IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MAXINE McCALLUM and

GLENDON McCALLUM,

Respondents,

v.

COREY SMITH,

Appellant,

ANGELA BLOCKI,

Defendant.

No. 86175-1-I 

DIVISION ONE

UNPUBLISHED OPINION

SMITH, C.J. — Maxine and Glendon McCallum and Corey Smith own 

adjoining rural properties in Pierce County, Washington. In 2021, after learning 

that the fence separating their properties encroached onto their property, the 

McCallums sued to quiet title as to the disputed strips of land along the western 

and southern boundaries of their property. Smith asserted counterclaims of 

adverse possession and boundary by mutual recognition and acquiescence. 

After the parties moved for summary judgment, the trial court dismissed Smith’s 

boundary by mutual recognition and acquiescence counterclaim as to the 

disputed southern strip. Following a three day bench trial on the disputed 

western strip, the court quieted title to the McCallums.

On appeal, Smith contends that the trial court erred by finding for the 

McCallums at summary judgment and at trial. Because Smith failed to provide 
No. 86175-1-I/2

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evidence sufficient to show that his predecessors in interest adversely possessed 

the disputed western strip or acquiesced to the boundary lines, we affirm. 

FACTS

This case involves a boundary line dispute between Maxine and Glendon 

McCallum and Corey Smith, owners of adjoining rural properties in Pierce 

County, Washington. A diagram of the parties’ respective properties and certain 

neighbors’ properties is below:

Smith owns a single parcel of property, the “Smith Property.” The 

McCallums own two parcels of property, the “McCallum Property,” which borders 

the Smith Property to the east, and the “McCallum/Goetz Property,” which 

borders the Smith Property to the south. 

Because this case involves fact-specific claims, we begin with a brief 

history of the ownership and use of the properties.
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History of Ownership and Use

1. Smith Property

In the early 1940s, Howard and Ella Freeman purchased the Smith 

Property. At the time, the property was fully enclosed by a barbed-wire fence. 

Sometime before 1955, Howard Freeman replaced the fence with a steel-post 

fence with field netting. In building the fence, the Freemans did not obtain a 

survey or speak to Mr. Rossa,1the then-owner of the McCallum Property. 

Around the same time, the Freemans installed a drainage system with an 

opening at the end of the now disputed western strip.

Until the 1970s, the Freemans operated a small dairy farm. During that 

time, Rossa allowed the Freemans to graze their cows and horses on portions of 

his land. The Freemans also cut a gate into the wire fence separating their 

property from Rossa’s so that their cows and horses could roam freely between 

the properties. After they closed the dairy farm, the Freemans raised dairy cows 

until 1990. After the Freemans stopped keeping cows, they allowed another 

neighbor, Anton Fohn, to graze his cows on their property for a couple of 

summers. Fohn would let his cows freely roam between his property and the 

Freemans’ property.

Howard and Ella Freeman lived on the Smith Property until their deaths in 

2005 and 2009, respectively. After Ella’s passing, the Smith Property passed to 

 

1 Neither of the parties, nor any of the witnesses, could remember 

Mr. Rossa’s first name.
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her estate. Ella’s daughter, Donna Larsen, and grandson, David Larsen, then 

lived in a mobile home on the property. 

From 2009 to around 2014, David2 permitted neighbor Donald Lathrop to 

graze a few cows on the Smith Property. Lathrop would let his cows graze on 

the southern pasture for about four to six weeks out of the year. During this time, 

no one else was using or maintaining the disputed western strip. David also 

allowed Lathrop onto the property periodically to make repairs to the fence 

separating the Smith and McCallum Properties and to some interior fences on 

the Smith Property.

In 2013, Donna passed away. David moved away shortly thereafter in 

2014. After David moved away, Lathrop stopped grazing his cows onto the 

Smith Property. However, about a month later, Lathrop observed a man mowing 

grass at the Smith Property and approached him, offering to mow the grass in 

exchange for being permitted to graze his cows. The man agreed, and Lathrop 

resumed letting his cows graze on the Smith Property for a month out of the year 

until mid-2015.

In mid-2015, Angela Blocki and Corey Smith purchased the Smith 

Property from the estate of Ella Freeman. Title to the property was acquired 

solely in Blocki’s name. In October 2017, Blocki and Smith separated, but Smith 

remained living on the Smith Property. Smith and Blocki’s final dissolution 

decree, entered in March 2018, awarded the Smith Property to Smith. Despite 

 

2

 We refer to Donna Larson and David Larson by their first name solely 

for the purpose of clarity and to avoid any confusion.
No. 86175-1-I/5

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being awarded the property, Smith did not take legal title of the property until 

June 2021.

2. McCallum Property

In the 1970s, Faith Dairy acquired the McCallum Property from Rossa. 

Faith Dairy was owned and operated by Geraldine Beukema’s family, the 

Mensonides. From approximately 1970 until 1999, Faith Dairy used the 

McCallum Property as a secondary pasture, grazing their cows there for a few 

weeks over the summer before transporting them back to the main Faith Dairy 

facility across the street. 

In the early 1980s, Faith Dairy and Fohn worked together to rebuild the 

fence separating their properties. In 1992, Geraldine and Cornelis Beukema 

moved onto the McCallum Property. Cornelis would occasionally help Fohn 

make repairs to the fence separating their properties; Cornelis also made repairs 

on his own at times without asking Fohn. The Beukemas obtained ownership of 

the property in 1999. 

In 1999, Faith Dairy stopped grazing their cows on the McCallum 

Property. In lieu of cattle grazing, the Beukemas began growing hay, which they 

baled once a year. Between 2008 and 2010, when they were not growing hay, 

the Beukemas allowed Lathrop to graze his cows on portions of the property. In 

2021, the Beukemas sold the McCallum Property to the McCallums.
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3. McCallum/Goetz Property

The Freemans previously owned the McCallum/Goetz Property. In 2006, 

Jeffrey Goetz purchased the McCallum/Goetz Property from the Freemans. 

When Goetz acquired the property, it was already entirely fenced.

In 2013, Goetz obtained permission from Ella Freeman to replace the 

southern boundary fence. Goetz then rebuilt the fence about a foot south of the 

existing fence line. In May 2021, the McCallums purchased the McCallum/Goetz 

Property.

Present Case

In 2021, after conducting a survey of their land, the McCallums learned 

that the fences separating their properties from the Smith Property encroached 

on their land by several feet on the western and southern boundaries. They 

subsequently sued to quiet title as to the disputed strips of land, for trespass and 

injury to land, for ejectment, and for declaratory and injunctive relief. In 

response, Smith alleged counterclaims of adverse possession and boundary by 

mutual recognition and acquiescence.

In early 2022, both parties moved for summary judgment. The trial court 

partially granted the McCallums’ motion, quieting title and dismissing with 

prejudice Smith’s counterclaims of adverse possession and boundary by mutual 

recognition and acquiescence as to the southern strip. The court reserved the 

parties’ claims as to the western strip for trial.
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In connection with their summary judgment motion, the McCallums 

requested an award of attorney fees. After reducing the requested amount by 

approximately $9,000, the court awarded the McCallums $31,763.75 in fees.

In June 2022, the parties proceeded to trial over the disputed western 

strip. At trial, several neighbors and witnesses testified that the fence had 

historically been used to separate the properties and to contain livestock. 

Neighbors also testified that the fence was old and falling apart and that no one

knew or was particularly concerned about whether the fence was on the true 

boundary line. For example, neighbors Fohn, Lathrop, and Cornelis Beukema 

each testified that none of the neighbors had ever performed a survey of their 

properties to determine the true boundary lines.

Following trial, the court quieted title as to the western strip to the 

McCallums. The court denied Smith’s claims for adverse possession and 

boundary by mutual recognition and acquiescence, concluding that Smith failed 

to satisfy the requirements for either claim. The court also ruled in favor of the 

McCallums on their claims for ejectment, declaratory relief, injunctive relief, and 

trespass and injury to land.

After trial, the McCallums again requested attorney fees. The court 

granted the McCallums’ request and awarded them an additional $178,702.22 for 

a total fee award of $210,465.97.

Smith appeals.
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ANALYSIS

On appeal, Smith contends that the court erred by dismissing his 

counterclaim of boundary by mutual acquiescence as to the disputed strips and 

by dismissing his counterclaim of adverse possession as to the western strip. 

Smith also asserts that the court erred in awarding the McCallums attorney fees 

at summary judgment and after trial. Each argument is addressed in turn.

Mutual Recognition and Acquiescence

To prevail on a claim of mutual recognition and acquiescence, a party 

must prove “(1) that the boundary line between two properties was ‘certain, well 

defined, and in some fashion physically designated upon the ground, e.g., by 

monuments, roadways, fence lines, etc.’; (2) that the adjoining landowners, in the 

absence of an express boundary line agreement, manifested in good faith a 

mutual recognition of the designated boundary line as the true line; and (3) that 

mutual recognition of the boundary line continued for the period of time 

necessary to establish adverse possession (10 years).” Merriman v. Cokeley, 

168 Wn.2d 627, 630, 230 P.3d 162 (2010) (quoting Lamm v. McTighe, 72 Wn.2d 

587, 593, 434 P.2d 565 (1967)). All three elements must be proved by clear, 

cogent, and convincing evidence. Merriman, 168 Wn.2d at 630. To meet this 

standard of proof, the evidence must show that the ultimate facts are “highly 

probable.” Merriman, 168 Wn.2d at 630-31.
No. 86175-1-I/9

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1. Mutual Recognition and Acquiescence as to Southern Strip 

Smith asserts that the court erred in dismissing his claim of mutual 

recognition and acquiescence as to the disputed southern strip at summary 

judgment because a genuine issue of material fact existed as to each of the 

elements of the claim. We disagree.

We review a trial court’s grant of summary judgment de novo, considering 

the evidence and reasonable inferences drawn from it in the light most favorable 

to the nonmoving party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 

(2015). Summary judgment is appropriate when there are no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of law. 

CR 56(c). “A material fact is one that affects the outcome of the litigation.” Owen

v. Burlington N. & Santa Fe R.R. Co., 153 Wn.2d 780, 789, 108 P.3d 1220 

(2005).

a. Well-Defined Boundary Line

Smith claims that it is indisputable that the fence is a well-defined line and 

that there was no evidence that the fence here was not. We agree. Exhibits 

admitted at trial showed that the fence is well-defined and easy to see. Viewing 

the evidence in the light most favorable to Smith, the non-moving party, we 

conclude that this element is met.

b. Mutually Understood as Boundary, Not Barrier

Smith maintains that the property owners treated the fence as the true 

boundary because Goetz testified that he considered the fence to be the true 
No. 86175-1-I/10

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boundary and because the Freemans’ use of the property indicated as such. We

disagree.

Property owners can manifest mutual recognition and acquiescence “ ‘by 

their acts, occupancy, and improvements with respect to their respective 

properties.’ ” Lilly v. Lynch, 88 Wn. App. 306, 316-17, 945 P.2d 727 

(1997) (quoting Lamm, 72 Wn.2d at 593). “ ‘In the absence of an agreement to 

the effect that a fence between the properties shall be taken as a true boundary 

line, mere acquiescence in its existence is not sufficient to establish a claim of 

title to a disputed strip of ground.’ ” Lamm, 72 Wn.2d at 592 (quoting Thomas v. 

Harlan, 27 Wn.2d 512, 518, 178 P.2d 965 (1947)). Further, “[a]quiescence in a 

property line cannot be established by the unilateral acts of one party.” Heriot v. 

Lewis, 35 Wn. App. 496, 501, 668 P.2d 589 (1983).

Here, only Goetz testified about the nature of the fence. Goetz relayed 

that he had never had his property surveyed or the boundaries staked. Goetz 

explained that he never asked Ella Freeman any questions about the boundaries 

of his property; they only spoke about Goetz’s plans to replace the fence. Goetz 

also testified that he never had his property surveyed but assumed that the fence 

was the boundary line. 

At most, Goetz’s testimony portrays unilateral acts taken by one party with 

respect to the fence line. Although Smith alleges that the Freemans and their 

estate used the Smith Property up to the fence line in the manner of a true 

owner, Smith does not point to any evidence indicating that the Freemans used 
No. 86175-1-I/11

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the disputed strip or any testimony evidencing that the Freemans recognized the 

fence as the true boundary line. Instead, Smith claims that Lathrop’s later use of 

the pasture was sufficient to show that the Freeman estate recognized and 

accepted the fence line as the property boundary. But Lathrop was not the 

owner of the Smith Property and cannot acquiesce to the boundary line. Without 

additional evidence, Goetz’s testimony alone does not constitute clear, cogent, 

and convincing evidence that the Freemans and Goetz acquiesced in the fence 

as the true boundary line. Therefore, the trial court did not err in dismissing 

Smith’s claim. Because Smith fails to meet this second element, we do not need 

to reach the third element, whether the boundary existed for 10 years. 

2. Mutual Recognition and Acquiescence as to Western Strip

Smith avers that the court’s findings of fact as to the western strip are not 

supported by substantial evidence. He also argues that the court’s findings do 

not support the court’s conclusion that Smith failed to satisfy the elements of 

mutual recognition and acquiescence. We disagree.

We review a trial court’s findings of fact to determine whether substantial 

evidence supports the findings. Merriman, 168 Wn.2d at 631. Evidence is 

substantial if it is sufficient to persuade a fair-minded, rational person that the 

declared premise is true. Merriman, 168 Wn.2d at 631. “A reviewing court may 

not disturb findings of fact supported by substantial evidence even if there is 

conflicting evidence.” Merriman, 168 Wn.2d at 631. If the court’s findings are 

supported by substantial evidence, we then determine whether the findings 
No. 86175-1-I/12

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support the court’s conclusions of law. Green v. Hooper, 149 Wn. App. 627, 641, 

205 P.3d 134 (2009).

a. Well-Defined Boundary Line

Smith contends that the court’s finding that the fence separating the 

McCallum Property from the Smith Property was “dilapidated” and “never 

completely established” is unsupported by substantial evidence because no 

witness testified as such. Although witnesses testified that the fence was 

dilapidated, we agree with Smith that the court’s finding that the fence was never 

completely established is unsupported by substantial evidence.

At trial, Fohn testified that the fence was “pretty dilapidated in places.” 

Geraldine Beukema also testified that the fence “didn’t look real good” and 

“wasn’t like a neat fence.” Via deposition, Lathrop testified that the fence 

contained “a whole bunch of T posts along there, . . . some of them bent, some of 

them old, rusted, been there a long time.” Maxine McCallum also testified that 

Smith’s animals would sometimes escape through the fence and end up on her 

property. However, exhibits admitted at trial showing the current condition of the 

fence make clear that the fence is a well-defined line. The photo exhibits show 

that the fence is easily seen, not covered in brush or otherwise obstructed, and 

still intact. Although testimony at trial indicated that the fence was in a state of 

disrepair, no witness testified that the fence was in such disrepair that it was 

unclear if it existed or not. 
No. 86175-1-I/13

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Because testimony at trial indicated that the fence was established, the 

court’s finding that the fence was not well-established is not supported by 

substantial evidence. And because this finding is not supported by substantial 

evidence, the court’s conclusion that the fence was not a well-defined boundary 

line is not supported by the findings.

b. Mutually Understood as Boundary

Smith next argues that the court’s finding that the fence was primarily 

intended to contain livestock, rather than serve as a property boundary, is 

unsupported by substantial evidence because the property owners testified that 

the fence served the dual purpose of marking the boundary line and containing 

livestock. We disagree. 

Geraldine Beukema testified that the fence was intended to “divide[] the 

property, to keep [the] cows out and to keep other people’s animals in their 

location.” Cornelis Beukema testified that the only purpose of the fence was “to 

keep the cows in” but that he considered the fence as the boundary line. 

Cornelis also testified that there was never an agreement between the 

Beukemas and the Freemans that the fence was the boundary line. He also 

stated that he could not remember ever seeing the Freemans using the land on 

their immediate side of the fence line. Fohn also testified that he believed the 

primary purpose of the fence was to keep animals from wandering onto other 

neighbors’ property. Third party Sandy Arend-Johnson testified that Howard 

Freeman never told her about the purpose of the fence. 
No. 86175-1-I/14

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This testimony supports the court’s finding that the primary purpose of the 

fence was to contain livestock. Smith’s assertion that the court erred because 

there was also evidence supporting that the fence was a boundary line is 

unpersuasive. We do not reweigh evidence or credibility on appeal. City of 

Sunnyside v. Gonzalez, 188 Wn.2d 600, 612, 398 P.3d 1078 (2017).

Smith also claims that the court’s finding that the Freemans did not treat 

the fence as the boundary because they “never built, constructed, planted, or 

cultivated anything in the Disputed Strip” is unsupported by substantial evidence 

because it ignores evidence that the Freemans’ livestock used that portion of the 

property. Via deposition, Ronald Freeman, son of Ella and Howard Freeman 

testified that in the early 1950s, his father built a drainage system on the property 

with an entrance on the western boundary by the fence line. He also testified 

that besides letting their cows and horses roam, his family did not use the 

disputed western strip. Also via deposition, Fohn testified that since he had 

moved onto the property north of the Freemans in the 1960s, he never saw the 

Freemans build any structures near the fence line, or plant or cultivate any crops 

near that area. 

At trial, Fohn testified that up until the 1990s, he witnessed the Freemans 

occasionally drive their tractor and wagon to get firewood and brush hog3the 

field twice a year. Lathrop testified that between 2005 and 2009, he never saw 

the Freemans doing any sort of maintenance or repair work on the western fence 

 

3

 Brush hogging is trimming thick brush with a rotary cutting deck 

attached to a tractor.
No. 86175-1-I/15

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line because they were “very elderly.” Lathrop also testified that the Freemans’ 

horses passed away sometime between 2002 and 2009 and that they did not 

have other animals on the property after that time.

This testimony also supports the court’s finding that the fence was not 

treated as a true boundary line by the property owners.

Because the court’s finding that the fence’s primary purpose was to 

contain livestock, rather than act as a true boundary line, was supported by 

substantial evidence, the court’s conclusion that the property owners did not 

acquiesce to the fence as a boundary line is supported by the court’s findings. 

Because the property owners did not consider the fence to be the true boundary 

line, Smith’s claim of mutual recognition and acquiescence fails. 

Adverse Possession

In the alternative, Smith asserts that the trial court erred by dismissing his 

claim of adverse possession as to the western boundary. Smith claims that the 

Freemans’ use of the property satisfied the elements of adverse possession and 

that their title to the disputed strip vested no later than 1970. Because Smith fails 

to provide sufficient evidence to show that the Freemans adversely possessed 

the western strip, we disagree. 

To prevail on a claim of adverse possession, a party must show that the 

possession is (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, 

and (4) hostile. ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 

(1989). Each of these elements must exist for the statutorily prescribed period of
No. 86175-1-I/16

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10 years. ITT Rayonier, 112 Wn.2d at 757. “Title vests automatically in the 

adverse possessor if all the elements are fulfilled throughout the statutory 

period.” Gorman v. City of Woodinville, 175 Wn.2d 68, 72, 283 P.3d 1082 

(2012). 

“As the presumption of possession is in the holder of legal title, the party 

claiming to have adversely possessed the property has the burden of 

establishing the existence of each element.” ITT Rayonier, 112 Wn.2d at 757. 

“Possession itself is established only if it is of such a character as a true owner 

would make considering the nature and location of the land in question.” ITT 

Rayonier, 122 Wn.2d at 759. For example, “[t]he construction and maintenance 

of a structure partially on the land of another almost necessarily is exclusive, 

actual and uninterrupted, open and notorious, hostile and made under a claim of 

right.” Drazst v. Naccarato, 146 Wn. App. 536, 542, 192 P.3d 921 (2008). 

“Where there is privity between successive occupants holding continuously and 

adversely to the true title holder, the successive periods of occupation may be 

tacked to each other to compute the required 10-year period of adverse holding.” 

Roy v. Cunningham, 46 Wn. App. 409, 413, 731 P.2d 526 (1986). “To interrupt 

adverse possession, there must be actual cessation of the possession.” Ofuasia 

v. Smurr, 198 Wn. App. 133, 144, 392 P.3d 1148 (2017). 

Here, Smith asserts that the Freemans adversely possessed the western 

strip and that their title to the disputed strip vested no later than 1970. Because 

the trial court’s finding that there was insufficient evidence that the Freemans
No. 86175-1-I/17

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sufficiently used the disputed strip is supported by substantial evidence, and the 

testimony supports that the use was by mutual agreement, we disagree.

Ronald Freeman testified that he lived on the Smith Property as a child in 

the 1940s and 1950s. Between 1958 and 1962, Ronald attended a technical 

college in Chicago, Illinois. After that, Ronald moved home to the Smith Property 

for approximately two years before he accepted a job in Rapid City, South 

Dakota, where he stayed for the following seven years.

Ronald testified that in the early 1950s, his father built a drainage system 

on the property with an entrance on the western boundary by the fence line. 

Ronald also testified that while he lived on the Smith Property, Rossa, the thenowner of the McCallum Property, told the Freemans that they could use his 

property to graze their horses and cows. Ronald described that they would pull 

back a portion of the fence between the Smith and McCallum Properties to allow 

the livestock to move back and forth between the fields and that “[s]ometimes 

[they] left the fence open, gate open, for months, if not years.”

Ronald also testified that besides the cows and horses, his family did not 

make use of the disputed western strip, such as by tilling the land by the western 

fence. As to whether his father asked Rossa’s permission before replacing the 

fence between the properties, Ronald stated that he did not know if his father and 

Rossa discussed the fence. Ronald also noted that he had never had any 

discussion with Rossa about the location of the boundary line.
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Fohn moved to the property north of the Freemans in 1960, when he was 

six years old. He testified that he never saw the Freemans build any structures 

near the fence line, or plant or cultivate any crops near that area. He also 

testified that he did not know if the Freemans obtained a survey of their property

and that he had never had a conversation with the Freemans about their property 

boundary lines. When asked whether he’d discussed the fence with Howard 

Freeman, Fohn said he could not specifically recall speaking to Freeman about 

the fence, but that he assumed Freeman built the fence “because they had 

cows.”

No other witnesses testified as to this time period. However, Fohn and 

Ronald’s testimony supported that the Freemans never built, constructed, 

planted, or cultivated anything in the disputed western strip. Other than this 

testimony that the Freemans’ cows and horses grazed along the fence line, 

Smith produced no other evidence indicating that the Freemans used the 

western strip between 1940 and 1970 in a manner consistent with adverse 

possession. Rather, the testimony available supported that the Freemans’ use of 

the western strip was by agreement with the true owner of the land. This limited 

testimony constitutes substantial evidence sufficient to support the court’s finding 

that there was insufficient evidence of adverse possession. 

Attorney Fees

Smith argues that the trial court abused its discretion in awarding the 

McCallums their attorney fees because the award was inequitable. Smith also 
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contends that fees are not awardable for claims of mutual recognition and 

acquiescence and that the court further abused its discretion by not segregating 

these fees out of the fee award.4 Both parties request fees on appeal under 

RCW 7.28.083(3). 

We apply a two-part standard of review to a trial court’s award or denial of 

attorney fees. Park Place Motors, Ltd. v. Elite Cornerstone Constr., LLC, 18 Wn. 

App. 2d 748, 753, 493 P.3d 136 (2021). First, we review de novo whether there 

is a legal basis to award attorney fees by statute, contract, or in equity. Park 

Place Motors, 18 Wn. App. 2d at 753. Next, we review the court’s decision to 

award or deny fees and the reasonableness of the resulting award for an abuse 

of discretion. Park Place Motors, 18 Wn. App. 2d at 753.

RCW 7.28.083(3) provides that “[t]he prevailing party in an action 

asserting title to real property by adverse possession may request the court to 

award costs and reasonable attorneys’ fees.” It also states that “[t]he court may 

award all or a portion of costs and reasonable attorneys’ fees to the prevailing 

party if, after considering all the facts, the court determines such an award is 

equitable and just.” RCW 7.28.083(3). The statute does not mention claims for 

mutual recognition and acquiescence.

 

4

In his notice of appeal, Smith references only the court’s first fee award 

order, entered on May 4, 2022. Smith does not appeal the court’s second fee 

award order, entered on March 17, 2023. Despite this omission, we address 

Smith’s argument about the second fee award because the parties proceed on 

appeal as though the order was appealed.
No. 86175-1-I/20

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Here, the court cited RCW 7.28.083(3) as its authority for awarding fees. 

The court also noted that Smith’s counterclaim of adverse possession was 

“inextricably linked with the other legal claims and theories in this case such that 

the time [spent by the McCallums’ counsel] cannot be separated.” Because the 

statute does not permit the court to award fees for claims for mutual recognition 

and acquiescence and the court acknowledged that some time was spent on 

those claims, it was not just and equitable and was error for the court to not 

adjust the award accordingly. Even if the time spent on each claim could not be 

separated, the court could have and should have lowered the award on the basis 

of equity. On remand, the court is instructed to lower the attorney fee award 

accordingly.

On appeal, the McCallums request attorney fees per RCW 7.28.083(3). 

Because an award of fees is discretionary on appeal and because the 

McCallums have already recouped a substantial amount of fees, we decline to 

award them additional fees. 

Affirmed and remanded for the court to adjust the attorney fee award.

WE CONCUR: