                                                                         FILED
                                                                      AUGUST 29, 2019
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

In the Matter of the Marriage of,              )
                                               )         No. 36282-5-III
LORI VAN DE GRAAF,                             )
                                               )
                     Respondent,               )
                                               )
       v.                                      )         UNPUBLISHED OPINION
                                               )
ROD D. VAN DE GRAAF,                           )
                                               )
                     Appellant.                )

       KORSMO, J. — This is Van de Graaf II. See In re Marriage of Van de Graaf, no.

35133-5-III (Van de Graaf I), for details. At issue is the propriety of trial court orders

directing appellant Rod Van de Graaf (Rod) to pay “suit money” to respondent Lori Van

de Graaf’s attorneys (Lori) to defend against the Van de Graaf I appeal. We affirm.

                                PROCEDURAL HISTORY

       The facts are known to the parties and will not be recited here, although interested

persons can find some of the information in our Van de Graaf I opinion. After five years

of litigation, the trial court awarded both parties an equal seven-figure distribution of

assets, although there was comparatively little in the way of liquid assets since the

primary holdings were businesses and real estate. Rod was ordered to pay Lori $6,000
No. 36282-5-III
In re Marriage of Van de Graaf


per month in support and make a transfer payment of approximately $1.17 million, in

addition to paying Lori $58,675 for attorney fees expended in the trial court. Rod

appealed to this court; we upheld those awards in Van de Graaf I.

       Rod had stopped paying spousal support in late 2016 and, after the decree of

dissolution entered, did not make the transfer payment and did not pay the attorney fee

award. As a result, in the early days of the appeal, Lori had no income. Rod later

resumed paying the spousal maintenance and stayed the transfer payment and the

attorney fee judgment by posting a supersedeas bond.

       Lori sought $65,000 in “suit money” from Rod to pay for her appellate attorneys.

Yakima County Superior Court Commissioner Elisabeth Tutsch eventually ordered Rod

to pay $30,000 to the appellate attorneys. As a result of contempt motions, Rod made a

payment of $10,000 that he alleged was loaned to him by his sister. The remaining

$20,000 was never paid.

       Meanwhile, extensive enforcement actions occurred in the trial court, requiring

Lori to expend fees on attorneys in that court as well as on appeal.1 She sought additional

suit money. Commissioner Tutsch eventually ordered Rod to pay an additional $80,000

in suit money on top of the $30,000 previously ordered. Clerk’s Papers at 13. He




       1
           Many of these actions are at issue in Van de Graaf IV.

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No. 36282-5-III
In re Marriage of Van de Graaf


appealed that ruling to this court. The single $10,000 payment is the only suit money

advanced by Rod to this point, leaving him $100,000 in arrears on those orders.

       This court considered this appeal without hearing argument during its March 2019

docket week.

                                         ANALYSIS

       The primary issue presented in this appeal involves the commissioner’s suit

money orders.2 Lori also seeks her attorney fees in this court due to Rod’s intransigence,

while he defends that argument by insisting that he is entitled to attorney fees due to

Lori’s pursuit of the fees despite his inability to pay and her improper briefing in the trial

court. We address first the suit money argument before jointly, although briefly,

considering the attorney fee arguments.

       Suit Money

       Rod argues that Lori was financially able to finance her own appeal and that he is

not able to do so. We defer to the trial court’s factual findings to the contrary.

       Advance payment of attorney fees to support an appeal is authorized by RCW

26.12.190(1) and RAP 7.2(d). Stringfellow v. Stringfellow, 53 Wn.2d 359, 360-361, 333

P.2d 936 (1959); In re Parentage of J.H., 112 Wn. App. 486, 499, 49 P.3d 154 (2002).

RCW 26.09.140 and RCW 26.12.190 authorize the court to award “suit money” on any


       2
        The initial order was originally part of Van de Graaf I, but we have moved our
consideration of that issue to this case.

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No. 36282-5-III
In re Marriage of Van de Graaf


basis that “may appear just and equitable” “after considering the financial resources of

both parties.” An award of suit money is appropriate where the requesting party

demonstrates a need for advance fees for appeal, and the other party has the ability to

pay. E.g., Baker v. Baker, 80 Wn.2d 736, 748-749, 498 P.2d 315 (1972) (award of suit

money pending appeal was not an abuse of discretion where all of the income producing

community property and practically all of the parties’ liquid assets were controlled by the

nonrequesting spouse); Stringfellow, 53 Wn.2d at 360 (trial court should have awarded

suit money, alimony, and attorney fees for trial fees where husband retained control and

management of the community assets awarded to wife through the use of a supersedeas

bond, wife received no alimony or attorney fees at trial, and the only assets available to

her were the family residence, a car, and her personal effects).

       We review an award of suit money for abuse of discretion. Bennett v. Bennett, 63

Wn.2d 404, 417-418, 387 P.2d 517 (1963). Discretion is abused when it is exercised on

untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12,

26, 482 P.2d 775 (1971).

       Rod argues that Lori received the largest liquid asset, a retirement account, making

her the person most capable of paying for her appellate fees. There are multiple problems

with this argument. First, the account is not a true liquid asset. The nature of a

retirement account is such that when a party withdraws money prematurely from an

account, significant financial penalties and taxes attach to the transaction, increasing the

                                              4
No. 36282-5-III
In re Marriage of Van de Graaf


party’s current costs and reducing future retirement benefits. Second, Rod was the

person who received the most liquid asset—his income from the family cattle business

partnership with his siblings. During the post-decree litigation, he has been taking a

reduced monthly draw of $7,800 from that operation. Rod possessed the most liquid

assets.

          On the other side of the ledger, Rod’s claim of inability to pay fell on deaf ears in

the trial court. The commissioner disbelieved Rod and found him in contempt. The

commissioners of both this court and the Washington Supreme Court denied his

numerous emergency motions for similar reasons—Rod simply did not demonstrate his

inability to pay. The sudden reduction in income resulting from his reduced monthly

draw from the family business appeared suspicious, and he did not provide business

records to support his claim that reduced business income necessitated the reduction. In

addition, his own monthly expenses were minimal. There was testimony that the family

businesses paid for Rod’s housing and other expenses and there was no evidence that he

had any additional expenses other than his support obligation. In addition, he was

expending large sums to prosecute the appeals in this case. He also owned significant

personal property.

          In sum, the record reflected both that Rod had an ability to pay and that Lori did

not. The decision to award suit money to her was understandable. There was no abuse of

discretion.

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No. 36282-5-III
In re Marriage of Van de Graaf


       Additionally, we believe that the trial court also was free to consider the nature of

this litigation in reaching its decision. The original trial judge, the Honorable Michael

McCarthy, found that Rod was intransigent and engaged in scorched earth litigation

practices designed to impose financial hardship on Lori. On appeal, Rod continued to

spend large sums on his attorneys, supposedly based on loans from his parents and sister.

The desire to spend money he did not have while refusing to pay his court-ordered suit

money obligation could be seen as just one more instance of attempting to force Lori to

waste resources. This, too, would justify the suit money award.

       The suit money orders were well within the discretion of the commissioner. There

was no error.

       Attorney Fees

       We jointly consider the competing arguments concerning attorney fees on appeal.

We award Lori her attorney fees for briefing of this appellate cause number due to Rod’s

intransigence.

       Attorney fees may be awarded on appeal in dissolution cases when one party has

need for an award and the other party has the ability to pay. RCW 26.09.140. They also

may be awarded on appeal due to intransigence. In re Marriage of Mattson, 95 Wn. App.

592, 606, 976 P.2d 157 (1999); Eide v. Eide, 1 Wn. App. 440, 445-446, 462 P.2d 562

(1969).



                                             6
No. 36282-5-III
In re Marriage of Van de Graaf


       In Van de Graaf I, this court awarded Lori her fees on appeal due to Rod’s

intransigence. We do so again here.

       There is no right to appeal a civil case at public expense, except in a few very

narrow circumstances. E.g., In re Marriage of King, 162 Wn.2d 378, 174 P.3d 659

(2007). Accordingly, most litigants who cannot afford a discretionary civil appeal either

represent themselves or forego the appeal altogether. Here, Rod has chosen a different

path—partial payment of appellate expenses through the largesse of his family. We use

the word “partial” purposefully. Scorched earth litigation is designed to impose costs on

all involved, often with the goal of leaving the winner with a pyrrhic victory. Here,

Rod’s efforts to extensively litigate without cost to himself and to force Lori to bear

significant costs (or give up) while refusing to pay the suit money is just another example

of his intransigence. He simply cannot claim poverty while pursuing expensive,

discretionary litigation. No rational person would borrow and spend many times the

original suit money order to challenge that award.

       That conclusion, along with the trial court’s rejection of his claims of inability to

pay, eliminates Rod’s argument that Lori has been improperly pursuing payment from

him. As to his claim that Lori’s trial court briefing was deficient, we see no error. More

importantly, Rod has not demonstrated how the motion for additional suit money harmed

his ability to defend against the claim. By that point, the trial court had already awarded

the first $30,000 in suit money, Rod still had not paid the judgment to Lori, and the court

                                              7
No. 36282-5-III
In re Marriage of Van de Graaf


and parties were well aware of the extensive litigation in both the trial court and this court

concerning the decree. Referring the trial court to the files and previous rulings in the

case was adequate notice of why Lori was seeking more suit money. Litigation

continued with no payments from Rod and expenses for both parties mounting quickly.

Rod has not demonstrated reversible error occurred.

       We grant Lori her reasonable attorney fees for the briefing and motions filed under

this cause number, subject to her timely compliance with RAP 18.1.

       The judgment is affirmed.

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

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

2.06.040.




WE CONCUR:


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