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CO IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE ro DANIEL MOORE, Respondent,

v. PAMELA MOORE, Appellant. No. 70439-7-1

UNPUBLISHED OPINION

FILED: September 2, 2014 

### Schindler, J. — Pamela (Pam) Moore appeals entry ofthe decree ofdissolution, 

### findings offact and conclusions oflaw, and the child supportorder. Pam1 challenges (1) the characterization and valuation of the assets and liabilities, (2) the division of property, (3) the calculation of income forpurposes ofchild support, (4) the decision to not award additional maintenance, and (5) an award ofattorney fees for intransigence. 

### Because itappears the court's valuation of the Fidelity 401 (k)retirement account at 

### $24,058 is notsupported by the record, we remand on that issue, butaffirm in all other respects. FACTS 

### Pam and Daniel (Dan) Moore were married for 12 years. At the time of the dissolution trial inSeptember2012, their only childwas five-years-old. We refer to the parties by their firstnames forclarity. Nodisrespect is intended. ; CONo. 70439-7-1/2 During the majority ofthe marriage, Dan worked in a contract position at Microsoft as an audio engineer. The contract position ended in June 2010. InAugust 2010, Dan entered into a new temporary contract with Microsoft. Beginning in May 2011, Dan entered into contracts with GreenButton Ltd. and Tashkent Park LLC. Pam 

### held several management positions inthe retail business during the first half ofthe marriage but in 2002, she stopped working fulltime. 

### Pam filed for legal separation inAugust 2011. Pam remained inthe family home. Pam requested the court order Dan to pay child support as well as spousal maintenance. Dan submitted a financial declaration stating that his total gross monthly 

### income was $13,854. A family court commissionerentered a temporary order of child support requiring Dan to pay $1,030.97 a month in child support, as well as maintenance to Pam in the amount of$1,750. The commissioner also entered a 

### temporary restraining order prohibiting both Pam and Dan "fromtransferring, removing, encumbering, concealing or inany way disposing ofany property except inthe usual

course ofbusiness or for the necessities of lifeand requiring each partyto notifythe 

### otherof any extraordinary expenditures made afterthe order is issued." The commissioner appointed a parenting evaluatorto investigate allegations ofsubstance 

### abuse and to make parenting plan recommendations as to the best interests of the
child. 

### Dan filed a motion to modifythe temporary childsupport and maintenance order and requested the court allow the sale ofthe family home. Dan stated that his grossNo. 70439-7-1/3 monthly income had not changed, but that both ofthe contracts with GreenButton and Tashkent Park would expire at the end of April 2012 and he was not certain either contractwould be renewed. Dan filed a supplemental declaration stating that Pam was employed in a full-time position earning $65,000 per year. At the hearing on the motion to modify, Pam's attorney stated that Pam had lost thejob and was again unemployed. The commissioner denied Dan's motion to modify the temporary child support and maintenance order and ordered him to secure a home equity loan to help pay the taxes on the home for 2010. Before the scheduled trial in September 2012, Dan requested attorney fees inthe amount of $5,000 for Pam's failure to disclose any witnesses or exhibits and herfailure 

### to appear attwo scheduled depositions. The court granted Dan's motion and awarded him $2,500 in attorney fees. The findings state, in pertinent part: 2. The case schedule provided that the last day for disclosure of 

### witnesses was May 21, 2012. The petitionerfailed to provide a list of possible witnesses at that time and to the present date has still not provided a list ofwitnesses to the court or the respondent or any reason why there has not been a disclosure ofwitnesses. 3. . . . The petitionerfailed to provide any information as to non 

### experts or experts otherthan: "To be provided." None of this information has been provided to the respondent up to this date. 8. Willful or Deliberate. There is no question inthe court's considerations that the petitioner knew that the list ofwitnesses needed to 

### be delivered to the respondent. She received the respondent's disclosure ofwitnesses and was told by her attorney's office that the witness list needed to be delivered to the respondent. There is no question inthe 

### court's mind thatthe petitioner's disregard ofher obligation to provide this information was willful.
. . . 

### 9. Prejudice. Ms. Moore's disregard to the court's order as to 

### witnesses prejudiced the respondent. The trial date was set at July 23,No. 70439-7-1/4 2012. A motion to continue the trial date was granted by the trialjudge after being sentto herfor trial. The basis for the continuance was the unfortunate illness ofcounsel. Atthat time, the discovery deadlines and the deadlines for disclosing witnesses had long passed. The primary dispute during the four-day trial in September 2012 concerned the parenting plan. The parenting evaluatortestified and recommended that Dan be designated as the primary residential parent. The parenting evaluator expressed

concern about Pam's "relatively short lived" sobriety and "ability to meet [the child's] needs at this time." The parties also disagreed aboutthe nature and extent ofcommunity assets and liabilities and the division ofproperty. Both sides accused the other ofwithholding income and misstating assets. Dan testified his contractwith Tashkent Park was not renewed but he was stillworking with GreenButton. Dan testified that his contractwith 

### GreenButton states he would earn "a base salary of$60,000 a year" as well as a percentage ofthe revenue. 

### The court agreed with the recommendation ofthe parenting evaluator and 

### designated Dan as the primary residential parent. The court rejected as "speculation" the claim that Dan was withholding income. The court calculated child support based

on Dan's gross monthly income of$5,000. The court awarded Pam six months of maintenance to allow hertime to find employment. Pending the sale ofthe family home, the court ordered Dan to pay the mortgage. The court reserved ruling on the 

### exactdivision ofthe proceeds from the sale ofthe home. Finding there was "certainly a 

### lot ofneed, but virtually no ability to pay," the court did not award attorney fees to eitherNo. 70439-7-1/5 Pam or Dan. On February 14, 2013, the court entered the decree ofdissolution, findings offact, conclusions of law, order of child support, and parenting plan. Pam filed a motion for reconsideration ofthe decree of dissolution, findings of fact, parenting plan, and order of child support or, inthe alternative, a new trial. Pam argued thatthe final documents contained several errors that resulted in a disparate 

### property division. Specifically, Pam contested the reimbursement of$26,011.32 to Dan for mortgage payments and the calculation of$8,250 for the total amount ofarrears owed in unpaid maintenance and child support. Pam argued the correct amount of unpaid maintenance and child support was $21,740. 

### The court granted the motion for reconsideration inpart. The court corrected the reimbursement of$26,011.32 inmortgage payments to Dan and the calculation of maintenance and child support arrearages. The court ordered Dan to pay Pam $21,740 in "Maintenance/Child support." Inthe amended decree ofdissolution filed on June 6, 

### 2013, the court divides the net assets equally, awarding Pam $120,338 and Dan $120,337. 

### Throughoutthe proceedings below, Pam was represented by an attorney. Representing herselfpro se, Pam appeals.No. 70439-7-1/6 ANALYSIS Characterization and Valuation of Property Pam asserts the court erred infinding that the Citibank credit card obligation was
a community debt. Pam also challenges the court's valuation of Dan's recording equipment and his 401 (k) account. We review the court's findings offact for substantial evidence. In re Marriage of Skarbek, 100 Wn. App. 444, 447, 997 P.2d 447 (2000). "Substantial evidence exists if the record contains evidence of sufficient quantity to persuade a fair-minded, rational person ofthe truth ofthe declared premise." Bering v. SHARE. 106 Wn.2d 212, 220, 721 P.2d 918 (1986). Where the trial court has weighed the evidence, the reviewing court's role is simply to determine whether substantial evidence supports the findings of 

### fact and, ifso, whetherthe findings in turn supportthe trial court's conclusions of law. ]n

re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999). Findings offact 

### supported by substantial evidence will not be disturbed on appeal. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959). A court should 

### "not substitute [its]judgmentfor the trial court's, weigh the evidence, or adjudge witness credibility." Greene, 97 Wn. App. at 714. A court has broad discretion in valuing property in a dissolution action, and its valuation willnot be reversed on appeal absent a manifest abuse ofdiscretion. In re Marriage of Gillespie, 89 Wn. App. 390, 403, 948 P.2d 1338 (1997). A manifest abuse of discretion occurs when the discretion was exercised on untenable grounds. In reNo. 70439-7-1/7 Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). A trial court does 

### not abuse its discretion by assigning values to property withinthe scope ofevidence, |n

re Marriage ofSoriano. 31 Wn. App. 432, 435, 643 P.2d 450 (1982). 

### Pam argues the court erred in findingthatthe $23,640 Citibank credit card obligation was community debt. The trial court's characterization ofproperty as community or separate is a 

### question of law that we review de novo. Skarbek, 100Wn. App. at 447. A debt incurred 

### by either spouse during marriage is presumed to be a community debt. Oil Heat Co. of Port Angeles. Inc. v. Sweeney. 26 Wn. App. 351, 353, 613 P.2d 169(1980). A party 

### may overcome this heavy presumption only by showing by clear, cogent, and 

### convincing evidence of the property's separate character. In re Marriage ofZahm. 91 Wn. App. 78, 86, 955 P.2d 412 (1998). 

### Prior to trial, Pam acknowledged that she and Dan had a "joint credit card with Citibank that is inDan's name." Pam admitted that she charged $12,000 to the Citibank 

### card to retain an attorney just before the separation in August 2011. The court ordered 

### Pam to pay $12,000 of the totalCitibankobligation and $2,743 in interest, and ordered Dan to pay the remaining $11,640 alongwith $2,660 in interest. Because the record establishes the Citibank creditcard debtwas a community obligation, the court did not


### err indetermining the debtwas a community liability. 

### Pam argues the courtabused its discretion byvaluing the recording equipment at $9,330 and valuing Dan's 401(k) account at $24,058. There is no dispute that PamNo. 70439-7-1/8 violated the restraining order by selling Dan's professional recording equipment, some ofwhich was community property and some ofwhich was separate property. Pam 

### admitted to selling the recording equipmentfor approximately $1,000. Dan testified that the equipment was worth approximately $18,600. Dan testified that he had worked for a professional audio company for eightyears, has been a professional musician his entire life, and has "good insight" into the value ofthe recording equipment he owned. The court was "not persuaded [the equipment] was worth $18,660" but found "it

was worth more than a thousand bucks." Because the property had already been sold 

### and could not be separately appraised, the court valued the equipment at $9,330, an average between the two values testified to at trial. The court did not abuse its discretion in determining the value ofthe recording equipment. 

### Dan admitted that he liquidated his Fidelity 401 (k) retirement account in violation of a court order. The courtfound that Pam "shall getthe creditforthe funds taken by [Dan] when he invaded the 401 (k) and other assets." The court valued the 401 (k) at $24,058.2 The record does not appearto supportthe valuation ofthe 401 (k) at 

### $24,058. The evidence suggests thatthe amount Dan received inthe 401 (k) disbursementwas actually $30,558. Further, afterthe court entered the amended decree, Dan admitted thatthe valuation of$24,058 was inerror. We remand to address the valuation ofthe Fidelity 401 (k) retirement account.

2The valuation of$24,058 was presumably calculated bysubtracting the loan of$17,306 taken out against the401 (k) during the marriagefrom thetotal value of the 401(k) account of $41,344at the time of separation. 8No. 70439-7-1/9 Division of Property Pam asserts that the distribution of property was notjust and equitable. Pam argues the courtfailed to consider her postseparation liabilities and erred in crediting Dan for the full amount she withdrew from the parties'joint savings account. The division ofproperty in a dissolution action is governed by statute. RCW 26.09.080 requires the court to consider a number offactors in making a "just and equitable" distribution ofthe marital property, including (1) the nature and extent ofthe community property, (2) the nature and extent ofthe separate property, (3) the duration 

### ofthe marriage, and (4) the economic circumstances ofeach spouse atthe time the division ofthe property is to become effective. 

### All ofthe property, both community and separate, is before the courtfor distribution. In re Marriage of Olivares. 69 Wn. App. 324, 328, 848 P.2d 1281 (1993). 

### The trial court has broad discretion indistributing marital property and its decision will 

### be reversed only ifthere is a manifest abuse ofdiscretion. Inre Marriage ofGriswold. 112 Wn. App. 333, 339, 48 P.3d 1018 (2002). The trial court is inthe best position to determine underthe circumstances what is " 'fair,just and equitable.'" In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999) (quoting Inre Marriage ofHadlev. 88 Wn.2d 649, 656, 565 P.2d 790 (1977)). 

### Pam claims the division ofproperty was not equitable because the court did not take into account the debt she incurred afterthe parties separated. But the record shows that the court considered the economic circumstances of each party, includingNo. 70439-7-1/10 

### Pam's separate debt and attorney fees. The family home was the main asset the parties owned. The trial court ruled the net proceeds from the house should be 

### distributed to achieve an "equaldivision," awarding Pam $120,338 and Dan$120,337.3 The court also awarded Pam six months of maintenance to give hertime to find 

### employment. In dividingthe property, the court additionally took intoaccountthe fact that Pam withdrew nearly the entire home equity loan of$48,000 and took the entire 

### 2010joint tax refund of$11,796. Substantial evidence supports the court's division of

assets.Before trial, the court ordered Dan to take out a loan on the equity ofthe family 

### home to pay the taxes on the home for 2010. The court authorized Pam to draw $15,000 from the loan to pay attorney fees and experts, and allowed Dan to withdraw 

### up to $20,000 to pay support obligations to Pam. The court stated that it would characterize the $20,000 to Dan "as an advanced draw against his share unless 

### otherwise ruled on by the trial court." 

### Dan obtained a $48,000 home equity loan from Boeing Employees' Credit Union 

### (BECU). The testimony established that Pam used nearly all of the $48,000 to pay for her attorney fees. The testimony at trialalso established that Pam withdrew the entire

3Pam's contention that the courtawarded 68 percent of the community property to Dan and only 32 percentto her is not supported by the record. 10No. 70439-7-1/11 

### 2010joint tax refund of$11,796 from thejoint BECU savings account.4 In short, the court did not abuse its discretion indetermining ajust and equitable distribution ofthe parties' assets and liabilities. Child Support Pam challenges the calculation of Dan's gross income for the purpose ofthe child support order. Pam contends the court erred incalculating Dan's gross income at 

### only $5,000 per month and not including a 10 percent bonus. We review the child support orderfor abuse ofdiscretion. In re Marriage of Bell, 101 Wn. App. 366, 371-72, 4 P.3d 849 (2000). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable

reasons. In re Marriage of Littlefield. 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). A court's decision is manifestly unreasonable if it is based on an incorrect legal standard. Littlefield, 133 Wn.2d at 47. In calculating gross income, the court must include "income from any source, including
. . . [b]onuses." RCW 26.19.071(3)(r). The court based its calculation of Dan's gross income on his actual reported income. At the time of trial, Dan submitted a revised financial declaration showing that 

### his actual total monthly gross income was $5,000. Dan also testified that his contract with GreenButton states he willearn 10 percent "of all revenue brought in for the 4Pam also asserts the court erred in ordering herto pay 50 percentofthe federal taxes for 2011, but she does not present any argument as to why the court erred in ruling thatthe parties "should be equally responsible forthat liability." Pam further contends the court erred inreversing only a portion of the mortgage reimbursementto Dan when itgranted her motion forreconsideration in part, asserting there was a "mathematical error." But Pam does not explain the alleged erroror support her argument with any citation to the record. Where a party assigns errorto a finding but presents no argument in their opening brief on any claimed assignment, that assignmentoferror is waived. Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801, 809, 828 P.2d 549 (1992). 11No. 70439-7-1/12 productthat Isell." But Dan submitted evidence that because the "product on which [his] commissions will be based is an entirely new product offering and market sectorfor the company," there was "no precedent or sales history on which an approximation of future commissions can be established." The courtfound Dan's testimony about his income credible. The court found, "The evidence is that the father makes what he makes" and there is "no evidence that the father [is] holding back on income." 

### The court did not err incalculating Dan's gross income at $5,000 or in refusing to speculate a potential future bonus when there was no evidence the court could use to calculate a bonus amount. 

### Pam also argues the court erred in imputing income to her because she had 

### been out ofthe workforce since 2006.5 When assessing the income and resources of each household for the purpose ofcalculating child support, the court must impute 

### income to a parentwhen that parent is voluntarily unemployed. RCW 26.19.071 (6); in

re Marriage ofPollard. 99 Wn. App. 48, 52, 991 P.2d 1201 (2000). "The court shall determine whetherthe parent is . . . voluntarily unemployed based upon that parent's 

### work history, education, health, and age, or any other relevantfactors." RCW 26.19.071 (6); Pollard. 99 Wn. App. at 52-53. 

### Pam has a degree inbusiness and multiple years of prior work experience in 

### managerial positions. There was no evidence that Pam had any health condition or otherfactorthat would prevent herfrom working. Pam also reported gross monthly

5Pam reported her lastwork month was March 2006. 12No. 70439-7-1/13 

### earnings of$1,800 at her most recentjob in2006. The courtdid not err in imputing gross income to Pam inthe amount of$1,690.
Maintenance Pam challenges the trial court's decision to award only six months of maintenance in the amount of $1,750 per month. An award of spousal maintenance is within the broad discretion ofthe trial court. In re Marriage of Bulicek. 59 Wn. App. 630, 633, 800 P.2d 394 (1990). The only limitation on the amount and duration of maintenance under RCW 26.09.090 is that the award must bejust. In re Marriage of Luckev. 73 Wn. App. 201, 209, 868 P.2d 189 

### (1994). The relevant statutory factors the court must consider include the financial

resources ofeach party; the age, physical and emotional condition, and financial obligations ofthe spouse seeking maintenance; the standard ofliving during the 

### marriage; the duration ofthe marriage; and the time needed to acquire education necessary to obtain employment. RCW 26.09.090; In re Marriage ofVanderVeen. 62 Wn. App. 861, 867, 815 P.2d 843 (1991). 

### Pam argues thatthe courtfailed to considerthe standard ofliving during the 

### marriage and the postdissolution economic condition ofthe parties. The record does not support her argument. The court ruled, inpertinent part, "I'veconsidered the factors for awarding maintenance under RCW 26, and I'msatisfied that a brief period of transitional maintenance is warranted inthis case; understanding, however, that the 

### wifewill be receiving pastdue amounts in addition to that. . . award." The court also

13No. 70439-7-1/14 found, "There was no persuasive credible evidence for rehabilitative maintenance or maintenance for a longer period of time." Further, Pam does not challenge the court's finding that Dan had "littlepresent 

### ability to pay maintenance," orthe finding that she is "well educated and intelligent with a history ofsuccessful managerial positions [and] the Court believes thatwithinsome short period of time, [Pam] will be employed and will enjoy an income close to or similar to that which she was making when she leftthe work force." Because the record reflects that the trial court addressed the statutory factors,
we conclude the decision to award $1,750 per month in maintenance for only six months was not an abuse ofdiscretion.6 Attorney Fees 

### Pam asserts thatthe trial court abused its discretion by awarding $3,850 in 

### attorney fees to Dan based on intransigence.7 It is wellsettled that a trial court may award attorney fees ifthe intransigence of


### one partyincreased the legalfees of the other party. Burrill v. Burrill. 113 Wn. App. 863,

6On appeal, Pam challenges the calculation ofarrearages forchild support and maintenance and the reimbursement of$26,011.32 inmortgage payments to Dan. But the court granted her motion to correct amounts in the order grantingin part the motion for reconsideration. Although the amended decree ofdissolution states that the unpaid maintenance amount is $8,250, the order "adopts the spreadsheetattached" that states thecombined unpaid maintenance/child support amount is$21,740, the same amount requested inPam's motion for reconsideration. 7Pam also argues the court erred in entering an order on July 31, 2013 awarding an additional $4,410 in attorney fees to Dan based on intransigence. But Pam does not appeal that order. See RAP 2.4(a) (the appellate courtwill review decisions or parts of the decision designated in the notice of appeal). Because the exception described inRAP 2.4(b) is not met, we need not reviewthe undesignated order. See Right-Price Recreation. LLC v. ConnellsPrairie Cmtv. Council, 105Wn. App. 813, 819, 21 P.3d 1157 (2001). Nonetheless, we note that because the underlying factsjustifying the award are not disputed, substantial evidence supports the finding ofintransigence.
14No. 70439-7-1/15 

### 873, 56 P.3d 993 (2002). "Intransigence includes foot dragging and obstruction, filing 

### repeated unnecessary motions, or making the trial unduly difficult and costly byone's actions." Inre Marriage ofBobbitt. 135 Wn. App. 8, 30, 144 P.3d 306 (2006). Ifa court 

### finds intransigence," 'the financial resources ofthe spouse seeking the award are irrelevant.'" In re Marriage of Greenlee. 65 Wn. App. 703, 708, 829 P.2d 1120 (1992) 

### (quoting Inre Marriage ofMorrow. 53 Wn. App. 579, 590, 770 P.2d 197 (1989)). A 

### party challenging the trialcourt's decision to award attorneyfees "bears the burden of proving the trial court exercised its discretion in a way that was 'clearly untenable or manifestly unreasonable.'" Inre Marriage ofCrosetto. 82 Wn. App. 545, 563, 918 P.2d 954 (1996) (quoting In re Marriage ofKnight. 75 Wn. App. 721, 729, 880 P.2d 71 (1994)). 

### Afterthe court granted inpart Pam's motion for reconsideration, the court 

### directed Pam to submit proposed amended findings of fact and a decree of dissolution 

### within 14 days. The courtspecifically ruled that "[t]he proposed orders shall not reflect any amendment other than for this [sic] issues inParagraph 1 of this order." There is no dispute that Pam failed to provide an amended decree as directed or thatthis failure increased Dan's attorneyfees. Pam's proposed amended findings of fact and decree ofdissolution included additional changes to the valuation and 

### distribution of the marital property. Danfiled a motion for attorney fees in the amount of $3,850, arguing he incurred more than nine hours of attorney fees as a result. The 

### court granted Dan's reguest for attorney fees in the amount of$3,850based on the fact

15No. 70439-7-1/16 

### that Dan was "required to incur additional fees because ofthe acts of [Pam] which have increased the attorney fees of [Dan] and because ofthe failure to act [by Pam as] provided for inthe Order Granting in part Motion for Reconsideration." Substantial evidence supports the court's finding ofintransigence. We remand to correct the valuation ofthe 401 (k) retirement account. In all other 

### respects, we affirm.8

WE CONCUR: 

# /f\ ekey -J

8We deny Pam's request for fees on appeal. 16