IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of:
No. 84290-1-I
ANDREA URSULA CARRUTHERS,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
and
STEPHEN CARRUTHERS,
Appellant.
HAZELRIGG, A.C.J. — Stephen Carruthers appeals the trial court’s
distribution of marital property and award of attorney fees to Andrea Carruthers.
He contends the trial court abused its discretion in awarding the marital residence
to Andrea and claims the distribution was an unfair penalty based on unsupported
findings. Because Stephen fails to demonstrate any error and sufficient evidence
supports the trial court’s findings, we affirm.
FACTS
Andrea Carruthers and Stephen Carruthers1 were married on August 16,
2002. They have two children together. On March 1, 2021, Andrea filed a petition
for divorce in which she requested a parenting plan, child support, and an equitable
division of the parties’ real and personal property. Andrea also sought attorney
1 For clarity, this opinion refers to the parties by their first names. No disrespect is intended.
No. 84290-1-I/2
fees and costs related to the matter. The case proceeded to a bench trial, which
was held on June 27 and 28, 2022. The court heard testimony from Penny Crowe,
a licensed real estate appraiser, Holly Bernard, a family evaluator and conciliation
specialist at Family Court Services in King County Superior Court, as well as
Andrea, who was represented by counsel, and Stephen, who represented himself.
At trial, the only disputed asset was the family home. As an expert witness,
Crowe valued the home at $640,000 and provided a 27-page appraisal report. To
determine the value of the home, Crowe explained that she began with the “most
recent tax appraisal, performed research about similar properties nearby, toured
the property in-person, interviewed [Andrea] about the property, and then toured
other properties in the Maple Hills neighborhood to identify three of the most similar
properties.” Crowe also testified that, in response to her appraisal, Stephen sent
her an email stating that if she did not change the value, he was “going to file a
malpractice lawsuit against [her].” The trial court found Crowe to be credible. On
cross-examination, Stephen attempted to admit an appraisal report that he had
obtained from another appraiser and a document titled “Zillow Comparables,” but
the trial court ruled that both were inadmissible.
Bernard provided expert testimony as the family evaluator and her report
was admitted into evidence. She explained that she was unable to interview
Stephen or observe his home “because he elected not to participate in the
evaluation.” Bernard recommended restrictions on Stephen “based on abusive
use of conflict” because he “involved the children in litigation and took actions to
prolong litigation.” She provided corroborating information regarding Stephen’s
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“negative emails during litigation and insight about the wishes of the children.”
Bernard recommended no “other limitations or restrictions against either parent.”
The trial court found her testimony credible.
Andrea testified that she met Stephen in the Netherlands while she was still
in college, and after she finished her degree, she returned to her “home state,
Washington.” Thereafter, Stephen moved to Seattle, and on April 16, 2002, the
two were married. At the time of trial, Andrea was unemployed and actively
searching for work. She explained that, when she was last employed in 2021,
Stephen sent her employer multiple direct emails making false accusations that
she had been stealing from the company. Andrea confirmed that her monthly
expenses were $4,241. The trial court found Andrea’s testimony regarding her
financial circumstances to be credible.
When asked about Stephen’s financial declaration, which the trial court
admitted into evidence, Andrea testified that Stephen had identified business
income without providing any documentation on the business. Further, Stephen’s
response to interrogatories showed that he answered “not applicable” to the
question of whether he had “engaged, invested money in, or received profits from
any business, venture, or self-employment arrangement of any kind.” In response
to another interrogatory that asked whether Stephen held a claim in interest in any
financial accounts, he answered, “Andrea and I have already decided that the only
asset to consider here is the house that we jointly own so this section is not
needed.” Andrea testified that Stephen did not respond to a request for production
sent by her counsel for “all statements from the date of cohabitation to present” for
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any account to which Stephen made a separate property claim, in whole or in part.
Andrea explained that, as a result, she sent subpoenas to various financial
institutions attempting to obtain Stephen’s financial records. She also testified that
Stephen was not current on child support payments, and, when the State started
to enforce the child support order, Andrea attempted to discover the source of his
payments, but was unable to.
Andrea requested the family home be awarded to her. In support of her
request, Andrea asserted that her mother had taken out a second mortgage on her
own home in order to loan Stephen and Andrea the funds to purchase their family
home in 2005. The balance on her mother’s second mortgage was $58,674 which
both Andrea and Stephen were responsible for, based on the agreement the
parties reached in 2005. The mortgage on the family home had an outstanding
principal of $161,944. In addition to an award of the home, Andrea also requested
attorney fees, which she asserted were approximately $20,000 at the time of trial.
Stephen sought an order authorizing sale of the family home and even
division of the proceeds. He characterized the “litigation as abusive” and testified
that he had “told the truth” and supplied complete disclosures of discovery
requests. Stephen also addressed the matter of child support and admitted that
he did not make any payments for a four-month period in 2021 but “then paid it in
full in January” 2022. He asserted that he “d[id] not have any hidden bank
accounts” and noted that only one credit account in Idaho remained active. He
then testified that he had a company, “Primus Financial,” which had been “dormant
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for the past ten years.” Regarding the business income he had acknowledged in
court documents, Stephen explained,
I just meant my general income, which I’m—I’m self-sustaining from
my—my private investments which one day, if they get large enough
again, I will push over into business activity. But at the minute they’re
not large enough to merit business activity, so—so even though I
might have made that mistake and said it was business activity, it is
not business activity. It’s personal—personal income.
He emphasized that he “had no hidden money” and had been “very honest and
forthright about [his] finances.” Stephens confirmed that he had monthly income
of $3,000 from his personal investments. When asked what account that money
was coming from, he testified that “[t]he Robinhood[2] account is the main thing”
and explained “there is now only about $10,000 left in it.”
On July 8, 2022, the trial court entered the final orders dissolving the
marriage, setting the parenting plan and child support, and awarding the family
home to Andrea in its division of the assets and debts. Though no money judgment
was awarded, the court explained, “The husband should pay the wife’s attorney’s
fees due to his intransigence but the court does not believe the husband will pay
voluntarily. As such, the wife is awarded a greater share of the community assets
to compensate her for the fees husband has caused.” The court also entered
detailed findings of fact and conclusions of law in support of its various orders.
Stephen timely appealed.
2
“Robinhood” is an internet-based stock trading platform.
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ANALYSIS
I. Award of Marital Residence
Stephen assigns error to the trial court’s award of the marital residence to
Andrea as separate property. 3 According to Stephen, the trial court “unfairly
penalized” him because, he contends, its decision was “solely based” on his
“alleged discovery violations.” We disagree.
“A trial court in dissolution proceedings has broad discretion to make a just
and equitable distribution of property based on the factors enumerated in RCW
26.09.080.” In re Marriage of Wright, 179 Wn. App. 257, 261, 319 P.3d 45 (2013).
To make a “just and equitable” distribution pursuant to RCW 26.09.080, trial courts
are required to consider “all relevant factors,” including the following: “(1) The
nature and extent of the community property; (2) The nature and extent of the
separate property; (3) The duration of the marriage or domestic partnership; and
(4) The economic circumstances of each spouse.” A trial court need not make an
equal distribution of marital property. In re Marriage of DewBerry, 115 Wn. App.
351, 366, 62 P.3d 525 (2003). “An equitable division of property does not require
mathematical precision, but rather fairness, based upon a consideration of all the
circumstances of the marriage, both past and present, and an evaluation of the
future needs of parties.” In re Marriage of Crosetto, 82 Wn. App. 545, 556, 918
P.2d 954 (1996).
3 While he attempts to broadly challenge the trial court’s findings of fact, his sole
assignment of error does not include reference to any “finding by number” as required by RAP
10.3(g). Accordingly, as explained herein, the unchallenged findings of fact are verities on appeal.
In re Marriage of Rounds, 4 Wn. App. 2d 801, 804, 423 P.3d 895 (2018).
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As the “trial court is in the best position to decide issues of fairness,” we “will
affirm unless an appellant demonstrates that the trial court manifestly abused its
discretion.” In re Marriage of Larson, 178 Wn. App. 133, 138, 313 P.3d 1228
(2013); Wright, 179 Wn. App. at 261. “A trial court abuses its discretion if its
decision is manifestly unreasonable or based on untenable grounds or untenable
reasons.” In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
A court’s decision is manifestly unreasonable if it is outside
the range of acceptable choices, given the facts and the applicable
legal standard; it is based on untenable grounds if the factual findings
are unsupported by the record; it is based on untenable reasons if it
is based on an incorrect standard or the facts do not meet the
requirements of the correct standard.
Id. at 47. “A trial court’s factual findings are accepted if supported by substantial
evidence,” which is “‘evidence of sufficient quantity to persuade a fair-minded,
rational person of the truth of the declared premise.’” Wright, 179 Wn. App. at 262;
In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572 (2007) (quoting
In re Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002)).
Unchallenged findings of fact are verities on appeal. In re Marriage of Rounds, 4
Wn. App. 2d 801, 804, 423 P.3d 895 (2018). “Where the trial court has weighed
the evidence, the reviewing court’s role is simply to determine whether substantial
evidence supports the findings of fact and, if so, whether the findings in turn
support the trial court’s conclusions of law.” Rockwell, 141 Wn. App. at 242.
Stephen contends the trial court’s distribution of the marital home to Andrea
was an abuse of discretion because “the court’s findings are not supported by the
record.” To challenge a trial court’s finding of fact on appeal, counsel must present
“argument as to why specific findings of the trial court are not supported by the
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evidence and to cite to the record to support that argument.” In re Est. of Lint, 135
Wn.2d 518, 532, 957 P.2d 755 (1998). With the exception of three “findings,” which
are more accurately characterized as legal conclusions, Stephen fails to
adequately challenge the trial court’s findings of fact and, thus, we accept the vast
majority of the trial court’s extensive findings as verities. See Id. at 531-32; see
also Starczewski v. Unigard Ins. Grp., 61 Wn. App. 267, 276, 810 P.2d 58 (1991).
Stephen points to the following two findings and claims that they show the
trial court awarded the family home to Andrea “as punishment for his alleged non-
compliance” with discovery.
f. Each party has an overall burden of proof to persuade the trier of
fact on the factual issues. It is possible to draw an inference, or
conclusion, upon proof or lack of proof of certain facts. Whenever a
party willfully violates a discovery rule, the trier of fact may draw a
negative inference to ensure that the wrongdoer does not profit from
the wrong. See Burnet v. Spokane Ambulance, 131 Wn.2d 484, 496-
97, 933 P.2d 1036 (1997). [Stephen] did not make a full and fair
disclosure per court rules. It is not enough for [Stephen] to simply
contradict [Andrea]’s arguments about his financial circumstances,
he owed and continues to owe a full disclosure. One reasonable
inference from [Stephen]’s failure to make a full disclosure when he
knew he was required to make a full disclosure and he was given
sufficient time to make a full disclosure is [Stephen] has more
financial resources than he cares to disclose. The only other
reasonable inference is [Stephen] feels the court rules should not
apply to him. Either way, it is fair to conclude [Stephen]’s discovery
evasion was intentional and consequently the [c]ourt does not have
adequate information about [Stephen] financial circumstances to
know how much or how little financial resources are available to him.
g. The family home is community property. Generally, the [c]ourt
agrees with [Stephen] it is appropriate to make an equal distribution
of assets and debts during a dissolution. Under these circumstances,
however, the [c]ourt agrees with [Andrea] a disproportionate award
is fair. [Andrea] shall have the family home.
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No. 84290-1-I/9
Stephen does not challenge these findings as unsupported; instead, he
simply states that they show “the court’s rationale for the disproportionate property
division was to sanction [him] for discovery violations.” 4 However, the court found
only that his “discovery evasion was intentional” and, as a result, it had inadequate
information “to know how much or how little financial resources are available to
him.” Even assuming arguendo that the trial court did draw an adverse inference,
which is not established by this finding, the trial court may “properly consider a
spouse’s waste or concealment of assets” when making a property distribution.5
In re Marriage of Wallace, 111 Wn. App. 697, 708, 45 P.3d 1131 (2002).
Additionally, courts are not required to distribute property equally. DewBerry, 115
Wn. App. at 366.
The following findings are unchallenged and therefore verities on appeal:
b. The only disputed asset during trial was the family home. The
[c]ourt is adopting Ms. Crowe’s appraised value of $640,000, and
then subtracting the mortgage, promissory note, and lien for net
value proposed by [Andrea]: $354,482.
...
d. [Andrea] requests the family home, including all value in the home,
be solely awarded to her. First, [Andrea] argues [Stephen] is not
likely to follow any court orders obligating him to pay attorney fees or
child support. Second, she argues the [c]ourt should draw an
adverse inference from [Stephen]’s failure to participate in discovery
and produce sufficient evidence about his financial circumstances.
[Andrea] argues [Stephen] could have access to assets or large
4 Stephen baldly asserts the trial court did not base its decision on consideration of the
enumerated factors of RCW 26.09.080. This is refuted by the trial court’s unchallenged written
finding 4.a. in which it cited RCW 26.09.080 as requiring trial courts to “make such disposition of
the property . . . as shall appear just and equitable after considering all relevant factors.”
5 In an apparent attempt to justify his failure to fully comply with discovery requirements at
trial, Stephen repeatedly points out that he represented himself and was unfamiliar with the rules.
However, “[a] trial court must hold pro se parties to the same standards to which it holds attorneys.”
Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d 1187 (2010). Thus, Stephen’s lack of
familiarity with discovery procedures is immaterial to our analysis.
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sums of money that he has not disclosed. Third, [Andrea] argues
[Stephen] contributed to her employment termination, and thus her
limited financial resources, by sending negative emails to her
employer. Finally, [Andrea] argues [Stephen] could effectively make
himself judgment proof by leaving the country.
e. [Stephen] believes he fully complied with discovery to the best of
his ability as someone without any legal training, and any omission
was unintentional or in keeping with the side-agreement for each
party to keep any and all assets held in their own name regardless
of when the assets were acquired or the value of such assets, which
[Stephen] believes was mutually agreed upon at the beginning of this
matter.
The trial court entered further findings concerning the parties’ finances that
are also unchallenged. The court found that Andrea had not been employed since
October 2021 and that she was “living on her severance package, unemployment,
and food benefits for the children.” The court found “her testimony was credible
about her financial circumstances” and “efforts to find a new job.” Regarding
Stephen’s finances, the court found he “has a portfolio balance of $11,874.44 on
Robinhood” and noted that he “testified he has an unnamed business partner, but
has closed his business for now.” Further, the trial court also found that Andrea
credibly testified that Stephen “has not paid certain other expenses for the children
relating to medical care.”
As noted, the trial court’s award of the marital residence to Andrea was
based, in part, on its ruling directing Stephen to pay Andrea’s attorney fees “due
to his intransigence.” The court explained that it did “not believe [Stephen] would
pay voluntarily,” and thus, it awarded Andrea “a greater share of the community
assets to compensate her for the fees [Stephen] caused.” 6
6 The record before us does not include any reference to an amount of attorney fees
granted by the trial court, its method of calculation, or other findings as to the distribution of the
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The trial court entered five findings of fact in support of its order on attorney
fees; Stephen only challenges one, finding 8.e., and contends the order “is an
abuse of discretion because it is not supported by the record.” The challenged
finding provides:
e. In summary, the [c]ourt is granting [Andrea]’s request for attorney
fees. The [c]ourt initially expected to enter a separate fee award and
provided draft orders to the parties in keeping with its expectation.
The [c]ourt requested an updated attorney fee declaration to include
costs and fees for trial. After listening to the concerns raised during
the presentation of final orders, considering the updated attorney fee
declaration, and reflecting on these findings and conclusions, the
[c]ourt finds it is fair to grant [Andrea]’s request for attorney fees in
the form of the disproportionate property award. The net value of the
home is sufficient to pay the attorney fees and avoid unjust
enrichment per paragraph 4 (“Property and Debt”) above.
Stephen contends the trial court erred by awarding attorney fees without
considering his ability to pay as required by RCW 26.09.140. However,
intransigence, which is “demonstrated by litigious behavior, bringing excessive
motions, or discovery abuses,” is a separate basis for attorney fees and once it is
established, the court need not consider the party’s ability to pay. Wallace, 111
Wn. App. at 710. Stephen next asserts “there is no overwhelming evidence of
intransigence” to justify the award of marital property to Andrea. He offers no
authority holding evidence of intransigence must be “overwhelming” in order to
support an award of fees on this basis.
The trial court’s finding of intransigence and award of attorney fees in the
form of the marital property is supported by the following unchallenged findings,
now verities on appeal:
marital home in place of a separate fee award. However, in the absence of any assignment of error
from Stephen on these matters, we need not consider those aspects of the court’s ruling.
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No. 84290-1-I/12
a. Legal Standard. ln addition to the statutory factors of need and
ability, the court may consider whether the intransigence or other
conduct of a spouse caused the other spouse to incur additional
attorney’s fees, professional services, and other costs of litigation.
Even if a spouse has the ability to pay fees and litigation expenses,
the intransigent conduct of the other spouse may bring about an
award of fees and litigation expenses. The award, however, should
be limited to the amount needed to compensate the opposing party
for the intransigence. In this case, it is not possible to segregate the
amount of [Andrea]’s attorney’s fees attributable to [Stephen]’s
intransigence because it permeates the litigation. See Buchanan v.
Buchanan, 150 Wn. App. 730, 207 P.3d 478 (Div. 3 2009), In re
Marriage of Irwin, 64 Wn. App. 38, 822 P.2d 797 (Div. I 1992)
b. Discovery abuse. [Stephen] was asked to answer interrogatories
and requests for production. Exhibit 71. The questions include
requests for information about self-employment and business
enterprises, financial accounts, and property. Id. [Stephen] did not
provide full responses. Id. “N/A” and not relevant are not full
responses. Id. Subpoenas were sent to financial institutions. Exhibit
40. It appears the financial institutions targeted for subpoenas were
institutions that sent mail addressed to [Stephen] at the family home
or left in the family home because [Andrea] did not have any other
information. Exhibits 57, 58, 60, 61. The financial institutions, located
in other states or countries, often failed to respond. [Andrea]
repeatedly sought financial documents from [Stephen]. Exhibit 44.
[Stephen] testified he understood requests were made for discovery,
but he believed he had no obligation to provide discovery after he
retracted his last settlement offer around May 2022. Id. He did not
explain his failure to answer these requests before May 2022 or while
his offer was pending. Based on the record presented it appears
more likely than not [Stephen] failed to provide any supporting
financial documents until 14 days before trial some documents were
uploaded to the ShareFile.[7] As a result of [Stephen]’s discovery
abuse, [Andrea] could not make an accurate decision or rational
choices to request relief and/or resolve issues in dispute.
c. Obstruction. Several examples were provided of obstruction by
[Stephen]. [Andrea] testified [Stephen] transferred some stimulus
funds to [Andrea] via the joint account, but then withdrew the
amounts from the account. [Stephen] testified he transferred the
funds, and then withdrew the funds to prove a point because he was
accused of not transferring the accounts. [Andrea] testified [Stephen]
was ordered to pay a share of the children[‘s] healthcare and school
fees, but failed to pay. She also testified [Stephen] stopped paying
7
“ShareFile” is an internet-based file-sharing platform.
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child support. [Andrea] enrolled the children in public health care
programs and signed up for food benefits to support the children.
[Stephen] testified he intentionally withheld child support for a period
of time after [Andrea] cancelled the second mediation as retaliation
for “being difficult” about the mediation. He testified he is current on
child support, except for one month when he could not pay due to
technical error on the agency side. He also argued he coordinates
his parenting time directly with the children, meeting them after
school without [Andrea]’s knowledge and in violation of the
residential provisions set forth in court orders.
d. Unnecessary, Insulting Communication. [Stephen] frequently
sent unnecessary, insulting communication to [Andrea]’s attorney.
The volume of communication makes it impossible to segregate
legitimate communication about litigation from unnecessary,
insulting communication.
This evidence is substantial and plainly supports the trial court’s finding that
Stephen was intransigent during the dissolution proceedings. Moreover, the
plethora of unchallenged findings support the conclusion that it was fair to award
Andrea attorney fees in the form of the disproportionate property award. Because
Stephen fails to demonstrate the trial court manifestly abused its discretion in
awarding the home to Andrea pursuant to RCW 26.09.080, we affirm the trial
court’s distribution of property. See Wright, 179 Wn. App. at 261.
II. Attorney Fees on Appeal
Andrea requests an award of attorney fees on appeal and offers several
alternate bases for her claim: consideration of her financial resources pursuant to
RCW 26.09.140, a determination of intransigence on appeal, and a conclusion that
Stephen’s appeal was frivolous under RAP 18.9. Pursuant to RCW 26.09.140, this
court has discretion to “order a party to pay for the cost to the other party of
maintaining the appeal and attorneys’ fees in addition to statutory costs.” Based
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on her financial need, we award Andrea reasonable fees incurred in responding to
this appeal under RCW 26.09.140 and RAP 18.1, contingent upon her compliance
with the procedural requirements of the RAP. Because we award fees on that
basis, we need not reach Andrea’s arguments regarding frivolous appeal or
intransigence.
Affirmed.
WE CONCUR:
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