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In re Marriage of Williams

The Court of Appeals of Washington, Division One
Jan 18, 2005
No. 53999-0-I, Consolidated with No. 54050-5-I (Wash. Ct. App. Jan. 18, 2005)

Opinion

No. 53999-0-I, Consolidated with No. 54050-5-I

Filed: January 18, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Whatcom County. Docket No. 02-3-00870-4. Judgment or order under review. Date filed: 02/24/2004. Judge signing: Hon. Michael F Moynihan.

Counsel for Appellant(s), Ronald C. Hardesty, Attorney at Law, 222 Grand Ave Ste a, PO Box 367, Bellingham, WA 98227-0367.

Paula L McCandlis, Paula McCandlis Attorney at Law, 119 N Commercial St Ste 1227, Bellingham, WA 98225-4439.

Catherine Wright Smith, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.

Valerie a Villacin, Attorney at Law, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.

Counsel for Respondent(s), Paula L McCandlis, Paula McCandlis Attorney at Law, 119 N Commercial St Ste 1227, Bellingham, WA 98225-4439.


Both parties appeal from a dissolution decree. Finding the trial court did not abuse its discretion in setting the amount and duration of the maintenance obligation, we affirm the decree's maintenance provisions. But we reverse the award of attorney fees to the wife and remand the matter to permit the trial court to clarify the basis for its decision.

FACTS

Appellant Richard Williams and cross-appellant Sharon Williams were married in 1972 and separated in 2002. At the time of trial in December 2003 and January 2004, both Richard and Sharon were 50 years old. The couple had three children, one of whom was still dependent.

Since 1983, Richard, a certified public accountant and certified management accountant, has worked for Alpha Tech, a company that sells standby power supplies. At the time of trial, Richard's salary was $120,000. His compensation also included a 5-year bonus plan, which resulted in a $375,000 payment in 2003 for the period 1998-2002, as well as yearly incentive bonuses. Richard's approximate yearly gross incomes for the period 1999 through 2003 were: $158,000, $177,000, $177,000, $169,000, and $530,000 (an amount including the 5-year bonus).

Sharon, a high school graduate, worked only on rare occasions outside the home during the marriage. In June 2003, Dr. David Wisner diagnosed Sharon with undifferentiated autoimmune disease characterized by inflammatory arthritis and Raynaud's phenomenon. When active, Sharon's condition can result in fatigue and flu-like symptoms. Raynaud's phenomenon is characterized by periodic circulatory problems that affect primarily the hands.

Dr. Wisner prescribed several drugs for treatment and by October 2003, Sharon was doing `fairly well.' But he was unable to offer a clear prognosis. According to Dr. Wisner, Sharon's condition is chronic and lifelong, but could go into remission in the future or flare up and affect her major organs.

Shortly after the parties separated, Sharon began taking classes at Bellingham Technical College. Initially, Sharon was admitted into the surgery technician program. She later determined that such a position might be too physically demanding and switched to the radiology technician program. She estimated that she would be able to start the program in December 2003 and that she would require 2-2-years to complete her coursework.

The trial court awarded each party approximately one-half of the community property. In addition to various bank and stock accounts, Sharon was awarded one-half of the community interest in Richard's 401(k) employment plan, a cash award of $193,478 for one-half of Richard's 5-year bonus plan and an incentive bonus, and one-half of the proceeds from the sale of the family home, which was estimated to be about $175,000.

The trial court also awarded monthly maintenance of $3,100 through June 2005, when the remaining dependent child became emancipated. At that time, maintenance will be reduced to $2,500 per month until Sharon finds `suitable employment' after completing her schooling. Maintenance will then be periodically reduced by $500 until the obligation is $500 per month, with the obligation to terminate when Sharon reaches age 65, either party dies, or the wife remarries, whichever occurs first.

Several months after entry of the decree, Richard petitioned the court for an order terminating or reducing his maintenance obligation, alleging that he had been terminated from his job with Alpha Tech on July 9, 2004. The trial court later entered an order temporarily suspending the maintenance obligation as of August 1, 2004, pending further order of the court.

