                                                                            FILED
                                                                         AUGUST 29, 2019
                                                                 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 the Matter of the Marriage of,             )
                                              )         No. 35133-5-III
LORI VAN DE GRAAF,                            )
                                              )
                     Respondent,              )
                                              )
       v.                                     )         UNPUBLISHED OPINION
                                              )
ROD D. VAN DE GRAAF,                          )
                                              )
                     Appellant.               )

       KORSMO, J. —
                       “Millions for defense, not a cent for tribute.”

       This motto, adopted by Americans in the wake of the XYZ Affair,1 apparently also

was adopted by appellant Rod Van de Graaf in the wake of Lori Van de Graaf’s filing for

dissolution of the couple’s 26-year marriage. The difference in historical outcome—

American resolve to live by its principles led to a treaty with the revolutionary French

government, while Mr. Van de Graaf’s resolve to fight turned this matter into an

extended campaign of scorched earth practices—reflects the differences between resolve

practiced by a defender and resolve shown by an aggressor. We largely affirm the trial



       1
       EMMA WILLARD, HISTORY OF THE UNITED STATES, OR REPUBLIC OF AMERICA,
288-289 (New York, A.S. Barnes & Co.; Cincinnati, H.W. Derby & Co. 1849).
No. 35133-5-III
In re Marriage of Van de Graaf


court’s dissolution decree and award respondent Lori Van de Graaf her attorney fees in

this appeal.2

       To date, the decree has spawned seven appeals, which we have grouped into four.

This case, Van de Graaf I, is the substantive appeal from the decree of dissolution. Van

de Graaf II involves appeals from trial court orders awarding suit money to Lori. Van de

Graaf III is an appeal from an order changing title to real property awarded to Lori. Van

de Graaf IV primarily involves appeals from contempt rulings related to the enforcement

of the decree and the suit money awards. These cases also include an extensive number

of motions before our commissioner, few of which are relevant to this opinion.

Originally, the contempt cases were consolidated with this appeal from the dissolution

decree, but our commissioner later severed the contempt cases and grouped them

together. One result of the reconfiguration is that briefing was completed on some of

those rulings when they were consolidated with this case and others originally were not

briefed at all due to a stay. Since all of the briefing is now in, we will regroup some of

the issues in different configurations than our commissioner did.

       This appeal presents eleven issues, which we primarily address in the order raised

by the parties. First, however, we turn to a discussion of the facts related to the marriage




       2
        For convenience and clarity, we will refer to the parties by their first names or as
appellant or respondent.

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In re Marriage of Van de Graaf


and family businesses, before looking at the trial rulings and subsequent procedural

history of this case. Then we will consider the issues presented by this appeal.

                               FACTUAL BACKGROUND

       Rod and Lori wed in 1985. He was 27 and she was 24. The couple have four sons

who were born between 1986 and 1996. Lori has a bachelor’s degree and a teaching

certificate. She taught full-time for one year prior to the birth of her eldest son. Since

that point she has raised the four children and, later, returned to the classroom as a part-

time substitute teacher.

       Rod worked as a salaried employee for his family’s cattle business, Van De Graaf

Ranches (VDGR). The business was founded by his parents, Dick and Maxine Van de

Graaf. All three of their children—Rod, Karen, and Rick—worked for VDGR. VDGR is

a major cattle operation and owns stockyards and feedlots. Van de Graaf Ranch

Properties, a related business, leases land for cattle grazing. In addition, the three

children formed various partnerships related to the cattle business that engaged in joint

ventures with VDGR. The most significant of those partnerships for purposes of this

case was Midvale Cattle Company.

       Midvale was created by the three siblings in 1991 as a general partnership, with

each of them holding a one-third interest.3 Midvale operated a cattle raising business and


       3
          In 2003, the three siblings converted Midvale from a partnership to a limited
liability company.

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No. 35133-5-III
In re Marriage of Van de Graaf


leased feedlots and grazing land from their parents’ companies. Each of the three

siblings borrowed $2 million from VDGR to capitalize Midvale. Lori and Rod jointly

executed a $2 million promissory note to VDGR. The note was secured by the couple’s

interest in Midvale and other personal assets.

       The original $2 million promissory note called for semi-annual interest payments

and three equal principal payments due in 1995, 2000, and 2005. The note was amended

in 1993 to adjust the interest rate, and again in 1995 to extend the principal payment due

dates to 2000, 2005, and 2010. Rod and Lori missed the scheduled principal payments,

but they did regularly pay interest on the note. Other than $350,000 Rick paid directly to

Dick in 1991 when Dick threatened to “recall” Rick’s note following a family dispute,

none of the siblings ever paid any principal on their individual notes.

       Midvale took over many of VDGR’s operations after Dick retired. VDGR gives

Midvale favorable terms in the joint business ventures, paying Midvale to manage VDGR

land and allowing Midvale to use the land for its cattle business as well as lease the land

to others. VDGR pays management fees to Midvale and allows Midvale to keep rents

collected for leasing out the VDGR lands. Midvale’s owners received “guaranteed

payments” on a bi-weekly basis that netted each $3,846. Midvale also paid health

insurance for the entire family and made additional distributions “as needed.” The

company also paid all of the family’s vehicle expenses and wrote off, as business

expenses, Rod’s hunting trips.

                                             4
No. 35133-5-III
In re Marriage of Van de Graaf


      Rod and Rick jointly purchased 342 acres of pasture land near Ellensburg from

their parents in 1977. They purchased the land for $120,000. The brothers paid $100

down and agreed to pay the balance, with interest, at $4,800 annually. When Rod and

Lori married in 1985, he still owed nearly $51,000 of his $60,000 share of the purchase

price. The balance was paid off in 2004. The brothers leased the land to VDGR for

cattle grazing and used the income from the lease to pay property taxes and water usage.

      Prior to Rod’s marriage, his parents had created a “cattle account” for him. That

account allowed him to buy and sell cattle for his own personal profit separate from

VDGR. After his marriage to Lori, he continued his salaried employment with VDGR

and also continued to operate the cattle account. By 1989, the cattle account had

accumulated profits of nearly $1.4 million.

      The couple used the cattle account profits to build a luxurious home. The family

home was described at trial as “massive, well appointed, draped with trophy mounts from

[Rod]’s many hunting trips, and featured an indoor pool and Persian carpets.” The

couple separated in 2011 when Rod moved out that July. He then lived rent free in

another house owned by VDGR with his girlfriend and her family.

      In 2012, the senior Van de Graafs created an estate plan to transfer 30 percent

interests in VDGR to Rick and Karen, but not to Rod. Through a combination of loans

and gifts, the parents transferred 90 percent of the VDGR stock in equal shares to Rick,

Karen, and a newly created “Maxine Van de Graaf 2012 Family Trust.” Dick was the

                                              5
No. 35133-5-III
In re Marriage of Van de Graaf


grantor of the 2012 trust, while Maxine was the beneficiary and trustee. Rod was a

“permissible beneficiary” and the first alternate trustee.

       For estate tax purposes, VDGR was given a discounted value of $5.71 million,

with the 90 percent transferred to Rick, Karen, and the 2012 trust valued at $5.1 million.

Rick, Karen, and the 2012 trust each borrowed $833,333 from VDGR to acquire their 30

percent interests. For that sum, which was considered the “sold interest”4 in VDGR, the

purchasers acquired 1,500 shares of nonvoting common stock in the company. The

purchase was financed by royalties received from the sale of manure that Midvale

processes and sells. For the 20 years prior to the estate plan, the manure had been sold by

Midvale without payment of royalties to VDGR and had earned the partnership up to

$1,000,000 annually.

       Rod and Lori had set up “529 education accounts” for their four sons. The

couple’s youngest son, N.V.D.G., was 20 and had completed his sophomore year at

Washington State University at the time of trial. Rod had also created a uniform gift to

minor account (UGTMA) for the boy. At trial, the boy and his mother testified that the

UGTMA was not intended to pay for college and that the 529 education account had been

exhausted. He was using the 529 account of an older brother who had not completed




       4
         The remaining value of approximately $866,666 was considered the “gifted
interest.”

                                              6
No. 35133-5-III
In re Marriage of Van de Graaf


college. Rod testified that N.V.D.G. had $123,000 available to him between the two

accounts.

                                 PROCEDURAL HISTORY

       Lori filed for dissolution of the marriage on October 7, 2011. The following July,

the trial court entered temporary payment orders requiring Rod to pay Lori $3,000 per

month in maintenance plus an additional $1,500 per month to cover utilities and other

expenses. Lori remained in the house pending trial.

       After extensive pretrial proceedings, a five-day dissolution trial began on

September 27, 2016. There was conflicting evidence entered on a number of financial

issues. The court entered findings of fact and/or conclusions of law on the following

topics germane to this appeal.

       Rejecting Rod’s argument that Lori had no need for maintenance and/or could

return to full time teaching, the court directed that Rod pay Lori spousal maintenance of

$6,000 per month until one or the other died. The court also directed that N.V.D.G. and

each parent pay one-third of any college expenses not covered by the child’s 529 account.

       The court valued the couple’s share of Midvale at $2 million dollars, choosing a

valuation midway between Lori’s expert’s opinion of $2.2 million and Rod’s expert’s

valuation of $1.7 million.5 The court concluded that the $2 million promissory note the


       5
        The experts agreed that their differences resulted from the high cattle prices
obtained by Midvale in 2014 and the lower prices realized in 2015.

                                             7
No. 35133-5-III
In re Marriage of Van de Graaf


couple had signed was illusory and did not devalue their share of the company.6 The

court valued the residence at $1.4 million in accordance with the valuation of Lori’s real

estate agent; Rod had valued the home at $772,000. The court determined that the cattle

account funds had been comingled with community funds and characterized both the

house and the cattle account as community property. Turning to the Ellensburg property,

the court ruled that it constituted community property since the bulk of the payments

came from community assets.

       Determination and treatment of any interest Rod might have in VDGR presented a

complicated issue in light of the creation of the Maxine Trust that was being funded, in

part, by Rod’s Midvale assets, and was clearly designed to be transferred to him. The

court stated:

       And there is ample evidence that such a transfer is going to take place at
       some time after the marriage is dissolved. But there is no evidence that she
       has made such a transfer, so [Rod’s] interest in the company remains
       inchoate. So, I do not believe that Respondent’s incipient ownership in the
       company is an asset subject to division by this court. However, I believe
       the court can consider the likely acquisition of this interest in determining
       what is just and equitable in the division of other assets and application of
       the factors enumerated in RCW 26.09.090.

Clerk’s Papers (CP) at 785.



       6
        Subsequent to that ruling, the senior Van de Graafs sued Rod and Lori in an
attempt to collect on the note. The trial court dismissed the complaint on Lori’s motion
for summary judgment, ruling that the claim was barred by the statute of limitations. See
Yakima County Superior Court file No. 16-2-03511-39.

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No. 35133-5-III
In re Marriage of Van de Graaf


       The trial court evenly divided the property, although it ordered Rod to make a

transfer payment of $1,171,200 to Lori in order to equalize the two estates. Of the

previously noted assets, the court gave Midvale and the family home to Rod, while

assigning the Ellensburg property to Lori. The court also gave Rod life insurance

policies with a cash value of $116,000. Rod had testified that the policies belonged to the

marital community. The court also denied both parties’ requests for attorney fees, ruling

that although significant resources had been expended in litigation, “both parties have

sufficient wherewithal to pay their own costs and fees.” CP at 788.

       Rod filed the notice of appeal that initiated this case on March 17, 2017.

       Lori sought reconsideration of the attorney fee ruling, arguing under Friedlander7

that she was entitled to fees for the extraordinary litigation costs engendered by the

complicated business concerns and the family’s resistance to sharing information about

them. The court agreed and awarded Lori her attorney fees for the outstanding balance

owed her attorney of $58,675, approximately one-half of the attorney fees she had

incurred to that point.

       Lori also brought a motion for contempt due to Rod’s failure to pay the monthly

maintenance ordered by the court. He, in turn, sought to modify that ruling on the basis

that his monthly income was substantially diminished by falling cattle prices, he had not


       7
           Friedlander v. Friedlander, 58 Wn.2d 288, 362 P.2d 352 (1961).


                                             9
No. 35133-5-III
In re Marriage of Van de Graaf


received any interest in VDGR, and he could not cash in the insurance policies because

they were actually owned by a trust and not by the couple. He subsequently filed a CR

60 motion to vacate the property distribution order using the same argument about the

insurance policies.

       The trial judge held a hearing April 14, 2017, and found Rod in contempt for

willful failure to pay spousal maintenance since November 1, 2016. The court awarded

Lori a judgment for the past due support while denying Rod’s motion to modify or reduce

the support obligation. The court also entered judgment for the attorney fees awarded on

reconsideration.

       A new contempt motion was filed the following month when Rod failed to comply

with the April contempt order. Rod filed a cross-motion for contempt seeking to force

Lori to vacate the premises and pay the debts assigned her by the decree. A court

commissioner found Rod in contempt for willful failure to pay.

       Rod moved to revise the ruling, but the trial judge denied the motion. While

revision was pending, Lori filed a motion asking for $65,000 in suit money to defend

against Rod’s appeal. The commissioner awarded her $30,000. Rod was also found in

contempt for willful failure to pay child support in July and August 2017.

       Rod filed notices of appeal from several of the post-trial rulings, as well as an

amended notice of appeal for this case. Meanwhile, he sought multiple extensions of his

briefing obligation in this court, leading our commissioner to require the brief by October

                                             10
No. 35133-5-III
In re Marriage of Van de Graaf


31, 2017, and warning that no more extensions would be granted. When that deadline

passed without a brief, Lori moved to dismiss the appeal, citing the failure to comply

with this court’s order as well as the failure to pay the suit money and continued misuse

of the appellate rules for purposes of delay. The brief of appellant was filed January 2,

2018.

        Lori also successfully sought a new contempt order from the superior court over

Rod’s failure to pay the suit money. In response to that ruling, Rod paid $10,000 of the

$30,000 ordered. The commissioner found Rod in willful violation of the suit money

rulings and suspended a five-day jail sentence while indicating that a bench warrant

would issue if the remaining money was not timely paid. That ruling led Rod to file a

series of unsuccessful emergency motions with this court and the Washington Supreme

Court seeking stays of the contempt rulings.

        Rod filed a supersedeas bond in the amount of $361,240 on February 21, 2018, to

stay enforcement of the equalization payment and the judgment for attorney fees in the

trial court. Discovery subsequently showed that Rod’s sister and parents had paid nearly

$230,000 in fees and costs for his appellate attorneys as of June 2018. Meanwhile, the

superior court commissioner awarded Lori additional suit money. The appeal of that

award is the subject of Van de Graaf II.

        In August 2018, Lori renewed the motion to dismiss the appeal due to failure to

pay the suit money. She alternatively sought to condition Rod’s continued participation

                                            11
No. 35133-5-III
In re Marriage of Van de Graaf


in the appeal on his payment of the suit money. Our commissioner denied the alternative

relief, but passed the motion to dismiss on to the panel that heard the case.

       During our March 2019 term, a panel heard oral argument of this case and also

considered, without argument, Van de Graaf II. We directed the trial court to enter

findings concerning its attorney fee award in this case. The trial court timely complied

with that direction and returned findings to this court. We also lifted the stay of the cases

that constitute Van de Graaf IV. Those cases ultimately were heard by this panel without

argument on our August 2019 docket. Meanwhile, the same panel considered the Van de

Graaf III appeal without argument on June 10, 2019. The other three appeals will be

addressed in separate opinions.

                                        ANALYSIS

       The initial issue for our consideration is Lori’s motion to dismiss the appeal. We

then turn to the issues presented by Rod.

       Motion to Dismiss

       The motion to dismiss is predicated on Rod’s failure to prosecute the appeal in a

timely fashion and for using the appeal for the improper purposes of delay and imposing

costs on her. Although this claim largely was founded on Rod’s intransigent behavior in

the postdecree time period, matters that primarily are issue in Van de Graaf IV, it is

raised in this appeal, in part due to the previous consolidation of the cases. We address

the issue in this appeal because of the significance of the motion to the entire litigation.

                                              12
No. 35133-5-III
In re Marriage of Van de Graaf


       RAP 18.9(c) permits this court to dismiss an appeal for, among other reasons,

want of prosecution or if it was brought solely for purposes of delay. Sanctions may be

appropriate where one party is intransigent or uses the rules for delay. See, e.g., Mattson

v. Mattson, 95 Wn. App. 592, 976 P.2d 157 (1999) (husband’s intransigence in making

incremental disclosures of his income only when prodded by wife’s counsel, and his less

than candid portrayal of his termination of optometry clinic lease that led to his voluntary

underemployment, justified award of attorney fees to wife on appeal in postdissolution

child support modification proceeding).

       Although we agree with the trial court that Rod has demonstrated intransigence

throughout this entire case, we do not agree that dismissal is required. This court has not

found, nor has Lori cited, any previous case in which an appeal was dismissed due to

intransigence or purposeful delay. Instead, it appears the usual remedy for intransigence

on appeal is to order the intransigent party to pay the other party’s attorney fees. Id. at

606; Chapman v. Perera, 41 Wn. App. 444, 455-456, 704 P.2d 1224 (1985). We will

address the appropriateness of a fee award in each case, including at the end of this

opinion.

       The merits of all of the issues having been briefed and submitted for this court’s

consideration, dismissal at this stage would serve little purpose where another, adequate,

remedy exists. Accordingly, we deny the motion to dismiss these appeals.



                                             13
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In re Marriage of Van de Graaf


       General Considerations Governing Rod’s Appeal

       Before turning to Rod’s appeal, a brief discussion of some of the issues is in order

due to the overlapping appeals addressing some of the same issues. This case has grown

like Topsy and the parties briefed issues in accordance with the original grouping of the

appeals. The subsequent deconsolidation means that some issues are briefed in multiple

appeals and that others are briefed under cause numbers that no longer include the

relevant notice of appeal. Rather than regroup files yet again and introduce more

uncertainty in our records, this opinion will note all of the issues raised in this appeal, but

we will address those issues in the appeal logic and judicial economy best suggests we

resolve them.

       With that observation, it is time to recall a few basic principles of our domestic

relations laws. Washington is a community property state. Chapter 26.16 RCW. Thus,

property “acquired after marriage” “is community property.” RCW 26.16.030. The

“word ‘acquired’ should be construed to encompass wages and other property acquired

through the toil, talent, or other productive faculty of either spouse.” In re Marriage of

Brown, 100 Wn.2d 729, 737, 675 P.2d 1207 (1984). Each spouse has equal authority to

manage community property, but neither can encumber real estate without the consent of

the other, and the ability to give away property by gift or bequest is limited. RCW

26.16.030.



                                              14
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In re Marriage of Van de Graaf


       Similarly, property acquired before marriage or by gift or inheritance after

marriage is the separate property of the recipient spouse. RCW 26.16.010. Thus, the

timing of the property’s acquisition is key to characterizing the nature of the property. In

re Binge’s Estate, 5 Wn.2d 446, 484, 105 P.2d 689 (1940).

       Trial judges have broad discretion in devising fair resolution of marriage dissolution

actions. As a result, an oft-cited passage from the Washington Supreme Court concerning

the importance of finality in domestic relations rulings guides appellate review:

               We once again repeat the rule that trial court decisions in a
       dissolution action will seldom be changed upon appeal. Such decisions are
       difficult at best. Appellate courts should not encourage appeals by tinkering
       with them. The emotional and financial interests affected by such decisions
       are best served by finality. The spouse who challenges such decisions bears
       the heavy burden of showing a manifest abuse of discretion on the part of
       the trial court.

In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985). This emphasis on

finality and moving forward is reflected in the well-settled standards that govern review

of domestic relations cases. Discretion is abused when it is exercised on untenable

grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482

P.2d 775 (1971). A court acts on untenable grounds when its factual findings are not

supported by the record; it acts for untenable reasons if it uses an incorrect standard of

law or the facts do not meet the requirements of the standard of law. State v. Rundquist,

79 Wn. App. 786, 793, 905 P.2d 922 (1995).

       We now consider the arguments presented by Rod’s appeal.

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No. 35133-5-III
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         Consideration of VDGR Property

         Rod first argues that both the property division and the spousal maintenance award

were flawed by the trial court’s consideration of his future inheritance from his parent’s

estate as represented by the Maxine Trust. He has not demonstrated that the trial court

erred.

         Prior to making a property division, the dissolution court must determine the

nature and extent of the parties’ community and separate property. RCW 26.09.080; In

re Marriage of DeHollander, 53 Wn. App. 695, 700, 770 P.2d 638 (1989). Vested future

benefits are subject to division, but unvested expectations such as an inheritance are not.

See, e.g., In re Marriage of Wright, 147 Wn.2d 184, 189, 52 P.3d 512 (2002) (vested

benefits); In re Marriage of Hurd, 69 Wn. App. 38, 49, 848 P.2d 185 (1993) (not vested),

overruled on other grounds by In re Estate of Borghi, 167 Wn.2d 480, 486, 219 P.3d 932

(2009).

         Future earning potential is not an asset that can be divided, but it may be

considered when distributing the property and awarding maintenance. In re Marriage of

Leland, 69 Wn. App. 57, 847 P.2d 518 (1993); In re Marriage of Anglin, 52 Wn. App.

317, 759 P.2d 1224 (1988); see also Stacy v. Stacy, 68 Wn.2d 573, 576, 414 P.2d 791

(1966) (when awarding alimony following a long-term marriage, the court should

consider and weigh the future earning capabilities of both parties). The court may also

consider the spouses’ “foreseeable future acquisitions” when dividing property and

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No. 35133-5-III
In re Marriage of Van de Graaf


awarding maintenance. In re Marriage of Gillespie, 89 Wn. App. 390, 399, 948 P.2d

1338 (1997); In re Marriage of Olivares, 69 Wn. App. 324, 329, 848 P.2d 1281 (1993),

overruled on other grounds by In re Estate of Borghi, 167 Wn.2d 480.

       Rod argues that the trial court erred in considering his pending inheritance. The

trial court, however, expressly stated that the VDGR properties were not before the court

for division8 and the ensuing decree does not mention it.9 CP at 770-773, 785. The court

did “consider” the “likely acquisition” of this inchoate interest of Rod’s in assessing what

was a “fair and equitable” maintenance award (citing to RCW 26.09.090). CP at 785, 787.

This consideration was proper. Gillespie, 89 Wn. App. 390; Olivares, 69 Wn. App. 324.

       The trial judge was not required to ignore the realities of the parties’ actual

financial situation merely because the pending property interest was not vested and, thus,

not before the court for division.10 The pending transfer of one-third of his parents’




       8
          Given the unprecedented diversion of the Midvale manure asset to partially fund
the VDGR stock purchases, and ensuing reduction of Rod’s earning capacity from that
community asset, the trial court may well have been justified in treating the trust as an
asset of the marital estate because Rod appeared to be purchasing a portion of it. Since
the court did not do so, we need not speculate further on this point.
        9
          The $1.7 million valuation would certainly have skewed the distribution if it had
been included.
        10
           Rod also argues that the trial court should have considered Lori’s pending
inheritance if the court could consider his. The major problem with this argument is that
no evidence was presented considering the size or certainty of any pending inheritance;
the issue was only mentioned in counsel’s argument to the trial court.

                                             17
No. 35133-5-III
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property to Rod would have a direct impact on his future earning capacity, a factor that

the court could properly consider in making its award. Stacy, 68 Wn.2d 573; Leland, 69

Wn. App. 57; Anglin, 52 Wn. App. 317. Accordingly, there was no error.

       Rod has failed to establish that the trial court erred in its “consideration” of the

pending transfer of the VDGR properties to Rod and his siblings.

       Life Insurance Policies

       Rod argues that the trial court erred in awarding him the value of life insurance

policies that he now claims actually belonged to a trust and not the couple.11 The trial

court did not abuse its discretion in denying his motion to vacate.12

       Rod had testified at trial that the life insurance policies were community property

purchased by the community and that they held a cash value of $116,000. The trial court

awarded the policies to Rod at that value. In the motion to vacate, Rod alleged that the

policies belonged to a trust and not to the community. In denying the motion, the trial

court noted that there may have been “some misrepresentation or misunderstanding”




       11
           Although the order on motion to vacate judgment is before this court in the Van
de Graaf IV appeal, we exercise our authority to resolve this aspect of that ruling in this
case since the issue would materially affect the dissolution decree that is the subject of
this appeal.
        12
           Rod also filed a motion to reconsider in conjunction with the motion to vacate.
However, the decree was entered February 17, 2017, and the motion to reconsider was
not filed until March 10, 2017, rendering it untimely. CR 59(b). Thus, we only address
the motion to vacate.

                                              18
No. 35133-5-III
In re Marriage of Van de Graaf


about the policies, but that it “inures not to Mr. Van de Graaf’s benefit.” Report of

Proceedings (RP) at 1036.

       A court errs when awarding property in a dissolution decree if the parties before

the court have no ownership interest in the property. In re Marriage of McKean, 110

Wn. App. 191, 194-195, 38 P.3d 1053 (2002). This court reviews a trial court’s CR 60(b)

motion for abuse of discretion. DeYoung v. Cenex Ltd., 100 Wn. App. 885, 894, 1 P.3d

587 (2000). However, a trial court has a nondiscretionary duty to vacate a void

judgment. Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 323, 877 P.2d 724 (1994).

       Rod never established that this award was void. His own trial testimony

established that the life insurance policies were community property, clearly putting them

before the trial court. His affidavit in support of the motion to vacate judgment provided

little support for his post-trial claim that the life insurance policies were not community

property. There was no affidavit from the insurance company establishing ownership of

the policies, nor was there any substantive information about the alleged trust that would

have allowed the trial court to conclude that it was a third party owner of the policies.

       In addition to the failure of proof, none of the CR 60(b) bases Rod asserted for

relief help him in this circumstance. His argument that the policies were owned by a

trust, if true, would not have been “newly discovered evidence” within the meaning of the

CR 60(b)(5) since the facts were discoverable during the many years that the policies had

been in existence, including the five years between the separation of the parties and the

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No. 35133-5-III
In re Marriage of Van de Graaf


ensuing trial. To the extent that he argues that the trial court committed an error of law,

CR 60(b) provides him no relief. Because errors of law are to be resolved on appeal

instead of by motion to vacate, a trial court abuses its discretion in granting a CR 60(b)

motion due to legal error. Shum v. Dep’t of Labor & Indus., 63 Wn. App. 405, 408, 819

P.2d 399 (1991) (citing authorities).

       The trial court did not err in rejecting the unproven motion to vacate.

       Characterization of Ellensburg Property

       Rod next argues, correctly, that the trial court erred in its characterization of the

Ellensburg property. The error, however, was harmless.

       As noted previously, the trial court has an obligation to properly characterize the

property before the court. RCW 26.09.080. As also previously noted, the

characterization of the property is determined at the time of acquisition of the property.13

Binge’s Estate, 5 Wn.2d at 484.

       Here, Rod acquired his one-half interest in the property prior to his marriage to

Lori. Thus, the Ellensburg property was appropriately characterized as his separate

property. The vast bulk of the payments, 85 percent,14 were made during the marriage


       13
         This is subject to subsequent decisions of the parties such as the entry of a
community property agreement. RCW 26.16.120; Harry M. Cross, The Community
Property Law in Washington (Revised 1985), 61 WASH. L. REV. 13, 101-103 (1986);
Harry M. Cross, The Community Property Law in Washington, 49 WASH. L. REV. 729,
798-802 (1974).
      14
         51,000/60,000.

                                              20
No. 35133-5-III
In re Marriage of Van de Graaf


from community funds. Thus, while the property was Rod’s separate property, the

marital community maintained a lien for 85 percent of his purchase price. See In re

Marriage of Elam, 97 Wn.2d 811, 650 P.2d 213 (1982); Merkel v. Merkel, 39 Wn.2d 102,

113-115, 234 P.2d 857 (1951).

       In light of the trial court awarding each spouse their own separate property, Rod

contends that this characterization error requires either a remand or an award of the land to

him. In truth, this error was harmless. All property is before the trial court and the judge

has authority to award one spouse’s separate property to the other. RCW 26.09.080. The

only requirement is that the award be “just and equitable” after consideration of four

factors. Id.

       Anticipating this issue, the trial court expressly stated that “this division of

property is fair and equitable regardless of the characterization of any item as community

or separate.” CP at 787 (emphasis added). The trial judge could not be clearer in his

intent. The Ellensburg property was to go to Lori, regardless of how the property was

characterized. Even with that award of separate property to her, Rod still owed another

$1.1 million to equalize the community property division; the only remaining alternative

was to award her a greater share of the community property. The trial court probably

assumed that Rod would rather own Midvale and make an equalization payment than

own the Ellensburg grazing land while Lori took his interest in Midvale.



                                              21
No. 35133-5-III
In re Marriage of Van de Graaf


       In view of the trial court’s clear statement of intent, the mischaracterization of the

land as community property did not harm Rod.

       Maintenance Award

       Rod next contends that the trial court erred in awarding Lori maintenance of

$6,000 a month for life. Having considered the proper factors, the trial court did not

abuse its discretion in making the award.

       Spousal maintenance is governed by RCW 26.09.090. Its nonexclusive list of

factors to be considered includes:

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

       The purpose of maintenance is to support a spouse until he or she is able to

become self-supporting. In re Marriage of Luckey, 73 Wn. App. 201, 209, 868 P.2d 189

(1994). There is no right to spousal maintenance in Washington, but the decision to grant

or deny maintenance is reviewed for abuse of discretion. In re Marriage of Zahm, 138


                                             22
No. 35133-5-III
In re Marriage of Van de Graaf


Wn.2d 213, 226-227, 978 P.2d 498 (1999); Friedlander v. Friedlander, 58 Wn.2d at 297-

298. Trial courts must consider the statutory factors of RCW 26.09.090. In re Marriage

of Williams, 84 Wn. App. 263, 267-268, 927 P.2d 679 (1996). However, findings

regarding the statutory factors are not necessary as long as it is clear that the court

considered them. In re Marriage of Mansour, 126 Wn. App. 1, 16, 106 P.3d 768 (2004).

It is the prerogative of the trial court, rather than the appellate court, to weigh the factors.

Zahm, 138 Wn.2d at 227.

       The court’s ultimate concern must be the parties’ economic situations

postdissolution. Williams, 84 Wn. App. at 268. The court is not required to place the

parties in precisely equal financial positions at the moment of dissolution. In re

Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001). If, as here, the spouses

were in a long-term marriage of 25 years or more, the court’s objective is to place the

parties in roughly equal financial positions for the rest of their lives. In re Marriage of

Rockwell, 141 Wn. App. 235, 243, 170 P.3d 572 (2007). To reach this objective, the

court may account for each spouse’s anticipated postdissolution earnings in its property

distribution by looking forward. In re Marriage of Wright, 179 Wn. App. 257, 262-263,

319 P.3d 45 (2013).

       Lifetime maintenance awards are generally disfavored. In re Marriage of Coyle,

61 Wn. App. 653, 657, 811 P.2d 244 (1991). Nonetheless, “the only limitation placed

upon the trial court’s ability to award maintenance is that the amount and duration,

                                               23
No. 35133-5-III
In re Marriage of Van de Graaf


considering all relevant factors, be just.” In re Marriage of Washburn, 101 Wn.2d 168,

178, 677 P.2d 152 (1984). “Where the assets of the parties are insufficient to permit

compensation to be effected entirely through property division, a supplemental award of

maintenance is appropriate.” Id. Maintenance is “a flexible tool to more nearly equalize

the postdissolution standard of living of the parties, where the marriage is long term and

the superior earning capacity of one spouse is one of the few assets of the community.”

In re Marriage of Sheffer, 60 Wn. App. 51, 57, 802 P.2d 817 (1990).

       Against these stringent standards, Rod argues that the maintenance award was

untenable, failed to serve the goal of making Lori self-sufficient, and was unnecessary to

effectuate the property division. We disagree with this assessment.

       The lifetime payment was not untenable. The trial court correctly observed that

Rod was a wealthy man who was about to become even more wealthy. He owned a

significant amount of separate property and was awarded the community’s primary

income-producing asset, Midvale. The trial court concluded that Rod’s average annual

income was in the neighborhood of $200,000 and his expenses were practically

nonexistent since the family companies paid for them. In light of those circumstances, he

was capable of paying a lifetime maintenance award.




                                            24
No. 35133-5-III
In re Marriage of Van de Graaf


       In contrast, Lori’s situation was not as rosy. Her age and health concerns meant

that a return to full-time teaching was unlikely and any career would not be lengthy.15

She had need of support given her comparatively limited income. She was unlikely to

ever approach the standard of living previously enjoyed by the couple. Thus, the trial

court properly concluded that maintenance was necessary for Lori’s support.

       While Rod disagrees, the maintenance award also served to justify the property

division. The bulk of the couple’s income came from Rod’s employment and Midvale.

Since Midvale was the primary income-producing asset of the couple, the award of that

asset to Rod meant that none of the other assets would give Lori an income stream

commensurate with their standard of living. Rather than continue joint ownership of

Midvale, maintenance served to provide Lori an income from that asset while eliminating

her ownership interest in the asset. It is not unusual when a single source is primarily

responsible for a couple’s income for a court to make a maintenance award in favor of the

party who no longer has access to the asset; there simply is no other income-producing

asset that could take its place.

       The court’s maintenance award was supported by tenable grounds in the record.

Rod was awarded the primary income-producing asset and there were no additional assets


       15
         By the time of trial in 2017, both parties were in their later 50s and had been
married nearly 32 years. If the matter had been resolved in 2012, lifetime maintenance
might have been unnecessary.


                                            25
No. 35133-5-III
In re Marriage of Van de Graaf


that could have been awarded to Lori. In light of the disparate income resulting from that

division and the unlikelihood of Lori ever being able to adequately support herself, the

trial court’s award was both understandable and reasonable.

       The court did not abuse its discretion.

       Post-Secondary Support

       Rod next argues that the trial court erred in issuing an order for post-secondary

support of N.V.D.G. that required the parents and child to each pay one-third of any

educational expenses not covered by the 529 education account.16 Once again, we

disagree and conclude that the trial court did not abuse its discretion in this matter.

       The trial court has broad discretion to order support for postsecondary education.

Childers v. Childers, 89 Wn.2d 592, 601, 575 P.2d 201 (1978); In re Marriage of Newell,

117 Wn. App. 711, 718, 72 P.3d 1130 (2003). This court will not substitute its judgment

for the trial court’s judgment if the record shows the court considered all relevant factors

and the award is not unreasonable under the circumstances. In re Marriage of Griffin,

114 Wn.2d 772, 776, 791 P.2d 519 (1990).

       The trial court must initially find that the child is dependent and “relying upon the

parents for the reasonable necessities of life.” RCW 26.19.090(2). Once that threshold




       16
         A court commissioner had entered the same ruling at a pretrial hearing three
years previously. CP at 365.

                                              26
No. 35133-5-III
In re Marriage of Van de Graaf


requirement is satisfied, the trial court must also consider the following nonexhaustive

list of factors:

       Age of the child; the child’s needs; the expectations of the parties for their
       children when the parents were together; the child’s prospects, desires,
       aptitudes, abilities or disabilities; the nature of the postsecondary education
       sought; and the parents’ level of education, standard of living, and current
       and future resources.

RCW 26.19.090(2). “Also to be considered are the amount and type of support that the

child would have been afforded if the parents had stayed together.” Id.; In re Marriage of

Cota, 177 Wn. App. 527, 537, 312 P.3d 695 (2013). The statute does not require the trial

court to enter findings. In re Marriage of Morris, 176 Wn. App. 893, 906, 309 P.3d 767

(2013).

       Rod’s argument17 is that N.V.D.G. had access to the funds in the UGTMA account

adequate to pay for his needs, thus rendering the child not dependent on his parents for

support. In fact, the existence of the parent-funded accounts proves the opposite. The

child did not have an independent source of income, but was dependent on parental

funding mechanisms to attend college. He was not an emancipated child, but remained

dependent on his parents for his living expenses.



       17
         Rod also argues that (1) the trial court sua sponte raised the post-secondary
support issue and (2) that findings were required. The answer in both cases is no: (1) RP
at 82-83 (pretrial ruling reserving expenses for junior and senior year); (2) Morris, 176
Wn. App. at 906.

                                             27
No. 35133-5-III
In re Marriage of Van de Graaf


       Regardless, the trial court heard testimony that the UGTMA account was not

intended to be used for college education and that the existing 529 education account

proved inadequate to cover all of the college expenses, which the parents had intended to

pay. Both parents had attended college and evidence concerning their income and

resources constituted a significant portion of the trial. N.V.D.G. had completed two years

of college before the funding issue arose. The trial court heard evidence on all of the

RCW 26.19.090 factors, thus assuring their “consideration” before confirming the

educational support award.

       Having considered all relevant statutory factors, and many of the suggested

factors, the trial court did not abuse its “broad discretion” in awarding post-secondary

support.

       Attorney Fees

       Rod next argues that the trial court erred on reconsideration in granting Lori the

$58,000 balance of her attorney fees due to the contentious nature of the trial litigation.

Having initially sent this question back to the trial court for clarification, we now affirm.

       Trial courts have the power in dissolution proceedings to order one side to pay the

attorney fees of the other when the receiving spouse has need and the paying spouse has

the ability to pay. RCW 26.09.140. In its initial letter ruling, the court declined to grant

fees to either side under this statute. Citing Friedlander, Lori moved to reconsider under

the statute as well as arguing that Rod’s intransigence justified an award of fees. The

                                             28
No. 35133-5-III
In re Marriage of Van de Graaf


court granted the motion. The court’s letter briefly remarked on both Friedlander and

intransigence. We remanded to ascertain the significance, if any, of the intransigence

comment. The court entered findings of fact clarifying that Rod’s intransigence was the

basis for ordering the award.18

       Friedlander authorizes an award of attorney fees when complicated business and

property holdings require extraordinary work for the opposing attorney to untangle and

understand the nature of the property interests. 58 Wn.2d at 297. A court may also base

a fee award on a party’s intransigence. MacKenzie v. Barthol, 142 Wn. App. 235, 242,

173 P.3d 980 (2007); Eide v. Eide, 1 Wn. App. 440, 445, 462 P.2d 562 (1969). An award

due to intransigence is an equitable remedy. In re Marriage of Greenlee, 65 Wn. App.

703, 708, 829 P.2d 1120 (1992). Among the remediable instances of intransigence is

“when one party made the trial unduly difficult and increased legal costs by his or her

actions.” Id.

       “When intransigence is established, the financial resources of the spouse seeking

the award are irrelevant.” In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d

197 (1989). Although fee awards due to intransigence should be segregated to address


       18
          Although the court’s clarification came after the briefing in this case, there is no
need for additional briefing since the topic, although lightly touched on by Rod in this
case, has been briefed more thoroughly in the other cases. We note Rod’s objection to
the findings in the trial court and will presume he continues those objections in this court,
so there is no need for supplemental briefing in order to allow him to assign error.


                                             29
No. 35133-5-III
In re Marriage of Van de Graaf


only the intransigent behavior, there is no need to segregate when the intransigence

permeates the proceedings. In re Marriage of Sievers, 78 Wn. App. 287, 301, 309, 897

P.2d 388 (1995) (affirming trial court’s award of one-half of wife’s attorney fees where

husband’s intransigence “sufficiently permeated the proceedings” to justify such an

award). Attorney fee awards based on the intransigence of one party have been granted

when the party engaged in “foot-dragging” and was an “obstructionist,” as in Eide, 1 Wn.

App. at 445; when a party filed repeated unnecessary motions, as in Chapman, 41 Wn.

App. at 455-456; or simply when one party made the trial unduly difficult and increased

legal costs by his or her actions, as in Morrow, 53 Wn. App. at 591. This court reviews

decisions to award fees or not for abuse of discretion. In re Marriage of Zeigler, 69 Wn.

App. 602, 609, 849 P.2d 695 (1993).

       The combination of Friedlander and intransigence provides tenable grounds for

the trial court’s fee award. Unwinding the interconnected family businesses,

understanding the various ownership groups, and valuing the community and separate

property components took extraordinary effort and required the use of an expert. Those

problems were complicated significantly by the family’s actions in circling the wagons

and limiting information. Rod’s additional behavior in making life as financially difficult

for Lori as he could during the years leading to the trial reinforced the conclusion that his

family was actively working with him against his spouse.



                                             30
No. 35133-5-III
In re Marriage of Van de Graaf


       Under these circumstances, the trial court had no difficulty in assigning the

remaining one-half of Lori’s attorney fees to Rod’s intransigence and ordering that he

pay those costs. See Sievers, 78 Wn. App. at 301 (award of half of attorney fees due to

intransigence permeating trial court proceedings). His strategy was to raise the cost of

litigation while limiting her financial ability to compete with him. The trial court did not

err in determining that this financial abuse needed to be remedied.

       Even without considering the trial court’s specific factual findings, which are

supported by the evidence, the conclusion that intransigence fueled this litigation is

amply supported by the record in this case. There were tenable reasons to award Lori her

attorney fees. The court did not abuse its discretion in making its award.

       Modification and Contempt Rulings

       The next two issues Rod raises—the court’s refusal to modify the maintenance

award and some of the ensuing contempt rulings—were originally briefed in this case.

We defer our consideration of those contentions to the opinion in Van de Graaf IV in

light of the reassignment of related cases to that matter.

       Remand to a New Judge

       Rod also asks that we remand this case for further proceedings before a different

judge, arguing that Judge McCarthy acted beyond his authority in some of his rulings,

thereby evidencing an inability to give Rod a fair trial. This opinion will not require



                                             31
No. 35133-5-III
In re Marriage of Van de Graaf


further action19 from Judge McCarthy, technically rendering the question moot in this

case, but the argument also impacts the remaining appeals. Accordingly, we consider his

argument at this time. Since his argument is unpersuasive, we deny the request.

       The appearance of fairness doctrine requires recusal where the facts suggest a

judge is actually or potentially biased. Tatham v. Rogers, 170 Wn. App. 76, 93, 283 P.3d

583 (2012). Judges not only must actually be unbiased, but they also must appear to be

unbiased. State v. Gamble, 168 Wn.2d 161, 187, 225 P.3d 973 (2010). The trial court is

presumed to perform its functions without bias or prejudice. Wolfkill Feed & Fertilizer

Corp. v. Martin, 103 Wn. App. 836, 841, 14 P.3d 877 (2000).

       Thus, a party alleging bias must provide evidence of actual or potential bias. State

v. Post, 118 Wn.2d 596, 618-619, 826 P.2d 172, 837 P.2d 599 (1992). Appellate courts

apply an objective test, viewing the evidence as would a reasonable person familiar with

all of the facts, to determine if there is the appearance of bias. In re Marriage of

Davison, 112 Wn. App. 251, 257, 48 P.3d 358 (2002). In the absence of evidence, the

claim of bias must be rejected. Post, 118 Wn.2d at 619.

       As evidence of bias, Rod argues that the court’s (allegedly) erroneous rulings

against him at trial and on reconsideration (and afterwards) establish Judge McCarthy’s


       19
          The sole error we have identified—the mischaracterization of the Ellensburg
property—is harmless, and the mischaracterization of that property in the trial court’s
letter opinion has no future consequences, so no remand for correction of that letter is
necessary.

                                             32
No. 35133-5-III
In re Marriage of Van de Graaf


bias. They do not. Not only are the claims of error discussed in this appeal without

merit, such claims should nearly always be inadequate to establish a claimant’s burden.

Objectively viewed, an erroneous ruling is simply that—an error of law by a trial court

judge. An error, or series of them, seldom will constitute evidence of bias.

       The primary case relied on by Rod is not to the contrary. In re Marriage of

Muhammad, 153 Wn.2d 795, 108 P.3d 779 (2005). There, the Washington Supreme

Court held that the trial court abused its discretion where it improperly considered marital

fault when dividing the parties’ property. In addition to certain inequitable aspects of the

property division, the court found that specific language used by the trial court in both

oral rulings and the written findings suggested an improper consideration of the wife’s

“fault” since there was no proper purpose for discussing the wife’s actions. Id. at 804-

805. Under those circumstances, remand to a new judge was appropriate.

       More than mere legal error was at issue in Muhammad, but nothing other than

alleged legal error is at issue here. Accordingly, Muhammad does not compel

disqualification of Judge McCarthy from future proceedings in this case. Our review of

this extensive record convinces us that Judge McCarthy was scrupulously fair and even-

handed throughout this case. He maintained an even keel while recognizing (and

rejecting) overzealous and improper behavior, including Rod’s breaches of fiduciary duty

to Lori and the children and his disregard for multiple court orders. We would hope that



                                             33
No. 35133-5-III
In re Marriage of Van de Graaf


all trial judges confronted with scorched earth tactics and bullying behavior would

address them with the same equanimity.

       The request for remand to a new judge is rejected. Rod’s argument comes

nowhere near establishing his claim.

       Attorney Fees on Appeal

       Lastly, we turn to Lori’s request for attorney fees on appeal due to Rod’s

intransigence.20 This request applies to all of the cases on appeal. We will separately

address the issue in each of the four opinions. In this instance, we grant the bulk of her

request.

       An appellate court may grant attorney fees as a sanction when an appeal is

frivolous or brought for improper purposes. RAP 18.9(a). The appellate court also may

grant attorney fees as a remedy to one party’s intransigence. Mattson, 95 Wn. App. at

606; Eide, 1 Wn. App. at 445-446.

       This appeal was not frivolous. Significant financial interests were at issue and

Rod identified one error that could have overturned the property division but for the trial

judge’s skillful resolution of the issue. Accordingly, we decline to impose sanctions for

frivolous litigation.




       20
         Our discussion of Rod’s challenge to the initial suit money awarded is deferred
to Van de Graaf II.

                                             34
No. 35133-5-III
In re Marriage of Van de Graaf


       That does not mean that Rod is home free. While there may have been justifiable

reasons for appealing, the appeal itself was conducted in a manner consistent with the

delaying tactics used in the trial court. Accordingly, Lori requests that her attorney fees

be paid by Rod’s lawyers. We have some sympathy for her position because this case

has been over-litigated in the extreme, particularly considering the standards of review,

but we decline her request. In the absence of evidence that the attorneys have been

directing Rod’s conduct throughout this litigation, this appears to be at worst a case of

poor client control with appellant continuing to act on appeal as he did before trial.21

       Without hesitation, we reach the same conclusion that the trial court did. This

litigation, however justified at its inception by the financial interests at issue, has been

conducted in a manner designed to beat down the respondent rather than reach a proper

resolution on the merits. Equity demands that she be afforded some relief.

       Domestic relations cases spawn more emotionally-fueled litigation than most other

legal practice areas. In this case, appellant has purposely imposed costs on respondent.

He has accepted the benefits of the decree, but has often declined to comply with his

obligations under that document. His behavior has been calculated to raise Lori’s legal

costs, just as the trial court found he did in the trial proceedings. The intransigence that


       21
        The facts are well known to the parties. We purposely have been vague or
conclusory in order to avoid detailed reference to the facts lest they serve as a primer to
others.


                                              35
No. 35133-5-III
In re Marriage of Van de Graaf


permeated those proceedings likewise permeates this appeal. Thus, even though Rod

scored a small victory concerning the characterization of the Ellensburg property, we

grant Lori her reasonable attorney fees for the briefing and motions filed under this cause

number, subject to her timely compliance with RAP 18.1.

      The judgment is 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.




WE CONCUR:




      Lawrence-Berrey,C.J.        0


      Siddoway, J.




                                            36
