                                                                           FILED 

                                                                         AUG. 20, 2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


IN THE MATTER OF THE MARRIAGE                 )
OF:                                           )        No. 32022-7-III
                                              )
DIANEL. WOOD                                  )
                                              )
                     Respondent,              )
                                              )         UNPUBLISHED OPINION
       and                                    )
                                              )
ZALE K. WOOD,                                 )
                                              )
                     Appellant.               )

      FEARING, J. -. Zale Wood assigns error to most rulings of the trial court in his

divorce action with Diane Wood, Zale's wife for forty-nine years. Since the trial court

applied the correct legal standards and properly exercised its discretion, we affirm the

judgment and decree of marital dissolution entered below.

                                          FACTS

      Diane and Zale Wood married on July 5, 1960 in Yakima. In 1980, the Woods

purchased a Yakima County home on seventeen acres, and they resided together in the

home until their separation. The couple begat and nurtured two now adult children.
No. 32022-7-111
In re the Marriage of Wood


       Throughout most of the marriage, Zale worked in construction as a member of the

Teamsters Union. He retired and began drawing a Teamsters pension in 2002, but still

continued to work on occasion. The Teamsters pension was a principal retirement asset.

Diane worked as a homemaker throughout the marriage. In 2009, Diane and Zale Wood

separated.

                                       PROCEDURE

       On April 7, 2009, Diane Wood filed a petition for legal separation. Diane later

converted the separation petition to a divorce petition. In her petition, Diane stated that

her monthly income was $577.40 in Socifll Security benefits and her monthly expenses

were $4,516.00. Diane listed Zale's monthly income as $8,932.10.

       On May 18,2009, the trial court issued temporary orders requiring Zale Wood to

pay Diane $2,221 per month in spousal maintenance and the two home mortgage

payments in the aggregate of $1,779 per month. The maintenance and mortgage

payments amounted to $4,000 per month. Diane continued to reside in the family home.

On January 4, 2010, the trial court lowered Zale's spousal maintenance obligation to

$1,190 per month, in light of his temporary unemployment. The trial court continued to

order Zale to pay the two mortgage payments, and the court ordered Zale to notifY Diane

once he started work again or garnered unemployment benefits.

       In April or May 2010, Zale Wood returned to work, but did not notifY Diane or the

court. On September 16,2010, Zale suffered serious injuries in a workplace accident.

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No. 32022-7-III
In re the Marriage of Wood


The injuries prevented Zale from working, and he began receiving worker compensation

benefits.

       On May 6,2011, Zale Wood moved the court for an order allowing him to retrieve

his personal property from the Woods' residence and holding Diane in contempt for

selling the martial community's animals, without accounting for the sales. In response,

Diane agreed that Zale could retrieve his personal property at any time. During oral

argument before this appeals court, Zale's counsel could not answer whether Zale has

garnered all of his personal property. Wash. Court of Appeals oral argument, In re the

Marriage of Wood, 32022-7-III (June 10,2015) at 7:40. At oral argument, Diane's

counsel stated that Zale collected all of his personal property. Wash. Court of Appeals

oral argument, In re the Marriage of Wood, 32022-7-III (June 10,2015) at 15:50).

       On May 12,2011, Diane Wood requested an increase in maintenance. On June 1,

2011, the trial court increased Zale Wood's spousal maintenance obligation to $1,750 per

month and continued the direction for Zale to pay the two mortgage payments. The court

ordered Diane to provide an accounting of the proceeds from any animal sales. The trial

court also ordered the parties to arrange a time for Zale to visit the Yakima property and

retrieve his possessions.

       On August 29, 2011, the trial court found Zale Wood in contempt for willful

violation of the June 1 maintenance order. The court awarded Diane Wood $1,650 in




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No. 32022-7-III
In re the Marriage of Wood


maintenance owed between June 1 and August 31; $1,300 in attorney fees due by

November 30, 2011; and $500 in attorney fees due by December 31, 2011.

      The marriage dissolution proceeded to trial on April 9, 2013. At trial, Diane

proposed raising Zale Wood's maintenance obligation to $2,996, but relieving him of the

mortgage payments. Diane filed a current benefits statement she received from the Social

Security Administration, stating that her monthly benefit, after Medicare deductions, was

$651, for a yearly total of$7,812.

