                                                                                                     FILED
                                                                                            COURT OF APPEALS
       IN THE COURT OF APPEALS OF THE STATE OF lagiT UTON
                                                                                          2D 15 FEB 24       AM 9: 31
                                                           DIVISION II
                                                                                          STATE OF WASHINGTON
    In re the Marriage of:                                                               No. 451.46 -8 -I
                                                                                          BY
                                                                                                     DEP T
    BRETT CLYDE BIRCH,


                                           Appellant.


       and                                                                        UNPUBLISHED OPINION


    VICKEY ANN BIRCH,


                                          Respondent.


          MELNICK, J. — Brett Clyde Birch appeals a dissolution decree that awarded his former wife,


Vickey Ann Birch, a disproportionate share of property, as well as maintenance and attorney fees.

Brett' contends that the combined awards constituted an abuse of discretion. We disagree, affirm


the trial court, and award Vickey attorney fees on appeal.

                                                                 FACTS


          Brett    and    Vickey    married on           March 11, 1978,   when
                                                                                  they   were   19   years old.   After Brett


filed a petition for separation on December 6, 2011, Vickey responded with a counter- petition for

dissolution      of   the   marriage.     The parties generally agreed on the proposed property distribution,

but    they disagreed        on   the issues      of maintenance and       attorney fees.      The matter went to trial in


2013.     Both parties testified.


          Vickey graduated from high school and attended community college for nine months.

When      she married, she earned $              4. 50   per   hour working in   a potato warehouse.         Vickey stopped

working when she was six months' pregnant with her first child. The parties' two children were

born in 1979 and 1981.




1
    We   refer   to the   parties
                                    by   their   first   names   for clarity. We intend   no   disrespect.
45146 -8 -II




           Although she was the primary caregiver for the children, Vickey also worked outside the

home, except for short breaks before and after each birth. At one point she looked into becoming

a teacher, but the parties agreed that it was not feasible for her to pursue her degree with two small


children. Vickey instead became a paraeducator for school districts in Idaho and Washington and

structured her work around caring for her children.

           At the time         of   trial,   Vickey    was    earning $ 17 per hour as a paraeducator for the Peninsula


School District. She also had employment at a group home for 8 - 12 hours a week, with an hourly

wage of $11.       06.    During the summer, Vickey occasionally worked as a field supervisor for the

school     district'   s soccer      fields, earning $ 13 an hour.


           Vickey      averaged           earning $ 1, 728     a month         from these jobs.   She testified that her monthly

expenses after         trial   would         be   over $   3, 000.    Vickey did not foresee any circumstance where she

would      increase her        earnings.          Upon retiring from the school district at age 65, Vickey estimated

that her total monthly              benefit       would    be approximately $ 1, 600.


           When the parties separated in 2011, Brett stayed in the family home and Vickey moved

out. Vickey was awarded $ 650 in temporary spousal maintenance based on Brett' s unemployment

at the time. Vickey lived with a friend for three months, and after a short stay in her own apartment,

moved out to house sit to save money. Vickey testified that she would need to find another place

to live following trial and that she hoped to buy a small house.

           Brett   also   is   a    high school       graduate.       A member of the glazier' s union, he worked largely

on glass and       frame installation for high -rise buildings.                       Brett worked 40 hours a week, earning

  37. 55    an   hour,    and       his   average    monthly         net   income   was $   4, 933.   At the time of trial, Brett' s


monthly expenses were approximately $2, 600.




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45146 -8 -II



          If Brett    retires at age   55, he    will receive a         monthly    retirement   benefit   of $1,   901. 40. If he


retires at age   62, he     will receive $   2, 716. 28 per month. He testified that he wanted to retire early

so that he could focus on developing some unimproved real property next to the family residence.

This land    could     be   subdivided    into   eight   lots. Unimproved, it had a value of $124, 000, but the


parties   believed that the property        could   be   worth $ 800,       000 to $ 1 million when developed.


          After the parties testified, the trial court adopted their proposed 60/ 40 property division.

RP 147 -49.      The     court awarded      Vickey       property        worth $   232, 043. 34, and Brett property worth

 154, 696. RP 149; CP 15 - 16.


          The trial court rejected Brett' s argument that the 60/ 40 distribution of property rendered an

award     of maintenance unfair.           The court entered the following findings of fact to support its

decision to award Vickey maintenance:

          This is a long -term marriage of 33 years to the date of the parties' separation, and
          35 years to the time of trial.

          The husband is age 54 and works full -time as a union glazier, earning $ 37. 55 per
          hour. His net monthly earnings are approximately $4, 933.

          The wife is age 55 and works two part-time jobs. Her total hours at both jobs are
          greater     than 40   hours   per week.        Her net income from both sources combined is
            1, 728.


          By the parties' joint decision, the family relied primarily upon husband' s earnings
          during their marriage, while the wife' s employment was typically structured around
          her primary responsibility for the parties' children and the home. The wife did not
          further her formal         education     after marriage.           Her income has historically been
          significantly less than the husband' s earnings.

          As a result of the parties' joint choices during marriage, there is significant disparity
          in their      respective     abilities   to    earn   a       self -
                                                                             supporting   income.         The wife is
          economically disadvantaged as a result of marital decisions.

          Given her current age, as well as the time and cost involved, it is not reasonable to
          expect the wife to [ acquire] an education and training and then build a new career
          with greater earnings prior to her normal retirement age.




                                                                    3
45146 -8 -I1




        The     wife       has demonstrated        need    of   financial   support    from the husband.           The

        husband has the ability to pay spousal maintenance.while meeting his own needs.

Clerk' s Papers at 11.


        The court awarded Vickey maintenance of $1, 500 per month until Brett retires or turns 62,

whichever      is   sooner.    And,     after   Vickey   requested     attorney fees       of $14,   000 to $ 16, 000, the trial

                                                                                                             2
court awarded $ 7,         500 in fees based      on   Vickey' s   need and   Brett'   s   ability to pay.


        Brett now appeals the trial court' s maintenance and fee awards, arguing that they were an

abuse of discretion given the disparate property division in Vickey' s favor. We affirm.

                                                          ANALYSIS


        PROPERTY DIVISION AND AWARD OF MAINTENANCE


        The standard of review we follow is set forth in In re Marriage ofLandry, 103 Wn.2d 807,

809 - 10, 699 P. 2d 214 ( 1985) (         citations omitted):



                         T] rial court decisions in a dissolution action will seldom be changed upon
        appeal. Such decisions are difficult at best. Appellate courts should not encourage
        appeals          by tinkering   with    them.    The emotional and financial interests affected by
        such        decisions    are    best    served   by finality. The spouse who challenges such
        decisions bears the heavy burden of showing a manifest abuse of discretion on the
        part        of   the trial   court.     The trial court' s decision will be affirmed unless no
        reasonable judge would have reached the same conclusion.


        Brett first contends that the trial court abused its discretion by ordering both a

disproportionate property distribution and maintenance. He also asserts that the trial court did not

articulate a reasonable basis for awarding Vickey maintenance in addition to the greater share of

property.


         The distribution of property during a dissolution proceeding should be guided by the trial

court' s determination of what is fair, equitable, and just, after taking into account the parties'



2 The court also awarded Vickey attorney fees of $500 based on her motion to compel discovery.
Brett does not challenge that award of fees on appeal.


                                                                   4
45146 -8 -II




economic circumstances, their separate and community property, and the duration of their

marriage.      RCW 26. 09. 080; In re Marriage of Wallace, 111 Wn. App. 697, 707, 45 P. 3d 1131

 2002).    In deciding whether to award maintenance, the court should consider factors that include

the financial resources of each party; 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 by the spouse seeking maintenance to acquire

education necessary to obtain employment. RCW 26. 09. 090; In re Marriage ofLuckey, 73 Wn.

App.     201, 209, 868 P. 2d 189 ( 1994).        The only limitation placed on a court' s ability to award

maintenance       is that the   amount and    duration   must   be just in light   of   the     relevant   factors.   In re


Marriage of Washburn, 101 Wn.2d 168, 178, 677 P. 2d 152 ( 1984).                        Maintenance is " not just a


means of providing bare necessities, but rather a flexible tool by which the parties' standard of

living   may be    equalized    for   an appropriate period of   time."   Washburn, 101 Wn.2d at 179.


          Brett cites no authority to support his claim of error, but Vickey cites a recent case

upholding an award of maintenance to a spouse who also received a disproportionate award of

property. In      re   Marriage of Wright, 179 Wn.       App.    257, 319 P. 3d 45 ( 2013), review denied, 180


Wn.2d 1016, 1019 ( 2014).             The Wright court expressly held that the trial court has discretion to

                                                                          in favor                                Wright,
award     both   an unequal     property division   and maintenance                  of   the   same spouse.




179 Wn. App. at 269 ( citing In re Marriage ofRink, 18 Wn. App. 549, 571 P. 2d 210 ( 1977)).




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45146 -8 -II




        Vickey also relies on In re Marriage ofSheffer, 60 Wn. App. 51, 53, 802 P. 2d 817 ( 1990),

where the court remanded a case in which the trial court had already awarded the wife a higher

share of   property in   addition   to    maintenance.     The purpose of the remand was to increase the


maintenance award:



                 M] aintenance should be utilized in this case as a flexible tool to more
        nearly equalize the post -dissolution standard of living of the parties, where the
        marriage is long term and the superior earning capacity of one spouse is one of the
        few assets of the community.
               The standard of living of the parties during marriage and the parties' post -
        dissolutioneconomic condition are paramount concerns when considering
        maintenance and property awards in dissolution actions. The record does not
        convince us      that the trial   court   adequately   considered   these primary factors.   We
        therefore reverse and remand this case for revision of the maintenance award by the
        trial court.


Sheffer, 60 Wn. App. at 57 -58. Both Sheffer and Wright support the trial court' s decision to award

Vickey maintenance.

        Brett' s related complaint that the trial court failed to articulate the reasons for awarding

Vickey maintenance overlooks the court' s written findings of fact. Because he did not challenge

them, these findings are verities on appeal. In re Marriage ofPetrie, 105 Wn. App. 268, 275, 19

P. 3d 443 ( 2001).     The trial court considered the factors in RCW 26.09. 090 in finding that Vickey

was economically disadvantaged due to the parties' decisions during their 33 -year marriage, that

she had demonstrated a need for financial support, and that Brett could pay maintenance while

meeting his own needs.

        Brett also overlooks the trial court' s oral ruling, in which the court rejected his argument

that it could not award maintenance after awarding an unequal distribution of property:

                  T] he agreement and the analysis for whether or not Mrs. Birch is entitled
        to maintenance is a very different analysis than a fair and just division of the assets
         acquired and the distribution of debt. It' s no doubt that this is a maintenance trial.
         RCW 26. 09. 090 sets [ out all] of the factors that the Court must consider. And there




                                                          6
45146 -8 -II




           is specific case law, and various appropriate theories that the Court can consider if
           an award of spousal maintenance is going to be made.

Report of Proceedings at 149. The court then applied the statutory factors to the facts before

concluding that spousal maintenance would equalize the parties' income until retirement.

           We see no abuse of discretion in the court' s award of spousal maintenance to Vickey, even

after she received a       disproportionate    share of   the   parties'    property.   Because we are unable to


conclude that no reasonable judge would have made the same decision, we reject this claim of

error.




IL         ATTORNEY FEES


           Brett    makes a related challenge    to the trial    court' s   decision to   award   Vickey $ 7, 500   in


attorney fees.       This decision is also reviewed for abuse of discretion. In re Marriage ofMattson,

95 Wn.     App.     592, 604, 976 P. 2d 157 ( 1999).     Under RCW 26. 09. 140, the trial court may order a

party in a dissolution action to pay reasonable attorney fees after balancing the requesting party' s

needs against the opposing party' s ability to pay. Mattson, 95 Wn. App. at 604. A spouse is not

entitled to attorney fees as a matter of right. Sheffer, 60 Wn. App. at 59.

           The trial court considered Vickey' s need and Brett' s ability to pay in awarding Vickey part

of   her fee   request.   We see no abuse of discretion in this award. See Sheffer, 60 Wn. App. at 59

 trial court with " all the financial facts before it" awarded the wife both a disproportionate amount


of property and attorney fees).

           Vickey     also requests   attorney fees   on appeal.   We may award such fees after considering

the financial need of the requesting party, the other party' s ability to pay, and the arguable merits

of   the   issues   raised on appeal.    In re Marriage of Kim, 179 Wn. App. 232, 256, 317 P. 3d 555,

review     denied, 180 Wn.2d 1012 ( 2014).        We award reasonable attorney fees to Vickey. See RAP

 18. 1.




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45146 -8 -II



        Affirmed.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




        Worswick, J.




                           4'(
               rgen, A. C.J.




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