Opinion
No. 60722-7-I.
December 29, 2008.
Appeal from a judgment of the Superior Court for King County, No. 02-3-07341-1, Mary E. Roberts, J., entered October 8, 2007.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Appelwick, JJ.
On remand, even after a previous mischaracterization of much of the property, a trial court may find that the same distribution of property in a marital dissolution case is just and equitable. A just and equitable division of property, even of community property, is not necessarily an equal division. Here, the trial court considered the factors required by statute, the origin of much of the community property, and was cognizant of this court's opinion as to the proper characterization of the property before it, when it ordered the exact same distribution of property as before. Further, the court acted within its broad discretion in its imputation of income to Joyce Shui and in its child support award. Therefore, we affirm the trial court.
See RCW 26.09.080.
FACTS
This is the second time this marital dissolution case has come before this court on appeal. Joyce Shui and Shawn Rose's marital history and the proceedings leading up to that may be found in our decision dated December 19, 2005. Both parties had appealed various findings and conclusions following their dissolution trial and the trial court's July 2004 entry of a decree of dissolution and related orders, including those relating to the distribution of property, imputation of earning capacity of each parent vis-à-vis child support, and the residential placement of the children.
In re Marriage of Shui and Rose, 132 Wn. App. 568, 125 P.3d 180 (2005), review denied, 158 Wn.2d 1017 (2006).
In our December 2005 opinion, we affirmed the trial court's orders regarding the residential placement of the children and its allocation of attorney fees. But, we reversed the orders as to the distribution of the parties' assets, Shui's imputed income, and the child support award. Because it was unclear whether the trial court would have made the same distribution had it properly characterized the proceeds of certain stock options, we remanded to reconsider its distribution of property. We left open the possibility that the trial court may choose to alter its child support award should it alter its distribution of assets between the parties or impute a different earning capacity to Shui on remand.
Shui, 132 Wn. App. at 592.
After limited additional discovery and a two-day hearing on remand, the trial court found the exact same distribution of property previously awarded to be just and equitable under the circumstances. The trial court also once again imputed an earnings capacity of $200,000 to Shui. Further, because the parties' economic circumstances were unchanged on remand, the trial court declined to alter its order on child support.
Our December 2005 opinion expressly permitted the trial court to take into account new information not before it in the dissolution trial regarding Shui's earnings capacity because she had resumed work in the legal field since then. Shui, 132 Wn. App. at 589 n. 31.
On July 11, 2008, Shui filed a motion to strike certain pages designated as supplemental clerks papers for this appeal, an exhibit not admitted into evidence at the remand trial, and portions of Rose's brief. Shui alleged that Rose was improperly supplementing the record on appeal with evidence not before or considered by the trial court. By notation ruling, a court commissioner ruled that the motion to strike was denied as to Rose's brief but otherwise referred the matter to the panel for a decision on the merits. We note that the supplemental clerk's papers numbering 266 through 320 had no bearing on our decision of the merits of the parties' arguments on appeal. Exhibit 63, however, was used by Rose for purposes of impeachment at the remand trial and it is clear from the record that this document was relevant to the trial court's decision on remand. The motion is denied.
ANALYSIS
Distribution of Property
On remand, the trial court ordered the exact same distribution of property as it had previously. This court's December 2005 opinion did not require the trial court to make a new distribution of the property. Rather, we ordered remand on this issue because:
[T]he record does not clearly indicate that the trial court would have distributed the property in the same way regardless of the characterization of the stock option proceeds. The trial court's conclusions of law merely state, 'The distribution of property and liabilities as set forth in the decree is fair and equitable.' It does not specifically state that it would have made the same decision regardless of the classification. Since the classification of the stock option proceeds in the investment accounts was crucial to the distribution, we must remand so the trial court may exercise its discretion with the correct character of the property in mind.
Shui, 132 Wn. App. at 586 (citation omitted).
On remand, the trial court clarified that its distribution of property did not depend on the characterization of the stock option proceeds and that "its original distribution of property, now viewed with the correct characterization in mind, is just and equitable." Such a determination was within the trial court's discretion on remand so long as the trial court followed this court's instructions.
Tacoma Bldg. Sav. Ass'n v. Clark, 8 Wash. 289, 290, 36 P. 135 (1894) (finding a trial court committed error when it failed to comply with the directions issued by appellant court for retrial on remand); see also In re Marriage of Nicholson, 17 Wn. App. 110, 114, 561 P.2d 1116 (1977) ("[M]ore is required to establish an abuse of . . . discretion than disagreement with the trial court's opinion or an honest difference of opinion. To constitute an abuse of discretion, the discretion must have been exercised upon a ground, or to an extent, clearly untenable or manifestly unreasonable. In order to conclude that a trial court manifestly abused its discretion, an appellate court is required to find that no reasonable person would have ruled as [the] trial judge did.") (citations omitted).
Shui alleges that the trial court failed to undertake the correct analysis and distribute property in accord with the factors enumerated in RCW 26.09.080. In a dissolution action, all property, both community and separate, is before the court for distribution. When distributing the property, the court considers, among other factors: (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. The statutory goal is a fair and equitable distribution. This does not necessarily mean an equal distribution or even an equal distribution of the parties' community property.
Friedlander v. Friedlander, 80 Wn.2d 293, 305, 494 P.2d 208 (1972); In re Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002).
RCW 26.09.080; see, e.g., In re Marriage of Zahm, 138 Wn.2d 213, 218, 978 P.2d 498 (1999).
RCW 26.09.080; In re Marriage of Konzen, 103 Wn.2d 470, 477-78, 693 P.2d 97, cert. denied, 473 U.S. 906, 105 S. Ct. 3530, 87 L. Ed. 2d 654 (1985).
