IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of the Marriage of

BEVERLY SEVIGNY,

Respondent/Cross Appellant,

and

MICHAEL G. SEVIGNY,

Appellant/Cross Respondent.

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No. 36393-7-III 

ORDER GRANTING MOTION 

FOR RECONSIDERATION, 

WITHDRAWING OPINION, 

AND SUBSTITUTING 

OPINION

Respondent, Beverly Sevigny, filed a motion for reconsideration on May 11, 2020 

of the opinion filed in the above matter on April 21, 2020. Appellant, Michael Sevigny, 

has filed a response to respondent’s motion. The court has determined that respondent’s 

motion for reconsideration should be granted, the opinion should be withdrawn and a 

substitute opinion be filed. Now, therefore, it is hereby 

ORDERED that respondent’s motion for reconsideration is granted. It is further

ORDERED that the opinion filed on April 21, 2020, is withdrawn and a substitute 

opinion be filed.

PANEL: Andrus, Lawrence-Berrey, Pennell

FOR THE COURT:

___________________________________

REBECCA PENNELL

Chief Judge

FILED

JUNE 16, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of the Marriage of

BEVERLY SEVIGNY,

Respondent/Cross Appellant,

and

MICHAEL G. SEVIGNY,

Appellant/Cross Respondent.

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No. 36393-7-III

UNPUBLISHED OPINION

ANDRUS, J. — After 33 years of marriage, Beverly and Michael Sevigny 

separated, and two years later, Beverly1filed for divorce. The trial court awarded 

Michael the marital community’s interest in two ongoing businesses, a construction 

company and a real estate investment limited liability company (the “LLC”), that 

Michael and his oldest son started during the marriage and continued to manage 

after the parties’ separation. Michael challenges the trial court’s valuation of the 

LLC, arguing it was inappropriate to include real estate investments the LLC 

acquired after separation. Michael contends this error led to an excessive transfer 

 

1 Because the parties share the same last name, we use their first names for 

clarity. No disrespect is intended.

FILED

JUNE 16, 2020

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 36393-7-III

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payment of $707,485 to Beverly, an amount he argues is an unfair and inequitable 

distribution of community and separate property. Finally, Michael maintains that, 

in light of the large property award Beverly received, the trial court abused its 

discretion in ordering him to pay her maintenance of $6,500 a month for 10 years. 

Beverly cross appeals the trial court’s determination that her judgment against 

Michael will accrue interest at 4 percent.

We affirm the trial court’s characterization of the couple’s property, the 

property distribution, and the post-judgment interest rate. We reverse the award of 

maintenance and remand for reconsideration of the amount awarded.

FACTS

Michael and Beverly married in 1979. Beverly briefly worked in retail 

before becoming a full-time, stay-at-home mother after their first child was born. 

In 1995, when their youngest child was in first grade, Beverly became a part-time 

substitute teacher, and five years later, she began working as a full-time 

paraprofessional, helping in the classroom with students. She also worked as a 

secretary for the school district. 

Michael worked construction in his father’s business until 2007, when he and 

his oldest son, Matthew, started their own construction company, M. Sevigny 

Construction Inc. In mid-2012, Michael and Matthew formed 16th Avenue 

Properties LLC (the “LLC”) as equal partners and began acquiring incomeproducing real estate. 
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Michael and Beverly separated in February 2013, and Beverly filed for 

divorce in 2015. After a bench trial, the trial court divided $2.1 million in net assets 

as follows: Beverly received the family home in Zillah, a Hawaii timeshare, a 

vehicle, specific household goods, various bank accounts, deferred compensation 

accounts, and the parties’ IRA accounts and life insurance policies. The trial court 

valued these assets at $572,911. 

Michael received the community’s 50 percent interest in M. Sevigny 

Construction, valued at $775,000, and its 50 percent interest in the LLC, valued at 

$341,332. Michael also received the family’s vacation cabin in Yakima, valued at 

$200,000. Finally, the court deemed two distributions Michael had received from 

the LLC in 2016 and 2017, totaling $240,000 after taxes, as predistributions of 

community assets. The total value of these assets was $1,561,082. 

The trial court adopted Michael’s recommended asset split of 60/40, favoring 

Beverly. The result was a final distribution to Michael of $853,597 and to Beverly 

of $1,280,396. To effectuate this division of assets, the court required Michael to 

make a transfer payment of $707,485 to Beverly. The trial court entered a judgment 

against Michael for this amount, plus an additional $10,000 in fees awarded to 

Beverly, and set the interest rate on the judgment at 4 percent per annum. In 

addition, the court awarded Beverly spousal maintenance of $6,500 a month until 

her 70th birthday. 
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Michael appeals, raising three main challenges to the trial court’s division of 

assets. First, he argues the trial court erred in characterizing the LLC and the 

income-producing real estate the LLC purchased after the parties’ separation as 

community property. He further argues the trial court erred in awarding Beverly 

any portion of the LLC’s post-separation acquisitions. Second, he maintains the 

trial court erred in valuing the LLC as of the date of trial, rather than the date of 

separation. Finally, he contends the maintenance award is unjust and inequitable in 

light of the large transfer payment and the fact that Beverly received all the liquid 

assets in the divorce. He asserts that he is unable to pay Beverly $6,500 each month, 

fulfill his own obligations, and satisfy the money judgment. 

ANALYSIS

Characterization of the LLC as Community Property

Michael assigns error to the trial court’s characterization of the LLC as 

community property. Because Michael formed and capitalized the LLC before the 

couple separated, the trial court did not err in concluding Michael’s interest in the 

LLC was community property.

Under RCW 26.09.080, in any dissolution proceeding, the court must dispose 

of the parties’ property and liabilities, whether community or separate, as is just and 

equitable. In performing its obligation to make a just and equitable distribution of 

property, the trial court must characterize the property as either community or 

separate. In re Marriage of Kile, 186 Wn. App. 864, 875, 347 P.3d 894 (2015).
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“Property is characterized as of the date of its acquisition.” In re Marriage 

of Sedlock, 69 Wn. App. 484, 506, 849 P.2d 1243 (1993). “The test of character is 

‘whether it was acquired by community funds and community credit, or separate 

funds and the issues and profits thereof.’” Id. (internal quotation marks omitted)

(quoting Katterhagen v. Meister, 75 Wash. 112, 115, 134 P. 673 (1913)). “A trial 

court’s characterization of property as separate or community presents a mixed 

question of law and fact.” Kile, 186 Wn. App. at 876. The time and method of 

acquisition are questions for the trier of fact. Id. We review the factual findings 

supporting a trial court’s characterization for substantial evidence. Id. “‘Substantial 

evidence exists if the record contains evidence of sufficient quantity to persuade a 

fair-minded, rational person of the truth of the declared premise.’” In re Marriage 

of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002) (quoting Bering v. 

SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986)). The ultimate characterization 

of the property as community or separate based on the trial court’s findings of fact 

is a question of law that we review de novo. Kile, 186 Wn. App. at 876.

The LLC was formed and capitalized during the marriage. Michael testified 

he and Matthew started the LLC sometime in 2012 and each owns a 50 percent share 

of that entity. The 2012 tax return for the LLC identified the date of business 

formation as June 26, 2012. The LLC’s assets on the date of formation were a 
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commercial building located at 1212 N. 16th Avenue, in Yakima, Washington2 with 

a cost basis of $544,250, and a separate parcel of land valued at $429,660. There is 

no evidence in the record as to the source of funds Michael and Matthew used to 

capitalize the LLC or to purchase these two initial assets.

The LLC then acquired a parcel in Yakima with three rental houses located 

at 1607, 1611, and 1703 River Road on December 11, 2012.3 The LLC’s 2013 tax 

return identified the cost basis of this parcel as $378,744. This acquisition also 

occurred during the marriage. Again, Michael presented no evidence as to the 

source of funds he and Matthew used to make this acquisition.

Finally, Michael admitted Beverly had a 25 percent ownership interest in the

LLC, stating, “I’ve never disputed that.” Beverly testified she and Michael planned 

to use the purchase of these properties as their retirement plan to compensate them 

over and above their wages. She also testified that she was asked to sign sale 

documents every time the LLC purchased or changed properties because she was 

part of that company. This evidence supports the trial court’s conclusion that the 

marital community’s 50 percent interest in the LLC was community property.

Valuation of the LLC Including Post-Separation Acquisitions

Michael next argues the trial court erred in valuing the LLC as of the date of 

trial, rather than the date of separation. He contends the LLC acquired several 

 

2 The LLC held this property at the time of trial, where it was identified in 

Steve Korn’s appraisal report, obtained by Beverly, as Parcel 1. 

3 The appraisal identified the River Road property as Parcel 3. 
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parcels of real estate after the couple’s separation, emphasizing the trial court’s

finding that “the parties stopped acquiring community property and incurring 

community debt” when they separated in February 2013. He maintains the 

appreciation in the LLC’s value should have been characterized as his separate 

property under RCW 26.16.140. We reject this argument because Michael did not 

prove he used separate property to enhance the value of the LLC.

All property acquired during marriage is presumptively community property. 

RCW 26.16.030; Kile, 186 Wn. App. at 876. “The burden of rebutting this 

presumption is on the party challenging the asset’s community property status, and 

[the presumption] ‘can be overcome only by clear and convincing proof that the 

transaction falls within the scope of a separate property exception.’” Dean v. 

Lehman, 143 Wn.2d 12, 19-20, 18 P.3d 523 (2001) (citation omitted) (quoting 

Estate of Madsen v. Commissioner, 97 Wn.2d 792, 796, 650 P.2d 196 (1982),

overruled in part on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 

652, 659-60, 689 P.2d 46 (1984)). RCW 26.16.140 provides one such exception:

when spouses are living separate and apart, their respective earnings and 

accumulations shall be their separate property. 

After Michael and Beverly separated in February 2013, the LLC bought and 

sold several parcels of real estate. In July 2013, the LLC purchased property located 

at 503 S. Elm Street in Toppenish, Washington for $337,000. According to Beverly, 

the LLC later sold this parcel for $500,000. 
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In September 2013, the LLC acquired commercial property located at 1928 

Rudkin Road, in Union Gap, Washington, for $1.2 million.4 Then in November 

2014, the LLC purchased commercial property located at 1177 W. Lincoln Avenue, 

in Yakima, for $594,377.5 And at the time of trial, the LLC also owned a piece of 

undeveloped land at 1725 River Road in Yakima, although the record does not 

indicate when it was acquired or its purchase price.6

Michael had the burden of proving by clear and convincing evidence that the 

LLC’s acquisitions involved an investment of his separate property. Sedlock, 69 

Wn. App. at 509; see also In re Marriage of Schwarz, 192 Wn. App. 180, 189, 368 

P.3d 173 (2016). While Michael is correct that RCW 26.16.140 characterizes 

earnings and assets accumulated after separation as separate property, he produced 

no evidence that he used his separate earnings to purchase any of real estate the LLC 

holds. 

The requirement of clear and satisfactory evidence is not met by the 

mere self-serving declaration of the spouse claiming the property in 

question that he acquired it from separate funds and a showing that 

separate funds were available for that purpose. Separate funds used 

for such a purpose should be traced with some degree of particularity. 

 

4 The appraisal identified the Rudkin Road property as Parcel 5. 

5 The appraisal identified the Lincoln Avenue property as Parcel 4. 

6 The appraisal identified this undeveloped land as Parcel 2. 
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Berol v. Berol, 37 Wn.2d 380, 382, 223 P.2d 1055 (1950). Michael did no tracing 

to establish that he used separate funds to acquire any of the properties the LLC 

purchased after separation and, thus, failed to meet his burden of proof.

Moreover, throughout their separation, Michael and Beverly filed joint tax 

returns declaring income from the LLC as community income. In the tax years 2013 

through 2016, the marital community reported income from the LLC of $15,252, 

$93,310, $81,960, and $140,760, respectively. Michael and Beverly both treated 

the LLC as a community asset and the income generated from properties the LLC 

purchased both before and after separation as community income.

We further conclude the trial court did not abuse its discretion in valuing the 

LLC as of the date of trial, rather than the date of separation. The dissolution statutes 

give courts broad discretion to pick a valuation date that is equitable. Lucker v. 

Lucker, 71 Wn.2d 165, 167, 426 P.2d 981 (1967). Choosing to value a community

asset on the date of trial, rather than the date of separation, is not an abuse of 

discretion. Koher v. Morgan, 93 Wn. App. 398, 405, 968 P.2d 920 (1998). 

Beverly presented expert testimony from real estate appraiser Steve Korn as 

to the value of the LLC’s assets as of February 2017, some four years after 

separation and one year before trial. The appraisal identified six parcels in which 

the LLC held an ownership interest: Parcel 1 and Parcel 3, properties purchased 

before separation, and Parcels 2 and 4 through 6, properties in which the LLC 

obtained an interest after separation. 
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Michael presented no expert testimony regarding the value of the LLC on the

date of separation. Instead, he testified he believed the community interest in the 

LLC as of December 2012, and therefore at the time of separation, was $153,228. 

It appears he pulled this number from the LLC’s 2012 tax return identifying the 

value of each partner’s capital account. But Michael did not explain why his 

valuation approach was preferable or a more reliable method of valuing the LLC 

than Korn’s appraisal.

The trial court chose to adopt Korn’s valuation. It found the community 

interest in the real estate held by the LLC had a value, as of the appraisal date, of 

$2,355,250. After subtracting the outstanding debt of $2,013,918, the court found 

the LLC business had a net value to the community of $341,332. 

We cannot conclude the trial court abused its discretion in valuing the marital 

community’s interest in the LLC as of February 2017 rather than December 2012. 

There is no evidence showing Michael invested any post-separation earnings to 

enable the LLC to acquire any of the three parcels it purchased after February 2013. 

And it is also unclear whether the LLC used rental income from parcels it acquired 

before the parties’ separation to buy parcels post-separation. Although Michael 

testified he could produce paperwork to demonstrate he had used post-separation 

earnings, he failed to present any such evidence. 

Michael relies on In re Marriage of Elam, 97 Wn.2d 811, 650 P.2d 213 

(1982), for the proposition that the marital community cannot share in the increase 
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in value of separate property unless community funds or “efforts” went into 

increasing the value of that property. But the LLC was community property, not 

Michael’s separate property, as Michael admitted at trial. And Michael presented 

no evidence at trial to establish that the LLC increased in value because of his 

investment of separate funds or his separate efforts after the parties separated. Thus, 

Elam is of no assistance to him here.

Under these circumstances, the trial court did not err in concluding that 

Michael’s 50 percent interest in the LLC was community property, as was any 

appreciation in value to that interest based on the acquisition of properties after 

separation.

Property Division

Next, Michael contends the trial court erred in awarding Beverly a 

disproportionate share of the parties’ property.7 Trial courts have broad discretion 

in dividing parties’ property in a dissolution, and we will disturb a distribution of 

property only if the trial court manifestly abuses its discretion. In re Marriage of 

Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999); see also In re Marriage of 

Rockwell, 141 Wn. App. 235, 242-43, 170 P.3d 572 (2007). A trial court’s decision 

 

7 Michael also contends the property division should be reversed because it 

was influenced in part by Beverly’s intimation that Michael was living with another 

woman. There is absolutely nothing in the record or the trial court’s ruling to 

support this argument. Michael’s living arrangements became relevant when he 

contested Beverly’s request for spousal maintenance, claiming he could not afford 

to pay it. The court correctly needed to assess Michael’s ability to pay maintenance,

and this analysis made his monthly living expenses relevant.
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is manifestly unreasonable if it is outside the range of acceptable choices 

considering the facts and applicable legal standard, is unsupported factually by the 

record, or is based on an incorrect legal standard. In re Parenting & Support of 

L.H., 198 Wn. App. 190, 194, 391 P.3d 490 (2016). 

All of the parties’ property, both community and separate, is before the trial 

court for distribution. In re Marriage of Shannon, 55 Wn. App. 137, 141, 777 P.2d 

8 (1989). And the trial court’s characterization of property as either community or 

separate is not controlling. Id. Instead, the trial court must ensure the final division 

is fair, just and equitable under all the circumstances. In re Marriage of Groves, 10 

Wn. App. 2d 249, 254, 447 P.3d 643 (2019), review denied, 195 Wn.2d 1005, 458 

P.3d 781 (2020). 

In dividing property, the trial court must consider: (1) the nature and extent 

of the community property, (2) the nature and extent of the separate property, (3) the 

duration of the marriage, and (4) the economic circumstances of each spouse at the 

time the division of property is to become effective. RCW 26.09.080; Groves, 10 

Wn. App. 2d at 254. No factor is afforded greater weight than any other. In re 

Marriage of Konzen, 103 Wn.2d 470, 478, 693 P.2d 97 (1985). Other relevant 

factors include “the health and ages of the parties, their prospects for future earnings, 

their education and employment histories, their necessities and financial abilities, 

their foreseeable future acquisitions and obligations, and whether ownership of the 
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property is attributable to the inheritance or efforts of one or both spouses.” In re 

Marriage of Gillespie, 89 Wn. App. 390, 399, 948 P.2d 1338 (1997). 

A trial court is not required to divide community property equally. Rockwell, 

141 Wn. App. at 243. In a long-term marriage, “the trial court’s objective is to place 

the parties in roughly equal financial positions for the rest of their lives.” Id. “‘[T]he 

trial court must ensure that the final division of property is fair, just and equitable 

under all the circumstances.’” Groves, 10 Wn. App. 2d at 254 (internal quotation 

marks omitted) (quoting In re Marriage of Olivares, 69 Wn. App. 324, 329, 848 

P.2d 1281 (1993)). Furthermore, this is a highly deferential standard, and Michael, 

as the spouse challenging the decision, “‘bears the heavy burden of showing a 

manifest abuse of discretion.’” Id. at 255 (quoting In re Marriage of Landry, 103 

Wn.2d 807, 809, 699 P.2d 214 (1985)).

Michael argues that under In re Marriage of Doneen, 197 Wn. App. 941, 391 

P.3d 594 (2017), and In re Marriage of Kaplan, 4 Wn. App. 2d 466, 421 P.3d 1046 

(2018), there is no mandate of lifetime equal financial circumstances for ex-spouses 

of long-term marriages. He contends the trial court, in an attempt to provide this 

financial security for Beverly, settled on a property division that was unfair to him. 

But neither case supports the proposition that it is an abuse of discretion to award 

60 percent of a couple’s assets to the more economically disadvantaged spouse in a 

long-term marriage. Rather, the courts reaffirmed the proposition that trial courts 

must exercise their discretion in considering the statutory factors of RCW 26.09.080 
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in reaching a “fair, just and equitable division of property.” Kaplan, 4 Wn. App. 2d 

at 475-76; Doneen, 197 Wn. App. at 948-51.

Substantial evidence supports the trial court’s property distribution. Michael 

and Beverly had been married more than 33 years. Beverly did not finish college 

because she married Michael and remained out of the workforce to raise their five 

children. Both parties were 60 at the time of trial and in good health. The parties 

had very disparate earnings histories. Beverly, working as a paraprofessional and 

secretary for the local school district, earned between $15 per hour and $17 per hour 

in the two positions. The trial court found that her gross wages in 2017 were 

$26,530. Given Beverly’s lack of a college degree, it was reasonable for the trial 

court to assume her prospects for any substantial wage increases before she reaches 

retirement age are low.

Michael did not produce any income documentation for 2017, but the 2016 

corporate tax return indicated Michael received a salary of $86,320 from his 

construction company that year, and he testified his salary in 2017 was about the 

same as in 2016. In addition, the LLC’s Schedule K-1 reflected a $150,000 

distribution to Michael, and he testified he expected a similar distribution in 2017. 

Thus, by awarding Michael the LLC, it was reasonable for the trial court to conclude 

that Michael’s annual income would likely exceed $200,000 compared to Beverly’s 

$26,530. And the financial documents showed a strong history of profitability both 

for the construction company and the LLC, making it likely that Michael would 
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continue to receive the same level of earnings into the foreseeable future. Finally, 

Michael proposed a 60/40 split with Beverly obtaining the larger share of the marital 

estate. 

The court awarded the family home to Beverly and the vacation cabin to 

Michael. It awarded the IRAs, bank accounts, and life insurance policies to Beverly. 

It awarded the marital community’s interest in the two businesses to Michael. 

Because Michael received the two assets with the highest values—the construction 

company and the LLC—the only way to achieve an equal property division was to 

require a transfer payment from Michael to Beverly. Given the significant disparity 

in the parties’ ability to generate income in the future, the award of incomeproducing property to Michael, and Michael’s request for a 60/40 split in favor of 

Beverly, we cannot conclude that a 60 percent award to Beverly was an abuse of 

discretion.

Maintenance

Michael next assigns error to the trial court’s award of spousal maintenance. 

Michael argues the trial court failed to consider the property awarded to Beverly in 

assessing her need for maintenance and failed to take into account Michael’s 

obligation to pay Beverly $707,000 when evaluating his ability to pay. 

RCW 26.09.090 outlines a nonexclusive list of factors the court should 

consider in determining whether to order maintenance and in what amount:
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(a) The financial resources of the party seeking maintenance, 

including separate or community property apportioned to him or her, 

and his or her ability to meet his or her needs independently . . . ;

(b) The time necessary to acquire sufficient education or training to 

enable the party seeking maintenance to find employment appropriate 

to his or her skill, interests, style of life, and other attendant 

circumstances;

(c) The standard of living established during the marriage . . . ;

(d) The duration of the marriage . . . ;

(e) The age, physical and emotional condition, and financial 

obligations of the spouse . . . seeking maintenance; and

(f) The ability of the spouse . . . from whom maintenance is sought to 

meet his or her needs and financial obligations while meeting those of 

the spouse . . . seeking maintenance.

In a long term marriage, maintenance can help equalize the post-dissolution 

standard of living of the parties, particularly where the superior earning capacity of 

one spouse is one of the few assets of the community. In re Marriage of Sheffer, 60 

Wn. App. 51, 57, 802 P.2d 817 (1990). 

At trial, Beverly sought maintenance of 50 percent of their combined 

incomes for the remainder of her life. Michael paid Beverly $3,000 a month in 

support after they separated in February 2013 until the date of trial. He asked the 

trial court to reduce that amount to $2,500 and to require him to pay maintenance 

for no more than five years. The trial court found that Beverly was in need of 

maintenance and that Michael had the ability to pay it. It then determined the 

couple’s net combined income was $16,534. It appears the court divided the 
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couple’s total net income in two and awarded Beverly a sufficient amount of 

maintenance to ensure she received 50 percent of the couple’s total net earnings.8 

This court reviews an award of spousal maintenance for an abuse of 

discretion. In re Marriage of Zahm, 138 Wn.2d 213, 226, 978 P.2d 498 (1999). An 

abuse of discretion exists only if the trial court bases its award of maintenance on 

untenable grounds or for untenable reasons. In re Marriage of Wright, 78 Wn. App. 

230, 237, 896 P.2d 735 (1995). A paramount concern is the economic position in 

which a dissolution decree leaves the parties. In re Marriage of Washburn, 101 

Wn.2d 168, 181, 677 P.2d 152 (1984).

The record supports the trial court’s finding that Beverly has a need for 

maintenance. She testified to monthly expenses of approximately $3,000 and only 

$1,701 in earnings to cover those expenses. And the record supports Michael’s 

ability to pay $6,500 in maintenance to Beverly if the court considered only

Michael’s personal living expenses. He has monthly expenses of $5,000. After 

paying maintenance and his monthly expenses, Michael would have approximately 

$3,300 in disposable income.

But the record does not support a finding that he has the ability to pay both 

the $707,000 judgment entered against him and this level of maintenance at the 

same time. RCW 26.09.090(1)(f) requires the court to consider not only the 

 

8 Total net income of $16,534, divided by two is $8,267. Subtracting

Beverly’s net income of $1,701 results in $6,566.
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spouse’s ability to meet his own needs but also his ability to meet his other “financial 

obligations” while paying spousal maintenance. As Michael indicated, he was 

awarded interests in two income-generating companies but none of the parties’ 

liquid assets. In order to pay the $707,000 judgment, Michael would have to either

use a substantial portion of his earnings, sell his interests in his businesses, or 

convince his son to sell real estate held by the LLC. But Michael’s interest in the 

LLC was valued at under $350,000, and even if the LLC sold all of the properties it 

held, it would not cover the judgment Michael owes to Beverly. And Michael’s 

main source of income would disappear. He would no longer have an adequate 

monthly income to pay the $6,500 in maintenance.

Even if the LLC sold one or more properties to assist Michael in paying off 

some, but not all, of Beverly’s judgment, it would still negatively affect his total 

income, making the court’s 50/50 split of total net income unfair. It is unclear from 

this record whether the trial court fairly assessed this issue. Its failure to give fair 

consideration to RCW 26.09.090(1)(f), or to make findings to support a 

determination that Michael can both service his debt to Beverly without a significant 

loss of income and afford to pay $6,500 a month in maintenance is an abuse of 

discretion. See In re Marriage of Mathews, 70 Wn. App. 116, 123-25, 853 P.2d 462 

(1993) (reversing maintenance award and remanding for trial court to reconsider 

factors to ensure obligor had ability to meet own expenses in addition to financial 

obligations imposed by court).
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For this reason, we reverse the maintenance award and remand to the trial 

court with directions to consider maintenance in light of the monetary judgment 

Michael owes to Beverly and his ability to simultaneously pay off that judgment 

and pay reasonable maintenance.

Post-Judgment Interest

Beverly argues the trial court erred by imposing only a four percent interest 

rate on the equalizing payment and attorney fee judgment. We reject this argument. 

We review a trial court’s decision setting the interest rate on a judgment for 

an abuse of discretion. In re Marriage of Knight, 75 Wn. App. 721, 731, 880 P.2d 

71 (1994). Trial courts must enter judgments in compliance with RCW 4.56.110, 

which requires interest on judgments to accrue at the maximum rate permitted under 

RCW 19.52.020—12 percent. In re Marriage of Harrington, 85 Wn. App. 613, 

630-31, 935 P.2d 1357 (1997). “Although the trial court has discretion to reduce 

the rate of interest on deferred payments under a property distribution decree, the 

court abuses its discretion if it fixes an interest rate below the statutory rate without 

setting forth adequate reasons for the reduction.” Id. at 631 (citations omitted). 

“‘Failure to do so constitutes error meriting remand for correction of the judgment’s 

interest rate to the statutory rate.’” Id. (quoting Knight, 75 Wn. App. at 731). 

Michael asked the court to set the interest on any monetary judgment at 3 or 

3.5 percent given the size of the judgment and the monthly maintenance he had to 

pay. Beverly requested the 12 percent statutory rate because Michael’s businesses 
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were so profitable. The trial court stated, “I’m going to set the interest rate at 4 

percent. That’s reasonable under the circumstances given the uneven distribution 

as well as the . . . maintenance.” 

Beverly argues the trial court’s reference to the disproportionate property 

division and maintenance is an insufficient justification for a reduced interest rate. 

We disagree. The trial court found persuasive Michael’s argument that setting postjudgment interest at 12 percent would impose too great of a financial burden on him 

given the amount of judgment and maintenance. This is an adequate reason to 

depart from the statutory post-judgment interest rate.

Beverly also argues the low interest rate creates a disincentive for Michael to 

pay the judgment. But Beverly relies on evidence outside the trial court record to 

make this argument. There is nothing in the record before the trial court to 

substantiate this assertion.

Moreover, Beverly has methods under the law for collecting the judgment, 

even if Michael refuses to pay. She has the right to initiate collection proceedings 

through which she can garnish wages or proceeds he may hold in bank accounts, or 

attach and sell other assets. See chapter 6.25 RCW (attachment); chapter 6.27 RCW 

(garnishment); chapter 6.32 RCW (supplemental proceedings against judgment 

debtor). She is not without a legal remedy here. Because the trial court provided 

an adequate reason for reducing the interest rate, we conclude the trial court did not 

abuse its discretion by reducing the interest rate to four percent.
No. 36393-7-III

In re Marriage of Sevigny

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AFFIRMED in part; REVERSED in part, and REMANDED for 

reconsideration of maintenance in a manner consistent with this opinion.9

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to 

RCW 2.06.040.

Andrus, J.

WE CONCUR:

_________________________________

Lawrence-Berrey, J.

_________________________________

Pennell, C.J.

 

9 Beverly has requested an award of attorney fees and costs as allowed by 

RAP 18.1 and RCW 26.09.140. RCW 26.09.140 provides, “Upon any appeal, the 

appellate court may, in its discretion, order a party to pay for the cost to the other 

party of maintaining the appeal and attorney's fees in addition to statutory 

costs.” “A party to a dissolution action is not entitled to attorney fees as a matter of 

right.” In re Marriage of Harrington, 85 Wn. App. 613, 635, 935 P.2d 1357 (1997), 

as amended on reconsideration (May 5, 1997). In addition, when deciding whether 

to award attorney fees, we must balance Beverly’s needs against Michael’s ability 

to pay. Id. Because we remand for reconsideration of the maintenance award based 

on Michael’s ability to meet his financial obligations and otherwise affirm the trial 

court, we exercise our discretion under RCW 26.09.140 and deny Beverly’s request 

for attorney fees on appeal.