Full Opinion

FILED OCTOBER 29, 2026 In the Office of the Clerk of Court WA State Court of Appeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE In the Matter of the Marriage of ) No. 40513-3-III ) MARK JAY WONDRACK, ) ) Respondent, ) ) PUBLISHED OPINION and ) ) FRANCISCA MARIA WONDRACK, ) ) Appellant. ) LAWRENCE-BERREY, J. — RCW 26.09.140 authorizes trial courts to award a financially disadvantaged spouse reasonable attorney fees and costs from time to time. In In re Marriage of Burke, 96 Wn. App. 474, 480, 980 P.2d 265 (1999), we held that a clause in a prenuptial agreement that would prohibit an award of attorney fees and costs incurred in parenting plan litigation is unenforceable because it violates public policy. On discretionary review, we are asked whether Burke authorizes a trial court to award attorney fees and costs incurred for work other than parenting plan issues when a parenting plan is being litigated. We construe Burke as authorizing this broader recovery and remand. No. 40513-3-III In re Marr. of Wondrack FACTS In 2018, Mark Wondrack and Francisca Wondrack signed an antenuptial agreement. Mark’s1 net worth exceeded $15 million while Francisca’s was approximately $175,000. The agreement required each party to bear their own attorney fees and costs in any dissolution or maintenance action. Mark and Francisca married in July 2019, and they had one child. During the marriage, Francisca was primarily a stay-at-home mother. Although Francisca did not regularly generate income, she paid one-half of the family’s monthly expenses, including her hospital childbirth bill and a new family car. As a result, her savings were depleted. While married, Mark bought a 2018 Porsche 911 Cabriolet and claimed on social media that it was a present for Francisca. In July 2022, Francisca left Mark and filed for a domestic violence protection order (DVPO). Soon after, Mark petitioned for legal separation. Francisca sought counsel and signed a fee agreement for counsel to represent her in the DVPO and the dissolution matters. In early 2023, Mark filed this dissolution action. 1 As typical in dissolution appeals, we refer to the parties by their first names to avoid repeatedly using “Mr.” and “Ms.” We intend no disrespect. 2 No. 40513-3-III In re Marr. of Wondrack First RCW 26.09.140 attorney fee award In April 2023, Francisca moved for an award of attorney fees and costs under RCW 26.09.140 and also because of Mark’s intransigence. By then, Francisca had incurred $131,229.05 in attorney fees and costs. The court ordered Mark to pay Francisca $35,000 in attorney fees. The court also ordered Mark to pay the costs of both parties’ psychological and parenting evaluations, subject to reallocation at trial. The court further ordered Mark to immediately return Francisca’s personal items that she claimed he still possessed and to provide her possession of the 2018 Porsche 911 Cabriolet within 30 days. Mark did not return the items or provide the vehicle within 30 days and claimed the Porsche was being serviced at a Porsche dealership. The court found Mark in contempt for failing to return the Porsche to Francisca and reserved ruling on contempt regarding Francisca’s personal items, pending his compliance. Mark nonetheless continued to disregard the court’s order. Francisca then filed another contempt motion based on Mark’s continued failure to return the Porsche. She asserted that Mark had misrepresented that the Porsche was at a dealership and requested attorney fees. The Porsche was actually with an exotic car consignment dealer and had been there for six months before the court’s order. 3 No. 40513-3-III In re Marr. of Wondrack The court found Mark in contempt a second time for not returning the Porsche and for lying to the court. The court found Mark’s actions constituted intransigence, imposed $5,000.00 in sanctions, and granted $8,962.50 in attorney fees to Francisca. The court subsequently appointed a guardian ad litem (GAL) to represent their child and ordered Mark to pay all of the GAL’s fees, subject to reallocation at trial. Over the course of litigation, the court found Mark in contempt four times for refusing to obey court orders. The court also found Mark intransigent three times. Mark contacted Francisca’s sister and stated that he and his mother would completely deplete their assets on the litigation. Second RCW 26.09.140 attorney fee award In January 2024, Francisca moved for a second award of reasonable attorney fees and costs under RCW 26.09.140. In her motion, she requested $189,253.24 in attorney fees, after crediting Mark for the attorney fees he had paid. She did not include the $5,000.00 sanction award in this credit. Her request encompassed all fees and costs incurred in the legal separation, dissolution, and DVPO matters. In response, Mark argued their antenuptial agreement prevented an award of attorney fees. The court ordered Mark to pay $40,000.00 in attorney fees for litigating child-related issues, subject to reallocation at trial. 4 No. 40513-3-III In re Marr. of Wondrack First reconsideration Francisca moved for reconsideration. She argued the trial court erred in concluding that Burke did not permit an award of attorney fees beyond those incurred on child-related issues. She further claimed that nearly all of her fees and costs were directly related to those issues. She claimed the court’s order placed her counsel in an ethical dilemma because he was required to provide competent representation but could not rely on RCW 26.09.140. The court denied Francisca’s motion for reconsideration. However, it said it would consider awarding additional attorney fees and costs if Francisca’s counsel provided a budget for trial, including estimated fees and costs for depositions and future motions. When the court entered the judgment and order denying reconsideration, it included an express statement that there was “no just reason for dela[ying]” entry of the judgment because the order precluded Francisca’s counsel from representing her. 5 No. 40513-3-III In re Marr. of Wondrack Clerk’s Papers at 2527. Francisca appealed the judgment and order. 2 Second reconsideration 3 While this appeal was pending, the litigation between the parties continued. Five months after her appeal, Francisca’s counsel filed a supplemental declaration stating that Francisca owed $277,710.29 in attorney fees, which he asserted placed him in an untenable financial and ethical position. Counsel stated that his firm had to borrow substantial sums to cover the shortfall. He attached monthly billing statements. The billing statements reflected work on the dissolution and DVPO matters, as well as appellate work. Francisca asked the court to order the title to the Porsche and the other family car she and Mark bought to be transferred to her so she could sell them, purchase a less expensive vehicle, and apply the remaining proceeds to attorney fees. 2 We doubt this matter is properly before us. Neither party sought discretionary review under RAP 2.3 but instead treated this appeal as one permitted as of right under RAP 2.2(a). The judgment appealed from is not a final judgment for purposes of RAP 2.2(a)(1). Nor is it a decision determining the action that prevents entry of a final judgment under RAP 2.2(a)(3). Nor is it a “final judgment” under RAP 2.2(d) that involves “multiple parties” and “multiple claims.” Rather than dismiss the appeal at this late stage, we exercise our discretion and address the purely legal issue driving this appeal—how broadly to construe Burke. 3 We address this order, related to the order on appeal, primarily because the trial court directed that it be sent to us to supplement the record on appeal. 6 No. 40513-3-III In re Marr. of Wondrack On reconsideration of the earlier order awarding fees and costs, the court granted Francisca’s motion in part. It found that Mark’s net monthly income was $72,055.09 and Francisca’s was $6,080.74. The court determined that Mark had the ability to pay Francisca’s attorney fees. However, the court awarded Francisca $188,911.49 in attorney fees, rather than the $277,710.29 she had requested. The court stated that the reduction was appropriate for several reasons. First, the court noted that Mark had incurred significant expert witness and GAL fees and concluded that those amounts should offset Francisca’s attorney fee award. The court also ruled that the sanctions Mark paid should be applied toward Francisca’s attorney fees. The court also found that Francisca’s request included wasteful, duplicative, and unreasonable charges, including: (1) appellate fees and costs before the Court of Appeals adjudicated the matter, (2) fees for defending a Washington State Bar Association complaint Mark filed against counsel, which the court noted may have been covered by liability insurance, (3) billing administrative and paralegal work at $425 per hour, (4) duplicative administrative work (e.g., communications with the court, excessive file review, and excessive research), and (5) duplicative calls, e-mails, and e-mail review between Francisca and her attorney. 7 No. 40513-3-III In re Marr. of Wondrack To assist paying Francisca’s future attorney fees, the court ordered the Porsche in her possession to be sold and the proceeds placed in a trust. The court directed that a portion of the proceeds be paid to Mark for GAL fees, with the remainder reserved for Francisca’s future attorney fees. The court noted that any additional fees and costs would be addressed at trial. ANALYSIS Francisca argues that the trial court erred when it awarded her substantially less than the fees and costs she requested and that Burke places a duty on trial courts to prevent a financially disadvantaged spouse from being deprived of their day in court in matters affecting the welfare of their children. Mark responds that Burke does not authorize the trial court to award attorney fees and costs beyond parenting plan litigation. We disagree with Mark. For the reasons explained below, we conclude that the trial court has discretion under RCW 26.09.140 to award reasonable attorney fees and costs to a financially disadvantaged spouse when parties are litigating parenting plan issues and that such an award is not limited to fees and costs incurred litigating parenting plan issues. This broad construction of Burke is necessary so that trial courts can protect the best interests of children as long as parenting plan issues are being litigated. 8 No. 40513-3-III In re Marr. of Wondrack Relevant framework RCW 26.09.140 grants trial courts discretion to award reasonable attorney fees and costs “‘from time to time’” in a dissolution proceeding by balancing the requesting spouse’s needs with the other spouse’s ability to pay. In re Marriage of Moody, 137 Wn.2d 979, 993-94, 976 P.2d 1240 (1999) (quoting RCW 26.09.140). Reviewing an attorney fee award involves mixed questions of law and fact. Legal issues, such as how to construe decisional authority, are reviewed de novo. Zink v. City of Mesa, 17 Wn. App. 2d 701, 713, 487 P.3d 902 (2021). But factual issues, such as the reasonableness of an attorney fee and cost award, are reviewed for an abuse of discretion. Allard v. First Interstate Bank of Wash., N.A., 112 Wn.2d 145, 148, 768 P.2d 998 (1989). Marriage of Burke In Burke, we addressed the tension between RCW 26.09.140, the policy of enforcing contracts freely made, and the policy “prohibiting marital agreements that divest . . . court[s] of [their] authority and discretion over issues affecting the rights and welfare of . . . children.” 96 Wn. App. at 479. In addressing this tension, we acknowledged that RCW 26.09.140 is intended to ensure that no person is denied access to the courts because of financial disadvantage. Id. (quoting 20 KENNETH W. WEBER, 9 No. 40513-3-III In re Marr. of Wondrack WASHINGTON PRACTICE: FAMILY AND COMMUNITY PROPERTY LAW § 40.2, at 510 (1997)). We resolved the tension by concluding: In fair and fairly made marital agreements, parties may waive rights affecting themselves and their property. But the waiver of rights under RCW 26.09.140, as it applies to parenting plan issues, is not binding upon the court because such waivers violate public policy. The state’s interest in the welfare of children requires that the court have the discretion to make an award of attorney fees and costs so that a parent is not deprived of his or her day in court by reason of financial disadvantage. Id. at 480 (emphasis added). Had the Burke court ended its discussion of this issue after the second sentence, the holding would have required courts to limit fee and cost awards to parenting plan issues.4 But the Burke court saw fit to provide financially disadvantaged spouses greater protection. The court added the third sentence to ensure that the financially disadvantaged spouse “is not deprived of [their] day in court” so that the rights and welfare of children can be best protected. Therefore, we construe Burke as holding: When litigation involves parenting plan and child support issues, a trial court has discretion under RCW 26.09.140 to award reasonable attorney fees and costs to a financially disadvantaged spouse, despite a freely made contract to the contrary, and such an award is not limited to those fees and costs incurred litigating parenting plan issues. 4 Parenting plan issues include child support. Otherwise, the public policy granting courts “authority and discretion over issues affecting the rights and welfare of their children” would only partly be achieved. Burke, 96 Wn. App. at 479. 10 No. 40513-3-III In re Marr. of Wondrack Our concurring colleague asserts that we read the third sentence as holding that “any financially disadvantaged spouse should not be deprived of their day in court.” Concurrence at 3. We disagree. Rather, we read the sentence as saying exactly what it says. Burke’s holding, as well as our clarification, is limited to parents litigating parenting issues. Our holding simply clarifies that fees and costs awarded in that context are not limited to those issues. Were we, instead, to limit fee and cost awards to parenting issues, the financially advantaged parent could excessively litigate nonparenting issues and cause the other parent’s attorney to withdraw for nonpayment before trial. Courts would be less able to protect the welfare of children if the financially disadvantaged parent was unrepresented at trial. Burke, as seen in the third sentence of the above-indented quote, contemplates trial courts having authority to remedy this concern. We decline to affirm or reverse the trial court’s first or second interlocutory attorney fee and cost awards. Rather, we limit this opinion to a discussion of the relevant framework and our clarification of Burke. Attorney fees and costs on appeal Citing RCW 26.09.140, Francisca requests an award of attorney fees on appeal. We grant the trial court discretion to award Francisca her reasonable attorney fees and 11 No. 40513-3-III In re Marr. of Wondrack costs on appeal. In exercising its discretion, it may consider relevant factors including the extent Francisca prevailed on appeal and the extent she eventually prevails on the other interlocutory issues she raised and replied to in this appeal. However, simply because Francisca might not prevail on an issue should not limit her recovery of reasonable attorney fees and costs. As noted previously, the touchstone for awarding fees and costs under RCW 26.09.140 is balancing the requesting spouse’s needs with the other spouse’s ability to pay. Moody, 137 Wn.2d at 993-94. And the touchstone for the amount of the award is the reasonableness of the fees and costs incurred. Reasonable litigation can encompass making sound arguments that ultimately are rejected, either legally or factually. What type of arguments are “reasonable” is inherently a factual determination and is subject to the wide discretion of trial courts. We remand for further proceedings consistent with this opinion. _________________________________ Lawrence-Berrey, J. I CONCUR: ______________________________ Hill, J. 12 No. 40513-3-III STAAB, C.J. (concurring) — Attorney Fees Under RCW 26.09.140 I concur that RCW 26.09.140 confers discretionary authority on trial courts to award attorney fees and costs and does not create an entitlement to all fees. I respectfully disagree, however, with the majority’s broad construction that effectively permits RCW 26.09.140 to categorically supersede a valid antenuptial fee-waiver clause and award fees for disputes beyond parenting issues. While In re Marriage of Burke, 96 Wn. App. 474, 980 P.2d 265 (1999), properly limits fee waivers in parenting and child-related litigation, the freedom to contract, together with Washington’s policy favoring enforcement of valid antenuptial agreements, supports honoring a fee-waiver for property and maintenance issues once the agreement’s validity is established. Nevertheless, I would hold that where enforceability is contested, a fee-waiver clause should not bar interim fee relief until the trial court makes a determination of validity and enforceability. ANALYSIS Preliminarily, I agree with the majority that when applicable, RCW 26.09.140 provides a trial court with discretion to award attorney fees but does not create a mandatory duty as Francisca Wondrack contends. This conclusion is supported by the plain language of the statute. RCW 26.09.140 provides that after considering the financial resources of both parties, a court “may” award fees. This provision is discretionary and “neither spouse is entitled to attorney fees as a matter of right.” In re No. 40513-3-III In re Marriage of Wondrack—concurrence Marriage of Leslie, 90 Wn. App. 796, 805, 954 P.2d 330 (1998). When exercising discretion under RCW 26.09.140, the court should balance the requesting party’s need against the other party’s ability to pay. Id. Courts may also consider the extent to which one spouse’s intransigence caused the other to incur additional legal fees. In re Marriage of Williams, 84 Wn. App. 263, 272, 927 P.2d 679 (1996). I respectfully disagree, however, with the majority’s conclusion that Burke surreptitiously upset decades of precedent and held that RCW 26.09.140 grants a trial court discretion to ignore fee-waiver provisions in valid property agreements. Majority at 10. Washington has a long history of recognizing the rights of people to negotiate and enter into contracts regarding their property interests, viewing such agreements as conducive to marital tranquility and the avoidance of future disputes. In re Marriage of Matson, 107 Wn.2d 479, 481-82, 730 P.2d 668 (1986). Critically, however, such agreements cannot affect the rights of parties with respect to their children. Courts are not bound by agreement terms that purport to divest them of authority over parenting plan issues including collateral issues such as the award of attorney fees under RCW 26.09.140 incurred by one parent to resolve parenting issues. Burke, 96 Wn. App. at 479. In Burke, the court recognized the general rule that the majority ignores: that “[i]n fair and fairly made marital agreements, parties may waive rights affecting themselves 2 No. 40513-3-III In re Marriage of Wondrack—concurrence and their property.” Id. at 480. From this general rule, the court carved out a narrow exception and held that such agreements cannot preclude an award of attorney fees under RCW 26.09.140 for fees related to parenting issues. Id. Here, the majority concludes that the exception carved out in Burke was not limited to parenting issues. Instead, the majority holds that Burke provides “greater protection” in the form of discretionary attorney fees beyond parenting issues to a financially disadvantaged spouse regardless of a valid antenuptial agreement. Majority at 10. I disagree for several reasons. Contrary to the majority’s conclusion, the exception created in Burke was limited to parenting issues. The language relied on by the majority does not support its own reasoning. The majority points to a sentence in Burke that reads: “‘The state’s interest in the welfare of children requires that the court have the discretion to make an award of attorney fees and costs so that a parent is not deprived of his or her day in court by reason of financial disadvantage.’” Majority at 10 (emphasis omitted) (quoting Burke, 96 Wn. App. at 480). The majority reads this sentence as holding that any financially disadvantaged spouse should not be deprived of their day in court. Majority at 10. That is not what the sentence says. In line with its limited holding, the sentence provides an exception for financially disadvantaged “parents.” Burke, 96 Wn. App. at 480. 3 No. 40513-3-III In re Marriage of Wondrack—concurrence Moreover, the exception created in Burke was grounded entirely on the state’s interest in the welfare of children. In support of its position, the court looked to RCW 26.09.002, RCW 26.09.140, and in In re Marriage of Thier, 67 Wn. App. 940, 841 P.2d 794 (1992). The Burke court noted that RCW 26.09.002 mandates that the best interest of the child is the standard by which courts determine and allocate parental responsibilities. Id. at 478. In Marriage of Thier, the court refused to enforce separation and prenuptial agreement provisions that purported to bind courts on parenting plan matters. 67 Wn. App. at 944. Finally, the Burke court noted that the purpose of RCW 26.09.140 is “‘to make certain that a person is not deprived of his or her day in court by reason of financial disadvantage.’” Burke, 96 Wn. App. at 479 (quoting 20 KENNETH W. WEBER, WASHINGTON PRACTICE: FAMILY AND COMMUNITY PROPERTY LAW § 40.2, at 510 (1997)). Additionally, the holding in Burke makes it clear that the exception is limited to parenting issues: “We reverse because the attorney fees clause, as applied to the litigation of parenting plan issues, violates public policy.” Id. at 475 (emphasis added). Finally, with all due respect, the majority’s holding is patronizing. The majority concludes that RCW 26.09.140 provides the court with discretion to award attorney fees to a financially disadvantaged spouse “despite a freely made contract to the contrary.” Majority at 10. Implicit in the majority’s holding is the premise that financially 4 No. 40513-3-III In re Marriage of Wondrack—concurrence disadvantaged spouses do not have the capacity to enter into substantively disadvantageous contracts and therefore need parens patriae protection from the courts. However, any concern that one spouse will use an antenuptial agreement to take advantage of the other spouse is addressed at the contract’s inception. Courts have long recognized that so long as a spouse is provided with independent counsel and is informed of the nature of the property and the rights being waived, that spouse has the autonomy to enter into a substantively unfair agreement. In re Marriage of Bernard, 165 Wn.2d 895, 902-03, 204 P.3d 907 (2009). The majority’s holding disregards this precedent and the spouses’ autonomy. While I disagree with the majority’s holding that courts can ignore a fee-waiver provision in a valid property agreement, I agree that the court in this case had discretion to award Francisca her pretrial attorney fees. I would hold that when there is a genuine dispute as to the validity of a property agreement, a fee-waiver provision is not binding on the trial court until the agreement is determined to be valid. An antenuptial agreement is valid if it is either substantively fair or procedurally fair; it is void from inception when both prongs fail. Kellar v. Est. of Kellar, 172 Wn. App. 562, 585, 291 P.3d 906 (2012). The validity of the antenuptial agreement is a threshold issue. The burden of proving the validity of a prenuptial agreement rests with 5 No. 40513-3-III In re Marriage of Wondrack—concurrence the party seeking its enforcement. RCW 26.16.210; Marriage of Bernard, 165 Wn.2d at 902. This allocation of the burden of proof is significant in the pretrial context. “If one party disputes the validity of the agreement, the agreement will not be given effect on a temporary basis until the validity of the prenuptial agreement is determined either by interim order or by final decree.” 19 SCOTT J. HORENSTEIN, WASHINGTON PRACTICE: FAMILY AND COMMUNITY PROPERTY LAW § 16:22, at 431 (2d ed. 2015). Applying the fee-waiver before that determination would effectively presume the agreement’s validity in favor of the party who bears the burden of proving it, inverting the proper allocation of the burden of proof. There are compelling reasons to hold that a contested property agreement is not operative until determined to be valid. Unlike the majority’s position, holding that a fee- waiver is not operative until the property agreement is determined to be enforceable does not eliminate the fee-waiver’s ultimate effect. Instead, it maintains the distinction between parenting issues and property issues as recognized in Burke. If the trial court determines the agreement is valid and enforceable, the fee-waiver will apply going forward on property-related issues. Deferring its application until validity is established is consistent with the void-from-inception doctrine and with the burden-of-proof framework. 6 No. 40513-3-III In re Marriage of Wondrack—concurrence In this case, Francisca has challenged the validity of the antenuptial agreement, and the trial court has determined that the issue will be decided at trial. Meanwhile, both spouses accuse the other of using abusive litigation tactics. Francisca contends that Mark is intentionally driving up attorney fees and relying on the fee-waiver provision in the contract to prevent her from affording counsel during these proceedings. Mark, on the other hand, contends that the court should presume the validity of the agreement and not award Francisca any nonparenting fees. In the alternative, he argues that Francisca should be required to repay any nonparenting fees once the agreement is determined to be valid. Mark Wondrack’s position would create a perverse incentive structure. A party who drafts an unfair property agreement could use the fee-waiver to financially exhaust the challenging spouse before the agreement’s validity is ever adjudicated, effectively insulating an invalid agreement from challenge. This outcome would be contrary to Washington’s policy of zealous judicial scrutiny of prenuptial agreements that attempt to eliminate community property rights. Marriage of Matson, 107 Wn.2d at 486. On the other hand, holding that a fee-waiver is not operative until the agreement is validated provides an incentive for the financially advantaged spouse to resolve the matter quickly, either by summary judgment or trial. 7 No. 40513-3-III In re Marriage of Wondrack—concurrence While the majority and I share the same concern about litigation abuse, the majority’s solution goes too far and is not supported by RCW 26.09.140 or public policy. The majority holds that a trial court can ignore a fee-waiver provision in an otherwise valid antenuptial agreement and award attorney fees to a financially disadvantaged spouse even for nonparenting issues, so long as the spouse is also litigating parenting issues. The majority’s holding does not provide the same exception to spouses who are not litigating parenting issues. There is no basis for this distinction or the majority’s new exception. The statute certainly does not provide such a distinction. RCW 26.09.140 merely provides that a trial court has discretion to award attorney fees between spouses based on their financial resources. But other than the exception created by Burke, the statute has never been interpreted to override an otherwise valid antenuptial agreement. Burke certainly does not support the majority’s interpretation. As set forth above, Burke’s holding is limited to fees related to parenting issues. Nor does public policy support the majority’s position. The concern for the best interest of children is already addressed by the exception carved out in Burke. As I propose above, concerns about abusive litigation tactics can be addressed without completely disregarding valid antenuptial agreements. Indeed, the majority’s distinction creates a financial incentive for spouses subject to an antenuptial agreement who want to 8 No. 40513-3-III In re Marriage of Wondrack—concurrence litigate property issues to also raise parenting issues. How is this in the best interest of children? Here, Mark is seeking to enforce the antenuptial agreement and therefore bears the burden of establishing the agreement’s validity. The trial court has determined that the agreement’s validity will be decided at trial. I would hold that the trial court has discretion to award Francisca attorney fees related to the parenting issues under Burke. As for fees related to nonparenting issues, I would hold that the trial court need not treat the fee-waiver provision as operative and that it has the discretion to award Francisca her property-related attorney fees pursuant to RCW 26.09.140 until it has decided the validity of the antenuptial agreement. ________________________________ Staab, C.J. 9