 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of                 NO. 67817-5-
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DORIS BERG,                                                                       i*>         i t '^:
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                                                 DIVISION ONE                                  o      -.-(...

                     Respondent,                                                   ——

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                                                 UNPUBLISHED OPINION                    vJ3
                                                                                                    —'-CT
LOUIS BERG,                                                                             ro


                     Appellant.                  FILED: November 12,2013


       Leach, C.J. — Lou Berg appeals the decree dissolving his marriage with

Doris Berg.1 He contends that the trial court erred by invalidating the parties'

prenuptial agreement, by excluding untimely disclosed witnesses, by awarding

Doris maintenance, and by denying his motion for reconsideratior). Doris cross

appeals, challenging the court's valuation of Lou's business assets. Both parties

request attorney fees on appeal. Because substantial evidence supports the trial

court's findings and the court did not abuse its discretion, we affirm

                                      FACTS


       Lou and Doris Berg married in March 1982. It was a second marriage for

each. Less than two weeks before their wedding, Lou took Doris to        meet with his




        We use the parties' first names for clarity.
NO. 67817-5-1/2




attorney, Wolfgang Anderson, about a prenuptial agreement.        Anderson told

Doris to "look it over."   Doris met with her parents' longtime attorney, Howard

Pruzan, for a 30-minute consultation to review the document. Prupan may have

made some minor changes to the document.

       The agreement purported to protect the parties' separatte        assets.    It


identified the assets each owned at the time they married. Doris owned a home
                                                                  j


on Mercer Island and an automobile; she had money in various bank accounts

and retirement savings, two term life insurance policies, and spme personal

possessions.    Excluding the insurance policies, which had no   cash value, her


assets totaled approximately $160,000. By contrast, the agreenrjent      described


Lou's estimated net worth at over $350,000, including the value   of his financial


services business, two vacation homes, investment properties, ^nd whole life

insurance investments.


       When they married, Doris and Lou had a significant earning        differential


that continued throughout the marriage. Doris worked as a speech therapist in

the King County School District for more than 30 years. The district paid her
                                                                 ict

about $60,000 the year before the dissolution proceedings began .      Lou worked


for Crown Finance, a financial services company that made high        interest "hard


money" loans.    Eventually, he became the sole owner of the conppany          n the
NO. 67817-5-1/3




years before their dissolution, Lou's average salary was between $200,000 and

$250,000.

      Lou and Doris's marriage lasted 27 years. In July 2009,          Doris filed for


legal separation and then for dissolution. At the time that they separated, Doris
and Lou both planned to retire within the next few years. The trial occurred in

May 2011 and lasted five days. Lou sought to enforce the prenuptial agreement.

The court denied enforcement, finding the agreement to be both substantively

and procedurally unfair.    Instead, it awarded Lou assets valued        at over $3.5

million and Doris assets valued at approximately $2.5 million, plus maintenance

of $4,000 per month for eight years. Both parties moved for reconsideration.

The court denied Lou's motion and granted Doris's motion in part. Both parties

now appeal. We discuss additional facts in the relevant sections below.

                                     ANALYSIS


       Lou raises multiple issues.     He challenges the trial court's refusal to

enforce the prenuptial agreement, its exclusion of two witnesses, its valuation

and characterization of certain assets, its division of assets and liabilities, and its
award of maintenance to Doris. We reject each challenge.

       We first address Lou's challenge to the decision not t<t> enforce the

prenuptial agreement. The court found,

       [T]he prenuptial agreement should not be enforced as it wks both
       substantively and procedurally deficient at the time it was executed.
                                          -3-
NO. 67817-5-1/4



       The agreement was substantively unfair as it did not properly
       provide for the growth of community property during the marriage.
       Specifically, paragraphs 4-6 and paragraph 16 of the prenuptial
       agreement (petitioner's Exhibit 69) were unfair to the petitioner.
       Further, the Court concludes that the amount of time to evaluate
       the prenuptial agreement (30 minutes), the inadequacy of the
       review by petitioner's then-counsel, and the short duration between
       the draft prepared by respondent's counsel and the date of signing
       (within five days of the wedding) provide substantial evidence that
       the petitioner was not adequately protected nor properly irjformed
       of her rights under Washington law.

       Courts employ a two-pronged analysis for determining th^ validity of a
prenuptial agreement.2 First, the court decides whether the agreement makes

fair and reasonable provision for the party not seeking enforcement of the
agreement.3 If it does, then the analysis ends, and the court yj\\\ enforce the
agreement.4 If the agreement does not make a fair and reasonably provision for
the opposing spouse, then the court must determine the procedurral    fairness of


the agreement by answering two questions:         (1) did the parties make full

disclosure of the amount, character, and value of the property involved and (2)

did they enter the agreement fully and voluntarily with independent advice and

with full knowledge of their rights.5




       2In re Marriage of Bernard. 165 Wn.2d 895, 902, 204 P.3d 9p7 (2009).
       3 Bernard, 165 Wn.2d at 902.
       4
           Bernard, 165 Wn.2d at 902.
       5 Bernard, 165 Wn.2d at 902-03.
NO. 67817-5-1/5




       Absent a factual dispute, we review the substantive fairness of a

prenuptial agreement de novo.6 The party seeking to enforce the agreement has
the burden of proving its validity.7 Washington courts examine the agreement's
terms and the surrounding circumstances at the time of execution    and not at the


time of enforcement.8 The factors the court may consider when       determining a

prenuptial agreement's substantive fairness include (1) the proportionate means

of each party, (2) restrictions on the creation of community property, (3)

prohibitions on the distribution of separate property upon dissolution, (4)

preclusion of common law and statutory rights to both community and separate

property upon dissolution, (5) limitations on inheritance, (6) prohibitions on

awards of maintenance, and (7) limitations on the accumulation of separate

property.9



      6 Bernard, 165 Wn.2d at 902 (citing In re Marriage of Foran    67 Wn. App.
242, 251 n.7, 834 P.2d 1081 (1992)).
      7In re Estate of Crawford, 107 Wn.2d 493, 496, 730 P.2d 675 (1986).
      0 Bernard. 165 Wn.2d at 904.
      9See, e.g.. Bernard. 165 Wn.2d at 905 ("[A]n agreement disproportionate
to the respective means of each spouse, which also limits the accumulation of
one spouse's separate property while precluding any claim to the cither spouse's
separate property, is substantively unfair."); In re Marriage of Matsdn , 107Wn.2d
479, 486, 730 P.2d 668 (1986) (holding that a prenuptial agreement was "grossly
disproportionate" where all value, income, and earnings from sepiarate property
would remain separate upon dissolution); Foran. 67 Wn. App. at 249- 51 (holding
that a prenuptial agreement which waived any claim of right to separate property
in the event of death or dissolution and effectively prohibited he growth of
community property was substantively unfair).
                                       -5-
NO. 67817-5-1/6




       Here, the court identified paragraphs 4, 5, 6, and 16 of the agreement as

the provisions supporting the court's conclusion that the agreement did not fairly

provide for the accumulation of community property. Paragraph 4 provides that

the assets each party owned at the time of the agreement should remain
separate property and that "[a]ny additions or enhancements in the value of

separate property of either party which occurs due to major structural

improvements of said property by community funds shall be community property

only to the extent of the costs thereof and the appreciation due thereto." Itfurther

provides that any community funds otherwise used for the direct      benefit of one


party's separate property shall be deemed a gift of community property to the

party owning the separate asset.

       Paragraph    4   effectively   extinguishes    any    communlity   right   of

reimbursement for community funds expended on separate property for any

purpose other than a major structural improvement.          Notably, the agreement

does not require that both spouses consent to these expenditures,      Given Lou's


disproportionate separate assets and income at marriage, this paragraph

operates disproportionately in favor of Lou.

       Paragraph 5 provides that all assets acquired with the proceeds of

separate property shall remain separate property and that the parties can only

commingle assets through "title documents, deeds and/or by recognizing and

                                        -6-
NO. 67817-5-1/7




listing both parties on any new assets or by adding the other party to the

preexisting ownership as community property." This paragraph alsb      affirmed that


"any wages, salaries and/or other employment benefits attributable   to the labor of


either of them during such time that they shall be living together as husband[]

and wife, shall be deemed community property." This paragraph             restricts the


creation of community property through commingling.

       Paragraph 6 addressed the consequences of dissolution:

      [l]in the event of a dissolution of their marriage, it is hereby agreed
      that each shall be awarded his or her own separate proderty as
      defined in this Agreement; and each of them expressly waives any
      rights that he or she may have or subsequently acquire in the
      separate property of the other. In addition, if the separate droperty
      contains any community property investment or lien therein which is
      to be divided by reason of any dissolution of marriage that
      separate property shall nevertheless be awarded to the           who
      owns said property as his or her own separate property not
      withstanding any community investment. The discharge of the
      community lien shall be made by some other mode throiligh the
      disposition of jointly-acquired community assets and/or payments
      The remaining community property is to be divided between the
      parties in a[n] equal manner.

      This paragraph substantially modifies the statutory right of a spouse

to a "disposition of the property and the liabilities of the parties, either

community or separate, as shall appear just and equitably                 after


considering all relevant factors."10          It fails to account   for    the


disproportionate means of Lou at marriage as well.


      10
           RCW 26.09.080.
                                        -7-
NO. 67817-5-1/8




       Paragraph 16 provides that property acquired by the parties     after


marriage shall be owned in proportion to the amount of separate         and


community contributions used to purchase the assets. It also states,

       Lou shall always be entitled to any and all interest in and to his
      business even though he is spending community industry arid labor
      thereon and any benefit flowing therefrom, provided, however, that
      Lou never take a salary of less than his present salary and
      provided, further, however, that no interest shall be given to Doris
      therein if a salary is taken in an amount lesser than his present
      salary if business circumstances would not allow the taking of his
      present salary.

This provision fails to account for both the inflationary factors that ordinarily

operate on wages over time and any increase in the value of Lou's   services over


time due to increased skill or experience.

      "There is nothing unfair about two well-educated working professionals

agreeing to preserve the fruits of their labor for their individUal benefit."11

"However, an agreement disproportionate to the respective        means of each


spouse, which also limits the accumulation of one spouse's     separate property
while precluding any claim to the other spouse's separate property, is

substantively unfair."12 The agreement here provided significantly greater benefit

to Lou and allowed him to expend considerable community labor     on   his separate

property at the expense of the community. While paragraph 5 characterizes both

       11
            In re Marriage of DewBerrv. 115 Wn. App. 351, 365, 62 P.3d 525
(2003).
       12
            Bernard. 165 Wn.2d at 905.
                                         -8-
NO. 67817-5-1/9




spouses' wages, salaries, and employment benefits as community property,

paragraph 16 explicitly exempts Lou's labor and community contributions to his

separate property business so long as he contributed an annual s;alary, capped

in amount for all time, or such lesser amount as business circumstances allow, to

the community.     As a business owner, Lou alone controlled those business

circumstances, which gave very little protection to the community        Further, the

agreement provides that expenditure of community funds on the separate          assets


produces    community     property   only      if expended   on   "ma or     structural


improvements." All other community expenditures become gifts t^          the owner of


separate property. The agreement deprives Doris of the right to request a just

and equitable division of all of the parties' assets and liabilities without any

corresponding consideration.

       Doris testified that she believed the agreement was fair wheifi   she and Lou


signed it, but she did not think it was fair now, given their circumstances      upon


dissolution. Lou cites this testimony as evidence of the agreement's       substantive


fairness. We disagree. Despite Doris's subjective beliefs, the      disproportionate
benefit to Lou, the restrictions on acquisition and growth of commi|inity property,

the ability for Lou to utilize his community labor to grow his separate property

business, and Doris's waiver of substantial statutory rights collectively establish   a


substantively unfair agreement.

                                         -9-
NO. 67817-5-1/10




       Because Lou cannot establish the substantive fairness of the agreement,

we must consider its procedural fairness.         To determine whethqr a prenuptial

agreement is procedurally fair, we consider (1) whether the parties fully disclosed

the amount, character, and value of the property and (2) whether both spouses

entered into the agreement freely and voluntarily, upon independent     advice, and

with full knowledge of their rights.13 Our review for procedural fai
                                                                 faiifness   involves

mixed issues of policy and fact; thus, we review the issue de novo in light of the

trial court's resolution of the facts.14

       Because the parties do not dispute the adequacy of theij"        premarriage


property disclosures, we address only the second prong.15 On this     issue, the trial

court found


       that the amount of time to evaluate the prenuptial agreement (30
       minutes), the inadequacy of the review by petitioner's then-counsel,
       and the short duration between the draft prepared by respondent's
       counsel and the date of signing (within five days of the wedding)
       provide substantial evidence that the petitioner was not adequately
       protected nor properly informed of her rights under Washington law.

Substantial evidence supports this finding. 16         In re Marriage of Bernard17

illustrates why.   There, the court invalidated a prenuptial contract because the



      13 Matson. 107 Wn.2d at 483.
      14 Bernard. 165 Wn.2d at 903.
      15 Bernard. 165 Wn.2d at 905-06.
      16 Sunnvside Valley Irrigation Dist. v. Dickie. 149 Wn.2d 873 879, 73 P.3d
369 (2003).
       17 165 Wn.2d 895, 204 P.3d 907 (2009).
                                           -10-
NO. 67817-5-1/11




wife's attorney did not have enough time to review it adequately       and the wife


signed it without "'full knowledge of its legal consequences."'1 B While the

husband and his attorney worked on the agreement for nearly si
                                                            six        months and


regularly advised the wife to obtain independent counsel, they did   not   provide her

with a draft agreement until 18 days before the wedding.19 Three days       before the


wedding, the wife's attorney, an experienced family law practitioner       received a


draft from the husband's attorney which was substantially different   from the one


the wife previously received.20 He testified that he had insufficient time     to fully

review the proposed agreement or draft a counteragreement. He Wrote his client

a letter identifying five major areas of concern, but because the wif4 was   involved


with wedding preparations, he could not meet with her to discuss His concerns.21
She signed the prenuptial agreement the day before the wed^l ing with the

understanding that they could amend the document later to              address     her


attorney's concerns.22      The court held that these circumstarices         provided

                                                                                    23
substantial evidence to support the trial court's finding of procedura unfairness




      18   Bernard.   165 Wn.2d   at 906.
      19   Bernard.   165 Wn.2d   at 899.
      20   Bernard.   165 Wn.2d   at 899.
      21   Bernard.   165 Wn.2d   at 899.
      22   Bernard.   165 Wn.2d   at 899-900.
      23   Bernard.   165 Wn.2d   at 906.
                                          -11-
NO. 67817-5-1/12




      Similarly, in In re Marriage of Foran, 24 the court invalidated an agreement

due to procedural unfairness to the wife. The husband and his attorney worked

on the agreement for over a month but did not give it to the wife until two days

before the parties left for their wedding trip.25 While the husband's attorney
clearly informed the wife to have her own attorney review the document, she did

not do so.26 No one explained to her that the agreement allowed the husband,

who already had significant separate assets, to increase his separate property at

the expense of the marital community.27 She also testified about domestic
violence in their relationship and her belief that her husband would beat her if she

did not sign the document.28 The court found that the wife did not "voluntarily
and intelligently" enter the prenuptial contract because she could not understand

how economically unfair it was to her and to the marital estate.29
       Here, Doris's cursory legal review of the document with her parents'

attorney, the short period of time between receipt of a draft agreement and

signing, and Doris's lack of full knowledge about its legal consequences provide

substantial evidence to support the court's finding of procedural unfairness.



       24 67 Wn. App. 242, 256-58, 834 P.2d 1081 (1992).
       25 Foran. 67 Wn. App. at 245.
       26 Foran. 67 Wn. App. at 245-46.
       27 Foran, 67 Wn. App. at 253, 255-56.
       28 Foran. 67 Wn. App. at 246.
       29 Foran, 67 Wn. App. at 257-58.
                                        -12-
NO. 67817-5-1/13




      We next address Lou's challenge to the trial court's exclusion of two

witnesses Lou wished to call to provide testimony about the valuation of Crown

Finance. Shortly before trial, Bank of America canceled Crown Finance's line of

credit and called in the outstanding debt. Lou liquidated his profit-sharing plan to

pay the debt and avoid litigation.30 Based on the elimination of this $1 million
liability, Doris substantially increased her business valuation. As a result, Lou

sought to call two fact witnesses having familiarity with "hard money" lender

businesses to testify about the economy's impact upon the collectability of loans.

Because Lou did not timely disclose these witnesses as required by King County

Local Court Rule 26(k), the trial judge excluded their testimony.

       We review a trial court's decision to exclude witnesses for an abuse of

discretion.31 Lou claims that the court erred by disregarding the factors set forth

in Burnet v. Spokane Ambulance32 before excluding the witnesses' testimony

altogether and failing to make the findings required by Teter v. Deck.33 In Burnet.
the court articulated three factors that must be shown on the record before the

court may impose one of the "harsher" discovery sanctions, such as dismissal,

default, or exclusion of testimony:      (1) willful or deliberate violation   of the


       30 The court noted that while Lou's decision to liquidate the profit-sharing
plan, rather than some other assets, resulted in an unnecessarily large tax
burden, it did not find that Lou breached his duty to the community.
       31 Lancaster v. Perry, 127 Wn. App. 826, 830, 113 P.3d 1 (2f)05).
       32 131 Wn.2d 484, 494, 933 P.2d 1036 (1997).
       33 174 Wn.2d 207, 274 P.3d 336 (2012).
                                        -13-
NO. 67817-5-1/14




discovery rules and orders, (2) substantial prejudice to the other party's ability to

prepare for trial, and (3) the trial court explicitly considered whether a lesser

sanction would have sufficed.34 In Teter. the court held that the trjal court must
make findings about the Burnet factors on the record, either orally br in writing.35

A trial court abuses its discretion when it excludes witnesses without these

findings.36

       Here the trial court did not make findings on the Burnet         actors before


excluding Lou's proposed witnesses.        After hearing argument from both sides

on Doris's motion to exclude, the court explained its decision to exc      ude:


       The standards under the local rule at issue here, Local Rule 26,
       have been applied fairly consistently and clearly in this court to
       exclude generally expert witnesses when there hasn't been full
       compliance with the provisions of the local rule.
              The Court doesn't have to find absolute prejudice      as.   to the
       other party in order to exclude witnesses. The Court doesrj         t have
       to find that there aren't any options if the Court does allow the
       witnesses to testify. The Court has to find out from looking at
       what's been presented why the witnesses weren't provded                    in
       compliance with the provisions of the local rule.

             As the . . . local rule provides, . . . "Any person not disclosed
       in compliance with this rule may not be called to testify at trial,
       unless the Court orders otherwise for good cause and su bject to
       such conditions as justice requires."
             I don't find any good cause basis for allowing these
       witnesses to testify.

       34 Burnet, 131 Wn.2d at 494.
       35 Teter. 174 Wn.2d at 217.
       36 Burnet. 131 Wn.2d at 494.
       37 In fairness to the trial court, we note that the Supreme Coiirt issued its
Teter opinion long after completion of the trial in this case.
                                         -14-
NO. 67817-5-1/15




              The untimely disclosure without good cause prejudicing
       substantially the petitioner leaves this Court to conclude tpat the
       motion in limine will be granted.

The trial court made no finding of willful violation or deliberate disregard of the

local rule and does not appear to have considered any less severe sanction. The

trial court erred. But Lou demonstrates no prejudice caused by this error.

       Establishing error in a civil case without also showing prejudice does not

provide grounds for reversal.38 Lou has not shown any prejudice resulting from
the exclusion of his two proposed witnesses. He represented to the trial court, "It

is likely that [Lou] will only need to call one of these witnesses    as a rebuttal


witness if [Doris] maintains her new claim that Crown Finance is worth $1.6

million." The trial court rejected this claim by Doris. Thus, Lou prevailed on the

issue for which he claimed to need these witnesses without them.

       On appeal, Lou indirectly suggests prejudice. He points to the   trial court's


complaint about the lack of evidence for the value of Crown Finance        the court's


dissatisfaction with his valuation expert, and the court's skepticism ^ibout Crown's

accounting. Lou makes no express claim that an excluded witnesjs        would have


testified about any of these issues. The record affirmatively suggests they would

not.   Lou identified each as a fact witness "needed to testify regarding the

accounts [uncollectibility] and the effect of the housing crisis on both   residential


       38 Saleemiv. Doctor's Assocs.. Inc., 176 Wn.2d 368, 380, 29? P.3d 108
(2013).
                                           -15-
NO. 67817-5-1/16




and commercial lending."     Lou did not identify either as being knowledgeable

about Crown's operations, assets, or value.      Lou has failed to establish any

prejudice.

      We next address Lou's challenges to asset valuation and characterization.

He first claims that the trial court abused its discretion by adopt ing Doris's

proposed $340,000 value for the Redmond Ridge investment property             despite

Lou's evidence that the building was worth "less than nothing." The     trial court did


not abuse its discretion.     Where evidence at trial supports two different

valuations, the court acts within its discretion by choosing a va ue anywhere

between those two numbers.39 Lou paid $340,000 for his 16.3 perdent interest in

the property in 2005. As late as 2010, he listed that "net investment"    value on a


financial statement.   Lou testified that while he anticipated losing    two tenants


over the next year, the building was currently fully leased and only      one tenant


had defaulted on payments.     The property manager testified tha one building

tenant was in default and would not renew the lease, the management         company


was in receivership, and Lou and the other owners were responsible for returning

overpayments. She did not testify that the building had no value. While the      court


would have been justified in finding that the property had a lower v^lue given the


      39 See, e.g.. In re Marriage of Soriano. 31 Wn. App. 432, 435, 643 P.2d
450 (1982) (citing In re Marriage of Lukens. 16 Wn. App. 481, £58 P.2d 279
(1976)).
                                       -16-
NO. 67817-5-1/17




economic climate, it did not abuse its discretion by adopting a valu^ endorsed by
Lou less than one year earlier.

       Lou also asserts that the trial court erred when it decline^ to consider

additional valuation evidence for Redmond Ridge presented in his motion for

reconsideration.   CR 59(a)(4) allows the court to grant a new trial based on

"[n]ewly discovered evidence, material for the party making the appl ication, which

he could not with reasonable diligence have discovered and produced at the

trial." We review a trial court's decision on a motion for reconsideration for an

abuse of discretion.40    Specifically, Lou asked the court to cdnsider "new"

evidence—that the property management company had filed for bankruptcy and

the owners were liable for further payments and that while they were trying to sell

the building, the realtor anticipated they would have to accept a short sale. The

court found that Lou's proffered evidence did not satisfy the CR 59 standard.

      We disagree with Lou's characterization of this evidence as "hew." At the

time of trial, the property management company was in receiveifsh ip and the

owners were responsible for repaying past overpayments they had received.

The transition from receivership into bankruptcy is not a "new" development     that


would have changed the court's consideration of the property value.




      40 Palmer v.Jensen. 132 Wn.2d 193, 197, 937 P.2d 597 (1997)
                                       -17-
NO. 67817-5-1/18




        Lou next contends that the court erred by characterizing the remaining

payments due on a promissory note from Panos Properties as community

property. Lou and his sister sold a jointly-owned investment property to Panos

Property in 2005. Lou received $595,000 at closing and a promissory note for

the balance, payable in monthly installments of $8,443, with a balloon payment of

$778,000 due in November 2014.               Apart from briefly alleging that the court's

characterization was flawed, Lou fails to support this claim with argument or

citation to authority;41 therefore, we do not address it on appeal.

        Also, Lou claims that the court erred by characterizing a^s community

property and ultimately awarding the parties equal interests in the proceeds of a
                                                                                   42
$117,833 loan made to Doris's mother, Marie Fink, prior to Fink's death.                Again

because Lou fails to support this claim with argument or authori y, we do not

              43
consider it


        Lou challenges the court's decision to award Doris maintenance. The trial
                                                                              44
court   has        broad   discretion   to   award   spousal   maintenance.              RCW



        41 RAP 10.3(a)(6); Cowiche Canyon Conservancy v. Boslev, 118 Wn.2d
801,809, 828 P.2d 549 (1992).
        42 Lou makes numerous assignments of error regarding this property
interest. Initially, the court found no evidence to support Lou's contention that the
loan was made out of his separate funds. It awarded him 50 percent of the
proceeds and ordered Doris to pay $58,500. Then, when the 90U1I partially
granted Doris's motion to reconsider, the court found that the|               lien was a
community asset.
        43 RAP 10.3(a)(6); Cowiche Canyon. 118 Wn.2d at 809.
        44 In re Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394(1990).
                                              -18-
NO. 67817-5-1/19




26.09.090 places one limitation on the amount and duration of maintenance :       the


award must be just.45 The relevant statutory factors the court      hiust consider

include each party's financial resources; 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 to acquire education necessary to obtain employment.46

       The trial court awarded Doris $4,000 per month in maintenance for eight

years based on Doris's need and Lou's ability to pay. Considering         the relative

positions of the two parties and the statutory factors, the court did   not abuse its


discretion.


       Doris filed a conditional cross appeal, contending that the oourt erred by

reducing the value of Crown Finance by over $1 million to account for a

shareholder loan owed to Lou without including that $1 million          as an asset


awarded to Lou.    As a result, she asks that if we remand the    case    to the trial


court, we also correct this valuation error.   Because we affirm the trial court's

decision below, we accept Doris's waiver of this issue.

       Both parties seek attorney fees under RCW 26.09.140, whjch allows the

court to consider the parties' financial resources and award reasonable attorney


       45
         In re Marriage of Luckev. 73 Wn. App. 201, 209, 868 P.2d 189(1994).
      46 RCW 26.09.090; In re Marriage of Vander Veen. 62 Wn. App. 861,867,
815 P.2d 843 (1991).
                                       -19-
NO. 67817-5-1/20




fees. When awarding fees, this court examines the arguable meri            of the issues

and the parties' financial resources.47 However, the issues raised by Lou on

appeal, though not warranting reversal in this case, had arguable          merit.   Given


Doris's property distribution, as well as her pension payments               her Social


Security income, and her maintenance award, she has not proved that she             needs


her attorney fees paid. Therefore, each party should pay his or her own fees.

                                   CONCLUSION


      Because the record supports the trial court's decision that the prenuptial

agreement     was   not   enforceable,   its    exercise   of discretion    in valuing,

characterizing, and dividing the parties' assets and liabilities, anq its award of

maintenance to Doris, we affirm.




                                                                       £
WE CONCUR:




                    jr
 ^    *^SAs^>




      47
           n re Marriage of Griffin. 114 Wn.2d 772, 779, 791 P.2d 519| (1990).
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