Marriage Of Kara Underwood v. Robert Underwood ( 2014 )

Y "~ I ED
RT OF APPEALS
fV IOtaiTr
r_
IN THE COURT OF APPEALS OF THE STATE OF WASHIl u
STATE OF WASHING T O•I
DIVISION II
KARA UNDERWOOD, No. 44068 -7 -II
Respondent,
v.
ROBERT UNDERWOOD, PART -
PUBLISHED OPINION
Appellant.
MAXA, J. — Robert Underwood appeals multiple trial court orders entered in proceedings
related to the dissolution of his marriage to Kara Underwood. We hold that the trial court erred
in allowing the parties' two teenage children to determine the amount of their residential time
with Robert' without supporting that decision with appropriate findings. In the unpublished
portion of this opinion we address the remainder of Robert' s arguments. We affirm in part,
reverse in part, and remand for further proceedings. We also award Kara her attorney fees on
appeal.
FACTS
Kara and Robert Underwood married in Montana in 1991. They have two children. In
2010, Kara petitioned for dissolution of her marriage to Robert. At the time, their older child
was 14 and their younger child was 12. After a bench trial, the trial court entered a final
parenting plan that allowed the children to decide whether Robert would have residential time
with them. The trial court stated:
1
The parties' first names are used for clarity. By using first names, we mean no disrespect.
No. 44068 -7 -II
T] he [ children] are mature and intelligent. Due to this, along with the age of the
children, the residential time between [ them] and their father in the future shall be
based on the desires of the [ children]. At present they have no desire to have
contact with their father. The court will honor their wishes. They will be allowed
to have contact with their father and residential time if they later cho[ o] se to.
Clerk' s Papers ( CP) at 35. Robert appeals this ruling, as well as several other trial court orders
addressed in the unpublished portion of this opinion.
ANALYSIS
We review a trial court' s parenting plan for abuse of discretion. In re Marriage of
Katare, 175 Wn.2d 23, 35, 283 P. 3d 546 ( 2012), cert. denied 133 S. Ct. 889 ( 2013). A trial court
abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or
untenable reasons. Katare, 175 Wn.2d at 35.
Robert argues that the trial court abused its discretion when it allowed the children to
decide whether he would receive any residential time with them because this ruling effectively
eliminated his residential time with them. We hold that although under certain circumstances
and in its discretion the trial court may allow a child to determine the amount of residential time .
with the non- custodial parent, it may doso only based on appropriate findings Because the trial
court did not make adequate findings supporting its decision here, we must remand for
reconsideration of this issue.
The trial court did not expressly order the elimination of Robert' s residential time with
the children. However, it acknowledged that the children did not desire to have contact with
their father at that time. As a result, the trial court knew that its parenting plan likely would
result in the elimination of Robert' s residential time for the foreseeable future. The question here
is whether the trial court had the discretion to allow the children to detemiine the amount of their
2
No. 44068 -7 -II
residential time with Robert, knowing that this decision effectively would eliminate Robert' s
residential time with them.
Although the trial court did not explain the basis for its ruling on residential time, it
apparently viewed its order as a limitation on residential time justified by its findings under
RCW 26. 09. 191( 2) and ( 3). RCW 26. 09. 191( 2)( a) requires limitation of residential time if the
parent has engaged in certain conduct. The trial court determined that Robert had engaged in
two types of conduct referenced in the statute: a history of acts of domestic violence as defined
in RCW 26. 50. 010( 1) and emotional abuse of a child. But RCW 26. 09. 191( 2)( a) does not give
the trial court authority to eliminate residential time. That authority is granted by other
subsections of RCW 26. 09. 191.
RCW 26. 09. 191( 2)( m)( i), for example, provides:
If the court expressly finds based on the evidence that limitations on the residential
time with the child will not adequately protect the child from the harm or abuse
that could result if the child has contact with the parent requesting residential time,
the court shall restrain the parent requesting residential time from all contact with
the child.
Thereis no question here that express findings regarding protecting the children from harm or
abuse would have been required if the trial court had explicitly eliminated Robert' s residential
time under RCW 26. 09. 191( 2)( m)( i), and that the trial court made no such findings.
A different subsection, RCW 26. 09. 191( 3), authorizes a trial court to completely preclude
a parent' s residential time if certain factors exist. The trial court found three of these factors
present in this case: ( 1) a long -term emotional or physical impairment that interferes with the
performance of parenting functions as defined in RCW 26. 09. 004, ( 2) the absence or substantial
impairment of emotional ties between the parent and child, and ( 3) the abusive use of conflict by
3
No. 44068 -7 -I1
the parent that has damaged the children' s psychological development. Based on these findings,
the trial court had discretionary authority under RCW 26. 09. 191( 3) to enter an order that
effectively eliminated Robert' s residential time with the children.
However, the trial court' s exercise of discretion to essentially eliminate a parent' s
residential time must be exercised in the context of other important considerations. First,
the legislature has expressed a policy favoring maintaining relationships between parents
and children when setting a residential schedule in a dissolution action. RCW 26. 09.002
provides that "[ t] he state recognizes the fundamental importance of the parent -child
relationship to the welfare of the child, and that the relationship between the child and
each parent should be fostered unless inconsistent with the child' s best interests." Further,
RCW 26. 09. 187( 3)( a) provides that the trial court should make residential provisions for
children that " encourage each parent to maintain a loving, stable, and nurturing
relationship with the child." The trial court must consider these policy directives before
effectively eliminating residential time based solely on RCW 26. 09. 191( 3) factors.
Second, parents have a fundamental liberty interest in the " care, custody and management
of their children." In re Dependency of J.H., 117 Wn.2d 460, 473, 815 P. 2d 1380 ( 1991). A trial
court also must consider this liberty interest before effectively eliminating a parent' s residential
time with his or her children based solely on the RCW 26.09. 191( 3) factors.
Because of these compelling interests in protecting a parent' s residential time with his or
her children, we hold that ( 1) an order allowing a child to decide whether to have any residential
time with the non -custodial parent based solely on the RCW 26. 09. 191( 3) factors should be
reserved for situations where the trial court articulates specific reasons for such an order and ( 2)
4
No. 44068 -7 -II
before allowing a child to decide whether to have any residential time with the non -custodial
parent based solely on the RCW 26.09. 191( 3) factors, the trial court must enter detailed findings
supporting and providing the basis for its decision.
Here, the trial court' s only finding was that the children were " mature and intelligent."
The trial court also made a non -specific reference to the ages of the children, 15 and 12. But the
trial court did not explain why these children' s maturity, intelligence, and ages supported its
decision. The trial court also did not explain why the RCW 26. 09. 191( 3) factors supported
effectively eliminating Robert' s residential time. Finally, despite their age difference, the trial
court did not make specific findings regarding each child individually. The trial court' s minimal
statements on this issue were insufficient to support its decision to allow the children to decide
whether to have any residential time with Robert.
We recognize that one of the children is now over the age of 18 and no longer is subject
to the parenting plan, and that the second child is now 16. In addition, over 18 months have
passed since the trial court entered its parenting plan and circumstances may have changed.
Accordingly, we remand this matter to the trial court for reconsideration of this residential time
issue and a determination of whether it is still appropriate to allow the remaining minor child to
decide whether to have any residential time with Robert. If the trial court again allows the child
to decide whether to have residential time with Robert, it must enter appropriate findings
supporting and providing a basis for that determination.
We consider Robert' s remaining arguments in the unpublished portion of this opinion.
We affirm in part, reverse in part, and remand for further proceedings consistent with this
opinion.
No. 44068 -741
A majority of the panel having determined that only the foregoing portion of this opinion
will be printed in the Washington Appellate Reports and that the remainder shall be filed for
public record in accordance with RCW 2. 06. 040, it is so ordered.
