Heidi K. Kaplan v. Donald C. Kaplan

?ILO"
APPEALS ON I
COIAT OF WASIAttIGIOti
STATE OF
it St 10
2.3111 JUL 23

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of ) No. 76306-7-1
)
HEIDI K. KAPLAN, )
)
Appellant, )
) DIVISION ONE
and )
)
DONALD C. KAPLAN, ) PUBLISHED OPINION
)
Respondent. ) FILED: July 23, 2018
)

MANN,A.C.J. — Heidi Kaplan appeals the division of property, award of

maintenance, and child support calculation. She argues that the trial court failed to

recognize the long-term marriage and to allow her to maintain her predissolution

economic status, improperly imputed income to her for child support, and failed to

award her attorney fees. We reverse the trial court's decision to impute income for child

support. We affirm on all other issues.

FACTS

Donald Kaplan and Heidi Kaplan married on October 7, 1990.1 After a marriage

of 25 years, Donald and Heidi separated on July 20, 2015. Donald filed a dissolution

1 We refer to the parties by their first names in order to avoid confusion. No disrespect is
intended.
No. 76306-7-1/2

action on July 6, 2015, in Harris County, Texas. Heidi filed her petition for dissolution in

the King County Superior Court on July 15, 2015. After concluding that Washington had

jurisdiction over the dissolution, the Texas court dismissed Donald's petition without an

award of costs to either party. A five-day bench trial in King County Superior Court

began on June 20, 2016.

At the time of the dissolution, Donald was a business development manager at

Phillips 66. Donald had worked for Phillips 66, or its predecessor company, since 1990.

Donald's career required the family to move four times for different positions. The family

had lived in Seattle since 2001. Donald accepted a promotion in 2014 and transferred

to Houston. Heidi and their two children remained in Seattle. At the time of trial,

Donald's gross monthly salary was $19,802 monthly and $237,624 annually. Including

his average annual bonus, Donald's annual salary was approximately $387,000 per

year.

In 2014, Donald and Heidi discussed Donald's desire to retire after their youngest

daughter, Sophie, graduated from high school. During trial, Donald testified that he

intended to retire in roughly four years. Donald also testified he had concerns about his

continued employment at Phillips 66. Brent Longnecker, a consultant who advises

energy companies in strategy, governance, and executive pay testified on behalf of

Donald. Longnecker testified that Donald's position in business development and

acquisitions was at risk because oil companies are less inclined to make capital

expenditures and expand their business.

Heidi graduated from Syracuse University in 1985 with a Bachelor of Science

degree in speech communications and rhetorical studies. After graduating, Heidi

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pursued a career in product development and merchandising until their older daughter,

Jillian, was born in 1996. The Kaplan's second daughter, Sophie, was born in 1999.

Heidi remained at home to take care of Jillian and Sophie from 1996 until the time of

trial in June 2016. At the time of the trial, Jillian was 20 years old and in college in

California; Sophie was 17 and a high school senior in Seattle. Over the years, Heidi

volunteered at Jillian and Sophie's schools, including acting as president of the parent

teacher association. In doing so, she organized fundraisers and events, engaged in

community outreach, and managed volunteers. Heidi also attended workshops and

courses, such as a grant writing course and an art history course.

At trial, Heidi argued that she was at the time unemployable. David

Goodenough, a vocational counselor, testified in support of this contention.

Goodenough assessed both Heidi's immediate employability and her long-term career

capabilities as of May 2016. Goodenough offered his expert opinion that Heidi was not

currently employable except at a "low end"job. Goodenough testified that Heidi

required retraining to secure marketable skills, a process that would require time.

The trial court entered findings of fact, conclusions of law, and a final dissolution

decree on October 25, 2016. As for the distribution of property, the court found, and the

parties do not dispute, that the overall value of the estate was $5.2 million. Donald

asked the court to effectively award him 50 percent of the community property. Heidi

asked the court to effectively award her 60 percent of the community property. The trial

court concluded that "[w]hen the Court considers the nature and extent of all the

property, the duration of the marriage and the financial position of each party, it finds

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that a fair and equitable division is the allocation of 55% of the assets to Ms. Kaplan and

45% to Mr. Kaplan."

The trial court next addressed maintenance for Heidi. The trial court found that

Donald's salary was likely to stay flat or experience only small increases and that future

bonuses were unlikely. The trial court also found that Donald hoped to retire in 2020.

Heidi requested maintenance in the amount of $18,850 per month for 12 years, until

Donald was 66 years old in 2028. Donald agreed that Heidi should receive

maintenance, but asked the court to order maintenance for 5 years at $9,500 per

month. After finding that Donald would continue working for roughly four more years,

that Heidi was healthy, well educated, and had maintained a basic skill set, and that

both parties' monthly expenses were approximately $10,000, the trial court awarded

maintenance to Heidi at $10,000 per month for 6 years, until August 2022. The court

also noted that Heidi may "choose to enroll in an education program," but stated the

court "is not specifically awarding maintenance in consideration of any such possible

program."

The parties agreed to a parenting plan. The court entered a child support order

imputing a monthly income of $2,714 after finding Heidi was "voluntarily

underemployed" under RCW 26.19.071(6). The trial court declined to award fees.

Heidi appeals.

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ANALYSIS

Distribution and Maintenance

1. Effect of Long-Term Marriage

Heidi's primary argument is that the trial court erred, as a matter of law, in failing

to place the parties in roughly the equivalent financial position they had before the

dissolution. We disagree.

Heidi's argument appears based on two incorrect premises. First, Heidi

repeatedly asserts that the trial court "must endeavor to place the parties in roughly the

equivalent financial position they had before the dissolution after the dissolution."

Heidi offers no legal authority for this assertion. Upon dissolution, the trial court must

provide for a just and equitable distribution of the parties' assets, liabilities, and income.

The predissolution economic circumstances of the parties is just one factor that the trial

court must consider. RCW 26.09.080(4)(disposition of property); RCW 26.09.090(1)(c)

(maintenance). Heidi is not "entitled to maintain her former standard of living as a

matter of right." Cleaver v. Cleaver, 10 Wn. App. 14, 20, 516 P.2d 508(1973).

Heidi also asserts that in distributing assets and awarding maintenance, the trial

court must follow the "overarching premise" that because of their long-term marriage,

the parties must be placed in roughly equivalent financial positions for the rest of their

lives. Heidi's argument is based on an overly narrow reading of the statement made by

this court in Marriage of Rockwell, 141 Wn. App. 235, 243, 170 P.3d 572(2007), that in

long-term marriages of over 25 years "the trial court's objective is to place the parties in

roughly equal financial positions for the rest of their lives."

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Rockwell, affirmed the trial court's unequal distribution of community property

after a long-term marriage. The trial court did not, however, limit its consideration to the

length of the marriage or conduct a mathematical analysis to ensure equal financial

positions for the rest of the parties' lives. Instead, the trial court examined a variety of

factors in reaching its decision to award an unequal distribution. As this court explained,

This requires considering the combination of the division of property and
the expected income and earnings of the parties. And, where one spouse
is older, semi-retired and dealing with ill health, and the other spouse is
employable, the court does not abuse its discretion in ordering an unequal
division of community property. Peter was younger, in good health and
employable at a substantial wage. Moreover, substantial evidence showed
that Carmen was retired, older and in poor health. Accordingly, the trial
court did not abuse its discretion when it compared Peter's age, health
and employability (and thereby, future earning capacity) against Carmen's
as a basis for its 60/40 split of the community property.

Rockwell, 141 Wn. App. at 249.

In a recent case, Division Three of this court considered and rejected an

argument similar to Heidi's. In Marriage of Doneen, 197 Wn. App. 941, 950, 391 P.3d

594, 599 (2017), review denied, 188 Wn.2d 1018, 396 P.3d 337(2017), the wife

appealed the trial court's property division that left her with less than 50 percent of the

marital assets. She argued that under Rockwell, the court was required to equalize the

financial circumstances of the parties because they had a long-term marriage. Doneen,

197 Wn. App. at 945. The court rejected this argument, holding that the objective

established in Rockwell "was permissive in nature, not mandatory, in nature." Doneen,

197 Wn. App. at 950. In affirming, the court noted that the trial court properly "declined

to utilize an inflexible rule, but rather properly considered all of the circumstances of the

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marriage and exercised its discretion to attain a result in accordance with RCW

26.09.080." Doneen, 197 Wn. App. at 951.