DECISION Husband's Appeal

On appeal, Richard challenges both the amount and the duration of the maintenance award. He argues the trial court erred when it based the maintenance award on speculation that Sharon's medical condition could deteriorate in the future and that the award effectively created a perpetual lien on his future earnings. He further claims that the award discourages Sharon from seeking employment because it does not specify a time frame for her to find `suitable employment' and erroneously permits Sharon to seek modification of the maintenance award after his obligation has already terminated.

In a dissolution proceeding, the trial court may order one party to pay maintenance to the other after considering `all relevant factors,' including the financial resources of the spouse seeking maintenance; the time necessary to acquire sufficient education or experience; the parties' standard of living; the duration of the marriage; the age, physical and emotional condition and financial obligations of the spouse seeking maintenance; and the paying spouse's ability to meet his or her needs while meeting those of the receiving spouse. RCW 26.09.090(1). We review the trial court's award for an abuse of discretion. In re Marriage of Zahm,138 Wn.2d 213, 227, 978 P.2d 1059 (1999). `The only limitation on amount and duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors, the award must be just.' State v. Lucky, 73 Wn. App. 201, 209, 868 P.2d 189 (1994).

Richard's arguments rest primarily on Finding of Fact 2.12: Maintenance should be ordered because:

Marriage of 29 years, wife's age, standard of living, need for retraining, ability to care for herself, current state of health, and possibility of increased problems in future and the husband's ability to pay (RCW 26.09.090).

There is an element of lifestyle which needs to be taken into account. The family has been living at a high level of income, but relatively modestly and it is a 30-year marriage. To the extent they were able to accumulate assets, the wife will have her fair share of that accumulation. On the other hand, she is not entitled to share in the future income of her husband for the reason she will no longer be married to the wage earner. But, her future is questionable, both as to occupation and health. Also obvious that if the Court makes a disproportionate allocation of property, the Husband will make up the ground in short order. Except for whatever estate comes to the wife by way of property distribution, she will not be able to accumulate in the years ahead as the Husband will.

The health issue is a significant one, but the experts can give the parties and the court no real information. The course of the disease will wax and wane. It is a serious condition with which she is now inflicted. The symptoms were serious enough that Dr. Moren referred her to Dr. Wisner, and they concur there could be significant problems in the future. The Court specifically reserves to the wife the right to petition the court at such time as the disease interferes with her work life to attempt to convince the court that an increase of some amount of maintenance is necessary and justified. The court leaves open the question, then, of whether the wife might be entitled to maintenance based on the exigency of her circumstances. As well, the financial circumstances of Mr. Williams will also figure into the maintenance according to law.

Clerk's Papers, at 15.

As the trial court found, Sharon suffers from a significant medical condition, but at the time of trial, her condition was under control, and there was no evidence that her condition would prevent Sharon from completing her studies or finding employment. But as Finding 2.12 demonstrates, the trial court did not rely solely on the uncertainty of Sharon's prognosis as the basis for the maintenance award. Rather, the court considered all of the relevant statutory factors in RCW 26.09.090(1), noting in particular the duration of the marriage, the parties' relatively prosperous standard of living, and the significant disparity in the parties' likely future incomes. Under the circumstances, we cannot say that either the amount or duration of the maintenance award was not just or constituted a perpetual lien on Richard's earnings.

Richard also asserts that the trial court erred by not specifying a time limit for the wife to obtain `suitable employment' and that the wife therefore has no incentive to seek employment if it does not pay more than the $2,500 monthly maintenance award. But the decree requires Sharon to use `reasonable efforts to become employed' upon completion of her training. Richard fails to allege, much less demonstrate, that this provision is inadequate to address his concerns. In any event, we find no abuse of discretion.

Finally, contrary to Richard's assertion, the decree does not provide that the maintenance obligation terminates on his retirement. Rather, the decree states that `spousal maintenance shall terminate when the wife reaches age 65, the death of either party or the remarriage of the wife, whichever first occurs.' Consequently, the language in the decree recognizing the wife's `continuing right to petition the court for an increase in maintenance if her health or other circumstances have deteriorated,' does not authorize Sharon to reinstate maintenance after Richard's obligation has terminated.

The decree provides that the amount of the maintenance obligation will be $500 until the husband retires, creating potential ambiguity as to the amount of the obligation for any period between the husband's retirement and the time the wife turns 65. But the existence of that ambiguity does not support Richard's claim that the decree authorizes Sharon to seek increased maintenance after his obligation terminates.

