[No. 35548-5. Division Two. January 18, 2008.]
In the Matter of the Marriage of SAMUEL ANGELO, Appellant, and MARILYN ANGELO, Respondent.
[1] Courts — Rules of Court — Construction — Similar Federal Rule — In General. When a state court rule is similar to a federal court rule, constructions of the federal rule may be consulted for guidance in construing the state rule. [2] Trial — Consolidation of Cases — Different Functions. The consolidation of cases is useful (1) when all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others; this is not actually a consolidation but sometimes is referred to as such; (2) when several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered; an illustration of this is when several actions are pending between the same parties stating claims that might have been set out originally as separate counts in one complaint; and (3) when several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment; this type of consolidation does not merge suits into a single action or cause the parties to one action to be parties to another. [3] Judgment — Partial Judgment — Multiple Claims and Parties — Governing Law.CR 54(b) governs the entry of judgment as to fewer than all claims raised in a case. The rule provides that the court may direct entry of a final judgment on one or more but fewer than all of the claims or parties, but to do so the court must make an express determination in the judgment, supported by written findings, that there is no just reason for delay and expressly direct entry of judgment. [4] Trial — Consolidation of Cases — Partial Judgment — Review — Determination as Final Judgment — Necessity. A judgment that does not resolve all of the claims raised in a case consolidated under CR 42 is not necessarily required to be certified as a final judgment under CR 54(b) before appellate review of the judgment may be sought, particularly where the consolidation was not clearly unlimited, the claims could not originally have been brought as a single suit, no purpose would be served by remanding for a CR 54(b) certification, and no party has disputed the appealability of the judgment. [5] Trial — Consolidation of Cases — Common Questions of Law or Fact — Discretion of Court. A trial court has substantial discretion to consolidate cases involving common questions of law or fact under CR 42(a). [6] Trial — Consolidation of Cases — Common Questions of Law or Fact — Review — Standard of Review. A trial court's decision to consolidate cases involving common questions of law or fact under CR 42(a) will not be reversed on appeal unless the decision constitutes an abuse of discretion and is prejudicial. A trial court does not abuse its discretion unless its decision is manifestly unreasonable, is made for untenable reasons, or is based on untenable grounds. [7] Divorce — Consolidation With Tort Claim — Common Questions of Law and Fact. There is no rule per se prohibiting a trial court from consolidating a marriage dissolution action and a tort action involving common questions of law or fact under CR 42(a). [8] Divorce — Disposition of Property — Property Settlement Agreement — Enforcement — Consolidation With Tort Claim — Validity. A trial court presiding over a marriage dissolution action may consolidate the action with a tort claim under CR 42(a) for the purpose of enforcing a property settlement agreement negotiated between the divorcing spouses. The trial court has the authority under RCW 26.12.010 to enforce a property settlement agreement. Further, the trial court has the authority under RCW 2.28.150 to use any suitable process or mode of proceeding to settle disputes over which it has jurisdiction, provided no specific procedure is set forth by statute and the chosen procedure best conforms to the spirit of the law. When the equitable jurisdiction of the court is invoked, whatever relief the facts warrant may be granted. [9] Appeal — Conclusions of Law — Review — Standard of Review. Questions of law and conclusions of law in a civil action are reviewed de novo. [10] Fraud — Elements — Burden of Proof — Degree of Proof. Fraud is established only if the following elements are proved by clear, cogent, and convincing evidence: (1) a representation of an existing fact, (2) materiality of the fact, (3) falsity of the fact, (4) the speaker's knowledge of the falsity of the fact, (5) the speaker's intent that the fact should be acted on by the person to whom the fact was represented, (6) ignorance of the fact's falsity on the part of the person to whom the fact was represented, (7) reliance on the truth of the factual representation, (8) the right of the person to rely on the factual representation, and (9) the person's consequent damage from the false factual representation. [11] Divorce — Consolidation With Tort Claim — Partial Judgment on Tort Claim — Review — Scope — Issues Pertaining to Dissolution Action. An appellate court reviewing a judgment entered on a tort claim that was consolidated with a marriage dissolution action under CR 42(a) may decline to consider issues more properly addressed in the still pending dissolution action. [12] Dismissal and Nonsuit — Failure To State Claim — Test. An action is subject to dismissal under CR 12(b)(6) for failure to state a claim upon which relief can be granted only if a court concludes beyond a reasonable doubt that no facts exist that would justify recovery. [13] Dismissal and Nonsuit — Failure To State Claim — Review — Standard of Review — In General. A trial court's ruling on a motion to dismiss for failure to state a claim upon which relief can be granted under CR 12(b)(6) is reviewed de novo by an appellate court. [14] Appeal — Review — Issues Rendered Moot by Later Events. An appellate court may decline to consider an issue that has been rendered moot by subsequent events. [15] Divorce — Disposition of Property — Conveyance of Marital Property to Third Party — Determination of Fraud — Effect on Property Distribution. Although a trial court may lack the authority to set aside a spouse's fraudulent transfer of marital property to a third party, the court, using its equitable powers, may allocate the remaining separate and community property or enter judgment against the spouse in a dissolution decree to account for the wrongful transfer. [16] Divorce — Consolidation With Tort Claim — Partial Judgment on Tort Claim — Attorney Fees — Validity. A trial court that enters a judgment on a tort claim that was consolidated with a marriage dissolution action under CR 42(a) without entering final judgment on or addressing the marriage dissolution action may not award attorney fees under either RCW 26.09.140 or RCW 4.84.330 (based on an attorney fee provision in a property settlement agreement negotiated between the divorcing spouses); nor may an appellate court reviewing such partial judgment award attorney fees on appeal under either provision. Nature of Action: Action to dissolve a marriage. The parties entered into a separation contract, including a property settlement agreement, which was incorporated into an agreed dissolution decree. Two weeks after entry of the decree, the wife filed a motion to compel the husband's compliance with the decree, declaring that he had engaged in unauthorized transfers of marital real property to family members and had sold real property immediately before he agreed to award her such real property in the dissolution decree. The wife then moved for relief from judgment and sought to modify the dissolution decree to provide for "benefit of the bargain" damages based on the husband's unauthorized real property transfers to family members. The parties then reached an out-of-court agreement that (1) the husband would give the wife a deed of trust on certain properties, (2) the family members would release all claims to three previously transferred properties and hold the wife harmless, (3) the husband would repair the wife's car and transfer title to her, and (4) the husband's attorney would prepare the documents to implement their agreement. The wife accepted the terms of the agreement against the advice of counsel, but she later refused to sign the agreement and renewed her earlier motion for relief from judgment and for attorney fees. The wife also informed the court that she was in the process of filing a complaint for damages against the husband, his partnership, and various family members and non-family members under the Uniform Fraudulent Transfer Act for their participation in the transfer of properties. The trial court granted the wife's subsequent motion to consolidate her motion for relief from judgment in the dissolution case with her tort claims, finding common issues of law and fact. The trial court vacated the property portion of the dissolution decree without any finding or explanation and reserved ruling on the wife's request for attorney fees. The wife then amended her complaint (1) adding the partnership between the husband and his family members as a defendant; (2) adding 17 additional claims involving 19 additional parcels of real property; (3) asking for relief under the Uniform Fraudulent Transfer Act and common law theories of fraud, fraudulent concealment, fraudulent inducement, fraudulent accounting, and tortious interference with contract; and (4) asking for a joint and several judgment against all defendants for damages. Superior Court: After granting a summary judgment to the non-family defendants, the Superior Court for Clark County, No. 01-3-01055-4, Robert