Justin Alexander Marx v. Tara Johnie Shelby

- fILE0 'COURT OF APPEALS DIV I STATE OF WASHINGTON

2018 APR -9 AM 851 Ni THE COURT OF APPEALS OF THE STATE OF WASHINGTON the Matter of the Marriage of ) ) N.75755-5-1 S',TIN ALEXANDER MARX, ) ) DIVISION ONE Respondent, ) ) UNPUBLISHED OPINION , and ) ) RA JOHNIE SHELBY, ) 1 ) FILED: April 9, 2018 i I 1 A ellant. 1 ) I i ! ! ! ! TRICKEY, A.C.J.— The trial court divided JuStin Marx and Tara Shelby's assets and i 1 d4bis in their dissolution of marriage proceeding. The trial court declined to award Shelby i 1 6intenance. Shelby appeals, arguing that the trial court's findings were not Supported ! ! ! sUbstantial evidence, the trial court's property division was not equitable, and the trial .1 , 1 Uri erred when it declined to award her maintenance. Finding no error, we affirrri.

FACTS ! In 1995, Shelby and Marx began dating while going to school in New York. In

2 01; Shelby moved to Seattle to attend Bastyr University. Marx was enrolled in a joint . , ! JOris Doctor(JD) and Master of Business Administration program at American University , 1 , i Washington, D.C., and transferred to Seattle University School of Law as a visiting JD ! , ! 1 , dent. Eventually, Marx and Shelby began living together in Seattle. 1 1 In 2002, Shelby received her degree in Spirituality, health, and medicine from

r, and began naturopathic medicine and midwifery programs. in 2003, Marx left to dy abroad for a semester at City University of i-iong Kong. While Shelby was visiting

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',they became engaged. In May 2003, Marx graduated from law school but Could secure a legal job.

Marx and Shelby married in 2004. After the wedding, Marx accepted a job with his fa !ler doing marketing for Marx Companies, the family business located in New Jersey. rx worked for Marx Companies remotely and wOrked toward starting the lbusiness on

West • Coast. i•

, In 2005, Shelby became seriously ill because of an enlarged spleen. In May 2006, S lby had her spleen removed.

In 2008, Shelby graduated from Bastyr with degrees in naturopathy and midwifery. r total student debt was $284,691. After taking her boards, Shelby began working at 0 e Sky Wellness as a receptionist and naturopaih. By April 2009, Shelby had opened

CiWn naturopathic practice, Shelby Naturopathy.

' In February 2010, Shelby became ill when he and Marx were traveling in Belize. e Was diagnosed with aeromonas hydrophila, a bacterial infection. She elected to start t king Remicade, a chemotherapy drug, to treat the infection. She continues to receive Rornicade treatment every eight weeks and is unable to work for 24 to 48 hours while overing from treatment.

In 2011, Shelly began to obtain funding to start a nonprofit integrative health care ility called "Village."1 Marx and Shelby did not use community resources to fund age. Although she had an initial financing goal of $1 million, Shelby was only able to ei $365,000 from donors. She opened Village in November 2011.

In February 2012, Village's board voted to shut it down after it was not as

eport of Proceedings(RP)(May 23, 2016) at 361-62.

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sc;Cessful as anticipated, and Shelby stopped seeing patients. Shelby spent, March 2012

ing Village.

After Village closed, Marx opened bank accounts in his own name. Marx began

ositing his paychecks into his personal U.S.' Bank account and paying rent and h sehold expenses from it. He consolidated several of his and Shelby's outstanding

d ts into a single promissory note from Provident'Bank. 1 In July 2012, Shelby reopened Shelby Naturopathy and operated as ,One Sky

Ilness Associates. While building her practice between 2013 and 2014, Shelby hoped

Open Village as a for-profit corporation. Shelby needed Marx's personal guarantee , , . i (the lease she wanted, but Marx refused to agree to it. I, oT , I I , 1 I Marx and Shelby agreed that she would pursue a scaled-down version of Village, I Shelby found a lease that did not require a personal guarantee. U.S. Bank offered , S Oiy a loan of $192,000 to fund Village if she could provide $77,000.! U.S. ,Bank

ritually denied her loan application. Marx convinced Shelby not to sign the lease.

elby remained at Shelby Naturopathy.

