In the Matter of the Marriage of: Hec Daniel Selvidge & Rebecca Lynn Selvidge ( 2020 )

FILED
APRIL 23, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of: ) No. 36767-3-III
)
HEC DANIEL SELVIDGE, )
)
Appellant, )
)
and ) UNPUBLISHED OPINION
)
REBECCA LYNN SELVIDGE, )
)
Respondent. )
LAWRENCE-BERREY, J. — Hec Selvidge appeals the trial court’s property award to
Rebecca Selvidge. We affirm.
FACTS
Hec1 raises three issues on appeal. We organize the facts based on those issues.
1. Hec’s claim for a separate property lien
Hec and Rebecca began living together in late 1997. She brought with her a horse
trailer, a pickup, and about $20,000 in cash. In November 1998, they became engaged,
but did not marry until September 2002.
1
We often refer to parties in a divorce appeal by their first names. This avoids the
overuse of “Mr.” and “Ms.”
No. 36767-3-III
Marriage of Selvidge
In April 2002, Hec entered into a real estate contract to purchase 21 Robinson
Street.2 At the same time, he also purchased a single wide mobile home for $12,000 cash.
Both Hec and Rebecca worked to develop the Robinson Street property. They placed the
mobile home on the property and moved into it around September. Hec paid five monthly
payments on the real estate contract before he married Rebecca. Those five payments
totaled $2,550.
In April 2010, Hec signed a quit claim deed, converting the Robinson Street
property to community property. He conveyed the property to the community to secure a
loan in his and Rebecca’s names so they could build a house on the property. He soon
after sold his mobile home for $8,000 and used the proceeds toward the new house.
In closing, Hec said he was not claiming a separate property lien with respect to
the $8,000 mobile home proceeds he put into the house. He instead argued he was
entitled to a separate property lien in the amount of the purchase price of the bare land.
In response, Rebecca argued the quit claim deed extinguished Hec’s separate
property interest. Alternatively, she argued Hec’s separate property lien was limited to
$2,550, the amount he paid toward the property during the five months before they
married.
2
The record contains no evidence of any down payment on this property.
2
No. 36767-3-III
Marriage of Selvidge
The trial court did not grant Hec a separate property lien in Robinson Street.
Instead, it found Hec gifted his separate property interest in Robinson Street to the
community to obtain a loan to improve the property.
2. The logging account
Parties in a dissolution action must, under Okanogan County Local Rule (LSPR)
94.04.01(d)(4), submit a final verified asset/debt matrix before trial. There are two
purposes for this. First, it permits the parties to know what assets and values are agreed
on and helps focus them on presenting their evidence. Second, the trial court uses the
matrices to assist in organizing its notes and arriving at a final property award.
Rebecca submitted a matrix in accordance with the local rule. Her matrix reflected
a bank account nominated as “Hec Selvidge Logging” valued at $43,726.01 on the date of
separation and proposed assigning the asset to Hec. Ex. 59. She did not testify
specifically about this asset. Instead, she testified that the values she assigned on her
matrix were true and accurate as of 2016. Hec did not testify about the value of the
logging account. In its findings of fact, the trial court assigned a value of $5,000 to that
account. Rebecca filed a motion for reconsideration, requesting the court to reconsider
the value of five items, including the value of the logging account.
3
No. 36767-3-III
Marriage of Selvidge
The trial court agreed there was no evidence to support its $5,000 finding, and the
only evidence before the court was the matrix entry. Hec argued the matrix was not
evidence and Rebecca should have submitted bank records to support the value. Rebecca
noted she actually got the value from Hec. The trial court decided it wanted the actual
bank records for the account for the month of February 2016, the month the parties
separated.
At the presentment hearing, the court reviewed the February 2016 bank records,
and they reflected that the value of the logging account was $45,623.14. Hec did not
object to the trial court considering the actual banking records posttrial.
3. Property distribution award
Based on this corrected value for the logging account, the trial court reduced
Rebecca’s earlier ordered equalization payment from $50,000 to $29,688.43. The final
property distribution award was $180,777.67 to Hec and $197,934.10 to Rebecca.
Hec timely appealed to this court.
ANALYSIS
1. SEPARATE PROPERTY LIEN
Hec contends the trial court erred in not recognizing he had an $18,550 separate
property lien in Robinson Street. Although unclear, it appears he arrives at this number
4
No. 36767-3-III
Marriage of Selvidge
by adding the $2,550 in payments he made on the property prior to marriage, $8,000 he
put into the new house from the sale of his mobile home, and an $8,000 down payment on
the property (of which there is no evidence in the record). He argues, even if the property
is deemed community property, he was able to clearly trace his separate property
contributions to preserve his right to a separate property lien.
Hec’s argument misses the point. The trial court found Hec gifted his separate
property interest to the community to obtain a loan to improve the property. Hec does not
assign error to this finding that he gifted his interest to the community. This finding,
therefore, is a verity on appeal. Scheib v. Crosby, 160 Wn. App. 345, 349, 249 P.3d 184(2011).3
2. RECONSIDERATION OF LOGGING ACCOUNT VALUE
Hec contends the trial court erred by granting Rebecca’s motion for
reconsideration. We begin by reviewing the standards for granting or denying a
reconsideration request.
3
The failure to assign error results in only a minor financial consequence to Hec.
At trial, he had waived his argument to the $8,000 proceeds from the sale of his mobile
home, and he did not present evidence at trial of his initial real estate down payment. Had
he assigned error to the trial court’s finding, at best, he could have received a $2,550
credit.
5
No. 36767-3-III
Marriage of Selvidge
A trial court’s decision to grant or deny a motion for reconsideration is reviewed
by this court for abuse of discretion. Barr v. Young, 187 Wn. App. 105, 111, 347 P.3d
947 (2015). Abuse of discretion is found only when the decision is “‘manifestly
unreasonable, or exercised on untenable grounds, or for untenable reasons.’” State v.
McCormick, 166 Wn.2d 689, 706, 213 P.3d 32 (2009) (quoting State ex rel. Carroll v.
Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971)). A trial court may deny reconsideration if
the requesting party fails to establish good cause. River House Dev., Inc. v. Integrus
Architecture, P.S., 167 Wn. App. 221, 231, 272 P.3d 289 (2012).
Hec raises three arguments why the trial court erred in granting reconsideration.
We address his arguments separately.
First argument: Rebecca should not receive a second chance to present evidence
Hec argues Rebecca waived her right to present evidence of the logging account’s
value. We disagree.
In a divorce proceeding, the owner of property can testify to its value.
Worthington v. Worthington, 73 Wn.2d 759, 763, 440 P.2d 478 (1968). Rebecca testified
that the values in her matrix were true and accurate as of 2016. Rebecca’s matrix
reflected the value of the logging account as $43,726.01. Although the matrix itself is not
evidence, Rebecca’s testimony about the values in her matrix is evidence.
6
No. 36767-3-III
Marriage of Selvidge
Second argument: The trial court erred by considering new evidence
Hec also argues the trial court erred by considering new evidence on
reconsideration. Hec correctly notes the trial court granted reconsideration based on
CR 59(a)(7)—no evidence to justify its decision. Hec correctly argues this basis for
reconsideration does not permit a court to consider new evidence. Meridian Minerals Co.
v. King County, 61 Wn. App. 195, 203, 810 P.2d 31 (1991); Holaday v. Merceri, 49 Wn.
App. 321, 330, 742 P.2d 127 (1987); Jet Boats, Inc. v. Puget Sound Nat’l Bank, 44 Wn.
App. 32, 42, 721 P.2d 18 (1986).