L. Harris, J., on September 22, 2006, entered a judgment on the tort claim in favor of the wife, awarding (1) $396,786 against the husband and his partnership; (2) $361,337 against the family partnership, to be joint and several with the husband and his partnership; and (3) $25,750 against an individual family member, to be joint and several with the husband and his partnership. Although the trial court's findings of fact and conclusions of law addressed the tort claims individually, the court did not provide a comprehensive or detailed explanation of the monetary damage award based on the property parcels or related to the individual defendants. The court subsequently awarded attorney fees and costs to the wife, assessed only against the husband and his partnership, pursuant to both the marital dissolution statute and the vacated property settlement agreement. The husband and his partnership filed a timely notice of appeal. The trial court ruled that all defendants, except the husband and his partnership, had satisfied their portions of the judgment and amended its earlier judgment to $36,095.00 in damages and $194,014.52 in attorney fees against the husband and his partnership. Court of Appeals: Holding that the partial judgment on the tort claim did not have to be certified as a final judgment under CR 54(b) for purposes of obtaining appellate review, and that the trial court did not exceed its jurisdiction in consolidating the marriage dissolution action and the tort action, but that the judgment cannot be sustained because the trial court failed to enter findings of facts and conclusions of law on the nine elements of fraud, and that the trial court erred in awarding attorney fees and costs to the wife, the court vacates the trial court's findings of liability and its award of damages and attorney fees and costs against the husband and his partnership and remands the case for dismissal of the wife's tort claims and for further proceedings in the dissolution action. Terrance J. Lee- (of Law Office of Terry Lee) and Leah Eccles Watson- (of Next Generation Divorce, PLLC), for appellants. Curtis A. Welch- (of Duggan Schlotfeldt & Welch Law Firm); Carolyn M. Drew- (of Horenstein & Drew, PLLC); and Catherine Wright Smith- and Valerie A. Villacin- (of Edwards Sieh Smith & Goodfriend, PS), for respondent. [As amended by order of the Court of Appeals January 29, 2008.] ¶1 VAN DEREN, J. — Samuel Angelo and Sam Angelo Construction, Inc. (SAC) appeal the trial court's consolidation of a tort claim with a marital dissolution action and its subsequent judgment awarding $36,095.00 in damages, $194,014.52 in attorney fees, and $8,650.05 in costs to Samuel's former spouse, Marilyn, FACTS ¶2 Samuel and Marilyn were married on March 1, 1989. Samuel, his father, and his brothers worked together in construction and speculated in real property. They bought parcels of real property with mortgages solely for investment purposes, including rental properties. They also built on various parcels and then either sold or rented the improved parcels for profit. The Angelo brothers operated a partnership, the Ted Angelo Brothers (TAB), and Samuel started his own partnership, SAC, naming Marilyn as an officer of the company. "SAC[,] prior to their marital difficulties[,] had a value in excess of a million dollars." Clerk's Papers (CP) at 3706. ¶3 Samuel and Marilyn separated on January 1, 2000, and Samuel filed a petition for dissolution on June 28, 2001. The parties filed an agreed dissolution decree on February 12, 2002, based on a separation contract reached after extensive discovery, including Samuel's deposition and production of documents related to the property owned and transferred during the marriage and after separation. The separation contract was incorporated into the decree and allocated postdissolution ownership and management of 24 parcels of real property; but by the time the settlement agreement was entered, SAC's total asset value was less than $100,000. ¶4 Two weeks after entry of the decree, Marilyn filed a motion to compel Samuel's compliance with the dissolution decree, declaring that he had engaged in unauthorized transfers of marital property and had otherwise failed to comply with the separation contract. Each party hereby warrants to the other that he or she is not now possessed of any property of any kind . . . other than as set forth in . . . the Separation Contract . . . and that neither of them has made, without the knowledge and consent of the other, any gifts or transfers of community or separate property within the past three (3) years with a value in excess of $200.00. If it should hereafter be determined that the husband or the wife . . . has made, without the knowledge and consent of the other, any gifts or transfers of community property or separate property . . . each of the parties agrees to pay to the other, upon demand, an amount equal to one-half ( 1/2) of the fair market value of any such property. CP at 44-45. ¶5 On March 5, 2002, Marilyn moved for relief from judgment based on CR 60(b)(4) and (11) ¶6 On March 26, the parties reached an out-of-court agreement that: (1) Samuel would give Marilyn a deed of trust on certain properties; (2) the family members would release all claims to three previously transferred properties and hold Marilyn harmless; (3) Samuel would repair Marilyn's car and transfer title to her; and (4) Samuel's attorney would prepare the documents to implement their agreement. Marilyn accepted these terms against the advice of her counsel; but she later refused to sign the agreement and, on August 21, 2002, she renewed her earlier CR 60(b)(4) and (11) motion for relief from judgment and for attorney fees. ¶7 This time, Marilyn asked the trial court to vacate the property portion of the dissolution decree, enjoin Samuel from "transferring or further encumbering any of the properties that are the subject of the Separation Contract," and to "award attorney fees for this action and to facilitate further discovery" because Samuel had reneged on the out-of-court agreement. CP at 172. Marilyn further declared that Samuel was in arrears on his spousal maintenance and insurance payments and asked that Samuel be held in contempt and ordered to honor his obligations under the terms of the separation contract. Finally, Marilyn told the trial court that she was in the process of filing an attached complaint for damages against Samuel and SAC, Lewis and Miki Angelo, Joseph Angelo, and Theodore Angelo under the UFTA "for their participation in the fraudulent transfer of properties." CP at 177. ¶8 On August 29, Marilyn moved to consolidate her motion for relief from judgment in the dissolution case with her tort claims, asserting common issues of law and fact. ¶9 On September 6, Samuel filed a third motion to dismiss Marilyn's motion to consolidate and for CR 11 sanctions against Marilyn for filing a frivolous motion to consolidate a dissolution action with a tort claim. Samuel also provided the trial court additional information on the disposition of the community property, restated his earlier arguments, and asserted equitable estoppel and laches as defenses to Marilyn's claims. At the hearing on the motions, the trial court's inquiry showed that Samuel had made significant misstatements to it and the court ordered him to provide further information on the properties and proof of payment of spousal support. On January 16 and, again, on January 22, 2003, Samuel provided the trial court with financial statements and information on various real properties. ¶10 On February 7, 2003, the trial court granted Marilyn's motion to consolidate the actions under CR 42(a), When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated; and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay. ¶11 On April 18, the trial court vacated the property portion of the dissolution decree without any finding or explanation and reserved ruling on Marilyn's request for attorney fees. The trial court further ordered that "[a]ll other provisions of the Dissolution Decree entered February 12, 2002, and the Separation Contract incorporated therein" remain in full force and effect and that "[t]he determination of final property distribution to [Samuel and Marilyn] is reserved pending determination of" Marilyn's civil complaint. CP at 749. On June 3, the trial court ordered Samuel to pay Marilyn $7,500 in temporary attorney fees "to assist her in dealing with financial transactions that have occurred." CP at 756. ¶12 On May 11, 2004, Samuel and SAC filed yet another CR 12(b) motion to dismiss, this time asserting that, because the separation contract had been vacated, Marilyn did not have a claim and was, therefore, not a creditor under the UFTA. The trial court denied the motion, finding that Marilyn, "at the time of the conveyance had an interest in, a tenancy in common, or a financial offset due to the fact that the property contained in the settlement agreement had been encumbered or transferred without" her authority. CP at 776. ¶13 Marilyn amended her complaint: (1) adding TAB as a defendant; (2) adding 17 additional claims involving 19 additional parcels of real property; (3) asking for relief under the UFTA and common law theories of fraud, fraudulent concealment, fraudulent inducement, fraudulent accounting, and "[t]ortious interference with Contract"; and (4) asking for a joint and several judgment against all defendants for damages. CP at 777. Samuel and SAC's answer denied the claims and asserted that Marilyn either had knowledge of each transfer or that the transfer had not been concealed. Although all other Angelo defendants asserted the statute of limitations as an affirmative defense, Samuel and SAC did not do so. ¶14 All defendants eventually moved for summary judgment. Samuel and SAC argued that summary judgment was appropriate because: (1) Marilyn had knowledge of each transfer; (2) the particular transfer had not been concealed; (3) Samuel did not intend to defraud Marilyn; and (4) frequently, there was a loss or little gain on the transfers of real property and, therefore, no damages. In response, Marilyn, relying on finding of fact 2.8 in the dissolution decree ¶15 On January 13, 2005, over 120 days after the notice to set trial, Samuel and SAC filed a motion entitled "Motion and Declaration Re Procedure for Trial," suggesting that the trial court should bifurcate the fraud and dissolution actions for trial. CP at 2147. Marilyn argued that bifurcation was unnecessary as the defendants had expressly waived any right to a jury trial under CR 38(d) Waiver of Jury. The failure of a party to serve a demand as required by this rule, to file it as required by this rule, and to pay the jury fee required by law in accordance with this rule, constitutes a waiver by him [or her] of trial by jury. A demand for trial by jury made as herein provided may not be withdrawn without the consent of the parties. ¶16 A 13-day nonjury trial occurred over nine months, beginning May 9, 2005, and ending with closing arguments on February 13, 2006. All parties submitted written closing briefs. On May 10, 2006, one year and one day after the trial began, the trial court filed its decision awarding Marilyn: (1) $396,786 against Samuel and SAC; (2) $361,337 against TAB, to be joint and several with Samuel and SAC; and (3) $25,750 against Theodore Angelo, to be joint and several with Samuel and SAC. All defendants moved for reconsideration, which the trial court denied. ¶17 Although the trial court's findings of fact and conclusions of law addressed the tort claims individually, it did not provide a comprehensive or detailed explanation of the monetary damage awards based on the property parcels or related to the individual defendants. All parties sought clarification and amendment of the awards. ¶18 Marilyn, in seeking clarification, stated that: This court set aside the property settlement portion of the . . . dissolution decree so that community property fraudulently transferred by [Samuel] . . . could be recovered, brought back into the community, and then distributed in accordance with this [c]ourt's ruling on property distribution. However, there is no reference in this [c]ourt's [o]pinion to setting aside the transfers of the five (5) properties that remain in the possession of the transferee defendants. The [c]ourt found that all five such properties had been fraudulently transferred. Those properties are [claims 3, 4, 11, 13, 14]. CP at 3381. ¶19 Marilyn also asked the trial court to award her attorney fees and costs. The Angelo defendants, except for Samuel and SAC, moved to reopen the case to permit additional evidence of the mortgage balances on three parcels of property at the time of transfer. The trial court denied the motions to reopen and denied the motions for reconsideration, stating that "[n]o accounting for any of the proceeds through [SAC] established the trail of fraud that the [c]ourt relied upon." CP at 3694. But the trial court reduced the judgment against TAB to $334,941. The trial court also granted Marilyn's motion for attorney fees and costs "pursuant to the property settlement agreement . . . under RCW 4.84.330; and pursuant to RCW 26.09.080 and ¶20 Samuel and SAC filed a timely notice of appeal. On February 9, 2007, the trial court ruled that all defendants, except Samuel and SAC, had "satisfied their portions of the judgment," and amended its earlier judgment to $36,095.00 in damages and $194,014.52 in attorney fees against Samuel and SAC. ANALYSIS I. APPEALABILITY OF TORT JUDGMENT ABSENT CR 54(b) CERTIFICATION ¶21 Although neither party raised the issue of whether this case was ripe for appeal, we asked at oral argument about the property distribution portion of this consolidated case, particularly in light of the trial court's express reservation of the final distribution pending the outcome of the tort case, the unresolved status of the parties as tenants-in-common, In the context of legal procedure, "consolidation" is used in three different senses: (1) When all except one of several actions are stayed until one is tried, in which case the judgment in the one trial is conclusive as to the others. This is not actually a consolidation but sometimes is referred to as such. (2) When several actions are combined into one, lose their separate identity, and become a single action in which a single judgment is rendered. An illustration of this is the situation in which several actions are pending between the same parties stating claims that might have been set out originally as separate counts in one complaint. (3) When several actions are ordered to be tried together but each retains its separate character and requires the entry of a separate judgment. This type of consolidation does not merge the suits into a single action, or cause the parties to one action to be parties to another. 9A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 2382, at 8-9 (3d ed. 2008) (footnotes omitted). ¶23 Here, the trial court's intentions are unclear. The trial court indicated in the order granting consolidation that "[t]he determination of final property distribution to [Samuel and Marilyn] is reserved pending determination of" Marilyn's tort action, but no separate judgment has been entered and, according to the parties, no further action is pending. CP at 751. And the judgment that has been entered in this case leaves unresolved the vacated property portion of the decree and separation contract. Judgment Upon Multiple Claims or Involving Multiple Parties. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment. The findings may be made at the time of entry of judgment or thereafter on the court's own motion or on motion of any party. In the absence of such findings, determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties. ¶26 The Ninth Circuit has held that an appeal is permitted "only when there is a final judgment that resolves all of the consolidated actions unless a 54(b) certification is entered." Huene v. United States, 743 F.2d 703, 705 (9th Cir. 1984). The circuits that rely on a facts-and-circumstances test have found that a CR 54(b) certification is only required when a CR 42 consolidation "is clearly unlimited and the actions could originally have been brought as a single suit." Ringwald v. Harris, 675 F.2d 768, 771 (5th Cir. 1982). ¶27 Here, the trial court issued what appears to be a final judgment, but that judgment did not resolve the dissolution action. And the trial court clearly did not intend unlimited consolidation, nor could these actions have been originally brought in the same suit. Furthermore, under the facts and circumstances of this case, remanding for a CR 54(b) certification would serve no purpose and no party has disputed the appealability of the tort action. II. CONSOLIDATION OF TORT AND DISSOLUTION ACTION ¶28 Samuel and SAC contend that the trial court "exceeded it[s] jurisdiction under RCW 26.09.050(1) [when] it consolidated the dissolution action with tort claims involving different standards of proof, a right to a jury trial, and multiple parties who would not have standing in the dissolution action." Br. of Appellant at 4. ¶30 Samuel and SAC rely on In re Marriage of Kaseburg, 126 Wn. App. 546, 108 P.3d 1278 (2005) to assert that a tort action cannot be joined with an equitable action because "the trial court did not have any power that could not be inferred from the divorce [statute]." Br. of Appellant at 26. They acknowledge that Kaseburg was decided almost two years after the instant consolidation, but they point to the earlier cases cited by the Kaseburg court. See 126 Wn. App. at 557 n.7 (citing In re Marriage of J.T., 77 Wn. App. 361, 362-63, 891 P.2d 729 (1995); Plankel v. Plankel, 68 Wn. App. 89, 95, 841 P.2d 1309 (1992)). Marilyn responds that the only parties aggrieved by the consolidation have not appealed and that, under In re Marriage of Langham, 153 Wn.2d 553, 559, 106 P.3d 212 (2005), it was not error to consolidate the cases. ¶32 Langham involved a postdissolution motion to enforce a property distribution after the former husband unlawfully exercised stock options that had been awarded to his former spouse in the dissolution. On direct appeal, Division One affirmed the trial court's judgment in favor of the former wife based on a conversion theory. Langham, 153 Wn.2d at 556-59. At the Washington Supreme Court, the former husband argued that "he was deprived of the usual protections afforded a tort defendant because the case arose as an enforcement of a dissolution decree." Langham, 153 Wn.2d at 559. The court found no merit in this argument, stating: The superior court unquestionably has authority to enforce property settlements. RCW 26.12.010. It further has the authority to use "any suitable process or mode of proceeding" to settle disputes over which it has jurisdiction, provided no specific procedure is set forth by statute and the chosen procedure best conforms to the spirit of the law. RCW 2.28.150. Indeed, " '[w]hen the equitable jurisdiction of the court is invoked . . . whatever relief the facts warrant will be granted.' " Ronken v. Bd. of County Comm'rs, 89 Wn.2d 304, 313, 572 P.2d 1 (1977) (alteration in original) (quoting Kreger v. Hall, 70 Wn.2d 1002, 1008, 425 P.2d 638 (1967)). The trial court had jurisdiction over the subject matter and the parties via the equitable action to enforce the decree. Langham, 153 Wn.2d at 560. Langham also did not involve an actual consolidation of separate actions. In fact, no Washington case appears to be exactly on point, making this issue one of first impression. ¶33 The trial court found that "there are common questions of law or fact between these two cases; consolidation will simplify discovery and improve efficiency; and because of the timing of the alleged transfers of property referenced in the fraudulent transfer Complaint as such transfers relate to the dissolution." CP at 693. "CR 42(a) confers substantial discretion on trial courts with respect to consolidation of common questions of law or fact." W.R. Grace & Co. v. Dep't of Revenue, 137 Wn.2d 580, 590, 973 P.2d 1011 (1999). It is undisputed that the two cases here involved common questions of law and fact. Although the trial court did not articulate the common issues, they appear to include (1) whether property was transferred without Marilyn's knowledge and consent, (2) the value of any such transferred property, and (3) Marilyn's legal share of any net equity. ¶34 Furthermore, the consolidation did not preclude a jury trial on Marilyn's tort claims. The record shows that Samuel and SAC did not request a jury trial and that the parties who requested one waited until after the deadline had passed and did not appeal the trial court's refusal to seat a jury. ¶35 Although hindsight may reveal that a better course of action would have been to either stay the dissolution proceeding while Marilyn's tort claims were tried as a separate action or to address Marilyn's issues within the dissolution action first, we cannot say that the trial court abused its discretion in consolidating these claims based on the record before us. We conclude that the trial court's decision was within the scope of discretion our Supreme Court articulated in Langham because the trial court's equity powers were invoked to resolve the dissolution matter. And the trial court had jurisdiction over all of the parties, and since no specific procedure is set forth by statute to resolve such entangled issues, the chosen procedure best conforms to the spirit of the law. See Langham, 153 Wn.2d at 560. III. FIDUCIARY DUTY AND FRAUD CLAIMS ¶36 Samuel and SAC contend, and it is undisputed, that "[t]he trial court failed to even discuss the nine elements of fraud in its Memorandum of Decision or Findings of Fact and Conclusions of Law." Br. of Appellant at 29-30. Marilyn argues that the ordinary rules of fraud do not apply to spouses and that we should adopt a new rule of law for marital tort claims. ¶37 Marilyn, relying on Seals, asserts here, as she did at trial, that Samuel had an affirmative duty to disclose; therefore, no finding of the nine fraud elements was necessary for her to succeed under her common law tort claims. In reply, Samuel and SAC note that over half of Marilyn's claims alleged common law fraud and specifically, "[o]f the claims granted by the trial court, claims 15, 18, 19, 21, 22, 25, and 29 alleged common law fraud." Reply Br. of Appellant at 9. They further assert that the cases Marilyn relies on do not support her arguments and that "[f]raud was not proven on any of the seven granted claims for relief alleging common law fraud," Reply Br. of Appellant at 11, therefore, this court should "reverse all awards and attorney fees related" to the common law fraud claims. Reply Br. of Appellant at 12. ¶39 In Seals, the former wife filed a partition action after dissolution alleging that her former husband had failed to disclose certain property in the dissolution action. 22 Wn. App. at 654. Division Three of this court held that the former husband had "a duty to disclose all community assets as well as separate property prior to dissolution." Seals, 22 Wn. App. at 656. Division Three also stated that "[p]arties prior to and during marriage have a fiduciary duty to one another in agreements which have been reached between them. A fiduciary duty does not cease upon contemplation of the dissolution of a marriage." Seals, 22 Wn. App. at 655 (citations omitted). Moreover, the decree provided that "any gifts or transfers of community or separate property within the past three (3) years" "without the consent or knowledge of the other," CP at 44, would obligate the transferring or gifting party "to pay to the other, upon