In the unpublished portion of this opinion, we hold that
1) Robert consented to jurisdiction over the division of his military pension under the
Uniform Services Former Spouses' Protection Act (USFSPA), 10 U. S. C. § 1408( c)( 1), because
he admitted jurisdiction in his answer to the dissolution petition and requested affirmative relief;
2) any violation of the stay entered under the Servicemembers Civil Relief Act (SCRA), 50
U. S. C. App. § 522, was harmless error;
3) the trial court improperly found that Robert' s acts of financial and emotional exploitation
were domestic violence for purposes of RCW 26. 09. 191( 2), but the record supported a finding
that Robert engaged in domestic violence;
4) the trial court erred in failing to make the required findings to waive relocation notice
2;
requirements under RCW 26. 09. 460( 4)
5) the provision in the restraining order restricting Robert' s use of a firearm was proper
under 18 U.S. C. § 922( g)( 8) because he was subject to an order restraining him from harassing,
stalking, or threatening an intimate partner;
6) the trial court inappropriately relied on evidence of lost profits from a failed property
transaction when awarding Kara a lien, but correctly determined that Kara had a community
interest in the parties' real property on which the lien was placed;
2
We do not address other restrictions in the parenting plan because Robert failed to assign error
to those portions of the plan.
6
No. 44068 -7 -II
7) requiring Robert to name Kara as the beneficiary of the survivor benefit plan and to
maintain life insurance did not amount to a double recovery of retirement benefits because the
life insurance also secured child support and other community obligations;
8) the trial court did not abuse its discretion in not considering Robert' s cost of selling
property and requiring him to pay Kara' s separate credit card debt;
9) sufficient evidence regarding the parties' needs and abilities to pay supported the trial
court' s maintenance award;
10) the trial court erred in awarding Kara lifetime maintenance of $1. 00 per month as a
placeholder to retain jurisdiction; and
11) the evidence supporting the trial court' s maintenance award regarding need and ability to
pay supports the trial court' s attorney fee award to Kara.
We also award Kara her attorney fees on appeal.
ADDITIONAL FACTS
Robert was a member of the military and was stationed in multiple locations during the
marriage. Kara and the children frequently moved with him. The parties lived in Washington
for certain portions of this time.
Property Acquisition
In 1995,. Kara and Robert agreed to purchase property in Montana from Robert' s
grandparents and began making monthly payments. After Robert' s grandparents died in 2005,
the parties realized that the property was part of Robert' s family trust and the parties sued the
trust to gain access to the property. The result was that the trust was dissolved; the trust
property, including the property the parties had supposedly purchased, was sold; the parties were
7
No. 44068 -7 -II
refunded the money they had paid for the property; and Robert received a payment for his share
of the trust.
Using Robert' s payment from the trust and proceeds from the sale of a community
property home in Steilacoom, the parties purchased two parcels of property in Cheney,
Washington. One of the properties was secured by a mortgage that the parties paid with joint
earnings during the marriage. The parties completed an extensive remodel on the home on this
property, which they paid for through a home equity line of credit that they repaid out ofjoint
earnings. Although the parties rented out the other Cheney property, the rental income did not
cover the property' s expenses, and the uncovered expenses were paid out of community funds.
Kara performed physical labor on this rented property and managed the property.
In 2008, the parties sold one of the Cheney properties and used the proceeds to purchase
property in Montana. The parties took out a mortgage on the Montana property and made the
payments out ofjoint earnings. The parties also paid all of the property' s expenses out ofjoint
earnings and made alterations and repairs to the property.
Dissolution Proceedings
In 2010, while the parties and the children were living in Naples, Italy, the parties
decided to separate. Kara and the children planned to move to Tacoma in June, but they
returned to the United States in February because, according to Kara, Robert had been
emotionally abusing and exercising control over her and the children that had become
unbearable." Report of Proceedings ( RP) at 35. Before Kara was able to leave, Robert reported
all of her credit cards as stolen and took her passport. Kara said she was " basically being held
prisoner there." RP at 36.
8
No. 44068 -7 -I1
On March 25, 2010, Kara petitioned for dissolution in Pierce County Superior Court. On
June 15, the trial court entered a temporary parenting plan under which the children would reside
with Kara but would spend every other weekend and every Wednesday with Robert when he
resided near the children. If Robert did not reside near the children, he would be entitled to
reasonable residential time with them upon giving two weeks' notice to Kara. The trial court
also entered orders for child support, maintenance, attorney fees, appointment of a guardian ad
litem, tax exemptions, and disposition of the Montana property.
On September 10, Robert moved to vacate these June 15 orders. He made extensive
arguments challenging the orders, including a claim that the trial court did not have jurisdiction
over him under the USFSPA because he was on active military duty in Italy at the time the
orders were entered and was a resident of Montana. The trial court determined that it had
jurisdiction over the dissolution.
In November, Robert was notified that he would be deployed to Afghanistan until August
2011. On December 27, he moved to stay the dissolution proceedings under the SCRA because
his ability to defend the action was materially affected by his deployment. The trial court
granted the motion and ordered that the proceedings be stayed until. September 30, 2011. On
July 27, Robert moved to lift the stay because he had retained an attorney in the United States.
The trial court granted the motion and directed the clerk to issue a new case schedule.
Final Resolution
The trial court concluded that it had jurisdiction over Robert because the parties lived in
Washington during their marriage and because Kara continued to reside in Washington. On
September 14, after a bench trial, the trial court issued the following orders: ( 1) a permanent
9
No. 44068 -7 -II
restraining order against Robert that also prohibited him from possessing a firearm, ( 2) a final
parenting plan, ( 3) a final order of child support, ( 4) a decree of dissolution, and ( 5) findings of
fact and conclusions of law. The trial court ordered Robert to pay Kara' s costs and attorney fees,
totaling $30, 000. Robert appeals.
ANALYSIS
A. JURISDICTION OVER MILITARY PENSION
Robert argues that the trial court did not have jurisdiction over the division of his military
pension under the Uniform Services Former Spouses' Protection Act (USFSPA), 10 U. S. C. §
1408( c)( 1), because as of the date of dissolution he neither resided nor was domiciled in
Washington. We hold that Robert consented to jurisdiction in Washington, and therefore cannot
argue otherwise on appeal.
1. Statutory Framework
When the underlying facts are undisputed, whether a trial court has jurisdiction is a
question of law, which we review de novo. Conom v. Snohomish County, 155 Wn.2d 154, 157,
118 P. 3d 344 ( 2005) ( subject matter jurisdiction); Lewis v. Bourn, 1-19 Wn.2d 667; 669, 835 P. 2d
221 ( 1992) ( personal jurisdiction). We review Robert' s jurisdictional challenge here under the
specific terms of the USFSPA because the federal statute generally preempts state rules
regarding jurisdiction when military pensions are concerned. U.S. CONST. art. VI, cl. 2; see also
In re Marriage ofBooker, 833 P. 2d 734, 739 ( Colo. 1992).
The trial court' s authority to divide Robert' s military pension derives from the USFSPA.
In re Marriage of Peck, 82 Wn. App. 809, 813 -14, 920 P. 2d 236 ( 1996). Under the USFSPA,
state courts may treat certain military retirement pay as community property subject to division
10
No. 44068 -7 -II
in dissolution actions. 10 U. S. C. § 1408( c)( 1); In re Marriage ofJennings, 138 Wn.2d 612, 622,
980 P. 2d 1248 ( 1999). For military retirement pay to be before the court in a dissolution action,
state courts must obtain jurisdiction over military members in one of the ways enumerated in 10
U. S. C. § 1408( c)( 4). Under 10 U. S. C. § 1408( c)( 4), a trial court has jurisdiction over the
disposable retired or retainer pay of a service member by reason of: "( A) his residence, other
than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in
the territorial jurisdiction of the court, or ( C) his consent to the jurisdiction of the court."
2. Consent to Jurisdiction
Kara argues that Robert consented to the court' s jurisdiction in Washington in his
response to her petition for dissolution. Robert argues that he did not consent to jurisdiction
because he objected to jurisdiction in his motion to vacate the trial court' s temporary parenting
plan and related orders. We agree with Kara that Robert consented to jurisdiction. .
Consent to jurisdiction for the purposes of the USFSPA may be implied by a military
service member' s general appearance in court. Peck; 82 Wn. App. at 814. Even where the
service member has objected to personal jurisdiction " `` he may waive the defense of lack of
jurisdiction by seeking affirmative relief, thereby invoking the jurisdiction of the court.' " Peck,
82 Wn. App. at 814 ( quoting In re Marriage ofParks, 48 Wn. App. 166, 170, 737 P. 2d 13163
1987)).
