Opinion
No. 35570-1-II.
February 20, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-3-01107-5, Vicki L. Hogan, J., entered October 13, 2006.
Affirmed in part and remanded by unpublished opinion per Penoyar, J., concurred in by Bridgewater and Hunt, JJ.
Robin and Neil Mason were married in 1980, and separated and petitioned for dissolution of marriage in April 2005. After a bench trial, the trial court divided the parties' assets with Robin receiving 70 percent of the assets and Neil receiving 30 percent of the assets. Neil now challenges the court's division arguing that the court (1) abused its discretion in its property allocation, (2) erred in failing to value personal property, and (3) erred in valuing a bank account properly. Further, Neil challenges the trial court's finding that he had an earning capacity of $90,000 per year. We find no error in the proceedings below but remand for further findings on the actual amount of money in the Deutsche Bank account at the time of separation. The trial court may then reconsider its allocation of assets based on that determination.
FACTS
The parties were married on August 2, 1980. They had two children. In 2003, Neil was arrested and pled guilty to one charge of fourth degree assault, domestic violence. The parties remained in the same home until April 2005 when they separated and filed for dissolution of marriage. A bench trial followed.
There are no issues on appeal regarding the children.
At trial, both parties submitted dozens of financial documents. After separation, Robin remained in the family home with the two children while Neil lived at his deceased parents' farm next door. Robin had been employed at a pharmacy for nearly 30 years while Neil had been unemployed since 2002. During his period of unemployment, Neil lived exclusively off of community funds.
Though they could not reach an agreement on division of community property out of court, the Masons did reach an agreement on division of personal effects. This mutually agreed division was adopted by the court in finding of fact 2.28.
The trial court divided the community property with 70 percent to Robin and 30 percent to Neil. Robin was given the family home as part of her allocation. Neil now appeals.
ANALYSIS
I. Property Division
In a marriage dissolution proceeding, the trial court must "[dispose] of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors." RCW 26.09.080. "The key to an equitable distribution of property is not mathematical preciseness, but fairness." In re Marriage of Clark, 13 Wn. App. 805, 810, 538 P.2d 145 (1975). Fairness is attained by considering all circumstances of the marriage and by exercising discretion, not by utilizing inflexible rules. Clark, 13 Wn. App. at 810.
Such factors include "[t]he economic circumstances of each spouse at the time the division of property is to become effective" but may not include "marital misconduct." RCW 26.09.080 and .080(4).
The trial court's considerable discretion in making property division will not be disturbed on appeal absent a manifest abuse of that discretion. In re Marriage of Konzen, 103 Wn.2d 470, 478, 693 P.2d 97, cert. denied, 473 U.S. 906, 105 S. Ct. 3530, 87 L. Ed. 2d 654 (1985) (citing In re Marriage of Miracle, 101 Wn.2d 137, 139, 675 P.2d 1229 (1984)). "A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons." In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 136 (1997). A decision is manifestly unreasonable or based on untenable grounds if it is a decision that no reasonable person would make. See, e.g., In re Marriage of Rink, 18 Wn. App. 549, 554, 571 P.2d 210 (1977).
A. Division of Assets
RCW 26.09.080 requires a court to make a "just and equitable" distribution of the parties' assets, both separate and community. During a marital dissolution proceeding, the trial court may consider the spouses' incomes, resources, ages, and medical conditions when determining what division is fair and just. RCW 26.09.080. Neil argues that the distribution was inequitable because he was awarded only 30 percent of the community property, while Robin was awarded 70 percent. Neil fails to note that the trial court took his separate property into consideration when making its allocation. Neil's separate property included 1/3 of his deceased parents' estate. Neil failed to file an inventory of that estate with the court, but it included, at least, a farm with a tax assessed value of $500,000. Neil's share of the estate is at least $166,000.
Neil's focus on just the community assets fails to recognize that the court had jurisdiction over (and was required to distribute) both the community and the separate property. See In re Marriage of Stachofsky, 90 Wn. App. 135, 142, 951 P.2d 346 (1998). The trial court is required to make an equitable distribution, not an equal one. In re Marriage of Nicholson, 17 Wn. App. 110, 117, 561 P.2d 1116 (1977) (citing RCW 26.09.080). Neil has not established that the distribution was inequitable.
Neil claims on appeal that the trial court is "punishing" him for prior domestic abuse against his wife, by awarding her a greater share of community assets. The trial court may not consider marital "misconduct" under RCW 26.09.080. Neil cites the trial court's statement in finding of fact 2.37 that "the wife's crying during the trial evidenced the emotional impact of the domestic violence" as evidence of the court punishing him for a prior domestic violence incident. Clerk's Papers (CP) at 30. On the contrary, this evidence does not show that the trial court was punishing Neil for past domestic violence; instead, the trial court appears to have been noting Robin's emotional fragility during the course of the trial in the process of commenting on her health problems as required by RCW 26.09.080. Our review of the record shows that the trial court's comments and behavior during the course of the trial — towards all parties — were at all times professional and dispassionate.