demand, an amount equal to one-half ( 1/2) of the fair market value of any such property." CP at 45. Thus, it is clear that after-the-fact disclosures, so long as disclosure was made before execution of the separation contract or entry of a dissolution decree, were intended to be taken into account in resolving the pending dissolution action. And the record makes it clear that Marilyn knew of many of Samuel's transfers of property, including transfers to his family, and that she agreed to divide only the remaining property identified in the separation contract. ¶41 Marilyn asserts that Samuel's warranty in the dissolution decree ¶42 As it is undisputed that the trial court's findings and conclusions do not discuss the nine elements of fraud, we vacate and reverse all liability and damages derived from the common law tort claims against Samuel and SAC, including attorney fees. IV. CLAIMS UNDER THE UNIFORM FRAUDULENT TRANSFER ACT ¶44 Samuel and SAC's position before the trial court and on appeal is that, under the UFTA, a creditor is defined as a person with a right to a payment (a claim). They acknowledge that "Marilyn had a clear claim against [Samuel] under the property settlement provisions of their dissolution settlement contract"; however, "[w]hen the court vacated those provisions in its order, . . . Marilyn's claim was also vacated." Br. of Appellant at 34. Marilyn responds that, under community property law, she had "both a legal and equitable right to payment when the husband unilaterally transferred community property." Br. of Resp't at 21. V. DISTRIBUTION OF ASSETS DISPOSED OF PRIOR TO ORIGINAL DISSOLUTION DECREE Although Samuel and SAC correctly state that the statute of limitations on Marilyn's common law fraud claims is three years, a fraudulent transfer claim under the UFTA must be commenced within four years or, if later, within one year of the discovery of the fraudulent nature of the transfer. RCW 19.40.091; see Freitag v. McGhie, 133 Wn.2d 816, 820-21, 947 P.2d 1186 (1997). But for either common law fraud or a UFTA fraud claim, "the statute of limitations does not begin to run until all the elements of the cause of action for fraud are discovered or should have been discovered." Freitag, 133 Wn.2d at 823 (citing Strong v. Clark, 56 Wn.2d 230, 232, 352 P.2d 183 (1960)). And Marilyn asserts that the discovery of the fraudulent nature of the transfers at issue here occurred subsequent to the February 12, 2002, dissolution decree, well within one year of filing her tort claim. And the record shows that the trial court denied claims where final disposition occurred prior to 2000. Thus, Samuel and SAC's reference to the statute of limitations is without merit. V. ATTORNEY FEES AND COSTS ¶48 Both parties seek attorney fees on appeal under RCW 26.09.140 and both rely primarily on various provisions of chapter 26.09 RCW for support. But, as we noted, this appeal relates specifically to the tort claims and provisions relating to fees and costs in dissolution matters do not apply. ¶49 Marilyn also asserts that the contractual nature of the property settlement agreement, including the attorney fee provision, supports the award of attorney fees under RCW 4.84.330. In any action on a contract . . . where such contract . . . specifically provides that attorney's fees and costs, which are incurred to enforce the provisions of such contract . . . , shall be awarded to one of the parties, the prevailing party, whether he is the party specified in the contract . . . , shall be entitled to reasonable attorney's fees in addition to costs and necessary disbursements. ¶50 Samuel and SAC also rely on RAP 14.2, which states that a "commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review. If there is no substantially prevailing party on review, the commissioner or clerk will not award costs to any party." Here, Samuel and SAC substantially prevail and we award them costs, subject to compliance with Title 14 RAP. ¶51 We hold that the trial court's award of damages based on Marilyn's common law fraud claims, absent clear and cogent evidence of or findings on the nine elements of fraud, is unsupported and we vacate and reverse all liability and damages determinations against Samuel and SAC based on common law fraud. We also vacate the award of attorney fees and costs to Marilyn. And, given that the third parties have satisfied the judgments against them under Marilyn's UFTA claims and she has waived any claim against Samuel and SAC based on her UFTA claims, we remand to the trial court to dismiss the tort action under cause number 02-2-03635-3 and to enter judgment in the dissolution action, cause number 01-3-01055-4, following proceedings in that case. HOUGHTON, C.J., and ARMSTRONG, J., concur.