[No. 53061-5-I. Division One. February 22, 2005.]
JEFF WETMORE , ET AL ., Appellants , v. UNIGARD INSURANCE COMPANY , Respondent .
 Judgment - Summary Judgment - Review - Standard of Review. A summary judgment is reviewed de novo.
 Insurance - Construction of Policy - Question of Law or Fact - Standard of Review. The interpretation of an insurance policy is a question of law that is reviewed de novo.
 Insurance - Construction of Policy - Policy as a Whole - Meaning to All Provisions - In General. An insurance policy is construed as a whole so as to give force and effect to all of its provisions.
 Insurance - Construction of Policy - Unambiguous Language - Effect. Clear and unambiguous insurance policy language is enforced as written. A court may not modify the policy or create an ambiguity where none exists.
 Insurance - Construction of Policy - Ambiguity - What Constitutes - In General. Insurance policy language is not ambiguous unless it is fairly susceptible to two different reasonable interpretations.
 Insurance - Property Damage - Coinsurance Provision - In General. In general, a coinsurance provision in a property damage insurance policy requires the insured to maintain insurance on the covered property in an amount equal to at least a specified percentage. Under the provision, the insured's failure to maintain sufficient insurance makes the insured a coinsurer who must bear a proportionate share of a loss.
 Insurance - Property Damage - Coinsurance Provision - Purpose. The purpose of a coinsurance provision in a property damage insurance policy is to reward those who insure at close to full value and penalize those who insure at less than full value.
 Insurance - Property Damage - Coinsurance Provision - Enforceability. In general, a coinsurance provision in a property damage insurance policy is enforceable absent a statutory prohibition to the contrary. Insurance - Property Damage - Amount of Loss - Actual Cash Value and Replacement Cost Valuation - Coinsurance Provision - Applicability. A coinsurance provision in a property damage insurance policy may apply to a replacement cost claim if the policy provides that the insurer will determine the value of covered property in the event of loss or damage at actual cash value, the coinsurance provision applies to the loss conditions and valua
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tion section of the policy, the insured chooses a claim option of replacement cost in addition to actual cash value, and the optional replacement cost provision provides that replacement cost replaces actual cash value in the loss condition and valuation of such coverage. Under these circumstances, the value of the property is determined on a replacement cost basis, not actual cash value basis, and the coinsurance provision applies to the replacement cost claim.
 Insurance - Construction of Policy - Ambiguity - What Constitutes - Complex Interrelationships. The complexity of an insurance policy or the necessity to interrelate policy provisions does not, by itself, render the policy ambiguous.
 Insurance - Property Damage - Replacement Cost - Validity - Violation of Overinsurance Statute. The overinsurance statute (RCW 48.27.010 ) does not prohibit insuring a property at or close to its replacement cost value.
 Insurance - Expenses of Insured - Insured's Action To Obtain Benefit of Policy - Unsuccessful Action. An insured who is compelled to assume the burden of legal action to obtain the benefit of its insurance contract is not entitled to an award of attorney fees if the insured does not prevail in the action.
Nature of Action: Insureds who suffered a fire loss sought a declaration that the coinsurance provision in their policy did not apply to their replacement cost claim. The insureds first submitted a claim on an actual cash value basis, which the insurer paid. Thereafter, the insureds claimed additional replacement cost coverage under the policy for the difference between the policy limit and the actual cash basis payment by the insurer. The insurer disputed the amount of the additional claim, asserting that the policy's 90 percent coinsurance provision applied to the replacement cost claim. The coinsurance provision required the insureds to maintain insurance on the property in an amount equal to at least 90 percent of the value of the property and provided that the insureds' failure to do so would make them a coinsurer responsible for bearing a proportionate amount of the loss.
Superior Court: The Superior Court for Skagit County, No. 02-2-02008-1, Michael E. Rickert, J., on December 23, 2003, entered a summary judgment in favor of the insurer.Court of Appeals: Holding that the coinsurance provision applies to the insureds' replacement cost claim and
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that the coinsurance provision does not violate the statutory overinsurance prohibition, the court affirms the judgment.
J. Robert Leach , for appellants .
Matthew S. Adams , for respondent .
¶1 COX , C.J. - At issue in this appeal is whether the insureds under a policy of insurance issued by Unigard Insurance Company are entitled to the full policy limits for a fire loss rather than a reduced amount calculated on the basis of the policy's coinsurance provision. We hold that the coinsurance provision applies in this case and the policy is not ambiguous. Moreover, the coinsurance provision does not violate the over-insurance prohibition of RCW 48.27.010 . We affirm.
¶2 The facts are undisputed. Unigard insured the Majestic Inn, which is located in Anacortes, Washington, under a commercial multi-line policy. Jeff Wetmore and Virginia Wetmore (the Wetmores) are the insureds under the policy. The policy insures the hotel and its contents up to $1,750,000. The policy contains a 90 percent coinsurance provision that we describe more fully later in this opinion.
¶3 A fire damaged the property in February 2001. The market value, on a cash basis, of the improvements was only $950,000 according to an appraisal done after the fire. The Wetmores elected to make a claim on an actual cash basis for $949,000.«1»Unigard paid this claim.«2»
¶4 Thereafter, the Wetmores claimed additional replacement cost coverage under the policy for the $776,000
«1»This amount is the difference between the actual cash value and the $1,000 deductible under the policy.
«2»Appellants' Opening Br. at 7.
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difference between the policy limit of $1,725,000 and the $949,000 actual cash basis payment by Unigard.«3»Unigard disputed the amount of this additional claim.
¶5 The Wetmores commenced this declaratory judgment action, seeking a determination that the coinsurance provision does not apply to the replacement cost claim. Noting that the replacement cost bid for the building is $3,577,700 and that the insurance for the property - $1,725,000 - is less than the replacement cost bid, Unigard claims the coinsurance provision applies. Because 90 percent of the replacement cost bid - $3,219,930 - is the total amount of insurance that the Wetmores should have carried on the property, Unigard claims the amount of the replacement cost payment must be reduced accordingly. The trial court granted Unigard's summary judgment motion and denied the Wetmores' request for attorney fees.
¶6 The Wetmores appeal.
