No. 18931-7-III, 19613-5-IIIThe Court of Appeals of Washington, Division Three. Panel Five.
Filed: December 19, 2002 UNPUBLISHED OPINION
Appeal from Superior Court of Chelan County, No. 97-3-00392-8, Hon. John E. Bridges, November 5, 1999, Judgment or order under review.
Counsel for Appellant(s), W. J. Kennedy III, Thorner Kennedy
Gano, 101 So. 12th Ave, P.O. Box 1410, Yakima, WA 98907-1410.
Counsel for Respondent(s), Douglas J. Takasugi, Jeffers Danielson Sonn Aylward, 2600 Chester Kimm Rd, Wenatchee, WA 98801.
Kari D. Kube, Jeffers Danielson Sonn Aylward, 2600 Chester Kimm Rd, P.O. Box 1688, Wenatchee, WA 98807-1688.
SCHULTHEIS, J.
In this consolidated appeal and cross-appeal, Marcia and William Wicheta each take issue with the court’s property distribution, child support, and maintenance orders, as well as the award of attorney fees at the conclusion of a lengthy and contentious dissolution trial. Finding no abuse of discretion regarding the child support and maintenance awards discussed in the court’s decision regarding Ms. Wicheta’s motion to modify, we affirm. However, the court erred when it set the interest rate on the judgment against Dr. Wicheta at 8 percent. Accordingly, that ruling is reversed and remanded. Regarding Dr. Wicheta’s cross-appeal, we find the trial court did not abuse its discretion in awarding Ms. Wicheta attorney fees at the conclusion of the original trial. Nor do we find abuse of the court’s discretion in granting Ms. Wicheta’s CR 59 motion to amend. Consequently, those decisions are affirmed. However, the court erred when it deducted from the value of the home awarded to Ms. Wicheta, the estimated closing costs. That portion of the court’s decision is reversed and remanded.
Facts
The parties met in Utah in August 1983. At the time, Dr. Wicheta was completing his medical internship at the University of Utah and Ms. Wicheta was teaching school. In November of that year Dr. Wicheta entered a residency program at the University of Arkansas in Little Rock. Ms. Wicheta moved to Arkansas with Dr. Wicheta and the two began living together. Ms. Wicheta worked in sales while Dr. Wicheta worked as a resident. The two separated for a time and Ms. Wicheta moved to Virginia. They reconciled in March 1985 and married on June 8, 1985. That fall Ms. Wicheta began teaching school in Arkansas. She taught until the birth of the couple’s first child. The Wichetas moved to the Wenatchee area in 1988. Dr. Wicheta became a partner at the Eye and Ear Clinic in Wenatchee in 1990. By agreement, Ms. Wicheta gave up her teaching career to stay home and raise the couple’s four children.
The couple separated on May 1, 1997. Ms. Wicheta filed a summons and petition for dissolution on July 29. Dr. Wicheta paid all the family’s expenses until September 1, when he was ordered to pay $3,750 per month to Ms. Wicheta in maintenance and $2,000 per month in child support. A trial took place in the Chelan County Superior Court in February and March 1999. The court issued a letter opinion on June 8. Ms. Wicheta filed a motion for reconsideration. The court issued an oral opinion on the motion for reconsideration and an order was entered on November 5. Of particular importance to this appeal, it affirmed the child support award and Ms. Wicheta’s maintenance and attorney fee awards. Further, it affirmed the interest rate (8 percent) on the monetary judgment against Dr. Wicheta as well as its determination that Dr. Wicheta’s goodwill in his medical practice had no monetary value. It also allowed Ms. Wicheta to deduct the selling costs from the value of the family home, which she was awarded at the conclusion of the original trial. The letter and oral opinions were incorporated into the written findings and conclusions filed that same date. The decree of dissolution, the parenting plan, and the child support order were also filed on November 5, 1999. A timely appeal of issues related to property division, child support, and maintenance was filed. Dr. Wicheta cross-appealed the court’s award of attorney fees to Ms. Wicheta.
