                                                                               FILED 


                                                                           May 23,2013 


                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Marriage of:                         )
                                               )         No. 30420-5-111
DONALD W. REINI,                               )
                                               )
                     Appellant,                )
                                               )
       and                                     )
                                               )
DEBRA KAY KYLE-REINI,                          )         UNPUBLISHED OPINION
                                               )
                     Respondent.               )

       SIDDOWAY, J. - Donald Reini appeals several terms ofthe trial court's

dissolution of his 22-year marriage to Debra Kyle-Reini. He challenges (1) the trial

court's denial of his posttrial motions, (2) its alleged reliance on misconduct to penalize

him in disposing of the parties' assets and liabilities, (3) its order that he make a $20,165

transfer payment to Ms. Kyle-Reini, and (4) its award of lifelong maintenance to Ms.

Kyle-Reini.

       We conclude that the court's award of maintenance is not adequately explained,

given evidence in the record that would ordinarily weigh against lifelong maintenance in

the amount awarded. We therefore reverse the maintenance award and remand for the
No.30420-5-II1
In re Marriage ofReini


trial court's reconsideration or explanation of its application of the statutory maintenance

factors. We otherwise affirm.

                      FACTS AND PROCEDURAL BACKGROUND

       Donald and Debra Reini were married in October 1985. They separated 20 years

later for 9 months and then reconciled for a little over a year before permanently

separating in August 2007. Mr. Reini petitioned for dissolution thereafter. The parties'

two children are emancipated.

       Mr. Reini has a high school education. He worked as a Yakima County

corrections officer until mid-2005. His gross salary at the county was $3,400 a month

and he was provided with medical and dental insurance in addition to contributions to his

PERS 1 and Teamsters Union retirement plans. After leaving county employment in

2005, Mr. Reini tried several stints at self-employment: first, delivering trailers as a

subcontractor to RV Transport, and later, operating espresso stands that the couple

purchased in Quincy in the fall of 2006. Both ventures sustained losses. While

managing operation of the Quincy espresso stands, Mr. Reini also became employed at

Chinook Lumber, where he earned monthly net income of $2,287 and was provided with

health insurance. He was laid off from that position in the fall of 2008.

       At the time oftrial Mr. Reini was working construction, and had been for the prior



       I   PERS is the acronym for the Public Employees Retirement System.

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No. 30420-5-III
In re Marriage ofReini


three years. He expected to be laid off and to go on unemployment in or about

September. He testified that his employment and unemployment had followed the same

pattern for the prior three years: he would be laid off and live on unemployment for three

to four months during the winter. Mr. Reini was 51 years old at the time of trial.

         Ms. Kyle-Reini graduated from high school and attended college for six months.

For the 18 years before trial, she had worked at espresso stands in Yakima that the parties

began acquiring in 1993. At the time of trial, she was operating a stand in Yakima that

the parties acquired and began operating in 1998. She was involved briefly in operating

the stands acquired in Quincy in 2006, but her husband took over management of that

location in June or July 2007, before the parties' permanent separation.

         Evidence of the parties' income from the espresso stands was sketchy. They did

not draw salaries and paid personal expenses from the businesses. Ms. Kyle-Reini's

financial declaration filed with the court reported total monthly net income of $2,000 a

month.

         Neither party paid into Social Security in connection with revenues of the espresso

stands that they drew out or applied to personal expenses, even during times they were

actively working at the stands. Ms. Kyle-Reini testified they planned on living off of Mr.

Reini's Social Security earned during the years he was working for the county and others.

Ms. Kyle-Reini was 57 years old at the time of trial.

         Poor financial management and resulting bankruptcies left relatively little property

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No. 30420-5-111
In re Marriage ofReini


for the parties to divide. When Mr. Reini left employment with Yakima County in 2005

he took early distribution of his PERS retirement assets, receiving $52,784. He used

most of the funds received to payoff community debt. Only $4,583 remained in a money

market account at the time of the separation.

       Toward the end of the marriage the parties sold two parcels of property, receiving

roughly $96,000. The trial court found that those funds were also largely applied to

community debt, although $29,000 was used by Mr. Reini to purchase a motorcycle. Mr.

Reini and the parties' son later used the motorcycle as collateral to borrow $9,000, which

was used to purchase two jet skis and a trailer. Mr. Reini testified that the trailer and jet

skis were later sold in California by the son for $2,500 and that the proceeds were

returned to Mr. Reini and deposited in the parties' checking account.

       In connection with the purchase of the Quincy espresso stands in late 2006, the

parties borrowed money from Summit Leasing, securing it with equipment in the Yakima

espresso location. When the Quincy stands failed and Mr. Reini turned them back to the

sellers, the parties were left with the Summit debt. In hearings taking place early in the

proceeding, the lawyers represented to the trial court that Summit was a hard money

lender and that the principal amount of the loan had increased from an initial amount of a

little over $20,000 to over $30,000 by the time the petition was filed as a result of a high

interest rate and penalties.

       Following the parties' permanent separation in 2007 and before trial, both parties

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No.30420-S-II1
In re Marriage ofReini


filed Chapter 7 bankruptcies. Ms. Kyle-Reini reaffinned the Summit debt so as not to

lose equipment from her Yakima location.

       A one-day trial took place in August 2011, four years after the parties' separation.

Mr. Reini, who had been represented by counsel earlier in the proceedings, appeared pro

se. He offered no exhibits and called no witnesses. His own testimony was largely

devoted to his disagreement with some of the entries included in a spreadsheet of assets

and liabilities offered by Ms. Kyle-Reini's lawyer.

       For her part, Ms. Kyle-Reini offered 32 exhibits containing numerous subparts.

Mr. Reini's single objection to the exhibits, which the trial court considered but

overruled, was to a picture of an espresso machine that he returned to Ms. Kyle-Reini as

required by court order, leaving it in the snow outside her home. His objection was really

in the nature of an explanation as to why, given a protective order, he could not take the

machine inside.

       The trial court took the matter under advisement and issued a written opinion

several weeks following trial. It found that the parties owned the following community

property assets, having the following values:

             Household goods and furnishings in wife's                     $3,500
             possession, together with washer/dryer in Quincy
             storage unit




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No.30420-5-III
In re Marriage ofReini


            Household goods in husband's possession and in 
        $2,000
            storage in Quincy storage unit (other than 

            washer/dryer) 

            On the Go Espresso business ($17,664 value less 
     -$16,070
            debt at time of separation) 

            Firearms and camera 
                                   $2,000
            Chinook Lumber Rothl40 1(k) 
                           $1,200
             1997 Ford Ranger 
                                      $800
            Harley Davidson Fat Boy ($29,000 value less 
          $20,000
            $9,000 debt at time of separation) 

            2006 Charmac Utility Trailer 
                          $3,500
            2007 Honda Element ($18,640 value less $18,639 
            $1
            debt) 


            2007 Harley Davidson Dyna-wide ($15,000 value 
        -$1,459
            less $16,459 debt) 

            Two jet skis and trailer 
                            Unknown
            2001 Cameo 5th wheel trailer 
                         $12,500
            Marina Fiesta timeshare 
                                $500
            Teamsters pension 
                                   Unknown
            Money market balance (remainder ofPERS cash 
           $4,327
            out) 

            Tools 
                                                 $5,000
            Residence and three acres ($130,000 value subject 
    $12,653
            to encumbrances) 


            TOTAL (known.values) 
                                 $50,452

Clerk's Papers (CP) at 163-66.

      It awarded the community property as follows:




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No.30420-5-III
In re Marriage ofReini



               MS. KYLE-REINI                                  MR. REINI
       Household goods and         $3,500           Household goods            $2,000
       furnishings in wife's                        in husband's
       possession and                               possession and in
       washer/dryer                                 storage in Quincy
       On the Go Espresso        -$16,070           Firearms and               $2,000
       business                                     camera
        1997 Ford Ranger             $800           Chinook Lumber             $1,200
                                                    Rothl40 1(k)
       2007 Honda Element               $1          Harley Davidson           $20,000
                                                    Fat Boy
       Marina Fiesta                 $500           2006 Charmac               $3,500
       timeshare                                    Utility Trailer
        Y2 Teamsters pension     Unknown            2007 Harley                -$1,459
                                                    Davidson Dyna­
                                                    wide
       Money market                 $4,327          Two jet skis and         Unknown
       balance (remainder of                        trailer
       PERS cash out)
       Residence and three        $12~653           2001 Cameo 5th            $12,500
       acres                                        wheel trailer
                                                    Y2 Teamsters            Unknown
                                                    pension
                                                    Tools                       $5,000


       TOTAL (known                 $5,711                                    $44,741
       values)


Id. The court concluded that the property should be divided equally and to that end

awarded a transfer payment to Ms. Kyle-Reini in the amount of$20,165.

      Addressing maintenance, the court's letter opinion included the following

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No. 30420·5·III
In re Marriage ofReini


explanation of its financial considerations:

       A.... It is estimated that, while employed [working construction],
       assuming $20/35 hrs per week, [Husband] will gross $3,000 per month. He
       indicated at trial that he expects to receive $1,200 per month during layoffs.
       The court has considered the maintenance factors set forth in RCW
       26.09.090 and finds that he should pay $500 per month maintenance while
       employed and $250 per month maintenance during period he is
       unemployed and receiving unemployment compensation.

CP at 153.

       The court also addressed Social Security entitlement. During trial, Ms.     Kyle~Reini


testified that, at age 57, she had 10 years until she would retire for Social Security.

Report of Proceedings (RP) at 174. Her lawyer also pointed out the seven-year age

difference between her and the younger Mr. Reini. The court's letter opinion said the

following about Social Security:

       B. Creating a formula to treat social security benefits in an equitable way is
       difficult because of the age disparity between husband and wife. If and
       when husband begins to receive his benefits he shall pay spousal
       maintenance to the wife in an amount which will equalize the benefits he
       will receive and the benefits she will be entitled to receive as his former
       spouse or as a result of her own earnings, whichever is greater. If he
       continues to be employed while receiving social security this sum shall be
       in addition to his obligation set forth in paragraph "A" above. This portion
       of the maintenance award shall not expire at the end of ten years but will
       continue until the death of either party.

CP at 153. From the last sentence ("This portion of the maintenance award shall

not expire at the end of ten years") it appears that the trial court might have

intended some time limit on the maintenance award, but none was clearly



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No.30420-5-II1
In re Marriage ofReini


provided and the decree places no end date on the payment of maintenance.

         Ms. Kyle-Reini filed proposed findings, conclusions, a decree, and related orders

and noted them for presentment. At the presentment hearing Mr. Reini, who had by then

retained a lawyer to represent him in this appeal, requested a continuance. He presented

three concerns: (1) that the trial court's maintenance order and lien failed to take into

consideration the financial hardship on him of making the payment; (2) his discovery,

posttrial, that under local court rules he was supposed to have been provided with Ms.

Kyle-Reini's exhibits in advance of trial, which had not happened; and (3) information he

claimed to have discovered in the prior several days, which he believed "would

significantly change the outcome" but needed an opportunity to document and present.

RP at 43.

         The court denied a continuance. It explained that it was too late for Mr. Reini to

raise issues and objections that should have been raised at the time of trial. It signed the

findings, conclusions, decree, and related orders in the form presented by Ms. Kyle-

Reini.

         Before the presentment hearing was adjourned, Mr. Reini told Ms. Kyle-Reini's

lawyer and the court that he had learned Ms. Kyle-Reini had purchased a new Honda and

asked Ms. Kyle-Reini's lawyer to provide a copy of the purchase agreement and credit

application. Ms. Kyle-Reini's lawyer responded that "I might have to write to get that,

but we'll get it" and said he would provide it to Mr. Reini once it was obtained. RP at 47.

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No.30420-5-III
In re Marriage ofReini


       Ten days after the presentment hearing, Mr. Reini filed a motion for a new trial,

alleging the local rule violation and misconduct. If a new trial were not granted, the

motion asked that the court reconsider its decision on spousal maintenance, arguing that

"Mrs. Reini failed to establish at trial that she earns less money than Mr. Reini does, and

newly discovered evidence that she recently purchased a new car also undermines the

premise that she needs spousal maintenance." CP at 180-81. The motion was supported

by Mr. Reini's declaration stating that his monthly net pay during periods of construction

employment was only $2,100. It attached portions of Ms. Kyle-Reini's 2009 bankruptcy

filings that represented her net monthly income as being $1,970. It stated that Mr. Reini

had not yet received the Honda credit and purchase documentation he had requested from

Ms. Kyle-Reini's lawyer 10 days earlier, at presentment.

       The trial court denied the motion for reconsideration the following day without

requesting a response from Ms. Kyle-Reini.

       Despite the finality of the proceedings, Ms. Kyle-Reini filed her own declaration a

few days later "in order to file with the court what was requested at the time of

presentation." CP at 228. Ms. Kyle-Reini's declaration stated she had not had the cash

required to buy the 2007 Element on which her lease was expiring, so had instead signed

a new lease for a different car. She attached a copy of the credit application documents.

       Her voluntary declaration led to yet a further motion by Mr. Reini; this time, a

motion for relief from judgment. He pointed to the credit application and credit

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No. 30420-5-111
In re Marriage ofReini


statement and argued "newly discovered evidence, misrepresentation or misconduct, and

irregularity in obtaining an order." CP at 233-34. At a hearing noted by Mr. Reini, the

trial court heard from both parties and denied the motion.

       Mr~   Reini appeals the outcome of trial and the denial of his posttrial motions.

                                           ANALYSIS

       Mr. Reini assigns error to the trial court's (1) failure, in awarding maintenance, to

consider factors it was obliged to consider under RCW 26.09.090(a); (2) consideration of

acts of misconduct in dividing property and awarding maintenance; (3) imposition of an

unfair lien; and (4) denial of his posttrial motions.

       We first address denial of the posttrial motions, next consider issues related to the

division of the parties' property, and finally consider the court's award of maintenance.

                                      I.   Posttrial Motions

                         A. Motion for a New Trial or Reconsideration

       Mr. Reini's first posttrial motion was brought under the authority ofCR 59 and,

specifically, CR 59(a)(1) (irregularity), CR 59(a)(2) (misconduct), CR 59(a)(3) (accident

or surprise), and CR 59(a)(4) (newly discovered evidence).

       At the time of this first motion, Mr. Reini only speculated that a continuance and

further investigation would yield newly discovered evidence. The newly discovered

evidence required to support a CR 59 motion is "[n]ewly discovered evidence, material

for the party making the application, which he could not with reasonable diligence have

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No. 30420-5-111
In re Marriage ofReini


discovered and produced at the trial." CR 59(a)(4). Mr. Reini's declaration in support of

the CR 59 motion relied on evidence he admitted was not new: Ms. Kyle-Reini's

financial declaration filed with the court in 2007 and schedules I and J to her bankruptcy

petition, which were included in exhibits admitted at trial. The only document submitted

by his declaration that he might not have seen before (his declaration is not clear on this

score) was a reaffirmation agreement filed two years earlier in Ms. Kyle-Reini's

bankruptcy. But he admitted that even this document revealed nothing new,

characterizing it as "consistent with her financial declaration ... filed with this Court in

2007." CP at 201. His motion was therefore self-defeating on the newly discovered

evidence score.

       The factual basis for his remaining arguments was that Ms. Kyle-Reini violated

Yakima County Superior Court Local Rule 40(e)(l), which requires that "[t]he week

prior to trial, counsel for all parties shall provide a copy of their likely exhibits to all

counsel. Counsel shall endeavor to agree on which exhibits are admissible." Ms. Kyle-

Reini does not deny that she did not comply with the rule.

       Mr. Reini could have objected to the exhibits offered by Ms. Kyle-Reini at the

time of trial on the basis of her noncompliance with the rule. 1fhe had, the trial court

might have denied admission of some of the exhibits. Given the helpfulness to the court

of relevant records in dissolution proceedings, however, we doubt the court would have

excluded all of her exhibits on the basis of the procedural violation. More likely, it would

                                               12 

No. 30420-5-III
In re Marriage ofReini


have afforded Mr. Reini some additional time to review the proposed exhibits and

perhaps a reprieve from the deadline for providing his own. None of the exhibits offered

by Ms. Kyle-Reini were irregular or are claimed to be suspect; they were the type of

financial records typically provided and needed in a dissolution trial.

       Once the trial was over, both the rules of evidence and civil rules foreclose Mr.

Reini from complaining about admission of the exhibits. See ER 103(a);2 CR 46. 3 Ifa

party fails to timely object to errors made at trial, there are no grounds for a new trial.

See State v. Bauers, 23 Wn.2d 462,466-67, 161 P.2d 139 (1945), overruled on other

grounds by Larson v. City ofSeattle, 25 Wn.2d 291, 171 P.2d 212 (1946).

       Mr. Reini argues, however, that he is not complaining about the admission of Ms.

Kyle-Reini's exhibits; rather, he contends that if she had complied with the rule he would

then have known that he needed to present exhibits of his own. One flaw in this




       2ER 103(a) provides that "[e]rror may not be predicated upon a ruling which
admits or excludes evidence unless a substantial right of the party is affected, and (l) ...
[i]n case the ruling is one admitting evidence, a timely objection or motion to strike is
made, stating the specific ground of objection, ifthe specific ground was not apparent
from the context; or (2) ... [i]n case the ruling is one excluding evidence, the substance
of the evidence was made known to the court by offer or was apparent from the context
within which questions were asked."
       3  CR 46 provides that "[fJormal exceptions to rulings or orders of the court are
unnecessary; but for all purposes for which an exception has heretofore been necessary it
is sufficient that a party, at the time the ruling or order of the court is made or sought,
makes known to the court the action which he desires the court to take or his objection to
the action of the court and his grounds therefor; and, if a party has no opportunity to

                                              13 

No. 30420-5-III
In re Marriage ofReini


argument for prejudice is that Ms. Kyle-Reini could have complied on the deadline

(parties often do) in which case if Mr. Reini had not yet begun assembling exhibits it

would be too late for him to provide proposed exhibits of his own.

       More importantly, his argument reads a purpose into the local rule that we reject.

Essentially, he argues that Ms. Kyle-Reini's noncompliance deprived him of a "head's

up" that he had a right and opportunity to    ~ffer    exhibits. The local rule does not exist to

afford adversaries a "head's up" on how to prepare for trial. Pro se litigants are bound by

the same rules of procedure and substantive law as attorneys. Holder v. City of

Vancouver, 136 Wn. App. 104, 106, 147 P.3d 641 (2006).

       The trial court correctly concluded that Mr. Reini waived any remedy for the local

rule violation by failing to raise it at the time of trial. It did not abuse its discretion in

denying Mr. Reini's motion for reconsideration.

                              B. Motion for Relief from Judgment

       Mr. Reini's second posttrial motion-for relief from judgment-was brought

under the authority ofCR 60 and, specifically, CR 60(b)(3) or 60(b)(4). CR 60(b)(3)

provides relief when a party presents newly discovered evidence that by due diligence

could not have been discovered in time to move for a new trial. CR 60(b)(4) authorizes a

trial court to vacate ajudgment for   ~~[f]raud   ... , misrepresentation, or other misconduct


object to a ruling or order at the time it is made, the absence of an objection does not
thereafter prejudice him."

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No. 30420-5-111
In re Marriage ofReini


of an adverse party." The standard of review for a decision granting or denying a motion

to vacate under CR 60(b) is abuse of discretion. Lindgren v. Lindgren, 58 Wn. App. 588,

594-95, 794 P.2d 526 (1990).

       By the time of the second motion, Mr. Reini had received Ms. Kyle-Reini's credit

application for lease of a new vehicle. The application consists of two parts. The first is

a two-page "Credit Application" form, dated "7-1-2011," whose "Employment and

Income Information" section is completed to indicate that Ms. Kyle-Reini is self-

employed by On the Go Espresso and states, "Monthly Income: $3,000." CP at 230-31.

The second is an undated one-page "Applicant's Credit Statement," completed to indicate

that Ms. Kyle-Reini is the owner of On the Go Espresso and states "24,000" for "Annual

Gross" and "2000" for "Monthly Gross." CP at 232. Both forms are signed by Ms.

Kyle-Reini. Mr. Reini argues that the credit application constitutes newly discovered

evidence entitling him to relief from the dissolution decree.

       Evidence is newly discovered for purposes of CR 60(b )(3) only if it (1) will

probably change the result of the trial, (2) was discovered since the trial, (3) could not

have been discovered before trial by the exercise of due diligence, (4) is material, and (5)

is not merely cumulative or impeaching. Go2Net, Inc. v. CI Host, Inc., 115 Wn. App. 73,

88,60 PJd 1245 (2003). A motion based on newly discovered evidence must be denied

if any one of the five factors is not satisfied. Holaday v. Merceri, 49 Wn. App. 321, 330,

742 P.2d 127 (1987).

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No. 30420-5-111
In re Marriage ofReini


       Three of the factors are not satisfied by Mr. Reini's proposed new evidence. First,

as emphasized by Ms. Kyle-Reini, Mr. Reini could have discovered the two-page credit

application form by conducting routine dissolution discovery-for example, by

requesting production of any financial statements or credit applications completed by his

wife. He demonstrated no due diligence in moving the trial court for relief. Second, the

three pages taken as a whole are internally inconsistent in reporting Ms. Kyle-Reini's

monthly income. Portions are consistent with evidence of the $1,970 or $2,000 a month

income that she offered at trial. The inconsistent reference to a $3,000 income amount

serves no purpose other than to be used, selectively, to impeach or discredit Ms. Kyle­

Reini's trial evidence. Impeachment evidence, even if newly discovered, does not

warrant a new trial.

       Third, because this was a bench trial and would be a bench trial in the event of

retrial,4 we have a definitive answer as to whether the document would probably change

the result of the trial: it would not. Having reviewed the evidence, the trial court ruled;

"[T]he Court's not going to retry or set aside anything. As far as the Court is concerned,

the matter is concluded and the papers have been signed." RP at 59.

       Anyone of these three reasons was a sufficient reason for denying the motion.

The trial court did not abuse its discretion.


       4 RCW 26.09.010(1) (providing that practice in civil actions generally governs
dissolution proceedings "except that trial by jury is dispensed with").

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No. 30420-5-III
In re Marriage ofReini


       Mr. Reini argued alternatively that the $3,000 income figure on the credit

application revealed fraudulent conduct or misrepresentation supporting relief from the

decree under CR 60(b)(4). The fraud or misconduct required for relief under the rule

"must cause the entry of the judgment such that the losing party was prevented from fully

and fairly presenting its case or defense." Lindgren, 58 Wn. App. at 596 (citing Peoples

State Bank v. Hickey, 55 Wn. App. 367, 372, 777 P .2d 1056 (1989». The party attacking

the judgment must establish the fraud, misrepresentation, or other misconduct by clear

and convincing evidence. Id.

       The trial court had the opportunity to hear the testimony of Mr. Reini and Ms.

Kyle-Reini. It was for the trial court to determine, from its familiarity with the parties'

evidence at trial, whether the single entry on the credit application presented by Mr. Reini

demonstrated clearly and convincingly that the decree had been procured by misconduct.

It found that it did not.

       Its finding is well supported by the record. Both of the parties testified that in

operating the espresso business as a sole proprietorship for over 20 years they had never

taken a salary, as such, and had regularly paid personal expenses from business revenues.

Given the manner in which they operated, getting a fix on any wage figure, gross or net,

would have required accounting work that had apparently never been done. There was

no expense line on an income statement, no paycheck, and no form W-2 or 1099 that

could be consulted for a reliable figure.

                                              17 

No. 30420-5-III
In re Marriage 0/ Reini


       There was no evidence that Mr. Reini ever attempted to determine a more reliable

wage figure by engaging in discovery of Ms. Kyle-Reini's records or that she frustrated

his opportunity for discovery in any way. The trial court did not abuse its discretion by

denying Mr. Reini's motion for relief from judgment.

                          II. Claimed Consideration of Misconduct

       Mr. Reini's remaining challenges are to the trial court's disposition of assets and

liabilities and its award of maintenance following the one-day trial. "The trial court is in

the best position to assess the assets and liabilities of the parties and determine what is

'fair,just and equitable under all the circumstances.'" In re Marriage a/Brewer, 137

Wn.2d 756, 769, 976 P.2d 102 (1999) (quoting In re Marriage a/Hadley, 88 Wn.2d 649,

656,565 P.2d 790 (1977)). Its distribution of property should be disturbed only if there

has been a manifest abuse of discretion. Id. Under the manifest abuse of discretion

standard, we will affirm the trial court's decision unless no reasonable judge would have

reached the same conclusion. In re Marriage a/Landry, 103 Wn.2d 807,809-10,699

P.2d 214 (1985).

       Mr. Reini first contends that the trial court erred by considering marital

misconduct and punishing him, contrary to the explicit command of chapter 26.09 RCW

that the parties' property and liabilities be divided and any award of maintenance be

determined "without regard to misconduct." RCW 26.09.080, .090. He points to

statements in the trial court's letter opinion that he quit his job as a corrections officer and

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No.30420-5-III
In re Marriage ofReini


drew out his PERS retirement, "all unbeknownst to his wife," and that he used $29,000 of

proceeds from sale of the parties' property

       to purchase a motorcycle which he put in his son's name. Before the
       transfer, however, he borrowed $9,000 from a credit union and used the
       bike as collateral. He purchased two new jet skis and a trailer which his
       son sold for him in California and for which he received $2,500, probably
       substantially less than their true fair market value. The jet skis, Ford
       Ranger, his PERS 2, his Teamster's retirement and the On the Go Espresso
       business in Moxee were not listed in his bankruptcy schedules. The parties
       also purchased and ran an espresso business in Quincy. Toward the end of
       the marriage Mr. Reini moved to Quincy and ran this business. The
       business failed.

CP at 151-52. Addressing spousal maintenance, the trial court reiterated that "Husband

voluntarily quit a job paying a respectable salary with health and retirement benefits and

now finds himself earning $20.00 an hour working for J.M. Quincy Construction,

working a 35 hour week with no health and retirement benefits and being subject to

periodic seasonal layoffs." CP at 153.

       We read the cited language to be critical of several actions by Mr. Reini that

reflected poor judgment and compromised the parties' financial situation. But when we

consider the court's disposition of the parties' assets and liabilities, the court's criticism

did not translate into punishment of Mr. Reini. For example, the court rejected Ms. Kyle­

Reini's judicial estoppel argument; she had asked that the court exclude from the division

of property all of the community property assets that Mr. Reini left off of his bankruptcy

schedules. It nonetheless considered all of the assets and divided them equally, using


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No.30420-5-III
In re Marriage ofReini


credible evidence of value.

       Even if the court had adjusted its distribution on account of Mr. Reini's poor

judgments, the "misconduct" that is off limits in distributing property and awarding

maintenance does not include a husband's or wife's unwarranted dissipation of marital

assets. "[C]onsideration of each party's responsibility for creating or dissipating marital

assets is relevant to the just and equitable distribution of property." In re Marriage of

Williams, 84 Wn. App. 263,270,927 P.2d 679 (1996). A trial court may therefore factor

into its distribution a party's "negatively productive conduct" that is responsible for

creating or dissipating certain marital assets. In re Marriage ofelark, 13 Wn. App. 805,

809,538 P.2d 145 (1975). The clause "without regard to misconduct" "refers to immoral

or physically abusive conduct within the marital relationship and does not encompass

gross fiscal improvidence, the squandering of marital assets or ... the deliberate and

unnecessary incurring of tax liabilities." In re Marriage ofSteadman, 63 Wn. App. 523,

528, 821 P .2d 59 (1991) (footnote omitted). A trial court may consider a spouse's

negatively productive conduct regarding marital assets when making a just and equitable

distribution of property. Williams, 84 Wn. App. at 270; In re Marriage of White, 105

Wn. App. 545, 551,20 P.3d 481 (2001); see also In re Marriage ofNicholson, 17 Wn.

App. 110, 118,561 P.2d 1116 (1977) (ruling that the trial court had a right to take the

husband's concealment of assets into consideration in dividing the property).

       The trial court was authorized to consider the conduct at issue. Even so, Mr. Reini

                                             20 

No.30420-5-III
In re Marriage ofReini


has not demonstrated that the conduct factored in the trial court's decisions. We find no

abuse of discretion.

                                     III. Transfer Payment

       Mr. Reini next argues that the trial court abused its discretion when it ordered him

to make a transfer paymentS of $20, 165 to Ms. Kyle-Reini because his economic

circumstances do not enable him to pay it. "The economic circumstances of [the parties]

at the time of the division of property" is one of four statutory factors that the trial court

is required to consider in arriving at a just and equitable disposition of the parties' assets

and liabilities. RCW 26.09.080(4); In re Marriage ofRockwell, 141 Wn. App. 235, 242­

43, 170 P.3d 572 (2007).6

       Mr. Reini argues that providing for the transfer payment to equalize the

distribution was unfair because he has virtually nothing in his bank account, lives

paycheck to paycheck, and could not generate the payment even by selling all his assets.

       The economic circumstances of the parties is only one of the statutory factors to be

considered by the court. Standing alone, it does not support favoring Mr. Reini over Ms.

Kyle-Reini. Both of them face difficult economic circumstances following their



       5 The trial court used the term "equitable lien" but we prefer the term transfer
payment when referring to a payment obligation, as distinguished from a claim against
particular assets.
       6 The other three factors are the nature and extent of the community property, the
separate property of the parties, and the duration of the marriage. RCW 26.09.080.

                                              21 

No. 30420-5-III
In re Marriage ofReini


respective bankruptcies and divorce. And Mr. Reini's economic circumstances should

not be viewed as narrowly as his bank account balance and wages as of the day of trial;

they include the fact that he was only 51 years old at the time and has held better-paying,

nonseasonal employment in the past.

       They also include the court's distribution to him of$44,741 in community

property having a known value-this, as compared to only $5,711 in known value

distributed to Ms. Kyle-Reini. 7 As the trial court observed, this was a long-term

marriage. It was not unreasonable for the court to view an equal division of property,

made equal through a transfer payment, as appropriate.

       The trial court's disposition must be evaluated by considering all of the factors

applied to both parties, not just one factor applied only to Mr. Reini. He has not

demonstrated an abuse of discretion.



       7 Mr.  Reini argues in passing that he had cashed out the RothJ401(k) by the time of
the decree and the jet skis and jet ski trailer had been sold, yet they were accounted for as
assets distributed to him. Br. of Appellant at 11. The RothJ401 (k) existed at the date of
separation, which was the valuation date set by the court. It was cashed out by Mr. Reini
in violation of a restraining order. RP at 158-59. As to the jet skis and trailer, the trial
court doubted the credibility of Mr. Reini's testimony that these new items, purchased for
$9,000, were sold shortly thereafter for $2,500; Mr. Reini also failed to demonstrate that
the proceeds were deposited to a community account. Ifwe assume that the transfer
payment was intended to result in an exact 50/50 split of property by value, the trial court
implicitly attached only a $1,300 value to the jet skis and trailer. Although the trial court
was incapable of ordering transfer of assets that Mr. Reini no longer possessed, it was
within its authority to account for their value in its separation-date based disposition of
assets and liabilities.

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No.30420-5-III
In re Marriage ofReini


                                    IV. Maintenance Award

       Mr. Reini finally challenges the maintenance award to Ms. Kyle-Reini, arguing

that the trial court's award of lifelong maintenance failed to consider Ms. Kyle-Reini's

financial resources and ability to meet her needs independently; her existing employment

in a position appropriate to her skill, interests, style of life, and other circumstances; and

Mr. Reini's inability to meet his needs and financial obligations while paying the

maintenance award. RCW 26.09.090(1)(a), (b), (t). These are three of six statutory

factors that the trial court is required to consider in determining whether to award

maintenance. 8

       The purpose of spousal maintenance is to support a spouse until the spouse

becomes self-supporting. In re Marriage ofLuckey, 73 Wn. App. 201,209,868 P.2d 189

(1994). What is a reasonable length of time for a divorced spouse to become employable

and provide for his or her own support, so that maintenance can be terminated, depends

on the particular facts and circumstances of each case. In re Marriage ofSpreen, 107

Wn. App. 341, 348, 28 PJd 769 (2001) (citing Endres v. Endres, 62 Wn.2d 55,58,380

P.2d 873 (1963)). Lifelong awards have been approved, but in circumstances where it is

clear that the party seeking maintenance will not be able to contribute significantly to his



       8 The others are the standard of living established during the marriage, the duration
of the marriage, and the age, physical and emotional condition, and financial obligations
of the spouse seeking maintenance. RCW 26.09.090(1)(c), (d), (e).

                                              23 

No. 30420-5-111
In re Marriage ofRein;


or her own livelihood. In re Marriage ofSheffer, 60 Wn. App. 51, 56-58, 802 P .2d 817

(1990).

       An award of maintenance not evidenced by a fair consideration of the statutory

factors constitutes an abuse of discretion. Spreen, 107 Wn. App. at 349. When a court

makes a decision that the legislature has required be based on consideration of specific

factors, written findings on those factors are preferred, but a trial court does not err by

failing to enter findings if substantial evidence was presented on each factor and the

court's oral opinion and written findings reflect it considered each. In re Marriage of

Horner, 151 Wn.2d 884,895-96,93 P.3d 124 (2004) (addressing factors required to be

considered in child relocation decisions).

       Here, the trial court's findings of fact state only that "[m]aintenance should be

ordered because the Wife has the need and Husband has the ability to pay." CP at 157

(Finding of Fact 2.12). Its letter opinion and findings and conclusions refer to the parties'

long-term marriage and Mr. Reini's earnings during periods of employment and

unemployment. But both are silent when it comes to Ms. Kyle-Reini's relative resources,

education or training, and ability to be self-supporting.

       Mr. Reini presented little evidence and he may not rely on the credit application

that the trial court refused to accept as newly discovered evidence. Even so, the record

contains evidence that is germane and was not weighed by the trial court. It establishes

that Ms. Kyle-Reini managed, by working long hours in the several years the divorce was

                                              24 

No.30420-5-III
In re Marriage ofReini


pending, to retire the Summit obligation. It establishes that while Mr. Reini was unable

to make a success of the Quincy stands, Ms. Kyle-Reini operated the Yakima location

solvently for many years and was sufficiently confident of its prospects when filing

bankruptcy in 2009 to affirm and assume the Summit debt. She did not present evidence

at trial that she needed training for a new or different career. Inasmuch as she supported

herself for the four years the dissolution was pending, it would appear no further time is

required for her to acquire education or training. While the evidence of the parties'

income histories at trial is not as concrete as it could be, there is no evidence of a

substantial earning disparity that would warrant lifelong maintenance for the purpose of

equalizing the parties' standard of living. 9

       Given these questions raised by the evidence and the limited explanation of the

trial court's reasoning, we cannot be confident that it gave full consideration to the

statutory factors. We reverse the maintenance award and remand so that the court may

reconsider or at least explain its consideration of the three factors Mr. Reini claims were

overlooked as well as whatever other factors the court deems relevant.

       Mr. Reini and Ms. Kyle-Reini both seek attorney fees and costs on appeal. Under



      9 The evidence established that Mr. Reini's income from his job as a construction
worker is $3,000, gross, when he is working and $1,200 when collecting unemployment;
assuming eight to nine months on and three to four months off, his annual earnings are
$28,800 to $30,600. According to Ms. Kyle-Reini's financial declaration, her net
monthly income is $2,000 for a net annual income of $24,000.

                                                25 

No. 30420-5-III
In re Marriage ofReini


RCW 26.09.140, we have discretion to award attorney fees after considering the financial

resources of both parties and the parties' ability to pay. In re Marriage ofRobertson, 113

Wn. App. 711, 716, 54 P.3d 708 (2002). Intransigence is an additional basis for

awarding fees on appeal, see In re Marriage ofMattson, 95 Wn. App. 592,605, 976 P.2d

157 (1999), and Ms. Kyle-Reini urges it as an alternative basis for her fee request. We do

not find intransigence and decline to award fees and costs to either party. 10

       We reverse the trial court's maintenance award and remand for consideration of

the maintenance factors provided by RCW 26.09.090. We otherwise affirm.

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

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

2.06.040.



                                           Siddoway, 1.

WE CONCUR:

~
Korsmo, C.J.


 ~.~-
Moreno, J.P.T.




       10   We deny Mr. Reini's motion to strike Ms. Kyle-Reini's affidavit as untimely.

                                             26
