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     IN THE COURT OF APPEALS OF THE STATE OF                                                WASHIl                   u
                                                                                         STATE OF WASHING T O•I
                                                       DIVISION II



KARA UNDERWOOD,                                                                       No. 44068 -7 -II


                                 Respondent,


           v.




ROBERT UNDERWOOD,                                                           PART -
                                                                                 PUBLISHED OPINION


                                 Appellant.




           MAXA, J. — Robert Underwood appeals multiple trial court orders entered in proceedings


related to the dissolution of his marriage to Kara Underwood. We hold that the trial court erred

in allowing the parties' two teenage children to determine the amount of their residential time

with Robert' without supporting that decision with appropriate findings. In the unpublished

portion of      this   opinion we address       the   remainder of    Robert'   s arguments.   We affirm in part,


reverse in part, and remand for further proceedings. We also award Kara her attorney fees on

appeal.



                                                            FACTS


           Kara    and    Robert Underwood        married      in Montana in 1991.      They have two children. In

2010, Kara petitioned for dissolution of her marriage to Robert. At the time, their older child

was 14 and their younger child was 12. After a bench trial, the trial court entered a final

parenting plan that allowed the children to decide whether Robert would have residential time

with them. The trial court stated:


1
    The   parties'     first   names are used   for clarity.    By   using first   names, we mean no          disrespect.
No. 44068 -7 -II



              T] he [ children] are mature and intelligent. Due to this, along with the age of the
             children, the residential time between [ them] and their father in the future shall be
             based   on   the desires     of   the [   children].   At present they have no desire to have
             contact with their father. The court will honor their wishes. They will be allowed
             to have contact with their father and residential time if they later cho[ o] se to.

Clerk'   s   Papers ( CP)    at   35.   Robert appeals this ruling, as well as several other trial court orders

addressed in the unpublished portion of this opinion.


                                                            ANALYSIS


             We review a trial court' s parenting plan for abuse of discretion. In re Marriage of

Katare, 175 Wn.2d 23, 35, 283 P. 3d 546 ( 2012),                    cert.   denied 133 S. Ct. 889 ( 2013). A trial court


abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or

untenable reasons. Katare, 175 Wn.2d at 35.

             Robert argues that the trial court abused its discretion when it allowed the children to

decide whether he would receive any residential time with them because this ruling effectively

eliminated his residential time with them. We hold that although under certain circumstances


and in its discretion the trial court may allow a child to determine the amount of residential time .

with the non- custodial parent, it may doso only based on appropriate findings Because the trial

court did not make adequate findings supporting its decision here, we must remand for

reconsideration of this issue.


             The trial court did not expressly order the elimination of Robert' s residential time with

the children. However, it acknowledged that the children did not desire to have contact with

their father at that time. As a result, the trial court knew that its parenting plan likely would

result in the elimination of Robert' s residential time for the foreseeable future. The question here

 is whether the trial court had the discretion to allow the children to detemiine the amount of their




                                                                    2
No. 44068 -7 -II



residential time with Robert, knowing that this decision effectively would eliminate Robert' s

residential time with them.


        Although the trial court did not explain the basis for its ruling on residential time, it

apparently viewed its order as a limitation on residential time justified by its findings under

RCW 26. 09. 191( 2)      and ( 3).   RCW 26. 09. 191( 2)( a) requires limitation of residential time if the

parent has engaged in certain conduct. The trial court determined that Robert had engaged in


two types of conduct referenced in the statute: a history of acts of domestic violence as defined

in RCW 26. 50. 010( 1) and emotional abuse of a child. But RCW 26. 09. 191( 2)( a) does not give

the trial court authority to eliminate residential time. That authority is granted by other

subsections of RCW 26. 09. 191.


          RCW 26. 09. 191( 2)( m)( i), for example, provides:


          If the court expressly finds based on the evidence that limitations on the residential
          time with the child will not adequately protect the child from the harm or abuse
          that could result if the child has contact with the parent requesting residential time,
          the court shall restrain the parent requesting residential time from all contact with
          the child.


Thereis no question here that express findings regarding protecting the children from harm or

abuse would have been required if the trial court had explicitly eliminated Robert' s residential

time   under   RCW 26. 09. 191( 2)( m)( i), and that the trial court made no such findings.


          A different    subsection,   RCW 26. 09. 191( 3), authorizes a trial court to completely preclude


a parent' s residential time if certain factors exist. The trial court found three of these factors

present   in this   case: (   1) a long -term emotional or physical impairment that interferes with the

performance of       parenting functions     as   defined in RCW 26. 09. 004, ( 2) the absence or substantial


impairment of emotional ties between the parent and child, and ( 3) the abusive use of conflict by



                                                           3
No. 44068 -7 -I1


the parent that has damaged the children' s psychological development. Based on these findings,

the trial court had discretionary authority under RCW 26. 09. 191( 3) to enter an order that

effectively eliminated Robert' s residential time with the children.

         However, the trial court' s exercise of discretion to essentially eliminate a parent' s

residential time must be exercised in the context of other important considerations. First,

the legislature has expressed a policy favoring maintaining relationships between parents

and children when setting a residential schedule in a dissolution action. RCW 26. 09.002

provides      that "[   t] he state recognizes the fundamental importance of the parent -child


relationship to the welfare of the child, and that the relationship between the child and

each parent should         be fostered     unless   inconsistent   with   the   child' s   best interests." Further,


RCW 26. 09. 187( 3)( a) provides that the trial court should make residential provisions for

children that " encourage each parent to maintain a loving, stable, and nurturing

relationship     with     the   child."   The trial court must consider these policy directives before

effectively eliminating residential time based solely on RCW 26. 09. 191( 3) factors.

             Second, parents have a fundamental liberty interest in the " care, custody and management

of   their   children."    In   re   Dependency     of J.H., 117 Wn.2d      460, 473, 815 P. 2d 1380 ( 1991). A trial


court also must consider this liberty interest before effectively eliminating a parent' s residential

time with his or her children based solely on the RCW 26.09. 191( 3) factors.

             Because of these compelling interests in protecting a parent' s residential time with his or

her children, we hold that ( 1) an order allowing a child to decide whether to have any residential

time with the non -custodial parent based solely on the RCW 26. 09. 191( 3) factors should be

reserved for situations where the trial court articulates specific reasons for such an order and ( 2)




                                                              4
No. 44068 -7 -II



before allowing a child to decide whether to have any residential time with the non -custodial

parent based solely on the RCW 26.09. 191( 3) factors, the trial court must enter detailed findings

supporting and providing the basis for its decision.

        Here, the trial court' s only finding was that the children were " mature and intelligent."

The trial court also made a non -specific reference to the ages of the children, 15 and 12. But the

trial court did not explain why these children' s maturity, intelligence, and ages supported its

decision. The trial court also did not explain why the RCW 26. 09. 191( 3) factors supported

effectively eliminating Robert' s residential time. Finally, despite their age difference, the trial

court did not make specific findings regarding each child individually. The trial court' s minimal

statements on this issue were insufficient to support its decision to allow the children to decide

whether to have any residential time with Robert.

        We recognize that one of the children is now over the age of 18 and no longer is subject


to the parenting plan, and that the second child is now 16. In addition, over 18 months have

passed since the trial court entered its parenting plan and circumstances may have changed.

Accordingly, we remand this matter to the trial court for reconsideration of this residential time

issue and a determination of whether it is still appropriate to allow the remaining minor child to

decide whether to have any residential time with Robert. If the trial court again allows the child

to decide whether to have residential time with Robert, it must enter appropriate findings

supporting and providing a basis for that determination.

        We consider Robert' s remaining arguments in the unpublished portion of this opinion.

We affirm in part, reverse in part, and remand for further proceedings consistent with this

opinion.
No. 44068 -741



           A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.

           In the unpublished portion of this opinion, we hold that

      1) Robert consented to jurisdiction over the division of his military pension under the

Uniform Services Former Spouses' Protection Act (USFSPA), 10 U. S. C. § 1408( c)( 1),               because


he admitted jurisdiction in his answer to the dissolution petition and requested affirmative relief;

      2) any   violation of   the stay   entered under   the Servicemembers Civil Relief Act (SCRA), 50


U. S. C.   App. §   522, was harmless error;


      3) the trial court improperly found that Robert' s acts of financial and emotional exploitation

were   domestic     violence   for   purposes of   RCW 26. 09. 191( 2),   but the record supported a finding

that Robert engaged in domestic violence;


      4) the trial court erred in failing to make the required findings to waive relocation notice
                                                 2;
requirements under         RCW 26. 09. 460( 4)


      5) the provision in the restraining order restricting Robert' s use of a firearm was proper

under      18 U.S. C. §   922( g)( 8) because he was subject to an order restraining him from harassing,

stalking, or threatening an intimate partner;

      6) the trial court inappropriately relied on evidence of lost profits from a failed property

transaction when awarding Kara a lien, but correctly determined that Kara had a community

interest in the parties' real property on which the lien was placed;



2
    We do not address other restrictions in the parenting plan because Robert failed to assign error
to those portions of the plan.



                                                           6
No. 44068 -7 -II



    7) requiring Robert to name Kara as the beneficiary of the survivor benefit plan and to

maintain life insurance did not amount to a double recovery of retirement benefits because the

life insurance also secured child support and other community obligations;

    8) the trial court did not abuse its discretion in not considering Robert' s cost of selling

property and requiring him to pay Kara' s separate credit card debt;

    9) sufficient evidence regarding the parties' needs and abilities to pay supported the trial

court' s maintenance award;



    10) the trial court erred in awarding Kara lifetime maintenance of $1. 00 per month as a

placeholder to retain jurisdiction; and


    11) the evidence supporting the trial court' s maintenance award regarding need and ability to

pay supports the trial court' s attorney fee award to Kara.

        We also award Kara her attorney fees on appeal.

                                       ADDITIONAL FACTS


        Robert was a member of the military and was stationed in multiple locations during the

marriage. Kara and the children frequently moved with him. The parties lived in Washington

for certain portions of this time.


Property Acquisition

        In 1995,. Kara and Robert agreed to purchase property in Montana from Robert' s

grandparents and began making monthly payments. After Robert' s grandparents died in 2005,

the parties realized that the property was part of Robert' s family trust and the parties sued the

trust to gain access to the property. The result was that the trust was dissolved; the trust

property, including the property the parties had supposedly purchased, was sold; the parties were



                                                   7
No. 44068 -7 -II



refunded the money they had paid for the property; and Robert received a payment for his share

of the trust.


        Using Robert' s payment from the trust and proceeds from the sale of a community

property home in Steilacoom, the parties purchased two parcels of property in Cheney,

Washington. One of the properties was secured by a mortgage that the parties paid with joint

earnings during the marriage. The parties completed an extensive remodel on the home on this

property, which they paid for through a home equity line of credit that they repaid out ofjoint

earnings. Although the parties rented out the other Cheney property, the rental income did not

cover the property' s expenses, and the uncovered expenses were paid out of community funds.

Kara performed physical labor on this rented property and managed the property.

        In 2008, the parties sold one of the Cheney properties and used the proceeds to purchase

property in Montana. The parties took out a mortgage on the Montana property and made the

payments out ofjoint earnings. The parties also paid all of the property' s expenses out ofjoint

earnings and made alterations and repairs to the property.

Dissolution Proceedings


        In 2010, while the parties and the children were living in Naples, Italy, the parties

decided to separate. Kara and the children planned to move to Tacoma in June, but they

returned to the United States in February because, according to Kara, Robert had been

emotionally abusing and exercising control over her and the children that had become

 unbearable."      Report   of   Proceedings ( RP)   at   35.   Before Kara was able to leave, Robert reported

all of her credit cards as stolen and took her passport. Kara said she was " basically being held

prisoner   there."   RP at 36.




                                                            8
No. 44068 -7 -I1



        On March 25, 2010, Kara petitioned for dissolution in Pierce County Superior Court. On

June 15, the trial court entered a temporary parenting plan under which the children would reside

with Kara but would spend every other weekend and every Wednesday with Robert when he

resided near the children. If Robert did not reside near the children, he would be entitled to

reasonable residential time with them upon giving two weeks' notice to Kara. The trial court

also entered orders for child support, maintenance, attorney fees, appointment of a guardian ad

litem, tax exemptions, and disposition of the Montana property.

        On September 10, Robert moved to vacate these June 15 orders. He made extensive

arguments challenging the orders, including a claim that the trial court did not have jurisdiction

over him under the USFSPA because he was on active military duty in Italy at the time the

orders were entered and was a resident of Montana. The trial court determined that it had

jurisdiction over the dissolution.

          In November, Robert was notified that he would be deployed to Afghanistan until August

2011.   On December 27, he moved to stay the dissolution proceedings under the SCRA because

his ability to defend the action was materially affected by his deployment. The trial court

granted   the   motion and ordered      that the   proceedings    be   stayed until. September      30, 2011. On


July 27, Robert moved to lift the stay because he had retained an attorney in the United States.

The trial court granted the motion and directed the clerk to issue a new case schedule.


Final Resolution


          The trial court concluded that it had jurisdiction over Robert because the parties lived in

Washington during their marriage and because Kara continued to reside in Washington. On

 September 14,     after a   bench trial, the trial   court   issued the   following   orders: (   1) a permanent




                                                              9
No. 44068 -7 -II



restraining      order against       Robert that    also prohibited    him from possessing   a   firearm, ( 2) a final


parenting       plan, ( 3)   a   final   order of child support, (   4) a decree of dissolution, and ( 5) findings of


fact and conclusions of law. The trial court ordered Robert to pay Kara' s costs and attorney fees,

totaling $30, 000. Robert appeals.

                                                          ANALYSIS


A.         JURISDICTION OVER MILITARY PENSION


           Robert argues that the trial court did not have jurisdiction over the division of his military

pension under         the Uniform Services Former Spouses' Protection Act (USFSPA), 10 U. S. C. §



1408( c)( 1),     because as of the date of dissolution he neither resided nor was domiciled in

Washington. We hold that Robert consented to jurisdiction in Washington, and therefore cannot

argue otherwise on appeal.



           1.      Statutory Framework

           When the underlying facts are undisputed, whether a trial court has jurisdiction is a

question of law, which we review de novo. Conom v. Snohomish County, 155 Wn.2d 154, 157,

118 P. 3d 344 ( 2005) ( subject matter jurisdiction); Lewis v. Bourn, 1-19 Wn.2d 667; 669, 835 P. 2d


221 ( 1992) ( personal jurisdiction). We review Robert' s jurisdictional challenge here under the


specific terms of the USFSPA because the federal statute generally preempts state rules

regarding jurisdiction when military pensions are concerned. U.S. CONST. art. VI, cl. 2; see also

In re Marriage ofBooker, 833 P. 2d 734, 739 ( Colo. 1992).

            The trial court' s authority to divide Robert' s military pension derives from the USFSPA.

In   re   Marriage of Peck, 82 Wn.              App.   809, 813 -14, 920 P. 2d 236 ( 1996). Under the USFSPA,


state courts may treat certain military retirement pay as community property subject to division



                                                                10
No. 44068 -7 -II



in dissolution    actions.     10 U. S. C. § 1408( c)( 1);   In re Marriage ofJennings, 138 Wn.2d 612, 622,

980 P. 2d 1248 ( 1999).        For military retirement pay to be before the court in a dissolution action,

state courts must obtain jurisdiction over military members in one of the ways enumerated in 10

U. S. C. § 1408( c)( 4). Under 10 U. S. C. § 1408( c)( 4), a trial court has jurisdiction over the


disposable     retired or retainer    pay   of a service member    by   reason of: "(   A) his residence, other


than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in

the territorial jurisdiction of the court, or ( C) his consent to the jurisdiction of the court."


        2.      Consent to Jurisdiction


        Kara argues that Robert consented to the court' s jurisdiction in Washington in his


response to her petition for dissolution. Robert argues that he did not consent to jurisdiction


because he objected to jurisdiction in his motion to vacate the trial court' s temporary parenting

plan and related orders. We agree with Kara that Robert consented to jurisdiction. .


        Consent to jurisdiction for the purposes of the USFSPA may be implied by a military

service member' s general appearance in court. Peck; 82 Wn. App. at 814. Even where the

service member has objected           to personal jurisdiction " `   he may waive the defense of lack of

jurisdiction    by   seeking   affirmative relief,   thereby invoking    the jurisdiction of the   court.' "   Peck,


82 Wn. App. at 814 ( quoting In re Marriage ofParks, 48 Wn. App. 166, 170, 737 P. 2d 1316
           3
 1987)).


           Here, in paragraph 1. 7 of Kara' s petition for dissolution, she alleged that the trial court


had jurisdiction over Robert because she and Robert " lived in Washington during their marriage

3 In Peck, we found no consent when the service member asserted in his answer that the court did
not have jurisdiction and continued to contest jurisdiction in later pleadings. 82 Wn. App. at

814 -15.
No. 44068 -7 -II



and [ she] continues   to   reside ...   in this   state."   CP at 2. In his June 9, 2010 response to the


petition, Robert admitted this assertion in paragraph 1. 7. He also requested affirmative relief —


that the trial court enter a dissolution decree, approve his parenting plan, determine support for

the children under the child support schedule, dispose of his property and liabilities according to

his proposal, and award him tax exemptions for the children. And Robert did not contest

jurisdiction until over five months after Kara filed the petition for dissolution and almost three

months after the trial court entered orders unfavorable to him. These actions constitute Robert' s


consent to jurisdiction in the Washington courts.


         Robert argues that he did not consent to jurisdiction because he directed his attorney to

contest jurisdiction and his attorney failed to comply with his request. But regardless of whether

this assertion is true, unlike in Peck Robert also requested multiple forms of affirmative relief in


his answer. He then failed to bring his jurisdictional challenge to the trial court' s attention until

three months after the trial court entered orders unfavorable to him. That Robert later claimed


his attorney acted contrary to his wishes in failing to object to jurisdiction in his answer does not

negate Robert' s demonstrating consentto jurisdiction in Washington by requesting affirmative

relief in the dissolution action and waiting until the court had entered substantive orders before
                            4
contesting jurisdiction.


B.        STAY UNDER THE SCRA


          Robert argues that the trial court violated his due process rights when it granted Kara' s


motion to limit his parental rights during a stay under the Servicemembers Civil Relief Act

4
    Kara also argues that the trial court had jurisdiction over Robert under Washington' s long -arm
statute, RCW 4. 28. 185. Because we hold that Robert consented to jurisdiction, we need not
address this issue. We also need not address whether Washington was Robert' s residence or
domicile under the USFSPA.



                                                             12
No. 44068 -7 -II



 SCRA), 50 U. S. C.      App. § 522. We hold that to the extent the trial court did violate the stay, any

violation was harmless.


         Under the SCRA,          a service member     may      obtain a   stay "[   alt any stage before final

judgment in    a civil action or      proceeding."    50 U.S. C.      App. §   522( b)( 1).    The purpose of the


SCRA " `    is to suspend enforcement of civil liabilities of persons in the military service of the

United States in order to enable such persons to devote their entire energy to the defense needs of

the Nation.' "       In re Marriage ofHerridge, 169 Wn. App. 290, 297, 279 P. 3d 956 ( 2012)

 quoting Engstrom        v.   First Nat' l Bank of Eagle Lake, 47 F. 3d 1459, 1462 ( 5th Cir. 1995));                see



also   50 U. S. C.   App. §    502( 2) (   purpose of SCRA is " to provide for the temporary suspension of

judicial and administrative proceedings and transactions that may adversely affect the civil rights

of servicemembers        during    their military   service ").      The provisions of the SCRA are to be


liberally   construed.    Herridge, 169 Wn.         App.   at   297. But the SCRA " ` is not to be used as a


sword against persons with           legitimate   claims,' and a court must give ` equitable consideration of




the rights of parties to the end that their respective interests may be properly conserved.' "

Herridg e , 169 Wh. Ap. -.- 197 ( quoting Engstrom,
                      p at                                              F.3d at 1462)


          Here, Robert moved for a stay of proceedings under the SCRA before he was deployed to

Afghanistan. On January 6, 2011, the trial court granted the motion and ordered that proceedings

be   stayed until    September 30, 2011.         But on March 31, Kara moved for an order requiring Robert

to undergo a mental health evaluation and requiring any residential time with Robert to take

place in Pierce County until the mental health evaluation had been completed. On April 15, the

trial court continued the motion for a mental health evaluation until Robert was available or

when    the stay was lifted,      whichever was sooner.          The trial   court   further   ruled, " Prior   to Robert . .




                                                                13
No. 44068 -7 -II



    exercising any   residential     time   with   the   children of   this   marriage, [   Kara]' s motion for a mental


health   evaluation shall     be heard."      CP at 151.


          Robert claims that the trial court violated the stay because it restricted his residential time

with the children pending the hearing on whether a mental health evaluation should be ordered.

However, Robert fails to show how this restriction on his residential time prejudiced him. The

trial court restricted Robert' s residential time with the children on April 15 pending his

availability for a hearing on the necessity of a mental health evaluation. But Robert was out of

the country at that time. And even though Robert did not have a mental health evaluation, when

Robert returned to Washington the trial court awarded him residential time with the children for


four days beginning on June 24. The court further ordered that if the visits went well, Robert

would    have   residential   time    with   the children    in Montana from June 28             until   July 8,   2011. These


visits took place. Robert does not allege that he planned or was available to see the children


between the date the trial court restricted residential time, April 15, and the date his residential

time   was restored,      June 23.    Therefore, Robert has failed to show how the trial court' s limitation


on his residential time with the children between April 15 and June 23, pending the mental health

hearing, prejudiced him.

          We    reverse   only   when an error prejudices a         party. Saleemi        v.   Doctor' s Assocs., Inc., 176


Wn.2d 368, 380, 292 P. 3d 108 ( 2013).               Because the trial court' s temporary departure from the
                                                                                                                               5
parenting   plan   during    the stay did     not prejudice     Robert,       we   hold that any   error was       harmless.




5
 Robert also argues that after the stay was lifted, he had " extreme difficulty" responding to
motions to re- determine temporary orders, to compel discovery, and to gain access to property.
But Robert fails to show how the trial court violated the SCRA by allowing the case to proceed
after the stay was lifted.


                                                               14
No. 44068 -7 -II



C.      PARENTING PLAN


        Robert challenges multiple provisions in the parenting plan, arguing that ( 1) there was

insufficient       evidence       supporting   restrictions on   his   residential   time   under   RCW 26. 09. 191( 2), ( 2)


the trial court abused its discretion when it allowed Kara to relocate with the children and waived

notice requirements under RCW 26. 09. 430 -.460 and RCW 26. 09. 520, and ( 3) the trial court


abused its discretion when it restricted the children' s contact with Robert' s family members and

restricted him from possessing pornographic material within the children' s sight.

            1.     Standard of Review


        As noted above, we review a trial court' s parenting plan for abuse of discretion. Katare

II, 175 Wn.2d            at   35. We review findings of fact for substantial evidence, which is evidence


sufficient to persuade a fair -
                              minded person of the finding' s truth. Katare II, 175 Wn.2d at 35.

We do not retry the facts on appeal. In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P. 2d

1227 ( 1991).        Therefore, we do not review the trial court' s credibility determinations or weigh

evidence. In re Marriage ofMeredith, 148 Wn. App. 887, 891 n. 1, 201 P. 3d 1056 ( 2009).

Unchallenged findings of fact are verities on appeal In re Marriage ofFiorito, 112 Wn. App.

657, 665, 50 P. 3d 298 ( 2002).

            2.     Limitation on Residential Time under RCW 26. 09. 191


            Robert argues that the trial court abused its discretion when it limited his residential time

based   on       RCW 26. 09. 191.       We disagree.


                    a.        Legal Principles


            Decisions on residential provisions are based on the child' s best interests, as found at the

time   of   trial. RCW 26. 09. 187( 3)(          a);   In re Marriage ofLittlefield, 133 Wn.2d 39, 52, 940 P. 2d



                                                                 15
No. 44068 -7 -II


1362 ( 1997).      Because the trial court has a unique opportunity to observe the parties, we are

   extremely       reluctant   to disturb      child placement       dispositions.' "    In re Parentage ofSchroeder,

106 Wn.     App.    343, 349, 22 P. 3d 1280 ( 2001) (             quoting In re Marriage ofSchneider, 82 Wn. App.

471, 476, 918 P. 2d 543 ( 1996)).


          Generally, when creating a permanent parenting plan in a dissolution action, courts will

set a residential schedule for the children based on certain statutory considerations. See RCW

26. 09. 187( 3).    But the statute also provides certain factors that, if present, either impose a


mandatory       duty   on   the    court   to limit   residential   time ( RCW 26. 09. 191( 2)) or permit the trial


court   to do   so within     its discretion (RCW 26. 09. 191( 3)).            In re Marriage of Watson, 132 Wn.

App.    222, 232, 130 P. 3d 915 ( 2006). "[              A]ny limitations or restrictions imposed must be

reasonably      calculated     to   address     the identified harm." In       re Marriage of Katare ( Katare I), 125


Wn. App. 813, 826, 105 P. 3d 44 ( 2004).

          If the trial court finds that one of the parents has engaged in certain conduct specified in

RCW 26. 09. 191( 2)(         a),   the trial   court must   limit that    parent' s residential    time.    Watson, 132 Wn.


App.    at 231 -32;    see   also RCW 26. 09.187( 3).           Two of those limiting criteria are that the parent

has engaged in a history of acts of domestic violence as defined in RCW 26. 50. 010( 1) and

emotional abuse of a child. RCW 26. 09. 191( 2)( a).


          If the trial   court      finds the   existence of certain other       factors   under    RCW 26. 09. 191( 3), the


trial   court   may limit    or preclude        any   provision     in the parenting    plan   if the   court   finds that "[   a]




parent' s involvement or conduct may have an adverse effect on the child' s best interests."

 Watson, 132 Wn. App. at 232. Three of these factors are:

           b) A long - erm emotional or physical impairment which interferes with the
                        t
          parent' s performance of parenting functions as defined in RCW 26. 09. 004;


                                                                     16
No. 44068 -7 -II



          d) The absence or substantial impairment of emotional ties between the parent
         and   the      child; [ and]

          e) The abusive use of conflict by the parent which creates the danger of serious
         damage to the child' s psychological development.

RCW 26. 09. 191( 3).


                   b.      Finding of Domestic Violence

         The trial court concluded that Robert' s residential time with the children should be


limited under RCW 26. 09. 191( 2)( a) because he " engaged in acts of domestic violence by

financial    and emotional exploitation."             CP at 34. Robert argues that the trial court erred when it


defined financial and emotional exploitation as domestic violence because it does not appear in

the definition      of   domestic      violence   in RCW 26. 50. 010( 1).        We agree, but affirm the trial court' s


finding because there was other sufficient evidence of domestic violence.

         Whether financial and emotional exploitation falls under the definition of domestic


violence in RCW 26. 50. 010( 1) is a matter of statutory interpretation, a question of law that we

review de novo. Advanced Silicon Materials, LLC v. Grant County, 156 Wn.2d 84, 89, 124 P. 3d

294 ( 2005).       The primary goal of statutory interpretation is to ascertain and give effect to the

legislature'   s   intent.    Dep 't    of Ecology   v.   Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P. 3d 4


 2002). "[    I]f the statute' s meaning is plain on its face, then the court must give effect to that

plain   meaning         as an expression of       legislative intent."       Campbell & Gwinn, 146 Wn.2d at 9 - 10.


  A] n   unambiguous statute            is   not subject   to   judicial   construction."   Kilian v. Atkinson, 147


Wn.2d 16, 20, 50 P. 3d 638 ( 2002). "               A statute is ambiguous if it can be reasonably interpreted in

more than one way, but it is not ambiguous simply because different interpretations are

conceivable."           Kilian, 147 Wn.2d at 20 -21.




                                                                    17
No. 44068 -7 -II



          RCW 26. 50. 010( 1) defines " domestic                 violence" as "[   p] hysical harm, bodily injury,

assault, or the infliction of fear of imminent physical harm, bodily injury or assault, between

family    or   household     members."        RCW 26. 50. 010( 1) is not ambiguous and therefore its meaning

is to be derived from the plain language of the statute alone. Neilson ex rel Crump v. Blanchette,

149 Wn.        App.   111, 116, 201 P. 3d 1089 ( 2009). The plain language of this statute does not


include " financial        and emotional exploitation."            Moreover, there is no authority supporting such

a reading. Accordingly, the trial court erred when it determined that Robert had engaged in

domestic violence because he had engaged in financial and emotional exploitation.


          Even though the trial court erred in this regard, we can affirm a trial court' s ruling on any

basis supported by the record. In re Marriage ofRideout, 150 Wn.2d 337, 358, 77 P. 3d 1174

 2003).    Here, the record supports a finding that Robert engaged in domestic violence because he

inflicted " fear      of   imminent    physical      harm,   bodily injury   or assault."   RCW 26. 50. 010( 1).   Kara


testified that after Robert filed for divorce in 2006, he ran his truck into her moving van when

she was trying to move her things out of the house and he threatened to kill a man, and she had a

restraining order entered againsthim because of the incident. Kara also testified that during their

marriage Robert " made me pay for a mistake that I made in the marriage, and that included an all

night   interrogation."       RP at 208. In response to a question about whether Robert was an


intimidating      person,     Kara   responded, "      When someone is posturing over you, spitting in your

face, keeping you up all night long, throwing t[h] ings through windows, has weapons, is a ranger

trained in the military,        yes,   he'   s a   threatening   person,   intimidating person." RP at 207 -08.




                                                                   18
No. 44068 -7 -II



           In 2012, Robert was charged with felony harassment for allegedly hiring a hit man to kill

Kara6. Kara testified that after hearing that Robert had threatened to have her killed, she feared .

for her safety       and "   absolutely   was   in fear   of   my life." RP    at   202 -03.    She further testified, " I had


my concerns about what [ Robert] was going to do when he came here, based on his threats to me

via email,      saying I     would   pay. That    when    he    got   there, things   were     going to be different." RP at


203.   For two years during the parties' separation, Robert sent threatening communications to

Kara. Kara testified that "[          a] fter two years of hearing that I was going to pay when he returned,

he was returning the following month and I was very concerned, still am, about his state of mind

and what     he    will   do.     RP at 206..


           There is ample evidence in the record that Robert had engaged in a history of domestic

violence by inflicting fear of imminent physical harm, bodily injury, or assault. RCW

26. 50. 010( 1).      Nevertheless, the trial court made no findings regarding Robert' s infliction of fear

of imminent harm. In Katare I, Division One of this court ruled that the trial court must make


express     findings      under   RCW 26. 09. 191 in       order   to impose limitations in         a   parenting   plan.   125


Wn. App. at 826. However, our Supreme Court recently clarified that -he holding in Katare
                                                                    t

was that " restrictions entered in a parenting plan pursuant to RCW 26.09.191( 3) must be

supported by an express finding that the parent' s conduct is adverse to the best interest of the

child."    In   re   Marriage of Katare, 175 Wn.2d 23, 35, 283 P. 3d 546 ( 2012), cert. denied 133 S.


Ct. 889 ( Katare II), 175 Wn.2d            at   32 ( emphasis      added).    The court in Katare II further stated that


the court in Katare I remanded to the trial court to resolve an ambiguity created by the trial

court' s   finding     that   RCW 26. 09. 191( 3) did      not    apply.    175 Wn.2d at 32.




6 This harassment charge ultimately was dismissed.

                                                                   19
No. 44068 -7 -II



           Here, the trial court' s restriction on residential time due to domestic violence was a


limiting    factor     under   RCW 26. 09. 191( 2)(      a), not   RCW 26. 09. 191( 3).   And here, unlike in Katare


I, there is no ambiguity in the trial court' s ruling. The trial court found that Robert had a history

of domestic violence. That finding is supported by the record. Therefore, the rule in Katare I is

inapplicable here and does not change the rule that we may affirm on any basis supported by the

record.




           Although the trial court erred in ruling that financial and emotional exploitation

constituted domestic violence, we affirm the trial court' s finding of domestic violence based on

evidence that Robert inflicted fear of imminent physical harm, bodily injury, or assault.

                  c.     Emotional Abuse of a Child


           The trial court also stated that its decision to limit residential time was based on


emotional abuse of a child, which is another mandatory limiting factor under RCW 26. 09. 191

 2). The trial court found that Robert " has been abusive to his wife and children. He has bullied


and     interrogated them, resulting in their desire to have               no contact with     him." CP at 34. Robert


does not assign error to this funding. Accordingly, it is a verity on appeal. Fiorito, 112. Wh.

App. at 665.

           Because the trial court found that Robert emotionally abused the children, it was required

to impose limitations          on   his   residential   time   under    RCW 26. 09. 191( 2).    Accordingly, even if the

trial   court   erroneously defined " domestic            violence,"     any error the trial court made was harmless

because the trial court nevertheless was required to limit Robert' s residential time based on

emotional abuse of a child.




                                                                   20
No. 44068 -7 -II



                     d.     Factors under RCW 26. 09. 191( 3)


            The trial court concluded that Robert' s residential time could be limited because his


involvement with the children may have an adverse effect on their best interests based on the

existence of         the   following    factors   set   forth in RCW 26. 09. 191( 3): (   1) a long -erm emotional or
                                                                                                    t

physical impairment that interferes with the performance of parenting functions as defined in "

RCW 26. 09. 004, ( 2) the absence or substantial impairment of emotional ties between the parent


and child, and ( 3) the abusive use of conflict by the parent that has damaged the children' s

psychological development. Robert argues that these findings were unsupported, but he has

failed to assign error to these findings.


            Without including these challenges in his assignments of error, Robert' s challenges to

these   findings in his brief           are   insufficient. RAP 10. 3( g) ( " A separate assignment of error for


each finding of fact a party contends was improperly made must be included with reference to

the   finding by          number. ").   Therefore, we treat them as verities on appeal. Fiorito, 112 Wn. App.
            7
at   665.        These unchallenged findings support the trial court' s restrictions on residential time


under RCW 26..
             09. 191( 3).


                3.   Relocation Notice


                The trial court allowed Kara to relocate with the children without having to give Robert

the required notice under RCW 26. 09. 430 -.460 and RCW 26. 09. 520. Robert argues that the trial

court abused its discretion when it allowed Kara to relocate with the children and waived the




7 Regardless of Robert' s failure to assign error to the trial court' s findings, the record shows that
these findings were supported by substantial evidence. In addition, even if these findings were
erroneous, the trial court' s restriction of Robert' s residential time was mandated by the findings
of domestic violence and emotional abuse of a child.



                                                                   21
No. 44068 -7 -I1



notice requirements under RCW 26. 09.430 -.460 and RCW 26.09. 520 without making any

findings to support its ruling. We agree.

        RCW 26. 09. 520 provides that a party proposing to relocate with a child must provide

reasons for the intended relocation. There is a rebuttable presumption that the intended


relocation will be permitted, but the opposing party " may rebut the presumption by

demonstrating that the detrimental effect of the relocation outweighs the benefit of the change to

the child and the relocating person" based upon certain factors. RCW 26. 09. 520. The trial court

must consider each factor in RCW 26. 09. 520 and must either enter written findings on each


factor or make an oral ruling supported by substantial evidence on each factor. In re Marriage of

Horner, 151 Wn.2d 884, 896, 93 P. 3d 124 ( 2004). "[             T] he trial court has discretion to grant or


deny a relocation after considering the RCW 26.09. 520 relocation factors and the interests of the

children and   their   parents."   In re Marriage ofFahey, 164 Wn. App. 42, 56, 262 P. 3d 128

 2011), review denied, 173 Wn.2d 1019 ( 2012).


        Generally, the relocating party also must provide notice to the other parent of that party' s

intent to relocate. RCW 26. 09.430. However, a party may request an order waiving notice

requirements and the trial court will grant the motion if " court finds that the health or safety
                                                           the

of a person or a child would be unreasonably put at risk by notice or the disclosure of certain

information in the     notice."    RCW 26. 09. 460( 4).      Here, the trial court' s only finding supporting its

ruling that Kara did     not need   to   give   Robert   notice provided: "[   T] he present environment is


detrimental to [ Kara] and to [ the] parties' children. They will benefit from a fresh start in a new

community."     CP at 39. The trial court did not find that the " health or safety" of the children

would have been put at risk by providing notice or disclosing the location of the relocation to



                                                           22
No. 44068 -7 -II


Robert. RCW 26. 09. 460( 4).              Accordingly, we remand to the trial court to consider this factor

and make the required findings if it finds that waiver of notice was appropriate.

         4.     Other Restrictions on Residential Time


         Robert argues that the trial court abused its discretion when it restricted both parties from

allowing the children to spend time with their cousin, paternal grandmother, and paternal aunt,

and when it restricted him from possessing pornographic material within the children' s sight.

But Robert does not assign .error to these portions of the parenting plan. Accordingly, we need

not address     these issues.        RAP 10. 3( g) ( "    The appellate court will only review a claimed error

which is included in an assignment of error or clearly disclosed in the associated issue pertaining

thereto. ").


D.        RESTRAINING ORDER


          The trial court imposed a permanent restraining order against Robert because he " has

been abusive to his wife and children" and because Kara' s testimony established that she had a

 very   real   fear   of   future   acts of    domestic    violence."   CP at 22, 69. Robert argues that the trial


court abused its discretion when it entered the restraining order and that the trial court

improperly precluded him from owning firearms. We disagree.

          A trial court has broad discretion to grant a continuing restraining order where

appropriate     in    a   fin al decree   of   dissolution: "   In entering a decree of dissolution of marriage .. .

the   court shall ...       make provision        for any necessary continuing restraining      orders."   RCW


26. 09. 050( 1) (     emphasis added);          20 Kenneth W. Weber, WASHINGTON PRACTICE: FAMILY AND

 COMMUNITY PROPERTY LAW § 41. 3,                     at   524 ( 1997). Therefore, we review the trial court' s


 decision to issue a restraining order for abuse of discretion.



                                                                  23
No. 44068 -7 -II



        RCW 26. 09. 050( 1) allows the trial court to include in its restraining order " the restraint

provisions of a    domestic    violence protection order under chapter                26. 50 RCW." The trial court


also may include in its restraining order restrictions on firearm possession and use contained in
RCW 9. 41. 800. RCW 26. 09. 050( 1).           RCW 9. 41. 800 provides that a trial court may prohibit the

restrained party " from obtaining or possessing a firearm" if there is clear and convincing

evidence   that a party    has "[ u] sed, displayed, or threatened to use a firearm or other dangerous


weapon in a felony, or previously committed any offense that makes him or her ineligible to

possess a firearm under the provisions of RCW 9. 41. 040."


        Here, the trial court entered a restraining order against Robert under RCW 26. 09. 050( 1).

In its findings   and conclusions,     the trial court    stated: "    A continuing restraining order against the

husband is necessary. The court finds that [ Robert] has been abusive to his wife and children.

The   testimony    of   Kara ...   supports   her very   real   fear   of   future   acts of   domestic   violence."    CP at


69. The protection order also provided that if " parties are intimate partners as defined under
                                               the

federal law ...    the   restrained person    may   not possess a       firearm      or ammunition."       CP   at   23. This


provision is contained in the mandatory forms for restraining orders issued under chapter 26.09

RCW. See 22A Scott Horenstein WASHINGTON PRACTICE: FAMILY AND COMMUNITY PROPERTY

LAW HANDBOOK, WPF DR 04. 0500, at 287 ( 2013).


        Robert argues that the trial court violated his Second Amendment rights to keep and bear

arms when it entered a restraining order restricting him from possessing a firearm. He first

argues that there was no evidence of domestic violence supporting the order. However, as

discussed above, there was ample evidence in the record to establish that Robert engaged in




                                                            24
No. 44068 -7 -I1



domestic violence by inflicting fear of imminent physical harm, bodily injury, or assault. See

RCW 26. 50. 010( 1).


         Robert also argues that RCW 9. 41. 800 did not authorize a restriction on his possession of

firearms because there was no evidence that he used, displayed, or threatened to use a firearm in


the commission of a felony or that he committed an offense that made him ineligible to possess a

firearm under RCW 9. 41. 040. Robert is correct. However, this was not the basis for the trial

court' s imposition of a firearm restriction. Rather, the restriction was based on 18 U.S. C. §

922( g)( 8),   which makes possessing a firearm unlawful for a person subject to a court order that

 restrains such person         from   harassing,   stalking,   or   threatening    an   intimate         of such




person or child of such intimate partner or person, or engaging in other conduct that would place

an   intimate   partner   in   reasonable   fear   of   bodily injury to   the   partner or child."   The order here


prohibited Robert from " harassing or stalking" Kara, and Robert does not show why 18 U. S. C. §

922( g)( 8) does not apply to him. Accordingly, we hold that the trial court did not abuse its

discretion when it entered a restraining order preventing Robert from possessing a firearm.

E.       PROPERTY DISTRIBUTION


         The trial court awarded the Cheney and Montana properties to Robert but found that Kara

had a community interest in those properties and awarded her an equitable lien of $112, 000

against the Cheney property to compensate her for that interest. The trial court implied that the

lien included some amount for the parties' failed property transaction involving property owned

by Robert' s grandparents. The trial court also required that Robert maintain a life insurance

policy payable to Kara until he retired and that he name Kara as the beneficiary under his


8
    Former     spouses are "   intimate   partners" under      18 U. S. C. § 921( a)( 32).



                                                               25
No. 44068 -7 -II



survivor benefit plan for his military retirement. Robert challenges these provisions in the trial

court' s property distribution order as well as the fairness of the property distribution.

        We hold that the trial court abused its discretion when it imposed the lien in Kara' s favor

based in part on evidence of the projected lost profits from the parties' failed property

transaction. We reverse and remand to the trial court to vacate this lien, and to recalculate the


value of the lien against Robert' s property without considering projected lost profits from the

failed property transaction. We affirm on all other property distribution issues.

        1.         Legal Principles


         In a marriage dissolution proceeding, the trial court must `dispos[ e] of the property and

the liabilities of the parties, either community or separate, as shall appear just and equitable after

considering all    relevant   factors.' "   In re Marriage ofMuhammad, 153 Wn.2d 795, 803, 108 P. 3d

779 ( 2005) ( quoting RCW 26. 09. 080). Those factors include ( 1) the nature and extent of the


community property, ( 2) the       nature and extent of     the   separate   property, ( 3) the duration of the


marriage, and ( 4) the economic circumstances of each spouse at the time the property

distribution is to become effective. RCW 26. 09.080. These factors are not exclusive. In re

Marriage of Larson      and    Calhoun, 178 Wn.      App.   133, 138, 313 P. 3d 1228 ( 2013).       All property

is before the court for distribution. In re Marriage ofFarmer, 172 Wn.2d 616, 625, 259 P. 3d

256 ( 2011).


        The court has " broad discretion" to determine what is just and equitable based on
        the    circumstances of each case.         In re Marriage of Rockwell, 141 Wn. App. 235,
        242,     170 P. 3d 572 ( 2007). A just          and   equitable      division " does not require
        mathematical precision, but rather fairness, based upon a consideration of all the
        circumstances of the marriage, both past and present, and an evaluation of the
        future   needs of parties."         In re Marriage of Crosetto, 82 Wn. App. 545, 556, 918
        P. 2d 954 ( 1996). "    Fairness is attained by considering all circumstances of the
        marriage     and   by exercising discretion, not by utilizing inflexible rules." In re



                                                         26
No. 44068 -7 -II


         Marriage of Tower, 55 Wn.              App. 697,     700, 780 P. 2d 863 ( 1989). "             Just and
         equitable     distribution does not mean that the                   court must make           an   equal
         distribution."     In re Marriage of DewBerry, 115 Wn. App. 351, 366, 62 P. 3d 525
          2003). "    Under      appropriate    circumstances ... [        the trial court] need not award
         separate    property to its     owner."    In re Marriage of White, 105 Wn. App. 545, 549,
         20 P. 3d 481 ( 2001).


Larson, 178 Wn. App. at 138.

         Because the trial court is in the best position to decide issues of fairness, we review a trial

court' s property division made during a dissolution of marriage for manifest abuse of discretion.
Muhammad, 153 Wn.2d              at   803; Larson, 178 Wn.    App.    at   138. " `   A trial court abuses its


discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable

reasons.' "   Muhammad, 153 Wn.2d              at   803 ( quoting Littlefield, 133 Wn.2d        at   46 - 47). " Trial


court   decisions in dissolution        proceedings will seldom       be   changed on appeal."        In re Marriage of

Stenshoel, 72 Wn. App. 800, 803, 866 P. 2d 635 ( 1993).

         2.    Characterization of the Cheney and Montana Properties

         In exercising its discretion to distribute property in a marriage dissolution, the trial court

must characterize property as either separate or community. RCW 26. 09. 080; In re Marriage of
Brewer, 137 Wn.2d 756, 766, 976 P. 2d 102 ( 1999).               The law favors characterization of property

                                                                                its                           Brewer,
as   community property " unless there is clearly           no question of            separate character."




 137 Wn.2d at 766 - 67.


          Property acquired during marriage is presumed to be community property. RCW

26. 16. 010 -.030;   see   In   re   Marriage of Short, 125 Wn. 2d 865, 870, 890 P. 2d 12 ( 1995).               A party

asserting that an asset acquired during marriage is separate property must overcome the

community presumption by clear and convincing evidence. In re Marriage ofMarzetta, 129




                                                            27
No. 44068 -7 -II



Wn.   App.   607, 621, 120 P. 3d 75 ( 2005),     overruled on other grounds by In re Marriage of

McCausland, 159 Wn.2d 607, 152 P. 3d 1013 ( 2007).


        Property acquired during marriage by inheritance is separate property and property

acquired during marriage with traceable proceeds of separate property is separate property.

White, 105 Wn. App. at 550. There is a presumption that any increase in value of separate

property is also presumed to be separate property, but the presumption can be rebutted by

evidence that the increase is attributable to community funds or labor. In re Marriage ofElam,

97 Wn.2d 811, 816, 650 P. 2d 213 ( 1982).          Property that is " purchased with both community

funds and clearly traceable separate funds will be divided according to the contribution of each."

In re Marriage of Chumbley, 150 Wn.2d 1, 8, 74 P. 3d 129 ( 2003).

        The trial court determined that Kara had a community interest in the Cheney and

Montana properties because community resources had been used to purchase or improve them.

The trial   court stated   that "[   t] he community contributed funds, sweat equity and incurred

liabilities for those   properties."     CP at 20. Robert argues that the two properties were his


separate property because they were purchased using his separate property funds from the

dissolution of his family trust and there was no evidence that community efforts increased the

value of the properties. Robert' s assertion that the properties were his separate property is

without merit. There was evidence that the two Cheney properties were purchased with not only

the funds from the trust dissolution but also the funds received from the sale of the Steilacoom

property, a community property asset. Further, there was evidence that community funds were

used to pay the mortgage on one of the properties and that community efforts and funds were

used to improve both properties. Because community funds were used to purchase the properties



                                                        28
No. 44068 -7 -II



and because community efforts and funds were used to maintain the properties, we hold that

Kara had a community interest in these properties.

        Further, the proceeds from the Cheney property the parties sold were used to purchase the

Montana property. Because Kara had a community interest in the Cheney property, she had a

similar interest in the Montana property because it was purchased with proceeds from property in

which she had a community interest. In addition, the parties paid the mortgage and made

improvements to the Montana property with joint earnings. Accordingly, we hold that the trial

court did not abuse its discretion when it decided that Kara was entitled to a lien in some amount

on property awarded to Robert to account for.her community interest in properties that were

purchased, maintained, and financed in part with community funds.

        3.         Lien against Robert' s Property

        Robert argues that the trial court abused its discretion by imposing a $ 112, 000 lien

against property awarded to him in favor of Kara. He claims that in awarding Kara the lien, the

trial court improperly relied on evidence that involved lost profits on a failed property
               9
transaction.        We agree.


        In 1995, Kara and Robert agreed to purchase the Montana property from Robert' s

grandparents for $27, 000. The parties agreed to pay Robert' s grandparents $275 per month

based on the cost of Robert' s grandmother' s medication. In 2005, after Robert' s grandparents

died, the parties realized that the property was part of a trust and they sued the trust to gain

access to the property. The result was that the trust was dissolved; the trust property, including


 9 Robert argues that the failed transaction was the only identifiable basis for such a significant
 lien. But the trial     court   did   not   explicitly   state   that the $   112, 000 lien was based in part on the
 failed property transaction. Kara does not address this issue.

                                                                  29
No. 44068 -741



the property the parties had supposedly purchased, was sold; the parties were refunded the

 14, 350 they had paid for the property; and Robert received a payment for his portion of the

trust. Kara testified that she objected to dissolving the trust and losing the property because a

realtor in the area provided her with a list of similar properties that sold for between $ 85, 000 and

 130, 000. The trial court may have considered evidence of the failed property transaction in

determining the amount of the lien.

          Whether the trial court properly could consider the lost profit on this Montana real estate

transaction is controlled by In re Marriage ofKaseburg, 126 Wn. App. 546, 108 P. 3d 1278

 2005).    In Kaseburg, the parties in a dissolution action purchased a home and executed an

 850, 000 promissory note and deed of trust in favor of the husband' s parents in recognition of

loans they had     given      the   parties   in the   past.   126 Wn. App. at 549. After the parties filed for

dissolution but before trial, the husband' s parents foreclosed on the property. Kaseburg, 126

Wn. App. at 550. At trial, the wife contested the value of the promissory note, stating that it was

fraudulent and inflated, and requested a $ 500, 000 judgment against the husband for concealing

the value of the property. Kaseburg, 126 Wn :App. at 551 -52. The trial court determined that

the debt underlying the promissory note was actually $ 300, 000, not $850, 000, and determined

that the   wife   had   a $   150, 000 interest in the property.        Kaseburg,   126 Wn.   App.   at   555. We


reversed, holding that because the community' s interest in the property was " legally

extinguished in the foreclosure sale, the amount of the debt and the value of the real property

were not before the trial court for valuation or distribution in the dissolution proceeding."

Kaseburg, 126 Wn. App. at 559.




                                                                  30
No. 44068 -7 -II



         Applying Kaseburg here, it was improper for the trial court to award Kara a lien on

Robert' s property based on the projected value of the parties' failed real estate transaction. As in

Kaseburg, we hold that Kara' s opportunity to contest the resolution of her claim to the property

was during the 2005 litigation and that she lost that opportunity when the litigation was resolved.

See White, 105 Wn.          App.   at   549 ( " If one or both parties disposed of an asset before trial, the


court   simply has     no   ability to distribute that   asset at   trial. ").   Accordingly, we hold that the trial

court abused its discretion when it admitted and considered evidence of the lost value of the

incomplete real estate transaction.


         We   vacate    the $ 112, 000      lien because it was based in part on the trial court' s incorrect


reliance on the failed Montana property deal. We also direct the trial court to remove this lien

from the property records. Because it is unclear what portion (if any) of the lien related to the

failed property transaction and because the trial court also based its decision to award the lien on

the community nature of the properties and the community efforts used to finance and maintain

the properties, we remand to the trial court to recalculate the amount of Kara' s lien without

consideration of the projected lost profits from the failed Montana property deal.

         4.    Life Insurance Policy and Survivor Benefit Plan

         Robert argues that the trial court abused its discretion when it required him to maintain

both a life insurance policy of $400, 000 and to name Kara as a beneficiary under his survivor

benefit plan for his military retirement. We disagree.

          In In   re   Marriage of Donovan, 25 Wn.          App. 691,       697 -98, 612 P. 2d 387 ( 1980), the trial


court entered an award of child support secured by a lien on the husband' s estate. The trial court

 also ordered the husband to maintain a life insurance policy naming his children as primary



                                                             31
No. 44068 -7 -II



beneficiaries. Donovan, 25 Wn. App. at 698. Division One of this court held that the award was

inequitable because it         provided     his   children with a       double recovery   of child support —from       both


the   lien   against   the   estate and   the life insurance — should        the father die before they reached the

age of majority. Donovan, 25 Wn. App. at 698.

             Here, if the life insurance policy was solely to secure Kara' s interest in Robert' s

retirement benefits, then there might be an issue of double recovery because of the survivor

benefit plan. See Donovan, 25 Wn. App. at 698. But the trial court also stated that the purpose

of the life insurance policy was to pay Kara for any outstanding community obligations. These

obligations could include child support and any other unpaid obligations from the decree owing

to Kara in the event of Robert' s untimely death, which are not secured by any other source.

Accordingly, we hold that the trial court did not abuse its discretion when it ordered that Robert

name Kara on his survivor benefit plan and required him to maintain life insurance.

             5.   Fairness of Property Distribution

             Robert also argues that the trial court' s overall property distribution was inequitable

because it failed to consider the cost to him of selling his property to extinguish the lien and

because the trial court required him to pay the balance of a credit card held in Kara' s name with

debt she incurred after the parties separated. We disagree.


             First, Robert    argues     that because the only way         for him to   extinguish   the $   112, 000 lien


against him would be to sell his properties and because their sale will lead to " significant tax


liability," the trial court should have considered the cost of their sale when distributing the

parties' properties.         Br.   of   Appellant   at   40 -41.   In making this argument, Robert asks us first to

presume that the only way for him to extinguish the lien would be to sell the properties when



                                                                   32
No. 44068 -7 -II



there was no evidence that he would be otherwise unable to make payments from his income,

and second to reconsider the evidence before the trial court. Because we do not re -weigh the

evidence and because the trial court is in the best position to determine fairness in light of the

evidence before it, we decline to address Robert' s contention further. Larson, 178 Wn. App. at

138; Meredith, 148 Wn. App. at 891 n. 1.

        Second, Robert argues that the property distribution was unfair because the trial court

ordered him to pay the balance of a credit card in Kara' s name for debt she had incurred after the

couple had separated. When the parties separated, they had an American Express card in Kara' s

name with a balance of $8, 908. 60. By the date of trial, the balance on the card was $ 22,465. 00.

Because liabilities incurred after separation are presumed to be the separate debt of the incurring

spouse, Robert argues that the trial court abused its discretion when it ordered him to pay the

entire balance of the credit card. See Oil Heat Co. ofPort Angeles, Inc. v. Sweeney, 26 Wn. App.

351, 354, 613 P. 2d 169`( 1980).


        But the court is not required to make an equal distribution of assets and liabilities and

need not award separate debt to its owner. DewBerry, 115 Wn. App. at 366; White, 105 Wn.

App. at 549. The fact that one of the debts assigned to Robert may have been Kara' s separate

debt did not require the trial court to specifically assign that particular debt to her, and Robert

fails to show that it was not accounted for elsewhere in the property distribution. The trial court

had all of the parties' assets and liabilities before it, and we hold that it made an equitable

distribution of the property based on the facts of this case.




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F.       MAINTENANCE


         The trial court ordered that Robert pay spousal maintenance to Kara in the amount of

 1, 500 per month beginning on September 1, 2012, and $ 2, 400 per month beginning on July 1,

2013. The trial court ruled that maintenance would continue until Robert retired and Kara began

to   receive   her   share of   his   retirement, and at    that time   maintenance would    be   reduced   to $ 1. 00


per month for life and would not terminate upon Kara' s remarriage. Robert argues that the trial

court abused its discretion in its order awarding maintenance to Kara. We hold that the evidence

supported the maintenance award except for the award of $1. 00 per month for Kara' s life.

          1.     Legal Principles


          The trial court has statutory authority to order maintenance " in such amounts and for such

periods of time as the court deems just, without regard to misconduct" after taking into

consideration relevant          factors. RCW 26. 09. 090( 1);         In re Marriage ofDrlik, 121 Wn. App. 269,

276, 87 P. 3d 1192 ( 2004).            Maintenance is " a flexible tool to more nearly equalize the post -

dissolution standard of living of the parties, where the marriage is long term and the superior

earning    capacity     of one spouse      is   one of   the few   assets   of the community."   In re Marriage of

Sheffer, 60 Wn.        App.   51, 57, 802 P. 2d 817 ( 1990).          In awarding maintenance, the trial court' s

main concern must be the parties' economic situations after the dissolution. In re Marriage of

 Williams, 84 Wn. App. 263, 268, 927 P.2d 679 ( 1996).

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

of Bulicek, 59 Wn.        App.    630, 633, 800 P. 2d 394 ( 1990). A trial court abuses its discretion when


its decision is based on untenable grounds or reasons. In re Marriage ofFoley, 84 Wn. App.

 839, 845, 930 P. 2d 929 ( 1997). " An award of maintenance that is not based upon a fair




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consideration of      the statutory   factors    constitutes an abuse of     discretion."   Crosetto, 82 Wn. App.

at 558. However, the trial court is not required to make specific factual findings on all of the

factors. In    re   Marriage of Mansour, 126 Wn.          App.    1, 16, 106 P. 3d 768 ( 2004). Rather, the


statute merely requires the trial court to consider the listed factors. Mansour, 126 Wn. App. at

16. "[   T]he only limitation placed upon the trial court' s ability to award maintenance is that the

amount and      duration, considering      all relevant   factors, be just."    In re Marriage of Washburn, 101

Wn.2d 168, 178, 677 P. 2d 152 ( 1984).


          2.         Future Earning Capacity

          Robert argues that the trial court abused its discretion in setting the maintenance amount

because there was no evidence at trial regarding the parties' future earning capacities and

therefore the trial court' s award was speculative and not supported by the evidence. We

disagree.


          In setting the maintenance award, the trial court reasoned that Robert " will be in a

substantially better financial        position   than [ Kara]   after   the dissolution."   CP at 68. The trial court


further reasoned that Robert had earned a masters degree during the marriage and would have

good employment prospects after his military retirement. By contrast, the trial court found that

Kara had " limited and interrupted work experience and is not likely to catch up to [ Robert] in

earning    potential."   CP at 69. The trial court further noted that she had to leave jobs and follow

Robert during his military career.

          These findings are supported by the evidence. The court heard testimony on Kara' s work

history from which it could reasonably determine her likely future earning capacity. Kara has a

bachelor' s degree in physical education and has taken courses for a master' s degree in guidance




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counseling. She testified that she wanted to finish her degree but that her primary goal was to

obtain employment to support her children. She is not a certified teacher and is generally

eligible to work as a teacher in local school districts only in an emergency situation. Kara

worked as an   X-
                ray technician        when    the   parties were    first   married,   earning $ 10 per hour. She


also worked   for   an orthopedic surgeon       in   Gig   Harbor, earning approximately $ 12 per hour. She


worked at a   winery in Spokane, earning $ 9. 50           per   hour. She worked as a substitute teacher in


Italy, earning $95 per day. After the parties separated, Kara had a job at Fort Lewis as an

education counselor, earning $ 20 per hour. The company for which she worked as a counselor

lost its contract with Fort Lewis and Kara was laid off; but she was offered and accepted her

former   position with a new       company for $ 12. 75 per hour. In March 2012, Kara was laid off after


her employer stated that it had received information that Kara' s life and the lives of her children

were in immediate danger. Kara then received unemployment at $ 406 per week and was


receiving that amount at the time of trial, despite her efforts to find employment.

         The trial court also heard testimony regarding the numerous positions Robert held while

in the military    and   knew that his gross monthly income            at   the time of trial was $ 10, 930. 16.



Robert had a bachelor' s degree in business and had also obtained a masters degree in business

administration     during   the   marriage.   We hold that Robert' s challenge to the trial court' s findings


regarding the parties' future earning capacities fails because the trial court heard ample evidence

about the parties' education, work experience, and income.


         3.        Duration of Maintenance Award


         Robert argues that the trial court abused its discretion when it awarded Kara spousal

maintenance of $1. 00 per month for life once Robert retired. The trial court stated that it was




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making this award in order to preserve jurisdiction over the parties in the future. We hold that

the trial court abused its discretion in making a placeholder award simply to extend jurisdiction

over the parties.



             Division One of this court recently addressed a similar issue in In re Marriage of Valente,

     Wn.     App. _,    320 P. 3d 115 ( 2014). In Valente, the wife in a dissolution action received a


maintenance award to help with her future medical costs for multiple sclerosis and rheumatoid

arthritis.     320 P. 3d   at   116 -17. The trial      court awarded         her $ 10, 000 per month for seven years,


then $ 1, 000     per month until she           turned 72    years old,   then $ 100 per month until either the



husband'      s or wife' s   death   or   the   wife' s remarriage, whichever occurred               first. Valente, 320 P. 3d


at   117. The husband           challenged      the $ 1, 000   and $   100 per month maintenance awards, claiming

that   they   were     merely   a vehicle   for the     court   to   retain   jurisdiction   over   the   parties.   Valente, 320


P. 3d   at   118. The trial     court stated      that the   reason    for the $ 100 lifetime maintenance award was to


allow the court to revisit the award and would allow the wife to have an " ongoing maintenance

adjustment."         Valente, 320 P. 3.d at 118.


             The court noted that permanent maintenance awards generally are disfavored but that a

lifetime      award    may be    proper " `     when it is clear the party seeking maintenance will not be able

to   contribute    significantly to ...         her   own   livelihood.' "      Valente, 320 P. 3d at 117 ( quoting In re

Marriage of Mathews, 70 Wn.                 App.      116, 124, 853 P. 2d 462 ( 1993)).         The court then examined


two Washington cases dealing with lifetime maintenance awards based on anticipation of future

medical needs.          Valente, 320 P. 3d at 118 -19. Those cases found the awards to be an abuse of


discretion because they were conjectural and therefore lacked the finding of necessity required

for    maintenance awards.           Valente, 320 P. 3d at 118 -19.




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        Although the trial court in Valente found that the wife may incur future medical

expenses, it did not make any findings as to the likelihood or degree to which her condition

might worsen.      Valente, 320 P. 3d at 119. The court held that the trial court' s findings were


insufficient to establish a foundation for retaining jurisdiction and therefore it abused its

discretion in awarding the maintenance:

        A dissolution is     supposed       to finalize the       parties'   obligations    to   one another.      By
        reserving jurisdiction to modify maintenance for the duration of [ the wife]' s
        lifetime,   or   until   her   remarriage, [      the husband]' s obligations under the decree
        remain unsettled.   While maintenance is a flexible tool, there is no showing that
        the legislature intended to grant broad authority for open ended maintenance as
        urged by [ the wife].  Maintenance cannot be used as an insurance policy against
        potential hardship in the absence of specific findings regarding the certainty that
        those hardships are likely to occur.

Valente, 320 P. 3d at 119 -20 ( footnotes omitted).


        Here, the trial court awarded lifetime maintenance that terminated only upon the parties'

deaths. The trial court further stated that the award was non -
                                                              modifiable unless Robert did


 anything resulting in the loss of [Kara]' s retirement benefits outlined above at any time after

maintenance   is   reduced   to $ 1. 00   per month."       CP    at   81. The   court   explicitly   stated   that "[ t] he


amount   is intended to    allow   the    court   to   reserve   jurisdiction in the future."      CP   at   81. The award


was based on speculation that Robert might do something in the future to prevent Kara from

receiving his retirement benefits. This is the type of conjectural basis that Valente and the cases

on which it relied were rejected. The trial court here did not enter any specific findings

regarding Robert' s likelihood of preventing Kara from receiving benefits in the future.

Accordingly, we hold that it was an abuse of discretion to award lifetime spousal maintenance

for the purpose of retaining jurisdiction alone, and we vacate that portion of the maintenance

order. We remand for the trial court to consider the award of maintenance after Robert retires. If



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No. 44068 -7 -II


the trial court on remand wishes to impose lifetime maintenance, it must enter specific findings

supporting that decision.

G.      ATTORNEY FEES


         1.          Fees at Trial


        Robert argues that the trial court' s decision to award Kara $30, 000 in attorney fees was

an abuse of discretion based on Robert' s ability to pay and Kara' s need. We disagree.

        The trial court in a dissolution action may award reasonable attorney fees to one of the

parties after        considering the financial     resources of       both   parties.   RCW 26. 09. 140.   In determining

whether       it   should award   fees, "   the court considers the parties' relative need versus ability to

pay."   In     re   Marriage of Spreen, 107 Wn.           App.   341, 351, 28 P. 3d 769 ( 2001).      We review an


attorney fee award for abuse of discretion and will reverse if the decision is untenable or

manifestly          unreasonable.    Spreen, 107 Wn.        App.   at   351. "   In calculating a fee award a court

should consider: (         1) the factual   and   legal   questions     involved; ( 2)   the time necessary for

preparation and presentation of the case; and ( 3) the amount and character of the property

involved." In re Marriage             ofKnight, 75        Wn_App. 721, 730, 880 P. 2d 71 ( 1994). The trial court


must indicate on the record the method it used to calculate the award. Knight, 75 Wn: App. at

729.


         Here, the trial court found that Kara had the need for an award to cover her attorney fees

and that Robert had the ability to pay, based on the same reasons supporting its maintenance

award. It found that Robert would be in a better financial position than Kara after the dissolution

because he had earned a master' s degree during the marriage, was expecting a military

retirement, and had good employment prospects thereafter. By contrast, the trial court found that



                                                                 39
No. 44068 -7 -II


Kara had limited and interrupted work experience because she moved with Robert for his

military   career and   that   she was " not   likely   to   catch   up to him in earning     potential."     CP at 69.


As discussed above, the trial court had ample evidence before it supporting these findings.

        In his challenge to the fee award here, Robert argues that because Kara would be in a

better position following the dissolution based on the trial court' s property distribution, the trial

court abused its discretion when it ordered him to pay an additional $ 30, 000 for Kara' s attorney

fees. Because of this, Robert argues that the trial court " failed to determine the financial

resources of each     party    when   deciding   to impose      a substantial   fee    award against      Robert." Br. of


Appellant at 47. However, Robert fails to cite any authority requiring the trial court to

specifically consider the property distribution in the dissolution action when determining

financial need. Accordingly, we hold that the trial court did not abuse its discretion when it

determined that Robert had the ability to pay attorney fees and that Kara had a financial need.

        2.     Fees on Appeal


        Kara requests her fees on appeal under RAP 18. 1( a) and RCW 26. 09. 140. RCW


26. 09. 140 gives us discretion to " order a party to pay for the cost to the other party of

maintaining the      appeal and attorneys'       fees in     addition   to statutory   costs." "   In exercising our

discretion, we consider the issues' arguable merit on appeal and the parties' financial resources,


balancing    the   financial   need of   the requesting party against the        other    party'   s   ability to pay." In


re Marriage ofKim, 317 P. 3d 555, 567 ( 2014).

           Kara filed a financial declaration stating that her net monthly income is $ 2,417. 35 and her

total monthly expenses are $ 7, 019. 41.          Her financial declaration estimates Robert' s net monthly

income at $ 7, 433. 62.




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No. 44068 -7 -II



          Based on Kara' s financial declaration, it appears that she has a financial need and that

Robert has the ability to pay. Accordingly, we order Robert to pay Kara' s attorney fees on

appeal.



                                            CONCLUSION


          We remand to the trial court to consider whether the waiver of relocation notice

requirements was proper under RCW 26. 09. 460( 4) and to make the required findings, if

appropriate. We also reverse the trial court' s lien in Kara' s favor on property awarded to Robert

insofar as the lien amount relates to evidence of the failed 2005 Montana property deal, and we

remand for recalculation of the lien, if any, without consideration of this evidence. Finally, we

vacate the trial court' s order of $1. 00 per month in spousal maintenance and remand for

consideration of spousal maintenance for the period after Robert retires. We affirm on all other

issues.




We concur:




HUNT, P.




            N,




                                                    41