Marx's role in Marx Companies expanded over the years. In 2015, his reasonable

pensation was $135,000 and his sustainable income totaled $270,000.2 In 2015, S elby's income was $102,044. Her reasonable compensation was $77,000 and her

tamable income was $120,000.

In February 2015, Marx moved out of the parties' shared home over concerns

a out Shelby's health and her continued goal of opening Village. In March 2015, Shelby 1 1,

I n ,expert at trial testified that he calculated the parties' "reasonable compensation" by looking 'the median compensation of professionals in similar fields. 5 RP (May 23, 2016, PM)'at 462- 6 1 476-77. He described "sustainable income" as "guaranteed payments and personal benefits." 5 P(May 23, 2016, PM)at 464.

. 75755-5-1/4 , . to d Marx that she was going to continue with her efforts to expand her practice and Open

Vi lege, had retained legal counsel, and had possibly secured venture capital I finacg. In, i l Pril 2015, Marx petitioned for dissolution of the parties' marriage. In August 2015, ., Shelby paid for a website for Village.

In August 2016, the trial court entered findings of fact and conclusions of law and

ed a final divorce order. The parties had approximately $95,000 in liquid assets, out

hich they paid $30,000 in federal income taxes at the time of dissolution. The trial ri Characterized Shelby Naturopathy as commu'nity property valued at $219,000., The

court characterized Marx's 6 percent interest in Marx Companies as separate

operty valued at $580,000. The trial court awarded Shelby Naturopathy to Shelby and arded Marx his interest in Marx Companies.

The trial court divided the parties' community debt between them. The trial court lined to award Shelby maintenance. Although the trial court found that Shelby had ducted duplicative discovery and forced both parties to bear increased costs, it o eted Marx to pay $24,000 of Shelby's attorney fees.

Shelby appeals.

ANALYSIS

Substantial Evidence

, Shelby argues that several of the trial court's findings of fact were not supported , substantial evidence. Because each of the trial court's challenged findings offact were , L s pported by substantial evidence, we disagree.

"On appeal, a trial court's findings of fact will be upheld if supported by Substantial dence." In re Marriaae of Bernard, 165 Wh.2d 895, 903, 204 P.30:1 907 (2009).

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ubstantial evidence is evidence sufficient to persuade a fair-minded person of the itruth

ofihe declared premise." In re Marriage of Hall, 103 Wn.2d 236, 246, 692 F.2d 175 I

First, Shelby argues that the trial court's finding that Marx's interest in Marx C mPanies was "'illusory" is not supported by substantial evidence.3 Specifically, Shelby C Ims that Marx's interest is a salable asset that the trial court should have considered In valuation of his separate property.

The trial court's challenged finding reads, '"[Marx's] interest in Marx Companies

a value of $580,000, although practically the value is illusory because all [Marx]

Ives from the business is an annual income tha l t his father controls."

: Here, the trial court's statement that the value of Marx's interest in ,Marx

mpanies was "illusory" is supported by substantial evidence. At the time of the

Ssolution proceeding, Marx held a 6 percent 1 interest in Marx Companies. Marx

mpanies' operating agreement specifies that Marx Companies is member-managed •a d.bannot take action without a majority vote of its members. Under the .operating

teernpnt, if a member wants to sell his or her interest, the other members have a right I ! ' , 1 o first refusal, and "[t]he unanimous consent of all members is required for a member to 1 411 S I his[or] her share to a non-member or for an assignee of a member's share to become , , ,, , a MeMber."5 I . , 1 r,H Marx's 6 percent ownership interest is insufficient to give him a controlling interest , 1Marx „ Companies, and thus he cannot direct the company without the consent of the

r. of Appellant at 25. 4 lerk's Papers(CP) at 264. 5 x. 324 at 7.

Or members. Marx cannot sell his interest to a non-member or give an assignee a

mbership interest in Marx Companies without the consent of the other mernbers, even

e;other members decline to exercise their right of first refusal.

Despite Marx's lack of control over this asset, the trial court valued Marx's interest

arx Companies at $580,000. The trial court's final divorce order awarded Marx his

inority interest in and to Marx Companies, LLC."6 Thus, the trial court'did attach a

lie ,to Marx's minority interest in Marx Companies despite its subsequent statement , he value was "practically . . . illusory," and awarded him that interest as a salable

arate property asset.7 Therefore, we conclude that the trial court's finding that Marx's

ership interest in Marx Companies was illusory was supported by substantial

ence and reject Shelby's challenge.8

Second, Shelby argues that the trial court's findings regarding her Plan to open

e in the future were not supported by substantial evidence.

• • The trial court's challenged findings state,"[Shelby] has the potential to make much

ore than just from her work as a naturopath" and "[Shelby] has already started [her plan , •;!, ' t fopen another medical clinic] by renting out her office space to another provider,r who ; • • , . , ;11 , , • p ys her rent."6

Pat 273. Pat 264. helby also argues that the percentage of Marx's interest in Marx Companies is Material to the I Court's valuation. At trial, the parties discussed whether an amendment reducing Marx's prest in Marx Companies from 15 percent to 6 percent to be consistent with federal tax returns nstituted waste. The trial court determined that the amendment was "motivated by legitimate siness goals, was a reasonable action, and did not constitute waste." CP at 264. Shelby has challenged the trial court's finding that this reduction in Marx's ownership interest did not stitute waste, and instead raises the novel argument that the specific percentage was relevant the trial court's valuation of the asset. We decline to reach her argument. RAP 10(a)(4),(6). P at 269.

' Here, substantial evidence supports the trial court's findings. Shelby testified that

anticipated annual income after opening Village would be $250,000'a year. ; This uld include a salary of $150,000, which alone would exceed her current income:of at st $120,000, and additional practice revenue. Thus, if Village opens in the future,

lby would increase her income significantly.

Further, in May 2015, Shelby rented her office space to a new provider. She began

r Orting rental income from the provider in October 2015. Shelby's decision to rent her .1 o ce space is likely not due to a lack of patients, as she remains in high demand and has , Waiting list. In addition, Shelby has developed [contacts that could help With opening

Page, such as administrators at Swedish Medical Center. She has also discussed the . , sibility of opening a medical clinic with Dr. Leanna Standish. Shelby paid , legal fees ,, ,t 'an attorney at Ryan Swanson law firm in March 2015, and paid for a website for Village , I ' I , gust 2015. These actions further indicate Shelby's intent to open Village or a similar

titution in the future. Therefore, the record demOnstrates that Shelby has taken several I . a irrnative steps toward opening another medical clinic, including renting Out her office s ace., , Thus, we conclude that substantial evidence in the record supports the trial'Court's

ings that Shelby has the potential to make much more if Village opens in the future ad that she has taken steps toward realizing that, goal.

Shelby also contends that the record does not show that her plan to open another

nia was viable, and thus the trial court's findingsl regarding her plan to open Village are supported by substantial evidence. Specifically, she argues that she had previously

n unable to secure the loans necessary to open Village and that Marx had believed

75755-5-1 / 8 :

t Village was not going to be successful.

' But the trial court's findings are not necessarily dependent on the success of

elby's plan to open another clinic. Rather, the trial court stated that Shelby "has the

ential" to increase her income significantly.

Further, Shelby testified that she had a venture capitalist friend who believed in

Village concept. This source of additional financing could alleviate Shelby's concerns i ut being able to secure loans or pay the start-up expenses of Village: Therefore, I , , 1 ause the trial court's findings are not dependrt on Village's success and Shelby's , I timony indicates that her concerns over financing may have been addressed, we reject 1 1 I ,!* argument. , Shelby also notes that Marx had believed that Village would not be successful.

elby, has not demonstrated how Marx's past concerns regarding the nonprofit Village a relevant to her current plans to start a new,for-profit corporation. We reject Shelby's

Third, Shelby argues that the trial court's finding that she could work 60 to 80 hours

week was not supported by substantial evidence. She contends that medical

timony at trial demonstrated that her health cannot support such a demanding work

hedule.

