Hovsep Mkrtchyan, Appellant-cross Resp v. Lilit Adamyan, Respondent-cross ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of ) No. 78989-9-I
HOVSEP MKRTCHYAN, )
Appellant,
and
) UNPUBLISHED OPINION
LILITADAMYAN, )
) FILED: February 18, 2020
Respondent. )
VERELLEN, J. — Hovsep Mkrtchyan appeals the court’s entry of a permanent
parenting plan and division of community property. Mkrtchyan argues the court
abused its discretion because it did not consider each of the RCW 26.09.1 87(3)(a)
factors before entering the parenting plan and because it did not order an
additional psychological evaluation to confirm one expert’s testimony. On the
record presented, Mkrtchyan fails to show the trial court abused the broad
discretion it has when entering a parenting plan.
Mkrtchyan argues the court erred by classifying the couple’s house as
community rather than separate property because, first, the down payment for the
house came solely from his separate funds and, second, his then-wife transferred
her interest in the house to him in a quitclaim deed. Because substantial evidence
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supports the courts findings of fact and those findings support its conclusions of
law, the court did not err.
Based on the parties’ financial needs and abilities to pay, we award
Adamyan attorney fees on appeal.
Therefore, we affirm.
FACTS
Hovsep Mkrtchyan had been living in Washington and working for Microsoft
when he vacationed in his native Armenia and met fellow Armenian Lilit Adamyan.
After a brief and mostly long-distance courtship, the two married on August 29,
2014, and Adamyan moved to Redmond with Mkrtchyan. She soon became
pregnant with their son, M.M.
In September of 2015, they bought a house in Lynnwood. After M.M. was
born, Adamyan was a full-time parent and homemaker, and Mkrtchyan continued
working for Microsoft as a senior software developer. The couple’s marriage
became increasingly contentious and, on October 19, 2016, Mkrtchyan filed for
dissolution.
The couple engaged in almost 20 months of acrimonious pretrial litigation.
Mkrtchyan contended that Adamyan was mentally ill and a danger to their child.
Adamyan contended that Mkrtchyan was abusive, using money and isolation to
control her. The court appointed a guardian ad litem (GAL) to investigate the
allegations and ordered both parents to undergo mental health evaluations. Dr.
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Monique Brown evaluated Mkrtchyan and Adamyan, determined Adamyan was
not mentally ill, and recommended therapy for both parents.
After a 10-day trial, the court granted the dissolution and entered a final
parenting plan. The parents have shared decision-making authority and equal
residential time with their son. As part of the plan, both parents must participate in
one year of individual therapy. The court found that the couple’s house was
community property, although Mkrtchyan used his separate funds for the down
payment. The court awarded Mkrtchyan the house and required that he pay
Adamyan a $65,000 equalization payment.
Mkrtchyan appeals.
ANALYSIS
I. Parenting Plan
We review a trial court’s decisions on the provisions of a parenting plan for
abuse of discretion.1 A court abuses its discretion where its decision rests on
untenable grounds or was made for untenable reasons.2
Mkrtchyan argues the trial court “wholly disregarded” Dr. Brown’s evaluation
of Adamyan because it felt the evaluation was “not ‘terribly helpful.”3 And,
Mkrtchyan contends, disregarding the evaluation meant the court failed to consider
every RCW 26.09.187(3)(a) factor before entering a permanent parenting plan.
1 In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997).
2 Id.~ Appellant’s Br. at 34-35 (quoting Clerk’s Papers (CP) at 18).
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No. 78989-9-114
Mkrtchyan’s argument rests on an inaccurate premise. The court expressly
“reviewed the evaluations by the psychologists,”4 and heard several days of
testimony from the psychologists about their evaluations.5 After doing so, the
court concluded the evaluations were “interesting but. . . not. . . terribly helpful.”6
The court did not disregard Dr. Brown’s evaluation but instead gave it less weight
than other evidence. This is a question of credibility, and we do not review
credibility determinations by the finder of fact.7 Because the court considered
Adamyan’s psychological evaluation, the real issue is whether the court
adequately considered the factors required in RCW 26.09.187(3)(a).
