Aliza Wiseman Fka Tristan Benz v. Timothy J. Benz ( 2015 )

FILED
COURT OF APPEALS
DIVISION 11
2015 JUN - 4 AM 8: 36
ST`` E 1' ASFINGTON
4
SY 1...
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Marriage of: No. 45674 -5 -II
ALIZA WISEMAN (f n/
/ a Tristan Benz),
Respondent, UNPUBLISHED OPINION
v.
TIMOTHY JAMES BENZ,
Appellant.
BJORGEN, A. C. J. — Timothy Benz appeals the order of child support, decree of
dissolution, and findings of fact and conclusions of law entered after the trial on Aliza
Wiseman' s petition to dissolve her marriage to Benz. Benz contends that ( 1) the trial court
unjustly or inequitably divided the parties' community and separate property in the decree of
dissolution, ( 2) the trial court made several errors related to the order of child support, and ( 3)
numerous irregularities occurred in the dissolution proceedings. We hold that ( 1) Benz fails to
show an unjust or inequitable division of the couple' s property, ( 2) Benz waived his major claim
of error related to the order on child support by stipulating to it in open court, and ( 3) any other
No. 45674 -5 -II
error or irregularity in the dissolution proceedings is either unsupported by the record or
harmless. We affirm.
FACTS
Benz and Wiseman' s marriage began in 1995. It ended in 2011 when Wiseman
petitioned for its dissolution and moved to California with the couple' s three children.
Both Wiseman and Benz represented themselves at the trial on Wiseman' s petition. After
Wiseman rested her case, Benz, who had reserved his opening statement, indicated a desire to
make one, but the trial court moved immediately into the presentation of his evidence. Benz then
introduced some evidence of his own before resting his case.
The evidence the trial court admitted gave it some measure of the parties' income, assets,
and liabilities. Benz worked as a real estate broker earning approximately $2, 500 per month.
Wiseman worked as a personal assistant earning " roughly under [$ 2, 000] a month doing social
media" work. Verbatim Report of Proceedings ( VRP) ( Oct. 1, 2013) at 58. Wiseman had also
received substantial sums of money for a loss of consortium claim from the death of her father,
but she testified at trial that she had spent that money on the upkeep of her children and business
endeavors.
The parties had significant assets. The evidence showed that the loss of consortium
payments Wiseman received had funded two annuities, one in her name and one in Benz' s, each
valued at $ 30, 000. In addition, Wiseman had nearly $ 82, 000 that she had taken from a
community account just before she separated from Benz. She claimed at trial that the money
came from the loss of consortium claim for her father' s death and was her separate property.
Benz had retirement accounts, " probably" existing before his marriage, worth approximately
20, 000, VRP ( Oct. 1, 2013) at 104 -06, and an annuity account in South Africa worth roughly
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100, 000. Finally, an individual named Mike Sumsky had executed a promissory note worth
70, 000 plus interest to Benz and Wiseman.
The couple owned a home in Port Orchard, although Benz stated that the home was in
foreclosure and there was no possibility of curing the default on the mortgage. Benz and
Wiseman also owned an interest in a timeshare, although Benz again claimed that interest had no
value.
The parties had resolved some, but not all, of the issues created by the dissolution before
trial. Benz and Wiseman had agreed to a parenting plan, which they had filed with the superior
court before the dissolution trial. Benz and Wiseman had also agreed to a child support payment
schedule requiring Benz to pay $ 750 per month, or $250 for each of the three children. The
parties stipulated to the existence of this agreement in open court and testified that it was in the
best interests of their children. Benz and Wiseman further stipulated in open court that Benz
owed three months of overdue child support payments. Finally, proceedings before the
Department of Social and Health Services had produced an agreed settlement /consent order
governing medical insurance and expenses.
Benz and Wiseman, however, could not agree to a division of their assets and liabilities.
Benz contended that the parties had an agreement, but Wiseman denied that any agreement
existed. Benz could offer no written proof of the agreement.
At the end of the dissolution proceeding, the trial court awarded each party the annuity
that named them as a beneficiary, their personal property, the money in their post -separation
accounts, and half of the Sumsky promissory note. Benz was awarded approximately three
quarters of his retirement account, or around $ 15, 000; the South African annuity; and the
couple' s interests in real property. Wiseman was awarded the $ 81, 000 that she had withdrawn
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from the money market account as her separate property and approximately one -quarter of
Benz' s retirement account, around $ 5, 000. The trial court adopted the parenting plan Benz and
Wiseman had agreed to, the stipulated order of child support, and the stipulated agreement that
Benz owed three months of overdue child support. It also left in place the agreed
settlement /consent order governing medical insurance and expenses.
Benz now appeals the order of child support, the decree of dissolution, and the findings
of fact and conclusions of law, incorporating the parenting plan, entered after the dissolution
trial.
ANALYSIS
I. PROPERTY DIVISION
Benz first contends that the trial court erred in its division of the parties' property,
appearing to make five arguments in this regard. First, Benz contends that the property division
was unjust and inequitable, because the trial court awarded Wiseman the funds she withdrew
from the community account as her separate property without a commensurate offset to him.
The offset Benz requests is an undivided interest in the Sumsky promissory note. Second, Benz
claims that the property division was unjust and inequitable because it left him with insufficient
assets to pay the order of child support. Third, Benz contends that the trial court erred by failing
to properly account for his and Wiseman' s income when distributing the parties' property.
Fourth, he contends that the trial court erred by failing to give effect to his and Wiseman' s
pretrial agreement to divide their property. Fifth, Benz contends that the trial court initially erred
in dividing some of the couples' property. We are not persuaded by these contentions and affirm
the trial court' s division of the property.
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RCW 26. 09. 080 governs the disposition of property and liabilities in dissolution
proceedings. The provision requires the trial court to divide all the parties' property, community
or separate, in a manner " just and equitable" in light of all relevant factors. RCW 26. 09. 080.
Those factors include, at a minimum, the nature and extent of the parties' community and
separate property, the length of the marriage or domestic partnership, and the economic
circumstances of each spouse or domestic partner at the effective date of the division of the
property. RCW 26. 09. 080( 1) -( 4).
We review the trial court' s division of property in dissolution proceedings for an abuse of
discretion. In re Marriage of Urbana, 147 Wn. App. 1, 9, 195 P.3d 959 ( 2008). The trial court
abuses its discretion where its ruling is manifestly unreasonable or it exercises its discretion on
untenable grounds or untenable reasons. Urbana, 147 Wash. App. at 9 -10.
We review the trial court' s classification of property as separate or community as a mixed
question of fact and law. In re Marriage ofMartin, 32 Wash. App. 92, 94 -95, 645 P.2d 1148
1982). Property is characterized as community or separate at the point of acquisition. In re
Marriage of Skarbek, 100 Wn. App. 444, 447, 997 P.2d 447 ( 2000). Damages a spouse receives
in compensation for a personal injury are acquired as separate property. In re Marriage of
Brown, 100 Wash. 2d 729, 737 -38, 675 P.2d 1207 ( 1984).
Depositing funds into an account does not constitute an acquisition of property. Skarbek,
100 Wn. App. at 446. Consequently, separate property deposited into a community account
retains its separate character unless commingled such that it cannot be distinguished from the
community funds in the account. Skarbek, 100 Wash. App. at 448. The party claiming that certain
commingled funds are separate property must " clearly and convincingly trace them to a separate
source." Skarbek, 100 Wash. App. at 448. Evidence satisfies the clear and convincing test when
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sufficient to convince the fact finder that the fact in issue is highly probable. " Dillon v.
Seattle Deposition Reporters, LLC, 179 Wash. App. 41, 86, 316 P.3d 1119 ( quoting Tiger Oil
Corp. v. Yakima County, 158 Wn. App. 553, 562, 242 P.3d 936 ( 2010)), review granted, 180
Wash. 2d 1009 ( 2014).
Benz contends that the trial court erred in finding that Wiseman had shown by clear and
convincing evidence that the funds she withdrew from the money market account were her
separate property. However, even if Benz were correct, he has not shown that the assumed
incorrect characterization of the withdrawn funds resulted in an unjust and inequitable division
of property.
First, any mischaracterization of property is harmless unless it "significantly
influence[ s]" the trial court' s division and we cannot tell on review that a proper characterization
would not have affected the trial court' s division of property. In re Marriage ofShannon, 55
Wn. App. 137, 142, 777 P.2d 8 ( 1989). Here, nothing suggests that the trial court based its
division of Benz and Wiseman' s property on its characterization of the money she withdrew.
Under Shannon, any error in characterizing the property is therefore harmless. 55 Wash. App. at
142.
Second, as already noted, the trial court' s duty in dividing the assets in a dissolution is to
reach a just and equitable distribution in light of all relevant factors. RCW 26. 09. 080. A review
of the trial court' s division of the property shows that it did so here. Benz and Wiseman each
received one of the $ 30, 000 annuities and half of the community' s interest in the $ 70, 000
promissory note. Each also received their post -separation property and the community property
they possessed after Wiseman moved out and took some of their things with her. Benz received
115, 000 of his separate property, $ 15, 000 from his retirement account and $ 100, 000 from the
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South African annuity, along with the parties' interests in real estate, which admittedly might
have negative value. Wiseman received the $ 82, 000 she withdrew from a community account as
her separate property and $ 5, 000 from Benz' s retirement account. The parties received a roughly
equal share of the total of their separate and community property, making the division just and
equitable given the parties' relatively equal earnings. The court did not abuse its discretion in
making this division.
Benz next contends that the trial court divided the parties' property in an unjust and
inequitable manner because the division left him unable to pay the order of child support. The
record does not support this claim. The trial court awarded him substantial assets. Nothing
shows that Benz cannot pay his child support obligations or that any such inability, if it exists,
resulted from the trial court' s order.
Benz also claims that the trial court failed to properly consider Wiseman' s income when
dividing his and Wiseman' s property. Again, the record does not support this claim. Benz had
greater income than Wiseman, and while Wiseman did receive money from an unrelated loss of
consortium claim, she testified that money was gone by the time of the dissolution trial.
Benz further argues that the trial court erred by refusing to give effect to his and
Wiseman' s pretrial agreement on the division of their assets. Civil Rule ( CR) 2A, however,
forbids the superior courts from recognizing a purported agreement once it is disputed, unless the
party attempting to enforce the agreement can provide written proof of the agreement or the
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counter party acknowledges the agreement in open court.' Benz could produce no document
signed by Wiseman stipulating to any division of property, and she denied the existence of any
agreement in open court. Under CR 2A, the trial court could not enforce the alleged agreement
to divide Benz and Wiseman' s property.
Finally, Benz maintains that the trial court' s original division of the parties' property
suffered from irregularities, namely that the trial court awarded one asset twice, awarded one
asset that did not exist to Benz, and failed to award two significant assets. We decline to address
the merits of this claim as it is moot. See State v. Deskins, 180 Wash. 2d 68, 80, 322 P.3d 780
2014). Even if Benz is correct about the trial court' s original division, the parties sought
clarification from the trial court and it provided for the proper division of these assets. We may
not provide him any effective relief given that correction.
The trial court' s division of property was just and equitable and was not an abuse of
discretion.
II. CHILD SUPPORT
Benz also appeals the order of child support, contending that the trial court awarded child
support payments to Wiseman that are neither in accordance with the Washington State Child
Support Schedule Worksheet nor commensurate with Benz' s income. Benz also contends that
the trial court erred by ordering that he pay overdue child support payments as a monetary
judgment and by allowing Wiseman to submit a " manipulated" worksheet. Appellant' s Br. at 5.
1 CR 2A provides that
n] o agreement or consent between parties or attorneys in respect to the
proceedings in a cause, the purport of which is disputed, will be regarded by the
court unless the same shall have been made and assented to in open court on the
record, or entered in the minutes, or unless the evidence thereof shall be in writing
and subscribed by the attorneys denying the same.
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Because the parties stipulated in open court that Benz could and should pay $750 a month in
child support in the best interests of the children and that he owed three months of overdue child
support, Benz waived any claims of error or rendered any error harmless. We affirm the order.
RCW 26. 09. 100( 1) requires the trial court to order " either or both parents owing a duty of
support to any child of the marriage or the domestic partnership" to pay child support as
calculated using chapter 26. 19 RCW for dependent children upon dissolution of a marriage.
RCW 26. 19. 020 sets the support schedule for a child based on the combined monthly net income
of the child' s parents, the child' s age, and the number of siblings the child has. RCW
26. 19. 035( 1)( c) generally requires the use of the child support schedule when ordering child
support under RCW 26. 09. 100, although RCW 26. 19. 075 allows the trial court to deviate from
the standard calculation. We review a trial court' s order of child support for an abuse of
discretion. In re Marriage of Griffin, 114 Wash. 2d 772, 776, 791 P.2d 519 ( 1990).
Benz first argues that the trial court erred by ordering $750 a month in child support and
accepting a " manipulated" child support worksheet. Appellant' s Br. at 5. Benz, however,
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agreed in open court that he would pay $ 750 a month in child support. By doing so, he waived
any claim that the trial court erred in ordering him to make those payments. In re Marriage of
Kaplan, 23 Wash. App. 503, 505, 597 P.2d 439 ( 1979).
Benz also claims that the ordered support is financially unsustainable and that his
agreement to the order was contingent upon the division of property he agreed to with Wiseman.
We reject these claims because nothing in the record supports them.
2 The parties' agreement alone is insufficient to justify a deviation from the scheduled payments.
RCW 26. 19. 075( 5). However, the record contains testimony from both Benz and Wiseman that
a deviation, which increased Benz' s payments, was in the best interests of the children. The
presence of that testimony indicates that the trial court did not order the deviation solely on the
basis of the parties' agreement, but also on the best interests of the children.
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Finally, Benz contends that the trial court erred by ordering a monetary judgment against
him for overdue child support and by coaching Wiseman to seek such a judgment. We find
Benz' s arguments unpersuasive. First, the trial court did not err when it did so; child support
payments become a judgment when due. In re Marriage ofKahle, 134 Wash. App. 155, 160 -61,
138 P.3d 1129 ( 2006); In re Marriage of Watkins, 42 Wash. App. 371, 374, 710 P.2d 819 ( 1985)
C] hild support payments become vested judgments- as the installments come due. ') ( quoting
Schafer v. Schafer, 95 Wash. 2d 78, 80, 621 P.2d 721 ( 1980)). Second, the record shows that the
trial court did not coach Wiseman; it instructed her, a pro se litigant, on how to properly prepare
the decree of dissolution it would issue as its order. The trial court' s order of child support was
well supported and was not an abuse of discretion.
III. TRIAL IRREGULARITIES
Benz next argues that a number of irregularities tainted the dissolution trial. Specifically,
he contends that the trial court ( 1) was incompetent, (2) denied him his right to an opening
statement, ( 3) gave disparate time to Wiseman to present her case, and ( 4) rushed to judgment,
failing to consider the exhibits and evidence offered by the parties. Benz' s claims are without
merit.
Benz first contends that it was error to allow Judge Dixon to preside over his trial because
Judge Dixon lacked experience in family law and failed to grasp the subject matter of the
dissolution proceedings. To the contrary, no evidence supports Benz' s contentions, and the
record shows that Judge Dixon did his best to work through a dissolution proceeding made
complicated by the fact that both litigants represented themselves.
Benz also contends that the trial court erred by refusing to allow him to make an opening
statement. Benz initially reserved his opening statement, and the trial court told him to ask to
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make an opening statement at the beginning of his case -in- chief. Benz appears to have made
such a request, but the trial court moved directly into the presentation of Benz' s case.
Nevertheless, Benz does not show that the error affected or presumptively affected the outcome
of the trial, and the trial court allowed him to present evidence and argue his case during closing.
We hold that any error was harmless. Brown v. Spokane County Fire Prot. Dist..No. 1, 100
Wash. 2d 188, 196, 668 P.2d 571 ( 1983) ( no reversal for error without prejudice).
Benz next contends that the trial court gave Wiseman significantly longer time to present
her case than it gave him. While true, that disparity occurred because Benz rested after
presenting a shorter case. The trial court in no way denied Benz equal time, and no error
occurred.
Finally, Benz contends that the trial court rushed to judgment and failed to consider the
evidence presented by the parties. No evidence shows a rush to judgment. Instead, the record
shows that the trial court attempted, as best it could, to consider the evidence presented by the
parties in a somewhat chaotic manner. We find no error.
IV. ATTORNEY FEES
Benz does not request attorney fees. Wiseman requests reasonable attorney fees for her
work in responding to Benz' s appeal. Pro se litigants who are not attorneys may not receive an
award of attorney fees on appeal. In re Marriage ofBrown, 159 Wash. App. 931, 938 -39, 247
P.3d 466 ( 2011). Therefore, we deny Wiseman' s request for attorney fees on appeal.
CONCLUSION
We affirm the trial court' s child support order, decree of dissolution, and findings of fact
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and conclusions of law.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
c.J
We concur:
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