Yeats v. Estate of Yeats, 90 Wn.2d 201, 206, 580 P.2d 617 (1978); Chase v. Chase, 74 Wn.2d 253, 257-58, 444 P.2d 145 (1968); Pittman v. Pitman, 64 Wn.2d 735, 737, 393 P.2d 957 (1964); Olsen v. Roberts, 42 Wn.2d 862, 864, 259 P.2d 418 (1953);
As a result of this error, she contends, the spouses become tenants in common as to the undistributed property. Pittman v. Pittman, 64 Wn.2d 735, 393 P.2d 957 (1964). In making the property distribution, the court divided the Hadley net worth, not including the tax reserve, between the parties.
The same rule of tenancy in common applies also to the retirement fund benefits. Pittman v. Pittman, 64 Wn.2d 735, 393 P.2d 957 (1964). In the present case, the community, month by month, acquired an inchoate interest in the insurance avails through the husband's salary deduction.
Declaratory relief was requested by appellant in the present proceeding, and the issue thus presented should have been given consideration. Pittman v. Pittman, 64 Wn.2d 735, 393 P.2d 957 (1964). We find no merit in and do not reach appellant's remaining assignments of error.
It is true that "[c]ommunity property not disposed of in a dissolution is owned thereafter by the former spouses as tenants in common." Yeats v. Estate of Yeats, 90 Wn.2d 201, 203, 580 P.2d 617 (1978) (emphasis added); see also Pittman v. Pittman, 64 Wn.2d 735, 737, 393 P.2d 957 (1964). However, the property at issue here clearly was disposed of by the decree.
We note that the parties hold any community property not disposed of in the court's rulings, orders, and judgments, as tenants in common. Yeats v. Estate of Yeats, 90 Wn.2d 201, 203, 580 P.2d 617 (1978); Pittman v. Pittman, 64 Wn.2d 735, 737, 393 P.2d 957 (1964). We turn now to Mark's three specific property distribution challenges that he raises for the first time on appeal, regarding the boat launch, his 2004 tax return expenses, and health care expenses for the couple's children.
Washington case law also would have cast some doubt on the validity of direct payments. See Pittman v. Pittman, 64 Wn.2d 735, 393 P.2d 957 (1964); Boronat v. Boronat, 13 Wn. App. 671, 537 P.2d 1050 (1975). Viewing the decree as a whole and considering the surrounding circumstances, we do not believe the court intended to order direct payments to Phyllis out of the retirement fund.
Res judicata, however, is not a proper defense for the very reason that the pension was not revealed to the court and was therefore not considered in the divorce proceedings. Pittman v. Pittman, 64 Wn.2d 735, 393 P.2d 957 (1964); Matthews v. Houtchens, 576 S.W.2d 880 (Tex. Civ. App. 1979). Equitable estoppel, on the other hand, requires as one of its elements acts or statements inconsistent with a subsequent claim.
In this state, community property, which has not been before the court during a divorce action, becomes common property of the parties which they hold as tenants in common. Pittman v. Pittman, 64 Wn.2d 735, 393 P.2d 957 (1964). In sum, we deem the settlement received by defendant husband to be community property.
[1] The law is well settled that the failure of Rolfe and Maymie Mollett to have the policy distributed by the decree would normally result in their ownership of the proceeds as tenants in common. Pittman v. Pittman, 64 Wn.2d 735, 393 P.2d 957 (1964). All parties to this appeal recognize this rule.