Opinion
29422-6-III
12-01-2011
In the Matter of the Marriage of: ELIZABETH G. NEBERGALL, Respondent and ROBERT EARL NEBERGALL, Appellant.
UNPUBLISHED OPINION
Brown, J.
Robert Earl Nebergall appeals the dissolution decree ending his 23-year marriage to Elizabeth G. Nebergall. He contends the trial court erred in (1) awarding maintenance, (2) failing to account for certain personal property sales, (3) failing to award him home-sale preparation costs, and (4) awarding attorney fees. We find no error, and affirm.
FACTS
The Nebergalls married in 1986 and separated in 2009. At the 2010 trial, the parties were both over 70 years old. They vacated their home in 2009 and together made arrangements for its upkeep and preparation for sale. Mr. Nebergall was to be reimbursed for his share of sale-preparation costs from the sale proceeds.
Both parties were "restrained from transferring, removing, encumbering, concealing, damaging or in any way disposing of any property except in the usual course of business or for the necessities of life or as agreed in writing by the parties." Clerk's Papers (CP) at 9. But Ms. Nebergall sold marital assets, including a concession trailer and household items; the trailer-sale proceeds were evenly divided. At trial, Ms. Nebergall testified she could not recall the amount she netted from the other sales. Mr. Nebergall estimated a $20,000 value. Mr. Nebergall testified the bill for improvement work totaled about $4,800 with $3,000 still owing. He asked to be reimbursed for the entire $4,800. Ms. Nebergall testified her improvement contribution at over $6,000.
After trial, the court entered findings of fact and conclusions of law and a dissolution decree. The court awarded Ms. Nebergall monthly lifetime spousal maintenance of $375. The court awarded her $1,349 "as equitable transfer payment for differential in automobile valuations for the vehicles respectively awarded to the parties." CP at 258. Mr. Nebergall received $3,000 for home maintenance expenses. The court ordered Mr. Nebergall to pay 40 percent of Ms. Nebergall's attorney fees. Mr. Nebergall appealed.
ANALYSIS
A. Maintenance
The issue is whether the trial court erred in awarding spousal maintenance to Ms. Nebergall.
We review the trial court maintenance decisions for abuse of discretion. In re Marriage of Zahm, 138 Wn.2d 213, 226-27, 978 P.2d 498 (1999). An abuse of discretion occurs when the court bases its decision on untenable grounds or for untenable reasons. In re Marriage of Foley, 84 Wn.App. 839, 845, 930 P.2d 929 (1997). The court must consider the post-dissolution financial resources of the parties; their abilities to independently meet their needs; the time necessary for the party seeking maintenance to find employment; duration of the marriage; the standard of living during the marriage; the age, physical, and emotional condition, and financial obligations of the spouse seeking maintenance; and the ability of the spouse from whom maintenance is sought to meet his needs and financial obligations. RCW 26.09.090(a)-(f). The sole maintenance limitation is that the amount and duration be just in light of all the relevant factors. In re Marriage of Washburn, 101 Wn.2d 168, 178, 677 P.2d 152 (1984).
Ms. Nebergall was awarded half of Mr. Nebergall's State Farm disability pension and half of a monthly commercial real estate escrow contract, for a total of $1,086 per month. She received $544 per month in Social Security. The court awarded lifetime spousal maintenance of $375 per month. Ms. Nebergall's monthly income including maintenance would be $2,005. Mr. Nebergall argues his monthly income less maintenance payments would be $2,279 per month.
Mr. Nebergall contends the court should have curtailed monthly maintenance after the home sale, citing Washburn, 101 Wn.2d at 179. He argues "[t]he parties were then on equal footing." Br. of Appellant at 7. First, nothing in this record shows the trial court intended to limit maintenance to a specific time. Second, the test for property division and maintenance is equitable fairness, not strict equality. In re Marriage of Mathews, 70 Wn.App. 116, 121, 853 P.2d 462 (1993). "The paramount concern is the economic condition in which the decree will leave the parties." Id. The receipt of half of the home sale proceeds did not limit the court's power to award lifetime maintenance if justified by the other statutory factors. After the home-sale proceeds were split, an income disparity remained. Without the compensating maintenance award, Ms. Nebergall's monthly income would drop to $1,630 when Mr. Nebergall would receive $2,654. While certain cash flow variations would likely occur in the future, the income disparities would be similar over time.
In sum, considering the statutory factors, the trial court did not abuse its discretion in awarding lifetime maintenance to Ms. Nebergall.
B. Personal Property Division
The issue is whether the trial court erred in valuing the parties' property and thus in its ultimate property division. Mr. Nebergall contends the trial court failed to take into account approximately $9,000 in proceeds Ms. Nebergall received from the sale of community personal property.
We review the court's distribution of property for abuse of discretion. Brewer v. Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999). A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of Fiorito, 112 Wn.App. 657, 663-64, 50 P.3d 298 (2002). A court does not abuse its discretion by assigning values to property within the evidence range. In re Marriage of Soriano, 31 Wn.App. 432, 436-37, 643 P.2d 450 (1982); In re Marriage of Rockwell, 141 Wn.App. 235, 250-51, 170 P.3d 572 (2007). In short, valuation findings must be within the range of credible evidence. In re Marriage of Sedlock, 69 Wn.App. 484, 490, 849 P.2d 1243 (1993).
We do not substitute our judgment over the trial court's judgment on disputed property-value and witness-credibility fact issues. In re Marriage of Greene, 97 Wn.App. 708, 714, 986 P.2d 144 (1999). Substantial evidence must support the valuations. 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)); In re Marriage of Eklund, 143 Wn.App. 207, 212, 177 P.3d 189 (2008); In re Marriage of Skarbek, 100 Wn.App. 444, 447, 997 P.2d 447 (2000). "'Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise.'" In re Marriage of Griswold, 112 Wn.App. 333, 339, 48 P.3d 1018 (2002) (quoting Bering v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986)).
Here, Ms. Nebergall apparently conducted garage sales, selling personal property items without any strict accounting. Mr. Nebergall argues she improperly kept $9,000 in proceeds from the sales because he estimates the total proceeds should have been much higher, but he provided no itemization. While it appears the trial court did not actually value the property by item, the court's award was within the evidence range.
As Ms. Nebergall explains:
In its oral ruling, the trial court indicated that it was going to 'observe the status quo' with regard to personal property because it was an impossible task to try to sort it out. . . . As the court said, both parties had had access to the property and it would be like throwing a dart at a dart board to come up with a value.Br. of Resp't at 10. Given all, even though the court apparently did not factor in the garage sale proceeds in its property distribution, with the record before this court, we cannot say the trial court's property distribution was manifestly unreasonable.
C. Home-Sale Preparation Expenses
The issue is whether the trial court erred in awarding Mr. Nebergall an amount less than his total expenses for preparing the home for sale. Again, we review for abuse of discretion.
Mr. Nebergall was responsible for preparing the family home for sale and by stipulated order, he was entitled to reimbursement from the home sale. In furtherance, Mr. Nebergall spent $4,800. But Ms. Nebergall maintained the property as well; the trial court considered the funds and effort she expended and it decided the value of those efforts cancelled out part of Mr. Nebergall's contributions. Thus, Mr. Nebergall was awarded $3,000 toward his expenses to improve the family home. Mr. Nebergall argues Ms. Nebergall may have spent money on the home; but she was not required to do so. We are not persuaded; the trial court was not precluded from considering payments and improvements made by Ms. Nebergall. In sum, the trial court did not abuse its discretion in allowing an offset to Ms. Nebergall.
D. Attorney Fees
The issue is whether the trial court erred in ordering Mr. Nebergall to pay 40 percent of Ms. Nebergall's attorney fees.
The decision to award fees rests with the sound discretion of the trial court. Foley, 84 Wn.App. at 846. In a marital dissolution, the trial court may award attorney fees pursuant to RCW 26.09.140. When doing so, the trial court must consider the financial resources of both parties. Id.
Here, the court reasoned "in looking at the big picture here, " Mr. Nebergall should pay 40 percent of Ms. Nebergall's attorney fees. CP at 235. The court indicated it was considering both need and ability to pay. Mr. Nebergall argues Ms. Nebergall had the ability to pay because the parties had approximately the same assets. But she incurred significantly more fees than Mr. Nebergall. At trial, Ms. Nebergall owed almost $20,000 compared to Mr. Nebergall's attorney bill of about $4,300. She had incurred fees to commence the dissolution, obtained temporary orders, and maintained contempt proceedings. Mr. Nebergall did not hire counsel until well into the proceedings. By ordering Mr. Nebergall to pay a portion of Ms. Nebergall's fees, the court equalized the relative fee burden. Mr. Nebergall does not show abuse of discretion.
Each party requests attorney fees on appeal pursuant to RAP 18.1 and RCW 26.09.140. Ms. Nebergall urges us to consider Mr. Nebergall's claims frivolous, but she does not cite to RAP 18.9. Accordingly, her argument is not considered. Under RCW 26.09.140, the court in a dissolution action may, after considering the financial resources of both parties, order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding and for reasonable attorney fees. And "[u]pon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney's fees in addition to statutory costs." Id.
Ms. Nebergall prevails here. Considering her affidavit of financial need, she is entitled to attorney fees on appeal.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
Brown, J.
WE CONCUR: Kulik, C.J., Sweeney, J.