Opinion
No. 22745-6-III
Filed: May 24, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 02-3-00949-5. Judgment or order under review. Date filed: 01/27/2004. Judge signing: Hon. James P. Hutton.
Counsel for Appellant(s), W. James III Kennedy, Attorney at Law, 101 S 12th Ave, PO Box 1410, Yakima, WA 98907-1410.
Counsel for Respondent(s), Richard Louis Mathieu, Attorney at Law, 117 N 3rd St Ste 102, Yakima, WA 98901-2766.
James and Faith Haney married in 1998 and separated in 2002. Their marriage was dissolved; the court divided the couple's assets and liabilities. Claiming the court abused its discretion by failing to award her maintenance and in dividing the assets, Ms. Haney appeals. We affirm. The Haneys married on August 1, 1998. It was Ms. Haney's second marriage. The couple separated on July 1, 2002. They had no children.
Ms. Haney lived in the parties' home before their marriage. She purchased the home for $149,000. At the time of the marriage, she owed approximately $147,000.
Ms. Haney operated a day care out of her home and planned to open a hair salon. Her gross monthly income was between $4200 and $4400. Ms. Haney also had a $50,000 judgment against her first husband. During the marriage, she received $1000 a month to satisfy this judgment, which was paid in full by the time the Haneys separated. Her monthly expenses were between $4600 and $4700.
Mr. Haney worked for Mt. Hood Beverage Company. His gross monthly income was roughly $2600. He contributed $400 a month to his 401(k) plan. During the marriage, Mr. Haney contributed approximately $8000 to his 401(k). His monthly expenses were approximately $1900.
At the time of the marriage, both Mr. Haney and Ms. Haney had significant separate debt. They refinanced the home and paid their separate obligations as well as other community debts. After the refinance, the amount owing on the home was $197,468.
The court awarded Ms. Haney the home and most of the furnishings and one of the cars. Mr. Haney got a camp trailer, his vehicle, his 401(k), the dog, and his personal effects. The court ordered the parties to pay the debts associated with the property each received. The court entered a decree of dissolution. Ms. Haney appeals the court's division of property and failure to award her maintenance.
Ms. Haney requested an award of maintenance. She claimed she paid off approximately $23,000 of Mr. Haney's separate debt when she refinanced her house. Because Mr. Haney planned to file bankruptcy, she wanted maintenance in order to insure he remained obligated to pay his portion of the refinance.
The court found the refinance paid approximately $18,725 of Mr. Haney's separate debt. But it concluded the refinance was community debt and the parties benefited equally from the new loan.
The court also noted Mr. Haney was living in a travel trailer with few amenities. Ms. Haney continued to live in the home. She earned twice as much as Mr. Haney. She was in good health and had no need for further education. The parties were married but a short time. Ms. Haney was able to meet her living expenses. The court thus determined the criteria for maintenance was not met and declined to make an award.
We review a court's order regarding maintenance for an abuse of discretion. In re Marriage of Zahm, 138 Wn.2d 213, 226-27, 978 P.2d 498 (1999). The court abuses its discretion if it bases a decision on untenable grounds or for untenable reasons. Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990). `The only limitation on the maintenance award is that the amount and duration, in light of all the relevant factors, be just.' In re Marriage of Spreen, 107 Wn. App. 341, 347-48, 28 P.3d 769 (2001). `Of primary importance in the maintenance award are the parties' economic positions following the dissolution.' Id. at 348.
RCW 26.09.090 outlines the factors the trial court must consider in awarding maintenance. The record establishes the court considered all these statutory factors. After doing so, the court concluded an award of maintenance was unwarranted. The record supports the court's determination.
Ms. Haney asserts, however, that because Mr. Haney planned to file bankruptcy and discharge his debt, he should be required to pay her maintenance in order to insure he repaid his portion of the refinance. A court may make a supplemental award of maintenance if the assets of the parties are insufficient to permit fair compensation through a property division. In re Marriage of Washburn, 101 Wn.2d 168, 178, 677 P.2d 152 (1984). But Ms. Haney makes no showing the property was divided unfairly. The court did not abuse its discretion by refusing to make a maintenance award.
Ms. Haney next challenges the court's division of the assets and liabilities. A court has broad discretion in distributing the assets and liabilities in a dissolution. RCW 26.09.080; In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999). We will not disturb a distribution of property absent an abuse of discretion. In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989), review denied, 114 Wn.2d 1002 (1990).
Ms. Haney contends the court erred by failing to value the parties' assets and liabilities. The value of property in a dissolution action is a material fact. In re Marriage of Greene, 97 Wn. App. 708, 712, 986 P.2d 144 (1999). The court is required to value the property to create a record on review. Id. If the court does not value the property, this court may look to the record to determine the valuations, provided the values are not in dispute. Id. Review of the parties' position statements reflects some dispute in the valuation of the property, but mostly agreement. The record is sufficient for review.
Ms. Haney focuses on the distribution of only a few assets without considering the standard to which the court is held, that is, a just and equitable distribution after consideration of all relevant factors. RCW 26.09.080. `The parties' relative health, age, education and employability are considered in property divisions, and the ultimate concern is the economic condition of the parties upon the dissolution decree.' In re Marriage of Crosetto, 82 Wn. App. 545, 556, 918 P.2d 954 (1996).
Ms. Haney claims the court erred by failing to require Mr. Haney to reimburse her for his separate debt paid by the refinance of the house. But the court found this was a community debt. It awarded the house to Ms. Haney and also obligated her to pay the mortgage. Mr. Haney received very little property and some debt. Considering the entire property division, we find no abuse of discretion by the trial court.
Ms. Haney also claims Mr. Haney was not entitled to any increase in value in the house as the result of any improvements he made. There is nothing in the court's decision suggesting it considered these improvements when valuing the home. The court thus did not abuse its discretion in its division of the home and the debt.
Ms. Haney next asserts the court erred by not awarding her part of Mr. Haney's pension accumulated during the marriage. In light of the property division, however, awarding the full amount of the 401(k) to Mr. Haney was proper.
Ms. Haney claims the court erred in its division of the parties' outstanding tax liability. The court found the Haneys owed $8480 for their 2001 taxes. Mr. Haney's withholding for that year was $2765. Based upon the parties' income, the court determined he made 43 percent of the income and should accordingly be responsible for $3646, 43 percent of the tax, and one-half the tax preparation fee. The court concluded he owed $881 plus one-half the fee. Using the same formulation for the year 2000, the court concluded Mr. Haney paid $206 more than his portion of the taxes so he received a $206 credit toward his 2001 tax preparation fee. The court's decision fairly and equitably apportioned the outstanding tax liability.
Ms. Haney further contends the court failed to consider Mr. Haney's sick and vacation pay as a dividable asset. Vacation pay is a form of deferred earning. In re Marriage of Williams, 84 Wn. App. 263, 271, 927 P.2d 679 (1996), review denied, 131 Wn.2d 1025 (1997). Sick leave that may be cashed out on retirement is also a vested and matured benefit that must be allocated. Id. There is no evidence that either party viewed these items as an asset until Mr. Haney mentioned he had used all his vacation and sick pay because of an injury. Under these circumstances, Ms. Haney has failed to show the court abused its discretion.
Ms. Haney argues the court erred by awarding the dog to Mr. Haney because it did not characterize the dog as either community or separate property. Failure to characterize property may be reversible error. In re Marriage of Olivares, 69 Wn. App. 324, 330, 848 P.2d 1281, review denied, 122 Wn.2d 1009 (1993). But an error in characterization is not a basis for setting aside the court's division of liabilities and assets, provided the distribution is fair and equitable. Id. In cases where there is mischaracterization of property, the court will be affirmed unless the record indicates (1) that the property division was significantly influenced by characterization and (2) the court would not have divided the property in the same way in the absence of the mischaracterization. Id. The court did not characterize the dog as either community or separate property. Nonetheless, it is clear from the record that the court would have given Mr. Haney the dog regardless of its characterization. There was no abuse of discretion.
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.
SCHULTHEIS, J. and KURTZ, J., Concur.