                                                                        FILED 

                                                                    OCTOBER 14,2014 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                               DIVISION THREE 


SARA G. ARROYO,                               )
                                              )         No. 31586-0-111
                     Respondent,              )
                                              )
       v.                                     )
                                              )
GLORIA J. FISCHER,                            )         UNPUBLISHED OPINION
                                              )
                     Appellant.               )

       SIDDOWAY, C.J. -    Gloria Fischer appeals the trial court's award to Sara Arroyo

of one-half the value of properties acquired during their committed intimate relationship,

determined as of the time the relationship ended. She argues that it was error for the trial

court to disregard an agreement and promissory note executed in connection with a 1978

property acquisition by the parties-an agreement and note that the court implicitly found

had been abandoned. She also challenges the trial court's posttrial decision to increase its

initial damage award by $3,768.26, arguing that the increase was a veiled award of

prejudgment interest to which Dr. Arroyo was not entitled. We find no error and affirm.

                    FACTS AND PROCEDURAL BACKGROUND

       Gloria Fischer was a professor at Washington State University (WSU) in 1972

when she met Sara Arroyo, a graduate student in her department. They began a
1
1
1
1



I   No. 3 1586-0-III
    Arroyo v. Fischer
I
    committed intimate relationship in 1973. Dr. Arroyo (at the time, "Ms. Arroyo") moved

I
I   into Dr. Fischer's home in Pullman, Washington in 1974.

           During the 10 to 11 years of their committed intimate relationship, the parties

    purchased a total of 4 properties, using one or both of the parties' money. The first was a

    home in Kennewick, Washington. Dr. Arroyo completed her Ph.D. in 1977, after which

    she completed a clinical internship at the University of Southern California Medical

    Center and then obtained her first job in Washington in the Tri-Cities, at the Regional

    Community Mental Health Center. The home in Kennewick was intended to be a long-

    term residence for the women and was purchased as joint tenants with rights of

    survivorship. It was Dr. Arroyo's principal home while working in the Tri-Cities and Dr.

    Fischer's part-time home; Dr. Fischer would arrive on Thursday evening and leave on

    Monday morning. Dr. Fischer was spending enough time with Dr. Arroyo in Kennewick

    that she rented out her Pullman home, moved into a trailer in Pullman, and moved most

    of her furniture to Kennewick. Dr. Fischer liked the Kennewick home, regarded it as her

    possible retirement home and, at the time, spoke of retiring soon, at age 55.

           Dr. Fischer had paid the down payment for the home, while Dr. Arroyo made the

    mortgage payments. Before the purchase, Dr. Arroyo asked an acquaintance if he could

    notarize the real estate documents, and the acquaintance not only notarized the

    documents as needed but also prepared an agreement that would adjust the parties'

    contribution toward the cost of the property. Generally, the agreement he prepared

                                                 2

No. 31S86-0-III
Arroyo v. Fischer


required Dr. Arroyo to make mortgage payments toward the property until her

contribution equaled Dr. Fischer's; it further provided that proceeds of a sale of the

property would be split. The acquaintance also prepared a companion promissory note.

The parties signed both at the time the purchase of the Kennewick house closed in

August 1978. Apart from Dr. Arroyo's making the mortgage payments while living in

the home, the parties never performed the obligations contemplated by the documents.

         Dr. Arroyo disliked her job in Kennewick. Having learned of other Ph.D.s in her

field who had done well in the military, she decided to join the Navy. She left the

Kennewick home in 1979 and after living temporarily with Dr. Fischer in Pullman,

relocated to South Carolina, where she was stationed. Dr. Arroyo wanted to sell the

Kennewick home-both then, and according to her, many times thereafter. But Dr.

Fischer, who continued to regard it as a good investment, did not. Dr. Arroyo therefore

agreed that they would continue to own it as a rental property. Initially, Dr. Arroyo made

payments to a third party property manager to handle rental of the Kennewick home, but

Dr. Fischer was dissatisfied with him and took over management herself. In the years

thereafter, Dr. Fischer took responsibility for managing the rental. Dr. Arroyo would

occasionally help Dr. Fischer with cleaning and repairs when she was in Washington

State.

         Once in South Carolina, Dr. Arroyo found a home that became the second

property jointly purchased by her and Dr. Fischer. The two women split the cost of the

                                             3

No. 31586-0-111
Arroyo v. Fischer


down payment and Dr. Arroyo made all the mortgage payments. During the three years

that Dr. Arroyo was stationed in South Carolina, Dr. Fischer paid extensive visits. Dr.

