IN RE: the Marriage of: (2011)

— This is an appeal of a dissolution decree between Harold J. (Bud) Green and his wife of 46 years, Janice Gai Green.¹  Bud appeals the trial court's division of property and contends the court erred in numerous rulings.   We affirm in part, reverse in part, and remand for the trial court to characterize and value all of the property, and to enter findings of fact supporting the fair and equitable distribution of the property.

In 1995, the senior Greens established the Green Living Trust of 1995 (senior trust), which retained 1,200 voting shares in the limited partnership and held control of the nine parcels of farm land and when it could be sold.   After establishing the senior trust, the senior Greens began gifting $10,000 per year each to Bud and Janice, $5,000 each to Bud and his brother, and $10,000 per year each to Bud's brother and his wife.   The $10,000 annual gifts were increased to $12,000 in 2006.

When Bud and Janice moved back to Spokane in 1994, Bud's father was in ill health.   Bud and Janice resided rent-free on property owned by the senior Greens until 2005.   In 2000, 10 acres of land from the limited partnership were quitclaimed to Bud and Janice so that they could build a home.   The senior Greens deducted 2,342 shares from Bud's interest in the limited partnership in exchange for the 10 acres of property.   Consequently, Bud received 23,158 limited shares.   Bud's brother received 25,500 limited shares.   Each brother also received 400 general shares.

When Bud and Janice first returned to Spokane, they lived off money given to them by the senior Greens.   One year after returning to Spokane, Bud and Janice decided they could no longer support themselves on the gifts from the senior Greens.   Bud chose not to return to work.   Instead, Janice found work to meet the family's financial needs.   Janice took several jobs in the education field and, eventually, worked for Esprit Technologies in Spokane from 2002 through 2008.

Bud never returned to work after leaving Boeing.   At first, the couple drew from Bud's personal retirement account.   Five years later, he qualified for retirement payments from Boeing.

Ultimately, Janice's employer, Esprit Technologies, experienced cash flow problems, and the couple infused sums into the business to ensure that it would remain afloat.   Bud and Janice had an interest in maintaining Janice's employment, and there was an added incentive of potentially receiving an interest in the business.

In 2005, Bud's father died.   In 2007 or 2008, Bud became the trustee of the senior trust.   The annual tax exempt gifts continued as before.   The trial court found that Bud has almost unlimited discretion with regard to paying himself or not paying himself, taking money only as a loan versus the gift.   Clerk's Papers (CP) at 195.²

In June 1998, Bud and Janice created the Green Living Trust of 1998 (junior trust).   It was contemplated that this trust would dissolve in the event of a divorce.   Along with community assets, Bud assigned to the trust the 10 acres that his parents had earlier quitclaimed from their limited partnership for Bud and Janice to build a residence.   Bud also transferred the 23,158 limited shares he had received from the limited partnership.

The petition for dissolution was filed in April 2008.   Janice obtained an order requiring Bud to pay her spousal maintenance of $1,500 per month during the pendency of the dissolution action.   The court granted this relief and awarded her $2,500 in attorney fees.   Janice was unemployed at the time of trial.   She received $515 in unemployment benefits that expired in October 2008.   She began receiving Social Security benefits of $986 per month in November 2008.

During the pendency of this action, Bud's monthly income totaled $1,822.56 from his retirement from Boeing ($518 per month) and his Social Security ($1,324 per month).   As trustee of the senior trust, Bud stopped the annual tax exempt gifts to himself and Janice.   Bud and his brother have also taken loans out against the senior trust.

Prior to trial, the parties resolved some issues through mediation.   In its final decision, the trial court allowed Bud to retain his interest in the limited partnership and in the senior trust.   The court valued his interest in the limited partnership at $481,275.   It is unclear whether this value included Bud's interest in the senior trust.   The marital community was valued at $130,581 in total assets.   Bud was awarded $103,419 in community assets.   Janice was awarded $27,162 in community assets.   In addition, Bud was allowed to keep his Boeing retirement, which was valued at $100,000.   The court decided that the community debts, including those associated with Esprit Technologies, should be divided equally.   Each party assumed $32,282 of the community debt of $64,564.

