Amanda Mount, Respondent-cross/appellant v. John Mount, Appellant/cross-respondent ( 2014 )


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    IN THE COURT OF APPEALS OF THE STATE OF WASH#
    I
    FiIiGT
    DIVISION II                              BY
    Miii
    In re the Marriage of:                                                         No. 43168 -8 - II
    AMANDA STARR MOUNT,
    Respondent /Cross Appellant,
    MA                                                                UNPUBLISHED OPINION
    JOHN MERRITT MOUNT,
    PENOYAR, J. —        Amanda Mount filed for dissolution of her long -
    term marriage to John
    Merritt Mount.         In light      of   Merritt'   s1 significant separate property and his greater monthly
    income, the trial court awarded Amanda the majority of the community property as well as
    spousal maintenance. The trial court also ordered Merritt to pay Amanda' s student loan debt and
    part of   her attorney fees.         Merritt appeals, arguing that the trial court erred when it ( 1) awarded
    Amanda      maintenance, (     2) denied his motion to list the family house for sale, and ( 3) ordered him
    to pay Amanda'        s$   12, 452   student   loan.    Both parties appeal the trial court' s attorney fee award
    and request     attorney fees        on appeal.      The trial court reasonably exercised its discretion when it
    awarded Amanda maintenance and ordered Merritt to pay Amanda' s student loans because
    Merritt' s income is twice Amanda' s income, Merritt has more separate property, and their
    marriage was long term. Additionally, the trial court did not err when it denied Merritt' s motion
    to list the house for sale because Merritt failed to show that he could not maintain it, the housing
    market was down, and the parties could .not work together to sell it. Finally, we affirm the trial
    court' s attorney fee award but decline to award either party attorney fees on appeal.
    1 Because the parties share the same last name, we refer to them by their preferred first names;
    we   intend   no   disrespect.
    43168 -8 -II
    FACTS
    Amanda      and   Merritt   were married      in 1988.           Amanda filed a dissolution petition on July
    15, 2010.      Both   parties are     in their       to
    mid -    -late    fifties    and   currently   employed.   Amanda earns
    3, 894 per month and Merritt earns $ 7, 634 per month. Amanda recently received a three percent
    pay cut while Merritt received a $ 10, 000 raise.
    Merritt was diagnosed with prostate cancer before the dissolution trial. At the time of the
    trial, he was treating his cancer through diet and he stated that it was not impacting his work.
    At the conclusion of the trial, the court awarded 75 percent of the community property to
    2
    Amanda      and   the remaining 25         percent   to Merritt .         The trial court awarded Merritt the proceeds
    from his    mother' s and     his friend'     s estates as   his      separate   property.      The trial court awarded the
    house to Merritt      and ordered       him to pay Amanda 75                 percent of   its equity.   The trial court also
    ordered    him to pay $ 12, 452       of   Amanda'    s graduate school          loans   and awarded    her $ 1, 500 a month
    in maintenance until Merritt can no longer work or retires. Finally, the trial court ordered Merritt
    to pay $7, 000 of Amanda' s attorney fees.
    Merritt filed     a motion    for   reconsideration.            He argued, among other things, that the trial
    court erred by characterizing one of his retirement accounts as community property, by awarding
    1, 500 per month in maintenance to Amanda, and by incorrectly calculating the amount of the
    inheritances.      He also requested that the trial court allow him to list the family house for sale.
    The trial court denied the motion for reconsideration, except as to the retirement account, which
    it   re- characterized as    Merritt'   s separate    property.           The court denied his motion to list the family
    house.
    2
    Merritt proposed this 75/ 25 division, depending on the trial court' s maintenance award.
    2
    43168 -8 -II
    Amanda also filed a motion for reconsideration, asking the trial court to award her
    additional     attorney fees for responding to Merritt'                      trial motions.
    s post -                 The trial court denied
    Amanda' s motion. Merritt appeals. Amanda cross appeals.
    ANALYSIS
    I.         STANDARD OF REVIEW
    A trial court has broad discretion to distribute property and award maintenance during a
    dissolution proceeding.             In re Marriage of Olivares, 
    69 Wash. App. 324
    , 328, 
    848 P.2d 1281
    1993),    overruled on other grounds by In re Estate of Borghi, 
    167 Wash. 2d 480
    , 
    219 P.3d 932
    2009)); In     re   Marriage of Zahm, 
    138 Wash. 2d 213
    , 226, 
    978 P.2d 498
    ( 1999).                    Accordingly, we
    review the trial court' s decisions, regarding property distribution and maintenance to determine
    unreasonable or       based   on untenable grounds or reasons.      Olivares,
    whether     they     are   manifestly
    69 Wn.     App.      at    328.   We will not retry the facts on appeal and will accept findings of fact as
    verities   if they    are supported       by   substantial evidence     in the   record.   In re Marriage of Thomas,
    
    63 Wash. App. 658
    , 660, 
    821 P.2d 1227
    ( 1991).
    II.        MAINTENANCE
    Merritt first      argues   that the trial court   erred when    it   awarded   Amanda   maintenance.   The
    trial court based its award on the differences in the parties' salaries, the amount of separate
    property,    and     the length of their       marriage.   We affirm because the trial court' s award was just
    and equitable in light of the relevant factors.
    RCW 26. 09. 090( 1) requires that the amount and duration of the maintenance award be
    just in light of the relevant factors. It provides a nonexhaustive list of factors:
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    43168 -8 -II
    a) The financial resources of the party seeking maintenance ... ;
    b) The time necessary to acquire sufficient education or training to enable the
    party seeking maintenance to find employment appropriate to his or her skill,
    interests, style of life, and other attendant circumstances;
    c) The standard of living established during the marriage ... ;
    d) The duration of the marriage ... ;
    e) The age, physical and emotional condition, and financial obligations of the
    spouse ...    seeking maintenance; and
    f) The ability     of   the   spouse ...    from whom maintenance is sought to meet his or
    her   needs and    financial      obligations while    meeting those         of   the   spouse ...   seeking
    maintenance.
    RCW 26. 09. 090( 1).         Maintenance is not merely a means of providing bare necessities; rather, it
    is a flexible tool by which the parties' standards of living maybe equalized for an appropriate
    period of   time. In    re   Marriage of Washburn, 
    101 Wash. 2d 168
    , 179, 
    677 P.2d 152
    ( 1984) ( citing
    RCW 26. 09. 090( 1)(      c), (   d)).
    Here, the trial court considered all of the factors under RCW 26. 09. 090 in awarding
    Amanda     maintenance.           The    court   found the   following   specific   factors particularly       significant: (   1)
    Merritt' s monthly income is               about    twice the   amount     of    Amanda' s monthly income, ( 2) the
    parties   had   a   long -term    marriage, (     3) that although Merritt failed to provide evidence regarding
    his cancer prognosis or treatment, the court made maintenance modifiable based on his health
    working, ( 4) Merritt        will   receive   a "   significant      amount"   of separate
    and   ability to     continue
    property and Amanda will not, and ( 5) both parties are in their mid -o -late fifties and currently
    t
    able to work. Clerk' s Papers ( CP) at 133.
    Merritt argues that the trial court made several errors when it awarded Amanda
    maintenance.         First, he contends that the disparity between the parties' monthly incomes is less
    0
    43168 -8 -II
    than it appears considering Amanda' s             potential   for    a   longer " work life."      Appellant' s Br. at 29.
    But the trial court factored Amanda' s potentially longer work life into its decision: it specifically
    considered the parties' ages and ability to continue working, and it made the maintenance subject
    to modification after Merritt retires. We see no error on this issue.
    Second, Merritt argues that the trial court failed to consider the impact of his cancer. The
    trial court considered Merritt' s cancer but found that he failed to provide evidence regarding his
    prognosis or treatment. This finding is supported by the record.
