Filed Washington State Court of Appeals Division Two
April 11, 2023
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In the Matter of the Marriage of: No. 56769-5-II
ANN WEAVER,
Appellant,
and
GEOFFREY WEAVER, UNPUBLISHED OPINION
Respondent.
GLASGOW, C.J.—Ann Weaver appeals the superior court’s amended findings of fact and
conclusions of law dissolving her marriage to Geoffrey Weaver, the final dissolution order, and
the child support order. Ann1 argues that the trial court erred by considering Geoffrey’s late filed
asset and debt spreadsheet. She also argues that the court erred by awarding the family home to
Geoffrey, by adopting Geoffrey’s characterization and valuation of his Colorado property, by
mischaracterizing the funds in their retirement accounts, and by deviating from the standard child
support calculation. Ann further asks for an award of attorney fees incurred during trial and both
parties ask for an award of attorney fees on appeal.
We affirm and we decline to award attorney fees to either party.
1 Because the parties share a last name, we use their first names to avoid confusion. No. 56769-5-II
FACTS
Geoffrey and Ann Weaver were married in September 2005. They had twin girls during
their marriage, who were 13 at the time of the dissolution. After mediation and arbitration, both
parties agreed to a schedule providing for equal residential time with the girls. However, the parties
had an extensive six-day trial to resolve issues related to the division of property, spousal support,
child support, and attorney fees.
I. PROPERTY DIVISION
A. Geoffrey’s Asset/Debt Spreadsheet
Ann produced an illustrative asset and debt spreadsheet on the second day of trial, which
was admitted into evidence. At the opening of trial, the trial court noted that Geoffrey had not yet
provided proposed orders and requested that they be provided by the time Geoffrey started his
presentation of evidence.
On the fourth day of the six-day trial, the trial court asked Geoffrey if he was similarly
going to prepare a spreadsheet showing his requests for property distribution and division.
Geoffrey responded that he did not believe he would. The court replied that it would be helpful if
he provided one prior to closing but that it was not required, and Ann did not object.
At the conclusion of day five, the trial court requested final versions of the parties’
proposed orders to be submitted before closing arguments. Geoffrey asked if the court would like
an illustrative asset and debt sheet. The trial court judge stated a spreadsheet would make it easier,
but one was not required, and Ann did not object.
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Geoffrey provided an illustrative, proposed asset and debt division spreadsheet with his
proposed orders after the close of evidence. Ann did not object to consideration of the proposed
asset and debt sheet at that time.
After closing arguments and taking the matter under consideration, the trial court entered
an oral ruling generally adopting Geoffrey’s proposal for asset and debt distribution, awarding
Ann 52 percent of the net assets and Geoffrey 48 percent. The trial court reasoned that Geoffrey’s
asset and debt spreadsheet was not arbitrary, it was “based on the best information available,” and
it was the most fair and equitable way to divide the parties’ assets and liabilities. Clerk’s Papers
(CP) at 133. But in its oral ruling, the trial court mistakenly stated that Geoffrey’s spreadsheet of
proposed asset and debt distribution had been admitted as an exhibit during trial. In fact, only
Ann’s spreadsheet reflecting her proposed distribution had been admitted as an exhibit.
Ann did not object to the trial court’s consideration of Geoffrey’s spreadsheet until
presentation of the written orders. Ann asserted that Geoffrey’s spreadsheet was not entered into
evidence as an exhibit, and she was not provided with an opportunity to cross-examine Geoffrey
about it or present rebuttal evidence. The trial judge responded that he believed the asset and debt
spreadsheet was provided with the intent of essentially summarizing what the testimony and
evidence had been from Geoffrey’s perspective. The trial court again took the issues raised under
advisement, but it ultimately declined to significantly change its decision with regard to the
division of property based on Ann’s objection.
It is unclear whether Geoffrey’s proposed orders or his asset and debt spreadsheet are in
the trial court record. Neither party designated them in our record.
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B. Real Property Distribution
The parties owned three homes: one on Zachariasen Court, the marital home in
Washington; one on Kukas Loop, a rental home in Washington; and one on Barberry Place, a rental
home in Colorado. The trial court awarded Geoffrey the marital home and the Burberry Place
home, and it awarded Ann the Kukas Loop home.