The trial court emphasized that all evidence from the dissolution trial was still before it for consideration on remand. It is readily apparent from the record that the trial court did consider the above factors in its distribution of property, both initially and where necessary again on remand. In its order on remand, the trial court expressly stated it had "considered all the relevant factors." More specifically, the court noted therein that it was "a marriage of young professionals of only eight years" (factor No. 3), that "Ms. Shui is a very well-educated attorney, has a remaining career span of 20 plus years, and has a higher earning capacity as an attorney should she choose to work full-time in that capacity," and "Mr. Rose had a successful career at Microsoft prior to marriage" (factor No. 4). Further, there is no doubt the trial court considered the extent and nature of the separate and community property (factors Nos. 1 and 2).
See Stachofsky v. Stachofsky, 90 Wn. App. 135, 951 P.2d 346, rev. denied, 136 Wn.2d 1010 (1998) (while the character of property is relevant factor to its distribution, it is not determinative).
Consideration of these four statutory factors does not preclude a court from considering additional factors when awarding property in a marital dissolution. Here, the trial court found the origin of much of the community property, regardless of its ultimate characterization, important in making a distribution of property that was fair under the presenting circumstances. A trial court is not required to divide community property equally in distributing property in a marital dissolution action. In In re Marriage of Nuss, this court held the origin of community property as an important factor in making a property division. Here, the trial court considered not only the statutorily enumerated factors but also the less commonly considered, but no less relevant factor under the circumstances, origin of a significant portion of the community property. We find no abuse of discretion.
RCW 26.09.080 ("In a proceeding for a dissolution . . . the court shall, without regard to marital misconduct, 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.") (emphasis added).
In re Marriage of Crosetto, 82 Wn. App. 545, 556, 918 P.2d 954 (1996) (At trial court's division in marital dissolution "does not require mathematical precision, but rather fairness, based upon a consideration of all the circumstances of the marriage, both past and present, and an evaluation of the future needs of parties.").
In re Marriage of Rockwell, 141 Wn. App. 235, 170 P.3d 572 (2007), review denied, 163 Wn.2d 1055 (2008); Nicholson, 17 Wn. App. at 118.
65 Wn. App. 334, 828 P.2d 627 (1992) (awarding more of the real property in marital dissolution to the husband even though it was indisputably community property because it was fair given its origin as his separate property). The trial court's remand order specifically cites Nuss. While the Nuss case dealt with real property, there is no compelling reason why its reasoning would not be applicable to other types of property, including stock option proceeds.
Shui's Income and Earnings Potential
In our December 2005 opinion, we found that "the trial court [had] abused its discretion in imputing income [of $200,000 annually] to Shui based solely on a position that was no longer available in the marketplace for a person with her credentials." We also found that Shui's expert witness's testimony, Victoria Harris, a legal recruiter, was undisputed that after the dot.com bubble had burst a "1993 law school graduate [with Shui's qualifications] earns an average base salary of $125,000." Shui does not dispute that for a while she was making at least $200,000 gross per year while married to Rose as in-house counsel to Avanade until she was laid off because her position had been eliminated. Shui, however, maintains that such a salary is unavailable to her now given that the high-tech boom related legal market has ended. Shui was last employed full time as an attorney prior to the dissolution trial at $90,000.
Shui, 132 Wn. App. at 589.
Shui, 132 Wn. App. at 588-89.
In its order on remand, the trial court specified that it found the testimony of Shui's expert, Victoria Harris, and of Shui at the initial dissolution trial lacking in credibility on this issue. The evidence presented at the dissolution trial regarding Shui's career history and earnings capacity and the pertinent trial transcripts have not been included in the appellate record this time. In any event, however, issues of credibility are within purview of the trial court and will not be disturbed absent an abuse of discretion. We find no such abuse here.
Westmark Dev. Corp. v. City of Burien, 140 Wn. App. 540, 557, 166 P.3d 813 (2007) (quoting Burnside v. Simpson Paper Co., 123 Wn.2d 93, 108, 864 P.2d 937 (1994) ("'The credibility of witnesses and the weight to be given to the evidence are matters within the province of the jury and even if convinced that a wrong verdict has been rendered, the reviewing court will not substitute its judgment for that of the jury, so long as there was evidence which, if believed, would support the verdict rendered.'"); see also Bennett v. Bennett, 63 Wn.2d 404, 412, 387 P.2d 517 (1963).
On remand, Shui again testified regarding her earnings capacity but the trial court did not find her credible. In finding Shui's earning capacity to be considerably higher than Shui claimed, the court relied on a financial affidavit Shui had filed under RAP 18.1 seeking attorney fees in her first appeal. There, she averred she had lost approximately $14,000 a month in potential income due to Rose's frequent resort to litigation. The court also considered additional evidence submitted on remand, including that regarding Shui's three month's of employment as Edifecs in-house counsel in 2005. At Edifecs, Shui had a base salary of $150,000 and a guaranteed 33 percent annual bonus on top of her base salary. Although we may have come to a different conclusion based on the record before us, the trial court cannot be said to have abused its discretion on remand.
Child Support
The parties' economic circumstances did not change on remand as the trial court ordered the same distribution of property and imputed the same earnings potential to Shui as before. Thus, the trial court did not revisit its previous award of child support. This is in accord with our remand. We remanded on the issue of child support because of "the possibility that the parties' relative wealth might change upon a redistribution of assets on remand" where the trial court had "determined child support based in part on the relative wealth of the parties."
Shui, 132 Wn. App. at 589. We have already addressed and dismissed Shui's argument regarding the trial court's alleged failure to account for Rose's substantial assets and voluntarily unemployment in our December 2005 opinion.
For the above reasons, we affirm all of the trial court's orders before us on appeal.
We Concur: