Opinion
Nos. 46304-7-I, c/w 47772-2-I, 47672-6-I.
Filed: December 10, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 98-3-08060-8, Hon. Suzanne M. Barnett, March 8, 2000, Judgment or order under review.
Counsel for Appellant(s), Catherine W. Smith, Edwards Sieh Smith and Goodfriend, 701 5th Ave Ste 7170, Seattle, WA 98104.
Cynthia B. Whitaker, Attorney At Law, 3250 Bank of Calif. Ctr., 900 Fourth Avenue, Seattle, WA 98164.
Brendan P. Finucane, Edwards Sieh Smith Goodfriend, 701 5th Ave Ste 7170, Suite 7170, Seattle, WA 98104.
Counsel for Respondent(s), Camden M. Hall, Foster Pepper and Shefelman Pllc, 1111 Third Avenue, Suite 3400, Seattle, WA 98101.
Michael B. King, Lane Powell Spears Lubersky, 1420 Fifth Ave., Ste.4100, Seattle, WA 98101.
In this appeal in the proceeding for the dissolution of the marriage of Richard MacGibbon and Deborah MacGibbon, Richard raises issues regarding property valuation, escalating maintenance, child support, special child rearing expenses, and attorney fees. Deborah seeks an award of attorney fees on appeal. We affirm the trial court's orders in all respects except that we remand the child support order and parenting plan solely for the purpose of modifying them in the manner discussed herein.
We deny Deborah's request for attorney fees on appeal.
FACTS
The parties were married in 1979 and have six children. Richard is a pilot and flew for Flying Tiger Airlines and then for FedEx after Flying Tiger merged with FedEx. At the time of the dissolution action, Richard was a senior pilot with FedEx. Deborah worked very little outside the home during the marriage.
The children were born in June 1980, January 1983, September 1984, July 1988, August 1989, and May 1992.
The parties separated on October 28, 1998. Richard filed for dissolution and, on February 28, 2000, after a 12-day trial, the court issued a decree of dissolution, findings of fact and conclusions of law, an order of child support, a qualified medical child support order, and a parenting plan.
The court also awarded Deborah attorney fees of over $177,000.
The facts relating to the issues raised will be discussed below where relevant.
DISCUSSION Valuation of Assets
We review the trial court's valuation of property in a dissolution proceeding for abuse of discretion. We will not disturb a trial court's valuation if it is within the scope of the evidence.
In re Marriage of Gillespie, 89 Wn. App. 390, 403, 948 P.2d 1338 (1997).
In re Marriage of Mathews, 70 Wn. App. 116, 122, 853 P.2d 462 (1993).
Contrary to Richard's assertion, Washington law does not mandate that assets be valued as of the date of trial. In support of his assertion, he cites Lucker v. Lucker, which involved the valuation of furniture, a boat and motor and trailer, and an undeveloped piece of property. The trial court valued this property as of the date of trial. On appeal, the court held that if the property is valued as of the date of trial rather than the date of separation, then, to make an equitable division of the property, the trial court must consider both appreciation and depreciation in value since the parties separated. The court did not, as Richard asserts, mandate that property be valued as of the date of trial. Indeed, Washington Practice cites Lucker for the proposition that Washington does not follow the rule applicable in some states that the date of valuation must be the date of the decree or trial, but rather has adopted a more equitable rule under which a trial court has broad discretion to pick a valuation date that is equitable to both parties. Richard's entire argument regarding valuation is premised upon his assertion that assets must be valued at the time of trial. We disagree with Richard's assertion and now turn to the issue of whether the trial court's valuations of the assets are within the scope of the evidence.
71 Wn.2d 165, 426 P.2d 981 (1967).
K. Weber, Family and Community Property Law, 20 Washington Practice, § 32.7 at 167 (1997). Also, the court in In re Marriage of Manry, 60 Wn. App. 146, 803 P.2d 8 (1991), affirmed the trial court's valuation of retirement benefits as of the date of the parties' separation, rather than the date of trial.
Richard argues that the trial court incorrectly valued a Merrill-Lynch ESPP account, cash from a safe, and a vacation buyback as of the date of separation because these assets were no longer in existence at the time of trial, so the inclusion of these assets improperly inflated the parties' awards. The trial court's distribution of this property, even if error, does not constitute grounds for reversal because the distribution of these three assets was roughly equal: The court distributed the Merrill-Lynch account 50-50, awarded the $10,000 from the safe to Deborah, and awarded the $9,630 of vacation buyback to Richard. So, if all three of these assets should have been valued at zero, the difference would have been an increase of only $370 in Deborah's award. Out of a net asset total of well over $1,000,000, this change is insignificant.