1. Trial testimony and findings regarding Zachariasen Court property
In 2014, the parties purchased the Zachariasen Court home, and at trial, Ann testified that
the value of the Zachariasen house was between $740,000 and $819,000. Geoffrey testified that
he believed the value was about $850,000. The parties’ mortgage on the property at the time of
separation was around $340,000 with a monthly mortgage payment of $2,321.
At trial, Ann testified that she preferred to be awarded the Zachariasen Court home. She
further testified that based on a conversation with a mortgage broker, she qualified for a $340,000
mortgage in her own name, and she could refinance the home. She testified that she was qualified
based on her income, but this included the temporary spousal and child support she was receiving
at the time. However, Ann was unsure if she would qualify without the spousal support and she
said she would not qualify without the child support. She had been paying the mortgage payment
on the property since July 2020.
The trial court found that there was insufficient evidence that Ann would be able to
reasonably, and in a timely manner, refinance the home. The court concluded that it was fair and
equitable to award the Zachariasen Court property to Geoffrey and he would be responsible for
refinancing and paying the mortgage. Ann would be awarded the Kukas Loop property, which was
free of encumbrances.
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2. Valuation of the Kukas Loop and Barberry Place properties
The trial court found that Geoffrey’s valuations on his proposed asset and debt spreadsheet
were based on the best information available.
In 2016, the parties refinanced the Zachariasen Court property and purchased the Kukas
Loop property. The Kukas Loop property is fully paid for. At trial, Ann testified she believed the
value was between $400,000 and $420,000. At trial, Geoffrey testified that he believed the value
was around $400,000 to $405,000. Geoffrey has resided in Kukas Loop since he moved out of
Zachariasen Court in July 2020.
It was undisputed that Geoffrey owned the Barberry Place property in Parker Colorado
prior to the marriage. At trial, Ann testified that the market value in fall 2020, was somewhere
between $389,352 and $433,800. Geoffrey testified that the low $300,000’s was a reasonable sale
price. The Barberry Place property had an outstanding mortgage of approximately $150,000. At
trial, Ann claimed that the marital community was owed reimbursement of $30,000 allegedly
invested in the Barberry Place home over the years on work such as repair and maintenance
projects paid for by the community. However, the trial court awarded the Barberry Place home to
Geoffrey in its entirety as his separate, premarital property.
3. Retirement accounts
The parties also had various retirement accounts, including Geoffrey’s Geneos account, his
Voya/DeWafflebakker account, and Ann’s Millennium Trust account. The two contested
retirement accounts are the Geneos account, which Geoffrey alleged held $72,000 in funds
contributed prior to the marriage and Ann’s Millennium Trust account, which she alleged held
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about $40,000 in funds contributed prior to the marriage. They both also owned other retirement
accounts before their marriage, none of which are in dispute.
The trial court awarded Ann:
• all of her separate property retirement accounts, totaling roughly $38,000;
• $97,473.64.00 from Geoffrey’s Voya/DeWafflebakker 401(k) Plan;
• the full amount in her Millennium Trust account, which held $75,227.85; and
• nothing from Geoffrey’s Geneos account, which held an approximate value of $100,000.
Ann’s award included a 52 percent share of the market increase in both parties’ accounts between
the time of separation and the time of trial.
Geoffrey was awarded:
• approximately $100,000, the total amount in the Geneos account; and
• all remaining funds in the Voya/DeWafflebakkers 401(k) Plan, which had a total balance
of about $139,000 as of June 30, 2021.
a. Geneos account
Geoffrey testified that he had accumulated roughly $72,000 in his Geneos retirement
account prior to the marriage. He did not make any contributions during the marriage. At trial,
Geoffrey asked the court to find that $72,000 of the Geneos account was separate property and
that any gains during the marriage could be treated as community property. Geoffrey testified that
the money was deposited with American Skandia by January 2006, which was a new retirement
account that was a consolidation of the various retirement accounts he had prior to marriage, which
was all later moved to the Geneos account. To establish the separate property character of the funds
in the account, he offered a vested distribution form from Advance Food Company, dated
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November 9, 2006 (approximately one year after the marriage), which showed a balance of
$72,154.87. Geoffrey presented the Geneos account statements to show the current balance of
approximately $100,000, thus reflecting a gain of roughly $28,000 during the marriage. The trial
court awarded Geoffrey any and all funds held in the Geneos retirement account that was acquired
prior to and during the marriage, with an approximate value of $100,000 at the time of separation.
b. Millennium Trust account
In 2000, Ann worked for a computer company in Colorado and acquired a 401(k) benefit
while employed at that company. She testified that the 401(k) evolved into an account at Virtual
Enterprises d/b/a Advanced Systems Group with a value of $40,201.21 as of September 30, 2006,
about one year after the marriage. Ann testified that she contributed to the 401(k) plan while
employed at Advanced Systems Group from January 2000 to January 2008. She stopped making
contributions when she quit working in 2008 when the twins were born, which left a balance of
$40,756.55 as of July 2008.