Here, in paragraph 1. 7 of Kara' s petition for dissolution, she alleged that the trial court
had jurisdiction over Robert because she and Robert " lived in Washington during their marriage
3 In Peck, we found no consent when the service member asserted in his answer that the court did
not have jurisdiction and continued to contest jurisdiction in later pleadings. 82 Wn. App. at
814 -15.
No. 44068 -7 -II
and [ she] continues to reside ... in this state." CP at 2. In his June 9, 2010 response to the
petition, Robert admitted this assertion in paragraph 1. 7. He also requested affirmative relief —
that the trial court enter a dissolution decree, approve his parenting plan, determine support for
the children under the child support schedule, dispose of his property and liabilities according to
his proposal, and award him tax exemptions for the children. And Robert did not contest
jurisdiction until over five months after Kara filed the petition for dissolution and almost three
months after the trial court entered orders unfavorable to him. These actions constitute Robert' s
consent to jurisdiction in the Washington courts.
Robert argues that he did not consent to jurisdiction because he directed his attorney to
contest jurisdiction and his attorney failed to comply with his request. But regardless of whether
this assertion is true, unlike in Peck Robert also requested multiple forms of affirmative relief in
his answer. He then failed to bring his jurisdictional challenge to the trial court' s attention until
three months after the trial court entered orders unfavorable to him. That Robert later claimed
his attorney acted contrary to his wishes in failing to object to jurisdiction in his answer does not
negate Robert' s demonstrating consentto jurisdiction in Washington by requesting affirmative
relief in the dissolution action and waiting until the court had entered substantive orders before
4
contesting jurisdiction.
B. STAY UNDER THE SCRA
Robert argues that the trial court violated his due process rights when it granted Kara' s
motion to limit his parental rights during a stay under the Servicemembers Civil Relief Act
4
Kara also argues that the trial court had jurisdiction over Robert under Washington' s long -arm
statute, RCW 4. 28. 185. Because we hold that Robert consented to jurisdiction, we need not
address this issue. We also need not address whether Washington was Robert' s residence or
domicile under the USFSPA.
12
No. 44068 -7 -II
SCRA), 50 U. S. C. App. § 522. We hold that to the extent the trial court did violate the stay, any
violation was harmless.
Under the SCRA, a service member may obtain a stay "[ alt any stage before final
judgment in a civil action or proceeding." 50 U.S. C. App. § 522( b)( 1). The purpose of the
SCRA " `` is to suspend enforcement of civil liabilities of persons in the military service of the
United States in order to enable such persons to devote their entire energy to the defense needs of
the Nation.' " In re Marriage ofHerridge, 169 Wn. App. 290, 297, 279 P. 3d 956 ( 2012)
quoting Engstrom v. First Nat' l Bank of Eagle Lake, 47 F. 3d 1459, 1462 ( 5th Cir. 1995)); see
also 50 U. S. C. App. § 502( 2) ( purpose of SCRA is " to provide for the temporary suspension of
judicial and administrative proceedings and transactions that may adversely affect the civil rights
of servicemembers during their military service "). The provisions of the SCRA are to be
liberally construed. Herridge, 169 Wn. App. at 297. But the SCRA " `` is not to be used as a
sword against persons with legitimate claims,' and a court must give `` equitable consideration of
the rights of parties to the end that their respective interests may be properly conserved.' "
Herridg e , 169 Wh. Ap. -.- 197 ( quoting Engstrom,
p at F.3d at 1462)
Here, Robert moved for a stay of proceedings under the SCRA before he was deployed to
Afghanistan. On January 6, 2011, the trial court granted the motion and ordered that proceedings
be stayed until September 30, 2011. But on March 31, Kara moved for an order requiring Robert
to undergo a mental health evaluation and requiring any residential time with Robert to take
place in Pierce County until the mental health evaluation had been completed. On April 15, the
trial court continued the motion for a mental health evaluation until Robert was available or
when the stay was lifted, whichever was sooner. The trial court further ruled, " Prior to Robert . .
13
No. 44068 -7 -II
exercising any residential time with the children of this marriage, [ Kara]' s motion for a mental
health evaluation shall be heard." CP at 151.
Robert claims that the trial court violated the stay because it restricted his residential time
with the children pending the hearing on whether a mental health evaluation should be ordered.
However, Robert fails to show how this restriction on his residential time prejudiced him. The
trial court restricted Robert' s residential time with the children on April 15 pending his
availability for a hearing on the necessity of a mental health evaluation. But Robert was out of
the country at that time. And even though Robert did not have a mental health evaluation, when
Robert returned to Washington the trial court awarded him residential time with the children for
four days beginning on June 24. The court further ordered that if the visits went well, Robert
would have residential time with the children in Montana from June 28 until July 8, 2011. These
visits took place. Robert does not allege that he planned or was available to see the children
between the date the trial court restricted residential time, April 15, and the date his residential
time was restored, June 23. Therefore, Robert has failed to show how the trial court' s limitation
on his residential time with the children between April 15 and June 23, pending the mental health
hearing, prejudiced him.
We reverse only when an error prejudices a party. Saleemi v. Doctor' s Assocs., Inc., 176
Wn.2d 368, 380, 292 P. 3d 108 ( 2013). Because the trial court' s temporary departure from the
5
parenting plan during the stay did not prejudice Robert, we hold that any error was harmless.
5
Robert also argues that after the stay was lifted, he had " extreme difficulty" responding to
motions to re- determine temporary orders, to compel discovery, and to gain access to property.
But Robert fails to show how the trial court violated the SCRA by allowing the case to proceed
after the stay was lifted.
14
No. 44068 -7 -II
C. PARENTING PLAN
Robert challenges multiple provisions in the parenting plan, arguing that ( 1) there was
insufficient evidence supporting restrictions on his residential time under RCW 26. 09. 191( 2), ( 2)
the trial court abused its discretion when it allowed Kara to relocate with the children and waived
notice requirements under RCW 26. 09. 430 -.460 and RCW 26. 09. 520, and ( 3) the trial court
abused its discretion when it restricted the children' s contact with Robert' s family members and
restricted him from possessing pornographic material within the children' s sight.
1. Standard of Review
As noted above, we review a trial court' s parenting plan for abuse of discretion. Katare
II, 175 Wn.2d at 35. We review findings of fact for substantial evidence, which is evidence
sufficient to persuade a fair -
minded person of the finding' s truth. Katare II, 175 Wn.2d at 35.
We do not retry the facts on appeal. In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P. 2d
1227 ( 1991). Therefore, we do not review the trial court' s credibility determinations or weigh
evidence. In re Marriage ofMeredith, 148 Wn. App. 887, 891 n. 1, 201 P. 3d 1056 ( 2009).
Unchallenged findings of fact are verities on appeal In re Marriage ofFiorito, 112 Wn. App.
657, 665, 50 P. 3d 298 ( 2002).
2. Limitation on Residential Time under RCW 26. 09. 191
Robert argues that the trial court abused its discretion when it limited his residential time
based on RCW 26. 09. 191. We disagree.
a. Legal Principles
Decisions on residential provisions are based on the child' s best interests, as found at the
time of trial. RCW 26. 09. 187( 3)( a); In re Marriage ofLittlefield, 133 Wn.2d 39, 52, 940 P. 2d
15No. 44068 -7 -II
1362 ( 1997). Because the trial court has a unique opportunity to observe the parties, we are
extremely reluctant to disturb child placement dispositions.' " In re Parentage ofSchroeder,
106 Wn. App. 343, 349, 22 P. 3d 1280 ( 2001) ( quoting In re Marriage ofSchneider, 82 Wn. App.
471, 476, 918 P. 2d 543 ( 1996)).
Generally, when creating a permanent parenting plan in a dissolution action, courts will
set a residential schedule for the children based on certain statutory considerations. See RCW
26. 09. 187( 3). But the statute also provides certain factors that, if present, either impose a
mandatory duty on the court to limit residential time ( RCW 26. 09. 191( 2)) or permit the trial
court to do so within its discretion (RCW 26. 09. 191( 3)). In re Marriage of Watson, 132 Wn.
App. 222, 232, 130 P. 3d 915 ( 2006). "[ A]ny limitations or restrictions imposed must be
reasonably calculated to address the identified harm." In re Marriage of Katare ( Katare I), 125
Wn. App. 813, 826, 105 P. 3d 44 ( 2004).
