Opinion
No. 37625-3-II.
July 7, 2009.
Appeal from a judgment of the Superior Court for Clark County, No. 05-3-01627-0, Edwin L. Poyfair, J., entered March 14, 2008.
Affirmed by unpublished opinion per Hunt, J., concurred in by Houghton and Quinn-Brintnall, JJ.
UNPUBLISHED OPINION
Alissa Satalich appeals the trial court's "equitable reimbursement" award of $95,000 to her former husband, Christopher Satalich. She argues that the trial court erroneously awarded this sum to Christopher because he failed to establish by clear, cogent, and convincing evidence that he had contributed $95,000 of his separate property to the marital residence. We affirm.
We refer to Alissa and Christopher by their first names for clarity; we intend no disrespect.
FACTS
Alissa and Christopher married on November 22, 2002. For six weeks before the wedding and for several months after, the parties lived in a home that Christopher owned in Vancouver, Washington.
I. Purchase of Ridgefield Property
In April 2003, Alissa and Christopher decided to purchase a house in Ridgefield, Washington. Christopher applied for a $412,000 loan. On the loan application, he listed his Vancouver property as an asset with a market value of $225,000 and a mortgage of $113,028. He also indicated that the source of the down payment for the new home would be "EQUITY FROM CURRENT HOME," namely his Vancouver property, for which a sale was pending. Alissa's name was not the loan application.
At the Ridgefield property's closing, Alissa signed a quit claim deed "to meet the requirement of the lender," Ex. 1, which she understood was necessary because Christopher's income qualified them for the loan; she (Alissa) did not work outside the home. The settlement statement for the Ridgefield property purchase listed the amounts paid as follows: $13,968.13 in "Deposit or earnest money"; $412,000.00 as the "Principal amount of new loan(s)"; and an $84,019.86 "deposit to escrow." Ex. 23. The settlement statement also showed $12,979.40 "cash at settlement from . . . borrower." Ex. 23. The settlement statement identified Christopher as the borrower; Alissa's name was not on the settlement statement.
II. Dissolution
About two years later, on September 3, 2005, Alissa and Christopher separated. On September 26, Alissa petitioned for dissolution of their marriage. The Ridgefield property was the largest asset before the trial court for distribution.
The parties have not assigned error to the trial court's distribution of parties' other assets, so we do not discuss them.
Alissa testified that (1) she assumed that she and Christopher had paid the almost $14,000 in earnest money for the Ridgefield property from their joint checking account; but (2) she did not know the source of the funds for the approximately $84,000 deposit to escrow or the almost $13,000 in cash that they paid at closing.
Asserting that the Ridgefield property was his separate property, Christopher testified that (1) he had applied the equity from the sale of his Vancouver property toward the purchase of the Ridgefield property; and (2) the proceeds of the Vancouver property sale had been "transferred through the mortgage system" without his ever possessing the cash. Christopher acknowledged, however, that Alissa had a community property interest in the Ridgefield property because he had used community property funds — his income during the marriage — to pay the mortgage during the two years they had lived in the home as husband and wife.
Following the two-day bench trial, the trial court found that the parties had $255,765 of equity in the Ridgefield property. To Christopher, the trial court "awarded equitable reimbursement of equity in the family home in the amount of $95,000" based on his having used the proceeds from the sale of his Vancouver property as the down payment on the Ridgefield property. The trial court treated the remainder of the equity in the Ridgefield property, $160,765, as community property.
In its oral ruling, the trial court explained:
The issue arises whether in fact this supposedly, as [Christopher] has indicated, is all separate property, or a portion separate and a portion community. There has been no disagreement that [Christopher] owned a home and then purchased another home and then sold that home [when Christopher and Alissa purchased the Ridgefield home]. This Court is giving an equitable reimbursement on the family home of $95,000. This Court is saying that $160,765 is community property.
Report of Proceedings (RP) at 88.
The trial court denied Alissa's request for a disproportionate share of the community property "based upon the length of the marriage (2 years, 10 months)." Instead, the trial court divided the community property equally between Alissa and Christopher. The trial court awarded Christopher possession of the Ridgefield house and other community assets with a net worth of $354,997 after subtracting community debts allocated to him. The trial court awarded Alissa community assets and allocated debts that yielded a net of $8,314.
Because of the significant difference in these net awards, the trial court ordered Christopher to pay Alissa $173,331.50 to create an equal division. The trial court also ordered Christopher to pay Alissa $5,000 reimbursement for "separate personal property items not returned," $20,000 in attorney fees, and $2,150 maintenance per month "until reviewed by the court."
The trial court based the attorney fee award on the parties' disproportionate earnings.
The order further provided: "Not sooner than February 1, 2010 . . . either party may move the court for such review." Clerk's Papers at 24. The trial court explained in its oral ruling that the maintenance would "probably . . . be ongoing for, I don't know, the rest of her life. I mean, it's going to be a long time." RP at 101.
Alissa appeals.
analysis I. Right to Reimbursement
Alissa argues that the trial court erred in awarding Christopher an equitable reimbursement in the Ridgefield property because he did not present clear, cogent, and convincing evidence tracing his separate property interest in a "presumptively community asset." We disagree.
The trial court has broad discretion when distributing assets in a dissolution case; and, in the appropriate circumstances, it need not distribute assets equally. In re Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001) (citing RCW 26.09.080). The trial court must consider all circumstances when deciding whether a party has a right to reimbursement, In re the Marriage of Miracle, 101 Wn.2d 137, 139, 675 P.2d 1229 (1984), including one spouse's unusually significant contributions to the assets to be distributed, White, 105 Wn. App. 551. Where the trial court awards an equitable right to reimbursement, the trial court must attach the right to reimbursement "'to a specific property on a specifically documented theory.'" In re Marriage of Marshall, 86 Wn. App. 878, 881, 940 P.2d 283 (1997) (quoting Gordon W. Wilcox Thomas G. Hammerlinck, Washington Family Law Deskbook, § 38.6 at 38-20 (1989 Supp. 1996)). We review the trial court's equitable reimbursement decision for abuse of discretion. Miracle, 101 Wn.2d at 139. We find no such abuse of discretion here.
Alissa is correct that we review de novo the trial court's characterization of property as community or separate. In re Marriage of Chumbley, 150 Wn.2d 1, 5, 74 P.3d 129 (2003). But the issue before us is not the trial court's characterization of property, but rather its award of an equitable reimbursement to Christopher for the substantial separate property funds he contributed to the community home.
The trial court awarded Christopher an equitable reimbursement attached to the Ridgefield property because he had contributed the proceeds from the sale of his separate Vancouver property toward the purchase of the community Ridgefield property. The record adequately supports the trial court's justification for this award: The loan application shows that the equity in Christopher's Vancouver property was almost $112,000 and that Christopher planned to use this equity as the down payment on the Ridgefield property. The settlement statement for purchase of the Ridgefield property shows deposits totaling almost $98,000 and a cash payment of almost $13,000, which Christopher testified came from the sale of his Vancouver property.
Alissa did not controvert Christopher's testimony. She testified only that she did not know the source of the funds used for the Ridgefield property down payment, but "assume[d]" some of them came from a joint checking account.
We hold that the trial court did not abuse its discretion when it awarded Christopher a $95,000 equitable reimbursement for a portion of his separate property contributions to the community property home.
II. Attorney Fees
Both Alissa and Christopher request attorney fees and costs under RCW 26.09.140. RCW 26.09.140 provides in pertinent part:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney's fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry of judgment. Upon any appeal, the 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.
Where a party requests attorney fees on the basis of financial need, he or she must file an affidavit of financial need no less than 10 days prior to the date the case is set for oral argument. RAP 18.1(c). Because neither party filed an affidavit of financial need, we do not award attorney fees under RCW 26.09.140 to either Alissa or Christopher.
Christopher also requests attorney fees and costs based on his contention that Alissa's appeal is frivolous. We consider the following factors when deciding whether an appeal is frivolous:
(1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.
Delany v. Canning, 84 Wn. App. 498, 510, 929 P.2d 475 (citing Streater v. White, 26 Wn. App. 430, 435, 613 P.2d 187, review denied, 94 Wn.2d 1014 (1980)), review denied, 131 Wn.2d 1026 (1997). Although Alissa is not the prevailing party on appeal, her appeal was not frivolous. Accordingly, we deny Christopher's request for attorney fees on appeal.
We affirm.
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, PJ. and QUINN-BRINTNALL, J., concur.