Opinion
No. 35635-0-II.
February 20, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-3-00667-7, Christine A. Pomeroy, J., entered November 3, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Penoyar, JJ.
Cynthia (Cindy) Rennie appeals the trial court's maintenance award in her marital dissolution action with Gordon Rennie. She argues that the trial court abused its discretion and that we should reverse and remand to the trial court, directing it to increase both the amount and duration of maintenance on her behalf. Both parties seek attorney fees and costs on appeal. Finding no abuse of discretion, we affirm. We decline to award either party fees or costs on appeal.
We refer to the parties by their first names to avoid confusion. We mean no disrespect.
FACTS
Cindy and Gordon met in 1980 while Gordon was a resident physician at the University of Washington. Cindy had an associate's degree in cardiopulmonary technology and had worked for ten years as a cardiopulmonary technologist. When they met, she was working and studying for her undergraduate psychology degree at the same time. At the time, they both earned about the same amount of money. They married on January 17, 1981, in Seattle, Washington. After the wedding, they moved to West Virginia for three years, where both continued working. Cindy also earned a master's degree in vocational rehabilitation counseling.
In 1984, they moved back to Washington. Gordon began working as a physician at Group Health Cooperative in Olympia, where he still is employed. Between 1984 and 1988, Cindy and Gordon had three daughters. Cindy stopped working after the second child was born in 1986. In 1990, Cindy began working part-time as a church musician and she continued this work throughout the remainder of the marriage, while remaining an active and involved parent with the three girls' activities.
The parties first separated in 1999, based on a restraining order against Gordon for domestic violence. Although Cindy's certification had lapsed, she was able to find a temporary position as a part-time vocational rehabilitation counselor. In early 2001, Gordon had a stroke and returned to the family home to recover under Cindy's care. Disability insurance provided income during his convalescence and Gordon gradually returned to full-time work.
They separated again on October 1, 2004, based on a restraining order against Cindy for an alleged domestic violence incident, and they remained separated throughout the subsequent dissolution proceedings. During this time, Cindy had several part-time jobs, but they continued to use the same check book, thus, giving them both the benefit of Gordon's earnings. Gordon filed a petition for dissolution on June 6, 2005. Cindy denied that the marriage was irretrievably broken. A dissolution trial was held in October 2006.
Cindy worked with Janice Reha, a vocational counselor, to assess her vocational opportunities and training needs. At trial, Reha testified that Cindy was no longer certified to work as a vocational rehabilitation counselor and that it would take her approximately one year to complete refresher classes and gain recertification. Reha also testified that, even with recertification, Cindy's age and lack of recent experience would be obstacles to obtaining employment as a vocational rehabilitation counselor. The trial court questioned Reha extensively about her report dated September 19, 2006, and specifically noted Reha's recommendation:
THE COURT: I guess what I'm saying is when I see the recommendations, "Career goals: To work part time, to obtain maintenance to supplement," there was never, "I want to get a job, and I want to be self-sufficient." You didn't see this in Cindy, did you?
THE WITNESS: I certainly did. This woman is working four to five different, individual jobs. I work a lot — I mean, I've done this for 30 years. I've worked a lot with older women, and I've seen a lot of them. I see very few who are putting out the effort Cindy does.
2 Report of Proceedings (RP) at 182 (quoting ex. 21).
The trial court awarded Cindy a disproportionate share of the community assets, including: (1) $15,000 in attorney fees; (2) 55 percent of the net proceeds from the sale of the family home; (3) her own IRA, as well as 55 percent of the difference between the value of Gordon's IRA and her own; (4) 60 percent of Gordon's 401(k); (5) a timeshare in Canada; (6) two cars and a tent trailer; and (7) various other items of personal property. In addition, Gordon was required to pay the adult children's higher education expenses, the mortgage payment until the home was sold, and $27,000 toward the couple's $36,000 credit card debt.
The trial court also awarded maintenance to Cindy because:
This is a long-term marriage. Prior to and during the marriage, [Cindy] obtained an AA, BA, and a Masters in Vocational Counseling. She was employed prior to the marriage and during the first part of the marriage[.]