If the trial court finds that one of the parents has engaged in certain conduct specified in
RCW 26. 09. 191( 2)( a), the trial court must limit that parent' s residential time. Watson, 132 Wn.
App. at 231 -32; see also RCW 26. 09.187( 3). Two of those limiting criteria are that the parent
has engaged in a history of acts of domestic violence as defined in RCW 26. 50. 010( 1) and
emotional abuse of a child. RCW 26. 09. 191( 2)( a).
If the trial court finds the existence of certain other factors under RCW 26. 09. 191( 3), the
trial court may limit or preclude any provision in the parenting plan if the court finds that "[ a]
parent' s involvement or conduct may have an adverse effect on the child' s best interests."
Watson, 132 Wn. App. at 232. Three of these factors are:
b) A long - erm emotional or physical impairment which interferes with the
t
parent' s performance of parenting functions as defined in RCW 26. 09. 004;
16
No. 44068 -7 -II
d) The absence or substantial impairment of emotional ties between the parent
and the child; [ and]
e) The abusive use of conflict by the parent which creates the danger of serious
damage to the child' s psychological development.
RCW 26. 09. 191( 3).
b. Finding of Domestic Violence
The trial court concluded that Robert' s residential time with the children should be
limited under RCW 26. 09. 191( 2)( a) because he " engaged in acts of domestic violence by
financial and emotional exploitation." CP at 34. Robert argues that the trial court erred when it
defined financial and emotional exploitation as domestic violence because it does not appear in
the definition of domestic violence in RCW 26. 50. 010( 1). We agree, but affirm the trial court' s
finding because there was other sufficient evidence of domestic violence.
Whether financial and emotional exploitation falls under the definition of domestic
violence in RCW 26. 50. 010( 1) is a matter of statutory interpretation, a question of law that we
review de novo. Advanced Silicon Materials, LLC v. Grant County, 156 Wn.2d 84, 89, 124 P. 3d
294 ( 2005). The primary goal of statutory interpretation is to ascertain and give effect to the
legislature' s intent. Dep 't of Ecology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P. 3d 42002). "[ I]f the statute' s meaning is plain on its face, then the court must give effect to that
plain meaning as an expression of legislative intent." Campbell & Gwinn, 146 Wn.2d at 9 - 10.
A] n unambiguous statute is not subject to judicial construction." Kilian v. Atkinson, 147
Wn.2d 16, 20, 50 P. 3d 638 ( 2002). " A statute is ambiguous if it can be reasonably interpreted in
more than one way, but it is not ambiguous simply because different interpretations are
conceivable." Kilian, 147 Wn.2d at 20 -21.
17
No. 44068 -7 -II
RCW 26. 50. 010( 1) defines " domestic violence" as "[ p] hysical harm, bodily injury,
assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between
family or household members." RCW 26. 50. 010( 1) is not ambiguous and therefore its meaning
is to be derived from the plain language of the statute alone. Neilson ex rel Crump v. Blanchette,
149 Wn. App. 111, 116, 201 P. 3d 1089 ( 2009). The plain language of this statute does not
include " financial and emotional exploitation." Moreover, there is no authority supporting such
a reading. Accordingly, the trial court erred when it determined that Robert had engaged in
domestic violence because he had engaged in financial and emotional exploitation.
Even though the trial court erred in this regard, we can affirm a trial court' s ruling on any
basis supported by the record. In re Marriage ofRideout, 150 Wn.2d 337, 358, 77 P. 3d 11742003). Here, the record supports a finding that Robert engaged in domestic violence because he
inflicted " fear of imminent physical harm, bodily injury or assault." RCW 26. 50. 010( 1). Kara
testified that after Robert filed for divorce in 2006, he ran his truck into her moving van when
she was trying to move her things out of the house and he threatened to kill a man, and she had a
restraining order entered againsthim because of the incident. Kara also testified that during their
marriage Robert " made me pay for a mistake that I made in the marriage, and that included an all
night interrogation." RP at 208. In response to a question about whether Robert was an
intimidating person, Kara responded, " When someone is posturing over you, spitting in your
face, keeping you up all night long, throwing t[h] ings through windows, has weapons, is a ranger
trained in the military, yes, he' s a threatening person, intimidating person." RP at 207 -08.
18
No. 44068 -7 -II
In 2012, Robert was charged with felony harassment for allegedly hiring a hit man to kill
Kara6. Kara testified that after hearing that Robert had threatened to have her killed, she feared .
for her safety and " absolutely was in fear of my life." RP at 202 -03. She further testified, " I had
my concerns about what [ Robert] was going to do when he came here, based on his threats to me
via email, saying I would pay. That when he got there, things were going to be different." RP at
203. For two years during the parties' separation, Robert sent threatening communications to
Kara. Kara testified that "[ a] fter two years of hearing that I was going to pay when he returned,
he was returning the following month and I was very concerned, still am, about his state of mind
and what he will do. RP at 206..
There is ample evidence in the record that Robert had engaged in a history of domestic
violence by inflicting fear of imminent physical harm, bodily injury, or assault. RCW
26. 50. 010( 1). Nevertheless, the trial court made no findings regarding Robert' s infliction of fear
of imminent harm. In Katare I, Division One of this court ruled that the trial court must make
express findings under RCW 26. 09. 191 in order to impose limitations in a parenting plan. 125
Wn. App. at 826. However, our Supreme Court recently clarified that -he holding in Katare
t
was that " restrictions entered in a parenting plan pursuant to RCW 26.09.191( 3) must be
supported by an express finding that the parent' s conduct is adverse to the best interest of the
child." In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P. 3d 546 ( 2012), cert. denied 133 S.
Ct. 889 ( Katare II), 175 Wn.2d at 32 ( emphasis added). The court in Katare II further stated that
the court in Katare I remanded to the trial court to resolve an ambiguity created by the trial
court' s finding that RCW 26. 09. 191( 3) did not apply. 175 Wn.2d at 32.
6 This harassment charge ultimately was dismissed.
19
No. 44068 -7 -II
Here, the trial court' s restriction on residential time due to domestic violence was a
limiting factor under RCW 26. 09. 191( 2)( a), not RCW 26. 09. 191( 3). And here, unlike in Katare
I, there is no ambiguity in the trial court' s ruling. The trial court found that Robert had a history
of domestic violence. That finding is supported by the record. Therefore, the rule in Katare I is
inapplicable here and does not change the rule that we may affirm on any basis supported by the
record.
Although the trial court erred in ruling that financial and emotional exploitation
constituted domestic violence, we affirm the trial court' s finding of domestic violence based on
evidence that Robert inflicted fear of imminent physical harm, bodily injury, or assault.
c. Emotional Abuse of a Child
The trial court also stated that its decision to limit residential time was based on
emotional abuse of a child, which is another mandatory limiting factor under RCW 26. 09. 191
2). The trial court found that Robert " has been abusive to his wife and children. He has bullied
and interrogated them, resulting in their desire to have no contact with him." CP at 34. Robert
does not assign error to this funding. Accordingly, it is a verity on appeal. Fiorito, 112. Wh.
App. at 665.
Because the trial court found that Robert emotionally abused the children, it was required
to impose limitations on his residential time under RCW 26. 09. 191( 2). Accordingly, even if the
trial court erroneously defined " domestic violence," any error the trial court made was harmless
because the trial court nevertheless was required to limit Robert' s residential time based on
emotional abuse of a child.
20
No. 44068 -7 -II
d. Factors under RCW 26. 09. 191( 3)
The trial court concluded that Robert' s residential time could be limited because his
involvement with the children may have an adverse effect on their best interests based on the
existence of the following factors set forth in RCW 26. 09. 191( 3): ( 1) a long -erm emotional or
t
physical impairment that interferes with the performance of parenting functions as defined in "
RCW 26. 09. 004, ( 2) the absence or substantial impairment of emotional ties between the parent
and child, and ( 3) the abusive use of conflict by the parent that has damaged the children' s
psychological development. Robert argues that these findings were unsupported, but he has
failed to assign error to these findings.
Without including these challenges in his assignments of error, Robert' s challenges to
these findings in his brief are insufficient. RAP 10. 3( g) ( " A separate assignment of error for
each finding of fact a party contends was improperly made must be included with reference to
the finding by number. "). Therefore, we treat them as verities on appeal. Fiorito, 112 Wn. App.
