet awarded the
pension or survivor benefit. She again requested the court award Michael 100
percent of the CalPERS pension so she could be removed as beneficiary of the
survivor benefit.
In its final dissolution order, the court awarded Janice the survivor benefit,
but relieved Michael of the obligation to purchase life insurance. The court noted
that when Michael dies, in place of maintenance, Janice will receive payments
from the survivor benefit. The court also awarded Janice half of the community
portion of Michael’s CalPERS pension ($345,206), to be distributed in monthly
increments of $1,750. Janice received the North Bend home and was ordered to
pay Michael a money judgment of $566,651. But later in the order, the court
stated Janice “must pay [Michael] the amount of $886,709.”
4 No. 86073-9-I/5
Both parties moved for reconsideration. Janice expressed concern that
the court ordered her to pay two money judgements to Michael—$566,651 and
$886,709—resulting in an unfair division of community property. Michael claimed
the lesser judgment would be inadequate and $866,709 was the appropriate
amount.
The court issued an amended final dissolution decree and attached an
asset spreadsheet. The court clarified Janice was to pay Michael a total money
judgment of $875,195.80. The asset spreadsheet showed a $106,182 lien
against the community in favor of Michael for his pre-dissolution payments of
$85,068 for the mortgage and $21,114 for the HELOC to maintain the family
home. The court awarded Janice maintenance in the amount of $1,750,
explaining the amount was fair “in consideration of all the factors,” including
Janice's needs, the other gainfully employed adults (the parties’ two children and
Janice’s sister, Terry) residing in her home, Michael's ability to pay, and the
parties’ standard of living during the marriage.
Michael moved to clarify the court's amended final dissolution decree,
asking whether the court intended to award Janice both $1,750 from the
CalPERS pension and $1,750 in maintenance for a total monthly payment of
$3,500, or just one monthly payment of $1,750. The court clarified that Michael
'”pay a total of $1,750 to [Janice] from the C[al]PERS pension as and for spousal
maintenance,” eliminating the payment to Janice for her community portion of the
pension.
5 No. 86073-9-I/6
Janice appealed to this court, claiming the trial court abused its discretion
by crediting Michael for his pre-dissolution mortgage and HELOC payments,
awarding her a portion of Michael’s CalPERS pension as an asset but then
ordering it disbursed to her monthly as maintenance, and overvaluing and
assigning Michael’s CalPERS survivor benefit to her as an asset. Janice also
asserted the court erred in its calculation of maintenance by relying on the
income of other persons residing in the home who did not contribute to the
household expenses.
This court agreed with Janice. First, we noted that by creating a lien in
favor of Michael for the entire amount he contributed during separation, the court
shifted the entire burden of maintaining the community asset from Michael to
Janice. Next, we concluded that by awarding Janice her share of the CalPERS
pension as an asset but then ordering her maintenance to come from that asset,
the court distributed the asset in a manner inconsistent with the law. Because
the allocation of the pension was remanded for consideration, the distribution of
the survivor benefit needed to be reconsidered as well. Finally, we noted the
award of maintenance needed to be recalculated without considering the income
of other adults in the home. We reversed and remanded to the trial court with
these instructions.
On remand, the trial court held an evidentiary hearing. At the hearing,
Janice again requested the court award the entire CalPERS pension to Michael
and award her a lump-sum payment. In its order, the court awarded Janice the
CalPERS survivor benefit as a community asset. The court noted that awarding
6 No. 86073-9-I/7
Michael the entire pension would have “negative (and unfair) tax ramifications”
and would only result in a marginal increase in Michael’s monthly pension. The
court also considered the decrease in monthly payments Michael had received
the past two decades in anticipation of Janice receiving the survivor benefit.
The court also revised the distribution of Michael’s CalPERS pension so
Janice received half her community interest in addition to $1,500 in spousal
support from Michael. The court noted this maintenance was calculated with no
regard to the income of other adults in Janice’s household. Finally, the court
ordered Janice to pay Michael $221,172.19—the remaining balance, including
interest, due on the original money judgment of $848,650. Janice again appeals.
ANALYSIS
Janice claims the trial court abused its discretion in determining property
distribution, equalizing income, and awarding maintenance. Michael contends
the court did not abuse its discretion on any of these matters. Both parties
request fees and costs on appeal.
