Opinion
No. 59345-5-I.
October 27, 2008.
Appeal from a judgment of the Superior Court for King County, No. 04-3-05085-9, Anthony P. Wartnik, J., entered November 30, 2006.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Cox and Ellington, JJ.
Clare M. Hansen appeals the division of property in the dissolution of her marriage to Bruce S. Anderson. Hansen argues the trial court erred by refusing to enforce a separate property agreement as to the status of the shares she acquired as a partner in Badgley, Phelps, Bell, Inc. (BPB), by characterizing the BPB shares and dividends as community property, and by valuing the shares as of the date of trial instead of the date of separation. Hansen also argues the trial court erred in deciding to equitably toll the statute of limitations on a written promissory note she executed in favor of Anderson. In addition, Hansen contends the court abused its discretion in making a partial award of attorney fees to Anderson based on her intransigence. We affirm the trial court in all respects.
FACTS
Clare M. Hansen and Bruce S. Anderson began dating in 1987. Hansen worked as a financial advisor for an investment management firm, Badgley, Phelps, Bell (BPB). Hansen lived in a house she owned in Seattle with her one-year-old daughter from her previous marriage. Anderson worked as an account manager for a computer company and lived in a house at 73rd Place in Kirkland that he co-owned with a friend, Jay Foster.
In 1991, Foster sold his interest in the 73rd Place house to Anderson. That same year, Hansen and Anderson started living together at the 73rd Place house. At the time, Hansen earned approximately $29,000 and Anderson earned approximately $79,000. After moving in with Anderson, Hansen rented the house she owned in Seattle. In 1993, Hansen sold her house and received $70,000 in net proceeds. Hansen had two years to reinvest the proceeds from the sale or she would incur a capital gains tax.
In August 1995, Anderson agreed that Hansen could purchase a one-half interest in the 73rd Place house for $175,000. Hansen paid Anderson $25,000. On August 23, Hansen signed a promissory note to Anderson for the remaining $150,000, with monthly payments of $997.97. The promissory note was secured by a signed deed of trust on the 73rd Place house. Anderson signed a quitclaim deed on August 23 conveying a one-half interest in the 73rd Place house to Hansen. The quitclaim deed was recorded, but the promissory note and the deed of trust were not.
Hansen and Anderson got married on December 23, 1995. In 1996, Hansen was promoted to a portfolio manager at BPB. In 1997, Hansen became a partner in BPB and purchased 1250 shares of BPB at $244,554. Hansen obtained a loan to purchase the shares. Hansen also had a BPB attorney draft an agreement designating the shares as Hansen's separate property, "Agreement Regarding the Status of Property." Hansen and Anderson signed the Agreement.
Sometime either in December 1997 or the spring of 1998, Hansen stopped making payments on the promissory note. In the spring of 1998, Anderson sold the 73rd Place house and Hansen and Anderson purchased a new house in Kirkland for $705,000. The proceeds from the sale of the 73rd Place house were used to pay off Anderson's mortgage on the 73rd Place house. Anderson used the remainder of the proceeds, approximately $185,000, to purchase the new house at Holmes Point. The mortgage on the Holmes Point house was $528,000.
In 1999, BPB had a ten for one stock split and Hansen's original 1250 shares became 12,500 shares. In 2001, Hansen purchased an additional 1000 shares.
Hansen and Anderson separated in September 2004. On September 14, Hansen filed a petition for dissolution of the marriage. Hansen and Anderson unsuccessfully attempted to resolve the division of their property in mediation.
At the time of trial in 2006, Anderson had been unemployed since 2003 and Hansen had an annual income of approximately $315,420. The trial began in January and lasted 13 days. Approximately 200 exhibits were admitted at trial. The trial concluded in March.