The court held that Bud and Janice should place the 10 acres of land determined to be Bud's separate property, and the residence, a community improvement, in the junior trust for the benefit of the parties' two sons.   Janice was awarded a beneficial interest in the property for her lifetime or until she chose to vacate the property.   Any remainder interest in the property would be held in the junior trust for the benefit of the two sons.   Bud was ordered to pay the property taxes on the 10 acres, and Janice was obligated to pay insurance on the residence and other maintenance expenses.

The court held that Janice was entitled to an equalization payment of $278,766 from Bud. Janice was also awarded one year of spousal maintenance at the rate of $1,500 per month.   After that time, the $1,500 per month equalization payment would continue.

Bud appeals the court's decision.   He contends that the trial court penalized him because he had an affair with his mother's personal care attendant.   He also contends the court abused its discretion:  (1) by failing to obtain jurisdiction over the limited partnership and the senior trust but then including these assets in the property division;

(2) by allowing the testimony and market analysis offered by Dewitt Sherwood;  (3) by failing to set forth findings describing how the court determined the value of Bud's minority interest in the limited partnership;  (4) by considering Bud's interest in the senior trust when making a fair and equitable division of assets;  (5) by failing to characterize, value, and divide the residence;  (6) when awarding the bank accounts;  (7) by finding the debt to Esprit Technologies a community liability;  (8) when calculating the extent of community and separate property;  and (9) by awarding maintenance and by obligating Bud to pay property taxes on the residence.

ANALYSIS

In a dissolution action, the trial court must make a just and equitable distribution of the property and liabilities of the parties after considering all relevant factors, including the nature and extent of the separate and community property and the duration of the marriage.  RCW 26.09.080.   The trial court's paramount concern when distributing property in a dissolution action is the economic condition in which the decree leaves the parties.  In re Marriage of Williams, 84 Wn.App. 263, 270, 927 P.2d 679 (1996).

The court must consider the required factors and make appropriate findings of fact before it can divide the property and award maintenance.  In re Marriage of Rink, 18 Wn.App. 549, 553, 571 P.2d 210 (1977).   Findings of fact are reviewed under the substantial evidence standard.   Substantial evidence exists when there is evidence of a sufficient quantum to persuade a fair-minded person of the truth of the declared premise.  State v. Halstien, 122 Wn.2d 109, 128–29, 857 P.2d 270 (1993).   When a finding of fact is supported by substantial evidence, the only issue remaining is whether the factual findings support the corresponding conclusions of law and judgment of the court.   State v. Ross, 106 Wn.App. 876, 880, 26 P.3d 298 (2001).

Mixed questions of law and fact are reviewed for substantial evidence for quantitative determinations and de novo as to legal aspects of the issue.   State v. Horrace, 144 Wn.2d 386, 392, 28 P.3d 753 (2001).   Challenges to the decision of the superior court involving property and debt distribution are reviewed for an abuse of discretion.  In re Marriage of Kraft, 119 Wn.2d 438, 450, 832 P.2d 871 (1992).   A court abuses its discretion when it acts on untenable grounds or for untenable reasons.  In re Marriage of Gillespie, 89 Wn.App. 390, 398–99, 948 P.2d 1338 (1997).

Preliminary Issue.   Janice argues that the findings of fact are verities on appeal because Bud failed to assign error as required in RAP 10.3(a)(4).   This court may exercise its discretion to consider cases and issues on the merits.  State v. Olson, 126 Wn.2d 315, 323, 893 P.2d 629 (1995).   Specifically,

[i]n a case where the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied so that the court is not greatly inconvenienced and the respondent is not prejudiced, there is no compelling reason for the appellate court not to exercise its discretion to consider the merits of the case or issue.

Id.

Here, there are no compelling reasons preventing us from exercising our discretion and considering the merits of this case.

1. Jurisdiction Over the Limited Partnership and the Senior Trust

A court's subject matter jurisdiction in a dissolution action is prescribed by legislative enactment.   See Arneson v. Arneson, 38 Wn.2d 99, 100, 227 P.2d 1016 (1951).   In a dissolution action, all property, both community and separate, is before the court for distribution.  Friedlander v. Friedlander, 80 Wn.2d 293, 305, 494 P.2d 208 (1972).   Importantly, with respect to in personam jurisdiction, parties who serve as trustees over property are not parties to a dissolution action in their representative capacities.  In re Marriage of McKean, 110 Wn.App. 191, 195, 38 P.3d 1053 (2002).   Similarly, the court has no power to compel a liquidation for the benefit of third parties as part of a dissolution proceeding.  Arneson, 38 Wn.2d at 101.