Property Distribution
Janice claims the trial court miscalculated the money judgment owed to
Michael and erred in awarding her the CalPERS survivor benefit. Michael
contends the court’s decision was within its discretion and was not unjust or
unreasonable. Because the trial court did not err in calculating the money
judgment and its distribution of the CalPERS survivor benefit was in accordance
with law, we agree with Michael.
7 No. 86073-9-I/8
Under RCW 26.09.080, the trial court shall make a just and equitable
distribution of property. It must consider all relevant factors, including the nature
and extent of the community property, the nature and extent of the separate
property, the duration of the marriage, and the economic circumstances of the
parties at the time of the property division. RCW 26.09.080.
The trial court is in the best position to evaluate the assets and liabilities of
parties, and we will not disturb a trial court's order distributing property absent an
abuse of discretion. In re Marriage of Wallace, 111 Wn. App. 697, 707, 45 P.3d
1131 (2002). “A court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds or for untenable reasons.”
Wallace, 111 Wn. App. at 707. A court that rests its decision on facts
unsupported in the record or reaches its decision by applying the wrong legal
standard abuses its discretion. Hundtofte v. Encarnacion, 181 Wn.2d 1, 7, 330
P.3d 168 (2014).
1. Money Judgment
Janice claims the record contains no factual basis for the trial court’s
money judgment order. Michael contends Janice waived this argument, and
even if the argument was not waived, the judgment was not erroneous. Because
Janice proposed the money judgment and substantial evidence supports the
amount of judgment, we agree with Michael.
If a party fails to raise a claim in the trial court, the court of appeals may
refuse to review the claim. RAP 2.5. Additionally, under the invited error
doctrine, a party cannot take “ ‘affirmative and voluntary action’ that induces the
8 No. 86073-9-I/9
trial court to take an action later challenged on appeal.” Shavlik v. Dawson
Place, 11 Wn. App. 2d 250, 270, 452 P.3d 1241 (2019) (quoting Grange Ins.
Assoc. v. Roberts, 179 Wn. App. 739, 320 P.3d 77 (2013)).
Here, Janice did not waive the claim because she could not have raised
the issue at trial, as the judgment had not yet been entered, but she did invite the
error she now challenges on appeal. Prior to the trial court issuing its second
amended final divorce order, Janice prepared a memorandum directing the
court’s attention to “an incorrect principal judgment.” In her memorandum,
Janice calculated the “final current payoff figure,” including interest to be
$221,172.19. When the court issued its order, it set the judgment amount at
$221,172.19, adopting Janice’s calculation of judgment in her memorandum,
including principal and interest. Janice cannot claim error on appeal for a
judgment she proposed.
Even if Janice had not proposed the judgment, the trial court provided
substantial evidence to support the amount. The court noted $170,067.94 of the
judgment was principal and $51,104.25 was interest accrued during the period
May 14, 2021 through November 14, 2023. Janice claims the court does not
clarify whether the money judgment is intended to be part of the original
$848,650 judgment or a new judgment. She also claims if it is the remainder due
on the original judgment, it is incorrectly calculated.
Janice states she has already paid $689,516 of the amount owed, and
subtracting that amount from the total lien ($848,650) leaves only $159,516. But,
this calculation does not include the interest that accrued between the time the
9 No. 86073-9-I/10
judgment was entered and when the funds were dispersed to Michael. As Janice
correctly noted in her memorandum, “[a] total of 38 days passed between April 6,
2021 (the date of judgment) and May 14, 2021 (the approximate date of the
disbursement). Interest is determined as follows: $875,195.00 x 0.12 ÷ 365 x 38
days = $10,933.94 interest accrued during the period April 6 to May 14, 2021.”
Accordingly, $689,516.00 - $10,933.94 = $678,582.06, and $848,650 –
$678,582.06 = $170,067.94, which is the principal amount still owed before
interest. Using the previous equation for interest, the principal amount
($170,067.94) accrued $51,104.25 in interest between May 14, 2021 and
November 14, 2023. Adding together the principal and interest, the court
calculated a total judgment still owed of $221,172.19—the same amount Janice
proposed in her memorandum.
Because substantial evidence exists to support the court’s calculations as
to the money judgment, we affirm.
2. Survivor Benefit
Janice contends the court abused its discretion when it awarded her the
CalPERS survivor benefit because the benefit is not property subject to
distribution and, even if it were, the court failed to equitably distribute the benefit
under RCW 26.09.080. Michael claims the survivor benefit is divisible property
and the court did not abuse its discretion when it allocated the entire benefit to
Janice. Because the survivor benefit is distributable property and the trial court
awarded it to Janice in accordance with applicable law, we agree with Michael.
