(dissenting) — The majority opinion accurately sets out the facts of this case. The court abused its discretion in awarding maintenance to Glenda, ordering Stanley to pay Glenda’s gambling debts, and I disagree with the majority’s award of attorney fees on appeal. Therefore, I respectfully dissent.
Spousal maintenance is a matter within the trial court’s discretion. In re Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990). A maintenance award constitutes an abuse of discretion when it fails to evidence a fair consideration of the facts and renders the paying spouse unable to meet *274his own needs as well as the obligations imposed by the court. In re Mathews, 70 Wn. App. 116, 123, 853 P.2d 462, review denied, 122 Wn.2d 1021 (1993). Pensions are divided by either (1) dividing the monthly amount between the parties in a constant amount during the period of time in which the pension is payable; or (2) awarding the entire pension to one party and awarding the other a sum certain in lieu of the pension. DeRevere v. DeRevere, 5 Wn. App. 741, 746, 491 P.2d 249 (1971).
The ultimate question in reviewing a maintenance order is whether the award is just. See ROW 26.09.090; Bulicek, 59 Wn. App. 630. In this case, Glenda had the ability to support herself, unlike Bulicek, in which the court awarded the wife maintenance until the retirement benefits were paid because of her physical inability to work. Id. at 630. Glenda was also awarded property valued at approximately $71,000. Any need for maintenance was minimal. Awarding half of Stanley’s pension without his ability to pay forced him to elect to retire. This result is not just, nor warranted; thus, the court abused its discretion.
The majority agreed with the trial court that the marital assets expended by Glenda on gambling did not constitute a dissipation of assets. This decision was based in part on the court’s observation that gambling is legal. The legality of an activity should have no bearing on whether it constitutes a dissipation of marital assets. This court previously found that money spent on an excessive drinking habit was properly considered in a division of property as a dissipation of assets. In re Clark, 13 Wn. App. 805, 807-08, 538 P.2d 145, review denied, 86 Wn.2d 1001 (1975). The extreme to which Glenda was expending community assets on gambling was a dissipation of community assets. It was error to find otherwise solely because some forms of gambling are legal.
The court also based its decision on the fact that Glenda had substantial income of her own at the time she was gambling. Evidence relating to the lifestyle of a party may *275be considered by the court for the purpose of determining whose labor or negatively productive conduct created the dissipation of marital assets. Id. at 809. Consideration of additional income earned by the party dissipating assets is not relevant. Glenda’s gambling habits were certainly negatively productive conduct. Thus, regardless of Glenda’s additional income, her gambling still constituted a dissipation of community assets.
In determining attorney fees on appeal, the court must consider the merit of the issues and the financial resources of both parties. In re King, 66 Wn. App. 134, 139, 831 P.2d 1094 (1992). The assets awarded to Glenda combined with her continued ability to support herself did not constitute need. The parties should pay their own fees on appeal.
Review denied at 131 Wn.2d 1025 (1997).