In Re The Marriage Of: Doris Berg, Res/cross-app. v. Louis Berg, App/cross-res.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of NO. 67817-5-
t-o (Ji o
ca
DORIS BERG, i*> i t '^:
•^~ n .-
DIVISION ONE o -.-(...
Respondent, ——
ro
y-or
c/in*.
^pr* "~C "?-'
and
.».-',.-,
UNPUBLISHED OPINION vJ3
—'-CT
LOUIS BERG, ro
Appellant. FILED: November 12,2013
Leach, C.J. — Lou Berg appeals the decree dissolving his marriage with
Doris Berg.1 He contends that the trial court erred by invalidating the parties'
prenuptial agreement, by excluding untimely disclosed witnesses, by awarding
Doris maintenance, and by denying his motion for reconsideratior). Doris cross
appeals, challenging the court's valuation of Lou's business assets. Both parties
request attorney fees on appeal. Because substantial evidence supports the trial
court's findings and the court did not abuse its discretion, we affirm
FACTS
Lou and Doris Berg married in March 1982. It was a second marriage for
each. Less than two weeks before their wedding, Lou took Doris to meet with his
We use the parties' first names for clarity.
NO. 67817-5-1/2
attorney, Wolfgang Anderson, about a prenuptial agreement. Anderson told
Doris to "look it over." Doris met with her parents' longtime attorney, Howard
Pruzan, for a 30-minute consultation to review the document. Prupan may have
made some minor changes to the document.
The agreement purported to protect the parties' separatte assets. It
identified the assets each owned at the time they married. Doris owned a home
j
on Mercer Island and an automobile; she had money in various bank accounts
and retirement savings, two term life insurance policies, and spme personal
possessions. Excluding the insurance policies, which had no cash value, her
assets totaled approximately $160,000. By contrast, the agreenrjent described
Lou's estimated net worth at over $350,000, including the value of his financial
services business, two vacation homes, investment properties, ^nd whole life
insurance investments.
When they married, Doris and Lou had a significant earning differential
that continued throughout the marriage. Doris worked as a speech therapist in
the King County School District for more than 30 years. The district paid her
ict
about $60,000 the year before the dissolution proceedings began . Lou worked
for Crown Finance, a financial services company that made high interest "hard
money" loans. Eventually, he became the sole owner of the conppany n the
NO. 67817-5-1/3
years before their dissolution, Lou's average salary was between $200,000 and
$250,000.
Lou and Doris's marriage lasted 27 years. In July 2009, Doris filed for
legal separation and then for dissolution. At the time that they separated, Doris
and Lou both planned to retire within the next few years. The trial occurred in
May 2011 and lasted five days. Lou sought to enforce the prenuptial agreement.
The court denied enforcement, finding the agreement to be both substantively
and procedurally unfair. Instead, it awarded Lou assets valued at over $3.5
million and Doris assets valued at approximately $2.5 million, plus maintenance
of $4,000 per month for eight years. Both parties moved for reconsideration.
The court denied Lou's motion and granted Doris's motion in part. Both parties
now appeal. We discuss additional facts in the relevant sections below.
ANALYSIS
Lou raises multiple issues. He challenges the trial court's refusal to
enforce the prenuptial agreement, its exclusion of two witnesses, its valuation
and characterization of certain assets, its division of assets and liabilities, and its
award of maintenance to Doris. We reject each challenge.
We first address Lou's challenge to the decision not t enforce the
prenuptial agreement. The court found,
[T]he prenuptial agreement should not be enforced as it wks both
substantively and procedurally deficient at the time it was executed.
-3-
NO. 67817-5-1/4
The agreement was substantively unfair as it did not properly
provide for the growth of community property during the marriage.
Specifically, paragraphs 4-6 and paragraph 16 of the prenuptial
agreement (petitioner's Exhibit 69) were unfair to the petitioner.
Further, the Court concludes that the amount of time to evaluate
the prenuptial agreement (30 minutes), the inadequacy of the
review by petitioner's then-counsel, and the short duration between
the draft prepared by respondent's counsel and the date of signing
(within five days of the wedding) provide substantial evidence that
the petitioner was not adequately protected nor properly irjformed
of her rights under Washington law.