10 No. 86073-9-I/11
No Washington case directly addresses whether a pension survivor
benefit is property subject to distribution, but this court has held interests not yet
fully vested at the time of divorce are divisible property. In re Marriage of Leland,
69 Wn. App. 57, 71, 847 P.2d 518 (1993) (“ ‘The law has long recognized that a
contingent future interest is property no matter how improbable the
contingency.’ ”) (quoting In re Marriage of Brown, 15 Cal. 3d 838, 126 Cal. Rptr.
633, 638 n.8 (1976) (citation omitted)).
To equitably devise contingent benefits, courts have used two methods:
the “lump sum method” and the “pay as it comes in” method. “Under the lump sum method the present value of the pension is determined as of the date of divorce. Generally, the employee spouse is awarded the entire pension, and the nonempolyee [sic] spouse receives other community assets of equal value as compensation for his or her one half interest. Use of the pay as it comes in method requires the court to reserve jurisdiction over the case until the employee spouse is first eligible for retirement or actually retires. The benefits are then valued and divided between the former spouse when they are actually received.”
In re Marriage of Wright, 147 Wn.2d 184, 190, 52 P.3d 512 (2002) (alteration in
original) (quoting Tami C. Budo, When the Marital Community Is Dissolved, May
One Party Dilute Their Spouses [sic] Interest in the Pension Benefits by
Choosing to Delay Retirement? 29 IDAHO L. REV. 1036, 1036-37 (1992-93)
(footnote omitted)).
Here, Janice claims the survivor benefit is a contingent, unvested, future
interest and should not be considered distributable property. But Janice provides
no case law to support her claim that a survivor benefit is not property subject to
distribution. To the contrary, Janice admits “there is no longer a blanket
11 No. 86073-9-I/12
prohibition against characterizing a contingent future interest as property” and
Washington courts “handle[] such interests on a case by case basis.”
Accordingly, the trial did not err when it considered the CalPERS survivor benefit
as distributable property.
Next, Janice contends that, even if the survivor benefit is distributable
property, the court’s distribution was not just and equitable because it did not
properly assess the nature of the survivor benefit or the limitations and risks in
the asset. Janice claims the court did not consider her “inability to currently
receive any portion of the asset, the nonmarketability and nonliquidity of the
asset, the fact that if [she] ever receives part of the asset it will be in monthly
sums, not the full valued amount, or the nonvested nature of the asset.”
To support her claim that the trial court did not equitably distribute the
survivor benefit, Janice points to two California cases: Brown, 15 Cal. 3d 838 and
In re Marriage of Gray, 155 Cal. App. 4th 504, 66 Cal. Rptr. 3d 87 (2007). But
not only are these cases not controlling in Washington, they are not inapposite to
the trial court’s ruling. Both cases recognize various methods exist for dividing
contingent benefits and the choice is at the discretion of the trial court. Brown,
15 Cal. 3d at 840; Gray, 155 Cal. App. 4th at 518.
Both Gray and Brown recognize two methods for distributing unvested
property: (1) dividing and distributing the benefits as they become payable or
(2) calculating the present value of the benefit and awarding the full value to one
of the parties, then offsetting assets between the parties to account for the
community value. Gray, 155 Cal. App. 4th at 518; Brown, 15 Cal. 3d at 840.
12 No. 86073-9-I/13
When deciding which method to use, the court may consider feasibility and risk
factors, such as death, that have potential to “destroy pension rights before they
mature.” Gray, 155 Cal. App. 4th at 518. The Gray court noted, “If there are
considerable ‘uncertainties affecting the vesting or maturation of the pension,’ ”
then the court should not use the present value approach. 155 Cal. App. 4th at
518 (quoting Brown, 15 Cal. 3d at 848).
Here, the trial court relied on the present value method, which is the same
method put forth in the cases Janice cites to, as well as the same method used
by the court in DeRevere.3 Contrary to Janice’s argument, the court did consider
the limitations and risks associated with its approach. In its order, the court
discussed the reasoning behind its decision, including the parties’ initial choice in
2003 to elect the survivor benefit; the probability that Michael will predecease
Janice; the de minimus increase in pension Michael would receive if he was
awarded the full CalPERS pension, and the unfair tax ramifications that would
result if Michael received the entire pension. The only uncertainty affecting the
survivor benefit is whether Michael will predecease Janice, and the court properly
assessed that risk, noting that Janice will likely outlive Michael.4 Because the
court considered all the factors under RCW 26.09.080 and used an acceptable
3 DeRevere v. DeRevere, 5 Wn. App. 741, 491 P.2d 249 (1971). The “present value” method put forth in Gray and Brown is the same as the “lump sum” method used by Washington courts. 4 Michael has significant health issues. Michael was medically retired
from the United States Marine Corps after losing both legs in combat. He currently suffers from bleeding hemorrhoids, nerve impingement in his neck, arthritis, chronic back pain, and hearing loss. Michael has also endured two episodes of bladder cancer, nostril cancer, and an aneurysm.
