Jenna Kass, V. Andrew Kass

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

JENNA KASS,

Respondent, No. 86834-9-I

v.

DIVISION ONE

ANDREW KASS,

Appellant. UNPUBLISHED OPINION

CHUNG, J. — Andrew Kass appeals a trial court’s final orders dissolving his

marriage to Jenna Kass. He contends the trial court erred by determining there was not

an oral prenuptial agreement between the parties that changed the character of

community property to separate property and by imposing an equitable lien against his

separate property. He also argues the trial court erred when it denied his motion for

reconsideration as untimely. We disagree and affirm.

FACTS

Jenna Pierce, formerly known as Kass, and Andrew Kass met in 2012 while they

were both employed at Microsoft. The parties each have children from previous

marriages, but they have no biological or adopted children together. In March 2014, the

parties became engaged to be married. At that time, the parties lived in separate

homes. Jenna 1 owned two separate parcels of real property and Andrew lived in a

home in Sammamish, which he owned as his separate property.

1 Because the parties shared a last name at the time of the trial court proceedings, we use their

first names for clarity.

No. 86834-9-I/2

As the parties discussed the prospect of marriage, Andrew remained

apprehensive in some respects because of a prior bitter divorce experience. He

believed that his previous wife had taken advantage of him by trying to acquire his

separate property. Despite some discussion about finding a new home for the parties

and their children to live in, the parties ultimately decided that Jenna and her son would

move into Andrew’s Sammamish home. To ease Andrew’s lingering unhappiness about

his first divorce, Jenna decided she should sell her two parcels of real property to pay

off her debt, which she believed would alleviate financial concerns associated with

starting a new marriage with Andrew.

It is undisputed that the parties discussed the prospect of a prenuptial agreement

and that as the wedding date approached, Jenna remained open to such an agreement.

Andrew testified that he discussed the issue at a “high level” and presented Jenna with

a “general outline” of the prenuptial agreement that he contemplated. Jenna testified

that Andrew remained angry about his experience in the first divorce and brought up

that theme during their discussions.

The only writing in evidence concerning the prospect of a prenuptial agreement is

an email dated October 16, 2014, entitled “Wedding Stuff.” In pertinent part, Jenna

wrote to Andrew:

[W]e have talked about a prenup and really need to nail that down in the

next 4-6 weeks to avoid working through this during the holidays or last

minute. Can you please work on that and get me a copy so Kurt[2] can

review[?] I can get you a list of current assets, but I think I may have sold

at least the beach house by Jan. The only other thing I have besides [the]

Renton [house] is my retirement fund and a little stock, both totaling

around $110k.

2 Kurt was Jenna’s attorney.

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In the trial court’s findings, it noted that Andrew did not provide a comparable document

setting forth his assets. The trial court found that Jenna “testified credibly” that she was

generally aware of Andrew’s salary and that he owned the Sammamish home, but she

was not privy to the extent of his retirement savings, other stocks, or exactly how much

he earned through bonuses and restricted stock units (RSUs). It is also undisputed that

Andrew never followed up on Jenna’s request to see a draft of the contemplated

prenuptial agreement. The parties married on January 24, 2015, without executing a

written prenuptial agreement.

Jenna filed a petition for dissolution on January 6, 2023. The trial occurred on

May 14-16, 2024, in King County Superior Court.

At trial, during a portion of his cross-examination, Andrew was asked when the

parties made an “oral prenuptial agreement.” He could not recall an exact date but

believed it may have been in July 2014 and that they “probably” discussed it in his home

office. Andrew testified that he proposed that going forward, the parties would pool their

salaries and cash bonuses for monthly financial operations. But as to his home and

retirement assets, Andrew claimed he told Jenna that after they married, he wanted to

keep them as his separate property and that she could keep her retirement accounts

separate. He also testified that the salary pooling would allow Jenna to maximize her

retirement contributions and thereby “build equity” more efficiently. Andrew claimed that

Jenna agreed to this arrangement, in part because she purportedly said she “would

never go after [his] money.”

Jenna “hotly disputed” any such “oral prenuptial agreement” and insisted that she

had never heard that term until the dissolution litigation began. To the contrary, she

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testified that if she had been aware of any prenuptial agreement, she would not have

sold her separate real property and would have managed her debt differently. She also

testified that she never sought to claim any of Andrew’s separate assets, which she

understood to be the assets he acquired before the marriage.

Jenna did not dispute that the Sammamish home was Andrew’s separate

property, but she did assert the community was entitled to an interest in it based on its

contributions during the marriage. Specifically, she offered testimony about the type of

improvements on the house during the marriage, the cost of that work, and her

management of those projects. Based on these contributions from the marital

community, Jenna requested an equitable lien against the Sammamish home.

After trial, the court issued its findings and conclusions about the marriage.

Regarding the issues on appeal, the court found that there was no oral prenuptial

agreement and that the community was entitled to an equitable lien on the Sammamish

home due to its contributions toward improvements.

After the court entered its final dissolution orders on May 30, 2024, Andrew

moved for reconsideration, arguing the equitable lien should either be removed entirely

or reduced to the “actual cost of the money expended without appreciation.” The motion

was originally set for consideration without oral argument on June 21, 2024, but Andrew

subsequently struck this initial hearing and re-noted his motion for July 5, 2024. On

July 5, 2024, the trial court denied Andrew’s motion as untimely because the motion

was not noted within thirty days of entry of the final orders, as required by CR 59(b).

Andrew timely appeals. 3

3 Before receiving a ruling from the trial court on his motion for reconsideration, Andrew filed an

initial notice of appeal from the final orders on June 25, 2024. He then filed another notice of appeal on

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DISCUSSION

Andrew argues that the trial court erred when it determined there was no oral

prenuptial agreement. He further contends that the trial court erred when it applied an

equitable lien to his separate property, arguing that Jenna’s expert incorrectly

determined, according to Internal Revenue Service (IRS) standards, which projects

qualified as “capital expenditures” and thus could be considered as a portion of the

overall value of the Sammamish home. He also argues the trial court erred as a matter

of law when it denied his motion for reconsideration as untimely.

I. Oral prenuptial agreement

Andrew contends that the trial court erred when it found there was no oral

prenuptial agreement establishing that he and Jenna “each would keep all accounts in

their own names separate and each would keep their own future retirement savings

(401ks, IRAs, etc.) and their own stock awards.” He asserts that clear and convincing

evidence supported a finding that “all separate property before the marriage remained

the separate property of each.”

“All property acquired during a marriage is presumed to be community property,”

and “[t]he law favors characterization of property as community property unless there is

no question of its separate character.” In re Marriage of Mueller, 140 Wn. App. 498,

504, 167 P.3d 568 (2007). “A spouse may overcome this heavy presumption with clear

and convincing evidence of the property’s separate character.” Id. “ ‘[C]lear, cogent, and

convincing’ evidence is a quantum of proof that is more than a preponderance of the

evidence, but less than what is needed to establish proof beyond a reasonable doubt.”

July 11, 2024, after the trial court denied his motion. This court treated this second notice as an amended

notice of appeal in Andrew’s original appeal.

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Mueller v. Wells, 185 Wn.2d 1, 10 n.5, 367 P.3d 580 (2016) (quoting Bland v. Mentor,

63 Wn.2d 150, 154, 385 P.2d 727 (1963)).

One of the ways a spouse may overcome this burden is by proving the existence

of either a written or oral agreement that changed the status of their community property

to separate property. Mueller, 140 Wn. App. at 504. “A spouse seeking to enforce an

agreement, whether oral or written, that purports to convert community property into

separate property must establish with clear and convincing evidence both (1) the

existence of the agreement and (2) that the parties mutually observed the terms of the

agreements throughout their marriage.” Id. (citing Kolmorgan v. Schaller, 51 Wn.2d 94,

98, 316 P.2d 111 (1957)). “Because oral agreements are more difficult to prove, courts

will overturn an oral property agreement if the parties do not consistently adhere to the

agreement during their marriage.” Id. at 504-05.