Courts employ a two-pronged analysis for determining th^ validity of a
prenuptial agreement.2 First, the court decides whether the agreement makes
fair and reasonable provision for the party not seeking enforcement of the
agreement.3 If it does, then the analysis ends, and the court yj\\\ enforce the
agreement.4 If the agreement does not make a fair and reasonably provision for
the opposing spouse, then the court must determine the procedurral fairness of
the agreement by answering two questions: (1) did the parties make full
disclosure of the amount, character, and value of the property involved and (2)
did they enter the agreement fully and voluntarily with independent advice and
with full knowledge of their rights.5
2In re Marriage of Bernard. 165 Wash. 2d 895, 902, 204 P.3d 9p7 (2009).
3 Bernard, 165 Wash. 2d at 902.
4
Bernard, 165 Wash. 2d at 902.
5 Bernard, 165 Wash. 2d at 902-03.
NO. 67817-5-1/5
Absent a factual dispute, we review the substantive fairness of a
prenuptial agreement de novo.6 The party seeking to enforce the agreement has
the burden of proving its validity.7 Washington courts examine the agreement's
terms and the surrounding circumstances at the time of execution and not at the
time of enforcement.8 The factors the court may consider when determining a
prenuptial agreement's substantive fairness include (1) the proportionate means
of each party, (2) restrictions on the creation of community property, (3)
prohibitions on the distribution of separate property upon dissolution, (4)
preclusion of common law and statutory rights to both community and separate
property upon dissolution, (5) limitations on inheritance, (6) prohibitions on
awards of maintenance, and (7) limitations on the accumulation of separate
property.9
6 Bernard, 165 Wash. 2d at 902 (citing In re Marriage of Foran 67 Wash. App.
242, 251 n.7, 834 P.2d 1081 (1992)).
7In re Estate of Crawford, 107 Wash. 2d 493, 496, 730 P.2d 675 (1986).
0 Bernard. 165 Wash. 2d at 904.
9See, e.g.. Bernard. 165 Wash. 2d at 905 ("[A]n agreement disproportionate
to the respective means of each spouse, which also limits the accumulation of
one spouse's separate property while precluding any claim to the cither spouse's
separate property, is substantively unfair."); In re Marriage of Matsdn , 107Wn.2d
479, 486, 730 P.2d 668 (1986) (holding that a prenuptial agreement was "grossly
disproportionate" where all value, income, and earnings from sepiarate property
would remain separate upon dissolution); Foran. 67 Wash. App. at 249- 51 (holding
that a prenuptial agreement which waived any claim of right to separate property
in the event of death or dissolution and effectively prohibited he growth of
community property was substantively unfair).
-5-
NO. 67817-5-1/6
Here, the court identified paragraphs 4, 5, 6, and 16 of the agreement as
the provisions supporting the court's conclusion that the agreement did not fairly
provide for the accumulation of community property. Paragraph 4 provides that
the assets each party owned at the time of the agreement should remain
separate property and that "[a]ny additions or enhancements in the value of
separate property of either party which occurs due to major structural
improvements of said property by community funds shall be community property
only to the extent of the costs thereof and the appreciation due thereto." Itfurther
provides that any community funds otherwise used for the direct benefit of one
party's separate property shall be deemed a gift of community property to the
party owning the separate asset.
Paragraph 4 effectively extinguishes any communlity right of
reimbursement for community funds expended on separate property for any
purpose other than a major structural improvement. Notably, the agreement
does not require that both spouses consent to these expenditures, Given Lou's
disproportionate separate assets and income at marriage, this paragraph
operates disproportionately in favor of Lou.
Paragraph 5 provides that all assets acquired with the proceeds of
separate property shall remain separate property and that the parties can only
commingle assets through "title documents, deeds and/or by recognizing and
-6-
NO. 67817-5-1/7
listing both parties on any new assets or by adding the other party to the
preexisting ownership as community property." This paragraph alsb affirmed that
"any wages, salaries and/or other employment benefits attributable to the labor of
either of them during such time that they shall be living together as husband[]
and wife, shall be deemed community property." This paragraph restricts the
creation of community property through commingling.
Paragraph 6 addressed the consequences of dissolution:
[l]in the event of a dissolution of their marriage, it is hereby agreed
that each shall be awarded his or her own separate proderty as
defined in this Agreement; and each of them expressly waives any
rights that he or she may have or subsequently acquire in the
separate property of the other. In addition, if the separate droperty
contains any community property investment or lien therein which is
to be divided by reason of any dissolution of marriage that
separate property shall nevertheless be awarded to the who
owns said property as his or her own separate property not
withstanding any community investment. The discharge of the
community lien shall be made by some other mode throiligh the
disposition of jointly-acquired community assets and/or payments
The remaining community property is to be divided between the
parties in a[n] equal manner.