We agree with the analysis in Doneen. An objective of placing the parties to a

long-term marriage in "roughly equal" financial positions, is not a mandate for trial courts

to predict the future, divide assets with mathematical precision, or guarantee future

equality. The trial court must still exercise its discretion to consider all of the statutory

factors set out in RCW 26.09.080 and RCW 26.09.090(1)(c) and reach a just and

equitable distribution. We decline Heidi's request to hold that failure to place the parties

in roughly the equivalent financial position for the rest of their lives constitutes an error

of law. The objective stated in Rockwell, is just that, an objective, which is to be

considered as the trial court determines the "fair, just, and equitable division of the

property."

Accordingly, we review the trial court's distribution of property and award of

maintenance.

2. Distribution of Property

"The trial court's distribution of property in a dissolution action is guided by

statute." Rockwell, 141 Wn. App. at 242. The court must consider: "(1) the nature and

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

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

time the division of the property is to become effective." RCW 26.09.080. In

considering these factors, the court must make a "just and equitable" distribution of the

parties' property and liabilities, whether community or separate. RCW 26.09.080. All

property is brought before the court for distribution. Farmer v. Farmer, 172 Wn.2d 616,

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625, 259 P.3d 256 (2011). The trial court is in the best position to decide issues of

fairness. Brewer v. Brewer, 137 Wn.2d 756, 769, 976 P.2d 102(1999). Accordingly,

the court has "broad discretion" to determine what is just and equitable based on the

circumstances of each case. Rockwell, 141 Wn. App. at 242.

The trial court is not, however, required to divide community property equally.

"The longer the marriage, the more likely a court will make a disproportionate

distribution of the community property." Rockwell, 141 Wn. App. at 343. "In a long term

marriage of 25 years or more, the trial court's objective is to place the parties in roughly

equal financial positions for the rest of their lives." Rockwell, 141 Wn. App. at 242

(citing 2 WASH. STATE BAR ASS'N, WASHINGTON FAMILY LAW DESKBOOK § 32.3(3), at 32-17

(2d ed. 2000)). But "fflairness is attained by considering all circumstances of the

marriage and by exercising discretion, not by utilizing inflexible rules." Marriage of

Tower, 55 Wn. App. 697, 700, 780 P.2d 863(1989). As our Supreme Court explained

in Marriage of Konzen,

This court will not single out a particular factor, such as the character of
the property, and require as a matter of law that it be given greater weight
than other relevant factors. The statute directs the trial court to weigh all of
the factors, within the context of the particular circumstances of the
parties, to come to a fair, just and equitable division of property. The
character of the property is a relevant factor which must be considered,
but is not controlling.

103 Wn.2d 470, 478,693 P.2d 97(1985)

"A property division made during the dissolution of a marriage will be reversed on

appeal only if there is a manifest abuse of discretion." Marriage of Muhammad, 153

Wn.2d 795, 803, 108 P.3d 779(2005). "A trial court abuses its discretion if its decision

is manifestly unreasonable or based on untenable grounds or untenable reasons."

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Marriage of Larson, 178 Wn. App. 133, 138 313 P.3d 128 (2013). "If the decree results

in a patent disparity in the parties' economic circumstances, a manifest abuse of

discretion has occurred." Rockwell, 141 Wn. App. at 243.

The net value of the Kaplans' predissolution assets was calculated at $5.2

million, with the overall community property being valued at $4.77 million. The high

value community property items included:(1) the parties' house in the Montlake area of

Seattle, appraised at $1.3 million, with an existing mortgage of $370,057, for a net value

of $944,943;(2) Donald's Vanguard 401(k) savings account, with a net value of $1.8

million; and (3) a commonwealth account with a net value of $1.19 million. The parties

also split several lower value accounts. The trial court distributed the full value of the

Seattle house to Heidi; making Heidi also responsible for the mortgage. The trial court

unevenly divided the Vanguard 401(k) account, with over $1 million being distributed to

Heidi, and $768,225 being distributed to Donald. The trial court split the commonwealth

financial network account 50/50. In the end, Heidi received a net value of $2,627,298 in

community property and Donald received $2,149,434. It is undisputed that Heidi

received slightly over 55 percent of the community property.

Heidi acknowledges the trial court distributed the community property on a 55/45

basis in Heidi's favor, but argues the trial court erred by largely giving "Donald liquid

assets while giving her nonliquid assets like the marital home." Heidi argues that

Donald was left with his income and limited debts, whereas, she received the Seattle

house, which is "burdened with a substantial mortgage and major repair needs."

We hold the trial court did not abuse its discretion in its distribution. At trial, Heidi

specifically requested that she be awarded the house in Montlake, maintaining she did

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not wish to put it up for sale and divide the proceeds. Heidi testified that she intended to

live in the house then sell it after Sophie left home. Heidi does not contest the

stipulated net value of the house was $944,943, which took into account the mortgage

that encumbered the house. Heidi also received a larger share of the 401(k), totaling

more than a million dollars. The combined value of the house and the 401(k) account

established nearly half of the parties overall assets.

Because the house and the 401(k) each have such a high net value, they

necessarily would affect the other assets that Heidi would receive. The trial court had

no other way of accommodating these requests without also allocating other assets to

Donald "in order to make the division just and equitable." See Wright, 179 Wn. App. at

263. Some of which may have been more liquid. Heidi cannot now complain that she

received what she requested.

At trial, and on appeal, Heidi contends the house was less valuable because the

house was in need of substantial upgrades to remain livable, and argues the trial court

erred in finding the house did not need any immediate repairs. We review a trial court's

findings to determine whether they are supported by substantial evidence in the record.

Wilson, 165 Wn. App. at 340. This court will not "substitute its judgment for the trial

court's, weigh the evidence, or adjudge witness credibility." Rockwell, 141 Wn. App. at

242. "In determining whether substantial evidence exists to support a finding of fact, the

record is reviewed in the light most favorable to the party in whose favor the findings

were entered." Marriage of Gillespie, 89 Wn. App. 390, 404, 948 P.2d 1338(1997).

At trial, Heidi testified that the house had cracks in the walls and the driveway

required repair. The trial court acknowledged these cracks; however, the trial court

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found the testimony "was consistent that any work to be done is elective and not

necessary." The trial court reasoned,"[Heidi] did not present the Court with any

documentation from third party contractors about the work she indicated was necessary,

and what the cost would be to make repairs or improvements." We hold substantial

evidence supports this finding.

At trial, the parties agreed on a joint appraiser, Darcy Simmons. When Simmons

was performing her appraisal of the home, Heidi was present and pointed to issues with

the house, including the cracks in the plaster and the concrete. Simmons testified that

she took those cracks, and the overall condition of the property, into consideration for

her appraisal. When the appraisal was finalized, it was not conditioned on the repair of

the cracks.2 Because Heidi did not present evidence to support her claim that upgrades

or repairs would be necessary, or that the house was not structurally sound, the trial

court did not err in accepting the appraised value.

Heidi also argues that the trial court erred when it "overemphasized the separate

property status of some of the parties' assets." In this case, the trial court did preserve

the parties' various separate property—and the value of Donald's separate property far

exceeded Heidi's separate property.

Donald had several high value items that were identified as separate property:

(1) Donald's unvested stock award, valued at $90,176,(2) Donald's unvested restricted

stock units accrued after the date of separation with the net value of $150,908,(3)

Donald's Bank of America checking account with the net value of $46,122, and (4)

2 At trial, the parties admitted an engineering report, exhibit 7, which apparently stated, "the
cracks were cosmetic." However, this exhibit was not provided on appeal. The appraisal was
conditioned on the property not having structural damages. No structural damages were shown.
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Donald's personal share of the Vanguard 401(k) accruing after the separation with the

net value of $50,666. Heidi had two assets identified as separate property:(1)the

Michigan condominium Heidi co-owns with her brothers with the net value of $35,417

and (2) her Bank of America checking account with the net value of $16,227. Donald's

personal property was worth $373,642 and Heidi's was worth $51,644. Adding the

separate property to the community property each party received, Donald received

$2,523,076 and Heidi received $2,678,942. With the separate property considered, the

distribution percentage shifts slightly, with Heidi receiving 52 percent of the assets.

Heidi is correct that Washington courts no longer abide by a strict rule that

protects separate property from distribution. "Under appropriate circumstances," the

trial court "need not divide community property equally, it need not award separate

property to its owner." White v. White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001)

The court need only "make such disposition of the property and the liabilities of the

parties, either community or separate, as shall appear just and equitable after

considering all relevant factors." White, 105 Wn. App. at 549; RCW 26.09.080.

However, Heidi has not presented evidence or argument that the trial court

abused its discretion in not distributing Donald's personal property. With the separate

property considered, Heidi still received 52 percent of the assets, as well as

maintenance. The trial court did not abuse its discretion in preserving the parties'

personal property.

3. Maintenance

An award of maintenance is "a flexible tool by which the parties' standard of living

may be equalized for an appropriate period of time." Marriage of Washburn, 101 Wn.2d

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168, 179, 677 P.2d 152(1984). "The only limitation on amount and duration of

maintenance under RCW 26.09.090 is that, in light of the relevant factors, the award

must be just." Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394(1990). The

factors to be considered include, but are not limited to, "(1) the financial resources of the

party seeking maintenance,(2) the time needed to acquire education necessary to

obtain employment,(3) the standard of living during the marriage,(4) the duration of the

marriage,(5) the age, physical and emotional condition, and financial obligations of the

spouse seeking maintenance, and (6)the ability of the spouse from whom maintenance

is sought to meet his or her needs and obligations while providing the other spouse with

maintenance." Marriage of Valente, 179 Wn. App. 817, 821-22, 320 P.3d 115 (2014);

RCW 26.09.090. We review a trial court's award of maintenance for abuse of

discretion. Valente, 179 Wn. App. at 822.

The trial court awarded Heidi maintenance of $10,000 per month for 6 years,

ending in August 2022. Heidi argues on appeal that this maintenance award was an

abuse of discretion because "she is also saddled with heavy expenses to retrain for the

work force and to pay child support and post-secondary education expenses for her

daughters."

In this case, the trial court entered substantial findings explaining the factors it

considered in determining the amount and duration of the maintenance award. The trial

court's determination of $10,000 a month was based on evidence presented by Heidi

that she needed $10,000 a month to meet her expenses. Heidi did not dispute this

finding or provide any evidence that more was required. In determining the length of

time for maintenance, the trial court considered that Donald's income was substantially

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higher than Heidi's, and the evidence, provided by both parties, that Donald planned to

retire in roughly four years. The trial court also stated,"due to substantial assets

available to each party, it is clear that [Heidi] has a demonstrated capacity of self-

support."

Heidi first assigns error to the trial court's finding that Donald's "position might be

at some peril due to changes in the market place,.. . and that he would retire within a

few years." Asserting, "[b]oth determinations were entirely speculative." While there is

no guarantee when Donald will retire, both parties testified that Donald had stated he

wanted to retire in a few years. The trial court found this testimony to be credible and

the appellate court will not substitute its "judgment for the trial court's, weigh the

evidence, or adjudge witness credibility." Rockwell, 141 Wn. App. at 242.

Heidi next argues that the trial court failed to properly consider her expert's

testimony that she was currently unemployable, and argues the trial court erroneously

determined Heidi was healthy, well educated, and had maintained a basic skill set.

Contrary to Heidi's assertion, the trial court did recognize that Heidi was not

immediately employable in anything other than a minimum wage position in the ruling.

The trial court did, however, discount Heidi's expert testimony, finding

Mr. Goodenough didn't start work until May 2016. His testimony, in
particular the vocabulary he used such as "displaced homemaker" and
"trying on the dress" and his indication that he believed that Ms. Kaplan
needed to stay home to parent her children, certainly communicated that
Mr. Goodenough is operating within an expired and outdated framework.
That, and his limited time to evaluate Ms. Kaplan, certainly led this Court
to consider his testimony in a very limited manner.

Again, we reserve the determination of witness credibility for the trial court. Rockwell,

141 Wn. App. at 242. Even considering Heidi's employability, the trial court determined,

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"based on the parties' asset base,[Heidi] does not have an imminent need to secure

employment." This was not an abuse of discretion.

Heidi argues, however, that the trial court erred in relying on her "asset base"

because she should not be required to sell her house or to use the amount given to her

in the 401(k). This argument is not supported by law. To the contrary, "[t]he trial court

may properly consider the property division when determining maintenance, and may

consider maintenance in making an equitable division of the property." Marriage of

Estes, 84 Wn. App. 586, 593, 929 P.2d 500(1997). Heidi was awarded the family

home and other assets for her to use to maintain her standard of living. The trial court

did not err in considering the assets in awarding maintenance.

Moreover, even if Heidi decided not to use the assets to support her standard of

living, there is evidence in the record that six years of maintenance should provide

sufficient time to obtain any further education necessary to reenter the job market.

Heidi has not demonstrated this maintenance award was unjust or a manifest abuse of

discretion.

Child Support and Imputed Income

Heidi next argues that the trial court erred in its child support calculation by

finding she was voluntarily unemployed and imputing income to her because she was a

full-time stay at home mother. We agree.

We review child support orders for a manifest abuse of discretion. Marriage of

Griffin, 114 Wn.2d 772, 776, 791 P.2d 519(1990). In calculating child support, the trial

court must consider all income and resources of each parent's household. RCW

26.91.071(1). This includes income such as salaries, wages, interest and dividends,

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along with other sources of income including maintenance actually received. RCW

26.19.017(3)(q). The trial court is required to impute income to a parent when the

parent is "voluntarily unemployed or voluntarily underemployed." RCW 26.19.017(6).

The determination of whether a parent is voluntarily unemployed or underemployed is

"based upon that parent's work history, education, health, and age, or any other

relevant factors." RCW 26.19.017(6). "A court shall not impute income to a parent who

is gainfully employed on a full-time basis, unless the court finds that the parent is

voluntarily underemployed and finds that the parent is purposely underemployed to

reduce the parent's child support obligation." RCW 26.19.017(6).

The trial court found that based on her work history, education, health, and age,

Heidi was able to work and was therefore voluntarily unemployed. Based on its finding

that she was voluntarily unemployed, the court imputed income of $2,714 per month to

Heidi over and above the $10,000 per month in maintenance awarded to Heidi. The

trial court erred.

First, the trial court erred in failing to consider that it had already determined that

an award of $10,000 per month to Heidi for maintenance was appropriate based on the

statutory factors for awarding maintenance. Because RCW 26.19.071(3)(q) requires

the court consider maintenance as income during the time that Heidi is receiving

maintenance, the court erred in finding Heidi was voluntarily unemployed. Finding Heidi

was voluntarily unemployed is contrary to the purpose of awarding maintenance and the

child support statute. Moreover, the court failed to consider its own finding that "Ms.

Kaplan put her employment advancement on hold in support of the community;

specifically, so that she could care for the children as well as support Mr. Kaplan's

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career goals that took him out of town extensively." Care for the community and

children are "other relevant factors" that the trial court must consider in determining

whether Heidi was voluntarily unemployed. RCW 26.19.017(6).

Donald relies on three older cases from Divisions Two and Three of this court in

support of his argument that it would have been reversible error had the trial court failed

to impute income to Heidi. Marriage of Jonas, 57 Wn. App. 339, 788 P.2d 12(1990);

Marriage of Wright, 78 Wn. App. 230, 896 P.2d 735 (1995); Marriage of Pollard, 99 Wn.

App. 48, 991 P.2d 1201 (2000).

Jonas was a modification proceeding involving parents that were both voluntarily

unemployed postdissolution. The father was attending school and the mother chose to

stay at home to care for their children. Division Two concluded that because both

parties elected to remain unemployed for personal reasons, the trial court erred in failing

to determine and consider the mother's earning capacity. Jonas, 57 Wn. App. at 340-

41.

Similarly, in Wright, Division Two affirmed the trial court's decision declining to

award maintenance to the mother after concluding maintenance was not appropriate

under the statutory criteria and because an unequal distribution of property substantially

improved the mother's financial position. Wright, 78 Wn. App. at 237-38. Then, based

on the holding in Jonas, Division Two affirmed the trial court's imputation of $300 per

month income to the mother because she was working only half time at a hospital while

raising her five children.

In Pollard, Division Three reviewed the trial court's decision failing to impute

income in a modification proceeding. Under the terms of the initial dissolution, the

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mother was required to pay the father, the primary residential parent, $217 per month

for child support. After the mother remarried, she sought modification of the child

support because she had left full time employment and was instead staying home to

work "full time as a mother and homemaker." Pollard, 99 Wn. App. at 50-51. The trial

court agreed to the modification request and reduced the mother's obligation to $85 per

month. Pollard, 99 Wn. App. at 51. Division Three reversed after concluding that the

mother's choice to give up her previous salary was voluntary and motivated by the

decision to stay home and raise the two children from her new marriage.

The facts in this case are distinguishable from Jonas, Wright, and Pollard.

Moreover, to the extent Jonas, Wright, and Pollard stand for the proposition that a trial

court must impute income anytime a spouse voluntarily stays home in support of the

community to raise children, we decline to follow those cases. We hold that where, as

here, a spouse in a long-term marriage stays home to care for the children and manage

the household while the other spouse works outside the home, the court erred in finding

at the time of dissolution that Heidi was voluntarily unemployed and voluntarily

underemployed.3

Under the facts in this case, the trial court's decision to impute income to Heidi

for child support was a manifest abuse of discretion.4

3 The record established that Heidi had not been employed since the birth of their first child in
1996.
4 Heidi argues that the trial court was biased and requests reassignment to a new judge on

remand. The remedy of reassignment has limited availability: "even where a trial judge has expressed a
strong opinion as to the matter appealed, reassignment is generally not available as an appellate remedy
if the appellate court's decision effectively limits the trial court's discretion on remand." State v. McEnroe,
181 Wn.2d 375, 387, 333 P.3d 402(2014). Only "where review of facts in the record shows the judge's
impartiality might reasonably be questioned," will the appellate court remand the matter to another judge.
State v. Solis-Diaz, 187 Wn.2d 535, 540, 387 P.3d 703(2017). After reviewing the record in this case, we
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Attorney Fees

Heidi argues the trial court erred in not awarding her attorney fees due to

Donald's intransigence because he filed his original proceeding in Texas. Heidi also

argues that this court should award fees under RCW 26.09.140. We affirm the trial

court's ruling denying fees and deny fees on appeal.

At trial, the court denied the request for fees, stating "each party should pay

his/her own fees or costs." The court noted that "the parties have accessed community

funds to pay for their respective attorney's fees" and held,

[t]here is no evidence of intransigence. To the contrary, the parties have
been able to proceed through the course of their dissolution without the
need for Temporary Orders of any kind. They entered an Agreed
Parenting Plan at the time of trial. There is no evidence to suggest that
either party has acted in bad faith or with any intention to unnecessarily
increase the cost of litigation to the other, whether financially or
emotionally.

At trial, both parties acknowledged that Heidi had used community funds to pay

her attorney fees. Heidi later effectively withdrew her request for fees, stating, "I didn't

argue fees, because I'm not asking for fees. I had that section in the brief because I felt

that if Dr. Smith were forced to testify, it should be unnecessary, I was going to ask

compensation for that. But since it ultimately became unnecessary, I didn't pursue the

issue of fees."

We review attorney fee awards based on intransigence far an abuse of

discretion. Marriage of Babbitt, 135 Wn. App. 8, 29-30, 144 P.3d 306 (2006).

"Discretion is abused when the court's decision is outside the range of acceptable

hold the trial court's impartiality cannot"reasonably be questioned," and decline to order reassignment on
remand.

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No. 76306-7-1/20

choices or based on untenable grounds or untenable reasons." Wixom v. Wixom, 190

Wn. App. 719, 725, 360 P.3d 960 (2015). We hold the trial court did not abuse its

discretion. The only claim of intransigence is that Donald originally filed for divorce in

Texas. That proceeding was quickly dismissed and no further issues were raised. A

finding that Donald was not intransigent was not "outside the range of acceptable

choices."

Heidi also requests fees on appeal. This court may award costs and attorney

fees on appeal after considering the financial resources of both parties under RCW

26.09.140. Marriage of Wilson, 117 Wn. App. 40, 51, 68 P.3d 1121 (2003). In

considering the financial resources of both parties, the appellate court balances the

needs of the requesting party against the other party's ability to pay. Marriage of

Trichak, 72 Wn. App. 21, 26, 863 P.2d 585 (1993). Both parties argue they should be

awarded fees. After considering the record, we deny both parties' request for fees on

appeal. Each party is financially able to pay his or her attorney fees and neither would

be under a critical hardship to do so.

We reverse the trial court's decision imputing income to Heidi for child support

and remand for a recalculation of child support. We affirm on all other issues.

4cci
WE CONCUR:

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