Bud contends the trial court lacked in personam jurisdiction over the limited partnership and the senior trust.   In Bud's view, the court could not adjudicate the rights of parties who were not before the court.

RCW 26.09.080 requires the court to divide the parties' property.   To make a just and equitable distribution of the property, the court had to consider the nature and extent of the separate and community property and the length of the marriage.  RCW 26.09.080.   While the court acquired in personam jurisdiction over Bud as the owner of the shares of the limited partnership, the court lacked in personam jurisdiction over the senior trust and the couple's children.   But we cannot determine from the findings whether the court considered the senior trust in its division of the property.   We discuss this issue later in this opinion.

2. Testimony and Market Analysis Offered by Dewitt Sherwood

A trial court has wide discretion when ruling on the admissibility of expert testimony.  Miller v. Likins, 109 Wn.App. 140, 147, 34 P.3d 835 (2001).   ER 702 permits testimony by a qualified expert where scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.   This court will not disturb the trial court's ruling if the reasons for admitting or excluding the opinion evidence are fairly debatable.   In other words, courts ‘interpret possible helpfulness to the trier of fact broadly and will favor admissibility in doubtful cases.’  Miller, 109 Wn.App. at 148 (quoting Linkstrom v. Golden T. Farms, 883 F.2d 269, 270 (3rd Cir.1989)).

The court admitted a market analysis of the nine parcels of property owned by the limited partnership and the senior trust.   Bud contends this was an abuse of discretion because Mr. Sherwood was not an MAI ³ appraiser, and he was unaware of Bud's percentage interest in the limited partnership.   Bud maintains that Mr. Sherwood was not given the information required to value Bud's share of the limited partnership.

Mr. Sherwood is a licensed real estate agent in Washington.   He provided a report valuing each of the nine parcels of property.   The total value was $1,035,000.   Mr. Sherwood explained that this property was located just south of Hatch Road off State Route 195 not far from Hangman Ridge in Spokane.   According to Mr. Sherwood, the properties were zoned as forest land;  this kept the assessed value down.   In Mr. Sherwood's opinion, the highest and best use of the properties would be for single residence homes.   Mr. Sherwood knew of no standard discount for percentage ownership of property.

Although Bud acknowledges that a market analysis may be admissible under limited circumstances, he asserts the court did not address those statutory requirements.   Bud cites RCW 18.140.020(5), but we assume he refers to RCW 18.140.020(6).   This provision provides that the MAI requirement does not preclude a licensed real estate broker or real estate salesperson from making a broker's opinion if the broker's opinion is given as evidence in a legal proceeding and is issued to someone who is not a prospective seller, buyer, lessor, or lessee as the only intended user.  RCW 18.140.020(6).   In these circumstances, the broker's price opinion must contain, in an obvious location within the written document or he or she must specify in spoken testimony, a statement that substantially states:

This brokers price opinion is not an appraisal as defined in chapter 18.140 RCW and has been prepared by a real estate licensee, licensed under chapter 18.85 RCW who .. ․ (is/is not) also state-certified or state-licensed as a real estate appraiser under chapter 18.140 RCW.

RCW 18.140.020(6).

Here, Mr. Sherwood's market analysis contains a statement that:  [T]his report is not an appraisal as defined in Chapter 18.140 RCW and has been prepared by a real estate licensee, licensed under Chapter 18.85 RCW, who is also a licensed general appraiser licensed under Chapter 18.140 RCW. Ex. P–12, p. 1. This statement substantially complies with RCW 18.140.020(6).

Bud points out that Mr. Sherwood did not provide a value specifically for Bud's interest in the limited partnership.   However, Mr. Sherwood provided a figure for the entire limited partnership and, based on other facts, Bud's share of that figure can be calculated.   Bud owned 23,158 limited shares and 400 general shares in the limited partnership.   In short, Mr. Sherwood provided information that was helpful to the court.   Bud's arguments go to the weight but not the admissibility of the value given by Mr. Sherwood.

Bud objects because Mr. Sherwood was not an MAI appraiser certified by the Appraisal Institute.   See RCW 18.140.020.   Bud did not present testimony of an MAI appraiser, but, rather, elicited testimony from Rial Moulton, Bud's estate planning attorney.   Mr. Moulton testified that a discount of 40 to 50 percent is usually taken when valuing a minority interest in a partnership.   According to Mr. Moulton, this discount is given because of the minority interest and the associated problems of marketability.   According to Mr. Moulton, discounts reveal the value of the partnership interest when the case involves valuing the interest for tax purposes or when someone is going to buy the interest.   Mr. Moulton acknowledged that here, we are considering only the value of this property to Bud.

Bud maintains that the restrictions on his limited partnership shares support the imposition of a discount.   Mr. Sherwood's testimony was helpful to the court even if Mr. Sherwood gave an overall value of the property and did not specifically include a valuation of Bud's share.   Significantly, Bud's own expert testified that an MAI appraiser might not be necessary in this context.

This was a bench trial.   Mr. Sherwood stated he was not a certified MAI appraiser during his testimony.   The court did not abuse its discretion by allowing the testimony of Mr. Sherwood as an expert appraising the nine parcels of property in the limited partnership.

3. Findings Regarding the Limited Partnership

The court admitted the market analysis prepared by Mr. Sherwood that valued the nine parcels in the limited partnership at $1,035,000.   The court then valued Bud's interest in the senior trust and the limited partnership at $481,275.   The court explained in its oral ruling that the husband's interests that were transferred to his family trust [junior trust], even if discounted would carry significant value.   The Court is satisfied with the $481,275 amount.   CP at 177.

In a dissolution proceeding, the trial court is required to set forth the values of property in order to permit appellate review.  In re Marriage of Hadley, 88 Wn.2d 649, 657, 565 P.2d 790 (1977).   The trial court must include in the record its method of valuation and the weight it gave to the factors it considered.  Gillespie, 89 Wn.App. at 402.

Bud's opening brief argues that the court erred when valuing his interest in the limited partnership.   Bud refers to the limited partnership throughout his argument except for one sentence when he mentions the senior trust without any citation.

Here, Bud argues that the trial court erred by failing to set forth the appropriate findings explaining how it determined the value of Bud's minority interest in the limited partnership.   Bud contends that the court erred when valuing his interest in the limited partnership at $481,275.   The trial court stated that Bud had separate property and that Bud's interest in the senior trust and limited partnership was the amount of $481,275.   It is unclear whether Bud is conceding that the $481,275 valuation does not include his interest in the senior trust.

We cannot determine from the findings how the court assessed Bud's interest in the limited partnership and what, if any, value was given to Bud's interest in the senior trust.   The limited partnership has a total of 51,000 limited shares and 2,000 general shares.   Bud's interest consists of 23,158 limited shares and 400 general shares.   Mr. Sherwood valued the property at $1,035,000.   The court valued Bud's interest at $481,275.   We cannot conclude whether the $481,275 is fair and equitable without proper characterization and valuation of the property.

4. Senior Trust

The trial court determined that it was appropriate for Mr. Green to retain his interest in the [senior trust].   CP at 195.   As noted above, Bud contends the court abused its discretion by considering his future interest in the senior trust.   Relying on In re Marriage of Leland, 69 Wn.App. 57, 847 P.2d 518 (1993), Bud contends that a mere expectation does not rise to the level of a property right divisible in a dissolution proceeding.

Although the court refers to Bud's future interest in the senior trust, Bud provides no evidence suggesting that the court actually attempted to divide his interest in the senior trust.   In Leland, the court addressed the question of whether a disability policy is properly treated in the same manner as a term life insurance policy for purposes of characterizing the ownership of the policy proceeds.  Id. at 72.   In In re Marriage of Harrington, 85 Wn.App. 613, 622, 935 P.2d 1357 (1997), which is also relied on by Bud, the court considered whether the couple's ability to acquire stock, at below market level, should have been characterized as community property.

Here, finding of fact 5 reads:

It is appropriate for Mr. Green to retain his interest in the 1995 Green Family Trust.   Mr. Green is in a unique management position.   He has almost unlimited discretion with regard to paying himself or not paying himself, taking money only as a loan versus the gift.   The Court recognizes his separate interest.   There is nothing that is going to prevent him from making management decisions as a fiduciary for his mother in the way he needs to, and that is consistent with the estate planning that has been in place through the years.

CP at 195.

Again, we cannot determine whether the trial court valued Bud's interest in the senior trust when considering whether the distribution of assets was fair.  In re Marriage of Hall, 103 Wn.2d 236, 247, 692 P.2d 175 (1984) explained that future earning capacity was not a marital asset, although a trial court may consider it as one factor bearing on fair and equitable distribution of assets and debts.

The trial court should have clarified if it characterized, and how it valued, Bud's future interest in the senior trust.   However, at oral argument, counsel advised the court that Bud's mother had passed away.   Upon remand, the trial court will need to consider Bud's direct interest in the senior trust.

5. Characterization and Valuation of the Home

The couple's residence was built with community assets on property given to Bud by his parents.   Janice testified that a two bedroom apartment would cost $1,200 per month.   The trial court determined:

Wife will have a beneficial interest in residing in the home located at 1210 W. Paradise Road, Spokane, Washington, as long as she wishes for her lifetime.   The home shall not be sold without wife's consent during her occupancy.   Wife will not have an ownership interest, it will simply be not unlike a life estate.   Wife will not be required to pay rent, but she will need to maintain insurance on the home.   Husband will be required to pay the taxes.   Bud Green will have ultimately whatever remaining value there may be should Ms. Green decide to vacate that home or should he live longer.   Upon Ms. Green's death, there should be a transfer in ownership of the property to the parties' children.

CP at 196.

Bud contends the court failed to make findings to support its determination of the value of $310,000 for the residence.   In his view, the court's statement that there was a significant community interest ⁴ in the residence creates ambiguity as to what portion of the residence constituted community property.   When applying the statutory factors to the distribution of property, the court must first characterize the marital property as community property or separate property.

Presumably, the court reached the $310,000 value as a reasonable compromise between Randy Berg's estimate of $355,000, Mr. Sherwood's estimate of $330,000, and the $250,000 figure that arose during mediation.

Bud also argues that the court did not determine the character of the property as to the extent of separate property and community property.   In finding of fact 6, the court stated:  There is difficulty in separating adequately the financial values of an improvement on real property that is owned by one party.   CP at 195.   The court noted that:  There is a significant community interest in the home.   CP at 195.   While the court's finding is vague, it probably reached the right result.  [W]here a marital community invests substantial sums of money in construction of a [residence] upon a vacant lot owned separately by the husband[,] the community acquires an interest in, or an equitable lien against, the property.  Conley v. Moe, 7 Wn.2d 355, 361–62, 110 P.2d 172 (1941).

Thus, the court did not abuse its discretion by concluding that the home was community property.

The court then determined that the residence should go into the junior trust for Bud and Janice's children.   Bud asserts that the junior trust ceased to exist as a result of the dissolution and that the court's role was limited to making a distribution between the parties.   He maintains that the award of the home to the children constituted error.

The court abused its discretion by placing the residence in trust for the children.   The children were not parties to this action.   In Arneson, the court concluded that the court had no power to compel a liquidation for the benefit of third parties as part of a dissolution proceeding.  Arneson, 38 Wn.2d at 101.   The court lacked the authority to put the home and 10 acres of property in trust for the children.

Finally, Bud contends the court abused its discretion by failing to include the value of Janice's beneficial interest in the residence.

The court noted that [t]here is difficulty in separating adequately the financial values of an improvement on real property that is owned by one party versus the underlying real property owned by another party.   CP at 195.

Beyond the equitable lien, the lack of rent might have served as a set-off for Janice's ownership interest in the residence which was valued at $155,000.   Janice testified that the rent on a two bedroom apartment would cost $1,200 per month.   On remand, the court should explain how it considered rent when making its decision.   Because the court could not place the house in trust for the children, unless the court modifies Janice's award of a life estate in the residence, Bud will be the owner of the house and the underlying property, so he should appropriately pay the property taxes.

6. Bank Balances

Janice and Bud each had separate bank accounts in addition to a joint account.   Bud managed his account and the joint account, while Janice retained her account, where she deposited her paychecks.   The trial court awarded Janice her account of $1,545 and the $7,161 paid to her.   The court then awarded the remaining amount of $38,769 to Bud. Bud contends that by making this award, the court failed to give him credit for the community obligations and funds paid to benefit Janice.   Bud asks the court to consider benefits the community and Janice received before he left the couple's residence.

When exercising its broad discretion in distributing assets in a dissolution proceeding, a trial court focuses on assets before it at the time of trial.   In re Marriage of White, 105 Wn.App. 545, 549, 20 P.3d 481 (2001);  RCW 26.09.080.   If one or both parties disposed of an asset before trial, the court simply has no ability to distribute that asset at trial.  White, 105 Wn.App. at 549.   However, the court may consider a spouse's waste or concealment of assets.  In re Marriage of Wallace, 111 Wn.App. 697, 708, 45 P.3d 1131 (2002).

Janice filed this action in April 2008.   In May, Bud gave Janice a cashier's check in the amount of $7,161.95.   In August, the court entered a temporary order which awarded Janice spousal maintenance of $1,500 per month, and payment of her attorney fees in the amount of $2,500.

During his testimony, Bud included these court-ordered payments as community debts.   Bud also asks that various other expenses such as household bills, dish network, dental bills, car insurance, and loans to their son be included in the community's debt.   Bud made all of the payments before trial.   Here, there are no findings or allegations of financial misconduct in connection with these expenses.

Bud argues that equity requires that he should be given credit for the community obligations and funds paid which benefitted Janice.   But these funds were not before the court at trial, there was no financial misconduct, and Bud makes no effort to demonstrate how each payment benefitted Janice and/or the community.   This court cannot review Bud's request.

The court did not abuse its discretion by awarding Janice her account of $1,545 and Bud his account of $38,769.

7. Esprit Technologies Debt

Bud retired from Boeing at age 51.   He began drawing on his retirement at age 55.   Bud did not return to work after leaving Boeing.   The couple moved back to Spokane in 1994.   They lived off gifts from Bud's parents.   In 1995, they decided they could no longer live off these gifts.   While Bud chose not to work, Janice took several jobs in the education field and, eventually, was employed by Esprit Technologies from 2002 through 2008.

Janice served as executive director of Esprit Technologies from 2006 through 2008.   In the fall of 2007, she took a 10 percent salary cut because the company was experiencing cash flow problems.   Janice felt it was in both parties' financial interest to help the company by using her own credit card for purchases when Esprit Technologies could not do so.   The couple also loaned $9,000 to Esprit Technologies.   Janice's employment terminated in April 2008 when the business faltered financially.   At the time the findings of fact and conclusions of law and decree were entered on February 1, 2010, Janice had not been successful in obtaining employment.

With regard to the loan and the credit card debt, the court found:

While the marriage was still intact, the parties tried to somehow infuse resources into the Esprit business efforts to keep it afloat.   The community benefitted in trying to save that so Ms. Green could continue to have an ongoing income stream and a profession to follow.   Dividing the $9,000.00 obligation owed to the parties, in half, by Esprit Technologies is appropriate.

Significant debt was accruing based on Ms. Green's continuing efforts to maintain viability in her future employment.   Because that was also dedicated toward community benefit and betterment, even though Mr. Green didn't know about a lot of those efforts and those bills, he should share in the credit card debt in the amount of $64,564.00 with each party assuming $32,282.00 of the debt.   Any other monies received from the obligation owed by Esprit Technologies should also be applied towards the Esprit Technology credit card debt obligation.

CP at 197.

The court also determined that the credit card debt of $64,564, incurred through Janice's continuing efforts to maintain the viability of her future employment, was a community debt because it was dedicated to the benefit and betterment of the community.   The court recognized that Bud was not aware of some of the bills.

Debts incurred by either spouse during the marriage are presumed to be community obligations unless overcome by clear, cogent, and convincing evidence.  Oil Heat Co. of Port Angeles, Inc. v. Sweeney, 26 Wn.App. 351, 353, 613 P.2d 169 (1980).

Bud first contends that the court abused its discretion by assigning him one-half of the loan of $9,000 to Esprit Technologies.   He testified that he was aware of the Esprit Technologies' cash flow problems and the loan, and he stated that Janice at no time disclosed to him information concerning an investment opportunity or the suggestion that she would be granted a share of the business upon the owner's death.   Bud acknowledged that he wrote the $9,000 check to Esprit Technologies, but he stated that he neither saw nor signed the promissory note signed by Janice on behalf of Esprit Technologies.

Bud was aware of Esprit Technologies' cash flow problems and the loan.   This loan was made to assist the stability of the company that employed the community's sole wage earner.   The court did not abuse its discretion by concluding that this debt was a community debt.

Bud next contends that he should not have to pay his portion of the credit card debt incurred on behalf of Esprit Technologies because he was not aware of the debt until after Janice filed her financial declaration.   He also asserts he was unaware of any benefit received by the community.

Bud fails to provide sufficient evidence that the credit card debt incurred on behalf of Esprit Technologies was not a community debt.   Janice's actions were made in an attempt to preserve her employment.   She was the sole wage earner of the family.   Bud was aware of the cash flow problems at Esprit Technologies and assisted by writing a $9,000 check.   The court did not abuse its discretion by determining that the credit card debt was a community debt.

8. Equalization Payment

The trial court found the community assets were $130,581.   Janice was awarded $27,162, and Bud was awarded $103,419.   The community liabilities of $111,952 were divided equally between the parties.   The court determined:  The total community assets, the liabilities, and the net worth of the parties puts the parties in dramatic contrast and an equalization payment in the amount of $278,766.00 is appropriate as part of the equitable distribution.   Mr. Green shall pay to Ms. Green a minimum monthly payment of $1,500.   CP at 197.

Bud challenges the trial court's decision to award an equalization payment to Janice.   He asserts that the amount failed to take into account the value of Janice's interest in the residence.   We remand for findings as to how the court considered rent when making its decision.

Bud next argues that when awarding the equalization amount, the court failed to explain how it reached that amount.   However, during the hearing on November 13, 2009, the court determined that there was a disparity between Janice's net worth of -$28,814 and Bud's net worth of $528,718.   The court explained that its intention was to equalize their total net worth and then equalize their total net assets.   Using the $528,718 figure, which includes the $481,275 figure for Bud's separate assets, the court concluded that $278,766 was the transfer amount that would bring the parties to parity.

The trial court did not abuse its discretion by awarding a transfer payment.   But given our decision, the court will need to reexamine the amount of the equalization payment after the trial court makes findings regarding Bud's assets.

9. Property Taxes and Maintenance

Bud contends the court failed to provide a rationale for its decision requiring him to pay the property taxes on the parties' residence.   As noted earlier, the court did not abuse its discretion if Bud is found to be the owner of the home.   The court ordered Janice to pay the insurance for the residence.

When the court entered its temporary order, Janice was awarded $2,500 in attorney fees and $1,500 per month in maintenance.   The court determined that Janice was in need of maintenance and that Bud had the ability to pay.   Bud has acknowledged that he had no trouble paying these obligations.   At trial, the court awarded maintenance of $1,500 per month for one year.   Bud testified that the only real change in his financial ability to pay maintenance was his decision—contrary to his parents' wishes—to stop taking the tax exempt gifts from the senior trust and to refuse any trustee fee for his services.

An award of maintenance is within the broad discretion of the court.  In re Marriage of Terry, 79 Wn.App. 866, 869, 905 P.2d 935 (1995).   An award of maintenance must be just in light of the relevant facts, including the financial resources of each party, the duration of the marriage, the standard of living during the marriage, and the resources and obligations of the spouse seeking maintenance, including that spouse's ability for self-support.  In re Marriage of Estes, 84 Wn.App. 586, 593, 929 P.2d 500 (1997).   When determining spousal maintenance, the court is governed strongly by the need of one party and the ability of the other party to pay.  In re Marriage of Foley, 84 Wn.App. 839, 845–46, 930 P.2d 929 (1997).

Bud argues that the court abused its discretion by concluding that he had adequate resources to pay maintenance without resorting to his trust funds.   CP at 197.   He contends his sole source of income is his Boeing retirement ($518) and Social Security ($1,324).   He also acknowledges that he had previously received $13,000 annually from the senior trust.

In making his argument, Bud apparently assumes the court was referring to both the limited partnership and the senior trust as part of the trust funds.   But the court refers to the limited partnership as the partnership and the senior trust as the trust.   CP at 195.   As a result, the court's statement that Bud had adequate resources to pay maintenance without resorting to his trust funds includes consideration of Bud's Boeing and Social Security payments, and also his interest in the limited partnership.

This was a 46–year marriage.   Given the financial circumstances of the parties, the court did not abuse its discretion by awarding Janice maintenance of $1,500 per month for one year.   Certainly, this was a reasonable and, perhaps minimal, award.

10. Attorney Fees

Both parties seek attorney fees on appeal under RCW 26.09.140.   This provision reads:  Upon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney's fees in addition to statutory costs.  RCW 26.09.140.   When awarding attorney fees in a dissolution action, the court must balance the needs of one party against the other party's ability to pay.  Terry, 79 Wn.App. at 871.   Despite Bud's arguments, Janice does not have the ability to pay his attorney fees.   She also does not have the ability to pay her own.   We award attorney fees on appeal to Janice.

11. Conclusion

In summary, we conclude as follows:  (1) the trial court did not have jurisdiction over the limited partnership or the senior trust;  (2) the court properly admitted the testimony and market analysis by Dewitt Sherwood;  (3) the trial court did not provide sufficient findings of fact or explanation of the limited partnership in its valuation of the $481,275 assessment of Bud's interest and on remand must do so;  (4) the trial court must clarify how it characterized and valued Bud's interest in the senior trust;  (5) the court erred in awarding the residence to the junior trust for the benefit of Bud's and Janice's children and the court must clarify how it considered the rent paid by Janice when it valued Janice's interest at $155,000;  (6) the court did not abuse its discretion by awarding the bank accounts;  (7) the court did not abuse its discretion by determining that the Esprit debt and the credit card debt were community debts;  (8) the court did not abuse its discretion by awarding a transfer payment but the amount of the transfer payment must be supported by findings;  (9) depending on the characterization of the land and residence, the court may have properly ordered Bud to pay property taxes and Janice to pay insurance;  the court did not abuse its discretion by awarding Janice $1,500 per month for one year as maintenance if the court supports its award of the equalization payment with findings;  (10) the court properly awarded attorney fees to Janice and we do so on appeal as well;  and (11) we discern no evidence in the record to support Bud's contention that the trial court based any of its rulings on Bud's extramarital affair or misconduct.

We affirm in part, reverse in part, and remand for proceedings consistent with this opinion.

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.

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Kulik, C.J.

WE CONCUR:

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Sweeney, J. Korsmo, J.

FOOTNOTES

FOOTNOTE.  

FN2. Bud does not challenge this portion of the court's findings until his reply brief..  FN2. Bud does not challenge this portion of the court's findings until his reply brief.

FN3. Member of the Appraisal Institute..  FN3. Member of the Appraisal Institute.

FN4. CP at 195..  FN4. CP at 195.

Kulik, C.J.1 FACTS Janice Gai Green and Harold J. (Bud) Green were married on May 5, 1962, in Spangle, Washington.   Janice was in high school when they married.   The couple separated on April 15, 2008, after 46 years of marriage when Janice learned that Bud was having an affair with his aged mother's personal care attendant.   At trial, Bud was 66 and Janice was 65.   After Janice's graduation from Eastern Washington University in 1967, the couple moved to Seattle.   There, Janice found employment as a teacher in home economics, and then ran an in-home daycare and preschool facility.   Later, she worked for Mary Kay and Jenny Craig.   During this time, the couple had two sons who are now emancipated.   While the family lived in Seattle, Bud attended the University of Washington to study engineering.   He ultimately worked at Boeing as a manager of a developmental manufacturing group.   He left his job when he was 51 because he wanted to be closer to his family in Spokane.   The couple moved back to Spokane in 1994.   Bud accessed his Boeing retirement at age 55.   In 1991, Bud's parents won $4,000,000 in the Washington State lottery.   In 1994, they established the Green Family Limited Partnership (limited partnership), which contained all of their real property interests, specifically, nine parcels of farmland in Spokane County.   Over time, they gifted shares of the partnership to each of their sons.   By 1998, they had gifted each of their sons one-half of the limited shares and 400 general voting shares.   Bud's parents (the senior Greens) retained 1,200 general voting shares.   In 1999, additional limited shares were issued, and the senior Greens transferred 1,500 limited shares to each son. FN1. For clarity, we refer to the parties by their first names.   No disrespect is intended.