              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                  DIVISION ONE

In the Matter of the Marriage of            )      No. 79065-0-I
JOSEPH CHARLES ANTHONY,

                             Appellant,
                                            )      UNPUBLISHED OPINION
                  and

PENNY LEE ANTHONY,                          )
                             Respondent.    )      FILED: July 1, 2019

       SCHINDLER,   J.   —   Joseph Anthony appeals the amount and duration of

maintenance awarded to Penny Anthony. Joseph also contends the “Qualified

Domestic Relations Order” (QDRO) does not accurately reflect the trial court’s decision.

The court did not make a finding on the income of the parties, and the court did not

address the ability of Joseph to meet his needs and financial obligations while meeting

those of Penny or enter written findings on the statutory factors. We affirm the decision

to award maintenance. But we remand to determine the amount and duration of

maintenance after making a finding on the income of the parties and consideration of

the statutory factors. Penny concedes the QDRO is not accurate. On remand, the

court shall enter a QDRO that accurately reflects the court’s ruling. We also direct the

court on remand to address Penny’s request on appeal for attorney fees under RCW

26.09. 140.
No. 79065-0-1/2

                                                      FACTS

              Joseph Anthony and Penny Anthony married on June 19, 1987. Joseph was 24-

years-old and Penny was 22-years-old.1 Penny did not complete the eighth grade and

does not have a general education development (GED) certification. During the

marriage, Penny stayed home and took care of the four children.

              Joseph served in the Marine Corps from March 27, 1984 until July 31, 2006.

Joseph was 43-years-old when he retired from the Marine Corps in 2006. In 2007,

Joseph started working at Lynden Transport Incorporated (LTI) as a short-haul truck

driver.

          Joseph and Penny separated in August 2012. On July 6, 2015, Joseph filed a

petition for dissolution of the marriage. Joseph requested a fair and equitable division”

of the community and separate property and “all debts and liabilities.” Joseph agreed

“[m]aintenance will be paid” to Penny.

          Joseph and Penny testified at trial. At the time of trial, Joseph was 53-years-old

and Penny was 51-years-old. The court admitted a number of exhibits into evidence,

including the financial declarations filed by Joseph and Penny and financial documents,

including LTI W-2s and pension documentation. In his financial declaration, Joseph

states his total gross monthly income is $7,807. He lists monthly wages of $3,504,

overtime of $2,086, and military disability of $817. Joseph receives monthly military

retirement income of $2,500. In his financial declaration, Joseph allocates $1,400 of the

military retirement income to himself and $1,100 to Penny. Joseph imputed $1,600 in

income to Penny. Joseph stated his total monthly expenses were $3,995. In her


          1   We refer to the parties by their first names for purposes of clarity and mean no disrespect by
doing so.


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No. 79065-0-1/3

financial declaration, Penny stated she has no income and total monthly expenses of

$3,566.

          Joseph testified his financial declaration was accurate and he routinely worked

overtime at LTI, earning approximately $2,000 a month. Joseph agreed the [TI W-2s

showed his income had increased every year since 2012. Joseph testified he works

approximately 15 hours a week in overtime. Joseph said he works that amount of

overtime to pay bills and does not want to continue working the same amount of

overtime. Joseph testified he could pay $2,500 a month in maintenance to Penny and

pay his expenses. Joseph testified the amount in his LTI 401(k) retirement account in

2014 was $26,000.

          Penny testified she receives $3,050 each month from Joseph and $500 a month

in rent from her adult son Michael. Penny testified she has no retirement savings and

wanted to remain in the family house. Penny testified that she planned to get her GED

and then apply for minimum wage jobs.

          The court ruled at the conclusion of the trial. The court considered the statutory

factors in dividing the assets and liabilities under ROW 26.09.080. The court awarded

Penny the family home. The court determined the equity in the house was $51 ,000 and

awarded Joseph one-half of the equity of $25,500. The court awarded Penny one-half

of the military pension and the [TI ‘pension equity plan” retirement account. The court

ruled the award of the retirement accounts would offset Joseph’s half of the home

equity.

          The court identified and considered the statutory factors under ROW 26.09.090 in

awarding maintenance to Penny. The court ruled Penny should receive maintenance



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No. 79065-0-1/4

for 20 years as follows: $2,500 per month for the first five years, decreased by $500

each of the next five-year periods.

          Joseph filed a motion for clarification of the division of property, the valuation

date for the family home and the pensions, and the maintenance award “in relation to

the parties’ incomes and their portions of the military retirements and the husband’s

overtime.”

          On April 18, 2017, the court entered the decree of dissolution and written findings

of fact and conclusions of law. The court awarded the family home to Penny. The court

offset Joseph’s equity in the house with the LTI retirement account. The court ordered

Penny to refinance or sell the house in the next 18 months. Exhibit A, “Real Property,”

states:

                  Penny Anthony shall receive the marital home located at 8378
          Glennwood Rd. SW, Port Orchard, WA 98367. Tax parcel no.: 22230 1-2-
          054-2003. Mr. Anthony shall sign a Quit Claim Deed and Real Estate
          Excise Tax Affidavit to make this possible.
                  The [court] accepts the appraisal done by Mr. Mokert and finds that
          there is $51,000 worth of equity in the family home. Each party shall
          receive half of the equity in the amount of $25,500 each.
                  Mr. Anthony’s portion of the equity from the home in the amount of
          $25,500 shall be awarded via an offset of the division of his [TI retirement
          account. (See Exhibit B re: Division of Retirement Accounts)[.]
                  Mrs. Anthony has 18 months to refinance the home, or she must
          put it on the market for sale.

          The court awarded Penny half of the retirement accounts. Exhibit B states, in

pertinent part:

          2.    [TI Retirement Account: Each party is to receive half of the [TI
                Retirement Account accrued from the date of marriage through
                November 1, 2016. However, this is subject to an offset to account
                for Mr. Anthony’s portion of the home equity in the amount of
                $25,500.

                To obtain the proper division in the [Qualified Domestic Relations
                Order] of the [TI Retirement Account, the balance as of November

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No. 79065-0-1/5

             1,2016, will be used, and Mr. Anthony’s award of $25,500 (his
             share of the home equity) will remain in the account prior to splitting
             the remaining funds. The remaining balance in the account will
             then [be] divided by 2 to split the remainder of the funds equally
             between the parties.

       3.    Military Retirement:         Mrs. Anthony is awarded her portion of
             Mr. Anthony’s military retirement accrued from June of 1987 until
             Mr. Anthony’s military retirement date, minus his disability
             payments as they are not subject to division.

      4.     401(k) Retirement:        Mrs. Anthony is awarded half of the
             401(k) accrued from June of 1987 until August of 2012.

      The court awarded Penny maintenance. The findings of fact and conclusions of

law state, “Spousal support should be ordered for the following reasons”:

      1)     This was a 25 year long term marriage that was mutually beneficial.

      2)     Per In re: the Marriage of Rockwell, [141 Wn. App. 235, 170 P.3d
             572 (2007),] the Court must put the parties in roughly equal
             positions post dissolution.

      3)     Per RCW 26.09.090, the Court must look at the following factors:
             a) the financial resources of the parties—   present and future, b)
             the time necessary for the requesting spouse to acquire sufficient
             education or training to find employment, c) the standard of living
             established during the marriage, d) the duration of the marriage, e)
             the age as well as physical and emotional condition of each party,
             as well as the financial obligations of the spouse seeking
             maintenance, and f) the ability of the spouse from whom
             maintenance is sought to meet his/her obligations while meeting
             those of the spouse seeking maintenance.

      4)     The Court finds that upon examination of the above factors Mrs.
             Anthony should be awarded spousal support for 20 years, starting
             at $2,500 per month and decreasing by $500 every 5 years.

      5)     This award is fair and equitable under the circumstances of this
             case, Washington statutes and case law.

      The court granted the motion for reconsideration of the award of maintenance in

part. The court amended the decree of dissolution to state maintenance “will end when



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 No. 79065-0-1/6

either spouse dies, or the spouse receiving support gets married or registers a new

domestic partner.” The court entered an amended decree on June 5, 2017.

                                              ANALYSIS

        Joseph seeks reversal of the amount and duration of maintenance. Joseph

contends (1) the court based the maintenance award on incorrect income projections

and erred in concluding that under In re Marriage of Rockwell, 141 Wn. App. 235, 170

P.3d 572 (2007), “the Court must put the parties in roughly equal positions post

dissolution” rather than considering the statutory factors in awarding maintenance to

Penny, and (2) the “Qualified Domestic Relations Order” (QDRO) is inconsistent with

the court’s ruling.

Calculation of Income

       Joseph argues the court based the award of maintenance on inaccurate income

projections.

       During the oral ruling on the division of property, the court described a

“hypothetical[   ]“   calculation of the financial position of the parties postdissolution. In

addressing property distribution, the court cited Rockwell “with regards to the just and

equitable distribution of property and going beyond, as [Penny’s attorney] points out,

kind of the post divorce economic circumstances of the parties.” The court addressed

the parties’ “substantial financial disparities in terms of the potential to generate

income.”

                In looking at the issues kind of post divorce and post dissolution,
       the economic circumstances, it’s completely understood that Mr. Anthony
       likely will be working less and not more. He’s 53. He’s correct        I think,
                                                                               —


       he provided credible testimony with regards to his job. It is a difficult job.
       It’s—   it’s taxing both mentally and physically driving a truck.
                He’s 53. As he continues to get older, that will become more and
       more of an issue. He’s certainly entitled to do things outside of work, and

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No. 79065-0-1/7

       so the notion that he would continue to work 60 hours a week       —  perhaps
       in the short term .   but in the long term that’s not particularly realistic.
                             .   .


       And I don’t think that he’s obligated [to] be working 60 hours a week.

              As I do the math, just I like to do kind of in my own mind kind of
       hypotheticals and whatnot, although have real numbers here.
               Forexample, ifoverthe nextten years instead of grossing 115,000
       a year, Mr. Anthony were to gross $85,000 a year, so $30,000 less per
       year because he decides to work less, that still is a total gross income of
       $850,000 over the next ten years. That would take him to 63, at which
       point he may be contemplating retirement or whatnot.
               If Ms. Anthony    and we will talk about her employment situation
                                     —


       —  but if she were to work a minimum wage job      —  well, actually I did $10
       an hour, minimum wage will likely increase    —   but at $10 an hour, full time,
       over the next ten years that would be $200,000 gross income.
              So we’re talking about even if Ms. Anthony were to work for ten
       years at a minimum wage job and Mr. Anthony were to decrease his hours
       and his gross income were to decrease [$]30,000 a year, we’re still talking
       about over the next ten years a difference of $650,000 of income.
              There’s no doubt, there’s no question that Mr. Anthony is in a far
       better position to generate income than Ms. Anthony.

       Joseph contends his projected 10-year income is $679,800, not $850,000; and

Penny’s income would be $383,680, not $200,000. Joseph argues the court deducts

$30,000 a year for overtime but erroneously allocates the entire amount of his military

pension to him in the hypothetical projections. We agree the hypothetical does not

appear to take into account allocation of the pension. But as the court expressly noted,

the projection is a hypothetical example and “I have real numbers here.” The record

shows the court did not base the award of maintenance on the hypothetical projections.

But the court did not make a finding on the actual income of the parties. We remand to

determine the income for each party for purposes of awarding maintenance, On

remand, the court shall determine the income of each party and enter a specific finding

on income before considering the statutory factors for maintenance.




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No. 79065-0-1/8

Award of Maintenance

       RCW 26.09.090 controls the award of maintenance. The following are the

nonexclusive statutory factors under ROW 26.09.090(1):

               (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 or
       domestic partnership;
               (d) The duration of the marriage or domestic partnership;
               (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.

       We review a trial court’s award of maintenance for abuse of discretion. In re

Marriage of Valente, 179Wn. App. 817, 822, 320 P.3d 115 (2014). The court has broad

discretion to award maintenance. In re Marriage of Bulicek, 59 Wn. App. 630, 633, 800

P.2d 394 (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

Larson, 178Wn. App. 133, 138, 313 P.3d 1228 (2013).

       Absent a showing of manifest abuse of discretion, we will not disturb the award of

maintenance. In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984).

“The only limitation on amount and duration of maintenance under ROW 26.09.090 is

that, in light of the relevant factors, the award must be just.” Bulicek, 59 Wn. App. at

633; In re Marriage of Wright, 179 Wn. App. 257, 269, 319 P.3d 45(2013); Washburn,

101 Wn.2d at 182. While the trial court must consider the factors listed in ROW

26.09.090(1), it is not required to make specific factual findings on all of the factors. In

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No. 79065-0-1/9


re Marriage of Mansour, 126 Wn. App. 1, 16, 106 P.3d 768 (2004). An award of

maintenance is “a flexible tool by which the parties’ standard of living may be equalized

for an appropriate period of time.” Washburn, 101 Wn.2d at 179. Ultimately, the court’s

main concern must be the parties’ economic situations postdissolution. Washburn, 101

Wn.2d at 181.

       Maintenance not based on a fair consideration of the statutory factors constitutes

an abuse of discretion. In re Marriage of Crosetto, 82 Wn. App. 545, 558, 918 P.2d 954

(1 996). We treat the trial court’s findings of fact as verities on appeal, so long as they

are supported by substantial evidence. In re Marriage of Chandola, 180 Wn.2d 632,

642, 327 P.3d 644 (2014). “‘Substantial evidence’ is evidence sufficient to persuade a

fair-minded person of the truth of the matter asserted.” Chandola, 180 Wn.2d at 642.

       Joseph challenges the conclusion of law that states, “Per In re: the Marriage of

Rockwell,   .   .   .   the Court must put the parties in roughly equal positions post dissolution.”

       On reconsideration, Joseph argued the court erred in entering the conclusion of

law that states Rockwell requires the court to “put the parties in roughly equal positions

post dissolution.” Citing Wright, 179 Wn. App. at 262, Joseph asserted Rockwell does

not mandate that the trial court place the parties in “roughly equal financial positions for

the rest of their lives” by awarding long-term future maintenance.

       In In re Marriage of Kaplan, 4 Wn. App. 2d 466, 474, 421 P.3d 1046, review

denied, 191 Wn.2d 1025, 428 P.3d 1184 (201 8), we rejected the argument that our

decision in Rockwell means “the trial court must follow the ‘overarching premise’ that




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No. 79065-0-1/10

because of their long-term marriage, the parties must be placed in roughly equivalent

financial positions for the rest of their lives.”

       Heidi’s argument is based on an overly narrow reading of the statement
       made by this court in In re Marriage of Rockwell, 141 Wn. App. 235, 243,
       170 P.3d 572 (2007), that in long-term marriages of over 25 years “the trial
       court’s objective is to place the parties in roughly equal financial positions
       for the rest of their lives.”
               Rockwell affirmed the trial court’s unequal distribution of community
       property after a long-term marriage. The trial court did not, however, limit
       its consideration to the length of the marriage or conduct a mathematical
       analysis to ensure equal financial positions for the rest of the parties’ lives.
       Instead, the trial court examined a variety of factors in reaching its
       decision to award an unequal distribution.

Kaplan, 4 Wn. App. 2d at 474-75.

       In Kaplan, we emphasized that duration of marriage is only one of the statutory

factors that the trial court must consider. Kaplan, 4 Wn. App. 2d at 476-77. We held,

“An objective of placing the parties to a long-term marriage in ‘roughly equal’ financial

positions is not a mandate for trial courts   .   .   .    .   The trial court must still exercise its

discretion to consider all of the statutory factors.” Kaplan, 4 Wn. App. 2d at 475-76.

       The record does not support the argument that the court relied on Rockwell. At

the hearing on the motion for reconsideration, the court clarified that it did not rely on

Rockwell and considered only the statutory factors in awarding maintenance:

       I don’t think it was eloquently put when I said I’m ordering 20 years of
       maintenance and then I immediately referenced Rockwell.
              [1
                   Rockwell is a property case, not a maintenance case.          I         .   .   .


       outlined all the factors that one has to look at for distributing property. I
       also outlined all the factors that one has to look at in determining
       maintenance.




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No. 79065-0-Ill 1

              There’s no requirement in the statutes or case law that the trial
       court isolate the determination of maintenance from the property division.

But see Kaplan, 4 Wn. App. 2d at 483 (quoting In re Marriage of Estes, 84 Wn. App.

586, 593, 929 P.2d 500 (1997))     (“   ‘[T]he trial court may properly consider the property

division when determining maintenance, and may consider maintenance in making an

equitable division of the property.’    “).




       Here, unlike in Rockwell, the record shows the court considered the statutory

factors in its oral ruling. The court considered Penny’s financial circumstances:

                Ms. Anthony is the one seeking the support here. At the present
       time  .   her ability to be employed, in my mind, remains somewhat of a
                 .   .   —

       question. She         she has never been
                             —                       —  I don’t want to make this sound
       the wrong way. She hasn’t had meaningful gainful employment, meaning
       prolonged periods of time of employment.          .


                    [Alt this point, if she didn’t receive any financial support
       tomorrow, she wouldn’t have any ability to meet her needs. And I         .


       think it goes beyond tomorrow.

The court considered Penny’s likelihood of employment. “[P]eople can be employed

without a GED, but it really is difficult. So that’s something that I think Ms. Anthony can

do, and should do, but that doesn’t alleviate the need for what I consider to be

significant spousal support.” The court considered Penny’s standard of living. “Just by

the very nature of the relationship dissolving, that invariably is going to reduce the

standard of living likely for both parties.” The court also considered the duration of the

marriage, “[W]e have a 25-year marriage and that’s significant”; and Penny’s age, her

physical and emotional condition, and her financial obligations. “We have to be honest

that even at 25 or 26 [years old] it’s difficult to find gainful employment sometimes, and

at 51 it’s going to be even more difficult.”




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No. 79065-0-1112

         Although the court cites RCW 26.09.090(1)(f), the record shows the court did not

address Joseph’s ability to pay maintenance or his needs and financial obligations.2 On

remand, the court shall enter written findings on the statutory factors and specifically

address Joseph’s ability to continue to work overtime and to pay maintenance and meet

his needs and financial obligations.

Qualified Domestic Relations Order

         Joseph contends the QDRO does not reflect the trial court’s ruling. The court

ruled:

         Each party is to receive half of the LTI Retirement Account accrued from
         the date of marriage through November 1, 2016. However, this is subject
         to an offset to account for Mr. Anthony’s portion of the home equity in the
         amount of $25,500.

         To obtain the proper division in the QDRO of the [TI Retirement Account,
         the balance as of November 1, 2016, will be used, and Mr. Anthony’s
         award of $25,500 (his share of the home equity) will remain in the account
         prior to splitting the remaining funds. The remaining balance in the
         account will then [be] divided by 2 to split the remainder of the funds
         equally between the parties.

         The [TI retirement account was valued at $66,033.08 on November 1, 2016.

Joseph and Penny’s one-half share would have been $33,016.54 each. Offsetting

Joseph’s share of the home equity results in the following calculation:

         Joseph: $33,016.54 plus $25,500.00 equals $58,516.54
         Penny: $33,016.54 minus $25,500.00 equals $7,516.54.

         Penny concedes the QDRO erroneously states she is entitled to $20,266.54,

resulting in an overpayment to her by approximately $12,750.00. We remand to enter a

QDRO that accurately reflects the court’s ruling.



         2 The court stated Joseph “earns a significant income” but “it’s fair to say that maybe not in the

short term but in the long term that’s going to be reduced.”


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 No. 79065-0-1/13

Attorney Fees

         Penny requests attorney fees on appeal under RCW 26.09.140. RCW 26.09.140

gives the court the discretion to award attorney fees. The court must consider the

party’s relative need versus ability to pay. In re Marriage of Shellenberger, 80 Wn. App.

71, 87, 906 P.2d 968 (1995). On remand, the trial court shall determine whether to

award attorney fees to Penny under RCW 26.09.140.

        We affirm the decision to award maintenance but remand to determine the

amount and duration of maintenance after making a finding on the income of the parties

and consideration of the statutory factors. Because Penny concedes the QDRO is not

accurate, on remand, the court shall enter a QDRO that accurately reflects the court’s

ruling. We also direct the court to address Penny’s request for attorney fees under

RCW 26.09.140.~




WE CONCUR:




          ~ For the first time on appeal, Joseph requests reass gnment to a new judge on remand. The
remedy of reassignment has limited availability. ‘[E]ven where a trial judge has expressed a strong
opinion as to the matter appealed, reassignment is general y not available as an appellate remedy if the
appellate court’s decision effectively limits the trial court s d screton on remand.’ Kaplan, 4 Wn App 2d
                                                                                 “

at 487 n.4 (quoting State v. McEnroe, 181 Wn.2d 375 387 333 p 3d 402 (2014)). “Only ‘where rev ew of
facts in the record shows the judge’s impartiality might reasonab y be questioned’ will the appe ate court
remand the matter to another judge.” Kaplan, 4 Wn. App. 2d at 487 n.4 (quoting State v. Solis-Diaz, 187
Wn.2d 535, 540, 387 P.3d 703 (2017)). After reviewing the record in this case, we conclude the trial
court’s impartiality cannot “reasonably be questioned” and decline to order reassignment on remand.


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