### •CTmT gfappeals civ: STATE OF WASHiNGTC;: 

### 2013 DEC 16 AH 3-39

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re Marriage of GURMIT SINGH,

and SATVIR KAUR, Appellant,

Respondent. NO. 69698-0- DIVISION ONE

UNPUBLISHED OPINION FILED: December 16, 2013

Lau, J. —Gurmit Singh appeals from a decree ofdissolution, alleging the trial court abused its discretion in awarding his former wife Satvir Kaur lifetime maintenance 

### of$1,000 permonth.1 Finding noerror, weaffirm thelifetime maintenance award and

the decree ofdissolution. We remand to the trial court to determine Kaur's entitlement to and the amount ofreasonable attorney fees and costs on appeal under RAP 18.1(i). FACTS2 InJanuary 1990, Gurmit Singh and Satvir Kaur married through an arranged marriage in India. In 1993, Singh moved to the United States, leaving Kaur in India to 

### 1Singh does notchallengethe maintenanceamount, only itslifetimeduration. 

### 2Singh does notchallenge themajority ofthetrial court's findings offact. The facts here are derived from the court's unchallenged findings and the trial testimony and exhibits.69698-0-1/2



### care for their baby daughter Inderpal and Singh's parents and grandparents. In 2002, Kaur and Inderpaljoined Singh inthe United States. 

### Kaur completed the 10thgrade, and her work skills and Englishlanguage ability are very limited. Her only workexperience consists ofsporadic, menial day labor jobs. 

### Federal income tax records show she earned an average of approximately $5,025 per yearfrom 2005 to 2010. Herearnings were directlydeposited intoSingh's account. Throughoutthe marriage, Singh isolated and physically and emotionally abused Kaur to prevent her from acquiring necessary skills and assimilating into American culture. Kaur did the housework and cooking. Singh worked as a taxi driver. In 2008, after 18 years ofmarriage, Singh and Kaur separated when Singh 

### forced KaurandInderpalfrom thefamily's home with nobelongings.3 Inderpal attended 

### school and worked tosupporthermother.4 Atthetime oftrial, Kaurreported monthly expenses of$1,117. InJuly 2011, Singh petitioned for dissolution. The petition alleged, "The parties have already divided all personal property agreeably. The parties have no real property. Each party should be granted the property currently intheir possession." Ex. 133 at 2. Singh reported total monthly gross income as a taxi driver of $2,881.92 and monthly net income of$242.81 in his financial declaration. 

### 3Singh'sbrother, Paramjeet, testified that hetook KaurandInderpal into his home when Singh forced them out in 2008. Kaur and Inderpal later moved out of Paramjeet's home into an apartment, but Paramjeet continued to pay for Kaur and Inderpal's expenses for some time. 

### 4Atthe time oftrial, Inderpal worked full-time for FedEx and made about$1,273 per month. She supported herselfand Kaur. The record shows Kaur had no income after 2011. She performs limited work for the apartment building where she and Inderpal live inexchange for a $100 monthly reduction in rent. -2-69698-0-1/3 

### Singh concealed marital assets before petitioning fordissolution. A month earlier, he sold the interest in his taxicab, Yellow Cab 463, for $157,000 without Kaur's 

### knowledge.5 Discovery revealed thattheCityofSeattle recently awarded Singh a wheelchair accessible taxicab license that becomes permanent and transferable in 2015. Singh also purchased a taxi van, Yellow Cab 262, which he modified for wheelchair accessibility. Singh denied selling his interest in Yellow Cab 463 and 

### claimed in his October 13, 2011 declaration, "I don't own a taxi" and "I have not recently sold a taxi." Report ofProceedings (RP) (Oct. 16, 2012) at 71-72. Kaur obtained an ex parte restraining orderto prevent Singh from permanently 

### hiding the $157,000 sale proceeds. To protectthese proceeds, the court ordered Singh to deposit $157,000 intothe trust account ofKaur's attorney. Singh failed to comply. During an October 31, 2011 hearing, the court again ordered Singh to turn overthe proceeds to Kaur's attorney. Italso awarded Kaur $1,000 per month intemporary maintenance, $4,500 in attorney fees, and restraints against Singh to ensure Kaur's safety. Singh refused to turn overthe proceeds or pay the awards. On January 31, 2012, the court found him in contempt and ordered him confined to jail, finding he was "not credible in his testimony that he does not have the income or financial resources to comply with the orders." RP (Oct. 23, 2012) at 213. The court appointed counsel and released Singh from jail in February 2012. At a 

### February 17 review hearing, the courtwarned Singh about the risk ofmorejail time if he failed to accountfor the sale proceeds. On April 4, the court again found Singh "not 

### 5Kaurtestified attrial that she received no money orassets from Singh, contrary to the statement he made in his petition for dissolution.69698-0-1/4

credible" based on his "history ofchanging his story at each hearing." RP (Oct. 23, 

### 2012) at 216. The court warned himagain about the risk ofmorejail time if he failed to pay $1,000 inmaintenance by the next hearing on April 25. Singh made that payment 

### but failed to pay past-due maintenance and attorney fees owed to Kaur. The court held two subsequent review hearings after ordering Singh to pay $1,000 before each hearing. When he failed to pay these amounts, the court ordered him to jail. 

### Attrial, representing himself,6 Singhtold conflicting stories abouthis income and the whereabouts ofthe taxi sale proceeds. Extensive documentary evidence—including 

### bankdeposit records and trip sheets Singh provided to the City ofSeattle as a 

### requirement of maintaining his taxilicense—indicated he earned an average monthly income of$4,904. Inaddition, he earned cash tips of $490 each month. He also 

### earned $1,820 per month inpassive income by leasing his taxi to a second shiftdriver. His total monthly income was $7,214. Singh testified, based solely on his ownfinancial declaration, that his monthly expenses were about $3,800 at the time of trial. His 

### income and expense numbers resultin monthly net income of approximately $3,400. 

### Singh'sincometax statements indicated he consistently underreported his income by

tens ofthousands ofdollars. 

## CityofSeattle ConsumerAffairs Unit7 managerCraig Leisytestifiedfor Kaur. Leisytestified that the ConsumerAffairs Unitawarded Singh hiswheelchair-accessible taxi license around March 2010. He testified that because the licenses are so valuable, 

### 6The Office of Public Defense determined Singh's selfreported income rendered him ineligible for an attorney at public expense. 

### 7The ConsumerAffairs Unit regulates the taxi and limousine industriesin Seattle and King County.69698-0-1/5 they are nontransferable for five years from the date they are placed in service. He stated that the value of a wheelchair-accessible taxi license like Singh's was about $250,000. He also testified that Singh's wheelchair-accessible van was worth $30,000. At the close ofevidence, Kaur requested the court to award her 70 percent, or $109,000, ofthe $157,000 Singh received from the sale of Yellow Cab 463, lifetime maintenance of$1,000 per month, attorney fees and costs, and permanent restraining orders against Singh. This property division would allow Singh to keep the $30,000 taxi

van and $250,000 license associated with Yellow Cab 262. In its oral ruling, the trial court addressed Singh's lack of credibility. Itcompared the documentary evidence to the witness testimony in orderto "make a determination of what testimony is credible." RP (Nov. 13, 2012) at 325. The courtfound Singh's testimony "suspect": During this time, Iwentthrough all ofthe exhibits and ultimately found overall, albeit not as to every particular item, that [Singh's] testimony is suspect. And when Isay "suspect," [Singh's] testimony isn't consistentwith the other evidence that was presented to the Court, that being documents. And an example ofthat is - - and Ithink itwas actually during crossexamination of [Singh], there was testimony by [Singh] and, in fact, he had sold or leased, Iguess, depending on the terminology you want to use, but nonetheless received cash for a cab that he placed $85,000 in the cupboard and that his wife took it. However, during cross itbecame clearwhen looking atthe documents 

### that, in fact, money was taken into Canada. And Idon'twantto go intowhere it was distributed once itgot there, based on [Kaur's] testimony. But nonetheless, during cross Counsel inquired abouttaking over $100,000 cash into Canada, and [Singh] said, "Oh, no. Ididn't do that." And then [Kaur] - - and ifIrecall correctly, was able to provide copies ofcashier's checks or checks, ifyou will, suggesting that indeed that had taken place. What Ifound interesting there is that [Singh] denied itwas cash because it was in check form rather than in dollars, cash. And Ifound that to be 

### disingenuous, at best. So that'sjust an example of why this Court had serious questions about some ofthe testimony that [Singh] provided to the court under oath. -5-69698-0-1/6



### RP (Nov. 13, 2012) at 325-27. The court found Kaur's witnesses, particularlySingh's brother Paramjeet, credible. See RP (Nov. 13, 2012) at 328. 

### The trial court made detailed written findings supporting its awards of property, maintenance, restraining orders, and attorney fees. As to the property, the court made the following unchallenged findings: 

### The parties have the following real or personal community property: 1. Proceeds of$157,000 from the sale of[Singh's] one-halfshare in YellowCab # 463, which includes a dual taxicab license for Seattle and King County and a taxicab vehicle, a 1997 Ford Vic. 2. 2009 Toyota Sienna, modified as wheelchair accessible taxivan, VINS STDZK23C895272083. 3. Wheelchair Accessible Taxicab license for Yellow Cab # 262. 4. Personal property. The court awarded Singh all ofthe parties' community property, valued at 

### $437,000. The court awarded Kaur a $109,000judgment against Singh and maintenance of$1,000 per month for the duration ofher life. The court made the 

### following mostly unchallenged written findings regarding themaintenance award:8

2.12 Maintenance Maintenance should be ordered because: The parties were married 18 years before the separation in 2008. They enjoyed a modest standard of living. At44 years ofage, the wife has no financial resources, as the husband forced her and the then minor daughterfrom the home with no belongings in September 2008. The wife is not able to meet her 

### needsindependently. Sheemigratedfrom India, where she had a 10thgrade education and cared for the daughter, as well as the husband's parents and grandparents. She has very limited English language and work skills. She only worked in menial day laborjobs, after she came to the United States. 

### 8Singh challengesfor substantial evidenceonlythefinding that"Given [Kaur's] limited skills and emotional condition, it is likelythat she will [never] be able to acquire sufficient education or training to find appropriate employment." Appellant's Br. at 2. We analyze that finding below for substantial evidence. -6-69698-0-1/7



### The husband prevented] herfrom acquiring necessary skills and from 

### assimilating into the culture by isolating and abusing her. She was emotionally and physically traumatized and abused bythe husband during the 22-year marriage. She recently had surgery to remove cysts in her head and back. 

### Given her limited skills and emotional condition, it is likely that she will [never] be able to acquire sufficient education or training to find appropriate employment. 

### She is now entirely financially dependent on her 20-yearold daughter. The husband is able to meet his own needs while paying maintenance. At 47 years ofage, he is one ofthe top 10% of taxi drivers in Seattle. He sold his 50% interest in a taxicab and the dual Seattle and King County license, Yellow Cab 463, for $157,000 cash inJune 2011 and has not provided a credible explanation for the whereabouts of these funds. In 2010, he was awarded a Dual WheelchairAccessible license from the City of Seattle, which is $250,000. It becomes permanent and transferable in 2015. The husband testified that he earned an average of $4,500 per month driving this taxi van. The average on trip sheets he provided to the City of Seattle showed he averaged $4,904 in July 2012. He earns an additional 10% in tips, or $490. On top ofthis, he leases the taxi van to a second shift driverfor $420 perweek, or $1820 per month. His total month income is about $7,214. He claimed monthly expenses averaging] $3,800 on three financial statements. He claimed to have credit card debt, but there was no evidence of any payment or any intention of payment on the balance ofthis debt. After expenses, he has around $3,400 remaining each month. From this, it is appropriate that he pay $1,000 per month in maintenance to his wife forthe duration ofher life. This amount is less than 30% of his monthly net income. (Formatting omitted.) The decree ofdissolution provides thatthe maintenance obligation terminates upon the death ofeither party or upon Kaur's remarriage. The court also entered a permanent restraining order against Singh. The court ordered him to pay Kaur's attorney fees and costs based on his ability to pay and her financial need under RCW 26.09.140 and Singh's intransigence: 

### Throughoutthis matter, the husband repeatedly change[d] his theory of the case in orderto hide assets and income. Initially, the husband claimed that he did not have a taxicab and did not sell a taxicab license. Months later, he claimed his wife told him to sell the taxicab and took the $85,000 in proceeds. This story 

### changed again at trial. Through discovery, wife proved [Singh] had twotaxicabs and licenses. He sold his share in one for $157,000 and was awarded another one valued at $250,000. Husband refused to comply with orders to depositthe 

### $157,000 to wife's attorney's trust accountfor safekeeping, to pay spousal maintenance and to pay awards ofattorney fees. The courtfound him to be -7-69698-0-1/8 noncompliant inapproximately 17 orders, even incarcerating him twice as sanctions for his improper conduct and his constant changing of this story to escape responsibility for his family. Singh appeals only the maintenance award's lifetime duration.

ANALYSIS Maintenance Singh contends the trial court abused its discretion in awarding lifetime maintenance to Kaur. Inawarding maintenance, the trial court must considerthe following statutory 

### factors: (1) the financial resources ofthe party seeking maintenance, including separate or community property apportioned to him or her; (2) the time needed to acquire education necessary to obtain employment; (3) the standard ofliving during the marriage; (4) the duration ofthe marriage; (5) the age, physical and emotional condition, and financial obligations ofthe spouse seeking maintenance; and (6) the ability ofthe spouse from whom maintenance is soughtto meet his or her needs and obligations while providing the other spouse with maintenance. In re Marriage ofWilliams, 84 Wn. App. 263, 267-68, 927 P.2d 679 (1996); RCW 26.09.090. Ultimately, the court's main

concern must be the parties' economic situations postdissolution. Williams, 84 Wn. 

### App. at 268. Although lifetime maintenance awards are generally disfavored, In re Marriage of Covle. 61 Wn. App. 653, 657, 811 P.2d 244 (1991), "the only limitation placed upon the trial court's ability to award maintenance is that the amount and 

### duration, considering all relevantfactors, be just." In re Marriage ofWashburn, 101 Wn.2d 168, 178, 677 P.2d 152 (1984). "Where the assets ofthe parties are insufficient

-8-69698-0-1/9

to permit compensation to be effected entirely through property division, a supplemental award of maintenance is appropriate." Washburn, 101 Wn.2d at 178. The trial court is not required to make specific factual findings on all ofthe factors. Mansourv. Mansour, 126 Wn. App. 1, 16, 106 P.3d 768 (2004) ("Nothing in RCW 26.09.090 requires the trial courtto make specific factual findings on each ofthe factors listed in RCW 26.09.090(1). The statute merely requires the courtto consider the listed factors."). When, as inthe present case, the disparity inearning power is 

### great and the property division is unequal, reviewing courts must closely examine a maintenance award "to see whether it is equitable in light ofthe postdissolution economic situations ofthe parties." Inre Marriage ofSheffer, 60 Wn. App. 51, 56, 802 P.2d 817 (1990). InShefferwe explained that maintenance is "a flexible tool to more 

### nearly equalize the postdissolution standard ofliving of the parties, where the marriage is long term and the superiorearning capacity ofone spouse is one of the few assets of the community." Sheffer, 60 Wn. App. at 57. An award ofmaintenance is within the broad discretion ofthe trial court. In re 

### Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990). An abuse of discretion occurs when the court bases its decision on untenable grounds or reasons. 

### Inre Marriage ofFoley, 84 Wn. App. 839, 845, 930 P.2d 929 (1997). "An award of maintenance that is not based upon a fairconsideration ofthe statutory factors constitutes an abuse ofdiscretion." In re Marriage of Crosetto, 82 Wn. App. 545, 558, 

### 918 P.2d 954 (1996). "On appeal, [thespouse challenging maintenance] has a difficult burden—to demonstrate that the trial court awarded maintenance based on untenable69698-0-1/10 grounds or for untenable reasons considering the purposes ofthe trial court's discretion. Broad discretion is given the trial court." Sheffer, 60 Wn. App. at 56. Here, the record shows the trial court explicitly considered each ofthe six statutory factors. Itdetermined thatthe property distribution and Kaur's existing finances were insufficient to meet her needs; that the parties had a modest standard of livingduring the marriage; thatthe marriage was long term (18 years preseparation; 22 years predissolution); that Kaur's age, limited skills, and physical and emotional condition made it unlikely she would find employment adequate to meet her needs; and that Singh could pay maintenance while meeting his own obligations. Singh argues that when properly considered, these factors weigh against a permanent award of maintenance. But it is the trial court's prerogative and duty to weigh these factors, not ours. In re Marriage ofZahm, 138 Wn.2d 213, 227, 978 P.2d 498 (1999); In re Marriage of Brossman, 32 Wn. App. 851, 854-56, 650 P.2d 246 (1982). Singh challenges only one finding: "Given [Kaur's] limited skills and emotional condition, it is likelythat she will [never] be able to acquire sufficient education or training to find appropriate employment." Appellant's Br. at 2. The remaining 

### unchallenged findings are verities on appeal. Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d 801, 808, 828 P.2d 549 (1992). 

### On appeal, a trial court's findings of fact will be upheld ifsupported by substantial evidence. Sunnvside Valley Irrigation Dist. v. Dickie. 149 Wn.2d 873, 879, 73 P.3d 369 

### (2003). "Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth ofthe declared premise." Inre Marriage of Hall, 103 Wn.2d 236, 246, 692 

### P.2d 175 (1984). Overwhelming unrebutted evidence and unchallenged findings -10-69698-0-1/11 supportthe only challenged finding inthis case. Unrebutted evidence shows Kaur's limited work and English language skills. Nonetheless, she looked for work, but several 

### medical conditions and inability to drive limited her options. Forexample, high blood pressure forced Kaur to quit onejob. She also underwent recent surgery to remove a lipoma and two cysts. The court's unchallenged findings indicate, "She was emotionally and physically traumatized and abused bythe husband during the 22-year marriage." The evidence shows Kaur's average earnings ofapproximately $5,025 peryearfrom 2005 to 2010. Atthe time of trial, she was entirely financially dependent on her 

### daughter. Her monthly expenses exceeded her 2007 income of$11,345 peryear. These facts and the court's unchallenged findings quoted above supportthe trial court's lifetime maintenance award.9 Singh claims the trial court "erred when italluded to [Kaur's] recent surgery and the possibility oftrauma as the basis for lifetime maintenance." Appellant's Br. at 16 (boldface omitted). He claims proofofany physical and emotional condition's effect on Kaur's ability to work requires expert testimony. We disagree. He cites no statute or

case authority for this argument because none exists. See Beal for Martinez v. City of Seattle, 134Wn.2d 769, 777 n.2, 954 P.2d 237 (1998) ("The City cites no authority for this proposition and, thus, it is not properly before us.") (citing RAP 10.3(a)(5)); Schmidt


### 9Further, the ability of a spouse seeking maintenance to meethis or her needs independently is only one ofthe factors to be considered under RCW 26.09.090. In re Marriage of Morrow, 53 Wn. App. 579, 585, 770 P.2d 197 (1989). The court here did not award maintenance solely on the basis ofKaur's physical and emotional condition 

### but weighed the other statutory factors, including the length ofthe marriage, her age, her lack ofeducation andjob skills, her limited income while serving as homemaker, and Singh's superior earning capacity. -11-69698-0-1/12

v. Cornerstone Invs., Inc., 115Wn.2d 148, 166, 795 P.2d 1143 (1990)); State v. Logan, 102 Wn. App. 907, 911, 10 P.3d 504 (2000) ("'Where no authorities are cited in support of a proposition, the court is not required to search out authorities, but may assume that 

### counsel, after diligent search, has found none.'") (quoting DeHeerv. Seattle PostIntelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962)). Further, the court's 

### determination properly considered Kaur's "physical and emotional condition" as required by RCW 26.09.090(1 )(e). 

### Singh also contends the trial court abused its discretion inawarding lifetime maintenance because "Permanent lifetime maintenance awards are reserved for 

### spouses who have a permanentdebilitating illness and no capacity to earn an income 

### presently or in the future." Appellant's Br. at 13-14. Citing In re Marriage of Mathews, 70 Wn. App. 116, 853 P.2d 462 (1993), he contends, "A lifetimemaintenance award 

### can only be approved when it is clearthat the party seeking maintenance will not be able to contribute significantly to his or her own livelihood." Appellant's Br. at 7. 

### Singh mischaracterizes Mathews. Indeed, Mathews supports the trial court's lifetime award inthis case. There, Division Three ofthis court noted, "Ourcourts have approved awards of lifetime maintenance in a reasonable amountwhen it is clearthe 

### party seeking maintenance will not be able to contributesignificantlyto his or herown livelihood." Mathews, 70 Wn. App. at 124 (emphasis added). Mathews is also 

### distinguishable. Thecourtthere reversed theaward ofmaintenanceto theformerwife for an indefinite period because, unlike the present case, the trial court's award lacked "fairconsideration of[RCW26.09.090's] statutory factors and therefore constitute^] an abuse of discretion." Mathews, 70 Wn. App. at 123. "Thus, itappealed] Mr. Mathews -12-69698-0-1/13 [did] not have the 'ability

... to meet his needs and financial obligations

. . .', RCW 26.09.090(1 )(f), while meeting the obligations imposed by the trial court." Mathews, 70 

### Wn. App. at 123.10 As discussed above, thetrial courtfairly considered all thestatutory factors. We are unpersuaded by Singh's remaining claims premised on Mathews. In Inre Marriage ofMorrow, 53 Wn. App. 579, 770 P.2d 197 (1989), we upheld a lifetime maintenance award of$2,200 per month because the husband had converted substantial amounts ofcommunity property for his separate use and the wife was unable to work due to problems with her vision. Morrow, 53 Wn. App. at 584, 588. We 

### noted the wife's limited ability to earn what he earned and the award properly reflected that she had forfeited economic opportunities during the 23-year marriage whilethe husband capitalized on them. Morrow, 53 Wn. App. at 587-88. We also determined the husband had the ability to pay the award without sacrificing his own needs, noting that the interest alone on the husband's retained financial resources would yield enough money to pay the maintenance award for life. Morrow, 53 Wn. App. at 587-88. The record shows Singh brazenly concealed assets and income despite two jail commitments and 17 court orders. He never provided credible testimony to explain the taxi sale proceeds' whereabouts. The record amply demonstrates that Kaurworked in menialjobs, suffered from ill health, lacked transportation andjob skills, and was 

### 10The appellate courtconcluded, "Thetrial court's maintenanceaward andits orderthat Mr. Mathews pay Mrs. Mathews' medical insurance premiums and education expenses for a period ofseveral years presently leaves him with about $1,000 a month, and Mrs. Mathews with $1,855 per month. His personal property is not significant." Mathews, 70 Wn. App. at 123. In this case, the trial court's unchallenged findings indicate the $1,000 maintenance award is less than 30 percent of Singh's monthly net 

### income and Singh is able to meet his own needs while paying maintenance. Finally, the trial court awarded Singh all ofthe parties' community property worth $437,000. Mathews bears no similarity to the present case. -13-69698-0-1/14 primarily a homemakerduring this long-term marriage. Kaur's physical and emotional condition suffered at the hands of Singh's long term abuse prevents herfrom finding work that would allow herto maintain the standard of living Singh enjoys. And the 

### $1,000 maintenance payment—which fails to covereven Kaur's monthly expenses—is only 30 percent ofSingh's monthly net income. The court's decision here is further supported by the markedly unequal property 

### division.11 In Sheffer, we discussed thefactors atrial courtshould considerin awarding maintenance. Citing our Supreme Court's decision inWashburn, we noted: Several more recent cases have also emphasized that the economic condition in which a dissolution decree leaves the parties is a paramount concern in determining issues ofproperty division and maintenance. In In re Marriage of Washburn, 101 Wash.2d 168, 181, 677 P.2d 152 (1984), the court pointed out that consideration ofthe duration ofthe marriage and the standard of living during the marriage as mandated by RCW 26.09.090 makes "itclearthat maintenance is not just a means of providing bare necessities, but rather a flexible tool by which the parties' standard of living may be egualized for an appropriate period oftime." Washburn, 101 Wash.2d at 179, 677 P.2d 152. Sheffer, 60 Wn. App. at 55 (emphasis added). We emphasized that maintenance may be used "as a flexible tool to more nearly equalize the postdissolution standard of living 

### ofthe parties, where the marriage is long term and the superiorearning capacity ofone spouse is one ofthe few assets ofthe community." Sheffer, 60 Wn. App. at 57. "Acareful reading of RCW 26.09.090 reveals that the trial court is not only 

### permitted to considerthe division of property when determining maintenance, but it is required to do so." Inre Marriage of Rink, 18 Wn. App. 549, 552-53, 571 P.2d 210 

### (1977). Likewise, the trial court, when dividingthe property, may take intoaccountthe amount ofmaintenance itintends to grant. RCW 26.09.080. In In re Marriage of Tower, 

### 11 Singh fails tomention the court'sunequal division ofproperty in hisfavor. -14-69698-0-1/15 55 Wn. App. 697, 780 P.2d 863 (1989), we upheld the amount and permanent duration of a maintenance award in a 19-yearmarriage where the wife had multiple sclerosis that substantially limited her activities and the husband received 63 percent ofthe property. Tower, 55 Wn. App. at 701-04. We noted thatthe disproportionate division of property weighed infavor of awarding long-term maintenance: "[The husband] has 63 percent of the property; [the wife] has only 37 percent. Such a disproportionate community property award infavor ofthe only spouse with any significant earning capacity would be an abuse ofdiscretion were in not balanced by long term maintenance." Tower, 55 Wn. App. at 701. As inTower, the disproportionate property division here supports the lifetime maintenance award. As discussed above, the court awarded Singh the entire $437,000 in community assets, including Singh's taxicab and taxicab licenses—his means of earning substantial income. Kaur received a $109,000judgment against Singh. 

### Assuming Singh pays thejudgment, he stillhas $328,000 inassets remaining and available to him. This amounts to 75 percent ofthe property, leaving Kaur with only 25 percent. "[T]he economic condition in which a dissolution decree leaves the parties is a 

### paramount concern indetermining issues ofproperty division and maintenance." Washburn, 101 Wn.2d at 181. Likethe husband inTower, Singh undisputedly received 

### most ofthe parties' community assets and is the only spouse with any significant 

### earning capacity.12
12We decline toaddress Singh's social security and education claimsbecause he raises them for the first time on appeal. RAP 2.5(a); Roberson v. Perez, 156Wn.2d 

### 33, 39, 123 P.3d 844 (2005) (An appellate court "'may refuse to review any claim of errorwhich was not raised inthe trial court.'") (quoting RAP 2.5(a)). We also decline to -15-69698-0-1/16

The trial courtfindings here appropriately considered the parties' disparate economic positions afterthe dissolution and support its conclusion that permanent 

### maintenance isnecessary.13 Singh also contends the trial court erred because it "seems to have relied on marital misconduct in its order ofmaintenance." Appellant's Br. at 18. The record undermines this claim. The trial court properly considered Singh's physical and emotional abuse of Kaur to determine her presentemployability and prospective earning capacity. A trial court may consider allfactors relevantto the parties' economic circumstances inmaking its disposition ofproperty and maintenance award, including physical abuse as itrelates to a spouse's emotional condition and ability to support himselfor herself. See In re Marriage of Foran. 67 Wn. App. 242, 258-59, 834 P.2d 1081 (1992) (evidence that husband physically abused wife during marriage was properly admitted for purpose ofdetermining wife's need for maintenance, despite husband's contention thattrial court erroneously considered fault in making its maintenance award). We presume the trialjudge knows the rules ofevidence and considers only the evidence properly before the court and only for proper purposes. In reweigh the evidence regarding lifestyle and disability. It is the trial court's prerogative and duty to weigh the evidence and the statutory factors, not ours. Zahm, 138 Wn.2d at 227; Brossman, 32 Wn. App. at 854-56. 

### 13Again, we note thedisparity in theproperty division. Singh received all ofthe parties' total $437,000 incommunity assets, and Kaur received a $109,000judgment 

### against Singh. Even assuming Singh pays thejudgment, he is left with$328,000 ($219,000 more than Kaur). Without considering any otherfactor, this disparity alone would justify over 18 years ofmaintenance ($219,000 difference paid in monthly installments of$1,000). Further, as discussed above, the maintenance obligation terminates upon Kaur's remarriage. -16-69698-0-1/17

re Welfare ofHarbert, 85 Wn.2d 719, 729, 538 P.2d 1212 (1975). The record plainly shows the court properly considered the undisputed evidence ofphysical and emotional abuse suffered by Kaur to determine Kaur's need for maintenance underthe circumstances here. The trial court acted well within its broad discretion to award lifetime monthly maintenance of$1,000 to Kaur. 

### Attorney Fees14 Kaur requests an award ofattorney fees on two theories: RCW 26.09.140 (dissolution

- attorney fees) and In re Marriage of Healy, 35 Wn. App. 402, 406, 667 P.2d 114 (1983) (meritless appeal). We may award attorney fees to either party in a maintenance action. RCW 26.09.140. Determining whether a fee award is appropriate under RCW 26.09.140 requires the court to considerthe parties' relative ability to pay and the arguable merits ofthe issues raised on appeal. Leslie v. Verhey. 90 Wn. App. 796, 807, 954 P.2d 330 (1998). Given the trial court's findings inthis case and the parties' 

### financial affidavits submitted onappeal,15 thetrial courtisin the bestposition to

14Citing RAP 10.4(d), Singh contendsthatKaur's brief"improperly includes a motion for attorney fees." Appellant's Reply Br. at 10. Singh misconstrues Kaur's request. Attorney fees must be requested in a briefand are available when they are 

### granted by "applicable law." RAP 18.1(a), (b). Kaur cited applicable law in her request for attorney fees. Singh's argument fails. 

### 15 Singhfiled an "Objection to Respondent's FinancialAffidavitand Motion to Strike Respondent's Financial Affidavit as Untimely." To have their financial resources 

### considered, the parties mustfile financial declarations at least 10 days before oral argument under RAP 18.1(c). 

### We agree with Singh that Kaur did notstrictly complywith RAP 18.1(c)'s time requirement forfiling her financialaffidavit. But this fact does notdefeat her requestfor an award ofattorney fees. RAP 1.2(a) provides: -17-69698-0-1/18

determine Singh's ability to pay Kaur's appellate fees. We remand to the trial court to determine Kaur's entitlementto and amount offees requested by Kaur on appeal. See 

### RAP18.1(i).16
CONCLUSION Forthe reasons discussed above, we conclude the trial court properly based its 

### lifetime maintenance award on a fair application of allthe statutoryfactors to substantial evidence presented at trial. We affirmthe lifetime maintenance award and the decree 

### of dissolution but remand solely for a determination on Kaur's entitlementto and reasonable amount ofattorney fees and costs on appeal.

WE CONCUR: 

# W^^/|<X C^7?(4 J

These rules will be liberally interpreted to promote justice and facilitate the decision of cases on the merits. Cases and issues willnot be determined on the 

### basis of compliance or noncompliancewith these rulesexcept in compelling circumstances where justice demands, subject to the restrictionsin rule 18.8(b). RAP 18.8(a), in turn, provides: 

### The appellate courtmay, on itsown initiative or onmotion of a party, waive or alter the provisions of any ofthese rules and enlarge or shorten the timewithin which an act must be done in a particularcase in order to serve the ends of justice. Based on the circumstances here, we waive the timeline and directthe trial courtto 

### consider both parties' financial affidavits. 

### 16While Singh's arguments arenotpersuasive, they arenotsoutterly devoid of merit as to be frivolous. -18-