Opinion
No. 28489-1-III.
Filed: August 25, 2011. UNPUBLISHED OPINION.
Appeal from a judgment of the Superior Court for Yakima County, No. 08-3-00133-7, Blaine G. Gibson, J., entered August 27, 2009.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Siddoway, J., concurred in by Kulik, C.J., and Korsmo, J.
Michael Triggs appeals the division of assets, order of maintenance, and award of attorney fees determined in the dissolution of his 34-year marriage to Judith Triggs. He identifies two small errors in the trial court's property distribution decision that are too inconsequential to require reversal. We agree with his contention that the trial court's award of attorney fees, on the existing record, was unsupported. We reject his other assignments of error.
We vacate the award of fees to Judith Triggs, otherwise affirm, and remand for the trial court's further consideration of any award of trial fees and costs.
FACTS AND PROCEDURAL BACKGROUND
Michael Triggs and Judith Triggs separated in January 2008 after almost 34 years of marriage. Judith petitioned for dissolution in February 2008 and the trial took place 17 months later, in July 2009.
We refer to the parties by their first names for clarity. We intend no disrespect.
At the time of trial, Judith was 63 and Michael was 57. Both were working full time and had worked full time for most of the marriage; Judith had given up outside employment for 12 years, to be at home with her children until they entered grade school. Judith's earned income at the time of the dissolution proceedings ($3,600 gross per month) was less than half the income then earned by Michael ($7,700 gross per month). The parties acquired significant assets during their marriage including the family home, several retirement accounts, and bank accounts at issue on appeal.
Judith was represented by counsel at the dissolution trial and Michael appeared pro se. At the outset of proceedings, many exhibits were admitted without objection, including most of the contents of a binder of 38 financial exhibits offered by Judith that was marked in its entirety as exhibit 2; the account statements, tax returns, and other records contained in the exhibit were referred to as exhibits 2.1 through 2.38. Also offered by Judith were her exhibits 3 and 13: spreadsheets setting forth her summary of the parties' community assets and their values. Exhibits 3 and 13 were offered "for illustrative purposes only" and were admitted on that basis. Report of Proceedings (RP) at 6, 74. The trial court explained the purpose of the spreadsheets to Michael, who had not offered any corresponding summary:
[T]ypically one or the other attorney or both of them will prepare spreadsheets like this just so we have something to work from. And then people go through and they say, well, this number should be something different. It[] just gives me something to work with, rather than trying to write it down.
RP at 9-10. Following admission of the agreed exhibits, Judith's lawyer told the trial court that Michael had provided updated numbers for four assets included on the spreadsheets (three retirement accounts, referred to on the spreadsheets as Vanguard, Novations, and Tradewind; and a stock, Nuvotec). The following colloquy occurred:
[TRIAL COURT]: Well, before you read anything, Mr. Kennedy, this is the husband's position or are you agreeing that these are the correct numbers you're about to give?
We refer to counsel by name in order to be clear about whom the court addresses in this exchange.
MR. KENNEDY: We're agreeing it's the correct number provided we get documentation.
Vanguard as of July 9th — and we'll make these number changes at noon — is 281, 477.
[TRIAL COURT]: Okay.
MR. KENNEDY: Novations is $102,054. Tradewind 401K is $28,207.
And the last item we have is [Nuvotec] stock, which evidently is a penny stock, worth just a little under $20.
[MICHAEL]: I have a certificate here for the stock if you want to see it.
[TRIAL COURT]: You mean, however many shares, total value $20?
MR. KENNEDY: Correct.
[MICHAEL]: Penny stock.
[TRIAL COURT]: Okay. So three is admitted for illustrative purposes.
Any other preliminary matters, Mr. Kennedy?
MR. KENNEDY: I don't believe so, Your Honor.
RP at 10-11. Michael did not agree or disagree, on the record, with this characterization of the values.
In later announcing its property distribution decision, the trial court provided the parties with a spreadsheet reflecting the assets at issue, its finding as to their values, and its allocation of the assets and associated values to the parties. RP at 189; Clerk's Papers (CP) at 107. Most of the values conformed to those included in exhibits 3 and 13. The court divided the approximately $600,000 that it determined to be community property virtually 50/50. It awarded each party their respective separate property. It ordered Michael to pay $1,700 per month in maintenance until he retires, and also ordered Michael to pay as maintenance half of the difference between his Social Security income and Judith's Social Security income once he begins receiving it. Finally, it ordered Michael to pay $6,000 toward Judith's attorney fees.
Michael, represented by counsel in this appeal, assigns error to the trial court's (1) valuation of several assets and debts, which he contends were based solely on Judith's illustrative exhibits; (2) use of different dates for valuing several items of property; (3) allocation of the burden of proof in determining the portion of the value of the family home constituting Judith's separate property; (4) alleged failure to consider the statutory factors provided at RCW 26.09.090 in awarding maintenance to Judith, an award he argues is not supported by substantial evidence; (5) alleged improper division of his Social Security benefits beginning on his 66th birthday; and (6) award to Judith of an amount to be applied to her attorney fees, without considering the substantial assets awarded her by its decree.
