Opinion
No. 59672-1-I.
April 28, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-3-06902-7, Steven C. Gonzales, J., entered February 8, 2007.
Affirmed by unpublished per curiam opinion.
Douglas Orman appeals the trial court's distribution of property in the dissolution of his marriage to Leslie Orman as well as its award of fees. Although the evidence presented at trial does not support the conclusion that an investment account funded largely by traceable separate property became a community asset, because the trial court would have made the same distribution regardless of the character of the account and the overall distribution of property was not unreasonable, we affirm. We also affirm the trial court's reasonable award of attorney fees to Leslie.
FACTS
Douglas and Leslie Orman married on May 5, 2001, and separated on September 17, 2005. They agreed to child support and a parenting plan for their twin children born November 29, 2003. Following a trial regarding division of their property, the court dissolved their marriage on December 13, 2006.
The property before the court at trial included a house in Redmond, a Kirkland townhouse, a Charles Schwab account valued at $775,297.73, an individual retirement account (IRA) and 401(k) accounts, cars and various household and personal items. Prior to and during the marriage, Douglas worked at Microsoft where he earned stock options. At various times during the marriage, Douglas exercised his stock options and deposited the proceeds in an investment account. He presented evidence at trial tracing the $775,297.73 in the Schwab account to the exercise of particular options, including $53,277 from options on 9600 shares granted on July 1, 1997, of which 1,246.82 shares, yielding net proceeds of $6,921, vested after the marriage began. Douglas also presented evidence that 99.32 percent of the total proceeds he received from the exercise of stock options during the marriage resulted from options granted and vested before the marriage, while 0.68 percent of the proceeds resulted from options that vested during the marriage. Leslie did not challenge the evidence regarding the source of the funds in the Schwab account or dispute Douglas's claim that 99.32 percent of the total stock option proceeds were his separate property.
In its findings of fact and conclusions of law, the trial court listed as community property
A Schwab One Account valued at $775,297.73 as of September 21, 2006. Husband opened the account in both parties' names with funds generated through the exercise of his Microsoft stock options. A portion of those stock options vested after the date of marriage and a small portion of the funds were commingled.
The trial court concluded:
[T]he Schwab account was opened using funds that were commingled community and separate property. A portion of the Microsoft stock options used to open the fund — those that were initially awarded on 7/1/1997 — vested after the marriage began; those options are community property. In the Matter of the Marriage of Short, 125 Wn.2d 865, 871, 890 P.2d 12 (1995). Furthermore, the account was opened as a joint account in both parties' names. These factors lead to the conclusion that the account is community property. Even if this [sic] assets were not community property, the asset should be divided equally between the parties to provide for a home of the wife to raise the children as the couple agreed, to offset her loss for selling her residence at the time of marriage, and to balance her investment in the home that is to be awarded to the husband.
In the decree of dissolution, the trial court awarded Leslie half of the Schwab account, her IRA and 401(k) accounts worth $27,938.23, a car and personal property. The court awarded Douglas the family home in Redmond with a net value of $397,000, the Kirkland townhouse worth $400,000, half the Schwab account, his 401(k) worth $208,627, a car and personal property. The trial court also ordered Douglas to pay Leslie $11,000 in attorney fees.
Douglas appeals the trial court's characterization of the Schwab account as community property, the final property division, and the award of attorney fees. Leslie requests attorney fees on appeal.
ANALYSIS
All property, both community and separate, is before the court for distribution in a dissolution action. Friedlander v. Friedlander, 80 Wn.2d 293, 305, 494 P.2d 208 (1972). Relevant factors to be considered include, but are not limited to: (1) the nature and extent of community property, (2) the nature and extent of separate property, (3) the duration of the marriage, and (4) the economic circumstances of the parties. RCW 26.09.080; In the Matter of the Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002). The court has broad discretion to award all the property brought before it in a just and equitable fashion, and will be reversed only upon a showing of manifest abuse of discretion. RCW 26.09.080; In the Matter of the Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999); see also In the Matter of the Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005).
Although the character of property is a relevant factor to its distribution, it is not determinative. In the Matter of the Marriage of Konzen, 103 Wn.2d 470, 478, 693 P.2d 97 (1985), cert. denied 473 U.S. 906, 105 S. Ct. 3530, 87 L. Ed. 2d 654. Mischaracterization of property may require remand if "(1) the trial court's reasoning indicates that its division was significantly influenced by its characterization of the property, and (2) it is not clear that had the court properly characterized the property, it would have divided it in the same way." In the Matter of the Marriage of Shannon, 55 Wn. App. 137, 142, 777 P.2d 8 (1989).
Douglas first contends that the trial court erred in characterizing the Schwab account as community property. A spouse claiming separate funds has the burden to clearly and convincingly trace them to a separate source but if the funds become so commingled that it is impossible to trace them, the entire amount becomes community property. In re Marriage of Chumbley, 150 Wn.2d 1, 5-6, 74 P.3d 129 (2003).
Here, Douglas presented detailed and undisputed evidence tracing all the funds in the Schwab account from the exercise of his stock options and demonstrating that only $6,921 of the total $775,297.73 resulted from the exercise of options that vested after the marriage began. The trial court did not make any findings specifically accepting or rejecting this evidence but apparently relied on it to find that a portion of the options "initially awarded on 7/1/1997 — vested after the marriage began." Where such detailed and specific evidence demonstrates that community funds comprise less than 0.9 percent of an account, it would be inaccurate to conclude that the entire account is community property as a result of commingling. Similarly, merely opening an account as joint tenants with right of survivorship is not determinative. See, e.g., In the Matter of the Marriage of Skarbek, 100 Wn. App. 444, 448, 997 P.2d 447 (2000). But given the trial court's specific statement that it would have divided the Schwab account equally between the parties regardless of its characterization, remand is not required. In re Marriage of Stachofsky, 90 Wn. App. 135, 147, 951 P.2d 346 (1998).
Douglas also contends that the trial court abused its discretion in its distribution of the property because 1) the trial court improperly invaded Douglas's separate property to provide a home for Leslie and the children contrary to RCW 26.09.080(4); 2) a $387,648.87 cash award from Douglas's separate property is not an appropriate "offset" for Leslie's sale of her $169,900 pre-marital residence, netting $62,000, and does not "balance" Leslie's interest in a community property home with a net value of $397,000; 3) the marriage was short-term and did not affect Leslie's ability to support herself; and 4) the trial court based its award on Leslie's role as the primary residential parent for the children rather than the factors under RCW 26.09.080. We consider all the facts and circumstances to determine whether the property division is fair and equitable. Stachofsky, 90 Wn. App. at 147.
Based on our review of the record, if the Schwab account, less the community portion of $6,921, is characterized as Douglas's separate property, the total property distributed by the trial court included community property worth $474,335.55, Douglas's separate property worth $1,351,802.18, and Leslie's separate property worth $27,938.23. Of the total value of the property before the court for distribution, Douglas received approximately $1,412,989 or 76 percent and Leslie received approximately $441,087 or 24 percent. The marriage lasted four years and produced two children. Douglas's annual salary is $88,992, while Leslie's is $66,000.
The record reveals that the trial court considered each of the factors listed in RCW 26.09.080. RCW 26.09.080(4) does not limit the trial court's discretion in its consideration of the economic circumstances of the parties solely to the award or use of the family home. The trial court may award separate property of one spouse to another in effectuating an equitable division. Konzen, 103 Wn.2d at 477-78. The property awarded to Douglas exceeds the value of his separate property. Douglas fails to demonstrate that the property division was unfair or inequitable or constitutes a manifest abuse of discretion.
RCW 26.09.080 provides that the court shall
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 including, but not limited to: . . . (4) The economic circumstances of each spouse at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse with whom the children reside the majority of the time.
Finally, Douglas challenges the trial court's award of $11,000 to Leslie for attorney fees. The allowance and amount of attorney fees under RCW Title 26 rests in the sound discretion of the trial court and we will not disturb an award unless it is manifestly unreasonable or clearly untenable. In the Matter of the Marriage of Sanborn, 55 Wn. App. 124, 130, 777 P.2d 4 (1989). Under RCW 26.09.140, the trial court must balance the needs of the spouse requesting fees with the ability of the other spouse to pay. Kruger v. Kruger, 37 Wn. App. 329, 333, 679 P.2d 961 (1984). Douglas argues that the fee award was improper because Leslie had the ability to pay her own fees based on her cash award in the property division. But one "spouse's receipt of substantial property or maintenance does not preclude the spouse from also receiving an award of attorney fees and costs when the other spouse remains in a much better position to pay." In the Matter of the Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989) (award may be abuse of discretion where benefited spouse already received majority of parties' total assets). Because Douglas received a significant majority of the total assets here, the trial court did not abuse its discretion by awarding attorney fees to Leslie.
In the last line of the section of her response brief devoted to the trial court's award of attorney fees, Leslie requests an award of attorney fees on appeal pursuant to RAP 18.1(b). Because she failed to include a separate section with supporting argument in the brief, we deny her request for attorney fees. RAP 18.1(b); In re Marriage of Taddeo-Smith, 127 Wn. App. 400, 407, 110 P.3d 1192 (2005).
Affirmed.