See In re Marriage of Thomas, 63 Wn. App. 658, 662, 821 P.2d 1227 (1991) ('Mathematical precision in the distribution of property is not necessary'.); In re Marriage of Pilant, 42 Wn. App. 173, 181, 709 P.2d 1241 (1985) (the erroneous valuation of one asset does not require reversal of a property distribution if it is otherwise fair and equitable).
Next, Richard argues that the trial court erred by valuing the South Trust checking account at $7,357. He argues that the account, which the court awarded to him, should have been valued at $500, its value at the time of trial. One of his exhibits 136 showed this valuation on December 7, 1999, which was during trial. Deborah's exhibit showed that the value of the account as of August 31, 1999 was $7,115. The trial court's valuation is $242 higher than the top end of the range of evidence presented. Again, any error in valuation of this account is, in light of the total assets, insignificant and not grounds for a reversal.
Next, Richard argues that the trial court incorrectly valued the parties' E-Trade stock account at $6,798 as of a month before the parties separated. Rather, he argues, the court should have valued the asset, which the court awarded to him, at zero, which was its value as of the date of trial. The trial court's valuation is supported by the evidence Deborah submitted and we will therefore not disturb it.
Richard next argues about the trial court's valuation of his FedEx 401(k) and a Schwab IRA. According to the exhibit attached to the decree of dissolution, the court valued the FedEx 401(k) at $180,153 as of the date of trial, subtracted a $50,000 encumbrance, and awarded the balance of $130,153 to Richard. Richard asserts that the trial court should have valued the plan by using a newspaper's table of mutual fund prices on February 14, 2000. This date is after the end of the trial, although before the trial court issued its final, written orders. Deborah's exhibit shows the value of the 401(k) on August 31, 1999 to be $203,831. According to her evidence, the balance of the loan against the 401(k) was $47,655, so its net value was $156,176. Richard's exhibit showed it to be $119,344 as of August 2, 1999. Because the trial court's net valuation of $130,153 is within the scope of the evidence, we will not disturb it.
Richard argues that the trial court valued the 401(k) at $183,153 as of July 31, 1998, not as of December 31, 1998, the date of trial. In support of this assertion, he cites to Exhibit 26 and CP 395. The exhibit, however, contains information on the value of the plan from December 1, 1998 to August 31, 1999; it does not contain any information on the value of the plan as of July 31, 1998. CP 395 shows that the court valued the plan at $180,153 as of December 31, 1998.
Next, Richard contests the trial court's valuation of the parties' Schwab IRA. The trial court valued the IRA at $41,596 as of October 31, 1998, and awarded it to Deborah. According to Richard, the IRA was actually valued at $41,596 as of February 14, 2000 and the October 31, 1998 entry is a typographical error. Regardless, the trial court's valuation is within the scope of the evidence: Deborah's evidence valued it at $39,571 as of August 31, 1999 and Richard's evidence valued it at $44,593.15 as of December 7, 1999.
Richard argues that the trial court should be required to be consistent in its valuation dates and that the court erred by valuing one retirement plan as of December 31, 1998 and the other as of February 14, 2000. We find no case in which a court required such strict consistency. Washington Practice states, without citation to authority: 'The court not only may select a valuation date that is fair to both parties, but the court is free to select a different valuation date for different assets if to do so would bring about a fair distribution of the assets.' This approach is consistent with the goal of providing a fair and equitable distribution of the parties' assets and liabilities and allows a court to require spouses to share gains and losses in value due to market fluctuations and other factors. We find no error in the trial court's choice of valuation dates. Richard next challenges the trial court's valuation of his Flying Tiger pension. The trial court valued the community portion of the pension at $61,763 as of August 2, 1999. The parties stipulated that the value of the pension would be the valuation set by Roland Nelson, a CPA. The stipulation specifically states, however, that 'the parties do not stipulate or agree which portion of the interests are separate and which are community.'
Weber, § 32.7 at 167.
See id. for a detailed explanation of the reasons for using variable valuation dates.
CP 1066.