13 No. 86073-9-I/14
method of distribution, its allocation of the survivor benefit to Janice was
equitable.
The trial court did not abuse its discretion when it considered the survivor
benefit distributable property or when it chose to award Janice the benefit;
therefore, we affirm.
Income and Maintenance
Janice claims that the trial court abused its discretion by failing to equalize
her and Michael’s income and awarding maintenance that is inequitable because
it leaves her in an unstable financial position. Michael contends the court was
not required to equalize income and the calculation of maintenance was just and
equitable. The trial court’s determination of maintenance was just and equitable;
therefore, we agree with Michael.
Under RCW 26.09.080, in a dissolution of marriage proceeding, the trial
court must distribute property in a “just and equitable” manner. The court must
consider several factors in making this determination, including (1) the nature
and extent of both community and separate property, (2) the length of the
marriage, and (3) the economic circumstances of the parties at the time of
property division. RCW 26.09.080. The parties’ standard of living during
marriage and post-dissolution economic condition “are paramount concerns
when considering maintenance and property awards in dissolution actions.” In re
Marriage of Sheffer, 60 Wn. App. 51, 57, 802 P.2d 817 (1990).
While property distribution must be just and equitable, it need not be equal
or mathematically precise. In re Marriage of Doneen, 197 Wn. App. 941, 949,
14 No. 86073-9-I/15
391 P.3d 594 (2017). The distribution only needs to be fair, considering all the
factors of the marriage. Doneen, 197 Wn. App. at 948-49. A trial court has
broad discretion in awarding maintenance. In re Marriage of Wilcox, 3 Wn.3d
507, 517, 553 P.3d 614 (2024). A trial court’s decision concerning maintenance
“will not be overturned on appeal absent a showing of manifest abuse of
discretion.” In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152
(1984).
While trial courts have broad discretion in awarding maintenance, some
distributions are not allowed. Federal law prohibits state courts from dividing or
distributing veteran’s disability pensions. In re Marriage of Perkins, 107 Wn. App.
313, 318, 26 P.3d 989 (2001). This includes “awarding part of the future income
stream that is the pension itself; . . . finding present value and making an
offsetting award of other assets; or . . . awarding ‘maintenance.’ ” Perkins, 107
Wn. App. at 324 (quoting Mansell v. Mansell, 490 U.S. 581, 589, 109 S. Ct. 2023,
104 L. Ed. 2d 675 (1989)). But, a trial court may “consider a spouse’s
entitlement to an undivided veteran’s disability pension as one factor relevant to
a just and equitable distribution of property.” Perkins, 107 Wn. App at 322.
Here, Janice contends the court failed to equalize the parties’ incomes
and the maintenance award leaves her with a monthly deficit, resulting in an
inequitable distribution. But Janice miscalculates her total income and
erroneously assumes her maintenance must be increased to account for her
monthly loan repayments.
15 No. 86073-9-I/16
1. Income
Janice’s calculation of her income misstates the division of the monthly
CalPERS pension. Janice alleges her share is $1,750, but that was the amount
before remand. In its amended supplemental findings and conclusions of law,
the court noted Janice’s portion of the CalPERS pension was $2,229.58.5
Accordingly, Janice’s actual monthly income, not including maintenance, is
$5,601.48, not $4,302.90 as she suggests.6 Janice also states Michael’s
pension share is $5,006.77, but again, this was the amount before remand.
Michael’s share of the pension is $4,527.19 after accounting for Janice’s portion.
Factoring in the correct pension share, Michael’s monthly income is
$11,841.19, including his VA disability benefits, not $12,320.77, as Janice states.
This will be reduced to $10,341.19 after the $1,500 maintenance payment to
Janice. But, not including his VA disability benefit, Michael’s monthly income,
after paying maintenance, is $7,109.19—almost equal to Janice’s monthly
income after receiving maintenance.