7
at 665. These unchallenged findings support the trial court' s restrictions on residential time
under RCW 26..
09. 191( 3).
3. Relocation Notice
The trial court allowed Kara to relocate with the children without having to give Robert
the required notice under RCW 26. 09. 430 -.460 and RCW 26. 09. 520. Robert argues that the trial
court abused its discretion when it allowed Kara to relocate with the children and waived the
7 Regardless of Robert' s failure to assign error to the trial court' s findings, the record shows that
these findings were supported by substantial evidence. In addition, even if these findings were
erroneous, the trial court' s restriction of Robert' s residential time was mandated by the findings
of domestic violence and emotional abuse of a child.
21
No. 44068 -7 -I1
notice requirements under RCW 26. 09.430 -.460 and RCW 26.09. 520 without making any
findings to support its ruling. We agree.
RCW 26. 09. 520 provides that a party proposing to relocate with a child must provide
reasons for the intended relocation. There is a rebuttable presumption that the intended
relocation will be permitted, but the opposing party " may rebut the presumption by
demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to
the child and the relocating person" based upon certain factors. RCW 26. 09. 520. The trial court
must consider each factor in RCW 26. 09. 520 and must either enter written findings on each
factor or make an oral ruling supported by substantial evidence on each factor. In re Marriage of
Horner, 151 Wn.2d 884, 896, 93 P. 3d 124 ( 2004). "[ T] he trial court has discretion to grant or
deny a relocation after considering the RCW 26.09. 520 relocation factors and the interests of the
children and their parents." In re Marriage ofFahey, 164 Wn. App. 42, 56, 262 P. 3d 1282011), review denied, 173 Wn.2d 1019 ( 2012).
Generally, the relocating party also must provide notice to the other parent of that party' s
intent to relocate. RCW 26. 09.430. However, a party may request an order waiving notice
requirements and the trial court will grant the motion if " court finds that the health or safety
the
of a person or a child would be unreasonably put at risk by notice or the disclosure of certain
information in the notice." RCW 26. 09. 460( 4). Here, the trial court' s only finding supporting its
ruling that Kara did not need to give Robert notice provided: "[ T] he present environment is
detrimental to [ Kara] and to [ the] parties' children. They will benefit from a fresh start in a new
community." CP at 39. The trial court did not find that the " health or safety" of the children
would have been put at risk by providing notice or disclosing the location of the relocation to
22
No. 44068 -7 -II
Robert. RCW 26. 09. 460( 4). Accordingly, we remand to the trial court to consider this factor
and make the required findings if it finds that waiver of notice was appropriate.
4. Other Restrictions on Residential Time
Robert argues that the trial court abused its discretion when it restricted both parties from
allowing the children to spend time with their cousin, paternal grandmother, and paternal aunt,
and when it restricted him from possessing pornographic material within the children' s sight.
But Robert does not assign .error to these portions of the parenting plan. Accordingly, we need
not address these issues. RAP 10. 3( g) ( " The appellate court will only review a claimed error
which is included in an assignment of error or clearly disclosed in the associated issue pertaining
thereto. ").
D. RESTRAINING ORDER
The trial court imposed a permanent restraining order against Robert because he " has
been abusive to his wife and children" and because Kara' s testimony established that she had a
very real fear of future acts of domestic violence." CP at 22, 69. Robert argues that the trial
court abused its discretion when it entered the restraining order and that the trial court
improperly precluded him from owning firearms. We disagree.
A trial court has broad discretion to grant a continuing restraining order where
appropriate in a fin al decree of dissolution: " In entering a decree of dissolution of marriage .. .
the court shall ... make provision for any necessary continuing restraining orders." RCW
26. 09. 050( 1) ( emphasis added); 20 Kenneth W. Weber, WASHINGTON PRACTICE: FAMILY AND
COMMUNITY PROPERTY LAW § 41. 3, at 524 ( 1997). Therefore, we review the trial court' s
decision to issue a restraining order for abuse of discretion.
23
No. 44068 -7 -II
RCW 26. 09. 050( 1) allows the trial court to include in its restraining order " the restraint
provisions of a domestic violence protection order under chapter 26. 50 RCW." The trial court
also may include in its restraining order restrictions on firearm possession and use contained in
RCW 9. 41. 800. RCW 26. 09. 050( 1). RCW 9. 41. 800 provides that a trial court may prohibit the
restrained party " from obtaining or possessing a firearm" if there is clear and convincing
evidence that a party has "[ u] sed, displayed, or threatened to use a firearm or other dangerous
weapon in a felony, or previously committed any offense that makes him or her ineligible to
possess a firearm under the provisions of RCW 9. 41. 040."
Here, the trial court entered a restraining order against Robert under RCW 26. 09. 050( 1).
In its findings and conclusions, the trial court stated: " A continuing restraining order against the
husband is necessary. The court finds that [ Robert] has been abusive to his wife and children.
The testimony of Kara ... supports her very real fear of future acts of domestic violence." CP at
69. The protection order also provided that if " parties are intimate partners as defined under
the
federal law ... the restrained person may not possess a firearm or ammunition." CP at 23. This
provision is contained in the mandatory forms for restraining orders issued under chapter 26.09
RCW. See 22A Scott Horenstein WASHINGTON PRACTICE: FAMILY AND COMMUNITY PROPERTY
LAW HANDBOOK, WPF DR 04. 0500, at 287 ( 2013).
Robert argues that the trial court violated his Second Amendment rights to keep and bear
arms when it entered a restraining order restricting him from possessing a firearm. He first
argues that there was no evidence of domestic violence supporting the order. However, as
discussed above, there was ample evidence in the record to establish that Robert engaged in
24
No. 44068 -7 -I1
domestic violence by inflicting fear of imminent physical harm, bodily injury, or assault. See
RCW 26. 50. 010( 1).
Robert also argues that RCW 9. 41. 800 did not authorize a restriction on his possession of
firearms because there was no evidence that he used, displayed, or threatened to use a firearm in
the commission of a felony or that he committed an offense that made him ineligible to possess a
firearm under RCW 9. 41. 040. Robert is correct. However, this was not the basis for the trial
court' s imposition of a firearm restriction. Rather, the restriction was based on 18 U.S. C. §
922( g)( 8), which makes possessing a firearm unlawful for a person subject to a court order that
restrains such person from harassing, stalking, or threatening an intimate of such
person or child of such intimate partner or person, or engaging in other conduct that would place
an intimate partner in reasonable fear of bodily injury to the partner or child." The order here
prohibited Robert from " harassing or stalking" Kara, and Robert does not show why 18 U. S. C. §
922( g)( 8) does not apply to him. Accordingly, we hold that the trial court did not abuse its
discretion when it entered a restraining order preventing Robert from possessing a firearm.
E. PROPERTY DISTRIBUTION
The trial court awarded the Cheney and Montana properties to Robert but found that Kara
had a community interest in those properties and awarded her an equitable lien of $112, 000
against the Cheney property to compensate her for that interest. The trial court implied that the
lien included some amount for the parties' failed property transaction involving property owned
by Robert' s grandparents. The trial court also required that Robert maintain a life insurance
policy payable to Kara until he retired and that he name Kara as the beneficiary under his
8
Former spouses are " intimate partners" under 18 U. S. C. § 921( a)( 32).
25
No. 44068 -7 -II
survivor benefit plan for his military retirement. Robert challenges these provisions in the trial
court' s property distribution order as well as the fairness of the property distribution.
We hold that the trial court abused its discretion when it imposed the lien in Kara' s favor
based in part on evidence of the projected lost profits from the parties' failed property
transaction. We reverse and remand to the trial court to vacate this lien, and to recalculate the
value of the lien against Robert' s property without considering projected lost profits from the
failed property transaction. We affirm on all other property distribution issues.