Hansen took the position at trial that except for the Holmes Point house, a timeshare, some cars, and a bedroom set, all other property was separate. Hansen claimed that she and Anderson had an oral prenuptial agreement or, alternatively, that there was an implicit prenuptial agreement to treat their earnings as separate property. Hansen maintained that there was no need to have a written prenuptial agreement because the oral agreement was clear. Hansen testified that before they married, she and Anderson split the expenses and that when they were married they agreed to continue to split expenses equally. Hansen also claimed that based on the "Agreement as to Status of Property" (the property Agreement) that Anderson signed after they were married, the BPB shares were her separate property. Hansen testified that she did not remember what she told Anderson about the Property Status Agreement.
Anderson took the position that all of the property acquired during the marriage, including the BPB shares, was community property and submitted a spreadsheet with a proposed division of their community property. Anderson testified that he and Hansen did not have a prenuptial agreement or an agreement to split expenses equally. Anderson also testified that the only reason he signed the Property Status Agreement was because Hansen told him that he needed to do so in order for her to become a partner. Anderson's expert valued the BPB shares at $507,475 as of the date of trial. Anderson also sought an offset in the distribution of the property for the amount Hansen still owed on the promissory note.
In April, the trial court issued a 14-page "Memorandum Opinion re: Pre and Post-Nuptial Agreements/Status of Property" and a spreadsheet distributing the property equally, "50/50." The court found that Hansen did not prove there was an enforceable prenuptial agreement and that all earnings and property acquired during marriage was community property. The court stated that Hansen did not "present any evidence regarding specific discussions or agreement reached immediately before the marriage as to what the arrangement would be regarding the status of property, only that they continued to operate as they had during the 4-5 years they lived together before marriage." The court also concluded the Property Status Agreement was not binding and was void ab initio because Hansen acquired Anderson's signature "through deliberate concealment and deception."
After a series of motions to reconsider the property division, on October 18 the court entered the decree of dissolution and detailed findings of fact and conclusions of law. The findings of fact and conclusions of law incorporate by reference the court's 14-page memorandum opinion and a final spreadsheet that identifies, characterizes, and values the assets and liabilities. The final spreadsheet reflects some adjustments from the court's previous version, but still divides the "net community property" equally "50/50."
In the final spreadsheet, the court characterized the BPB dividends through January 2006 as community property.
The property held by the parties as of September 10, 2004 constituted community property. Additionally, all BPB dividends through the date of entry of the divorce decree are community property. Total dividends through January 2006 were $991,801.
Attached hereto and incorporated herein as a finding by the court is Exhibit A which identifies, values and characterizes the property of the parties, both community and separate.
The court also treated a portion of the amount Hansen owed Anderson on the promissory note as an equitable offset in the property division. In doing so, the court expressly rejected Hansen's argument that the amount Hansen owed Anderson on the promissory note was barred by the statute of limitations.
Ms. Hansen claims that the statute of limitations has run, yet the period of time is only nine months.
The deed of trust, with promissory note attached, was prepared with Ms. Hansen's name for return mailing from the auditor's office after recording. This evidences not only that she was instrumental in having an attorney draft these documents but also that it was, not Mr. Anderson, who most likely assumed the responsibility that the deed of trust was recorded, an event which did not occur.
Mr. Anderson did not recall or have in his possession the promissory note or associated deed of trust. He sought additional information and documentation through interrogatories, deposition and the services of a real estate attorney. All his efforts were thwarted by Ms. Hansen . . . It was not until January 19, 2006 that Ms. Hansen disclosed the note and deed of trust through a fax from her attorney to Mr. Anderson's attorney. [Exhibit 147] The documents were in Ms. Hansen's possession all the time. The testimony by Ms. Hansen that the documents were belatedly discovered in her daughter's photo album box is not credible.
Ms. Hansen is found to have engaged in bad faith, deception and non-disclosure with respect to the deed of trust and promissory note. Under the circumstances, the statute of limitations is equitably tolled.
Mr. Anderson is equitably awarded one-half of the $116,565 remaining balance on the promissory note, or $58,282.50.
In addition, the court specifically found that because Hansen withheld disclosure of the promissory note and deed of trust, "engaged in a continual pattern of obstruction," made unsubstantiated allegations and "extended the length of trial far beyond what was reasonable or necessary," Anderson was entitled to partial reimbursement of attorney fees of $19,500 based both on Hansen's intransigence and based on his need and Hansen's ability to pay.
