                                                                                                              Fl ED
                                                                                                    C' 3.
                                                                                                             t OF APPEALS.
                                                                                                            DIVISION f1
                                                                                                  2014 JUN 10 AM 8: L 1

                                                                                                               WASt'11NGTON

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO                                                              k

In the Matter of the Marriage of:


ALICE AWWAD,
                                                   DIVISION II

                                                                           No. 44449 -6 -II
                                                                                                                    N,
                                        Respondent,


         and




SAMIR GEORGE AWWAD,                                                  UNPUBLISHED OPINION


                                        Appellant.


         WORSWICK, P. J. —             This appeal follows the trial court' s entry of final orders ending a

marriage      between Samir           and   Alice Awwad.   Samir appeals the dissolution decree and child


support order.      Samir argues ( 1) substantial evidence does not support the trial court' s findings

and (   2)    the trial court abused its discretion when distributing the community property and

imputing       Samir'   s   income.    Because substantial evidence supports the trial court' s findings and

the trial court did not abuse its discretion, we affirm.

                                                       FACTS


             Samir and Alice Awwad married in Lebanon in 1983 and separated in Washington State.

Samir    and   Alice had four     children, one of whom was still a minor at   the time   of   trial.'   Beyond


this, the parties dispute many of the facts.




  We address the parties and their children by their first names for clarity, intending no
disrespect.
No. 44449 -6 -II


A.     Date ofSeparation

       Samir     and     Alice      moved   to the United States in 1986.      Samir and Alice lived together until


2006, when Samir moved to Florida and Alice moved to Washington State. Samir and Alice


traveled together to Mt. Hood to celebrate their 2007 wedding anniversary, and Hawaii to

celebrate their 2008 wedding anniversary. Samir and Alice filed their taxes jointly through 2009.

       In 2009, after Samir moved to Florida, Alice made plans to move there and live with

Samir. Samir changed his mind, and moved to Pennsylvania in 2010. Alice and Samir made

plans for Alice to move to Pennsylvania later in 2010.

        Before Alice moved to Pennsylvania, Samir told Alice' s parents that he planned to

divorce her. Alice filed for divorce on November 22, 2010, after numerous unsuccessful


attempts to talk with Samir. Alice testified that despite filing for divorce, she attempted to

preserve the marriage through 2011.


        The trial court determined that the marriage was intact until December 1, 2010 stating:

         Samir] and [ Alice] separated on December 1, 2010. This separation date is based
        upon [      Alice'     s]   filing of the Petition for Dissolution on November 22, 2010.
        Although [ Samir] claimed that the parties' date of separation was in 2006, when
        the parties began living in separate households, he failed to establish that the
        parties had a mutual intent to abandon the marriage before December 1, 2010, as
        required for the Court to find that a de facto separation existed and to characterize
        property acquired from 2006 to 2010 as separate property of the parties.

Clerk' s Papers ( CP) at 374 ( emphasis omitted).


B.      Credit Card Debt from the Purchase ofthe Ring

        In October        of    2010, Alice    charged      approximately $ 15, 000 to Samir and Alice' s joint


credit card   for   a   ring   and   earring   set (   collectively, the ring). Alice testified that Samir consented


to the purchase, which was a gift for Alice' s mother' s 50th wedding anniversary. By September



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No. 44449 -6 -II



of   2012, Samir had      paid $ 10,   568. 24    on   this   credit card   debt ( the ring debt), and $ 9, 573. 19 was


still owed on the debt.


         The trial court found Samir responsible for the remaining ring debt, stating:

         Before     separation, [      Alice]     incurred      a   debt   of    approximately $ 15, 000 on the
         parties' Bank of America credit card to purchase a ring as a gift for her mother' s
         50th anniversary. [ Samir] has chosen to pay off that debt in monthly installments,
         even when he was .earning substantial income and had the ability to pay off the
         debt in full. The remaining balance                        on   this    credit   card   shall   be [ Samir' s]

         responsibility.


CP at 384 -85.


C.       Employment and Income


          1.   Samir' s Employment


          Samir had a master' s degree in engineering and was certified as a professional engineer

in 14   states.   Samir had   worked as an engineer and a professor                   earning    over $   100, 000 per year


from 2010 until July of 2012, when he was laid off.

          Samir had chronic health problems. He remained unemployed from July of 2012 until

trial, during which time unemployment provided his sole income source. Samir testified that he

diligently searched for employment as an engineer, sending out over 200 resumes. But Samir

made no attempts to find employment outside of the engineering field, such as teaching or

working in a related field.

          2. Alice' s Employment


          Alice was a stay -at -home mother from 1986 until 2005. In 2005, Alice graduated from

dental hygiene school and began working part time, but never worked full time. Alice testified,

with the support of a job search log, that despite diligent efforts to find full -ime employment
                                                                                 t

from September       of   2011   until   trial,   she could     find only       part- time employment.
No. 44449 -6 -II


           3.   Trial Court' s Ruling

           The trial court found that Samir was voluntarily unemployed. The trial court explained

this finding in its oral ruling:

            Samir is]        capable       of
                                         working.   He was working very recently.       The job
           opportunities      —I think for an engineer —he said he' s been teaching. He can be a
           consultant.       There'    s   a    lot   of   things   out     there   for   engineers.   The construction

           business is picking up.

Verbatim Report of Proceedings ( VRP) at 499.


           Although Samir had              earned over $        100, 000 per year from 2010 until July of 2012, the trial

court imputed Samir' s income at $ 60, 000 per year, recognizing that Samir may have to accept

lower paying work.

           The trial court determined Alice' s income based on her historical part-time earnings,

                                                           2
rather   than     imputing         time income.
                              full -                           After determining the incomes of Samir and Alice, the

trial court ordered Samir to pay maintenance for four years and child support for approximately

two years.


D.         Loans from Alice' s Family

           Alice borrowed money from her family during the marriage. Alice testified to four loans

pertinent       to this   appeal.   Alice borrowed ( 1) $            62, 218 from her brother; ( 2) $ 10, 000 from the


parties'    son    George; ( 3) $ 7, 800 from her               sister; and ( 4)    $ 4, 650 from her father.


           The trial court admitted promissory notes to support the existence of Alice' s brother' s

loans, copies of checks to support the existence of George' s loans, copies of cancelled checks to

establish the existence of Alice' s sister' s loans, and wire transfer receipts to support the existence



2
    The trial court did not make an affirmative finding that Alice was voluntarily underemployed.



                                                                        4
No. 44449 -6 -II



of Alice' s father' s loans. The trial court listed these four loans, and found " based on the

evidence presented that the amount of community liability that should be assessed for loans from

 Alice'   s] family   should   be $ 50, 000."   CP at 385.


E.        Sale ofAlice' s Brother 's Property in Vancouver

          Alice' s brother purchased a vacant property in Vancouver, Washington. Alice and her

brother planned that after her brother built a house on the property, Alice and her children would

move into it. In keeping with this plan, Alice was listed on some documents as the property' s

purchaser. But the trial court admitted a cancelled check showing that Alice' s brother' s

company made the down payment on the property.

          While Alice' s brother was building the house, Alice decided against moving onto the

property because she wanted to move to a better school district. Alice' s brother completed the

house on the property, sold the property, and transferred all of the equity back into his company.

The trial court found that Alice received no profits from the property' s sale:

           Samir]     claimed   that [ Alice] ...                        from [ the property' s]
                                                     received net profits ...

          sale. [ Alice] presented evidence that her brother provided the funds to purchase

          this property on her behalf. [ Alice] decided that she did not want the property and
          chose   to live in Camas to      provide a   better    school   district for the   children.   When
           the property]   sold, all of   the   net profits were paid     to her brother,    not to [ Alice],   as


          neither [ Alice] nor [ Samir] provided any funds for the purchase of [the property].

CPat375.


F.         Trial Court 's Overall Distribution ofCommunity Property

           The trial court distributed the community assets and liabilities such that Samir received a

 net value of $368, 259. 81 in community property, and Alice received a net value of $404, 045. 70.

 The trial court then transferred an additional $25, 000 of Samir' s pension over to Alice, to

 account for part of his back child support. This resulted in Samir receiving a net value of


                                                             5
No. 44449 -6 -II



 343, 259. 81, and Alice receiving a net value of $429,045. 70. As part of this overall distribution,

the trial court awarded Alice four of Samir' s pensions.


       The trial court' s distribution of community property resulted in Alice' s receiving more

than 50 percent of the marital estate. Because $25, 000 of Alice' s community property award

was designed to account for a portion of Samir' s back child support, the trial court reduced

Samir' s back child support obligation by $25, 000. In addition, the trial court adjusted Samir' s

maintenance payment downward and denied Alice' s request for additional attorney fees.

G.      Value of the Vehicles

        Samir and Alice owned many vehicles, three of which are at issue here. First, Samir and

Alice owned a Ford Expedition. In late December of 2011, Samir gave the Ford to Samir and

Alice' s son Joey, and Joey traded the Ford in for a different vehicle. Second, Samir and Alice

both testified to owning a decades old Pontiac Trans Am. Third, Samir and Alice owned a

Mercury Sable. Alice testified that the Mercury was worth $5, 000, based on its Kelley Blue
Book value.

        Thetrial court found that the Ford, the Pontiac; and the Mercury had a - ombined total
                                                                               c

value of $2, 000. The trial court awarded all three vehicles to Samir. Samir appeals.

                                              ANALYSIS


        We begin our analysis by observing the high burden Samir bears in this case. As our

 Supreme Court has explained:


         T] rial court decisions in a dissolution action will seldom be changed upon
        appeal.    Such decisions   are    difficult   at   best.   Appellate   courts   should not
        encourage appeals   by tinkering   with   them.     The emotional and financial interests
        affected by such decisions are best served by finality. The spouse who challenges




                                                       6
No. 44449 -6 -II



         such decisions bears the heavy burden of showing a manifest abuse of discretion
         on the part of the trial court.



In re Marriage ofLandry, 103 Wn.2d 807, 809, 699 P. 2d 214 ( 1985).

                                                       I. FINDINGS OF FACT


           Samir argues that insufficient evidence supports several of the trial court' s findings of

fact. We review the trial court' s findings to determine whether substantial evidence supports

them. In     re   Marriage of Greene, 97 Wn.              App.   708, 714, 986 P. 2d 144 ( 1999). " Substantial


evidence exists if the record contains evidence of sufficient quantity to persuade a fair -
                                                                                          minded,

rational person of        the   truth   of   the declared   premise."   Bering v. Share, 106 Wn.2d 212, 220, 721

P. 2d 918 ( 1986). We interpret the trial court' s findings to support the judgment whenever


possible.    Smith   v.   Shannon, 100 Wn. 2d 26, 35, 666 P. 2d 351 ( 1983).             Failure to make a finding

of fact where one is required is presumed equivalent to a finding against the party with the

burden     of proof,   here Samir. In          re   Welfare ofA. B., 168 Wn.2d 908, 927, 232 P. 3d 1104 ( 2010).


Unchallenged findings are verities on appeal. In re Marriage ofKim, 179 Wn. App. 232, 246,

317 P. 3d 555, review denied, 180 Wn.2d 1012 ( 2014).


           In determining whether substantial evidence exists to support a trial court' s finding of

fact, we review the record in the light most favorable to the party in whose favor the findings

were entered, here Alice. In re Marriage ofGillespie, 89 Wn. App. 390, 404, 948 P. 2d 1338

  1997).    We defer to the trial court on issues of conflicting testimony and witness credibility. In

 re   Marriage of Burrill, 113 Wn.              App.   863, 868, 56 P. 3d 993 ( 2002);   Greene, 97 Wn. App. at

 714. We will not disturb findings that substantial evidence supports even if conflicting evidence

 exists. In re Marriage ofLutz, 74 Wn. App. 356, 370, 873 P. 2d 566 ( 1994).




                                                                  7
No. 44449 -6 -II



A.         Finding that the Marital Community Was Intact until December 1, 2010

           Samir argues that substantial evidence does not support the trial court' s finding that the

marital community was intact until December 1, 2010, the date Alice filed for divorce. We

disagree.


           Normally, assets acquired during a marriage are presumed to be community property. In

re   Marriage of Short, 125 Wn.2d 865, 870, 890 P. 2d 12 ( 1995). But "[ w] hen spouses or


domestic partners are living separate and apart, their respective earnings and accumulations shall

be the     separate   property    of each."    RCW 26. 16. 140.


           Whether spouses are living " separate and apart" turns on the particular facts of each case.

In   re   Marriage of Wright,            Wn.   App. ,         319 P. 3d 45, 51 ( 2013).   The person asserting that

the spouses are living " separate and apart" must establish that fact by a preponderance of the

evidence.      See Seizer   v.   Sessions, 132 Wn.2d 642, 659, 940 P. 2d 261 ( 1997); Boisen v. Burgess,


87 Wn. App. 912, 919, 943 P. 2d 682 ( 1997).

            Mere physical separation does not suffice. Seizer, 132 Wn.2d at 657. Instead, the marital


community must no longer exist. Seizer, 132 Wn.2d at 657.                      The -
                                                                                   marital community no longer

exists only when the evidence shows that both spouses engaged in conduct demonstrating that

they no longer had the will to continue the marriage. Seizer, 132 Wn.2d at 658.
            Here, the trial court found that Samir and Alice' s marriage was intact until December 1,

2010, based on the date Alice filed for divorce, and found that Samir failed to prove that both

spouses "     had   a mutual     intent to   abandon   the   marriage   before December 1, 2010."     CP at 374.


We interpret this finding to mean that Samir failed to prove by a preponderance of the evidence

that he and Alice lived separate and apart before Alice filed for divorce in 2010 because the




                                                                8
No. 44449 -6 -II



evidence did not demonstrate that both spouses engaged in conduct demonstrating that they no

longer had the will to continue the marriage before that time.


       Substantial evidence supports this finding. First, Samir and Alice travelled together to

celebrate   their wedding     anniversaries    in 2007   and       2008. Second, Samir and Alice planned to


move in together in 2009 and 2010. Third, Samir and Alice filed their taxes jointly through

2009. Fourth, Alice testified that         she attempted   to      preserve   the   marriage   through 2011.   Finally,

Samir did not file for divorce, and Alice filed for divorce on November 22, 2010. These facts

provide substantial evidence to support the trial court' s finding that Samir failed to prove with a

preponderance of the evidence that Samir and Alice lived " separate and apart" before Alice filed

for divorce in 2010 because the evidence did not demonstrate that both spouses engaged in

conduct demonstrating that they no longer had the will to continue the marriage before that time.

Thus, the trial court did not err in determining that the marital community was intact until

December 1, 2010.


B.      Failure To Find that the Ring was Alice' s Asset

        Samir argues that the trial court erred by failing to find that the ring was Alice' s asset. -

We disagree.


        The trial court did not make an affirmative finding that the ring was Alice' s asset, which

we presume     to be   a   finding   that the ring   was not   Alice'   s asset.    See A. B., 168 Wn.2d at 927.


Substantial evidence supports this finding. Alice testified that she gave the ring to her mother for




                                                               9
No. 44449 -6 -II



her 50th wedding anniversary. Alice testified that Samir consented to this gift. Substantial
                                                                                                3
evidence supports      the trial   court' s   finding   that the ring was not Alice' s asset.



C.       Findings on Voluntary Unemployment and Underemployment

         Samir argues that the trial court erred by determining that he was voluntarily unemployed

and that Alice was not voluntarily underemployed. We disagree.

         RCW 26. 19. 071( 6) mandates that the trial court impute income when it finds that a


spouse is voluntarily unemployed or underemployed:

         Imputation of income. The court shall impute income to a parent when the
         parent is voluntarily unemployed or voluntarily underemployed. The court shall
         determine whether the parent is voluntarily underemployed or voluntarily
         unemployed based upon that parent' s work history, education, health, and age, or
         any other relevant factors.

Voluntary unemployment and voluntary underemployment is " brought about by one' s own free
choice, and     is intentional."    In re Marriage ofBrockopp, 78 Wn. App. 441, 446 n.5, 898 P. 2d

849 ( 1995).


          1.   Finding that Samir 's Unemployment Was Voluntary

          Samir argues that substantial evidence does not support the trial court' s finding that his

unemployment was voluntary. We disagree.

          Samir had a master' s degree in engineering, certification as a professional engineer in 14

states, and a strong work history at a high salary. Samir had worked as a professor. Samir had

chronic    health   problems,   but had       worked with    these health   problems until   July   of   2012. Samir




3 Samir appears to argue that the trial court should have considered unrelated jewelry and dental
equipment allegedly in Alice' s possession when deciding whether the ring was Alice' s asset.
But the unrelated jewelry and dental equipment have no bearing on whether the ring was Alice' s
asset.




                                                              10
No. 44449 -6 -II



had searched for employment in the field of engineering, but had not attempted to apply for any

jobs outside of that field, such as teaching or working in another field of construction.

Substantial evidence supports the trial court' s finding that Samir' s unemployment was voluntary.

        2. Failure To Find that Alice' s Part -
                                              Time Underemployment Was Voluntary

        Samir argues that the trial court erred by failing to find that Alice' s part-time

underemployment was voluntary. We disagree.

        The trial court did not make a finding that Alice' s part-time underemployment was

voluntary; we presume this to be a finding that Alice' s underemployment was not voluntary. See
A. B., 168 Wn.2d   at   927.    Substantial evidence supports this finding. Alice had a very large gap

in work history because she was a stay -at -home mother from 1986 until 2005. Alice testified,

with support of her job search log, that despite diligent efforts to find full -ime employment from
                                                                               t

September   of   2011   until   trial, she   could   find only   part- time employment.   Substantial evidence


supports the trial court' s finding that Alice' s underemployment was not voluntary.

D.      Finding that Alice Borrowed $50,000from her Family

        Samir argues that substantial evidence does not support the trial court' s finding that A ice
                                                                                             at

borrowed $ 50, 000 from her family during the marriage. We disagree.

        The trial court found that Alice borrowed $ 50, 000 from her family. This was based on

four loans to Alice: $62, 218 from her brother, $ 10, 000 from George, $ 7, 800 from Alice' s sister,


 and $ 4, 650 from Alice' s father.


         Substantial evidence supports the trial court' s finding that Alice borrowed $ 50, 000 during

 the marriage. Promissory notes in the record before us provide substantial evidence of the

 brother' s loans. George' s testimony, along with copies of cancelled checks, provides substantial



                                                            11
No. 44449 -6 -II



evidence of George' s loans. Alice' s testimony, along with copies of cancelled checks, provide

substantial evidence of her sister' s loans. Alice' s testimony and wire transfer receipts provide

substantial evidence of her father' s loans. Thus, substantial evidence supports the trial court' s


finding that Alice borrowed $50, 000 from her family during the marriage.

E.     Finding that Alice Received No Equity from the Vancouver Property' s Sale

        Samir argues that substantial evidence does not support the trial court' s finding that Alice

received no equity from the Vancouver property' s sale. We disagree.

        Alice testified that her brother' s company purchased the property in Alice' s name

because Alice planned to live there. In addition, the trial court admitted a cancelled check


showing that Alice' s brother' s company made the down payment on the property. Alice testified

that she decided to move to a location with a better school district rather than move into the

house that Alice' s brother was building on the property. Alice' s brother then built a house on the

property, sold the property, and transferred the equity to his company. Substantial evidence

supports the trial court' s finding that Alice received no equity from the property' s sale.

F.      Finding that the Ford, Pontiac, and Mercury Had a Collective Total Value of $ 000
                                                                                    2,

        Samir argues that the Ford and Pontiac are worthless, and that thus, substantial evidence


does not ` upport the trial court' s finding that the Ford, Pontiac, and Mercury had a combined
         s

total value of $ 000. We disagree.
                2,


        The trial court assigned the three vehicles a combined total value of $ 000. Alice
                                                                               2,

testified that the Mercury alone was worth $5, 000, based on its Blue Book value. Alice' s

testimony regarding the Mercury' s value is substantial evidence that the three vehicles had a

combined total value of at least $ 2, 000, regardless of the value of the Ford and Pontiac.




                                                  12
No. 44449 -6 -II


                                        II. DISCRETIONARY DECISIONS


        Samir argues that the trial court abused its discretion when it divided community property

and debt and when it imputed his income. We disagree.


        There is a heavy presumption in favor of upholding the trial court' s judgment in a

dissolution action. Landry, 103 Wn.2d at 809. We will not overturn a trial court' s decisions in a

dissolution action unless the party challenging the decision can show that the trial court abused

its discretion. In re Marriage ofBowen, 168 Wn. App. 581, 586, 279 P. 3d 885, review denied,

176 Wn.2d 1009 ( 2012).      A trial court abuses its discretion when its decision is manifestly

unreasonable, based on untenable grounds, or made for untenable reasons. Bowen, 168 Wn.


App. at 586.

A.      Dividing the Community Property

        Samir argues that the trial court abused its discretion by distributing four of Samir' s

pensions to Alice. We disagree.


        The trial court has broad discretion in distributing property, overturned only for abuse of

discretion. See In re Marriage of                  103 Wn.2d 807, 809 -10, 699 P. 2d214 ( 1985). The


trial court is in the best position to assess the spouses' assets and liabilities to determine what is

 fair, just   and equitable under all   the   circumstances." In re Marriage ofBrewer, 137 Wn.2d 756,

769, 976 P. 2d 102 ( 1999) (   quoting In re Marriage ofHadley, 88 Wn.2d 649, 656, 565 P. 2d 790

 1977)).


           Here, the trial court distributed the community property (assets and liabilities) such that

 Samir received a net value of $343, 259. 81, and Alice received a net value of $429, 045. 70.


Property awarded to Alice in the amount of $25, 000. 00 was to account for a portion of Samir' s



                                                        13
No. 44449 -6 -II



back child support, and the trial court subtracted $ 25, 000. 00 from Samir' s back child support


accordingly. See generally In re Marriage ofHammack, 114 Wn. App. 805, 809, 60 P. 3d 663

 2003).    The trial court also adjusted Samir' s maintenance payment downward and denied


Alice' s request for additional attorney fees. Although the trial court awarded four of Samir' s

pensions to Alice, it took these four pensions into consideration when calculating its overall

distribution of community property. The trial court' s distribution of property was not an abuse

of its broad discretion to determine what was fair, just, and equitable under all the

                    4
circumstances.




B.        Allocating the Ring Debt to Samir

          Samir argues that the trial court abused its discretion by allocating the ring debt to him.

We disagree.


          The marital community' s members may not waste co -owned assets, but must honor their

obligation to manage marital assets to the benefit of the community. See generally RCW

26. 16. 030. A trial court " has discretion to consider whose ` negatively productive conduct'

depleted the couples' 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. 2d 679 ( 1996)

 quoting In re Marriage of Clark, 13 Wn. App. 805, 809, 538 P. 2d 145 ( 1975)).




4 For the first time in his reply brief, Samir argues that the trial court erred by ( 1) characterizing a
Falcon retirement account as community property because this account was started after
December 1, 2010, and ( 2) characterizing a Wachovia account as community property because
the account was depleted before December 1, 2010. We do not address arguments raised for the
first time in   a   reply brief. RAP 10. 3(   c);   Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d
 801, 809, 828 P. 2d 549 ( 1992).




                                                          14
No. 44449 -6 -II



           While little precedent exists determining exactly what constitutes waste in Washington,

we have recognized that the failure to pay taxes constitutes marital waste. In re Marriage of

Steadman, 63 Wn.      App.   523, 528, 821 P. 2d 59 ( 1991).   The issue here is whether Samir' s failure


to pay community debts, despite ample resources to do so, constituted waste.

           Here, the trial court' s unchallenged finding of fact states that Samir made low monthly

payments on the ring debt during the time that he had substantial income. This is essentially a

finding that Samir committed waste. Because of Samir' s low monthly payments, after paying

 10, 568. 24 on the ring debt, he still owed $9, 573. 19 in September of 2012. Thus, the slow

payment of the ring debt incurred over $5, 000 in credit card interest.

           Samir does not challenge the trial court' s finding that he paid the ring debt in low

monthly payments despite a substantial income, and thus, the finding is a verity on appeal. Kim,

179 Wn. App. at 246. This finding supports the conclusion that Samir' s actions depleted

community assets because Samir' s slow payment of the ring debt allowed for the accumulation

of interest. The trial court' s unchallenged finding supports its determination that Samir

committed waste. Thus, the trial court did not abuse its discretion in considering this waste when

deciding to apportion a higher debt load to Samir by allocating the remaining ring debt to him.

C.         Imputing Samir' s Income at $60, 000 Per Year

           Samir argues that the trial court abused its discretion by imputing his income at $ 60, 000

per year, and calculating his child support based on that imputed income. We disagree.

           We review imputation of income due to voluntary unemployment for abuse of discretion.

In   re   Marriage of Wright, 78 Wn.   App.   230, 234, 896 P. 2d 735 ( 1995); see Bowen, 168 Wn.




                                                      15
No. 44449 -6 -II



App.    at   586. Under RCW 26. 19. 071( 6), the trial court is obligated to impute income when it


finds that a spouse is voluntarily unemployed:

             Imputation of income. The court shall impute income to a parent when the
             parent   is voluntarily   unemployed     or    voluntarily   underemployed. . . .       In the
             absence of records of a parent' s actual earnings, the court shall impute a parent' s
             income in the following order of priority:

                      a) Full -
                              time earnings at the current rate of pay;

                      b)Full -
                             time earnings at the historical rate of pay based on reliable
             information, such as employment security department data.

             Here, after finding that Samir' s unemployment was voluntary, RCW 26. 19. 071( 6)

mandated that the trial court impute Samir' s income. The trial court could not base its

imputation on Samir' s current rate of pay because Samir was unemployed. Thus, the trial court

imputed Samir' s income based on his historical rate of pay under RCW 26. 19. 071( 6)( b).

             Samir earned over $ 100, 000 per year from 2010 until July of 2012. The trial court

imputed Samir' s income at $ 60, 000 per year, recognizing that he may have to accept lower

paying work. The trial court' s decision was not manifestly unreasonable, and thus, not an abuse

of discretion. This is because the trial court imputed Samir' s income based on historical

earnings, but accounted for the possibility that Samir would have to accept lower paying work.5




5 Samir also appears to assert that the trial court should have modified his back child support
obligations. Because Samir provides no argument or citation to authority regarding modification
 of   his back   child support, we     do   not consider   this issue. RAP 10. 3(   a)(   6); Cowiche Canyon
 Conservancy, 118 Wn.2d at 809.

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No. 44449 -6 -II



                                                    ATTORNEY FEES


          Both Samir and Alice request attorney fees on appeal under RCW 26. 09. 140. When

awarding attorney fees under RCW 26. 09. 140, we examine the arguable merit of the issues and

the parties' financial resources. In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P. 2d 519

 1990).    If the trial court awards a party substantial property in dissolution, such that the party

can   carry his   or   her   own   attorney fees,   we will not grant     attorney fees   on appeal.   Wright, 319


P. 3d at 52 -53.


          Here, the trial court distributed the community assets and liabilities such that each party

received a net value of over $ 340, 000.            We deny both Samir' s and Alice' s requests for attorney

fees under RCW 26. 09. 140 because the trial court awarded both parties substantial property in

the dissolution, such that both parties can carry their own attorney fees.

          Alice requests attorney fees under RAP 18. 9, arguing that Samir' s appeal was frivolous.

 An appeal is frivolous if considering the entire record, the court is convinced that the appeal

presents no debatable issues upon which reasonable minds might differ, and that the appeal is so

devoid of merit that there is no          possibility   of   reversal."   Advocates for Responsible Dev: v. W.


Wash. Growth Mgmt. Hearings Bd., 170 Wn.2d 577, 580, 245 P. 3d 764 ( 2010). An appeal is not


frivolous where the appellant raises even one debatable issue. Advocates for Responsible Dev.,

 170 Wn.2d at 580.


          Here, whether substantial evidence supports the trial court' s finding on the date of

separation and whether the trial court abused its discretion by assigning Samir the ring debt




                                                                17
No. 44449 -6 -II


presented debatable issues upon which reasonable minds might differ. Because Samir' s appeal


was not frivolous, we deny Alice' s attorney fees request.

         Affirmed.


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

Washington Appellate Reports, but will be filed for public record in accordance with RC.
                                                                                       W

2. 06. 040, it is so ordered.




We concur:




Le, J.




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