Opinion
No. 29865-1-II.
Filed: March 30, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 01-3-01305-9. Judgment or order under review. Date filed: 12/19/2002. Judge signing: Hon. Stephanie a Arend.
Counsel for Appellant(s), Barbara Jo Reisinge Sylvester, McGavick Graves PS, 1102 Broadway Ste 500, Tacoma, WA 98402-3534.
Counsel for Respondent(s), Carol J Cooper, Davies Pearson PC, 920 Fawcett, PO Box 1657, Tacoma, WA 98401-1657.
Katie Robertson appeals a dissolution decree, raising numerous issues related to the trial court's maintenance and child support awards, division of property and debts, refusal to sanction Cliff Robertson, and an order to file an amended federal income tax return for 2001. Because substantial evidence supports the challenged findings and because the trial court did not abuse its discretion in awarding maintenance and child support or dividing property, we affirm.
FACTS
Dr. Cliff Robertson and Katie Robertson were married in 1990 and separated in February 2001. At the time of trial, Cliff was 39 years old and Katie was 40 years old. Cliff and Katie have three children, ages 11, 8, and 5.
Cliff, a family practice physician, is the president and chief medical officer of the Franciscan Medical Group. Cliff's salary and bonuses for 2001 totaled $171,000, which resulted in a gross monthly income of $14,250.00 and a net monthly income of $9,991.70.
The parties stipulated that the value of Cliff's individual retirement account was $32,429, that the value of his Catholic Health Initiatives retirement plan was $23,280, and that the value of his Franciscan Medical Group deferred compensation plan was $2,528, but it had been spent before trial.
Katie has a bachelor of arts degree and has worked as a bookkeeper, a clerk at a modeling agency, and for a travel agency before the marriage. Katie is a beneficiary of the Chandler Family Trust and has received trust income for at least 15 years. The Chandler Family Trust was the largest single shareholder of the Times Mirror Corporation, which published the Los Angeles Times and magazines, such as Popular Mechanics, before the Chicago Tribune Company acquired it in 2000. During 2001, Katie received $94,000 from the trust, resulting in $7,833.33 gross monthly income and $6,149.66 net monthly income. Katie also receives an annual gift of $7,500 from her mother and a $2,500 contribution toward a life insurance trust.
During the marriage, the parties built a home in the Canterwood Golf and Country Club in Gig Harbor. The court found that the house had a net of $580,000 and that the parties owed $486,000 on first and second deeds of trust, leaving a net value of $94,000. Katie purchased a $12,500 golf membership with separate funds. The trial court valued the membership at $5,900 because of unpaid dues.
During the marriage, the Robertsons, Charles Tingle, and Peter Weir formed Winds Aloft, L.L.C., a chain of Great Clips franchises. Originally, the Robertsons owned 33 1/3 percent of the business. During the separation, Cliff transferred some of the Robertsons' interest to Tingle, who then cancelled the debt the chain owed him. The Robertsons then owned 25 percent and Tingle owned 50 percent. The parties changed ownership interests to accurately reflect their personal assets at risk.
At the conclusion of the trial, the court awarded each party his and her separate property and one-half of the community property. The court also ordered Cliff to pay Katie $16,740 to balance the property distribution and $6,000 to reimburse her for her separate property contribution to Winds Aloft. Because Cliff had paid only statutory child support before the trial, the court ordered him to pay a credit card debt of $28,280. And the court ordered him to pay $20,000 of Katie's attorney fees.
Katie moved for reconsideration and Cliff moved to be compensated for part of the 2001 federal income tax. The court ordered the parties to file an amended joint federal income tax return for 2001 and ordered Cliff to pay the preparation fees. At a later hearing, the court increased its original maintenance award from $2,000 to $2,500 a month for five years, increased its original child support award from $1,300 to $1,340, and required Cliff to pay $32,000 of Katie's attorney fees.
ANALYSIS I. Spousal Maintenance and Child Support Awards
Katie contends that the trial court should have ordered more maintenance and child support. She argues that the trial court erred when it (1) ruled that there was no monthly income attributable to Cliff from Winds Aloft, (2) found that Katie could reasonably expect an average income of approximately $94,000 from Chandler Family Trust No. 2 in the foreseeable future, (3) failed to deduct her state income tax obligations from her trust income, and (4) failed to extrapolate the child support.
A. Sufficiency of Spousal Maintenance
We review a spousal maintenance award for an abuse of discretion. In re Marriage of MacDonald, 104 Wn.2d 745, 751, 709 P.2d 1196 (1985). An abuse of discretion occurs only if the trial court bases its decision on untenable grounds or for untenable reasons. In re Marriage of Sheffer, 60 Wn. App. 51, 53, 802 P.2d 817 (1990) (quoting Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990)).
In setting the amount and duration of maintenance under RCW 26.09.090, the court must consider 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; 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.
A maintenance award must be just, considering all the factors set out in RCW 26.09.090. In re Marriage of Washburn, 101 Wn.2d 168, 178, 677 P.2d 152 (1984). And although the court must consider all the RCW 26.09.090 factors, the economic condition in which a dissolution decree leaves the parties is a paramount concern. See Washburn, 101 Wn.2d at 181 (citing In re Marriage of DeRuwe, 72 Wn.2d 404, 408, 433 P.2d 209 (1967)). The trial court originally awarded Katie $2,000 a month for five years and later increased the award to $2,500 a month for five years. And the trial court originally set child support at $1,300 a month and later increased it to $1,340 a month.
In setting these awards, the court stated:
The wife will under this present situation be receiving $94,000 from the Chandler trust, $45,000 in maintenance and support, roughly, and probably the $7,500 a year from the mother, for $146,500. And that does not leave her a pauper or a candidate for bankruptcy in my considered judgment.
Report of Proceedings (RP) 12/04/02 at 60.
Accordingly, the trial court did not abuse its discretion when it awarded Katie $2,500 a month for five years.
B. Taxable Retained Earnings from Winds Aloft
Katie argues that the trial court should have included Cliff's taxable retained earnings in his gross monthly income for purposes of setting child support and awarding maintenance, assigning error to the trial court's finding that Cliff derives no income from Winds Aloft.
We will uphold a trial court's finding of fact if substantial evidence supports it. In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991) (citing In re Marriage of Nicholson, 17 Wn. App. 110, 114, 561 P.2d 1116 (1977)). And absent erroneous factual findings, we overturn a trial court's award of child support only for an abuse of discretion. MacDonald, 104 Wn.2d at 751 (citing Washburn, 101 Wn.2d at 179-83). A trial court abuses its discretion by ruling on untenable grounds or for untenable reasons. Sheffer, 60 Wn. App. at 53.
RCW 26.19.071(1) provides that all income and resources of each parent shall be considered when the court determines the child support obligation of each parent. Gross monthly income includes income from any source. RCW 26.19.071(3). And a party awarded a business in a dissolution decree must account for and justify retained corporate earnings. In re Marriage of Stenshoel, 72 Wn. App. 800, 807, 866 P.2d 635 (1993) (this practice ensures that child support remains commensurate with actual income and resources). The Internal Revenue Service taxed Cliff on his $37,046 share of the LLC income. But Cliff testified that while the LLC members took cash distributions to cover their respective tax liabilities, the owners agreed when they started the LLC to invest all other earnings to expand the number of stores. Moreover, because Cliff held only a 25 percent ownership interest in the LLC, he could not compel the distribution of any retained earnings. Accordingly, substantial evidence supports the trial court's finding that Cliff 'does not derive income, defined as funds actually available to him' from Winds Aloft. Clerk's Papers (CP) at 140. And because substantial evidence supports the trial court's finding, it did not abuse its discretion by refusing to include the LLC retained earnings in calculating Cliff's gross monthly income for maintenance and child support.
C. Katie's Interest in Chandler Family Trust No. 2
Katie assigns error to the trial court's finding that she could reasonably expect to receive approximately $94,000 annually from Chandler Family Trust No. 2. She reasons that her interest in the trust is a mere expectancy that cannot be relied on and that the court's property and debt division, maintenance, and child support awards should all be revised because of this finding.
But substantial evidence supports the finding. Katie is a beneficiary of the Chandler Family Trust No. 2. Cliff testified that she had received trust income since the 1980s, that she currently receives quarterly distributions from the trust, and that this income was approximately $94,000 in 2001. In 1998, she received $60,506 and in 1999, she received $74,155 from the trust. And the parties agreed the trust income was $89,097 in 2000.
Katie's interest in the trust is not a mere expectancy because a trust beneficiary enjoys equitable ownership of the trust property. See O'Steen v. Estate of Wineberg, 30 Wn. App. 923, 932, 640 P.2d 28 (1982). Moreover, RCW 26.19.071(3)(j) provides that trust income is to be included in the calculation of gross monthly income for child support purposes. Accordingly, the substantial evidence supports the trial court's finding and the court did not abuse its discretion by including Katie's trust income when calculating her gross income.
D. Failure to Deduct State Tax Obligations from Katie's Gross Income
Katie argues that the trial court should have deducted her multiple state income tax obligations from its calculation of her gross monthly income. Cliff responds that there was no evidence of the amount of Katie's state income tax obligations and that she did not raise this issue until the post-trial hearing on December 4, 2002.
Under RCW 26.19.071(5), the trial court should deduct federal and state income tax from gross monthly income to calculate net monthly income.
Katie is correct that the trial court acknowledged during the November 4 hearing and when it finalized the divorce decree that she paid state income tax. According to Katie, she pays income tax on her Chandler Family Trust income in 18 states. For support, Katie points to her financial declaration and trial testimony. But the main evidence here is Katie's testimony about the $2,200 she listed in her financial declaration as income tax under monthly deductions from gross income. And while both parties argue otherwise, their citations are to arguments of counsel during the trial and post-trial proceedings. Accordingly, because there was no evidence of the amount of state income taxes that Katie paid, the trial court properly refused to deduct these taxes from Katie's gross income in setting child support, especially because it set child support at the upper limit of the statutory range. RCW 26.19.020.
E. Failure to Exceed Child Support Schedule
Katie argues that the trial court should have set a higher child support amount commensurate with the parties' incomes, resources, and standard of living.
When the legislature established Washington's child support schedule, it intended 'to insure that child support orders are adequate to meet a child's basic needs and to provide additional child support commensurate with the parents' income, resources, and standard of living.' RCW 26.19.001. The schedule for determining basic monthly child support obligations is contained in RCW 26.19.020. If the parents' combined monthly net income exceeds $7,000, the court may exceed the statutory support schedule. RCW 26.19.020, .065(3).
In other words, RCW 26.19.020 grants express authority to exceed the amount calculated in the child support schedule if the parents' combined net monthly incomes exceed $7,000. In re Marriage of Clarke, 112 Wn. App. 370, 379, 48 P.3d 1032 (2002). In such circumstances, 'the trial court must consider what additional amounts should be paid 'commensurate with the parents' income, resources, and standard of living,' in light of the totality of the financial circumstances.' In re Marriage of Leslie, 90 Wn. App. 796, 804, 954 P.2d 330 (1998) (quoting RCW 26.19.001). Although the trial court may consider what additional amounts should be paid, it retains the discretion to decide the appropriate amount. In re Marriage of Fiorito, 112 Wn. App. 657, 665, 50 P.3d 298 (2002). Within this discretion is the decision that no additional award is appropriate. Fiorito, 112 Wn. App. at 665.
The trial court found that the parties had a combined monthly net income of $16,141.36. When the court originally set child support at $1,300, it stated, 'I'm going to stick simply with the child support schedule which I believe is fair under the circumstances of this case.' RP 8/21/02 at 770. And the trial court heard argument on this issue. Katie also presented the issue of exceeding the standard child support calculation in her trial brief. Accordingly, the trial court fulfilled its obligation to consider setting a higher award, but declined to do so, a decision properly within its discretion.
II. Property Division
Katie argues that the trial court erred when it (1) found that she had interests in Chandler Family Trust Nos. 1 and 2, (2) found that she intended to make various gifts to the community of her separate property, (3) evaluated Winds Aloft and the Canterwood golf club membership, and (4) failed to adequately consider the amount of community debt she paid during the pendency of the case when it divided the assets and debts.
All property, community and separate, is before the court for a just and equitable distribution. RCW 26.09.080; Friedlander v. Friedlander, 80 Wn.2d 293, 303, 494 P.2d 208 (1972). The trial court exercises broad discretion when it makes an equitable property division; we will overturn the division only for an abuse of discretion. Washburn, 101 Wn.2d at 179.
A. Property Interests in Chandler Family Trusts
Katie assigns error to the following finding of fact: The court finds that the wife is the beneficiary of two trusts which derive from the Chandler family. Within the Chandler Trust No. 2 there are specific shares of securities allocated to the wife and the evidence shows that the shares specifically set aside for her has value of approximately $2.8 million and probably more. CP at 137.
Cliff acknowledges there is insufficient evidence to establish that Katie is a beneficiary of Chandler Family Trust No. 1, but he argues that this finding is harmless error because it did not affect the court's property division or support awards. Cliff is correct because the trial court never found that Katie derived any income or value from Chandler Family Trust No. 1 and, accordingly, the erroneous finding did not influence the court's awards.
Katie does have a property interest in Chandler Family Trust No. 2. Moreover, except for the portion dealing with Chandler Family Trust No. 1, substantial evidence supports the challenged finding. Cliff testified that Katie's dividends were originally paid on over 28,000 Times Mirror Corporation shares and that after the Tribune acquired the Times Mirror, Katie's dividends were paid on over 71,000 shares of Tribco. As of August 15, 2002, these shares had a share price of $41, resulting in a total value of the Tribco stock paying dividends to Katie in the range of $2.85 million. At best, Katie points to evidence establishing that she did not own the shares, but that the trust did.
B. Gifts to the Community
Katie argues that the trial court erred when it found that $10,000 of the household goods, the Canterwood membership, and the Whistler timeshare were gifts to the community.
Property purchased during marriage is presumed to be community property. Estate of Madsen v. Comm'r of Internal Revenue, 97 Wn.2d 792, 796, 650 P.2d 196 (1982), overruled on other grounds by Aetna Life Ins. Co. v. Wadsworth, 102 Wn.2d 652, 689 P.2d 46 (1984). A spouse's use of her separate funds to purchase property in the names of both spouses, absent any other explanation, permits a presumption that the purchase or transaction was intended as a gift to the community. In re Marriage of Hurd, 69 Wn. App. 38, 51, 848 P.2d 185 (1993) (citing Scott v. Currie, 7 Wn.2d 301, 308-09, 109 P.2d 526 (1941)). This presumption can be overcome only by clear and convincing proof. Hurd, 69 Wn. App. at 51.
The court found that $10,000 of the household goods, the Canterwood membership, and the Whistler timeshare were gifts to the community. There is no dispute that the assets were acquired during marriage and in the names of both parties. Katie points to her testimony that she hoped and expected to be paid back from money earned by Cliff for a number of expenditures including some related to the Canterwood membership, furniture, and the timeshare. But there was also evidence that the timeshare was purchased because Cliff and Katie liked to ski, had been to Whistler on their honeymoon, and wanted their children to ski. And the Canterwood membership was purchased at the time the Robertsons bought the lot in Canterwood. Accordingly, the trial court did not err in finding that Katie failed to overcome the presumption that she made gifts of this property to the community.
C. Values of Winds Aloft and Canterwood Membership 1. Winds Aloft
Katie argues that Cliff made an impermissible gift of community funds (8 1/3 percent of the ownership of Winds Aloft) when he voluntarily reduced his ownership share and that the trial court erred when it valued Winds Aloft according to the parties' reduced ownership interest at the time of trial. Specifically, Katie assigns error to the trial court's finding that the parties have a 25 percent interest in Winds Aloft, valued at $125,000. Substantial evidence supports the challenged finding; the parties stipulated to the basic value of $125,000 at trial. Therefore, the only question is whether the reduction in ownership interest from 33 1/3 percent to 25 percent was an impermissible gift.
As a general rule, neither spouse may transfer community personal property by gift without express or implied consent of the other. In re Marriage of Bryant, 125 Wn.2d 113, 117, 882 P.2d 169 (1994). But except in certain circumstances, 'either spouse, acting alone, may manage and control community property, with a like power of disposition as the acting spouse has over his or her separate property.' RCW 26.16.030. Black's Law Dictionary defines 'gift' as '[t]he act of voluntarily transferring property to another without compensation.' Black's Law Dictionary at 696 (7th ed.).
Cliff and Peter Weir reduced their ownership interests from 33 1/3 percent to 25 percent to better reflect their personal assets at risk. This increased Tingle's ownership interest to 50 percent. To make this adjustment, the LLC members transferred a portion of the money Tingle had loaned to Winds Aloft to his capital account. This reduced the debt that Winds Aloft owed Tingle and increased his (Tingle's) equity in the business. We agree with Cliff that under these circumstances he did not make a gift of the community assets in the LLC. Accordingly, the trial court did not err when it valued the Robertsons' interest in Winds Aloft at 25 percent.
2. Canterwood Membership
Katie argues that the trial court erred in treating the Canterwood membership as an asset because she is unable to make the monthly payments. Katie claims that the value of the asset should be offset against the $12,500 she would have to pay to restore its value.
But the trial court did reduce the value of the membership by the amount needed to restore it. The trial court found that the membership had a value of $5,900, representing the mutually agreed value of $9,500 less accumulated unpaid dues and awarded the membership to Katie. If the amount needed to restore the membership is now $12,500, it is because Katie presumably could not or would not pay them. At trial, Katie testified she was paying dues of $250 a month.
D. Community Consumer Debt Paid During Pendency of the Case
Katie argues that the trial court abused its discretion when it failed to adequately consider the amount of community debt she paid while the case was pending.
The trial court found that the parties had approximately $25,000 in consumer debt at the time of their separation and that as of trial, approximately $21,000 of this debt remained unpaid. The court further found that Katie had made regular monthly payments on this indebtedness and that Cliff paid $4,000 toward it. Because Cliff had not made adequate temporary support payments, the court ordered him to pay the Bank of America Visa account up to $20,280. And the court found that the balance of the current indebtedness was Katie's separate obligation because she incurred it after the separation. Because the parties do not assign error to these findings, they are verities on appeal. Fiorito, 112 Wn. App. at 665.
The court adopted the parties' stipulation as to this debt.
Cliff is not appealing the court's decision to give him the $20,280 debt from the Bank of America Visa.
The only question is whether the trial court abused its discretion when it divided the debts and assets. See Washburn, 101 Wn.2d at 179. The court ordered Cliff to pay the Bank of America Visa account to the extent of $20,280, pay $22,740 to Katie to equalize the net property distribution, payable over four years with 8 percent interest, and all debts he incurred after the separation in February 2001, including his USAA Visa account. The court also ordered Cliff to pay $32,000 towards Katie's attorney fees. The court ordered Katie to pay $14,111.45 on the First USA joint account, the American Express Gold account in her name, and the Bank of America Visa account in excess of $20,280, if any.
And the court noted, 'this is a pretty good debt load I'm dumping on Dr. Robertson, I'm aware of that,' and that it thought this was 'fair under the circumstance of this case.' RP 8/21/02 at 769-70. We agree.
III. 2001 Income Tax Return
Katie argues that the trial court lacked the authority to order her to file a joint 2001 income tax return and that even if it did, the court abused its discretion.
After trial, Katie filed a 2001 federal income tax return as head of household, claiming all of the exemptions for the three minor children, the entire interest deduction on the residence, and possibly the net loss carry-over from the previous tax year. Under this status, her total tax liability for 2001 was $3,295. But Cliff had contributed approximately $35,100 from his separate funds to Katie's care and maintenance in 2001. After trial, Cliff filed a motion for compensation regarding the 2001 federal income tax. Cliff's 2001 tax liability was $65,533, as reflected by $50,747 in withholding and estimated quarterly tax payments and $14,786 in additional tax due. Cliff estimated that Katie's tax liability would be $21,794 if the parties filed jointly and that the parties' tax liability would have been $72,537.00.
Cliff arrived at this estimate by multiplying the applicable tax percentage from the parties' joint 2000 filing (24.16 percent) by an approximation of her gross income ($90,000). Katie submitted that Cliff's declaration was filed with tax calculations he was not competent to address, but noted that she had no ability to challenge or question their accuracy, and did not submit any alternative calculations.
The court found that if the parties had filed jointly, they would have paid little or nothing more than they had already withheld and paid in estimates. Accordingly, the court ordered the parties to file an amended joint income tax return for 2001, with Cliff paying all the preparation fees for the amended 2001 returns. The court further ordered that Katie was entitled to the approximate $5,700 refund attributable to the amended return. Cliff was to pay any of Katie's additional taxes and any excess tax payable by the children was to be taken from the children's accounts. Cliff's counsel acknowledged that the court could not force Katie to file in a particular way. Cliff suggested that the court offer Katie the choice to amend the 2001 tax return or allow him to deduct $14,786 from his obligations to Katie. Nevertheless, the court ordered the parties to file a joint return.
The Washington Supreme Court has said, 'It is inconceivable that a court in a divorce proceeding can divide the property between the parties and yet have no power to make that division effective if the parties are recalcitrant.' In re Marriage of Robinson, 37 Wn.2d 511, 516, 225 P.2d 411 (1950). And In re Marriage of Peacock, 54 Wn. App. 12, 17-18, 771 P.2d 767 (1989) (citation omitted), Division Three held that a trial court had the authority to enforce its allocation of a child as a federal tax exemption to the non-custodial parent by ordering the custodial parent to execute a written waiver of the exemption, as required by 26 U.S.C. § 152(e)(2). While not directly on point, these cases suggest that the trial court does have the authority to order the parties to file a joint income tax return. In any event, Katie can show no harm from the court's order. The community saved approximately $15,000 by filing the joint return, and Katie was not obligated to pay any more in taxes. Moreover, the court could have reached the same result by allowing Cliff to deduct the additional $15,000 he would have owed if the parties had not filed jointly.
IV. Cliff's Actions
At some point before the parties' separation, Cliff withdrew $10,000 from each of his children's custodial accounts and gave $30,000 to his mother to help her purchase a home. When Cliff's mother sold her former house in Colorado, she gave $10,000 to each child, which Cliff placed in accounts under his control.
And during trial, Cliff gave Katie three checks for $1,000, one for each child as interest on the money he withdrew from their custodial accounts. The court ordered that the $10,000 accounts be transferred to Katie's control.
Katie now argues that the court should have sanctioned Cliff, and that the additional $1,000 per child does not adequately compensate the children for lost interest, capital gains taxes, and additional income tax alleged incurredly as a result of these actions.
In its oral ruling, the court said that it was 'unfair and unreasonable' to say Cliff took money from his children's accounts. RP 8/21/02 at 746. The court also noted that there was 'no testimony whatsoever that the children had to pay capital gains tax other than counsel's statement, which is not evidence.' RP 8/21/02 at 747. Accordingly, we find no error in the court's refusal to sanction Cliff.
V. Attorney Fees
Katie argues that she should be awarded all of her attorney fees and costs on appeal under RCW 26.09.140 and RAP 18.1. Cliff responds that the issues Katie raises in her appeal are frivolous and asks this court to order her to pay his fees on appeal under RAP 18.9(a).
Under RCW 26.09.140, a court, 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 RCW 26.09 and for reasonable attorney fees. And the trial court must balance the needs of the spouse seeking the fees against the other spouse's ability to pay. In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994) (citing In re Marriage of Nelson, 62 Wn. App. 515, 521, 814 P.2d 1208 (1991)). A court should consider: (1) the factual and legal questions involved, (2) the time necessary for preparation and presentation of the case, and (3) the amount and character of the property involved. Knight, 75 Wn. App. at 730.
Under RAP 18.9(a), we may order a party who files a frivolous appeal to pay 'terms or compensatory damages' to another party harmed by the party's actions. An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there is no reasonable possibility of reversal. State ex. rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 905, 969 P.2d 64 (1998) (citing Presidential Estates Apartment Assoc. v. Barrett, 129 Wn.2d 320, 330, 917 P.2d 100 (1996)).
Although we affirm the trial court, Katie's appeal is not frivolous. Accordingly, we decline to award attorney fees to either party.
Affirmed.
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.
HOUGHTON, P.J. and BRIDGEWATER, J., concurs.