Opinion
No. 60017-6-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-3-01170-1, Larry E. McKeeman, J., entered April 18, 2007.
Affirmed by unpublished per curiam opinion.
The paramount concern in dividing the assets of a divorcing couple is the economic condition in which the dissolution decree leaves the parties. In this unusual case involving a wife and children with disabilities, the trial court awarded the husband a disproportionate share of the assets, primarily because of the disproportionate, long term financial burden he will bear as the residential parent. Considering the relative circumstances of the parties, including the substantial government benefits available to the wife, we conclude the trial court's property distribution was not a manifest abuse of discretion. Accordingly, we affirm.
FACTS
Rhonda and Jeffery Staley married in 1994 and divorced in 2005. They have two minor children, both of whom have special needs. Twelve-year-old JJ suffered injuries at birth and consequently suffers from mental retardation and profound hearing impairment. He is developmentally delayed, has learning disabilities, and requires 24-hour supervision due to his tendency to be disruptive and start fights. It is unlikely that he will ever live independently. Seven-year-old Linnea also has special needs, including difficulties with speech and reading. Jeffery spends $2,000 a month for babysitter/nanny expenses. Due to Rhonda's disability, the children will reside with Jeffery for the foreseeable future.
Rhonda has suffered from mental illness throughout her adult life. She has been diagnosed with bipolar, schizoaffective, and acute anxiety disorders. With the exception of a brief work study position, she has not been gainfully employed during the parties' relationship and is not likely to work in the future. She was hospitalized and incarcerated on several occasions during the dissolution proceedings.
At trial, Rhonda's Guardian Ad Litem, William Dussault, testified that she received SSI benefits for her disability beginning in 1988, but the benefits terminated when she married. Dussault believed Rhonda would again qualify for SSI and Medicaid benefits after the divorce, assuming she does not earn more than $900 per month. He testified that those benefits would be insufficient to cover Rhonda's needs and expenses, and that she would need an additional $2,000 to $2,500 a month. He recommended the court award her 60 to 70 percent of the parties' assets and place them in a "special needs trust," thus segregating ownership of the assets and allowing Rhonda to continue receiving government assistance while also receiving income from the trust.
The parties had roughly one million dollars in community assets. Rhonda sought 60 percent of the community assets or, alternatively, 50 percent with extended maintenance. Jeffery also requested a disproportionate share of the assets. He argued that awarding Rhonda a disproportionate share would not be equitable or wise given the children's financial needs and Rhonda's history of squandering her money.
The court awarded Jeffery $658,430, or 64 percent of the assets. Rhonda received $366,478, or 36 percent of the assets. The court expressly considered Rhonda's disability and indefinite need for assistance. It also considered the children's disabilities, particularly JJ's "very significant disabling conditions which make it unlikely that he will be employable throughout his life," and the fact that Jeffery would be responsible for virtually "all financial aspects of their rearing." In weighting its division in favor of Jeffery and the children, the court stated:
Clerk's Papers at 423.
This division contemplates that wife is eligible for SSI and other federal programs which would help provide for her housing and medical costs, and that assets awarded to her would be placed in a special needs trust. By awarding a greater part of the assets of the parties to the wife would short the children, especially the son, who is going to have substantial needs, and where only the father is going to be in a position to take care of the children financially.
The court also considered the debts and obligations to be paid by the husband and the court's intention to leave the father in a situation where he could provide for the children.
Clerk's Papers at 423.
The court ordered Jeffery to pay $30,000 toward Rhonda's Guardian Ad Litem and attorney fees.
DECISION
A court dividing property in a dissolution proceeding must "make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors". In re the Marriage of Mathews, 70 Wn. App. 116, 121, 853 P.2d 462 (1993) (quoting RCW 26.09.080). Relevant considerations include the parties' relative financial abilities, health, age, education and employability. In re the Marriage of Dessauer, 97 Wn.2d 831, 839, 650 P.2d 1099 (1982). The "paramount concern is the economic condition in which the dissolution decree leaves the parties." In re Marriage of Williams, 84 Wn. App. 263, 268, 927 P.2d 679 (1996). Because trial courts are in the best position to determine what is fair and equitable under the circumstances, we afford them broad discretion and will disturb their distributions only if there has been a manifest abuse of discretion. In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999). Decisions in dissolution proceedings are seldom changed on appeal because such decisions are difficult and the parties' emotional and financial interests are best served by finality. In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985). Applying these principles here, we conclude that Rhonda has not demonstrated a manifest abuse of discretion.
Rhonda argues that the court erroneously considered the availability of government assistance in dividing the parties' assets. She asserts that it is against public policy to require a party to rely on public assistance after a long-term relationship when there are significant assets before the court that could be distributed in a manner that will meet both parties' needs. Because this claim is raised for the first time on appeal, we decline to consider it. RAP 2.5; Hurd v. Hurd, 69 Wn. App. 38, 47, 848 P.2d 185 (1993). We note, however, that our courts have held that social security benefits may be considered in evaluating the economic circumstances of the parties and making a property distribution. In re Marriage of Rockwell, 141 Wn. App. 235, 244-245, 170 P.3d 572 (2007); In re Marriage of Zahm, 138 Wn.2d 213, 223, 978 P.2d 498 (1999).
Rhonda also contends the court untenably based its award on the ground that Jeffery will have greater financial responsibility for the children because her disability prevents her from more fully contributing to the children's support. She claims this reasoning penalizes her for her mental illness and violates her statutory right to be free from disability discrimination. This claim is meritless. The court was statutorily required to consider Jeffery's future economic circumstances and, to that end, properly considered Jeffery's disparate financial burden. Nothing in the court's ruling demonstrates discrimination against Rhonda.
Next, Rhonda contends the court erred in awarding Jeffery a disproportionate share of the assets as a substitute for child support, when the court had already ordered her to pay child support. Citing RCW 26.09.080(4), she argues that the only manner in which children come into consideration in a property distribution is in deciding whether one parent should be awarded the family residence because the children reside with that parent a majority of the time. She concludes the court properly awarded Jeffery the family residence but erred in using the fact that the children will reside a majority of the time with him to also award him more property. We disagree.
Nothing in RCW 26.09.090(4) limits a trial court's discretion in the manner Rhonda suggests. And as Rhonda concedes, courts have approved disparate property divisions where the division was necessary to satisfy a parent's child support obligation. Holaday v. Merceri, 49 Wn. App. 321, 742 P.2d 127 (1987); Marriage of Babbitt, 50 Wn. App. 190, 747 P.2d 507 (1987). While the court in this case did order Rhonda to pay support, it ordered only the statutory minimum amount of $25 per month per child. Given the extraordinary, long-term expenses anticipated for the parties' children, Rhonda's support obligation is negligible and leaves Jeffery bearing virtually the entire long-term child care burden. Remembering that the court's "paramount" duty is to consider the future economic circumstances of the parties, and considering Jeffery's future financial burden and the fact that Rhonda's assets will be supplemented by substantial government benefits, we cannot say the court abused its discretion in awarding Jeffery a disproportionate share of the community assets.
Rhonda argues, however, that the court's concern regarding future child care expenses ignores a lifetime monthly annuity JJ receives as part of a settlement for the injuries he sustained at birth, as well as government benefits he may receive after he turns 18. These sources of income for JJ do not undermine the court's exercise of discretion for several reasons. As Jeffery points out, the annuity is part of a settlement of JJ's lawsuit that compensates him not only for his future expenses but also his reduced quality of life. And while Rhonda's Guardian Ad Litem opined that JJ should qualify for SSI and Medicaid benefits at age 18, the court was entitled to view that prediction with caution given JJ's age. Moreover, Rhonda points to no evidence indicating the likely amount of the government benefits or their sufficiency to provide for all of JJ's anticipated future expenses. Given the purposes of the annuity, the uncertainties surrounding JJ's potential government benefits, and the long-term financial burden Jeffrey will shoulder in caring for JJ, we cannot say the court's distribution was a manifest abuse of discretion.
Finally, Rhonda contends the court abused its discretion in failing to require Jeffery to pay her Guardian Ad Litem and attorney fees, which totaled over $72,000. The decision to award fees and how much to award are discretionary decisions that will be disturbed only for manifest abuse of discretion. In re Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999); Lang v. Lang, 40 Wn. App. 758, 767, 700 P.2d 375 (1985). Here, the trial court found that only $60,000 of the fees were reasonable. The court then ordered Jeffery to pay half, or $30,000, of those fees. This award was within the court's discretion.
Rhonda requests fees on appeal based on her need and Jeffery's ability to pay. RCW 26.09.180. Consistent with the trial court's award of fees below, we conclude that Jeffery should pay half of Rhonda's fees on appeal, subject to her compliance with RAP 18.1(c).
Affirmed.