On November 15, 1999 Ms. Wicheta filed a motion pursuant to CR 60 and/or CR 59, which asked the court to take `into account the costs for preparing the house for sale and making repairs as set forth in [her] affidavit.’ Clerk’s Papers (CP) (Cause No. 19613-5-III) at 11. Her motion was granted. The court based its decision on CR 59(a)(4) and (9) and the evidence presented. As a result, the court reduced the value of the home awarded to Ms. Wicheta by the estimated cost to repair the home in order to place it on the market. It then increased the judgment against Dr. Wicheta, which was intended as an equalizing payment by approximately $9,200 — his pro rata share. Dr. Wicheta filed a timely notice of appeal of the court’s decision. That appeal was given cause number 19613-5-III. The cases were consolidated on appeal.
Analysis
Ms. Wicheta first asks us to review Dr. Wicheta’s child support obligation. She contends the trial court should not have imputed income to her when she produced actual wage information at trial. Next, she asserts the trial court erred when it allowed $833 per month in voluntary pension payments deducted from Dr. Wicheta’s monthly net income for child support calculation purposes. Third, Ms. Wicheta believes the trial court abused its discretion when it capped the couple’s income at $7,000 per month for child support calculation purposes.
This court reviews an order of child support for abuse of discretion. In re Marriage of Crosetto, 82 Wn. App. 545, 560, 918 P.2d 954
(1996). A court’s decision regarding a child support calculation will be upheld unless there is evidence of a manifest abuse of discretion. In re Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999). A reviewing court will not substitute its own judgment for that of the trial court when the record shows the trial court considered all relevant factors and the award is not unreasonable under the circumstances. In re Marriage of Stern, 57 Wn. App. 707, 717, 789 P.2d 807 (1990).
Imputation of Income
Ms. Wicheta first complains the trial court should not have imputed income to her. She is incorrect. By statute, the court is required to impute income to a parent if it finds the parent is voluntarily unemployed or voluntarily underemployed. RCW 26.19.071(6). That parent’s support obligation is then calculated accordingly. The court makes this determination based upon the parent’s work history, education, health, and age, or any other relevant factors. Id. Voluntary unemployment, while not defined in the statute, has been interpreted as unemployment `brought about by one’s own free choice and is intentional rather than accidental.’ In re Marriage of Brockopp, 78 Wn. App. 441, 446 n. 5, 898 P.2d 849 (1995). In deciding whether a parent is voluntarily underemployed, the court should look at the level of employment at which a parent is capable and qualified. In re Marriage of Sacco, 114 Wn.2d 1, 4, 784 P.2d 1266 (1990). Ms. Wicheta’s desire to stay home with her children does not mean she may not be found underemployed for purposes of the imputation statute. This court has previously held that a full-time mother and homemaker did not have gainful employment and was thus underemployed for purposes of the imputation statute. In re Marriage of Pollard, 99 Wn. App. 48, 53, 991 P.2d 1201 (2000). Here, the trial court found that at the time of trial Ms. Wicheta was 44 years old and although she had suffered a neck injury in the recent past, a full recovery was expected. It also found she had a work history prior to her children being born, including teaching school for approximately eight years. In its letter opinion the court found:
Marcia has not sought employment since the separation of the parties on May 1, 1997 because of the perceived pressures associated with the dissolution and the perceived needs of the children. Candidly, Marcia testified that she simply wants to be a mom and raise the kids.
CP (Cause No. 18931-7-III) at 58. Then, in its oral decision on the motion for reconsideration, the court stated:
I should indicate so the record is clear if it wasn’t in the written findings that the imputation of income was based almost exclusively on the statutory factors, I think it’s 26.19, because I felt that Mrs. Wicheta was voluntarily unemployed having been separated for about two years at the time of trial and really hadn’t done much to obtain employment so the imputation was at $1,523[,] which[,] I think[,] is the amount that is recommended by statute for a female age 44 . . . .
CP (Cause No. 18931-7-III) at 77. This was not an abuse of the court’s discretion.
Voluntary Pension Payments
Next, Ms. Wicheta contends the trial court erred when it allowed Dr. Wicheta to deduct from his gross monthly income $833 in voluntary pension payments. She is correct. RCW 26.19.071 sets forth the standards for determining income for purposes of calculating child support. It states in relevant part:
The following expenses shall be disclosed and deducted from gross monthly income to calculate net monthly income: . . . .
(g) Up to two thousand dollars per year in voluntary pension payments actually made if the contributions were made for the two tax years preceding the earlier of the (i) tax year in which the parties separated with the intent to live separate and apart or (ii) tax year in which the parties filed for dissolution[.]
RCW 26.19.071(5). While it is clear from the child support worksheet the court allowed Dr. Wicheta to deduct $833 per month for voluntary pension payments, there is no evidence in the record that Ms. Wicheta objected to the entry of the child support worksheet or order at the time they were entered. Failure to object in a timely manner when it would enable the trial court to correct its error precludes raising the error on appeal, unless the error was pointed out at some other point during the proceedings. Smith v. Shannon, 100 Wn.2d 26, 38, 666 P.2d 351 (1983). Because the issue was not raised at the original trial, we decline to reach the merits of this issue.
Combined Income in Excess of $7,000
When ordering child support, the court first determines the standard calculation support level from the economic table contained in RCW 26.19.020. This table provides figures, which are presumptive for combined monthly net incomes up to and including $5,000. RCW 26.19.020. However, it is not presumptive when, as here, the parents’ combined monthly net income exceeds $7,000 per month.
When combined monthly net income exceeds seven thousand dollars, the court may set support at an advisory amount of support set for combined monthly net incomes between five thousand and seven thousand dollars or the court may exceed the advisory amount of support set for combined monthly net incomes of seven thousand dollars upon written findings of fact.
RCW 26.19.020. Here, the court determined Dr. Wicheta’s net monthly income was $8,782 and Ms. Wicheta’s was approximately $3,218 for a total of $12,000 per month. Although Ms. Wicheta cites cases were the court exceeded the $7,000 support level, she does not argue why it was an abuse of discretion for the trial court not to do so here. A court must consider any extra amount of child support that might be paid; however, it retains the discretion to decide the appropriate amount after such consideration. Within that discretion is the choice of determining no additional award of support is appropriate. In re Marriage of Fiorito, 112 Wn. App. 657, 665, 50 P.3d 298 (2002). That is apparently what the court did here, which was appropriate.
Maintenance Award
Next, Ms. Wicheta disputes the maintenance award. An award of maintenance is often utilized to equalize the parties’ standard of living for an appropriate period of time. In re Marriage of Estes, 84 Wn. App. 586, 593, 929 P.2d 500 (1997) (citing In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984)). Our review is governed by the oft-repeated general principle that most dissolution issues are best left to the trial court. Trial court decisions in a dissolution action are rarely changed on appeal because the emotional and financial interests affected by such decisions are best served by finality. The spouse who challenges such decisions bears the heavy burden of showing an abuse of discretion on the part of the trial court. In re Marriage of Zahm, 138 Wn.2d 213, 226-27, 978 P.2d 498 (1999).
When deciding whether to award maintenance, the court must consider several factors: (1) the postdissolution financial resources of the parties; (2) the parties’ abilities to independently meet their own financial needs; (3) the time necessary for the party seeking maintenance to find employment; (4) the duration of the marriage; (5) the standard of living during the marriage; (6) the age, physical and emotional condition, and financial obligations of the spouse seeking maintenance; and (7) the ability of the spouse from whom maintenance is sought to meet his or her needs and financial obligations. RCW 26.09.090(1)(a)-(f); In re Marriage of Williams, 84 Wn. App. 263, 267-68, 927 P.2d 679
(1996). The only limitation on an award of maintenance is that the amount and duration, in light of all the relevant factors, must be just. Washburn, 101 Wn.2d at 178. An abuse of discretion occurs when a court’s maintenance award is not based on a fair consideration of the statutory factors. In re Marriage of Mathews, 70 Wn. App. 116, 123, 853 P.2d 462
(1993).
Here, review of the record indicates the court considered each of the statutory factors. It considered the duration of the marriage, the standard of living achieved during the marriage, as well as the financial resources and monthly expenses of each party upon separation. It discussed the parties’ abilities to independently meet their own financial needs as well as the time necessary for Ms. Wicheta to obtain employment in the teaching field. It also discussed her age, physical and emotional condition, and her financial obligations after separation. Finally, the court set forth the financial resources of Dr. Wicheta as well as his ability to meet his own financial obligations. We find no abuse of discretion in the maintenance award of $2,500 per month for 24 months.
Value of Dr. Wicheta’s Goodwill
Ms. Wicheta next disputes the court’s decision that the goodwill Dr. Wicheta had built up in his medical practice did not have a monetary value. The existence of goodwill is a question of fact. In re Marriage of Crosetto, 82 Wn. App. 545, 553, 918 P.2d 954 (1996). Here, the court made a finding that goodwill existed by analyzing the Fleege factors.[1]
Findings of fact will be upheld so long as they are supported by substantial evidence. Crosetto, 82 Wn. App. at 553. If goodwill exists, the court must then determine the value of that goodwill. The accounting method utilized for estimating the value of goodwill depends on the nature of the proof offered. In re Marriage of Luckey, 73 Wn. App. 201, 206, 868 P.2d 189 (1994).
At trial, the testimony regarding goodwill was conflicting. Ms. Wicheta’s expert, an accountant with 30 years of experience, testified that goodwill existed and based on the excess earnings method of valuation the goodwill in Dr. Wicheta’s practice was worth $160,000. Dr. Wicheta’s expert, the certified public accountant who handled the clinic’s accounts for 32 years, testified there was no goodwill because Dr. Wicheta had no excess earnings. After considering all the testimony the court ultimately determined that although there was goodwill in Dr. Wicheta’s practice, it had no value because there were no excess earnings. The decision was based on the testimony that Dr. Wicheta’s earnings were declining because the clinic was facing increased competition from another practice as well as increased administrative costs. We find no abuse of discretion because the court’s determination regarding the value of the goodwill was well within the range of the evidence. Mathews, 70 Wn. App. at 122 (valuation within scope of evidence will not be disturbed on appeal).
Property Distribution
Next, Ms. Wicheta claims the trial court erred when distributing the property to the parties. We disagree.
A court has wide discretion in dividing property in a dissolution action, and will be reversed only upon a showing of a manifest abuse of discretion. In re Marriage of Stachofsky, 90 Wn. App. 135, 142, 951 P.2d 346 (1998). Our Legislature has listed factors that should be considered when courts divide the parties’ property:
In a proceeding for dissolution of the marriage, . . . the court shall . . . 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 including, but not limited to:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage; and
(4) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time.
RCW 26.09.080. A trial court is in the best position to assess the assets and liabilities of the parties in order to determine what is fair, just, and equitable under the circumstances. In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999).
Although Ms. Wicheta was awarded the family home she now complains it is not worth what the court determined. The court set forth its reasons for valuing the residence at $385,000. Ms. Wicheta’s disagreement with the valuation does not mean the court abused its discretion. Ms. Wicheta also believes the trial court should have equally divided Dr. Wicheta’s interest in the optical shop’s income. As set forth above, that is not the test utilized in this state. Finally, Ms. Wicheta argues the 55/45 split in her favor was not equitable because Dr. Wicheta’s future earning capacity greatly exceeds hers. The bottom line here is the trial court used all the information it had before it, applied the necessary statutory factors, and made a just and equitable division of assets. There is no evidence the trial court abused its discretion.
Interest Rate on Judgment
Ms. Wicheta also complains the trial court erred when it set the interest rate on the judgment owed by Dr. Wicheta at 8 percent. She claims it should have been statutorily set at 12 percent and the court erred when it did not set forth any findings regarding the reason the 8 percent figure was utilized. The court’s decision is reviewed for abuse of discretion. In re Marriage of Stenshoel, 72 Wn. App. 800, 811, 866 P.2d 635 (1993).
Courts in this state have held a trial court must enter a judgment in compliance with RCW 4.56.110. In re Marriage of Harrington, 85 Wn. App. 613, 630-31, 935 P.2d 1357 (1997). `Failure to do so constitutes error meriting remand for correction of the judgment’s interest rate to the statutory rate.’ In re Marriage of Knight, 75 Wn. App. 721, 731, 880 P.2d 71 (1994). According to RCW 4.56.110, interest on monetary judgments shall accrue at the maximum rate permitted under RCW 19.52.020. In 1999, when the Wicheta dissolution decree was entered, the maximum interest rate permitted by statute was 12 percent per annum. RCW 19.52.020(1). Although a court has discretion to reduce the rate of interest on deferred payments under a property distribution decree, it is an abuse of discretion to fix an interest rate below the statutory rate without setting forth adequate reasons for the reduction. Harrington, 85 Wn. App. at 632.
In making its initial decision regarding the interest rate of 8 percent, the court did not set forth its reasons for the reduction.
However, after reflecting on Ms. Wicheta’s motion for reconsideration the court recognized its need to set forth specific findings regarding its decision to utilize the lower interest rate. It stated:
And the Court did not make specific findings and I honestly don’t know now as I sit here whether I can make findings that would be satisfactory to Mr. Kennedy or more particularly to the Court of Appeals. The Court did run some numbers because I had my notes before me as I was punching these out on the computer as to what the various interest rates would be on that amount [$99,000] and I think that the Court determined that it was going to be about 600 and some dollars a month amortized basically over a year as I chose to do and include that in income for purposes of the wife being the judgment wasn’t to be due for a period of three years, but it seemed to the Court that 12 percent was unreasonable on that amount of money, $99,000, and that it was something less that was reasonable[,] particularly in view of the limited number of years that it was going to be paid[,] because it was ballooned in three years.
So in determining that eight percent was the most correct amount, the Court attempted to have in mind the amount of the judgment, the length of time until the principal was due, that is, three years, the approximate amount of interest rate that would be required should Dr. Wicheta have to borrow that money[,] which I didn’t indicate but I think it would be in the area of from six to eight percent and more likely in the sevens at that time and I don’t know what it is now, I just felt that was a reasonable amount and that’s about the best I can do with what I have.
CP (Cause No. 18931-7-III) at 78-79.
The court set forth several reasons for its decision. However, there is no evidence regarding whether Dr. Wicheta would need to borrow the money to pay the judgment or, if he did, what interest rate he would be charged. For this reason, the court abused its discretion. This portion of the dissolution decree must be remanded for entry of an interest rate consistent with the rule of law set forth in this opinion. Exhibit 75
Finally, Ms. Wicheta asserts the trial court erred when it allowed exhibit 75 to be admitted as evidence at trial. A trial court has broad discretion in determining whether to admit or exclude evidence at trial. State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990).
Although the exhibit was not produced in the record on appeal, it appears the exhibit was a copy of a 1996 nationwide survey of the median salary earned by an ophthalmologist in a small practice like the one in which Dr. Wicheta practices. Although Ms. Wicheta objected to the introduction of the exhibit at trial, her objection was overruled. In this appeal, Ms. Wicheta claims the exhibit was not presented to her prior to trial and the unfair surprise was prejudicial. This argument is based on the court’s determination that, according to the survey, Dr. Wicheta could be making more money elsewhere than at the clinic. As a result, the court determined Dr. Wicheta had no excess earnings and the goodwill present in his practice had no monetary value. We are not convinced Ms. Wicheta was prejudiced by introduction of the exhibit because a review of the record discloses the same information was available in other exhibits and through testimony elicited at trial. Accordingly, we find the court did not abuse its discretion in admitting the exhibit.
Cross-Appeal
Attorney Fees
In his cross-appeal, Dr. Wicheta first contends the trial court erred when it granted attorney fees to Ms. Wicheta at the conclusion of the dissolution trial. We disagree.
A trial court has discretion to award attorney fees upon consideration of the parties’ financial resources. RCW 26.09.140. To successfully challenge the court’s award of attorney fees Dr. Wicheta must show that the court used its discretion in an untenable or manifestly unreasonable manner. In re Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d 157
(1999).
In its written opinion, the trial court determined that Ms. Wicheta had little understanding of the financial workings of Dr. Wicheta’s practice. As such, the discovery process was time consuming and expensive for her. It also made note of the economic circumstances of the parties both at the time of separation and at the conclusion of the trial. This was a tenable basis for the order. There was no abuse of discretion.
Closing Cost Deduction
Next, Dr. Wicheta asserts the trial court erred when it granted Ms. Wicheta’s motion for reconsideration and deducted from the value of the residence on Ski View Drive the estimated closing costs ($22,152.55) from the sale of the home. He claims this was error because the court did not order the home must be sold and there was no evidence presented that Ms. Wicheta intended to sell the home.
The court’s decision regarding the deduction for estimated closing costs is reviewed for abuse of discretion. Stenshoel, 72 Wn. App. at 811. A deduction for the costs of sale is justified when: (1) the evidence shows that the party who will receive the assets intends an imminent sale; and (2) the evidence supports the estimated costs of sale. In re Marriage of Berg, 47 Wn. App. 754, 759, 737 P.2d 680 (1987).
In Berg, the court held the trial court did not err in refusing to deduct the costs of sale because the issue was raised for the first time in a posttrial motion, the appellant’s intent to sell was not sufficiently definite, and it was not clear that the sale was imminent. Id. at 759-60. Similarly, Ms. Wicheta raised the issue of the costs of sale for the first time in her posttrial motion for reconsideration. The court excused the mistake finding that neither party knew until the court’s decision was filed who would be awarded the family home. That reasoning is sound. Next, although Ms. Wicheta was awarded the home, the court did not require her to sell it nor is there any indication in the record that a sale was intended or imminent. Regarding the costs of the sale the court candidly remarked:
Unfortunately, now I have no evidence as to what those selling costs may be. I can speculate based on some recent cases we’ve had as to what realtors are charging for selling costs and I know Mr. Takasugi has argued the case that now on reconsideration the Court should not be permitted to do that. However, I’m inclined to do that since the decree has not yet been entered but in order to do that we’re going to need some evidence either by way of testimony, affidavit or agreement as to what the anticipated selling cost of that house will be.
CP (Cause No. 18931-7-III) at 79-80 (emphasis added). It is clear the trial court did not follow the Berg case and we recognize it was not required to do so. Apparently, the trial court determined since no final order had yet been entered further testimony on the issue was appropriate.
We disagree. The Berg rule is the correct rule and we adopt it in this jurisdiction. Accordingly, because there was no evidence presented at trial regarding Ms. Wicheta’s intent to sell the family home, either immediately or in the near future, and because there was no evidence presented regarding the selling costs, the trial court erred when it deducted those costs from the value of the home. That portion of the court’s decision on Ms. Wicheta’s motion for reconsideration is reversed and remanded for correction.
Costs of Repairs
Finally, Dr. Wicheta maintains the trial court abused its discretion when it granted Ms. Wicheta’s CR 59 motion to amend judgment so the value of the Ski View Drive residence could be adjusted for the costs to repair it so it could be listed for sale. A court’s decision regarding a trial on the basis of newly discovered evidence is reviewed for abuse of discretion. Lian v. Stalick, 106 Wn. App. 811, 823-24, 25 P.3d 467
(2001).
Ms. Wicheta filed the CR 59/60 motion shortly after the dissolution decree was entered. The hearing commenced nearly a year later on October 3, 2000. At its conclusion the court granted the motion, based on CR 59(a)(4) and (9). It ordered the value of the family residence awarded to Ms. Wicheta be reduced by $16,732.80 and at the same time it ordered the monetary judgment against Dr. Wicheta be increased by $9,203.04.
Dr. Wicheta complains the court’s order was improper and unreasonable because the court based its decision on CR 59(a)(4) (newly discovered evidence) and CR 59(a)(9) (substantial justice was not done). Dr. Wicheta maintains the information regarding the costs to repair Ms. Wicheta’s residence was not newly discovered, especially considering the motion was filed on November 15, 1999, which was only 10 days after the final orders in the dissolution action were filed. He contends the cost to repair issue should have been decided at the same time as the cost to sell the residence in Ms. Wicheta’s original motion for reconsideration.
A review of the attachments accompanying Ms. Wicheta’s motion shows the contractor’s estimated repair costs was dated October 27, 1999, which was prior to the court’s hearing on the final dissolution issues. However, as mentioned above, neither party knew for sure who was going to be awarded the family home. Although we agree with Dr. Wicheta, the better method would have been to litigate all issues regarding the house at the same time, especially when the cost to repair information was known, it was not an abuse of discretion for the court to deduct the costs of repair based on CR 59(a)(9). Backlund v. Univ. of Wash., 137 Wn.2d 651, 670, 975 P.2d 950 (1999) (appellate court may affirm on any basis that is supported by record).
Affirmed in part; reversed in part and remanded.
A majority of the panel has determined that 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.
BROWN and KURTZ, JJ., concur.