                                                                                                                 I IL_EC
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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO

                                                    DIVISION II

In re the Marriage of:                                                             No. 43788 -1 - II


JEANNE MARIE HARRIS,


                                       Appellant,


         MA




ROGER DUANE KELL,                                                           UNPUBLISHED OPINION




           LEE, J. —       Jeanne Marie Harris and Roger Duane Kell were married for approximately

five   years.   After they separated, they engaged in four years of litigation over the distribution of

approximately $200, 000 of property. The trial court primarily awarded the parties their separate

property      and entered    a judgment     distributing      less than $ 50, 000 in additional assets between the


parties.    Harris   appeals.     We   affirm    the trial   court.   In addition, due to the intransigent nature of


Harris' s appeal, we grant Kell' s request for attorney fees.

                                                             FACTS


           Harris    and   Kell   married   on   May   3, 2003.       Kell was an electrician working out of the

union hall. He also owned several rental properties. Harris was a Vancouver city councilwoman

and she owned a        consulting business.          After the parties married, they lived together in Harris' s

home.
No. 43788 -1 - II



        During the marriage, Kell worked as an electrician for several companies including Kraft

and   Boeing.       Harris    ran   for county        commissioner,    but lost.     Later she opened an Allstate


Insurance agency.          Although both parties contributed to household expenses ( Harris paid the

mortgage and        Kell   paid   for   utilities),   they primarily kept   their finances     separate.   During this

period, Harris was incurring large amounts of credit card debt.

        Harris      and   Kell   separated on     May    31, 2008.    The dissolution trial was continued several


times due to    a   variety   of reasons,    including    court congestion and     Kell'   s medical   issues. The trial


court also continued the trial for a period of time after Kell was diagnosed with cancer.


Ultimately, the dissolution did not go to trial until April 2012, four years after Harris and Kell

separated.




        Immediately after filing her petition for dissolution, Harris filed a motion for temporary

spousal maintenance of $3,          000     a month.     The trial   court ordered   Kell to pay Harris $ 1, 500 per


month. Over the course of the dissolution, maintenance was modified several times and reduced


from $ 1, 500 to $ 1, 000, from $ 1, 000 to $ 775, from $ 775 to $ 500,                     and   from $ 500 to $ 250.


Although the amounts varied, Kell paid Harris maintenance for 39 months, until April of 2012.


Over the 39 months that Harris received maintenance, she ran her own insurance agency until

she was forced to close the business. After Harris closed the business, she continued her position


as a Vancouver city councilwoman, but decided to return to school and pursue another graduate

degree rather than find additional employment or take additional jobs through her consulting

business.




                                                              2
No. 43788 -1 - II



         While the dissolution           was      pending, Harris declared          bankruptcy.    In the bankruptcy,

Harris discharged the majority              of   her    credit card     debt ( approximately $ 260, 000), but still had


three   mortgages on       her home     and a car        loan. Kell entered the marriage with a small amount of


manageable    debt.       However, after the parties separated, he began incurring debt due to attorney

fees and maintenance payments.


         During     the   marriage,     Harris     operated       the Allstate Insurance agency.     When she began


operating the agency, Harris routinely comingled her business and personal finances by making

business purchases from her personal account and using business funds to pay for personal

expenses.    In March 2009, Harris decided to execute two promissory notes in order to align her

business   and personal         finances.    She executed one promissory note from the business to herself

for approximately $41, 000 to be paid in installments of $1, 000 a month. She executed ,a second

promissory    note        from herself to          the      business    for approximately $ 42, 000 to be paid in


installments of $50 a month. The promissory note from herself to the business was discharged in

her   bankruptcy.     However, Harris transferred approximately $ 23, 000 from the business to her


personal account as payment on the first promissory note.

