DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division III
                               State of Washington

                            Opinion Information Sheet

Docket Number:       19191-5-III
Title of Case:       In RE the Marriage of Robert G. Herwander
                     v.
                     And Deborah L. Herwander
File Date:           04/02/2002


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Yakima County
Docket No:      95-3-00798-1
Judgment or order under review
Date filed:     02/18/2000
Judge signing:  Hon. Susan Hahn


                                     JUDGES
                                     ------
Authored by John A. Schultheis
Concurring: Dennis J. Sweeney
            Frank L. Kurtz


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            W. J. Kennedy Iii
            Thorner Kennedy & Gano
            101 S. 12th Ave
            P.O. Box 1410
            Yakima, WA  98907-1410

Counsel for Respondent(s)
            John A. Maxwell Jr.
            Meyer Fluegge & Tenney
            P.O. Box 22680
            Yakima, WA  98907

            Ellen M. McLaughlin
            Wagner Luloff & Adams
            110 N 5th Ave Ste 200
            Yakima, WA  98902


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Marriage of:                           ) No. 19191-5-III
                                                 )
ROBERT GARY HERWANDER,                           )
                                                 ) Division Three
               Respondent and                    ) Panel Six
               Cross-Appellant,                  )
                                                 )
     and                                         ) UNPUBLISHED OPINION
                                                 )
DEBORAH LEE HERWANDER,                           )
                                                 )
               Appellant.                        ) FILED April 2, 2002

     SCHULTHEIS, J. -- Deborah Herwander contends the trial court abused
its discretion when it divided the parties' assets at the conclusion of a
dissolution proceeding.  However, the trial court is in the best position
to ascertain the parties' assets and liabilities and to make a fair, just,
and equitable property distribution under the particular circumstances
presented in each case.  In re Marriage of Brewer, 137 Wn.2d 756, 769, 976
P.2d 102 (1999).  Finding the trial court properly divided the parties'
assets, we affirm its decision and deny the parties' requests for fees and
costs on appeal.
FACTS
     The former Deborah Eslinger met Robert Herwander in the winter of
1992.  Each had been previously married and owned significant assets,
primarily real estate.  The parties decided to move in together at some
point in 1993.  Deborah claims it was in November; Robert claims it was in
July.  The couple eventually married on October 5, 1994 and separated 10
months later on August 3, 1995.  Mr. Herwander filed a petition for
dissolution one week later.
     At the conclusion of a lengthy trial, the court determined that Ms.
Herwander owned the following separate property prior to her relationship
with Mr. Herwander:  (1) a large home on 10th Avenue; (2) a house on
Sunset; (3) a duplex on Viola; (4) 20 acres in Ellensburg; and (5) a 10-
unit apartment building in Zillah.  The court determined that Mr. Herwander
owned the following separate property prior to his relationship with Ms.
Herwander: (1) a fourplex on 60th Avenue; (2) a triplex on Folsom; and (3)
a duplex on Prasch.  The court found that the parties opened a joint
checking account at the Yakima Valley Credit Union (hereinafter the Sundex
account) in May 1993, which continued to be used by the parties for joint
expenses until after their separation.  The Herwanders also acquired the
following real property during their relationship: (1) a home on Rock
Avenue; and (2) unimproved property on 80th Avenue.
     Ms. Herwander is a registered nurse.  Prior to her relationship with
Mr. Herwander she worked at a hospital part time and operated an adult
family home (AFH) in her home on 10th Avenue.  During their relationship
the parties agreed to combine their resources and talents to expand the AFH
business.  As a result, they made significant changes to property they
already owned and purchased the above mentioned community property.
     Mr. Herwander is a disabled Vietnam veteran who receives a pension
from the government.  He is an experienced contractor and used those skills
to remodel, repair, and modify some of the properties to accommodate the
couple's AFH business.  Mr. Herwander also repaired, maintained, and helped
manage Ms. Herwander's apartment building in Zillah.
     In October 1993, Ms. Herwander (then Ms. Eslinger) moved her AFH
business into Mr. Herwander's fourplex, which had been renovated to
accommodate the business.  Ms. Eslinger signed a lease agreement with Mr.
Herwander to rent the home for $2,000 per month.  This agreement continued
until a few months after the parties separated.
     The issues involved in the distribution of property have been ongoing
for many, many years.  A trial was held in the Yakima County Superior
Court.  At its conclusion the court sent the parties a letter opinion,
dated August 12, 1998, in lieu of an oral opinion, which set forth the
property division.  The court specifically stated that in making the
distribution it attempted to award the property brought to the relationship
back to its original owner.  After doing so, the community property assets
and liabilities were then divided.  Both sides filed motions for
reconsideration with supporting documentation.  As a result, the court
filed a second letter opinion, dated June 10, 1999.  The court specifically
addressed issues regarding 12 additional items of personal and real
property disputed by the parties.
     Findings of fact and conclusions of law and a decree dissolving the
Herwanders' marriage were filed January 21, 2000.  Ms. Herwander filed a
timely appeal and Mr. Herwander, acting pro se, initially filed a cross-
appeal.  Once Mr. Herwander obtained an attorney, his cross-appeal was
abandoned.
ANALYSIS
     The trial court has broad discretion to award property in a
dissolution action and that decision 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).  Property distribution decisions are
difficult, at best, and the emotional and financial interests of the
parties are best served by finality.  In re Marriage of Landry, 103 Wn.2d
807, 809-10, 699 P.2d 214 (1985).  Factual issues will not be retried on
appeal.  Consequently, the trial court's findings of fact will be upheld on
appeal as long as they are supported by substantial evidence in the record.
In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991).
     The Legislature has listed factors that should be considered when
courts divide the parties' property in a dissolution action: '(1) The
nature and extent of the community property; (2) {t}he nature and extent of
the separate property; (3) {t}he duration of the marriage; and (4) {t}he
economic circumstances of each spouse at the time the division of property
is to become effective . . . .'  RCW 26.09.080.  The court should also
consider the age, health, physical condition, education, and future earning
prospects of the parties.  Friedlander v. Friedlander, 80 Wn.2d 293, 305,
494 P.2d 208 (1972).
A.  Property Distribution
     Ms. Herwander contends the trial court failed to divide the real and
personal property in a just and equitable manner.  Specifically, she
assigns error to the court's findings of fact, paragraphs 2.4 (concerning
the date the meretricious relationship commenced), 2.9 (concerning each
party's separate property), 2.14 (concerning the lack of an award of fees
and costs), and 2.20 (concerning the community property debts).  Ms.
Herwander takes issue with the court's findings regarding: (1) the date the
meretricious relationship began; (2) the value of Mr. Herwander's Honda
Oddyssey; (3) the award of $2,000 back rent to Mr. Herwander for August
1995; (4) monies owed Mr. Herwander regarding the Viola property when no
value was assigned; (5) monies owed Mr. Herwander regarding the Sunset
property; (6) monies owed Mr. Herwander for labor performed on the Zillah
apartments; (7) the value of the 60th Avenue property; (8) rents received
postseparation on the Rock Avenue property; (9) unfair distribution of
separate property assets; and (10) distribution of the Sundex account.  Mr.
Herwander, on the other hand, believes the trial court properly divided the
property because it allowed each party to retain their separate property
and the remaining property was fairly and equitably distributed with
respect to the equitable liens/reimbursements.  We agree with Mr.
Herwander.
1.  Rent
     Ms. Herwander first claims the trial court abused its discretion in
determining she owed Mr. Herwander $2,000 for rent that had been due since
August 1995.  She contends the evidence supports her position that she had
already paid the August rent prior to the parties' separation.  Apparently
the court was not convinced by her claim.  Because we are required to defer
to the court's factual findings that are supported by substantial evidence,
and the evidence does not prove that the August 1995 rent was paid, we
reject Ms. Herwander's position.  The trial court's ruling was proper.
2.  Costs of labor
     Ms. Herwander next argues that the court abused its discretion in
awarding Mr. Herwander $5,000 for labor he performed on Ms. Herwander's
separate property apartment building.  In its first memorandum decision the
court determined that Mr. Herwander had spent nine months 'of hard work'
cleaning, repairing, and maintaining the apartment building.1  He also
enlarged the storage area in the basement of the building and collected
rent from the tenants.  Even so, the court initially denied Mr. Herwander's
request for reimbursement for his community property contribution to Ms.
Herwander's separate property.  After considering the parties' posttrial
motions the court concluded substantial evidence supported the fact that,
on the date of separation, the apartments had increased in value due to Mr.
Herwander's construction and management skills.  Although he requested
$15,000 the court determined $5,000 was more appropriate.  This was a
factual determination for the court based on Mr. Herwander's testimony.
Credibility determinations lie solely with the trial court and are not
reviewed on appeal.  In re Pers. Restraint of Gentry, 137 Wn.2d 378, 410-
11, 972 P.2d 1250 (1999).  As such, we cannot say the court abused its
discretion.
3.  Valuation of assets
     Ms. Herwander's next challenge concerns her assertion that the trial
court erred when it failed to value all the assets in the decree of
dissolution so that an equitable property division could be accomplished.
The particular pieces of real and personal property affected by the claimed
error are set forth below.
a.  Honda Oddyssey
     Ms. Herwander claims the trial court abused its discretion in setting
the value of the Honda Oddyssey at $3,000.  She claims there was no
evidence presented at trial regarding the value of the vehicle and that the
court had no evidence regarding its value prior to Mr. Herwander's motion
on reconsideration.  She is incorrect.  Mr. Herwander testified at trial
that the Honda Oddyssey, a dune-buggy type vehicle, was worth $5,000 on the
date he transferred the title to Ms. Herwander.2  Substantial evidence in
the record supports the trial court's decision to value the dune buggy at
$3,000.
b.  60th Avenue
     Ms. Herwander also complains the trial court erred when it failed to
find any increase in value in the property located at 406 South 60th
Avenue.  She contends the court's decision had an adverse impact on the
property distribution.  We disagree.  The court first determined Mr.
Herwander owned the property prior to his relationship with Ms. Herwander,
making it his separate property.  It then made a monetary award to Ms.
Herwander for community capital improvements and a percentage increase in
value due to inflation pursuant to the formula set forth in In re Marriage
of Elam, 97 Wn.2d 811, 650 P.2d 213 (1982).  This was not an abuse of
discretion.
c.  Sunset
     Next, Ms. Herwander argues that the trial court abused its discretion
when it awarded Mr. Herwander reimbursement for mortgage payments made from
the community bank account toward the contract owing on the Sunset
property, which was awarded to Ms. Herwander as separate property.  The
court rejected Mr. Herwander's request for capital expenditures on the
property because there was no evidence the house had increased in value and
because he received the benefit of living there while the community made
the mortgage payments.  The only award to Mr. Herwander regarding this
property was a pro rata claim for reimbursement from the community bank
account for mortgage payments made after the couple separated.  This was
not an abuse of discretion.
d.  Zillah apartments
     Ms. Herwander also believes the court abused its discretion when it
reimbursed Mr. Herwander for his separate property monetary contributions
to the Zillah apartments, which was awarded to Ms. Herwander as separate
property.  We disagree.
     The court carefully considered notebooks full of financial records in
order to determine which mortgage payments on these apartments came from
which account and where the rent receipts were deposited in order to
determine whether the bank accounts were community or separate in nature.
The parties' credibility also played an important part in the final
decision.  In the final analysis, because the court could not clearly
determine which deposits to the community account came from community
efforts, Mr. Herwander's request for reimbursement for mortgage payments
and capital improvements from the community account was denied.  However,
the court was able to trace more than $5,800 to Mr. Herwander's separate
funds, which the court allowed to be refunded.  Under the facts of this
case, this determination was not an abuse of discretion.
e.  Viola
     Likewise, Ms. Herwander contends the trial court abused its discretion
when it determined Mr. Herwander was entitled to reimbursement for
contributions made to the Viola property, which was awarded to Ms.
Herwander as separate property.  She is incorrect.
     The court determined Ms. Herwander owned the duplex located on this
property prior to her relationship with Mr. Herwander.  Shortly after the
meretricious relationship began Mr. Herwander began to convert the duplex
into an adult family home.  He gutted the inside of the building but had
not commenced the reconstruction process prior to the couple's separation.
Nevertheless, for many months Ms. Herwander continued to make the monthly
mortgage payments on property that was no longer generating income for her.
The court determined that as of the date of separation the home had not
increased in value due to community effort so Mr. Herwander had no right of
reimbursement for community contributions or for capital improvements.
However, it awarded him a small sum due to his separate contribution made
to keep the property from going into foreclosure.  It also allowed an
offset for his pro rata share of community funds that were expended on
mortgage payments made after the date of separation.  This was proper.
f.  Rock Avenue
     Ms. Herwander next complains about the court's valuation and
distribution of the Rock Avenue property.  The court reviewed financial
documents and the parties' testimony and determined the Rock Avenue
property was purchased in September 1994, during the parties' cohabitation.
It found they intended this to be a community asset.  Substantial evidence
in the record supports this finding.  The court then exercised its
discretion and awarded the property to Mr. Herwander subject to a lien by
Ms. Herwander for her community share minus half the value of building
materials she removed after separation, minus half of the fee that
prevented foreclosure on the property, and minus half the 1995 taxes on the
property.  Although Ms. Herwander may be unhappy with the court's
distribution it was not an abuse of discretion.
g.  Sundex account
     Ms. Herwander also maintains the court abused its discretion in
valuing the contributions each party had made to the community Sundex
account.  The court determined Ms. Herwander had contributed 60 percent and
Mr. Herwander had contributed 40 percent.  These figures are supported by
substantial evidence in the record.
     We take special note that the trial court labored for years over the
details of this case as it attempted to untangle the parties' separate and
community property, which had been commingled even prior to cohabitation.
The details of the court's distribution are set forth in its findings and
two extremely thorough and well-written memorandum decisions.  The court
deliberately awarded each party the property they owned prior to
cohabitation.  It also appropriately reimbursed the parties for separate
contributions made toward the maintenance and renovation of the other
party's separate property and the community property.  Finally, it awarded
each party one of the two remaining pieces of property that had been
purchased during the marriage.  The distribution was fair, equitable, and
made in a conscientious manner after the court had considered all the facts
and circumstances presented by the parties.  Although Ms. Herwander may not
be pleased with the court's division of assets and liabilities, she is
unable to overcome her burden of proving that the court's distribution was
manifestly unreasonable or based on untenable grounds.
B.  Attorney Fees
     At the time the dissolution was entered, both Mr. and Ms. Herwander
were ordered to pay their own attorney fees and costs.  Ms. Herwander
claims this was in error.  She asserts that she demonstrated a need for
fees at trial.  Additionally, she requests fees and costs on appeal.  Mr.
Herwander also requests fees and costs on appeal, asserting he has
demonstrated a need and Ms. Herwander has pursued a frivolous appeal.
     RCW 26.09.140 gives the trial court authority to award attorney fees
in domestic relations proceedings.  An award under this provision is
discretionary and neither party is entitled to attorney fees as a matter of
right.  In re Marriage of Leslie, 90 Wn. App. 796, 805, 954 P.2d 330
(1998).  In making its determination whether fees and costs are justified,
the trial court considers the financial resources of both parties,
balancing the needs of the requesting party against the other party's
ability to pay.  Id.
     At trial, the court followed this procedure before determining the
Herwanders were able to pay their own fees and costs at trial.  The court
also noted that attorney fees were previously awarded to each of the
parties during the dissolution process.  Substantial evidence in the record
supports this finding.  The court's refusal to award fees and costs at
trial was not an abuse of discretion.
     In determining whether an award of fees and costs is appropriate on
appeal, we must consider the parties' relative abilities to pay and the
arguable merit of the issues raised on appeal.  Id. at 807.  In this case,
Ms. Herwander's arguments on appeal were meritorious, albeit unsuccessful.
Mr. Herwander submitted an affidavit of financial need pursuant to RAP
18.1(c).  Due to the financial assets of each party after dissolution it
cannot be said that either of these parties is in a much better financial
position than the other one.  Consequently, each party is ordered to pay
their own fees and costs on appeal.
     Affirmed.
     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.
                    /s/
                    Schultheis, J.
WE CONCUR:

/s/                                /s/
Sweeney, J.              Kurtz, J.

1 Clerk's Papers at 58.
2 Report of Proceedings (June 1, 1998) at 73-74.