This paragraph substantially modifies the statutory right of a spouse
to a "disposition of the property and the liabilities of the parties, either
community or separate, as shall appear just and equitably after
considering all relevant factors."10 It fails to account for the
disproportionate means of Lou at marriage as well.
10
RCW 26.09.080.
-7-
NO. 67817-5-1/8
Paragraph 16 provides that property acquired by the parties after
marriage shall be owned in proportion to the amount of separate and
community contributions used to purchase the assets. It also states,
Lou shall always be entitled to any and all interest in and to his
business even though he is spending community industry arid labor
thereon and any benefit flowing therefrom, provided, however, that
Lou never take a salary of less than his present salary and
provided, further, however, that no interest shall be given to Doris
therein if a salary is taken in an amount lesser than his present
salary if business circumstances would not allow the taking of his
present salary.
This provision fails to account for both the inflationary factors that ordinarily
operate on wages over time and any increase in the value of Lou's services over
time due to increased skill or experience.
"There is nothing unfair about two well-educated working professionals
agreeing to preserve the fruits of their labor for their individUal benefit."11
"However, an agreement disproportionate to the respective means of each
spouse, which also limits the accumulation of one spouse's separate property
while precluding any claim to the other spouse's separate property, is
substantively unfair."12 The agreement here provided significantly greater benefit
to Lou and allowed him to expend considerable community labor on his separate
property at the expense of the community. While paragraph 5 characterizes both
11
In re Marriage of DewBerrv. 115 Wash. App. 351, 365, 62 P.3d 525
(2003).
12
Bernard. 165 Wash. 2d at 905.
-8-
NO. 67817-5-1/9
spouses' wages, salaries, and employment benefits as community property,
paragraph 16 explicitly exempts Lou's labor and community contributions to his
separate property business so long as he contributed an annual s;alary, capped
in amount for all time, or such lesser amount as business circumstances allow, to
the community. As a business owner, Lou alone controlled those business
circumstances, which gave very little protection to the community Further, the
agreement provides that expenditure of community funds on the separate assets
produces community property only if expended on "ma or structural
improvements." All other community expenditures become gifts t^ the owner of
separate property. The agreement deprives Doris of the right to request a just
and equitable division of all of the parties' assets and liabilities without any
corresponding consideration.
Doris testified that she believed the agreement was fair wheifi she and Lou
signed it, but she did not think it was fair now, given their circumstances upon
dissolution. Lou cites this testimony as evidence of the agreement's substantive
fairness. We disagree. Despite Doris's subjective beliefs, the disproportionate
benefit to Lou, the restrictions on acquisition and growth of commi|inity property,
the ability for Lou to utilize his community labor to grow his separate property
business, and Doris's waiver of substantial statutory rights collectively establish a
substantively unfair agreement.
-9-
NO. 67817-5-1/10
Because Lou cannot establish the substantive fairness of the agreement,
we must consider its procedural fairness. To determine whethqr a prenuptial
agreement is procedurally fair, we consider (1) whether the parties fully disclosed
the amount, character, and value of the property and (2) whether both spouses
entered into the agreement freely and voluntarily, upon independent advice, and
with full knowledge of their rights.13 Our review for procedural fai
faiifness involves
mixed issues of policy and fact; thus, we review the issue de novo in light of the
trial court's resolution of the facts.14
Because the parties do not dispute the adequacy of theij" premarriage
property disclosures, we address only the second prong.15 On this issue, the trial
court found
that the amount of time to evaluate the prenuptial agreement (30
minutes), the inadequacy of the review by petitioner's then-counsel,
and the short duration between the draft prepared by respondent's
counsel and the date of signing (within five days of the wedding)
provide substantial evidence that the petitioner was not adequately
protected nor properly informed of her rights under Washington law.
Substantial evidence supports this finding. 16 In re Marriage of Bernard17
illustrates why. There, the court invalidated a prenuptial contract because the
13 Matson. 107 Wash. 2d at 483.
14 Bernard. 165 Wash. 2d at 903.
15 Bernard. 165 Wash. 2d at 905-06.
16 Sunnvside Valley Irrigation Dist. v. Dickie. 149 Wash. 2d 873 879, 73 P.3d
369 (2003).
17 165 Wash. 2d 895, 204 P.3d 907 (2009).