1. Legal Principles
In a marriage dissolution proceeding, the trial court must ``dispos[ e] of the property and
the liabilities of the parties, either community or separate, as shall appear just and equitable after
considering all relevant factors.' " In re Marriage ofMuhammad, 153 Wn.2d 795, 803, 108 P. 3d
779 ( 2005) ( quoting RCW 26. 09. 080). Those factors include ( 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) the economic circumstances of each spouse at the time the property
distribution is to become effective. RCW 26. 09.080. These factors are not exclusive. In re
Marriage of Larson and Calhoun, 178 Wn. App. 133, 138, 313 P. 3d 1228 ( 2013). All property
is before the court for distribution. In re Marriage ofFarmer, 172 Wn.2d 616, 625, 259 P. 3d
256 ( 2011).
The court has " broad discretion" to determine what is just and equitable based on
the circumstances of each case. In re Marriage of Rockwell, 141 Wn. App. 235,
242, 170 P. 3d 572 ( 2007). A just and equitable division " does not require
mathematical precision, but rather fairness, based upon a consideration of all the
circumstances of the marriage, both past and present, and an evaluation of the
future needs of parties." In re Marriage of Crosetto, 82 Wn. App. 545, 556, 918
P. 2d 954 ( 1996). " Fairness is attained by considering all circumstances of the
marriage and by exercising discretion, not by utilizing inflexible rules." In re
26
No. 44068 -7 -II
Marriage of Tower, 55 Wn. App. 697, 700, 780 P. 2d 863 ( 1989). " Just and
equitable distribution does not mean that the court must make an equal
distribution." In re Marriage of DewBerry, 115 Wn. App. 351, 366, 62 P. 3d 5252003). " Under appropriate circumstances ... [ the trial court] need not award
separate property to its owner." In re Marriage of White, 105 Wn. App. 545, 549,
20 P. 3d 481 ( 2001).
Larson, 178 Wn. App. at 138.
Because the trial court is in the best position to decide issues of fairness, we review a trial
court' s property division made during a dissolution of marriage for manifest abuse of discretion.
Muhammad, 153 Wn.2d at 803; Larson, 178 Wn. App. at 138. " `` A trial court abuses its
discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable
reasons.' " Muhammad, 153 Wn.2d at 803 ( quoting Littlefield, 133 Wn.2d at 46 - 47). " Trial
court decisions in dissolution proceedings will seldom be changed on appeal." In re Marriage of
Stenshoel, 72 Wn. App. 800, 803, 866 P. 2d 635 ( 1993).
2. Characterization of the Cheney and Montana Properties
In exercising its discretion to distribute property in a marriage dissolution, the trial court
must characterize property as either separate or community. RCW 26. 09. 080; In re Marriage of
Brewer, 137 Wn.2d 756, 766, 976 P. 2d 102 ( 1999). The law favors characterization of property
its Brewer,
as community property " unless there is clearly no question of separate character."
137 Wn.2d at 766 - 67.
Property acquired during marriage is presumed to be community property. RCW
26. 16. 010 -.030; see In re Marriage of Short, 125 Wn. 2d 865, 870, 890 P. 2d 12 ( 1995). A party
asserting that an asset acquired during marriage is separate property must overcome the
community presumption by clear and convincing evidence. In re Marriage ofMarzetta, 129
27
No. 44068 -7 -II
Wn. App. 607, 621, 120 P. 3d 75 ( 2005), overruled on other grounds by In re Marriage of
McCausland, 159 Wn.2d 607, 152 P. 3d 1013 ( 2007).
Property acquired during marriage by inheritance is separate property and property
acquired during marriage with traceable proceeds of separate property is separate property.
White, 105 Wn. App. at 550. There is a presumption that any increase in value of separate
property is also presumed to be separate property, but the presumption can be rebutted by
evidence that the increase is attributable to community funds or labor. In re Marriage ofElam,
97 Wn.2d 811, 816, 650 P. 2d 213 ( 1982). Property that is " purchased with both community
funds and clearly traceable separate funds will be divided according to the contribution of each."
In re Marriage of Chumbley, 150 Wn.2d 1, 8, 74 P. 3d 129 ( 2003).
The trial court determined that Kara had a community interest in the Cheney and
Montana properties because community resources had been used to purchase or improve them.
The trial court stated that "[ t] he community contributed funds, sweat equity and incurred
liabilities for those properties." CP at 20. Robert argues that the two properties were his
separate property because they were purchased using his separate property funds from the
dissolution of his family trust and there was no evidence that community efforts increased the
value of the properties. Robert' s assertion that the properties were his separate property is
without merit. There was evidence that the two Cheney properties were purchased with not only
the funds from the trust dissolution but also the funds received from the sale of the Steilacoom
property, a community property asset. Further, there was evidence that community funds were
used to pay the mortgage on one of the properties and that community efforts and funds were
used to improve both properties. Because community funds were used to purchase the properties
28
No. 44068 -7 -II
and because community efforts and funds were used to maintain the properties, we hold that
Kara had a community interest in these properties.
Further, the proceeds from the Cheney property the parties sold were used to purchase the
Montana property. Because Kara had a community interest in the Cheney property, she had a
similar interest in the Montana property because it was purchased with proceeds from property in
which she had a community interest. In addition, the parties paid the mortgage and made
improvements to the Montana property with joint earnings. Accordingly, we hold that the trial
court did not abuse its discretion when it decided that Kara was entitled to a lien in some amount
on property awarded to Robert to account for.her community interest in properties that were
purchased, maintained, and financed in part with community funds.
3. Lien against Robert' s Property
Robert argues that the trial court abused its discretion by imposing a $ 112, 000 lien
against property awarded to him in favor of Kara. He claims that in awarding Kara the lien, the
trial court improperly relied on evidence that involved lost profits on a failed property
9
transaction. We agree.
In 1995, Kara and Robert agreed to purchase the Montana property from Robert' s
grandparents for $27, 000. The parties agreed to pay Robert' s grandparents $275 per month
based on the cost of Robert' s grandmother' s medication. In 2005, after Robert' s grandparents
died, the parties realized that the property was part of a trust and they sued the trust to gain
access to the property. The result was that the trust was dissolved; the trust property, including
9 Robert argues that the failed transaction was the only identifiable basis for such a significant
lien. But the trial court did not explicitly state that the $ 112, 000 lien was based in part on the
failed property transaction. Kara does not address this issue.
29
No. 44068 -741
the property the parties had supposedly purchased, was sold; the parties were refunded the
14, 350 they had paid for the property; and Robert received a payment for his portion of the
trust. Kara testified that she objected to dissolving the trust and losing the property because a
realtor in the area provided her with a list of similar properties that sold for between $ 85, 000 and
130, 000. The trial court may have considered evidence of the failed property transaction in
determining the amount of the lien.
Whether the trial court properly could consider the lost profit on this Montana real estate
transaction is controlled by In re Marriage ofKaseburg, 126 Wn. App. 546, 108 P. 3d 12782005). In Kaseburg, the parties in a dissolution action purchased a home and executed an
850, 000 promissory note and deed of trust in favor of the husband' s parents in recognition of
loans they had given the parties in the past. 126 Wn. App. at 549. After the parties filed for
dissolution but before trial, the husband' s parents foreclosed on the property. Kaseburg, 126
Wn. App. at 550. At trial, the wife contested the value of the promissory note, stating that it was
fraudulent and inflated, and requested a $ 500, 000 judgment against the husband for concealing
the value of the property. Kaseburg, 126 Wn :App. at 551 -52. The trial court determined that
the debt underlying the promissory note was actually $ 300, 000, not $850, 000, and determined
that the wife had a $ 150, 000 interest in the property. Kaseburg, 126 Wn. App. at 555. We
reversed, holding that because the community' s interest in the property was " legally
extinguished in the foreclosure sale, the amount of the debt and the value of the real property
were not before the trial court for valuation or distribution in the dissolution proceeding."
Kaseburg, 126 Wn. App. at 559.
30
No. 44068 -7 -II
Applying Kaseburg here, it was improper for the trial court to award Kara a lien on
Robert' s property based on the projected value of the parties' failed real estate transaction. As in
Kaseburg, we hold that Kara' s opportunity to contest the resolution of her claim to the property
was during the 2005 litigation and that she lost that opportunity when the litigation was resolved.
See White, 105 Wn. App. at 549 ( " If one or both parties disposed of an asset before trial, the
court simply has no ability to distribute that asset at trial. "). Accordingly, we hold that the trial
court abused its discretion when it admitted and considered evidence of the lost value of the
incomplete real estate transaction.
