IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Marriage of: No. 81843-1-I
BEN M. THIELHORN, DIVISION ONE
Appellant, UNPUBLISHED OPINION
v.
CHERYL THIELHORN,
Respondent.
CHUN, J. — Ben Thielhorn appeals the trial court’s maintenance award
arising from its order granting legal separation from his wife, Cheryl Thielhorn.1
We affirm.
BACKGROUND
After 24 years of marriage, Ben petitioned for legal separation from
Cheryl. In granting separation, the trial court granted Cheryl a lifetime
maintenance award of $1,620 each month. The trial court based the award on
the parties’ financial resources, the duration of their marriage, and Cheryl’s age,
physical condition, and ability to find work. The trial court stated that it intended
to equalize the parties’ income streams with the maintenance award.
Ben moved for reconsideration, which motion the trial court denied. The
trial court later converted its legal separation order to a dissolution decree.
1
For clarity, we refer below to the two as Ben and Cheryl. We intend no
disrespect.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 81843-1-I/2
ANALYSIS
Ben says the trial court erred in making the maintenance award to Cheryl,
improperly divided his indivisible veteran’s disability pension, and
misapprehended the effect of dissolution on Cheryl’s medical coverage. We
disagree. Cheryl requests an award of attorney fees, which request we deny.
A. Maintenance Award
Ben says that in granting the maintenance award, the trial court failed to
consider the mandatory statutory factors in RCW 26.09.090(1). He also says
that the trial court erred in granting Cheryl maintenance for life. We disagree.
We review for abuse of discretion a trial court’s maintenance award. In re
Marriage of Khan, 182 Wn. App. 795, 800, 332 P.3d 1016 (2014). “A trial court
abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons.” Id. (quoting In re Marriage of Valente,
179 Wn. App. 817, 822, 320 P.3d 115 (2014)). “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.” Khan, 182 Wn. App. at 800 (quoting Valente,
179 Wn. App. at 821). “On appeal, [the spouse challenging maintenance] has a
difficult burden—to demonstrate that the trial court awarded maintenance based
on untenable grounds or for untenable reasons considering the purposes of the
trial court's discretion. Broad discretion is given [to] the trial court.” In re
Marriage of Sheffer, 60 Wn. App. 51, 56, 802 P.2d 817 (1990).
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1. RCW 26.09.090(1) factor analysis
When deciding on a maintenance award during separation proceedings, a
trial court must consider all relevant factors, including, but not limited to:
(a) The financial resources of the party seeking maintenance,
including separate or community property apportioned to [them], and
[their] ability to meet [their] needs independently, including the extent
to which a provision for support of a child living with the party includes
a sum for that party;
(b) The time necessary to acquire sufficient education or training
to enable the party seeking maintenance to find employment
appropriate to [their] skill, interests, style of life, and other attendant
circumstances;
(c) The standard of living established during the marriage or
domestic partnership;
(d) The duration of the marriage or domestic partnership;
(e) The age, physical and emotional condition, and financial
obligations of the spouse or domestic partner seeking maintenance;
and
(f) The ability of the spouse or domestic partner from whom
maintenance is sought to meet [their] needs and financial obligations
while meeting those of the spouse or domestic partner seeking
maintenance.
RCW 26.09.090(1).
Ben’s argument that the trial court did not consider the mandatory
statutory factors suffers because he did not provide us with a verbatim report of
proceedings. In his statement of arrangements, he claims no transcript is
necessary, but we cannot say the trial court did not consider these factors
without a full record of what it considered. “The party presenting an issue for
review has the burden of providing an adequate record to establish such error.”
State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942 (2012); see also
RAP 9.2.
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And “[n]othing in RCW 26.09.090 requires the trial court to make specific
factual findings on each of the factors listed in RCW 26.09.090(1).” In re
Marriage of Mansour, 126 Wn. App. 1, 16, 106 P.3d 768 (2004).2
Ben has not borne his burden of showing that the trial court abused its
discretion by not considering the mandatory statutory factors.
2. Lifetime duration of award
Relatedly, Ben says the trial court erred by awarding Cheryl maintenance
for a term of life because it did not consider the mandatory statutory factors of
RCW 26.09.090. As addressed above, his argument suffers because he did not
provide us with a verbatim report of proceedings. Ben also says that permanent
maintenance awards are disfavored. But “[o]ur courts have approved awards of
lifetime maintenance in a reasonable amount when it is clear the party seeking
maintenance will not be able to contribute significantly to [their] own livelihood.”
In re Marriage of Mathews, 70 Wn. App. 116, 124, 853 P.2d 462 (1993).
Although, as the trial court recognized, Cheryl “can work,” she is 61 years old,
2
In any event, the trial court clearly considered factors (a), (d), (e), and (f) in its
written opinion. As to factors (a) and (f), the trial court explicitly considered both Ben
and Cheryl’s financial resources before entering the award. As to factor (d), it also
considered the duration of their marriage. As to factor (e), it considered Cheryl’s age
and her physical condition.
The trial court’s written opinion does not explicitly address factors (b) and (c)—
the time needed for Cheryl to achieve sufficient education or training, and the standard
of living established during the marriage. Cheryl argues that the trial court did not
explicitly consider these factors because they were not at issue here. She points to
Ben’s trial brief, in which he claimed that Cheryl would likely assert at trial that she had
no need for further education, and in which he claimed the parties are both able to live
off of $45,000 a year. While Cheryl states in her financial declaration that employers
consider her skills and education “Out of Date,” nothing in the record suggests that
Cheryl plans to pursue further education or training. And the parties’ financial
declarations show that, not accounting for Cheryl’s medical expenses, their monthly
expenses are roughly similar.
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unemployed, and has had difficulty finding work in her field—graphic design—
and described applying to more than 240 jobs without success. In such
circumstances, the trial court could have reasonably found that she would be
unable to contribute significantly to her own livelihood. Ben has not borne his
burden of showing that the trial court abused its discretion by granting a
permanent maintenance award.
We conclude the trial court acted within its discretion in making the
maintenance award to Cheryl.3
B. Veteran’s Disability Pension
Ben says the trial court improperly awarded Cheryl a portion of his military
disability payments. We disagree.
Washington courts “may not divide or distribute a veteran’s disability
pension, but [they] may consider a spouse’s entitlement to an undivided
veteran’s disability pension as one factor relevant to a just and equitable
distribution of property under RCW 26.09.080, and as one factor relevant to an
award of maintenance under RCW 26.09.090.” In re Marriage of Perkins, 107
Wn. App. 313, 322–23, 26 P.3d 989 (2001). A trial court’s decision is manifestly
unreasonable if it applies the incorrect legal standard. In re Marriage of Wilson,
165 Wn. App. 333, 340, 267 P.3d 485 (2011).
3
Cheryl argues that the trial court made a mathematical error in her favor when it
awarded maintenance to her but does not formally assign error to the trial court’s ruling
on this ground. Ben denies any error, despite Cheryl’s concession in his favor. We will
not consider issues on appeal that a party does not raise by an assignment of error and
thus decline to reach this issue. RAP 10.3(a)(4); LaMon v. City of Westport, 44 Wn.
App. 664, 669, 723 P.2d 470 (1986) (citing Transamerica Ins. Grp. v. United Pac. Ins.
Co., 92 Wn.2d 21, 28, 593 P.2d 156 (1979)).
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In Perkins, the trial court divided a military disability pension and termed
the amount owed from the pension “compensatory spousal maintenance.” 107
Wn. App. at 316. Division Two of this court characterized the split as a “dollar-
for-dollar division and distribution,” reasoned that the law “cannot be
circumvented simply by chanting ‘maintenance,’” and ruled that the trial court
erred by doing so. Id. at 323–24. But in remanding, the court stated that the trial
court could still award maintenance if it considered “the existence of an undivided
disability pension as one factor (among many) bearing on the [spouse’s] ability to
pay.” Id. at 327.
Here, unlike Perkins, the trial court recognized that it could not grant
Cheryl any portion of Ben’s disability payment.4 It then attempted to equalize the
income streams of the parties. It noted that Ben received $4,088 per month in
military retirement and disability payments and that Cheryl received $1,328 per
month from her portion of the military retirement. To equalize those payments, it
ordered Ben pay Cheryl $1,380 each month. But in equalizing their income
streams, it also considered various factors supporting the maintenance award,
including Cheryl’s age, education, her ability to find work, and when the parties
would begin to draw on Social Security. The trial court did not divide the
indivisible veteran’s disability pension, but instead used it as a factor supporting
Cheryl’s maintenance award. We conclude the trial court did not err.
4
The court found: “The parties have the following assets . . . [Ben’s] disability
payment, which is currently $1,768.00 per month. This is [Ben’s] separate property and
no portion of it can be awarded to [Cheryl].”
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C. Cheryl’s Medical Coverage
Ben says the trial court erroneously believed Cheryl would lose medical
coverage if it converted its separation order into a dissolution decree. He does
not argue that this mistake by the trial court independently requires reversal or
cite any provision of law to support this argument. See Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (arguments
not supported by legal authority need not be considered). And, contrary to his
assertion, Ben concedes that his medical coverage entitles Cheryl to only one
year of additional coverage after the dissolution. See Appellant’s Opening Brief,
at 20 (“Ms. Thielhorn is entitled to one year of TRICARE healthcare.”), Appendix
2 at 2 (“You’re TRICARE eligible for one year from the date of the
divorce/annulment.”); 10 U.S.C. § 1072(2)(G). This argument does not warrant
reversal.
D. Attorney Fees
Cheryl requests an award of attorney fees under RCW 26.09.140 and
RAP 18.1(b). We may award attorney fees under RCW 26.09.140 after
considering the merit of the issues raised on appeal and balancing the needs of
the party seeking fees against the ability of the other spouse to pay. In re
Marriage of Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779 (2005). While the
issues raised in Ben’s briefing are of questionable merit, Cheryl failed to file an
affidavit showing her need to recover fees, as required by RAP 18.1(c) (where
financial resources are a consideration in award of attorney fees and costs,
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No. 81843-1-I/8
affidavit of financial need must be filed no later than 10 days before case is set
for hearing or consideration). Thus, we deny her request.
We affirm.
WE CONCUR:
8