Arroyo testified that in her first year in South Carolina, Dr. Fischer visited only

occasionally, but that in her second and third years of service, Dr. Fischer first took a

one-year sabbatical and then took a second year leave of absence, living for those two

years with Dr. Arroyo.' When Dr. Arroyo's service was completed, the parties sold the

home for a small profit, which they split.

       The third property purchased was a lot adjacent to Dr. Fischer's Pullman home

that the parties purchased as joint tenants with rights of survivorship in May 1982. Dr.

Fischer paid the entire purchase price of $9,600. By the time of the purchase, the parties

had lived in a committed intimate relationship for nine years, so the funds used by Dr.

Fischer could well have been community-like-but given the partnership theory on

which Dr. Arroyo relied at trial, the character of the funds was never explored. Dr.

Arroyo testified that she was in Pullman, visiting, in May 1982 when the Pullman

property was purchased in both parties' names.




       1 Because   Dr. Arroyo prevailed in the trial court, we view the evidence throughout
this factual statement in the light most favorable to her. We note, however, that there was
a major disagreement over the amount of time Dr. Fischer lived in South Carolina; Dr.
Fischer testified that she lived there only one semester, which was both her sabbatical and
a leave of absence.

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No. 3 I 586-0-III
Arroyo v. Fischer


       Dr. Arroyo was discharged from the Navy in August 1982 and the Navy moved

the parties' furniture and belongings back to Dr. Fischer's home in Pullman. Dr. Arroyo

got ajob at the Yakima Valley Farm Workers Clinic in Toppenish, almost 200 miles

from Pullman. She continued to live with Dr. Fischer in Pullman on the weekends and

commuted each week to work in Toppenish.

       The fourth and final properties that the parties purchased together were rental units

in California that they purchased as an investment, believing that the real estate market

was good. Dr. Fischer contributed three-quarters of the down payment and Dr. Arroyo

contributed a quarter; Dr. Arroyo estimated their contributions were $45,000 and

$15,000, respectively. Dr. Arroyo's brother Ramon Arroyo was a real estate agent in

California, assisted them in identifying the property, and was going to help them manage

it. After the parties ended their relationship, Dr. Fischer became very dissatisfied with

Mr. Arroyo's management and even lodged a complaint against him with the California

department of licensure.

       The parties separated in November 1983. Dr. Arroyo characterized the November

1983 date as when they separated "physically," because she had suggested that they take

a year off from the relationship; she was tired ofthe commute and the two were having

relationship problems. Report of Proceedings (RP) at 78. Two or three months later,

though, Dr. Fischer asked that Dr. Arroyo return a ring she had given her years earlier,

which Dr. Arroyo did.

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No. 31586-0-III
Arroyo v. Fischer


       During the 1973 to 1983 term of the relationship, the parties maintained a joint

bank account for shared living expenses, although Dr. Fischer also maintained a separate

bank account of her own. As the younger member of the couple and a graduate student,

Dr. Arroyo had less resources. At one point in the trial, she responded to questioning

implying that she had always benefited financially from the relationship, an example

being that Dr. Arroyo was able to use Dr. Fischer's car. Dr. Arroyo testified that she

never viewed herself as getting a "free ride," explaining:

       I bought several things for the house that I did not account to say Gloria
       pay me for this, I just, I mean there was just not ... that was not the way I
       operated in any intimate relationship. Vh yes I drove her car. Vh I felt, in
       all honestly, that I deserved, if you wish, uh I used to clean the house, do
       the laundry, ironing, sewing, cooking, going to the market, taking her to her
       office, picking her up from the office, uh so I was uh the person that was
       really serving Gloria. Uh I'm saying this ... I don't regret it, in my heart I
       don't regret. I just mention this because my God I mean if I cannot have
       her car to drive, to go to the market, to pick her up, I mean what can I have?
       Vh the other issue is also ... I paid gasoline many, many, many times. Vh
       so no it was not a free ride. Gloria does not give a free ride.

RP at 136 (alterations in original).

       After the parties separated, they agreed to sell the California property and split the

proceeds on the same 75/25 percent basis of their contributions. The California property

was sold in 1986. Dr. Arroyo testified that from the proceeds, Dr. Fischer was supposed

to receive $56,240 and she was supposed to receive $18,750 but that Mr. Arroyo sent Dr.

