In Re The Marriage Of: Nia J. Collins And Robert L. Collins ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
March 3, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Marriage of: No. 52787-1-II
NIA J. COLLINS,
Respondent,
and
ROBERT L. COLLINS,
UNPUBLISHED OPINION
Appellant.
GLASGOW, J.—Robert L. Collins and Nia J. Collins signed a CR 2A agreement in a
marriage dissolution proceeding. The agreement provided for arbitration of disputes involving the
content of the final pleadings and order as well as the construction and implementation of the
agreement.
Robert appeals from the trial court’s entry of its final pleadings and order and from the trial
court’s denial of his motion to compel further arbitration. He argues that under the CR 2A
agreement’s arbitration provision, all unresolved issues had to be addressed in arbitration before
the trial court could enter a final order. Robert identifies several matters that he asserts were
arbitrable disputes at the time the trial court entered the final order. Robert also argues that the trial
court’s findings of fact and conclusions of law do not support its final order. He asserts the trial
court erred by limiting the arbitrator’s future involvement in disputes between these parties.
Finally, Robert argues the trial court erred by declining to award him attorney fees.
No. 52787-1-II
We hold that the issues Robert identifies as disputes necessitating arbitration either were
not in dispute when the trial court entered the order or the trial court properly reserved them for
further arbitration. The trial court did not err by entering a final order. We reject Robert’s
remaining arguments and affirm.
FACTS
Nia and Robert1 Collins married in 1984 and separated in 2017. They had no children
together who are still dependent. Nia filed for dissolution of the marriage in Pierce County Superior
Court. Nia and Robert attended a mediation together in May 2018. Following the mediation, they
entered into a detailed CR 2A agreement, which they filed with the trial court in July 2018.
A. The CR 2A Agreement
The parties agreed that the CR 2A agreement would be “a legally binding and enforceable
agreement in full and final settlement of all claims foreclosed by the terms of the Agreement.”
Clerk’s Papers (CP) at 85. The agreement provided that “any disputes in drafting . . . the final
documents or as to reserved or omitted issues shall be resolved by Norm[an] Margullis in binding
arbitration,” as well as any “dispute . . . in construing, implementing or effectuating th[e]
Agreement.” CP at 87, 94. Under the terms of the agreement, Nia’s attorney was to draft final
pleadings reflecting the agreement and submit them to the trial court to enter as a final order.
The CR 2A agreement contemplated equal division of assets and debt between Robert and
Nia. For example, the agreement created an “overall ‘global’ settlement” designed to “achieve an
equal division of community assets.” CP at 89. “To the degree that one party has retained greater
value than the other[,] the home sale proceeds will be used to equalize the award.” CP at 91.
1
For clarity, we refer to the parties by their first names.
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No. 52787-1-II
The CR 2A agreement described the process by which Robert and Nia were to sell their
family home. It also established a framework for distributing assets from the home sale. Net sale
proceeds were to be applied first to outstanding community debt and then distributed to achieve
an overall equal division of property. The parties agreed that Robert would give Nia $10,000 from
his share of the net sale proceeds to “satisfy any claim she may otherwise have to [Robert’s]
existing retirement benefits or future earnings.” CP at 89.
The mediation resulted in similarly specific and detailed plans, which were incorporated
into the CR 2A agreement, for dividing community specific debt, selling or dividing personal
property, and distributing proceeds from the sale of personal property.
B. Postagreement Arbitration
Under the agreement, Nia’s attorney was to draft final pleadings to be entered by the trial
court. However, Nia and Robert could not agree on several issues in Nia’s proposed final
pleadings. Robert submitted his own proposed final pleadings and a letter describing the disputed
issues to the arbitrator, Norman Margullis, who arbitrated the disputed issues. Id. Margullis
rendered detailed rulings resolving the disputed issues.
One issue that Margullis resolved was whether a pending offer to sell the family home
should be enforced via the appointment of a special master. The home sale issue arose in part
because Nia signed a sale agreement without informing Robert or obtaining his signature.
Margullis ruled that the offer to purchase the home was reasonable, and he appointed a special
master to supervise the sale. He also fined Nia for not communicating with Robert about the sale.
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Margullis also resolved disputes regarding several personal property items. An appraiser
had valued all the household items, and Margullis resolved disputes including, for example, how
nightstands would be divided and the details of selling farm equipment.
Finally, Margullis reviewed the proposed final pleadings submitted by each party. He
generally adopted Nia’s drafts, but in some instances made corrections or adopted specific
language from Robert’s proposal. For example, Margullis addressed arrearages on the first
mortgage incurred after the separation. Margullis also required that each party submit a list of
appraised personal property that he or she intended to keep so it could be accounted for in the final
division of property. While the final pleadings that Margullis adopted did not calculate specific
distributions, the pleadings directed how debts would be paid or divided, how assets and proceeds
from the sales of the home and personal property would be divided, and the distribution of other
assets. Thus, the arbitrator’s decision effectively directed how the asset and debt distribution
calculations should occur.
C. Trial Court Proceedings
Nia then filed a motion with the superior court seeking an expedited order confirming the
arbitration award and appointing a special master for the sale of the home. A Pierce County
Superior Court commissioner granted Nia’s motion. According to the commissioner’s order, the
special master was to complete the closing of the pending sale of the home and deposit the “net
proceeds of sale upon said closing in the trust account of Petitioner’s attorneys of record pending
allocation by further court order.” Suppl. CP at 182. Robert signed this order, approving only “as
to form.” Suppl. CP at 184.
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The commissioner’s order set a hearing before a superior court judge for the purpose of
entering final pleadings that would include an order dividing proceeds from the sale of the home,
as well as other property. At this hearing to address final pleadings, Robert argued that there were
unresolved “issues with regard to allocation of funds between the parties,” which he attributed, at
least in part, to the fact that the home sale had not yet closed. Verbatim Report of Proceedings
(VRP) (Sept. 21, 2018) at 9-10.
Recognizing Robert’s concern that the sale had not yet closed, the trial court continued the
hearing until after the home sale actually closed. The trial court ordered Robert to file specific
objections to Nia’s proposed final orders, stating, “Mr. Collins needs to specifically address what
his issues are, rather than the more general declaration he filed with the Court, so that I have some
sense as to whether there is a genuine issue or not.” Id. at 17.
Robert then filed a motion to compel arbitration. In an accompanying declaration and
memorandum, Robert described several issues he believed constituted disputes necessitating
further arbitration. Robert asserted that (1) the family home had not sold at the time Nia filed her
redrafted final pleadings for entry with the trial court, (2) Nia did not properly disclose the amount
of her mortgage arrearages, (3) Nia did not accurately provide the amount of postseparation
community debt, and (4) Nia’s proposed final pleadings did not account for all the property Robert
intended to retain. Robert argued that “the parties are unable to agree to the provisions in the final
divorce decree” and that “prior to submission of the agreed and signed final pleadings to the court
for signature and entry this matter must be resolved in arbitration as provided by the parties’
arbitration agreement.” CP at 158.
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The home sale closed and yielded $409,080 in net proceeds prior to the agreed payment of
or reimbursement for community debts. At the rescheduled hearing a few days later, Robert argued
that the trial court was not authorized to enter any final pleadings because the arbitrator had not
specified the precise dollar amounts allocated to each party. Without the arbitrator approving the
final allocation of funds, Robert argued, the trial court had no authority to enter any final pleadings
and/or allocate any proceeds from the home sale.
The trial court entered an order denying Robert’s motion to compel arbitration, finding the
final pleadings submitted by Nia’s counsel “an appropriate reflection” of the parties’ CR 2A
agreement and the arbitration award. VRP (Sept. 28, 2018) at 24. Recognizing, however, that
Robert did raise some issues that needed to be resolved by the arbitrator, the trial court determined
that it was “appropriate to hold back a portion” of the proceeds of the sale allocated to each party
until after the unresolved issues were arbitrated. Id. The trial court noted it was denying Robert’s
motion to compel arbitration “to the extent that there will be arbitration in advance of the entry of
this order. Arbitration is available to address the issues of the holdback . . . [w]hich is the amount
that you’ve been arguing about and [Robert] had issues with.” Id. at 25-26. The trial court
instructed the parties to “[t]ake [the amount of the holdback] to Mr. Margullis and figure that out.”
Id. at 26.
