IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: No. 78086-7-1 TODD HEMRICK, DIVISION ONE Appellant, UNPUBLISHED OPINION and
LAMONICA HUMMEL, FILED: September 16, 2019 Respondent.
MANN, A.C.J. — Todd Hemrick appeals the trial court's dissolution decree
awarding spousal support and a BMW automobile to LaMonica Hummel. He also
challenges the court's order that he repay Hummel $55,000 on a promissory note
referenced in the parties' prenuptial agreement, and he alleges the court abused its
discretion in awarding Hummel attorney fees. We affirm.
I.
LaMonica Hummel and Todd Hemrick married on July 25, 2003, and separated
in early February 2016. Following a three-day trial in October 2017, the trial court
entered a decree of dissolution on December 27, 2017. The court limited the findings
and conclusions of that decree to those related to the court's jurisdiction to enter a
decree of dissolution, in order to enable the parties to be divorced before the end of No. 78086-7-1/2
December, 2017. The court reserved the remaining issues for a later date. On
February 7, 2018, the court entered amended findings and conclusions and an
amended final decree of dissolution addressing the balance of the issues in the case.
Prior to their wedding, Hemrick and Hummel entered into a prenuptial
agreement. The exhibits attached to the agreement illustrate the financial condition of
each of the parties prior to their marriage. Hummel owned a home valued at
approximately $500,000, with a mortgage of $264,000. In addition, she had assets in
savings, investment, and 401(K) accounts totaling about $400,000. Hemrick had less
than $100 in a checking account and owned a car valued at approximately $15,000. He
also owned 1.65 million membership units of a limited liability company he had
established called Blue Chip Resources, and 101,500 shares of a company called
Mercer Group, Inc. The value of these assets was listed as "unknown." Hemrick's
liabilities included $8,000 owed on an auto loan, $36,000 in back income taxes, and
$55,000 owed to Hummel on a promissory note for a loan she made to him in
connection with the founding of Blue Chip Resources.
As the trial court noted, by the time of their separation, Hummel's separate
assets had largely been depleted. Over the course of the marriage, the couple incurred
approximately $218,000 in community debt, all of it in Hummel's name. Hemrick
contributed little toward paying down this debt.
The trial court found that the prenuptial agreement signed by the parties two days
before they were married was valid. The agreement specified that neither the marital
community nor Hemrick had an interest in, or lien upon, Hummel's home. The court
therefore awarded that property to her. The court also ordered Hemrick to pay Hummel
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$55,000 as required by the promissory note referenced in the agreement and attached
exhibit.
The trial court found that the couple's community property consisted of a BMW
automobile with Hummel's name on the title. Both Hummel's original and amended
petitions for dissolution listed the BMW among the property to be awarded to Hemrick,
along with the remaining $12,000 owing for its purchase. Hummel changed her position
in April 2016, however, and from that point on she sought return of the vehicle, partly
because Hemrick had not complied with the court's temporary order requiring him to
obtain separate financing for the vehicle. In the final decree, the court awarded the
automobile to Hummel, explaining that because Hemrick had been required to
surrender his driver's license following his plea of "no contest" to a charge of impaired
driving in North Carolina, he would not be permitted to drive for a significant period of
time.
Addressing the community debt, the court found that a total of over $217,000 in
debt had been accumulated on Hummel's home equity line of credit and on credit cards
that were in Hummel's name. The community debt also included the BMW car loan of
about $12,000 and a debt to the IRS of $6,500 in Hemrick's name. The court awarded
the BMW loan to Hummel and the IRS debt to Hemrick.
Of the $217,000 in community debt, the court determined that the sum of
$150,000 should be divided equitably, and that Hemrick should receive a credit for
$2,000 for a riding lawnmower he claimed was his separate property. To effect the
repayment of these funds, the court ordered Hemrick to pay $73,000 to Hummel in the
form of spousal maintenance, in payments of $1,000 per month for 73 months.
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Finally, the court ordered Hemrick to pay $45,568 in attorney fees Hummel
accrued during the period leading up to the trial date. The basis for the court's award
was Hemrick's intransigence, which the court found contributed to Hummel's attorney
fees. Hemrick was not ordered to pay additional attorney fees that accumulated during
the trial or in posttrial motions afterward.
Hemrick appeals.
II.
