IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN RE THE MARRIAGE OF: No. 86293-6-I SHANNON MICHELLE HENERY,
Appellant, DIVISION ONE
v. UNPUBLISHED OPINION WALKER LOGAN HAGIUS,
Respondent.
CHUNG, J. — Shannon Henery and Walker Hagius finalized their
dissolution in November 2022. Among other things, the final dissolution orders
awarded real property and financial assets to each party and ordered Henery to
make an equalizing transfer payment to Hagius. Nine months later, Hagius filed a
motion to enforce the dissolution orders. Hagius sought to require Henery to sign
documents necessary to transfer ownership of real property and an individual
retirement account (IRA) awarded to him; to disburse the required transfer
payment; and to pay accrued interest. After a commissioner granted the motion
in part, but denied the request for interest, the superior court revised the
commissioner’s order and ordered Henery to transfer 100 percent of the value of
the IRA account and pay interest on the transfer payment. The superior court
declined to award attorney fees to either party. No. 86293-6-I/2
Henery appeals the superior court’s order on revision. Because Henery
fails to establish that the superior court erred, we affirm.
FACTS
The trial court entered final orders dissolving the marriage of Shannon
Henery and Walker Hagius on November 18, 2022. The court found that the
parties separated on February 5, 2021, the date Henery petitioned for
dissolution, and stated that “[a]ll property will also be valued as of this date,
including real property.” The trial court awarded to each party a parcel of real
property and provided that each party was responsible for the mortgage and
other costs associated with the real property allocated to them. Because the
assets awarded to Henery had a higher value, the court ordered her to make an
equalizing transfer payment of $203,339 to Hagius. The dissolution decree
(“decree”) reduced the transfer payment to a judgment and set the interest rate
on the judgment at 12 percent per annum.
In finding 9, the dissolution court stated, “The spouses’ community
personal property is divided equally as follows,” and listed the parties’ community
property financial assets and the party to whom each asset was awarded. The
list included Fidelity IRA account #9194, with a balance of $326,981.73, and
designated it as property awarded to Hagius, “with the net present value as of the
Date of Separation, to be divided by a Qualified Domestic Relations Order
[QDRO].” 1 The court explained in additional findings that it had previously “found
and ruled orally that whether any transfer payment would be required depended
1 In listing the Fidelity IRA and awarding it to Hagius, the order parenthetically references the supporting trial exhibit, “Ex. 77, Bal: $326,981.73.”
2 No. 86293-6-I/3
on a final valuation of the two retirement accounts awarded to [Hagius] (Fidelity
IRA #9194 and Schwab 401(k)).” Then, based on the parties’ post-trial
supplemental submissions, the court adopted final values reflected in a
spreadsheet, “Exhibit A,” attached to both the court’s findings and the decree.
The spreadsheet indicates a lower balance for the same Fidelity IRA account,
$296,982. The court explained that it had discounted the value of the account by
$30,000 “to account for the more limited liquidity” of the account 2 and used the
values in the spreadsheet to calculate the amount of the equalizing transfer
payment, $203,339. The court also ruled that each party was responsible for their
own attorney fees.
Four months after entry of the trial court’s final orders, Henery filed
motions for contempt and to restrict abusive litigation. Henery alleged that Hagius
owed child support and failed to make mortgage payments between January and
March 2023 on the real property that had been awarded, but not yet transferred,
to him. Henery reported that to mitigate the effect of Hagius’s default on her
credit score, she made three mortgage payments on Hagius’s behalf. Henery
also argued that Hagius engaged in a pattern of abusive litigation against her in
the underlying dissolution and by filing a writ of garnishment post-dissolution. The
court denied the motion to restrict abusive litigation and declined to find Hagius in
contempt.
In August 2023, nine months after entry of the final dissolution orders,
Hagius filed a motion to enforce the dissolution decree. Hagius asked the court to
2 The court also discounted the value of the Schwab 401(k) by $10,000 for the same reason. .
3 No. 86293-6-I/4
(1) order Henery to sign the quitclaim deed and tax document necessary to
transfer ownership of the real property awarded to him; (2) order disbursement of
the transfer payment awarded to him; (3) order Henery to sign the paperwork
necessary to transfer the Fidelity IRA account; (4) appoint a special master to
effectuate these transfers; and (5) award attorney fees and costs to him.
In response, Henery explained that Hagius’s default on the mortgage
prevented her from securing a line of credit to raise funds for the transfer
payment. And Henery asserted that the transfer payment should be offset by
$16,507.04, the total amount she had paid to keep the mortgage current on the
real property awarded to Hagius. As to the Fidelity IRA, Henery claimed that the
final orders provided for the transfer of a specified amount of funds from that
account, $296,982, based on the value assigned to the account in Exhibit A to
the findings and decree.
A superior court commissioner granted the motion to enforce, in part. The
commissioner ordered Henery to execute the documents required to transfer the
real property awarded to Hagius and to disburse the transfer payment, minus the
offset, reducing the transfer payment Henery owed from $203,339 to
$186,831.96. The commissioner declined to impose interest on the transfer
payment, reasoning that Hagius’s failure to pay the mortgage “impacted
[Henery’s] ability to secure the funds in a timely manner.” The commissioner also
ordered Henery to sign the documents necessary to “transfer from the Fidelity
IRA #9194, the amount of $296,982.00 as of November 18, 2022, into a Fidelity
rollover account with any gains or losses thereon from November 18, 2022
4 No. 86293-6-I/5
through the date of the transfer, for the Respondent.” Noting the discrepancy in
values for the Fidelity IRA in the court’s findings versus Exhibit A, the
commissioner determined that the value listed in Exhibit A, $296,982, should
control. The commissioner found that both parties made the litigation more
difficult than necessary, and awarded attorney fees of $2,500 to Hagius,
approximately 30 percent less than the amount he requested.
Hagius sought reconsideration. He challenged the waiver of interest and
argued that the issue of an offset was not properly before the court, absent a
cross motion. Hagius also claimed that, regardless of the value of the Fidelity IRA
at the time of separation, the dissolution court’s findings made it clear that the
court intended to award him the entire Fidelity IRA account, whatever the value
at the time of transfer.
The commissioner entered findings and conclusions on reconsideration,
rejecting Hagius’s objection to the offset and reaffirming its decision to waive
interest, noting that both parties had “unclean hands.” The commissioner
reconsidered its prior ruling as to the value of the Fidelity IRA at the time of
separation, concluding that $296,982 was the value of the account as of the date
of the final orders, November 18, 2022, and $326,981.73 was the value on
February 5, 2021, at separation. The commissioner’s order on reconsideration
directed Henery to transfer the “value of the account as of February 5, 2021,
along with any gains or losses thereon from that date through the date of
transfer” to an account in Hagius’s name.
5 No. 86293-6-I/6
Hagius sought revision by a superior court judge. Hagius again challenged
the decision to waive interest and argued that the dissolution court intended to
award him the full value of the Fidelity IRA account on the date of transfer. 3
Henery argued in response that the commissioner’s original determination
of the value of the Fidelity IRA at the time of separation, $296,982, was correct
and that the dissolution court intended to award only that specific amount to
Hagius. Both parties requested attorney fees.
The superior court heard argument on the motion and revised the
commissioner’s order, in part. The court determined that Hagius was entitled to
interest on the judgment, as provided in the decree, which accrued from
November 18, 2022, the date of the judgment, until the date of payment,
September 28, 2023. In calculating the amount of interest due, the court took into
account the offset credited toward the judgment. The superior court further ruled
that the underlying dissolution orders awarded to Hagius “100% of the Fidelity
IRA #9194 together with all investment gains and losses on that account to be
transferred through a Fidelity rollover.” The superior court declined to revise the
fees previously awarded or to award additional fees to either party.
Henery appeals.
DISCUSSION
Commissioners’ rulings are “subject to revision by the superior court.”
RCW 2.24.050. The superior court reviews a motion to revise a commissioner’s
ruling de novo based on the record presented before the commissioner. In re
3 Hagius reported that transfer of title to the property was resolved and abandoned his challenge to offset of the transfer payment.
6 No. 86293-6-I/7
Marriage of Williams, 156 Wn. App. 22, 27, 232 P.3d 573 (2010). When, as here,
“the superior court makes independent findings and conclusions, the order on
revision supersedes the commissioner’s ruling.” In re Guardianship of Knutson,
160 Wn. App. 854, 863, 250 P.3d 1072 (2011). Thus, we review the superior
court’s decision, not the commissioner’s. Williams, 156 Wn. App. at 27. We
review the superior court’s findings of fact for substantial evidence in the record
and its conclusions of law de novo. Knutson, 160 Wn. App. at 863.
We also review de novo the interpretation of the terms of dissolution
orders, applying the rules of construction applicable to statutes and contracts to
determine the intent of the dissolution court. In re Marriage of Thompson, 97 Wn.
App. 873, 877-78, 988 P.2d 499 (1999). We read and construe the court’s orders
as a whole, giving meaning and effect to every word. Stokes v. Polley, 145
Wn.2d 341, 346, 37 P.3d 1211 (2001).
I. Fidelity IRA
Henery argues that the superior court erred by interpreting the dissolution
orders to require transfer of the full value of the Fidelity IRA. Henery claims that
the different values assigned to the account in the court’s final orders amount to
a “scrivener’s error.” And relying on a footnote in Exhibit A that states that the
Fidelity IRA is a “sum-certain amount” and any post-separation deposits to the
account would be separate property, Henery claims the court intended to award
to Hagius only a specific portion of the Fidelity IRA account funds, $296,982.
But reading the orders as a whole, we conclude that the difference in the
values in the findings and on the spreadsheet was deliberate. The court’s
7 No. 86293-6-I/8
findings, substantiated by evidence in the record, establish that (1) the value of
the Fidelity IRA account at the time of separation was $326,981.73, (2) the court
awarded the entire account to Hagius, and (3) for the express purpose of
calculating the transfer payment, the court discounted the value of the account by
$30,000 due to costs associated with liquidating the asset. 4 And, as the superior
court pointed out, even if the final orders were unclear as to the value of the
account at the time of separation, that issue was ultimately irrelevant to the
determination of whether the court intended to divide the account.
There is no dispute that the purpose of assigning value to the parties’
assets was to determine the necessity and amount of a payment to equalize the
property awarded to the parties at a specific point in time. Consistent with the
findings allocating the Fidelity IRA account to the “Respondent,” Exhibit A places
the entire value assigned to the account in Hagius’s “community award” column.
The court’s orders do not suggest an intent to assign to Hagius a fixed amount or
to allocate to Hagius only a specific percentage of the account. As the superior
court observed, the “sum-certain” language in the footnote of Exhibit A was
intended to call attention to a valuation that was different from the actual balance
of the account reflected in the findings.
The revision court also observed that the language directing the parties to
execute a QDRO was ultimately unnecessary and simply corresponds to the
4 Henery filed a motion to supplement the record on appeal with three trial exhibits. Supplementation is allowable under RAP 9.10, but only if this court concludes the existing record “is not sufficiently complete to permit a decision on the merits of the issues presented for review.” Because the Fidelity IRA statement confirming the balance of the account at the time of separation is already a part of the appellate record and the other exhibits are unnecessary to reach a decision on the merits of the issues presented for review, we deny the motion.
8 No. 86293-6-I/9
provision in Exhibit A that protected Henery if she had deposited funds into the
account after separation. While Henery now contends that the record is
insufficient to determine that she had no separate property interest based on
post-separation contributions, she asserted no separate property interest below.
Moreover, in seeking to enforce the decree, Hagius expressly pointed out that
Henery did not claim to have made any post-separation deposits, and Henery did
not dispute the assertion. Nor did she object or correct the record when the
superior court indicated on the record that there were no post-separation
deposits.
Finally, Henery argues that the revision court’s interpretation of the
dissolution orders results in an unequal division of property, contrary to the
dissolution court’s intent. Again, relying on Exhibit A, she points out that the
community property awards were equal only if the balance of the transferred
Fidelity IRA account did not exceed $296,982. This argument is unavailing.
Henery fails to appreciate that Exhibit A equalized the division of property
only at a precise point in time, at least a year and nine months before any assets
were transferred. The court did not, and could not, enter any order that
guaranteed that the property values would remain static or that the property
awards would remain equal. And the record includes no evidence of the value of
any of the community property assets at the time of actual transfer. The court
explicitly stated its intent that the discounted value on Exhibit A reflected the
illiquidity of the account and was relevant only to the calculation of the transfer
payment.
9 No. 86293-6-I/10
The revision court correctly interpreted the dissolution orders to require
Henery to transfer the full value of the Fidelity IRA to Hagius.
II. Post-Judgment Interest
Citing the trial court’s “broad equitable powers in family law matters,”
Henery argues that the superior court abused its discretion when it determined
that she owed post-judgment interest and denied her equitable request to waive
the interest. In re Marriage of Morris, 176 Wn. App. 893, 903, 309 P.3d 767
(2013); In re Marriage of Farmer, 172 Wn.2d 616, 625, 259 P.3d 256 (2011)
(courts have “continuing equitable jurisdiction” in family law matters that allows
them “to grant whatever relief the facts warrant”).
Washington courts must enter judgments that comply with RCW 4.56.110,
which requires interest on judgments to accrue at the maximum rate permitted
under RCW 19.52.020—12 percent. In re Marriage of Harrington, 85 Wn. App.
613, 630-31, 935 P.2d 1357 (1997). And here, the dissolution court’s order
unambiguously imposes post-judgment interest. Henery does not argue
otherwise, and she did not appeal that aspect of the decree.
The superior court determined that, even assuming it had authority to
waive the interest ordered on an equitable basis, the record did not support the
commissioner’s conclusion that Hagius “acted with unclean hands sufficient to
warrant waiving the interest.”
Henery cited multiple reasons for the delayed transfer payment—including
rising interest rates, a corresponding downturn in the housing market that
particularly affected high-end homes, and an inability to obtain a home equity line
10 No. 86293-6-I/11
of credit due to Hagius’s failure to pay the mortgage on co-owned property.
Interest rates and Henery’s ability to sell at an optimal sale price were, of course,
outside of Hagius’s control and unrelated to his conduct. For his part, Hagius
asserted that he was relying on receipt of the transfer payment to pay the
mortgage, and because Henery did not make the payment, he had to borrow
funds to meet his living and medical expenses. Henery did not explain why she
failed to promptly transfer the real property to Hagius or pay any funds toward the
transfer payment after she ultimately sold the property awarded to her. As the
superior court noted, the commissioner’s findings that “both parties failed to meet
their underlying obligations of the Decree” and both came “to the court with
unclean hands,” undermined its apparent determination that the failure to comply
with the decree was willful, one-sided, and warranted equitable relief from the
interest imposed. 5
The relevant unchallenged provision of the dissolution court’s decree
reduced the transfer payment to a judgment including interest at 12 percent per
year. The evidence in the record supports the superior court’s determination that
Henery failed to conclusively show that Hagius was solely responsible for the
delayed transfer payment, so its decision to deny Henery’s claim for equitable
relief from interest was tenable. The superior court did not err by enforcing the
decree and ordering the payment of post-judgment interest. 6
5 The court noted that the commissioner waived interest without a request from Henery. 6 We reject Henery’s claim that the revision court (1) “inconsistently and inequitably” enforced the dissolution court’s orders, (2) failed to meet its “obligation not to participate in or facilitate abuse,” and (3) resolved the motion before it on the “narrowest technicalities available without addressing domestic abuse.” The revision court’s order was based on the terms of the unappealed final dissolution orders, not “technicalities.” Those orders included findings of abuse,
11 No. 86293-6-I/12
III. Attorney Fees Below
Henery challenges the superior court’s denial of her request for attorney
fees based on intransigence. Below, Henery requested attorney fees for having
to respond to the motion to revise, alleging that Hagius (1) had a “history of
intransigence,” (2) made it impossible for her to comply with the decree, (3)
“defaulted on child support,” (4) sought to garnish her wages, (5) “harassed” her
attorney with e-mails, and (6) “taunted” her on social media. Henery asserted
that, in contrast to Hagius’s post-judgment conduct, her post-judgment motions
were brought in “good faith.”
A court may enter an award of fees based on intransigence. In re Marriage
of Foley, 84 Wn. App. 839, 846, 930 P.2d 929 (1997), abrogated on other
grounds by In re Marriage of Wilcox, 3 Wn.3d 507, 553 P.3d 614 (2024).