ANALYSIS I
Michael first assigns error to the trial court's valuation of his Vanguard retirement account, his Novations retirement account, and two small debts to Sears and Valencia Yard that were allocated to Judith. He argues that no substantive evidence was offered to support the values for these assets and liabilities included in Judith's illustrative exhibits and that the court abused its discretion by relying on values from those exhibits to divide the marital property.
In entering a decree of dissolution, a trial court is to make a "just and equitable" division of marital property after considering all relevant factors, including (1) the nature and extent of the community property, (2) the nature and extent of the separate property, (3) the duration of the marriage, and (4) the economic circumstances of each spouse at the time the division of property is to become effective. RCW 26.09.080. It enjoys broad discretion. In re Marriage of Gillespie, 89 Wn. App. 390, 399, 948 P.2d 1338 (1997). We do not hold the trial court to a standard of mathematical precision. In re Marriage of Konzen, 103 Wn.2d 470, 477-78, 693 P.2d 97, cert. denied, 473 U.S. 906 (1985); see also In re Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001) (recognizing that the trial court is not required to divide community property equally).
We will seldom modify a trial court's distribution decisions upon appeal; the spouse who challenges such a decision bears the heavy burden of showing a manifest abuse of discretion on the part of the trial court. A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). A decision is manifestly unreasonable "if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard." Id. at 47. If substantial evidence supports the court's findings of value, it will be affirmed. Gillespie, 89 Wn. App. at 403-04. To determine whether substantial evidence exists to support a court's finding of fact, we review the record in the light most favorable to the party in whose favor the findings are entered. Id.
Much in the trial proceedings suggests that the July 2009 Vanguard and Novations retirement account values were reliable figures, provided by Michael. Evidence offered by Judith included statements for the Vanguard and Novations retirement accounts through March 31, 2009 that reflected lesser values: $89,925.65 for the Novations account and $263,054.92 for the Vanguard account. But at trial, Judith's lawyer told the court that he had tried to secure current values for all of the parties' retirement accounts and, in the exchange recounted above, he characterized the now-disputed July 2009 values for Michael's retirement accounts included in Judith's exhibits 3 and 13 as updated values provided by Michael that were agreeable to Judith. Michael neither objected to, nor agreed with, this characterization of the values by Judith's lawyer. Judith does not contend that Michael's silent acquiescence was enough to qualify the colloquy as a stipulation under CR 2A.
When later examined, Michael was asked questions that explicitly assumed that the Vanguard and Novations accounts had, respectively, the disputed $281,000 and $102,000 values. He did not object to the questions as assuming facts not in evidence nor did he take issue with any premise of the questions. In offering exhibit 13 following a lunch break, Judith's lawyer explained that he had redone the exhibit at noon, which now included the $281,477 and $102,054 values, "taking [Michael's] word" for the current values. RP at 158. Again, Michael did not take issue with this representation. When it came time to present his case, Michael did not offer evidence of different values for the two accounts.
Even accepting Michael's position that the foregoing trial proceedings fall short of substantive evidence of the higher values reflected on the illustrative exhibits, answers given by Michael when later questioned by the court provide the evidence needed to support the values found by the court. With exhibits 3 and 13 in evidence, Michael responded to questions from the court as follows:
[THE COURT:] . . . [A]re there any other assets that you believe that exist that have not been somehow accounted for in this process?
[MICHAEL]: No, Your Honor.
RP at 163, and thereafter,
[THE COURT]:. . . .
So is there anything else that goes to the issue of either what things are worth or how they should be divided, factual information that you feel I should have that has not previously been supplied to me?
[MICHAEL]: Would that be like her saying the Ford Contour is worth $1,430 and I sold it for 1,000?
[THE COURT]: That would be exactly like that.
[MICHAEL]: Then the loan that I forgave with my daughter, it was 9,000, it wasn't 10,000, it was a $9,000 a balance, it was an agreement that she's basically free and clear of that.
. . . .
[THE COURT]: Any other values that she has on any of the items that you think should be something different, other than what you've already — I mean, we've already talked about household goods.
[MICHAEL]: We've already discounted that $3,000 IRA [individual retirement account] that I supposedly had, correct?
[THE COURT]: Right. That was one that she had.
[MICHAEL]: No. Well, they said that I had one.
[THE COURT]: So that's — .
[MICHAEL]: Husband's IRA. I didn't have one. I don't have one.
[THE COURT]: It's not on their latest sheet here.
[MICHAEL]: Is that the one we moved out? Okay, I'm done, Your Honor.
[THE COURT]: Okay.
RP at 163-66. Viewing this testimony in the light most favorable to Judith, substantial evidence supported accepting the retirement accounts' values reflected on her exhibits 3 and 13.
In addition, with respect to the Vanguard account, even if the $281,000 value was in error, there was no resulting inequity because the court ordered the account to be divided equally. If the 50 percent of its value placed on Michael's side of the trial court's ledger was inflated, then so was the 50 percent of its value placed on Judith's side of the ledger. Even Michael concedes that he has not suffered any prejudice from the valuation and award of this asset. Br. of Appellant at 18.
Michael also complains that $425 of the community liabilities assigned to Judith — a $75 liability to Sears and $350 to Valencia Yard — are unsubstantiated in the record. He is correct as to the Sears liability; Judith admitted that she "[didn't] really owe anything at Sears. I don't know where that came from." RP at 140. Apart from exhibits 3 and 13, the record contains no evidence of a $350 debt to Valencia Yard.
Even if the trial court erroneously valued these small liabilities assumed by Judith, this de minimis error does not require reversal of an otherwise fair and equitable distribution of a marital estate worth over $600,000. In re Marriage of Pilant, 42 Wn. App. 173, 181, 709 P.2d 1241 (1985).
II
Michael next argues that the trial court improperly used different dates to value the parties' assets, and that its inconsistent valuation timing operated to Michael's detriment to the tune of approximately $30,000. Br. of Appellant at 23. The assets about which he complains present distinct issues.
Novations account. Michael complains that there was no evidence of the value of the Novations retirement account as of July 9, 2009. Br. of Appellant at 20. We have already rejected this argument in light of Michael's testimony that his only quarrel with Judith's asset values was with her valuation of his Ford Contour, a small IRA erroneously included in his assets, and her $9,000 valuation of the loan made to their daughter Emma.
Community characterization of bank accounts. Michael argues that the trial court valued his bank accounts with Key Bank and the Catholic Credit Union at "quite divergent times" and should instead have looked at them in early 2008, at the time he and Judith separated, both for valuation purposes and to properly distinguish between preseparation community property and postseparation separate property. Br. of Appellant at 22-23. He challenges the court's characterization of the two accounts at later times as entirely community property, inasmuch as he made $6,000 in deposits to the credit union account and approximately $4,500 in deposits to the bank account more than a year after the parties separated.
"When spouses . . . are living separate and apart, their respective earnings and accumulations shall be the separate property of each." RCW 26.16.140; In re Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002), review denied, 148 Wn.2d 1023 (2003). As long as separate property can be traced and identified, the court will not characterize it as community property unless the separate property is commingled to the extent that the court cannot distinguish or apportion it from the community property. In re Marriage of Chumbley, 150 Wn.2d 1, 5-6, 74 P.3d 129 (2003).
In Washington all property acquired during marriage is presumptively community property. Dean v. Lehman, 143 Wn.2d 12, 19, 18 P.3d 523 (2001). The burden of rebutting the presumption is on the party challenging the asset's community property status and can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception. Id. at 19-20. Physical separation of the spouses, without more, does not alter the basic community property presumption. Id. at 20 (citing Rustad v. Rustad, 61 Wn.2d 176, 180, 377 P.2d 414 (1963)).
Michael did not argue at trial that the court should characterize all or even part of the credit union and bank accounts as his separate property, while Judith characterized the accounts (statements for which she included in her exhibit 2) as entirely community funds. We realize that the distinction between community and separate property is not obvious to laypersons and it was not entirely clear to Michael. See, e.g., RP at 152. Nonetheless, the trial court explained to Michael that the difference between community and separate funds and obligations could be important to a favorable distribution, and encouraged Michael to bring any information in his favor to the court's attention:
[Michael], just so you understand here, what I'm interested in, so that I can make a decision here, is I want to know how much was in these various accounts as of the date of separation, how much you've added to them since then, how much you've taken out of those accounts, and whether any of that money went to pay community debts or expenses, so I can kind of sort out — you know, if you're using money that was community money, but you're using it to pay community debt, that's fine. If you're using it to pay for your separate expenses, that's another matter. If you're using your separate money to pay community debts, those are all things that need to be sorted out. But unless I have that information, I can't, I can't do that.
RP at 69. Despite the admonition, Michael did not provide the trial court with evidence of the separate property character of any deposits to the credit union and bank accounts, with one exception: under questioning from Judith's lawyer, Michael testified that approximately $4,500 in deposits to the Key Bank account was a postseparation payroll deposit. The record reveals no testimony or documentary evidence tracing the $6,000 deposited in the Catholic Credit Union account to postseparation efforts of Michael.
Out of fairness to the trial court and the opposing party, theories advanced for the first time on appeal generally will not be considered. Espinoza v. City of Everett, 87 Wn. App. 857, 872-73, 943 P.2d 387 (1997), review denied, 134 Wn.2d 1016 (1998); RAP 2.5(a). Even though we have a bright-line date for the parties' separation, the tracing issue in this case was not simple. Michael took early distribution nine months before the commencement of the dissolution proceeding of an $89,000 IRA, funded with community earnings, for which he could not entirely account. For this reason and others, it is possible that postseparation deposits to Michael's bank and credit union accounts were community funds. Judith, who characterized the accounts as entirely community, was entitled to respond if Michael disputed her characterization — and at trial, not for the first time on appeal. The fact that Michael represented himself does not warrant indulging his late assertion of a separate property claim. It is well settled that courts are under no obligation to grant special favors to a party who chooses to represent himself of herself in a dissolution proceeding. In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993) (quoting In re Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 155, review denied, 100 Wn.2d 1013 (1983)).
It appears doubtful that Michael could meet his burden of demonstrating error by the trial court with respect to most of the deposits to the accounts. Doubtful or not, we decline to consider this theory for the first time on appeal.
Judith's retirement accounts. Michael contends that the trial court valued two of Judith's retirement accounts at a combined value of $80,618, disregarding evidence that on June 30, 2009 they had a value of $83,402.28. Br. of Appellant at 20. We disagree with his characterization of the evidence.
Judith's exhibit 13 reflected values for her four retirement accounts, three of which are germane to Michael's claim of error. The three relevant accounts were a 403(b) account valued at $50,501 as of June 8, 2009, a 401(k) account valued (net of a postseparation contribution) at $26,517 as of March 31, 2009, and a TSA (tax sheltered annuity) account valued at $9,548, for a total of $86,566. But Judith testified that in the months leading up to the dissolution trial, she consolidated the TSA, 403(b), and 401(k) assets into the 401(k) account maintained with American Funds. RP at 136-39. She testified that the consolidated value of all three accounts was reflected on her June 30, 2009 statement for the 401(k), offered and admitted as exhibit 2.38. That statement reflects a June 8, 2009 $50,501.89 rollover of the 403(b) assets, and a June 1, 2009 "Employer Contribution" of $9,419.12, which Judith testified reflected the deposit into the account of her TSA assets. RP at 139. She asked the trial court to use this most recent, consolidated value ($83,402.48) as the value for the three retirement accounts, rather than the earlier, higher, values reflected on exhibit 13. RP at 158-60.
Inexplicably, the court did not; it used the earlier values instead. By doing so, it treated Judith as if she received more value, not less. Michael overlooks this, because he fails to recognize that the consolidated account value included the TSA. If anyone was prejudiced by the trial court's using earlier values for Judith's accounts, it was Judith, not Michael.
Loan to daughter. Michael's last argument of a valuation timing error concerns a $9,000 loan that he and his wife made to their daughter, Emma, approximately four years before the dissolution trial, which the trial court valued as a $9,000 asset and allocated to him. He argues that collection of the loan was time barred by the time of trial; therefore the court's crediting $9,000 to Michael in allocating the loan to him implicitly depends on an unspecified valuation date before trial, when Emma's obligation to repay the loan was enforceable. Once again, Michael raises this basis for challenging the loan's valuation for the first time on appeal.
At trial, Michael objected to a $9,000 valuation of the loan and to its being allocated entirely to him, but for only two reasons: because Judith shared responsibility for the decision to make the loan and because, as both could have anticipated, Emma was not in a financial position to repay it. It is undisputed that Judith was present when Michael and Emma agreed, verbally, to the loan, and undisputed that Judith raised no concerns or objections; indeed, Judith testified that Michael had not wanted to loan the money to Emma and "I talked you into it because I felt she needed a car." RP at 153.
Michael forgave the loan sometime after the parties' separation, testifying at trial, "She's unable to pay for it." RP at 68. Judith did not know that Michael forgave the loan to their daughter until trial.
The issue of a possible time bar came up at trial, but not until closing argument — and it was raised only by the trial court, which posed the academic question whether an oral loan would be time barred if not repaid in three years. Judith's lawyer answered, "[I]t's an interesting question. That would make a nice bar exam issue. But the bottom line, marital communities do this all the time and it has to be taken into account." RP at 167. Michael did not address the court's question in his closing.
The trial court treated the loan as a $9,000 asset and allocated it to Michael. Michael now asks us to reverse the disposition based on the issue raised by the trial court: he argues that the loan was worthless at the time of trial because the three-year statute of limitations to enforce the loan had already run. RCW 4.16.080(3).
An oral loan agreement that does not provide a specific time or period for repayment is a demand loan. Nilson v. Castle Rock Sch. Dist., 88 Wn. App. 627, 630, 945 P.2d 765 (1997). Ordinarily the three-year statute of limitations for demand loans begins to run on the date the loan is made. Hopper v. Hemphill, 19 Wn. App. 334, 336-38, 575 P.2d 746 (1978). Barer v. Goldberg, 20 Wn. App. 472, 476, 582 P.2d 868, review denied, 90 Wn.2d 1025 (1978) recognized an exception where parties contemplate a delay in making payments on a loan and speedy demand would violate the spirit of the contract; in such cases, the Barer exception delays the running of the statute of limitations.
In this case, Michael did not contend that collection of the loan from Emma was time barred, so there was never any reason for Judith to present evidence as to whether the verbal agreement between Michael and Emma provided a specific time or period for repayment, or, if it did not, whether circumstances supporting the Barer exception existed. The record is silent on both matters. Neither the trial court nor we have any way of knowing when the statute of limitations would have begun to run.
Abuse of discretion does not exist unless it can be held that no reasonable person would have ruled as the trial court did on the facts before it. In re Marriage of Young, 18 Wn. App. 462, 465, 569 P.2d 70 (1977). The facts before the court were that $9,000 had been loaned to Emma and remained outstanding. While Michael testified he had forgiven the loan, applicable law provides that unilateral forgiveness by him of a community loan would have been void. RCW 26.16.030(2) (requiring consent of both parties for gift of community property); deElche v. Jacobsen, 95 Wn.2d 237, 250, 622 P.2d 835 (1980). Michael testified to his belief that Emma was unable to pay the loan, but he presented no evidence of Emma's financial situation or of a decline in value of the car that might warrant discounting the value of Emma's obligation. The trial court's valuation was within the range of the evidence and therefore a proper exercise of its discretion.
III
Michael next challenges the trial court's allocation of 46 percent of the value of the family home as Judith's separate property. Michael and Judith purchased the family home in 1981 for $65,000. Judith paid approximately $30,000 of the $65,000 total out of her separate property funds at the time of purchase. The balance was paid over time with community funds. The parties agreed at trial on an appraised value of $165,000 for the home. The trial court maintained Judith's percentage of separate property interest in the home thereby characterizing $75,900 (46 percent of $165,000) in value of the home as her separate property.
Michael concedes that Judith paid 46 percent of the original purchase price of the home with separate funds but argues that she should not have been awarded an aliquot portion of its appreciated value because the community made payments toward improvements, taxes, and maintenance that should have been, but were not, considered by the court. Br. of Appellant at 26-29. Michael offered no evidence of the extent, if any, that improvements or maintenance contributed to the home's appreciation, so the persuasiveness of Michael's argument depends upon which of the parties is correct about presumptions and burdens of proof. Michael argues that property acquired during marriage is presumed to be community property unless the presumption is rebutted by clear and convincing evidence, citing In re Marriage of Olivares, 69 Wn. App. 324, 331, 848 P.2d 1281, review denied, 122 Wn.2d 1009 (1993). Br. of Appellant at 28. Judith contends that any increase in the value of separate property is presumed to be separate property, a presumption that may be rebutted only by direct and positive evidence that the increase is attributable to community funds or labors, citing In re Marriage of Elam, 97 Wn.2d 811, 816, 650 P.2d 213 (1982) and In re Marriage of Pearson-Maines, 70 Wn. App. 860, 869, 855 P.2d 1210 (1993) (any increase due to inflation is divided consistently with the proportion of community and separate contributions; in arriving at any proportion earned by improvements to the property, increased value should be the measure). Br. of Resp't at 25.
Michael also argues for the first time on appeal that a home equity loan taken out to cover the cost of a wedding reception for Judith's daughter (his stepdaughter) is an additional basis for increasing the community's interest in the home. We can readily dismiss this argument, not only because the theory was not advanced below, but also because the fact that community funds were used to retire a loan for wedding costs secured by the home reflects the community's investment in the wedding, but does not increase its investment in the home.
The characterization of property as community or separate is a question of law, reviewed de novo. In re Marriage of Zier, 136 Wn. App. 40, 45, 147 P.3d 624 (2006), review denied, 162 Wn.2d 1008 (2007). In this case, the underlying facts relevant to characterization of the home are undisputed and are therefore verities on appeal. Haley v. Med. Disciplinary Bd., 117 Wn.2d 720, 728, 818 P.2d 1062 (1991).
Presumptions play a significant role in determining the character of property as separate or community. In re Estate of Borghi, 167 Wn.2d 480, 483, 219 P.3d 932 (2009). The character of property as separate or community is determined at the date of acquisition, and "`the right of the spouses in their separate property is as sacred as is the right in their community property . . . [W]hen it is once made to appear that property was once of a separate character, it will be presumed that it maintains that character until some direct and positive evidence to the contrary is made to appear.'" Id. at 484 (quoting Guye v. Guye, 63 Wash. 340, 352, 115 P. 731 (1911)). "Direct and positive evidence" corresponds to the "clear and convincing" standard applied to presumptions in modern community property cases. Id. at 484 n. 4. These authorities support Judith's position. At the time the home was purchased, Judith paid all or virtually all of the down payment; at the inception of ownership, the home was almost entirely her separate property. The presumption of her separate ownership is overcome to the extent of Judith's agreement that 54 percent of the purchase cost was later paid with community funds, but Judith does not concede that any improvements contributed to the home's appreciation. While Michael presented evidence that, at best, $9,000 of community funds went to improvements of the home, he failed to present evidence that the $100,000 increase in value of the home was due in whole or in part to these improvements.
Olivares, relied upon by Michael (and disapproved of on other grounds in Estate of Borghi), does not support his contrary position. Olivares simply tells us that because the home was purchased during the marriage it is presumed to be community property absent clear and convincing evidence that it was purchased with separate property. The evidence is undisputed that the down payment was made with Judith's separate funds. The trial court correctly concluded that Judith's 46 percent separate property interest carried forward into the appreciated value of the home.
IV
Michael next contests the trial court's award of maintenance. The trial court ordered Michael to pay monthly maintenance of $1,700 initially, to be adjusted on Michael's 66th birthday to an amount equal to one-half the difference between Michael's and Judith's Social Security payments, and to terminate upon the death of either party or Judith's remarriage. The court's written finding in support of the award was that "[m]aintenance should be ordered because: Wife has the need and Husband has the ability to pay." CP at 19.
We review a maintenance award for abuse of discretion. In re Marriage of Zahm, 138 Wn.2d 213, 226-27, 978 P.2d 498 (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. In re Marriage of Luckey, 73 Wn. App. 201, 209, 868 P.2d 189 (1994).
Failure to consider statutory factors. Michael first contends that the trial court failed to consider the statutory factors relevant to a just maintenance order. RCW 26.09.090(1) provides that a maintenance order "shall be in such amounts and for such periods of time as the court deems just, without regard to misconduct, after considering all relevant factors," including:
We quote the current version of RCW 26.09.090, which was amended by Laws of 2008, chapter 6, section 1012 to make the language gender neutral and to include domestic partners.
(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him or her, and his or her ability to meet his or her 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 or her skill, interests, style of life, and other attendant circumstances;
(c) The standard of living established during the marriage or domestic partnership;
(d) The duration of the marriage or domestic partnership;
(e) The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and
(f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.
An award of maintenance that is not evidenced by a fair consideration of the statutory factors constitutes an abuse of discretion. In re Marriage of Mathews, 70 Wn. App. 116, 123, 853 P.2d 462, review denied, 122 Wn.2d 1021 (1993). Appellate courts have found that an award does not evidence a fair consideration of the statutory factors when it deems the award substantively irreconcilable with fair consideration of the factors, e.g., Matthews; when the record reveals unwarranted reliance on other, nonstatutory factors, e.g., In re Marriage of Spreen, 107 Wn. App. 341, 349-50, 28 P.3d 769 (2001); and when the trial court substitutes a disproportionate property award for a duly-considered maintenance award, see In re Marriage of Crosetto, 82 Wn. App. 545, 558, 918 P.2d 954 (1996) (dicta).
Michael urges us to more readily find abuse of discretion, relying on In re Marriage of Horner, 151 Wn.2d 884, 895-96, 93 P.3d 124 (2004). Horner involved a divorced parent's request to relocate a child and held that a trial court denying such a request must clearly document its consideration of all 11 statutory factors on which any denial must be based, either by specific findings or by other oral statements reflecting its clear consideration of each factor. Notably, Horner concerned parties who had failed to present evidence or argument on many of the 11 factors. And of course, a child relocation decision substantially affects the interest of the child, who is unrepresented in the matter. Michael would have us reverse any maintenance award under RCW 26.09.090 that does not comply with the stringent Horner documentation requirements even where, as here, the substance of the maintenance factors was almost entirely uncontroverted, both affected parties were before the court, Michael cannot demonstrate that he requested more detailed findings or otherwise objected to the findings when presented, and he enjoys the opportunity to challenge the court's findings on the ultimate, material matters.
The parties presented the trial court with evidence of Judith's working history and health, Michael's working history and health, the future income outlook for both, their retirement plans and projected Social Security entitlement, their separate and community assets and obligations, and their expenses and cash flow situations during the period of their separation. The duration of the marriage and the emancipated status of the parties' children were clear. The trial court was attentive and asked questions. The evidence was almost entirely uncontroverted. There is no argument by Michael that Judith urged improper factors, or that the trial court was distracted by nonstatutory factors.
Nothing in RCW 26.09.090 requires the trial court to make specific factual findings on the given factors. In re Marriage of Mansour, 126 Wn. App. 1, 16, 106 P.3d 768 (2004) (finding no basis for reversing the maintenance award where the trial court failed to list the influence of each factor in its findings). Generally, "[a] trial court is not obligated to make findings of fact on every contention of the parties. Rather, it is required to find only the material facts of the case, that is, findings sufficient to inform us, on material issues, what questions the trial court decided and the manner in which it did so." City of Tacoma v. Fiberchem, Inc., 44 Wn. App. 538, 541, 722 P.2d 1357 (citing Daughtry v. Jet Aeration Co., 91 Wn.2d 704, 707, 592 P.2d 631 (1979)), review denied, 107 Wn.2d 1008 (1986). A trial court is not required to make findings on stipulated or uncontroverted matters. Swanson v. May, 40 Wn. App. 148, 158, 697 P.2d 1013 (1985).
The trial court need only find the ultimate facts on the material issues. Whitney v. McKay, 54 Wn.2d 672, 678-79, 344 P.2d 497 (1959). We see nothing in Horner that overrules longstanding case law holding that findings need be made only on matters in contention.
In determining spousal maintenance, the court is governed strongly by the need of one party and the ability of the other party to pay an award. In re Marriage of Foley, 84 Wn. App. 839, 845-46, 930 P.2d 929 (1997) (citing Endres v. Endres, 62 Wn.2d 55, 56, 380 P.2d 873 (1963)); cf. In re Marriage of Washburn, 101 Wn.2d 168, 182, 677 P.2d 152 (1984) (RCW 26.09.090 places emphasis on the justness of an award, not its method of calculation). In this case, only this ultimate issue is truly in dispute. Where, as here, the trial court's findings on material controverted matters are sufficient for our review of its maintenance award, we will not read Horner to require its reversal simply because it did not make findings on uncontroverted or immaterial matters.
Unsupported finding. We turn next to Michael's assignment of error to the trial court's finding that Judith has a need for maintenance and Michael has the ability to pay. Br. of Appellant at 32-33. The economic position in which the former spouses are left is the paramount concern in property distribution. Pilant, 42 Wn. App. at 178 (citing DeRuwe v. DeRuwe, 72 Wn.2d 404, 408, 433 P.2d 209 (1967)). Maintenance is not just a means of providing bare necessities, but rather a flexible tool by which the parties' standard of living may be equalized for an appropriate period of time. Washburn, 101 Wn.2d at 179. "In a long term marriage of 25 years or more, the trial court's objective is to place the parties in roughly equal financial positions for the rest of their lives." In re Marriage of Rockwell, 141 Wn. App. 235, 243, 170 P.3d 572 (2007), review denied, 163 Wn.2d 1055 (2008). Judith's request for maintenance was with a view to achieving that equality, taking into consideration Michael's greater earning power and that she was much nearer to retirement.
At the time the trial court announced its decision, the trial court stated, with respect to its maintenance award:
With regard to maintenance, I found that the husband's gross monthly income is $7,700, the wife's gross monthly income is $3,600. I'm ordering the husband pay the wife maintenance of $1,700 a month until he retires.
When the husband begins collecting Social Security, he will pay the wife one half of the difference between the Social Security she receives, or what she's eligible to receive if she's not collecting it, and what he receives. And I want to make note of the fact that if for some reason the husband starts collecting Social Security before he retires, then he would have to pay both the $1,700 and the Social Security difference.
RP at 195-96. The effect of the award at the parties' stated earned incomes is to leave Michael with net income of $6,000 per month and Judith with net income of $5,300 per month; this, in conjunction with a substantially equal division of the parties' community property.
The distribution and maintenance decisions are well within the range of the evidence, given the trial court's objective in a dissolution action.
Perpetual lien contention. Michael next argues that the trial court's maintenance award acts as a perpetual lien on his future earnings, requiring him to keep working in his current capacity until at least age 66. The only authority he relies upon for the asserted impropriety of awarding maintenance payable until retirement is In re Marriage of Sheffer, 60 Wn. App. 51, 802 P.2d 817 (1990). Br. of Appellant at 34-35. In Sheffer, the wife was awarded maintenance for 36 months and appealed, arguing that in light of the parties' long-term marriage and the postdissolution disparity in their economic circumstances, she should have been awarded indefinite maintenance. The sole reference to a perpetual lien in the decision states, "Traditionally, Washington cases have emphasized that alimony is not a matter of right and that one spouse should not be given a perpetual lien on the other spouse's future income." 60 Wn. App. at 54. Following that statement, the decision discusses other reported decisions that recognize maintenance as a flexible tool to more nearly equalize the postdissolution living standard of the parties, the appellate court announces its reversal of the 36-month maintenance award, and it suggests that on remand the trial court consider an award tailored to the commencement of receipt of retirement benefits. 60 Wn. App. at 55-58 n. 2. Michael's argument is, at best, underdeveloped and need not be considered. RAP 10.3(a)(6). It is not persuasive.
Improper redistribution of Social Security benefits. Michael's last attack on the maintenance award is that it impermissibly divides and redistributes his Social Security benefits.
Federal law and the supremacy clause prevent Washington courts from dividing and distributing Social Security benefits in a dissolution proceeding. Rockwell, 141 Wn. App. at 244-45; Zahm, 138 Wn.2d at 219 (citing 42 U.S.C. § 407(a) of the Social Security Act and its interpretation under Hisquierdo v. Hisquierdo, 439 U.S. 572, 590, 99 S. Ct. 802, 59 L. Ed. 2d 1 (1979)). In particular, a trial court cannot make an offsetting award of presently available community property in order to compensate a party for her spouse's expected Social Security benefits. Zahm, 138 Wn.2d at 221. But the possibility that one or both parties may receive Social Security benefits is a factor the court may consider in making its distribution of property. Id. The Zahm court also noted that "social security benefits were an appropriate element for the court to factor into its consideration of respondent's maintenance award for the same reasons contained in the analysis of petitioner's [property allocation] claim regarding social security benefits." Id. at 227.
Michael argues that the trial court went beyond merely considering his Social Security entitlement in awarding maintenance and actually divided his benefits, "albeit via a calculation rather than a [sic] through a percentage order." Br. of Appellant at 38. Initially, we note that Michael cites no authority for his implicit proposition that a trial court cannot order future payment of a portion of a recipient's Social Security benefits as maintenance, as opposed to the anticipatory property adjustment for their future value prohibited by Zahm, applying Hisquierdo. Other states reviewing the issue have relied upon 42 U.S.C. § 659(a) — an exception to the anti-assignment clause of the Social Security Act ( 42 U.S.C. § 407(a)), which allows benefits to be garnished for the payment of child support or maintenance obligations — as permitting maintenance awards from federal benefit payments, including Social Security benefits. See Evans v. Evans, 111 N.C. App. 792, 798-99, 434 S.E.2d 856 (1993) (concluding that 42 U.S.C. § 407(a) does not bar a maintenance award of Social Security benefits because of the exception provided in § 659(a)); In re Marriage of Mikesell, 276 Mont. 403, 406, 916 P.2d 740 (1996) (recognizing that "legal process brought for the enforcement of a party's legal obligations to provide child support or make maintenance payments is a specific exception to the broad exemption from garnishment provided to social security benefits by 42 U.S.C. § 407"); c.f. Lanier v. Lanier, 278 Ga. 881, 882-83, 608 S.E.2d 213 (2005) (holding that Railroad Retirement Act benefits may constitute the source of alimony payments under federal law); In re Marriage of Flory, 171 Ill. App. 3d 822, 121 Ill. Dec. 701, 525 N.E.2d 1008 (1988) (recognizing that 42 U.S.C. § 659(a) contains an exception to the Railroad Retirement Act's anti-assignability clause with regard to a legal obligation to make alimony payments).
We need not decide whether future Social Security benefits can be awarded because we reject Michael's characterization of the maintenance order. The trial court's order does not purport to make a direct award to Judith of Michael's Social Security benefits. It merely calculates the amount of maintenance with reference to his future Social Security entitlement.
V
Finally, Michael argues that substantial evidence does not support the trial court's award to Judith of a portion of her attorney fees, inasmuch as she was awarded nearly $400,000 in assets as a result of the dissolution. On a related matter, both parties argue that they are entitled to costs on appeal and Judith argues that she should recover an award of sanctions under RAP 18.9 and RCW 4.84.185 because Michael's appeal was advanced without reasonable cause.
RCW 26.09.140 permits the trial court to award reasonable attorney fees in a dissolution action "after considering the financial resources of both parties." An award of fees under RCW 26.09.140 is reviewed for an abuse of discretion. Spreen, 107 Wn. App. at 351.
When considering an award of attorney fees under the statute, the trial court generally must balance the needs of the party requesting the fees against the ability of the opposing party to pay. Bay v. Jensen, 147 Wn. App. 641, 660, 196 P.3d 753 (2008). If the trial court grants attorney fees under RCW 26.09.140, it must state on the record the method used to calculate the award. In re Marriage of Obaidi, 154 Wn. App. 609, 617, 226 P.3d 787 (citing In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994), review denied, 126 Wn.2d 1011 (1995)), review denied, 169 Wn.2d 1024 (2010). In calculating a fee award 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. In re Marriage of Van Camp, 82 Wn. App. 339, 342, 918 P.2d 509, review denied, 130 Wn.2d 1019 (1996).
Here, the trial court awarded Judith $6,000, an amount less than the total fees she had incurred. Its only finding relevant to this award was that "[t]he wife has the need for the payment of fees and costs and the other spouse has the ability to pay these fees and costs." CP at 19 (Finding of Fact 2.15). Nothing in the record indicates how the $6,000 figure was arrived at, either by applying the three factors to determine a reasonable fee or in allocating the expense based on the parties' relative need and ability to pay. We therefore vacate the $6,000 award. Whether to award trial fees, and in what amount, will abide a more-fully explained decision on remand.
RCW 26.09.140 provides that "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." When determining whether an award of fees is appropriate in a dissolution case, we consider the parties' "relative ability to pay" and the "arguable merit of the issues raised on appeal." In re Marriage of Leslie, 90 Wn. App. 796, 807, 954 P.2d 330 (1998), review denied, 137 Wn.2d 1003 (1999). Both parties here have sufficient assets to pay their own attorney fees and costs on appeal. Michael's issues raised on appeal were not meritless.
We vacate the award of attorney fees, otherwise affirm, and remand for proceedings consistent with this opinion.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
KULIK, C.J. and KORSMO, J., concur.