After Hansen filed her appeal, the Holmes Point home sold for $2,236,582.
In April 2007, the trial court entered an order on Hansen's motion to stay disbursement of the proceeds from the sale. The court instructed the escrow agent to disburse all funds except $500,000 pending resolution of the appeal.
ANALYSIS
On appeal, Hansen challenges the trial court's (1) refusal to enforce the Property Status Agreement and the court's decision to characterize the BPB shares and dividends as community property, (2) the decision to use the trial date instead of the date of separation to value the BPB shares, (3) the decision to equitably toll the statute of limitations on the promissory note, and (4) the partial award of attorney fees to Anderson based on intransigence. Standard of Review
The trial court has broad discretion in awarding property in a dissolution, and will be reversed only on a showing of manifest abuse of discretion. Brewer v. Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999); In re Marriage of Fiorito, 112 Wn. App. 657, 667-68, 50 P.3d 298 (2002). A trial court abuses its discretion when its decision is manifestly unreasonable or is based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). The trial court's decision "will be affirmed unless no reasonable judge would have reached the same conclusion." In re Marriage of Landry, 103 Wn.2d 807, 809-10, 699 P.2d 214 (1985).
In a dissolution, all separate and community property is before the court for disposition. RCW 26.09.080; Morris v. Morris, 69 Wn.2d 506, 509, 419 P.2d 129 (1966). The court must make a just and equitable distribution of the property and liabilities guided by the statutory factors in RCW 26.09.080. In re Marriage of Pearson-Maines, 70 Wn. App. 860, 864-865 n. 3, 855 P.2d 1210 (1993). Under RCW 26.09.080, the court takes into account: (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.
Findings of fact are considered verities on appeal as long as they are supported by substantial evidence in the record. In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991). Credibility findings are not subject to review on appeal. DewBerry v. George, 115 Wn. App. 351, 362, 62 P.3d 525 (2003). Valuation of property is a question of fact that we review for substantial evidence in the record. In re Marriage of Hall, 103 Wn.2d 236, 246, 692 P.2d 175 (1984). Substantial evidence is a quantum of evidence sufficient to persuade a rational fair-minded person that the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). An error in the valuation of one particular item does not necessarily require reversal of an otherwise fair and equitable distribution of a sizeable estate. In re Marriage of Pilant, 42 Wn. App 173, 181, 709 P.2d 1241 (1985); RCW 26.09.080.
The trial court's characterization of property as community or separate is a question of law that we review de novo. In re Marriage of Skarbek, 100 Wn. App. 444, 447, 997 P.2d 447 (2000). The findings supporting the court's characterization require substantial evidence to support them. Id. All property acquired during marriage is presumed to be community property. In re Marriage of Short, 125 Wn.2d 865, 870, 890 P.2d 12 (1995). The law favors characterization of property as community property unless there is no question of its separate character. In re Marriage of Brewer, 137 Wn.2d at 766-67. A spouse may only overcome this heavy presumption with clear and convincing evidence of the property's separate character. Kolmorgan v. Schaller, 51 Wn.2d 94, 98, 316 P.2d 111 (1957). The BPB Shares and Dividends
Hansen asserts that the trial court erred by refusing to enforce "The Agreement as to Status of Property" (the Property Status Agreement) that Anderson signed designating the BPB shares as Hansen's separate property.
The Property Status Agreement states:
Bruce Anderson and Clare M. Hansen, husband and wife, both of whom are domiciled in the State of Washington, do hereby acknowledge and agree that all of the interests owned by Clare M. Hansen in Badgley, Phelps and Bell, Inc., a Washington corporation ("Badgley") is, and will continue to be, her separate property under the laws of the State of Washington.
The trial court concluded that the Property Status Agreement "is void ab initio and is not binding upon Mr. Anderson. Mr. Anderson's signature thereon was acquired through Ms. Hansen's deliberate concealment and deception and without full disclosure as to all of the circumstances regarding the [BPB partnership], its value, etc." The trial court found that Anderson's testimony that Hansen told him he had to sign the Property Status Agreement in order for her to become a partner was credible, "Anderson's version of what Ms. Hansen told him as to the requirement that he sign the agreement or she couldn't become a partner, rings true."
Hansen contends that because the language is clear, even if Anderson believed he had to sign the Agreement in order for Hansen to become a BPB shareholder, the court should have enforced the Property Status Agreement.
Property acquired after marriage is presumed to be community property and the burden of rebutting this presumption is on the party challenging the asset's community property status. RCW 26.16.030; Dean v. Lehman, 143 Wn.2d 12, 19-20, 18 P.3d 523 (2001). Under In re Marriage of Hadley, 88 Wn.2d 649, 565 P.2d 790 (1977), the test for determining the validity of a property status agreement is: "(1) whether full disclosure has been made by respondent of the amount, character and value of the property involved, and (2) whether the agreement was entered into fully and voluntarily on independent advice and with full knowledge by the spouse of her rights." In re Hadley, 88 Wn.2d at 654. Because the marriage relationship is one of mutual trust and confidence, the parties must exercise the highest degree of good faith, candor, and sincerity when entering into an agreement to keep property separate. In re Marriage of Matson, 107 Wn.2d 479, 483-84, 730 P.2d 668 (1986). The burden of proving good faith is on the party asserting the good faith. In re Marriage of Cohn, 18 Wn. App. 502, 505, 569 P.2d 79 (1977).
Here, the court did not err in refusing to enforce the Property Status Agreement. The record establishes that a BPB shareholder and the shareholder's spouse must sign a "Shareholders Agreement" that sets forth restrictions on the transfer of shares but expressly recognizes the community property status of the shares. The Shareholders' Agreement provides in pertinent part, "[a]ny property interests now owned or hereafter acquired in Shares by any Shareholder's spouse of any Shareholder shall be subject to the terms of this Agreement and the same restrictions on disposition described herein. . . ."
Ex. 17 at p. 9.
However, instead of signing the Shareholders Agreement, Hansen asked the BPB attorney to draft a separate agreement that specifically designated the shares as separate property instead of community property. Anderson testified that he read and understood the Property Status Agreement before signing it, but that Hansen "told me I had to sign this document in order for her to become a partner in Badgley, Phelps Bell."
Lisa Guzman, the chief operating officer for BPB, testified that the Property Status Agreement designating the shares as separate property was specifically created for Hansen and was not required for Hansen to become a partner. Guzman testified that before Hansen requested an agreement designating the shares as her separate property, all the other partners and their spouses had signed the Shareholder Agreement that designated the shares as community property.
Substantial evidence supports the trial court's decision that the Property Status Agreement was not binding and was void ab initio because Hansen acquired Anderson's signature without full disclosure and through deliberate deception. The trial court did not err by refusing to enforce the Agreement and characterizing the BPB shares as community property.
For the first time in her reply brief Hansen cites In re Marriage of Zier, 136 Wn. App. 40, 48, 147 P.3d 624 (2006), to argue that an "item-specific" postmarital agreement does not require the same disclosure and advice as a prenuptial agreement. We need not consider an argument raised for the first time in a reply brief. Cowiche Canyon v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992). Nonetheless, in Zier, there was no dispute there was full disclosure about the stock that was converted from separate property to community property. Zier, 136 Wn. App. at 48.
Hansen also argues that the BPB dividends should have been treated as her separate property. Property is characterized as community property based on the date of acquisition. If it is community property when the spouse acquired it, it remains community property. See, In re Marriage of Brooks, 51 Wn. App. 882, 886, 756 P.2d 161 (1988).
There is no dispute that Hansen acquired the BPB shares after she and Anderson were married. Based on the testimony at trial, the court granted Anderson's post trial request to distribute the dividend income from September 2004 to January 2006. "The $199,000 in post-separation dividends shall be added to the worksheet as community property."
Below and on appeal, Hansen relies on RCW 26.16.140 to argue that because the dividends were earnings, the dividends should have been characterized as her separate property. The evidence does not support Hansen's argument. Guzman testified that Hansen's annual salary was $175,000. Guzman also testified that the amount of the dividends a shareholder received depended on a number of economic and business factors that were unrelated to a partner's salary.
Because the BPB shares were properly characterized as a community asset, "[t]he right to all dividends from the stock in question remains in the community. . . ." Hanley v. Most, 9 Wn.2d 429, 463, 115 P.2d 933 (1941). We conclude that the trial court did not abuse its discretion in characterizing the dividends as community property and awarding the dividends to Hansen as a community asset.
For the first time on appeal, Hansen cites In re Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001), to argue that the court had no authority to distribute the dividends because they did not exist at the time of trial. Below, the only reference to the dividend income was made in Hansen's second motion for reconsideration. Hansen states that "[t]he dividend income I received . . . should equitably be found to be my separate property. . . ." In passing, Hansen also says that the dividend income "no longer exists and never existed in view of the income taxes owing on same." However, Hansen did not cite White or raise the argument she makes on appeal. Because Hansen failed to make this legal argument below, she has waived it on appeal. RAP 2.5(a), Martin v. Johnson, 141 Wn. App. 611, 617, 170 P.3d 1198 (2007).
Hansen also asserts that the trial court abused its discretion by valuing her BPB shares as of the date of trial instead of the date of separation, resulting in a disproportionate distribution of the assets. The valuation of property awarded in a dissolution is a material and ultimate fact. In re Marriage of Crosetto, 101 Wn. App 89, 96, 1 P.3d 1180 (2000) (quoting Wold v. Wold, 7 Wn. App. 872, 878, 503 P.2d 118 (1972)). Hansen testified her BPB shares had a value of $390,000 as of the date of separation. Anderson's expert testified that the BPB shares had a value of $507,475 as of the date of trial. The trial court adopted the valuation of Anderson's expert.
Hansen concedes that the standard of review is abuse of discretion, but contends that because the value of these assets "so negatively affects the wife, the trial court abused its discretion. . . ." Lucker v. Lucker, 71 Wn.2d 165, 166-68, 426 P.2d 981 (1967). However, we cannot conclude that the court's decision to accept the valuation by Anderson's expert instead of Hansen's valuation was manifestly unreasonable or based on untenable grounds. Anderson's expert explained the methodology he used in calculating the value of the shares and the sources he relied on in doing so. And because the valuation is supported by the record, the trial court did not abuse its discretion by valuing the assets as of the date of trial instead of the date of separation. In re Marriage of Mathews, 70 Wn. App. 116, 122, 853 P.2d 462 (1993).
Promissory Note
Hansen asserts the court erred in enforcing the promissory note because her obligation under the note was paid in full when the 73rd Place house was sold in 1998. The undisputed facts do not support Hansen's assertion. The finding that Hansen purchased a fifty percent joint tenancy interest in Anderson's 73rd Place house is undisputed. It is also undisputed that Hansen signed a $150,000 promissory note and a deed of trust in favor of Anderson. And Hansen concedes that she only paid $58,434 toward the promissory note. Because Hansen did not pay the amount owed on the promissory note, she did not acquire a one-half interest in the 73rd Place house or the proceeds from the sale of the house.
Hansen asserts for the first time in her reply brief that the court erred by equitably tolling the statute of limitations because Anderson had actual notice of the promissory note within the six-year statute of limitations. We need not address an argument raised for the first time in the reply brief. Cowiche Canyon, 118 Wn.2d at 809.
Hansen also asserts that Anderson is not entitled to an offset based on the 1995 promissory note because the six-year statute of limitations bars enforcement. The trial court equitably tolled the statute of limitations and equitably awarded half of the remaining balance on the promissory note to Anderson, based on findings that,
The deed of trust, with promissory note attached, was prepared with Ms. Hansen's name for return mailing from the auditor's office after recording. This evidences not only that she was instrumental in having an attorney draft these documents but also that it was, not Mr. Anderson, who most likely assumed the responsibility that the deed of trust was not recorded, an event that did not occur.
. . .
It was not until January 19, 2006 that Ms. Hansen disclosed the note and deed of trust through a fax from her attorney to Mr. Anderson's attorney. The documents were in Ms. Hansen's possession all the time. [Exhibit 147] The testimony by Ms. Hansen that the documents were belatedly discovered in her daughter's photo album box is not credible.
Ms. Hansen is found to have engaged in bad faith, deception and non-disclosure with respect to the deed of trust and promissory note.
The statute of limitations for an action based on a written contract is six years. RCW 4.16.040(1). If any payments have been made on a promissory note, the statute of limitations begins to run on the date of the last payment. RCW 4.16.270. However, if the court finds bad faith or deception, the court can equitably toll the statute of limitations. Millay v. Cam, 135 Wn.2d 193, 206, 955 P.2d 791 (1998). We review a court's exercise of equitable authority for abuse of discretion. Harman v. Dep't of Labor Indus., 111 Wn. App. 920, 928, 47 P.3d 169 (2002). The critical question is whether a party made representations which lulled the other party into delaying timely action. Peterson v. Groves, 111 Wn. App. 306, 311, 44 P.3d 894 (2002).
Here, Hansen stopped making payments on the promissory note either in December 1997 or spring of 1998. The evidence establishes that Hansen took the initiative in preparing the paperwork to obtain a one-half interest in Anderson's house. Hansen retained an attorney to draft the promissory note, the deed of trust, and the quitclaim deed. Hansen met with the attorney more than once and had a number of phone conversations about the transaction. Hansen does not challenge the finding that the deed and note were prepared with Hansen's name for return mailing from the auditor's office after recording. There is no dispute that the quitclaim deed was recorded and that the deed and promissory note were not recorded.
Hansen also does not challenge the finding that when Anderson tried to obtain copies of the promissory note and deed of trust, he "was rebuffed with a rejoinder from Ms. Hansen's attorney that the matter was being addressed in this proceeding." And Hansen admits that she did not provide a copy of the deed of trust or the promissory note until just before trial in January 2006. Hansen testified that she did not find these documents until she "came across some that were in a box of [my daughter's] report cards and information that when I was, you know, having problems with the flooding of the basement that I was going through these boxes to try and clean out, straighten up what was there, and I happened to come across those."
The trial court found Hansen's testimony that she belatedly discovered the documents was "not credible" and that Hansen lulled Anderson into delaying timely action by concealing the deed of trust and promissory note. Because substantial evidence supports the trial court's decision and the finding that Hansen acted in bad faith, we conclude the trial court did not abuse its discretion by equitably tolling the statute of limitations on the promissory note.
Post trial Payments
Hansen contends that although the trial court properly credited her with 50 percent of the mortgage payments and 100 percent of the payments for other expenses paid between separation and trial, the court abused its discretion by not giving Hansen credit for expenses she paid post trial and before entry of the final decree. Anderson argues that the trial court did not abuse its discretion when it declined to reopen the proceeding. The standard of review for whether to reopen a bench trial is abuse of discretion. CR 59(g); Locke v. City of Seattle, 162 Wn.2d 474, 486, 172 P.3d 705 (2007).
On May 19, 2006, Hansen filed a lengthy CR 59 motion asking the court to reconsider the property distribution. Hansen accepted the court's conclusion that the parties did not have a prenuptial agreement, but disputed nearly all other aspects of the property division.
The court granted Hansen's request for a 26 percent tax credit for the Holmes Point house but denied her request for an additional offset for amounts she said she paid post trial. In denying the request, the court took into account the fact that Hansen continued to live in the Holmes Point house and that the division of the net proceeds of the sale of the house would "equalize the division of community property." The record supports the trial court's refusal to reopen the proceedings to consider Hansen's request for an additional offset.
Attorney Fees
Hansen asserts that the trial court abused its discretion by awarding $19,500 in attorney fees to Anderson based on "intransigence." The court awarded the attorney fees based on two grounds: (1) Anderson's need and Hansen's ability to pay, and (2) Hansen's intransigence.
It appears that Hansen relies on the standard of review for sanctions under CR 11. Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992) (a court must determine that a complaint lacks factual or legal basis before subjecting a party to CR 11 sanctions). But here the court did not impose attorney fees under CR 11.
The case law is well established that "[a]n award of attorney fees rests within the sound discretion of the trial court, which must balance the needs of the spouse requesting the fees with the ability of the other spouse to pay." In re Marriage of Mathews, 70 Wn. App. 116, 125, 853 P.2d 462 (1993). A party challenging the trial court's decision to award attorney fees "bears the burden of proving the trial court exercised its discretion in a way that was 'clearly untenable or manifestly unreasonable.'" In re Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954 (1996) (quoting In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1996)).
If a court finds intransigence, "the financial resources of the spouse seeking the award are irrelevant." In re Morrow, 53 Wn. App. at 590. "Intransigence includes foot dragging and obstruction, filing repeated unnecessary motions, or making the trial unduly difficult and costly by one's actions." In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006). Another factor courts consider in awarding attorney fees is "the difficulty of the litigation, as measured by the number of days required to try the case and the size of the record." In re Marriage of Morrow, 53 Wn. App. at 591.
It is undisputed that by the end of trial, Anderson had incurred attorney fees and costs of over $100,000. There is also no dispute that Anderson had been unemployed since 2003 and Hansen had an annual income of approximately $315,420. The trial court made detailed findings of Anderson's need and Hansen's ability to pay a partial award of $19,500 in attorney fees to Anderson.
The husband has incurred attorney fees in this proceeding through July 10, 2006 in the amount of $94,626 and costs of $7,167. The husband, despite meaningful and reasonable attempts to locate full time employment, has not been able to find employment during these proceedings except for occasional part time jobs. The wife has been employed during these proceeding. Her recent annual income is approximately $315,420.
In order to partially pay his attorney fees, the husband has had to borrow and drawn down his separate retirement accounts. He still has an outstanding balance owning to his attorney for fees and costs in excess of $22,789.
The wife has paid attorney fees and costs through her income. She has also taken out a line of credit.
The husband has a need for the payment of fees and costs and the wife has the ability to pay toward the husband's fees and costs.
We conclude that the trial court did not abuse its discretion by awarding Anderson $19,500 in attorney fees based on his need and Hansen's ability to pay.
As an alternative basis for the partial award of fees, the trial court also describes in detail the reasons for awarding attorney fees on the grounds of intransigence:
The wife is found to have been intransigent during the course of these proceedings. She has made the trial unduly difficult and increased legal fees and costs through her actions and trial conduct. She has engaged in a continual pattern of obstruction. She did not fully and accurately respond to discovery requests. She belatedly divulged a promissory note and deed of trust. . . . She attempted to introduce at trial testimony of witnesses not properly or timely identified. Both personally and through her counsel, [Hansen] made personal allegations against and about [Anderson] that were in many cases irrelevant and unsubstantiated, and claimed to have proof of evidence but failed to produce such proof, e.g. infidelity, violation of [sic] by the husband of restraining orders. The wife extended the length of trial far beyond what was reasonable or necessary. Trial lasted 13 days commencing February 6, 2006 and concluding with final arguments on March 2, 2006. The husband's attorney's fees during this period were $33,450. The amount of fees awarded to the husband for the wife's intransigence are $19,500.
Substantial evidence supports the court's findings. There is no dispute that Hansen belatedly produced the promissory note and deed of trust, that she resisted providing discovery and having her deposition taken, that she did not timely or properly identify witnesses for trial, and that she made numerous unsubstantiated allegations.
We affirm the trial court in all respects.
Anderson requests attorney fees on appeal. In determining whether to award attorney fees, we consider the "arguable merit of the issues raised on appeal" and the parties' relative ability to pay. Leslie v. Verhey, 90 Wn. App. 796, 807, 954 P.2d 330 (1998). Based on the trial court's division of the assets and the sale of the Holmes Point house, because Hansen and Anderson each have the relative ability to pay, we deny Anderson's request for attorney fees.
WE CONCUR: