Opinion
No. 57118-4-I.
October 9, 2006.
Appeal from a judgment of the Superior Court for Snohomish County, No. 02-3-02012-9, Ronald L. Castleberry, J., entered September 22, 2005.
Counsel for Appellant(s), Patricia S. Novotny, Attorney at Law, 3418 Ne 65th St Ste A, Seattle, WA, 98115-7397.
Counsel for Respondent(s), Robert Norwood Getz, Attorney at Law, 3102 Rockefeller Ave, Everett, WA, 98201-4029.
Catherine Wright Smith, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA, 98101-2988.
Valerie A Villacin, Edwards, Sieh, Smith Goodfriend, 1109 1st Ave Ste 500, Seattle, WA, 98101-2988.
Remanded by unpublished per curiam opinion.
Pamela Nelson appeals from the decree and parenting plan entered in a dissolution action. We conclude that the court's property division, maintenance award, and decision requiring joint decision-making were within its discretion. We remand, however, for correction of an erroneous finding and, if necessary, reconsideration of the maintenance award.
FACTS
Pamela and Neil Nelson divorced after nearly 30 years of marriage. They raised four children, three of whom were adults at the time of trial. The youngest child, Willie, was 14 at the time of trial.
The parents' marriage was marred by hostility, fighting and allegations of abuse. It was undisputed at trial, however, that the children were generally well-adjusted and successful and that the parents had done a remarkable job of raising them. Based on this history of success and her independent evaluation, the Guardian ad Litem recommended that the parents have shared custody and joint decision-making as to Willie. Pamela opposed both.
The evidence showed that Neil, who was 49 at the time of trial, had worked as a pipe fitter and earned an average of $6,350 per month. He testified that he planned to retire at age 55 because of the physical demands of his job.
Pamela, who was 50 at trial, had cared for the parties' children and had not worked outside the home for most of the marriage. She has a degree in psychology and testified that she intended to obtain a graduate degree in mental health counseling. She testified it would take her two years to obtain the degree, and two more years of internship before she could obtain her counseling license. With a license, she would earn at least $26,000 a year. At the time of trial, she was working as a para-educator, earning $1,615 per month during the nine-month school year.
The court concluded that Pamela should be the primary residential parent, but ordered joint decision-making on major decisions involving education, non-emergency health care, religious upbringing, tattooing, piercing etc., and driver's license matters. The court limited non-emergency communications between the parents to e-mail. It also ordered Neil to pay $678 a month in child support and $20,000 of Pamela's attorney's fees.
The court awarded Pamela 55%, and Neil 45%, of the parties' principal assets, which were valued at over one million dollars. Pamela's share included roughly $400,000 in cash and $185,000 of Neil's retirement benefits.
The court also awarded Pamela five years of maintenance, starting at $1,000 a month for the first two years, then declining to $750, $600, and $500 over the following three years. The court expressly considered Pamela's disproportionate award of property and the relevant circumstances of the parties in awarding maintenance:
Now, I recognize that Mr. Nelson indicates that he wants to retire at 55. Being a pipe fitter is a physically demanding job and that he's not as young as he used to be. But I also recognize that regardless of what Mrs. Nelson may do, whether it's continuing on as a para-educator, or whether it's becoming a teacher, or whether it's going into mental health counseling, she's going to be entering the job force . . . at a substantial disadvantage.
. . .
Finally, in terms of the request for maintenance, I am mindful, as I have indicated, that Mrs. Nelson has made a request . . . that maintenance continue until the date that Mr. Nelson retires and/or goes on Social Security. But I am also mindful that I have made a substantial disproportionate award of the assets. I am also mindful of the child support that will be paid in this case with no deduction for frequent visitation with Mr. Nelson or deviation downward for Mr. Nelson. And I am mindful that Mr. Nelson in fact in terms of his occupation is not in the prime of his physical abilities.
Therefore, it appears to me that based upon the need of the parties, the ability to pay, that the proposal of Mr. Nelson for maintenance is a reasonable one[.]
Shortly after the court's oral decision, the parties received an offer to buy the Bothell home for $1,062,000. Pamela then moved the court to reconsider the value it had assigned to that home in its oral decision. In a memorandum decision denying the motion, the court noted that it had adopted the parties' stipulated value of $475,000, that the offer for $1,062,000 was contingent on a rezone and therefore speculative, and that there was no showing that the "new" information regarding the home's value was not available when the parties entered into their stipulation. In findings entered with the decree, the court found that the parties had in fact considered the possibility of short-platting the Bothell property or "similar appreciation" but "nonetheless stipulated to a value of $475,000 for the house."
Finding of Fact 2.8.34.
Neil proposed to make a counter-offer to the potential buyer on the Bothell property and to provide Pamela 55% of any monies received for the property beyond $475,000. The court approved both proposals, but the counter offer was not accepted.
DECISION I.
Pamela first contends the trial court abused its discretion in ordering joint decision-making. We disagree.
Decisions regarding joint decision-making are reviewed for abuse of discretion. In re Marriage of Jensen-Branch, 78 Wn. App. 482, 490, 899 P.2d 803 (1995).
Under RCW 26.09.187(2)(b), a court must give one parent sole decision-making authority if both parents are opposed to joint decision-making, RCW 26.09.187(2)(b)(ii), or one parent is opposed and that opposition is reasonable under statutory factors. RCW 26.09.187(2)(b)(iii). Pamela claims that she explicitly opposed joint decision-making, and that Neil implicitly opposed it. In support of Neil's alleged opposition, she points to his request for mutual restraining orders prohibiting contact except via e-mail. But she ignores his testimony that he wanted "to have a major form of communication through e-mail," that e-mail communication had made things "quite pleasant," and that if communications were limited to e-mail "everything will work out fine." Moreover, she points to nothing in the record affirmatively establishing any opposition to joint decision-making on Neil's part. RCW 26.09.187(2)(b)(ii) is therefore inapplicable.
Pamela contends that subsection (b)(iii) is applicable because she opposed joint decision-making and her opposition was reasonable. In evaluating reasonableness, courts must consider the following:
(i) The existence of a limitation under RCW 26.09.191;
(ii) The history of participation of each parent in decision making in each of the areas in RCW 26.09.184(4)(a);
(iii) Whether the parents have a demonstrated ability and desire to cooperate with one another in decision making in each of the areas in RCW 26.09.184(4)(a); and
The areas listed in RCW 26.09.184(4)(a) are "education, health care, and religious upbringing."
(iv) The parents' geographic proximity to one another, to the extent that it affects their ability to make timely mutual decisions.
The first factor undermines Pamela's opposition and favors joint decision-making here because the court did not order limitations under RCW 26.09.191.
Pamela contends factor (ii) weighs in her favor because her history of decision-making in the areas of education and health was far more extensive than Neil's. While the evidence did show that she made health care appointments for the children and was more involved with their homework, that evidence related to day-to-day decisions, not the "major decisions" contemplated by the statutes and the decree. On the other hand, there was evidence that Neil had been involved in major decisions, including decisions regarding Paige's mental health, Sone's substance abuse, Sone's plans to finish high school, and a foster child they brought into their home. In addition, the court found that Pam had abused her decision-making authority by taking Willie to counseling and thereby sending him "the subtle message . . . that his desire for joint custody was wrong." The court prohibited either parent from taking "Willie to any mental health counselor, psychologist, or doctor, unless both parents agree in advance or the court orders it."
The parenting plan assigns day-to-day and emergency decisions to the parent with whom the child happens to be residing, and only requires joint decision making on "major decisions." CP 32. See RCW 26.09.184(4).
Finding of Fact 2.19.5.
Finding of Fact 2.19.10.
In short, the evidence tended to show a history of equal participation in major decisions, as well as abuse of major decision-making authority by the only parent opposing joint decision-making. In these circumstances, factor (ii) favors joint decision-making.
The same evidence supports joint decision-making under factor (iii), which looks to "[w]hether the parents have a demonstrated ability and desire to cooperate with one another in decision making in each of the areas in RCW 26.09.184(4)(a)[.]" That conclusion is bolstered by unchallenged findings that the parents had done "a remarkable job" of parenting and generally regarded each other as good parents.
See In re Marriage of Jacobson, 90 Wn. App. 738, 745-46, 954 P.2d 297 (1998) (fact that children "were very well-adjusted and successful" supported conclusion that parents had the capacity to cooperate despite their hostility toward each other).
Finally, factor (iv) favors joint decision-making since the parties are geographically proximate and will communicate only via e-mail.
In summary, the statutory factors weigh against Pamela's opposition to joint decision-making. The court did not abuse its discretion in ordering joint decision-making.
II.
Pamela contends the court erred in characterizing the Bothell residence as community property because she made the down payment with her separate property. Although the down payment was presumptively a gift to the community under the circumstances of this case, that presumption was rebutted, Pamela argues, by Neil's admission that she wanted to be repaid for the use of her separate property.
See In re Marriage of Hurd, 69 Wn. App. 38, 51, 848 P.2d 185 (1993).
We need not decide this question. A mischaracterization of property requires reversal only if the property division was significantly influenced by the court's characterization and it is unclear whether the court would have made the same distribution absent its mischaracterization. Here, the court expressly found that its distribution was "fair and equitable regardless of characterization."
In re Marriage of Shannon, 55 Wn. App. 137, 142, 777 P.2d 8 (1989).
(Emphasis added).
III.
Pamela challenges the trial court's property distribution and maintenance award, arguing that the result is not just and equitable. Again, we find no manifest abuse of discretion.
Trial courts have broad discretion in dividing property and awarding maintenance, and a court's decision in these areas will be disturbed only for a manifest abuse of discretion. By statute, the court must "make such disposition of the property and the liabilities of the parties . . . as shall appear just and equitable after considering all relevant factors." RCW 26.09.080. Likewise, maintenance "shall be in such amounts and for such periods of time as the court deems just[.]" RCW 26.09.090(1). The court may consider the duration of the marriage, the health and ages of the parties, their prospects for future earnings, their education and employment histories, their foreseeable future acquisitions and obligations, the nature and extent of the community and separate property, and the resulting economic circumstances of each spouse when the property is divided. The court's paramount concern is the economic condition in which the decree leaves the parties. The trial court is in the best position to determine what is fair and equitable.
In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.3d 102 (1999); In re Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990).
RCW 26.09.080, 090; In re Marriage of Gillespie, 89 Wn. App. 390, 399, 948 P.2d 1338 (1997).
In re Marriage of Williams, 84 Wn. App. 263, 270, 927 P.2d 679 (1996).
In re Marriage of Brewer, 137 Wn.2d at 769.
Pamela argues that the court failed to equalize the parties' post-dissolution standards of living and paid only lip service to the requirement that it consider the parties' future earning prospects. She contends the distribution not only leaves her without sufficient funds to return to school to acquire adequate job skills, but forces her into a deficit spending scenario while allowing Neil to stay "in the black" and retire at age 55. Pointing to the length of the marriage and the parties disparate earning power, she contends the court should have either awarded maintenance for a longer period or increased her share of the property distribution.
But the court's property division was very close to Pamela's own proposed property distribution below. She requested a 57/43 split, while Neil proposed, and the court ordered, a 55/45 split. The court awarded Pamela separate property worth between $11,000 and $31,000, and ordered five years of maintenance. It also ordered Neil to pay $20,000 of her attorney's fees from his share of the community assets. The decree thus provided Pamela with substantial cash assets and maintenance in the short run, and substantial retirement benefits when Neil retires. Although Pamela insists that the maintenance award is insufficient to enable her to attend school while meeting her expenses, her supporting calculations unreasonably discount the substantial liquid assets she received in the property distribution and the likelihood that Neil's ability to pay maintenance will diminish or come to an end in the relatively near future. Viewing the property division and maintenance award in light of all the relevant circumstances, we cannot say that the court manifestly abused its discretion.
Exhibit 9.
Pamela's argument that the court improperly considered Neil's desire to retire at age 55 is meritless. It is clear from the record that what the court considered was not Neil's desire to retire, but rather the fact that he might need to retire from pipe fitting at that age because of "the nature of his work" and the fact that he was "not in the prime of his physical abilities for his occupation." Findings of Fact 2.12.5 and 2.12.16. As noted above, a court may properly consider the age and health of the parties in dividing their assets and awarding maintenance. Neil's age and inevitable physical decline were important considerations given the nature of his work, and the court did not abuse its discretion in considering those facts. We note that, contrary to Pamela's assertions that the court focused "on Neil's declared preference for early retirement," the court warned him that he might not have "the wherewithal to retire when he's 55" and made retirement more difficult by awarding Pamela a substantial amount of his retirement benefits.
The facts here are similar to those in In re Marriage of Crosetto, 82 Wn. App. 545, 918 P.2d 954. The Crosettos were married for 21 years. The wife had a teaching certificate and at the time of trial was working part time as a substitute teacher. The husband had a business and was capable of earning approximately $75,000 per year. The wife's net monthly income was roughly $1,700, but would markedly improve once she obtained a full time position. The wife requested $1,500 per month in maintenance. After assessing various factors, the trial court awarded the wife 60 percent of the marital assets but no maintenance. Although it found she needed maintenance, the court declined to award it because she received a disproportionate share of the assets. The appellate court found no abuse of discretion. The overall award in the present case is comparable and was equally within the trial court's discretion.
See also In re Marriage of Mansour, 126 Wn. App. 1, 106 P.3d 768 (2004) (affirming 55/45 split in favor of wife plus maintenance in the form of mortgage payments until the parties' home sold); In re Marriage of Stachofsky, 90 Wn. App. 135, 147-48, 951 P.2d 346 (1998) (affirming award of 58 percent of the community estate to wife without maintenance).
Pamela relies heavily on this court's decision in In re Marriage of Sheffer, 60 Wn. App. 51, 57-58, 802 P.2d 817 (1990). In Sheffer, we reversed a maintenance award because the trial court did not adequately consider the parties' disparate earning capacities and postdissolution economic conditions. Sheffer is distinguishable, however, because its holding is limited to cases where "the superior earning capacity of one spouse is one of the few assets of the community." The trial court in Sheffer valued the community assets at $105,829 and awarded 60 percent of the amount to the wife. Because the wife had very limited work experience and spent about $200 per month on medication, the monthly income of the husband, which was over $4,900, was one of the very few reliable community assets. Under those circumstances, we held that the trial court's maintenance award of $1,200 per month for three years was inadequate. By contrast, the community assets in this case totaled more than a million dollars, and Pamela received 55 percent of those assets. Sheffer, therefore, is not persuasive authority here.
Sheffer, 60 Wn. App. at 57.
Sheffer, 60 Wn. App. at 53.
Sheffer, 60 Wn. App. at 52-53.
Sheffer, 60 Wn. App. at 53, 57-58.
In her reply brief, Pamela cites a number of other cases, all of which are distinguishable. See e.g. In re Marriage of Marzetta, 129 Wn. App. 607, 120 P.3d 75 (2005) (20 years of maintenance after 13-year marriage; wife had multiple sclerosis and wealthy husband had ability to pay); In re Marriage of Bulicek, 59 Wn. App. 630, 800 P.2d 394 (1990) (26-year marriage; maintenance awarded until wife died or husband retired; wife had "numerous" health problems); Stacy v. Stacy, 68 Wn.2d 573, 414 P.2d 791 (1966) (22-year marriage; five years of maintenance plus 75% of assets; wife had no degree or work experience and husband was only 43 and had considerable, long-term earning potential); In re Marriage of Morrow, 53 Wn. App. 579, 770 P.2d 197 (1989) (23-year marriage; lifetime maintenance; wife was in ill-health and court was unable to make equitable property division because husband had transferred community assets to third parties); In re Marriage of Nicholson, 17 Wn. App. 110, 116, 561 P.2d 1116 (1977) (ten years of maintenance following long term marriage; wife had only high school education and virtually no employment history; husband had steady job as plant supervisor, a good salary, and "excellent" long term earning potential); In re Marriage of Dessauer, 97 Wn.2d 831, 650 P.2d 1099 (1982) (25-year marriage; wife received 75% of assets but no maintenance; wife was seven years older than husband, had no vocational training or education, and had eye problem that prevented her from driving; husband had pension, earth moving business, and property rentals); In re Marriage of Donovan, 25 Wn. App. 691, 612 P.2d 387 (1980) (14-year marriage; wife received 66% of assets; wife had three young children at home, little earning potential, and received only two years of maintenance; husband was an airline pilot with a "substantial salary" and a "secure" future); In re Marriage of Rink, 18 Wn. App. 549, 571 P.2d 210 (1977) (24-year marriage; wife received 66% of assets; wife received only one year of maintenance, had only high school education and no vocational training or skills; husband was in good health and had steady employment).
Pamela correctly points out, however, that the court's finding regarding her current income for maintenance purposes was erroneous. Finding of Fact 2.12.10 states that "Mrs. Nelson now works as a para-educator earning $2137 per month during the 9 months that school is in session." But in another finding regarding her income, the "$2137" figure is crossed out and "$1615" is interlineated. Neil concedes that the latter figure reflects Pamela's actual pay. Thus, Finding of Fact 2.12.10 erroneously inflates Pamela's income by roughly $500 per month over nine months. It appears this may have simply been a clerical error and may not have affected the court's maintenance award. Nevertheless, because it is not clear from the record that the error was clerical, we must remand for the court to correct the finding and, if necessary, reconsider its award.
Finding of Fact 2.20.4.
V.
Next, Pamela contends the court abused its discretion when it declined to either order the parties to accept the post-trial offer on the Bothell home, or require Neil to pay her 55% of the market value established by the offer. But as Neil correctly points out, the fair market value of a property cannot be based on speculation. The post-trial offer on the Bothell property was contingent, and the higher value represented by that offer was, as the trial court noted, completely speculative. The court did not abuse its discretion in refusing to either order acceptance of the offer or revalue the Bothell property.
See Bellevue Plaza, Inc. v. City of Bellevue, 121 Wn.2d 397, 411, 851 P.2d 662 (1993).
VI.
Both parties request attorney's fees on appeal. To award fees on appeal, this court examines "the arguable merit of the issues on appeal and the financial resources of the respective parties." Having considered the parties' financial declarations and the merits of the appeal, we decline to award fees.
In re Marriage of (Griffin) Booth, 114 Wn.2d 772, 779, 791 P.2d 519 (1990); Leslie v. Verhey, 90 Wn. App. 796, 954 P.2d 330 (1998); RCW 26.09.140.
Remanded for further proceedings consistent with this opinion.
ELLINGTON and COLEMAN, JJ.