-10-
NO. 67817-5-1/11
wife's attorney did not have enough time to review it adequately and the wife
signed it without "'full knowledge of its legal consequences."'1 B While the
husband and his attorney worked on the agreement for nearly si
six months and
regularly advised the wife to obtain independent counsel, they did not provide her
with a draft agreement until 18 days before the wedding.19 Three days before the
wedding, the wife's attorney, an experienced family law practitioner received a
draft from the husband's attorney which was substantially different from the one
the wife previously received.20 He testified that he had insufficient time to fully
review the proposed agreement or draft a counteragreement. He Wrote his client
a letter identifying five major areas of concern, but because the wif4 was involved
with wedding preparations, he could not meet with her to discuss His concerns.21
She signed the prenuptial agreement the day before the wed^l ing with the
understanding that they could amend the document later to address her
attorney's concerns.22 The court held that these circumstarices provided
23
substantial evidence to support the trial court's finding of procedura unfairness
18 Bernard. 165 Wash. 2d at 906.
19 Bernard. 165 Wash. 2d at 899.
20 Bernard. 165 Wash. 2d at 899.
21 Bernard. 165 Wash. 2d at 899.
22 Bernard. 165 Wash. 2d at 899-900.
23 Bernard. 165 Wash. 2d at 906.
-11-
NO. 67817-5-1/12
Similarly, in In re Marriage of Foran, 24 the court invalidated an agreement
due to procedural unfairness to the wife. The husband and his attorney worked
on the agreement for over a month but did not give it to the wife until two days
before the parties left for their wedding trip.25 While the husband's attorney
clearly informed the wife to have her own attorney review the document, she did
not do so.26 No one explained to her that the agreement allowed the husband,
who already had significant separate assets, to increase his separate property at
the expense of the marital community.27 She also testified about domestic
violence in their relationship and her belief that her husband would beat her if she
did not sign the document.28 The court found that the wife did not "voluntarily
and intelligently" enter the prenuptial contract because she could not understand
how economically unfair it was to her and to the marital estate.29
Here, Doris's cursory legal review of the document with her parents'
attorney, the short period of time between receipt of a draft agreement and
signing, and Doris's lack of full knowledge about its legal consequences provide
substantial evidence to support the court's finding of procedural unfairness.
24 67 Wash. App. 242, 256-58, 834 P.2d 1081 (1992).
25 Foran. 67 Wash. App. at 245.
26 Foran. 67 Wash. App. at 245-46.
27 Foran, 67 Wash. App. at 253, 255-56.
28 Foran. 67 Wash. App. at 246.
29 Foran, 67 Wash. App. at 257-58.
-12-
NO. 67817-5-1/13
We next address Lou's challenge to the trial court's exclusion of two
witnesses Lou wished to call to provide testimony about the valuation of Crown
Finance. Shortly before trial, Bank of America canceled Crown Finance's line of
credit and called in the outstanding debt. Lou liquidated his profit-sharing plan to
pay the debt and avoid litigation.30 Based on the elimination of this $1 million
liability, Doris substantially increased her business valuation. As a result, Lou
sought to call two fact witnesses having familiarity with "hard money" lender
businesses to testify about the economy's impact upon the collectability of loans.
Because Lou did not timely disclose these witnesses as required by King County
Local Court Rule 26(k), the trial judge excluded their testimony.
We review a trial court's decision to exclude witnesses for an abuse of
discretion.31 Lou claims that the court erred by disregarding the factors set forth
in Burnet v. Spokane Ambulance32 before excluding the witnesses' testimony
altogether and failing to make the findings required by Teter v. Deck.33 In Burnet.
the court articulated three factors that must be shown on the record before the
court may impose one of the "harsher" discovery sanctions, such as dismissal,
default, or exclusion of testimony: (1) willful or deliberate violation of the
30 The court noted that while Lou's decision to liquidate the profit-sharing
plan, rather than some other assets, resulted in an unnecessarily large tax
burden, it did not find that Lou breached his duty to the community.
31 Lancaster v. Perry, 127 Wash. App. 826, 830, 113 P.3d 1 (2f)05).
32 131 Wash. 2d 484, 494, 933 P.2d 1036 (1997).
33 174 Wash. 2d 207, 274 P.3d 336 (2012).
-13-
NO. 67817-5-1/14
discovery rules and orders, (2) substantial prejudice to the other party's ability to
prepare for trial, and (3) the trial court explicitly considered whether a lesser
sanction would have sufficed.34 In Teter. the court held that the trjal court must
make findings about the Burnet factors on the record, either orally br in writing.35
A trial court abuses its discretion when it excludes witnesses without these
findings.36
Here the trial court did not make findings on the Burnet actors before
excluding Lou's proposed witnesses. After hearing argument from both sides
on Doris's motion to exclude, the court explained its decision to exc ude:
The standards under the local rule at issue here, Local Rule 26,
have been applied fairly consistently and clearly in this court to
exclude generally expert witnesses when there hasn't been full
compliance with the provisions of the local rule.
The Court doesn't have to find absolute prejudice as. to the
other party in order to exclude witnesses. The Court doesrj t have
to find that there aren't any options if the Court does allow the
witnesses to testify. The Court has to find out from looking at
what's been presented why the witnesses weren't provded in
compliance with the provisions of the local rule.
As the . . . local rule provides, . . . "Any person not disclosed
in compliance with this rule may not be called to testify at trial,
unless the Court orders otherwise for good cause and su bject to
such conditions as justice requires."
I don't find any good cause basis for allowing these
witnesses to testify.
34 Burnet, 131 Wash. 2d at 494.
35 Teter. 174 Wash. 2d at 217.
36 Burnet. 131 Wash. 2d at 494.
37 In fairness to the trial court, we note that the Supreme Coiirt issued its
Teter opinion long after completion of the trial in this case.
-14-
NO. 67817-5-1/15
The untimely disclosure without good cause prejudicing
substantially the petitioner leaves this Court to conclude tpat the
motion in limine will be granted.
The trial court made no finding of willful violation or deliberate disregard of the
local rule and does not appear to have considered any less severe sanction. The
trial court erred. But Lou demonstrates no prejudice caused by this error.
Establishing error in a civil case without also showing prejudice does not
provide grounds for reversal.38 Lou has not shown any prejudice resulting from
the exclusion of his two proposed witnesses. He represented to the trial court, "It
is likely that [Lou] will only need to call one of these witnesses as a rebuttal
witness if [Doris] maintains her new claim that Crown Finance is worth $1.6
million." The trial court rejected this claim by Doris. Thus, Lou prevailed on the
issue for which he claimed to need these witnesses without them.
On appeal, Lou indirectly suggests prejudice. He points to the trial court's
complaint about the lack of evidence for the value of Crown Finance the court's
dissatisfaction with his valuation expert, and the court's skepticism ^ibout Crown's
accounting. Lou makes no express claim that an excluded witnesjs would have
testified about any of these issues. The record affirmatively suggests they would
not. Lou identified each as a fact witness "needed to testify regarding the
accounts [uncollectibility] and the effect of the housing crisis on both residential
38 Saleemiv. Doctor's Assocs.. Inc., 176 Wash. 2d 368, 380, 29? P.3d 108
(2013).
-15-
NO. 67817-5-1/16
and commercial lending." Lou did not identify either as being knowledgeable
about Crown's operations, assets, or value. Lou has failed to establish any
prejudice.
We next address Lou's challenges to asset valuation and characterization.
He first claims that the trial court abused its discretion by adopt ing Doris's
proposed $340,000 value for the Redmond Ridge investment property despite
Lou's evidence that the building was worth "less than nothing." The trial court did
not abuse its discretion. Where evidence at trial supports two different
valuations, the court acts within its discretion by choosing a va ue anywhere
between those two numbers.39 Lou paid $340,000 for his 16.3 perdent interest in
the property in 2005. As late as 2010, he listed that "net investment" value on a
financial statement. Lou testified that while he anticipated losing two tenants
over the next year, the building was currently fully leased and only one tenant
had defaulted on payments. The property manager testified tha one building
tenant was in default and would not renew the lease, the management company
was in receivership, and Lou and the other owners were responsible for returning
overpayments. She did not testify that the building had no value. While the court
would have been justified in finding that the property had a lower v^lue given the
39 See, e.g.. In re Marriage of Soriano. 31 Wash. App. 432, 435, 643 P.2d
450 (1982) (citing In re Marriage of Lukens. 16 Wash. App. 481, £58 P.2d 279
(1976)).
-16-
NO. 67817-5-1/17
economic climate, it did not abuse its discretion by adopting a valu^ endorsed by
Lou less than one year earlier.
Lou also asserts that the trial court erred when it decline^ to consider
additional valuation evidence for Redmond Ridge presented in his motion for
reconsideration. CR 59(a)(4) allows the court to grant a new trial based on
"[n]ewly discovered evidence, material for the party making the appl ication, which
he could not with reasonable diligence have discovered and produced at the
trial." We review a trial court's decision on a motion for reconsideration for an
abuse of discretion.40 Specifically, Lou asked the court to cdnsider "new"
evidence—that the property management company had filed for bankruptcy and
the owners were liable for further payments and that while they were trying to sell
the building, the realtor anticipated they would have to accept a short sale. The
court found that Lou's proffered evidence did not satisfy the CR 59 standard.
We disagree with Lou's characterization of this evidence as "hew." At the
time of trial, the property management company was in receiveifsh ip and the
owners were responsible for repaying past overpayments they had received.
The transition from receivership into bankruptcy is not a "new" development that
would have changed the court's consideration of the property value.
40 Palmer v.Jensen. 132 Wash. 2d 193, 197, 937 P.2d 597 (1997)
-17-
NO. 67817-5-1/18
Lou next contends that the court erred by characterizing the remaining
payments due on a promissory note from Panos Properties as community
property. Lou and his sister sold a jointly-owned investment property to Panos
Property in 2005. Lou received $595,000 at closing and a promissory note for
the balance, payable in monthly installments of $8,443, with a balloon payment of
$778,000 due in November 2014. Apart from briefly alleging that the court's
characterization was flawed, Lou fails to support this claim with argument or
citation to authority;41 therefore, we do not address it on appeal.
Also, Lou claims that the court erred by characterizing a^s community
property and ultimately awarding the parties equal interests in the proceeds of a
42
$117,833 loan made to Doris's mother, Marie Fink, prior to Fink's death. Again
because Lou fails to support this claim with argument or authori y, we do not
43
consider it
Lou challenges the court's decision to award Doris maintenance. The trial
44
court has broad discretion to award spousal maintenance. RCW
41 RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d
801,809, 828 P.2d 549 (1992).
42 Lou makes numerous assignments of error regarding this property
interest. Initially, the court found no evidence to support Lou's contention that the
loan was made out of his separate funds. It awarded him 50 percent of the
proceeds and ordered Doris to pay $58,500. Then, when the 90U1I partially
granted Doris's motion to reconsider, the court found that the| lien was a
community asset.
43 RAP 10.3(a)(6); Cowiche Canyon. 118 Wash. 2d at 809.
44 In re Marriage of Bulicek, 59 Wash. App. 630, 633, 800 P.2d 394(1990).
-18-
NO. 67817-5-1/19
26.09.090 places one limitation on the amount and duration of maintenance : the
award must be just.45 The relevant statutory factors the court hiust consider
include each party's financial resources; the age, physical and emotional
condition, and financial obligations of the spouse seeking maintenance ; the
standard of living during the marriage; the duration of the marriage ; and the time
needed to acquire education necessary to obtain employment.46
The trial court awarded Doris $4,000 per month in maintenance for eight
years based on Doris's need and Lou's ability to pay. Considering the relative
positions of the two parties and the statutory factors, the court did not abuse its
discretion.
Doris filed a conditional cross appeal, contending that the oourt erred by
reducing the value of Crown Finance by over $1 million to account for a
shareholder loan owed to Lou without including that $1 million as an asset
awarded to Lou. As a result, she asks that if we remand the case to the trial
court, we also correct this valuation error. Because we affirm the trial court's
decision below, we accept Doris's waiver of this issue.
Both parties seek attorney fees under RCW 26.09.140, whjch allows the
court to consider the parties' financial resources and award reasonable attorney
45
In re Marriage of Luckev. 73 Wash. App. 201, 209, 868 P.2d 189(1994).
46 RCW 26.09.090; In re Marriage of Vander Veen. 62 Wn. App. 861,867,
815 P.2d 843 (1991).
-19-
NO. 67817-5-1/20
fees. When awarding fees, this court examines the arguable meri of the issues
and the parties' financial resources.47 However, the issues raised by Lou on
appeal, though not warranting reversal in this case, had arguable merit. Given
Doris's property distribution, as well as her pension payments her Social
Security income, and her maintenance award, she has not proved that she needs
her attorney fees paid. Therefore, each party should pay his or her own fees.
CONCLUSION
Because the record supports the trial court's decision that the prenuptial
agreement was not enforceable, its exercise of discretion in valuing,
characterizing, and dividing the parties' assets and liabilities, anq its award of
maintenance to Doris, we affirm.
£
WE CONCUR:
jr
^ *^SAs^>
47
n re Marriage of Griffin. 114 Wash. 2d 772, 779, 791 P.2d 519| (1990).
-20-