No. 26513-7-III.The Court of Appeals of Washington, Division Three.
November 18, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 06-3-01933-2, Harold D. Clarke III, J., entered October 9, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Schultheis, C.J., and Korsmo, J.
BROWN, J.
Frank Hanson appeals the marriage-dissolution court’s property division with Karen Hanson. He contends the court overvalued the family home and erroneously awarded Ms. Hanson’s separate property, a 1948 truck, to him. However, the values are within the range of evidence and all property, both community and separate, is before the court for division. We find no abuse of discretion in the property division and the court’s decision to deny attorney fees. Accordingly, we affirm.
FACTS
The Hansons married in 1972 and separated in 1996. At separation, Ms. Hanson moved out of the family home, which they purchased in 1978 for $45,000. The value of the home at separation was $93,000. Mr. Hanson continued to live in the home and paid off the mortgage in 2005. Ms. Hanson’s expert appraised the home at $146,000 in its current condition and $180,000 if properly maintained with such items as fresh paint, new carpet, and debris removal. Mr. Hanson stipulated to the $180,000 value. In Finding of Fact 2.21, the court found, “[t]he value of the home is presently $146,000. However, if the home had been appropriately maintained, the value would be $180,000.” Clerk’s Papers (CP) at 41. The court awarded the home to Mr. Hanson and awarded Ms. Hanson an equalization payment of $100,000.
The court awarded several vehicles to Mr. Hanson, including a 1948 pickup truck. Ms. Hanson testified her father gave her the pickup before he died. Ms. Hanson testified the pickup was in Mr. Hanson’s possession and she did not want the truck, but wanted Mr. Hanson to have it and sell it for “whatever he can get in the condition it’s in.” Report of Proceedings at 207. At trial, Mr. Hanson offered as evidence Ms. Hanson’s father’s will, which bequeathed the truck to Ms. Hanson’s son. The court characterized the truck as Ms. Hanson’s separate property, with a value of $2,500. Since Mr. Hanson was in possession of the truck, the court awarded it to him.
The court dissolved the parties’ marriage and distributed the parties’ property, awarding Mr. Hanson approximately $133,000 and Ms. Hanson approximately $115,000. The court denied attorney fees or costs. The court also denied Mr. Hanson’s request for reconsideration. He appealed.
ANALYSIS
The issue is whether the trial court erred by abusing its discretion in its property distribution following dissolution and denying attorney fees to Mr. Hanson.
In a dissolution action, a court must divide property in a just and equitable manner after considering all relevant factors, including the nature and extent of the community and separate property, the length of the marriage, and the economic circumstances of each spouse. RCW 26.09.080. We review the trial court’s property distribution for manifest abuse of discretion. In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214
(1985). A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). “`The key to an equitable distribution of property is not mathematical preciseness, but fairness.'” In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863
(1989) (quoting In re Marriage of Clark, 13 Wn. App. 805, 810, 538 P.2d 145 (1975)).
Mr. Hanson first contends the court erred in awarding Ms. Hanson a $100,000 equalization payment based on an incorrect valuation of the family home. “When the parties offer conflicting evidence in valuation, the court may adopt the value asserted by either party, or any value in between the two.” In re Marriage of Rockwell, 141 Wn. App. 235, 250, 170 P.3d 572 (2007) (citing In re Marriage of Sedlock, 69 Wn. App. 484, 491, 849 P.2d 1243 (1993)). Mr. Hanson stipulated during trial to the value of the home. Furthermore, Mr. Hanson does not assign error to the trial court’s finding of fact regarding the value of the home. See RAP 10.3(g); Sorenson v. Pyeatt, 158 Wn.2d 523, 528 n. 3, 146 P.3d 1172
(2006) (unchallenged findings are verities on appeal). Nevertheless, “[i]f the property is to be valued as of the date of trial rather than the date of separation, appreciation as well as depreciation in value should be considered in making an equitable division.” In re Marriage of Lucker, 71 Wn.2d 165, 168, 426 P.2d 981 (1967).
At trial, an appraiser testified to the appreciation in value of the family home since separation and testified regarding the impact on the home’s value if properly maintained. Mr. Hanson benefitted from living in the home during the parties’ 10-year separation. Based on this evidence, the court did not err because it had tenable grounds to value the home at $180,000 for dissolution purposes.
Second, Mr. Hanson contends the court erred in awarding the 1948 pickup truck to him because it belonged to Ms. Hanson’s son via her father’s will. Ms. Hanson, however, testified her father gave the truck to her prior to his death and she left the truck with Mr. Hanson. The truck was in Mr. Hanson’s possession and the son did not use it. Ms. Hanson also testified she did not want the truck. Resolution of conflicting testimony, credibility determinations, and the persuasiveness of evidence are the province of the fact-finder, not appellate courts. In re Marriage of Zier, 136 Wn. App. 40, 48, 147 P.3d 624 (2006) (citing Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003)). It was for the trier of fact to view the evidence and determine the truck was Ms. Hanson’s separate property.
In a dissolution action, both community and separate property are before the trial court for distribution. In re Marriage of Stachofsky, 90 Wn. App. 135, 142, 951 P.2d 346 (1998). Because Mr. Hanson was in possession of the truck at the time of trial and because Ms. Hanson did not want the truck, it was within the court’s discretion to award the truck to Mr. Hanson. As an asset, the court properly included the value of the truck in Mr. Hanson’s total award.
Third, Mr. Hanson contends the trial court erred in denying his request for attorney fees. RCW 26.09.140 authorizes the court to award attorney fees in a marriage dissolution action after considering the financial resources of both parties and balancing the needs of the spouse requesting fees with the ability of the other spouse to pay. In re Marriage of Stenshoel, 72 Wn. App. 800, 813-14, 866 P.2d 635 (1993). The court’s decision on a fee request is discretionary and will not be disturbed absent abuse of that discretion. Id.
Moreover, no evidence shows Mr. Hanson requested attorney fees below. Ms. Hanson requested fees, but not Mr. Hanson. The court noted in its memorandum decision, “[t]here will be no award of attorney fees or costs to either party.” CP at 31. And in its conclusions of law, the court concluded an attorney fee award, “[d]oes not apply.” CP at 42. Further, Mr. Hanson does not assign error to any particular finding of fact regarding financial need or ability to pay. The trial court cannot abuse its discretion when it was never asked to exercise it. See State v. Hodges, 118 Wn. App. 668, 673, 77 P.3d 375 (2003) (where no exercise of discretion is requested, no discretion is abused). In sum, the court did not err in denying attorney fees.
Ms. Hanson requests attorney fees on appeal under RCW 26.09.140 and RAP 14.1 and 14.6 (these sections actually relate to costs). To award attorney fees on appeal, this court examines “the financial resources of the respective parties.” In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990). Neither party has filed an affidavit of financial need/inability to pay as required under RAP 18.1(c). Ms. Hanson’s request should be denied.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J. and KORSMO, J., concur.
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