iv.'J l-i:
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Marriage of: JANETTE R. PEACOCK, Respondent, and WILLIAM R. PEACOCK, Appellant. No. 71953-0-1 (consolidated with No. 73150-5-1) DIVISION ONE

UNPUBLISHED FILED: March 28, 2016
Cox, J. — William Peacock appeals the decree of dissolution and the order denying his CR 60(b) motion to vacate that decree. Because the trial court did not abuse its discretion in either decision, we affirm. 

### Janette Wells1 and William Peacock married in 1994. Wells petitioned for dissolution ofmarriage in 2012. Peacock requested appointed counsel "pursuant to GR 33 due to cognitive and mental [health] impairments." The trial court granted this request, appointing Elise Buie to represent him. 

### InJanuary 2014, Buie e-mailed the trialjudge's bailiff for guidance, stating there were no remaining funds, which were disbursed on the basis ofher 

### appointment, to take Wells's deposition. Furthere-mail communications between counsel and the bailiffensued.

We adopt the parties' naming conventions.No. 71953-0-1 (consolidated with No. 73150-5-l)/2 The next day, the bailiffe-mailed both counsel to schedule a pre-trial conference. Atthe conference, the trialjudge discussed with counsel how the
case should proceed due to the case's "unusual trajectory" and approaching March 2014 trial date. Thejudge stated that she was authorized to grant Buie a limited amount of additional attorney fees and that counsel needed "to move as efficiently as possible." Thejudge was also concerned about the scheduled mediation. She stated that itmay be "mostefficient" for herto hear and decide the case, and that 

### the parties were "free to negotiate on their own." Thejudge ultimately waived the mediation. She also prohibited depositions without her prior approval, stating she did not "see a reason for a deposition [ofWells] inthis case" and that "a lot ofmoney and time and energy has already been spent." At Peacock's request, thejudge granted his motion for new counsel, who
was substituted for Buie. Thejudge also extended the discovery deadline. The trialjudge heard the case on March 17 to 19. Thejudge entered 

### findings, conclusions, and a decree ofdissolution on April 18, 2014. Peacock appealed. He later moved under CR 60(b)(11) to vacate the dissolution decree. A differentjudge heard this motion. The motionjudge denied Peacock's request for relief and awarded Wells attorney fees for responding to the motion. Peacock also appealed this order. We consolidated both appeals for decision.No. 71953-0-1 (consolidated with No. 73150-5-l)/3 

### Peacock's dissatisfaction withthe trialjudge's distribution ofproperty is at the core ofthese appeals. Accordingly, we first address his challenges to the findings, conclusions, and decree of dissolution. DISTRIBUTION OF ASSETS Peacock argues thatthe overall distribution of assets is inequitable because itdoes not leave the parties in similar positions. We hold thatthe trial judge properly exercised her discretion indistributing the parties' assets. In dissolution proceedings, the trial court "has broad discretion to make a just and equitable distribution ofproperty based on the factors enumerated in 

### RCW 26.09.080."2 We deferto trialcourts "because '[t]he emotional and 

### financial interests affected bysuch decisions are best served byfinality
. . . .'"3 Additionally, the "'policy interestfavoring finality in property settlements' militates against setting aside dissolution decrees, except in . . . 'extraordinary 

### circumstance[s]."'4 Under RCW 26.09.080, courts must equitably distribute the parties' 

### property and liabilities after considering all "relevantfactors." The factors listed in the statute "are not exclusive."5

2Inre Marriage of Wright. 179 Wn. App. 257, 261, 319 P.3d 45 (2013). 3In re Parentage ofJannot. 149 Wn.2d 123, 127, 65 P.3d 664 (2003) (internal quotation marks omitted) (quoting Inre Parentage ofJannot, 110Wn. App. 16, 21, 37 P.3d 1265(2002)). 4Wagers v. Goodwin. 92 Wn. App. 876, 882, 964 P.2d 1214 (1998) (quoting In re Marriage ofJennings. 91 Wn. App. 543, 548, 958 P.2d 358 (1998)). 5Inre Marriage ofLarson. 178 Wn. App. 133, 138, 313 P.3d 1228 (2013).No. 71953-0-1 (consolidated with No. 73150-5-l)/4 Each spouses' economic circumstances upon dissolution is "of'paramount 