We vacate the $ 112, 000 lien because it was based in part on the trial court' s incorrect
reliance on the failed Montana property deal. We also direct the trial court to remove this lien
from the property records. Because it is unclear what portion (if any) of the lien related to the
failed property transaction and because the trial court also based its decision to award the lien on
the community nature of the properties and the community efforts used to finance and maintain
the properties, we remand to the trial court to recalculate the amount of Kara' s lien without
consideration of the projected lost profits from the failed Montana property deal.
4. Life Insurance Policy and Survivor Benefit Plan
Robert argues that the trial court abused its discretion when it required him to maintain
both a life insurance policy of $400, 000 and to name Kara as a beneficiary under his survivor
benefit plan for his military retirement. We disagree.
In In re Marriage of Donovan, 25 Wn. App. 691, 697 -98, 612 P. 2d 387 ( 1980), the trial
court entered an award of child support secured by a lien on the husband' s estate. The trial court
also ordered the husband to maintain a life insurance policy naming his children as primary
31
No. 44068 -7 -II
beneficiaries. Donovan, 25 Wn. App. at 698. Division One of this court held that the award was
inequitable because it provided his children with a double recovery of child support —from both
the lien against the estate and the life insurance — should the father die before they reached the
age of majority. Donovan, 25 Wn. App. at 698.
Here, if the life insurance policy was solely to secure Kara' s interest in Robert' s
retirement benefits, then there might be an issue of double recovery because of the survivor
benefit plan. See Donovan, 25 Wn. App. at 698. But the trial court also stated that the purpose
of the life insurance policy was to pay Kara for any outstanding community obligations. These
obligations could include child support and any other unpaid obligations from the decree owing
to Kara in the event of Robert' s untimely death, which are not secured by any other source.
Accordingly, we hold that the trial court did not abuse its discretion when it ordered that Robert
name Kara on his survivor benefit plan and required him to maintain life insurance.
5. Fairness of Property Distribution
Robert also argues that the trial court' s overall property distribution was inequitable
because it failed to consider the cost to him of selling his property to extinguish the lien and
because the trial court required him to pay the balance of a credit card held in Kara' s name with
debt she incurred after the parties separated. We disagree.
First, Robert argues that because the only way for him to extinguish the $ 112, 000 lien
against him would be to sell his properties and because their sale will lead to " significant tax
liability," the trial court should have considered the cost of their sale when distributing the
parties' properties. Br. of Appellant at 40 -41. In making this argument, Robert asks us first to
presume that the only way for him to extinguish the lien would be to sell the properties when
32
No. 44068 -7 -II
there was no evidence that he would be otherwise unable to make payments from his income,
and second to reconsider the evidence before the trial court. Because we do not re -weigh the
evidence and because the trial court is in the best position to determine fairness in light of the
evidence before it, we decline to address Robert' s contention further. Larson, 178 Wn. App. at
138; Meredith, 148 Wn. App. at 891 n. 1.
Second, Robert argues that the property distribution was unfair because the trial court
ordered him to pay the balance of a credit card in Kara' s name for debt she had incurred after the
couple had separated. When the parties separated, they had an American Express card in Kara' s
name with a balance of $8, 908. 60. By the date of trial, the balance on the card was $ 22,465. 00.
Because liabilities incurred after separation are presumed to be the separate debt of the incurring
spouse, Robert argues that the trial court abused its discretion when it ordered him to pay the
entire balance of the credit card. See Oil Heat Co. ofPort Angeles, Inc. v. Sweeney, 26 Wn. App.
351, 354, 613 P. 2d 169``( 1980).
But the court is not required to make an equal distribution of assets and liabilities and
need not award separate debt to its owner. DewBerry, 115 Wn. App. at 366; White, 105 Wn.
App. at 549. The fact that one of the debts assigned to Robert may have been Kara' s separate
debt did not require the trial court to specifically assign that particular debt to her, and Robert
fails to show that it was not accounted for elsewhere in the property distribution. The trial court
had all of the parties' assets and liabilities before it, and we hold that it made an equitable
distribution of the property based on the facts of this case.
33
No. 44068 -7 -II
F. MAINTENANCE
The trial court ordered that Robert pay spousal maintenance to Kara in the amount of
1, 500 per month beginning on September 1, 2012, and $ 2, 400 per month beginning on July 1,
2013. The trial court ruled that maintenance would continue until Robert retired and Kara began
to receive her share of his retirement, and at that time maintenance would be reduced to $ 1. 00
per month for life and would not terminate upon Kara' s remarriage. Robert argues that the trial
court abused its discretion in its order awarding maintenance to Kara. We hold that the evidence
supported the maintenance award except for the award of $1. 00 per month for Kara' s life.
1. Legal Principles
The trial court has statutory authority to order maintenance " in such amounts and for such
periods of time as the court deems just, without regard to misconduct" after taking into
consideration relevant factors. RCW 26. 09. 090( 1); In re Marriage ofDrlik, 121 Wn. App. 269,
276, 87 P. 3d 1192 ( 2004). Maintenance is " a flexible tool to more nearly equalize the post -
dissolution standard of living of the parties, where the marriage is long term and the superior
earning capacity of one spouse is one of the few assets of the community." In re Marriage of
Sheffer, 60 Wn. App. 51, 57, 802 P. 2d 817 ( 1990). In awarding maintenance, the trial court' s
main concern must be the parties' economic situations after the dissolution. In re Marriage of
Williams, 84 Wn. App. 263, 268, 927 P.2d 679 ( 1996).
An award of maintenance is within the broad discretion of the trial court. In re Marriage
of Bulicek, 59 Wn. App. 630, 633, 800 P. 2d 394 ( 1990). A trial court abuses its discretion when
its decision is based on untenable grounds or reasons. In re Marriage ofFoley, 84 Wn. App.
839, 845, 930 P. 2d 929 ( 1997). " An award of maintenance that is not based upon a fair
34
No. 44068 -7 -II
consideration of the statutory factors constitutes an abuse of discretion." Crosetto, 82 Wn. App.
at 558. However, the trial court is not required to make specific factual findings on all of the
factors. In re Marriage of Mansour, 126 Wn. App. 1, 16, 106 P. 3d 768 ( 2004). Rather, the
statute merely requires the trial court to consider the listed factors. Mansour, 126 Wn. App. at
16. "[ T]he only limitation placed upon the trial court' s ability to award maintenance is that the
amount and duration, considering all relevant factors, be just." In re Marriage of Washburn, 101
Wn.2d 168, 178, 677 P. 2d 152 ( 1984).
2. Future Earning Capacity
Robert argues that the trial court abused its discretion in setting the maintenance amount
because there was no evidence at trial regarding the parties' future earning capacities and
therefore the trial court' s award was speculative and not supported by the evidence. We
disagree.
In setting the maintenance award, the trial court reasoned that Robert " will be in a
substantially better financial position than [ Kara] after the dissolution." CP at 68. The trial court
further reasoned that Robert had earned a masters degree during the marriage and would have
good employment prospects after his military retirement. By contrast, the trial court found that
Kara had " limited and interrupted work experience and is not likely to catch up to [ Robert] in
earning potential." CP at 69. The trial court further noted that she had to leave jobs and follow
Robert during his military career.
These findings are supported by the evidence. The court heard testimony on Kara' s work
history from which it could reasonably determine her likely future earning capacity. Kara has a
bachelor' s degree in physical education and has taken courses for a master' s degree in guidance
35
No. 44068 -7 -II
counseling. She testified that she wanted to finish her degree but that her primary goal was to
obtain employment to support her children. She is not a certified teacher and is generally
eligible to work as a teacher in local school districts only in an emergency situation. Kara
worked as an X-
ray technician when the parties were first married, earning $ 10 per hour. She
also worked for an orthopedic surgeon in Gig Harbor, earning approximately $ 12 per hour. She
worked at a winery in Spokane, earning $ 9. 50 per hour. She worked as a substitute teacher in
Italy, earning $95 per day. After the parties separated, Kara had a job at Fort Lewis as an
education counselor, earning $ 20 per hour. The company for which she worked as a counselor
lost its contract with Fort Lewis and Kara was laid off; but she was offered and accepted her
former position with a new company for $ 12. 75 per hour. In March 2012, Kara was laid off after
her employer stated that it had received information that Kara' s life and the lives of her children
were in immediate danger. Kara then received unemployment at $ 406 per week and was
receiving that amount at the time of trial, despite her efforts to find employment.
