                                                                                             Filed
                                                                                       Washington State
                                                                                       Court of Appeals
                                                                                        Division Two

                                                                                        April 28, 2020



    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 In re the marriage of:                                            No. 52160-1-II

 BRENDA A. WILSON,

                Appellant/Cross-Respondent,
                                                            UNPUBLISHED OPINION
 and

 GARY W. WILSON,

                Respondent/Cross-Appellant.



       SUTTON, A.C.J. — This appeal arises from Brenda and Gary Wilson’s prenuptial

agreement, the dissolution of their marriage, and the trial court’s final orders. During their

marriage, they acquired rental investment properties as community property.           After their

separation, Brenda managed the rental properties. Prior to trial, the court appointed Acuity

Forensics, owned by Tiffany Couch, to perform an accounting of the rents received and the

expenses paid for the rental properties and ordered the parties to provide the relevant

documentation to determine any net lost profit and proceeds. Couch later presented an accounting

based on the fair market rental value of the properties. Brenda also hired an expert, Heidi Bowen,

who provided an accounting based on the actual rental deposits. After a lengthy bench trial, the

trial court entered final orders. Brenda appeals and Gary cross-appeals.
No. 52160-14-II


       We affirm in part and reverse in part. We affirm (1) the trial court’s finding that Brenda’s

net monthly income is $12,000 for child support, and (2) the court’s ruling adopting Couch’s

accounting for purposes of determining the amount of net lost profit and proceeds owed by Brenda

to Gary for their community investment rental properties. We reverse (3) the provisions of the

child support order related to deviation from the standard child support calculation and the court’s

decision not to order a transfer payment from Brenda to Gary. We also reverse (4) the provisions

of the final dissolution order related to the distribution of the community estate, and (5) the portion

of the money judgment entered in favor of Gary related to the offset of $39,000. We deny Brenda’s

request for an award of appellate attorney fees and costs.

       We reverse in part and remand for further proceedings consistent with this opinion. On

remand, we order the court to (1) make sufficient written findings of fact to support any deviation

from the standard child support calculation and to reconsider its decision to deny any transfer

payment from Brenda to Gary, and to amend the child support order accordingly, (2) reconsider

the distribution of the community estate and equalize the division of it as equally as possible, and

(3) strike the $39,000 offset and amend the money judgment accordingly.

                                               FACTS

                                      I. BACKGROUND FACTS

A. SEPARATION AND DISSOLUTION

       The Wilsons married in 1999, Brenda separated from Gary on December 28, 2012, and the

petition for dissolution of marriage was filed on February 7, 2013. At the conclusion of the trial,




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No. 52160-14-II


the parties had two sons, ages 11 and 14.1 Brenda worked as a real estate agent, and Gary worked

for U.S. Fish and Wildlife Service. Prior to marriage, the parties signed a prenuptial agreement.

B. THE PRENUPTIAL AGREEMENT

1. Separate Property

          The parties entered into a prenuptial agreement when they were married. The prenuptial

agreement established that the assets and liabilities that each party entered into the marriage with

would remain their own separate property. The parties agreed to be “completely independent of

the other” and that they were entitled to “manage, enjoy, encumber, hold, sell, convey, gift, lease

and dispose of all their separate properties” without the consent of the other. Ex. 1 at 3. These

separate assets included their cash and bank accounts, their personal properties, real property, life

insurance policies, retirement accounts, and Brenda’s business. Gary’s separate property totaling

$394,946.95 is listed in Schedule A to the prenuptial agreement as follows:

                                          SCHEDULE “A”

          Cash and Bank Accounts:
          Pacific Northwest Federal Credit Union, Savings Acct. XXX166       $ 158.22
          Citizens National Bank, Savings Acct. # XXX932                        528.92
          Columbia Credit Union, Savings Acct. # XXX538                        2,123.27
          Yakima Valley Credit Union, Savings Acct. # XXX9                   13,948.46
          Personal Properties:
          Household goods and furnishings                                    12,500.00
          Jewelry                                                            21,345.00
          Old coin and paper money collection                                  1,408.73
          Sporting goods/camera/tools/equipment                              16,450.00


1
    The parenting plan is not an issue on appeal.


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No. 52160-14-II


       1966 Ford F250 pickup, Wash. License # T61900                      3,000.00
       1991 Ford Explorer, Wash. License # 597EUP                         8,000.00
       Real Property:
              The property located at XXXX N.E. 52nd Ct.,
              Vancouver, Washington:                                     226,900.00
       Life Insurance Policies:
              Group life insurance through employer
              (face value varies with income)                            no cash value
       Retirement Accounts:
       Thrift Savings Plan for Federal Employers                          88,584.35

Ex. 1 at Schedule A.

       Brenda’s separate property totaling $74,094.85 is listed in Schedule B to the prenuptial

agreement as follows:

                                        SCHEDULE “B”

       Cash and Bank Accounts:
       Wells Fargo, Checking Acct. # XXXXXXX4-27                         $1,733.41
       Columbia Credit Union, Savings Acct. #XXX274                          50.00
       Personal Properties:
       Household goods, furnishings and jewelry                           2,000.00
       1999 Subaru Forestor, Wash. Lic. #WQG988                          19,500.00
       Camera                                                               200.00
       Life Insurance Policies:
       First Investors (whole life policy) – cash value                     611.44
       Business:
       1/3 ownership in Right Now Employment, Inc.
       (probable increase to 50% in approximately two months from
       date of this Agreement)                                           50,000.00

Ex. 1 at Schedule B.




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No. 52160-14-II


2. Reimbursement Claim

        The prenuptial agreement also precluded each party from making a claim for

reimbursement against the separate property of the other.

        [N]either party shall claim a right of reimbursement for any labor, materials, money
        or the like contributed to or on behalf of the separate property of the other party and
        any such contribution shall be considered either a de minimis contribution, a gift to
        the other party, or that the community has received a compensating benefit from
        the use of the property to or which the contribution was made.

Ex. 1 at 5.

3. Presumption–Separate Property

        Under Section VI of the agreement, there is a presumption that

        [F]rom time to time [] third parties may require that both parties’ names be placed
        on the title to a piece of separate property for purposes such as obtaining financing
        or refinancing in a community property state or for other reasons. In the event this
        shall occur, such event will not cause that effected party’s separate property to
        become common or community property and the separate value of the property
        shall continue unless both parties acknowledge, in a separate writing, that it is the
        intent of the parties that the separate property so affected shall become common or
        community property of the parties.

Ex. 1 at 8.

4. Community Property Acquired After Marriage

        Under Section X of the prenuptial agreement, there is a presumption that “[f]rom time to

time the parties my desire to own property in the form of community property, tenancies in

common property, and join tenancy property.” It goes on to state that

               [i]n the event common or community property is created, it shall be
        managed according to the laws concerning management of common or community
        property. Common or community property shall be subject to the laws of intestate
        succession concerning common or community property

Ex. 1 at 8.



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No. 52160-14-II


           To create community property under the agreement, the parties must either “(a) acquire the

property in both parties’ names; (b) purchase it from a common bank account; or (c) execute a

written agreement so classifying the property.” Ex. 1 at 8.

5. Other Provisions Related to any Claim and Property Distribution

           Section XVII of the agreement, entitled “Distribution Upon Dissolution” states in relevant

part,

           1. Neither party shall make any claim whatsoever and neither party is entitled to,
           nor will receive any award of or from the separate property and/or estate of the
           other. . . ;
           ... .
           4. In dividing assets and liabilities of their marital community, the separate
           property of each party shall not be taken into account directly or indirectly;
           5. The parties’ community assets and debts shall be divided as equally as possible;
           ....

Ex. 1 at 14-15 (emphasis added).

C. COMMUNITY PROPERTY–THE INVESTMENT RENTAL PROPERTIES

           During their marriage Gary and Brenda acquired multiple rental investment properties as

community property which properties are listed below.

                  Community Real Property
        1         XXXX Robin Court, Redmond, OR 97756
        2         XXXX NE 37th Street, Vancouver, WA 98661
        3         XXXX SE Columbia River Dr., Vancouver, WA 98661
        4         XXXX SE Columbia River Dr., Vancouver, WA 98661
        5         XXX SE Fairwinds Loop, Vancouver, WA 98661

Clerk’s Papers (CP) at 17-18. The parties also acquired a family residence together (NW 209th

Street).


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No. 52160-14-II


D. ACCOUNTING OF RENTAL PROPERTIES

       From the date of separation, December 28, 2012, until the date of trial, June 22, 2017, the

parties continued to collect rents and pay expenses on their community investment properties.

Brenda managed the properties, although not in an organized or cooperative manner. As a result,

on March 25, 2016, the trial court entered an order appointing Acuity Forensics, owned by Couch,

to “determine the rents received and expenses paid (or owing) between May 1, 2013 and February

29, 2016” for the five community real estate investment properties. CP at 105.2 The parties were

ordered to “provide to the professional whatever records of rents received and expenses paid since

May 1, 2013 for each separate property within seven . . . days of the retainer of the professional,”

and to “act with due diligence and good faith in responding to any request that the professional

deems reasonably necessary and proper to accounting as ordered herein.” CP at 106. “For each

separate real estate investment identified above, the professional shall determine the net amount

actually received by each party and the amount actually paid by each party for any ‘expenses’ for

each separate real estate investment between May 1, 2013 and February 29, 2016.” CP at 106.

       Couch is a certified public accountant, certified in financial forensics, and certified as a

finance examiner. She has been an accountant for over 19 years, with 10 of those years in Clark

County. “Her expertise is in matters involving fraud investigation, forensic accounting, contract

and regulatory compliance, internal control risk assessment, and complex litigation.” CP at 136.

Couch has been retained many times for forensic accounting and to provide expert witness

testimony in litigation.



2
 This became known as “Accounting Period 1.” In October 2016, the court ordered “Accounting
Period 2” from March 1, 2016 through February 28, 2017.


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No. 52160-14-II


1. Couch’s Accounting—Fair Market Rental Value

       On June 15, 2017, Couch provided the court and parties with her report. It was organized

by property and established the rents received and expenses paid for each rental unit. Couch based

her accounting of the income received from each rental unit using lease agreements, all known

expenditures—including mortgage payments, property tax payments, and home ownership

association dues. Couch noted that when documents were missing, she used estimates based on

known income and expenditures. She also relied on statements from the parties and tax-related

documents. Couch stated that while the report may not include all actual expenses and that

including them “would change the findings in th[e] report, it [was her] professional opinion that

those changes would not substantially or materially change the findings” of the report. CP at 253.

She also noted that “the [m]arital [e]state is not being reimbursed for rents in a unit being used by

Brenda Wilson; and another unit is being offered for free to Brenda Wilson’s clients without any

consideration to the [m]arital [e]state.” CP at 253.

       In sum, Couch calculated how much each party received from the rental incomes, as well

as how much each party spent on the properties from their separate property accounts. She

concluded that as of June 15, 2017, Brenda owed Gary $64,756.31 in lost fair market proceeds and

profits. In November, Couch updated her report based on information regarding the actual fair

market rents for two of the rental properties. She concluded that if fair market rent had been

charged for those two properties between May 2013 and March 2017, the parties would have

received an additional $116,375.67 in rental income. As a result, Couch concluded that Brenda

owed Gary $71,243.78 through March 2017.




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No. 52160-14-II


2. Brenda Retains Separate Accounting Expert

       Brenda hired her own expert, Bowen, who is also a certified public accountant and a

certified fraud examiner. Bowen completed her reporting based on input from Brenda and the

actual rent deposits from May 2013 to February 2017. Bowen concluded that Gary owed Brenda

$29,653.55. Bowen’s conclusion was based on the same period of time covered by Couch’s

amended report. The two experts had differing calculations for one of the two Columbia Drive

properties. Couch relied on the fair market rental income and profits, while Bowen calculated the

rental income based on bank deposits or the amount reported from Brenda—this resulted in a

difference of $52,000 in rental income between the two reports.

                                  II. TRIAL AND FINAL ORDERS

       Trial commenced on March 20, 2017, and lasted for 16 days. The key issues before the

court were (1) the parties’ net monthly income for child support based on a 50/50 residential

schedule, (2) the property division and whether the prenuptial agreement was valid, (3) the amount

of lost net profit from the rental properties that Brenda managed after their separation until trial,

and (4) the characterization of the $70,000 payment Gary made to his father related to work

performed on the rental properties and whether Gary owed Brenda an offset. The court orally

ruled on April 18, 2018, and entered written findings of fact, conclusions of law, and final orders

on June 12, 2018.

A. PRENUPTIAL AGREEMENT

       The trial court found that the prenuptial agreement “afforded the parties the opportunity to

accumulate community property during their marriage, which they did to a great extent, while at

the same time allowing them to retain earnings as their separate property to manage as they saw



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No. 52160-14-II


fit.” CP at 17. Accordingly, the court ruled that “[t]he prenuptial agreement is valid and

enforceable in these proceedings.” CP at 17. Under the prenuptial agreement, the court had the

authority to distribute the parties’ community property and was required to divide it as “equally as

possible.” Ex. 1 at 15.

B. DIVISION OF THE SEPARATE PROPERTY

       Consistent with the prenuptial agreement, the trial court awarded to Gary his separate

property listed in Schedule A of the agreement, including the Solarity account, and awarded to

Brenda her separate property listed in Schedule B of the agreement.

C. DIVISION OF THE COMMUNITY PROPERTY

       At trial, the parties’ community property consisted largely of their rental properties and

their family home, which was awarded as follows:

        Real Property                     Awarded to      Awarded to          Value
                                          Gary            Brenda
        NW 209th Street                   X                                   $308,000
        Robin Court (Eagle Crest)         X                                   $291,000
        NE 37th Street                                    X                   $185,000
        SE Columbia River Drive (1)                       X                   $214,700
        SE Columbia River Drive (2)                       X                   $172,300
        SE Fairwinds Loop                                 X                   $123,077
        Total:                            $599,000        $695,077


CP at 17-18, 23, 26-27.




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No. 52160-14-II


       The court also awarded the following as community property:

 Property                         Awarded to         Awarded to         Value
                                  Gary               Brenda
 Gary’s retirement (Federal       ½ of total         ½ of total value   Not in record.
 Employee Retirement System       value
 pension) between the dates of
 marriage and separation
 Chase Account                    X                                     Not in record.
 Wells Fargo Account                                 X                  $124.07 (as of 9/27/17)
 Columbia Credit Union                               X
 Account                                                                $13,393
 Columbia Credit Union                               X
 Account                                                                $51
 Total:                                                                 $13,568.07


CP at 19, 23 39.

       Based on the record, the total distribution of separate and community property to the parties

was as follows: Brenda was awarded $695,077 of the income-producing properties, as well as

various bank accounts, her personal property, her cars, and the separate property listed in the

prenuptial agreement. Gary was awarded $291,000 of the income-producing properties, as well

as the family residence worth $308,000, various accounts, his personal property, his cars, and the

separate property listed in the prenuptial agreement. In dividing the community property as it did,

the trial court concluded that “[t]aking into consideration the parties' prenuptial agreement, the

nature and extent of all of the community and separate property, the duration of the marriage, and

the economic circumstances of each spouse at the time of dissolution, the court[] divides the assets

and debts of the parties.” CP at 32.




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No. 52160-14-II


D. LOST RENTAL INCOME AND PROFITS-JUDGMENT TO GARY

       After considering both Couch’s and Bowen’s accountings, the court ordered Brenda to pay

Gary “for his community share of net profits and proceeds from the parties’ investment properties,”

to be secured by a promissory note and deed of trust on one of the properties awarded to Brenda.

CP at 20. In determining the amount of the judgment, and ordering that Brenda pay Gary

$142,287, the court relied on Couch’s accounting through February 2017. This figure, based on

Couch’s accounting, was based on money that Brenda owed Gary because he was underpaid rental

property income, and he overpaid the expenditures. Based on Couch’s accounting, the court found

that Brenda had not been charging fair market rental value, her business was not paying rent for

the space it used, and Brenda provided “comp stays” to her clients.            Verbatim Report of

Proceedings (VRP) at 832.

       The court found Brenda liable for, and Gary due, the following sums arising from Brenda’s

exclusive management of the parties’ investment properties:

           $71,244 for the first accounting period for Gary’s share of net profits and
            proceeds
           $12,855 for the second accounting period for Gary’s share of net profits and
            proceeds
           $12,293 for half of the lost fair market rental value for the Columbia River
            Drive property
           $36,895 for half of the lost fair market value for the Eagle Crest property

CP at 20.

E. OFFSET

       In total, the trial court found that Brenda owed Gary $142,287. The court offset that

amount by $39,000, roughly one-half of the amount Gary paid his father for work done on the



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No. 52160-14-II


rental properties. Gary testified that he had paid his father from a premarital separate property

account, the Solarity account, but with funds that had been comingled with Brenda’s.

       Brenda testified that Gary’s father was not entitled to be paid for his work. Brenda testified

that she was unaware of the payment, but Gary testified that she was aware of it. Couch also

testified that Gary provided her with text messages between himself and Brenda which showed

that Brenda was aware that Gary was paying his father. Even though the trial court found that the

“Solarity” account was Gary’s separate property under the prenuptial agreement, the court found

that Gary failed to prove that the money paid to his father constituted a community debt, and it

ruled that Brenda was entitled to an offset to “reimburse $39,000 for her share” of the $70,000

paid to Gary’s father. CP at 20. The court stated:

       Wife is not ordered an offset for – and Husband is – the separate property house,
       there is no offset for any – I didn’t find the evidence sufficient to establish the
       $80,000 offset for improvements made during the marriage.

       So, likewise, regarding the payments made to Mr. Wilson’s dad, I do not find
       sufficient documentation or evidence to establish that. So I am awarding the
       Solarity account to [Gary] and putting that in his column, but not giving that as –
       not allowing that it is a division of community property, essentially, that’s offsetting
       the award on some of the other properties.

VRP at 831-32.

F. CHILD SUPPORT ORDER CALCULATION

       The trial court entered a parenting plan with a shared 50/50 residential schedule for the

parties’ two minor children. In its child support order, the court set Brenda’s net monthly income

at $12,000 and Gary’s net monthly income at $6,136.43. The court adopted the “[m]other’s agreed

figure of $12,000” as her net monthly income. VRP at 829.




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No. 52160-14-II


       In her trial aid briefing, Brenda urged the trial court to determine her net monthly income

from employment as $12,000 per month. Brenda testified at trial that she was asking the court to

set her monthly net income at $12,000 per month, which she arrived at from her 2016 gross income.

She also testified that her net income for the year, as of March of 2017, from sales commissions

alone was $37,601.44. At the final hearing following trial, the court indicated that it had based the

child support calculations on the 2017 tax returns, which Gary’s counsel then asked about. The

court said, “I think what she indicated to me is that she wanted it set, I believe, at a 12,000 amount.”

VRP at 829. Brenda did not object.

G. DENIAL OF TRANSFER PAYMENT

       The standard child support calculation was $1,912.48 from Brenda to Gary. The trial court

then applied an overnight credit of $1,302.50 to Brenda because of the 50/50 residential schedule,

which reduced the transfer payment to Gary to $609.98.

       The trial court decided to deviate from the already-reduced transfer payment after the

residential credit because “[t]he children . . . spend significant time with the parent who owes

support, [and] [t]he non-standard amount still gives the other parent’s household enough money

for the children’s basic needs.” CP at 44. Based on this deviation, the trial court denied Gary’s

request for a transfer payment from Brenda. The trial court stated that the facts supporting its

decision were contained in the child support worksheets. However, in the record before us, these

sections of the worksheets is completely blank.




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No. 52160-14-II


H. APPEALS

       Brenda appeals and assigns error to provisions of the final dissolution order, provisions of

the findings of fact and conclusions of law regarding the marital estate, and provisions of the child

support order. Gary cross appeals.

                                            ANALYSIS

       Brenda argues that the trial court erred by (1) setting her net monthly income at $12,000,

and (2) basing entry of the judgment owed by Brenda to Gary on Couch’s testimony, reports, and

accounting of the community investment rental properties. In his cross appeal, Gary argues that

the trial court erred by (3) deviating from the standard child support calculation without sufficient

written findings of fact, (4) denying him a transfer payment from Brenda, and (5) dividing up the

marital estate as it did rather than equalizing the distribution of it as required under the prenuptial

agreement. We affirm in part and reverse in part, and remand for further proceedings consistent

with this opinion.

                                      I. STANDARD OF REVIEW

       Final dissolution orders and child support orders are reviewed for a manifest abuse of

discretion. See In re Parentage of L.H., 198 Wn. App. 190, 194, 391 P.3d 490 (2016); In re

Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). A trial court abuses its discretion

if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In

re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012).

                               II. BRENDA’S NET MONTHLY INCOME

       Brenda argues that the trial court erred by setting her net monthly income at $12,000 for

the child support calculation based on her 2016 tax return, rather than relying on updated 2017 tax



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No. 52160-14-II


return information.3 We hold that substantial evidence supports the trial court’s finding that

Brenda’s net monthly income was $12,000 and thus, the court did not manifestly abuse its

discretion.

         We review a trial court’s findings to determine whether they are supported by substantial

evidence in the record. In re Marriage of Wilson, 165 Wn. App. 333, 340, 267 P.3d 485 (2011).

This court will “‘not substitute [its] judgment for the trial court’s, weigh the evidence, or adjudge

witness credibility.’” In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572 (2007)

(alteration in original) (quoting In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144

(1999)). “In determining whether substantial evidence exists to support a court’s finding of fact,

the record is reviewed in the light most favorable to the party in whose favor the findings were

entered.” In re Marriage of Gillespie, 89 Wn. App. 390, 404, 948 P.2d 1338 (1997).

         Here, Brenda testified that her gross income in 2016 was “$203,220 or $16,935 per month.”

VRP at 229. She also testified that her net income for 2017, as of that March, from sales




3
    Preliminarily, Gary argues that Brenda invited any error. We agree.

        Under the invited error doctrine, a party may not set up an alleged error and then complain
about the error on appeal. In re Marriage of Morris, 176 Wn. App. 893, 900, 309 P.3d 767 (2013).

        Here, the trial court set Brenda’s net monthly income at $12,000 because she specifically
asked the court to do so. In her trial aid briefing, Brenda urged the court to determine her net
monthly income from employment is $12,000 per month. She testified at trial that she was asking
the court to set her net monthly income at $12,000 per month, which she arrived at from her 2016
gross income. Further, Brenda never requested that the trial court verify her income under RCW
26.19.071.

        We agree with Gary and hold that the invited error doctrine applies, so Brenda may not
complain about the error on appeal. Morris, 176 Wn. App. at 900. However, we exercise our
discretion under RAP 1.2(c) to reach the merits.


                                                 16
No. 52160-14-II


commissions alone was $37,601.44. This number did not include her monthly base salary of

between $1,900 and $2,500 or income she received from her rental properties. Because Brenda

testified that she had made $37,601.44 in the first three months of 2017, her net monthly income

was roughly $12,533.66. Therefore, her 2017 income from her 2017 tax return was still consistent

with her 2016 net income, which the court accepted to determine her net monthly income. Because

substantial evidence supports the trial court’s finding that Brenda’s net monthly income at the time

of trial was $12,000, we hold that there was no manifest abuse of discretion, and the court’s

calculation is correct.

        III. DEVIATION DOWNWARD FROM THE STANDARD CHILD SUPPORT CALCULATION

        Gary argues that the trial court erred by deviating downward from the standard child

support calculation without sufficient written findings and by failing to order a transfer payment

to him. He argues that given the parties’ respective incomes, the standard child support calculation

required a transfer payment of $609.98 from Brenda to Gary. Gary claims that based on the

parties’ income disparity, there were no grounds to deviate downward from the standard child

support calculation and to eliminate the transfer payment entirely from $609.98 to zero. Because

we are unable to determine the basis for the court’s deviation from the standard child support

calculation, we remand and order the trial court to make sufficient written findings of fact to

support any deviation from the standard child support calculation and to reconsider its decision to

deny any transfer payment from Brenda to Gary, and to amend the child support order accordingly.

        The legislature adopted the uniform child support schedule as a means to equitably

apportion the child support obligation between parents, insure child support is adequate to meet a

child’s basic needs, and provide additional child support commensurate with the parents’ income,



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No. 52160-14-II


resources, and standard of living. RCW 26.19.001. A child support order must be supported by

written findings of fact and must be accompanied by a completed child support worksheet signed

under penalty of perjury by both parties and signed as correct upon review by the presiding judicial

officer. RCW 26.19.035(2), (3).

       Under RCW 26.19.075, the trial court has discretion to deviate from the standard child

support calculation based on a variety of factors, including: the child’s residential schedule and the

effect the child support obligation has on the parents’ income and expenses. Under the plain

language of the statute, if the child spends a significant amount of time with the parent who is

obligated to make a support payment, then the court may deviate downward from the standard

child support calculation. RCW 26.19.075(1)(d). However, the court may not deviate if doing so

will result in insufficient funds to meet the basic needs of the child in the household receiving the

child support. RCW 26.19.075(1)(d). Further, deviation “remains the exception to the rule and

should be used only where it would be inequitable not to do so.” In re Marriage of Burch, 81 Wn.

App. 756, 760, 916 P.2d 443 (1996).

       “The statute also unequivocally requires written findings of fact to support any deviation

and a consideration of the total circumstances of both households.” In re Marriage of Choate, 143

Wn. App. 235, 242, 177 P.3d 175 (2008) (citing RCW 26.19.075; In re Marriage of McCausland,

159 Wn.2d 607, 620, 152 P.3d 1013 (2007) (emphasis omitted) (“Although cursory findings of

fact and the trial record might appear to justify awarding a child support amount that exceeds the

economic table, only the entry of written findings of fact demonstrate that the trial court properly

exercised its discretion in making the award.”). Where written findings of fact are insufficient or




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No. 52160-14-II


unclear, we may construe the court’s order by reviewing its oral ruling. See Shelden v. Dep’t of

Licensing, 68 Wn. App. 681, 685, 845 P.2d 341 (1993).

       Here, as discussed above, the court awarded Brenda the majority of the income-producing

investment rental properties, and thus, her income will be substantially more than her claimed net

monthly income of $12,000—compared to Gary who will no longer be receiving income from four

of the five community investment properties and whose net monthly income is $6,136.43.

       The trial court calculated the standard calculation from the parties’ worksheets and the

parties’ net monthly incomes, Brenda at $12,000 and Gary at $6,136.43:

       Parent Name:                        Standard Calculation Worksheet line 17

       Brenda Wilson                       $1,912.48 (Ex. A)
                                           $2,094.53 (Ex. B)

       Gary Wilson                         $692.52 (Ex. A)
                                           $785.47 (Ex. B)



CP at 44, 54, 60.

       The trial court calculated the standard calculation of $1,912.48 from Brenda to Gary. The

court applied a residential credit of $1,302.50 to Brenda based on the 50/50 residential schedule,

resulting in a transfer payment calculation of $609.98 to Gary. The court decided to deviate

downward from this calculation, which already accounted for the residential credit, of $609.98 to

zero because “[t]he children . . . spend significant time with the parent who owes support, [and]

[t]he non-standard amount still gives the other parent’s household enough money for the children’s

basic needs.” CP at 44. Based on this deviation, the trial court did not order any transfer payment

by Brenda to Gary. To support this deviation, the court cited the worksheets, Part VIII, lines 20


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No. 52160-14-II


through 26. However, these sections of the worksheets are completely blank. See CP at 54-55,

60-61. Therefore, it is unclear based on the record before us what facts the trial court relied upon

in deciding to deviate from the transfer payment calculation of $609.98 to zero.

       Here, there are no written findings of fact explaining that the trial court considered

“evidence concerning the increased expenses to [Brenda] making support transfer payments

resulting from the significant amount of time with [her].” RCW 26.19.075(1)(d). There are also

no findings that Gary has decreased expenses because the children reside with him and Brenda

equally. In fact, there was evidence that Gary shoulders certain expenses Brenda does not, such

as the children’s medical and dental insurance, which is $211.14 per month. Although the parties

both provided testimony regarding their respective costs for their children, the court did not

incorporate this into its findings. Further, the court granted a residential credit when it lowered

the transfer payment to $609.98, and then it reduced the transfer payment again to zero with no

explanation.

       As discussed above, we can rely upon the court’s oral ruling to determine the court’s intent

here. Shelden, 68 Wn. App. at 685. However, the court’s oral ruling does not clarify the basis for

ordering a deviation or for ordering no transfer payment from Brenda to Gary. Therefore, based

on this record, we cannot be sure that the trial court “properly exercised its discretion” in ordering

a deviation and in ordering no transfer payment. McCausland, 159 Wn.2d at 620 (emphasis

omitted).

       We hold that based on this record, the trial court failed to provide written findings of fact

to support its decision to deviate from the standard child support calculation and failed to justify

its denial of any transfer payment from Brenda to Gary. Because of the lack of an adequate record,



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we reverse and order the trial court to make sufficient written findings of fact to support any

deviation from the standard child support calculation and to reconsider its decision to deny any

transfer payment from Brenda to Gary, and to amend the child support order accordingly.

                                    IV. COUCH ACCOUNTING

       Brenda argues that the trial court erred by adopting Couch’s accounting of the net lost

income to Gary because Couch’s accounting exceeded the scope of her original expert

appointment. She also argues that substantial evidence does not support the court’s findings, and

the findings do not support the court’s conclusions. We hold that (1) the trial court did not err by

adopting Couch’s accounting, (2) Couch did not exceed the scope of her appointment, and (3)

there was substantial evidence to support the trial court’s findings, and the findings support the

count’s conclusions regarding the amount of lost fair market rental income and profits Brenda

owed Gary. Therefore, the trial court did not err by entering a judgment in the amount of $142,287

for Gary.

       “Admissibility of evidence is within the broad discretion of the trial court and will not be

reversed on appeal absent a showing of manifest abuse of discretion.” In re Parentage of J.H.,

112 Wn. App. 486, 495, 49 P.3d 154 (2002). “Discretion is abused if it is based on untenable

grounds or for untenable reasons.” J.H., 112 Wn. App. at 495. We “may sustain a trial court on

any correct ground, even though that ground was not considered by the trial court.” J.H., 112 Wn.

App. at 495. The factfinder has broad discretion in weighing expert opinions. In re Marriage of

Sedlock, 69 Wn. App. 484, 491, 849 P.2d 1243 (1993).

       ER 702 establishes that expert testimony may be used at trial “[i]f scientific, technical, or

other specialized knowledge will assist the trier of fact to understand the evidence or to determine



                                                21
No. 52160-14-II


a fact in issue.” ER 703 allows an expert to base her opinion on facts made known to the expert

prior to trial. ER 704 establishes that an expert may provide her opinion on an ultimate issue.

Finally, ER 705 establishes that the expert may testify to her opinion or inference without prior

disclosure of the underlying facts or data.

        The trial court’s order appointing Couch to perform a forensic accounting stated, in

relevant part,

        For each separate real estate investment identified above, the professional shall
        determine the net amount actually received by each party and the amount actually
        paid by each party for any “expenses” for each separate real estate investment
        between May 1, 2013 and February 29, 2016 . . . .

CP at 106. The court extended Couch’s appointment through February 28, 2017, to create a second

accounting period, but denied Couch’s request to expand the scope of her appointment beyond that

date.

        After considering both experts’ accountings, the court ordered Brenda to pay Gary “for his

community share of net profits and proceeds from the parties’ investment properties,” to be secured

by a promissory note and deed of trust on one of the properties awarded to Brenda. CP at 20. In

determining the amount of the judgment, and ordering that Brenda pay Gary $142,287, the court

adopted Couch’s accounting through February 2017.           This figure was based on Couch’s

calculations which showed that Brenda owed Gary funds generated from the income properties

because he was underpaid for the rental property income, and he overpaid the expenditures. Based

on Couch’s accounting, the court found that Brenda had not been charging fair market rental value,

her business was not paying rent for the space it used, and that Brenda provided “comp stays” to

her clients. VRP at 832.




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No. 52160-14-II


       On this record, Brenda fails to show how Couch exceeded the scope of her initial

appointment when Couch provided the court with the accounting it ordered on the investment

properties. Brenda also fails to show that the court erred by adopting Couch’s accounting. And

substantial evidence supports the court’s findings and the findings support the court’s conclusions

related to the net lost profit and proceeds. We hold that (1) the trial court did not err by adopting

Couch’s accounting, (2) Couch did not exceed the scope of her appointment, and (3) there was

substantial evidence to support the trial court’s findings, and the findings support the count’s

conclusions regarding the amount of lost fair market rental income and profits Brenda owed Gary.

Therefore, the trial court did not err by entering a judgment in the amount of $142,287 for Gary.

                             V. DIVISION OF THE COMMUNITY ESTATE

       Gary argues that the trial court erred by awarding a disproportionate share of the

community estate to Brenda instead of dividing it as “equally as possible,” as required by the

prenuptial agreement. We hold that the trial court erred by not fully abiding by the prenuptial

agreement and by not dividing the community estate as equally as possible. Thus, we reverse the

portion of the final decree of dissolution related to the community property distribution.

A. STANDARD OF REVIEW

       A prenuptial agreement is binding if it is procedurally and substantively fair. In re

Marriage of Bernard, 165 Wn.2d 895, 902, 204 P.3d 907 (2009). “Public policy favors prenuptial

agreements.” In re Marriage of Marzetta, 129 Wn. App. 607, 617, 120 P.3d 75 (2005), abrogated

on other grounds by, McCausland, 159 Wn.2d 607. “Prenuptial agreements are contracts subject

to the principles of contract law.” Marzetta, 129 Wn. App. at 617.




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No. 52160-14-II


       In dissolution proceedings, the trial court has broad discretion to make a just and equitable

distribution of all property based on the factors enumerated in RCW 26.09.080. Rockwell, 141

Wn. App. at 242-43. A division of property need not be precisely equal; rather, it must be fair to

both parties depending on their circumstances at the time of the dissolution. RCW 26.09.080.

       RCW 26.09.080 provides a list of factors the court must consider, including, but not limited

to:

       (1) [t]he nature and extent of the community property; (2) [t]he nature and extent
       of the separate property; (3) [t]he duration of the marriage or domestic partnership;
       and (4) [t]he economic circumstances of each spouse or domestic partner at the time
       the division of property is to become effective, including the desirability of
       awarding the family home or the right to live therein for reasonable periods to a
       spouse or domestic partner with whom the children reside the majority of the time.

The court must make a “just and equitable” distribution of the property. RCW 26.09.080. “All

property, community and separate, is before the court for distribution.” In re Marriage of Doneen,

197 Wn. App. 941, 948, 391 P.3d 594 (2017). We

       “will not single out a particular factor, such as the character of the property, and
       require as a matter of law that it be given greater weight than other relevant factors.
       The statute directs the trial court to weigh all of the factors, within the context of
       the particular circumstances of the parties, to come to a fair, just and equitable
       division of property. The character of the property is a relevant factor which must
       be considered, but it is not controlling.”

Doneen, 197 Wn. App. at 948-49 (quoting In re Marriage of Konzen, 103 Wn.2d 470, 478, 693

P.2d 97 (1985)).

       The trial court has broad discretion in dividing property in a decree of dissolution and will

be reversed only upon a showing of a manifest abuse of discretion. In re Marriage of Buchanan,

150 Wn. App. 730, 735, 207 P.3d 478 (2009). A trial court abuses its discretion if its decision is

manifestly unreasonable, meaning that its decision is outside the range of acceptable choices, or is



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No. 52160-14-II


based upon untenable grounds. Buchanan, 150 Wn. App. at 735. We review the trial court’s

factual findings for substantial evidence, which is “‘evidence of sufficient quantity to persuade a

fair-minded, rational person of the truth of the declared premise.’” Rockwell, 141 Wn. App. at

242, (quoting In re Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002)). Where

written findings of fact are insufficient or unclear, we may construe the court’s order by reviewing

its oral ruling. Shelden, 68 Wn. App. at 685.

B. COMMUNITY PROPERTY DISTRIBUTION

       At trial, the parties’ community estate consisted largely of five rental properties and their

family home. As stated above, the trial court awarded the community investment properties

between the parties. Gary was awarded the family home and the Robin Court property (totaling

$599,000) and Brenda was awarded the remaining four properties (totaling $695,077).

       The court also awarded one-half of Gary’s retirement to each party, and the four

community bank accounts with the Chase account going to Gary and the Wells Fargo and

Columbia Credit Union accounts going to Benda. Here, the trial court found that the prenuptial

agreement was valid and enforceable. However, the court, in dividing the marital estate, explained,

       [T]he job of the [c]ourt is to make a fair and equitable division of assets, and I do
       not do that with precision between the parties. There’s a number of factors. Like
       I say, probably this case has what I would call more moving parts than most, in that
       Mrs. Wilson has a very good career but she also spent a good portion of her career
       as primary. And we have the prenuptial agreement so that I – it says, you know,
       don’t look at separate property, but I don’t think that binds the court not to look at
       the overall division.

VRP at 833-34.

       Gary argues that the trial court ignored the provision in the prenuptial agreement which

states, “The parties’ community assets and debts shall be divided as equally as possible.” Ex. 1 at



                                                25
No. 52160-14-II


15. Another related provision in the agreement states, “In dividing assets and liabilities of their

marital community, the separate property of each party shall not be taken into account directly or

indirectly.” Ex. 1 at 14. Gary claims that the court had two options to equalize the judgment: (1)

award him an additional $48,038.50 to the $599,000 in community real property that he was

awarded (compared to Brenda’s award of $695,077), or (2) award him the Fairwinds Loop

property valued at $123,000 and award Brenda an offset to the $142,247 judgment she owes him.

       We agree with Gary that the prenuptial agreement, which is valid and enforceable, requires

the court to divide the community property “as equally as possible.” The trial court failed to do

so here. Although the trial court has broad discretion to divide the property equitably, it failed to

abide by a valid and enforceable prenuptial agreement. Thus, we reverse this portion of the decree

of dissolution related to the distribution of community estate.

                                            VI. OFFSET

       Gary argues that the trial court erred by offsetting the judgment by $39,000. Brenda argues

that this was not an error because her name was listed on the Solarity account, and she did not

approve of Gary’s payment of funds from that account to his father for the work he performed on

the rental properties. We agree with Gary that the court erred by granting Brenda an offset of

$39,000.

       “‘In performing its obligation to make a just and equitable distribution of properties and

liabilities in a marriage dissolution action, the trial court must characterize the property before it

as either community or separate.’” In re Marriage of Groves, 10 Wn. App. 2d 249, 254, 447 P.3d

643 (2019) (quoting In re Marriage of Kile, 186 Wn. App. 864, 875, 347 P.3d 894 (2015) review




                                                 26
No. 52160-14-II


denied, 458 P. 3d 781 (2020)). We review de novo a trial court’s characterization of property as

separate or community.” Groves, 10 Wn. App. 2d at 254.

        Here, because the trial court found the prenuptial agreement to be valid and enforceable, it

was bound by it. Bernard, 165 Wn.2d at 902. Pursuant to the prenuptial agreement, the court

properly characterized the Solarity account as Gary’s separate property. Brenda does not challenge

this finding.

        The prenuptial agreement also states in relevant part that:

        [N]either party shall claim a right of reimbursement for any labor, materials,
        money, or the like contributed to or on behalf of the separate property of the other
        party and any such contribution shall be considered either a de minimis
        contribution, a gift to the other party, or that the community has received a
        compensating benefit from the use of the property to or for which the contribution
        was made.

Ex. 1 at 5.

        Under the provisions of the prenuptial agreement, even though Brenda’s name was on the

Solarity account and community funds may have been deposited into the account “from time to

time,” Brenda does not have a right of reimbursement under the prenuptial agreement. Ex. 1 at 3-

5. Thus, we hold that that the trial court erred by offsetting the judgment to Gary of $142,287 by

$39,000. We remand this portion of the final decree of dissolution and order the court to strike the

$39,000 offset and amend the judgment accordingly.

                           VII. APPELLATE ATTORNEY FEES AND COSTS

        Brenda argues that based on RAP 18.1(a), she is entitled to an award of appellate attorney

fees and costs. We deny her request.




                                                 27
No. 52160-14-II


       If applicable law grants to a party the right to recover reasonable attorney fees or
       expenses on review . . . the party must request the fees or expenses as provided in
       this rule.

RAP 18.1(a). However, the prenuptial agreement does not allow for a party to request attorney

fees. Because Brenda is not entitled to an award of attorney fees and costs, we deny her request.

                                            CONCLUSION

       We affirm (1) the trial court’s finding that Brenda’s net monthly income is $12,000 for

child support, and (2) the court’s ruling adopting Couch’s accounting for purposes of determining

the amount of net lost profit and proceeds owed by Brenda to Gary for their investment rental

properties. We reverse (3) the provisions of the child support order related to the deviation from

the standard child support calculation and the court’s decision not to order a transfer payment from

Brenda to Gary. We also reverse (4) the provisions of the final dissolution order related to the

distribution of the community estate, and (5) the portion of the money judgment entered in favor

of Gary related to the offset of $39,000.

       We remand for further proceedings consistent with this opinion. On remand, we order the

court to (1) make sufficient written findings of fact to support any deviation from the standard

child support calculation and to reconsider its decision to deny any transfer payment from Brenda

to Gary, and to amend the child support order accordingly, (2) reconsider the distribution of the

community property and equalize the division of it as equally as possible, and (3) strike the $39,000

offset and amend the money judgment accordingly.




                                                 28
No. 52160-14-II


        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.



                                                    SUTTON, A.C.J.
 We concur:



 MAXA, J.




 GLASGOW, J.




                                               29