During most of the marriage, [Cindy] was a stay-at-home parent for the three children, such that there are significant obstacles to re-entering the workforce[.]
At the time of trial, [Cindy] was age 57 years[,] 11 months[.]
On the date of trial, [Cindy] was earning approximately $2,100 per month gross income working four jobs[.]
[Gordon] was employed as a physician earning approximately $190,000 per year[.]
The family had a significant standard of living during the marriage.
A career counselor testified that [Cindy] was unable to return to her prior technical profession of cardiopulmonary technologist and, most likely, would be only able to find part-time work as a vocational rehabilitation counselor[.] This would be after approximately one year of re-education/training[.]
[Gordon] suffered a stroke several years ago[.] He was 54 years, 9 months at time of trial.
Neither party has any medical problem preventing him or her from being employed full-time at this time[.]
[Cindy] has minimal social security benefits in her own right based on her earning record[.] She will be eligible to collect up to one-half of the social security benefits available to [Gordon], but cannot collect until both have reached age 62[.] She must remain unmarried[.]
The wife is currently underemployed.
Clerk's Papers (CP) at 55-56.
Gordon was ordered to continue his current maintenance payments of $3,200 per month for another year, to pay Cindy $2,000 per month maintenance for the following two years, and, then, to pay $1,000 per month maintenance for an additional five years.
Cindy received $3,200 per month from Gordon during their separation.
Cindy appeals, arguing that we should order Gordon to pay her $3,500 per month until he begins receiving social security benefits and, after that, order him to pay her $500 per month for life. In the alternative, she asks that we reverse and remand for a more equitable maintenance award because of their disparate incomes. Both parties seek attorney fees and costs on appeal.
ANALYSIS
Cindy contends that the trial court's maintenance award "was inequitable in light of the post-dissolution economic situation of the parties." Br. of Appellant at 21. Gordon responds that the maintenance award was made after a thorough review of all relevant factors and, therefore, Cindy's appeal is frivolous.
I. Standard of Review
An award of spousal maintenance under RCW 26.09.090 is a discretionary decision that will not be disturbed on appeal absent a showing that the trial court abused its discretion. In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984). The trial court must consider all relevant factors under RCW 26.09.090(1). In re Marriage of Williams, 84 Wn. App. 263, 267-68, 927 P.2d 679 (1996). "An award of maintenance that is not based upon a fair consideration of the statutory factors constitutes an abuse of discretion." In re Marriage of Crosetto, 82 Wn. App. 545, 558, 918 P.2d 954 (1996).
RCW 26.09.090(1) states:
In a proceeding for dissolution of marriage, legal separation, declaration of invalidity, or in a proceeding for maintenance following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse, the court may grant a maintenance order for either spouse. The maintenance order shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, after considering all relevant factors including but not limited to:
(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his skill, interests, style of life, and other attendant circumstances;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, physical and emotional condition, and financial obligations of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs and financial obligations while meeting those of the spouse seeking maintenance.
II. Underemployment as a Finding of Fact
Cindy acknowledges the trial court's broad discretion and the factors under RCW 26.09.090, but asserts that the trial court's "maintenance award was improperly based on the unsupported ruling that Cindy was 'underemployed.'" Br. of Appellant at 23 (quoting CP at 75). Cindy asserts that the trial court's finding that Cindy was underemployed was a conclusion of law mischaracterized as a finding of fact.
The Washington Supreme Court has stated that "'a finding of fact is the assertion that a phenomenon has happened or is or will be happening independent of or anterior to any assertion as to its legal effect.'" Leschi Improvement Council v. Wash. State Highway Comm'n, 84 Wn.2d 271, 283, 525 P.2d 774 (1974) (internal quotation marks omitted) (quoting NLBR v. Marcus Trucking Co., 286 F.2d 583 (2d Cir. 1961). The issue of underemployment relates directly to RCW 26.09.090(1)(a), which directs the trial court to consider the "financial resources of the party seeking maintenance, including . . . [her] ability to meet [her] needs independently."
Here, the trial court's statement that Cindy was underemployed was based on Cindy's testimony and Reha's report and testimony. It was an assertion about the evidence — a finding of fact — supported by the record. Furthermore, the trial court's finding of fact that Cindy was underemployed was entered in support of its decision to award Cindy maintenance. See In re Marriage of Mueller, 140 Wn. App. 498, 510, 167 P.3d 568 (2007) ("Maintenance is not a matter of right but is within the sound discretion of the trial court."). It was one of many of the trial court's findings of fact that demonstrate its consideration of the required statutory factors.
III. Postdissolution Economic Circumstances
Cindy also contends that the maintenance award left her disadvantaged. She asserts that "[i]n a series of maintenance cases from our state spanning decades, the courts have focused on the importance of the parties' post-dissolution economic status." Br. of Appellant at 25.
Cindy relies on In re Marriage of Sheffer, 60 Wn. App. 51, 802 P.2d 817 (1990) to support her claim that the trial court erred in not ordering long-term maintenance. Sheffer did involve a long-term marriage, but the wife had health problems and only a high school education. She sought maintenance for an indefinite time based on her circumstances. Sheffer, 60 Wn. App. at 52-53. Division One of this court, in remanding for revision of the maintenance award, focused on the postdissolution economic status of the parties, noting that: (1) the trial court's maintenance award terminated after only three years; (2) after three years the wife's monthly net income would be less than one-quarter that of her former husband's income; and (3) the wife had forfeited her career opportunities for the benefit of the community. Sheffer, 60 Wn. App. at 56-58.
Sheffer, in turn, quotes DeRuwe v. DeRuwe, 72 Wn.2d 404, 433 P.2d 209 (1967). However, DeRuwe was decided in 1967, some 5 years before the enactment of former RCW 26.09.090 (1973), the statute at issue here, and DeRuwe is, thus, inapposite. The only subsequent amendment to former RCW 26.09.090 occurred in 1989 and merely removed the words "as custodian" from the statute. Laws of 1889, ch. 375, § 6.
Division One explained that the "record does not convince us that the trial court adequately considered" the postdissolution economic status of the parties. Sheffer, 60 Wn. App. at 57. But it left the determination of any subsequent maintenance award to the discretion of the trial court and specifically directed the trial court's attention to a "consideration of an award tailored to the commencement of receipt of retirement benefits." Sheffer, 60 Wn. App. at 58 n. 2.
Here, as in Sheffer, we review whether the trial court's maintenance award reflects a just and fair consideration of all relevant factors under RCW 26.09.090(1). See Washburn, 101 Wn.2d at 178; Williams, 84 Wn. App. at 267-68; Crosetto, 82 Wn. App. at 558. The parties' postdissolution economic status is subsumed within the various factors articulated in RCW 26.09.090. For example, RCW 26.09.090(1)(e) and (f) direct consideration of the "financial obligations of the spouse seeking maintenance" and the financial obligations "of the spouse from whom maintenance is sought."
Cindy argues that her monthly expenses will significantly exceed her income under the trial court's award. She asserts, without explanation, that "[a]fter 12 months, she would have debts of $16,000." Br. of Appellant at 28. She further asserts that "[f]or the next 24 months, she would incur a debt of $6,000 each year." Br. of Appellant at 29. Finally, Cindy asserts that, during the sixty-month period when her maintenance is only $1,000 per month, "her monthly debts would rise to $1,500 or $18,000 a year." Br. of Appellant at 29. Cindy provides no explanation for her debt prediction nor does she cite to the record to support it.
Cindy's financial declaration listed her monthly net income as $4,713.00, including $3,500.00 per month spousal maintenance. She estimates $4,950.00 in monthly household expenses for her single-person household, creating a monthly shortage of $236.84. This amount, combined with the $7,700.00 for retraining, would create a first year debt of $10,542.08. Even adjusting for the current maintenance award of $3,200.00 per month, her first-year debt would not rise to the $16,000.00 asserted in her brief. She does not support her claim by the trial court record; nor does the asserted debt accrual reflect Cindy's postdissolution economic resources in view of her disproportionate share of the considerable community assets.
Cindy contends that, in comparison to her asserted debt, Gordon will have a postdissolution surplus. However, Cindy first calculates Gordon's postdissolution surplus as $3,100.00 per month; then, without explanation or citation to the record, she argues that his surplus will be $8,400.00 each month during the first year. Gordon's financial declaration listed his monthly net income after deducting $3,200.00 in maintenance as $6,507.58 and monthly expenses as $5,551.91. This shows Gordon with a monthly postdissolution surplus of $955.67, not $3,100.00 or $8,400.00 as Cindy claims. And, in arriving at this surplus, Gordon listed only $225.00 in monthly personal expenses; whereas, Cindy's monthly personal expenses were listed as $1,000.00.
Thus, Cindy fails to support her assertion of a postdissolution disadvantage with adequate argument or citation to the record. We need not consider arguments that are not developed in the briefs and for which a party has not cited authority. In re Marriage of Wallace, 111 Wn. App. 697, 705, 45 P.3d 1131 (2002); RAP 10.3(a)(5) (appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record).
Finally, the trial court's findings of fact on maintenance addressed each of the factors articulated in RCW 26.09.090. They take into consideration: (1) Cindy's age, physical and emotional condition, and financial obligations; (2) Gordon's age, physical condition, and ability to meet his needs and financial obligations while meeting Cindy's; (3) the duration of the marriage; (4) the time necessary for Cindy to acquire sufficient education or training to enable her to find appropriate employment; (5) Cindy's financial resources, including separate or community property apportioned to her, and her ability to meet her needs independently; and (6) the standard of living established during the marriage. See RCW 26.09.090(1).
Moreover, the trial court's maintenance award is tailored to reflect the postdissolution needs of the parties. The findings of fact specifically mention Cindy's need for retraining and this is reflected in the trial court's reduction of the maintenance amount after the first year. The trial court also recognized that Cindy, as the older of the two, would have to wait almost eight years to qualify for her interest in Gordon's social security benefit. Thus, the trial court ordered maintenance lasting eight years, even though she can draw on the IRAs and her portion of the 401(k) the trial court awarded her without penalty when she reaches 59½ years of age, if necessary. See 26 U.S.C.A. § 408.
In view of: (1) the financial declarations before the trial court, (2) the division and apportionment of community property and postdissolution debt, (3) the court's consideration of the age, health, and education of both parties and of the parties' postseparation financial circumstances up to and beyond retirement, the maintenance award is supported by the record and the court did not abuse its discretion. Cindy's contentions are without merit. IV. Attorney Fees and Costs on Appeal Cindy and Gordon both seek attorney fees and costs on appeal. Gordon seeks attorney fees under RAP 18.9, asserting that Cindy's appeal was "frivolous." Br. of Resp't at 8. RAP 18.9(a) states that an "appellate court . . . may order a party . . . who . . . files a frivolous appeal . . . to pay terms or compensatory damages to any other party who has been harmed."
"An appeal is frivolous when there are no debatable issues upon which reasonable minds could differ and when the appeal is so totally devoid of merit that there was no reasonable possibility of reversal." Mahoney v. Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510 (1987). We examine the record as a whole and resolve all doubts in favor of Cindy. Mahoney, 107 Wn.2d at 691-92.
Here, reasonable minds could arguably differ about whether the trial court properly considered the parties' postdissolution economic circumstances in view of its finite maintenance award following a long-term marriage. Therefore, we decline to award Gordon attorney fees under RAP 18.9.
Cindy requests attorney fees on appeal under RCW 26.09.140. She contends that, in view of the postdissolution disparity in income between Gordon and Cindy, we should award her attorney fees and costs of appeal. Although Cindy is not earning nearly as much as Gordon and she reports many expenses, the trial court did award her $15,000 for attorney fees incurred during the dissolution and a significant percentage of the community wealth. Therefore, we decline to award her fees or costs on appeal.
RCW 26.09.140 states:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney's fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry of judgment.
Upon 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.
The court may order that the attorney's fees be paid directly to the attorney who may enforce the order in his name.
We hold that the trial court did not abuse its discretion, affirm its maintenance award, and decline to award either party attorney fees or costs on appeal.
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.
BRIDGEWATER, J., PENOYAR, J., concur.