The Virtual Enterprises 401(k) was eventually rolled into the Millennium Trust account.
Ann testified that as of December 31, 2020, the balance of the account was $83,268.80. This
reflected a gain of about $43,000 during the marriage.
At trial, Ann initially characterized the account as community property since she did not
have proof of the amount in the account at the date of marriage. Then she claimed that about 50
percent was separate property because roughly half the contributions were made prior to the
marriage. However, the trial court found that there was insufficient tracing to find any portion of
the Millennium Trust account to be separate property. Nevertheless, the trial court awarded the
entire Millennium Trust account to Ann.
7 No. 56769-5-II
c. Voya/DeWafflebakker account
Geoffrey explained that this retirement account consisted entirely of community property
acquired during the marriage. The parties did not designate the exhibits so they are not included in
our record. However, as of June 30, 2021, Geoffrey testified that the total account balance was
around $139,000. The court’s orders reflect that the trial court awarded Ann $97,473.64 from this
account as part of the overall 52/48 percent division of the parties’ net assets in Ann’s favor.
II. CHILD SUPPORT AND SPOUSAL MAINTENANCE
At trial, Geoffrey asked the trial court to make a deviation from the standard child support
calculation because of the parties’ parenting plan, which evenly split time with the children
between Ann and Geoffrey. Under the standard calculation, Geoffrey’s support would amount to
$1,496.88 while Ann’s would amount to $883.12; however, he asked the trial court to make a
deviation from the standard calculation because the children spend significant time with him.
Additionally, the nonstandard amount still gave Ann enough money for the children’s basic needs.
The trial court agreed and ordered Geoffrey to pay Ann a total monthly child support amount of
$306.88.
The trial court also awarded Ann spousal maintenance of $1,500 per month for the first
three years starting in 2022, followed by $1,000 per month for the following two years. Spousal
maintenance would therefore continue until after the children, who were 13 years old in early 2022,
turned 18 years old. The monthly net incomes for the parties after accounting for child support and
spousal payments are roughly $6,200 for Geoffrey and $6,080 for Ann.
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III. ATTORNEY FEES
Ann requested attorney fees based on her need and Geoffrey’s ability to pay. In addition,
both parties requested an award of attorney fees based on a finding of intransigence.
The trial court denied both parties’ claims of intransigence and ordered each party to pay
their own attorney fees. The court found that both sides engaged in behavior that enhanced conflict
and enhanced the prospects of litigation; however, the court refused to make a finding of
intransigence against either party.
Ann appeals the final order containing the property division and the child support order.
Neither party designated the exhibits, so they are not contained in our record, nor is Geoffrey’s
asset and debt spreadsheet.
ANALYSIS
A. Consideration of Geoffrey’s Asset and Debt Spreadsheet
As an initial matter, Ann argues that the trial court erred when it indicated that it was
adopting Geoffrey’s asset and debt spreadsheet that she says was provided just 10 minutes prior to
closing arguments along with his proposed orders. She claims that she was provided no opportunity
to respond to the spreadsheet. Ann claims that the court’s reliance on Geoffrey’s spreadsheet
effectively reopened the case. She contends she was prejudiced and the court abused its discretion.
See Estes v. Hopp, 73 Wn.2d 263, 270, 438 P.2d 205 (1968).
Geoffrey responds the trial court was well within its discretion to request and consider his
asset and debt spreadsheet as part of his proposed orders. He states that there were multiple times
prior to the last day of trial where the idea of Geoffrey presenting an asset and debt sheet was
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discussed, and Ann did not object. He argues that under RAP 2.5(a), we need not review a claim
of error that is raised for the first time on appeal. He further claims that there was no prejudice to
Ann, as she was present at trial when all of the evidence and testimony summarized in the
spreadsheet was presented, and counsel had every opportunity to ask questions and cross-examine
Geoffrey about that evidence. Thus, he argues that we should decline to review Ann’s untimely
claim of error.
Ann sufficiently objected to warrant review of her claim of error that the trial court
improperly considered Geoffrey’s asset and debt spreadsheet. Before the trial court entered final
written orders, Ann explicitly objected to consideration of Geoffrey’s proposed asset and debt
spreadsheet since it was not entered into evidence and, she asserted, she did not have an
opportunity to cross-examine Geoffrey about it or present rebuttal evidence.
Ann contends that consideration of the spreadsheet after evidence had closed amounted to
reopening the case. But here, the trial court did not admit Geoffrey’s asset and debt spreadsheet
into evidence as an exhibit, rather it was the trial judge’s understanding that Geoffrey provided the
spreadsheet for the purpose of summarizing Geoffrey’s proposed division and distribution of
property based on the testimony and evidence presented during trial. Consideration of a summary
of the evidence already presented at trial does not amount to reopening the case to consider new
evidence. Further, Ann has the burden to show that the trial court erred and she has failed to
designate the spreadsheet as part of our record or establish that any valuations in the spreadsheet
were not already presented at trial. Thus, we decline to conclude that the trial court abused its
discretion when it considered Geoffrey’s asset and debt spreadsheet as an illustrative summary of
relevant evidence presented at trial.
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B. Background on Property Division and the Characterization of Community Property and Separate Property
RCW 26.09.080(4) provides:
In a proceeding for dissolution of the marriage . . . the court shall, . . . make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to: .... (4) The economic circumstances of each spouse or domestic partner at the time the division of property is to become effective . . . .
In fact, we will only substitute our judgment for the trial court’s in the division of property if there
has been a manifest abuse of discretion. Worthington v. Worthington, 73 Wn.2d 759, 768, 440 P.2d
478 (1968); In re Marriage of Groves, 10 Wn. App. 2d 249, 254, 447 P.3d 643 (2019).
We look to whether the final division of the property was fair, just, and equitable. Groves,
10 Wn. App. 2d at 254. We do not disturb the trial court’s credibility determinations. In re
Marriage of Akon, 160 Wn. App. 48, 57, 248 P.3d 94 (2011) (noting that credibility determinations
are not reviewed on appeal). When trial court findings are challenged, we review those findings
for substantial evidence, which exists “‘if the record contains evidence of sufficient quantity to
persuade a fair-minded, rational person of the truth of the declared premise.’” In re Marriage of
Wilson , 165 Wn. App. 333, 340, 267 P.3d 485 (2011) (quoting Bering v. Share, 106 Wn.2d 212,
220, 721 P.2d 918 (1986)).
In Washington, “all property acquired during marriage is presumptively community
property, regardless of how title is held.” Dean v. Lehman, 143 Wn.2d 12, 19, 18 P.3d 523 (2001).
The burden of rebutting this presumption is on the party challenging the asset’s community
property status. In re Estate of Smith, 73 Wn.2d 629, 631, 440 P.2d 179 (1968). The presumption
can only be overcome by clear and convincing proof that the transaction falls within the scope of
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a separate property exception. In re Marriage of Kile, 186 Wn. App. 864, 876, 347 P.3d 894
(2015).
As long as separate property can be traced and identified, it will retain its characterization
as separate property. In re Marriage of Schwarz, 192 Wn. App. 180, 190, 368 P.3d 173 (2016).
Tracing does not require “an exhaustive accounting.” Id. at 217. However, if community and
separate funds are “so commingled that they may not be distinguished or apportioned,” then the
entire amount is rendered community property. Id. at 190.
We review the factual findings supporting the trial court’s characterization for substantial
evidence. Id. at 192. Based on those findings, we review de novo whether the property was
correctly characterized as community or separate. Id. However, a trial court’s mischaracterization
of property is “rarely a proper basis to reverse the court’s property distribution . . . because the
dispositive inquiry of the court’s property distribution is that the court’s decision ‘is just and
equitable under all the circumstances.’” In re Marriage of Zier, 136 Wn. App. 40, 46, 147 P.3d
624 (2006) (quoting In re Marriage of Kraft, 119 Wn.2d 438, 450, 832 P.2d 871 (1992)). “[T]he
court is required to make an equitable distribution, not an equal one.” In re Marriage of Davison,
112 Wn. App. 251, 259, 48 P.3d 358 (2002). Remand is only required where “‘(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.’” In re Marriage of Kraft, 119 Wn.2d at 449 (quoting In re Marriage
of Shannon, 55 Wn. App. 137, 142, 777 P.2d 8 (1989)).
Here, the trial court took care to write in the relevant appendices to the order whether
certain pieces of property were community or separate in character. For example, the trial court
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designated the Barberry property and the Geneos account as separate property that Geoffrey
acquired and funded before the marriage. The court noted on the appendices to its order that Ann’s
Millennium account was acquired before the marriage but it was partially funded during the
marriage.
C. Real Property Distribution
1. The Zachariasen Court home
Ann argues the trial court failed to consider RCW 26.09.080(4), which requires
consideration of where the children will live most of the time, when it awarded the family home
to Geoffrey. She argues the Zachariasen Court property is significantly closer to her place of work
and that she and the kids have friends in the neighborhood. Ann argues that awarding her the
Zachariasen Court property would leave the Kukas Loop property to Geoffrey, and this is what the
trial court should have done.
Geoffrey responds the trial court did in fact expressly consider the desirability of the
children being able to continue to live in the family home. Awarding the Zachariasen Court home
to Geoffrey was more likely to ensure that it stayed in the family, enabling the children to continue
to live there during their 50 percent residential time with Geoffrey. We agree with Geoffrey.
Under RCW 26.09.080(4), the court must consider “the desirability of awarding the family
home or the right to live therein for reasonable periods to a spouse or domestic partner with whom
the children reside the majority of the time.” We will not substitute our judgment for the trial
court’s unless there was a manifest abuse of discretion. Worthington, 73 Wn.2d at 768.
Here, Ann fails to show that the trial court failed to consider RCW 26.09.080(4). The
children’s time is evenly split between Ann and Geoffrey, and the trial court found that Geoffrey
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would be able to refinance the family home while Ann likely would be unable to. Substantial
evidence supports the trial court’s finding that Ann risks being unable to refinance, considering
her one conversation with a mortgage broker was based on her income being supplemented by the
temporary child support and spousal maintenance at that time, and she acknowledged she could
not refinance without this added income. We decline to disturb the trial court’s finding that
Geoffrey is in the best position to keep the marital home, which will allow their two daughters to
continue to live there half of the time. The benefit of giving Ann the Kukas Loop property is that
it is completely free of encumbrances. Furthermore, there is roughly equal equity in both the
Zachariasen Court and Kukas Loop properties.
We affirm the trial court’s award of the marital home to Geoffrey.
2. The Barberry Place Colorado property
The trial court’s factual findings regarding valuation of property should be reviewed under
the substantial evidence standard. In re Marriage of Soriano, 31 Wn. App. 432, 435, 643 P.2d 450
(1982). Valuation that is within the range of the evidence presented at trial is generally supported
by substantial evidence. See id.
Ann argues that the trial court erred in adopting Geoffrey’s valuations of the Barberry Place
property. She claims she provided evidence that the net value of the property was $280,859 it had
community property interest of $30,0000 and it had a separate property interest to Geoffrey of
$250,859. Ann suggests Geoffrey did not consider the recapture of depreciation when providing
his valuation. She also claims that the trial court failed to address her contribution of time and
labor to the Barberry Place property. She asks that we remand to require that the trial court give
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the marital community credit for the value of improvements the community made to the property
during the marriage. We disagree.
A reviewing court will not substitute its judgment for that of the trial court on disputed fact
issues, including the evaluation of property. Worthington, 73 Wn.2d at 762; Meeks v. Meeks, 61
Wn.2d 697, 698, 379 P.2d 982 (1963) (refusing to review a sharply disputed value placed on the
defendant’s community trucking business for the purpose of making an equitable division of the
community property). Separate property will remain separate property if it can be traced and
identified. Baker v. Baker, 80 Wn.2d 736, 745, 498 P.2d 315 (1972). “There is a presumption that
any increase in the value of separate property is likewise separate in nature, . . . ‘except to the
extent to which the other spouse can show that the increase was attributable to community
contributions.’” In re Marriage of Lindemann, 92 Wn. App. 64, 69, 960 P.2d 966 (1998) (quoting
In re Marriage of Elam, 97 Wn.2d 811, 816, 650 P.2d 213 (1982)). For example, “If the court is
persuaded by direct and positive evidence that the increase in value of separate property is
attributable to community labor or funds, the community may be equitably entitled to
reimbursement for the contributions that caused the increase in value.” Lindemann, 92 Wn. App.
at 70.
Here, the court should not substitute its judgment for that of the trial court in regard to the
valuation of the Barberry Place property. Both sides presented their competing values, and the trial
court, based on the evidence presented, found Geoffrey’s valuations to be more credible.
Substantial evidence in the record, including Geoffrey’s testimony, supports this finding.
As for Ann’s argument that the community invested resources in the Barberry Place
property, she has not supported her claim by direct and positive evidence. She has failed to
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specifically identify in the record evidence of the community funds used on the Barberry Place
repair and maintenance projects, or the amounts of these expenses. Nor has she established that
the trial court erred in declining to find the community should be credited for labor expended on
the Barberry Place property.
We affirm the trial court’s valuation and distribution of the Barberry Place property.
D. Retirement Accounts
1. Geoffrey’s Geneos account
Ann argues that the trial court erred when it found Geoffrey’s Geneos account, valued at
$72,000, to be separate property acquired prior to the marriage. She claims that Geoffrey has the
burden to establish the separate property character of the funds by clear and convincing evidence.
She states that self-serving testimony and Geoffrey’s vested distribution form from November 9,
2006, are not sufficient and that the separate funds must be traced with some degree of
particularity. She argues that remand is required since it appears that the trial court’s division of
property was dictated by a mischaracterization of the nature of the property.
Geoffrey responds that the trial court’s characterization of the Geneos account was
supported by substantial evidence. He argues that even if the trial court made an error in the
characterization of the funds, remand is not required because the trial court made a ruling based
on what would be a fair and equitable distribution and not based on the accounts’ separate or
community character. We agree with Geoffrey.
In Schwarz, the wife presented sufficient evidence tracing her initially separate property
by providing both testimony and “positive documentary evidence” showing that accounts she
owned entirely before the marriage were still maintained in separate, albeit different, accounts.
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192 Wn. App. at 205-06. The court found this was sufficient to support a characterization as
separate property, an exhaustive accounting was not required. Id. at 216-17.
Like the proof in Schwarz, Geoffrey’s testimony and documentary evidence of his
retirement balance prior to marriage was sufficient to establish the initially separate character of
the Geneos account. See id. at 194. Geoffrey presented a document that reflected a disbursement
of $72,000 from Advance Food Company shortly after the marriage. He testified the money was
deposited with American Skandia by January 2006. He also presented the Geneos account
statements to show the current balance of roughly $100,000. Exhaustive tracing was not required—
Geoffrey’s documentation was sufficient to convince a reasonable fact finder that the $72,000 was
acquired prior to marriage. Ann did not present evidence that any money earned during the
marriage was deposited into the Geneos account. Thus, there was substantial evidence to support
the trial court’s characterization of the Geneos account as separate property.
Further, even if the trial court had mischaracterized the Geneos account, Ann has failed to
show that the division of the accounts is not fair, just, and equitable or that the trial court would
have divided the accounts differently. Ann was awarded all of her separate property retirement
accounts, totaling roughly $38,000. She was also awarded $97,473.64 from Geoffrey’s
Voya/DeWafflebakker 401(k) Plan, as well as the full amount in her Millennium Trust account,
which held $75,227.85. Ann’s award included a 52 percent share of the market increase in both
parties’ accounts between the time of separation and the time of trial. Geoffrey was awarded all
funds in the Geneos account, about $100,000 and all remaining funds in the
Voya/DeWafflebakkers 401(k) Plan. The trial court divided the entirety of all retirement accounts
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so that Ann would receive 52 percent, and Ann fails to show this overall division was not fair and
equitable.
We affirm the trial court’s award of the entire Geneos account to Geoffrey.
2. Ann’s Millennium Trust account
Ann argues that the trial court’s finding that the Millennium Trust account was funded
during marriage is contradicted by evidence produced at trial, such as the summary statement that
included the rollover from Virtual Enterprises d/b/a Advanced System Group on November 27,
2020, with a balance of $83,244.53.
The Millennium Trust account balance as of September 30, 2006, one year after the
marriage, was $40,201.21. Ann states that the basic presumption that an asset acquired during
marriage is community, can be rebutted by showing through tracing that the asset used to acquire
the one in question was separate property. Ann argues that she met her burden here to show that
the Millennium Trust account was made-up of her separate retirement funds at least in part. Ann
contends she stopped making contributions to this account in January 2008, about two years after
the marriage, when she quit her job to take care of the twins.
Geoffrey responds that Ann failed to prove any traceable separate property amount and the
trial court was justified in finding the account to have been commingled to the point it should be
considered entirely community property. He further argues the overall division of the accounts
was fair and equitable and a different characterization would not have changed the trial court’s
decision. Lastly, Geoffrey argues that Ann’s own asset and debt spreadsheet characterized the
Millennium Trust account as community property, and thus, any error was invited. See Hymas v.
UAP Distrib., Inc., 167 Wn. App. 136, 148, 272 P.3d 889 (2012). We agree with Geoffrey.
18 No. 56769-5-II
Ann provided a statement for her 401(k) retirement account with her employer at the time,
Virtual Enterprises, from six months after the parties’ marriage. Ann testified that the amount in
her 401(k) account as of September 30, 2006, one year after the marriage, was $40,201.21. She
continued to make minimal contributions to that account until 2008, when she quit working.
It does not appear that Ann provided any expert testimony about how to apportion the
separate property contributed to this account prior to the marriage. See Schwarz, 192 Wn. App. at
219. Even if the trial court could have roughly apportioned part of the Millennium Trust account
as Ann’s separate property, see id., she still fails to show that the distribution was not fair, just, or
equitable or that the trial court would have divided the property differently had it apportioned the
Millennium Trust account as partially separate property. Rather, the trial court awarded the entire
Millennium Trust account to Ann, even though it found that it was entirely community property
and the court required Geoffrey to pay Ann $97,473.64 from Geoffrey’s Voya/DeWafflebakker
401(k) plan. Ann has not established that this division was inequitable.
We affirm the trial court’s division of the retirement accounts.
II. CHILD SUPPORT
We review child support decisions under the abuse of discretion standard. In re Marriage
of Fiorito, 112 Wn. App. 657, 663-64, 50 P.3d 298 (2002). The trial court’s findings will not be
disturbed on appeal if they are supported by substantial evidence. In re Marriage of Bundy, 12
Wn. App. 2d 933, 937-38, 460 P.3d 1111 (2020). “It is within the trial court’s discretion to grant
or deny a deviation and, generally, trial courts are not reversed on such decisions.” In re Marriage
of Goodell, 130 Wn. App. 381, 391, 122 P.3d 929 (2005).
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Ann argues that the trial court erred when it deviated from the standard calculation for child
support and instead awarded her a monthly child support amount of $306.88. She argues that in
granting a deviation, the court is required to consider evidence of the increased expenses for the
person seeking the deviation. She argues that Geoffrey has provided no such evidence. Ann also
argues that the court may not deviate on the basis of “increased expenses” if the deviation will
result in insufficient funds in the household receiving the support to meet the basic needs of the
child. Br. of Appellant at 14. She states that the trial court’s finding that the transfer amount of
$306.88 for two teenage children still leaves her with enough money for the children’s basic needs,
is unsupported by any evidence in the record. Geoffrey responds that Ann’s child support and
spousal maintenance awards in combination are consistent with her request to equalize the monthly
net incomes of both parties. We decline to disturb the trial court’s child support award.
“When reasons exist for deviation, the court shall exercise discretion in considering the
extent to which the factors would affect the support obligation.” RCW 26.19.075(4). The trial court
has discretion to deviate from the standard calculation based on shared residential time if the
deviation would not result in insufficient funds in the household receiving support. RCW
26.19.075(1)(d). The statute also provides:
When determining the amount of the deviation, the court shall consider evidence concerning the increased expenses to a parent making support transfer payments resulting from the significant amount of time spent with that parent and shall consider the decreased expenses, if any, to the party receiving the support resulting from the significant amount of time the child spends with the parent making the support transfer payment.
Id. Here, the children will spend equal time with each parent. Ann has failed to provide any
evidence to support a conclusion that she would have insufficient funds under the child support
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order that the trial court adopted. Here, the trial court received extensive testimony and
documentary evidence regarding the parties’ respective financial positions over the course of the
six-day trial. The trial court was deeply familiar with the incomes and expenses of the two
households. The trial court knew the value of assets and debts awarded to each. Based on Ann’s
imputed income, the trial court’s deviation, and its award of spousal maintenance, the resulting
monthly net incomes of the parties would be about $6,200 for Geoffrey and $6,080 for Ann.
Considering that the trial court roughly equalized both parties’ monthly incomes, there is
substantial evidence supporting the finding that the deviation would not leave Ann with
insufficient funds to support the children when they are living with her one half of the time.
We conclude that the trial court did not abuse its discretion in deviating from the standard
child support calculation when considering the entire context of the trial court’s decisions.
In reviewing awards or denials of attorney fees, we apply a two-part review: “we review
de novo whether there is a legal basis for awarding attorney fees by statute, under contract, or in
equity and . . . we review a discretionary decision to award or deny attorney fees and the
reasonableness of any attorney fee award for an abuse of discretion.” Gander v. Yeager, 167 Wn.
App. 638, 647, 282 P.3d 1100 (2012).
Ann asks us to reverse the trial court’s decision denying her attorney fees below and she
seeks attorney fees on appeal. However, Geoffrey notes that Ann has not assigned error to the trial
court’s denial of her request for attorney fees at trial nor does she present any argument that the
trial court abused its discretion in denying her fees. Although Ann’s argument for attorney fees is
brief, it is sufficient for us to address it even though Ann did not technically assign error to the
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trial court’s denial of attorney fees below. See State v. Olson, 126 Wn.2d 315, 319-20, 893 P.2d
629 (1995) (considering whether argument and authority were presented rather than strictly
requiring an assignment of error).
A. Request for Attorney Fees Incurred at Trial
At trial, both parties requested an award of attorney fees based on intransigence. The trial
court denied these requests. Neither party appears to assign error to the trial court’s decision not
to award fees based on intransigence or argue the trial court erred in this regard.
Ann also sought an award of attorney fees based on her need and Geoffrey’s ability to pay.
On appeal, she asks us to revisit that request. However, the trial court appropriately declined to
make such an award based on Ann receiving 52 percent of the parties’ net assets and considering
that after child support and spousal maintenance, the parties’ net monthly incomes are roughly
equal. Under these facts, the trial court did not abuse its discretion when it declined to order
Geoffrey to pay all or part of Ann’s attorney fees.
B. Request for Attorney Fees on Appeal
1. Ann’s request for attorney fees is not warranted
Ann again requests an award of attorney fees on appeal under RCW 26.09.140. In
exercising its discretion, the appellate court considers “the issues’ arguable merit on appeal and
the parties’ financial resources, balancing the financial need of the requesting party against the
other party’s ability to pay.” In re Marriage of Kim, 179 Wn. App. 232, 256, 317 P.3d 555 (2014).
We have reviewed Ann’s affidavit of financial need. We decline to award Ann attorney
fees on appeal under RCW 26.09.140.
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2. Geoffrey’s request for attorney fees is not warranted
Geoffrey asserts that because Ann’s appeal is frivolous, the court should award Geoffrey
all of his attorney fees incurred in responding under RAP 18.9. “The appellate court . . . may order
a party or counsel, . . . who uses these rules for the purpose of delay [or] files a frivolous appeal, .
. . to pay terms or compensatory damages to any other party who has been harmed.” RAP 18.9(a).
The primary inquiry under this rule is “whether, when considering the record as a whole, the appeal
is frivolous, i.e., whether it presents no debatable issues and is so devoid of merit that there is no
reasonable possibility of reversal.” Streater v. White, 26 Wn. App. 430, 434, 613 P.2d 187 (1980).
In determining whether an appeal is frivolous, the court is guided by the following
considerations:
(1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.
Id. at 434-35. Applying Streater and considering all of these factors, Ann’s claims are not so
devoid of merit as to award Geoffrey attorney fees. This case involved debatable issues upon which
reasonable minds may differ.
We decline to award attorney fees on appeal.
CONCLUSION
We affirm, and we decline to award attorney fees to either party on appeal.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, C.J. We concur:
Maxa, J.
Che, J.