Even if the parties’ incomes are not equal, no abuse of discretion occurs
as long as the court makes an equitable distribution based on the relevant
factors, including those listed in RCW 26.09.080. Janice provides no evidence to
5 William Hawes, an expert at trial, valued Michael’s total CalPERS pension at $945,300, with a community portion of $625,028. Hawes indicated the community portion percentage was 66.1 percent of the total pension. Hawes also valued Michael’s total monthly accrued CalPERS benefit at $6,756.77. Based on these valuations, the court determined Janice’s portion of Michael’s monthly CalPERS benefit was $2,229.58. 6 This amount is calculated based on the court’s supplemental findings
and conclusions about a marriage.
16 No. 86073-9-I/17
support a claim that the trial court did not consider all factors under
RCW 26.09.080. In its findings and conclusions, the court noted the extent of
both community and separate property, the duration of the marriage, and the
economic circumstances of both spouses, as well as Janice’s desire to keep the
family home. Accordingly, even if the parties’ monthly incomes are not equal, the
court did not abuse its discretion
2. Maintenance
Janice also claims the court failed to provide sufficient maintenance to
cover her monthly expenses. Specifically, Janice contends the court did not
consider that her monthly expenses are higher now than they were pretrial
because of the cost of financing the equalizing payment to Michael. According to
Janice’s most recent financial declaration, her household expenses total
$14,528, including a $8,651 monthly loan repayment to her brother. But Janice
requested to keep the family home and she testified her brother would loan her
“[a]s much as it takes” to be able to remain in the house. Increasing Michael’s
maintenance to cover her loan repayment would essentially be requiring Michael
to fund his own property award through maintenance. Janice cannot complain
about a maintenance award and property division that is a direct result of the
court accommodating her request to keep the home. See, e.g., In re Marriage of
Kaplan, 4 Wn. App. 2d 466, 478-79, 421 P.3d 1046 (2018) (noting a party
“cannot now complain that [they] received what [they] requested” simply because
they are unhappy with the court’s allocation of other assets to make the division
equitable).
17 No. 86073-9-I/18
As noted above, the court considered all the factors under
RCW 26.09.080, including Janice’s request to stay in the home. The court did
not abuse its discretion by awarding maintenance that left Janice with a deficit
when the cause of that deficit is Janice’s own request and assurances to the
court.
Because the court was not required to equalize incomes, and its
determination of maintenance was equitable and just, we affirm.
Attorney Fees
Both parties seek fees on appeal. Janice contends she should be
awarded attorney fees under RAP 18.1 and RCW 26.09.140, as well as costs
under RAP 14.2. Michael claims any fees awarded should be to him for Janice’s
meritless appeal, citing to RAP 18.9. Because Janice’s appeal is not without
merit, the issues involved in this case are somewhat complex, and she is left with
less available capital, we award Janice attorney fees.
Janice requests fees under RCW 26.09.140, RAP 18.1, and RAP 14.1.
RAP 18.1 provides that applicable law may grant a party the right to recover
reasonable attorney fees or expenses on review. A party requesting fees under
RAP 18.1 must provide argument and citation to authority “to advise the court of
the appropriate grounds for an award of attorney fees as costs.” Stiles v.
Kearney, 168 Wn. App. 250, 267, 277 P.3d 9 (2012). Under RAP 14.1, a
commissioner or clerk of the appellate court will award costs to the party that
substantially prevails on review, unless the appellate court directs otherwise in its
18 No. 86073-9-I/19
decision terminating review. Because Janice does not prevail on appeal, we
decline to award fees and costs under RAP 14.1.
Michael requests fees under RAP 18.9. Under RAP 18.9(a), a court may
sanction a party for violation of the rules or filing a frivolous appeal. But, Janice’s
appeal was not meritless and the distribution of property leaves Michael with
substantially more liquid assets. Because Janice’s claims were not meritless, we
decline to award fees or costs to Michael.
Under RCW 26.09.140, “[u]pon 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.” The survivor benefit,
while an asset to Janice, is not available to her until Michael’s death, leaving her
with less available capital. Accordingly, we grant Janice costs and fees under
RCW 26.09.140.
Judge on Remand
Janice asserts if the case is remanded, it should go to a different judge
because Judge Parisien has already formed strong opinions of the parties and is
biased. Michael contends no evidence supports a claim of bias and Janice’s
request is meritless. Because we are not remanding the case, the issue is moot.
Affirmed.
WE CONCUR: