IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

DAVID ROWE, ) 

) 

No. 74659-6-1 

Appellant, 

v. 

) 

) 

) 

DIVISION ONE 

LONNIE ROSENWALD, 

Respondent. 

) 

) 

) 

) 

UNPUBLISHED OPINION 

FILED: May 22, 2017 

C=t 

......., = a,. 

-c 

in;.) 

Chtz, 

—=.- i,. --tc - ,.., 

--1 rtr74 

) 

PO ----orLEACH, J. — David Rowe appeals the trial court's summary dismissakef. . -T-- :-. C7 th 

the lawsuit he filed after he and Lonnie Rosenwald separated. Because treir z.< 

property settlement agreement is procedurally fair, and thus enforceable, and no 

question of fact exists about whether they ever legally married or when their 

relationship ended, we affirm and remand for further proceedings consistent with 

this opinion. 

FACTS 

Rowe and Rosenwald began dating in 2008. Later that year, they became 

engaged, and Rowe gave Rosenwald an engagement ring. They began living 

together in January 2009. Soon after, they began discussing a property 

agreement. 

Rosenwald hired an attorney, Lori Rath, to draft an agreement. At first, 

she believed that Rath could represent them both. But Rath corrected this 
No. 74659-6-1/ 2 

misunderstanding. Rosenwald then told Rowe that he needed to hire his own 

lawyer either to draft or review the agreement. 

In May 2009, Rosenwald provided Rowe with a proposed agreement. 

Rowe had it reviewed by the attorney who had handled his divorce, Wolfgang 

Anderson. On Anderson's advice, Rowe refused to sign the agreement. 

Anderson sent Rath a letter in which he demanded that the agreement be 

changed to permit the creation of a community estate. Rosenwald would not 

agree to this change. 

Over the next few months, the parties negotiated over the agreement's 

terms. In August 2009, they signed a temporary agreement. It stated that they 

had been negotiating the agreement in good faith but needed more time to finish 

the agreement. A few months later, they signed a final agreement.1 

This agreement provides that each party shall own as that party's 

separate property all assets and debts acquired by that party before or during 

their relationship. The agreement requires that each party pay a share of 

household and living expenses. They established a joint bank account for the 

purpose of paying the shared living and household expenses. They agreed to 

contribute the same amount to the account each month. In addition, Rowe paid 

$730 per month as a "rental-type payment." 

1 Rosenwald signed the agreement on October 22, 2009. Rowe signed 

the agreement on November 21, 2009. 

-2- 
No. 74659-6-1 /3 

While Rowe acquired no ownership interest in Rosenwald's property, the 

agreement included a provision permitting Rowe to stay in Rosenwald's Mercer 

Island home if she died before he did. 

The agreement also included provisions about handling the end of the 

relationship. Specifically, if the relationship ended, Rosenwald was to provide 

Rowe with funds to assist with the costs of moving to a new residence. The 

parties also agreed to engage in 10 joint counseling sessions before ending their 

relationship. 

When the parties began their relationship, both were in their early- to mid50s, were divorced, and had children from a previous marriage. When Rowe 

moved into Rosenwald's home, he was employed. He lost his job several 

months later. During negotiations and when the parties signed the agreement, 

Rowe remained unemployed, but he later found work and was employed for 

three years. He earned over $100,000 in 2008 and $78,000 in 2009, despite his 

period of unemployment. In following years, Rowe earned over $100,000 

annually.2When he signed the agreement, he owed about $27,500 in credit card 

debt. 

Rosenwald earned $370,000 in 2008. When she signed the agreement, 

her assets included her Mercer Island home, a second house on Whidbey Island, 

2Rowe earned $116,965 in 2010, $116,798 in 2011, and $112,232 in 

2012. 

-3- 
No. 74659-6-1 /4 

and brokerage and retirement accounts with a combined value of over $1 million. 

She owed $195,000 for a mortgage on her Mercer Island home. 

In July 2011, the couple had a ceremony and party to celebrate their 

commitment. They referred to the ceremony as a wedding in e-mails and on 

social media. But Rowe acknowledges that they never obtained a marriage 

license. 

In June 2013, the parties ended their relationship. Rowe moved out of the 

Mercer Island home. He stayed in Rosenwald's Whidbey Island house until lateJuly. Rosenwald offered Rowe the $15,000 required by the agreement and 

asked him to sign a "Memorandum of Termination of Relationship." Rowe 

refused. 

In February 2015, Rowe filed a petition for legal separation, seeking 

disposition of assets, spousal maintenance, and attorney fees. Rosenwald 

moved for summary judgment. She claimed that the property agreement 

precludes Rowe's claims. Rowe filed a countermotion seeking a declaratory 

judgment that the agreement is invalid and unenforceable. Rowe filed a second 

motion for declaratory relief, asking the court to find that a valid marriage existed 

between Rosenwald and Rowe. 

The trial court found that reasonable persons could reach but one 

conclusion: that the agreement was "substantively and procedurally fair." Thus, 

-4- 
No: 74659-6-1 / 5 

it granted Rosenwald's motion and awarded her attorney fees as authorized by 

the agreement. It entered a judgment against Rowe for over $87,000 for attorney 

fees and costs. 

The court later denied Rowe's motion for reconsideration and granted 

Rosenwald's motion to strike the trial date without deciding whether the parties 

were married. 

Rowe appeals the trial court's decisions to grant summary judgment for 

Rosenwald and strike the trial date. 

STANDARD OF REVIEW 

We review summary judgment orders de novo, viewing all facts and 

reasonable inferences in the light most favorable to the nonmoving party.3We 

may affirm an order granting summary judgment on any basis supported by the 

record.4"Summary judgment is proper only when there are no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of law."5 

"To defeat summary judgment, [the nonmoving party's] evidence must set forth 

specific, detailed, and disputed facts; speculation, argumentative assertions, 

opinions, and conclusory statements will not suffice."6 

3Kellar v. Estate of Kellar, 172 Wn. App. 562, 573, 291 P.3d 906 (2012). 

4Steinbock v. Ferry County Pub. Util. Dist. No. 1, 165 Wn. App. 479, 485, 

269 P.3d 275 (2011). 

5Kellar, 172 Wn. App. at 573. 

6Sanders v. Woods, 121 Wn. App. 593, 600, 89 P.3d 312 (2004). 

-5- 
No. 74659-6-1/ 6 

ANALYSIS 

Enforceability of the Property Agreement 

Washington law allows parties in either a marriage or a committed intimate 

relationship (CIR) to make an agreement that alters the status of their property! 

Our Supreme Court has defined a CIR as a "stable, marital-like relationship 

where both parties cohabit with knowledge that a lawful marriage between them 

does not exist."8Absent a contrary agreement, our courts characterize and 

divide property acquired during a CIR in a similar manner to property acquired 

during a marriage and, thus, presume that all property acquired during a CIR is 

owned by both parties and subject to an equitable division.8 

When negotiating a property agreement, the parties' relationship of mutual 

trust and confidence requires that they exercise the highest degree of good faith, 

candor, and sincerity.10To decide the validity of an agreement, our courts apply 

the two-pronged test described in In re Marriage of Matson.11 This test requires 

7In re Parentage of G.W.-F., 170 Wn. App. 631, 638, 285 P.3d 208 

(2012). 

8Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995). 

Washington courts formerly described these relationships as "meretricious." But 

recognizing that term's negative connotation, the Supreme Court substituted the 

term "committed intimate relationship" in Olver v. Fowler, 161 Wn.2d 655, 657 

n.1, 168 P.3d 348 (2007). 

9Connell, 127 Wn.2d at 351. 

19In re Marriage of Matson, 107 Wn.2d 479, 483-84, 730 P.2d 668 (1986); 

G.W.-F., 170 Wn. App. at 645. 

11 107 Wn.2d 479, 482-83, 730 P.2d 668 (1986). 

-6- 
No. 74659-6-1 /7 

that the court first decide if the agreement is substantively fair.12An agreement 

is substantively fair when it makes reasonable provision for the party not trying to 

enforce it.13If the agreement is substantively fair, the inquiry ends.14If the 

agreement is substantively unfair, the court must then decide if it is procedurally 

fair.15When deciding if an agreement is procedurally fair, courts consider 

"(1) whether the spouses made a full disclosure of the amount, character, and 

value of the property involved and (2) whether the agreement was freely entered 

into on independent advice from counsel with full knowledge by both spouses of 

their rights."16An agreement is enforceable if it is either substantively or 

procedurally fair.17 

Here, Rosenwald seeks to enforce the agreement. Thus, she has the 

burden of proving its validity." Rosenwald has shown that no question of fact 

exists about the procedural fairness of the agreement. So the trial court properly 

decided to enforce it. 

Rowe had independent counsel. He does not dispute that all assets and 

liabilities were fully disclosed. The parties negotiated several terms of the 

12In re Marriage of Bernard, 165 Wn.2d 895, 902, 204 P.3d 907 (2009). 

13Bernard, 165 Wn.2d at 902. 

14Bernard, 165 Wn.2d at 902. 

15Bernard, 165 Wn.2d at 902. 

16Bernard, 165 Wn.2d at 902-03. 

17Kellar, 172 Wn. App. at 585-56 (concluding that an agreement was valid 

after considering only procedural fairness). 

18Kellar, 172 Wn. App. at 585. 

-7- 
No. 74659-6-1/ 8 

agreement over the course of many months. The months of negotiations show 

that Rowe entered into the agreement voluntarily and intelligently, with a full 

understanding of the consequences of the agreement.19In addition, by signing it, 

Rowe acknowledged the agreement's provisions that it "is fair and equitable" and 

that he entered into it voluntarily. For these reasons, the agreement is 

procedurally fair. 

Rowe asserts that the agreement was procedurally unfair because 

Rosenwald refused to negotiate the primary terms of the agreement she 

proposed and compromised only on minor terms. He relies on the court's 

statement in In re Marriage of Foran2° that "[t]he purpose of independent counsel 

is more than simply to explain just how unfair a given proposed contract may be; 

it is for the primary purpose of assisting the subservient party to negotiate an 

economically fair contract." But in Foran, the disadvantaged party did not have a 

lawyer, and the court described the importance of explaining to the nondrafting 

party the need for independent counse1.21 Here, Rowe had independent counsel 

who explained to him the legal consequences of signing the agreement and 

advised him not to sign it. In addition, Rowe's counsel took action on behalf of 

Rowe when he sent a letter to Rosenwald's counsel demanding the contract 

19Contra In re Marriage of Foran, 67 Wn. App. 242, 257, 834 P.2d 1081 

(1992). 

20 67 Wn. App. 242, 254, 834 P.2d 1081 (1992). 

21 Foran, 67 Wn. App. at 254-55. 

-8- 
No. 74659-6-1/9 

permit the parties to build community property. The agreement is not 

procedurally unfair simply because Rosenwald did not acquiesce to this demand 

or because Rowe disregarded his counsel's advice. 

Rowe also claims that the agreement is procedurally unfair because he 

signed it under economic and psychological duress. Specifically, he claims that 

he signed the document because Rosenwald took off her engagement ring and 

threatened to force him to move out if he did not sign. But these allegations do 

not show the agreement is procedurally unfair. 

First, he claims that if forced to move out, he would have been homeless. 

But he did not provide evidence to support this claim, and his speculation is 

insufficient to defeat summary judgment.22 

Next, Rowe relies on In re Marriage of Bernard23to show that 

Rosenwald's removal of her ring and threat to end the relationship created a 

procedurally unfair condition. Bernard does not support Rowe's position. Rowe 

claims the humiliation that he would have experienced by calling off the 

celebration coerced him into signing the agreement. But in Bernard, the 

disadvantaged party had only a few days to review the prenuptial agreement 

22See Sanders, 121 Wn. App. at 600 ("To defeat summary 

judgment, . . . evidence must set forth specific, detailed, and disputed facts; 

speculation, argumentative assertions, opinions, and conclusory statements will 

not suffice."). 

23165 Wn.2d 895, 204 P.3d 907 (2009). 

-9- 
No. 74659-6-1 / 10 

before the wedding date.24The proximity of the wedding date added to 

procedurally unfair conditions because she did not have adequate time to review 

the document.25Here, by contrast, the celebration did not take place until nearly 

two years after Rowe signed the agreement. Moreover, although Rosenwald 

removed the ring in August 2009 and wanted to end the relationship, she began 

wearing the ring again shortly afterward and was wearing the ring in October 

2009 when she signed the agreement. Rosenwald removing her ring during 

negotiations, many months before the celebration, did not create a procedurally 

unfair condition like those described in Bernard. 

Rowe's claim of duress also fails. First, he does not support it with any 

citation to relevant legal authority. Rowe cites cases that discuss the 

requirement that the parties act in good faith but make no mention of duress or 

coercion. We need not consider issues that a party does not support with citation 

to legal authority.26In the absence of adequate support, we need not consider 

Rowe's duress argument. 

24 Bernard, 165 Wn.2d at 906-07. 

25 Bernard, 165 Wn.2d at 906. 

26 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 

P.2d 549 (1992). 

-10- 
No. 74659-6-1 / 11 

Moreover, his duress argument lacks merit. A party seeking to rescind a 

contract based on duress must prove this defense by clear, cogent, and 

convincing evidence.27 

To establish duress or coercion, there must be proof of more than 

reluctance to accept or financial embarrassment. The assertion of 

duress must be proven by evidence that the duress resulted from 

the other's wrongful or oppressive conduct. The mere fact that a 

contract is entered into under stress or pecuniary necessity is 

insufficient. [28] 

Here, no evidence indicates any wrongful or oppressive conduct by Rosenwald. 

Rowe also asks the court to consider whether the agreement is 

substantively unconscionable.29He admits that no Washington case has applied 

the test for unconscionability to property agreements between spouses or 

cohabitants but claims that it should apply as a general principle of contract law. 

Rosenwald objects, asserting that applying the substantive unconscionability test 

here would modify the Matson test, contravening 50 years of precedent. We do 

not need to decide whether this defense applies to property agreements because 

Rowe provided no evidence that the agreement is substantively unconscionable. 

27In re Welfare of J.N., 123 Wn. App. 564, 576-77, 95 P.3d 414 (2004). 

29Retail Clerks Health & Welfare Trust Funds v. Shopland Supermarket, 

Inc., 96 Wn.2d 939, 944, 640 P.2d 1051 (1982). 

29See Adler v. Fred Lind Manor, 153 Wn.2d 331, 346-47, 103 P.3d 773 

(2004) (holding that where a contractual provision is substantively 

unconscionable, it may be invalidated even though it was not procedurally 

unconscionable). 

-11- 
No. 74659-6-1 / 12 

Because the agreement is procedurally fair, it is enforceable. The trial 

court properly concluded that the agreement governed disposition of the parties' 

property and thus precluded Rowe's claims. 

Striking the Trial Date 

Rowe next contends that the trial court should not have stricken the trial 

date after deciding to enforce the agreement. He contends that material issues 

of fact continue to exist about whether the parties were legally married and when 

their relationship ended. 

First, Rowe notes that if a jury concluded that they were married, he might 

be entitled to spousal maintenance and attorney fees.3° He correctly points out 

that RCW 26.09.090 and RCW 26.09.140 grant the trial court discretion to award 

spousal maintenance and attorney fees in divorce or legal separation 

proceedings. And, unlike with community property division, no court has applied 

these statutes by analogy to CIRs.31 Thus, we agree that Rowe's pursuit of 

maintenance and attorney fees depends upon him showing that he and 

Rosenwald were married.32 

30 Rowe cites Connell for the proposition that courts cannot award spousal 

maintenance in a CIR. In fact, that case involved disposition of assets and did 

not discuss maintenance. Connell, 127 Wn.2d at 349 (applying portions of 

RCW 26.09.080, governing distribution of property, to CIRs by analogy). 

31 Cf. Connell, 127 Wn.2d at 349; G.W.-F., 170 Wn. App. at 646-67. 

32In re Kelly, 170 Wn. App. 722, 740-41, 287 P.3d 12 (2012). 

-12- 
No. 74659-6-1 / 13 

Yet Rowe does not show a question of fact exists about whether he and 

Rosenwald were married. He provides evidence that they held a formal 

ceremony that they called a wedding during which they exchanged rings and 

vows. In addition, they indicated on their respective Facebook pages that they 

were "married." Rowe supplies several other examples of e-mails to friends and 

each other where the parties referred to the ceremony as a wedding or their 

relationship as a marriage. But Rowe admitted that they never obtained a 

marriage license and had no formal certificate. Thus, his claim ignores the body 

of case law that governs "marital-like relationship[s] where both parties cohabit 

with knowledge that a lawful marriage between them does not exist."33Here, the 

parties knew that they were not married. Their references to a "wedding" and 

representations on social media do not create a question of fact about whether 

they were ever married. 

We characterize their relationship as a CIR and apply the law accordingly. 

Because they were never married, Rowe is not entitled to maintenance under 

RCW 26.09.090 or attorney fees under RCW 26.09.140. 

Rowe also claims a trial is necessary to decide whether and when the 

relationship ended. If the relationship ended within five years of signing the 

agreement, Rosenwald owed Rowe $15,000. If the relationship ended more than 

33Connell, 127 Wn.2d at 346. 

-13- 
No. 74659-6-1/ 14 

five years after the agreement was signed, Rosenwald owed Rowe $30,000. 

The agreement also provides that the parties "will engage in joint counseling for a 

minimum of ten sessions before terminating the relationship." Rowe asserts that 

because evidence suggests that they did not complete these sessions, a 

question of fact exists about whether the relationship ever ended and, thus, 

whether Rosenwald owes him $30,000. Rosenwald does not discuss the 

counseling sessions, but she does assert that the relationship ended when Rowe 

moved out. 

As the parties' actions show, they did not need to complete the counseling 

sessions for their relationship to end. "It is hornbook law that the law does not 

require a useless act."34Here, fulfilling the counseling provision would have 

been pointless. By discontinuing counseling sessions, the parties waived this 

provision. By their other actions, the parties established that the relationship was 

over. 

No question of material fact exists, and no issues remain for a jury to 

resolve. The trial court properly struck the trial date. 

Fee Award 

Finally, Rowe challenges the fee award. The court awarded Rosenwald 

$84,178 in attorney fees based on the agreement's "reasonable" attorney fees 

34 Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 317, 334, 646 P.2d 

113 (1982). 

-14- 
No. 74659-6-1 / 15 

provision. Rowe asserts that any award is improper and, alternatively, that the 

amount of the award is unreasonable. 

First, Rowe asserts that because Rosenwald should not have prevailed in 

her summary judgment motion, the court's award was improper. Appellate courts 

"review a party's entitlement to attorney fees as an issue of law de novo."35"The 

general rule in Washington is that parties may not recover attorney fees except 

under a statute, contractual obligation, or some well-recognized principle of 

equity."36RCW 4.84.330 mandates an award of reasonable attorney fees to the 

prevailing party where a contract so provides.37As explained in this opinion, 

Rosenwald properly prevailed below. Thus, the trial court correctly decided to 

award her fees under the agreement. 

Second, Rowe challenges the reasonableness of the amount awarded. 

We review the amount of a fee award for abuse of discretion.38However, we 

cannot review the reasonableness of an award without findings of fact and 

conclusions of law.39The trial court must enter independent findings and 

conclusions to support an award of fees and cannot simply rely on the billing 

35Harmony at Madrona Park Owners Ass'n v. Madison Harmony Dev., 

Inc., 160 Wn. App. 728, 739, 253 P.3d 101 (2011). 

36Quality Food Ctrs. v. Mary Jewell T, LLC, 134 Wn. App. 814, 817, 142 

P.3d 206 (2006). 

37Singleton v. Frost, 108 Wn.2d 723, 729, 742 P.2d 1224 (1987). 

38Quality Food Ctrs., 134 Wn. App. at 817. 

38In re Marriage of Sanborn, 55 Wn. App. 124, 130, 777 P.2d 4 (1989). 

-15- 
No. 74659-6-1/ 16 

records and pleadings of the prevailing party.4° Here, the court awarded 

$87,378.88 for "fees and costs reasonably incurred" in the litigation but entered 

no findings of fact about the reasonableness of the award. This is insufficient to 

permit meaningful appellate review. We must remand for entry of supporting 

findings of fact and conclusions of law. 

Both Rowe and Rosenwald request fees on appeal. "'A contractual 

provision for an award of attorney fees at trial supports an award of attorney fees 

on appeal.'"41 As the prevailing party, we award Rosenwald fees incurred on 

appeal, with the amount to be determined by the trial court on remand. 

CONCLUSION 

Because the parties' property agreement is procedurally fair, it is 

enforceable. Because no material question of fact remains to be decided at trial, 

the trial court properly struck the trial date. In addition, the trial court properly 

awarded fees to Rosenwald as the prevailing party. In those respects, we affirm 

40 Mahler v. Szucs, 135 Wn.2d 398, 435, 957 P.2d 632 (1998), overruled 

on other grounds by Matsvuk v. State Farm Fire & Cas. Co., 173 Wn.2d 643, 272 

P.3d 802 (2012). 

41 Quality Food Ctrs., 134 Wn. App. at 818 (quoting Reeves v. McClain, 56 

Wn. App. 301, 311, 783 P.2d 606 (1989)). 

-16- 
No. 74659-6-1/ 17 

the trial court orders. But we remand for entry of findings of fact about the award 

of attorney fees and determination of fees on appeal. 

WE CONCUR: 

Cz72c,J 

-17-