Opinion
No. 33103-9-II.
October 10, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-3-02961-0, Lisa R. Worswick, J., entered March 11, 2005.
Counsel for Appellant(s), Alan Mark Singer, Attorney at Law, 16400 Southcenter Pkwy Ste 407, Tukwila, WA, 98188-3340.
Counsel for Respondent(s), Barbara Jo Reisinger Sylvester, McGavick Graves PS, 1102 Broadway Ste 500, Tacoma, WA, 98402-3534.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Penoyar, JJ.
This appeal follows the trial court's entry of the final orders of dissolution ending a 44-year marriage between Donald and Marilyn Rasmussen. Donald appeals the trial court's valuation of real property and distribution of real and personal property and challenges the validity and scope of the continuing restraining order. He also claims the trial court erred by failing to exclude Marilyn's proposed witnesses and by reinstating the original trial date. We affirm in part, reverse in part, and remand.
We use the parties' first names for clarity.
FACTS
Marilyn and Donald were married on October 22, 1960. Marilyn filed for separation and the parties came before Judge Lisa Worswick for trial. Marilyn and Donald were the only two witnesses at trial. The trial court entered the final decree of dissolution on February 11, 2005.
Donald also moved for reconsideration, but the court denied his request.
The parties had no separate property and an extensive amount of real and personal community property. The trial court valued and distributed the property between the parties. Its stated intent in distributing the property was to achieve an even distribution: "[t]he court's intent is to divide equally the liquid assets of the parties, other than the retirement accounts in [Marilyn's] name, as of the date of separation." 2 Clerk's Papers (CP) at 347.
The parties executed a community property agreement in 1998, converting all their property into community property. The trial court found the parties had no separate property other than what was acquired since separation. Donald does not assign error to this finding, therefore it is a verity on appeal. In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999).
The parties' owned 360 acres of real property valued at $3,345,300. The trial court awarded real property worth $1,685,300 to Donald and $1,660,000 to Marilyn.
The record shows that the parties also had 32 pieces of farm equipment. Each party received 16 pieces. In addition, Marilyn and Donald each received half of the Diary Gold stock, the herd of cattle, the proceeds from an earlier cattle sale, the household furniture and furnishings, the in-home office equipment, and collectables. The trial court divided 12 of the parties' bank and retirement accounts evenly.
Marilyn received her retirement account and individual retirement account (IRA), valued at $28,017 and $8,326, respectively. The trial court also awarded to her the whole life insurance policy on Donald's life; the Chrysler Sebring; the Ford Explorer; and any personal effects, wearing apparel, and jewelry in her possession. It also awarded her two post-separation Bank of America accounts.
Marilyn worked as a Washington State senator and Donald as a farmer. Marilyn was 65 and Donald 68 at the time of trial.
Donald received his South Fork Guide and Outfitter business; fishing and hunting equipment; guns and knives; a 14-foot Pacific Mariner boat; a Honda 5 horsepower boat motor; Sportsman Polaris off-road vehicle; three Ford Mustangs; and a Chevrolet pick-up truck. It also awarded Donald any accounts in his name that were opened after separation.
Donald appeals.
ANALYSIS Valuation and Distribution of Real Property
The parties owned nine parcels of real property, identified as parcels A to G, totaling 360 acres. Donald's mother, Eunice Booth, who was 91 at the time of trial, had a life estate in parcels A, B, E, and F, and lives on parcel B. Marilyn and Donald hold the fee simple remainder interests in these properties.
Parcel B is composed of three taxable parcels.
Donald's father bequeathed to him the estate subject to his mother's life estate.
Valuation evidence came from three sources: Marilyn's testimony; the assessor's value (offered as exhibits by Marilyn without objection); and Donald's testimony. At issue on appeal is the trial court's valuation and distribution of parcels A, B, C, E, and F.
Parcel A
Marilyn testified that she valued parcel A at $600,000. The assessor assigned this parcel a value of $522,000. Donald valued parcel A at $800,000 (free and clear value without a life estate). The trial court found parcel A to have a value of $700,000 and awarded it to Marilyn.
Parcel B
Marilyn testified that she valued parcel B at $80,000. The assessor assigned this three-tax parcel property with values of $85,700, $118,800, and $36,200. Donald valued this parcel at $17,000. The trial court valued parcel B at $118,000 and awarded it to Donald.
Parcel C
Marilyn valued parcel C at $80,000. Donald valued it at $60,000. The assessor valued it at $155,600. And the trial court found it had a value of $115,000 and awarded it to Marilyn.
Parcel E
Marilyn testified that she valued parcel E at $1,140,000 (including the timber value at $11,250 an acre for 80 acres). The assessor assigned this parcel a value of $284,900. Donald valued this parcel at $940,000. The trial court valued parcel E at $1,020,000 and awarded it to Donald subject to an easement.
Parcel F
At trial, Marilyn testified that parcel F had a value of $300,000 (timber and land). The assessed value was $166,100. Donald valued this parcel at $440,000. The trial court valued parcel F at $370,000 and awarded it to Donald subject to an easement.
Marilyn's pretrial information and her earlier testimony valued the parcel at $130,000, but on reflection of the timber value, she believed $300,000 was more accurate.
The real property parcels A to G had a total value of $3,345,300, of which the trial court awarded property amounting to $1,685,300 to Donald and $1,660,000 to Marilyn. The trial court explained that it arrived at the value of the real property parcels by using a "combination of the values testified to by the parties . . . and the assessor's values . . . as a floor." Report of Proceedings (RP) (Dec. 17, 2004) at 4. The court explained: "So even if both parties determined the property was worth $80,000, if the assessor said it was worth $118,000, that's what I went with." RP (Dec. 17, 2004) at 4. It did this because it "rarely see[s] the assessor overvalue property." RP (Dec. 17, 2004) at 4.
The trial court found parcel D to have a value of $176,500 and awarded it to Donald. It valued parcel G at $845,000 and awarded it to Marilyn.
Valuation
Donald challenges the trial court's valuation of parcels A, B, C, E, and F. He argues that it was reversible error for the trial court to value parcels A, B, E, and F without considering what impact Donald's mother's life estate had on the value of these parcels. Marilyn argues that the trial court's findings are supported by substantial evidence and that Donald cannot now complain that the trial court valued these parcels without regard to the value of the life estate because he offered no evidence regarding it. We agree with Marilyn.
Property valuation is a factual determination that must be supported by substantial evidence in the record. Worthington v. Worthington, 73 Wn.2d 759, 762, 440 P.2d 478 (1968); and see In re Marriage of Sedlock, 69 Wn. App. 484, 492, 849 P.2d 1243, review denied, 122 Wn.2d 1014 (1993). Substantial evidence supports a trial court's valuation of property if it is within the range of evidence provided in the record. See In re Marriage of Mathews, 70 Wn. App. 116, 122, 853 P.2d 462, review denied, 122 Wn.2d 1021 (1993); Sedlock, 69 Wn. App. at 492; In re Marriage of Soriano, 31 Wn. App. 432, 435, 643 P.2d 450 (1982).
An owner may testify as to the value of his property. Worthington, 73 Wn.2d at 763. It is up to the trial court to determine the weight afforded to the testimony. Worthington, 73 Wn.2d at 763. Accordingly, when parties offer conflicting evidence on the value of an asset, the trial court may adopt the value asserted by either party or any value in between. Soriano, 31 Wn. App. at 435. But it may not assign a value that is outside the scope of evidence. See Soriano, 31 Wn. App. at 435; see also Atkinson v. Atkinson, 38 Wn.2d 769, 772-73, 231 P.2d 641 (1951). The trial court is required to determine the facts based on the record before it. Worthington, 73 Wn.2d at 766. And, in general, one asserting a fact has the burden of proving it. In re Marriage of Gainey, 89 Wn. App. 269, 274, 948 P.2d 865 (1997).
Here, the record contains no testimony regarding the impact of the life estate on the value of the real property. If Donald wanted this fact considered, he was required to present some evidence to the trial court on which it could base its findings. See Gainey, 89 Wn. App. 269 (stating it was not error for the trial court to fail to deduct business expenses from calculation of net income when no evidence of those expenses was provided to the trial court).
Indeed, it would have been error for the trial court to distinguish between the value of parcels with and without a life estate in the absence of evidence presented on this issue by either party. Worthington, 73 Wn.2d at 765-67 (the trial court's valuation finding that property owned outright has more value than that which is held in common was not supported by substantial evidence where no evidence in the record established that the value of property owned by the party separately had more value than the property he owned jointly).
Thus, while common sense would indicate that property with a life estate would have a different value than the same property without a life estate, the trial court's findings are supported by substantial evidence within the range of evidence in the record.
Parcel B
Donald also challenges the trial court's valuation of parcel B, arguing that it failed to consider factors relevant to value because it did not consider the impact that water rights to parcel C had on the value of parcel B. He asserts that parcel B's estimated value is diminished when no water rights to parcel C are granted. Based on this, Donald maintains that substantial evidence does not support the trial court's valuation of this parcel. He requests that we remand to the trial court to revalue parcel B.
During the trial, Donald testified that water from parcel C irrigates parcel B because parcel B does not have any water access on it. Donald testified that it was not possible to irrigate and farm parcel B without water and electricity from parcel C. He estimated parcel B's value at $17,000? $10,000 for land and $7,000 for the house. No one presented evidence on
parcel B's estimated value without water access from parcel C. The trial court awarded parcel B to Donald without any water rights from parcel C. In his motion for reconsideration, Donald asked the court to reconsider its valuation of parcel B in light of the fact that its value is depreciated because it has no water rights. The trial court denied his request.
Donald did not present evidence as to the difference in parcel B's value with and without water access. Thus, the trial court did not ignore any evidence relevant to value that the parties presented. The only evidence regarding the value of this parcel was that Marilyn valued it at $80,000, Donald at $17,000, and the assessor at $85,700, $118,800, and $36,200. The trial court found parcel B to have a value of $118,000. Donald cannot now complain that the trial court failed to consider a fact that he himself never presented. Gainey, 89 Wn. App. at 274. Substantial evidence supports the trial court's valuation of parcel B.
Parcel C
Donald challenges the trial court's valuation of parcel C, arguing that it abused its discretion by finding this parcel to be worth $115,000 when the assessor valued it at $155,600. Because the trial court said it would use the assessor's value as a floor when valuing the real property, he argues that the trial court's failure to do this constitutes a manifest abuse of discretion.
But both Donald and Marilyn testified that the property was worth substantially less than the assessed value. Marilyn valued parcel C at $80,000 and Donald valued it at $60,000. The awarded value is substantially higher than what either Marilyn or Donald estimated. Donald's argument that the trial court was required to use the assessed value as the floor has no merit.
Valuation of property is a question of fact that we review for substantial evidence. Sedlock, 69 Wn. App. at 491-92. Substantial evidence supports a trial court's valuation of property if it is within the range of evidence provided in the record. See Mathews, 70 Wn. App. at 122; Sedlock, 69 Wn. App. at 492; Soriano, 31 Wn. App. at 435. Here, the record shows that Marilyn valued parcel C at $80,000, Donald at $60,000, and the appraiser at $155,600. Substantial evidence supports the trial court's findings.
Distribution of Real Property
Donald challenges the trial court's distribution of real property, arguing that because the trial court improperly valued the real property, it unfairly distributed these assets. But this argument hinges on the success of Donald's valuation arguments. As we held above, the trial court did not err in valuing the real property. Since the property was properly valued, the trial court did not abuse its discretion in evenly distributing the parties' real property based on that value.
Distribution of Personal Property
Donald challenges the trial court's distribution of the parties' retirement accounts, farm equipment, and proceeds from a cattle sale. Pointing to his age, health, and low comparative income, he argues that the trial court's distribution of these assets failed to adequately consider his circumstances and future needs. He also argues that the trial court was without jurisdiction to award Marilyn a half interest in the U.S. Bank account that he shared with his mother.
All separate and community property is before the trial court for division amongst the parties in a dissolution action; the trial court is not required to divide community property equally, and it need not award separate property to its owner. Under RCW 26.09.080, the trial court need only make such dispositions of the property, either community or separate, as shall appear just and equitable after considering all relevant factors. In re Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001).
Those factors include:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage; and
(4) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time.
No one factor is, as a matter of law, given more weight than the other relevant factors. In re Marriage of Konzen, 103 Wn.2d 470, 478, 693 P.2d 97, cert. denied, 473 U.S. 906 (1985). "The key to an equitable distribution of property is not mathematical preciseness, but fairness." In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989) (quoting In re Marriage of Clark, 13 Wn. App. 805, 810, 538 P.2d 145 (1975)), review denied, 114 Wn.2d 1002 (1990).
A trial court is given broad discretion in distributing property at dissolution. In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). We will not substitute our judgment for that of the trial court. In re Marriage of Nicholson, 17 Wn. App 110, 114, 561 P.2d 1116 (1977). The question on appeal is not whether we believe the division to be equitable, In re Marriage of Monkowski, 17 Wn. App. 816, 817, 565 P.2d 1210 (1977), but whether the trial court manifestly abused its discretion in distributing the property as it did. Muhammad, 153 Wn.2d at 803; Monkowski, 17 Wn. App. 816. A manifest abuse of discretion is a decision manifestly unreasonable or exercised on untenable grounds or for untenable reasons. It is one that no reasonable person would have made. See, e.g., Konzen, 103 Wn.2d at 478.
Retirement Accounts and Other Bank Accounts
Donald received $1,685,300 of real property and Marilyn $1,660,000. To equalize the value of assets, the trial court awarded Marilyn her $28,000 pension. The trial court ordered that the rest of the parties' accounts, whether retirement, financial, or other, except for the two with Booth's name on it, be divided evenly between the parties?a 50/50 split.
The record shows that, aside from Marilyn's Washington State pension, the parties had 14 accounts that were divided equally.
Donald asserts that the trial court erred by awarding Marilyn her state retirement account and IRA to equalize the difference between what he and Marilyn received in real property distribution. He argues it was error because the trial court undervalued parcel C by $40,000. And in undervaluing the property, the trial court wrongly distributed a disproportionate share of these assets to Marilyn. He argues that if the trial court had the correct value in mind, then there would be less to equalize between the parties.
Donald also argues the trial court erred by distributing to Marilyn half of his retirement certificate of deposit at Bank of America, half of his market rate savings account at Bank of America, and half of his IRA at Bank of America. He argues that Marilyn received $56,000 in retirement accounts and that he received only $20,000. He argues that this disproportionate amount is not in line with the trial court's asserted goal of a 50/50 division of assets. He also argues that this award is not commensurate with his need as a 68-year-old man, suffering from diabetes, who has limited comparative earning capacity.
As stated elsewhere, substantial evidence supports the trial court's property valuation. Thus, it cannot be said that the trial court undervalued parcel C. Donald has failed to articulate a basis for us to find that the trial court abused its discretion. Aside from the account awarded to Marilyn to equalize the property division, from our review of the record it does not appear that Marilyn received more than Donald did. But even assuming she had, the trial court stated that it was attempting as best it could to achieve a 50/50 division of assets. Mathematical precision is not a requirement to fair distribution. Tower, 55 Wn. App. at 700. The trial court did not manifestly abuse its discretion by failing to distribute the exact same amount of retirement assets to Donald and Marilyn.
Farm Equipment
The parties owned a substantial amount of farm equipment. The trial court distributed these assets as follows:
Marilyn Donald 3688 International tractor Big John Deere tractor with loader Square baler Skidder International hay rake (baler) Bulldozer Riding mower with attachments Small International tractor Grain drill Push mower Auger Excavator Scraper blade Squeeze chute Sprinkler system, including the pipe Welder trailer Meat shop equipment Round baler Bench grinder Swather Sawmill New hay rake (baler) Drill press Fertilizer spreader Diesel tank Half of the hay Barrels of oil Hay tedder Safe and filing cabinet exclusive of any Hay wagon valuable contents When asked whether it was giving both balers to Marilyn, the trial court stated that it was, explaining that "[t]he testimony and my understanding is, at this point the hay is being grown primarily on her land." RP (Dec. 17, 2004) at 7.Donald contests the trial court's division of these assets, arguing that it was error to award Marilyn both round balers, the square baler, both hay rakes, the swather, fertilizer spreader, tedder, and hay wagons. He argues that the trial court overlooked his need for these items when it awarded them to Marilyn because without them he is unable to grow the hay and feed his cattle. He maintains that the trial court's decision effectively precludes him from continuing his farming operations. Donald argues that the trial court's distribution of these assets was inequitable because of the impact it has on his farming operations.
But Donald has offered no proof that he will be unable to farm without these items of equipment and has offered no evidence to show that the trial court's reasoning was in error. He asserts that the trial court failed to consider his current situation and his future ability to farm and overlooked his trial testimony when it distributed the farm equipment. RP at 365-66. This is without merit. It is clear that the trial court considered his trial testimony and took his needs into consideration by awarding him the John Deere tractor. This was the one piece of equipment that he said he needed to continue farming on parcels E and F.
We do not substitute our opinion for that of the trial court. Here, it cannot be said that no reasonable person would have focused on the financial value of the machinery and distributed the property in the manner that the trial court did. Thus, we cannot find that the trial court abused its discretion.
Proceeds of Cattle Sale
During their marriage, the parties owned cattle. By order of agreed stipulation, Donald sold cattle worth $15,617.54. He was required to deposit the money into his attorney's trust account. At dissolution, the trial court ordered that the $15,617.54 proceeds from the cattle sale be divided equally between the parties.
Donald challenges the court's distribution. He asserts that the cattle proceeds are his post-separation income according to RCW 26.16.140 and that the trial court deprived him of half of his income by giving half to Marilyn. This was unfair, he claims, because he did not receive half of Marilyn's post-separation income.
Donald's argument is without merit. He does not contest that the cattle and the income derived therefrom is community property; therefore, that it was a community asset is a verity on appeal. In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999). While Donald might have realized the value of the cattle post-separation, the cattle and the proceeds from the sale were community, and thus not his separate post-dissolution income. The trial court did not abuse its discretion by evenly dividing this community asset.
Even if we were to assume that the income represented Donald's separate earnings, Donald makes no argument and cites no authority that would lead us to find that in so awarding half of this money to Marilyn, the trial court manifestly abused its discretion. Donald also appears to argue that the trial court erred when it failed to deduct the amount he spent from the cattle proceeds on repairs before dividing the remainder between the parties, so that he is not out-of-pocket for the repairs he performed. The trial court is not required to divide community property equally and it does not have to award separate property to its owner. White, 105 Wn. App. at 549-51. Donald's argument is thus without merit.
U.S. Bank Account Which Donald Maintains With Booth
The record shows that Donald maintained two accounts with his mother: (1) Venture Checking account, with a minus $111.59 balance; and (2) U.S. Bank account, with a $5,013.93 balance. Donald testified that the U.S. Bank account was opened with $17,000 in proceeds from a 1992 log sale. Donald said he used the U.S. Bank account to buy things for his mother, including presents for her birthdays, explaining why the account had only $5,000. He said he used it to purchase a certificate of deposit for her. He testified that he believed it belonged to Booth because the proceeds came from her life estate land.
In its oral ruling, the trial court specifically stated that "[a]ll of the accounts [financial, retirement and other] need to be split 50/50, except for the two accounts with Eunis [sic] Booth's name on them. I think that [Donald] is helping his mother with her finances. I think he's a cosigner on a number of those accounts. I think that money is hers. I was confident that that was the case." RP (Dec. 17, 2004) at 8-9 (emphasis added).
But the written order, prepared by Marilyn's counsel and signed by the trial court, lists the U.S. Bank Money Market account valued at approximately $5,020 and directs that it be divided equally between the parties.
Donald argues that the trial court erred in distributing half of the U.S. Bank interest to Marilyn. He claims the original $17,000 came from sale of timber in 1992, which belongs to Booth as part of the income she derives because of her life estate interest. Donald argues that because Booth owns the funds in this account, "the trial court lacked jurisdiction to award Marilyn any part of [the U.S. Bank account] funds." Br. of Appellant at 42.
Marilyn argues that although the funds may have originally derived from the proceeds of a 1992 sale of timber that belonged to Booth, Donald deposited monies and withdrew monies from this account freely. Because he freely had access to and use of these funds, she maintains that the record supports that the account belonged to him. And because the community property agreement establishes that Donald's property is also her property, Marilyn argues that the trial court therefore had jurisdiction over this account to make an equitable division at dissolution.
But the issue is not whether the trial court has the authority to divide an asset owned by a married party in which a third party also has an interest. The issue is whether the trial court was permitted to award an asset that neither of them owned. The answer is clearly no.
The evidence in the record shows that the funds in the accounts which Donald shares with his mother originated with log sale proceeds. Booth has a life estate in the property. The trial court found that the profits from the log sales on the property belong to her by virtue of this life estate. Neither party challenges this finding, thus it is a verity on appeal. Brewer, 137 Wn.2d at 766. And with regard to the two accounts Donald maintains with his mother, the trial court stated: I think that [Donald] is helping his mother with her finances. I think he's a cosigner on a number of those accounts. I think that money is hers. I was confident that that was the case." RP (Dec. 17, 2004) at 8-9 (emphasis added).
The trial court found that these accounts were Booth's property, not Donald or Marilyn's. Donald's name was on the account as a co-signer only. The trial court found that he was merely facilitating use of these accounts for his aged mother.
RCW 26.09.080 vests the trial court with the authority to distribute the parties' property, both separate and community, at dissolution. It does not provide that the court can distribute property to the divorcing parties when the parties themselves have no ownership interest in the asset being divided. See In re Marriage of McKean, 110 Wn. App. 191, 194-95, 38 P.3d 1053 (2002) (stating that the trial court's jurisdiction in dissolution actions comes from statute, the statute requires that the court divide the parties' assets but it does not give the court authority to adjudicate the rights of parties not before the court).
Here, since the U.S. Bank accounts are not the separate or community property of Donald or Marilyn, the trial court did not have the authority to distribute this asset to Marilyn and Donald at dissolution. Thus, we reverse and remand the trial court's award of the U.S. Bank accounts.
Continuing Restraining Order
The trial court found that a restraining order was necessary to protect Marilyn's interests. It entered a continuing restraining order in the final decree of dissolution, which states:
Husband is restricted from acting directly or indirectly to interfere with Wife's use and enjoyment of the property awarded to her herein. Specifically, he shall not aid or encourage his mother, Eunice Booth, or act on her behalf in any capacity, to interfere with Wife's use and enjoyment of property awarded to Wife.
2 CP at 340.
Authority to Enter the Order
Donald argues that the trial court abused its discretion by entering this continuing restraining order because it failed to use the legal tests for issuance of temporary restraining orders and preliminary injunction.
But the trial court's order is not a temporary restraining order or a preliminary injunction. It is a continuing restraining order. RCW 26.09.050(1) gives the trial court the ability to enter a continuing restraining order and the trial court's general equitable powers enable it to enforce its own orders. RCW 26.09.050 explicitly authorizes a trial court to issue any necessary continuing restraining orders when it enters the decree of dissolution of marriage. And a trial court is endowed with broad equitable powers to fashion remedies appropriate to each case. Kenneth W. Weber, 20 Washington Practice: Family and Community Property Law, § 41.3 at 524 (1997).
The relevant section reads as follows:
(1) In entering a decree of dissolution of marriage . . . the court shall determine the marital status of the parties, make provision for a parenting plan for any minor child of the marriage, make provision for the support of any child of the marriage entitled to support, consider or approve provision for the maintenance of either spouse, make provision for the disposition of property and liabilities of the parties, make provision for the allocation of the children as federal tax exemptions, make provision for any necessary continuing restraining orders including the provisions contained in RCW 9.41.800, make provision for the issuance within this action of the restraint provisions of a domestic violence protection order under chapter 26.50 RCW or an antiharassment protection order under chapter 10.14 RCW, and make provision for the change of name of any party.
RCW 26.09.050 (emphasis added).
Here, the trial court explicitly found it necessary to enter a continuing restraining order to protect the interests it awarded Marilyn. To the extent the trial court's continuing restraining order put into words what was necessary to ensure its property award to Marilyn was effective, the order was proper.
Scope of the Order
Donald also argues, however, that the continuing restraining order is overbroad because it prohibits any of his activities to assist his mother in protecting her legitimate interests as a life tenant. We agree.
Donald raised a similar objection to the order at the presentment hearing. There, his counsel objected to the language of the continuing restraining order; specifically, he objected to the placement of the comma in the order after the word "capacity." RP (Feb. 11, 2005) at 23. His counsel stated that the language of the order can be read to limit Booth's power of attorney and preclude Donald from assisting his mother in any capacity whatsoever. He argued that the trial court did not have authority to void Booth's power of attorney or to keep her son from acting in any capacity on her behalf. Marilyn's attorney explained that the intent of the order was to restrict Donald in relation to any actions he would take to interfere with Marilyn's use and enjoyment of her property and that Donald was not restricted from using his power of attorney to benefit his mother.
The trial court agreed with Marilyn's counsel. It stated that the order read to preclude Donald's actions only to the extent he would interfere with Marilyn's use and enjoyment of her property. Specifically, the trial court stated: "I don't know how anyone could say that a divorce decree between Marilyn Rasmussen and Donald Rasmussen effects [sic] [Donald's] ability to act on his mother's behalf in any way other than to interfere with [Marilyn's] use and enjoyment of the property." RP (Feb. 11, 2005) at 23.
While the trial court's colloquy makes clear that it intended to prohibit Donald from unlawfully interfering with Marilyn's use and enjoyment of her property award, the language of the order is too broad. As it reads, the order has the potential to affect Donald's power of attorney rights to assist his mother in lawfully asserting her rights in the property. The trial court has no authority to alter the scope of Booth's power of attorney or her rights in the property the trial court awarded to Marilyn. Therefore, we reverse and remand to the trial court to modify the order in accord with this opinion.
Because we agree that the language in the continuing restraining order is overbroad, we do not address Donald's argument that the order violated his First Amendment rights. Motions to Exclude Witness List, Date Set For Trial Donald maintains that the trial court's denial of his motion to exclude Marilyn's witnesses was an abuse of discretion. We agree.
The trial court entered an order setting case schedule on January 22, 2004, which set the trial date for December 7, 2004. It also set July 20, 2004, as the date for disclosure of the parties' primary witnesses. Marilyn filed her witness list late. Donald then moved to exclude Marilyn's witnesses. Instead of granting Donald's request, the trial court continued the trial date until June 1, 2005. It established a new case schedule with new deadlines, setting January 12, 2005, as the date for disclosure of primary witnesses.
Marilyn filed motions to shorten time and reinstate the original trial date. In her attached affidavit, she stated that she would be willing to stipulate to Donald's request that the matter proceed with only hers and Donald's testimony if the trial court reinstated the original trial date or continue with the June 1, 2005 hearing date. The trial court granted Marilyn's motion and reinstated the original trial date.
Donald maintains that Marilyn's late filing of her witness list requires that all of her witnesses, including her own testimony, be excluded. He asserts that the trial court abused its discretion in failing to do so. He also asserts that the trial court substantially prejudiced his trial preparation by reinstating the original December 7, 2004 trial date instead of the continued June 1, 2005 date.
But the record indicates that Donald was the one who requested that the trial testimony be limited to two witnesses, him and Marilyn. The doctrine of invited error prohibits a party from setting up an error in the trial court and then complaining of it on appeal. Nania v. Pac. Nw. Bell Tel. Co., 60 Wn. App. 706, 709, 806 P.2d 787 (1991). Donald cannot complain now that the trial court erred by failing to exclude Marilyn's testimony because error, if any, he invited. Attorney Fe
Marilyn's RAP 18.9 Request
Marilyn requests attorney fees under RAP 18.9, arguing that Donald's appeal is frivolous. Under RAP 18.9(a), when a party has filed a frivolous appeal, we can award attorney fees. Whether an appeal is frivolous requires consideration of the following:
(1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.
In re Marriage of Penry, 119 Wn. App. 799, 804 n. 2, 82 P.3d 1231 (2004) (quoting Streater v. White, 26 Wn. App. 430, 434-35, 613 P.2d 187 (1980)).
We have held that Donald's appeal from the award of his mother's U.S. Bank account and the continuing restraining order is meritorious. Here, Donald's appeal is not frivolous and we deny Marilyn's attorney fee request.
Donald's Attorney Fee Request
Donald requests attorney fees and costs on appeal under RAP 14.1, 14.2, 18.1, and RCW 26.09.140.
Under RCW 26.09.140, this court has the "discretion to order a party to pay the other party's attorney fees and costs associated with the appeal of a dissolution action." In re Marriage of C.M.C., 87 Wn. App. 84, 89, 940 P.2d 669 (1997), aff'd, 136 Wn.2d 800 (1998). We consider the arguable merit of the appellate issues and the financial resources of the parties when exercising discretion. In re Marriage of Griffin, 114 Wn.2d 772, 779-80, 791 P.2d 519 (1990); C.M.C., 87 Wn. App at 89.
Prevailing party is not the standard. In re Marriage of Rideout, 150 Wn.2d 337, 357, 77 P.3d 1174 (2003).
We decline to exercise that discretion in this case. Each party is responsible for their own fees.
We affirm in part, reverse in part, and remand to the trial court for modification of the orders (1) awarding Booth's bank accounts to Marilyn; and (2) limiting Booth's grant to Donald of her power of attorney.
On remand, the new order should omit Donald's mother's U.S. Bank account from the property distribution and specify that the accounts Donald shares with his mother are not subject to the court's jurisdiction. Additionally, on remand, the language of the restraining order should reflect that the restraining order is not intended to impede Donald's ability to act as his mother's agent or exercise his mother's power of attorney to the extent he is acting for the benefit of his mother in accord with her wishes and not on his own behalf with an intent to interfere with Marilyn's use and enjoyment of her property.
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 pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J. and PENOYAR, J., concur.