The information provided during trial could have caused another judge to come to the same or a different calculation in dividing the community assets. We only reverse the allocation however, if it is one that no other judge would make. Because another reasonable judge could have made the same allocation, we decline to hold that the trial court abused its discretion in allocating assets.
B. Failure to Value Personal Property
The trial court's failure to value an asset is not significant enough to warrant reversal and remand where the trial court has made a fair, just and equitable division of the marital property. In re Marriage of Wright, 78 Wn. App. 230, 237, 896 P.2d 735 (1995). The trial court acknowledges in finding of fact 2.28 that it has "not placed any value on the household goods, personal property or personal effects." CP at 28. For division of the property, the trial court deferred to exhibit 62, which was a list used by the parties to determine — on their own — how to divide personal property. Neil notes that when valued by his calculations, Robin received personal property worth roughly $3,600 more than Neil.
As stated above, the trial court did not abuse its discretion in the overall allocation of the assets. As such, and given the apparent agreement of the parties on the distribution of personal effects, we will not reverse based on the trial court's failure to value them.
II. Finding of Fact
"Findings of fact are reviewed under a substantial evidence standard, defined as a quantum of evidence sufficient to persuade a rational fair-minded person that the declared premise is true. See Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). If the standard is satisfied, a reviewing court will not substitute its judgment for that of the trial court even though it may have resolved a factual dispute differently. Croton Chem. Corp. v. Birkenwald, Inc., 50 Wn.2d 684, 686, 314 P.2d 622 (1957).
A. Error in Valuing Bank Account
Erroneous valuation of one item does not require reversal of an otherwise fair and equitable distribution of marital assets. In re Marriage of Pilant, 42 Wn. App. 173, 181, 709 P.2d 1241 (1985). Neil argues that the trial court did not have adequate evidence to support a finding of fact that the Deutsche Bank account he was awarded contained $30,080.03 at the time of separation.
Evidence presented at trial as to the account's value on the separation date was less than clear. Bank statements indicate that in January 2004, Neil made two withdrawals from the account, one of $15,000, and another of $15,808.03. A deposit slip was admitted for the first withdrawal of $15,000, indicating the money had been deposited into a community savings account at a different bank. No such slip could be found for the second withdrawal of $15,808.03; nor was any physical evidence provided to show where that money went after it was withdrawn. At trial, Robin testified that she had not withdrawn the money and was not aware of what her husband had done with it. Neil testified he had made both withdrawals and that they were used to pay bills.
Given the testimony and evidence, it is not clear that the trial court relied on substantial evidence when making the determination that the account was worth $30,808.03 at the time of separation in April 2005.
The separation of the parties occurred over a year after the money was apparently withdrawn from the account in question.
Respondent's exhibit 46 indicates that for the period starting on April 1, 2005, the total amount in the Deutsche Bank account was $5,573.28, not $30,808.03. Whether this was a mistake that affected the court's allocation of assets is unclear from the record. Because the significant sum of nearly $30,000 is involved, we remand to the trial court for further clarification of this issue.
B. Ability to Earn
Neil argues that the trial court had no evidence to base its assertion in finding of fact 2.37 that he was capable of earning $90,000 a year. Neil's salary when last employed was $90,000 per year. Neil testified that he had been unemployed since 2002. He went on to say that he had not gained employment since 2002 because of a bad dental situation, bad luck, and lack of proper computer certifications. The trial court had substantial evidence to support its finding that Neil was capable of earning $90,000 per year. As such, we will not substitute our judgment for the trial court's.
Since the trial court based the child support calculations on a statutory amount determined by age (due to his unemployment, see RCW 26.19.071 (6)), and the court's division of assets was otherwise fair and equitable, the trial court's evaluation of Neil's earning potential is not material.
III. Additional Argument
Neil makes one additional assignment of error but does not make an effort to address it in the argument portion of his brief: Did the trial court err in basing its allocation of community assets on a finding that Neil "used community property to pay most of his post separation obligation" when it valued the accounts as of the separation date so that any use of funds from an account after separation did not impact the allocation at trial? Appellant's Br. at 4.
Without argument or authority to support it, an assignment of error is waived. State v. Thomas, 150 Wn.2d 821, 874, 83 P.3d 970 (2004) (citing Smith v. King, 106 Wn.2d 443, 451-52, 722 P.2d 796 (1986)); see also State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990) (stating that the court need not consider arguments that are not developed in the briefs and for which a party has not cited authority); RAP 10.3(a)(6) (appellate brief should contain argument supporting issues presented for review, citations to legal authority, and references to relevant parts of the record). We decline to address this assignment of error based on the lack of briefing.
Additionally, Neil makes several arguments about findings for which he has not assigned error. These arguments are scattered and not well briefed. We need only review findings of fact to which error has been assigned. Findings to which error has not been assigned are verities on appeal . Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d 549 (1992). Were the arguments better organized and briefed, we may have considered them. In this situation, however, we decline to do so.
IV. Conclusion
We find no error in the proceedings below except that this case is remanded to the trial court for further findings regarding the actual amount of money in the Deutsche Bank account at the time of separation. The trial court may then consider whether the allocation of marital assets should be altered upon that determination.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, P.J., HUNT, J., concur.