In Re The Marriage Of: Amber Hansen, Resp/cross-app v. Troy Edward Hansen, App/cross-resp ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of O 7n-:-'
) No. 73468-7-1 ''J--
AMBER HANSEN, ) (consolidated w/73860-7-1) co ';
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Respondent/ ) DIVISION ONE
Cross-Appellant, up C>;/'
and
) UNPUBLISHED OPINION
TROY EDWARD HANSEN,
) FILED: October 31, 2016
Appellant/
Cross-Respondent. ]
Becker, J. — Troy Hansen appeals from decisions regarding property division
and child support. Amber Hansen cross appeals from an order requiring the parties to
split equally the costs of postsecondary education for the children. We affirm.
Amber and Troy Hansen were married in 2001. They have two children, ages 12
and 7 at the time of the decree in April 2015. Throughout the marriage, Troy's income
was the family's primary source of support. He has owned and operated a bail bond
company since 1989. Amber did not work outside the home during the marriage.
According to undisputed findings of fact, she was financially dependent on Troy from the
time their relationship began several years prior to the marriage, when she was 17.
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In June 2013, Troy enlarged his business by purchasing a bail bond company in
another city. He funded this purchase in part by withdrawing $242,211 from retirement
accounts he shared with Amber. As a result of withdrawing retirement funds, the couple
incurred taxes and early withdrawal fees totaling $120,136.
Amber filed for divorce in October 2013. After a bench trial, the court determined
a 50/50 division of the couple's roughly $9 million estate was fair and equitable. Troy
was awarded the business and other assets and was ordered to make an equalizing
cash payment to Amber of $596,704. Maintenance was awarded to Amber at the rate
of $20,000 per month for 60 months. The court entered additional findings and orders
which included: Troy wasted community assets by withdrawing retirement funds; the
total value of the business includes the value of real property located in Kent,
designated as Troy's separate property; Troy must pay $4,000 per month in child
support; and the parties must equally split the costs of postsecondary education
support.
WASTE
When distributing property in a dissolution, a trial court may properly consider
one spouse's waste or concealment of assets. In re Marriage of Wallace, 111 Wash. App.
697, 708, 45 P.3d 1131, review denied, 148Wn.2d 1011 (2003). Washington courts
have characterized waste as "negatively productive conduct." In re Marriage of Clark,
13 Wash. App. 805, 808-09, 538 P.2d 145, review denied, 86 Wash. 2d 1011 (1975). Waste
has also been characterized as "gross fiscal improvidence, the squandering of marital
assets, or. . . the deliberate and unnecessary incurring of tax liabilities." In re Marriage
of Steadman, 63 Wash. App. 523, 528, 821 P.2d 59 (1991).
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Here, the court treated the $120,136 in taxes and penalties for withdrawing
retirement funds as a "predistribution" to Troy of community assets. Half that amount,
or $60,068, was deducted from Troy's share of the 50/50 division of community assets.
The court made two findings in support of this decision. First, Troy "wasted community
assets by cashing out IRA accounts totaling $242,211 and incurring tax penalties
($24,221) and additional federal income tax ($95,915) and he should be charged with
the penalty and additional tax in the total amount of $120,136 as predistributions of
property to him." Finding of Fact 2.7(20). Second, due to Troy's "actions in
contemplation of divorce, the parties' estate has minimal liquid assets." Finding of Fact
2.11(11). Troy challenges both findings. He asks that the decree be remanded for
amendment of the findings and an order requiring Amber to reimburse the sum of
$60,068.
We will not disturb findings that are supported by substantial evidence. In re
Marriage of Rockwell. 141 Wash. App. 235, 242, 170 P.3d 572 (2007). review denied. 163
Wash. 2d 1055 (2008). Substantial evidence is "'evidence of sufficient quantity to
persuade a fair-minded, rational person of the truth of the declared premise.'" In re
Marriage of Griswold. 112 Wash. App. 333, 339,48 P.3d 1018(2002) (Quoting Bering v.
SHARE, 106Wn.2d212, 220, 721 P.2d 918 (1995)). review denied, 148Wn.2d 1023
(2003).
The trial court heard testimony that Troy's decision to withdraw retirement funds
was prudent, despite the penalties incurred for liguidating a retirement account,
because it enabled him to expand his business by acquiring a new branch office. The
expected return on investment was higher than from the retirement account. On the
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other hand, the court heard testimony that the parties owned substantial unencumbered
property, suggesting that Troy could have financed the transaction from other sources
without incurring penalties. And Amber testified that although she agreed to the
withdrawal of retirement funds, she was unaware of the financial consequences.
The finding that Troy wasted assets refers to his decision to withdraw retirement
funds as a means of funding the purchase, not to his decision to make the purchase.
The court perceived that Troy's decision to liquidate the retirement accounts left the
community with few liquid assets at a time when divorce was contemplated. Initiation of
divorce proceedings is typically expensive for both parties. A shortage of ready cash
disadvantages the party who is not in control of the family income. The trial court could
reasonably view Troy's decision to incur tax liabilities as negatively productive conduct
in the context of its impact on the relative positions of the parties at the time the divorce
petition was filed.
We are unpersuaded by Troy's argument that Amber's agreement to the
liquidation of the retirement accounts precludes a finding of waste. A spouse's
acquiescence in the other's arguably wasteful spending is one factor that may be
relevant in analyzing whether waste occurred. See In re Marriage of Williams, 84 Wn.
App. 263, 270-71, 927 P.2d 679 (1996) (wife's gambling with husband's knowledge was
more like "entertainment costs" than "dissipation of assets"), review denied, 131 Wash. 2d
1025 (1997). But acquiescence is not dispositive. It is not clear Amber truly understood
Troy's decision to withdraw retirement funds or had any ability to influence it.
The court heard testimony suggesting the couple's relationship was unstable
around the time the opportunity to acquire the branch office arose and Troy decided to
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take it. Amber testified that she and Troy separated in April 2013, then reconciled in
May 2013. Troy denied that his reason for the temporary reconciliation was that he
wanted or needed Amber's compliance with the transactions involved in the acquisition.
But the trial court was in the better position to weigh his testimony, not this court. In re
Marriage of Greene. 97 Wash. App. 708, 714, 986 P.2d 144 (1999). The finding that
Troy's actions caused the parties' estate to have minimal liquid assets and were in
contemplation of divorce was an available inference from the evidence presented.
On this record, we conclude that substantial evidence supports the challenged
findings regarding Troy's withdrawal of retirement funds.
SEPARATE PROPERTY
The trial court found that the bail bond company was community property with a
value of $2,890,000. The business, the court found, included property located in Kent
and valued at $170,000 with no encumbrance, "which is husband's separate property."
Finding of Fact 2.7(9)(q).
Troy contends the court erred by including the value of Troy's separate property
in the overall valuation of the company and that he should be reimbursed accordingly.
Reviewing for substantial evidence, Rockwell. 141 Wash. App. at 242, we conclude the
record supports the finding that the company's operations included the Kent property.
A trial court has broad discretion to distribute property in a dissolution based on
factors listed in RCW 26.09.080. In re Marriage of Wright. 179 Wash. App. 257, 261, 319
P.3d 45 (2013), review denied. 186 Wn.2d , 327 P.3d 54 (2014). "The court may
distribute all property, whether categorized as community or separate." Wright, 179 Wn.
App. at 261. The court acknowledged the inclusion of the separate Kent property in the
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valuation of community property. "With due consideration of the criteria set out in RCW
26.09.080, the distribution of property and liabilities as set forth in the decree is fair and
equitable regardless of the character of the property before the court and the husband's
separate property claims." Conclusion of Law 3.4. Troy has failed to demonstrate that
the trial court's division of property was not based on appropriate factors or otherwise
constituted an abuse of discretion. We conclude the court did not err by including the
value of the Kent property in the valuation of the bail bond business.
CHILD SUPPORT
Troy challenges the child support order requiring him to make a monthly transfer
payment of $4,000. We review child support obligations for an abuse of discretion, in
re Marriage of Booth, 114 Wash. 2d 772, 776, 791 P.2d 519 (1990). A manifest abuse of
discretion occurs where the trial court's decision rests on untenable grounds. In re
Marriage of Zacapu. 192 Wash. App. 700, 705, 368 P.3d 242 (2016).
A statutory table establishes presumptive amounts of child support based on the
parents' combined monthly net income, up to $12,000. RCW 26.19.020. Under the
standard calculation, Troy's monthly transfer payment would have been $1,709. When
the parents' combined income is greater than $12,000, as it was in this case, a trial
court "may exceed the presumptive amount of support set for combined monthly net
incomes of twelve thousand dollars upon written findings of fact." RCW 26.19.065(3).
Cursory findings are inadequate. In re Marriage of McCausland, 159 Wash. 2d 607, 620,
152 P.3d 1013 (2007). The court must consider, at a minimum, the parents' standard of
living and the children's needs. McCausland. 159 Wash. 2d at 620-21.
No. 73468-7-1/7
Troy contends comments made by the judge during the proceedings indicate a
lack of consideration of the McCausland factors. But what is relevant in determining
whether the court followed McCausland is the court's written findings, not the court's
oral comments. An "oral decision of the trial court which is inconsistent with its written
findings and conclusions may not be used to impeach such findings." In re Marriage of
Raskob. 183 Wash. App. 503, 519-20, 334 P.3d 30 (2014).
The court found four reasons for deviating from the standard calculation:
1. The parents' combined monthly income exceeds $12,000 per month.
2. The children's needs and the family's historical child-related expenses.
3. Tax planning
4. Wealth
Troy argues these findings are too cursory to satisfy the McCausland standard.
The court included "the children's needs" as one of its reasons for deviating from
the standard calculation. Another reason was "wealth," which implies the court
considered the parties' standard of living. And, in a different section, the court found the
"standard of living during the marriage was high." Finding of Fact 2.11(6). Amber's
reasonable monthly expenses were found to be $24,000, an amount that included
expenses related to the children. Finding of Fact 2.11(6). We conclude the findings,
although they are skimpy and somewhat vague, are adequate under McCausland; they
demonstrate the court based the deviation on appropriate factors.
Nor did the court abuse its discretion when it declined to reconsider the child
support order in view of an amendment to the decree adjusting the income figures in a
way that lessened the income disparity. Troy again relies on oral comments by the
judge, which as previously mentioned do not control this court's analysis. In the
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absence of persuasive argument demonstrating an abuse of discretion, we conclude the
court did not err by declining to reconsider its child support order.
POSTSECONDARY SUPPORT
Amber cross appeals the order requiring each party to bear 50 percent of the
costs of postsecondary support.
Child support obligations must be equitably apportioned between parents. RCW
26.19.001. Postsecondary educational support is child support, In re Marriage of
Daubert. 124 Wash. App. 483, 502, 99 P.3d 401 (2004), abrogated on other grounds by
McCausland, 159 Wash. 2d 607 (2007), and it "must be apportioned according to the net
income of the parents." Daubert. 124 Wash. App. at 505. Troy's proportionate share of
the income is 66 percent and Amber's is 34 percent. Amber contends the court erred
by ordering them to share the cost egually.
If the facts support a deviation from the standard support obligation, the court
may also deviate from a proportionate allocation of extraordinary expenses. In re
Yeamans. 117 Wash. App. 593, 600, 72 P.3d 775 (2003); see ajso In re Marriage of
Casey, 88 Wash. App. 662, 667-68, 967 P.2d 982 (1997).
Amber argues against the application of Yeamans and Casey. She implies that a
disproportionate allocation of the responsibility for postsecondary support is equitable
only if it benefits the parent favored by the deviation from the basic support obligation.
For example, in Casey, the trial court granted the mother a deviation from her basic
support obligation, reducing her obligation from $25 to zero. Casey. 88 Wash. App. at
665, 667. The father was required to pay 100 percent of the children's transportation
costs and extraordinary health care expenses, even though his income constituted only
No. 73468-7-1/9
90 percent of the parties' combined income. Casey, 88 Wash. App. at 667-68. Here, on
the other hand, the deviation from the standard child support obligation favors Amber,
but the disproportionate allocation of postsecondary support favors Troy.
The trial court did not err. The standard is abuse of discretion, whether the
deviation is supported by poverty or by wealth. Because the trial court deviated from
the basic support obligation (increasing Troy's obligation from $1,709 to $4,000), the
court had discretion to deviate from a proportionate allocation of postsecondary support.
The property distribution leaves Amber with considerable wealth. When each child is
old enough to undertake postsecondary education, Amber's household expenses may
diminish. The record reflects that there is an account in the children's names with a
balance of over $100,000, and these funds are intended to go towards college tuition.
Under these circumstances, equal sharing of college costs is not inequitable and not an
abuse of discretion.
ATTORNEY FEES
At trial, the court awarded Amber $75,000 in attorney fees based primarily on
Troy's intransigence throughout the trial proceedings. The court found the award
represented the amount Amber's fees were needlessly increased and also recognized
Amber's need to have her attorney fees paid and Troy's ability to pay.
Amber requests an award of attorney fees on appeal. Under RCW 26.09.140,
our discretion to award fees is guided by the relative resources of the parties and the
merits of their positions on appeal. Troy has not been intransigent in this appeal and
the issues he has raised are not frivolous. Amber has substantial wealth, including
income-producing assets. We decline to grant Amber's request for fees on appeal.
No. 73468-7-1/10
Affirmed.
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WE CONCUR: u
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