But here, the trial court reviewed the bank records because Hec argued Rebecca’s
matrix was not competent evidence. The trial court considered the logging account bank
records because it wanted its decision to be accurate. Hec did not object to the trial court
considering the logging account bank records.
We generally do not consider a claim of error that was not raised to the trial court.
RAP 2.5(a). Requiring errors to be first raised to the trial court “‘gives the trial judge an
opportunity to address an issue before it becomes an error on appeal, and promotes the
important policies of economy and finality.’” Wilcox v. Basehore, 187 Wn.2d 772, 788,
389 P.3d 531 (2017) (quoting State v. Kalebaugh, 183 Wn.2d 578, 583, 355 P.3d 253(2015)). Had Hec objected to the trial court considering the logging account bank
7
No. 36767-3-III
Marriage of Selvidge
records, the trial court might instead have relied on Rebecca’s testimony that her matrix
values were true and accurate.
Third argument: Remand to allow both parties to present new evidence
Hec also argues that if we remand to allow new evidence of the logging account
value, we should allow him to present new evidence that the logging account was mostly
funded from his separate property. Because we are not remanding to allow new evidence
of the logging account value, we need not address Hec’s final argument.
3. DISPARITY IN PROPERTY DIVISION
Hec contends the trial court abused its discretion by dividing the property in such a
way as to create a patent disparity between the parties. He argues there is no tenable
reason the trial court distributed the property to give Rebecca $17,000 more than it gave
him. We disagree.
When distributing property between divorcing parties, the trial court has extremely
broad discretion and this court will not reverse a trial court’s distribution decision absent
a showing of a manifest abuse of discretion. In re Marriage of Stachofsky, 90 Wn. App.
135, 142, 951 P.2d 346 (1998). We will only find a manifest abuse of discretion if no
reasonable judge would have distributed the property the same way. In re Marriage of
Kim, 179 Wn. App. 232, 240, 317 P.3d 555 (2014). If the division results in a patent
8
No. 36767-3-III
Marriage of Selvidge
disparity between the parties, based on their economic circumstances, this court will find
a manifest abuse of discretion. Id. at 253.
The record shows Rebecca and Hec earned similar net incomes. Rebecca earned
approximately $33,700 per year, and Hec earned approximately $31,600 per year. The
trial court’s division of property left Hec with an equalization judgment against Rebecca
of $29,688.43. As with most judgments, this judgment earns interest at 12 percent per
year. It will cause some economic hardship for Rebecca to pay this amount. We
conclude the judgment itself is a sufficient economic hardship to Rebecca that a small
disproportionality in the property award does not constitute a patently unfair division.
4. ATTORNEY FEES
Rebecca requests we award her reasonable attorney fees on appeal because Hec’s
appeal is frivolous. We decline to do so.
RAP 18.9 allows the trial court, either on its own initiative or in response to a
party’s motion, to order a party “to pay terms or compensatory damages to any other party
who has been harmed by the delay or the failure to comply or to pay sanctions to the
court” for filing a frivolous appeal. This may include attorney fees. Kinney v. Cook, 150
Wn. App. 187, 195, 208 P.3d 1 (2009).
9
I
No. 36767-3-111
Marriage ofSelvidge I
This court considers an appeal frivolous only if there are no debatable issues of
law and the appeal is "' so devoid of merit that there is no possibility of reversal.'" Id.(quoting Lutz Tile, Inc. v. Krech, 136 Wn. App. 899,906, 151 P.3d 219 (2007)). Any
doubts about whether an appeal is frivolous must be construed in favor of the appellant.
Id.We have sufficient doubt whether one or more of Hee' s arguments meet the
frivolous standard. For this reason, we deny Rebecca's request for reasonable attorney
fees under RAP 18 .9.
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.
WE CONCUR:
Pennell, C .J.
\ c..-:37
4
The Honorable Beth Andrus is a Court of Appeals, Division One, judge sitting in
Division Three under CAR 2l(a).
10