[1-5]¶7 We review a trial court's order granting summary judgment de novo.«4»The interpretation of an insurance policy is a question of law that we review de novo.«5»In construing the language of an insurance policy, the entire contract must be construed together so as to give force and effect to each clause. If the language in an insurance contract is clear and unambiguous, the court must enforce it as written and may not modify the contract or create ambiguity where none exists.«6»An ambiguity exists if the
«3»Appellants' Opening Br. at 7.
«4» White v. Allstate Ins. Co., 124 Wn. App. 60 , 63, 98 P.3d 496, 497 (2004).
«5» White , 124 Wn. App. at 63 (citing State Farm Gen. Ins. Co. v. Emerson , 102 Wn.2d 477 , 480, 687 P.2d 1139 (1984)).
«6» Hess v. N. Pac. Ins. Co ., 122 Wn.2d 180 , 186, 859 P.2d 586 (1993) (quoting Transcontinental Ins. Co. v. Wash. Pub. Utils. Dists.' Util. Sys ., 111 Wn.2d 452 , 456, 760 P.2d 337 (1988)).
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language is fairly susceptible to two different reasonable interpretations.«7»
¶8 The Wetmores argue that application of the coinsurance provision for the replacement cost claim is determined using the actual cash value of the insured property, not its replacement cost. We disagree.
[6, 7]¶9 Generally, coinsurance provisions require the insured to maintain insurance on covered property in an amount at least equal to a specified percentage. Failure to do so will make the insured a coinsurer who will bear a proportionate amount of the loss.«8»The intent of coinsurance is to reward those who insure at close to full value and penalize those who insure at less than full value.«9»
¶10 The effect of a coinsurance clause is illustrated in the following example from a Washington case:
A 90% coinsurance clause means that the insured agrees that the amount of coverage purchased (in this case $500,000) is equal to at least 90% of the replacement cost value of the building insured. If not, at the time of a loss, the insured will become a "coinsurer" of the loss. For instance, if $500,000 were only 80% of the actual replacement cost value of the building, the insured would be underinsured by 10% and would become a 10% coinsurer for the amount of any loss. In that hypothetical, if the amount of damage sustained as a result of a fire were $50,000, the insured would be paid $45,000 by the insurance company, and would be responsible for the remaining 10% of the loss. The purpose of the penalty is to penalize an insured who tries to save money by buying less than full coverage, realizing that the vast majority of losses are small and will be more than adequately covered by the chosen limits.«10»
«7» Am. Star Ins. Co. v. Grice , 121 Wn.2d 869 , 874, 854 P.2d 622 (1993).
«8»44 AM. JUR. 2D Insurance § 1499 (2004).
«9»Jonathan M. Purver, Annotation, Validity, Construction, and Effect of Insurance Policy Provision Requiring Insured to Maintain Coverage to Specified Value of Property ( Coinsurance Clause ), 43 A.L.R. 3d 566 (2004).
«10» Evergreen Int'l, Inc. v. Am. Cas. Co ., 52 Wn. App. 548 , 550, 761 P.2d 964, 964-65 (1988), disagreed with on other grounds , Indus. Indem. Co. of the N.W., Inc. v. Kallevig , 114 Wn.2d 907 , 792 P.2d 520 (1990).
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¶11 Generally, coinsurance clauses are enforceable absent a statutory prohibition to the contrary, although some jurisdictions subject coinsurance provisions to statutory requirements.«11»Washington does not have such a statute.
¶12 Here, sections E, F, and G of the policy are the most relevant to the issues we decide.
¶13 Section E, "LOSS CONDITIONS" of the policy states at subsection 7, "Valuation," "We will determine the value of Covered Property in the event of loss or damage as follows: a. At actual cash value as of the time of loss or damage . . . "
¶14 Section F, "ADDITIONAL CONDITIONS" of the policy states the coinsurance provision at issue here:
If a Coinsurance percentage is shown in the Declarations, the following [value] condition applies.
a. We will not pay the full amount of any loss if the value of Covered Property at the time of loss times the Coinsurance percentage shown for it in the Declarations is greater than the Limit of Insurance for the property.
Instead, we will determine the most we will pay using the following steps:
(1) Multiply the value of Covered Property at the time of loss by the Coinsurance percentage;
(2) Divide the Limit of Insurance of the property by the figure determined in step (1);
(3) Multiply the total amount of loss, before the application of any deductible, by the figure determined in step (2); and
«11» See , e.g . Schnitzer v. S.C. Ins. Co ., 62 Or. App. 300, 661 P.2d 550 (1983) (coinsurance clause written in eight point capital letters substantially complied with statutory requirements); U.S. Fire Ins. Co. v. Roberts , 541 So. 2d 1297 (Fla. Dist. Ct. App. 1989) (fire policy's coinsurance clause was void for failure of policy to include statement, either printed or stamped on face of policy, to effect that rate charged in policy was based on use of coinsurance clause, as required by statute).
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(4) Subtract the deductible from the figure determined in step (3).
We will pay the amount determined in step (4) or the limit of insurance, whichever is less. For the remainder, you will either have to rely on other insurance or absorb the loss yourself.«12»
¶15 The final relevant section of the policy, Section G, "OPTIONAL COVERAGES" states in relevant part:
3. Replacement Cost
a.Replacement Cost (without deduction for depreciation) replaces Actual Cash Value in the Loss Condition, Valuation, of this Coverage Form.
. . . .
c.You may make a claim for loss or damage covered by this insurance on an actual cash value basis instead of on a replacement cost basis. In the event you elect to have loss or damage settled on an actual cash value basis, you may still make a claim for the additional coverage this Optional Coverage provides if you notify us of your intent to do so within 180 days after the loss or damage.
. . . .
e.We will not pay more for loss or damage on a replacement cost basis than the least of (1), (2) or (3), . . . :
(1) The Limit of Insurance applicable to the lost or damaged property;
(2) The cost to replace, on the same premises, the lost or damaged property with other property:
(a) Of comparable material and quality; and
(b) Used for the same purpose; or
(3) The amount you actually spend that is necessary to repair or replace the lost or damaged property.«13»
«12»Clerk's Papers at 50 (emphasis added).
«13»Clerk's Papers at 53-54 (emphasis added).
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¶16 In this case, the Wetmores elected the option under the policy to first make an actual cash value claim followed by a replacement cost claim.«14»This option is expressly allowed under subsection 3.c. of the OPTIONAL COVERAGES section of the policy. Unigard paid $949,000 after subtracting the $1,000 deductible from the $950,000 actual cash value established by the market value appraisal.
¶17 To the extent that the Wetmores make a replacement cost claim, the question is whether and to what extent the coinsurance provision applies. We turn first to Section F of the policy to answer these questions.
¶18 The relevant provision states:
If a Coinsurance percentage is shown in the Declarations, the following [ value ] condition applies.
a.We will not pay the full amount of any loss if the value of [ the ] Covered Property at the time of loss times the Coinsurance percentage shown for it in the Declarations is greater than the Limit of Insurance for the property.«15»
Here, a 90 percent Coinsurance provision appears in the Declarations, satisfying the first condition of this coinsurance provision.
¶19 We turn next to "Valuation," which is subsection E.7 of the policy. It states:
«14»The concept of replacement cost coverage is addressed in Hess , 122 Wn.2d at 182 -83. There, the state Supreme Court stated:Historically, the underlying purpose of property insurance is indemnity. Traditional coverage was for the actual or fair cash value of the property. The owner was indemnified fully by payment of the fair cash value, in effect the market value, which is what the owner lost if the insured building was destroyed. 6 J.&J. Appleman, Insurance § 3823 (1972).
However, it was recognized that an owner might not be made whole because of the increased cost to repair or to rebuild. Thus, replacement cost coverage became available.
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We will determine the value of Covered Property in the event of loss or damage as follows:
a. At actual cash value as of the time of loss or damage. . . .
There is no dispute that this provision governs the valuation of Covered Property when a claim for actual cash value is made. But that does not end our inquiry because an actual cash value claim is not at issue. Unigard already paid such a claim in this case.
¶20 One other provision bears on the question we decide. That provision is subsection 3.a. under Section G, OPTIONAL COVERAGES, of the policy:
3. Replacement Cost
a. Replacement Cost (without deduction for depreciation) replaces Actual Cash Value in the Loss Condition, Valuation , of this Coverage Form.
¶21 The plain words of these provisions, when read together, make clear that value of the property covered by the policy is a condition to the amount to be paid. Moreover, an insured's exercise of the right to elect the type of claim made affects the pertinent value. Specifically, an insured has two claim options - actual cash value instead of replacement cost or actual cash value in addition to replacement cost. Reading these provisions together and giving full effect to each, we conclude that replacement cost valuation applies to the Wetmores' second claim, the only claim that Unigard contests. Neither the policy language nor logic supports the view that this replacement cost claim is to be determined on an actual cash value basis (ACV).
¶22 Although the Wetmores argue that coinsurance is not mentioned at all in the optional replacement cost provision, it is included in "Agreed Value," the first of the three optional coverages. According to the policy, "[t]he Additional Condition, Coinsurance, does not apply to Covered Property to which this Optional Coverage applies." Taken as a whole, an average person would understand that of the three optional coverages, only one - "Agreed Value" - is exempt from the application of coinsurance
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requirements. To find otherwise would necessitate ignoring a clear exemption that applies to only one of three optional provisions, giving it no effect.
¶23 Moreover, the coinsurance provision clearly applies to the "Loss Conditions, Valuation" section of the policy, as the "Additional Conditions": section declares that "[t]he following conditions apply in addition to the Common Policy Conditions and the Commercial Property Conditions." Once replacement cost coverage is chosen, and "replacement cost" replaces "actual cash value" in the valuation section of the policy, the coinsurance provision must also apply to the replacement cost coverage.
¶24 The coinsurance provision did not apply to the initial ACV claim, since the policy limit exceeded 90 percent of the ACV. The Wetmores obtained a replacement cost estimate of $3,577,700. Unigard informed the Wetmores that should they make a replacement cost claim, a 53 percent coinsurance penalty would apply since 90 percent of the replacement cost ($3,219,930) exceeded the $1,725,000 Limit of Insurance they carried.«16»
¶25 In arguing that the coinsurance penalty does not apply to a replacement cost claim, the Wetmores point out that the word "value" is not defined in the policy. This is true. But the Wetmores further claim that the term "Replacement Cost" replaces "actual cash value" only in the "Valuation" subsection, not the undefined term "value" in the "Coinsurance" subsection. This argument is unpersuasive.
¶26 The argument is not a reasonable alternative construction because it fails to address why a coinsurance provision should be determined by actual cash value when the amount of a replacement cost claim is at issue. This policy permits an insured the right to both an actual cash value claim and a replacement cost claim. The underlying
«16»The 90 percent figure ($3,219,930) represented the amount of insurance the Wetmores were required to carry in order to avoid the coinsurance penalty. Dividing that amount by the amount they actually insured the building for ($1,725,000) resulted in a 53 percent coinsurance penalty.
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purpose of coinsurance is to encourage an insured to insure at least to a minimum percentage of a property's value. With this purpose in mind, there simply is no logical reason to limit valuation to actual cash value (generally a much lower value than replacement cost value) when a replacement cost claim is made.
¶27 Moreover, the lack of any reference to the coinsurance provision in the replacement cost coverage provision indicates that Unigard's replacement cost liability is not limited in ways other than those explicitly stated in the optional replacement cost provision.
¶28 The Wetmores next argue that the policy is ambiguous. We disagree.
¶29 If policy language is clear and unambiguous, the court may not modify the contract or create an ambiguity.«17»An insurance policy provision is ambiguous if it is susceptible to two reasonable and fair interpretations.«18»
¶30 The Wetmores argue that the policy provisions are ambiguous and, since they are susceptible to two reasonable interpretations, the court should adopt the interpretation most favorable to the insured. Specifically, the Wetmores contend that the undefined term "value" in the coinsurance provision is ambiguous given the "general rule" of basing coinsurance provisions upon the actual cash value of insured property.«19»However, the Wetmores cite no authority for the proposition that replacement cost cannot be the basis of coinsurance provisions. In fact,
[i]nsurers commonly offer insureds the option of insuring improvements for replacement costs, in recognition of the fact that the cost of repairing or replacing an older structure will be
«17» Am. Star Ins. Co ., 121 Wn.2d. at 874.
«18» State Farm Gen. Ins. Co. v. Emerson , 102 Wn.2d 477 , 484, 687 P.2d 1139 (1984).
«19» See COUCH ON INSURANCE , § 220:16 (3d ed. 1999).
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greater than its value. Depending upon the wording of the individual policy, a coinsurance clause can be triggered by a replacement cost provision to actually reduce the insurer's liability below the amount of the actual loss.«20»
¶31 Unigard cites three cases from other jurisdictions to support its contention that its coinsurance provision is a standard provision similar to others found in commercial policies that were held to not be ambiguous.«21»The Wetmores maintain that the policies in those cases are distinguishable because the coinsurance clause clearly stated that "actual cash value" was the basis of the coinsurance clause in two of the cases; in the third, the policy stated that "replacement cost" replaced "actual cash value" wherever it appeared in the policy. None of the cases answers the question before us.
¶32 In Schnitzer , unlike here, the issue of the ambiguity of the coinsurance provision was governed by statute, which laid out specific requirements for making the provision conspicuous in the policy.«22»
¶33 Both Fry and Delgado considered the validity of coinsurance provisions, although this was not the central issue in either case. The Fry court noted that coinsurance provisions were common in commercial policies in Ohio and were, in the absence of a contrary statute, valid. While there was no consideration of replacement cost coverage, the insured contended that the policy language was so complex it rendered the provisions ambiguous. The court said, "[w]hile the language quoted above is not written in layman's terms, the concept behind coinsurance is understandable when explained by someone who is informed on the subject."«23»
«20»COUCH ON INSURANCE § 220:24 (3d ed., 1999).
«21» Fry v. Walters & Peck Agency, Inc ., 141 Ohio App. 3d 303, 750 N.E.2d 1194 (2001); Schnitzer , 62 Or. App. at 307-08; Delgado v. Costello , 91 N.M. 732, 580 P.2d 500 (1978).
«22» Schnitzer , 62 Or. App. at 306-07.
«23» Fry , 141 Ohio App. 3d at 313.
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¶34 Delgado is even less helpful. The court dismisses the ambiguity argument by simply acknowledging, and quickly dismissing, "some argument that the policy provisions are ambiguous," with "this argument is without merit."«24»
¶35 Finally, the Wetmores argue that it is not the policy language alone, but also its structure that creates ambiguity. Specifically, they argue that Unigard's reading "requires an adept manipulation of three separate sections of Unigard's policy . . . [t]his structure is extremely confusing and by itself renders Unigard's policy ambiguous." However, "[c]omplexity or the necessity to interrelate policy provisions does not alone render a policy ambiguous."«25»The policy provisions, read together and in context as the rules of interpretation require, are not ambiguous.
¶36 The Wetmores argue that the construction urged by Unigard would force them to violate RCW 48.27.010 , which prohibits over-insurance. We disagree.
¶37 RCW 48.27.010 «26»prohibits "over-insurance", i.e., insurance in excess of the "fair value" (defined as cost of replacement less depreciation). However, replacement in
«24» Delgado , 91 N.M. at 734.
«25» Hess , 122 Wn.2d at 186 (citing McDonald v. State Farm Fire & Cas. Co ., 119 Wn.2d 724 , 734, 837 P.2d 1000 (1992)).
«26»The statute provides, in relevant part, as follows:
(1) Over-insurance shall be deemed to exist if property or an insurable interest therein is insured by one or more insurance contracts against the same hazard in any amount in excess of the fair value of the property or of such interest, as determined as of the effective date of the insurance or of any renewal thereof, or in those instances when insured value is for improvements and land.
(2) For the purposes of this section only the term "fair value" means the cost of replacement less such depreciation as is properly applicable to the subject insured .
(3) No person shall knowingly require, request, issue, place, procure, or accept any insurance contract which would result in over-insurance of the property or interest therein proposed to be insured, except as is provided in RCW 48.27.020 .
RCW 48.27.010 (emphasis added).
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surance, in situations such as this one, is authorized specifically by RCW 48.27.020 : "[T]he insurer may in connection with a special provision or endorsement made a part of the policy insure the cost of repair or replacement of such property, if damaged or destroyed by a hazard insured against, and without deduction of depreciation."
¶38 The Supreme Court recognized this in Hess v. North Pacific Insurance Co., noting that replacement coverages "go beyond the concept of indemnity," permitting protection against the risk of deterioration.«27»Therefore, the over-insurance statute cannot be read to prohibit insuring a property close to or at its replacement cost value as required by the coinsurance provision in this case.
¶39 The Wetmores argue that they are entitled to attorney fees based on Olympic Steamship Co. v. Centennial Insurance Co. «28»We hold that they are not entitled to fees based on that case.
¶40 That case establishes that "[a]n insured who is compelled to assume the burden of legal action to obtain the benefit of its insurance contract is entitled to attorney fees . . . ."«29»Because the Wetmores do not prevail and fees are not warranted under the authority they cite, we decline to grant the request.
¶41 We affirm the summary judgment order.
COLEMAN and SCHINDLER , JJ ., concur .
«27» Hess , 122 Wn.2d at 183 .
«28»117 Wn.2d 37 , 811 P.2d 673 (1991).
«29» Olympic S.S. , 117 Wn.2d at 54 .
No. 53206-5-I. Division One. December 27, 2004.]
In the Matter of the Marriage of CINDY L. MANSOUR , Appellant , and GHASSAN N. MANSOUR , Respondent .
 Appeal - Record on Appeal - Supplementation - Additional Evidence - Court Rule. RAP 9.11 permits supplementation of an appellate record with additional evidence if all six factors specified in the rule are satisfied.
 Divorce - Child Custody - Parenting Plan - Review - Standard of Review. The applicable standard of review of a trial court's decisions in fashioning a final parenting plan is abuse of discretion. A trial court abuses its discretion if its decision is based on untenable grounds or reasons or is manifestly unreasonable. A court's decision is based on untenable grounds or reasons if its factual findings are unsupported by the record, it uses an incorrect standard, or the facts do not meet the requirements of the correct standard. A court acts unreasonably if its decision is outside the range of acceptable choices given the facts and the legal standard.
 Divorce - Child Custody - Parenting Plan - Findings of Fact - Standard of Review. Findings of fact underlying a parenting plan will not be disturbed on appeal if they are supported by substantial evidence in the record. Divorce - Child Custody - Parenting Plan - Limitation on Parent - Factors - Alienation of Child From Parent. A parent's acting in a manner that causes a child to become alienated
Dec. 2004 In re Marriage of Mansour 2
126 Wn. App. 1
from the other parent is not addressed by RCW 26.09.191 (1) and (2), which require restrictions on a parent's decision-making involvement and residential time with a child if the parent has engaged in certain specified conduct.
 Divorce - Child Custody - Parenting Plan - Limitation on Parent - History of Domestic Violence - Effect. RCW 26.09.191 is unequivocal. Once a court finds that a parent has engaged in physical abuse of a child, it may not require mutual decision-making by the parents and it must limit the abusive parent's residential time with the child. If the court is concerned about the harshness of the limitations required by RCW 26.09.191 (2)(a) and their effect on the best interest of the child, in an appropriate case it may apply subsections (2)(m) and (2)(n) to temper the limitations, but the court must first conclude that RCW 26.09.191 (2) applies and then make specific findings that justify any modification of the limitations.
 Divorce - Child Custody - Parenting Plan - Decision-Making Rights - History of Domestic Violence - Effect. Under RCW 26.09.191 (1), once a court finds that a child has been physically abused by a parent, it may not require mutual decision-making by both the parents concerning the child. Under RCW 26.09.187 (2)(b)(i), the court must grant sole decision-making authority to the nonabusive parent when it limits the abusive parent's authority under RCW 26.09.191 . Granting the abusive parent a financial veto over decisions made by the nonabusive parent is invalid under RCW 26.09.187 (2)(b)(i), as that would convert the nonabusive parent's authority to make decisions into the authority merely to propose decisions.
 Divorce - Child Custody - Parenting Plan - Decision-making Rights - History of Domestic Violence - Validation of Decision - Necessity. Under RCW 26.09.191 , sole decision-making authority concerning a child who has been physically abused is granted to the parent who did not commit the abuse. If the parent who committed the abuse wants to challenge a decision by the nonabusive parent, it is the abusive parent's responsibility to go to court; the nonabusive parent does not have the burden of justifying his or her decisions by seeking court approval.
 Divorce - Child Custody - Parenting Plan - Religious Instruction - Parental Restriction - Test. To justify a parenting plan restriction on a parent's influence on a child's religious upbringing, there must be a substantial showing that such influence had actually or would potentially harm the child.
 Divorce - Child Custody - Parenting Plan - Residence of Child - Religious Holiday Celebrations - Effect. In fashioning a parenting plan for a child whose parents celebrate different religious holidays, the court is not necessarily required to establish a residential schedule based on religious holiday celebrations unless such a schedule would be in the child's best interests.
Dec. 2004 In re Marriage of Mansour 3
126 Wn. App. 1
 Divorce - Child Custody - Parenting Plan - Volunteering at Child's School - Limitation - Finding of Fault - Necessity. In fashioning a parenting plan, a trial court is not necessarily required to make a specific finding of fault before it may limit the time each parent may volunteer at their child's school.
 Divorce - Child Support - Review - Standard of Review. To overturn a child support award, an appellate court must find that the trial court abused its discretion. The appellate court will not substitute its judgment for that of the trial court where the record shows that the trial court considered all relevant factors and the award is not unreasonable under the circumstances; nor will it disturb factual findings if supported by substantial evidence. The trial court's credibility findings are not subject to review on appeal.
 Divorce - Child Support - Child Support Schedule - Standard Worksheet - Gross Income - Calculation - Evidentiary Support. For purposes of establishing a parent's child support obligation, a determination of the parent's monthly income must be based on evidence in the record. Absent such support, the case may be remanded for the trial court to specify the basis for its determination of the parent's income.
 Divorce - Disposition of Property - Community Property - Equal Division - Necessity. A trial court is not required to divide community property equally. Under RCW 26.09.080 , the court need only make such disposition of the property and the liabilities of the parties, either community or separate, as appears just and equitable after considering all relevant factors.
 Divorce - Disposition of Property - Valuation - Duty To Value - Fair Valuation - Necessity. Although a trial court has broad discretion when distributing the assets of divorcing spouses and is not obliged to distribute those assets evenly, it must calculate the value of the assets fairly.
 Divorce - Disposition of Property - Shared Account - Predissolution Withdrawals - Treatment - Consistency. For purposes of distributing the assets of divorcing spouses, prior withdrawals by each party from a shared account must be treated consistently, and the court should eliminate any overlaps in its calculations.
 Divorce - Maintenance - Factors - Statutory Factors. A trial court has the power to award maintenance to either party in a marriage dissolution proceeding after the court properly considers all of the statutory factors relevant to the decision. Divorce - Maintenance - Factors - Specific Findings - Necessity. RCW 26.09.090 does not require a trial court to make specific factual findings on each of the factors listed therein before the court may award spousal maintenance in a marriage dissolution
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proceeding. The statute merely requires the court to consider the listed factors.
 Divorce - Maintenance - Amount - Fairness - Relative Economic Positions. If there is a great disparity in earning power and earning potential between divorcing parties, the appellate court must clearly examine the maintenance award to see whether it is equitable in light of the postdissolution economic positions of each of the parties.
 Divorce - Attorney Fees - Balancing Test. Before awarding attorney fees in a marriage dissolution proceeding, a trial court must balance the needs of the spouse requesting an award against the ability of the other spouse to pay.
 Divorce - Attorney Fees - On Appeal - Factors - Merits - Issues on Appeal - Ability To Pay. To award attorney fees on appeal in a marriage dissolution proceeding under RCW 26.09.140 , an appellate court examines the arguable merit of the issues on appeal and the financial resources of the respective parties.
Nature of Action: Action to dissolve a marriage.
Superior Court: The Superior Court for Snohomish County, No. 02-3-02060-9, Thomas J. Wynne, J., on October 7, 2003, entered a judgment dissolving the marriage, a final parenting plan, and a child support order. The parenting plan awarded sole decision-making authority to the wife for education and nonemergency health related matters but required the wife to consult with the husband if the decision would require "additional" or "significant" expense. The trial court accepted a guardian at litem's observation that the husband's discipline of the parties' son rose to the level of physical abuse. The trial court gave day-to-day decision-making and religious upbringing authority to both parents. The trial court determined the husband's support obligation to be $578 per month based on an income of $4,000 per month. The trial court divided the marital assets 55 percent to the wife and 45 percent to the husband.Court of Appeals: Holding that substantial evidence supported the trial court's finding that the husband had physically abused his son, that the trial court erred by placing a financial veto on the wife's sole decision-making authority, and that the trial court erred in its calculation of the husband's income and distribution of assets, but that
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the trial court did not err by allowing both parents to have an influence on their son's religious upbringing, the court affirms the judgment in part, reverses it in part, and remands the case for further proceedings.
Jordan Gross (of Yarmuth Wilsdon Calfo, P.L.L.C. ), for appellant.
G. Geoffrey Gibbs ; and Michael B. King (of Lane Powell, P.C. ), for respondent.
¶1 BAKER , J . - Cindy Mansour (the wife or mother) appeals a final parenting plan, order of support, decree of dissolution, and findings of fact and conclusions of law entered by the trial court following a three-day trial. She claims that the trial court erred by not including in the parenting plan statutorily-required limitations applicable to her former husband, Ghassan Mansour (the husband or father), because he physically abused their son. She also claims that the court erred in its decisions regarding child support, spousal maintenance, property division, and award of attorney fees.
¶2 Because substantial evidence supports the finding that the father had physically abused the parties' son, we reverse the trial court's parenting plan and remand to the trial court to follow the requirements of RCW 26.09.191 (1) and (2). We also agree with the wife that the court erred by placing a financial veto on her sole decision-making authority and direct the trial court to reconsider that provision. We find no error in the court's decision to allow both parents' influence on the son's religious upbringing.
¶3 We also remand the financial determinations back to the trial court because of error in its calculation of the
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husband's income and distribution of the assets. Finally, we award attorney fees to the wife on appeal.
¶4 In August 2002, Cindy Mansour petitioned for dissolution of her marriage to Ghassan Mansour. Later, the trial court appointed a guardian ad litem (GAL) on behalf of their son.
¶5 The GAL conducted interviews with the parents, their son's therapist, Robert Vick, and other family members and professionals. In her reports, the GAL concluded that the father's disciplining of the son rose to the level of physical abuse. She also opined that the abuse "primarily occurred because of the father's significant lack of parenting skills and perhaps his volatile temper rather than an intention to harm his child."
¶6 The trial court incorporated the final parenting plan as part of its findings of fact and conclusions of law. The court accepted the GAL's observation that the father's discipline rose to the level of physical abuse, but the court specifically found that subsections (1) and (2) of RCW 26.09.191 did not apply. Instead, the court listed the abuse as a factor to be considered under RCW 26.09.191 (3).
¶7 The court awarded sole decision-making authority to the mother for education and nonemergency health related matters, but the court required the mother to consult with the father if the decision would require "additional" or "significant" expense. The court gave day-to-day decision-making and religious upbringing authority to both parents. The father is Muslim and the mother is Christian. The court also devised a residential schedule that awarded ample unsupervised visitation with both parents.
¶8 With regard to financial matters, the court determined the father's child support obligation to be $578 per month based on an income of $4,000/month for the father, a monthly income below what was reported by the father and alleged by the mother. The court also decided to award as
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spousal maintenance to the wife, mortgage payments until the house sold, plus two months of $1,500 each for relocation expenses. The court divided the marital assets 55 percent to the wife and 45 percent to the husband. Finally, the court declined to award attorney fees.
¶9 On appeal, both parties move to admit additional evidence.
¶10 Before considering the merits of the appeal, we address the parties' motions to admit additional evidence. The wife moves under RAP 9.11 to admit a declaration and supporting documents that disclose that the Mansours sold their house for $168,468.64. The husband agrees that this evidence should be admitted but counters with a motion to admit other additional evidence. The husband moves to admit a letter from the husband's attorney to the wife's attorney outlining the proposed distribution of funds from the sale of the home, a letter from the wife's attorney to the husband's attorney agreeing to the proposed distribution with a holdback of funds of $5,000 from each party's share, and the trial court's order dealing with the holdback.
¶11 RAP 9.11 states that:
The appellate court may direct that additional evidence on the merits of the case be taken before the decision of a case on review if: (1) additional proof of facts is needed to fairly resolve the issues on review, (2) the additional evidence would probably change the decision being reviewed, (3) it is equitable to excuse a party's failure to present the evidence to the trial court, (4) the remedy available to a party through postjudgment motions in the trial court is inadequate or unnecessarily expensive, (5) the appellate court remedy of granting a new trial is inadequate or unnecessarily expensive, and (6) it would be inequitable to decide the case solely on the evidence already taken in the trial court.
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¶12 Because the court's decisions regarding distribution of property, spousal maintenance, and attorney fees are based in part on the amount realized from the sale of the house, we conclude that the evidence offered by the wife complies with the requirements of RAP 9.11 and order its admission. We deny the husband's motion because the additional evidence he offers is relevant to disputes more appropriately decided by the trial court on remand.
¶13 The wife challenges several of the trial court's decisions in the final parenting plan. The applicable standard of review is abuse of discretion. A trial court abuses its discretion when "its decision is based on untenable grounds or reasons, or is manifestly unreasonable."2 A court's decision is based on untenable grounds or reasons "if its factual findings are unsupported by the record . . . [or] if it has used an incorrect standard, or the facts do not meet the requirements of the correct standard . . . ."3 Moreover, a court "acts unreasonably if its decision is outside the range of acceptable choices given the facts and the legal standard."4
¶14 The wife argues that the trial court erred by not further limiting the father's influence on decision-making and his residential time. RCW 26.09.191 in pertinent part states:
(1) The permanent parenting plan shall not require mutual decision-making or designation of a dispute resolution process other than court action if it is found that a parent has engaged in . . . (b) physical . . . abuse of a child . . . .
