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                                                                                               21014 A, —7 Arai 10: 22
      IN THE COURT OF APPEALS OF THE STATE OF WASH#
                                                  I
                                                                                                                FiIiGT
                                                      DIVISION II                              BY
                                                                                                         Miii
In re the Marriage of:                                                         No. 43168 -8 - II


AMANDA STARR MOUNT,


                       Respondent /Cross Appellant,


       MA                                                                UNPUBLISHED OPINION


JOHN MERRITT MOUNT,




          PENOYAR, J. —        Amanda Mount filed for dissolution of her long -
                                                                              term marriage to John

Merritt Mount.         In light      of   Merritt'   s1 significant separate property and his greater monthly

income, the trial court awarded Amanda the majority of the community property as well as

spousal maintenance. The trial court also ordered Merritt to pay Amanda' s student loan debt and

part of   her attorney fees.         Merritt appeals, arguing that the trial court erred when it ( 1) awarded

Amanda      maintenance, (     2) denied his motion to list the family house for sale, and ( 3) ordered him

to pay Amanda'        s$   12, 452   student   loan.    Both parties appeal the trial court' s attorney fee award

and request     attorney fees        on appeal.      The trial court reasonably exercised its discretion when it

awarded Amanda maintenance and ordered Merritt to pay Amanda' s student loans because

Merritt' s income is twice Amanda' s income, Merritt has more separate property, and their

marriage was long term. Additionally, the trial court did not err when it denied Merritt' s motion
to list the house for sale because Merritt failed to show that he could not maintain it, the housing

market was down, and the parties could .not work together to sell it. Finally, we affirm the trial

 court' s attorney fee award but decline to award either party attorney fees on appeal.

 1 Because the parties share the same last name, we refer to them by their preferred first names;
 we   intend   no   disrespect.
43168 -8 -II



                                                          FACTS


          Amanda      and   Merritt   were married      in 1988.           Amanda filed a dissolution petition on July

15, 2010.      Both   parties are     in their       to
                                                 mid -    -late    fifties    and   currently   employed.   Amanda earns


 3, 894 per month and Merritt earns $ 7, 634 per month. Amanda recently received a three percent

pay cut while Merritt received a $ 10, 000 raise.

          Merritt was diagnosed with prostate cancer before the dissolution trial. At the time of the


trial, he was treating his cancer through diet and he stated that it was not impacting his work.

          At the conclusion of the trial, the court awarded 75 percent of the community property to

                                                                      2
Amanda      and   the remaining 25         percent   to Merritt .         The trial court awarded Merritt the proceeds


from his    mother' s and     his friend'     s estates as   his      separate   property.      The trial court awarded the


house to Merritt      and ordered       him to pay Amanda 75                 percent of   its equity.   The trial court also


ordered    him to pay $ 12, 452       of   Amanda'    s graduate school          loans   and awarded    her $ 1, 500 a month


in maintenance until Merritt can no longer work or retires. Finally, the trial court ordered Merritt

to pay $7, 000 of Amanda' s attorney fees.

          Merritt filed     a motion    for   reconsideration.            He argued, among other things, that the trial

court erred by characterizing one of his retirement accounts as community property, by awarding

    1, 500 per month in maintenance to Amanda, and by incorrectly calculating the amount of the

inheritances.      He also requested that the trial court allow him to list the family house for sale.

The trial court denied the motion for reconsideration, except as to the retirement account, which


it   re- characterized as    Merritt'   s separate    property.           The court denied his motion to list the family

house.




2
     Merritt proposed this 75/ 25 division, depending on the trial court' s maintenance award.
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43168 -8 -II



          Amanda also filed a motion for reconsideration, asking the trial court to award her

additional     attorney fees for responding to Merritt'                      trial motions.
                                                                      s post -                 The trial court denied


Amanda' s motion. Merritt appeals. Amanda cross appeals.

                                                       ANALYSIS


I.         STANDARD OF REVIEW


          A trial court has broad discretion to distribute property and award maintenance during a

dissolution proceeding.             In re Marriage of Olivares, 69 Wn. App. 324, 328, 848 P. 2d 1281

 1993),    overruled on other grounds by In re Estate of Borghi, 167 Wn.2d 480, 219 P. 3d 932

 2009)); In     re   Marriage of Zahm, 138 Wn.2d 213, 226, 978 P. 2d 498 ( 1999).                    Accordingly, we

review the trial court' s decisions, regarding property distribution and maintenance to determine

                                        unreasonable or       based   on untenable grounds or reasons.      Olivares,
whether     they     are   manifestly


69 Wn.     App.      at    328.   We will not retry the facts on appeal and will accept findings of fact as

verities   if they    are supported       by   substantial evidence     in the   record.   In re Marriage of Thomas,

63 Wn. App. 658, 660, 821 P. 2d 1227 ( 1991).

II.        MAINTENANCE


           Merritt first      argues   that the trial court   erred when    it   awarded   Amanda   maintenance.   The


trial court based its award on the differences in the parties' salaries, the amount of separate


property,    and     the length of their       marriage.   We affirm because the trial court' s award was just

and equitable in light of the relevant factors.


           RCW 26. 09. 090( 1) requires that the amount and duration of the maintenance award be

just in light of the relevant factors. It provides a nonexhaustive list of factors:




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43168 -8 -II




          a) The financial resources of the party seeking maintenance ... ;

          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 ...    seeking maintenance; and


           f) The ability     of   the   spouse ...    from whom maintenance is sought to meet his or
          her   needs and    financial      obligations while    meeting those         of   the   spouse ...   seeking
          maintenance.




RCW 26. 09. 090( 1).         Maintenance is not merely a means of providing bare necessities; rather, it

is a flexible tool by which the parties' standards of living maybe equalized for an appropriate
period of   time. In    re   Marriage of Washburn, 101 Wn.2d 168, 179, 677 P. 2d 152 ( 1984) ( citing


RCW 26. 09. 090( 1)(      c), (   d)).


          Here, the trial court considered all of the factors under RCW 26. 09. 090 in awarding

Amanda     maintenance.           The    court   found the   following   specific   factors particularly       significant: (   1)


Merritt' s monthly income is               about    twice the   amount     of    Amanda' s monthly income, ( 2) the


parties   had   a   long -term    marriage, (     3) that although Merritt failed to provide evidence regarding

his cancer prognosis or treatment, the court made maintenance modifiable based on his health

                                   working, ( 4) Merritt        will   receive   a "   significant      amount"   of separate
and   ability to     continue




property and Amanda will not, and ( 5) both parties are in their mid -o -late fifties and currently
                                                                     t
able to work. Clerk' s Papers ( CP) at 133.

          Merritt argues that the trial court made several errors when it awarded Amanda

maintenance.         First, he contends that the disparity between the parties' monthly incomes is less

                                                                0
43168 -8 -II



than it appears considering Amanda' s             potential   for    a   longer " work life."      Appellant' s Br. at 29.


But the trial court factored Amanda' s potentially longer work life into its decision: it specifically

considered the parties' ages and ability to continue working, and it made the maintenance subject

to modification after Merritt retires. We see no error on this issue.

          Second, Merritt argues that the trial court failed to consider the impact of his cancer. The

trial court considered Merritt' s cancer but found that he failed to provide evidence regarding his

prognosis or treatment. This finding is supported by the record.

          At the hearing, Merritt testified that he was not currently undergoing treatment and that

his   cancer    had   not yet   impacted his     work.     In his motion for reconsideration, Merritt included

more     information regarding his diagnosis.             He stated his treatment options, noting that they had

possible side effects        and   that   he currently had limited         sick   leave.   However, he did not include


information about which treatment he was opting for or how treatment would affect his finances

or    ability to   work.     Nonetheless, the trial court concluded that maintenance could be modified

based     on    Merritt' s health     and    ability to   work.          Substantial evidence        supports the court' s


determination.


           Third, Merritt asserts that the trial court failed to properly weigh Amanda' s education and

ability    to      support   herself.       The receiving spouse' s capacity for self -
                                                                                      support does not

                     preclude a maintenance award.           Washburn, 101 Wn. 2d            at   178.   Instead, the ability
automatically


of the spouse seeking maintenance to independently meet her needs is only one of the factors the
court considers.        Washburn, 101 Wn.2d          at   178 -79.       Here, the court found that Amanda had the


3
    In his brief, Merritt     argues, "   Nowhere in its multiple decisions does the trial court indicate that
it considered any of [the evidence regarding his cancer] or even that it read the medical records
that had been        submitted."    Appellant' s Br. at 30. But the trial court stated that it considered all of
the information Merritt submitted, including the declarations filed with his motion for
reconsideration, and his medical records were never admitted into evidence.
                                                              5
43168 -8 -II




ability to work, but it also found that Merritt' s monthly income was greater than Amanda' s,

Merritt had      more    separate    property than Amanda,                and   their   marriage was      long   term —over 20


years.     The trial court did not err when it awarded Amanda maintenance under these


circumstances where her ability to support herself is only one factor in the analysis.

          Fourth, Merritt argues that the trial court inaccurately valued his separate property. In its

oral ruling, the trial court stated that Merritt was going to be inheriting " somewhere in the nature
                                                                to $ 200, 000" from his                        CP        247.   There
     up to $ 325, 000" from his friend
of                                               and " close                                      mother.           at




is   evidence     in the    record   to    support      bath   of these     figures.       The initial evidence presented


regarding Merritt' s friend' s estate was a certified copy of his friend' s will, which provided that

Merritt   will    receive   10   percent    of   the $ 3. 2    million estate.          Although Merritt offered evidence


from the estate' s attorney estimating the value of the estate at $ 2.2 million, he delayed delivering

this information to Amanda                and   the    court   and   he   admitted      that it   was   only   an   estimate.     On


appeal, Merritt relies on the additional information about the estate filed with his motion for

reconsideration. A trial court has discretion to consider or not consider evidence submitted with


a motion    for   reconsideration.        Chen    v.   State, 86 Wn.       App.    183, 192, 937 P. 2d 612 ( 1997).             Here,


the trial court expressed frustration at Merritt' s delay in presenting information about the estate

and refused       to   reconsider    its initial findings.       The trial court acted within its discretion to not


consider evidence that Merritt had access to before the initial hearing.

          The evidence also supports the trial court' s estimate regarding Merritt' s mother' s estate.

Merritt testified that he        would     be receiving between $ 180, 000                and $   190, 000 from his mother' s


estate.    He purposefully delayed closing her estate until after the divorce proceeding, which

forced the court to estimate his inheritance rather than using evidence of what he actually

received.       Even if these estimates prove to be too high, Merritt still received more separate

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43168 -8 -II




property than Amanda —he                 was        also    awarded     an $    83, 000 retirement account as his separate


property —and          he has not shown that receiving a lower figure than the court' s estimate would

affect his ability to pay maintenance.

         Finally, Merritt contends that the trial court erred when it determined that it had an

obligation to place the parties in equal financial positions. But one of the goals of maintenance is

to   equalize    the   parties'   standards of            living.    Washburn, 101 Wn. 2d           at   179.   Moreover, the trial


court considered all of the statutory factors, and there is no indication that the court gave

improper    weight       to the   parties'    standard of           living. The trial court stated that, in addition to the

parties' standard of living during the marriage, it considered the parties' incomes, the length of

the    marriage,       the    parties'   separate           property,       Merritt' s    health,   and   the   parties'   ages   and




employment. The trial court' s analysis was not unreasonable or based on untenable grounds, and

we affirm.




III.     HOUSE


          Merritt next argues that the trial court erred when it denied his motion to list the family

house for      sale.    Merritt did not present evidence at trial that he was incapable of maintaining the

house.    Further, the housing market was down and the parties were not able to work together to

list the house for sale; accordingly, the trial court did not err when it awarded Merritt the house

and denied his motion to list it for sale.

          At trial, Merritt testified that he was currently living in the house because Amanda

thought    it    would       be " less disruptive"            for him while he was receiving his cancer treatment.

Report    of    Proceedings ( RP)        at    69.        He said that he would be willing to sell the house, but he

would     also   be willing to       keep      it    or    let Amanda        keep   it.   Amanda testified that she would be


willing to list the house for sale, but the parties were not able to agree on how much the house
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43168 -8 -II




was worth.          Amanda took the           position   that the house was     worth about $ 360, 000   to $ 300, 000 and


Merritt took the position that the house was worth about $ 250, 000.

           The trial court awarded Merritt the house, which it valued at about $280, 000, and ordered

him to pay Amanda 75                  percent of    the equity.   Amanda opposed the post -
                                                                                          trial motion to list the


house for        sale.   The trial court determined that it would be unreasonable to force the sale of the

house when the housing market is down and when the parties had such different ideas of the

house' s value and had already failed to come to an agreement about selling the house outside of

court.         It affirmed its award to Merritt, finding that he was in a better position to maintain the

house.


               Merritt challenges the trial court' s finding that he is in a better position to maintain the

house.         He   argues     that   his health   will make maintenance        burdensome.     At the time of the trial,


Merritt had been             living     in   and   maintaining the house.        Although he testified that he would


eventually have to undergo treatment, he did not provide the court with specific information

regarding his chosen treatment and its effects. He also stated that he was delaying treatment and
that    his diagnosis had             not yet   impacted his ability to      work.   Substantial evidence supports the


trial court' s finding that Merritt could maintain the house.

               Moreover, Merritt acknowledged the poor state of the real estate market and the record


establishes         that the   parties could not. agree on        listing   the house.   The trial court did not err when


it denied Merritt' s motion to list the house. See High v. High, 41 Wn.2d 811, 823, 252 P. 2d 272

    195 3) (    finding that it was manifestly unreasonable for the trial court to force the sale of property

when the value was down but could increase in the future). 4


4
    Hopefully, the generally improving housing market will benefit the parties here, but we have no
 information on the record about that.
                                                                   E'?
43168 -8 - II




IV.        STUDENT LOANS


           Finally, Merritt argues that the trial court erred when it ordered him to pay a portion of

Amanda'      s student       loans. He contends that the decision was unfair because it further reduced his


share of     the property.             But the trial court does not have to equally distribute property and debts,

and, here, the distribution was just and equitable considering the length and circumstances of the

marriage and Merritt' s financial resources.


           The trial court must consider the following when distributing personal property and debts

in   a   dissolution proceeding: ( 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)   each   spouses'




economic circumstances at                  the time of the property division. RCW 26. 09. 080.               The trial court is


not required to divide property equally so long as the division is just and equitable in light of the

relevant     factors.        In   re   Marriage of Mansour, 126 Wn.           App.      1,   14, 106 P. 3d 768 ( 2004).      The


trial     court          consider          equal   education   opportunities       when      distributing    property.      In re
                  may


Marriage of Fernau, 39 Wn.                     App.   695, 705, 694 P. 2d 1092 ( 1984) (            quoting Washburn, 101

Wn.2d at 181 n.4).


            The trial   court ordered          Merritt to pay Amanda' s $ 12, 452 student loan balance because ( 1)


he has greater financial resources ( 2) and it was " fair" for Amanda to have the same opportunity

as    Merritt,    who also received a graduate           degree   during    the   marriage.     CP at 252. This decision is




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43168 -8 -II



not unreasonable where the parties had a long term marriage, Merritt has more separate property,

and Amanda worked to help cover living expenses while Merritt was earning his graduate
                            5
degree. We        affirm.



V.         ATTORNEY FEES


           Merritt argues that the trial court erred when it awarded Amanda $7, 000 in attorney fees.

Amanda argues that the trial court erred when it denied her motion for reconsideration requesting

additional       attorney fees.         The trial court did not err when it awarded Amanda attorney fees

because she demonstrated a financial need and Merritt had the ability to pay. The trial court also

properly exercised its discretion when it denied Amanda' s motion for reconsideration.

           We review a trial court' s grant or denial of attorney fees and a motion for reconsideration

to determine if the decision was manifestly unreasonable or based on untenable grounds or

reasons.     In   re   Marriage of Freeman, 169 Wn.2d 664, 676, 239 P. 3d 557 ( 2010); State ex rel.


Carroll     v.   Junker, 79 Wn. 2d 12, 26, 482 P. 2d 775 ( 1971).                     In a dissolution proceeding, courts

have discretion to              order   one    party to pay the      other   party'   s   costs   and   attorney fees.   RCW



26. 09. 140. When awarding attorney fees, courts examine the arguable merit of the issues and the

parties'    financial    resources.           In   re   Marriage of Griffin, 114 Wn.2d 772, 779, 791 P. 2d 519


 1990).


           Here, the trial        court ordered         Merritt to pay $ 7, 000   of Amanda' s attorney fees, based on

her need and his ability to pay. Amanda filed a motion for reconsideration requesting more fees
after   Merritt    appealed       to this     court.    The trial court denied her motion, reiterating that its award


5 Merritt also argues that the trial court erred by suggesting that he had no authority to
unilaterally use community funds to reimburse their son and fund their daughter' s college
 account. But Merritt admits that it is " unclear" what impact this had on the trial court' s decision.
Appellant' s Br.  at 41.  And the trial court did not rely on Merritt' s actions regarding the
 children' s accounts to justify any of its decisions.
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43168 -8 -II




was based on the parties' respective financial positions and noting that this was the third motion

for reconsideration and an appeal was already pending.

        As we discuss above, based on their relative incomes and separate property, Merritt had

the ability to pay and Amanda          had the   need.      The trial court did not err when it awarded her


attorney fees.     Additionally, the trial court did not, as Amanda argues, refuse to exercise its

discretion to   reconsider   the   amount of   the   fees. The trial court did state that its decision on this


motion would likely not matter in light of the pending appeal, but it made a ruling denying

reconsideration. We affirm the trial court' s attorney fee award.

        Both     parties   request   attorney fees     on   appeal.     The trial court' s attorney fee award

               addressed   the disparities between the       parties'   incomes.   We decline to award further
adequately


fees.


        Affirmed.


        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:




         Maxa, J.




         Schindler, J.




                                                            11
