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                                                                                         2014 FEB -- 4
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          IN THE COURT OF APPEALS OF THE                                                             ASHIING              ON
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                                                         DIVISION II                      r? y_r




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In   re   the Marriage    of:
                                                                  I                      No. 43232 -3 -II


MERRY ELIZABETH WOECK,


                                          Appellant,


             V.                                                                   UNPUBLISHED OPINION


DOUGLAS DAVID WOECK, .




            PENOYAR, J. —        Merry Woeck appeals the. trial court' s decision to enforce a separation

agreement         between    Merry'   and   Douglas Woeck. She argues that the agreement is unfair and that


it is     voidable   based    on allegations of      domestic     abuse.       We remand for the trial court to hold an


evidentiary hearing and enter findings of fact and conclusions of law regarding Merry' s claims of

duress and undue influence arising from allegations of domestic abuse.

                                                              FACTS


            Douglas     and   Merry   married      in October 2001.       Merry petitioned for dissolution on August

11, 2011.         That same day, the parties signed a separation agreement. Merry, who is a practicing

attorney, drafted the agreement. Merry consulted with an attorney before drafting the agreement,

and Douglas was represented by a separate attorney throughout the dissolution proceedings.

             On November 29, 2011, before the trial court entered the dissolution decree, Merry filed

an order for protection -
                        harassment petition against Douglas after she received threatening calls

and texts.        She   also petitioned     for    an ex parte   restraining     order   in   January   2012.      The trial court


dismissed the order for protection- harassment petition because of the pending restraining order.



1
     For clarity,    we refer   to the   parties   by   their first   names.    We intend     no   disrespect. .
43232 -3 -II




On     February    21,      2012, the trial court entered a restraining order prohibiting Douglas from

contacting Merry for one year.

          In   February      2012, Douglas filed            a motion     to   enforce   the   separation agreement.   Merry

filed   a counter motion           to   void   the   separation agreement.        She argued that ( 1) Douglas breached


the agreement by committing domestic abuse and failing to perform under the deadlines in the

agreement      and (   2)    she    entered     the    agreement under        severe    emotional   duress.   The trial court


considered the motions to enforce and to void the agreement and the declarations included with

                                                              2
each and enforced           the   separation agreement.           Merry appeals.

                                                             ANALYSIS


I.        STANDARD OF REVIEW


          Parties to a marriage may enter into a written separation contract providing for

maintenance, property disposition, a parenting plan and child support, and the release from

obligations.      RCW 26. 09. 070( 1).               A separation contract is binding on the trial court unless, after

considering the parties' economic circumstances and any other relevant evidence, it finds that the

contract was unfair at the time of its execution. RCW 26. 09. 070( 3).

          Before RCW 26. 09. 070, the trial                 court   had discretion to     adopt separation agreements.     In


re    Marriage of Shaffer, 47 Wn.                App.     189, 193, 733 P. 2d 1013 ( 1987).           It could disregard an


agreement       if it determined that the terms              were not    just   and equitable.      Shaffer, 47 Wn. App. at

193.     But RCW 26.09. 070 gives parties the ability to distribute their property as they see fit.

Accordingly, the trial court can no longer disregard a separation agreement for not conforming to


2
     The agreement was enforced by a different judge than the one who entered the restraining order
against Douglas. Merry referenced the restraining order' s case number in her motion to void the
agreement, but the record from the restraining order proceedings was not before the trial judge
who enforced the agreement.
                                                                     2
43232 -3 -II




the court' s view of an equitable distribution; instead, the court is limited to deciding whether the

agreement was         unfair when              it   was    executed.        Shaffer, 47 Wn.     App.   at   194.   In determining

whether a separation agreement is unfair, the trial court considers ( 1) whether the parties have

fully disclosed the amount, character, and value of the property involved and ( 2) whether the

agreement was entered into fully and voluntarily on independent advice and with full knowledge

by   the   spouse of      her   rights.   3 Shaffer, 47 Wn. App. at 194 ( quoting In re Marriage of Cohn, 18

Wn. App. 502, 506, 569 P. 2d 79 ( 1977)).