(2)(a) The parent's residential time with the child shall be limited if it is found that the parent has engaged in . . . (ii) physical . . . abuse of a child . . . .
(3) A parent's involvement or conduct may have an adverse effect on the child's best interests, and the court may preclude or limit any provisions of the parenting plan, if any of the
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following factors exist:
. . . .
(g) Such other factors or conduct as the court expressly finds adverse to the best interests of the child.
¶15 The court made two rulings that indicate it was following the dictates of RCW 26.09.191 (1), which directs certain decisions to be made once a finding of abuse has been made. First, the court ordered that "[s]ole decision-making shall be ordered to the mother inasmuch as the Court found there has been abuse by the father." Second, the court did not designate a dispute resolution process. But the court also wrote "Does not apply" in the "Parental Conduct ( RCW 26.09.191 (1), (2))" section - a conclusion that is inconsistent with a finding of abuse.
¶16 The court's reasoning may be found in the section labeled "Other Factors ( RCW 26.09.191 (3))," where the court explained that it did "believe there was abusive behavior by the father during the course of the marriage to [his son] with the use of the belt." Clearly the court made a finding of abuse, but instead of following RCW 26.09.191 (1) and (2), the court utilized RCW 26.09.191 (3).
¶17 Substantial evidence supports the court's finding that the father physically abused his son. The GAL opined that the husband's "discipline or hitting [his son rose] to the level of physical abuse . . . ." Moreover, the son's therapist stated in a telephone interview with the GAL that the boy "present[ed] as a child who has been physically abused or has witnessed a lot of domestic violence." Also, the son acknowledged "to both his therapist and the GAL that his father hit him with the belt."
¶18 The father argues that because neither parent was exemplary, the court did not have to apply RCW 26.09.191 (1) and (2), but no authority is offered to support his argument. Moreover, the court made no finding that the mother abused their son. The father argues that the mother engaged in alienation of the child from the father, but that transgression is not mentioned in RCW 26.09.191 (1) or (2).
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¶19 The father further argues that the court was merely looking out for the best interest of the child. He notes that the GAL opined, and later the court found, that his actions stemmed from a lack of parenting skills and that he had taken action to improve those skills. He also notes that the court stated in its oral ruling that "[b]oth parents have good intentions toward their child . . . ."
¶20 But RCW 26.09.191 is unequivocal. Once the court finds that a parent engaged in physical abuse, it must not require mutual decision-making and it must limit the abusive parent's residential time with the child.6 If the court is concerned about the harshness of the limitations required by RCW 26.09.191 (2)(a) and their effect on the best interest of the child, in an appropriate case it may apply subsections (2)(m) and (2)(n) to temper the limitations. But the court must first conclude that RCW 26.09.191 (2) applies, and then make specific findings that justify any modification of the limitations.
¶21 The trial court erred by failing to follow the dictates of RCW 26.09.191 (1) and (2). We reverse and remand to the trial court with directions to follow the statutorily-mandated procedures.
¶22 Because the record indicates the potential for progress by the father in his efforts to improve his parenting skills, the trial court is free to hear additional evidence relevant to a possible application of RCW 26.09.191 (2)(m) and (n).
¶23 The mother also argues that the court erred by giving too much decision-making authority to the father. Under RCW 26.09.191 (1), once there is a finding of physical abuse, the court shall not require mutual decision-making. Moreover, under RCW 26.09.187 (2)(b)(i), the court shall order sole decision-making authority to one parent when it limits the other parent's authority under RCW 26.09.191 .
¶24 Although the court ordered sole decision-making authority to the mother in matters of education and
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nonemergency health care, it also ordered that she was not entitled to commit the child to extracurricular activities that would interfere with the father's residential time or incur additional expense, absent agreement of the parties or court order. The court further ordered the same for nonemergency health care that would involve significant expense.
¶25 The proviso protecting the father's residential time is logical and makes the paragraph consistent with other clauses in the plan. But the father's financial veto substantially diminishes the mother's decision-making authority in violation of RCW 26.09.187 (2)(b)(i), converting her authority to decide into an authority to propose.
¶26 The father argues that if there is a conflict, the mother simply needs to go to court. But it is not her burden to justify her decisions by seeking court approval. The legislature designed a system whereby sole decision-making is granted to the parent that has not committed physical abuse. Therefore, if the parent who has committed abuse wants to challenge a decision, it is his responsibility to go to court.
¶27 The trial court was correct to anticipate the potential impact of these decisions upon the financial well-being of the parties, and thus the best interest of the child. But that concern may be alleviated by requiring that the mother give sufficient notice to the father of decisions that would incur significant costs, e.g., orthodontia or private school, so the father is able to seek timely court intervention if he chooses.
¶28 The mother also argues that the court erred by providing that each parent will have an equal right to include the child in his or her religious activities. To justify a restriction on the influence of a parent upon his/her child's religious upbringing, our courts have applied a separate standard: there must be a substantial showing of actual or potential harm to the child from the parent's
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influence.7 No evidence on the record establishes the actual or potential harm of the father's influence on the child's religious upbringing; therefore, no restriction is justified and the court committed no error.
¶29 The mother argues that because the court ordered the child to reside with the father on two Islamic religious holidays and to reside with her on Easter, a Christian holiday, the child should be with her on Christmas, another Christian holiday. But because the mother offers no authority that the court must make its decisions regarding visitation based on religious holiday celebrations or that the best interest of the child will be accomplished by using such standard, we conclude the court did not abuse its discretion.
¶30 The mother argues that the trial court erred by limiting both parents' ability to volunteer at their son's school to once a month. She argues that because the father has spent excessive time at the school and she has not, any restriction upon her time at school is not justified. But she offers no authority that the trial court must base its decision to limit the time each parent volunteers at school on a specific finding of fault. Accordingly, we find no abuse of discretion.
¶31 The mother argues that the trial court erred in calculating the father's income for the purpose of determining his child support obligation. To overturn the child support award, this court must find the trial court abused its discretion.8 We will not substitute our judgment for "that of the trial court where the record shows that the trial court considered all relevant factors and the award is not unreasonable under the circumstances, nor will we disturb factual findings if supported by substantial evidence."9
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Also, "[t]he trial court's credibility findings are not subject to review on appeal."10
¶32 The mother argues that the court erred by calculating the father's child support obligation based on a monthly income of $4,000. In his financial declaration, the father reported a net monthly income of $4,664, whereas the mother alleged that he earned $5,443.
¶33 During its oral ruling, the court explained that "it has been very difficult to determine what the income of Mr. Mansour is." The court further explained that it reviewed tax returns and various exhibits. Based on an admission by the husband during testimony, the court noted that "[i]t's clear that the tax returns submitted by Mr. Mansour are not a correct measure of the income of Mr. Mansour, that there have been tax deductions taken which Mr. Mansour is not entitled to." The court then concluded: "For that reason, the Court believes that the best measure the Court can make of Mr. Mansour's income is based upon his work and the last three years as a real estate agent is a net of $4,000 a month after taxes, so I will fix his income in that amount."
¶34 Although the court referred to reviewing the father's income tax returns that are in the exhibits, as well as to other exhibits, it is not clear from the record how it reached its decision.
¶35 We note nothing in the record to support the finding of an income for the father as low as $4,000 per month. Because we are unable to review the trial court's determination of the father's income without further information, we remand to allow the trial court to specify the basis for its determination of income.
¶36 The wife argues that the trial court erred in determining the distribution of assets, the amount of spousal
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maintenance, and the award of attorney fees. We review each of these issues for an abuse of discretion.11
¶37 A trial court is not required to divide community property equally.12 Under RCW 26.09.080 , the court need only "make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors . . . ."13
¶38 The wife argues that the trial court erred during the division of assets when the trial court counted $10,141 as an asset assignable to her. She explains that she withdrew the $10,141 from a CD and used $5,000 for a retainer for her attorney, a little over $2,000 for an educational CD for her son, and put the remainder in her checking account to pay bills. She notes that the trial court also attributed the educational CD and the value of the checking account to her, essentially double-counting $5,000. She also complains that while the court counted her withdrawal in the property division, it did not do the same for $21,163 withdrawn from the same CD by the husband.
¶39 The husband replies that the difference between his withdrawals and hers is that he received permission from the court to make the withdrawals to pay costs incurred during litigation, such as the fees for psychological examinations and a GAL for the son. But he offers no authority that a court order allowing withdrawals affects the way a trial court calculates assets in the distribution process. Although the trial court has broad discretion in the distribution of assets and is not obliged to distribute those assets evenly, it must calculate the assets fairly. The trial court's different treatment of each party's withdrawal is not sufficiently explained in the court's findings.
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¶40 Moreover, the husband offered no evidence to counter the wife's assertion that $5,000 of the $10,141 was double-counted by the court. The record indicates that the court attributed to the wife a $2,000 CD that could be the educational CD, the value of the checking account, and the $10,141 withdrawal.
¶41 Therefore, we reverse and remand to the trial court to reconsider its distribution of the assets. Withdrawals by either party should be treated consistently, and the court should eliminate any overlaps that occurred in its calculations. Because the asset valuation directly affects how the court distributes the assets, the court may wish to reconsider that allocation.
¶42 The wife also argues that the court erred in deciding the spousal maintenance award. For maintenance, the court awarded to the wife mortgage payments until the sale of the house and two months of $1,500/month relocation expenses. The trial court has the power "to award maintenance to either party after the court properly considers all the statutory factors relevant to such a decision."14 RCW 26.09.090 (1) requires the trial court to consider, but not limit itself to the following factors:
(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his skill, interests, style of life, and other attendant circumstances;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, physical and emotional condition, and financial obligations of the spouse seeking maintenance; and
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(f) The ability of the spouse from whom maintenance is sought to meet his needs and financial obligations while meeting those of the spouse seeking maintenance.
¶43 The wife argues that the court did not consider the standard of living enjoyed by the family before the dissolution, did not equalize the postdissolution economic conditions, and did not adequately provide for the wife's living expenses while she pursued suitable employment. Nothing in RCW 26.09.090 requires the trial court to make specific factual findings on each of the factors listed in RCW 26.09.090 (1). The statute merely requires the court to consider the listed factors. Despite the court's failure to list the influence of each factor in its ruling, we find no basis for reversing the maintenance award for lack of consideration of the listed factors.
¶44 In In re Marriage of Sheffer ,16 this court held that "where, as here, the disparity in earning power and potential is great, this court must closely examine the maintenance award to see whether it is equitable in light of the postdissolution economic situations of the parties."17 The trial court indicated its consideration for the parties' postdissolution economic conditions and the wife's living expenses while she pursued suitable employment when it acknowledged that the wife would need some time to find employment and she would not earn "anywhere near" the same amount as the husband. But despite this consideration, the court decided against an award of spousal maintenance because the wife was to receive assets from the sale of the home. On these grounds, we find no abuse of discretion.
¶45 The wife also argues that the trial court erred by refusing to award her attorney fees. Before awarding fees, "[t]he trial court must balance the needs of the spouse requesting them with the ability of the other spouse to
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pay."18 The trial court considered the disparity in income, but noted that the wife was receiving proceeds from the sale of the house and would be in a position to pay her fees. In this regard, the court committed no error.
¶46 The court is free on remand to reconsider its decisions regarding spousal maintenance and attorney fees, because a redetermination of the income assigned to the husband, as well as reconsideration of the distribution of assets, may cause a change in the calculations upon which the trial court relied to decide spousal maintenance and attorney fees.
¶47 Finally, the wife requests attorney fees on appeal under RCW 26.09.140 and RAP 18.1. To award attorney fees on appeal, we "examine the arguable merit of the issues on appeal and the financial resources of the respective parties."19 The wife has complied with RAP 18.1(b) by presenting argument with merit, properly requesting fees in her brief, and filing an affidavit of financial need at least 10 days before argument. Based on her affidavit and because the husband did not counter with an affidavit proving inability to pay,20 we grant the wife's request for attorney fees and set the matter before a commissioner of this court for a determination of the appropriate amount.
¶48 Reversed in part and remanded, affirmed in part.
KENNEDY and AGID , JJ ., concur . Reconsideration denied February 10, 2005.
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