“[W]here the evidentiary standard is clear and convincing, we uphold the trial

court’s findings of fact if they are supported by ‘highly probable’ substantial evidence.”

Id. at 505. “Reviewing a trial court decision under this standard does not permit us to

weigh evidence, which is a trial court function.” Id. “We merely review the factual

findings to determine whether they are properly supported by substantial evidence, and

whether they in turn support the legal conclusions.” Id.

In DewBerry v. George, this court explicitly addressed the validity of spouses’

purported oral agreement regarding the character of property and found clear, cogent,

and convincing evidence of an oral separate property agreement. 115 Wn. App. 351,

355, 62 P.3d 525 (2003). Prior to the marriage, the parties agreed to the following

conditions: “(1) [one of the spouses] would always be fully employed; (2) each party’s

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income and property would be treated as separate property; [and] (3) each party would

own a home to return to if the marriage failed.” Id. at 356. Regarding the existence of

the agreement, “several witnesses testified that the parties created an oral prenuptial

agreement and that [the spouses] acted in accordance with that agreement.” Id. at 362.

Furthermore, the record reflected “painstaking and meticulous effort to maintain

separate finances and property.” Id. at 356. Indeed, “during their marriage, [the

spouses] deposited their incomes into separate accounts which they used for their

personal expenses and investments.” Id. Accordingly, because there was evidence of

the agreement, as well as evidence of the parties’ performance of the agreement, this

court held the agreement satisfied the statute of frauds and was legally enforceable. Id.

at 363.

In contrast, in Mueller, this court held that there “was no oral agreement changing

the presumptive character of the property as community.” 140 Wn. App. at 503. One

spouse attempted to prove an oral agreement that they would “divide the remainder of

[one spouse’s] income after the payment of joint expenses.” Id. at 502. The parties

disputed “the exact circumstances of this discussion” to this effect, including “who did

what proportion of the talking, and exactly what was said.” Id. The testimony showed

that “they each objectively manifested different intents,” and the spouse looking to prove

the existence of the agreement “offered no evidence that [the other spouse] intended to

change the legal ownership of the property . . . [and] did not mention the legal status of

the property . . . or explain to [the other spouse] that [they] would be waiving [their]

community interest in [the other spouse’s] half of the income.” Id. at 507. Instead, “[t]heir

only objective manifestation of intent was an agreement to divide [] income for

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management purposes.” Id. Furthermore, after the spouses allegedly entered into the

agreement, “the evidence shows that they somewhat consistently managed their money

separately throughout the marriage.” Id. at 508. While there were instances that

reflected each party adhering to such an agreement, the record also reflected times that

one spouse would spend from their half of the income for joint expenses, thus benefiting

the community. Id. Accordingly, the reviewing court could not conclude an agreement

existed or that the parties consistently adhered to said agreement throughout the

marriage. Id.

Here, Andrew challenges finding of fact (FoF) 18, in which the trial court found

that Andrew did not prove by clear, cogent, and convincing evidence that “there was

any oral prenuptial agreement,” and FoF 19, in which the court found there was no

“evidence that the parties unmistakably acted as if there were an agreement.” We

conclude that substantial evidence supports these findings, as well as the trial court’s

related findings.

On appeal, Andrew argues that there was “uncontradicted evidence” that the

parties purportedly “agreed that their separate property before marriage would remain

their separate property thereafter.” However, this iteration of the alleged agreement is

not what Andrew presented at trial. Rather, at trial, he claimed they agreed to treat

“retirement funds, 401k, stocks” earned during the marriage as the separate property of

each spouse. 4 He testified that this “clear, firm agreement” came about around July

2014 at his home and alluded to “reduc[ing] it to paper.” However, it is undisputed that

no writing related to a prenuptial agreement was ever produced at trial. And while Jenna

4 The trial court found that Andrew first asserted a separate property interest in retirement assets

and RSUs earned post-marriage in an interrogatory response.

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No. 86834-9-I/9

agreed that “all separate property from before [the] marriage could be separate property

ongoing,” she denied discussing, much less agreeing, that retirement funds and RSUs

earned by each of them during the marriage would be converted from a community

asset to a separate asset.

As an initial matter, Andrew challenges the trial court’s FoF 16 that as to the

existence of an oral prenuptial agreement, Jenna’s testimony was “more credible than

[Andrew] on [the] issue” 5 because “credibility was not at issue.” But aside from Jenna’s

October 16, 2014, email, the only evidence on the matter was Andrew’s and Jenna’s

testimony. Thus, their credibility was indeed at issue. And “[c]redibility determinations by

the finder of fact are not reviewable.” In re G.W.-F., 170 Wn. App. 631, 641, 285 P.3d

208 (2012).

In addition to challenging the finding that Jenna was more credible, Andrew also

challenges other findings relating to the existence of an oral prenuptial agreement.

Though Andrew broadly assigns error to the entirety of FoF 16, he presents no

persuasive argument supports his claim that the court’s findings were not supported by

substantial evidence. FoF 16 states accurately that Andrew testified to presenting a

“general outline” to Jenna. He also testified that he “believed that we were both on the

same page, that . . . we would get [a prenuptial agreement] and that the high-level

principles were set.” In addition, the court found in FoF 16 that while Andrew testified

that he and Jenna “sat down and made notes about which assets would be ‘easy’ to

5 More specifically, FoF 16 states, “[Andrew’s] claim of an ‘oral’ prenuptial agreement is murky,

implausible, and unpersuasive. First, the existence of an oral agreement is based only on [Andrew’s] self-

serving testimony. The Court also finds [Jenna] more credible than [Andrew] on this issue. . . . The Court

is also incredulous that [Andrew], who otherwise is and touts himself to be a sophisticated actor, and also

was so adamant about not repeating the terrible experience of his first divorce, would not have taken

more deliberate and effective steps in documenting any such agreement had one in fact existed.”

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figure out were joint or separate,” no notes were available as evidence. The court also

found that Andrew did not discuss these alleged notes when he testified about “the

specific agreement that purportedly occurred in July 2014,” and Andrew does not

identify any evidence to the contrary. Like the spouse in Mueller, 140 Wn. App. at 509,

who failed to offer evidence of intent to convert community property into separate

property, Andrew failed to present evidence that he and Jenna agreed to change the

legal status of their property or that he explained to her that if they did so, she would be

waiving her community interest in his half of the retirement benefits and RSUs. We

conclude that FoF 16 was supported by substantial evidence.

Andrew also challenges the related FoF 17, which stated:

More telling of no agreement, at least as to critical details, was the

October 16, 2014 email where [Jenna] clearly wanted to “work[] through”

this issue of a prenuptial agreement and review [Andrew’s] terms with her

lawyer. See Ex. 343. Even if this July 2014 discussion/agreement really

took place, the October 16, 2014 email belies any meeting of the minds

about the specific points, much less [Jenna’s] assent, because she

expressly wanted to review any agreement with her lawyer.

Andrew also challenges a portion of FoF 8 that this October 16 “email was consistent

with [Jenna’s] testimony that despite [Andrew’s] articulated interest in a prenuptial

agreement she did not know the specifics of any contemplated agreement.” But, as

discussed above, the court found Jenna’s testimony more credible, and Jenna testified

that she asked for further details on the prenuptial agreement months after the July

2014 meeting with a stated desire for her lawyer to review it. Consequently, even if

Andrew testified otherwise, substantial evidence supports the finding in FoF 17 that

Jenna’s October 2014 email “belie[d] any meeting of the minds about specific points” in

any prenuptial agreement to the contrary, as well as the court’s finding that “even

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No. 86834-9-I/11

assuming [Jenna] told [Andrew] that she ‘would never go after [his] money,’ this pledge

does not translate into any agreement to forgo a claim to a significant portion of the

parties’ community property, which includes [Andrew’s] retirement assets and RSUs

acquired during the marriage.” 6

We also conclude that based on the findings discussed above, along with the

court’s other findings relating to the existence of an agreement, the trial court correctly

determined in FoFs 19 and 20 that Andrew failed to prove by clear, cogent, and

convincing evidence that there was an oral prenuptial agreement to change the

character of his retirement assets and RSUs from community to separate property. The

court explained in findings 19 and 20,

[19.] Unlike [in] DewBerry, there were no witnesses to an initial agreement

or any later events that are consistent with [Andrew’s] claim that he could

legitimately claim as separate property retirement assets, RSUs, and other

compensation he received from Tableau or Elasticsearch during the

marriage. Although the parties’ retirement accounts largely bear only one

name as the account holder, this appears to be due to a default

designation by the employers who set up the accounts. And as to the

much disputed E-Trade account, this account does have both parties’

names as account holders. And the parties regularly received statements

showing that designation, see, e.g., Exs. 263 and 328, despite [Andrew’s]

testimony that he only looked at statements online and mistakenly

believed he was the only account holder . . . .

20. Here, contrary to Mueller and DewBerry, questions abound about how

the parties treated [Andrew’s] retirement assets and RSUs received during

the marriage. There was no oral agreement to change the character of

these assets. The Court finds that they are community assets as set forth

in Exhibit 1, the Asset and Debt Spreadsheet.

6 The court also stated, “As a legal matter, RSUs earned during the marriage are no less ‘her

money’ than ‘his money’ because they belong to the marital community.” While it is labelled a finding, the

second sentence is a conclusion of law and, as such, subject to de novo review. Union Local 1296,

Intern. Ass’n of Firefighters v. City of Kennewick, 86 Wn.2d 156, 162, 542 P.2d 1252 (1975) (“if what is in

fact a conclusion of law is wrongly denominated a finding of fact, it is, nevertheless, subject to review.”).

But Andrew does not provide argument or authority challenging the court’s statement that RSUs earned

during the marriage are community property.

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These findings are supported by substantial evidence. Andrew did not present

testimony supporting his claim that retirement assets, RSUs, and other compensation

earned during the marriage should be treated as separate property. Rather, Andrew

testified that it was his employers who put his 401k funds and RSUs into accounts in his

name simply “as an employee.” Moreover, Exhibits 263 and 328 and supporting

testimony from Jenna also demonstrated that both parties were account holders of the

E-Trade account, even though Andrew testified he mistakenly believed he was the only

account holder.

The court further stated in FoF 19, “[A]lso unlike DewBerry and G.W.F., the

parties did not meticulously account for and handle their individual incomes as separate

property, and in fact they created major joint accounts where they not only paid day-to-

day expenses, but they also deposited some of their stock holdings in a JP Morgan

account to allow for joint investments.” Substantial evidence supports this finding as

well.

The record also shows that the parties did not adhere to a mutually agreed upon

arrangement to treat income, retirement accounts, or RSUs as separate property.

Andrew and Jenna both acknowledged that at the beginning of the marriage, the two

opened a joint account where they deposited all their income and bonuses and paid for

“all of [their] expenses”—i.e., it was used for joint needs but was also put toward

separate assets. However, Andrew testified that it was his employer, not him, who put

his 401k funds and RSUs into accounts in his name as an employee. Furthermore, the

one account at issue that the parties themselves established—the E-Trade account

holding Andrew’s Elasticsearch RSUs—was in both parties’ names. Although Andrew

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specified this action was accidental, he also acknowledged that both parties regularly

received statements for this account that identified both parties as account holders.

Finally, Andrew acknowledged that he paid for a portion of another home the parties

owned together—the Suncadia house— by cashing out shares from an alleged

separate account and depositing them into their joint account. Therefore, substantial

evidence supported the trial court’s findings that the parties did not consistently adhere

to an oral agreement to keep separate property separate throughout the marriage.

Thus, the trial court did not err by finding Andrew failed to present clear, cogent,

and convincing evidence of an oral agreement to treat certain property and accounts as

separate property and, therefore, failed to overcome the presumption of community

property.

II. Equitable Lien on the Sammamish Home

Andrew next challenges the trial court’s award to Jenna of an equitable lien on

the Sammamish home. At trial, Jenna presented the testimony of Michael Moss—a

certified public accountant (CPA)—who the trial court qualified as an expert. On appeal,

despite challenging a series of findings related to the topic, Andrew asserts that the

issues he raises “are legal ones, i.e., whether Mr. Moss’s determination of what he

considered capital expenditures rather than repairs/maintenance was consistent with

the IRS standards he relied on to make the determination, whether Mr. Moss improperly

calculated passive appreciation into the amount of the equitable lien, and whether the

court erred by agreeing and adopting his analysis.”

Community property contributions to separate property can give rise to a

“community right of reimbursement protected by an equitable lien.” In re Marriage of Kile

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and Kendall, 186 Wn. App. 864, 884, 347 P.3d 894 (2015). Ordinarily, “the measure of

recovery is dollar for dollar, rather than a portion of the increase in value.” In re Marriage

of Wakefield, 52 Wn. App. 647, 652, 763 P.2d 459 (1988). The presumption is that the

increase in value of separate property remains separate property. Elam v. Elam, 97

Wn.2d 811, 816, 650 P.2d 213 (1982). However, “[t]his presumption may be rebutted by

direct and positive evidence that the increase is attributable to community funds or

labors.” Id. “This rule entitles each spouse to the increase in value during the marriage

of his or her separately owned property, except to the extent to which the other spouse

can show that the increase was attributable to community contributions.” Id. at 816-17.

In those instances, “the community should be entitled to a share of the increase in value

due to inflation in proportion to the value of community contributions to the property.” Id.

at 817.

We review a trial court’s determination that the community contributed funds to

one party’s separate property for substantial evidence. Kile, 186 Wn. App. at 884. A trial

court’s decision to impose an equitable lien is reviewed for an abuse of discretion.

Miracle v. Miracle, 101 Wn.2d 137, 139, 675 P.2d 1229 (1984).

It is undisputed that the parties recognized the Sammamish home as Andrew’s

separate property and that the home had increased in value from the time of the

marriage to the date of separation. By the time of trial, the Sammamish home had a fair

market value of $2.75 million and a mortgage balance of $421,013. Over the course of

the marriage, the tax-assessed value of the home increased from $1.208 million in 2015

to $2.691 million in 2022. The parties did not dispute these values. And Jenna did not

request reimbursement for the community’s payment of the monthly mortgage, property

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taxes, and maintenance over the course of the marriage. But Jenna asserted the

community was entitled to an equitable lien for its contributions during the marriage.

Andrew assigns error to several findings relating to the value of the community’s

contributions to the home, 7 including FoF 39, which states,

In regard to the Sammamish home, the parties agree that in general this

real property should be characterized as separate because [Andrew]

purchased the home before his second marriage, and during the second

marriage he was the only obligor on the mortgage. [Jenna] contends

nonetheless that she is entitled to an equitable lien because during the

marriage the parties completed, inter alia, several capital improvement

projects, including a deck replacement, with hot tub addition; major interior

painting; carpet replacement; and floor re-finishing. See Exs. 7-19. The

total community funds expended on these projects was $131,575. Ex. 4.

[Andrew] counters that these projects, done periodically over 8-year

marriage, reflect upkeep to maintain the home among wear-and-tear from

a family of 4 children and a dog.

FoF 39 largely restates the parties’ positions. However, more specifically, Andrew

challenges the court’s findings that the value of the community funds expended on

capital improvement projects was $131,575, which were based on Jenna’s testimony

and that of her valuation expert, CPA Moss, as well as exhibits entered into evidence.

These findings included the following:

41. [Jenna] relied on the analysis of Michael Moss whose report and

testimony were offered to support a gross amount of $131,575 spent in

community assets that underpinned the equitable lien against the value of

the Sammamish home (appraised at a gross value of $2,725,000). See

Ex. 4. Mr. Moss reviewed several invoices (Exs. 7-19), which featured a

description of work, to determine whether the projects were mere

7 Andrew additionally assigns error to FoF 45, which distinguished this case from Miracle v.

Miracle, 101 Wn.2d 137, 675 P.2d 1229 (1984). In Miracle, our Supreme Court affirmed a trial court’s

decision to refuse “to impose an equitable lien in favor of the community in view of the finding that the

community had been adequately compensated for its expenditures by its beneficial use of the premises.”

Id. at 139. At trial, Andrew argued that Miracle precluded the grant of an equitable lien because the

community “received a reciprocal benefit flowing from the use of the property.” Because he fails to

present argument or authority on the issue in his opening brief, the argument is waived. See Smith v.

King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986) (“The basis of this assignment of error is neither

stated nor argued, nor is any legal authority bearing on that issue cited. Accordingly, we consider this

assignment of error waived.”).

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repairs/maintenance, or capital improvements. Using decades of

experience making similar determinations for tax purposes, where one

defines a capital expenditure as a project that restores the condition of the

home to the status quo or improves it, Mr. Moss opined credibly that

capital expenditures include those projects that remodel or replace whole

parts of a home (such as a roof, deck, carpets, floors, etc.), versus repairs

that provide mere maintenance or fix discrete parts (such as replacing a

carpet tile, fixing a hole in the roof, or mowing the lawn).

42. Based on this analysis, Mr. Moss calculated that the parties spent a

total of $131,575, in piecemeal expenditures from 2017 to 2022. For each

year he determined a discrete percentage that each capital improvement

represented vis-à-vis the overall value, and then aggregated the

percentages at 8.53%. Mr. Moss then applied the percentage to the equity

in the Sammamish home to calculate the gross community property share

($232,443). [Andrew] offered no competing expert opinion as an

alternative to or critique of Mr. Moss's analysis.

43. The Court agrees with and adopts Mr. Moss’s analysis.

Here, substantial evidence supported the trial court’s findings that the increase in

value of the home was not due solely to inflation but was instead attributable to

community funds and labor. The record includes Jenna’s testimony regarding the work

performed on the house during the marriage and her management of those projects,

including remodeling the “entire back of the outside of the house” with a hot tub

addition, installing a new outdoor lighting plan, redoing the landscaping, updating the

flooring, painting the interior and exterior of the house, installing new shades, replacing

and updating carpets, and replacing windows. Andrew did not dispute Jenna’s

testimony concerning her management of these larger projects.

Aside from Jenna’s testimony on the various projects and her contributions,

Jenna also presented the testimony of CPA Moss. Based on his nearly 40 years of

experience and consulting the IRS standards, he determined whether a project, which

included a description of work, qualified as a “repair” or “capital expenditure.” He

defined a capital expenditure as something that could either restore something to its

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original condition or improve it. The trial court noted Moss “opined credibly” to this

definition, and credibility determinations are not subject to review on appeal. See

DewBerry, 115 Wn. App. at 362.

Moss analyzed various remodels and upgrades on the home during the marriage

and determined that projects valued at $131,575 qualified as “capital expenditures” and,

therefore, he considered that amount as expended community funds that supported an

equitable lien. Based on the amount of community expenditures, Moss took the value of

the remodel costs per year and divided it by the yearly corresponding assessed values

of the home. He then aggregated those yearly percentages and found that the

community had an 8.53% interest in the home. Accordingly, based on the home’s net

value of $2,303,987, Moss concluded the community was entitled to an equitable lien of

$232,433.

Andrew did not offer a competing expert opinion on the value of the community

funds expended on capital improvement projects. On appeal, Andrew primarily argues

that Moss’s determination of what constituted a repair or capital expenditure is

inconsistent with relevant IRS publications and, thus, the court abused its discretion

when it applied an equitable lien based on the analysis. However, at trial, Andrew did

not present any of the IRS publications he attempts to introduce now. In determining

whether substantial evidence supports the trial court’s findings, we are limited to the

record that was before the trial court. Bolser v. Clark, 110 Wn. App. 895, 903, 43 P.3d

62 (2002) (“A trial court’s findings of fact will be upheld as long as they are supported by

substantial evidence in the record.”) (emphasis added).

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Given Jenna’s and CPA Moss’s testimony on the matter and a lack of a

competing expert opinion or other record evidence, substantial evidence supports the

trial court’s findings that the community had spent $131,575 to improve the Sammamish

home. Furthermore, substantial evidence supported the trial court’s finding that the

community’s contributions increased the value of the house by $232,443. Jenna

testified as to how she managed the projects and Moss credibly testified about how

these projects correlated with an increase in the value of the home. And Andrew did not

present any evidence of the amount the house value increased due to the community’s

contributions. In Matter of Marriage of Kaplan, the trial court did not err in accepting an

appraisal value when the other party failed to present evidence to support their claim

that upgrades or repairs would be necessary. 4 Wn. App. 2d 466, 480, 421 P.3d 1046

(2018). Similarly, here, where Jenna presented evidence as to the community

contributions and resulting increase in home value, and Andrew did not, we conclude

the trial court acted within its discretion in concluding that the community was entitled to

an equitable lien of $232,433 on the Sammamish house.

III. Motion for Reconsideration

Andrew argues the trial court committed a legal error and thereby abused its

discretion when it denied his motion for reconsideration as untimely. He contends that

“since the motion for reconsideration was timely served and filed with notice, the

renoted hearing date 30 days after the final orders had no effect on the timeliness of the

CR 59(b) motion.”

CR 59(b), which covers “new trial, reconsideration, and amendment of

judgments,” states that

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[a] motion for . . . reconsideration shall be filed not later than 10 days after

the entry of the judgment, order, or other decision. The motion shall be

noted at the time it is filed, to be heard or otherwise considered within 30

days after the entry of the judgment, order, or other decision, unless the

court directs otherwise.

The court entered its dissolution decree on May 30, 2024. Initially, when Andrew

originally filed the motion for reconsideration on June 10, 2024, he timely noted the

hearing for June 21, 2024. He later re-noted the motion for July 5, 2024. Subsequently,

the trial court denied the motion, stating

[Andrew’s] Motion for Reconsideration of Final Orders is DENIED as

untimely. [Andrew] asked that the matter be heard on July 5, 2024, see

Dkt. 75, which is more than 30 days past the May 30, 2024 date of entry of

final orders. See CR 59(b) (“The motion shall be noted at the time it is

filed, to be heard or otherwise considered within 30 days after the entry of

the judgment, order, or other decision . . . .”).

“Motions for reconsideration are addressed to the sound discretion of the trial

court and a reviewing court will not reverse a trial court’s ruling absent a showing of

manifest abuse of discretion.” Wilcox v. Lexington Eye Institute, 130 Wn. App. 234, 241,

122 P.3d 729 (2005). “A trial court abuses discretion when its decision is based on

untenable grounds or reasons.” Id.

Andrew argues persuasively that he timely noted his motion and that the initial

hearing date is controlling. But even so, his motion failed on the merits, and we may

properly affirm on that basis. See J-U-B Engineers, Inc. v. Routsen, 69 Wn. App. 148,

150, 848 P.2d 733 (1993) (“[W]e may sustain a trial court result on any correct ground,

even though that ground was not considered by the trial court.”). In his motion for

reconsideration, Andrew reiterated his argument that the trial court erred when it applied

an equitable lien to the Sammamish home. As discussed above, there was substantial

evidence to support the associated findings. Additionally, Andrew contended that

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Moss’s testimony was inconsistent with IRS publications covering what qualified as a

“repair” versus a “capital improvement.” Andrew had not previously introduced any of

the IRS publications at trial. Ordinarily, “CR 59 does not permit a plaintiff to propose

new theories of the case that could have been raised before entry of an adverse

decision.” Wilcox, 130 Wn. App. at 241. On this basis, Andrew’s motion for

reconsideration failed to establish any entitlement to relief.

CONCLUSION

We affirm.

WE CONCUR:

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