Nelson calculated the present value of Richard's Flying Tiger pension both including and not including the lump sum option. Richard will receive the lump sum option if he retires early, and will not receive it if he works until the mandatory retirement age of 60. Nelson computed the community portion of the pension both with and without the lump sum option. The value of the community portion of the pension as found by the trial court was Nelson's value of it assuming Richard retires early, that is, with the lump sum value. There was, and most likely cannot be, evidence that presently establishes with certainty whether Richard will retire early or fly until he turns 60. The trial court's valuation was within the range of the evidence and we will not disturb it.
Lastly, Richard argues that the trial court erred when it failed to include in the property it awarded to Deborah $22,000 of community assets that were distributed to her pursuant to court order prior to trial for her separate attorney fees and litigation expenses. The trial court acted pursuant to RCW 26.09.140, which allows the court to order a party to pay a reasonable amount for the cost to the other party of maintaining or defending a dissolution proceeding, including reasonable attorney fees. There is nothing in the statute or in case law interpreting it to suggest that the amount awarded must be included in the amount of assets awarded to the party in the final decree of dissolution. "The awarding of attorneys' fees is not an element of a property division." The trial court did not err.
We reject Richard's analogy to the community's non-liability for post-separation torts. The attorney fee issue is governed by a statute that explicitly permits the court to order one party to pay the other's attorney fees.
In re Marriage of Nicholson, 17 Wn. App. 110, 120, 561 P.2d 1116 (1977).
Maintenance
The trial court awarded Deborah maintenance as follows: $4,000 per month until 2003, $5,500 per month until 2006, and $7,000 per month until 2009, when Richard turns 60 and will face mandatory retirement. The award was based on the court's view that Deborah will not be able to significantly contribute to her livelihood because she spent the marriage raising the children rather than pursuing a career. The court noted that Deborah will need education and training before she enters the job market, but that this will be very difficult because she is also responsible for parenting the parties' children. By contrast, the court found, Richard's income has been, is, and will continue to be substantial. Accordingly, the court ordered the escalating maintenance payments.
We review the trial court's award of spousal maintenance for abuse of discretion. A trial court may include an escalation clause in an award of maintenance if the maintenance obligation is related to the obligor spouse's ability to pay and the obligee spouse's need and if the award sets a maximum amount.
In re Marriage of Zahm, 138 Wn.2d 213, 226-27, 978 P.2d 498 (1999).
In re Marriage of Ochsner, 47 Wn. App. 520, 526, 736 P.2d 292 (1987) see also In re Marriage of Coyle, 61 Wn. App. 653, 659-60, 811 P.2d 244 (1991) (holding that an escalation clause in a maintenance award was voidable, but not void, where it was tied to the Consumer Price Index and was not based on the obligor spouse's ability to pay nor the obligee spouse's needs and did not contain a maximum amount).
Here, the escalation clause sets a maximum amount that Richard will be obligated to pay. Richard did not assign error to the trial court's finding of fact regarding maintenance. It is therefore a verity on appeal. This finding of fact clearly shows that the escalating maintenance is related to Richard's ability to pay and Deborah's need. The trial court did not abuse its discretion in ordering escalating maintenance.
In re Contested Election of Schoessler, 140 Wn.2d 368, 385, 998 P.2d 818 (2000).
The finding provides, in part:
Long term awards of maintenance in reasonable amounts should be granted when it is clear, as here, that Ms. MacGibbon will not be able to contribute significantly to her own livelihood. This is, in part, because of the disparity in the parties' respective post-dissolution earning capacity, Ms. MacGibbon's parenting responsibility, and the relatively high standard of living enjoyed during the marriage. Ms. MacGibbon will likely never achieve, even with education and training, the degree of financial independence Mr. MacGibbon can enjoy because of his earning capacity. Ms. MacGibbon forfeited her own economic opportunities, and ability to save for retirement, to be a homemaker and to enable Mr. MacGibbon to advance in his career. Ms. MacGibbon was primarily responsible for raising the parties' six children. Ms. MacGibbon provided the day to day services needed by the community to function as a family. She did so at a sacrifice of her economic opportunities in the marketplace. That trade-off, clearly agreed to by Mr. MacGibbon, left Ms. MacGibbon economically disadvantaged as compared to Mr. MacGibbon. CP 366.
Mr. MacGibbon, as an increasingly senior pilot for Federal Express, will have an annual gross income of approximately $180,000. Therefore, he has the ability to pay substantial maintenance to Ms. MacGibbon. Moreover, his significant income is likely to continue its 20 year trend over time. CP 368.