### concern.'"6 The court "is not required to place the parties inprecisely equal financial positions
. . . ."7 "Ajust and equitable division 'does not require mathematical precision, but ratherfairness, based upon a consideration of all the circumstances ofthe marriage, both past and present, and an evaluation ofthe 

### future needs of [the] parties.'"8 

### We review forabuse of discretion the trialcourt's disposition of property.9 The trial court abuses its discretion when its "decision is 'manifestly 

### unreasonable, orexercised on untenable grounds, or foruntenable reasons.'"10 A trial court's "decision is based 'on untenable grounds' or made 'for untenable reasons' if itrests on facts unsupported inthe record or was reached by applying 

### the wrong legal standard."11 We do not decide witness credibility or reweigh the evidence on appeal.12

6Urbana v. Urbana. 147 Wn. App. 1, 11, 195 P.3d 959 (2008) (quoting ln_re Marriage of Olivares. 69 Wn. App. 324, 330, 848 P.2d 1281 (1993)). 7Wright. 179 Wn. App. at 262. 8Larson, 178 Wn. App. at 138 (quoting Inre Marriage ofCrosetto, 82 Wn. App. 545, 556, 918 P.2d 954 (1996)). 9Wright. 179 Wn. App. at 261. 10 State v. Gentry. 183 Wn.2d 749, 761, 356 P.3d 714 (2015) (internal quotation marks omitted) (quoting Wilson v. Horslev. 137 Wn.2d 500, 505, 974 P.2d 316 (1999)). 11 Hundtofte v. Encarnacion. 181 Wn.2d 1, 6-7, 330 P.3d 168 (2014) (internal quotation marks omitted) (quoting State v. Rohrich. 149 Wn.2d 647, 654, 71 P.3d 638 (2003)).12 In re Welfare ofA.W.. 182 Wn.2d 689, 711, 344 P.3d 1186 (2015).No. 71953-0-1 (consolidated with No. 73150-5-l)/5 

### Here, the trialjudge awarded Wells the former marital home togetherwith certain retirement accounts and other personal property. Thejudge also awarded Peacock other retirement accounts and other personal property. In 

### making these allocations, the trialjudge stated in herfindings that she considered the parties' ages, health, and currentfinancial circumstances. We
see nothing in this record that undercuts thejudge's stated approach in distributing assets. Peacock challenges this distribution on two bases: first, on what he claims is the ratio ofdistributed shares ofproperty to each other; second, on the trial judge's valuation ofthe former marital home. Neither claim has merit. First, he claims the distribution favors Wells by a ratio of42/58. He states that thejudge's "rigid division of separate and community property did not take 

### into accountthe relative health and earning capacities] ofthe parties." This claim is unsupported by the record. Forexample, unchallenged 

### findings 2.21.3 and 2.21.5 detail Peacock's health challenges, his work history, and his expectation to not work again. We also note thatthe trialjudge denied Wells's requestfor attorney fees at trial based on Peacock's alleged 

### intransigence. The court denied fees because Peacock's health issues did not evidence intransigence. 

### It is noteworthy thatthe trialjudge found that Peacock "diminished 

### community assets imprudently," findingthat he "used and/or lost" $30,000 of 

### communityfunds. Becausethisfinding is unchallenged on appeal, it is a verity.13

13 See id.No. 71953-0-1 (consolidated with No. 73150-5-l)/6 

### Assets disposed ofbefore trialcannot be distributed at trial.14 But inIn re Marriage of Griswold, Division Three ofthis court found no abuse ofdiscretion where the trial court characterized the proceeds from the wife's sale of her wedding ring before trial as community property and assigned the value to the 

### wife.15 Division Three of this court found no abuse ofdiscretion by doing so even though the ring, and presumably the proceeds, did not exist at trial. 

### Here, the $30,000 did not exist as trial, and thejudge credited Peacock with these community funds afterfinding that he "demonstrated financial mismanagement" and "used them for his separate benefit or lost them." Thus, the trialjudge's claimed lack ofequitable distribution is based, in part, on his squandering ofcommunity assets. This determination by the trialjudge is not an abuse ofdiscretion. Peacock cites, without meaningful discussion, other cases inwhich a trial 

### court awarded a greater share ofcommunity property eitherto an older, sicker 

### spouse or a spouse withlesserearning capacity.16 Ofcourse, the fact thatother courts, based on the facts and circumstances ofother cases, chose to divide assets inways otherthan the trialjudge did inthis case falls far short ofshowing 

### thatthis trialjudge abused herconsiderable discretion indistributing assets. Peacock also argues that he received no "offset" for contributing to the children's Uniform Gift to Minors Act accounts. But he cites no authority 14 Inre Marriage of Kaseburg, 126Wn. App. 546, 556, 108 P.3d 1278 (2005). 15 112Wn. App. 333, 349, 48 P.3d 1018 (2002). 16 Inre Marriage of Rockwell, 141 Wn. App. 235, 243, 170 P.3d 572 (2007); Crosetto, 82 Wn. App. at 557.No. 71953-0-1 (consolidated with No. 73150-5-l)/7 

### indicating that an offset is required. Accordingly, we need not considerthis 

### argument.17 Peacock also argues that the trialjudge failed to take into account his "exceptionally hard work overthe years, which greatly benefited the community." 

### He cites In re Marriage ofWilliams18 as support, asserting thatthe trial court in that case offset the wife's waste of marital assets with her income contribution to the community. That case is distinguishable because the husband did notwantthe wife's 

### gambling debts included in their total liabilities.19 The trial court balanced the wife's "extra income against her excessive spending" and included her gambling related debts inthe total liabilities.20 That is not the case here. So, the case does not support Peacock's argument. Peacock also argues thatWells is younger, ingood health, and should be able to obtain full-time employment. Conversely, he argues that he is in significant debt and will"most likely" be unable to work again. 

### He cites In re Marriage ofTower21 to support his argument. Inthatcase, this courtdetermined that "a disproportionate community property award infavor ofthe
.. . spouse with any significantearning capacity would be an abuse of
17 See Darkenwald v. Emp't Sec. Dep't. 183 Wn.2d 237, 248, 350 P.3d 647 (2015); RAP 10.3(a)(6). 18 84 Wn. App. 263, 927 P.2d 679 (1996). 19Id at 270. 20 id at 271. 21 55 Wn. App. 697, 780 P.2d 863 (1989).No. 71953-0-1 (consolidated with No. 73150-5-l)/8 discretion were itnot balanced by long-term maintenance [to the other 

### spouse]."22 Peacock uses this case to argue thatthe trial court did not award him maintenance to "ameliorate the inequitable property division." But that case is distinguishable because the trial court "endeavored to fairly distribute the parties' limited assets withoutjeopardizing" the wife's eligibility 

### for social security disabilitybenefits.23 Further, in this case, Peacock received "a
secure and greater income and was awarded substantial cash assets, whereas [Wells] received the house, which benefits the children." And she was not working at the time of trial. Thus, the case he cites does not support his argument. The second reason Peacock cites for the allegedly inequitable distribution is the trialjudge's decision to value the former marital home based on the 

### evidence presented byWells. Thejudge's view ofthe evidenceWells offered is
a credibility determination that we do not review. In sum, Peacock has failed to show this is an extraordinary case that 

### compels us to overturn the trialjudge's exercise ofher considerable discretion in dividing the parties' assets. MOTION TO VACATE DECREE 

### Peacock claims the motionjudge abused herdiscretion by denying his CR 60(b) motion to vacate the decree. We hold thatthe motionjudge properly exercised her discretion.
22 id at 701. 23 Id. at 700.

### No. 71953-0-1 (consolidated with No. 73150-5-l)/9 CR 60 governs relief fromjudgments or orders. CR 60(b)(11) provides that "[o]nmotion and upon such terms as arejust, the court may relieve a party . 

### . . from a finaljudgment, order, or proceeding for. . . [a]ny other reasonjustifying relief from . . . thejudgment." This section applies "'to situations involving 

### extraordinary circumstances not covered byany other section of [CR 60(b)].'"24 These extraordinary circumstances must relate to "'irregularities which are extraneous to [court action] or go to the question ofthe regularity of its 

### proceedings.'"25 We review for abuse ofdiscretion a trial court's decision to vacate a 

### judgmentor order under CR 60.26 Appearance ofFairness Peacock argues that the ex parte communication ofPeacock's former counsel, Buie, with the trialjudge's bailiffcreated an appearance ofunfairness. We hold that he has failed in his burden to overcome the presumption that the trialjudge was fair. Accordingly, he fails to show that the motionjudge abused her discretion indenying his motion to vacate the decree.

24 Tamosaitisv. Bechtel Nat'l. Inc.. 182 Wn. App. 241, 254, 327 P.3d 1309 (quoting In re Marriage ofYearout. 41 Wn. App. 897, 902, 707 P.2d 1367 (1985)), review denied. 181 Wn.2d 1029 (2014). 25 Tatham v. Rogers, 170Wn. App. 76, 100, 283 P.3d 583 (2012) (internal quotation marks omitted) (quoting Inre Marriage of Flannagan, 42 Wn. App. 214, 221, 709 P.2d 1247 (1985)). 26 Jones v. City of Seattle. 179 Wn.2d 322, 360, 314 P.3d 380 (2013).

### No. 71953-0-1 (consolidated with No. 73150-5-l)/10 

### CR 60(b)(11) is appropriate to raise "a posttrial challenge based on a 

### violation of the appearance offairness doctrine . . . ."27 This doctrine "applies to judges in court proceedings."28 "Washington's appearance offairness doctrine not only requires ajudge to be impartial, italso requires thatthejudge appearto 

### be impartial."29 Washington courts "presume that judicialhearings andjudges

are fair."30 "Ajudicial proceeding satisfies the appearance offairness doctrine only if
a reasonably prudent and disinterested person would conclude that all parties 

### obtained a fair, impartial, and neutral hearing."31 The test is "objective" and "assumes that 'a reasonable person knows and understands all the relevant 

### facts.'"32 The claimant "'must submit proof ofactual or perceived bias to support 

### an appearance ofimpartiality claim.'"33 "[M]ere speculation is notenough."34

27 Tatham. 170 Wn. App. at 103. 28 Camarata v. Kittitas County. 186 Wn. App. 695, 713, 346 P.3d 822 (2015). 29 Tatham. 170 Wn. App. at 80. 30 In re the Disciplinary Proceeding Against Petersen. 180 Wn.2d 768, 787, 329 P.3d 853 (2014). 31 Tatham. 170 Wn. App. at 96. 32 Gentry, 183 Wn.2d at 762 (internal quotation marks omitted) (quoting Sherman v. State. 128 Wn.2d 164, 206, 905 P.2d 355 (1995)). 33 GMAC v. Everett Chevrolet. Inc.. 179 Wn. App. 126, 154, 317 P.3d 1074 (quoting Magana v. Hyundai Motor Am.. 141 Wn. App. 495, 523, 170 P.3d 1165 (2007), rev'd on othergrounds. 167 Wn.2d 570, 220 P.3d 191 (2009)). review denied. 181 Wn.2d 1008 (2014). 34 In re Estate of Haves. 185 Wn. App. 567, 607, 342 P.3d 1161 (2015).
10No. 71953-0-1 (consolidated with No. 73150-5-IV11 Ex parte communication, alone, is not enough to establishjudicial bias or 

### prejudice.35 Ifex parte contact occurs, the question still remains "whethera reasonable person who knew all relevant facts would conclude that [thejudge] 

### was actually prejudiced or appeared prejudiced."36 State v. Davis37 is instructive. Inthat case, the issue was whetherthe trial 

### judge abused his discretion by failing to recuse himselfafter communicating ex 

### parte withprosecutors.38 Aftergranting the defense's requestforcontinuance, thejudge accelerated the trial date and spoke with prosecutors regarding their 

### preparation ofscheduling orders.39 The defense argued thatthe ex parte contact
was improper and thatthejudge violated the Code ofJudicial Conduct, requiring 

### recusal.40 The State conceded that ex parte contact occurred but argued that it did not require recusal.41 The supreme court stated that a judge's ex parte communication warrants 

### recusal when "thejudge 'may have inadvertently obtained information critical to a 

### central issue . . . ,' leading a reasonable person to question his impartiality."42

35 State v. Davis. 175 Wn.2d 287, 307, 290 P.3d 43 (2012). 36 id 37175 Wn.2d 287, 290 P.3d 43 (2012). 38 id at 305. 39 id at 304. 40 Id at 305. 41 Id 42 id at 307 (quoting Sherman. 128 Wn.2d at 206).
11No. 71953-0-1 (consolidated with No. 73150-5-l)/12 

### "[T]he content ofthe communication is key inevaluating whetherthejudge 

### appears partial.
.. ."43 The supreme court determined that thejudge's communication did not reveal or imply a bias toward either party "or that his future rulings inthe case 

### would be affected."44 The judge believed that his "decision to accelerate trial.
.. was purely ministerial" and he "did not discuss any substantive issue
. .. ."45 The supreme court concluded that thejudge's communication did not show bias toward the parties but rather, "a desire to complete the penalty phase of Davis's 

### trialwithin a reasonable length of time . . . ,"46 "Ifthe desire to finish trialwithin a reasonable amount oftime shows prejudice, trialjudges would be forced to grant every continuance a defendant requested inorderto avoid being considered 

### partial. This is an untenable position."47 In re Marriage of Davison48 is also instructive. Inthat dissolution case, the wife sent a letterto thejudge before trial regarding a delay and expressing


### concern for her safety.49 Thejudge then sent a letter to the parties' attorneys, with the wife's letter attached, stating that she expected the parties to be ready to

43 Id at 308. 44 ]d at 307. 45 id at 307-08. 46 ]d at 308. 47 Id 48 112 Wn. App. 251, 48 P.3d 358 (2002). 49 id at 255-56.
12No. 71953-0-1 (consolidated with No. 73150-5-l)/13 

### proceed.50 The husband argued that thejudge violated the Code of Judicial Conduct by considering the letter, that her impartiality was reasonably 

### questionable, and that she should have disqualified herself.51 Division Three ofthis court disagreed, determining thatthere was no evidence "thatthejudge considered Ms. Davison's letter as anything otherthan a plea for a quick resolution ofthe matter. Thejudge's letterto the parties carefully avoided Ms. Davison's factual allegations, suggesting the courtwas not 

### considering them as part of itsdisposition."52 The court also determined that the "judge took no affirmative action to investigate the allegations" and that "[i]n the absence ofat least an inference that thejudge considered an improper 

### communication, thejudge's impartiality may not reasonably be questioned, and 

### recusal is not required."53 Here, "a reasonably prudent and disinterested person would conclude that 

### all parties obtained afair, impartial, and neutralhearing."54 First, Buie was appointed to represent Peacock pursuantto GR 33. Her e-mail to the bailiff described her concern regarding additional fees and further work to be done in Peacock's case based on this appointment. Specifically, the e-mail stated "As
we stand now, there are no funds for [Wells's deposition] yet Iwas told by [sic]

50id at 255. 51 ]d at 256-57. 52 id at 257. 53 id 54 Tatham. 170Wn. App. at 96.
13No. 71953-0-1 (consolidated with No. 73150-5-IV14 that Iwas not appointed on a Pro bono basis inthis matter. Again, guidance 

### and/ora fee orderis required in this instance."55 The e-mail also stated "IfIam being order [sic] to work on a pro bono basis, please let me know that as that is contrary to what Iwas told
... but will follow the Court's orders insofar as they align with my ethical duties as setforth 

### inthe RPC's as well."56 Thus, the e-mail "was purely ministerial" and "did not 

### discuss any substantive issue
. . . ."57 Second, Peacock failed to show thatthe trialjudge considered the e-mail 

### "as anything other than a plea for a
.. . resolution of the matter."58 Specifically, Buie sought "guidance" or "clarification" from the trialcourt regarding her concern with complying with the court orders and her ability to work on Peacock's case. 

### Third, the trialjudge's subsequent decision to set a pre-trial conference, suspend discovery, and waive mediation demonstrated herdesire to have the
case proceed efficiently. Ajudge always has discretion to control the 

### administration ofjustice, including discovery and the requirementfor mediation. Nothing otherthan Peacock's speculation shows anything unfair. Thus, Peacockfails to overcome the presumption thatthe trialjudge acted 

### properly. Accordingly, the motionjudge did notabuse her discretion in denying Peacock's motion to vacate.
55 Clerk's Papers at 167. 56Id at 168. 57 Davis. 175Wn.2dat308. 58 Davison. 112 Wn. App. at 257.
14No. 71953-0-1 (consolidated with No. 73150-5-l)/15 

### Peacock argues thatthe trial court received "prejudicial information." He argues that Buie's e-mail essentially labeled him "as overly litigious," which "prejudiced thejudge against him throughoutthe trial." Although Buie's e-mail included copied language of recommended actions from Peacock's e-mail, the e-mail was, nevertheless, ministerial. It did not contain substantive, critical, or prejudicial information. Thus, "a reasonably prudent and disinterested person would conclude" that the trial court did not have


### an actual or perceived bias against Peacockdue to Buie's e-mail.59 Peacock also argues that it"appealed] that the Court was influenced by these communications" because itrejected a majority of his testimony. Similarly, he argues that the e-mail "had a significanteffect on the proceedings" because the trial court "immediately halted discovery," canceled Wells's deposition, and "generally sided with" Wells regarding the property division. 

### The trialjudge's decision to suspend discovery and require approval before the parties conducted depositions was within the court's "authority to 

### administer its affairs to achieve the orderly and expeditious disposition of its 

### docket."60 Additionally, "credibilitydeterminations should be made bythe trial court."61 Thus, the trialjudge was free to find Peacock's testimony not credible,
orWells's testimony more credible. Accordingly, the trialjudge's "rejection]" of Peacock's testimony does not show that she was biased.
59 Tatham. 170 Wn. App. at 96. 60 Winston v. Dep't ofCorrections. 130Wn. App. 61, 66, 121 P.3d 1201 (2005). 61 State v. O'Dell. 183 Wn.2d 680, 698 n.13, 358 P.3d 359 (2015).
15No. 71953-0-1 (consolidated with No. 73150-5-l)/16
Conflict ofInterest 

### Peacock next argues thatthe manner in which Buie sought additional fees put her interests above his, creating a conflict ofinterest. Specifically, he argues that her disclosure ofconfidential information prejudiced him. We disagree. Peacockfails to establish any nexus between the actions ofthe trialjudge 

### and the alleged actions of his former counsel. The necessary focus of a challenge to the trialjudge's decision is the trialjudge, not former counsel for Peacock. Inthe absence ofany nexus, which is Peacock's burden to establish,
we conclude thatthe motionjudge did not abuse her discretion indenying his motion. 

### Additionally, RPC 1.7 governs conflicts ofinterests ofcounsel. RPC 

### 1.7(a)(2) provides that "a lawyer shall not represent a client ifthe representation involves a concurrent conflict ofinterest. A concurrent conflict of interest exists if



### . . .there is a significant risk that" the lawyer's personal interestwill materially limitthe representation. 

### Even if Buie had a personal interestthat materially limited her 

### representation ofPeacock, this is not a basis for reliefunder CR 60(b)(11). As previously stated, this rule applies to extraordinary circumstances relating to 

### "'irregularities which are extraneous to [court action] or go to the question of the regularity of its proceedings.'" Peacock cites no authority demonstrating that RPC violations supportvacating an order under CR 60(b)(11).

16

### No. 71953-0-1 (consolidated with No. 73150-5-l)/17
ATTORNEY FEES Award at Trial 

### Peacock argues thatthe motionjudge abused her discretion by awarding Wells attorney fees for having to respond to his motion. We disagree. "The general rule inWashington is that attorney fees will not be awarded 

### for costs of litigation unless authorized by contract, statute, or recognized ground 

### ofequity."62 We may award fees under RCW26.09.140 after balancing the financial needs ofthe spouse seeking fees againstthe other spouse's ability to 

### pay.63 

### We review forabuse of discretion a trialcourt's award ofattorney fees.64 The motionjudge determined thatWells's low income and responsibilities for the parties' children "put her at an economic disadvantage." Thejudge also determined that Peacock had "a secure and greater income and was awarded substantial cash assets, whereas [Wells] received the house, which benefits the children." This was an appropriate determination based on the record then before the motionjudge. Peacock argues thatthisjudge should not have awarded Wells attorney fees because Wells received a majority ofthe parties' assets and, as a result,


### was in a betterposition to pay. The simple response to this is that, as the trial

62 Durland v. San Juan County. 182 Wn.2d 55, 76, 340 P.3d 191 (2014). 63 In re Marriage of Kim. 179 Wn. App. 232, 256, 317 P.3d 555, review denied, 180Wn.2d 1012(2014). 64 In re Recall of Piper. 184 Wn.2d 780, 786, 364 P.3d 113 (2015).
17

### No. 71953-0-1 (consolidated with No. 73150-5-l)/18


### court stated, Peacockwas in a better position to pay becauseWells received less income and bore the parenting responsibilities. 

### There was no abuse ofdiscretion bythe motionjudge awarding fees. Award on Appeal 

### Wells requests attorney fees on appeal, arguing that Peacock's appeal
was frivolous and that he was intransigent. We disagree. RAP 18.9(a) provides for attorney fees if a party "files a frivolous appeal." 

### "Anappeal is not frivolous or broughtfor purposes ofdelay if it involves 

### 'debatable issues upon which reasonable minds mightdiffer.'"65 "'Anappeal that is affirmed merely because the arguments are rejected is notfrivolous.'"66 

### Aparty's intransigence is an equitable basis for awarding attorneyfees.67 Courts grant attorney fee awards for intransigence when a party engages in "'foot-dragging' and 'obstruction'... or simply when one party made the trial 

### unduly difficult and increased legal costs by his or her actions.'"68 "'Intransigence' may also be shown by 'litigious behavior, bringing excessive 

### motions, or discovery abuses.'"69

65 O'Neill v. CityofShoreline. 183Wn. App. 15, 26, 332 P.3d 1099 (2014) (internal quotation marks omitted) (quoting Olsen Media v. Energy Scis., Inc., 32 Wn. App. 579, 588, 648 P.2d 493 (1982)). 66 Enslevv.Mollmann, 155 Wn. App. 744, 760, 230 P.3d 599 (2010) (quoting Halvorsen v. Ferguson. 46 Wn. App. 708, 723, 735 P.2d 675 (1986)).

67 In re Marriage of Chandola. 180 Wn.2d 632, 656, 327 P.3d 644 (2014). 68 [d at 657 (alteration in original) (internal quotation marks omitted) (quoting ]n re Marriage of Katare. 175 Wn.2d 23, 42, 283 P.3d 546 (2012)). 69 Inre the Matter ofKelly. 170Wn. App. 722, 740, 287 P.3d 12 (2012) (quoting In re Marriage ofWallace. 111 Wn. App. 697, 710, 45 P.3d 1131 (2002)). 18No. 71953-0-1 (consolidated with No. 73150-5-IV19 

### On this record, we conclude thatthis appeal is not frivolous. Although we disagree with Peacock's arguments, that alone is not a proper basis for us to 

### award fees. Moreover, there is no showing ofintransigence. Wells did not expressly request attorney fees on appeal based on RCW 26.09.140. To the extent that Wells's submission of her financial declaration is
an implicit request for fees based on this statute, we conclude that Peacock does not have the present ability to pay. 

### We affirmthe trialcourt in all respects. We also denyWells's requestfor attorney fees on appeal. 

# &2L

WE CONCUR: 

# t^^y^J!L&u£,

19