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IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON
Inthe Matter ofthe Marriage of: AMANDA J. HALLIGAN, Respondent,
and JOHN K. HALLIGAN, Appellant. No. 71391-4-1

DIVISION ONE

UNPUBLISHED OPINION FILED: June 15, 2015


### Lau, J. —John Halligan appeals from afinal dissolution decree. He contends that the trial court erred in valuing and characterizing assets, excluding an expert 

### witness, andawarding attorneyfees. Because hefails todemonstratethat thetrial court abused its broad discretion in evidentiary and property matters, we affirm.
FACTS 

### John and AmandaHalligan married in September 1995 and separated in June 2012. Their son was born in2011. John1 has degrees inaeronautical engineering


### For purposes ofclarity, wereferto the partiesbytheirfirst names.No. 71391-4-1/2


### and insystems engineering. Atthe time of trial, he was a managerfor an information technology corporation. He is also inthe Navy Reserve. His gross monthly income, 

### including military pay, is about $13,000. Amanda has a degree injournalism and is the co-owner of a political consulting business. Her gross monthly income is about $3,200. The courtfound thatthe parties had community and separate assets totaling about $564,000, ofwhich the court distributed 60 percentto Amanda and 40 percent 

### to John. The court awarded Amanda monthly maintenance of$3,500 for fiveyears. On September23, 2013, following a four-day trial, the court entered findings of fact, conclusions of law, and a final decree ofdissolution. John appeals.2

DECISON Raytheon Pension 

### John worked for Raytheon until 2008. He contends that the trial court erred in 

### relying on an expertwitness's opinion to determine the presentvalue of hisvested Raytheon pension. Heargues that because the expert's opinion rested on an erroneous assumption aboutthe pension plan's early retirement benefits, the court 

### significantly overvalued the asset. Based on the record before us, however, John fails to demonstrate a reversible abuse ofdiscretion. 

### Prior to trial, the partiesjointly retained Steven Kessler, an experienced 

### certified public accountant, to calculate the value of their retirement plans, which includedJohn's Raytheon and military pensions and Amanda's federal pension. To
2John has not raised child support or parenting issues on appeal.

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determine the present value ofJohn's Raytheon pension, Kessler relied in part on a 2008 letterthat Raytheon sentto John after he terminated his employment. The letter informed John that he was entitled to receive monthly pension payments of$450.88 beginning at age 65. The letter also advised that John could electto begin pension payments at age 55, "actuarially reduced for Early Retirement,"3 and referred him to the Raytheon Summary Plan Description (SPD) for "further clarification."4 On August 10, 2013, nine days before trial began, Kessler provided a written opinion to the parties. Based on a list ofenumerated facts, including the $450.88 monthly benefit listed inthe 2008 Raytheon letter, Kessler estimated the present value ofthe Raytheon pension, "using discounted present value analysis,"5 as follows: In my opinion, the total present value ofMr. Halligan's pension benefit with retirement at age 65 is $16,044
.... 

### In my opinion, the total present value ofMr. Halligan's pension benefit with retirement at age 55 and assuming no reduction inbenefits is $34,052
. . . M The record does not indicate whether Kessler received or reviewed the Raytheon SPD before preparing his opinion.7



### 3Exhibit (Ex.) 19. 4 Ex. 19. 5 Ex. 20. 6 Ex. 20. 

### 7John asserts that shortly before Kessler prepared his opinion, both parties 

### "attempted to inform" Kessler about the provisions of the SPD "but forsome reason, he didn't receive or use the information." Br. ofAppellant at 7. But he has not 

### identified any evidence in the record supporting this assertion.No. 71391-4-1/4
At trial, Kessler identified his report, which was admitted without objection as exhibit 20. During cross-examination, John's attorney questioned Kessler at length aboutJohn's military pension and the general propriety ofcalculating the present value ofpensions for purposes ofdissolution, but did not challenge his valuation of the Raytheon pension. Two days later, during his direct testimony, John expressed concern about Kessler's calculation ofthe present value for the Raytheon early retirement plan because itwas based on the inaccurate assumption of "no reduction in benefits." The trial court permitted John to read into evidence the following provision from the Raytheon SPD: Once you reach age 55 and you are vested, you are eligible to begin receiving your pension. Ifyou begin receiving your pension before your Social Security retirement date, your pension may be reduced actuarially from that Social Security date or reduced by one-halfofone percentfor each month your annuity start date precedes your Social Security retirement date ifthat provides a largerpension. However, your pension is the same as the amount payable at 

### your Social Security retirement date, ifyour Raytheon employment ends, or ifyou are laid off from Raytheon withinthree years before that date and you have completed 10 years ofcontinuous service at that time.[8] John testified that he used the formula inthe Raytheon SPD to determine that 

### the monthly benefit forretirement at age 55 would be $180.35, or a 60 percent reduction from the monthly benefit at age 65. Butthe trial court sustained repeated 

### objections to John's qualifications when he attempted to offer his recalculated

8Report ofProceedings (RP) (Aug. 22, 2013) at 40-41.No. 71391-4-1/5
present value based on "the methodology used by Kessler."9 The trial court eventually admitted the SPD in its entirety as exhibit 133. On appeal, John contends that the trial court erred in relying on Kessler's opinion for the value ofthe Raytheon early retirement pension because the opinion
was based on the faulty assumption of "no reduction in benefits." He argues that based on his calculations ofthe reduced monthly benefits for early retirement, the court "should have asked for recalculation ofthe present value."10 But the evidence before the trial court on value must be viewed in context. The trial court has wide latitude invaluing assets in a dissolution proceeding and indetermining the weight to give expert opinion. See In re Marriage ofSedlock, 69 Wn. App. 484, 490, 849 P.2d 1243 (1993). Ifthe court's valuation of an assetfalls within the range ofexperttestimony, and is otherwise reasonable in light of conflicting evidence, substantial evidence supports the decision, and we willnot disturb it on appeal. Sedlock. 69 Wn. App. at490. Kessler's opinion about the present value ofthe Raytheon pension was admitted without objection. During cross examination, counsel for John did not ask Kessler whether he had reviewed the SPD. Nor did counsel ask Kessler to explain the assumption of "no reduction inbenefits," the nature of his application ofthe 

### "discounted present value analysis" to the Raytheon pension benefits, orthe effect of
a reduced monthly payment on the calculation ofthe present value. Although John latertestified that he had calculated a reduced monthly benefit ifhe retired at 55, the 

### 9RP(Aug. 22, 2013) at 45. 10 Br. ofAppellant at 28.No. 71391-4-1/6


### trial court excluded his proposed recalculation ofthe pension's present value. On appeal, John has not challenged the trial court's evidentiary rulings. Because Kessler's opinion was essentially unchallenged, and John failed to present any conflicting admissible evidence ofthe presentvalue, we cannot say that 

### the trial court's decision to rely on Kessler's opinion was unreasonable or an abuse of discretion. Substantial evidence supports the trial court's finding that the present 

### value ofthe Raytheon pension forearly retirementwas $34,052. Attorney Fees John contends that the trial court erred in awarding a portion ofthe attorney fees thatAmanda incurred based on her need and his ability to pay. Under RCW 

### 26.09.140, the trial court may order a party in a dissolution action to pay reasonable attorney fees after balancing the requesting party's needs againstthe opposing 

### party's ability to pay. Inre Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999). We review the trialcourt's decision to award attorney fees for an abuse of discretion. Mattson, 95 Wn. App. at 604. The party challenging the decision to deny 

### attorney fees mustestablish that "the court used its discretion in an untenable or manifestly unreasonable manner." Mattson, 95 Wn. App. at 604. The trial courtfound thatAmanda had incurred attorney fees and costs totaling $60,621. The courtfurther found thatthe amountwas reasonable given the 

### complexity of the issues and the length of trial, and awarded $18,000 in fees. On appeal, John contends that in addition to the disproportionate 60/40 distribution of community property, the trial court failed to consider (1) the disparity in 

### the parties' liquid assets following dissolution, (2) the debt allocated to him, and

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(3) his monthly expenses, including $3,500 inmaintenance payments and child supportthat remained following the dissolution. He contends thatthe evidence established his inability to pay Amanda's attorney fees and her ability to pay her own attorney fees. 

### In making its decision, the trial court necessarily had all ofthe parties' financial information before it. The trial court noted that John's gross monthly income of 

### $13,049 was substantially more than Amanda's gross monthly income of $3,231 and that John "has a rewarding career... at which he has been very successful."11 The court also noted thatAmanda had a monthly shortfall ofabout $3,800 inmeeting her 

### expenses, whichwas mostlycovered by the court's award of$3,500 inmaintenance 

### per month for fiveyears. The courtexpressly found that Amanda had a need for a 

### partial award of attorneyfees and that John had the abilityto pay some of the fees. Even considering the characterization and distributing of the parties' assets and 

### obligations and the parties' relative income and expenses, we cannot saythat the trial court abused its discretion in awarding Amanda a portion of her attorney fees. Exclusion of Expert Witness John contends thatthe trial court erred inexcluding the testimony and report 

### ofNeil Bennett, a vocation counselor, as a sanction for late disclosure. He argues 

### that the disclosure was notreally late, that any late disclosure was notwillful, and that the trial courtfailed to consider lesser sanctions. Many ofJohn's factual assertions 

### are unsupported by citations to the record, in violation ofRAP 10.3(a)(6).

11 Clerk's Papers (CP) at 168.

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The parties initiallyidentified theirwitnesses in accordance with the order setting domestic case schedule, which required disclosure ofpossible primary witnesses by February 2, 2013, and disclosure ofpossible additional witnesses by March 18, 2013. Trial was originally setfor May 20, 2015. On March 4, 2013, the parties stipulated to a continuance ofthe trial date to August 19, 2013, in orderto participate in mediation. The court did not issue a revised case schedule. On May 20, 2013, Amanda's counsel, Rosemarie LeMoine, notified John's counsel, H. Michael Finesilver, that she would be out ofthe country from June 3, 2013, untilJuly 11, 2013. LeMoine also served a notice ofassociation, designating
an additional attorney for the case. On June 25, 2013, Finesilverfiled a disclosure ofpossible primary witnesses that identified several new witnesses, including Neil Bennett. Finesilverdid not 

### identifythe nature ofBennett's opinions until July 3, when he emailed Bennett's reportto LeMoine, who was still out ofthe country on vacation. LeMoine was unable to open the attachmentto the email while on vacation, and she did not see the report until July 25, when she received a hard copy. Finesilverdid not email Bennett's report to the associated counsel. 

### LeMoine objected to the late disclosure ofwitnesses and moved to strike 

### Bennett's testimony and the testimony of two otherwitnesses. Following a hearing, the trial court granted the motion and excluded the three witnesses and their reports.12



### 12 On appeal, John challenges onlythe exclusion ofBennett's testimony.

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The trial court generally has broad discretion when imposing sanctions for discovery violations. Blair v. Ta-Seattle E. No. 176, 171 Wn.2d 342, 348, 254 P.3d 797 (2011). But when the court imposes a severe sanction such as witness exclusion, the record must clearly demonstrate thatthe court considered (1) whether the violation was willful or deliberate; (2) whether the violation substantially prejudiced the opponent's ability to prepare for trial; and (3) whether a lesser sanction would probably suffice. Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997); see also Mayerv. Sto Indus.. Inc., 156Wn.2d 677, 684, 132 P.3d 115 (2006); Teterv. Deck, 174Wn.2d 207, 274 P.3d 336 (2012). Here, the parties discussed the Burnetfactors indetail during the hearing on Amanda's motion to strike, and the court expressly incorporated the factors into its oral and written decisions. The court found that Finesilver disclosed the three new witnesses several months afterthe case scheduling deadlines and provided their reports afterthe discovery cutoffdate based on the August 19 trial date. See King 

### County Local Rule 37(g) (in family law proceedings, discovery mustbe completed 35 days before trial date unless court orders otherwise). The court rejected Finesilver's claim thatthe continuance automatically extended all discovery deadlines without 

### entry of a new case scheduling orderorthe court's approval and that he had 

### effectively provided LeMoine with Bennett's report on July 3, leaving her plenty of time to complete discovery before trial. The courtfound that Finesilver had intentionally disclosed the witnesses at a time when he knew LeMoine was out ofthe country and unable to respond. The courtfurther noted that counsel had not sentthe report to associated counsel, evenNo. 71391-4-1/10 though LeMoine had notified Finesilverofthe association before leaving the country. The courtfound that under these circumstances, the late disclosure was willful. The court also found that the late disclosure ofthe witnesses' reports 

### substantially prejudiced Amanda's ability to prepare for trial. Bennett's report indicated thatAmanda was "capable ofearning a large salary immediately,"13 an 

### issue critical to Amanda's requestfor maintenance. The court noted thatAmanda's counsel would have rebutted Bennett's evidence with additional discovery and expert testimony ifthe time would have permitted. 

### Finally, the courtexpressly asked the parties to address the availability of lesser sanctions at the hearing on the motion to strike. LeMoine did not receive 

### Bennett's report until after the discovery cutoff, when onlyaboutthree weeks remained until trial. She argued that the only option at that point would have been a 

### significanttrial continuance and a court orderwith new discoverydeadlines so that she could schedule a deposition of Bennett and hire an opposing expert. In rejecting lesser sanctions, the trial court noted that despite the late disclosure, opposing counsel had made no effortto make the witnesses available for depositions or otherwise attempted to facilitate discovery. 

### The record clearlydemonstrates that the trial court considered all three Burnet factors on the record. John has failed to demonstrate that the court abused its discretion inexcluding Bennett's testimony.

13 CP at 200.
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Post-Separation Payments to Fidelity 401 (k) 

### John contends thatthe trial court erred in refusing to characterize the $7,039 

### inpost-separation payments that he made into his Fidelity 401 (k) plan as separate ratherthan community property. He argues thatthe trial court's unexplained decision
was inconsistent with the parties' agreement about the characterization ofthe 

### payments and withthe court's treatment ofpost-separation payments that he made into a different401 (k) plan. He maintains that he is entitled to a refund ofthe 60 percent ofthe $7,039 that the court awarded to Amanda. 

### John's arguments ignore critical portions ofthe trial court's ruling. Although the Fidelity 401 (k) plan was in John's name, the entire account was accumulated during the marriage and was therefore community property. During the marriage, the parties borrowed from the Fidelity 401 (k) plan to buy property in Ronald, Washington. After the parties separated in 2012, they entered into an agreed temporary orderthat assigned the debt on the property to John. His post-separation payments to the Fidelity 401 (k) were therefore intended to service the outstanding debt on the loan. The trial court expressly noted that the parties' agreed temporary order "[did] not provide for reallocation ofthe debt payments" and therefore found "no reason to credit the husband for payments made on the Ronald property, pursuant to the agreed temporary order."14 John has not demonstrated any error or abuse of discretion in the trial court's decision.

14 CP at 165.

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### Moreover, mischaracterization of property is notgrounds for setting aside the trialcourt's property distribution ifthe division of the property is fair and equitable, in re Marriage of Gillespie. 89 Wn. App. 390, 399, 948 P.2d 1338 (1997). Here, the record clearly establishes thatthe characterization ofJohn's post-separation payments was not crucial to the trial court's decision. See In re Marriage of Langham 

### &Kolde. 153 Wn.2d 553, 563 n.7, 106 P.3d 212 (2005) (remand necessary only if characterization crucial to the distribution). John has notaddressed orchallenged the trialcourt's reasoning. Norhas he alleged that 60/40 percent property division
was inequitable. Federal Tax Exemption John contends thatthe trial court erred inallocating Amanda the federal income tax exemption in allyears, ratherthan in alternating years. He suggests that the decision "may have been a scrivener's error."15 Contrary to John's assertions, however, the record indicates that the parties agreed to the allocation ofthe exemption to Amanda during negotiations over child support payments. John fails to identify any error or abuse ofdiscretion. Verification ofWork-Related Daycare Expenses John contends that the trial court erred in denying his request for "proofof work-related daycare expenses"16 that he agreed to pay underthe terms ofthe parties' agreed temporary order. He asserts that "the unique nature ofAmanda's

15 Br. ofAppellant at46. 

### 16 Br. ofAppellant at 46.

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### work and daycare situation provide[s] potential for abuse ofthe support order."17 But John has not supported his conclusory allegations oferrorwith any meaningful legal argument or citation to relevant authority. We therefore decline to considerthem. 

### See Saunders v. Lloyd's of London. 113 Wn.2d 330, 345, 779 P.2d 249 (1989) (appellate courtwill decline to consider issues unsupported by cogent legal argument and citation to relevant authority). Attorney Fees on Appeal Amanda has requested an award of attorney fees on appeal based on her need and John's ability to pay. See RCW 26.09.140. She has submitted an affidavit in accordance with RAP 18.1(c).18 After consideration ofthe affidavit, we decline to award attorney fees on appeal. Affirmed. 

# &"&

WE CONCUR:

17 Br. ofAppellant at47. 18 John has filed a motion to exclude Amanda's affidavit, alleging, among other 

### things, that itwas untimely. He isincorrect. See RAP 18.6(a) (in computing period of time underthe Rules ofAppellate Procedure, the last day of the period "is included, 

### unless it is a Saturday, Sunday, or legal holiday." The motion to exclude is denied.

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