In a dissolution action, the trial court must order a just and equitable distribution
of the parties' property and liabilities, after considering all the relevant factors. RCW
26.09.080; In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572(2007). In
making this distribution, "the trial court has broad discretion . . . and its decision will be
reversed only if there is a manifest abuse of discretion." Id. at 242-43 (citing In re
Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002)). A manifest abuse
of discretion occurs "when the court's decision is outside the range of acceptable
choices or based on untenable grounds or untenable reasons." Wixom v. Wixom, 190
Wn. App. 719, 725, 360 P.3d 960 (2015).
Findings of fact may be overturned only if they are not supported by substantial
evidence in the record. In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546
(2012). "Substantial evidence is that which is sufficient to persuade a fair-minded
person of the truth of the matter asserted." Id. Unchallenged findings of fact, however,
are verities on appeal. Miles v. Miles, 128 Wn. App. 64, 69-70, 114 P.3d 671 (2005).
With just one exception, addressed in Section A below, Hemrick did not challenge any
of the court's findings of fact, so they are verities in this appeal.
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A.
Hemrick argues the court abused its discretion in awarding spousal maintenance
to Hummel because she does not need it and he cannot afford to pay it. He contends
the court failed to adequately consider the statutory factors and to give paramount
concern to the parties' post-dissolution economic condition. See RCW 26.09.080(a), (f);
In re Marriage of Sheffer, 60 Wn. App 51, 54, 802 P.2d 817(1990)(remanding for
revision of maintenance award where the parties had been in a long-term marriage and
the superior earning capacity of one spouse was one of the few assets of the
community). We disagree.
An award of spousal maintenance is within the discretion of the trial court. In re
Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990). The only limitation on
the amount and duration of maintenance under RCW 26.09.080 is that, in light of all the
relevant factors, the award must be just. In re Marriage of Morrow, 53 Wn. App. 579,
585, 770 P.2d 197 (1989). The statutory factors are not exclusive. Id.
Hemrick misapprehends the core purpose of the trial court's award of
maintenance. Rather than attempting to equalize the parties' post-dissolution standard
of living for a period of time, the trial court awarded maintenance here to achieve a fair
and equitable division of the community debt. The court found that $150,000
represented the marital debt that should be divided between the parties evenly, and
after crediting Hemrick $2,000 for the riding lawn mower, held him accountable for
$73,000. In awarding maintenance of $1,000 per month for 73 months, the court
concluded:
Though full disentanglement would be preferable, spousal support is a flexible tool which enables the court to make just and equitable financial orders for the
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parties post-divorce. For this reason, as well as assessing ability to pay, spousal support must be ordered to be paid by [Hendrick] to [Hummel] in order to reach a just and equitable division of assets and debts in this case, and in lieu of a bulk payment of 73k.[11
The court did not abuse its discretion. As the court's analysis makes plain, it
considered Hemrick's ability to pay in determining that structuring the award into
monthly payments of $1,000 was more just and equitable than awarding a lump-sum
payment of $73,000. Awarding spousal maintenance for these reasons is within the
discretion of the court. In In re Marriage of Washburn, 101 Wn.2d 168, 677 P.2d 152
(1984), the Supreme Court determined that one spouse who supports the other through
professional school, with the expectation that the marital community will enjoy a
resulting financial benefit, should be compensated if the marriage dissolves before that
benefit can be realized. The court held that "[w]here the assets of the parties are
insufficient to permit compensation to be effected entirely through property division, a
supplemental award of maintenance is appropriate." Washburn, 101 Wn.2d at 178.
See also In re Marriage of Barnett, 63 Wn. App 385, 388, 818 P.2d 1382(1991)
(holding that the court erred in awarding maintenance to distribute to the wife her share
of the husband's business, where a lien awarded on the business already accomplished
the division of the property).
Hemrick also argues that Hummel, who testified she earns over $100,000 per
year, is self-supporting and capable of affording the lifestyle the couple had while
married. In contrast, he argues, his income at the time the Amended Decree was
entered was $1,195 per month. Hemrick's argument is unpersuasive. There is no
1 (Emphasis added.) 6 No. 78086-7-1/7
evidence in the trial record to support Hemrick's assertion regarding his income;
Hemrick's citations to his own opening statement and to declarations he submitted in
posttrial motions are not before us and will not be considered. Morgan v. Briney, 200
Wn. App 380, 394, 403 P.3d 86(2017)(citing State v. Curtiss, 161 Wn. App. 673, 703,
250 P.3d 496 (2011)). Moreover, the court made a specific finding that Hemrick was
not a credible witness. This court does not weigh witness credibility. Issues of
credibility are left to the trial court and will not be disturbed on appeal. In re Marriage of
Wilson, 165 Wn. App. 333, 340, 267 P.3d 485(2011)(citing In re Marriage of Greene,
97 Wn. App. 708, 714, 986 P.2d 144 (1999)).
The trial court found that Hemrick is a "self-described, high-level business
executive, who.. . is more than capable of self-support," and the record as a whole
tends to show that, during his marriage to Hummel, Hemrick earned several thousand
dollars per month from contracts he had negotiated or help negotiate while acting as an
independent contractor. In fact, a financial affidavit Hemrick submitted in April 2016
reported his monthly gross income to be over $3,600, although he was not employed at
the time. The court also found that while Hemrick lives with his mother and his fiancée
in a home with three incomes, Hummel depends solely on her own income while
simultaneously facing a life-threatening disease that requires she undergo weekly
medical tests and take chemotherapy medication indefinitely.
The trial court did not abuse its discretion in awarding maintenance to Hummel.
B.
Hemrick challenges the court's award of the BMW automobile to Hummel.
Hemrick asserts that, prior to October 2017, he had made all of the monthly payments
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on the car loan, a total of $10,600, that Hummel does not need the BMW, because she
has another car, and that Hummel did not want the BMW returned to her; rather, she
wanted the title transferred to Hemrick's name. Hemrick also contends that the court
erred by relying on Hemrick's January 2018 impaired driving conviction in awarding the
vehicle to Hummel. We disagree.
Hemrick's factual assertions are largely unsupported by the record. Hemrick
relies on a motion for reconsideration he filed in the trial court in February 2018 to
support his contention that he invested over $10,000 in the BMW. There is no evidence
in the trial record to support this statement, and his declaration to that effect in a
posttrial motion does not provide a credible basis to overcome the trial court's findings.
Hummel testified that Hemrick did make some of the payments on the BMW,though not
all of them. She also testified that although she did not want the BMW at the time the
couple separated, she needed Hemrick to obtain a loan in his own name so that she
would not be financially liable for the payments. Hummel was concerned about her
credit rating and about her potential liability on the car loan after Hemrick took the car to
North Carolina, because Hemrick had missed insurance payments he was required to
pay and threatened to destroy the vehicle. Hemrick never secured separate financing
for the BMW, and at the time of trial, Hummel sought to have the car returned.
Hemrick also argues that because Washington law requires the court to divide
property without regard to misconduct, RCW 26.09.080, the court erred in considering
the status of Hemrick's driving privileges when it awarded the BMW to Hummel.
Hemrick relies on In re Marriage of Zandi, 187 Wn.2d 921, 929, 391 P.3d 429(2017),
and In re Marriage of Steadman,63 Wn. App. 523, 528, 821 P.2d 59(1991). Neither of
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these cases supports Hemrick's position. In Steadman, the court held that "marital
misconduct," for purposes of division of property refers to "immoral or physically abusive
conduct within the marital relationship," but does not encompass gross fiscal
improvidence, squandering marital assets, or deliberately incurring tax liabilities.
Steadman,63 Wn. App. at 528. In Zandi, the Supreme Court held that, where there
was no evidence of bad faith or unreasonable conduct, and the trial court made no
findings suggesting fault, there was no basis to look beyond the general rule that marital
misconduct is irrelevant in dissolution-related proceedings. Zandi, 187 Wn.2d at 929.
Moreover, Zandi involved a question of interpretation of statutory language, which, as
the court noted, cannot be influenced by fundamentally factual concerns of a party's
fault. See id. at 926-27, 930. Zandi is therefore inapposite.
Here, the trial court did not improperly factor immoral, physically abusive, or any
other kind of marital misconduct into the decision regarding the BMW. The court found
that Hemrick pled "no contest' to a charge of impaired driving in North Carolina, and that
one of the conditions of his probation required him to surrender his driver's license and
not operate a motor vehicle until his driving privilege was restored. The court found that
Hemrick would not likely be permitted to drive "for a substantial period of time." None of
these findings were challenged by Hemrick, and the court's findings do not amount to
findings of marital misconduct. This basis for the court's decision turns on the practical
reality of Hemrick's driving privilege, not on whether his behavior constituted
misconduct.
Hemrick further argues that Washington law permits a person in his situation to
drive with an ignition interlock device in place, and that therefore the court's ruling was
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inappropriate. Yet, even if Hemrick would be eligible for such an accommodation in
Washington, that is irrelevant here, because he was charged and convicted in the state
where he now resides, North Carolina.
The court did not rely solely on the status of Hemrick's driving privileges in
awarding the BMW to Hummel. The court also found that failure to make the car loan
payments would have an adverse effect on the parties' credit ratings. Given that the car
loan was in Hummel's name alone, only she faced adverse consequences to her credit
rating in the event of missed payments. Hemrick had, by the time of trial, already
missed loan payments on the car, which Hemrick had covered to avoid harm to her
credit history. The court also briefly noted Hemrick's threats related to the car, which
could reasonably be interpreted to mean he had considered or was considering
damaging or destroying it while it remained Hummel's financial responsibility. These
additional grounds for awarding the vehicle to Hummel were, like Hemrick's driving
privileges, within the discretion of the trial court to consider.
The court did not abuse its discretion in awarding the BMW to Hummel.
C.
Hemrick challenges the court's order to pay Hummel $55,000 on the promissory
note that the trial court found had been incorporated by reference in the parties'
prenuptial agreement. Hemrick does not challenge the trial court's determination that
the prenuptial agreement is valid and binding. He claims that there is no evidence that
he owes the $55,000 debt to Hummel, because the promissory note was not referenced
in the prenuptial agreement and Hummel did not produce the promissory note at trial.
We disagree. Hemrick's arguments fail both factually and legally.
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Hemrick argues that because the promissory note was not admitted at trial, the
court erred in ordering him to repay Hummel. Hummel testified at trial that she could
not locate the promissory note. Contrary to Hemrick's contention, Hummel's inability to
locate the note does not mean either it, or the debt it represents, do not exist. Under
RCW 62A.3-309(a), a person who does not have possession of an instrument is entitled
to enforce it if (a) the person was in possession of the instrument and entitled to enforce
at the time it was lost,(b) the loss of the instrument was not the result of a transfer or
lawful seizure, and (c)the person cannot reasonably obtain the instrument because it
has been destroyed, it cannot be found, or it is in the wrongful possession of an
unknown person or a person who cannot be found or is not amenable to process.
Hemrick does not attempt to show that Hummel did not meet the test of RCW
62A.3-309(a); rather, he argues that Hummel cannot prove the terms of the agreement
or her right to enforce it, because it was not actually incorporated by reference in the
parties' prenuptial agreement. Absent such incorporation by reference, Hemrick
contends, the existence of the promissory note "has not and cannot be established."
Hemrick's argument is refuted by the prenuptial agreement on its face, which plainly
identifies the note and the debt. The agreement provides in Paragraph I.B. that
Hemrick's separate assets and liabilities are listed in "Exhibit A," a page that is attached
to the agreement, numbered in sequence with the main body of the agreement, and
which was initialed by the parties in the same manner as every other page of the
agreement. According to Paragraph I.B., Exhibit A "sets forth the estimated fair market
value of[Hemrick's separate] assets and the liabilities (if any) to which they may be _ subject." Included among the separate liabilities belonging to Hemrick is a "promissory
11 No. 78086-7-1/12
note in favor of LaMonica Hummel" valued at $55,000. The prenuptial agreement was
admitted into evidence as a single document of 14 numbered and initialed pages, one of
which was Exhibit A. There is no legitimate argument that the prenuptial agreement
does not identify the promissory note and incorporate it by reference.
Even if there had been a genuine issue concerning the promissory note and
Hemrick's debt to Hummel at trial, the evidence admitted at trial included a voice mail
message Hemrick left for Hummel on November 30, 2016, in which he concedes the
promissory note exists, gives Hummel suggestions about where to look for it, and
reaffirms that he will pay Hummel: "You want me to pay it? I'll pay it bitch. I don't
fucking care."
The court did not err in ordering Hemrick to repay Hummel the $55,000 debt
memorialized in the prenuptial agreement.
D.
Finally, Hemrick challenges the trial court's order awarding attorney fees to
Hummel. The court based its award on Hemrick's intransigence during the
proceedings. Hemrick argues that there was no evidence to show that he prolonged the
proceedings or made the matter more difficult or costly. We disagree.
We review a trial court's decision on attorney fees for an abuse of discretion.
Goodell v. Goodell, 130 Wn. App. 381, 393, 122 P.3d 929 (2005); In re Marriage of
Bobbitt 135 Wn. App. 8, 29-30, 144 P.3d 306 (2006).
Pursuant to RCW 29.09.140, the court in a dissolution matter may enter an
award of fees after considering the financial resources of each party. The court may
also enter an award of fees when one party's intransigence causes the other party to
12 No. 78086-7-1/13
incur additional legal costs. In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d
929 (1997). Intransigence is the quality or state of being uncompromising. In re
Marriage of Schumacher, 100 Wn. App. 208, 216, 997 P.2d 399(2000)(citing
WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1186 (3d ed. 1993)). "Determining
intransigence is necessarily factual, but may involve foot-dragging, obstructing, filing
unnecessary or frivolous motions, refusing to cooperate with the opposing party,
noncompliance with discovery requests, and any other conduct that makes the
proceeding unduly difficult or costly." In re Marriage of Wixom, 190 Wn. App. 719, 725,
360 P.3d 960(2015)(citing In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d
1120 (1992)).
Contrary to Hemrick's claim that there was no evidence to support the court's
award of fees, the trial court entered detailed findings regarding Hemrick's
intransigence:
The respondent committed many acts of intransigence when he sent repugnant and sad email, text and voice mail messages to the petitioner during the period March 2016 through December 2016. These messages were intransigent in nature and created a nearly constant need in the petitioner to incur attorney fees and costs in conferring with her attorney regarding these messages which she rightfully perceived to be very threatening in nature. The respondent also was intransigent for not following the requirements of the court's orders. For example, although the May 4, 2016 'Order on Respondent's Motion to Modify the Temporary Order Dated 2/22/16', required the respondent to begin reimbursing for the $75 monthly expense for the BMW automobile in his possession on November 1, 2106,[sic] he failed to do so. The respondent was to retrieve his belongings on the date and time set forth in the above order during a two hour time frame on May 5, 2016. The police had to be called to keep the peace as a result of the respondent's intransigence.
13 No. 78086-7-1/14
The parties were required by court order to exchange settlement proposals. The petitioner promptly made a settlement proposal and the respondent did not.
The record amply supports the court's finding that Hemrick's conduct contributed
to Hummel's attorney fees. His voice messages, texts, and emails, which the trial court
describes as "repugnant and sad" were very vicious and threatening, and Hummel
appropriately felt the need to keep her attorney apprised of them. Eventually, as
Hummel testified, she began forwarding Hemrick's messages to her counsel so that he
could listen to them and advise her. Many of Hemrick's voice messages related
specifically to what he would or would not do in connection with the dissolution
proceedings, creating difficulties for Hummel and her counsel. These communications,
in addition to his failure, and on occasion outright refusal, to cooperate with the court's
process, clearly magnified Hummel's fees.
The court awarded Hummel $45,568 in attorney fees, which represented the
amount of fees incurred up to the trial date. The court did not award fees Hummel
incurred during trial or during posttrial motions. Under the circumstances, the court did
not abuse its discretion in awarding fees based on Hemrick's intransigence.
E.
Hummel requests attorney fees and costs on appeal. RAP 18.1 allows this court
to award fees and costs if authorized by an applicable law. RCW 26.09.140 provides
for attorney fees on appeal. In exercising discretion under this statute, the court
considers "the arguable merit of the issues on appeal and the parties' financial
resources." In re Marriage of Raskob, 183 Wn. App. 503, 520, 334 P.3d 30 (2014). In
considering whether to award fees, the court generally balances the need of the
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requesting party against the other party's ability to pay. In re Marriage of Crosetto, 82
Wn. App. 545, 563, 918 P.2d 954 (1996). However, as noted above, when
intransigence is established, the financial resources of the party seeking attorney fees
are irrelevant. Morrow, 53 Wn. App. at 591.
As Hummel argues, Hemrick argued that the trial court's decision should be
reversed and the case remanded to provide Hemrick with a fair trial. We reject the
suggestion that Hemrick did not receive a fair trial in the superior court. The
proceedings were fair and the court's judgment was reasonable and well within the
judge's discretion. In contrast, many of Hemrick's arguments border on being frivolous,
such as the argument that the prenuptial agreement does not include page 13, and that
the award of maintenance was unfair because Hummel did not need support.
We grant Hummel's request for fees and costs.
Affirmed.
ee4 1. 1 oi c...-1--:
WE CONCUR: