Jeanne Harris, Appellant/cross-respondent v. Roger Kell, Respondent/cross-appellant ( 2014 )

I IL_EC
COURT OF APPEALq
D1V1S10'i4, TI
201 L; MAR 1 1 AN S: 40
S` E IFF
M 1-i3N ON
Y
ON 1'' Y
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
In re the Marriage of: No. 43788 -1 - II
JEANNE MARIE HARRIS,
Appellant,
MA
ROGER DUANE KELL, UNPUBLISHED OPINION
LEE, J. — Jeanne Marie Harris and Roger Duane Kell were married for approximately
five years. After they separated, they engaged in four years of litigation over the distribution of
approximately $200, 000 of property. The trial court primarily awarded the parties their separate
property and entered a judgment distributing less than $ 50, 000 in additional assets between the
parties. Harris appeals. We affirm the trial court. In addition, due to the intransigent nature of
Harris' s appeal, we grant Kell' s request for attorney fees.
FACTS
Harris and Kell married on May 3, 2003. Kell was an electrician working out of the
union hall. He also owned several rental properties. Harris was a Vancouver city councilwoman
and she owned a consulting business. After the parties married, they lived together in Harris' s
home.
No. 43788 -1 - II
During the marriage, Kell worked as an electrician for several companies including Kraft
and Boeing. Harris ran for county commissioner, but lost. Later she opened an Allstate
Insurance agency. Although both parties contributed to household expenses ( Harris paid the
mortgage and Kell paid for utilities), they primarily kept their finances separate. During this
period, Harris was incurring large amounts of credit card debt.
Harris and Kell separated on May 31, 2008. The dissolution trial was continued several
times due to a variety of reasons, including court congestion and Kell' s medical issues. The trial
court also continued the trial for a period of time after Kell was diagnosed with cancer.
Ultimately, the dissolution did not go to trial until April 2012, four years after Harris and Kell
separated.
Immediately after filing her petition for dissolution, Harris filed a motion for temporary
spousal maintenance of $3, 000 a month. The trial court ordered Kell to pay Harris $ 1, 500 per
month. Over the course of the dissolution, maintenance was modified several times and reduced
from $ 1, 500 to $ 1, 000, from $ 1, 000 to $ 775, from $ 775 to $ 500, and from $ 500 to $ 250.
Although the amounts varied, Kell paid Harris maintenance for 39 months, until April of 2012.
Over the 39 months that Harris received maintenance, she ran her own insurance agency until
she was forced to close the business. After Harris closed the business, she continued her position
as a Vancouver city councilwoman, but decided to return to school and pursue another graduate
degree rather than find additional employment or take additional jobs through her consulting
business.
2
No. 43788 -1 - II
While the dissolution was pending, Harris declared bankruptcy. In the bankruptcy,
Harris discharged the majority of her credit card debt ( approximately $ 260, 000), but still had
three mortgages on her home and a car loan. Kell entered the marriage with a small amount of
manageable debt. However, after the parties separated, he began incurring debt due to attorney
fees and maintenance payments.
During the marriage, Harris operated the Allstate Insurance agency. When she began
operating the agency, Harris routinely comingled her business and personal finances by making
business purchases from her personal account and using business funds to pay for personal
expenses. In March 2009, Harris decided to execute two promissory notes in order to align her
business and personal finances. She executed one promissory note from the business to herself
for approximately $41, 000 to be paid in installments of $1, 000 a month. She executed ,a second
promissory note from herself to the business for approximately $ 42, 000 to be paid in
installments of $50 a month. The promissory note from herself to the business was discharged in
her bankruptcy. However, Harris transferred approximately $ 23, 000 from the business to her
personal account as payment on the first promissory note.
Allstate redeemed Harris' s insurance agency in the fall of 2011, and executed a payout
agreement which provided Harris with $ 5, 562 a month for 12 months as compensation for the
economic interest she had in her insurance policies. After Allstate redeemed Harris' s insurance
agency, the trial court ordered Harris to produce discovery regarding the basis for payments and
how Allstate calculated the amount of the payments. The trial court also ordered Harris to
C
No. 43788 -1 - II
transfer the Allstate payments to Kell' s attorney to be held in Kell' s attorney' s trust account
pending the outcome of the dissolution and property distribution. Harris failed to comply with
the court' s order to produce discovery. Ultimately, the trial court found Harris in contempt and
ordered Harris to provide the discovery by February 24, 2012. Harris also failed to comply with
the trial court' s contempt order.
Harris' s attorney withdrew. After her attorney withdrew, Harris began representing
herself pro se and began filing numerous motions with the trial court. The trial court found that
most, if not all, of Harris' s motions were not grounded in law and, on at least two occasions,
ordered Harris to pay Kell' s attorney fees for responding to her motions.
A month prior to the scheduled trial date, Harris filed a motion with the court asking to
use $ 2, 500 of the Allstate payments held in Kell' s attorney' s trust account to hire an attorney to
represent her at trial. Harris stated that she had already made arrangements with an attorney to
represent her at trial. The trial court granted Harris' s motion and ordered Kell' s attorney to pay
2, 500 to Harris' s new attorney. The trial court also allowed Kell' s attorney to withdraw an
additional $2, 500 to be paid toward Kell' s attorney fees.
A few days before the scheduled April trial date, Harris' s new attorney filed a motion to
continue the trial, alleging that he would need an extra four weeks to arrange for additional
discovery and subpoenas and prepare for trial. The trial court denied the motion based on
Harris' s prior representation to the court when she requested monies for attorney fees that if the
trial court gave her funds for an attorney, she would be ready for the scheduled trial date.
0
No. 43788 -1 - II
On the day of trial, Harris' s new attorney moved to present Harris' s 1099g income tax
statement as evidence of the character of the Allstate payments as severance pay. Kell' s attorney
moved to exclude the evidence because she had not seen the document, and Harris had not
complied with the trial court' s earlier contempt order requiring her to provide any evidence
regarding the Allstate payments by February 24, 2012. The trial court granted Kell' s motion to
exclude because of Harris' s failure to comply with its contempt order.
The trial court held a two -
day dissolution trial in which no other witnesses besides Harris
and Kell testified. On April 27, 2012, the trial court issued a written memorandum decision to
the parties.' On July 6, 2012, the trial court entered its formal written findings of fact,
conclusions of law, and decree of dissolution. The trial court granted both parties the separate
property that they brought into the marriage. It granted Kell an award for work he did on
Harris' s home while he lived there, but granted Harris an almost equivalent award for rent due to
the disparity between the mortgage payments which she paid and the utilities which Kell paid.
The community debt that the couple incurred had been discharged against Harris in her
bankruptcy, but the creditor was pursuing collection efforts against Kell. Besides Harris' s
insurance agency ( which the trial court found was community property), the other community
property was essentially divided equally.
As to Harris' s insurance agency, the trial court made the following findings:
B. Business asset and debts known as, Harris Allstate Insurance Company,
including Allstate business and personal property. Said business has been
redeemed by Allstate.
The day after the trial, the court issued a memorandum decision but apparently failed to include
some items of property. The trial court issued an amended memorandum decision including the
excluded property the next day.
5
No. 43788 -1 - II
1. Personal property ( desk, chairs, filing cabinet, fax machine, etc.) was
acquired during the is therefore community property. The 2011
marriage and
business tax return indicates the value of the property is $ 6, 786, which is adopted
This property is to the petitioner, [ Harris].
by the court. personal awarded
2. [ testified that she failed to keep separate the finances of
Harris]
personal and business
affairs. To properly align personal and business expenses,
Harris] executed two (2) promissory notes on 03/ 29/ 2009.
a. [ Harris' s] bank records from April 2009 to May 2010 show that
Harris Allstate Insurance Company transferred at least $ 23, 000 to [ Harris' s]
personal account. Respondent is entitled to 50% of this value.
b. Additionally, roughly $ 42, 000 of community property was
discharged in bankruptcy. Respondent is entitled to $ 15, 000 of the community
asset that was dissipated.
3. No evidence was produced detailing the specific figures used to reach
the monthly Allstate Termination Payout, other than an example formula. The
first payment of $ 5, 562.31 was issued on November 2011, and successive
monthly payments have been issued in the It is unclear how long
same amount.
these monthly payments will continue; although it is' anticipated they will end
after the twelfth payment is received for a total payout of $66, 747. 72. Due to
prior court orders allowing distribution of funds to the parties, $ 9, 797 remains in
Kell' s attorney' s] trust account through 03/ 31/ 2012. Of this amount, [ Kell] is
awarded $ 5, 388 and [ Harris] is awarded $ 4, 408. The remaining payouts ( April -
October 2012) are to be divided 60/ 40 in favor of [ Harris]. The court retains
jurisdiction over any payments received subsequent to October 2012, which shall
be deposited into the Cowlitz County Superior Court Clerk' s office, pending any
further hearing.
Clerk' s Papers ( CP) at 1482 -83.
The trial court awarded one of the couple' s dogs, Lily the Chihuahua, purchased during
the marriage, to Kell. The trial court also awarded each party items of their personal property
that were currently in the possession of the other party.
The trial court entered a decree of dissolution. The decree contained a total judgment of
approximately $ 50, 000. However, the trial court ordered Harris' s share of the Allstate payments
held in Kell' s attorney' s trust account be applied toward Kell' s judgment and the total judgment
3
No. 43788 -1 - II
was reduced to approximately $ 35, 000. The trial court also included a payment plan which
required Harris to pay $ 500 dollars per month to satisfy the judgment. At the hearing for the
presentation of the orders, Harris attempted to object to the trial court' s findings of fact line by
line. The trial court asked her to simply provide a list of the specific findings to which she
objected; however, Harris continued to argue about the facts of the case. The trial court
eventually stopped her and told her that if she had additional objections, she could submit them
to the court in writing. Harris appeals.
ANALYSIS
Harris raises 11 assignments of error which can be summarized into the following five
issues: the trial court' s property distribution, the trial court' s denial of Harris' s motion to
continue, the trial court' s characterization of the Allstate payments, the validity of the trial
court' s final decree of dissolution, and the trial court' s decision on attorney fees.
Although Harris raises numerous issues, this is fundamentally a property distribution
case. In a dissolution, the trial court is required to order a just and equitable distribution of
property and liabilities, whether community or separate. RCW 26. 09. 080. When determining
what is just and equitable, the trial court must consider ( 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 property
distribution is to become effective. RCW 26. 09. 080( 1) -( 4). The statute requires that the trial
court consider all the relevant factors. RCW 26. 09. 080.
7
No. 43788 -1 - II
The trial court has broad discretion to determine what is just and equitable. In re
Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572 ( 2007). A just and equitable
distribution requires fairness over mathematical precision. In re Marriage of Crosetto, 82 Wn.
App. 545, 556, 918 P.2d 954 ( 1996). " Fairness is attained by considering all circumstances of
the marriage and by exercising discretion, not by utilizing inflexible rules." In re Marriage of
Tower, 55 Wn. App. 697, 700, 780 P.2d 863 ( 1989), review denied, 114 Wash. 2d 1002 ( 1990). A
just and equitable distribution does not necessarily mean an equal distribution. In re Marriage of
DewBerry, 115 Wn. App. 351, 366, 62 P.3d 525, review denied, 150 Wash. 2d 1006 ( 2003).
Under appropriate circumstances [ the trial court] ... . need not award separate property to its
owner." In re Marriage of White, 105 Wash. App. 545, 549, 20 P.3d 481 ( 2001).
A trial court' s decision in a dissolution will rarely be changed on appeal. In re Marriage
of Buchanan, 150 Wn. App. 730, 735, 207 P.3d 478 ( 2009) ( quoting In re Marriage of Williams,
84 Wn. App. 263, 267, 927 P.2d 679 ( 1996), review denied, 131 Wash. 2d 1025 ( 1997)).
Appellate courts should not encourage appeals by tinkering with [ dissolution decisions]"
because the interests of the parties are best served by the finality of the trial court' s decision. In
re Marriage of Landry, 103 Wash. 2d 807, 809, 699 P.2d 214 ( 1985). Accordingly, a trial court' s
property distribution in a dissolution will, be reversed " only if there is a manifest abuse of
discretion." In re Marriage of Muhammad, 153 Wash. 2d 795, 803, 108 P.3d 779 ( 2005). A
spouse challenging a trial court' s decision in a dissolution bears " the heavy burden of showing a
manifest abuse of discretion on the part of the trial court." Landry, 103 Wash. 2d at 809 ( citing In
re Marriage of Konzen, 103 Wash. 2d 470, 478, 693 P.2d 97, review denied, 473 U.S. 906 ( 1985).
No. 43788 -1 - II
The trial court' s decision will be affirmed unless no reasonable judge would have reached the
same conclusion." Landry, 103 Wash. 2d at 809 -10.
A. HARRIS' S MOTION TO CONTINUE
Harris argues that the trial court committed reversible error by denying her motion to
continue the trial. She asserts that the trial court' s decision must be reversed because the trial
court failed to produce a complete record of the decision by ( 1) holding the hearing on the
motion to continue off the record and ( 2) entering the order denying the motion to continue 13
weeks after the trial court denied the motion. She also argues that the trial court abused its
discretion by denying the motion to continue on the merits because the trial court refused to
allow her attorney additional time to prepare for trial. Harris' s claims fail.
Harris' s argument that the trial court' s failure to produce a complete record of the hearing
requires reversal is a meritless assertion. Harris did not objector ask the trial court to make a
record until well after the hearing. An insufficient record on appeal precludes review of an
alleged error; it does not require reversal. Bulzomi v. Dep' t ofLabor & Indus., 72 Wash. App. 522,
525, 864 P.2d 996 ( 1994). Harris cites to no authority that provides otherwise. She also fails to
cite to any authority supporting her assertion that the trial court' s delay in entering the order
constitutes reversible error. We do not consider issues that are unsupported by citation to
argument or authority. RAP 10. 3( a)( 6); Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d
801, 809, 828 P.2d 549 ( 1992). In addition, where a party cites to no authority supporting her
assertion, we assume she has none. DeHeer v. Seattle Post -
Intelligencer, 60 Wash. 2d 122, 126,
372 P.2d 193 ( 1962) ( " Where no authorities are cited in support of a proposition, the court is not
9
No. 43788 -1 - II
required to search out authorities, but may assume that counsel, after diligent search, has found
none. ").
Harris' s remaining contention that the trial court abused its discretion by denying her
motion to continue on the merits fails because Harris is unable to demonstrate prejudice. The
denial of a continuance is reversible error upon a showing of both an abuse of discretion and
resulting prejudice. State v. Herzog, 69 Wash. App. 521, 524, 849 P.2d 1235, review denied, 122
Wash. 2d 1021 ( 1993). Harris primarily argues that had the trial court granted the continuance, her
counsel would have been able to remedy the discovery violation regarding the tax documents
related to the Allstate termination payment plan ( TPP) payout, and, as a result, she would have
been granted the Allstate TPP payout as her separate property. But as explained below, the
evidence was excluded because Harris failed to comply with the trial court' s contempt order. A
motion to continue would not have cured Harris' s violation of the trial court' s contempt order;
therefore, it is unlikely the evidence would have been admitted even had a continuance been
granted. Further, as discussed below, the trial court made a just and equitable distribution of the
Allstate payment. Harris was not prejudiced by the trial court' s denial of her motion to continue.
Therefore, Harris' s claim that the trial court committed reversible error by denying her motion to
continue lacks merit.
B. PROPERTY DISTRIBUTION
Throughout her brief, Harris raises issues related to the actual value and distribution of
the property. She argues that ( 1) the trial court improperly assigned value to various pieces of
property, ( 2) the trial court' s property distribution was disproportionate, and ( 3) the trial court
erred by awarding Lily the Chihuahua to Kell. She also argues extensively about the distribution
10
No. 43788 -1 - II
of the Allstate payments, which is discussed below. The trial court did not abuse its discretion,
and we affirm the trial court' s property distribution.
As an initial matter, Harris' s arguments regarding the value of any particular piece of
property are not properly raised- on appeal. These issues are essentially challenges to the trial
court' s findings of fact, and Harris has failed to assign error to any of the trial court' s findings of
fact. RAP 10. 3( g) ( " A separate assignment of error for each finding of fact a party contends was
improperly made must be included with reference to the finding by number. "); In fact, Harris
fails to even mention these issues in her assignments of error or issues pertaining to assignments
of error. Unchallenged findings of fact are verities on appeal. Therefore, we accept the trial
court' s findings regarding the value of property. With regard to her argument that the trial
court' s award was disproportionate, Harris states, "[ T] he court reviewed the documents provided
by [ Kell' s] counsel and distributed property in a prejudicial manner against [ Harris]." Br. of
Appellant at 24 -25. Although she cites authority for the proposition that a disproportionate
award is grounds for reversal, she fails to present any argument actually establishing that the trial
court' s award was, in fact, disproportionate. Accordingly, we will not take it upon ourselves to
dissect what the trial court determined was a just and equitable distribution of property. Landry,
103 Wash. 2d at 809.
Harris next argues that the trial court abused its discretion by awarding Lily the
Chihuahua to Kell. Harris states that she paid for and registered the dog. However, she also
states,
There was no justification to taking [ Harris' s] dog, whom she had loved and cared
for solely, especially in the four years since separation and summarily handing it
over to the [ Kell] who had obtained his own dog, post separation.
11
No. 43788 -1 - II
Br. of Appellant at 27 -28.
Kell testified that Lily was originally his birthday present and during the marriage, he and Lily
went everywhere together. The trial court found Kell' s testimony more credible than Harris' s
testimony. Furthermore, Harris testified that she had trouble paying her vet bills and had
attempted to sell some of the dogs because she did not have enough time or money to properly
care for them. Given the testimony, it was not unreasonable for the trial court to conclude that
Kell had an equal emotional attachment to Lily, as well as a superior ability to care for her.
Therefore, the trial court did not abuse its discretion by awarding Lily to Kell.
C. ALLSTATE PAYMENTS
Several of Harris' s assignments of error relate to the Allstate payments. Essentially, she
argues that the trial court abused its discretion by excluding additional evidence related to the
Allstate payments. Harris also argues that the trial court mischaracterized the Allstate payments
as community property. Here, the trial court did not abuse its discretion by excluding Harris' s
additional evidence. Further, the trial court did not commit reversible error by characterizing the
Allstate payments as community property.
A trial court' s decision.to admit or exclude evidence is reviewed for abuse of discretion.
Thomas v. Wilfac, Inc., 65 Wash. App. 255, 262, 828 P.2d 597, review denied, 119 Wash. 2d 1020
1992). Harris argues that the trial court erred by excluding the additional evidence related to the
nature of the Allstate TPP payout because Kell had the evidence in March 2012, contrary to the
assertion that he had not received it. However, Harris' s argument ignores the trial court' s
contempt order. In the trial court' s contempt order, Harris was required to provide all evidence
related to the Allstate payments by February 24. Harris failed to comply with the trial court' s
12
No. 43788 -1 - II
order. Because the trial court excluded the evidence based on Harris' s failure to comply with its
earlier order, it did not abuse its discretion by excluding Harris' s additional evidence.
Harris also argues. that the trial court abused its discretion by failing to consider lesser
remedies. However, Harris failed to properly preserve this issue for review at the trial court.
When the trial court decided to exclude her evidence, she did not request an alternative sanction,
nor did she ask the trial court to make specific findings. Because she failed to raise her
arguments before the trial court, or give the trial court an opportunity to correct the alleged error,
her claim is not preserved for appeal. See In re Marriage ofStudebaker, 36 Wash. App. 815, 818,
677 P.2d 7789 ( 1984) ( declining to address an issue because the appellant failed to present the
claim in a substantive fashion at the trial court); Smith v. Shannon, 100 Wash. 2d 26, 37, 666 P.2d
351 ( 1983) ( the reasons issues may not be raised for the first time on appeal is to afford the trial
court an opportunity to correct errors, thereby avoiding unnecessary appeals).
Although Harris purports to argue that the trial court mischaracterized the Allstate
payments as community property, her arguments rest on the evidence that was properly excluded
by the trial court. However, even if this court assumes that the Allstate payment was Harris' s
separate property, the error is not reversible. Failure to properly characterize property may be
reversible error, but mischaracterization of property is not grounds for setting aside a trial court' s
property distribution if the division of the property is fair and equitable. In re Marriage of
Gillespie, 89 Wn. App. 390, 399, 948 P.2d 1338 ( 1997) ( citing In re Marriage of Shannon, 55
Wn. App. 137, 140, 777 P. 2d- 8 ( 1989)). Reversal is necessary only when the characterization of
the property is crucial to the distribution. In re Marriage of Langham and Kolde, 153 Wash. 2d
553, 563 n.7, 106 P.3d 212 ( 2005) ( citing Shannon, 55 Wash. App. at 142).
13
No. 43788 -1 - II
Harris inaccurately asserts that the trial court awarded the entirety of the Allstate TPP
payout to Kell. In fact, the trial court awarded 40 percent of the Allstate TPP payout to Kell and
the remaining 60 percent to Harris. After the property division, Kell received a judgment of
approximately $ 50, 000. The trial court then applied Harris' s portion of the Allstate TPP payout
toward satisfying the judgment. Accordingly, we determine whether the trial court abused its
2
discretion by awarding Kell 40 percent of the Allstate TPP payout.
Here, the Allstate agency was opened during the marriage, and the business itself would
be considered community property. In re the Marriage of Short, 125 Wash. 2d 865, 870, 890 P.2d
12 ( 1995). By the time of the dissolution, the business had failed leaving only the business' s
personal property ( desks, chairs, computers, etc.) and the Allstate payments. Further, Harris
discharged the promissory note she owed to the business in her bankruptcy; thus, divesting the
community business of approximately $ 42, 000. After the parties separated, Harris continued to
draw money from the business for her personal use while receiving maintenance payments from
Kell. Ultimately, the trial court awarded Harris all the business' s personal property ( almost
10, 000), and 60 percent of the Allstate TPP payout. In addition to the 40 percent of the Allstate
TPP payout, Kell was awarded credit for $ 15, 000 of the $ 42, 000 Harris discharged in bankruptcy
and. half of the $ 23, 000 Harris removed from the business for her personal use. The trial court
did not abuse its discretion by awarding Kell 40 percent of the Allstate TPP payout in its
distribution of property.
2 To the extent that Harris' s issue can be defined as challenging the trial court' s decision
applying the portion of the Allstate payments awarded to Harris toward Kell' s judgment, she
fails to present any argument or authority supporting the contention that the trial court lacks the
authority to make provisions for enforcing or satisfying a judgment.
14
No. 43788 -1 - II
D. THE TRIAL COURT' S DECREE OF DISSOLUTION
Harris challenges the validity of the decree of dissolution itself based on her assertion that
certain facts in the decree are inconsistent with the trial court' s: original written memorandum
decision. Harris does not assign error to the findings of fact, nor does she argue that the facts are
not supported by substantial evidence. Because a trial court' s written memorandum of its
decision is not binding, inconsistencies between the memorandum decision and the final orders
do not invalidate the decree or require reversal.
A trial court' s oral or memorandum opinion is no more than an expression of its
informal opinion at the time it is rendered." State v. Mallory, 69 Wash. 2d 532, 533, 419 P.2d 324
1966). The memorandum opinion has no effect unless it is formally incorporated into the trial
court' s final orders. Mallory, 69 Wash. 2d at 533 -34 ( citing Ferree v. Doric Co., 62 Wash. 2d 561,
383 P.2d 900 ( 1963); Clifford v. State, 20 Wash. 2d 527, 148 P.2d 302 ( 1944)). We consider a trial
court' s oral or memorandum decision only so far as it is consistent with the trial court' s written
findings of fact, conclusions of law, and final judgment. Reynolds Metals Co. v. Elec. Smith
Constr. & Equip. Co., 4 Wn. App. 695, 701, 483 P.2d 880 ( 1971) ( citing Radosevich v. County
Comm' rs of Whatcom County, 3 Wn. App. 602, 476 P.2d 705 ( 1970)). Accordingly, to the
extent that the trial court' s memorandum opinion is inconsistent with its formal written findings
of fact, conclusions of law, and decree of dissolution, it has no effect and is not considered by
this court.
To the extent that Harris argues that the trial court' s findings of fact, conclusions of law,
and decree of dissolution are invalid because the trial court refused to allow Harris to object to
each specific line item with which she disagreed by rearguing the facts of the case, her argument
15
No. 43788 -1 - II
lacks merit. First, the trial court gave Harris the opportunity to object in writing, which she did
by filing a motion to reconsider on July 13, 2012. Moreover, the trial court' s actions did not
preclude Harris from appealing the order, nor did it prejudice her on review. An appellant may
challenge any finding of fact in the trial court' s final order by properly assigning error to the
finding on appeal. See RAP 10. 3( a)( 4). We review all challenged findings of fact to determine
whether they are supported by substantial evidence in the record. In re Marriage of Rockwell,
141 Wn. App. 235, 242, 170 P.3d 572 ( 2007). Our review of the trial court' s findings is
precluded only when the appellant either ( 1) fails to challenge. the findings of fact or ( 2) fails to
perfect the record. See In re Marriage of Akon, 160 Wash. App. 48, 57, 248 P.3d 94 ( 2011)
unchallenged findings of fact are verities on appeal); Bulzomi, 72 Wn. App. at 525 ( an
insufficient trial record precludes review of the alleged error). Accordingly, the trial court' s
refusal to allow Harris to continue with her line by line factual objections at the hearing for
presentation of the final orders did not prejudice her and does not invalidate the trial court' s final
orders.
Harris also argues that the trial court improperly included a payment plan in the decree of
dissolution. She baldly asserts that "[ t] here is no authority in law for the court to assign a
payment plan." However, she fails to include any supporting argument or authority for this
proposition. Br. of Appellant at 28.
The law is clear that the trial court maintains jurisdiction to enforce an award granted in a
decree of dissolution. In re Marriage of Burrill, 113 Wash. App. 863, 874, 56 P.3d 993 ( 2002),
review denied, 149 Wash. 2d 1007 ( 2003). Thus, we decline to review Harris' s bald assertion that
16
No. 43788 -1 - II
the trial court lacked authority to enter a payment plan enforcing the judgment in the decree of
dissolution.
E. ATTORNEY FEES
3
Harris challenges the trial court' s award of limited attorney fees to Kell . Both parties
request attorney fees on appeal under RAP 18. 1. RCW 26. 09. 140 provides both the trial court
and this- court the authority to grant attorney fees in a dissolution proceeding. RCW 26. 09. 140
states:
The court from time to time after considering the financial resources of both
parties may order a party to pay a reasonable amount for the cost to the other
party of maintaining or defending any proceeding under this chapter and for
reasonable attorneys' fees or other professional fees in connection therewith,
including sums for legal services rendered and costs incurred prior to the
commencement of the proceeding or enforcement or modification proceedings
after entry ofjudgment.
Upon any appeal, the appellate court may, in its discretion, order a party to
pay for the cost to the other party of maintaining the appeal and attorneys' fees in
addition to statutory costs.
When considering the financial resources of both parties, the court balances the financial need of
the requesting party against the other parry' s ability to pay. In re Marriage of Pennamen, 135
Wash. App. 790, 807 -08, 146 P.3d 466 ( 2006).
However, " [ a] s an independent ground we may award attorney fees and costs based on
intransigence of a party, demonstrated by litigious behavior, bringing excessive motions, or
discovery abuses." In re Marriage of Wallace, 111 Wash. App. 697, 710, 45 P.3d 1131 ( 2002),
review denied, 148 Wash. 2d 1011 ( 2003). When the award of attorney fees is based on
3
In addition to the award of attorney fees included in the decree of dissolution, the trial court
intermittently granted Kell attorney fees for responding to Harris' s continual, and often meritless,
motions. Harris does not appeal these orders.
17
No. 43788 -1 - II
intransigence, the court does not consider the parties' financial resources. Wallace, 111 Wn.
App. at 710.
We review the trial court' s decision granting attorney fees for abuse of discretion. In re
Marriage ofSpreen, 107 Wn. App. 341, 351, 28 P.3d 769 ( 2001). The trial court made the
following finding regarding Harris' s behavior in this case:
In this case, the petitioner, [ Harris], doggedly abused the discovery process and
has been found in contempt for that abuse which dramatically increased fees.
Additionally, petitioner filed motions that were not well grounded in fact nor law
that unnecessarily increased costs to Respondent, [ Kell].
CP at 1495. Although Kell had spent approximately $50, 000 in attorney fees over the course of
the dissolution, the trial court awarded him $ 6, 500 in attorney fees to be paid by Harris. The
disparity between the actual cost of Kell' s attorney fees and the trial court' s award demonstrates
that the trial court considered the award based on the amount Harris' s intransigent behavior
unnecessarily increased Kell' s attorney fees. The trial court did not abuse its discretion in its
award of attorney fees to Kell, and therefore, we affirm the trial court' s award of attorney fees.
Regarding the request for attorney fees on appeal, Harris urges us to consider the parties'
financial position and the merit of the issues raised on appeal. Kell alleges this appeal is a
continuation of Harris' s intransigent behavior and this court should award attorney fees to him
regardless of the parties' relative financial situation.
Harris has failed to raise any issue with arguable merit. Many of her arguments are
unsupported by authority or have no basis in law. Harris has continued her pattern of
intransigent behavior through this appeal. Therefore, we grant Kell' s request for attorney fees in
a reasonable amount to be determined by a commissioner of this court.
18
No. 43788 -1 - II
We affirm
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 in accordance with RCW
2. 06. 040, it is so ordered.
i
Lee, J.
I &/
1, j, .
Maxa, P. J.
19