### FILED FEBRUARY 23, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division Ill IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter ofthe Marriage of MICHELLE L. CUMMINGS, Respondent, and DAVIDA. CUMMINGS, Appellant. 

### ) ) ) ) ) ) ) ) ) ) ) No. 33355-8-111

UNPUBLISHED OPINION

SIDDOWAY, 

### J.

- David Cummings appeals the trial court's distribution of property in the dissolution ofhis andMichelle Cummings's marriage. He also challenges
a sanction imposed onhim for intransigence, in favor ofhis trial lawyer. We affirm the decree ofdissolution andrefuse to review the sanction because it is challenged on appeal againstthe wrongparty. FACTS AND PROCEDURAL BACKGROUND Michelle and David Cummings hadbeen married for 34 years atthe time they separated in May 2013. Ms. Cummings moved out ofthe family home and into an apartment. Several months later, she filed a petition for dissolution. Atthe time oftrial bothparties were 58 years old. Testimony at trial established thatbothhad college degrees and were fully employed: Ms. Cummings worked as a director ofan assisted living facility, and Mr. Cummings was licensed andworked as a

### No. 33355-8-111 In re Marriage of Cummings


### real estate broker and appraiser. They earned similar incomes. Both claimedto be experiencing health issues that had affected orwould affect their ability to make a living in the future. They have two adult children and six grandchildren. Ms. Cummings had changedjobs frequently and neverworked long enough for
one employerto establish retirement savings. Mr. Cummings had several retirement accounts, some ofwhich were community property. The value ofMs. Cummings's separate property was minimal, butMr. Cummings had $75,000 worth ofseparate property, much ofit liquid. Duringthe marriage, Mr. Cummings had used his broker's license to purchase rental properties for the couple for investment purposes. They owned five pieces ofreal property at the time oftrial: their home in Cheney, and four rental properties in Spokane,
one ofthem a commercial rental. Theproperties had the following agreed appraised values: Cheney home North Avenue rental Wabash rental Garland rental Dean rental (commercial)

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### $215,000 $115,000 $113,000 $109,000 $140,000No. 33355-8-111 In re Marriage of Cummings
The appraised values reflected the fact thatthe North Avenue rental was in average condition overall butneeded some maintenance and repair, and thatthe Wabash and Garlandproperties were both inpoorrepair. Bothparties asked the courtto award them the family home. One reason Ms. Cummings soughtto be awarded the family home was its proximity to the couples' grandchildren, who Ms. Cummings babysat full time for two orthree years before the trial and continuedto have overto her apartment every weekend. She testified that it was difficult to have her grandchildren and other family visit in her small apartment "plusthe noise level for my neighbors is notvery nice." Report ofProceedings (RP) at 163. Anotherreason she asked to be awarded the family home was because she wanted Mr. Cummings to continue to ownthe rental properties. She testified that owning rentals had been his dream, nothers, and unlike her, he could own and operate themprofitably. She said she knew nothing aboutthe rentals, and because she did not knowhowto manage, maintain, orrepair them, shewould have to hire a property manager or fix them up to sell them ifthey were awardedto her. Mr. Cummings explainedthathe sought an award ofthe family home because he had conducted his appraisal business out ofthe home for the prior eight years and was dependent on its Cheney location for appraisal referrals. Hetestified he had recently lost
a longtime appraisal customer and the only appraisal business he was receiving at the time oftrial was from banks, who choose an appraiserbased onhis orherphysical 3No. 33355-8-III In re Marriage of Cummings
location. He testified he could "[a]bsolutely not" work in other markets the way he did in the Cheney market. RP at 190. Another reason he sought an award ofthe family home
was thathe, too, helped out with and wantedto be close to his grandchildren. The evidence supported this reason, although his involvementwiththe grandchildren had been less extensive than Ms. Cummings's. Following a several day trial, the court announced its property division. Along with other assets not in contention, it awarded the family home andthe Deanproperty to Ms. Cummings and awardedthe otherthree rental properties, Mr. Cummings's retirement accounts, and his separate property to 

### Mr. Cummings. The value ofthe community assets it awarded to Ms. Cummings was $378,131 and the value ofcommunity assets it awardedto Mr. Cummings was $280,048. It chose not to order an equalizationpayment in light ofMr. Cummings's significant separate property. The courtruled that eachparty would bear its own attorney fees. But as a sanction for what it characterized as 

### Mr. Cummings's intransigence in belatedly disclosing certain assets, it ordered him to pay $1,000 ofMs. Cummings's attorney fees and also ordered himto "pay $1,000 to his own counsel," somethingthe court said, "I have never done
... before, but it's clearthatthere was additional workthathadto be done over and above preparing for trialjustto make sense ofa confusingpicture." RP at 366. Mr. Cummings appeals. He has named only Ms. Cummings as a respondent.

4No. 33355-8-111 

### In re Marriage of Cummings
ANALYSIS The issues on appeal are narrow. Mr. Cummings contends the trial court erred by failing to considerthedissolution distribution factors provided by RCW 26.09.080 in awarding the family home and the Deanproperty to Ms. Cummings. He argues that the courtrelied instead on an improper factor: which ofthe two had a strongerrelationship with their grandchildren. He also assigns errorto the $1,000 sanction in favor ofhis trial lawyer. 

### Sanction The sanction can be summarily addressed. While the court's oral imposition of the sanction in favor ofMr. Cummings's own lawyer was ambiguous, the written findings and conclusions entered by the court state that "[t]heparties shall be responsible for the payment ofthe attorney fees and costs each ofthem incurred in this dissolution action 

### that are in excess of the $1,000Mr. Cummings is requiredtopayto each attorney." CP at 59 (emphasis added). 1 It appears from this that Mr. Cummings was not ordered to pay his trial lawyer anything more than he owedthe lawyerundertheir fee agreement. IfMr. Cummings nonetheless claims to be aggrieved, his dispute is with his trial lawyer, notwith Ms. Cummings.

1We note that Mr. Cummings's appellate lawyer is not the lawyer who tried the case and in whose favor the sanction was entered. 5

### No. 33355-8-111 In re Marriage of Cummings Property distribution In a marriage dissolutionproceeding, all ofthe parties' property is before the court for distribution and the court's objective is to divide and distribute it "as shall appearjust and equitable." RCW 26.09.080; Farmer v. Farmer, 172 Wn.2d 616, 625, 259 P.3d 256 (2011). 

### In disposing ofthe parties' property and liabilities, the court, by statute, "shall, without regard to misconduct, make such disposition
... as shall appearjust and equitable after consideringall relevant factors." RCW 26.09.080 (emphasis added). Relevant factors include, but are not limited to:

Id. (1) The nature and extent ofthe community property; (2) The nature and extent ofthe separate property; (3) The duration ofthe marriage or domestic partnership; and (4) The economic circumstances ofeach spouse or domestic partner at the time the division ofproperty is to become effective, including the desirability ofawarding the family home or the right to live therein for reasonable periods to a spouse or domestic partner with whomthe children reside the majority ofthe time.

A trial court's distribution ofproperty will not be overturned on appeal absent a manifest abuse ofdiscretion. In re Marriage of Rockwell, 141 Wn. App. 235, 242-43, 170 P.3d 572 (2007); In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989). This is because the trial court is in the bestposition to assess the assets and liabilities ofthe parties and determine what constitutes an equitable outcome. In re Marriage of Brewer, 137 Wn.2d 756,769,976 P.2d 102 (1999).

6No. 33355-8-111 

### In re Marriage of Cummings
We reject Mr. Cummings's suggestionthat one orbothparties' emotional attachmentto the family home is irrelevant when a trial court decides how to dispose ofit in a dissolution proceeding. The fact that the home is near family members for whom a personprovides care is a relevant consideration. The fact that it is easierto care for grandchildren or entertain extended family in a house than a small apartment canbe relevant. One reason Mr. Cummings expressed a desire to be awardedthe family home
was because ofits proximity to the couple's children, bothbecause he wanted to help out with his grandchildren and because his son mightjoinhim in business in the future. These sorts ofreasons for seeking award ofa home may be relatively unimportant in many cases, but all ofthem are relevant. None was improperly considered by the court. Mr. Cummings argues thatthe trial court awardedthe family home and Dean property without consideringthe four factors relevantto ajustand equitable division of property that are explicitly identified in RCW 26.09.080. The court's written findings and conclusions make no formal findings on those factors, butneitherthe statute nor case law requires formal findings. It must only be evident from the record thatthe trial court actually considered all relevant factors. 

### In re Marriage of Steadman, 63 Wn. App. 523, 526, 821 P.2d 59 (1991). The record, for that purpose, includes the court's oral decision and its written findings offact. 

### In re Marriage of Rink, 18 Wn. App. 549, 554, 571 P.2d 210 (1977); 

### cfJohnson v. 

### Whitman, 1 Wn. App. 540,463 P.2d 207 (1969) (oral decision consistent with findings and conclusions may be usedto interpret them). 7No. 33355-8-III 

### In re Marriage of Cummings
Aftertaking theparties' dissolution disputes under advisement for several days following presentation oftheir evidence and argument, the trial court reconvenedthe parties to orally announce its decision. It explained at length its findings on contested matters and its decisions on Ms. Cummings's request for maintenance, theparties' requests for awards ofattorney fees, the property distribution, andwhetherto order an equalizingpayment. Woventhroughthe court's announcement ofits findings and conclusions onthese issues were the matters ithad considered. It is clear it considered the four specific factors identified by RCW 26.09.080. As to "the nature and extent ofthe community property" and "the nature and extent ofthe separate property," the factors identified by RCW 26.09.080(1) and (2), the court engaged in a completereview ofthe parties' assets and liabilities, identifying and placing values onthose that were community andthose thatwere separate. It also explicitly stated, "The Court considered the nature and extent ofthe real andpersonal property, the majority ofwhichwas community property." RP at 367-68. Finally, both orally and in its written findings it explained that it was not ordering an equalization paymentbecause ofthe substantial amount ofMr. Cummings's separateproperty relative to the community assets. As to "the duration ofthe marriage," the factor identified by RCW 26.09.080(3), the court stated, "The marriage is a 34-yearmarriage, and underthose circumstances is

8No. 33355-8-111 In re Marriage of Cummings 

### expected to accumulate much in the way ofcommunity property, and this community did so." RP at 368. 

### "The economic circumstances ofeachparty at the time ofdivision," the factor identified by RCW 26.09.080(4), 

### received extensive attention in the court's oral ruling. The court recounted the parties' education and work histories in detail. It

### noted that Ms. Cummings had no retirement assets. It

### observed, "The economic circumstances ofeach ofthe spouses at the time oftrial indicated they were both fully employable. Again, at age 58, 

### they were in great careers thathad economic potential with lots ofgreat experience withjustthe minor diminishing, as the Courthas indicatedbefore." RP at 368. 

### The court noted thatMs. Cummings had received temporary maintenance prior to trial and reviewed the evidence the parties hadpresented as to their monthly expenses and the attorney fees they had incurred. It

### noted Mr. 

### Cummings's testimony that he had lost a major account and stated, "accordingto [Mr. Cummings's] testimony," that "[h]is income capacity did appear to be somewhat diminishing and his health was slightly declining at the time oftrial." RP at 366. 

### The court expressed its view that Mr. Cummings "was going to have to branch out geographically." RP at 369. 

### Afterreviewing these statutory factors, together with bothparties' testimony about wanting to be awarded the family home to be close to their grandchildren (which we have already found to be a relevant consideration) the court stated, "The factors, then, as the

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### No. 33355-8-111 In re Marriage of Cummings
Courthas analyzed them above result in the following distribution." 

### RP at 

### 369. It then proceededto explain how it was dividing the parties' assets and liabilities. Reviewing the trial court's oral decision as a whole, it is apparent that several things contributed to its decision to award the family home and Dean property to Ms. Cummings. The court observed that ifMs. Cummings were no longer paying rent, then her income could cover her expenses. It observed that Mr. Cummings "was managing the acquisition and operations ofseveral rental properties, hiring a contractor for repairs and maintenance," and that while he had assistance from Ms. Cummings with some financial matters, "the management ofthese properties were under his general financial direction." 

### RP at 

### 367. It considered both parties' expressed wish to be awarded the family home to be near the grandchildren and made the observation, supportedby the evidence, that "Husband's caring for grandchildren was a very recent vintage based on his work flexibility. However, I didn't see an overall history ofprofound and consistent involvement as was the case with the wife." 

### RP at 

### 368. While Mr. Cummings does not agree, the court expressed its view that Mr. Cummings would need to address his declining appraisal referrals by "branch[ing] out geographically." 

### RP at 

### 369. Finally, the court explained that it awarded the Dean property to the wife because it was the most stable ofthe rental properties given its long term tenant, and thereby one she could manage. 

### It also explained the award ofthe Deanproperty as a way ofadjusting for the fact that Ms. Cummings did not have retirement assets, while Mr. Cummings did. 

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### It is thus clearthat Mr. 

### Cummings's characterization ofthe trial court'sreason for awarding the family home to his ex-wife-that "Mr. 

### Cummings had not created as good a relationship with the grandchildren as Ms. Cummings," Reply Br. at 10--is a gross and unfair simplification. No abuse ofdiscretion in awarding the properties has been shown. Attorney fees Ms. Cummings requests attorney fees on appeal on three bases: Mr. Cummings's intransigence, that the appeal is frivolous, and her need. Intransigence is a basis for awarding fees on appeal. In re Marriage of Mattson, 95 Wn. App. 592, 605, 976 P.2d 157 (1999). "Intransigence includes foot dragging and obstruction, filing repeated unnecessary motions," or making a proceeding unduly difficult and costly. In re Marriage of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006). "[A] party's intransigence in the trial court can also support an award ofattorney fees on appeal." Mattson, 95 Wn. App. at 606. Ms. Cummings does not demonstrate any intransigence on appeal and Mr. Cummings's earlier intransigence has not affected this appeal, given the narrowly framed assignments oferror. "An appeal is frivolous ifthe
... court is convinced that [it] presents no debatable issues upon which reasonable minds could differ and is so lacking in merit that there is no possibility ofreversal." In re Marriage of Foley, 84 Wn. App. 839,847,930P.2d 929 (1997). We do not find the appeal to be frivolous.

11No. 33355-8-111 In re Marriage of Cummings Finally, we may award fees on appeal under RCW 26.09.140 after considering the financial resources ofbothparties. In re Marriage of Kile & Kendall, 186 Wn. App. 864, 888, 347 P.3d 894 (2015). Having considered the financial affidavits as to Ms. Cummings's need and the trial record as to Mr. Cummings's ability to pay, we decline to award fees underthe statute. Affirmed. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040. 

# J;'clh

# CV~,}- Siddoway, J. WE CONCUR:

Pennell, J.

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