The trial court then entered findings of fact and conclusions of law and a final dissolution
order consistent with the arbitrator’s prior decision. In its final order, the trial court allocated
responsibility for debt between the parties and then distributed net assets by allocating proceeds
from the sale of the home, distributing personal property between the parties, and allocating
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proceeds from the sale of other items of personal property, as directed by the arbitrator. The trial
court awarded $232,396 from the proceeds of the home sale to Nia and $136,807 to Robert.
The trial court’s order also identified a few specific unresolved issues involving community
debt and personal property setoffs that required additional arbitration. In light of these unresolved
issues, the trial court’s dissolution order held back $20,000 “from each party’s share of the
remaining proceeds” pending further arbitration. CP at 176.
Robert appeals from the trial court’s order, arguing that the trial court should not have
entered any final pleadings and instead should have sent the entire case back to the arbitrator.
ANALYSIS
A. Denial of the Motion to Compel Arbitration
1. Law favoring enforcement of arbitration clauses
CR 2A governs agreements between two parties “made by parties or attorneys ‘in respect
to the proceedings in a cause.’” In re Marriage of Ferree, 71 Wn. App. 35, 39, 856 P.2d 706 (1993
(quoting CR 2A). “The purpose of CR 2A is to give certainty and finality to settlements.” Condon
v. Condon, 177 Wn.2d 150, 157, 298 P.3d 86 (2013). When the contract concerns an arbitration
agreement, we “determine the arbitrability of the dispute by examining the arbitration agreement
between the parties,” and we review “questions of arbitrability de novo.” Davis v. Gen. Dynamics
Land Sys., 152 Wn. App. 715, 718, 217 P.3d 1191 (2009). The burden of showing that an
arbitration agreement is unenforceable is on the party opposing arbitration. Townsend v. Quadrant
Corp., 173 Wn.2d 451, 455, 268 P.3d 917 (2012).
RCW 7.04A.060 governs the enforceability of arbitration agreements. Under RCW
7.04A.060(1), “[a]n agreement contained in a record to submit to arbitration any existing or
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subsequent controversy arising between the parties to the agreement is valid, enforceable, and
irrevocable except upon a ground that exists at law or in equity for the revocation of contract.”
RCW 7.04A.060(2) establishes that a “court shall decide whether an agreement to arbitrate exists
or a controversy is subject to an agreement to arbitrate.” RCW 7.04A.070 governs motions to
compel or stay arbitration. RCW 7.04A.070(3) prohibits a court from refusing to order arbitration
on the grounds that the court determines a “claim subject to arbitration lacks merit or grounds for
the claim have not been established.”
We have observed, “If we can fairly say that the parties’ arbitration agreement covers the
dispute, the inquiry ends because Washington strongly favors arbitration.” Davis, 152 Wn. App.
at 718. There is a presumption that “‘any doubts concerning the scope of arbitrable issues should
be resolved in favor of arbitration.’” Kamaya Co., Ltd. v. Am. Prop. Consultants, Ltd., 91 Wn.
App. 703, 714, 959 P.2d 1140 (1998) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr.
Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 7 L. Ed. 2d 765 (1983)). Trial courts are empowered
under RCW 7.04A.060(2) to determine “‘whether . . . a controversy is subject to an agreement to
arbitrate.’” Saleemi v. Doctor’s Assocs., Inc., 176 Wn.2d 368, 376, 292 P.3d 108 (2013) (quoting
RCW 7.04A.060(2)). But the court must “limit its inquiry to the question of whether that dispute
falls within the scope of the parties’ agreement to arbitrate.” In re Marriage of Pascale, 173 Wn.
App. 836, 838, 295 P.3d 805 (2013); see also RCW 7.04A.070(3).
In Pascale, the disputed issue was whether the spousal maintenance provision of the
parties’ CR 2A agreement required four years or eight years of spousal support. 173 Wn. App. at
840. The husband argued the provision covered four years, while the wife argued it required eight
years of support. Id. The trial court found the spousal support provision in the CR 2A agreement
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“‘[was] clear on its face,’” that it provided for eight years of support, and that because the CR 2A
agreement clearly supported the wife’s argument, there was no need to send the issue to the
arbitrator. Id. at 843. Division One reversed, holding that the trial court “improperly examined the
merits of the controversy,” rather than simply assessing whether the disputed issue fell within the
scope of the arbitrator’s authority to resolve disputes according to the parties’ CR 2A agreement.