Child Support and Parenting Plan
We will overturn a child support award on appeal only if the trial court's order constitutes an abuse of discretion. Likewise, we review the trial court's parenting plan for abuse of discretion. Richard raises several issues regarding the court's child support order and parenting plan.
Brandli v. Talley, 98 Wn. App. 521, 523, 991 P.2d 94 (1999).
In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 136 (1997).
1. Basic child support in excess of the maximum presumptive amount.
The child support economic table set forth in RCW 26.19.020 is presumptive for combined monthly incomes up to and including $5,000. Here, the parties' combined monthly income is $11,251.29. When combined monthly net income exceeds $7,000, the court may set support at an advisory amount set for combined monthly net income between $5,000 and $7,000 'or the court may exceed the advisory amount of support set for combined monthly net incomes of seven thousand dollars upon written findings of fact.' Where, as here, the parents' income greatly exceeds the economic table, the trial court has considerable discretion when it comes to setting child support.
In re Marriage of Sievers, 78 Wn. App. 287, 308, 897 P.2d 388 (1995).
Under the statute, for families with five children, the advisory amount of support for combined monthly net incomes of $7,000 is $472 for children age 0 to 11 and $583 for children age 12 to 18. Here, the trial court ordered monthly support of $761.56 for the children under 12 and $940.66 for the children age 12 and older. In its findings of fact, the court stated:
RCW 26.19.020. One of the parties' six children was an adult at the time of the dissolution.
The child support amounts should be increased for each child to effect the result intended. Using the 'Extrapolate' function developed in Support Calc, the obligation should be increased to $940.66 per month for Robin and Sean and $761.56 per month for Kenny, Richard and Ryan.
CP 376.
In its conclusions of law, the court stated:
The award of child support is extrapolated in recognition of the standard of living of the parties as well as the assets and ability to pay by Mr. MacGibbon. Moreover, it is fair that the Mother have some money for the amenities the children will reasonably need.
CP 385.
In its order of child support, the court stated: 'Child support should be extrapolated and exceed the maximum advisory amount because the father's income substantially exceeds $7,000 a month and the personal and economic needs of the children require it.'
CP 403.
Richard argues that the court's finding of fact is not 'cogent' and does not support the award in excess of the maximum presumptive amount. The requirement that the court set forth its reasons for deviating from the maximum amount in a finding of fact may be satisfied by the court's stating its reasons in the written child support order, rather than a separate finding of fact. We may also examine the trial court's oral opinion to determine the basis for the court's award.
In re Johnson-Skay, 81 Wn. App. 202, 204, 913 P.2d 834 (1996).
In re Marriage of Crosetto, 82 Wn. App. 545, 569-570, 918 P.2d 954 (1996).
Although here, the trial court's oral opinion is of little help on this issue, the foregoing case law is nevertheless significant in that it shows that we are not confined to looking only at the trial court's finding of fact in reviewing this issue, but rather we may examine the trial court's other statements as well. Even assuming, as Richard asserts, that the trial court's finding of fact is not 'cogent,' an examination of the court's statements set forth above shows that it did not abuse its discretion in deviating from the economic table in its award of support.
2. Special child rearing expenses.
Richard challenges the order of child support to the extent it orders him to pay 100 percent of private school tuition for three of the parties' children if they choose to attend private school and are accepted. He also challenges the requirements that he pay 100 percent of the costs of family therapy and the children's individual therapy, obtain insurance to secure his child support obligation, obtain medical insurance for the children, and pay 69 percent of the children's extraordinary health care expenses.
Richard argues that these awards must be reversed because RCW 26.19.080(3) requires that special child rearing expenses 'be shared by the parents in the same proportion as the basic child support obligation.' The court in In re Marriage of Casey held that where the trial court finds grounds to deviate from the basic support obligation, the court is not bound by the statutory requirement to allocate special child rearing expenses in the same proportion as the basic support obligation. The court based its holding on another subsection of that statute which provides:
RCW 26.19.080(3). Subsection (2) similarly requires that extraordinary health care expenses, which are monthly health care expenses that exceed 5 percent of the basic support obligation, must be shared by the parents in the same proportion as the basic child support obligation. RCW 26.19.080(2). By requiring Richard to pay 69 percent of the children's extraordinary health expenses, the trial court allocated these expenses in the same proportion as the basic support obligation. See CP 405 (showing Richard's proportional share of the basic support obligation to be 69.3% and Deborah's 30.7%).
88 Wn. App. 662, 967 P.2d 982 (1997).
'The court may exercise its discretion to determine the necessity for and the reasonableness of all amounts ordered in excess of the basic child support obligation.' The court held that 'in a proper case, this language permits the court to depart from the usual practice of allocating special child rearing expenses . . . in the same proportion as the putative basic support.'
Casey, 88 Wn. App. at 667. The court distinguished Murphy v. Miller, 85 Wn. App. 345, 932 P.2d 722 (1997), in which the court held that it is mandatory to allocate long-distance travel costs proportionately, on the ground that in that case, the court did not deviate from the allocation of the basic support obligation. Similarly in In re Paternity of Hewitt, 98 Wn. App. 85, 988 P.2d 496 (1999), the court distinguished Casey on the ground that it involved a deviation from the standard child support calculation, while the case before the court in Hewitt did not.
The present case does not involve a deviation from the basic support obligation such as the one involved in Casey; instead, it involves exceeding the statutory child support schedule. But, the two situations are similar in that they both involve significant disparities between the incomes of the spouses involved. Here, the only income attributed to Deborah was Richard's maintenance payment. Essentially, then, both parties' incomes stem from Richard's employment and Deborah contributes no income of her own. In fact, one of the court's reasons for exceeding the schedule was Richard's ability to pay. As discussed above, the trial court found, in an unchallenged finding, that Deborah's income will never increase to the point where it approximates Richard's. Under these circumstances, and under Casey, the trial court did not err by requiring Richard to pay the child rearing expenses.
See Weber § 37.8 ('In cases where the combined income of the parents exceeds $7,000, the issue is not one of deviation from the schedule, but rather is one of exceeding the schedule.').
3. Child support for children after they turn 18.
The order of child support provides:
Support shall be paid until the end of the calendar year in which each child reaches the age of 18 or graduates high school, whichever occurs last, except as otherwise provided below in Paragraph 3.14 [relating to post-secondary educational support]. Child support shall not continue past the end of the calendar year in which each child reaches age 18 unless the child at issue is enrolled as a full-time student in secondary school and is living with, and as an unemancipated dependent of, one of the parents.
(Emphasis in original.) CP 401.
The court in a dissolution proceeding is required to order a parent who owes a duty of support to a child of the marriage dependent upon either or both spouses to pay child support. Under this requirement, the court has the authority to order a parent to pay child support for any dependent child although that child has reached the age of majority. 'The child support obligation is based on dependency, not minority. A dependent child is 'one who looks to another for support and maintenance, one who is in fact dependent, one who relies on another for the reasonable necessities of life."
Balch v. Balch, 75 Wn. App. 776, 778, 880 P.2d 78 (1994).
(Citation omitted.) Id. (quoting Childers v. Childers, 89 Wn.2d 592, 598, 575 P.2d 201 (1978)).
The provision of the child support order in this case, which allows support payments after the end of the calendar year in which the child turns 18 only if the child is in school and living with a parent as an unemancipated dependent, is proper under the foregoing principles. This is because support is required under this provision only if the child is dependent. But, the provision that allows support payments to continue from the day the child turns 18 or graduates high school (whichever is later) until the end of that calendar year, without requiring that such child be either in school, unemancipated, or dependent, must be modified. It is conceivable that one of the parties' children will turn 18 or graduate high school and obtain employment that allows him or her to be self-supporting. Under the provision as written, Richard's support payments would have to continue until the end of the calendar year in which this event occurs, thereby requiring him to pay child support to an emancipated adult who is not in school. This provision must be modified to correctly reflect that support must be paid after the child turns 18 only if he or she remains dependent.
4. Private v. public school.
The parenting plan provides:
Private schooling shall continue as determined by the Mother and shall be paid for by the Father. If there is a conflict regarding public versus private school, the parties shall engage the services of an education specialist to decide the issue, after consulting with the parents and the child, and after matching the child's individual needs with the available schools. The parties shall agree in advance to adopt the recommendation of the education specialist in order to avoid further conflict.
CP 415.