The trial court's challenged finding states,"By [Shelby's] own testimony, when she

rted her not for profit, Village, she worked 60-80 hours per week."1°

Here, Shelby's argument misinterprets the trial court's finding. The trial court did

t find that Shelby was still capable of working 60 to 80 hours per week. Rather, the trial

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rt found that Shelby worked 60 to 80 hours per week when she started the nonprofit Vi Iage, and that "[s]he had the ability to do that" at that time." Shelby testified that she

ed between 60 to 70 hours per week from the summer of 2011 to January 2012.12 • s; the trial court's finding accurately reflected testimony concerning Shelby's past

a tY,tO work over 60 hours per week, and did not state that Shelby was still able to

iniain such a demanding schedule. We conclude that the trial court's challenged I, ' fl cling was supported by substantial evidence in the record.13

Property Division

' Shelby argues that the trial court abused its discretion when its property division e her with liabilities exceeding her assets while Marx was awarded assets exceeding hi liabilities. Because the trial court properly considered relevant required factors and

m e an - equitable division of the parties' assets and liabilities, we disagree.1- :In a dissolution proceeding, the trial court, without regard to misconduct, makes an

'table distribution of the parties' liabilities and property after considering: "(1) [, t]he

re and extent of the community property;(2)[t]he nature and extent of the seperate • , perty;(3)[t]he duration of the marriage. . .; and (4)[t]he economic circumstances of I h'spouse . . at the time the division of property is to become effective," along'with

, other relevant factors. RCW 26.09.080. Other relevant factors include "the health

P at 268. 12 RP(May 25, 2016) at 947. 13 helby argues that a future hospitalization could impact her ability to work full time in the future, cit ng medical testimony that she should not work full time due to her unstable health. But in her briOfing to this court and at oral argument, Shelby stated that she is not claiming that her health is yes prevent her from working full time. Further, evidence in the record established that Shelby üS working full time at the time of trial, she had not had an appointment with Dr. Standish, one of r treating physicians, since February 2014, and she scheduled her Remicade treatments to av', id impacts on her ability to work a normal work week. We reject any challenge Shelby raises ag inst the trial court's findings regarding her ability to work full time.

75755-5-I /10 I adi :ages of the parties, their prospects for future earnings, their education and e ployment , histories, their necessities and financial abilities, their foreseeable future

a uisitions and obligations, and whether the property to be divided should be attributed , t61, the 1 inheritance or effects of one or both spouses." In re Marriage of Olivares, 69 Wn.

A p.324, 329, 848 P.2d 1281 (1993).

To be fair and equitable, the trial court's division of property and liabilities requires ft irness, based upon a consideration of all the cirCumstances of the marriage, both past 1 a'ncl'present, and an evaluation of the future needs of the parties." In re Marriage of , Z hrh, 138 Wn.2d 213, 218-19, 978 P.2d 498(1999)(quoting In re Marriage of Crosetto, 1 8 Wn. App. 545, 556,918 P.2d 954(1996)). The'division of property and liabilities does , _ I need to be equal to be valid. In re Marriage of White, 105 Wn.App. 545, 549,20 P.3d

(2001).

"[The trial court has broad discretion in distributing the marital property, and its

cision will be reversed only if there is a manifest abuse of discretion." In re Marriage

Rockwell, 141 Wn. App. 235, 242-43, 170 P.3d 572 (2007). "A trial coUrt abuses its

acietion if its decision is manifestly unreasonable or based on untenable grounds or

tenable reasons." In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d11362 I I 97). The reviewing court "does not review the trial court's credibility determinations or

igh conflicting evidence." In re Marriage of Rosirom, 184 Wn. App. 744,750, 339 P.3d

5(2014).

Here, the trial court considered the relevant RCW 26.09.080 factors. first, the trial

urt listed and described the parties' community and separate personal propertyi The , ,court also set out the community debt and separate debt liabilities of Shelby and

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The trial court noted that the parties began a committed relationship in May 2003

d were married on March 25, 2004, and that the marital community ended on April 10, 2'15. The trial court noted that both parties were 38 years old and held professional I rees. The trial court found that Shelby made at least $120,000 per yearsince the

p, ilies' separation and that Marx made $257,000 Per year. I ; 1 , In addition, the trial court considered several equitable factors. The trial ,Icourt 1 nowledged that Marx moved to Seattle from Washington, D.C. to be with Shelby, and

ri ked for his father after giving up his goal of being a lawyer so that Shelby.could attend , h chosen school. The trial court noted that the parties incurred substantial debt to fund ' 1 8 elby's education and career. The trial court noted that Marx Companies ‘i,vasI a family- o Oted,closely-held business, and that Marx did not hold a controlling interest: The trial I i 'Uri'highlighted that Shelby's naturopathic practice. was acquired during the marriage , i . I , a d *as awarded entirely to her, along with more than 100 percent of the parties' 1 Munity property. 1 ;1 1 After weighing the RCW 26.09.080 factors and equitable considerations, the trial .1 OrtIelected not to divide the parties' assets and debt equally. The trial court awarded i elby assets totaling $303,732, including Shelby Naturopathy's value of $219,000. The 1 H t I,il 'Court awarded Marx $605,526 in assets, including his 6 percent interest in Marx ; I _!' ' Ompanies' value of $580,000. Shelby was awarded liabilities totaling $310,046 and , ri,c was awarded liabilities totaling $175,491. But the trial court also ordered Marx to ,II b y $116,280 of Shelby's student debt over 60 months, which left Shelby with $193,766

. 75755-5-1 / 12

otal liabilities and Marx with $291,771 in total liabilities.14 Thus, Shelby's total award

w ,s $109,966 and Marx's total award was $313,755. 1 The trial court properly considered the RCk4/ 26.09.080 factors and other relevant

e Otable concerns when fashioning its property division. Although the, trial court's di ision of the parties' liabilities and assets is not equal, it is equitable in light of the parties'

pective circumstances. Shelby was awarded over 100 percent of the parties'

1m unity property.15 She was also awarded 100 percent interest in her naturopathic

P, actice, although the practice was obtained during the marriage. ,1 Marx's property award primarily consists of his 6 percent interest in Marx I: C mpanies. Although the trial court's statement that this interest is illusory was supported !Ii 1; isUbstantial evidence, it still assigned substantial value to it. But this interest does not , arantee him a salary and is not readily salable.

Similarly, the trial court equitably divided the parties' liabilities to address any

alance in their asset awards. The parties incurred substantial debt before and during

ir, marriage, most notably from Shelby's student loans. At the time of separation, the

lance of Shelby's student loans that were community debt totaled $119,354. The trial 1 urt ordered Marx to pay the majority of this community debt, totaling $116,280 over five 1

he parties dispute whether this payment is properly characterized as a maintenance payment la property division award. This award, although payable overtime, appears in the trial court's clusions regarding the parties' community debt. Further, the trial court explicitly declined to ard Shelby maintenance, and in doing so did not reference this payment of student loans. We dude that this payment is properly considered as part of the trial court's property award. liShelby argues that this award constituted "predistributions that no longer exist" because they Ire used to pay attorney fees and expert witness fees, and thus should not be considered. Br. Appellant at 19. Shelby does not support this argument with legal authority, and appears to andon the argument in her reply brief. We reject this argument.

: '

; / 13 , ars, although going forward he will not derive any benefit from Shelby Naturopathy or

Shelby's work as a naturopath.

In sum, the trial court considered the nature of the parties' respective interests in S !by Naturopathy and Marx Companies and their future earning potential when fa Moping its asset division. The trial court's division of liabilities demonstrates

hSideration of the nature of the parties' debts and circumstances. We conclude that — trial court's division of the parties' assets and liabilities was not an abuse of 1,

Maintenance

1; Shelby argues that the trial court abused its discretion when it declined to award 1 maintenance ; to offset its disproportionate property distribution. Because the trial 1 rt properly considered the relevant factors when it declined to aWard Shelby

6intenance, we disagree. : In a dissolution proceeding, the trial court May grant an order of maintenance and

termine the length and amount after considering factors including, but not limited, to:

; (a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him or her, and his Or her ..1 ability to meet his or her needs independently, including the extent toWhich a provision for support of a child living with the party includes a sum for that

(b)The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his'or her skill, interests, style of life, and other attendant circumstances; (c) The standard of living established during the marriage or domestic partnership; • iShelby argues that the trial court impermissibly we'ghed the fact that most of the property at uemas Marx's separate property more heavily than other factors. Shelby contends that "the racter of the property seems to have controlled the [trial] court's [decision]." Br. of Appellant 0. But Shelby has not offered citation to the record or substantive argument in support of her htention that the trial court impermissibly weighed the nature of Marx's separate;property more avily than other relevant factors. We reject this argument. RAP 10.3(a)(6).

75755-5-1/ 14

(d) The duration of the marriage or domestic partnership; (e) The age, physical and emotional condit on, and financial obligations of the spouse or domestic partner seeking maintenance; and (f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.

R W 26.09.090. "Under this provision, the only imitation placed upon the trial court's

to award maintenance is that the amount and duration, considering all relevant tors, be just." In re Marriage of Washburn, 101 Wn.2d 168, 178,677 P.2d 152(1984).

"The trial court may properly consider the property division when: deterrnining intenance, and may consider maintenance in making an equitable division of the

perty." In re Marriage of Estes, 84 Wn. App. 586, 593, 929 P.2d 500(1997). The trial 1 O rt may look to the parties' standard of living during the marriage and the resources

'obligations of the spouse seeking maintenance when deciding whether to award intenance. Estes, 84 Wn. App. at 593; see also In re Marriage of Williams, 84 Wn. p. 263, 268, 927 P.2d 679 (1996)("The court's paramount concern is the economic

ndition in which the dissolution decree leaves the parties."). 1 1 "The purpose of spousal maintenance is to support a spouse. . . until . [he , or, she] 1 iable to earn [his or her] own living or otherwise become self-supporting." In re Marriage

o iftwin, 64 Wn. App. 38, 55, 822 P.2d 797(1992) But "a demonstrated capacity of self-port does not automatically preclude an award of maintenance." Washburn, 101

A trial court's decision regarding maintenance will only be overturned on appeal manifest abuse of discretion. Washburn, 101 Wn.2d at 179.

Here, the trial court considered each of the relevant RCW 26.09.090 factors when ciding whether to award maintenance. Shelby has not challenged the majority of these

N .75755-5-1/ 15 1!

ings. Those that she has challenged are supported by substantial evidence, as

cussed above. 1

, The trial court found that Shelby earned at least $120,000 per year, and had taken 1. eps toward increasing her income to $250,000 per year. The trial court found that f elby did not need further education to be self-supporting because she already held a

uropathic doctor degree, a degree in midwifery, and an additional postgraduate

ifiCate.

The trial court found that the parties maintained their lifestyle during the marriage

incurring debt, and stated that "[a] lifestyle based on debt is not a true, standard of l "17 It also found that Shelby had received a temporary order of maintenance for

$ 5130 per month postseparation, but did not change her spending habits and continued

inCur debt. , 1 The trial court stated the pertinent dates of the parties' marriage, and did not make

f rther findings indicating that the duration of the marriage ; warranted maintenance] The 1 t 1 1 ,court found that both spouses were 38 years old. The trial court found . that It]he , e idence at trial showed that [Shelby's] chronic illnesses are in remission and that she i i 1 1 es various medications to stay in remission."18 The trial court found that Shelby was ;

pable of working full time or more than full time in the future.

Based on these findings, the trial court concluded that the parties' use of debt to

pport their lifestyle was not a standard of living and that Shelby was capable of self- 1 ' pport. Thus, the trial court properly considered each of the relevant statutory factors, 1 ed that the parties' lifestyle was based on debt, and concluded that Shelby was already

Pat 268. CP at 269. 15

i4

-sufficient. When combined with the trial court's equitable division of the parties' ' ilities and assets, we conclude that the trial court did not abuse its discretion when it

d Shelby's request for maintenance.

Shelby argues that Marx's claimed expenses are too high because ofithe financial , port he receives from Marx Companies. She also argues that evidence in the record

onstrates that she has high food, medical, and housing costs. "This court does not iew the trial court's credibility determinations or weigh conflicting evidence." Rostrom, 'Wn. App. at 750. Shelby's citations to the record regarding the parties' claimed penses ask this court to review the trial court's Weighing of the evidence.: We decline do so. ' In sum, Shelby's arguments that the trial court abused its discretion because its Lire to award maintenance exacerbates an unequal property division are unpersuasive. trial court equitably divided the parties' property and liabilities. Shelby has not mOnstrated that the trial court failed to consider the relevant statutory factors when ermining whether to award maintenance. Therefore, we conclude that the trial court not abuse its discretion when it denied Shelby's request for maintenance.

Patent Disparity

!' Shelby argues that the trial court's property lIdivision and denial of her maintenance 1 1 1 uest results in a patent disparity in the parties' IIeconomic circumstances. She argues , t the trial court's property division leaves her with only 26 percent of the parties' assets 1 e Marx was awarded 74 percent, compares each party's income after taxes and penses, and highlights the support Marx receives from Marx Companies for 'living

Nd. 75755-5-1/ 17 enses. Because the trial court's property diviSion and denial of maintenance did not

ult in a patent disparity between the parties' economic circumstances, we disagiee. 1 "If the decree results in a patent disparity in the parties''economic circumstances,

anifest abuse of discretion has occurred." Rcickwell, 141 Wn. App. at 243 (citing In

arria e of Pea, 17 Wn. App. 728, 731, 566 P.d212(1977)).

Here, as discussed above, Shelby was awarded the entirety of her'naturoPathic i ctice, from which she derives personal and rental income, although it was obtained

'ring the marriage. Although Marx's interest in Marx Companies has a higher value , t an,Shelby Naturopathy, the trial court properly determined that his interest is illusory

Cause it is not readily salable and does not guarantee him an income. Further, the trial rt used its division of the parties' liabilities to alleviate any imbalance in ,the asset

'ard. Thus, the trial court's property division did not result in a patent dreparity In the lilies' economic circumstances,

, Similarly, the trial court's decision not to award Shelby maintenance did not result

a:' patent disparity between the parties' economic circumstances. Shelby has not 1 'allenged the trial court's determination that she is self-sufficient without maintenance.

trial court considered Shelby's separate student debt when making its property dion,and ordered Marx to pay the majority of Shelby's student loans tht Constituted inn unity debt along with other substantial community liabilities. Further, the trial court

d that that the parties' lifestyle during the marriage was financed by debt, and thus not constitute a standard of living. Although Shelby received temporary ImaintOance

$1,500 per month following the parties' separatioln, she continued to incur debt and did Change her spending habits. Shelby's complints that her debt burden Will leave her

,

75755-5-I / 18 u able to continue her lifestyle ignore the trial court's unchallenged findings regarding her riding habits and use of debt.

In sum, the trial court's property division and its decision not to award Shelby intenance did not result in a patent disparity between the parties' economic

oumstances. We conclude that the trial court did not manifestly abuse ts discretion !i 1 a ;di-eject Shelby's argument. -11 11' Fees on Appeal 1 1 Shelby requests her attorney fees on appeal. Marx opposes Shelby's request and I! ues that this court should award him fees for having to answer a frivolous appeal.

An appellate court may award a party his or her reasonable attorney fees on appeal

ped on that party's need and the other's ability to pay. RCW 26.09.140; In re Marriage , 1; i Ofteslie, 90 Wn. App. 796, 807, 954 P.2d 330(1998). An appellate court may also order 1 ai?ally to pay the other party terms or compensatory damages for filing a frivolous appeal, u : 1 "one which, when all doubts are resolved in favor of the appellant, is so devoid of

rit,that there is no chance of reversal." Fidelity Mort. Corp. v. Seattle Times Col, 131

App. 462, 473, 128 P.3d 621 (2005)(citing RAP 18.9(a)).

Here, as discussed above, the trial court's property division was equitable and it Irrectly denied Shelby's request for maintenance in part because she is self-sufficient. rX is already obligated to pay a significant portion of the parties' commu ity debt over it next five years and was ordered to pay $24,000 of Shelby's attorney fees below. We nclude that Shelby has not demonstrated need or that Marx has an ability to pay, and

One to award Shelby her attorney fees on appeal. 1 ! We also reject Marx's argument that Shelby's appeal is frivolous. ;Shelby has

,

1, 1 No: 75755-5-1/ 19

sed debatable issues on appeal, and Marx's allegations that Shelby haS extensively _ !, ,.! 11srepresented the record and the trial court's conclusions are overstated., We decline

; ward Marx fees under RAP 18.9.19

Affirmed. !

t

CONCUR:

19 helby filed a financial declaration in support of her request for fees, and Marx filed a declaration a an amended declaration in opposition. Shelby moved to strike Marx's declarations as u 'timely under RAP 18.1(c). In an action where the financial resources of one or more parties ar considered for an award of attorney fees and expenses, "each party must serve upon the dt-r.and file a financial affidavit no later than 10 days prior to the date the case is set for oral Ument or consideration on the merits." RAP 18.1(c) Oral argument for the present case was rd on November 3, 2017. Marx filed a declaration and an amended declaration in opposition helby's financial declaration on November 3. Both of Marx's responsive declarations are u mely under RAP 18.1(c). We therefore grant Shelby's motion to strike both.

, 19

'Ir