Opinion
No. 31131-3-II
Filed: March 30, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No. 02-3-01009-2. Judgment or order under review. Date filed: 10/28/2003. Judge signing: Hon. Paula K. Casey.
Counsel for Appellant(s), Richard L. Bartholomew, Attorney at Law, 1415 College St SE, Lacey, WA 98503-2655.
Edward Marshall Lane, Attorney at Law, 1102 Broadway Ste 403, Tacoma, WA 98402-3526.
Counsel for Respondent(s), William Burwell Jr Pope, Attorney at Law, 1605 Cooper Point Rd NW, Olympia, WA 98502-8325.
Debra Diane Bietz appeals a decree dissolving her marriage to Ralph LeRoy Bietz. She argues that the trial court was required to value and distribute the property differently than it did, and to award her more attorney fees than it did. Holding that the trial court acted within its discretion, we affirm.
Ralph LeRoy Bietz and Debra Diane Bietz were married in 1973 and separated in 2002. They have four children: Gabriel, born in 1980; Joshua, born in 1982; Aaron, born in 1985; and Daniel, born in 1986. In September 2002, Gabriel was attending medical school in Ireland; Joshua was attending college in Georgia; and both Aaron and Daniel were still in high school. Ralph's mother had set up an educational account in each boy's name, with Ralph as a co-signor.
Ralph is employed as the president and CEO of Columbia Beverage Company. He earns $181,000 per year, plus benefits and bonuses. As one of his benefits, he is reimbursed for each child's college tuition, books, and fees, not to exceed the cost of attending the University of Washington. Although Debra was sometimes employed, she primarily cared for the home and four children.
On September 3, 2002, Ralph petitioned for dissolution. Six months later, his mother died, leaving him about $400,000. Ralph had not received the money by the time of trial, but it was clear that he would.
Following a three-day trial, the trial court entered findings of fact, conclusions of law, and a decree of dissolution. The trial court characterized as community assets a home in Olympia, Washington; a home in Loganville, Georgia; stock in BioRev, a company that Ralph formed shortly before separation; insurance on Ralph's life that named Debra as beneficiary, and various other assets not pertinent to this appeal. The trial court characterized as community debts the mortgage on the Olympia and Loganville homes. The trial court distributed the Olympia home and BioRev to Ralph, and the Loganville home to Debra. The trial court awarded Ralph assets valued at $208,011.40 and debts valued at $463,826. The trial court awarded Debra assets valued at $192,170 and debts valued at $101,000. The trial court awarded Ralph, as his separate property, the inheritance from his mother. The trial court ordered Ralph to pay child support, the monthly mortgage through November 2003, and maintenance through August 2008. The trial court ordered Ralph to keep Debra and the children as beneficiaries on life insurance sufficient to cover support and maintenance yet to be paid. The trial court ordered Ralph to pay $10,000 toward Debra's attorney fees.
I.
Debra contends that the trial court abused its discretion by not distributing all or part of Ralph's inheritance to her. A trial court is obligated to make a 'just and equitable' distribution of the parties' property, considering its character, the duration of the marriage, and the economic circumstances in which each spouse will be left. The trial court necessarily has broad discretion, and we review only for abuse of that discretion.
In re Marriage of Gillespie, 89 Wn. App. 390, 398-99, 948 P.2d 1338 (1997).
Brewer v. Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999).
Here, the trial court awarded Debra considerably more than half of the net community estate. It also ordered Ralph to pay child support and maintenance (neither of which is now contested), and to assume sole responsibility for the costs of the four boys' higher education. Ralph's inheritance was clearly his separate property, and he did not receive it while the parties were together. Under these circumstances, the trial court had discretion to award Ralph's separate property to him, which is to say that the trial court was not, as a matter of law, required to award all or part of Ralph's inheritance to Debra.
II.
Debra contends that the trial court abused its discretion by not valuing or distributing BioRev differently than it did. Again, we review only for abuse of discretion.
According to the evidence produced here, Ralph owned a franchise that gave him the right to distribute Crystal Cascade Bottled Water in California and the Pacific Rim. He formed BioRev as a holding company for that franchise, using $15,000 of community assets. Neither BioRev nor the franchise had yet generated any income, and due to the highly competitive nature of the bottled water market in California and the Pacific Rim, it was impossible to know whether that might change. His previous business ventures had not generated income, and if BioRev did, that income would result from his post-dissolution labor. The trial court valued Bio Rev at $15,000, the amount of community assets used to fund it, and distributed it to Ralph. This was not an abuse of discretion, which is to say that the trial court was not required, as a matter of law, to value or distribute BioRev differently that it did.
See In re Marriage of Hall, 103 Wn.2d 236, 247, 692 P.2d 175 (1984) (future earning capacity is not a marital asset, although trial court may consider it as one factor bearing on fair and equitable distribution of assets and debts); In re Marriage of Leland, 69 Wn. App. 57, 72, 847 P.2d 518, review denied, 121 Wn.2d 1033 (1993).
III.
With no citation of authority and minimal argument, Debra contends that the trial court abused its discretion by not requiring Ralph to repay money taken from the children's education accounts. The trial court did not find that such funds had been misused, but even if it had, we would not perceive an abuse of discretion. When the trial court ordered Ralph to assume sole responsibility for the four boys' education, it effectively ordered him to replace any funds that were missing.
See RAP 10.3; RAP 2.5.
IV.
Debra contends that the trial court's decree does not adequately describe Ralph's obligation to maintain life insurance for her and the children. Ralph responds that he has given Debra's counsel a copy of an insurance policy that names Debra as beneficiary, plus copies of other polices that name the boys as primary beneficiaries. Although Debra replies that she received these copies 'just recently,' she does not explain why they are inadequate.
Reply Br. of Appellant at 6.
We decline to rule on a dispute that does not exist. Even if we were to rule, moreover, we do not think that the findings and decree were inadequate. The findings stated:
The Petitioner should name the Respondent as the primary and principal beneficiary of a life insurance policy in an amount sufficient to ensure the payment of his maintenance and child support obligations, less any social security benefits the Petitioner or the parties' children may be [sic] receive in the unfortunate event of the Petitioner's death. The Petitioner may choose to purchase a separate life insurance policy specifically to cover these obligations.
Clerk's Papers (CP) at 331-32.
The decree stated:
The Petitioner [Ralph] shall name the Respondent [Debra] as the beneficiary of his life insurance policy which he holds commensurate with his employment with Columbia Beverage, or another life insurance policy that he may elect to purchase, in an amount sufficient to cover his maintenance and child support obligations, less any social security benefits or other monetary benefits the Respondent or the parties' sons may receive in the unfortunate event of the Petitioner's death.
CP at 359-60.
Absent circumstances not yet present here, these provisions are adequately enforceable.
V.
Debra contends that the trial court abused its discretion by awarding her only $10,000 of the $27,000 of attorney fees that she claimed to have reasonably incurred. The trial court had discretion under RCW 26.09.140, and we perceive no abuse of that discretion here.
In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994), review denied, 126 Wn.2d 1011 (1995).
Debra also contends that we should award reasonable attorney fees on appeal. RCW 26.09.140 provides that an 'appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney's fees in addition to statutory costs.' In exercising that discretion, we may consider the arguable merit of the issues raised on appeal. The issues raised here are of questionable merit, Debra has not prevailed on any of them, and we decline to award fees on appeal.
In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990); see also RAP 18.1.
Affirmed, with each party to bear its own costs and fees.
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.
HOUGHTON, J. and ARMSTRONG, J., Concur.