The trial court also heard testimony regarding the numerous positions Robert held while
in the military and knew that his gross monthly income at the time of trial was $ 10, 930. 16.
Robert had a bachelor' s degree in business and had also obtained a masters degree in business
administration during the marriage. We hold that Robert' s challenge to the trial court' s findings
regarding the parties' future earning capacities fails because the trial court heard ample evidence
about the parties' education, work experience, and income.
3. Duration of Maintenance Award
Robert argues that the trial court abused its discretion when it awarded Kara spousal
maintenance of $1. 00 per month for life once Robert retired. The trial court stated that it was
36
No. 44068 -7 -II
making this award in order to preserve jurisdiction over the parties in the future. We hold that
the trial court abused its discretion in making a placeholder award simply to extend jurisdiction
over the parties.
Division One of this court recently addressed a similar issue in In re Marriage of Valente,
Wn. App. _, 320 P. 3d 115 ( 2014). In Valente, the wife in a dissolution action received a
maintenance award to help with her future medical costs for multiple sclerosis and rheumatoid
arthritis. 320 P. 3d at 116 -17. The trial court awarded her $ 10, 000 per month for seven years,
then $ 1, 000 per month until she turned 72 years old, then $ 100 per month until either the
husband' s or wife' s death or the wife' s remarriage, whichever occurred first. Valente, 320 P. 3d
at 117. The husband challenged the $ 1, 000 and $ 100 per month maintenance awards, claiming
that they were merely a vehicle for the court to retain jurisdiction over the parties. Valente, 320
P. 3d at 118. The trial court stated that the reason for the $ 100 lifetime maintenance award was to
allow the court to revisit the award and would allow the wife to have an " ongoing maintenance
adjustment." Valente, 320 P. 3.d at 118.
The court noted that permanent maintenance awards generally are disfavored but that a
lifetime award may be proper " `` when it is clear the party seeking maintenance will not be able
to contribute significantly to ... her own livelihood.' " Valente, 320 P. 3d at 117 ( quoting In re
Marriage of Mathews, 70 Wn. App. 116, 124, 853 P. 2d 462 ( 1993)). The court then examined
two Washington cases dealing with lifetime maintenance awards based on anticipation of future
medical needs. Valente, 320 P. 3d at 118 -19. Those cases found the awards to be an abuse of
discretion because they were conjectural and therefore lacked the finding of necessity required
for maintenance awards. Valente, 320 P. 3d at 118 -19.
37
No. 44068 -7 -II
Although the trial court in Valente found that the wife may incur future medical
expenses, it did not make any findings as to the likelihood or degree to which her condition
might worsen. Valente, 320 P. 3d at 119. The court held that the trial court' s findings were
insufficient to establish a foundation for retaining jurisdiction and therefore it abused its
discretion in awarding the maintenance:
A dissolution is supposed to finalize the parties' obligations to one another. By
reserving jurisdiction to modify maintenance for the duration of [ the wife]' s
lifetime, or until her remarriage, [ the husband]' s obligations under the decree
remain unsettled. While maintenance is a flexible tool, there is no showing that
the legislature intended to grant broad authority for open ended maintenance as
urged by [ the wife]. Maintenance cannot be used as an insurance policy against
potential hardship in the absence of specific findings regarding the certainty that
those hardships are likely to occur.
Valente, 320 P. 3d at 119 -20 ( footnotes omitted).
Here, the trial court awarded lifetime maintenance that terminated only upon the parties'
deaths. The trial court further stated that the award was non -
modifiable unless Robert did
anything resulting in the loss of [Kara]' s retirement benefits outlined above at any time after
maintenance is reduced to $ 1. 00 per month." CP at 81. The court explicitly stated that "[ t] he
amount is intended to allow the court to reserve jurisdiction in the future." CP at 81. The award
was based on speculation that Robert might do something in the future to prevent Kara from
receiving his retirement benefits. This is the type of conjectural basis that Valente and the cases
on which it relied were rejected. The trial court here did not enter any specific findings
regarding Robert' s likelihood of preventing Kara from receiving benefits in the future.
Accordingly, we hold that it was an abuse of discretion to award lifetime spousal maintenance
for the purpose of retaining jurisdiction alone, and we vacate that portion of the maintenance
order. We remand for the trial court to consider the award of maintenance after Robert retires. If
38
No. 44068 -7 -II
the trial court on remand wishes to impose lifetime maintenance, it must enter specific findings
supporting that decision.
G. ATTORNEY FEES
1. Fees at Trial
Robert argues that the trial court' s decision to award Kara $30, 000 in attorney fees was
an abuse of discretion based on Robert' s ability to pay and Kara' s need. We disagree.
The trial court in a dissolution action may award reasonable attorney fees to one of the
parties after considering the financial resources of both parties. RCW 26. 09. 140. In determining
whether it should award fees, " the court considers the parties' relative need versus ability to
pay." In re Marriage of Spreen, 107 Wn. App. 341, 351, 28 P. 3d 769 ( 2001). We review an
attorney fee award for abuse of discretion and will reverse if the decision is untenable or
manifestly unreasonable. Spreen, 107 Wn. App. at 351. " In calculating a fee award a court
should consider: ( 1) the factual and legal questions involved; ( 2) the time necessary for
preparation and presentation of the case; and ( 3) the amount and character of the property
involved." In re Marriage ofKnight, 75 Wn_App. 721, 730, 880 P. 2d 71 ( 1994). The trial court
must indicate on the record the method it used to calculate the award. Knight, 75 Wn: App. at
729.
Here, the trial court found that Kara had the need for an award to cover her attorney fees
and that Robert had the ability to pay, based on the same reasons supporting its maintenance
award. It found that Robert would be in a better financial position than Kara after the dissolution
because he had earned a master' s degree during the marriage, was expecting a military
retirement, and had good employment prospects thereafter. By contrast, the trial court found that
39
No. 44068 -7 -II
Kara had limited and interrupted work experience because she moved with Robert for his
military career and that she was " not likely to catch up to him in earning potential." CP at 69.
As discussed above, the trial court had ample evidence before it supporting these findings.
In his challenge to the fee award here, Robert argues that because Kara would be in a
better position following the dissolution based on the trial court' s property distribution, the trial
court abused its discretion when it ordered him to pay an additional $ 30, 000 for Kara' s attorney
fees. Because of this, Robert argues that the trial court " failed to determine the financial
resources of each party when deciding to impose a substantial fee award against Robert." Br. of
Appellant at 47. However, Robert fails to cite any authority requiring the trial court to
specifically consider the property distribution in the dissolution action when determining
financial need. Accordingly, we hold that the trial court did not abuse its discretion when it
determined that Robert had the ability to pay attorney fees and that Kara had a financial need.
2. Fees on Appeal
Kara requests her fees on appeal under RAP 18. 1( a) and RCW 26. 09. 140. RCW
26. 09. 140 gives us discretion to " order a party to pay for the cost to the other party of
maintaining the appeal and attorneys' fees in addition to statutory costs." " In exercising our
discretion, we consider 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 ofKim, 317 P. 3d 555, 567 ( 2014).
Kara filed a financial declaration stating that her net monthly income is $ 2,417. 35 and her
total monthly expenses are $ 7, 019. 41. Her financial declaration estimates Robert' s net monthly
income at $ 7, 433. 62.
40
No. 44068 -7 -II
Based on Kara' s financial declaration, it appears that she has a financial need and that
Robert has the ability to pay. Accordingly, we order Robert to pay Kara' s attorney fees on
appeal.
CONCLUSION
We remand to the trial court to consider whether the waiver of relocation notice
requirements was proper under RCW 26. 09. 460( 4) and to make the required findings, if
appropriate. We also reverse the trial court' s lien in Kara' s favor on property awarded to Robert
insofar as the lien amount relates to evidence of the failed 2005 Montana property deal, and we
remand for recalculation of the lien, if any, without consideration of this evidence. Finally, we
vacate the trial court' s order of $1. 00 per month in spousal maintenance and remand for
consideration of spousal maintenance for the period after Robert retires. We affirm on all other
issues.
We concur:
HUNT, P.
N,
41