MARRIAGE OF RESSA, 19519-8-III (Wash.App. 12-18-2001)

No. 19519-8-III.The Court of Appeals of Washington, Division Three. Panel Three.
Filed: December 18, 2001. UNPUBLISHED OPINION

Appeal from Superior Court of Spokane County, No. 98-3-01787-1, Hon. Ellen K. Clark, July 26, 2000, Judgment or order under review.

Counsel for Appellant(s), Leslie A. Cloaninger, Attorney At Law, 110 E Canyon St, Colfax, WA 99111.

Counsel for Respondent(s), Jacqueline G. Newcomb, Law Offices of Jacqueline Newcomb PS, 815 W 7th Ave, Spokane, WA 99204-2839.

Steven Wee, 815 W 7th Ave #202, Spokane, WA 99204.

BROWN, A.C.J.

Prior to marriage, Jerry F. Ressa and Cindy L. Ressa signed a prenuptial agreement, which the trial court upheld. Raising 20 issues, Mrs. Ressa mainly argues the trial court erred when upholding the agreement. We affirm.

FACTS
Following a two-year courtship, the Ressas decided to marry. Mr. Ressa’s attorney drafted a prenuptial agreement. Linda D. O’Dell represented Mrs. Ressa. Ms. O’Dell formerly worked in the same office as Mr. Ressa’s attorney. Mr. Ressa paid Ms. O’Dell’s legal fees. According to Ms. O’Dell’s billing statement, she first met with Mrs. Ressa on September 3, 1991 regarding the prenuptial agreement. However, Mrs. Ressa testified she did not meet with Ms. O’Dell on this date and the first she heard of a prenuptial agreement was two weeks before the wedding. Ms. O’Dell reviewed the prenuptial agreement and advised Mrs. Ressa not to sign it. Ms. O’Dell testified she thought the agreement was unfair and had concerns, based upon Mrs. Ressa’s age, that Mrs. Ressa would not have retirement funds if the marriage dissolved. Ms. O’Dell perceived Mrs. Ressa as a bright individual and was comfortable that Mrs. Ressa understood Ms. O’Dell’s recommendation and the law. Ms. O’Dell also noted that her client was adamant and did not want to wait to get married. Mrs. Ressa denies Ms. O’Dell provided a reason why she should not sign the agreement. Disregarding her attorney’s advice, Mrs. Ressa signed the agreement on December 10, 1991. The agreement partly states:

5. Status of Property. All property hereafter acquired in the name of CINDY shall be the separate property of CINDY. All property hereafter acquired in the name of JERRY shall be the separate property of JERRY. The only property that shall be designated as community property of the parties and have that status attributed to it by the laws of the State of Washington is that property which is acquired during the marriage of the parties in the joint names of CINDY and JERRY. In no other instance will any property be considered to be the community property of the parties. . . .

9. Dissolution of Marriage. The parties hereto agree that in the event the marriage which they contemplate to one another is dissolved, that neither will seek any of the separate assets of the other. Further, in the event of dissolution of marriage proceedings, neither will ask of the other attorney fees, court costs, or spousal maintenance of any nature. However, in the event a decree of dissolution is entered, JERRY will provide CINDY 12 months of spousal maintenance in an amount agreed upon between the two parties or in the event of a failure to agree, determined by the court.

10. Special Intent of Parties. JERRY has children by a prior marriage and JERRY has special attachment for his children. JERRY wishes to provide for their care, welfare, maintenance, education and any emergency situation which might arise for his children without shrinking or in any way diminishing the respective assets of the parties by virtue of this marriage. THEREFORE, JERRY wishes to have his separate property remain separate and to insure that future acquired separate property remain separate by virtue of the terms of this Agreement.

Clerk’s Papers (CP) at 33-34. Ms. O’Dell negotiated the maintenance provision in Paragraph Nine to provide support for Mrs. Ressa in the event the marriage failed.