         Allstate redeemed Harris' s insurance agency in the fall of 2011, and executed a payout

agreement which provided             Harris      with $ 5,    562 a month for 12 months as compensation for the


economic    interest      she   had in her insurance          policies.   After Allstate redeemed Harris' s insurance


agency, the trial court ordered Harris to produce discovery regarding the basis for payments and

how Allstate      calculated      the   amount         of   the   payments.   The trial court also ordered Harris to




                                                                    C
No. 43788 -1 - II



transfer the Allstate payments to Kell' s attorney to be held in Kell' s attorney' s trust account

pending the    outcome of           the dissolution   and   property distribution.   Harris failed to comply with

the   court' s order      to   produce   discovery. Ultimately, the trial court found Harris in contempt and

ordered   Harris to       provide    the   discovery by February    24, 2012.   Harris also failed to comply with

the trial court' s contempt order.


          Harris'   s    attorney    withdrew.     After her attorney withdrew, Harris began representing

herself pro se and began filing numerous motions with the trial court. The trial court found that

most, if not all, of Harris' s motions were not grounded in law and, on at least two occasions,


ordered Harris to pay Kell' s attorney fees for responding to her motions.

          A month prior to the scheduled trial date, Harris filed a motion with the court asking to

use $ 2, 500 of the Allstate payments held in Kell' s attorney' s trust account to hire an attorney to

represent   her     at   trial.   Harris stated that she had already made arrangements with an attorney to

represent   her     at   trial.   The trial court granted Harris' s motion and ordered Kell' s attorney to pay

 2, 500 to Harris'         s new    attorney.   The trial court also allowed Kell' s attorney to withdraw an

additional $2, 500 to be paid toward Kell' s attorney fees.

          A few days before the scheduled April trial date, Harris' s new attorney filed a motion to

continue the trial, alleging that he would need an extra four weeks to arrange for additional

discovery    and         subpoenas    and prepare     for trial.   The trial court denied the motion based on


Harris' s prior representation to the court when she requested monies for attorney fees that if the

trial court gave her funds for an attorney, she would be ready for the scheduled trial date.




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No. 43788 -1 - II



         On the day of trial, Harris' s new attorney moved to present Harris' s 1099g income tax

statement as evidence of the character of the Allstate payments as severance pay. Kell' s attorney

moved to exclude the evidence because she had not seen the document, and Harris had not

complied with the trial court' s earlier contempt order requiring her to provide any evidence

regarding the Allstate       payments      by February     24, 2012.      The trial court granted Kell' s motion to


exclude because of Harris' s failure to comply with its contempt order.

         The trial court held a two -
                                    day dissolution trial in which no other witnesses besides Harris

and   Kell testified.      On April 27, 2012, the trial court issued a written memorandum decision to

the   parties.'     On July 6, 2012, the trial court entered its formal written findings of fact,

conclusions of      law,    and   decree   of   dissolution.    The trial court granted both parties the separate


property that     they brought into         the   marriage.         It granted Kell an award for work he did on


Harris' s home while he lived there, but granted Harris an almost equivalent award for rent due to


the disparity between the mortgage payments which she paid and the utilities which Kell paid.

The community debt that the couple incurred had been discharged against Harris in her

bankruptcy, but       the    creditor   was     pursuing   collection efforts    against   Kell.   Besides Harris' s


insurance agency ( which the trial              court   found   was    community property), the other community


property was essentially divided equally.

         As to Harris' s insurance agency, the trial court made the following findings:

          B.   Business asset and debts known as, Harris Allstate Insurance Company,
          including Allstate business and personal property. Said business has been
          redeemed by Allstate.



 The day after the trial, the court issued a memorandum decision but apparently failed to include
some  items of property. The trial court issued an amended memorandum decision including the
excluded property the next day.


                                                                5
No. 43788 -1 - II


                      1.     Personal property ( desk,             chairs,   filing      cabinet,    fax   machine, etc.) was

         acquired during the                  is therefore community property. The 2011
                                             marriage       and

         business tax return indicates the value of the property is $ 6, 786, which is adopted
                               This                   property is                   to the      petitioner, [ Harris].
         by the   court.                   personal                   awarded

                      2. [    testified that she failed to keep separate the finances of
                              Harris]
         personal and          business
                                affairs. To properly align personal and business expenses,
          Harris] executed two (2) promissory notes on 03/ 29/ 2009.
                                 a. [      Harris' s] bank records from April 2009 to May 2010 show that
         Harris Allstate Insurance                   Company transferred at least $ 23, 000 to [ Harris' s]
         personal account.                 Respondent is      entitled   to 50% of this value.
                                 b.        Additionally,    roughly $ 42, 000 of community property was
         discharged in          bankruptcy.            Respondent is entitled to $ 15, 000 of the community
         asset that was dissipated.
                      3.     No evidence was produced detailing the specific figures used to reach
         the monthly Allstate Termination Payout,                            other       than    an example     formula.     The
         first   payment          of $ 5,      562.31      was    issued     on    November 2011,              and   successive


         monthly           payments        have been issued in the It is unclear how long
                                                                                 same amount.


         these monthly payments will continue; although it is' anticipated they will end
         after   the twelfth          payment         is   received   for    a   total   payout of $66, 747. 72.         Due to
         prior court orders                allowing distribution       of    funds to the        parties, $   9, 797 remains in
          Kell'   s    attorney'      s]    trust   account   through 03/ 31/ 2012.               Of this   amount, [    Kell] is
         awarded $        5, 388      and [    Harris] is     awarded $      4, 408.      The remaining payouts ( April -
         October 2012)            are       to be divided 60/ 40 in favor                 of [ Harris].     The court retains

         jurisdiction over any payments received subsequent to October 2012, which shall
         be deposited into the Cowlitz County Superior Court Clerk' s office, pending any
         further hearing.

Clerk' s Papers ( CP) at 1482 -83.


         The trial court awarded one of the couple' s dogs, Lily the Chihuahua, purchased during

the   marriage,       to Kell.     The trial court also awarded each party items of their personal property

that were currently in the possession of the other party.

         The trial         court entered a          decree   of   dissolution. The decree contained a total judgment of


approximately $ 50, 000. However, the trial court ordered Harris' s share of the Allstate payments

held in Kell' s attorney' s trust account be applied toward Kell' s judgment and the total judgment




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No. 43788 -1 - II



was reduced       to approximately $ 35, 000.            The trial court also included a payment plan which


required    Harris to pay $ 500 dollars        per month         to satisfy the judgment.            At the hearing for the

presentation of the orders, Harris attempted to object to the trial court' s findings of fact line by

line.   The trial court asked her to simply provide a list of the specific findings to which she

objected;    however, Harris        continued       to   argue    about    the facts      of   the   case.   The trial court


eventually stopped her and told her that if she had additional objections, she could submit them

to the court in writing. Harris appeals.

                                                         ANALYSIS


         Harris raises 11 assignments of error which can be summarized into the following five

issues: the trial court' s property distribution, the trial court' s denial of Harris' s motion to

continue, the trial court' s characterization of the Allstate payments, the validity of the trial

court' s final decree of dissolution, and the trial court' s decision on attorney fees.

         Although Harris raises numerous issues, this is fundamentally a property distribution

case.   In a dissolution, the trial court is required to order a just and equitable distribution of


property    and   liabilities,   whether   community        or separate.      RCW 26. 09. 080.           When determining

what    is just   and      equitable,   the trial   court   must      consider (   1)     the nature and extent of the


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


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

distribution is to become         effective.    RCW 26. 09. 080( 1) -( 4).            The statute requires that the trial


court consider all the relevant factors. RCW 26. 09. 080.




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No. 43788 -1 - II



          The trial   court    has broad discretion to determine                     what   is just   and   equitable.   In re


Marriage of Rockwell, 141 Wn.                 App.     235, 242, 170 P. 3d 572 ( 2007).                A just and equitable


distribution   requires     fairness   over mathematical precision.                  In re Marriage of Crosetto, 82 Wn.

App.    545, 556, 918 P. 2d 954 ( 1996). "             Fairness is attained by considering all circumstances of

the   marriage and    by     exercising discretion,          not    by   utilizing inflexible   rules."     In re Marriage of

Tower, 55 Wn.        App.    697, 700, 780 P. 2d 863 ( 1989),              review    denied, 114 Wn.2d 1002 ( 1990). A


just and equitable distribution does not necessarily mean an equal distribution. In re Marriage of

DewBerry,      115 Wn.        App.    351,    366, 62 P. 3d 525,            review     denied, 150 Wn. 2d 1006 ( 2003).


 Under     appropriate circumstances [             the trial   court] ... .    need not award separate property to its

owner."    In re Marriage of White, 105 Wn. App. 545, 549, 20 P. 3d 481 ( 2001).

          A trial court' s decision in a dissolution will rarely be changed on appeal. In re Marriage

of Buchanan, 150 Wn.           App.    730, 735, 207 P. 3d 478 ( 2009) ( quoting               In re Marriage of Williams,

84 Wn.      App.     263,    267, 927 P. 2d 679 ( 1996),                  review     denied, 131      Wn.2d    1025 ( 1997)).


 Appellate     courts      should    not    encourage        appeals      by tinkering      with [    dissolution decisions]"


because the interests of the parties are best served by the finality of the trial court' s decision. In

re    Marriage of Landry, 103 Wn.2d 807, 809, 699 P. 2d 214 ( 1985).                            Accordingly, a trial court' s

property distribution in         a   dissolution       will,   be   reversed "      only if there is a manifest abuse of

discretion."    In    re    Marriage of Muhammad, 153 Wn.2d 795, 803,                            108 P. 3d 779 ( 2005).     A


spouse challenging a trial court' s decision in a dissolution bears " the heavy burden of showing a

manifest abuse of       discretion     on    the   part of   the trial    court."    Landry, 103 Wn.2d at 809 ( citing In

re    Marriage of Konzen, 103 Wn.2d 470, 478, 693 P. 2d 97,                          review   denied, 473 U. S. 906 ( 1985).
No. 43788 -1 - II



 The trial court' s decision will be affirmed unless no reasonable judge would have reached the

same conclusion."          Landry, 103 Wn.2d at 809 -10.

A.       HARRIS' S MOTION TO CONTINUE


         Harris argues that the trial court committed reversible error by denying her motion to

continue   the trial.      She asserts that the trial court' s decision must be reversed because the trial


court   failed to    produce     a complete       record       of   the decision     by (   1)   holding the hearing on the

motion to continue off the record and ( 2) entering the order denying the motion to continue 13

weeks    after   the trial    court   denied the        motion.         She also argues that the trial court abused its


discretion by denying the motion to continue on the merits because the trial court refused to

allow her attorney additional time to prepare for trial. Harris' s claims fail.

         Harris' s argument that the trial court' s failure to produce a complete record of the hearing

requires reversal     is   a meritless assertion.            Harris did not objector ask the trial court to make a


record   until well     after the     hearing.     An insufficient record on appeal precludes review of an


alleged error;     it does   not require reversal.           Bulzomi     v.   Dep' t ofLabor & Indus., 72 Wn. App. 522,

525, 864 P. 2d 996 ( 1994).           Harris   cites    to   no   authority that    provides otherwise.     She also fails to


cite to any authority supporting her assertion that the trial court' s delay in entering the order

constitutes      reversible   error.    We do not consider issues that are unsupported by citation to

argument or       authority.     RAP 10. 3(      a)(   6);   Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d

801, 809, 828 P. 2d 549 ( 1992).           In addition, where a party cites to no authority supporting her

assertion, we assume she          has   none.      DeHeer v. Seattle Post -
                                                                          Intelligencer, 60 Wn.2d 122, 126,

372 P. 2d 193 ( 1962) ( " Where no authorities are cited in support of a proposition, the court is not




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No. 43788 -1 - II



required to search out authorities, but may assume that counsel, after diligent search, has found

none. ").




         Harris' s remaining contention that the trial court abused its discretion by denying her

motion   to   continue on      the   merits   fails because Harris is   unable   to demonstrate   prejudice.   The


denial of a continuance is reversible error upon a showing of both an abuse of discretion and

resulting    prejudice.   State v. Herzog, 69 Wn. App. 521, 524, 849 P. 2d 1235, review denied, 122

Wn.2d 1021 ( 1993).       Harris primarily argues that had the trial court granted the continuance, her

counsel would have been able to remedy the discovery violation regarding the tax documents

related to the Allstate termination payment plan ( TPP) payout, and, as a result, she would have

been    granted   the Allstate TPP       payout as    her   separate   property.   But as explained below, the


evidence was excluded because Harris failed to comply with the trial court' s contempt order. A

motion to continue would not have cured Harris' s violation of the trial court' s contempt order;


therefore, it is unlikely the evidence would have been admitted even had a continuance been

granted. Further, as discussed below, the trial court made a just and equitable distribution of the


Allstate payment. Harris was not prejudiced by the trial court' s denial of her motion to continue.

Therefore, Harris' s claim that the trial court committed reversible error by denying her motion to

continue lacks merit.


B.       PROPERTY DISTRIBUTION


         Throughout her brief, Harris raises issues related to the actual value and distribution of


the property.       She argues that ( 1) the trial court improperly assigned value to various pieces of

property, (   2) the trial court' s property distribution was disproportionate, and ( 3) the trial court

erred   by   awarding   Lily   the Chihuahua to Kell.       She also argues extensively about the distribution



                                                            10
No. 43788 -1 - II



of   the Allstate     payments, which       is discussed below. The trial court did not abuse its discretion,


and we affirm the trial court' s property distribution.

           As an initial matter, Harris' s arguments regarding the value of any particular piece of

property    are not     properly      raised- on appeal.      These issues are essentially challenges to the trial

court' s findings of fact, and Harris has failed to assign error to any of the trial court' s findings of

fact. RAP 10. 3( g) ( " A        separate assignment of error for each finding of fact a party contends was

improperly       made must       be included       with reference       to the   finding by   number. ");   In fact, Harris


fails to even mention these issues in her assignments of error or issues pertaining to assignments

of error.    Unchallenged findings            of   fact   are verities on appeal.      Therefore, we accept the trial


court' s   findings regarding the        value of   property.           With regard to her argument that the trial


court' s award was        disproportionate, Harris         states, "[   T] he court reviewed the documents provided


by [ Kell' s]    counsel       and   distributed property in      a prejudicial manner against [       Harris]."    Br. of


Appellant       at   24 -25.    Although she cites authority for the proposition that a disproportionate

award is grounds for reversal, she fails to present any argument actually establishing that the trial

court' s award was,        in fact, disproportionate.         Accordingly, we will not take it upon ourselves to

dissect what the trial court determined was a just and equitable distribution of property. Landry,

103 Wn.2d at 809.


           Harris next argues that the trial court abused its discretion by awarding Lily the

Chihuahua to Kell.             Harris states that she paid for and registered the dog. However, she also

states,




           There was no justification to taking [ Harris' s] dog, whom she had loved and cared
           for solely, especially in the four years since separation and summarily handing it
           over to the [ Kell] who had obtained his own dog, post separation.



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No. 43788 -1 - II



Br. of Appellant at 27 -28.


Kell testified that Lily was originally his birthday present and during the marriage, he and Lily

went everywhere           together.    The trial court found Kell' s testimony more credible than Harris' s

testimony.        Furthermore, Harris testified that she had trouble paying her vet bills and had

attempted to sell some of the dogs because she did not have enough time or money to properly

care   for them.     Given the testimony, it was not unreasonable for the trial court to conclude that

Kell had an equal emotional attachment to Lily, as well as a superior ability to care for her.

Therefore, the trial court did not abuse its discretion by awarding Lily to Kell.

C.        ALLSTATE PAYMENTS


          Several    of   Harris'   s assignments of error relate   to the Allstate   payments.   Essentially, she

argues that the trial court abused its discretion by excluding additional evidence related to the

Allstate   payments.        Harris also argues that the trial court mischaracterized the Allstate payments


as   community property.            Here, the trial court did not abuse its discretion by excluding Harris' s

additional evidence. Further, the trial court did not commit reversible error by characterizing the

Allstate payments as community property.

          A trial court' s decision.to admit or exclude evidence is reviewed for abuse of discretion.

Thomas      v.   Wilfac, Inc.,   65 Wn. App. 255, 262, 828 P. 2d 597, review denied, 119 Wn.2d 1020

 1992).    Harris argues that the trial court erred by excluding the additional evidence related to the

nature of the Allstate TPP payout because Kell had the evidence in March 2012, contrary to the

assertion    that   he had     not    received   it.   However, Harris' s argument ignores the trial court' s


contempt order.        In the trial court' s contempt order, Harris was required to provide all evidence


related    to the Allstate     payments     by February    24.   Harris failed to comply with the trial court' s



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No. 43788 -1 - II



order. Because the trial court excluded the evidence based on Harris' s failure to comply with its

earlier order, it did not abuse its discretion by excluding Harris' s additional evidence.

          Harris also argues. that the trial court abused its discretion by failing to consider lesser

remedies.         However, Harris failed to properly preserve this issue for review at the trial court.

When the trial court decided to exclude her evidence, she did not request an alternative sanction,


nor    did    she    ask     the trial   court      to    make    specific   findings.    Because she failed to raise her


arguments before the trial court, or give the trial court an opportunity to correct the alleged error,

her claim is not preserved for appeal. See In re Marriage ofStudebaker, 36 Wn. App. 815, 818,

677 P. 2d 7789 ( 1984) (             declining to address an issue because the appellant failed to present the

claim    in   a substantive       fashion      at   the trial   court);   Smith v. Shannon, 100 Wn.2d 26, 37, 666 P. 2d


351 ( 1983) (       the reasons issues may not be raised for the first time on appeal is to afford the trial

court an opportunity to correct errors, thereby avoiding unnecessary appeals).

          Although Harris purports to argue that the trial court mischaracterized the Allstate


payments as community property, her arguments rest on the evidence that was properly excluded

by    the trial     court.    However, even if this court assumes that the Allstate payment was Harris' s


separate      property, the       error   is   not reversible.        Failure to properly characterize property may be

reversible error, but mischaracterization of property is not grounds for setting aside a trial court' s

property distribution if the division                      of   the property is fair     and   equitable.   In re Marriage of

Gillespie, 89 Wn.             App.   390, 399, 948 P. 2d 1338 ( 1997) (             citing In re Marriage of Shannon, 55

Wn.    App. 137,       140, 777 P. 2d- 8 ( 1989)).              Reversal is necessary only when the characterization of

the property is         crucial    to the distribution.            In re Marriage of Langham and Kolde, 153 Wn.2d

553, 563      n.7,    106 P. 3d 212 ( 2005) (            citing Shannon, 55 Wn. App. at 142).



                                                                      13
No. 43788 -1 - II



          Harris inaccurately asserts that the trial court awarded the entirety of the Allstate TPP

payout    to Kell.   In fact, the trial court awarded 40 percent of the Allstate TPP payout to Kell and

the remaining 60          percent   to Harris.    After the property division, Kell received a judgment of

approximately $ 50, 000.          The trial court then applied Harris' s portion of the Allstate TPP payout


toward satisfying the judgment.               Accordingly, we determine whether the trial court abused its
                                                                                      2
discretion    by   awarding Kell 40      percent of   the Allstate TPP      payout.




          Here, the Allstate agency was opened during the marriage, and the business itself would

be considered community property. In re the Marriage of Short, 125 Wn.2d 865, 870, 890 P.2d

12 ( 1995).       By the time of the dissolution, the business had failed leaving only the business' s

personal    property ( desks,       chairs,   computers, etc.)      and   the Allstate payments.          Further, Harris


discharged the promissory note she owed to the business in her bankruptcy; thus, divesting the

community business           of   approximately $ 42, 000.       After the parties separated, Harris continued to


draw money from the business for her personal use while receiving maintenance payments from

Kell.    Ultimately, the trial court awarded Harris all the business' s personal property ( almost

  10, 000), and 60 percent of the Allstate TPP payout. In addition to the 40 percent of the Allstate


TPP     payout,    Kell   was awarded credit     for $ 15, 000    of the $ 42, 000 Harris discharged in bankruptcy

and. half of   the $ 23, 000 Harris      removed     from the business for her            personal use.   The trial court


did not abuse its discretion by awarding Kell 40 percent of the Allstate TPP payout in its

distribution of property.



2 To the extent that Harris' s issue can be defined as challenging the trial court' s decision
applying the portion of the Allstate payments awarded to Harris toward Kell' s judgment, she
fails to present any argument or authority supporting the contention that the trial court lacks the
authority to make provisions for enforcing or satisfying a judgment.



                                                             14
No. 43788 -1 - II



D.         THE TRIAL COURT' S DECREE OF DISSOLUTION


           Harris challenges the validity of the decree of dissolution itself based on her assertion that

certain facts in the decree are inconsistent with the trial court' s: original written memorandum


decision. Harris does not assign error to the findings of fact, nor does she argue that the facts are

not   supported       by    substantial   evidence.         Because a trial court' s written memorandum of its


decision is not binding, inconsistencies between the memorandum decision and the final orders

do not invalidate the decree or require reversal.

            A trial court' s oral or memorandum opinion is no more than an expression of its

informal     opinion at       the time it is   rendered."        State v. Mallory, 69 Wn.2d 532, 533, 419 P. 2d 324

 1966).     The memorandum opinion has no effect unless it is formally incorporated into the trial

court' s   final    orders.    Mallory, 69 Wn.2d            at   533 -34 ( citing Ferree   v.   Doric Co., 62 Wn.2d 561,


383 P. 2d 900 ( 1963); Clifford           v.   State, 20 Wn.2d 527, 148 P. 2d 302 ( 1944)).            We consider a trial


court' s oral or memorandum decision only so far as it is consistent with the trial court' s written

findings     of    fact,   conclusions    of   law,   and    final judgment.     Reynolds Metals Co. v. Elec. Smith


Constr. &       Equip.     Co., 4 Wn.     App. 695,     701, 483 P. 2d 880 ( 1971) (        citing Radosevich v. County

Comm'      rs   of Whatcom        County,      3 Wn.   App. 602,         476 P. 2d 705 ( 1970)).      Accordingly, to the

extent that the trial court' s memorandum opinion is inconsistent with its formal written findings


of fact, conclusions of law, and decree of dissolution, it has no effect and is not considered by

this court.


           To the extent that Harris argues that the trial court' s findings of fact, conclusions of law,

and decree of dissolution are invalid because the trial court refused to allow Harris to object to


each specific line item with which she disagreed by rearguing the facts of the case, her argument



                                                                    15
No. 43788 -1 - II



lacks merit. First, the trial court gave Harris the opportunity to object in writing, which she did

by filing   a motion      to   reconsider on        July   13, 2012.      Moreover, the trial court' s actions did not


preclude    Harris from appealing the           order, nor      did it   prejudice   her    on review.   An appellant may

challenge any finding of fact in the trial court' s final order by properly assigning error to the

finding   on appeal.      See RAP 10. 3(       a)( 4).     We review all challenged findings of fact to determine


whether     they   are supported       by   substantial evidence         in the   record.    In re Marriage of Rockwell,

141 Wn.        App.   235, 242,        170 P. 3d 572 ( 2007).            Our review of the trial court' s findings is


precluded only when the appellant either ( 1) fails to challenge. the findings of fact or ( 2) fails to

perfect   the   record.    See In re Marriage of Akon, 160 Wn. App. 48, 57, 248 P. 3d 94 ( 2011)

 unchallenged         findings    of   fact   are   verities   on     appeal);    Bulzomi, 72 Wn.        App.   at   525 (   an



insufficient trial     record precludes review of              the    alleged error).       Accordingly, the trial court' s

refusal to allow Harris to continue with her line by line factual objections at the hearing for

presentation of the final orders did not prejudice her and does not invalidate the trial court' s final

orders.




          Harris also argues that the trial court improperly included a payment plan in the decree of

dissolution.       She   baldly    asserts    that "[    t] here is no authority in law for the court to assign a

payment plan."           However, she fails to include any supporting argument or authority for this

proposition. Br. of Appellant at 28.


          The law is clear that the trial court maintains jurisdiction to enforce an award granted in a

decree    of   dissolution.      In re Marriage of Burrill, 113 Wn. App. 863, 874, 56 P.3d 993 ( 2002),

review    denied, 149 Wn.2d 1007 ( 2003).                  Thus, we decline to review Harris' s bald assertion that




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the trial court lacked authority to enter a payment plan enforcing the judgment in the decree of

dissolution.


E.        ATTORNEY FEES

                                                                                                     3
          Harris   challenges   the trial   court' s award of          limited attorney fees to Kell .   Both parties


request   attorney fees   on appeal under          RAP 18. 1.         RCW 26. 09. 140 provides both the trial court


and   this- court the authority to     grant   attorney fees in         a   dissolution proceeding. RCW 26. 09. 140


states:




          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.
                  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.

When considering the financial resources of both parties, the court balances the financial need of

the requesting party      against    the   other   parry'   s   ability to pay.   In re Marriage of Pennamen, 135

Wn. App. 790, 807 -08, 146 P. 3d 466 ( 2006).

          However, " [ a] s   an independent ground we may award attorney fees and costs based on

intransigence of a party, demonstrated by litigious behavior, bringing excessive motions, or

discovery    abuses."     In re Marriage of Wallace, 111 Wn. App. 697, 710, 45 P.3d 1131 ( 2002),

review    denied, 148 Wn.2d 1011 ( 2003).                       When the award of attorney fees is based on




3
  In addition to the award of attorney fees included in the decree of dissolution, the trial court
intermittently granted Kell attorney fees for responding to Harris' s continual, and often meritless,
motions. Harris does not appeal these orders.


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No. 43788 -1 - II



intransigence, the       court     does      not consider        the   parties'    financial   resources.    Wallace, 111 Wn.


App. at 710.

          We   review     the trial     court' s   decision granting attorney fees for             abuse of   discretion. In re


Marriage     ofSpreen,      107 Wn.       App.     341, 351, 28 P. 3d 769 ( 2001).             The   trial   court    made     the



following finding regarding Harris' s behavior in this case:

          In this   case,   the    petitioner, [      Harris],    doggedly abused the discovery process and
          has been found in contempt for that abuse which dramatically increased fees.
          Additionally, petitioner filed motions that were not well grounded in fact nor law
          that unnecessarily increased              costs    to Respondent, [ Kell].


CP   at   1495.   Although Kell had spent approximately $50, 000 in attorney fees over the course of

the dissolution, the trial         court awarded            him $ 6, 500 in attorney fees to be         paid   by    Harris.   The


disparity between the actual cost of Kell' s attorney fees and the trial court' s award demonstrates

that the trial court considered the award based on the amount Harris' s intransigent behavior


unnecessarily increased Kell'             s   attorney fees.           The trial court did not abuse its discretion in its


award of attorney fees to Kell, and therefore, we affirm the trial court' s award of attorney fees.

           Regarding the request for attorney fees on appeal, Harris urges us to consider the parties'

financial    position     and     the   merit    of   the issues       raised     on appeal.    Kell alleges this appeal is a


continuation of Harris' s intransigent behavior and this court should award attorney fees to him

regardless of the parties' relative financial situation.


           Harris has failed to          raise     any issue      with      arguable merit.      Many of her arguments are

unsupported         by   authority      or    have     no    basis in law.           Harris has continued her pattern of


intransigent behavior through this appeal. Therefore, we grant Kell' s request for attorney fees in

a reasonable amount to be determined by a commissioner of this court.




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No. 43788 -1 - II



        We affirm


        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.


                                                                     i


                                                                    Lee, J.




 I &/




                       1,   j, .
                      Maxa, P. J.




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