           We     review    a motion           to   enforce     a   settlement      agreement    de   novo.   In re Marriage of

Bernard, 165 Wn.2d 895, 903, 204 P. 3d 907 ( 2009);                               Lavigne v. Green, 106 Wn. App. 12, 16, 23

P. 3d 515 ( 2001).         Where, as here, the moving party relies on documentary evidence in a motion

to enforce a settlement agreement, the trial court proceeds as if it is considering a summary

judgment      motion.       Condon        v.    Condon, 177 Wn.2d 150, 161, 298 P. 3d 86 ( 2013);                   Brinkerhoff v.

Campbell, 99 Wn.           App.    692, 696, 994 P. 2d 911 ( 2000). The parties' submissions must be read in


the light most favorable to the nonmoving party. Condon, 177 Wn.2d at 162. If there is an issue

of material fact, the trial court should resolve the issue with an evidentiary hearing. Brinkerhoff,

99 Wn.      App.     at   697.      If the nonmoving party raises an issue of material fact and the court

enforces the agreement without first holding an evidentiary hearing, its decision is manifestly



3
    Merry argues in her reply brief that we should apply the test from In re Marriage ofForan, 67
Wn.             242, 249, 834 P. 2d 1081 ( 1992), to determine                         whether   the   agreement was    fair. This
       App.
test first requires the court to consider the substantive fairness of the agreement and then requires
the   court     to   consider      procedural             fairness,    applying the same test as Shaffer and Cohn for
procedural fairness.             Foran, 67 Wn.              App.      at   249.   But Foran involved a prenuptial agreement
rather     than   a separation agreement.  App. at 246. Under RCW 26. 09. 070( 3), the court' s
                                                           67 Wn.
focus is not on how equitable the separation agreement is but whether it is procedurally fair.
Shaffer, 47 Wn. App. at 193 -94.   Therefore, the procedural fairness test from Cohn is most
 applicable here.
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43232 -3 - II



unreasonable and based on untenable grounds or reasons. Brinkerhoff, 99 Wn. App. at 697; State

ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 ( 1971).

II.          PROPERTY VALUE


             First, Merry argues that the trial court erred when it failed to determine the value of the

parties' property, specifically, Douglas' s 401( k) benefits, before entering the dissolution decree.

But the trial court does not have to determine the value of the parties' property when the property

is divided         by   a separation agreement.         Instead, the trial court considers whether the parties fully

disclosed the           amount, character, and value of           the property involved.     Shaffer, 47 Wn. App. at

194. Here, there is evidence that Merry reasonably should have known the value of the 401( k).

             A separation agreement must adequately identify the parties' assets and put the parties on

notice       that the    assets exist.    Yeats v. Estate of Yeats, 90 Wn.2d 201, 206, 580 P.2d 617 ( 1978).

But the       agreement      does   not   have to list the     exact amount of each asset.    See Cohn, 18 Wn. App.

at    508.    In Cohn, the court affirmed the parties' property settlement agreement, holding that there

was sufficient evidence to conclude that the wife reasonably should have known the extent of the

husband'       s   property.    18 Wn.      App.   at   508.   There, the wife knew the husband had independent


financial means, the parties discussed their finances when drafting an antenuptial agreement,

information on the husband' s accounts was mailed to their shared residence and kept where the

wife had access to it, the property settlement agreement referenced the husband' s separate funds,

and there was no evidence of deliberate concealment by the husband. Cohn, 18 Wn. App. at 508.

              Similarly, here, although the separation agreement did not list the amount of Douglas' s

401( k),       it sufficiently identified the asset, and Merry had the ability .to determine its value.

Merry drafted the separation agreement and she had access to information regarding Douglas' s
401( k).        She submitted notice of his 401( k) to the court, and the notice included Douglas' s

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43232 -3 - II




mailing    address,       which   was     the   parties'   shared      home.       Additionally, Merry is a practicing

           and she    presumably knows how to                   request   information through      discovery.   If Douglas
attorney


was not willingly providing her with information regarding his assets, she could have used the

discovery       process   to   request    additional   information         about   his 401( k).    Instead, she agreed to


accept $ 5, 000 from his 401( k) in exchange for relinquishing her rights to the rest of his benefits

and pensions.




          Merry correctly points out that the court considers the parties' economic circumstances

when   reviewing      a motion     to    prevent enforcement of a separation contract.                RCW 26. 09. 070( 3).


But this does not mean that the trial court considers economic disparity in the agreement; rather,

under RCW 26. 09. 070( 3) and the Cohn factors, the parties' economic circumstances are relevant


only insofar as they pertain to whether each party was fully informed about the others' property,

received    independent        advice,    and   entered    the    agreement    voluntarily.       Shaffer, 47 Wn. App. at

195.   The separation agreement is not per se unfair merely because it does not list the amount of

Douglas' s 401( k).


III.      DURESS AND UNDUE INFLUENCE


          Merry next argues that the separation agreement is voidable because she was under

duress    and    Douglas       exerted    undue     influence.         We review the record de novo to determine


whether    Merry has        raised a     triable   issue   of   voluntariness.      Lavigne, 106 Wn.     App.   at   16.   We


hold that she did raise an issue of voluntariness and that the trial court erred by not holding an

evidentiary hearing regarding her allegations of duress and undue influence.

          A party asserting duress must produce evidence that the other party' s wrongful or

oppressive conduct deprived her of her free will at the time she entered into the agreement.

Retail Clerks Health &            Welfare Trust Funds v. Shopland Supermarket, Inc., 96 Wn.2d 939, 944-

                                                                   E
43232 -3 -II




45, 640 P. 2d 1051 ( 1982).                       A party asserting undue influence must prove unfair persuasion that

seriously impairs the free                   and competent exercise of              judgment.       In re Estate of Jones, 170 Wn.

App. 594, 606, 287 P. 3d 610 ( 2012).

          Whether                                                     the                   agreement was        a material    fact.   See
                          Merry         voluntarily         signed           separation




Shaffer, 47 Wn.               App.      at    194 (      before entering a separation agreement, the trial court must

determine          whether        the   agreement was              entered   into   fully   and   voluntarily).    In her declaration,


Merry alleged that she was the victim of domestic abuse and stated that she " wanted to get out of

the house          and    out     from       under       Doug' s    thumb so bad that [           she]    would have signed almost


anything."          Clerk'    s   Papers      at   225.    Douglas denied         Merry' s   accusations.       If Merry' s accusations

are    true,       they would arguably show that she did not freely enter into the agreement.

Accordingly, there is a factual dispute over a material issue and the trial court erred when it
failed to hold           an   evidentiary          hearing. We remand for the trial court to conduct an evidentiary

hearing and to enter findings of fact and conclusions of law regarding Merry' s claims of duress
and undue influence.


III.      ATTORNEY FEES


          Both parties request attorney fees on appeal. We deny both requests.

          Merry requests attorney fees in her opening brief, but she does not cite any authority

supporting her           request.        RAP 18. 1(        a) allows a      party to   request    fees   on appeal "[   i] f applicable law


grants   to    a   party the       right     to   recover reasonable         attorney fees    or expenses."       Here, Merry failed to

provide    the      applicable          law in her opening brief.                She cites to RCW 26. 09. 140 in her reply brief,

but    she also admits            that   she       has   not yet   incurred any fees        on appeal.      Additionally, she failed to

 file a financial affidavit with this court as RAP 18. 1( c) requires. We deny her request.



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43232 -3 -I1




        Douglas requests attorney fees under RCW 4. 84. 185, arguing that this appeal is frivolous.

An appeal is frivolous. if it presents no debatable issues upon which reasonable minds could


differ and is so lacking in merit that there is no possibility of reversal. In re Marriage of Foley,

84 Wn.   App.   839, 847, 930 P. 2d 929 ( 1997).   Merry' s appeal presented debatable issues and is

not frivolous. We deny Douglas' s request.

         We remand for the trial court to hold an evidentiary hearing and enter findings of fact and

conclusions of law regarding Merry' s claims of duress and undue influence arising from

allegations of domestic abuse.


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

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 06. 040, it is so ordered.




We concur:




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