“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). The party requesting fees
for intransigence must show the other party increased legal costs by, for
instance, “forcing court hearings for matters that should have been handled
without litigation.” In re Marriage of Pennamen, 135 Wn. App. 790, 807, 146 P.3d
and imposed restrictions and limitations on Hagius’s conduct in line with those findings. Although Henery now asserts that Hagius’s conduct warranted a greater offset against the equalization payment, the court granted an offset in the amount Henery requested. The suggestion that the superior court facilitated abuse or ran afoul of our state’s policies concerning domestic abuse by simply enforcing the dissolution court’s order as to the division of property and interest on the transfer payment is wholly unwarranted.
12 No. 86293-6-I/13
466 (2006). We review a decision on attorney fees for an abuse of discretion. In
re Marriage of Bobbitt, 135 Wn. App. 8, 29-30, 144 P.3d 306 (2006).
Henery does not allege that either Hagius’s motion to enforce the decree
or his motion to revise was frivolous or unnecessary. Such an argument would
fail since those motions were successful in most respects. Her only claim that is
tied to the enforcement motion is that Hagius took a “disingenuous” position with
respect to the sufficiency of the evidence supporting her claim for an offset. But,
as the commissioner noted, due to the timing of Hagius’s counsel’s appearance
in the matter, it appeared that counsel may have been unaware of the evidence
Henery previously submitted to corroborate her claim of payments on Hagius’s
behalf. Once apprised of the evidence, Hagius conceded the offset issue.
Neither party fully complied with the dissolution court’s final orders, which
led to further litigation and increased legal costs for both sides. In these
circumstances, the superior court did not abuse its broad discretion in denying
Henery’s request for fees.
IV. Attorney Fees on Appeal
Both parties request attorney fees on appeal. Henery’s request is based
on Hagius’s alleged intransigence, bad faith, and “campaign of abuse.” 7 Henery
also requests sanctions against Hagius under RAP 10.7 (authorizing sanctions
for submission of appellate brief that fails to comply with the appellate procedural
rules). Among other failures, Henery contends that Hagius’s brief fails to provide
7 Henery also references RCW 26.09.140, which permits an award of fees, after consideration of the financial resources of both parties, based on financial need. But she makes no argument with regard to her financial need and Hagius’s ability to pay, nor has she submitted a financial declaration, as required by RAP 18.1(c).
13 No. 86293-6-I/14
citations to the appellate record to support all assertions of fact, improperly
includes argument in the statement of facts, and fails to meaningfully address the
issues she raises. See RAP 10.3(a)(5), (6). And Henery speculates that,
although signed by counsel, the Respondent’s brief “primarily reflects the efforts
of Mr. Hagius himself.”
However, Henery fails to identify intransigence or abusive conduct related
to this appeal, and she has not prevailed on appeal. 8 Although neither party’s
submissions strictly complied with the Rules of Appellate Procedure, the failures
were not so egregious as to “exact[ ] a heavy and unwarranted toll on the court’s
resources” or affect our ability to “efficiently and expeditiously [ ] review the
accuracy of the factual statements made in the briefs.” Litho Color, Inc. v. Pac.
Emp’rs Ins. Co., 98 Wn. App. 286, 305-06, 991 P.2d 638 (1999). We deny
Henery’s request for fees on appeal and decline to impose sanctions under RAP
10.7.
Hagius argues that Henery’s appeal is frivolous, her opening brief was
untimely filed by two days, and she has exhibited intransigence. Hagius cites
RAP 18.1, which provides, in relevant part, that attorney fees may be granted on
appeal provided the applicable law grants a party the right to recover appellate
fees. To the extent that Hagius seeks an award of fees as a sanction for filing a
frivolous appeal, we deny the request because Hagius fails to identify authority to
support it. Boyle v. Leech, 7 Wn. App. 2d 535, 542, 436 P.3d 393 (2019) (RAP
8 While Respondent’s brief lacks consistent citations to the record and includes argumentative assertions in its statements of fact, for her part, Appellant’s brief also includes nonconforming citations to the record, as well as extensive discussion of facts that are not relevant to the procedure and issues presented for review. See RAP 10.4(f), (g).
14 No. 86293-6-I/15
18.1 requires more than a bald request; a party must provide argument and
citation to authority to advise the court of the appropriate grounds to support an
award). The essence of Hagius’s claim of intransigence is that Henery’s appeal
lacks merit, but we do not conclude that the appeal is wholly devoid of merit or
that Henery was intransigent for pursuing it.
We affirm the superior court’s order on revision and decline to award
attorney fees on appeal to either party.
WE CONCUR: