                                                                             FILED 

                                                                           DEC. 24, 2013 

                                                                 In the Office of the Clerk of Court 

                                                                WA State Court of Appeals, Division III 





           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                              DIVISION THREE 


In re the Marriage of:                         )         No. 30875-8-111
                                               )
AARON MATTHEW SILK,                            )
                                               )
                      Appellant,               )
                                               )
       and                                     )         UNPUBLISHED OPINION
                                               )
TERESA ANN BROADSWORD,                         )

                                               )

                      Respondent.              )


       BROWN, J. - Aaron Matthew Silk appeals a decree dissolving his marriage to

Teresa Ann Broadsword. He contends the trial court erred in awarding her a

community-property-Iike interest in his tier II railroad retirement benefit, a property

equalization payment, spousal maintenance, and attorney fees and costs. We find no

error or abuse of discretion in the trial court's exercise of equitable and statutory

powers, and affirm.

                                           FACTS

       Mr. Silk and Ms. Broadsword began living together in January 1997 and bought a

home together in June 1997. They had a child, O.S., in October 1999 and married in

December 2004. The parties separated when Mr. Silk filed for divorce in May 2011.
No. 30875-8-111
In fe Marriage of Silk

       Throughout the parties' 14-year relationship. Mr. Silk worked for a railroad

company earning tier II railroad retirement benefits. He amassed numerous tools,

machines, and airplane parts in the parties' shop and outbuildings. Ms. Broadsword

initially worked as a machine operator but quit to serve as O.S.'s primary caregiver.

She secured full time employment with benefits in October 2011.

       Following a February 2012 bench trial, the trial court issued a memorandum

opinion, factual findings and legal conclusions, and divorce decree. The court's award

to Mr. Silk included the family home and all personal property in the parties' shop and

outbuildings. The court's award to Ms. Broadsword included a one-half community­

property-like interest in the portion of the tier II benefit Mr. Silk earned from January

1997 to December 2004, a one-half community property interest in the portion of the tier

II benefit he earned from December 2004 to May 2011, $7,500 of property equalization

in payments of $250 monthly, spousal maintenance of $250 monthly until O.S. turns 18

years old or graduates from high school, and $5,371 in attorney fees and costs. Mr. Silk

appealed.

                                        ANALYSIS

                              A. Railroad Retirement Benefit

       The issue is whether the trial court erred in awarding Ms. Broadsword a

community-property-like interest in Mr. Silk's tier II railroad retirement benefit. He




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In re Marriage of Silk

contends the court lacked authority to divide the portion of the tier II benefit he earned

while living in a pre-marriage committed intimate relationship (CIR) with her. 1

       We review marital property division for abuse of discretion. 2 In re Marriage of

Kraft, 119 Wn.2d 438, 450,832 P.2d 871 (1992); Kolbe v. Kolbe, 50 Wash. 298,302,97

P. 236 (1908). We interpret a statute de novo. 3 Multicare Med. Ctf. v. Dep't of Soc. &

Health Servs., 114 Wn.2d 572, 582 n.15, 790 P.2d 124 (1990).

       When a spouse petitions for marriage dissolution, RCW 26.09.080 empowers the

trial court to justly and equitably divide all the parties' assets, both community and




          1 Out of respect for the parties. we follow our Supreme Court's example in using
the term "committed intimate relationship" to reference what prior judicial opinions called
a "meretricious relationship." Olverv. Fowler, 161 Wn.2d 655, 657 n.1, 168 P.3d 348
(2007). A CIR is "a stable, marital-like relationship where both parties cohabit with
knowledge that a lawful marriage between them does not exist." Connell v. Francisco,
127 Wn.2d 339, 346, 898 P.2d 831 (1995). Relevantfactors include "continuous
cohabitation, duration of the relationship, purpose of the relationship, pooling of
resources and services for joint projects, and the intent of the parties." Id. Here, the         I
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record shows the parties lived in a CIR from January 1997 until they married in
December 2004. Mr. Silk does not dispute this determination.
          2 "A trial court abuses its discretion if its decision is manifestly unreasonable or
based on untenable grounds or untenable reasons." In re Marriage of Littlefield, 133
Wn.2d 39, 46-47,940 P.2d 1362 (1997) ("A court's decision is manifestly unreasonable
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if it is outside the range of acceptable choices, given the facts and the applicable legal
standard; it is based on untenable grounds if the factual findings are unsupported by the
record; it is based on untenable reasons if it is based on an incorrect standard or the
facts do not meet the requirements of the correct standard."). Id. at 47. Substantial
evidence must support the trial court's factual findings. In re Parentage of Goude, 152
                                                                                                 I
Wn. App. 784, 790, 219 P.3d 717 (2009). "Substantial evidence is evidence sufficient to          l
persuade a fair-minded person of the truth of the declared premise." In re Marriage of
Hall, 103 Wn.2d 236, 246, 692 P.2d 175 (1984).
          3 When interpreting a statute, we must "discern and implement" the legislature's
intent. State v. J.P., 149 Wn.2d 444,450,69 P.3d 318 (2003); see State ex rei. Great
                                                                                                 I
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N. Ry. v. R.R. Comm'n of Wash., 52 Wash. 33, 36,100 P. 184 (1909).

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In re Maniage of Silk

separate property. Where the parties did not marry but lived in a CIR; the court applies

RCW 26.09.080 by analogy to justly and equitably divide any community-property-like

assets the parties acquired during their CIR. See Connell v. Francisco, 127 Wn.2d 339,

349-51,898 P.2d 831 (1995); In re Maniage of Lindsey, 101 Wn.2d 299,304,678 P.2d

328 (1984). A CIR is an equity relationship. In re Meretricious Relationship of Long,

158 Wn. App. 919, 922, 244 P.3d 26 (2010). An asset is community-property-like if it

would have been community property were the parties married when they acquired it.

Connell, 127 Wn.2d at 349. All assets the parties acquired during their CIR are

presumed to be community-property-like. Id. at 351.

       Here, the trial court characterized as community-property-like the portion of the

tier II benefit Mr. Silk earned during his pre-marriage CIR with Ms. Broadsword. The

court then divided the benefit accordingly. He argues federal preemption precluded the

court's action under these circumstances.

       The Railroad Retirement Act of 1974, 45 U.S.C. §§ 231-231v, establishes two

tiers of benefits for railroad workers. Hisquierdo   v. Hisquierdo, 439 U.S. 572, 574, 99 S.
                                                                                                r
Ct. 802, 59 L. Ed. 2d 1 (1979). Tier I benefits mirror social security protections while tier   I
II benefits resemble private pensions contingent on earnings and career service. Id. at

574-75. In 1979, the U.S. Supreme Court held 45 U.S.C. § 231m and other federal law
                                                                                                I
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allocating railroad retirement benefits preempts state community property law to the

extent a conflict emerges in characterizing and dividing the benefits upon divorce.

Hisquierdo, 439 U.S. at 582-85. Then, in 1983, the U.S. Congress amended 45 U.S.C.
                                                                                                I
                                                                                                (.




§ 231m to provide:

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No. 30875-8-111
In fe Marriage of Silk

               This section shall not operate to prohibit the characterization or treatment
       of that portion of an annuity under this subchapter which is not computed
       under section 231b(a), 231c(a), or 231c(f) of this title, or any portion of a
       supplemental annuity under this subchapter, as community property for the
       purposes of, or property subject to, distribution in accordance with a court
       decree of divorce, annulment, or legal separation or the terms of any court­
       approved property settlement incident to any such court decree. The
       [Railroad Retirement] Board shall make payments of such portions in
       accordance with any such characterization or treatment or any such decree
       or settlement.

Railroad Retirement Solvency Act of 1983 § 419(a){3), 45 U.S.C. § 231m{b){2).

       Emphasizing marriage as a necessary predicate to a "decree of divorce," Mr. Silk

argues the 1983 amendment does not apply to the portion of the tier II benefit he

earned during his pre-marriage GIR with Ms. Broadsword. We disagree. The 1983

amendment expressly removes federal preemption and defers to state community

property law in characterizing and dividing tier II benefits upon divorce. In re Marriage
                                                                                              I
of Anderson, 134 Wn. App. 111, 115, 138 P.3d 1118 (2006) (citing Lee v. Lee, 727 So.

2d 622, 626-27 (La. Ct. App. 1st Gir. 1998); McGraw v. McGraw, 186 W. Va. 113, 115,

411 S.E.2d 256 (1991». Mr. Silk's petition for marriage dissolution empowered the

court to justly and equitably divide all the parties' assets, including the community­

property-like assets they acquired during their pre-marriage GIR. See RCW 26.09.080;

Connell, 127 Wn.2d at 349-51; Lindsey, 101 Wn.2d at 304. The 1983 amendment

plainly authorized the court's action under these circumstances. Therefore, the trial

court did not err in awarding Ms. Broadsword a community-property-like interest in Mr.

Silk's tier II railroad retirement benefit.

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No. 30875-8-111
In re Marriage of Silk

                                B. Equalization Payment

       The issue is whether the trial court erred in awarding Ms. Broadsword a property

equalization payment in lieu of personal property awarded to Mr. Silk. He contends the

court did not properly determine the property's value, as required to justly and equitably

award her equalization. We review marital property division for abuse of discretion.

Kraft, 119 Wn.2d at 450; Kolbe, 50 Wash. at 302. Under RCW 26.09.080, the trial court

must divide all marital property between the spouses in a manner deemed just and

equitable, considering four nonexclusive factors:

       (1) the community property's nature and extent;
       (2) the separate property's nature and extent;
       (3) the marriage's length; and
       (4) their respective economic circumstances, including the desirability of
       awarding the family home to the spouse with the majority of child custody time.

The court abuses its discretion if it divides marital property without any evidence on the

value of a substantial number of individual items. Wold v. Wold, 7 Wn. App. 872, 878,

503 P.2d 118 (1972); see also In re Marriage of Greene, 97 Wn. App. 708, 712, 986

P.2d 144 (1999).

       Here, the trial court awarded Mr. Silk the numerous tools, machines, and airplane

parts he amassed in the parties' shop and outbuildings. He failed to submit valuations

or photographs of these items and generally failed to cooperate. Ms. Broadsword

testified she thought a well-advertised auction could sell the items for up to $40,000.

The court determined the items were worth up to $10,000. Additionally, the court noted

Mr. Silk may have dissipated the marital property by hoarding these items and failing to

make them productive. But the court did not rely upon dissipation. Ultimately, the court


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In re Marriage of Silk

deemed it just and equitable to award Ms. Broadsword $7,500 of property equalization

in payments of $250 monthly. Considering the court's reasoned analysis and the lack of

genuine dispute over the valuation issue, the court did not abuse its discretion.

Therefore, we conclude the trial court did not err in awarding Ms. Broadsword a property

equalization payment in lieu of personal property awarded to Mr. Silk.

                                    C. Maintenance

      The issue is whether the trial court erred in awarding Ms. Broadsword spousal

maintenance. Mr. Silk contends the court misapplied the statutory factors and purpose.

We review a spousal maintenance award for abuse of discretion. In fe Marriage of

Washburn, 101 Wn.2d 168, 179,677 P.2d 152 (1984); see Cain v. Cain, 90 Wash. 402,

403,156 P. 403 (1916). Under RCW 26.09.090(1), the trial court may award

maintenance to either spouse in an amount and for a duration deemed just. considering

six nonexclusive factors:

      (1) their respective financial resources and abilities to meet their needs
      independently;
      (2) the marriage's length;
      (3) the time necessary for the spouse receiving maintenance to acquire
      employment-related education or training;
      (4) the standard of living they established while married;
      (5) the age, health, and financial obligations of the spouse receiving
      maintenance; and
      (6) the ability of the spouse paying maintenance to support himself or herself as
      well as the spouse receiving maintenance.

The purpose of spousal maintenance is to help support a needy spouse until he or she

is able to support himself or herself. In fe Marriage of Irwin, 64 Wn. App. 38, 55, 822
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P.2d 797 (1992); In fe Marriage of Luckey, 73 Wn. App. 201. 209, 868 P.2d 189 (1994).



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No. 30875-8-111
In re Marriage of Silk

       Mr. Silk argues Ms. Broadsword does not need spousal maintenance because,

after adjusting for the child support and property equalization payments he must make

to her, her income is higher than his. But Mr. Silk fails to consider her income supports

two people, unlike his. Even so, the trial court must do what it considers just, not what

Mr. Silk perceives as fair. His bare disagreement does not show the court abused its

discretion.

       The trial court reasoned Mr. Silk's net income was nearly twice that of Ms.

Broadsword's net income; while he worked and provided financial support throughout

their seven-year marriage and seven-year CIR,4 she served as O.S.'s primary caregiver

and had just recently secured full time employment with benefits; she was 47 years old

and he was 40 years old; both have suffered health problems not currently interfering

with their employment; both overestimated their expenses; even after adjustments, she

still lacks financial resources to pay all her expenses on her own but he has enough

financial resources left over to help pay some of her expenses; specifically, he can pay

her maintenance of $250 monthly until   0.5. turns 18 years old or graduates from high
school;5 the award is just enough in amount and duration to help her afford a residence


        4 Mr. Silk argues the trial court could not consider the seven years the parties
lived in a pre-marriage CIR because spousal maintenance is available solely upon
divorce. But he petitioned the court to dissolve his marriage to Ms. Broadsword, not his
CIR with her. And, in awarding spousal maintenance upon divorce, the court is not
limited to the factors listed in RCW 26.09.090(1) because they are expressly
nonexclusive. Mr. Silk's argument is unpersuasive.
        5 Mr. Silk complains the trial court's final order sounds too much like a child
support award because the payments must continue until 0.5. turns 18 years old or
graduates from high school. But because the court intended spousal maintenance to
help Ms. Broadsword afford a residence for herself and 0.5., it is logical the payments
should cease around his maturation, when her housing needs will change.

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In re Marriage of Silk

for herself and O.S. Considering all, we conclude the court did not abuse its discretion.

Therefore, the trial court did not err in awarding Ms. Broadsword spousal maintenance.

                              D. Attorney Fees and Costs

       The issue is whether the trial court erred in awarding Ms. Broadsword attorney

fees and costs. Mr. Silk contends the court misjudged the parties' respective needs and

abilities to pay. We review an award of attorney fees and costs in a divorce case for

abuse of discretion. In re Marriage of MacDonald, 104 Wn.2d 745, 751,709 P.2d 1196

(1985); Gibson v. Gibson, 67 Wash. 474, 477-78,122 P. 15 (1912). Under RCW

26.09.140, the trial court may award reasonable attorney fees and costs to either party

in a divorce case, considering the balance of their respective needs and abilities to pay.

In re Marriage of Moody, 137 Wn.2d 979,994,976 P.2d 1240 (1999); Koon v. Koon, 50

Wn.2d 577,581,313 P.2d 369 (1957).

       Again, Mr. Silk argues Ms. Broadsword does not need an award of attorney fees

and costs because, after adjusting for the child support, spousal maintenance, and

property equalization payments he must make to her, her income is higher than his.

And again, his bare disagreement does not show the trial court abused its discretion.

The record shows the court considered Ms. Broadsword's need and Mr. Silk's ability to

pay.

       Moreover, though not incorporated into its divorce decree or factual findings and

legal conclusions, the trial court's memorandum opinion thoroughly described Mr. Silk's

noncooperation and dubbed it "intransigence" that "required [Ms. Broadsword]'s

attorney to obtain ... information at a significant cost and expense." Clerk's Papers at


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In re Marriage of Silk

24. This is an alternative basis for affirming. See RAP 2.5(a) (providing this court may

affirm on any ground the record is suffiCiently developed for this court to fairly consider).

As an equitable remedy, a trial court may order a party to pay reasonable attorney fees

and costs, regardless of need or ability to pay, if his or her intransigence demanded

additional legal services. Eide   v. Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969); In re
Marriage of Greenlee, 65 Wn. App. 703,708,829 P.2d 1120 (1992); see also

Fleckenstein   v. Fleckenstein, 59Wn.2d 131, 133,366 P.2d 688 (1961); Gamache v.
Gamache, 66 Wn.2d 822, 829-30,409 P.2d 859 (1965). In sum, we conclude the trial

court did not err in awarding Ms. Broadsword reasonable attorney fees and costs.

       Both parties ask us to award them appellate attorney fees and costs. Under

RCW 26.09.140, we may, in our discretion, award either party reasonable attorney fees

and costs incurred on appeal from a divorce case. In exercising this discretion, we

consider the parties' financial resources as well as the arguable merit of the issues they

raise on appeal. In re Marriage of G.M.C., 87 Wn. App. 84, 89,940 P.2d 669 (1997),

affd, 136 Wn.2d 800, 966 P.2d 1247 (1998). We cannot properly evaluate a party's

financial resources unless he or she files an affidavit of financial need, as required by

RAP 18.1 (c). Mr. Silk's arguments lack merit and he did not file documentation

establishing his financial need. By contrast, Ms. Broadsword's arguments have merit

and she filed documentation establishing her financial need. As discussed above, the

record shows Mr. Silk's ability to pay. Therefore, we deny Mr. Silk's request and grant

Ms. Broadsword's request, contingent upon her compliance with RAP 18.1 (d).




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      Affirmed.

      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.


                                                  Brown, J.

WE CONCUR: 





Siddoway, A.C.J.




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