    At the hearing, Merritt testified that he was not currently undergoing treatment and that
    his   cancer    had   not yet   impacted his     work.     In his motion for reconsideration, Merritt included
    more     information regarding his diagnosis.             He stated his treatment options, noting that they had
    possible side effects        and   that   he currently had limited         sick   leave.   However, he did not include
    information about which treatment he was opting for or how treatment would affect his finances
    or    ability to   work.     Nonetheless, the trial court concluded that maintenance could be modified
    based     on    Merritt' s health     and    ability to   work.          Substantial evidence        supports the court' s
    determination.
    Third, Merritt asserts that the trial court failed to properly weigh Amanda' s education and
    ability    to      support   herself.       The receiving spouse' s capacity for self -
    support does not
    preclude a maintenance award.           
    Washburn, 101 Wash. 2d at 178
    .   Instead, the ability
    automatically
    of the spouse seeking maintenance to independently meet her needs is only one of the factors the
    court considers.        
    Washburn, 101 Wash. 2d at 178
    -79.       Here, the court found that Amanda had the
    3
    In his brief, Merritt     argues, "   Nowhere in its multiple decisions does the trial court indicate that
    it considered any of [the evidence regarding his cancer] or even that it read the medical records
    that had been        submitted."    Appellant' s Br. at 30. But the trial court stated that it considered all of
    the information Merritt submitted, including the declarations filed with his motion for
    reconsideration, and his medical records were never admitted into evidence.
    5
    43168 -8 -II
    ability to work, but it also found that Merritt' s monthly income was greater than Amanda' s,
    Merritt had      more    separate    property than Amanda,                and   their   marriage was      long   term —over 20
    years.     The trial court did not err when it awarded Amanda maintenance under these
    circumstances where her ability to support herself is only one factor in the analysis.
    Fourth, Merritt argues that the trial court inaccurately valued his separate property. In its
    oral ruling, the trial court stated that Merritt was going to be inheriting " somewhere in the nature
    to $ 200, 000" from his                        CP        247.   There
    up to $ 325, 000" from his friend
    of                                               and " close                                      mother.           at
    is   evidence     in the    record   to    support      bath   of these     figures.       The initial evidence presented
    regarding Merritt' s friend' s estate was a certified copy of his friend' s will, which provided that
    Merritt   will    receive   10   percent    of   the $ 3. 2    million estate.          Although Merritt offered evidence
    from the estate' s attorney estimating the value of the estate at $ 2.2 million, he delayed delivering
    this information to Amanda                and   the    court   and   he   admitted      that it   was   only   an   estimate.     On
    appeal, Merritt relies on the additional information about the estate filed with his motion for
    reconsideration. A trial court has discretion to consider or not consider evidence submitted with
    a motion    for   reconsideration.        Chen    v.   State, 86 Wn.       App.    183, 192, 
    937 P.2d 612
    ( 1997).             Here,
    the trial court expressed frustration at Merritt' s delay in presenting information about the estate
    and refused       to   reconsider    its initial findings.       The trial court acted within its discretion to not
    consider evidence that Merritt had access to before the initial hearing.
    The evidence also supports the trial court' s estimate regarding Merritt' s mother' s estate.
    Merritt testified that he        would     be receiving between $ 180, 000                and $   190, 000 from his mother' s
    estate.    He purposefully delayed closing her estate until after the divorce proceeding, which
    forced the court to estimate his inheritance rather than using evidence of what he actually
    received.       Even if these estimates prove to be too high, Merritt still received more separate
    0
    43168 -8 -II
    property than Amanda —he                 was        also    awarded     an $    83, 000 retirement account as his separate
    property —and          he has not shown that receiving a lower figure than the court' s estimate would
    affect his ability to pay maintenance.
    Finally, Merritt contends that the trial court erred when it determined that it had an
    obligation to place the parties in equal financial positions. But one of the goals of maintenance is
    to   equalize    the   parties'   standards of            living.    
    Washburn, 101 Wash. 2d at 179
    .   Moreover, the trial
    court considered all of the statutory factors, and there is no indication that the court gave
    improper    weight       to the   parties'    standard of           living. The trial court stated that, in addition to the
    parties' standard of living during the marriage, it considered the parties' incomes, the length of
    the    marriage,       the    parties'   separate           property,       Merritt' s    health,   and   the   parties'   ages   and
    employment. The trial court' s analysis was not unreasonable or based on untenable grounds, and
    we affirm.
    III.     HOUSE
    Merritt next argues that the trial court erred when it denied his motion to list the family
    house for      sale.    Merritt did not present evidence at trial that he was incapable of maintaining the
    house.    Further, the housing market was down and the parties were not able to work together to
    list the house for sale; accordingly, the trial court did not err when it awarded Merritt the house
    and denied his motion to list it for sale.
    At trial, Merritt testified that he was currently living in the house because Amanda
    thought    it    would       be " less disruptive"            for him while he was receiving his cancer treatment.
    Report    of    Proceedings ( RP)        at    69.        He said that he would be willing to sell the house, but he
    would     also   be willing to       keep      it    or    let Amanda        keep   it.   Amanda testified that she would be
    willing to list the house for sale, but the parties were not able to agree on how much the house
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    43168 -8 -II
    was worth.          Amanda took the           position   that the house was     worth about $ 360, 000   to $ 300, 000 and
    Merritt took the position that the house was worth about $ 250, 000.
    The trial court awarded Merritt the house, which it valued at about $280, 000, and ordered
    him to pay Amanda 75                  percent of    the equity.   Amanda opposed the post -
    trial motion to list the
    house for        sale.   The trial court determined that it would be unreasonable to force the sale of the
    house when the housing market is down and when the parties had such different ideas of the
    house' s value and had already failed to come to an agreement about selling the house outside of
    court.         It affirmed its award to Merritt, finding that he was in a better position to maintain the
    house.
    Merritt challenges the trial court' s finding that he is in a better position to maintain the
    house.         He   argues     that   his health   will make maintenance        burdensome.     At the time of the trial,
    Merritt had been             living     in   and   maintaining the house.        Although he testified that he would
    eventually have to undergo treatment, he did not provide the court with specific information
    regarding his chosen treatment and its effects. He also stated that he was delaying treatment and
    that    his diagnosis had             not yet   impacted his ability to      work.   Substantial evidence supports the
    trial court' s finding that Merritt could maintain the house.
    Moreover, Merritt acknowledged the poor state of the real estate market and the record
    establishes         that the   parties could not. agree on        listing   the house.   The trial court did not err when
    it denied Merritt' s motion to list the house. See High v. High, 
    41 Wash. 2d 811
    , 823, 
    252 P.2d 272
    195 3) (    finding that it was manifestly unreasonable for the trial court to force the sale of property
    when the value was down but could increase in the future). 4
    4
    Hopefully, the generally improving housing market will benefit the parties here, but we have no
    information on the record about that.
    E'?
    43168 -8 - II
    IV.        STUDENT LOANS
    Finally, Merritt argues that the trial court erred when it ordered him to pay a portion of
    Amanda'      s student       loans. He contends that the decision was unfair because it further reduced his
    share of     the property.             But the trial court does not have to equally distribute property and debts,
    and, here, the distribution was just and equitable considering the length and circumstances of the
    marriage and Merritt' s financial resources.
    The trial court must consider the following when distributing personal property and debts
    in   a   dissolution proceeding: ( 1) the nature             and extent of    the community property, ( 2) the nature
    and      extent   of   the    separate      property, ( 3)   the duration    of   the   marriage,    and (   4)   each   spouses'
    economic circumstances at                  the time of the property division. RCW 26. 09. 080.               The trial court is
    not required to divide property equally so long as the division is just and equitable in light of the
    relevant     factors.        In   re   Marriage of Mansour, 126 Wn.           App.      1,   14, 
    106 P.3d 768
    ( 2004).      The
    trial     court          consider          equal   education   opportunities       when      distributing    property.      In re
    may
    Marriage of Fernau, 39 Wn.                     App.   695, 705, 
    694 P.2d 1092
    ( 1984) (            quoting 
    Washburn, 101 Wash. 2d at 181
    n.4).
    The trial   court ordered          Merritt to pay Amanda' s $ 12, 452 student loan balance because ( 1)
    he has greater financial resources ( 2) and it was " fair" for Amanda to have the same opportunity
    as    Merritt,    who also received a graduate           degree   during    the   marriage.     CP at 252. This decision is
    0
    43168 -8 -II
    not unreasonable where the parties had a long term marriage, Merritt has more separate property,
    and Amanda worked to help cover living expenses while Merritt was earning his graduate
    5
    degree. We        affirm.
    V.         ATTORNEY FEES
    Merritt argues that the trial court erred when it awarded Amanda $7, 000 in attorney fees.
    Amanda argues that the trial court erred when it denied her motion for reconsideration requesting
    additional       attorney fees.         The trial court did not err when it awarded Amanda attorney fees
    because she demonstrated a financial need and Merritt had the ability to pay. The trial court also
    properly exercised its discretion when it denied Amanda' s motion for reconsideration.
    We review a trial court' s grant or denial of attorney fees and a motion for reconsideration
    to determine if the decision was manifestly unreasonable or based on untenable grounds or
    reasons.     In   re   Marriage of Freeman, 
    169 Wash. 2d 664
    , 676, 
    239 P.3d 557
    ( 2010); State ex rel.
    Carroll     v.   Junker, 
    79 Wash. 2d 12
    , 26, 
    482 P.2d 775
    ( 1971).                     In a dissolution proceeding, courts
    have discretion to              order   one    party to pay the      other   party'   s   costs   and   attorney fees.   RCW
    26. 09. 140. When awarding attorney fees, courts examine the arguable merit of the issues and the
    parties'    financial    resources.           In   re   Marriage of Griffin, 
    114 Wash. 2d 772
    , 779, 
    791 P.2d 519
    1990).
    Here, the trial        court ordered         Merritt to pay $ 7, 000   of Amanda' s attorney fees, based on
    her need and his ability to pay. Amanda filed a motion for reconsideration requesting more fees
    after   Merritt    appealed       to this     court.    The trial court denied her motion, reiterating that its award
    5 Merritt also argues that the trial court erred by suggesting that he had no authority to
    unilaterally use community funds to reimburse their son and fund their daughter' s college
    account. But Merritt admits that it is " unclear" what impact this had on the trial court' s decision.
    Appellant' s Br.  at 41.  And the trial court did not rely on Merritt' s actions regarding the
    children' s accounts to justify any of its decisions.
    10
    43168 -8 -II
    was based on the parties' respective financial positions and noting that this was the third motion
    for reconsideration and an appeal was already pending.
    As we discuss above, based on their relative incomes and separate property, Merritt had
    the ability to pay and Amanda          had the   need.      The trial court did not err when it awarded her
    attorney fees.     Additionally, the trial court did not, as Amanda argues, refuse to exercise its
    discretion to   reconsider   the   amount of   the   fees. The trial court did state that its decision on this
    motion would likely not matter in light of the pending appeal, but it made a ruling denying
    reconsideration. We affirm the trial court' s attorney fee award.
    Both     parties   request   attorney fees     on   appeal.     The trial court' s attorney fee award
    addressed   the disparities between the       parties'   incomes.   We decline to award further
    adequately
    fees.
    Affirmed.
    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.
    We concur:
    Maxa, J.
    Schindler, J.
    11