The provision is included in the 'decision making' section of the parenting plan, not the 'dispute resolution' section. It provides for resolution of the dispute by an educational specialist, not an arbitrator. Nevertheless, both parties characterize this provision as requiring binding arbitration of a dispute over public versus private school. This is a mischaracterization of the parenting plan. Based on this mischaracterization, Richard argues that he is entitled to de novo review of the specialist's decision on the public versus private school issue under RCW 7.06, the provisions governing mandatory arbitration of civil actions. However, under those provisions, an arbitrator must be a member of the state bar association who has been admitted to the bar for a minimum of five years or who is a retired judge. In the parenting plan, the public or private school decision is to be made by an education specialist, not an arbitrator. Thus, by its plain language, the parenting plan does not contemplate or require binding arbitration of the public versus private school decision. We reject Richard's argument.
But, regardless of whether the public/private school issue is subject to the dispute resolution provisions in the parenting plan, the plan must be modified. Specifically, the parenting plan provides, in the 'dispute resolution' section, that disputes between the parties must be submitted to arbitration and that '[t]he parties have the right of review from the arbitration process to the Superior Court pursuant to RCW 7.04.160, .170, and .175.' Under RCW 7.04, a disappointed party at arbitration cannot demand a trial de novo. A trial de novo is available only under RCW 7.06. Richard argues that the 'right of review' provision in the parenting plan, limiting review to RCW 7.04 and thereby denying a trial de novo, is contrary to the governing statute that provides: 'The parties have the right of review from the dispute resolution process to the superior court'.
CP 416.
We agree.
In In re Parentage of Smith-Bartlett, the parenting plan provided for mandatory arbitration and further provided that the parties had a right of review from the dispute resolution process to the superior court. When a dispute arose, the trial court ordered arbitration and, in the order, directed that the arbitrator's decision would be final and subject to vacation, modification, or correction only pursuant to RCW 7.04.160 and .170. The party who lost at arbitration requested a trial de novo under the mandatory arbitration provisions of RCW 7.06.050 and the MAR which the parties stipulated to using. The trial court denied the request for a trial de novo. On appeal, the court held that the trial court erred by ordering that arbitration was binding and subject to RCW 7.04. The court held that RCW 26.09.184(3) called for review by the court and that by denying de novo review, the trial court's order was contrary to this statute. The same reasoning applies here. Although this case differs from Smith-Bartlett in that the parenting plan here specifically limits the parties' right to review under RCW 7.04, whereas the court and not the plan limited review in Smith-Bartlett, the distinction is not relevant. The reasoning of Smith-Bartlett compels the conclusion that the clause in the parenting plan in this case must be modified to remove the 'pursuant to RCW 7.04.160, .170 and .175' language.
95 Wn. App. 633, 976 P.2d 173 (1999).
Accordingly, we remand this matter solely for the purpose of making the modifications to the child support order and the parenting plan, discussed above, and for no other purpose.
Award of Attorney Fees
The trial court awarded Deborah attorney fees of $177,147.34 based both on RCW 26.09.140 in consideration of Deborah's need and Richard's ability to pay and on Richard's intransigence. Richard challenges the award on several bases.
1. Findings of fact.
Richard argues that the trial court erred under CR 52(a)(2)(B) by adopting Deborah's testimony and that of her counsel as its finding of fact rather than making independent findings of fact. That rule does require findings of fact in domestic relations issues. But, here, the trial court did make findings of fact. Richard characterizes the court's findings as consisting solely of the court's adoption of Deborah's and her counsel's testimony. This is incorrect. In its first finding, the court incorporated Deborah's and her counsel's LR 40(d)(3) statements about the reasonable value of her attorney's services. The court also, however, made three additional findings of its own, one of which contains four separate findings. The court's findings are proper. The case Richard cites in support of his argument that the court's findings of fact are improper, Peoples Nat'l Bank of Washington v. Birney's Enters., is distinguishable. In that case, the court strenuously disapproved of the incorporation of the trial court's oral findings by reference in the place of formal written findings. As stated above, this is not what the trial court did here.
LR 40(d)(3) provides:
'Evidence as to the reasonable value of attorney's services shall be presented following the presentation of all evidence on both sides respecting the matters at issue, and following a determination by the Court that a party is entitled to an award of attorney's fees.'