      During the quarrelsome trial, the trial court declined to consider Zale or Diane

Wood's conduct regarding preservation of the financial wealth of the marital estate. The

court commented:

               A lot of times in these situations people want to talk about who spent
      the money during the divorce, where the money went during the divorce
      and the truth is it doesn't matter. We are where we are and the debt is what
      it is as of-at least as of the date of separation. Debt incurred after
      separation may be the responsibility of the person incurring that debt but
      for money that was badly invested, poorly spent, whatever, before the
      separation, that's part of marriage and so we're not going to spend a lot of
      time talking about who spent what during the marriage because it ends up
      not making any difference. Like I said, you are where you are.

Report of Proceedings (RP) (Apr. 9, 2013) at 10-11. In addition to Zale claiming Diane

squandered property, Diane argued that Zale lost money on gambling.

      On April 10,2013, the trial court issued an oral ruling awarding the Yakima home

and acreage to Zale Wood and ordering Diane Wood to cooperate in its sale; requiring

Zale to continue paying both mortgages; awarding Diane the personal property in the

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No. 32022-7-III
In re the Marriage of Wood


house, except for Zale's clothes, tools, stock truck, and tractor; and granting the divorce.

The trial court further ruled:

               I'm going to equalize the income. Yes, the L&I is Mr. Wood's
       separate property. But when I'm considering how to divide things, I'm
       considering ... what's the ... relative financial condition of the parties and
       so on and this L&I ... is designed as a replacement for income that he
       would have been getting and so ... Ijust factor that in. So, basically it's
       going to be-she gets her Social Security. He gets his L&I and then the
       various pension payments and so on would be divided so that net they come
       out equal in terms of what their monthly income is. Then if ... there's a
       change in the L&I, either up or down, that would by agreement of the
       parties, would be considered grounds for modification and so I'm ordering
       that when there's a determination made on the future of that L&I, if there's
       any change to it, then that can be brought back to Court if you can't agree
       on how it should be changed. You can bring it back to Court for
       modification of the maintenance.

RP (Apr. 102013) at 169. The division of the parties' combined income would begin on

April 15, 2013. Zale Wood would pay $1,750 in maintenance payments per month until

the couple's property sold.

       On May 22,2013, Diane Wood moved the court to hold Zale in contempt for

failing to comply with the June 1,2011 maintenance order; the August 29,2011 contempt

order; and the April 10,2013 trial oral ruling. On May 31, 2013, the court held Zale in

contempt for making untimely and incomplete maintenance payments. The court ordered

him to pay $300 in back maintenance and $250 in attorney fees. Nevertheless, the trial

court denied Diane's request to hold Zale in contempt for unpaid maintenance payments

equivalent to her share of his pensions, noting that Diane needed to determine whether


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No. 32022-7-111
In re the Marriage of Wood


she was entitled to more social security benefits before the court could finalize Zale's

maintenance obligation.

       On July 30, 2013, Diane Wood noted a hearing for August 9 to present proposed

findings of fact and conclusions of law, and a decree of dissolution. Diane proposed a

judgment against Zale for $7,986 in unpaid maintenance between February 1,2013 and

July 31, 2013. She sought future maintenance in the sum of $4,50 1 monthly and an

award of reasonable attorney fees and costs. The findings and conclusions listed Zale's

worker compensation payments as the couple's community property. On August 8, 2013,

the day before the hearing, Zale Wood filed an objection to the amount of maintenance in

the proposed findings, Diane Wood's request for attorney fees, and to Diane's inclusion

of her separate credit cards as community liabilities.

       On August 9, 2013, the court conducted a hearing to enter findings of fact,

conclusions of law, and a decree of dissolution. Zale Wood informed the trial court that

the Yakima property sold with a net profit of approximately $8,000. Diane stated that

she contacted the social security administration, and it informed her that she was entitled

to no additional benefits. The parties agreed to reduce Zale's maintenance obligation if

Diane incurred more social security benefits in the future. Zale continued to object to the

amount of maintenance proposed by Diane, and he argued that the maintenance

calculation did not reflect a reduction in his worker compensation benefits. The trial

court expressed frustration with the parties' failure to perform arithmetic calculations,

                                             6

No.3 2022-7-III
In re the Marriage of Wood


and he ordered them to cooperate to revise the final orders to accurately reflect Zale's

current monthly income from pensions and benefits.

       Two weeks later, Diane Wood rescheduled entry of the final decree of dissolution,

and findings and conclusions for September 18,2013. Diane mailed a copy of her

proposed order to Zale Wood's attorney on August 21,2013, before she rescheduled a

hearing. The second version of the proposed findings still listed Zale's worker

compensation benefits as community property. The second proposed decree divided the

net proceeds from the sale of the house between the parties, awarded Diane $5,630 for

back maintenance, and granted Diane $4,094 in future monthly maintenance. The

proposed decree directed that future maintenance be reduced proportionate to the amount

of payment Diane monthly receives from qualified domestic relations orders on Zale's

pensions.

       On September 3,2013, Zale Wood's attorney withdrew. On September 18,2013,

the day of the second hearing for entry of the final decree, Zale moved to continue the

hearing because he had yet to replace his lawyer. The trial court denied the motion to

continue. Zale argued, without counsel, the merits of the entry of the findings and

conclusions and contended that the facts did not support the trial court's oral ruling. Zale

objected to the amount of maintenance that the trial court ordered him to pay. At the

close of the September 18 hearing, the trial court entered the findings of fact, conclusions

of law, and divorce decree as proposed by Diane.

                                             7

No. 32022-7-II1
In re the Marriage of Wood


       Zale Wood obtained new counsel on September 23, 2013. On September 30,

2013, Zale moved for reconsideration, which motion the trial court denied.

                                  LAW AND ANALYSIS

       On appeal, Zale Wood contends: (1) the trial court abused its discretion in denying

Zale's motion to continue the September 18,2013 presentment hearing, (2) the trial court

violated article IV, section 20 of the Washington Constitution and RCW 2.08.240 by

failing to provide Zale a final decision within ninety days of the trial, (3) the trial court

abused its discretion in denying Zale a court order to retrieve personal property from the

Woods' former residence, (4) the trial court abused its discretion by excluding testimony

at trial regarding the parties' contributions and misconduct during their forty-nine year

marriage, (5) the trial court erred in taking into consideration Zale's monthly social

security and worker compensation disability benefits when calculating Diane's spousal

maintenance award, (6) the trial court abused its discretion under RCW 26.09.090 in

awarding spousal maintenance, and (7) the trial court abused its discretion under RCW

26.09.080 in its division of the parties' assets and liabilities. We address the contentions

in such order.

       Issue 1: Whether the trial court abused its discretion in denying Zale Wood's

motion to continue the September 18,2013 presentment hearing?

       Answer 1: No.

       We first address two purported procedural errors assigned by Zale Wood. Zale

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No. 32022-7-III
In re the Marriage of Wood


. argues that the trial court erred in denying his motion to continue the September 18, 2013

hearing, after his attorney withdrew on September 3,2013. Zale argues that, even though

Diane Wood complied with CR 52(b)'s requirement of giving lO-days' notice of entry of

final orders to the opposing party, he lacked time to review the findings of fact and

conclusions of law due to his residence in Puyallup and his attorney's withdrawal. Zale

asserts prejudice as a result of the trial court's denial of his motion to continue the

presentment hearing until he could hire another attorney. Diane responds that Zale's

motion for a continuance was untimely and meritiess, and she observes that the trial court

gave Zale the opportunity to file a motion for reconsideration to correct any error in the

findings of fact, conclusions of law, or dissolution decree.

       This court reviews a trial court's denial of a motion for a continuance for manifest

abuse of discretion. Molsness v. City of Walla Walla, 84 Wn. App. 393,400,928 P.2d

1108 (1996). A trial court manifestly abuses its discretion if no reasonable person would

take the view adopted by the court. Eagle Pac. Ins. Co. v. Christensen Motor Yacht

Corp., 85 Wn. App. 695, 709, 934 P.2d 715 (1997), aff'd, 135 Wn.2d 894, 959 P.2d 1052

(1998).

       We hold that the trial court below did not abuse its discretion in denying Zale

Wood's motion for a continuance. Although his attorney's withdrawal created

inconvenience, Diane Wood provided Zale ample notice of presenting the final orders to

the trial court. During the presentment hearing, Zale did not argue that orders prepared

                                              9

No. 32022-7-III
In re the Marriage of Wood


by Diane failed to reflect the trial court's oral rulings or that Zale needed an attorney to

draft a correct version of the orders to mirror the trial court's rulings. Zale instead

continued his ongoing objection to the amount of maintenance the trial court ordered and

the trial court's division of property. Thus, Zale was not prejudiced by the trial court's

denial of his motion for a continuance, and we find no abuse of discretion in denying the

motion to continue.

       Issue 2: Whether the trial court violated article IV, section 20 ofthe Washington

Constitution and RCW 2.08.240 by failing to issue afinal decision within 90 days?

       Answer 2: No.

       Zale Wood next contends that the trial court violated article IV, section 20 of

Washington's Constitution, and RCW 2.08.240 by deferring, during its April lO, 2013

oral ruling, his duty to value assets and liabilities until a later date. Zale argues that the

intervening five months between the trial court's oral ruling and the entry of written

findings of fact, conclusions of law, and the decree of dissolution resulted in Diane

Wood, not the court, deciding the material facts and issues in the case favorable to her.

He complains that the trial court failed to assign value to the family residence, household

goods, personal property, or liabilities of the parties, which failure misled him to

conclude his divorce was not final.

       Diane Wood responds that the parties understood the trial court's oral ruling as

shown by Zale's listing and selling the Yakima property prior to entry of the final decree

                                               lO
No. 32022-7-III
In re the Marriage   0/ Wood

of dissolution and in compliance with the oral ruling. She maintains that the only dispute

unresolved after trial was whether she might be eligible for an increase in social security

benefits. Diane observes that Zale never objected to the trial court's direction that the

parties sell their home and gather more information about Diane's social security benefits

before presenting final orders.

       Article IV, section 20 of Washington's Constitution provides, in relevant part:

"Every cause submitted to a judge of a superior court for his decision shall be decided by

him within ninety days from the submission thereof." RCW 2.08.240 repeats this

command.

       Zale Wood may argue that the trial court's failure to enter a final order within

ninety days of its oral ruling in April 2013 automatically voids the decree of dissolution.

The law is to the contrary. The superior court is a court of general jurisdiction, and

nothing in the constitutional provision lessens that jurisdiction or otherwise forbids a

judgment after the expiration ofthe ninety-day period. State v. Regan, 76 Wn.2d 331,

341,457 P.2d 1016 (1969); State v. Dooly, 14 Wn.2d 459,467, 128 P.2d 486 (1942).

The mere fact that the judgment was not rendered within ninety days does not of itself

constitute error on which the judgment may be reversed. Moylan v. Moylan, 49 Wash.

341, 344, 95 P. 271 (1908). Reviewing courts are even less inclined to reverse a tardy

judgment if the trial court makes an oral ruling at the close of trial. See W. Philadelphia

Title & Trust Co. v. City o/Olympia, 19 Wash. 150, 155,52 P. 1015 (1898).

                                             11 

No. 32022-7-111
In re the Marriage o/Wood


       Even assuming violation of the constitutional deadline for decision voids a ruling,

the trial court does not violate the rule if the parties fail to timely present orders or if the

trial court seeks additional information from the parties. An old, but controlling decision,

is West Philadelphia Title & Trust, 19 Wash. at 151-52, a commercial paper case. W.J.

Casebeer sought to enforce warrants against the City of Olympia and paid to him by a

company contracted by the city to grade and improve its streets. The trial court made an

oral ruling in favor of the city on July 3,1891, but did not enter findings of fact and

conclusions of law until January 23, 1892. Casebeer sought to have the judgment vacated

on appeal on the basis that the trial court failed to file the findings and conclusions within

ninety days as provided in the Washington Constitution. Our Supreme Court disagreed,

while noting that the trial court made an oral ruling at the close of trial that could have

been reduced to judgment at any time. W. Philadelphia Title & Trust, 19 Wash. at 155.

The language of the constitutional provision has not changed since the state constitution's

adoption in 1889.

       lale Wood's trial court issued an oral ruling at the close of the Woods' marital

dissolution trial, and the court entered final findings and conclusions approximately five

months later. The trial court was willing to sign findings of fact, conclusions of law, and

a final order within weeks, if not days, of its April oral ruling. The parties dallied in

obtaining important information needed to finalize the dissolution. In the meantime, lale

violated court orders necessitating contempt motions. lale Wood caused much of the

                                               12 

No. 32022-7-III
In re the Marriage of Wood


delay. Zale objected to Diane's first attempt to present final orders in August 20l3. He

then tried to delay again by moving for a continuance on the day of the second

presentment hearing. Zale cannot now, on appeal, claim an error to which he himself

contributed, and in fact seemed to endorse. See State v. Momah, 167 Wn.2d 140, 153,

217 P.3d 321 (2009). The trial court's delay in entering findings of fact and conclusions

of law do not warrant reversal of the written orders.

       Issue 3: Whether the trial court abused its discretion in denying Zale Wood a

court order to retrieve personal property from the Woods' former residence?

       Answer 3: We refuse to address this assignment oferror since Zale Wood

provided no argument in his appeal brief

       Zale Wood assigns error to the trial court's denial of his request for a court order

to retrieve personal property from the Woods' former residence. Nevertheless, Zale

presents no argument in support of this assignment of error. RAP 10.3(a)(6) provides

that an appellate brief should contain "argument in support of the issues presented for

review, together with citations to legal authority and references to relevant parts of the

record." Assignments of error not argued or further referred to in a brief or orally are

treated as abandoned by an appellant. Talps v. Arreola, 83 Wn.2d 655,657,521 P.2d

206 (1974).

       We note that the trial court granted Zale Wood possession of his personal

property. If he has not garnered the possessions due to the fault of Diane, he remains free

                                             l3


                                                                                              I
No. 32022-7-III
In re the Marriage of Wood


to enforce the order.

       Issue 4: Whether the trial court abused its discretion by excluding testimony

regarding the parties' contributions and misconduct during their forty-nine year

marriage?

       Answer 4: No.

       Zale Wood contends the trial court abused its discretion by excluding evidence of

the Woods' respective contributions to the marital estate and each party's conduct in

preserving or wasting community assets. A trial court may consider gross fiscal

improvidence, the squandering of marital assets, or the deliberate and unnecessary

incurring of tax liabilities in dividing the assets and liabilities of a marital estate. In re

Marriage ofSteadman, 63 Wn. App. 523, 528, 821 P.2d 59 (1991). Stated differently,

the trial court has discretion to consider whose negatively productive conduct depleted

the couple's assets and to apportion a higher debt load or fewer assets to the wasteful

marital partner. In re Marriage of Williams, 84 Wn. App. 263, 270-71, 927 P.2d 679

(1996). Because the trial court has discretion, the trial court may ignore any waste of

assets. In Marriage of Williams, the trial court ignored, when distributing marital

property, the wife's squandering of$12,000 through gambling debts.

       The Wood trial court did not consider the parties' financial behavior in dividing

the marital estate. The trial court encountered enough difficulty preventing the parties

from arguing with each other in open court about whether one slept with someone else or

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No. 32022-7-III
In re the Marriage of Wood


lied. In a contentious trial, the court did not abuse its discretion by preventing the

proceeding from degenerating into bickering about waste of the couple's assets.

       If the trial court wished to consider the parties' financial conduct, the trial court

could have awarded Diane more because ofZale's purported gambling. Also, if the

couple's history was such that Zale Wood contributed to the financial success of the two

and Diane squandered financial assets, this history could harm Zale in the end. Diane's

inability to handle money could lead the judge to award her a higher sum so that her

needs are met despite her waste. Thus, Zale should be happy that the trial court excluded

evidence of waste.

       A principal factor for the trial court to consider when dividing marital assets is the

economic circumstances of each spouse at the time the division of the property is to

become effective. RCW 26.09.080(4). The trial court's paramount concern when

distributing property in a dissolution action is the economic condition in which the decree

leaves the parties. In re Marriage ofGillespie, 89 Wn. App. 390, 399, 948 P.2d 1338

(1997). The court may consider the parties' prospects for future earnings, their education

and employment histories, their necessities and financial abilities, their foreseeable future

acquisitions and obligations. Friedlander v. Friedlander, 80 Wn.2d 293,305,494 P.2d

208 (1972); Gillespie, 89 Wn. App. at 399. Thus, Washington law parrots the slogan

made famous by Karl Marx: from each according to his or her ability, to each according

to his or her needs.

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No. 32022-7-111
In re the Marriage of Wood


       Issue 5: Whether the trial court erred in taking into consideration Zale Wood's

social security and L&I disability benefits when calculating spousal maintenance?

       Answer 5: No.

       Zale Wood contends the trial court improperly considered his social security and

worker compensation benefits in its calculation of Diane's award of lifetime spousal

maintenance. He argues that social security benefits are the separate and indivisible

property of the spouse who earned them and are not marital property subject to division

or weight when awarding maintenance. He also argues that his worker compensation

benefits are his separate property, and the trial court abused its discretion in awarding

Diane fifty percent of those benefits. Diane contends that the trial court merely

considered Zale's social security and worker compensation benefits when evaluating the

relative incomes of the two parties in calculating the amount of maintenance needed in

order to "equalize" the parties' incomes. She argues that the court did not abuse its

discretion, because it did not actually attach or assign Zale's social security or worker

compensation benefits to Diane. We agree with Diane.

       RCW 26.09.090 governs awards of spousal maintenance. The statute provides, in

relevant part:

              (l) In a proceeding for dissolution of marriage ... the court may
       grant a maintenance order for either spouse. ... The maintenance order
       shall be in such amounts and for such periods of time as the court deems
       just, without regard to misconduct, after considering all relevant factors
       including but not limited to:

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No. 32022-7-III
In re the Marriage o/Wood


               (a) The financial resources of the party seeking maintenance,
       including separate or community property apportioned to him or her, and
       his or her ability to meet his or her needs independently. . ..
               (b) The time necessary to acquire sufficient education or training to
       enable the party seeking maintenance to find employment appropriate to his
       or her skill, interests, style of life, and other attendant circumstances;
               (c) The standard of living established during the marriage ...
               (d) The duration of the marriage ...
               (e) The age, physical and emotional condition, and financial
       obligations of the spouse or domestic partner seeking maintenance; and
               (f) The ability of the spouse or domestic partner from whom
       maintenance is sought to meet his or her needs and financial obligations
       while meeting those of the spouse or domestic partner seeking
       maintenance.

RCW 26.09.090.

       This court reviews the trial court's award of maintenance for abuse of discretion.

In re Marriage o/Zahm, 138 Wn.2d 213,226-27,978 P.2d 498 (1999). An award of

maintenance that is not based on a fair consideration of the statutory factors constitutes an

abuse of discretion. In re Marriage o/Crosetto, 82 Wn. App. 545, 558,918 P.2d 954

(1996). Ultimately, the court's main concern must be the parties' economic situations

post-dissolution. In re Marriage o/Williams, 84 Wn. App. at 268 (1996). The only

limitation on amount and duration of maintenance under RCW 26.09.090 is that, in light

of relevant factors, the award must be just. In re Marriage   0/ Bulicek, 59 Wn. App. 630,
633, 800 P.2d 394 (1990).

       Zale Wood correctly notes that a spouse's right to receive social security benefits

is nontransferable and nonassignable. 42 U.S.C. § 407(a); In re Marriage o/Zahm, 138


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No. 32022-7-III
In re the Marriage of Wood


Wn.2d at 220-21. Nevertheless, our Supreme Court has held that a trial court may

consider divorcing spouses' social security benefits when fashioning ajust and equitable

maintenance award. Zahm, 138 Wn.2d at 227. Consideration of such benefits aids the

trial court in determining the relative needs of the parties and their respective ability to

pay maintenance. Zahm, 138 Wn.2d at 223.

       In Zahm, 138 Wn.2d at 227, our state high court upheld a trial court's decision to

consider, when establishing an award of maintenance, the social security benefits to

which a divorcing spouse was entitled. The Zahm court first held that a trial court does

not abuse its discretion by mischaracterizing social security benefits as community

property, so long as the court does not actually attempt to assign one spouse's future

social security benefits as part of an equitable division of property in a divorce

proceeding. Zahm, 138 Wn.2d at 220-21. The court applied this same reasoning when

upholding the trial court's maintenance award.

       The trial court below did not assign a portion of Zale or Diane Wood's social

security benefits in its division of the parties' community property and liabilities.

Although Diane included both Zale's and her social security incomes in her initial

estimate of the parties' total combined income, the trial court stated that it used such

information to help evaluate the relative positions of the parties in fashioning an award of

maintenance to Diane. The Zahm court held such an analysis permissible. Therefore, the

trial court qid not abuse its discretion in considering the parties' social security benefits

                                              18 

No. 32022-7-III
In re the Marriage of Wood


when fashioning its maintenance award for Diane Wood.

       lale Wood repeats the same argument regarding his worker compensation benefits

and his union pension, but again the argument fails. Washington's Industrial Insurance

Act Title 51 RCW does not allow garnishment of disability benefits for the purpose of

satistying a spousal maintenance obligation. RCW 51.32.040{l). Nor does it allow

assignment of those benefits for the purpose of dividing marital property. In re Marriage

ofDugan-Gaunt, 82 Wn. App. 16, 19-20, 915 P.2d 541 (1996). A disability pension

resulting from a disability occurring after permanent separation should be characterized

as separate property of the disabled spouse but may be considered as affecting his ability

to pay alimony. In re Marriage ofHuteson, 27 Wn. App. 539, 542,619 P.2d 991 (l980).

       The written findings' characterization of lale Wood's worker compensation

benefits as being community property may be a clerical error. Diane Wood agreed the

benefits were separate property. In its oral ruing, the trial court recognized the benefits as

separate property. Even if the error was not clerical in nature, reversal is not needed.

       As taught in In re Marriage ofZahm, 138 Wn.2d 213 (1999) and In re Marriage

ofHuteson, 27 Wn. App. 539, mischaracterization of separate property as community

property does not, on its own, render a subsequent division of property, or order of

maintenance, unjust and inequitable. Although the trial court mischaracterized lale's

worker compensation benefits, the final divorce decree does not award the payments to

Diane, nor does the decree garnish the benefits for the purpose of paying maintenance. In

                                             19 

No. 32022-7-II1
In re the Marriage o/Wood


the trial court's equitable award, an increase or decrease in worker compensation benefits

accordingly increases or decreases the spousal maintenance.

       RCW 26.09.090 directs the trial court to fashion ajust award of maintenance.

Diane remained at home, during the parties' lengthy marriage, to care for the children and

tend the household. Diane's work at home allowed Zale to work injobs where he

accumulated pensions and a higher amount for social security. Diane expected to live in

retirement based in part on Zale's pension and social security benefits. The trial court did

not abuse its discretion by considering the worker compensation benefits when

establishing Zale's maintenance obligation to Diane.

      Issue 6: Whether the trial court abused its discretion under RCW 26. 09. 090 in

awarding spousal maintenance?

      Answer 6: No.

      Zale Wood next assigns error to the trial court awarding spousal maintenance.

This assignment of error differs from the preceding assignment in that Zale now argues

the trial court should not have awarded any maintenance. He argues, in part, that the trial

court failed to consider his poor health and need for surgery. Diane Wood responds that

the trial court considered all relevant statutory factors before awarding maintenance. We

agree with Diane.

       Our previous discussion quoted the spousal maintenance statute, RCW 26.09.090,

and the factors on which the trial court should grant maintenance. We review the trial

                                            20 

No. 32022-7-III
In re the Marriage of Wood


court's decision on an award of maintenance for abuse of discretion. In re Marriage of

Zahm, 138 Wn.2d at 226-27 (1999). Ultimately, the court's main concern must be the

parties' economic situations postdissolution. In re Marriage of Williams, 84 Wn. App. at

268 (1996). The only limitation on amount and duration of maintenance under RCW

26.09.090 is that, in light of relevant factors, the award must be just. In re Marriage of

Bulicek, 59 Wn. App. at 633 (1990).

       The trial court concluded in its final marital dissolution decree that "[a]ll statutory

factors exist for an award of maintenance to wife." CP at 193. The trial court did not

abuse its discretion in so ordering. During a disorganized and volatile trial and several

contempt hearings, the trial court heard testimony regarding both parties' health and

financial situations, and the couple's community and separate debts. The trial court

sought to place each in the same financial situation by ordering lale Wood to pay

maintenance to Diane. The final decree orders maintenance for life, but directs that

maintenance be modified depending on lale's worker compensation benefits. In

addition, the maintenance of $4,094 per month is reduced by the amount Diane receives

from laIe's pensions. Given the length of the parties' marriage, the disparity of income

between the two, and the provision reducing maintenance relative to the property

division, the trial court did not abuse its discretion.

       Issue 7: Whether the trial court abused its discretion under RCW 26. 09. 090 when

dividing the marital estate?

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No. 32022-7-III
In re the Marriage of Wood


       Answer 7: No.

       Zale Wood next assigns error to the trial court's division of property. He argues

that the trial court failed to assign values to all assets before dividing them. Diane Wood

contends that the trial court considered all relevant statutory factors before dividing

property. She also observes that Zale Wood contributed to any potential error in the trial

court's calculations because he failed to provide valuations of properties. Once again, we

agree with Diane.

       RCW 26.09.080 governs disposition of marital property. The statute provides, in

relevant part:

               In a proceeding for dissolution of the marriage ... the court shall,
       without regard to misconduct, make such disposition of the property and
       the liabilities of the parties, either community or separate, as shall appear
       just and equitable after considering all relevant factors including, but not
       limited to:
               (1) The nature and extent of the community property;
               (2) The nature and extent of the separate property;
               (3) The duration of the marriage or domestic partnership; and
               (4) The economic circumstances of each spouse or domestic partner
       at the time the division of property is to become effective.

RCW 26.09.080.

       As with an award of maintenance, this court reviews the division of property for

an abuse of discretion. In re Marriage ofMuhammad, 153 Wn.2d 795,803, 108 P.3d

779 (2005). The trial court has broad. discretion, which will only be reversed if exercised

on untenable grounds or for untenable reasons. In re Marriage ofRockwell, 141 Wn.


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No. 32022-7-III
In re the Marriage of Wood


App. 235, 242-43, 170 P.3d 572 (2007). We recognize that the trial court sits in the best

position to assess the assets and liabilities of the parties and to determine what constitutes

an equitable outcome. In re Marriage ofBrewer, 137 Wn.2d 756,769,976 P.2d 102

(1999).

       A just and equitable division does not require mathematical precision, but rather

fairness, based on 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 ofLarson &

Calhoun, 178 Wn. App. 133, 138,313 P.3d 1228 (2013), review denied sub nom., In re

Marriage ofLarson, 180 Wn.2d 1011,325 P.3d 913 (2014); In re Marriage ofCrosetto,

82 Wn. App. at 556 (1996). In a long-term marriage of twenty five years or more, the

trial court's objective is to place the parties in roughly equal financial positions for the

rest of their lives. Rockwell, 141 Wn. App. at 243.

       Diane Wood received approximately $600 per month in social security benefits,

while Zale Wood received roughly three times that amount, plus pension and worker

compensation benefits. The major asset accumulated for retirement was Zale's pension

benefits. The trial court divided Zale's pensions between the parties. The court ordered

the Woods' Yakima property sold to pay off its outstanding mortgages, and for the

parties to divide the net proceeds from the sale. It awarded some household items and

personal property to Zale, including the stock truck, tractor, farm implements he

requested, and his personal papers.

                                              23 

No. 32022-7-111
In re the Marriage of Wood


          Although the trial court based its property division on calculations provided by

Diane, Zale had multiple opportunities to present different calculations or propose a

different division, but he did neither. Any failure of the trial court to exercise

mathematical precision in its division of the Woods' property resulted from Zale Wood's

intransigence in producing documentation requested by Diane and the court. Under these

circumstances, the trial court did not abuse its discretion in its division of the marital

estate.

          Issue 8: Whether Zale or Diane Wood is entitled to attorney fees on appeal? 


          Answer 8: No. 


          Zale and Diane Wood each request an award of reasonable attorney fees on appeal 


underRCW 26.09.140. Diane also seeks an award of fees under CR 11. We deny each

party's request for fees.

          RAP 18.1(a) permits a party to recover attorney fees on appeal if an applicable law

grants the party that right, and the party includes a request for fees in its brief. RCW

26.09.140 provides, in relevant part:

                 The court from time to time after considering the financial resources
          of both parties may order a party to pay a reasonable amount for the cost to
          the other party of maintaining or defending any proceeding under this
          chapter and for reasonable attorneys' fees or other professional fees in
          connection therewith, including sums for legal services rendered and costs
          incurred prior to the commencement of the proceeding or enforcement or
          modification proceedings after entry ofjudgment.




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No. 32022-7-III
In re the Marriage of Wood


              Upon any appeal, the appellate court may, in its discretion, 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 determining w4ether to award fees under RCW 26.09.140, this court examines

the arguable merit of the issues on appeal and the financial resources of the respective

parties. In re Marriage ofKing, 66 Wn. App. 134, 139,831 P.2d 1094 (1992). Because

of the equal division of assets and spousal maintenance awarded Diane Wood, we find

that each party has the wherewithal to pay his or her attorney fees.

       Diane Wood also contends that this court could award her attorney fees and costs

under CR 11 for a frivolous appeal. This court abides by the following considerations

when determining whether an appeal is frivolous:

               (1) A civil appellant has a right to appeal under RAP 2.2; (2) all
       doubts as to whether the appeal is frivolous should be resolved in favor of
       the appellant; (3) the record should be considered as a whole; (4) an appeal
       that is affirmed simply because the arguments are rejected is not frivolous;
       (5) an appeal is frivolous ifthere are no debatable issues upon which
       reasonable minds might differ, and it is so totally devoid of merit that there
       was no reasonable possibility of reversal.

Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187 (1980); see also Griffin v. Draper,

32 Wn. App. 611, 616, 649 P.2d 123 (1982).

       Most of Zale Wood's arguments are frivolous, but we find at least one assignment

of error that contains a debatable issue. Some law supports Zale's contention that the

trial court could consider Diane's waste of assets when distributing the parties' property.




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No. 32022-7-III
In re the Marriage of Wood


                                     CONCLUSION

       We affirm all rulings of the trial court. We deny each party an award of

reasonable attorney fees.

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

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

2.06.040.



                                                      Fearing, J~
                                                                    1


WE CONCUR:



~)ALJr.
  Brown, A.C.J.




                                            26 

