Opinion
No. 64514-5-I.
Filed: January 31, 2011.
Appeal from a judgment of the Superior Court for King County, No. 08-3-02030-8, Patricia H. Clark, J., entered October 23, 2009.
Affirmed by unpublished opinion per Becker, J., concurred in by Grosse and Cox, JJ.
In this dissolution matter, the trial court determined appellant Peter Garrison was intransigent and ordered him to pay half of his former spouse's attorney fees. The court also denied his request for maintenance. He challenges those rulings on appeal. And he contends the court erred in its valuation of the marital home at $700,000 instead of $987,900. We affirm.
Peter and Sekiko Garrison were married on July 9, 1994. They had two children. Both spouses were well educated and made above average income in their respective careers. Peter worked in the financial services sector and Sekiko worked as a sales manager. Peter's income, formerly in the upper ranges of $175,000 to $200,000, dropped significantly beginning in 2001 to about $60,000 and did not rise back up to his previous level of income. Since 2007, Peter has worked as a financial consultant at an investment bank on a commission basis. He represented to the trial court that he was making only about $1,000 a month at the time of trial and that his prospects for earning more money were very dim, in contrast to Sekiko's steady income of about $11,000 per month.
For clarity, we refer to both parties by their first names.
The parties separated in March 2008. Sekiko filed for dissolution. Sekiko was represented throughout the proceedings. Peter was represented for most of the pretrial period, but represented himself initially and at trial. Continuances occurred at Peter's request because he was the defendant in a criminal prosecution for domestic violence and he wanted to put off any parenting evaluation until that matter was concluded. The dissolution case eventually went to trial in September 2009. Sekiko sought sole decision-making authority for the children, while Peter sought joint decision-making authority. Sekiko did not make domestic violence an issue in the parenting plan. By the time of trial, the parties agreed that the marital home should be awarded to Sekiko and that she would pay Peter for his share of the home's net value as determined at trial. Thus, besides decision-making authority, the primary issues for trial were the valuation of the home and Peter's request for maintenance.
AWARD OF ATTORNEY FEES FOR INTRANSIGENCE
The trial lasted four days. The trial court concluded that Peter had prolonged the trial unnecessarily despite the court's efforts to keep him from dwelling on irrelevant matters. As a result, the court granted Sekiko's request to find Peter intransigent and ordered him to pay half of Sekiko's legal fees.
The Court orders Husband to pay half of Wife's attorney's fees due to his intransigence in this matter. Husband unnecessarily prolonged this litigation by failing to abide by the case schedule and court rules and by filing unnecessary motions. Husband's conduct caused this litigation to be lengthier and more costly than necessary.
Wife incurred $49,075 in attorney's fees in this matter. These fees are reasonable.
Finding of Fact 2.15. Peter assigns error to this finding and asks that the award of fees be vacated.
A trial court has discretionary authority to order an award of attorney fees. In re Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954 (1996). A trial court may award a party legal fees caused by the other party's intransigence. In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120, review denied, 120 Wn.2d 1002 (1992). Intransigence is the quality or state of being uncompromising. Schumacher v. Watson, 100 Wn. App. 208, 216, 997 P.2d 399 (2000). Intransigent conduct includes "foot-dragging" or obstructionist behavior, repeatedly filing unnecessary motions, or making a trial unduly difficult with increased legal costs. Greenlee, 65 Wn. App. at 708. The party's ability to pay the fee is irrelevant. In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929 (1997).
Peter contends his conduct was not as bad as the conduct described in cases where findings of intransigence have been upheld. See, e.g., In re Marriage of Burrill, 113 Wn. App. 863, 869, 873, 56 P.3d 993 (2002) (intransigence where wife made unsubstantiated, false, and exaggerated allegations about her husband's fitness as a parent, including that he had abused their child), review denied, 149 Wn.2d 1007 (2003); Marriage of Foley, 84 Wn. App. at 846 (intransigence where husband filed numerous frivolous motions, refused to show up for his own deposition, and refused to read correspondence from wife's attorney); Crosetto, 82 Wn. App. at 565 n. 5 (intransigence where party refused to cooperate with the guardian ad litem, interfered with court ordered visits, and tried to avoid service); Greenlee, 65 Wn. App. at 708-709 (intransigence where former husband refused to sign documents for allowing refinance of a home in violation of the divorce decree).
The record supports the trial court's ruling finding that Peter was intransigent even though his conduct was not exactly the same as in any of the above cited cases. At trial he frequently pursued irrelevant topics. He tried to relitigate the domestic violence issues from his criminal conviction, even though Sekiko did not raise domestic violence as an issue for the dissolution court. He attempted to bring up marital fault and the reasons for the divorce, despite the fact that Washington is a no-fault divorce jurisdiction. Peter also had problems with the rules of evidence and trial procedure in general. Peter argues that these were innocent mistakes. But the trial court gave him significant leeway and guidance, and he still wasted time, repeatedly pursuing topics that had been ruled irrelevant. We cannot say it was unreasonable for the trial court to view such conduct as obstructionist. Accordingly, we affirm the finding of intransigence.
When making an award of fees for intransigence, the court should segregate those fees caused by the intransigence from those incurred for other reasons. Crosetto, 82 Wn. App. at 565. But segregation is not required if the intransigence permeates the entire proceedings. In re Marriage of Burrill, 113 Wn. App. at 873. Peter contends the court did not find that his intransigence was pervasive. There is no written finding to that effect, but the court stated in its oral ruling that Peter's actions "throughout this litigation" constituted intransigence. The record supports characterizing Peter's intransigence as pervasive. Not only did he waste time during trial, he also caused pretrial delays. For example, he filed an untimely motion requesting relief that had already been denied. Because his intransigence permeated the entire proceedings, the trial court was not required to segregate the fees.
Awarding half of Sekiko's fees was reasonable as it appears that the entire proceeding could have readily been resolved in half the time if Peter had not dragged it out. Peter points out that there was not a fee declaration to prove the $49,075 figure. But Peter does not explain why this is a problem or cite to authority that the absence of a fee declaration justifies vacating the award. We therefore decline to address the issue. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
MAINTENANCE AND CHILD SUPPORT
In a financial declaration Peter filed in March 2008, he represented that his monthly gross income was $2,500, expected to stabilize at $5,000. In June 2009, he anticipated that his monthly gross business income would be $5,000. At trial, he testified that his income was actually only about $1,000 per month, that his monthly expenses were $3,000 per month, and that he was on the verge of becoming homeless. He asked the court to award him maintenance of $4,000 per month for five years.
The trial court did not accept at face value Peter's representation of his income, as shown by the fact that for purposes of calculating child support the court imputed to Peter an income of $5,000 per month, consistent with his own earlier estimates. The court denied Peter's request for maintenance on the basis that he did not need it:
Husband does not have a need for maintenance. Husband has great earning potential and as soon as he returns to the workforce with all of his energies and talents his income will again be on the rise.
Husband was previously employed with Oppenheimer Co. and has a stellar history in the financial world earning upwards of $175,000/year. From 2001-2005, Husband's income dropped dramatically either because the dot com bubble burst as he testified or for reasons that are not known. It is not clear why Husband's income dropped. Husband has been working for Stonebridge Securities since the fall of 2007.
Husband's employer from Stonebridge Securities testified that though Husband is employed he has not been dedicating his time to his employment because he has been consumed with this litigation. The Court hopes that after this litigation is over Husband will focus his talents and energies back on his employment. The Husband's employer testified that Husband is a key employee.
Both parties are extremely well educated. Husband has a B.A. from Yale and a Masters Degree from Columbia. Both parties have good potential for future earnings. Wife earned $137,000 with bonuses in 2008.
Finding of Fact 2.12.
Peter assigns error to the denial of maintenance, claiming that the court's decision left too great a disparity between his standard of living and Sekiko's.
A trial court's decision to award maintenance is discretionary. Foley, 84 Wn. App. at 845. In determining whether to award maintenance, a court should consider: (1) the financial resources of the party seeking maintenance; (2) the time necessary for the party seeking maintenance to acquire education and training to find employment; (3) the standard of living during the marriage; (4) the duration of the marriage; (5) the age, physical and emotional condition, and the financial obligations of the party seeking maintenance; and (6) the ability of the party against whom maintenance is being sought to pay support. RCW 26.09.090. A trial court may consider the future earning capacities of the parties when making its judgment on maintenance. In re Marriage of Hall, 103 Wn.2d 236, 248, 692 P.2d 175 (1984).
As the trial court found, Peter previously earned a significant amount of money in his career and is well educated. Peter's employer testified that Peter had "been spending an awful lot of time on legal stuff" and he thought it had an impact on Peter's work output. This was substantial evidence to support a determination that Peter had chosen to earn less than he was capable of and that his income would likely increase after his legal matters were resolved. It is true that Peter's income had dropped and that Sekiko was currently making considerably more money in comparison. But spousal maintenance is not a matter of right. Foley, 84 Wn. App. at 845. Because Peter was employed, well educated, and had clear potential for greater earning capacity, the decision denying maintenance rested on tenable grounds and we affirm it.
VALUE OF THE MARITAL RESIDENCE
At trial, both Peter and Sekiko called experts to testify about the value of the marital home. Peter wanted the home valued at a high price because it was understood Sekiko would be awarded the home and that Peter would receive a cash transfer based on the value of the home. Sekiko called an appraiser, Robert Chamberlin, who testified that the home's value was $700,000. Peter called a real estate broker, Dave Watkins, who testified the home's value was $937,500. During cross-examination of Watkins, Sekiko brought up a statute, RCW 18.140.020(6), that requires real estate brokers to disclose during testimony that their valuations are not "appraisals" as defined by statute. It appears from Watkins' testimony that he was confused by the questioning and he persisted in referring to his valuation as an appraisal. Sekiko did not ask the trial court to exclude Watkins' testimony. Peter also tried to call two other real estate brokers to testify about the value of the home, but the trial court excluded their testimony as cumulative.
The court accepted the appraiser's valuation of the home at $700,000 and noted the statutory restriction on testimony by brokers:
The Court heard testimony from an appraiser and a real estate broker as to the value of the family home. The Court considered the statutory requirements for being an appraiser and the statutory prohibitions against a real estate broker taking any legal position in terms of the value of the property. The Court adopts the appraiser's value of $700,000 as the value of the real property.
Finding of Fact 2.8. Peter assigns error to this finding.
Peter first asserts that the trial court excluded the testimony of the broker, Watkins, and that such exclusion was erroneous. But the finding of fact does not say that the court excluded Watkins' testimony. Some support for the contention that the trial court refused to consider Watkins' testimony can be found in the oral ruling, where the judge indicated that after considering the statutory prohibitions, she was "left with the valuation as presented by the appraiser":
[W]e had an appraiser and a real estate broker put forth their idea of what this property was worth. The Court, having looked at the statutory requirements for being an appraiser, and looking at the statutory prohibitions against a real estate broker sitting on the stand and making any legal — taking any legal position in terms of the value of this — of a property, is really left with the valuation as presented by the appraiser and that value is $700,000.
Report of Proceedings (Sept. 22, 2009) at 8. But in a discussion regarding finding of fact 2.8 at a hearing on the proposed findings, the court disagreed with Peter's contention that the testimony of Watkins had been rejected outright:
Mr. Lilien [counsel for Sekiko]: The next area of objection, Your Honor, is in 2.8, Your Honor. [Peter] would like to add the Court did not consider the testimony and evaluations of the petitioner's real estate experts, Dave Watkins, Jolene Anderson and Bill Friend, under paragraph one, we were discussing — .
The Court: Sir.
Peter: That is correct, Your Honor.
The Court: You can say I did not adopt their evaluations, but I absolutely considered their evaluations. Let me read the language that's already in here. All right. I'm going to adopt the language as it's set out in 2.8 in the mother's documents.
. . . .
. . . And you may object, but the Court heard the testimony of your evaluators and considered them.
Report of Proceedings (Oct. 23, 2009) at 17-18. Because this portion of the record makes clear that the court did consider Watkins' testimony, we do not address Peter's argument that exclusion was erroneous.
Next, Peter argues that the trial court abused its discretion by admitting the testimony of Chamberlin, the appraiser, and adopting his valuation of the property at $700,000.
The Garrisons' residence was located on view property in northern King County near Innis Arden, a community with protected views. Chamberlin appraised the home twice, once in December 2008 and again in August 2009, using sales of comparable property to assign a value to the home. In the first appraisal, Chamberlin examined homes that were listed or had sold in the range of $600,000 to $1.2 million. He picked seven comparable properties and concluded the home value was $850,000. In the second appraisal, he examined homes in the $600,000 to $850,000 range, picked six comparable properties, and concluded the home value was $700,000.
Peter contends that Chamberlin's testimony lacked adequate foundation to support the use of a $850,000 maximum screen in the second appraisal. Because Peter did not make this objection below, we will not address it on appeal. RAP 2.5(a); see Burrill, 113 Wn. App. at 872.
Peter also argues that Chamberlin's method was so arbitrary that no reasonable trier of fact could have given it credence and therefore the value adopted by the court cannot pass the substantial evidence standard. Peter did not ask Chamberlin to explain why he used a $850,000 screen on the second valuation. Chamberlin's testimony implies that he used the screen because home values had generally fallen since his first assessment of $850,000, and therefore screening for homes that sold below that price would help him narrow the search for comparable properties. Other evidence supported this approach. Chamberlin testified that research he had done on housing in the Magnolia area showed that prices in general were not rebounding upward.
Because the appraiser's methodology was not inherently illogical or irrational, Peter's challenge to it goes to the weight of the evidence, not its admissibility. The time to bring out the perceived flaws in the appraisal was in cross-examination of the appraiser, not in an appellate argument. Washington appellate courts generally do not weigh expert testimony. See In re Marriage of Sedlock, 69 Wn. App. 484, 491, 849 P.2d 1243 (affirming valuation of business assets), review denied, 122 Wn.2d 1014 (1993). That is the fact finder's job. The trial court was free to consider the expert's appraisal as evidence of the value of the home. Therefore, we conclude the court's finding on the value of the home is supported by substantial evidence.
Peter also argues that the valuation of $700,000 was inconsistent with the dissolution decree's requirement that Sekiko refinance the house and make a cash transfer to Peter. Because this argument was not made to the trial court, we need not consider it. RAP 2.5(a). And in any event, whether a refinance of the house would pay for the cash transfer is irrelevant; Sekiko was responsible for the cash transfer even if it did not.
Finally, Peter argues that the court abused its discretion by limiting him to a single witness on the value of the home. Peter wanted to call three real estate brokers to testify to the value of the home. After Watkins testified, Peter attempted to call a second broker to testify to a different value for the house on the fourth day of trial. Sekiko objected that it was cumulative. The court agreed: "It doesn't serve the finder of fact, me, it doesn't provide me with information if you give me three different proposals. I don't know where you stand, all right?" Report of Proceedings (Sept. 21, 2009) at 4. Peter said he wanted to offer the second witness in rebuttal to Chamberlin. On appeal, Peter contends it was error to limit him to a single expert witness on the value of the home because he wanted to use the other witnesses as rebuttal and they would have supported his argument the home was worth about $1,000,000.
A trial court has discretion to reject even relevant evidence if its value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ER 403. Peter had already spent an hour and 15 minutes questioning Watkins, the first expert he called. Through Watkins, Peter was able to present the information the court needed to hear — his reasons for valuing the home at about $1,000,000. Watkins testified after Chamberlin and was able to rebut much of Chamberlin's testimony. On appeal, Peter fails to explain what testimony the other brokers would have given and he does not say how he was prejudiced being limited to one witness on value. We conclude the trial court did not abuse its discretion by excluding the other witnesses under ER 403.
In short, the trial court did not commit error in arriving at the figure of $700,000 for the value of the home. Accordingly that valuation will not be disturbed.
MARITAL FAULT
Peter argues that the trial court impermissibly based its decision on marital fault. He relies on In re Marriage of Muhammad, 153 Wn.2d 795, 108 P.3d 779 (2005). In that case, the wife had obtained a protective order against her husband, which meant that her husband would lose his job as a deputy sheriff. The Washington Supreme Court held that the trial court's rulings in the dissolution established a clear inference that the court had improperly considered the wife's decision to obtain the protective order as marital misconduct and had penalized the wife for doing so. Muhammad, 153 Wn.2d at 806.
Peter contends that here, similarly, the record shows that the trial court disapproved of his conduct and impermissibly punished him for asserting his legal rights. His assertion is not borne out by the record. While the court warned Peter of the problems that typically result from representing oneself, it is entirely proper for a court to do so. The court penalized Peter for intransigence, but intransigence is not marital misconduct; it is misconduct related to a legal proceeding. The court has a duty to enforce the law and to prevent litigants from wasting time. In the end, the court entered a parenting plan that Peter does not object to and divided the marital property equally. None of the rulings suggest, even by inference, that the court was motivated by a desire to punish Peter for his conduct during the marriage.
ATTORNEY FEES ON APPEAL
Sekiko argues that Peter should pay her attorney fees on appeal because Peter's appeal is frivolous. An appeal is frivolous if the appeal presents no debatable issues upon which reasonable minds could differ and is so lacking in merit that there is no possibility of reversal. Foley, 84 Wn. App. at 847. Peter's appeal is not frivolous, so we decline to award fees to Sekiko.
Peter argues that Sekiko should pay his attorney fees on appeal under RCW 26.09.140 because he has need and she has a greater ability to pay. Like the trial court, we are inclined to believe that Peter's straitened financial circumstances are temporary. We exercise our discretion under RCW 26.09.140 and decline to award fees to Peter.
Affirmed.