54 Wn. App. 668, 775 P.2d 466 (1989).
2. Intransigence.
The trial court has discretion to award attorney fees to one spouse on the ground of the other spouse's intransigence. 'Intransigence is the quality or state of being uncompromising.' When one spouse's intransigence caused the spouse seeking attorney fees to incur additional legal fees, then the financial situation of the party seeking fees is irrelevant. In In re Marriage of Foley, the court held that the husband's intransigence justified an award of fees to the wife where the husband filed numerous frivolous motions, refused to appear for his deposition, and refused to read correspondence from the wife's attorney. The conduct, the court found, caused numerous delays in the trial and required the wife to incur additional attorney fees. Also, where a spouse fails to timely respond to the other spouse's petition and thereby requires the other spouse to file a motion for default, obtains trial continuances, fails to respond to interrogatories and produce requested documents, and is absent from trial without explanation, the trial court is justified in awarding the other spouse attorney fees based on intransigence.
In re Marriage of Schumacher, 100 Wn. App. 208, 217, 997 P.2d 399 (2000). Richard incorrectly cites Rogerson Hiller Corp. v. Port of Port Angeles, 96 Wn. App. 918, 982 P.2d 131 (1999), for the proposition that whether a party's conduct constitutes intransigence or bad faith is an issue of law subject to de novo review. First, the case does not address intransigence. Second, it is clear that the court reviewed the attorney fee award only for abuse of discretion. Similarly, it is clear that in State ex rel. Stout v. Stout, 89 Wn. App. 118, 948 P.2d 851 (1997), the court reviewed the attorney fee award based on intransigence under an abuse of discretion standard, not under a de novo review.
Id., 100 Wn. App. at 216.
In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929 (1997).
State ex rel. Stout, 89 Wn. App. at 126-27.
Here, the trial court found that Richard acted in an 'unreasonably litigious way' in pursuing his claims, unnecessarily complicated the numerous factual and legal issues presented, and forced Deborah to employ counsel to respond to him with expensive and time-consuming motions and responses. Finally, the court found that the difficulties Richard created significantly dictated Deborah's need for vigorous legal representation.
The court's findings are supported by the evidence in the record. The court did not abuse its discretion in awarding Deborah attorney fees based on Richard's intransigence. We will not disturb the fee award.
The trial court awarded fees based on 'bad faith and intransigence.' It appears that Deborah is treating these two grounds as one and the same. She therefore asserts that it is unnecessary for the court to review the award under a bad faith analysis. Deborah does not, as Richard asserts, 'concede bad faith.'
3. Need and ability to pay.
Because we find that the trial court properly awarded fees to Deborah based on intransigence, we need not address whether the award was justified on the basis of Deborah's need and Richard's ability to pay because an award on the former ground is made without regard to the parties' financial circumstances.
4. Amount of the attorney fee award. Richard challenges the amount of the fee award on the ground that the trial court failed to explain how it reached the amount. The trial court must indicate on the record the method it used to calculate an award of fees under this statute. In In re Marriage of Foley, the court held that the trial court complied with this requirement by indicating in its findings that it considered the entire record, the amount of fees the party seeking the fee award incurred, and the delaying tactics employed by the other party. Here, the trial court's order indicates that it considered the declarations of both Deborah and her counsel and heard the arguments of counsel. The documents and arguments apprised the court of the amount of fees Deborah incurred and Richard's conduct that contributed to the substantial amount of fees. This is sufficient under Foley.
In re Marriage of Foley, 84 Wn. App. at 846.
Request for Attorney Fees on Appeal
Deborah requests an award of attorney fees on appeal based both on need versus ability to pay and on intransigence. 'RAP 18.1(a) allows fees on appeal, but the party making the request must devote a portion of the brief to the request.' Despite Deborah's failure to fully comply with RAP 18.1, we have reviewed the record and the evidence presented and we deny Deborah's request for an award of fees on both bases.
In re Marriage of Foley, 84 Wn. App. at 847.
CONCLUSION.
We affirm the trial court's valuation of the parties' assets. We also affirm the maintenance award and the child support award in all respects, except we remand the order of child support to modify it in accordance with this opinion. We also affirm the parenting plan in all respects, except we remand it so it can be modified in accordance with this opinion. We remand this matter solely for these two purposes and for no other purpose. We affirm the award of attorney fees to Deborah and deny her request for an award of fees on appeal.
In light of both parties' actions in this protracted, highly contentious dissolution proceeding, we emphasize that, on remand, nothing more is to be done, and no other or further relief is to be requested, but the amendment of the judgment solely in the manner discussed herein.
WE CONCUR: AGID, J., BECKER, J.