Opinion
No. 22501-1-III
Filed: March 22, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No: 02-3-01023-5. Judgment or order under review. Date filed: 09/26/2003. Judge signing: Hon. Michael E. Donohue.
Counsel for Appellant(s), Arthur Harold Jr Toreson, Attorney at Law, 122 N University Rd, Spokane, WA 99206-5359.
Counsel for Respondent(s), Matthew J. Dudley, Attorney at Law, 2824 E 29th Ave 1b, Spokane, WA 99223.
In this dissolution appeal, the sole issue is whether the trial court erred by characterizing the parties' residence as community property and awarding it to Susan Schuler, formerly known as Susan Black. James B. Black contends the home is his separate property because he provided the down payment from his separate inheritance. We affirm.
FACTS
Mr. Black and Ms. Schuler were married on December 21, 1991 and separated on April 19, 2002. During their marriage, they jointly purchased a home in Otis Orchards. Mr. Black provided the down payment for the home from an inheritance. During his deposition, Mr. Black claimed he contributed $40,000. This left a remaining mortgage balance of $101,000. Prior to their separation, the parties refinanced the house, borrowing an additional $43,000 to pay off other debts. Both parties were employed and contributed to the mortgage payments.
Following a post-dissolution hearing regarding property distribution, the final parenting plan, and child support, the court found, 'Mr. Black's Trust Fund inheritance was commingled and is subject to community property division.' Clerk's Papers (CP) at 59. While this court has not been provided with a transcript of this hearing, the court's minutes are in our record. Additionally, appellate counsel has provided a narrative report of proceedings. Ms. Schuler alleges the hearing was not recorded. However, the court's minutes reference 'Audio Cassette Recorder — Tapes 772, 773, 774, 775.' CP at 59.
The court characterized the residence as community property and awarded it to Ms. Schuler. It divided the parties other assets and liabilities, awarding Mr. Black an equalization payment of $19,613.50. The court concluded its distribution of property and liabilities 'is fair and equitable.' CP at 106. Mr. Black disagreed and appealed.
ANALYSIS
The issue is whether the trial court erred in characterizing the parties' home as community property and awarding it to Ms. Schuler. Mr. Black contends the parties' residence is his separate property because his separate inheritance was used for the down payment.
Initially, Mr. Black contends the record before this court is inadequate for review. He requests remand because the property distribution hearing was not recorded as mandated under article 4, section 11 of the Washington Constitution. While this court has not been provided with a transcript of the post dissolution hearing, the court's minutes are in our record plus counsel's narrative. Further, the minutes reference that the proceeding was recorded on tape numbers 772, 773, 774, 775. The party seeking review bears the burden of perfecting the record so that this court has all evidence relevant to the issues on appeal. Dash Point Village Assoc. v. Exxon Corp., 86 Wn. App. 596, 612, 937 P.2d 1148 (1997). Whatever the circumstances regarding the verbatim report of proceedings of the post dissolution hearing, the record is sufficient to review Mr. Black's characterization issue.
A trial court has broad discretion in a marriage dissolution property distribution. In re Marriage of Olivares, 69 Wn. App. 324, 328, 848 P.2d 1281 (1993). In exercising its discretion, the court must characterize property as either separate or community. RCW 26.09.080; In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999). The law favors characterization of property as community property 'unless there is clearly no question of its separate character.' Brewer, 137 Wn.2d at 766-67. 'The asset is separate property if acquired before marriage; acquired during marriage by gift or inheritance; acquired during marriage with the traceable proceeds of separate property; or, in the case of earnings or accumulations, acquired during permanent separation.' In re Marriage of White, 105 Wn. App. 545, 550, 20 P.3d 481 (2001) (citations omitted). The asset is presumed community property if acquired during marriage. Id. 'An asset is characterized as of the date of its acquisition, and its character does not change thereafter, . . . regardless of whether the asset is improved, or its value enhanced, by property of a different character.' Id. at 550-51 (citations omitted). However, 'a spouse's use of his or her separate funds to purchase property in the names of both spouses, absent any other explanation, permits a presumption that the purchase or transaction was intended as a gift to the community. . . . [T]here must be clear and convincing proof to overcome such a presumption.' In re Marriage of Hurd, 69 Wn. App. 38, 51, 848 P.2d 185 (1993).
Here, Mr. Black's inheritance would be considered his separate property. However, when he used his separate property to purchase a home in both parties' names, it is presumed, under Hurd, to be a gift to the community. Hurd, 69 Wn. App. at 51. Moreover, the mortgage for the home was secured with community credit, further evidencing a community property characterization. In re Marriage of Chumbley, 150 Wn.2d 1, 7, 74 P.3d 129 (2003) (citing In re Marriage of Sedlock, 69 Wn. App. 484, 506, 849 P.2d 1243 (1993)).
Even assuming the court erred in characterizing the residence as community property, such an error is not reversible if the overall distribution is fair and equitable. In re Marriage of Brady, 50 Wn. App. 728, 731, 750 P.2d 654 (1988). But failure to properly characterize the property does require reversal where (1) the property division was significantly influenced by characterization and (2) it is not clear that the court would have divided the property in the same way absent the mischaracterization. In re Marriage of Shannon, 55 Wn. App. 137, 142, 777 P.2d 8 (1989). In this case, the court equally divided the parties' property and liabilities, awarding Mr. Black an equalization payment of $19,613.50. The residence was only one asset divided by the court and not likely to have significantly influenced the court's division; nor is it likely the court would have divided the parties' assets and liabilities any differently in the absence of the characterization. Accordingly, the trial court did not err in characterizing the residence as community property and it was within the court's discretion to award it to Ms. Schuler.
Ms. Schuler requests attorney fees on appeal under RCW 26.09.140 and RAP 18.1. To award attorney fees on appeal, this court examines 'the arguable merit of the issues on appeal and the financial resources of the respective parties.' In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990). We have received no additional information complying with RAP 18.1(b), which requires affidavits of financial need or inability to pay to be filed at least 10 days before oral argument. Accordingly, attorney fees are denied.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and KURTZ, J., concur.