                                                                                                                   FILED
                                                                                                          SLR "'       01
                                                                                                                            AS
                                                                                                       2013 ";         12
    IN THE COURT OF APPEALS OF THE STATE OF WASHIN *                                                               Nl       f
                                                                                                                            B-r,
                                                                                                                             I     IN


                                                      DIVISION II                                       By
                                                                                                                   7

In Re   Marriage of:                                                                  No. 42351 1 II
                                                                                                - -


CARY R. CARUGHI,

                                       Appellant,                I              UNPUBLISHED OPINION


         MM




JOHN G. CARUGHI,




         WORGEN, J. —Cary              Carughi appeals from the order of dissolution of her.

marriage to John Carughi. Cary challenges (1) trial court's findings of fact as to the
                                             the

valuation of the family home, 2) trial court's findings of fact and conclusions of law
                              ( the

that an antique gun collection was John's separate property, 3) trial court's findings
                                                             ( the

and conclusions that she committed waste of community and separate property, and (4)

the trial court's findings and conclusions that John may be entitled to a future attorney fee

award against her. John and Cary each request attorney fees under RCW 26. 9.
                                                                      140

John also requests attorney fees under RAP 18. ( Cary's filing of a frivolous appeal.
                                           a)9 for

We affirm the trial court and award John attorney fees.




 We     use   the   parties' first   names   for   clarity   and intend   no   disrespect.
No. 423 51 1 II
           - -



                                          FACTS


       John and Cary were married in 1992. John's father, John Sr.,
                                                                  later died, and his will was

admitted to probate in 1998. Among his estate assets was a large collection of antique guns.

Although the will had originally devised the "entire"collection to John, the word " ntire"had
                                                                                  e

been stricken from the will under unexplained circumstances. Report of Proceedings at 132. In

addition, the probate inventory attached to the will listed only 19 guns.

       Expecting to receive a collection of well over 200 guns, John and Cary traveled to Texas

to pick up the guns from the home of John's sister Cheryl. After arguing with Cheryl and her

husband over distribution of the guns, John and Cary took home with them all but 20 to 25.

Apparently, Cheryl did not contest this action. The guns John took home with him were worth
between $ 62, 00 and $
        2 0          448, 00.
                        0

       In 2004, John began working as an electrician in the Middle East on a contract basis,

returning to the United States during periods between contracts. When John was working

overseas, he deposited money into bank accounts, to which Cary had access, in sufficient

amounts to satisfy - s household expenses -and themortgage payments on the familyhome. - - - -- -
                   Cary'

       Despite the funds that John deposited, Cary made only sporadic payments on the

mortgage for the family home while John was out of the country. Cary also made many large

cash withdrawals from the couple's bank accounts, including withdrawals from ATMs

automatic teller machines)near casinos. She used at least part of these withdrawals for

gambling. Additionally, Cary accrued bank overdraft fees of more than $ , between
                                                                      4300

December 2007 and October 2009. Cary and her son Christopher also pawned a number of guns

from John Sr.' collection without John's knowledge, receiving over $ 00, 00.
            s                                                      1 0


                                                  2
No. 42351 1 II
          - -



       When John would come home during this time, Cary would stop the mail to prevent him

from seeing any bills or learning that the mortgage was in default. In September 2009, John

returned to the United States and found out that the family home was in foreclosure. Cary could _

not explain why the home was in foreclosure, and the parties separated with John telling Cary

not to return home. John paid most of his remaining savings to get the home out of foreclosure.

       John filed to dissolve the marriage in December 2009. He also filed a replevin action in

federal court seeking return of the guns that Cary had pawned. The federal court stayed the

action pending the state trial court's decision in the dissolution action whether the guns were

community property and whether Cary had authority to dispose of them.

       The trial court issued findings of fact and conclusions of law and a decree of dissolution

following a bench trial. The trial court ruled that the guns from John Sr.' collection were John's
                                                                         s

separate property and awarded him the entire collection. The trial court also ruled that Cary's

gambling and financial mismanagement constituted waste of both community assets and John's

separate assets, but found that the amount of waste could not be determined until the federal

replevin action had been resolved. The trial court awardedJohn the -family home and ruled that -

because of Cary's waste, John would not be required to immediately pay any marital lien to

satisfy Cary's equity in the home. Instead, it allowed John to satisfy Cary's equity if John chose
to sell the home.


       The trial court additionally found that Cary's actions prevented the case from settling,

increased the parties' attorney fees, and led to John incurring attorney fees in the federal case.

For these reasons, the trial court ruled that John might be entitled to an attorney fee award

against Cary after the federal case was resolved. Cary appeals.


                                                  K
No. 42351-
    11-  1



                                            ANALYSIS


                                     I. STANDARD OF REVIEW


       We review the trial court's findings of fact in a dissolution action for

substantial evidence. In re Marriage of Wilson, 165 Wn. App. 333, 340, 267 P. d 485 (2011).
                                                                            3

Substantial evidence is a sufficient quantity of evidence to persuade a fair -
                                                                             minded, rational

person that the finding is true. In re Marriage ofRockwell, 141 Wn. App. 235, 242, 170 P. d
                                                                                        3

572 (2007).This court defers to the fact finder on witness credibility and the persuasiveness of

the evidence. In re Marriage ofAkon, 160 Wn. App. 48, 57, 248 P. d 94 (2011).Unchallenged
                                                               3
findings are verities on appeal. Akon, 160 Wn. App. at 57.

       Further, we review whether the findings of fact support the trial court's conclusions of

law. Rockwell, 141 Wn. App. at 242. We review questions of law de novo. In re Marriage of

Herridge, 169 Wn. App. 290, 297, 279 P. d 956 (2012).
                                      3

       More specifically, we review a trial court's property distribution in a dissolution action

for manifest abuse of discretion. In re Marriage ofZier, 136 Wn. App. 40, 45, 147 P. d 624
                                                                                   3

2006). trial court abuses itsdiscretion when it adopts a position noreasonable -person would -
     A                                  -                                              -

take, relies on unsupported facts, or relies on an erroneous view of the law. Kelley v. Centennial

Contractors Enters.,Inc., Wn. d 381, 386, 236 P. d 197 (2010).
                        169 2                  3

                                 II. VALUE OF THE FAMILY HOME


        Cary first argues that substantial evidence does not support the trial court's finding of fact

2,
2.1. in which the trial court valued the family home at $ 38, 00. Cary fails to support this
 2                                                      2 0

argument.




                                                  0
No. 423 51 1 II
           - -



       John had submitted a comparative market analysis (CMA)of the home that found its

value to be $
            238, 00,and he testified that based on the CMA,he believed $
               0                                                       238, 00 was a fair
                                                                          0

value for the home. In finding of fact 2.1.the trial court concluded that the CMA should not
                                       2,
                                        2

have been admitted or considered, but nevertheless valued the home at $ 38, 00,based on
                                                                      2 0

John's undisputed testimony.

       Cary argues that there is no support in the record for setting the value of the home at this

amount. However, Worthington v. Worthington, 73 Wn. d 759, 763, 440 P. d 478 (1968),
                                                  2                  2             held

that "[ n owner may testify as to the value of his property and the weight to be given to it is left
     a]
to the trier of fact."
                     John testified that $ 38, 00 was a fair value for the home. No argument
                                         2 0

was made on,appeal that this evidence was inadmissible because it was based on the CMA.

Thus, John's testimony constitutes substantial evidence supporting the trial court's setting the

home's value at $
                238, 00. Further, Cary fails to support her bald assertion about the lack of
                   0

evidence in the record. Failure to accompany an assignment of error with argument precludes

appellate consideration. Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn. App. 183, 190
n. ,69 P. d 895 (2003).For each of these reasons,the finding setting the value of the home - -
 4      3               -                         -

must be upheld.

                   III. THE GUN COLLECTION WAS JOHN'S SEPARATE PROPERTY


        Cary argues that findings 2.1. 6,7,9,10, and .24,relating to the characterization of
                                  5, . . .
                                   2        .




                                                  5
No. 42351 1 II
    .     - -



the gun collection as John's separate property, are unsupported by substantial evidence.2,3 She
further argues that the trial court erred by concluding that the guns were John's separate

property. These arguments fail.

         Property acquired during marriage is presumed to be community property. In re

Marriage ofShort, 125 Wn. d 865, 870, 890 P. d 12 (1995).In addition, the law favors
                        2                  2

characterization of property as community property unless there is no question of its separate

character. In re Marriage ofMueller, 140 Wn. App. 498, 504, 167 P. d 568 (2007).Thus, the
                                                                 3

presumption must be overcome by clear and convincing evidence. In re Estate ofBorghi, 167

Wn. d 480, 484 n. ,219 P. d 932 (2009).
  2             4       3

         Separate property includes property acquired by " ift,bequest, devise, descent, or
                                                         g

inheritance."RCW 26. 6. The community property presumption is rebuttable by
                 010.
                   1

establishing that property acquired during the marriage fits one of these separate property

categories. Short, 125 Wn. d at 870 71. Appellate courts review the trial court's separate
                         2          -

property findings of fact for substantial evidence that is "`
                                                           highly probable. "'    In re Marriage of

                                 937
Schweitzer; 132 Wn. d 318, 329 30,
                  2            -            P.-    1062 ( 997)quoting In re Det.ofLaBelle, 107
                                                        1      (                -

Wn. d 196, 209, 728 P. d 138 (1986)).
  2                  2




2
 Cary also assigns error to finding 2.1.which determined the value of the gun collection, but
                                    8, 2
provides no argument as to this finding in her briefing. Failure to accompany an assignment of
error with argument precludes appellate consideration. Escude, 117 Wn. App. at 190 n. . This
                                                                                       4
court accordingly does not consider Cary's assignment of error on this point.
3
    Cary additionally argues that finding 2.1.relates to the trial court's characterization of the
                                          38
                                           2
gun collection and is unsupported by substantial evidence. This finding,however, relates to
Cary's liability for attorney fees, which   we   address below in section V of this   analysis.
No. 42351-
    11-  1



A.     Substantial Evidence Supports Findings that Guns Are Separate Property

       Cary's challenges to the characterization of the gun collection as separate property cover

two separate issues: (1)
                       whether the guns were part of John's inheritance and (2)
                                                                              whether Cary

lacked authority to control the guns. Again,both of her arguments fail.

       1. Findings Regarding Whether Guns Were Part of Inheritance

       Cary challenges findings of fact 2.1. 6,and .7,the trial court's findings that the guns
                                        5, .
                                         2

were part of John's inheritance. In finding 2.1.the trial court found that the gun collection
                                            5,
                                             2

came from John Sr.' estate and no other source. In finding 2.1.the trial court found that the
                 s                                         6,
                                                            2

inventory attached to John Sr.' will showing only 19 guns was erroneous, and that the other
                             s

heirs to the estate appeared to have signed off on probate after John obtained the gun collection.

In finding 2.1.the trial court found that John and Cary constructed a custom trailer to bring
           7,
            2

the guns back to Washington, making it improbable that they had removed the guns without

Cheryl's knowledge. The court further found that John's sister Cheryl never filed any action to

have the guns returned.

       Cary argues that the above findings are -
                                               unsupported by substantial evidence,in part

because (1)John purchased eight guns during the marriage and (2)John auctioned some of his

guns to make a down payment on the marital home. While the record supports Cary's assertions,
they do not impugn the challenged findings of fact. It was undisputed at trial that the guns

purchased during the marriage were community property, and the trial court divided them as

such. Further, Cary does not explain how John's selling a small number of the guns to purchase
the home shows that he did not take them under the will.




                                                 7
No. 42351 1 II
          - -



         Cary also claims that the above findings are not supported by substantial evidence

because (1) word " ntire"was stricken from the will provision leaving the gun collection to
          the    e

John, 2) inventory listed only 19 guns, and (3)
      ( the                                   John took all but 20 25 guns from Cheryl's
                                                                   -

residence after a contentious argument. Br. of Appellant at 12. None of these arguments

demonstrate that the above findings were unsupported by highly probable substantial evidence;

at best they highlight conflicting evidence, which the trial court resolved. This court defers to

the fact finder on the persuasiveness of the evidence. Thus, these findings must be upheld.

         Cary further challenges the statement in finding 2.1.that she discussed the potential tax
                                                          72

liability of John's inheritance with a tax attorney. In challenging this finding, Cary claims that

she "briefly discussed whether an inheritance was taxable, but John and Cary had received no
paperwork regarding the estate at that time." of Appellant at 13. This argument supplies no
                                            Br.

basis for challenging the finding; on the contrary, it appears to support, rather than dispute, the

finding at issue

         In addition, a review of the record shows that the above findings were supported by

highly probable substantial evidence. Although the word " ntire"had been stricken from the - -
                                                        e

will,its terms still granted the gun collection to John. Although the inventory included only 19

guns, it was undisputed that the collection contained over 200 guns. 1 RP at 136. There was no

evidence that the guns came from any source other than John's inheritance. There was no

dispute about John'. taking the bulk of the guns,but a dispute over only approximately five
                   s

particular guns that Cheryl and her husband wanted to keep. Under the standards above,.
                                                                                      we

uphold   these   findings.
No. 42351 1 II
          - -



       2. Findings Regarding Cary's Authority To Control Gun Collection

       Cary further contests findings 2.1. 10,and .24 regarding her authority to control.the
                                      9, .
                                       2

guns. In finding 2.1.the trial court found that John did not delegate control or authority over
                 9,
                  2

the guns to Cary; and in finding 2.1.it found that Cary acted without authority when she
                                 10,
                                  2

pawned guns from John Sr.' collection. In finding 2.1.the trial court simply restated both
                        s                         24,
                                                   2
of these findings.

        Cary challenges these findings, asserting, There is no evidence in the record that John
                                                   "

restricted Cary's ability to manage the couple's finances and affairs while he was out of the

country."Br. of Appellant at 13. Cary is correct that John did not restrict her authority to

manage the couple's finances and affairs. John, though, testified that he never gave anyone else

permission to dispose of the guns acquired from his father's estate. He testified explicitly that he

did not give Cary authority to pawn any guns from the collection.

        To be sure, if the guns were community assets, then Cary would not have needed John's

authority to control them. Mueller, 140 Wn.App. at 501 02 ( ach spouse may generally control
                                                       - e
communit Yp ro p ert Y   as his her separate p pe er')• separate property, thou g h,Car Y --
                                      p      property).As p                               would

have the authority to control the guns only if John had granted her that authority. There is

absolutely no evidence that he did so. Substantial evidence supports the trial court's findings on

this point.

B.      Characterization of Guns as Separate Property Not Erroneous

        Cary further argues that the trial court erred by concluding that the gun collection was

John's separate property. Her only argument on this point,though, is to essentially restate her

challenge   to the   findings   of fact   on   this issue. Because   Cary's challenge   to   the   findings fails, her
No. 42351


argument here similarly fails to demonstrate that the trial court erred in concluding that the guns

were John's separate property.

        More generally, the ultimate standard governing a trial court's property distribution is

              just and
whether it is "`           equitable   under all the circumstances. "'   Zier, 136 Wn. App. at 46

quoting In re Marriage ofKraft, 119 Wn. d 438, 450, 832,P. d 871 (1992)). fails to
                                      2                  2             Cary

argue, or to:show, that the trial court's property distribution was not just and equitable. Under

Escude, 117 Wn. App. at 190 n. ,we do not address issues that have not been argued.
                             4

        Highly probable substantial evidence supports the finding that John received the guns

through his father's will. John overcame the presumption of community property, and the trial

court did not err by concluding that the guns were his separate property.

                     IV. CARY'S WASTE OF COMMUNITY AND SEPARATE ASSETS


        Cary argues that findings 2.1. 4,16, 19,20, 21,23,and paragraph 3.2 of the
                                  3, . . . . .
                                   2         .                           1

dissolution decree, all regarding waste of community and separate assets, are unsupported by

substantial evidence. She additionally argues that the trial court erred by concluding that she

committed waste 5 - We-
                .     disagree: - - -- - -- - -- -- -- - - - - -- - -
A.      Cary Fails To Provide Argument Regarding Findings of Fact on Waste

        Although Cary challenges findings 2.1. 4,16, 19, 20,21, 23,and paragraph 3.2 of
                                          3, . . . . .
                                           2         .                            1

the dissolution decree for lack of substantial evidence, only finding 2.1.contains findings of
                                                                      16
                                                                       2


4
  Cary also challenges finding 2.1.claiming that it relates to her committing waste. Again,
                                 38,  2
this finding relates to Cary's liability for attorney fees and is addressed below at section V.
5
 Cary also assigns error to findings 2.1. and.17, but she makes no mention of them in the
                                     15  2
argument section of her brief. Failure to provide argument as to an assignment of error precludes
appellate consideration. Escude, 117 Wn. App. at 190 n. . We accordingly do not address
                                                        4
Cary's challenges to these findings.
                                                       10
No. 42351-
    11-  1



fact related to waste. The rest of the challenged findings simply restate the legal conclusion that

Cary committed waste, without factual findings on the issue. We treat findings of fact as

conclusions of law when appropriate, as here. Grundy v. Brack Family Trust, 151 Wn. App.

557, 568 n. ,213 P. d 619 (2009).
          7       3

       In finding 2.1.the trial court found that Cary did not have a true economic need to
                  16,
                   2

pawn the guns, and that she withdrew large sums of money from banks and from ATM machines

near casinos. Cary provides no argument challenging the evidence supporting these factual

findings. Instead, she argues that the parties had no debt other than the mortgage at the time of

separation, and that she paid household expenses with the money John gave her and the money

she received from pawning guns.

       Neither of these arguments question whether the trial court's findings on this point are

supported by substantial evidence. Thus, neither argument provides any basis for overturning

these findings.

B.      The Conclusion as to Waste is Not Erroneous


       A trial court " asdiscretion to consider negatively productive conduct' depleted -
                     h                          `

the couple's assets and to apportion a higher debt load or fewer assets to the wasteful marital

partner."In re Marriage of Williams, 84 Wn. App. 263, 270, 927 P. d 679 (1996)quoting In re
                                                                2              (

Marriage of Clark, 13 Wn. App. 805, 809, 538 P. d 145 (1975)).
                                              2             While there is little precedent

determining exactly what constitutes waste in Washington, the Court of Appeals has recognized

that the failure to pay taxes constitutes marital waste. In re Marriage ofSteadman, 63 Wn.App.

523, 528, 821 P. d 59 (1991).The issue here is whether Cary's failure to pay community debts,
               2

despite ample resources to do so, constituted waste.


                                                 11
No. 423 51 1 II
           - -



       Cary provides no argument that the trial court's findings on this point are unsupported by

substantial evidence. In finding 2.1.the trial court found that Cary had serious financial
                                 15,
                                  2

management issues and allowed the marital home to go into foreclosure twice, despite receiving

4, to $ 000 per month from John, which would have covered the mortgage payment on the
 000 6,

family home. The trial court found that Cary accrued approximately $ , in bank overdraft
                                                                   4300

charges, and that she stopped the mail when John was home so that he would not learn of the

couple's financial situation.

       In finding 2.1.the trial court found that Cary had no economic necessity to pawn
                  16,
                   2

John's guns and that she withdrew large amounts of money from banks and from ATMs near

casinos. In finding 2.1.the trial court determined that the circumstances surrounding the
                    17,
                     2
bank withdrawals indicated that Cary had money management problems with gambling. In

findings 2.1.and .20,the trial court found that Cary's spending was to the clear detriment of
         19
          2

the marital community, and that she spent John's separate property funds in addition to

community property.

       The trialcourt's -unchallenged findings,which we take as verities on appeal,
                                                                                  show that

Cary's actions depleted community assets, as well as John's separate assets. Cary allowed the

mortgage to go into default and accrued substantial overdraft fees despite receiving adequate

funds from John and pawning John's guns, due at least in part to her gambling problems. If the
failure to pay taxes constitutes waste as held in Steadman, 63 Wn. App. at 528, these actions

surely do also.




                                                12
No. 42351 1 II
          - -



       Cary argues to the contrary that (1) paid all of the couple's other bills, and that ( )
                                           she                                             2

John also was not a good money manager. These arguments, though, do nothing to question the

findings and conclusions that she committed waste.

       Under the case law, Cary's actions constituted marital waste. The trial court did not

abuse its discretion in considering this waste when deciding how to distribute the couple's

property.

                                  V. ATTORNEY FEES AT TRIAL


       Cary argues that finding 2.1.and paragraph 3.2 of the dissolution decree are
                                38
                                 2                 1

unsupported by substantial evidence and do not support any award of attorney fees below against ,

her. We decline to reach these arguments because the trial court made no attorney fee award

against Cary, making any decision by this court an improper advisory opinion.

       In finding 2.1.the trial court found that " ut for the wife's actions, the case most
                  38,
                   2                             b

likely would have settled and that her actions increased fees and costs for both parties."Clerk's

Papers (CP)at 6. In paragraph 3.2 of the dissolution decree, the trial court stated:
                               1
       The court finds that due to the wife's marital waste, the husband and the wife
       have increased their attorney fees and the husband has incurred additional
       attorney fees and costs in the federal case. The court retains jurisdiction in this
       matter and the attorneys shall provide a cost bill through the date of the court's
       findings on May 12, 2011. When the federal matter is concluded, the court may
       be awarding some of the husband's attorney fees and costs to the wife. The court
       may not be awarding fees dollar for dollar, but the wife may be expected to take
        on some of the costs because the court finds that but for her actions, these costs
       would not have been incurred.


CP at 31 (emphasis added).

        Interlineations on the document, substituting the word " ay"for " ill," that
                                                               m        w     show

the trial court rejected proposed language that it was awarding attorney fees against Cary


                                                13
No. 42351 1 II
          - -



at   that time. Thus, the trial court awarded   no   attorney fees against Cary. Instead, the

court noted simply that a future award may be justified.

         Advisory opinions are disfavored in Washington courts. State v. Norby, 122 Wn. d 258,
                                                                                      2

269, 858 P. d 210 (1993).More specifically, the Court of Appeals has, in other family law
          2

cases, declined to issue advisory opinions. See In re Marriage ofEklund, 143 Wn.App. 207,

211, 177 P. d 189 (2008)declining to issue advisory opinion regarding correctness of trial
          3              (

court's advisory oral ruling regarding parenting plan); re Marriage ofDavisson, 131 Wn.
                                                      In

App. 220, 226 27,126 P. d 76 (2006)declining to issue advisory opinion regarding legal
              -       3             (

question that might arise in future parenting plan disputes, but was not germane to case at bar).
We follow these cases and decline to issue an advisory opinion deciding the propriety of an

attorney fee award that is,at best, only hypothetical at this point in the litigation.
                                   VI. ATTORNEY FEES oN APPEAL


          Both parties request attorney fees on appeal under RCW 26. 9. That statute
                                                                 140.
                                                                   0
authorizes our court to award attorney fees to a party in a dissolution action " fter considering
                                                                               a

the financial resources of both parties."
                                        RCW 26. 9.
                                            140.
                                              0 RAP 18. (
                                                    c)1 states:---

          In any action where applicable law mandates consideration of the financial resources of
          one or more parties regarding an award of attorney fees and expenses, each party must
          serve upon the other and file a financial affidavit no later than 10 days prior to the date
          the case is set for oral argument or consideration on the merits.

          Neither party submitted the affidavits required under RAP 18. (
                                                                    c). both
                                                                      1 Therefore,

requests for attorney fees on appeal under RCW 26. 9.must be denied. In re Marriage of
                                               140
                                                 0

Smith, 158 Wn. App. 248, 263, 241 P. d 449 ( 010).
                                   3       2

          John also requests attorney fees under RAP 18. ( sanctions for Cary's filing a
                                                     a)9 as

frivolous appeal. "An appeal is frivolous `if there are no debatable issues upon which reasonable
                                                     14
No. 423 51 1 II
           - -



minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of

reversal. "'   Der, 136 Wn. App. at 49 (quoting Streater v. White, 26 Wn. App. 430, 435, 613 P. d
                                                                                              2

187 (1980)). s appeal is plainly frivolous under these standards on the issues of valuation
          Cary'

of the house and waste of community and separate assets. It is not debatable whether substantial

evidence supports the challenged findings on those issues.

        The issue whether the gun collection is John's separate property requires a more detailed

look. As noted above, we review the findings for substantial evidence and defer to the fact

finder on the credibility of witnesses and the persuasiveness of the evidence. As also shown

above, the trial court's characterization of the gun collection as John's separate property is

supported by substantial evidence.

        Cary argues that the striking of the term " ntire"from the will and the listing of only 19
                                                  e

guns on the probate inventory, together with the presumption that property acquired during
marriage is community, shows that it was erroneous to find the guns to be separate property.

Striking " ntire,"
         e       however, does not change the meaning of the will. On its face, it still granted
the gun collection to John,without limitation.   Although listing only   19 of the   over   200 guns in


the collection suggests some uncertainty in the status of the remaining guns, the trial court

expressly considered and discussed these issues in its findings and conclusions that the gun
collection was John's separate property, well supported by the evidence. As shown above, for us

to reverse on the basis of the probate inventory would ignore both the substantial evidence

standard and the rule that we do not weigh the evidence again. Similarly, Cary's assertions that

the couples quarreled over the guns and that John took more guns than his sister was willing to



                                                  15
No. 42351-
    11-  1



yield do not call into question the presence of substantial evidence. Similarly, reversing on this

basis would intrude into the trial court's exclusive responsibility to weigh the evidence.

        Simply making weak or losing arguments does not warrant an attorney fee award. At

times, an advocate must explore the limits of plausibility in arguing a case. Here,though,those

limits were crossed, and we award attorney fees on appeal to John under RAP 18. ( an
                                                                            a)9 in

amount to be determined by our commissioner.

        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

040,
2.6.it is so ordered.
  0




                                                   Bj   ge            f
We concur:


    d


Hunt, J.           1 1,

  orswic ,




                                                 16