Both parties’ separate property was listed and attached to the agreement. Mr. Ressa’s assets were significantly higher than Mrs. Ressa’s. Specifically, Mr. Ressa owned several investment properties and an architect business, Pacific Design Group. At the time of signing, the parties agreed that all assets were fairly and fully disclosed. But Mrs. Ressa did not concede Mr. Ressa’s income amount was fairly represented. Four days after executing the prenuptial agreement, the Ressas were married. The Ressas adopted a daughter in May 1993. At this time, Mrs. Ressa quit her job as a clerk at the Bon Marche.

The parties separated in 1998 and on August 31, Mrs. Ressa petitioned for dissolution. Mr. Ressa began paying one year of maintenance on November 1 per the prenuptial agreement. The trial court concluded the prenuptial agreement was valid, finding Mr. Ressa met his burden in showing that full disclosure was made, Mrs. Ressa was represented by independent and competent counsel who explained the consequences, Mrs. Ressa signed the agreement voluntarily, and the agreement did not violate public policy.

The court denied Mrs. Ressa’s request for attorney fees per the prenuptial agreement, but awarded her $750 for child support fees. She appealed.

ANALYSIS A. Full Disclosure
The first issue is whether the trial court erred in finding Mr. Ressa met his burden of establishing full disclosure prior to Mrs. Ressa signing the prenuptial agreement.

The parties agree the prenuptial agreement is unfair. The remaining focus is procedural fairness. The analysis involves “mixed issues of legal policy and fact, and accordingly is treated as a question of law, but one to be viewed in the light of those findings of the trial court which are undisputed or supported by substantial evidence and which in turn support the trial court’s ultimate conclusion.” In re Marriage of Foran, 67 Wn. App. 242, 251, 834 P.2d 1081 (1992) (citing Berg v. Hudesman, 115 Wn.2d 657, 663, 801 P.2d 222 (1990)). If a prenuptial agreement operates to waive the partners’ statutory right to an equitable distribution, the court must apply a two-pronged analysis for evaluating the validity of a prenuptial agreement. In re Marriage of Matson, 107 Wn.2d 479, 482, 730 P.2d 668 (1986). The first prong of the Matson test is whether there was full and fair disclosure of all material facts relating to the amount, character, and value of the property involved Id. at 482. “Generally speaking, the burden of establishing full disclosure or fairness rests upon the party asserting the prenuptial agreement.” Friedlander v. Friedlander, 80 Wn.2d 293, 300, 494 P.2d 208
(1972) (citing 2A. LINDEY, SEPARATION AGREEMENTS AND ANTE-NUPTIAL CONTRACTS SEC. 90, at 38 and 85 (rev. ed. 1967)). Mrs. Ressa concedes Mr. Ressa properly listed his assets. But, Mrs. Ressa contends Mr. Ressa did not fully and fairly disclose the value of his business. Here, Mr. Ressa testified he used his annual salary to value Pacific Design Group. This amount, challenged as under represented, is listed next to “Pacific Design Group” on Exhibit “B” of the prenuptial agreement. In anticipation of the prenuptial agreement, Mr. Ressa provided his attorney a copy of a Personal Financial Statement he submitted to his bank earlier in 1991. Mr. Ressa’s attorney used this statement to list assets and their values on Exhibit “B.” No evidence indicates the information on the Personal Financial Statement was incorrect. Mr. Ressa valued Pacific Design Group based upon his annual salary. Expert testimony conflicted regarding the reasonableness of using this figure. Expert testimony revealed three methods to value a closely held business. Under the first method, the value of Pacific Design Group would be between $94,500 and $189,000 plus receivables, under the second method the value would be between $65,000 and $186,000 plus receivables, and under the third method the value would be between $98,000 and $220,000. Although on the low end, Mr. Ressa’s estimate is within the expert’s calculations. Further, as the trial court noted, if the expert “can submit such a wide range of figures, it is not unreasonable for Respondent to not have an exact value either.” CP at 470. And, in light of the other assets the argued discrepancy is slight in comparison to the overall wealth. Given the above, we conclude the trial court did not err in finding Mr. Ressa met his burden in proving a full and fair disclosure of the value of his assets. Further, the record does not support Mrs. Ressa’s argument that the court incorrectly placed the burden on Mrs. Ressa to prove full disclosure.

Mrs. Ressa alleges Mr. Ressa thwarted discovery attempts. However, she does not provide argument in her brief discussing what attempts were made or which documents were not provided. RAP 10.3(a)(5) requires an appellant to provide argument in support of an issue presented for review. Appellate courts need not review an issue appellant fails to argue. State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995).

B. Independent Advice and Full Knowledge
The next issue is whether the prenuptial agreement was entered into fully and voluntarily on advice of independent counsel and with full knowledge of rights.

Our focus is “whether the agreement was entered into fully and voluntarily on independent advice and with full knowledge by [both spouses of their] rights.” Matson, 107 Wn.2d at 483 (quoting In re Marriage of Hadley, 88 Wn.2d 649, 654, 565 P.2d 790 (1977)). Mrs. Ressa contends she did not receive independent and competent advice because Mr. Ressa paid Ms. O’Dell’s legal fees and Ms. O’Dell was an inexperienced attorney. Further, Mrs. Ressa contends she did not knowingly enter into the agreement because she was unsophisticated regarding business matters.

Our Supreme Court has indicated the independent counsel requirement is to be “applied on a case-by-case basis.” Matson, 107 Wn.2d at 483. The Court noted the requirement for independent counsel may be arbitrary and unnecessary when the disadvantaged party “is shown to have been of strong and independent mind and in a position to form an intelligent judgment.”Id. (citing Whitney v. Seattle-First Nat’l Bank, 90 Wn.2d 105, 109, 579 P.2d 937 (1978)). While Mr. Ressa paid Ms. O’Dell’s legal fees and Ms. O’Dell was previously associated with Mr. Ressa’s attorney’s law firm, no indication exists of a failure to exercise independent judgment. Indeed, Ms. O’Dell recommended against signing the agreement because it was unfair to Mrs. Ressa. Further, Mrs. Ressa appeared to Ms. O’Dell to have a strong and independent mind; Mrs. Ressa was “adamant, she did not — she didn’t want to wait, she just wanted to get married.” Report of Proceedings (RP) at 108. Based upon this record, the trial court did not err in finding Mrs. Ressa was represented by independent counsel.

Mrs. Ressa contends Ms. O’Dell did not provide competent advice. Ms. O’Dell testified she researched relevant statutes and case law and advised Mrs. Ressa of community property law, and the law regarding the validity of prenuptial agreements. Ms. O’Dell also testified she advised Mrs. Ressa of her concerns regarding Mrs. Ressa’s age and that she would not have retirement funds if the marriage dissolved. While Mrs. Ressa provided contradictory testimony, we must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. Davis v. Dep’t of Labor Indus., 94 Wn.2d 119, 124, 615 P.2d 1279 (1980). Based upon Ms. O’Dell’s testimony, the trial court did not err in finding Mrs. Ressa was represented by competent counsel.

Next, Mrs. Ressa contends the parties did not have equal bargaining position and they were not equally sophisticated regarding finances and the law. The only argument she provides to support these contentions is that Mrs. Ressa “was unsophisticated about business matters, and had no knowledge of her prospective husband’s financial affairs or wealth.” Appellant’s Brief at 29. The evidence in the record shows the Ressas dated for over two years prior to marriage. During this time, Mrs. Ressa was familiar with Mr. Ressa’s work and helped entertain some of his clients. She visited his home and was aware he owned the land around his home. Mrs. Ressa also visited several of Mr. Ressa’s invested properties. Further, Ms. O’Dell testified she perceived Mrs. Ressa as a bright individual who understood Ms. O’Dell’s advice. Accordingly, she was knowledgeable regarding the parties’ finances.

Mrs. Ressa also argues she was rushed into signing the prenuptial agreement. Evidence indicates the subject was first discussed between the parties in January 1991. According to Ms. O’Dell’s billings, Mrs. Ressa met with counsel on September 3, 1991. While Mrs. Ressa testified she did not meet with Ms. O’Dell on this date and the first she heard of a prenuptial agreement was two weeks before the wedding, the trier of fact is in the better position to judge witness credibility. Davis, 94 Wn.2d at 124. Based upon the evidence in the record, the trial court did not err in concluding Mrs. Ressa fully and voluntarily entered into the prenuptial agreement.

C. Separate Property
The next issue is whether the trial court erred in finding all property, including income, should remain the separate property of each of the parties.

The Ressas’ prenuptial agreement states:

All property hereafter acquired in the name of JERRY shall be the separate property of JERRY. The only property that shall be designated as community property of the parties and have that status attributed to it by the laws of the State of Washington is that property which is acquired during the marriage of the parties in the joint names of CINDY and JERRY. In no other instance will any property be considered to be the community property of the parties.

CP at 33. Mrs. Ressa initially contends that since income was not listed as part of Mr. Ressa’s separate property it should not be characterized as separate assets.

In construing a contract, the intent of the parties, as expressed in the plain language of the instrument, is given controlling weight. In re the Estates of Wahl, 99 Wn.2d 828, 830-31, 664 P.2d 1250 (1983). Here, the prenuptial agreement unambiguously provides all separate property now or later acquired shall remain the separate property of the acquiring party. Mrs. Ressa next contends if Mr. Ressa’s income is separate property the prenuptial agreement should be void because she did not understand, or have notice, that she was giving up an interest in his income. Extrinsic evidence of the parties’ contradictory intent in executing a contract is inadmissible absent evidence of fraud, accident or mistake Berg, 115 Wn.2d at 669. In the case of a prenuptial agreement, the court’s primary concern is to prevent overreaching. Matson, 107 Wn.2d at 482- 83. To that end, the courts require good faith disclosure of the parties’ separate assets and the opportunity to obtain independent advice of counsel. Friedlander, 80 Wn.2d at 301. We have decided above that Mr. Ressa fully disclosed his assets and received advice from independent counsel. Here, the trial court properly resolved facts against Mrs. Ressa when considering her assertion that she did not understand, or have notice, that she was giving up an interest in Mr. Ressa’s income.

Lastly, Mrs. Ressa contends the trial court erred by ignoring In re Marriage of Wakefield, 52 Wn. App. 647, 763 P.2d 459 (1988). In Wakefield, the parties signed a prenuptial agreement similar to the agreement signed by the Ressas. However, Mrs. Wakefield presented evidence the community made contributions of $18,237.98 to Mr. Wakefield’s separate rental account. Id. at 648. Mrs. Wakefield was also able to establish a pattern of community property contributing to Mr. Wakefield’s separate property and then the separate property reimbursing the community property. Id. at 651. Here, Mrs. Ressa has not provided such evidence of commingling. Hence, Wakefield is distinguishable from this case.

D. Family Support
The issue is whether the trial court erred in finding Mr. Ressa provided for the family’s support.

Mrs. Ressa contends allowing Mr. Ressa’s income to remain separate property improperly relieved him of his duty to support his family under RCW 26.20.035. This statute provides the penalty for willfully omitting to provide necessary food, clothing, shelter, or medical attendance to a spouse or child. Characterizing Mr. Ressa’s income as separate property does not violate the statute. Further, substantial evidence exists in the record to support the finding that Mr. Ressa provided for his family under RCW 26.20.035. Mrs. Ressa’s argument that Mr. Ressa neglected his family because the parties split the bills is without authority. In sum, the trial court did not err in finding Mr. Ressa supported his family.

E. Bad Faith
The next issue is whether the trial court erred in declining to find bad faith. “Parties to an [prenuptial] agreement do not deal at arm’s length with each other. Their relationship is one of mutual trust and confidence. They must exercise the highest degree of good faith, candor and sincerity in all matters bearing on the proposed agreement.”

In re Estate of Crawford, 107 Wn.2d 493, 497, 730 P.2d 675 (1986) (quotin Hamlin v. Merlino, 44 Wn.2d 851, 864, 272 P.2d 125 (1954)); Whitney, 90 Wn.2d at 108. Mrs. Ressa contends Mr. Ressa did not exercise good faith, candor and sincerity because he sprung the prenuptial agreement on her and he fabricated his intention. We have previously analyzed whether Mrs. Ressa was rushed into signing the prenuptial agreement and resolved that the trial court did not err when resolving that issue against her. Regarding the parties’ intent, Paragraph 10 of the prenuptial agreement states:

JERRY has children by a prior marriage and JERRY has special attachment for his children. JERRY wishes to provide for the care, welfare, maintenance, education and any emergency situation which might arise for his children without shrinking or in any way diminishing the respective assets of the parties by virtue of this marriage. THEREFORE, JERRY wishes to have his separate property remain separate and to insure that future acquired separate property remain separate by virtue of the terms of this Agreement. CP at 34. Mrs. Ressa contends his intention was not to provide for his children since in 1993, Mr. Ressa drafted a will that left nothing to his children. While the 1993 will shows a change of heart and was even considered distasteful by the trial court, it does not show bad faith. In sum, the trial court did not err in declining to find the existence of bad faith.

F. Attorney Fees
Lastly, we discuss attorney fees. First, whether the prenuptial agreement is invalid because it provided that attorney fees shall not be awarded to either party and then whether the $750 award to Mrs. Ressa for child support litigation is inadequate.

Paragraph Nine of the prenuptial agreement partly states, “in the event of dissolution of marriage proceedings, neither will ask of the other attorney fees, court costs, or spousal maintenance of any nature.” CP at 34. Mrs. Ressa contends this statement renders the prenuptial agreement invalid because it violates public policy.

Without legal authority to support her argument that attorney fee clauses in prenuptial agreements are against public policy, we need not address this issue. See RAP 10.3(a)(5) (appellant required to provide argument in support of an issue presented for review together with citation to legal authority). Moreover, Mrs. Ressa simply alleges she was not put on notice she was waiving her right to attorney fees. The plain language of the prenuptial agreement put her on notice. Further, we have concluded Mr. Ressa provided full disclosure and Mrs. Ressa received advice from independent counsel.

Mrs. Ressa alleges the $750 award of attorney fees for child support litigation was inadequate. An award of attorney fees is within the trial court’s discretion. In Re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994). The party challenging the award must show that the court used its discretion in an untenable or manifestly unreasonable manner. Id. at 729. Mrs. Ressa has not made such showing. Therefore, the trial court did not abuse its discretion in awarding her $750 in attorney fees.

Mrs. Ressa requests attorney fees on appeal. Her request does not comply with RAP 18.1(b), requiring her to devote a special section in her brief to the request. Nevertheless, the request would be denied per the prenuptial agreement. Mr. Ressa seeks sanctions under RAP 18.9 for a frivolous appeal. In determining whether an appeal is frivolous, the Court of Appeals considers the following: (1) a civil litigant has the right to appeal under RAP 2.2; (2) all doubts as to frivolity should favor the appellant; (3) the record as a whole warrants consideration; (4) merely rejecting the appellant’s arguments does not mean the appeal is frivolous; (5) an appeal is frivolous only when there are no debatable issues upon which reasonable minds might differ, and no reasonable possibility of reversal. Biggs v. Vail, 119 Wn.2d 129, 138, 830 P.2d 350
(1992). Because Mrs. Ressa presented debatable issues on appeal, we decline Mr. Ressa’s request. Mr. Ressa also seeks costs under RAP 14.2. The attorney fee provision in the prenuptial agreement, which Mr. Ressa agrees is valid, disallows costs. Therefore, his request is 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.

SWEENEY, J. and SCHULTHEIS, J. concur.