Id. Thus, even where resolution of a dispute seems simple, if the issue is covered by an arbitration
clause, Washington courts must refer the issue to arbitration rather than deciding the issue on the
merits.
2. Alleged disputes necessitating arbitration
To the extent any dispute over the drafting of final pleadings existed, Robert’s and Nia’s
CR 2A agreement unambiguously required such a dispute to be resolved through binding
arbitration. Not only is there is a general preference in Washington for enforcing arbitration
agreements in these contexts, see id. at 842, but the specific language of Robert’s and Nia’s CR
2A agreement makes clear that the parties intended their CR 2A agreement to be a “full and final
settlement of all claims” in their case. CP at 87. The CR 2A agreement also stated clearly that
disputes over “the final documents or as to reserved or omitted issues,” and subsequent disputes
that arose “in construing, implementing or effectuating this Agreement,” were to be resolved in
binding arbitration by Margullis. CP at 87, 94.
The parties disputed the content of their final pleadings, and they submitted these disputes
to Margullis for resolution. Margullis then issued a very detailed ruling with precise instructions
for resolving the disputed issues. He also provided specific instructions for how the parties were
to draft final pleadings, as well as how final distributions should be calculated.
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The issue in this case, however, is whether unresolved disputes continued to exist when the
trial court entered final pleadings on September 28, 2018, and whether the trial court overstepped
its authority by deciding issues that should have been left to the arbitrator. For the following
reasons, we hold that the issues Robert identifies either were not actually in dispute at the time of
the trial court’s ruling because the arbitrator had already resolved them, or the trial court properly
reserved them for arbitration and accounted for them in its holdback. 2
i. Closing date for sale of family home
Robert identified consequences arising from his uncertainty over the closing date of the
home sale as one of the unresolved issues. We hold that the trial court properly found that the issue
of the home sale closing date was moot by September 28, 2018 because the sale closed on
September 25, 2018.
To the extent Robert argues that he failed to pay the second mortgage for the month of
September because Nia did not update him about the closing date, and to the extent this created an
unresolved issue about who was responsible for September’s second mortgage payment, the trial
court properly reserved this issue for arbitration. The trial court’s final dissolution order provided
that “[a]ny setoff from [Robert’s] share of the home sale proceeds due to any failure to pay timely
the second mortgage, including late fees, shall be resolved through arbitration under the terms of
the CR 2A Agreement.” CP at 174 (emphasis added).
2
Nia’s counsel agreed at the hearing that there were a few specific issues that remained for
arbitration, and the order that the trial court signed contemplated future arbitration on those issues,
rather than resolving them.
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ii. Mortgage arrearages
Robert argues that Nia did not include in the final pleadings the full amount of her
arrearages for missed mortgage payments that she was responsible for on the couple’s first
mortgage, nor did she include penalties for late payments. We hold that no unresolved issue existed
with regard to the amount Nia owed for missed payments on the first mortgage.
In his ruling on the parties’ proposed final pleadings, the arbitrator ordered that to the extent
Nia failed to make payments on the first mortgage, “she will reimburse Mr. Collins for one-half
of those arrearages out of her . . . home sale proceeds for all delinquent months through . . . August
2018. . . . [A]dditional arrearages will be paid out of gross home sale proceeds.” CP at 150.
Employing the arbitrator’s language, the trial court required Nia to “reimburse [Robert] for one-
half of those arrearages out of her share of net home sale proceeds for all delinquent months
through the month of September 2018.” CP at 173 (emphasis added). The trial court ordered that
“[t]he total of arrearages and late fees through September 30, 2018 are $29,678.52 of which
$15,766.29 shall be paid to [Robert] from [Nia’s] share of the net home sale proceeds.” Id.
(emphasis added).
The trial court did not err by finding that there were no arbitrable issues with regard to
Nia’s arrearages. The trial court simply adopted the provision regarding arrearages that the
arbitrator had ordered in his ruling. To the extent the trial court’s order differs from the arbitrator’s
order by extending Nia’s obligation to pay arrearages through September because of the timing of
the home sale, we recognize that this change simply accounts for the delay in closing and ensures
that the parties remained in the same position the arbitrator put them in when he issued his ruling,
believing the sale would close on August 31, 2018. No further arbitration is necessary on this issue.
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iii. Postseparation community debt and personal property setoffs
Robert argues that incomplete information about the amount of his and Nia’s
postseparation debt was an issue requiring arbitration. We conclude that the trial court properly
reserved the issues of Nia’s and Robert’s postseparation community debt and personal property
setoffs for arbitration.
The trial court’s final order states that “any dispute as to the community or post-separation
personal charges . . . shall be submitted to binding arbitration as per the terms of the CR 2A
Agreement.” CP at 170. Accordingly, to the extent the issue of postseparation debt was an
unresolved issue, we hold that the trial court properly reserved this issue for arbitration.
Similarly, to the extent Robert argues that a dispute existed with regard to the retention,
sale, and value of personal property, the trial court contemplated additional arbitration of any
disputes around the sale and setoff value of the parties’ personal property. See CP at 176 (Holdback
was contingent on “arbitration to resolve the remaining issues of debt payment and personal
property setoffs.” (emphasis added)). The trial court did not err in reserving these issues for future
arbitration.
iv. Holdbacks
Robert argues that “nothing in the arbitration agreement allow[ed] for holdbacks.” Reply
Br. of Appellant at 3. We hold that the trial court did not err when it held back a portion of the
proceeds of the home sale from each party’s share pending resolution of remaining disputed issues
in arbitration.
The trial court’s reasoning for holding back $20,000 from each party’s portion of the
remaining proceeds from the sale of the home was to allow the arbitrator to resolve “the remaining
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issues of debt payment and personal property setoffs.” CP at 176. The CR 2A agreement did not
state that the existence of a single disputed issue would prevent the trial court from entering a final
order as to issues that were not in dispute; rather it provided a mechanism for the arbitrator to
resolve individual unresolved issues as they arose. The trial court’s holdback promoted and
facilitated arbitration of the remaining disputed issues while also allowing the prompt entry of the
dissolution order. The trial court did not err in requiring the holdbacks.
The trial court also did not err when it determined that none of the issues Robert raised
warranted arbitration before the final dissolution could be entered.
3. Grounds for trial court’s denial of Robert’s motion to compel arbitration
The trial court did not err by denying Robert’s motion to compel arbitration before entering
the final order of dissolution. The scope of the trial court’s review was within the trial court’s
authority under RCW 7.04A.060(2) and applicable case law. See Saleemi, 176 Wn.2d at 376;
Pascale, 173 Wn. App. at 842. For example, in its oral ruling on Robert’s motion, the trial court
explained that the order it entered reflected the parties’ CR 2A agreement and the resulting
arbitration award. The trial court also found that Robert had not identified any aspect of the
proposed order that deviated from the arbitration decision. Because the trial court’s order was
consistent with the arbitrator’s prior decision, the trial court properly denied Robert’s motion to
compel arbitration.
B. Trial Court’s Findings of Fact and Conclusions of Law and Final Dissolution Order
1. Entry of the findings of fact, conclusions of law, and order before further arbitration
Robert argues that for the same reasons he believes the trial court erred when it denied his
motion to compel arbitration, the trial court erred by entering findings of fact and conclusions of
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law and the final dissolution order without first sending the remaining issues back to the arbitrator
for resolution. For the reasons explained above, however, we hold that the trial court did not err
by entering a final dissolution order, accompanied by findings of fact and conclusions of law that
reflected the arbitrator’s property division. The holdbacks ensured that there was sufficient funding
to resolve all remaining issues without unnecessarily delaying entry of the trial court’s findings
and conclusions and dissolution order.
2. Distribution of property in the dissolution order
Robert argues that the trial court erred by “distributing property . . . without making
findings of fact and conclusions of law supporting the distribution.” Br. of Appellant at 11. We
hold that the trial court’s distribution of property in its final dissolution order was supported by
adequate findings of fact and conclusions of law and that the trial court’s findings and conclusions
of law were supported by substantial evidence.
Under CR 52(a)(2)(B), a trial court’s judgment in a dissolution proceeding must be
supported by findings of fact and conclusions of law, which must be “sufficient to suggest the
factual basis for the ultimate conclusions.” In re Marriage of Lawrence, 105 Wn. App. 683, 686,
20 P.3d 972 (2001). If the trial court made such findings of fact and conclusions of law, we
consider only whether substantial evidence supports the findings and whether the findings support
the conclusions. In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999).
“‘Substantial evidence’ is evidence sufficient to persuade a fair-minded person of the truth
of the matter asserted.” In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014).
The party challenging a finding of fact bears the burden of showing it is not supported by
substantial evidence. Nordstrom Credit, Inc. v. Dep’t of Revenue, 120 Wn.2d 935, 939-40, 845
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P.2d 1331 (1993). Disputed evidence is still substantial if it presents “‘any reasonable view [that]
substantiates [the trial court’s] findings, even though there may be other reasonable
interpretations.’” Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 713, 732
P.2d 974 (1987) (alterations in original) (quoting Ebling v. Gove’s Cove, Inc., 34 Wn. App. 495,
501, 663 P.2d 132 (1983)).
i. Sufficiency of the findings of fact and conclusions of law
Robert contends that the findings of fact and conclusions of law regarding the distribution
of property and debt were insufficient because each “simply lists that the property and debt is set
forth in the Final Divorce Order” and because “[e]ach conclusion is that the division of the property
and debt is fair (just and equitable).” Br. of Appellant at 11. We disagree.
The trial court’s findings of fact were “sufficient to suggest the factual basis for [its]
ultimate conclusions.” Lawrence, 105 Wn. App. at 686. The trial court explicitly noted that the
“[b]asis for [its] findings and conclusions” was the “[s]pouses’ agreement reached at mediation in
the form of a written CR 2A Agreement . . . clarified and confirmed by [the] Arbitration Award
issued by Arbitrator Norm Margullis.” CP at 162. As Robert himself agrees, the trial court was
bound by the arbitrator’s decision.
We also hold that the trial court’s conclusions of law, stating that the provisions regarding
distribution of property were just and equitable, were supported by these factual findings. The trial
court’s final order was comprised of the final pleadings that Nia submitted. The trial court did not
err in finding these final pleadings just and equitable because they reflected the terms of the CR
2A agreement, which the parties themselves agreed to, and the arbitrator’s ruling, to which the
parties agreed to be bound.
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ii. The trial court’s allocation of remaining home sale proceeds
Robert argues that the trial court erred in its final dissolution order when it awarded Nia
$232,396 and awarded Robert $136,807 out of the home sale proceeds held in Nia’s lawyer’s trust
account “without further elaboration.” Br. of Appellant at 12. To the extent Robert is arguing that
the trial court’s calculation is not supported by substantial evidence, we disagree. We hold that
Robert has not met his burden to show that the trial court’s award was not supported by substantial
evidence.
Robert has not shown that the trial court’s order departed from the arbitrator’s ruling as to
how the final order should be drafted. Nia submitted a declaration containing a detailed
reconciliation listing precisely what portion of the home sale proceeds was to be allocated to pay
off community debt, the value of setoffs for property retained by Robert, and the value of debits
from Nia back to Robert to account for debts, expenses, and other terms assigned to her under the
CR 2A agreement and the arbitrator’s decision. Nia’s reconciliation is supported by exhibits
confirming the figures she relies on.
Robert has not taken issue with any of the specific terms or calculations in Nia’s
reconciliation. Robert never offered contradictory evidence suggesting that the money should be
allocated differently. He did not explain why the trial court’s findings of fact were not supported
by substantial evidence nor did he explain how the trial court’s findings did not support its
conclusions of law. Finally, he did not explain how any of the calculations conflicted with the
arbitrator’s decision, except for those things discussed above that the trial court expressly reserved
for future arbitration. Moreover, the trial court’s order contemplated that any remaining unresolved
issues would be arbitrated and could be addressed using the holdback funds.
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Robert has not shown that the calculations that the trial court adopted lacked support, nor
has he shown that they conflicted with the parties’ agreement or the arbitrator’s decision.
C. The Arbitrator’s Future Involvement in This Case
Robert argues that the trial court erred because it “modified the parties’ [CR 2A] agreement
by limiting the arbitrator’s future role” in his and Nia’s disputes. Br. of Appellant at 13. But the
trial court did not limit the arbitrator’s future role in resolving disputes between the parties.
Robert argues the following statements in the trial court’s dissolution order constitute
limitations on the arbitrator’s future role:
 “Any dispute as to the community or post-separation personal charges . . . shall be
submitted to binding arbitration as per the terms of the CR 2A Agreement.” CP at 170.
 “[A]ny disputes with respect [to debt collection] shall be resolved in arbitration under
the terms of the CR 2A Agreement.” CP at 174.
 “The sum of $20,000.00 from each party’s share of the remaining proceeds . . . shall be
held in the trust account of Petitioner’s attorney . . . pending arbitration award to resolve
the remaining issues of debt payment and personal property setoffs.” CP at 176.
These provisions do not limit the arbitrator’s involvement in future disputes between the parties.
The CR 2A agreement states, “Any disputes in drafting of the final documents or as to reserved
and/or omitted issues shall be resolved by Norm Margullis in binding arbitration.” CP at 87. By
identifying the areas above as disputes that needed to be resolved by the arbitrator, the trial court
did not limit Margullis’s involvement, because the trial court’s final order never suggested that the
arbitrator had authority to resolve those issues to the exclusion of any other issues that might arise.
Rather, the trial court flagged the unresolved issues that comprised the basis of its $20,000
holdback from each party’s share of the home sale proceeds.
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D. Robert’s Request for Attorney Fees
Robert argues that the trial court erred under RCW 26.09.140 when it denied Robert’s
motion for attorney fees. We disagree and hold the trial court did not abuse its discretion.
Under RCW 26.09.140, a trial court may, “after considering the financial resources of both
parties” choose to award fees and costs to one party. “We review statutory attorney fee award
decisions for an abuse of discretion.” In re Marriage of Coy, 160 Wn. App. 797, 807, 248 P.3d
1101 (2011). We defer to discretion of the trial court unless its decision was untenable or
manifestly unreasonable. Id.; In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362(1997).
RCW 26.09.140 instructs the trial court to balance the financial need of both parties. “‘The
purpose of the statutory authority [to award fees and costs] is to make certain that a person is not
deprived of his or her day in court by reason of financial disadvantage.’” In re Marriage of Burke,
96 Wn. App. 474, 479, 980 P.2d 265 (1999) (quoting 20 KENNETH W. WEBER, WASHINGTON
PRACTICE: FAMILY AND COMMUNITY PROPERTY LAW § 40.2, at 510 (1997)). Courts may also look
outside the statute to award fees and costs on an equitable basis. “A party’s intransigence can
substantiate a trial court’s award of attorney fees, regardless of the factors enunciated in RCW
26.09.140.” In re Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999).
The trial court did not abuse its discretion by declining to award attorney fees to Robert.
The trial court could reasonably have concluded that neither party’s economic need substantially
outweighed the other’s. The fact that the arbitrator never ruled that one party had greater financial
need than the other supports the trial court’s decision not to award either party fees or costs under
RCW 26.09.140 based on financial need. In addition, Nia did not act with intransigence in
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No. 52787-1-II
requesting the trial court to enter her final pleadings. We therefore affirm the trial court’s decision
to deny Robert’s request for attorney fees and costs.
E. Attorney Fees on Appeal
On appeal, both parties request attorney fees under RAP 18.1(a) and RCW 26.09.140. We
decline to award attorney fees to either party. Under RCW 26.09.140, this court has discretion to
award reasonable costs and attorney fees to either party on appeal “after considering the financial
resources of both parties.” We balance “the financial need of the requesting party against the other
party’s ability to pay.” In re Marriage of Kim, 179 Wn. App. 232, 256, 317 P.3d 555 (2014).
Noting that the CR 2A agreement contemplates an equalized distribution of community assets and
debts, we find no disparity in the financial resources of Nia and Robert sufficient to warrant
awarding fees and costs to either party.
Nia also argues that she is entitled to sanctions in the form of attorney fees under RAP
18.9(a) because Robert’s appeal was frivolous. While we affirm the trial court’s denial of Robert’s
motion to compel arbitration and its entry of its findings, conclusions, and order, we do not find
that he was intransigent or that his appeal was so “devoid of merit” as to warrant imposing
sanctions in the form of ordering him to pay Nia’s attorney fees. See In re Marriage of Schnurman,
178 Wn. App. 634, 644, 316 P.3d 514 (2013).
CONCLUSION
We affirm the trial court’s denial of Robert’s motion to compel arbitration. We affirm the
trial court’s findings of fact, conclusions of law, and final order of dissolution. We decline to award
attorney fees on appeal.
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No. 52787-1-II
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Glasgow, J.
We concur:
Maxa, C.J.
Melnick, J.
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