Fischer more than her share, with the expectation that Dr. Fischer would disburse Dr.

Arroyo's entitlement to her. Dr. Arroyo testified that when she followed up and asked

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No. 3 1586-0-III
Arroyo v. Fischer


Dr. Fischer for her share of the proceeds, Dr. Fischer responded that she "was not a

bank." RP at 82. As of the 2012 trial, however, Dr. Arroyo did not have records from

which she could demonstrate an incorrect distribution.

       The parties continued to correspond about their two remaining jointly-owned

Kennewick and Pullman properties thereafter. In February 1990, Dr. Fischer wrote to Dr.

Arroyo, stating in part that "'I do want to take your name off the land by the home on

Church,'" meaning the Pullman property. RP at 20. Later in the letter, she said, '''If you

decide to sign off [on] the Church Street property only that's fine. If you decide to sign

off on the Kennewick property as well and you feel you have money coming just let me

know how much.'" Id.

       In a letter to Dr. Fischer dated January 3, 1991, Dr. Arroyo wrote, '" I regret to tell

you that I do not feel comfortable signing such documents prior to being compensated

with the amount of $30,000.'" RP at 22. Elsewhere, she stated, "'I believe that I deserve

this amount in view of the fact that I have never benefited from the tax breaks and rents

collected during the past eleven to twelve years.'" Id. In a response dated January 4, Dr.

Fischer wrote Dr. Arroyo to say, "'I will put [the Kennewick house] on the market and

we will have to go to court and let the court decide who gets what.'" RP at 24. A

January 10 reply from Dr. Arroyo stated, "'In your letter oflast year (February 1990) you

asked me to let you know how much money I wanted to cash me out of the business. I

responded to your request.'" RP at 26.

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No. 31586-0-111
Arroyo v. Fischer


       Although Dr. Fischer produced no further evidence of correspondence during this

time frame from Dr. Arroyo, she later used a purported quitclaim deed from Dr. Arroyo,

dated March 21, 1991, to eliminate Dr. Arroyo's interest in title to the Pullman property.

At trial, Dr. Arroyo denied that the signature on the quitclaim deed was hers. Dr. Arroyo

offered and the trial court admitted records of motel and restaurant charges supporting

Dr. Arroyo's testimony that she and a friend had driven to California for job interviews in

March 1991, and were in Los Angeles on March 21, 1991. The only handwriting expert

called to testify at trial expressed his opinion that there was a strong probability that Dr.

Arroyo's purported signature on the quitclaim deed was a forgery.

       When examined at trial as to when she acquired the quitclaim deed, Dr. Fischer

testified, "I really don't remember, it just came in the mail and I saw her signature and

took it to my attorney." RP at 27. She testified that the quitclaim deed was not

accompanied by a letter, "It just appeared in the mail." Id.

       Dr. Arroyo's purported signature on the deed had been notarized by Sarah Gilman,

who was deceased by the time of trial. Ms. Gilman, a former graduate student at WSU,

had traveled to the university with Dr. Fischer from the University of South Florida in the

1970s or 1980s and had finished her education at WSU, living with Dr. Fischer. Dr.

Fischer testified that she and Ms. Gilman had stayed in touch. The notarial jurat

indicated that Ms. Gilman notarized Dr. Arroyo's signature on March 30, 1991, yet Dr.

Fischer admitted that Ms. Gilman was living in Washington, D.C. at that time.

                                               8

No. 31586-0-111
Arroyo v. Fischer


       When asked if she did not think it was odd that the deed would appear with no

explanation and notarized as it was, Dr. Fischer answered, "I didn't pay any attention to

the notarization; if I had I would have realized that something was wrong. I mean who

looks at a notary? I saw ... I looked ... I knew what the paper was, I saw the signature,

I had expected her to sign that paper [and] assumed she had." RP at 31 (first two

alterations in original).

       Dr. Arroyo and Dr. Fischer corresponded further in 2004 and 2005 about the

Kennewick house. In a letter to Dr. Fischer dated February 8, 2005, Dr. Arroyo

suggested that the two women either share the proceeds of the Kennewick house or that

one or the other buy the other party out.

       Dr. Fischer sold the Pullman property in 2006. There was no evidence suggesting

that Dr. Arroyo was aware of the sale, and she denied any knowledge of it. By the time

the Pullman property was sold, Dr. Fischer had built a duplex on it, at a cost of between

$200,000 and $250,000. The property was sold for a total sales price of $329,900.

       In 2010, Dr. Arroyo retained a lawyer, who wrote Dr. Fischer in November 2010

to demand an accounting of the income and expenses for the Kennewick house, to ask for

Dr. Fischer's cooperation in selling the house, and to inform Dr. Fischer that Dr. Arroyo

had learned of the purported 1991 quitclaim of the Pullman property and claimed that it

was a forgery. When the parties' disputes were not resolved, Dr. Arroyo brought suit

against Dr. Fischer in June 2011, alleging that the parties had formed a partnership in

                                             9

No. 31586-0-III
Arroyo v. Fischer


1978 to own and manage real estate that lasted until they separated in 1983. The

complaint sought an accounting of the income and expenses for the Kennewick and

Pullman properties and a winding up of the partnership.

       In her answer to the complaint, Dr. Fischer denied the existence of a partnership

and asserted that their rights and obligations with respect to the Kennewick house were

governed by the 1978 agreement and promissory note, which Dr. Arroyo had failed to

perform and pay.

       A bench trial of the matter took place in December 2012. At the conclusion of the

trial, the court made a partial decision, announcing "'the outline or the structure of how

I'm going to decide the case." Clerk's Papers (CP) at 13. As the court explained:

       I agree that there are many legal theories that I've heard argued here that
       probably could form a basis for the Court's decision.
               But one thing just jumps out at me and I feel controls the decision
       that I make and I'm applying ... current law, not the antiquated law that
       was in effect at the time the parties had the relationship primarily because I
       feel that's what I'm required to do but because I feel that would reach a
       most fair and equitable result in the case ....
               . . . [T]he California property and the South Carolina property and
       the nature of the relationship with respect to those properties gives me some
       background and does have an influence on the decision I make, but what
       were really talking about in this dispute is the Kennewick property and the
       lot in Pullman. These properties were acquired by the parties at a time
       when very clearly here and really [i]ndisputably-this is one of the few
       areas you're not differing on-you were involved in a committed close
       domestic relationship, one that wasn't recognized back then by the law ....
       [A]s I heard the testimony from both of the parties here, this wasn't a
       business. . .. You two might have had, like married couples do, entered
       into this with a view of geez, we want to improve our career status and we
       want to make money and things of that nature, but this was an intimate

                                             10 

No. 31586-0-111
Arroyo v. Fischer


       relationship here. This relationship was based upon feelings for one
       another. It wasn't.based upon dollars and cents. 1 heard Ms. Fischer testify
       as to how devastated she was after the breakup. 1 heard Ms. Arroyo testify
       as to her feelings here and like any other personal relationship that results
       in people living together and combining not just their assets and their
       finances, but their efforts and driving to go get the groceries and to do
       laundry and housework and providing---one party more the breadwinner
       while the other party is going to grad school and things-again, this is not a
       business partnership or that is not how 1 see it here.
               This was an II-year committed relationship and when the property
       was purchased down in the Tri-Cities-Kennewick---even though [the
       acquaintance] got involved and drew up some papers that would be in the
       nature of a business transaction or a partnership, it's very clear because of
       the personal nature of your relationship here, you never followed it. You
       never lived by it. You never recognized it. 1 think for the most part until
       this dispute came about both of you forgot it. You didn't purchase-I'm
       talking to both of you when 1 say you-that Kennewick property for the
       purpose of making money.

CP at 13-15. The court told the parties that it would be deciding the case by applying

something similar to community property principles and anticipated awarding each party

one-half of the equity in the Kennewick and Pullman properties as of the date of

separation. It also announced that because it felt "very clearly" that the Pullman

quitclaim deed was forged, and because the forgery complicated the case, it would award

a portion of Dr. Arroyo's attorney fees and costs. CP at 18.

       The court thereafter awarded Dr. Arroyo $18,425.00, which it found to be one-half

the equity in the two properties at the time of separation, and $18,419.26, which was the

total of Dr. Arroyo's attorney fees and costs. It explained that while it had originally

intended to award Dr. Arroyo only fees and costs attributable to the forged quitclaim



                                             11 

No. 31586-0-111
Arroyo v. Fischer


deed, "[ u]pon further consideration," it concluded that she was entitled to an additional

amount, given that Dr. Arroyo had been deprived of the use of her financial interest in the

property for 30 years, and that Dr. Fischer had "gained substantially from the effects of

inflation on property values over this time." CP at 47. The additional amount awarded

was enough to fully compensate Dr. Arroyo for her attorney fees and costs.

       Dr. Fischer appeals.

                                        ANALYSIS

       Dr. Fischer assigns error to (1) the trial court's implicit finding or conclusion that

the 1978 agreement and promissory note signed by the parties were either abandoned or

otherwise unenforceable and (2) its award of attorney fees and costs because Dr. Arroyo

had "been deprived of the use of her monetary interest in the property for 30 years,"

which she argues is an unpermitted award of prejudgment interest on a nonliquidated

claim. Id. We address the assignments of error in tum.

                1. Implicit rejection of 1978 agreement and promissory note.

       Dr. Fischer assigns error to the trial court's implied finding that the 1978

agreement and note were of no effect and to the court's failure to enter a conclusion of

law indicating why the agreement and note were unenforceable. The trial court's written

findings and conclusions made no.mention of Dr. Fischer's position that the parties'

rights and obligations with respect to the Kennewick property were governed by the 1978

agreement and promissory note. It thereby implicated the common law rule that the

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No. 31586-0-111
Arroyo v. Fischer


absence of a finding on a material issue is presumptively a negative finding against the

person with the burden of proof. See, e.g., McCutcheon v. Brownfield, 2 Wn. App. 348,

356,467 P.2d 868 (1970). The trial court's oral partial ruling shed light on why it found

no contractual rights or obligations, when it said of the 1978 written agreement, "It's very

clear because of the personal nature of your relationship here, you never followed it. You

never lived by it. You never recognized it. I think for the most part until this dispute

came about both of you forgot it." CP at 15.

       Review of a bench trial is limited to determining "whether the findings of fact are

supported by substantial evidence and, if so, whether the findings support the conclusions

oflaw and the judgment." City ofTacoma v. State, 117 Wn.2d 348,361,816 P.2d 7

(1991). Substantial evidence is evidence sufficient to persuade a fair-minded, rational

person of the truth of the declared premise. In re Marriage ofLutz, 74 Wn. App. 356,

370,873 P.2d 566 (1994). "The party challenging a finding of fact bears the burden of

showing that it is not supported by the record." Panorama Vill. Homeowners Ass 'n v.

Golden Rule Roofing, Inc., 102 Wn. App. 422, 425, 10 P.3d 417 (2000).

       "A contract will be treated as abandoned where the acts of one party inconsistent

with its existence are acquiesced in by the other." Ferris v. Blumhardt, 48 Wn.2d 395,

402-03,293 P.2d 935 (1956). In determining whether the parties to a contract have

abandoned their agreement, "the existence of mutual intent to discontinue performance is

dispositive." Martinson v. Publishers Forest Prods. Co., 11 Wn. App. 42, 50, 521 P.2d

                                             13 



                                                                                               I
No. 3 1586-0-III
Arroyo v. Fischer


233 (1974). A court detennines whether a contract has been abandoned "based upon the

facts and circumstances surrounding the transaction." ld. at 49.

       Both parties' conduct was inconsistent with the 1978 agreement and promissory

note. Dr. Arroyo testified that she forgot about them. She never made any payments on

the note, and she stopped making payments on the mortgage when she moved out of the

Kennewick home with a view to joining the Navy. Dr. Fischer acquiesced in Dr.

Arroyo's discontinued perfonnance of the agreement and note. In the 33 years that

followed their execution before Dr. Fischer filed her answer to the complaint, Dr. Fischer

never took action to enforce the agreement or note and never identified either as a basis

for the parties' rights and obligations with respect to the property.

       Dr. Fischer nonetheless points to her reference in a 1991 letter to a $10,000 loan

that Dr. Arroyo had not paid back and her trial testimony that when she left in 1979, Dr.

Arroyo orally agreed to transfer full ownership in the Kennewick house to her. Dr.

Arroyo denied that she had ever agreed to transfer ownership in 1979 and Dr. Fischer's

evidence was also contradicted by her own inconsistent conduct of acknowledging Dr.

Arroyo's interest in the Kennewick property in the parties' 1990 correspondence and

thereafter. Dr. Fischer testified at trial that she never forgot about the tenns of the 1978
                                                                                               I
                                                                                               i


agreement and note, but she was impeached on this point with testimony from her pretrial

deposition. During her deposition, she had been asked if the 1978 agreement looked

familiar to her, to which she responded, "'No I don't remember this at all.'" RP at 16.

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No. 31586-0-111
Arroyo v. Fischer


       The trial evidence also established that before purchasing the Kennewick property,

Dr. Fischer had never insisted on the arrangement reflected in the two documents; it was

Dr. Arroyo's idea to have her acquaintance prepare an agreement for their signatures. Dr.

Fischer denied "know[ing] anything about" the agreement and note before she was asked

to sign the agreement. RP at 12. The fact that the arrangement was never required by Dr.

Fischer makes it more likely that she would acquiesce when Dr. Arroyo's obligations

under the documents were not performed.

       In reviewing a trial court's decision to determine whether substantial evidence

supports its findings, we defer to its credibility determination and we do not reweigh

evidence. Keene Valley Ventures, Inc. v. City ofRichland, 174 Wn. App. 219, 224, 289

P.3d 121, review denied, 178 Wn.2d 1020 (2013). Viewing the evidence in the light most

favorable to Dr. Arroyo, there was ample evidence from which the trial court could find

that Dr. Arroyo's early cessation of performance under the agreement and promissory

note was acquiesced in by Dr. Fischer. Substantial evidence supported the trial court's

conclusion that, having been abandoned, the agreement and note were unenforceable.

      The trial court was thereby left to resolve the parties' rights based on their joint

ownership of the two properties and the facts and circumstances under which they

acquired and continued to own them. Apart from challenging the trial court's disregard

of the abandoned agreement and note, Dr. Fischer does not challenge the trial court's




                                             15 

No. 31586-0-III
Arroyo v. Fischer


reliance on the equitable principles pertaining to committed intimate relationships as a

basis for resolving the parties' property interests.

                                   II. Attorney fees and costs.

       In announcing its partial ruling, the trial court stated that it would award Dr.

Arroyo's fees and costs attributable to her claim that the quitclaim deed to the Pullman

property was forged, having concluded that Dr. Fischer participated in the forgery. Dr.

Arroyo submitted billing records and declarations claiming that $14,651.00 of the fees

and costs she had incurred related to the forged deed.

       The trial court nonetheless awarded Dr. Arroyo the full $18,419.26 measure of the

fees and costs she had incurred-although not as fees, but as a convenient measure of an

equitable addition to Dr. Arroyo's share of the value of the two properties. In its

memorandum decision, the trial court explained its reasons for modifYing and increasing

its award to Dr. Arroyo:

               After trial, the court announced that it would make an award of
       attorney's fees in favor of Arroyo because of Fischer's dishonesty relating
       to the forged deed to the Pullman property. The court felt that
       reimbursement for a portion of her attorney fees was appropriate in this
       equitable action given the egregious nature of Fischer's conduct. The court
       has since reviewed the time and cost records of Arroyo's attorneys, and it
       finds these charges and expenditures reasonable.

CP at 47. It continued:

       Upon further consideration, the court also feels that some consideration
       should be given to the fact that Arroyo has been deprived of the use of her
       monetary interest in the property for 30 years, and that Fischer has gained

                                              16
No. 31586-0-111
Arroyo v. Fischer


       substantially from the effects of inflation on property values over this time.
       Because no evidence was presented to assist the court in quantifying these
       factors, the court deems it appropriate to make an adjustment in its oral
       ruling and to award Arroyo the full amount of her attorney fees and'costs to
       date of$18,419.26.

Id.

       Dr. Fischer argues that the additional $3,768.26 awarded is an improper award of

prejudgment interest. Dr. Arroyo responds that the additional amount was not interest,

but attorney fees, all of which could be justified on the basis of Dr. Fischer's egregious

conduct.

       While the trial court might have decided to award more attorney fees on the basis

of Dr. Fischer's conduct, it is clear from a fair reading of his memorandum decision that

he was not awarding the amount as additional attorney fees on that basis, but instead as

an addition to her share of the property value.

       Focusing on the trial court's language, we believe that it had in mind two things

revealed before and during trial. The first was the material amount Dr. Fischer had

realized from her sale ofthe properties, which Dr. Arroyo hoped would be the basis of

her recovery. The evidence established that Dr. Fischer realized a profit of between

$79,000 and $129,000 from her sale of the Pullman property (albeit after building a

duplex on the property following the end of the parties' relationship). The record reveals

that the Kennewick property had not only been profitable as a rental property (the trial

court's unchallenged finding was that it had generated net rental income of $23,519.92

                                             17 

No. 31586-0-111
Arroyo v. Fischer


before being sold) but also that the net proceeds from its sale, which had been paid into

court, had been "$11 0,000 and some change." RP at 91.

       The second fact that the court had in mind was that Dr. Arroyo had asked

repeatedly that the Kennewick property, at least, be sold. She testified that she had first

wanted it sold when she joined the Navy. Her correspondence with Dr. Fischer in the

1990s and in 2005 reflects her continuing suggestion that it be sold or that she at least be

allowed to receive her equity in the property by buying out Dr. Fischer's interest or by

being bought out by Dr. Fischer.

       The manner in which the court chose to resolve Dr. Arroyo's interest was to award

her one-half the equity in the two properties as of the end of the parties' relationship in

1983. But Dr. Arroyo did not get her $18,425 in 1983, so that she could invest it and see

it appreciate. She got it 30 years after the fact. In the meantime, the $18,425 that Dr.

Fischer was spared from sharing when the parties separated had grown for 30 years, to

her benefit. We believe it is this inequity that the trial court recognized at the time of its

memorandum decision, leading it to conclude that some "[ c]onsideration should also be

given to the fact that Arroyo has been deprived of the use of her monetary interest in the

property for 30 years, and that Fischer has gained from the effects of inflation." CP at 61.

The real question raised by this assignment of error is whether the trial court had

authority to award Dr. Arroyo more than 50 percent of the date-of-separation equity to




                                              18 

No. 31586-0-111
Arroyo v. Fischer


account for its finding that she had been harmed, and Dr. Fischer had been enriched, by

the 30-year delay.

       Dr. Fischer argues that the court did not have authority to increase Dr. Arroyo's

entitlement because it is well settled that "[p]rejudgment interest is not properly allowed

if the amount of the claim is determinable only through a standard of reasonableness as

contrasted with a fixed standard." 14A KARL B. TEGLAND, WASHINGTON PRACTICE:

CIVIL PROCEDURE § 35:13, at 499 (2d ed. 2009). While the additional award was

interest-like (although at an extraordinarily low rate), the trial court did not call the

additional award "prejudgment interest" and it did not arrive at the amount as one would

arrive at a measure of prejudgment interest, which would be by determining the principal

amount of damages and applying the interest rate provided by statute. Because the trial

court resolved the parties' interests based upon equity in view of their committed intimate

relationship, the court was not engaged in a process of determining damages to which it

added interest, it was engaged in a process of determining a "just and equitable division."

Increasing Dr. Arroyo's amount based on a consideration of the detriment to Dr. Arroyo

and benefit to Dr. Fischer of the delayed property division was a legitimate step in

arriving at the principal amount of her entitlement; it was not an add-on.

       RCW 26.09.080, which we look to for guidance in dividing property following a

committed intimate relationship, "does not mandate an equal division of property.

Rather, it requires a 'just and equitable' division." In re Marriage ofMartin, 22 Wn.

                                               19 

No. 31586~0-III
Arroyo v. Fischer


App. 295, 298, 588 P.2d 1235 (1979). In In re Meretricious Relationship ofSutton, 85

Wn. App. 487, 933 P.2d 1069 (1997), this court recognized that one party's use of

community~like   real property following the end of a relationship was a factor the court

could take into consideration in arriving at ajust and equitable division of property. An

abuse of discretion in dividing property exists only if it can be said that no reasonable

person would have ruled as the trial court did on the facts before it. In re Marriage of

Pilant, 42 Wn. App. 173, 176, 709 P.2d 1241 (1985). That is not the case here; the trial

court had a reasonable basis for making the adjustment.

                                 III. Attorney fees on appeal.

       Dr. Arroyo requests attorney fees on appeal, asking that we award attorney fees

based on the same equitable grounds that led the trial court to do so below. Under RAP

18.I(a), attorney fees may be awarded on appeal only if applicable law grants a party the

right to recover reasonable attorney fees or expenses on review.

       On appeal, Dr. Fischer has not continued to deny wrongdoing but has conceded

that the evidence could support the trial court's finding of dishonest conduct and its

consequential award of fees. The equitable exception that justified the trial court's award

is not implicated on appeal. The request for fees is denied.




                                             20 

       No. 31586-0-II1
       Arroyo v. Fischer


             Affirmed.

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

       Washington Appellate Reports but it will be filed for public record pursuant to RCW

       2.06.040.




       WE CONCUR: 




       Brown, J.



       Lawrence-Berrey, J.


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