IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
NO. 72518-1-1
MARJORIE A. WORTZ,
DIVISION ONE
Respondent,
and UNPUBLISHED OPINION G"
KIRK E. BUHNE,
Appellant. FILED: November 16, 2015 t
Leach, J. — Kirk Buhne challenges the judgment, award of maintenance,
and award of attorney fees in conjunction with the dissolution of his marriage to
Marjorie Wortz. Because Buhne fails to identify any legal error or establish an
abuse of the trial court's discretion, we affirm.
FACTS
Kirk Buhne and Marjorie Wortz married in 2004. Buhne is a Canadian
citizen. Several years before the marriage, he purchased a home in Victoria,
British Columbia. Shortly before the parties married, Buhne bought another
home in Tacoma, Washington. During the marriage, the couple primarily resided
in the Tacoma home. At various times before and during the marriage, Buhne
received substantial financial support from his parents.
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The parties separated in the summer of 2012. In August 2012, Wortz filed
a petition to dissolve the marriage in King County Superior Court.1 At the time,
Buhne had equity of approximately $328,000 in his Victoria home. About a
month later, Buhne filed a mortgage on his Victoria property in favor of his
parents, securing payment of $315,000. Wortz filed a lawsuit in Canada
challenging the validity of the mortgage under Canadian law.
Following a seven-day trial in July 2014 on Wortz's petition, the King
County Superior Court entered a decree and orders dissolving the marriage and
distributing the property. The court determined that both the Tacoma and
Victoria residences were Buhne's separate property and awarded those assets to
him. The court also awarded to Buhne the construction material supply business
that he formed and operated during the marriage.
The court ordered Buhne to pay monthly maintenance to Wortz for three
years. The court ordered payment of $3,500 per month for two years and $2,500
per month for an additional year. In awarding maintenance, the court expressly
found that the lack of substantial earnings and assets in the United States did not
permit a just and equitable division of property. The court also entered a
judgment against Buhne for $44,500, representing the amount of maintenance
and other payments Buhne owed under pretrial temporary orders. In addition,
1Wortz resided in King County when she filed the petition.
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the court ordered Buhne to pay attorney fees of $70,000 to Wortz. Buhne
appeals.
ANALYSIS
Representing himself on appeal, Buhne raises four issues. First, he
claims that the trial court failed to consider and apply Washington's Uniform
Fraudulent Transfer Act (UFTA), chapter 19.40 RCW. Next, he challenges the
trial court's refusal to offset against a judgment for unpaid temporary
maintenance the value of certain property he claims Wortz received. He also
challenges the amount and duration of maintenance awarded to Wortz. Finally,
he challenges the trial court's attorney fee award to Wortz. We address these
claims in the order identified.
UFTA
Buhne asks this court to remand the case for the trial court to consider
and apply the UFTA. Buhne acknowledges that the Canadian court has not
resolved litigation to determine the validity of the mortgage on his Victoria
property in favor of his parents. He nevertheless contends that if the Canadian
court upholds the mortgage, the trial court must reconsider his ability to pay the
maintenance and attorney fees ordered.
The court awarded Wortz maintenance totaling approximately $114,000,
to be paid over three years, in lieu of a property award. In doing so, the court
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considered the relative earning capacities of the parties, the absence of assets of
significant value located in the United States, and the fact that Buhne failed to
prove that he had substantial outstanding debts, apart from the bank mortgages
on the Tacoma and Victoria properties. Based on the testimony at trial of Buhne
and his parents, the court found that Buhne received financial support from his
parents in the form of gifts, not loans:
The court does not accept Mr. Buhne's assertions concerning
"debts" he claims he owes to his parents for "loans." The
considerable financial support that Mr. Buhne has received from his
parents has variously been characterized by both Mr. Buhne and by
his parents, who testified at trial, as gifts, advances on expected
inheritance, and loans. However, it does not appear that any
contemporaneous accounting or records for these "loans" was ever
kept—either by Mr. Buhne or by his parents. Nor did Mr. Buhne's
receipt of cash from his parents carry any of the hallmarks typically
associated with a loan, such as agreements regarding dates and
methods for repayment of either principal or interest. No security
for repayment was recorded during the marriage—it was only after
Ms. Wortz filed her petition for temporary orders that Mr. Buhne
caused a mortgage in favor of his parents to be recorded on the
Medana home in Victoria, B.C. While the legal status of that
recording will be decided by the British Columbia court pursuant to
B.C. and Canadian law, this court for purposes of this proceeding is
characterizing the cash Mr. Buhne received from his parents as
gifts, rather than as loans.
Wortz did not contend at trial that Buhne violated the UFTA by filing a lien
on his home. And Buhne maintained only that he was obligated to repay
numerous loans made to him by his parents. Although he now argues at length
that the mortgage in favor of his parents does not contravene the UFTA, he did
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not make this argument to the trial court. Generally, this court does not consider
arguments raised for the first time on appeal.2 RAP 2.5(a) states in pertinent
part,
The appellate court may refuse to review any claim of error which
was not raised in the trial court. However, a party may raise the
following claimed errors for the first time in the appellate court: (1)
lack of trial court jurisdiction, (2) failure to establish facts upon
which relief can be granted, and (3) manifest error affecting a
constitutional right.
Buhne does not address RAP 2.5(a) in his briefing. He merely suggests
that his failure to make an argument under the statute below is "irrelevant." He
raises no claim of a constitutional or jurisdictional dimension. Buhne fails to meet
his burden to identify a basis for reviewing his claim for the first time on appeal.
Even if Buhne had preserved the error, a finding that he did not transfer an
asset to his parents with "actual intent to hinder, delay, or defraud" a creditor
within the meaning of the UFTA would not necessarily conflict with or undermine
the trial court's determination that the funds Buhne received from his parents
over the years were gifts.3 Nothing in the record suggests that a conclusive
determination of the amount of equity in the Victoria home would have affected
the court's decisions regarding maintenance or fees. The court did not rule on
the validity of the mortgage or assign a particular value to Buhne's equity in the
2 LK Operating, LLC v. Collection Grp.. LLC. 181 Wn.2d 117, 126, 330
P.3d 190(2014).
3 See RCW 19.40.041(a).
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Victoria home at the time of the 2014 trial. The court relied on multiple factors to
make its decision on the amount and duration of maintenance, including Wortz's
mental health status and the parties' current relative earning capacities. And
since the court awarded attorney fees on the alternative basis of intransigence,
the value of Buhne's assets is not relevant to this award.4 Finally, Buhne claims
that a future determination by the Canadian court will require recalculation of the
maintenance. If he decides that the Canadian court's final decision establishes a
substantial change of circumstances, RCW 26.09.170 provides Buhne's remedy,
a request to modify maintenance.
UNPAID PRETRIAL MAINTENANCE
Buhne concedes that the court's award of $44,550 reflects the amount of
his unpaid pretrial obligations. He claims, however, that the trial court should
have offset the judgment by $22,500, to account for community property Wortz
received while trial was pending.
Buhne fails to appreciate the trial court's broad discretion to divide and
distribute assets in a dissolution proceeding.5 Appellate courts give great
4 See In re Marriage of Greenlee, 65 Wn. App. 703, 708, 829 P.2d 1120
(1992) (if a spouse's intransigence caused the other spouse to incur additional
legal services, "'the financial resources of the spouse seeking the award are
irrelevant'") (quoting In re Marriage of Morrow. 53 Wn. App. 579, 590, 770 P.2d
197(1989)).
5 See In re Marriage of Buchanan, 150 Wn. App. 730, 735, 207 P.3d 478
(2009).
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deference to the trial court's judgment in a dissolution action.6 We will not
overturn a trial court's decisions in a dissolution action unless the party
challenging the decision can show that the trial court abused its discretion.7 A
trial court abuses its discretion when its decision is manifestly unreasonable,
based on untenable grounds, or made for untenable reasons.8
The trial court expressly set forth its rationale in distributing the parties'
assets. The court determined that the only community asset of significant value
was Buhne's business and awarded it to him. The court also recognized that the
community had some interest in Buhne's separate real property assets.
However, because of the difficulty in assigning a specific value to that interest,
the dearth of significant liquid assets, and Wortz's previous receipt of more than
$20,000 of community assets, the court declined to impose a lien or to
compensate Wortz for her share of the community's interest. On the other hand,
the court awarded significant maintenance to Wortz postdissolution and imposed
judgment for the full amount of maintenance she should have received while the
action was pending.
6 In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985).
7 In re Marriage of Bowen, 168 Wn. App. 581, 586, 279 P.3d 885 (2012).
8 Bowen, 168 Wn. App. at 586.
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NO. 72518-1-1/8
In determining the overall division of property and maintenance, the court
expressly considered the pretrial distribution of community assets to Wortz.
Buhne fails to demonstrate that the trial court abused its discretion.
POSTTRIAL MAINTENANCE
Buhne challenges the amount and duration of maintenance. He claims
that in determining his ability to pay maintenance, the trial court overestimated
the value of his business, inflated his earning capacity, and underestimated his
expenses. He argues that this court should reduce the term of maintenance to
two years and the payment amount to no more than "50% of [his] documented
net income for the last two years on record."
This court reviews the trial court's award of maintenance for abuse of
discretion.9 The relevant statutory factors the court must consider include each
party's financial resources; the age, physical and emotional condition, and
financial obligations of the spouse seeking maintenance; the standard of living
during the marriage; the duration of the marriage; and the time needed to acquire
education necessary to obtain employment.10 Ultimately, the court has as its
primary concern the parties' economic circumstances postdissolution.11 The only
9 In re Marriage of Zahm. 138 Wn.2d 213, 226-27, 978 P.2d 498 (1999).
10 RCW 26.09.090.
11 In re Marriage of Williams, 84 Wn. App. 263, 268, 927 P.2d 679 (1996).
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limitation on the amount and duration of maintenance under RCW 26.09.090 is
that in light of relevant statutory factors, the award must be just.12
In particular, Buhne argues that the court failed to properly evaluate the
goodwill portion of his business. But, as the trial court observed, Buhne did not
present the court with sufficient evidence "to value the business with confidence."
The record on appeal does not include any trial exhibits. It is not clear what, if
any, evidence Buhne offered with regard to the overall value of the business or
the value of goodwill. Buhne presented the testimony of an accountant, but he
did not value the business. Instead, the expert testified about the income
generated by the business over a 17-month period, between October 2011 and
March 2013, and concluded that the business generated annual income during
that period of $28,000. The court determined that the business had a value of at
least $56,000, twice the annual income figure testified to by Buhne's expert.
Buhne points to no contradictory evidence of value, and we cannot say that the
trial court's reliance on Buhne's expert's opinion regarding business income to
approximate value was unreasonable or an abuse of discretion.
For earning capacity, the court found that Buhne's historical earnings
ranged between $57,000 and $80,000. According to Buhne's expert, Buhne had
personal income of $57,000 for the period he examined. The court noted,
12 In re Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990).
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however, that the expert had access to limited documents and that other
documents considered by the court indicated that Buhne had annual income over
$80,000. Buhne had not filed personal or business income taxes in the United
States since 2005 and provided no income tax returns.
The testimony of Buhne's expert witness supports the court's
determination that he previously earned at least $57,000. To the extent that
Buhne testified that some business income generated after 2012 should not have
been included in the calculation of his personal income because a former
business associate conducted some independent transactions through the
business, the court was not compelled to accept this explanation. The court
expressly found that Buhne offered contradictory or otherwise not credible
testimony throughout the proceedings.
Buhne does not dispute the court's determination that documents in the
record indicate that his income exceeded $57,000. However, he challenges the
accuracy of the $80,000 figure because it includes loans from his parents which
he must repay and includes rental income without accounting for the mortgage
payments on those properties. He also claims that the court should have
deducted amounts he is obligated to contribute for the costs of his children's
postsecondary education in Canada.13 But the court refused to characterize the
13 Testimony at trial established that Buhne's daughter's college expenses
were between $5,000 and $6,000 per year. Buhne's son was not yet in college,
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NO. 72518-1-1/11
financial support Buhne's parents provided as loans. And because the court did
not calculate Buhne's net income, it was not necessary to deduct expenses or
exclude rents.
Buhne also challenges the court's determination that he will be able to
resume operation of a "defunct" business. But, here again, the court did not
accept Buhne's claim that he had not operated the business since 2011 or early
2012. And, in any event, the court's determination of Buhne's earning capacity
based on his historical earnings does not equate to a finding that Buhne will
necessarily be able to rebuild his business to its previous level.
Finally, Buhne claims that the evidence affirmatively established that
Wortz will be able to reenter the work force within two years of the dissolution.
He argues, therefore, that the court abused its discretion by ordering him to pay
maintenance for three years. However, Wortz's therapist merely predicted that
with appropriate mental health treatment, Wortz could be "functioning" within a
year or two. And the expert Buhne retained to evaluate Wortz's mental health
status did not assess her ability to obtain and maintain gainful employment.
and the amount of his future expenses was unknown. Again, to the extent Buhne
claims that his support obligation to Wortz must be reevaluated based on
circumstances that have arisen after trial, such as increased child educational
support obligations or fluctuation in the currency exchange rate, his remedy is to
seek modification under the support statute. See RCW 26.09.170(1).
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NO. 72518-1-1/12
In sum, nothing in the record suggests that the amount or duration of
maintenance for three years fell outside of the acceptable range of choices or
that the court otherwise abused its discretion.
ATTORNEY FEES
The court ordered Buhne to pay attorney fees to Wortz based on the
following finding:
The petitioner has the need for the payment of fees and costs and
the other spouse has the ability to pay these fees and costs. The
petitioner testified at trial that she has incurred attorney fees and
costs [of] an amount in excess of $100,000. The court finds that,
due to the parties' respective earning capacities and financial
status, as well as due to Mr. Buhne's intransigence in failing to
provide complete and timely discovery, and in failing to obey court
orders, it is reasonable to require Mr. Buhne to pay $70,000 to Ms.
Wortz's attorney for attorney fees and costs.
A trial court has discretionary authority to order an award of attorney
fees.14 RCW 26.09.140 allows a trial court to award attorney fees after
consideration of the financial resources of each party. Separate from this
statutory basis, a trial court may award a party legal fees caused by the other
party's intransigence.15 "Intransigence" means the quality or state of being
uncompromising.16 Intransigent conduct includes obstructionist behavior,
repeatedly filing unnecessary motions, or making a trial unduly difficult and
14 In re Marriage of Crosetto. 82 Wn. App. 545, 563, 918 P.2d 954 (1996).
15 Greenlee, 65 Wn. App. at 708.
16 In re Marriage of Schumacher. 100 Wn. App. 208, 216, 997 P.2d 399
(2000).
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costly.17 For fees awarded on this basis, the party's ability to pay the fee is
irrelevant.18
When making an award of fees for intransigence, the court should
segregate those fees caused by the intransigence from those incurred for other
reasons.19 But segregation is not required if the intransigence permeates the
entire proceedings.20 Buhne claims the trial court here did not find that his
intransigence permeated the proceedings. While the trial court made no finding
reciting this precise language, the court expressly and specifically determined
that Buhne "systematically disregarded and disobeyed court orders in connection
with this matter" and that he "displayed considerable additional intransigence
during the course of this litigation." The record supports these findings, and they
are equivalent to a finding characterizing Buhne's intransigence as pervasive.
Because his intransigence permeated the entire proceedings, the trial court was
not required to segregate the fees. And, here again, because the court awarded
fees on the alternative basis of intransigence, Buhne's arguments regarding his
lack of means to pay the fees awarded are irrelevant.21
17 Greenlee, 65 Wn. App. at 708.
18 In re Marriage of Foley, 84 Wn. App. 839, 846, 930 P.2d 929 (1997).
19 Crosetto, 82 Wn. App. at 565.
20 In re Marriage of Burrill, 113 Wn. App. 863, 873, 56 P.3d 993 (2002).
21 See Foley, 84 Wn. App. at 846; Greenlee, 65 Wn. App. at 708.
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NO. 72518-1-1/14
Wortz requests attorney fees on appeal based on "need and ability to pay"
and her contention that Buhne's appeal is frivolous. Under RCW 26.09.140, we
consider "the arguable merit of the issues on appeal and the financial resources
of the respective parties."22 And "[a]n appeal is frivolous ifthere are no debatable
issues on which reasonable minds might differ and it is so totally devoid of merit
that there is no reasonable possibility of reversal."23 Any doubt about whether an
appeal is frivolous is resolved in the appellant's favor.24 Wortz has not filed a
financial affidavit in this matter in accordance with RAP 18.1(c) to demonstrate
her financial need. Exercising our discretion, we decline to award fees on
appeal.
Affirmed.
jLJj
WE CONCUR:
jfl 4*>4 f^s^.. VvO ,
22 In re Marriage of Booth, 114 Wn.2d 772, 779, 791 P.2d 519 (1990).
23 In re Marriage of Schnurman, 178 Wn. App. 634, 644, 316 P.3d 514
(2013), review denied, 180 Wn.2d 1010 (2014).
24 Schnurman, 178 Wn. App. at 644.
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