Richard next contends that the trial court erred in awarding Sharon attorney fees of about $10,400. He argues the record fails to establish Sharon's financial need or the reasonableness of the amount of the award.

The decision to award attorney fees under RCW 26.09.140 lies within the trial court's discretion. In re Custody of Salerno, 66 Wn. App. 923, 925-26, 833 P.2d 470 (1992). In making this decision, the court must balance the needs of the spouse seeking the fees against the ability of the other spouse to pay. In re Marriage of Nelson, 62 App. 515, 521, 814 P.2d 1208 (1991). As the challenging party, Richard bears the burden of demonstrating that the trial court exercised its discretion in a manner that was clearly untenable or manifestly unreasonable. See Abel v. Abel, 47 Wn.2d 816, 819, 289 P.2d 724 (1955).

The record in this case does not indicate to what extent the trial court balanced Sharon's needs with Richard's ability to pay when awarding attorney fees. In its oral decision, the court suggested that it was awarding fees to balance the property distribution and because of the court's `desire [that] Mrs. Williams leave the marriage with no debts.' Report of Proceedings, at 271. Nor does the record indicate how the trial court determined the reasonableness of the fee award. See In re Marriage of Sanborn, 55 Wn. App. 124, 130, 777 P.2d 4 (1989). Accordingly, we reverse the attorney fee award and remand to permit the trial court to clarify the basis for the award in accordance with RCW 26.09.140.

Wife's Cross Appeal

Sharon first contends that the trial court erred in setting the amount of maintenance and providing for the reduction of the maintenance obligation over time. But as Sharon concedes, the trial court considered all of the relevant factors under RCW 26.09.090 before setting the amount and duration of maintenance. We find no abuse of discretion.

Sharon next contends that the trial court should have awarded her a disproportionate amount of property rather than maintenance. But the precise nature of this argument, which is raised for the first time on appeal, is unclear. Sharon's claim appears to rest on the change in circumstances resulting from Richard's employment termination, which occurred almost six months after entry of the dissolution decree. Sharon has made no showing that the property distribution was not `just and equitable' under RCW 26.09.080.

Finally, Sharon contends that the trial court erred in entering an order temporarily suspending Richard's maintenance obligation. She argues that Richard failed to support his petition with sufficient evidence and that the trial court should have adjusted the child support obligation when it suspended maintenance payments.

But Sharon fails to identify any basis for challenging the trial court's post-dissolution order as part of her appeal from the underlying dissolution decree. See RAP 2.4. Moreover, Sharon's challenge to the August 2004 trial court ruling is raised for the first time in her brief, which was filed in this court on October 11, 2004. Such a challenge would therefore be untimely. Finally, even if the challenge were properly before us, we would not consider Sharon's arguments because there is no indication that they were presented to the trial court.

Sharon requests attorney fees on appeal under RCW 26.09.140. She has also filed a motion to shorten the time for considering her affidavit of financial need. See RAP 18.1(c). We grant the motion to shorten time and, having considered the parties' affidavits, award Sharon her reasonable attorney fees for responding to Richard's appeal. The award shall not include expenses associated with her cross appeal.

The dissolution decree is affirmed except for the award of attorney fees. The attorney fee award is reversed and the matter remanded to the trial court to clarify the basis for the award under RCW.26.09.140. Sharon's request for attorney fees on appeal is granted, subject to compliance with RAP 18.1(d).

SCHINDLER, J., GROSSE, J. and COLEMAN, J.


Summaries of

In re Marriage of Williams

The Court of Appeals of Washington, Division One
Jan 18, 2005
No. 53999-0-I, Consolidated with No. 54050-5-I (Wash. Ct. App. Jan. 18, 2005)
Case details for

In re Marriage of Williams

Case Details

Full title:IN RE THE MARRIAGE OF: RICHARD WILLIAMS, Appellant, and SHARON WILLIAMS…

Court:The Court of Appeals of Washington, Division One

Date published: Jan 18, 2005

Citations

No. 53999-0-I, Consolidated with No. 54050-5-I (Wash. Ct. App. Jan. 18, 2005)