    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Marriage of
                                                         No. 71714-6-1
 GABRIEL Y. LEE,                                         (consolidated with
                                                         No. 71715-4-1)
        Appellant/Cross Respondent,
                                                         DIVISION ONE
               v.

                                                         UNPUBLISHED OPINIONS
 CAROL ANN KENNARD,

        Respondent/Cross Appellant.                      FILED: June 29, 2015


      Appelwick, J. — Lee appeals from the trial court's order on remand finding that

the separation agreement, which had been incorporated into the decree of dissolution,

was enforceable.      In addition, Lee appeals the prospective enforcement of the

maintenance escalator and the award of attorney fees to Kennard. Kennard also appeals,

challenging the application of laches to the enforcement of the maintenance escalator.

Lee's unconscionability challenge to the validity of the separation agreement was

untimely and should not have been considered.          However, the trial court properly

concluded that the agreement was enforceable. The trial court did not abuse its discretion

when it determined that retroactive enforcement of the maintenance escalator was barred

by laches or when it calculated the prospective application of the maintenance escalator.

Attorney fees were properly awarded below. We affirm.

                                         FACTS

      This is the second appeal before this court involving the separation agreement

between Gabriel Lee and Carol Kennard. See In re Marriage of Lee, 176 Wn. App. 678,

310 P.3d 845 (2013) (Lee I). The details and terms of the parties' separation are set forth
No. 71714-6-1 (consolidated with No. 71715-4-l)/2



in our previous opinion. See id. at 682-84. Only those relevant to this appeal are repeated

here.


        The separation agreement awarded Kennard monthly spousal maintenance, the

amount of which to "'be adjusted every three years based upon the cost of living index.'"

Id. at 682. The agreement was incorporated into a decree of dissolution, and the decree

and child support order were entered ex parte on February 11, 2000.

        Kennard did not seek to enforce the escalator until 2011, when she moved for past

due maintenance based on Lee's failure to pay cost of living increases since 2000. See

id. at 683-84.   Lee sought to have the maintenance escalation clause declared void,

because it was tied solely to the consumer price index (CPI). ]d_. at 684. The trial court

held that the escalator was unenforceable. ]d Kennard appealed. ]d.

        We reversed, reasoning that, while the court cannot impose a CPI escalator, the

parties can agree to such a provision:

        Lee and Kennard agreed to an automatic, nonmodifiable spousal
        maintenance escalation clause based on the cost of living index. Unless it
        is found unfair at the time of execution, the court must enforce that
        agreement according to its terms. Below, Lee did not allege that the
        agreement was unfair at the time it was entered into, and the trial court
        made no such finding. The argument instead focused on whether the
        escalator was unenforceable as a matter of law. Therefore, we hold that
        the trial court erred as a matter of law in holding that the spousal
        maintenance escalation clause was void and unenforceable.

Id. at 687-88. We remanded the issue of the maintenance escalator to the trial court. Id.

at 693. We further directed, "Unless the separation agreement is set aside, Kennard is

entitled to an award of reasonable attorney fees incurred related solely to the

maintenance issue, in the prior proceeding below, on appeal, and on remand." jd.
No. 71714-6-1 (consolidated with No. 71715-4-l)/3



       On remand, Lee moved for summary judgment, arguing that the separation

agreement was unconscionable and thus unenforceable. Lee further asserted that, under

the equitable doctrine of laches, Kennard was barred from enforcing the escalator.

Kennard opposed Lee's motion and moved for judgment for past due maintenance and

for attorney fees.

       The trial court interpreted our decision as "mandating the trial court to make a

determination whether the settlement agreement was unfair at the time of execution."

Although the trial court found that the agreement was substantively unfair, it found that

the agreement was procedurally fair and thus enforceable. The court further concluded

that retroactive application of the escalator was barred by laches, reasoning that it was

"fundamentally unfair for [Kennard] to strategically sit on her rights while accruing 12%

interest while [Lee] has abided by the terms of the agreement and would be financially

prejudiced by the retroactive application of the [CPI] escalation clause." Accordingly, the

court held that "the escalation clause shall apply to current maintenance from the time

[Kennard] filed this action on October 18, 2011." It awarded attorney fees to Kennard.

       Both parties appeal.1

                                       DISCUSSION


       Lee asserts that substantive unconscionability was sufficient to render the

separation agreement unenforceable.       He also argues that, even if the agreement is

enforceable, the trial court erred in calculating the amount of prospective maintenance

based on the CPI increase, because the court used the wrong base year in making its



       11n addition, both parties moved this court to strike portions of the other's briefing.
We deny both motions.
No. 71714-6-1 (consolidated with No. 71715-4-l)/4



calculation. He further asserts that the trial court erred in awarding Kennard attorney fees

as the prevailing party. Kennard cross appeals, challenging the trial court's application

of Lee's laches defense to bar retroactive enforcement of the maintenance escalator.

  I.   Maintenance Escalation Clause


       Lee argues that the trial court should not have enforced the maintenance escalator,

because substantive unconscionability alone can support a finding of unconscionability.

We do not reach this argument, however, because Lee's unfairness challenge to the

separation agreement is time-barred.

       Under RCW 26.09.070(3), if one or both parties to a separation contract petition

for dissolution of their marriage, the contract "shall be binding upon the court unless it

finds, after considering the economic circumstances of the parties and any other relevant

evidence produced by the parties . . . that the separation contract was unfair at the time

of its execution." The parties' separation agreement was incorporated into a decree of

dissolution, which became a final order in 2000. Prior to entry of the dissolution decree,

the court did not find that the agreement was unfair.2

       We have previously recognized this constraint on challenges to the fairness of

separation contracts. See In re Marriage of Glass. 67 Wn. App. 378, 390, 835 P.2d 1054

(1992); see also In re Marriage of Hulscher, 143 Wn. App. 708, 717,180 P.3d 199 (2008).

In Glass, we stated that any challenge to a separation contract's unfairness "must be


       2 We recognize Lee's assertion that the court commissioner who entered the
parties' decree did not affirmatively determine whether the separation agreement was fair.
However, Lee did not raise this issue below. His lawyer advised him that the agreement
was unfair and withdrew representation when Lee nonetheless chose to enter into the
agreement. Lee establishes no facts surrounding the agreement's presentation that
would give rise to a collateral attack on the order.
No. 71714-6-1 (consolidated with No. 71715-4-l)/5



made prior to the entry of the decree by which the separation contract is approved by the

court." 67 Wn. App. at 390. This principle was reiterated in Hulscher:

      Martin did not claim that the spousal maintenance provision was unfair until
      nearly a year after the trial court approved and entered the decree. But a
      party must make such a challenge before the trial court's approval and entry
      of the decree. RCW 26.09.070(3), (7); Glass, 67 Wn. App. at 390. As the
      Glass court astutely observed, "[i]f such a challenge were to be allowed
      years later, at the time of a modification proceeding, the provisions of RCW
      26.09.070(3) and (7) would be rendered meaningless." Glass, 67 Wn. App.
      at 390. Consequently, Martin's claim that the spousal maintenance
      provision was unfair at the time of execution is thus time-barred.

143 Wn. App. at 717.

      Lee attempts to distinguish Glass and Hulscher, arguing that he relies on RCW

26.09.070(6), while those cases looked to RCW 26.09.070(3) and (7).3 Under subsection

(6), the terms of a separation agreement remain enforceable as contract terms despite

being merged into a decree.     This permits parties to raise contract defenses to the

agreement, such as Lee's laches defense. However, subsection (3) informs the reading

of subsection (6), excluding unconscionability from the available contract defenses.

Otherwise, subsection (3) "would be rendered meaningless." Glass, 67 Wn. App. at 390.

      Lee also cites several cases for the proposition that a trial court has the authority

to refuse to enforce a maintenance agreement that it finds substantively unfair. But, the

cases he cites are inapposite: none involve a challenge to a separation agreement that

has been incorporated into a final decree. See In re P'ship of Rhone, 140 Wn. App. 600,


      3 RCW 26.09.070(7) provides:
            When the separation contract so provides, the decree may expressly
      preclude or limit modification of any provision for maintenance set forth in
      the decree. Terms of a separation contract pertaining to a parenting plan
      for the children and, in the absence of express provision to the contrary,
      terms providing for maintenance set forth or incorporated by reference in
      the decree are automatically modified by modification of the decree.
No. 71714-6-1 (consolidated with No. 71715-4-l)/6



604-05, 166 P.3d 1230 (2007) (trial court made equitable amendment to order under its

continuing jurisdiction); In re Marriage of Hansen, 24 Wn. App 578, 579, 602 P.2d 369

(1979) (trial court refused to incorporate unfair separation agreement into dissolution

decree); In re Marriage of Qlsen. 24 Wn. App. 292, 298, 600 P.2d 690 (1979) (separation

agreement and decree were not merged).

       Lee further maintains that, under the law of this case, the trial court was required

to consider the fairness of the separation agreement. This is a misreading of our previous

opinion. In Lee I, we held that In re Marriage of Covle, 61 Wn. App. 653, 811 P.2d 244

(1991) did not preclude the parties from agreeing to a CPI-based maintenance escalator.

See 176 Wn. App. at 686-88. In reaching this conclusion, we stated the general principle

that "[u]nless [a separation agreement] is found unfair at the time of execution, the court

must enforce that agreement according to its terms." |d_, at 687. We did not command

the trial court to determine the fairness of the separation agreement. And, as we stated

in our order denying Kennard's motion to recall the mandate, we did not intend to imply

disagreement with Hulscher. We were merely acknowledging that, unless there was

some basis—other than the CPI escalator clause—on which to set aside the agreement,

Kennard would prevail. We did not mean to say that such a basis existed. Regardless,

as RCW 26.09.070(3) makes clear, the time for challenging fairness is at the time of entry

of the decree.

       Lee's unfairness challenge is time-barred. The trial court properly deemed the

escalation clause enforceable.
No. 71714-6-1 (consolidated with No. 71715-4-l)/7



 II.   Laches Defense


       Kennard argues that the trial court erred in applying Lee's laches defense to bar

the retroactive enforcement of the maintenance escalator.         "A person defensively

asserting laches must establish (1) the claimant had knowledge of the facts constituting

the cause of action or a reasonable opportunity to discover such facts; (2) unreasonable

delay on the part of the claimant in commencing the action; and (3) damage to the person

asserting laches." In re Marriage of Dicus, 110 Wn. App. 347, 357, 40 P.3d 1185 (2002).

       Laches is an equitable remedy, the application of which we generally review for an

abuse of discretion. See In re Marriage of Capetillo, 85 Wn. App. 311,319, 932 P.2d 691

(1997). However, Lee raised his laches defense in his summary judgment motion on

remand.4 We review de novo all rulings made in conjunction with a summary judgment

motion. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). Summary

judgment is appropriate where there are no genuine issues of material fact and the

moving party is entitled to judgment as a matter of law. CR 56(c); Peterson v. Groves,

111 Wn. App. 306, 310, 44 P.3d 894 (2002). When considering the evidence, we draw

reasonable inferences in the light most favorable to the nonmoving party. Schaaf v.

Highfield, 127Wn.2d 17, 21, 896 P.2d 665 (1995).

       First, Kennard asserts that the laches defense was beyond the scope of this court's

mandate on remand. This argument is meritless. See In re Marriage of Rockwell, 157

Wn. App. 449, 453, 238 P.3d 1184 (2010) (on remand, the trial court should "exercise its

discretion to decide any issue necessary to resolve the case").

     4 Kennard complains that the trial court mischaracterized her motion below as a
summary judgment motion. However, she does not articulate prejudice suffered as a
result of this characterization.
No. 71714-6-1 (consolidated with No. 71715-4-l)/8


       Second, Kennard asserts that the merger doctrine precluded the trial court from

applying laches. Under the merger doctrine, "[w]here a property settlement agreement is

approved by a divorce decree, the rights of the parties rest upon the decree rather than

the property settlement." See Mickens v. Mickens, 62 Wn.2d 876, 881-82, 385 P.2d 14

(1963). However, under RCW 26.09.070(6), when a separation agreement has been

incorporated into a dissolution decree, the agreement's terms remain enforceable as

contract terms. Moreover, laches is an available defense against an obligation contained

in a final decree. See, e.g., In re Marriage of Watkins, 42 Wn. App. 371, 372, 374-75,

710 P.2d 819 (1985) (applying laches to bar enforcement of child support obligation under

dissolution decree). Merger has no bearing on Lee's ability to raise his defense of laches.

       Third, Kennard asserts that there were genuine issues of material fact as to the

reasonableness of her delay to seek enforcement of the escalation clause. Specifically,

there are two potential reasons for Kennard's delay.

       Kennard submitted a declaration in which she stated that "every time I attempted

to address [the maintenance escalator] with [Lee], he would claim he was always 'too

broke' to abide by the terms of the agreement." Kennard cites In re Marriage of Hunter,

52 Wn. App. 265, 270-71, 758 P.2d 1019 (1988), to assert that Lee's inability to pay

justified her delay in seeking enforcement. In Hunter, the husband had not paid child

support for seven years, which he admitted was due to his lack of income, jd. at 271.

Accordingly, the wife's lawyer "advised her that it would not be fruitful" to take legal action.

Id. The court held that, under these circumstances, the wife's delay in seeking past due

child support was reasonable. ]d. Unlike the husband in Hunter, Lee continued to make

child support payments that exceeded his obligation, as well as maintenance payments


                                                   8
No. 71714-6-1 (consolidated with No. 71715-4-l)/9


at the original level. Lee I, 176 Wn. App. at 683. Kennard does not show that it would

have been fruitless to pursue legal action due to Lee's alleged inability to pay. This was

not a reasonable justification for Kennard's delay.

          Kennard also cites Capetillo, 85 Wn. App. at 317-18, where the wife was reluctant

to pursue past due support because she did not want the husband to enforce his visitation

rights. The court found that this reluctance did "not appear unreasonable, considering

her testimony that he could be abusive to the children." Id, at 317-18. There is no similarly

compelling rationale here. Lee was paying his child support and more. IfKennard's delay

was to avoid litigating and adjusting or modifying child support, the trial court did not err

in finding her delay unreasonable.

          Fourth,   Kennard   asserts   that    Lee's   laches   motion failed    to   include an

accompanying financial declaration.            Under King County Family Law Rule (KCFLR)

10(a)(1)(B), financial information is required for any motion concerning spousal

maintenance.        However, the trial court has the inherent authority to waive its rules.

Raymond v. Ingram, 47 Wn. App. 781, 784, 737 P.2d 314 (1987). Unless the record

shows that an injustice has been done, we will presume that the trial court disregarded

the rule for sufficient cause. Id.; Snyder v. State, 19 Wn. App. 631, 637, 577 P.2d 160

(1978).

       Here, the record shows no injustice. Under KCFLR 10(a)(2), a party may use a

previously prepared financial declaration if all information in that declaration remains

accurate.     Lee submitted a financial declaration in October 2011.             This declaration

provided the information relevant to his motion, because his laches defense applied only

retroactively—i.e., until 2011.     Moreover, in conjunction with his laches motion, Lee
No. 71714-6-1 (consolidated with No. 71715-4-l)/10


submitted a detailed declaration regarding the choices he made based on Kennard's

delay in enforcing the CPI increase and the hardship it would cause him to pay the

retroactive increase.


       Fifth, Kennard asserts that the reliance element of laches was not satisfied.5 But,

Lee submitted a declaration stating that

       I balanced what I thought to be my family's present needs based on
       [Kennard]'s agreement not to enforce the [cost of living adjustments
       (COLAs)] in exchange for post-secondary family support accommodations
       I made to her. I thought the retirement investments I chose then were
       adequate. Had I known I would lose almost all of my 401K after 2011, I
       would have saved more     Also, had I known then that Carol would renege
       on our mutual accommodation; I would have paid the COLA increase rather
       than incur 12% per year interest on the increasing debt.

This shows that Lee detrimentally relied on Kennard's previous decision not to enforce

the escalator.


       Finally, Kennard asserts that the damages element was not satisfied. Regarding

damages, the trial court found that Kennard's delay in enforcing the escalator caused an

"irrevocable and detrimental change of [Lee's] financial position." Specifically, the trial

court noted that Lee


       no longer has the ability to modify child support or educations [sic] costs
       already paid. At this point, [Lee] could not recoup or terminate the $1750
       per month pre-majority child support transfer payment that he paid when
       the standard calculation was less than $700/ month. Similarly, [Lee] cannot
       recoup the educational support he has funded to his children.




       5 Lee argues that reliance is not an element of laches. Capetillo and Hunter
indicate that reliance or a change in position is required. 85 Wn. App. at 318; 52 Wn.
App. at 271. Regardless, we conclude that reliance is present here.


                                               10
No. 71714-6-1 (consolidated with No. 71715-4-l)/11


        Kennard asserts that there was no evidence Lee would have sought modification

of his obligations or succeeded had he done so. But, in 2007, Lee specifically told

Kennard that, regarding their son's education costs,

        I looked at the record of the [Guaranteed Education Tuition] payment
        history, it turned out that I had actually paid the entire amount (short of the
        original application fee), which means I had paid for his entire tuition. By
        my calculation, based on the arrangement that I paid full child support in
        lieu of [the CPI adjustment] and that we shared college expenses evenly, I
        will have actually overpaid you by about $1500 at the end of the summer
        quarter.

        Starting this September, I plan on paying Chris directly the child support
        amount for his living expenses off campus as well as other educational
        expenses. As long as I paid [sic] that amount to him, I do not feel that I
        should pay the [CPI increase] at the same time to you. If you insist on me
        paying you the [CPI increase], then you need to pay Chris the proportional
        amount for living/educational expenses based on the formula of sharing
        evenly.

This demonstrates that Lee would have sought to reduce his obligations and enforce

Kennard's obligations had Kennard sought to enforce the escalator. And, had Lee sought

relief, the evidence demonstrates that he would have been successful. For example, their

daughter resided with Lee during her senior year of high school, and Lee did not pursue

child support from Kennard for that period.

        Kennard further argues that the loss from paying what one owes is not a damage

for purposes of laches. However, the maintenance escalator was not self-executing and

thus ineffective without a court order. See In re Marriage of Kahle, 134 Wn. App. 155,

160-61, 138 P.3d 1129 (2006). Therefore, until Kennard sought to enforce the escalator,

Lee was not legally obligated to pay the CPI increase. Lee made financial choices based

on Kennard's agreement not to seek enforcement. The damages element is satisfied

here.




                                                 11
No. 71714-6-1 (consolidated with No. 71715-4-l)/12



        The trial court properly granted summary judgment on Lee's laches defense.

 III.   Amount of Prospective Maintenance

        Lee asserts that the trial court erred in adjusting the prospective amount of

maintenance, because it applied the CPI increase since 2000—the year the parties

signed the separation agreement. The separation agreement provided that maintenance

be adjusted every three years. Accordingly, Lee maintains, the proper base year for the

CPI increase was 2008—three years prior to Kennard's 2011 request for enforcement.

        An award of maintenance lies within the discretion of the trial court. In re Marriage

of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990).            Regarding the amount of

maintenance, the only limitation is that, in light of the relevant factors, the award must be

just. ]d.

        Here, the parties' agreement does not compel the result Lee seeks.                The

adjustment provision stated that maintenance "shall be adjusted every three years based

upon the cost of living index." This places a three-year limitation on the frequency of

adjustments. This implicitly limits the amount of the adjustment, but only ifthe adjustment

in fact occurs every three years.

        Quoting the order on cross motions for summary judgment, Lee asserts that it

would be unfair to give Kennard "the benefit of the percentage increase in the CPI during

the 8 years she 'unfairly]' and 'strategically' 's[a]t on her rights.'" This rationale supports

the application of laches as to Lee's payment of escalated maintenance in the years he

relied on Kennard's choice not to invoke the escalator. But, once Kennard invoked the

escalator in 2011, this rationale no longer applied. Going forward, it was not unjust to set




                                                  12
No. 71714-6-1 (consolidated with No. 71715-4-l)/13


maintenance at the rate it would have been had Kennard routinely invoked the escalator

as she was entitled to do.


       The trial court did not abuse its discretion in calculating the prospective amount of

maintenance.


IV.    Attorney Fees

       Lee asserts that the trial court erred in awarding attorney fees to Kennard as the

prevailing party. Lee argues that, because the trial court rejected Kennard's request for

retroactive enforcement of the escalator, Kennard did not substantially prevail.

       We generally review a trial court's award of attorney fees for an abuse of discretion.

Clausen v. Icicle Seafoods, Inc.. 174 Wn.2d 70, 81, 272 P.3d 827 (2012). However, a

trial court's decision on statutory entitlement to fees and costs is a question of law

reviewed de novo. Mehlenbacherv. DeMont, 103Wn. App. 240, 244,11 P.3d 871 (2000).

       Under RCW 26.18.160, in "any action to enforce a support or maintenance order

under this chapter, the prevailing party is entitled to a recovery of costs, including an

award for reasonable attorney fees." Generally, a prevailing party6 is one who receives

an affirmative judgment in its favor.   Cornish College of the Arts v. 1000 Virginia Ltd.

P'ship, 158 Wn. App. 203, 231, 242 P.3d 1 (2010). A defendant can also recover as a

prevailing party for successfully defending against the plaintiff's claims. ]d. at 231-32. If

"both parties prevail on major issues, neither is a 'prevailing party' entitled to attorney

fees." In re Marriage of Nelson, 62 Wn. App. 515, 519, 814 P.2d 1208 (1991).



      6 Although our case law does not provide a further definition of "prevailing party"
under RCW 26.18.160, we will look to other statutes governing attorney fees as
persuasive authority. See, e.g., In re Marriage of Nelson, 62 Wn. App. 515, 519, 814
P.2d 1208(1991).


                                                13
No. 71714-6-1 (consolidated with No. 71715-4-l)/14


       In Nelson, the couple's two dependent children initially resided with the mother,

and the father paid child support. ]d at 516. When the son moved in with the father, the

father ceased paying child support.      Id   One year later, the mother petitioned for

modification of child support and moved for entry of judgment for past due support. ]d at

517. The father agreed that modification was proper, but maintained that he did not owe

past due support based on an agreement between the parties. See id at 517, 520.

      The commissioner awarded the mother future support payments for the daughter.

]d at 518. The commissioner also awarded the mother past due support, the amount of

which was offset based on the son's residency with the father during the delinquency

period. \jL The commissioner did not award attorney fees to either party, finding that

both had prevailed on major issues. ]d

      We reversed, finding that the mother was entitled to fees. Id. at 520. We reasoned

that the commissioner awarded the mother a money judgment which was offset only to

account for the son's living arrangement. ]d And, we noted that the commissioner

rejected the father's defense concerning an agreement between the parties.             \&.

Therefore, we concluded, the mother was the only party to prevail on a major issue. Id-

       Nelson supports the trial court's award of fees in this case. Like the mother in

Nelson, Kennard sought affirmative relief and was awarded a money judgment. Like the

father in Nelson, Lee defended against the money judgment but sought no affirmative

relief of his own. And, like the equitable offset for the Nelson son's living arrangement,

the retroactive application of Lee's laches defense did not constitute "prevailing] on [a]

major issue." See id at 519. Rather, it merely reduced the amount Kennard was owed

in prevailing on her major issue: enforcement of the escalator.


                                               14
No. 71714-6-1 (consolidated with No. 71715-4-IV15



       Moreover, as in Nelson, this conclusion is "bolstered by the language of the statute

itself which prohibits an obligor... from being 'considered a prevailing party under [RCW

26.18.160] unless the obligee has acted in bad faith.'" ]d at 520 (alteration in original)

(quoting RCW 26.18.160). Lee argues that the trial court's finding that Kennard's delay

was unreasonable and strategic is "tantamount to a finding of bad faith." But, "in the

absence of an express finding, we will not assume that the judge found bad faith, even

where the record would support such a finding." State v. S.H., 102 Wn. App. 468, 479, 8

P.3d 1058 (2000). We affirm the trial court's award of attorney fees to Kennard.

       Kennard requests fees on appeal "consistent with the mandate in this matter, and

pursuant to RCW 26.18.160." Kennard has again prevailed on her claim to enforce

maintenance and is entitled to reasonable attorney fees incurred on appeal solely with

respect to the maintenance issue.

       We affirm.




WE CONCUR:




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