Mkrtchyan argues “the absolute lack of findings assessing the factors under
RCW 26.09.187” showed the court failed to consider them.8 But “findings are not
~ CP at 18.
~ Before Dr. Brown evaluated Adamyan, Dr. Christen Carson attempted an
evaluation. Dr. Carson concluded her own results were invalid because of “five
different cautions,” such as Adamyan’s cultural background and language skills,
that potentially affected the validity of her testing. RP (June 7, 2018) at 398.
Because these results were invalid and Dr. Brown had already tested Mkrtchyan,
the court ordered that Dr. Brown evaluate Adamyan as well.
6 CP at 18. The court did not explain why Dr. Brown’s evaluation was not
helpful, but it heard testimony from Dr. Carson strongly criticizing Dr. Brown’s
conclusions and methods. RP (June 7, 2018) at 444, 505-07 (testifying that Dr.
Brown’s conclusions about Adamyan possibly having a personality disorder were
internally inconsistent and did not make sense). Dr. Carson also criticized Dr.
Brown’s use of a “controversial” testing protocol because “it can over-pathologize.”
~Lat386,406.
~ Burrill v. Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).
8 Appellant’s Br. at 37.
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required when the statute requires only that the factor[s] be considered.”9 And in
absence of evidence to the contrary, ‘we assume the trial court discharged its duty
and considered all evidence before it.”1°
RCW 26.09.187(3)(a) requires that a court “consider the following factors”
before entering a permanent parenting plan:
(i) The relative strength, nature, and stability of the child’s
relationship with each parent;
(ii) The agreements of the parties, provided they were entered into
knowingly and voluntarily;
(iii) Each parent’s past and potential for future performance of
parenting functions as defined in RCW 26.09.004[(2)], including
whether a parent has taken greater responsibility for performing
parenting functions relating to the daily needs of the child;
(iv) The emotional needs and developmental level of the child;
(v) The child’s relationship with siblings and with other significant
adults, as well as the child’s involvement with his or her physical
surroundings, school, or other significant activities;
(vi) The wishes of the parents and the wishes of a child who is
sufficiently mature to express reasoned and independent
preferences as to his or her residential schedule; and
(vii) Each parent’s employment schedule, and [the court] shall make
accommodations consistent with those schedules.
~ Matter of Parental Rights to K.J.B., 187 Wn.2d 592, 603-06, 387 P.3d
1072 (2017).
10 In re Marriage of Croley, 91 Wn.2d 288, 291, 588 P.2d 738 (1978); see
Young v. Thomas, 193 Wn. App. 427, 443, 378 P.3d 183 (2016) (“When evidence
of those factors [in RCW 26.09.1 87(3)(a)] is before the court and its oral opinion
and written findings reflect consideration of the statutory elements, specific
findings are not required on each factor.” (quoting In re Marriage of Murray, 28
Wn. App. 187, 189, 622 P.2d 1288 (1981))).
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The first factor must be given the greatest weight.11
Because the statute merely requires consideration of every factor, the
record shows the parties presented extensive evidence on each factor, and the
court’s ruling is consistent with having reviewed the evidence presented, we
conclude the court adequately considered the RCW 26.09.187(3)(a) factors.
Specifically, the court reviewed every exhibit admitted. These exhibits
included each parent’s psychological evaluation and several GAL reports that
addressed each RCW 26.09.187(3)(a) factor. In its oral ruling, the court found
“each of you love your son very much” and “want what is best for him.”12 And the
GAL reported that M.M. “is attached and bonded with each parent, and each has
unique qualities that they bring to the child.”13
Considering Mkrtchyan and Adamyan’s abilities to parent, the court ordered
one year of individual mental health counseling for each parent to benefit
themselves and their son. This is consistent with Dr. Brown’s recommendation
that both parents
work with their individual therapists on ways to embrace their cultural
backgrounds and how their cultural differences with each other and
within the culture within which they presently reside might affect their
co-parenting and the changing identity needs of a child born and
raised of immigrant parents in the United States.[141
~1 RCW 26.09.187(3)(a).
12 RP (July 17, 2018) at 5.
13 Ex. 35 at 10-11.
14 RP (June 6, 2018) at 232 (quoting Ex. 21 at 29).
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Similarly, the GAL recommended that both parents “seek individual mental health
therapy for a period of one year.”15
Mkrtchyan raised many concerns about Adamyan’s ability to parent, but the
court found any past issues “ha[ve] been resolved at this time” because M.M. “is
getting good nutrition, love from everybody in this family, and [is] at this point
thriving.”16 It also found that Adamyan “is working toward a new life” because she
“has a new job, [is] renting a new apartment, has her own car, has better language
skills, has been investigating daycares, [and] she not only supports speech
therapy [for M.M.] but is actively expressing her opinions on who would be an
appropriate therapist.”17 The court concluded Adamyan’s past performance in the
marriage was not reflective of her current state because she “has moved on from
the person she once was when she moved here in 2014.”lB
The court accounted for M.M.’s daycare attendance and educational needs.
The court considered both parents’ work schedules in the parenting plan and
revised the parenting plan after Adamyan’s work schedule changed.
The court’s written and oral rulings demonstrate that it considered each
factor under RCW 26.09.187(3)(a).
15 Ex. 32 at 39.
16 cp at 19-20.
17 CP at 21.
18CP at2l.
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Despite this record, Mkrtchyan argues the court lacked sufficient
information on Adamyan and should have ordered a third psychological evaluation
of her because Dr. Brown opined she could have an undiagnosed personality
disorder. But no expert believed a third evaluation would be helpful. Dr. Brown
and Dr. Carson both rejected conducting additional evaluations at that time.19 And
the GAL’s final report recommended individual therapy rather than additional
testing. Only Mkrtchyan supported further delaying entry of a permanent parenting
plan to conduct a third psychological evaluation. The court did not abuse its
discretion or otherwise err by rejecting Mkrtchyan’s request for additional testing.2°
On this record, Mkrtchyan fails to show the court abused its broad
discretion by entering a final parenting plan with equal residential time and shared
decision-making authority.
l9`` RP (June 5,2018) at 134 (Dr. Brown rejecting additional testing at
the time); RP (June 7, 2018) at 508 (Dr. Carson testifying additional testing would
not have been “prudent”).
20 To the extent Mkrtchyan suggests Dr. Brown’s personality disorder theory
compelled individual psychotherapy followed by additional testing of Adamyan, this
argument rests on the credibility of Dr. Brown. But the trial court determined that
Adamyan had resolved any parenting issues, implicitly rejecting any risk of future
parenting issues. And credibility questions are left to the finder of fact. Burrill, 113
Wn. App. at 868. Given Dr. Carson’s strong criticisms of Dr. Brown’s conclusion
on this topic, the court was free to give one expert’s opinion greater weight than
another’s.
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II. Property Division
In a dissolution proceeding, the characterization of property presents a
mixed question of law and fact.21 As a legal question, we review de novo whether
the property was properly characterized as community or separate.22 We review
factual questions, such as when the property was acquired and the parties’
intentions, for substantial evidence.23
Mkrtchyan contends the court erred by concluding the couple’s house was
community property. He argues “the home was the husband’s separate property
because the trial court properly found that the husband used his separate property
to fund the down payment.”24
RCW 26.16.010 defines “separate property” as any “[p}roperty and
pecuniary rights owned by a spouse before marriage and that acquired by him or
her afterwards by gift, bequest, devise, descent, or inheritance, with the rents,
issues and profits thereof.” RCW 26.16.030 defines “community property” as any
property, other than separate property, acquired after marriage. It is well settled in
21 In re Marriage of Kile & Kendall, 186 Wn. App. 864, 876, 347 P.3d 894(2015).
22 Id.23 Id.24 Appellant’s Br. at 41.
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Washington that “the character of property as separate or community property is
determined at the date of acquisition.”25
Here, it is undisputed that Mkrtchyan and Adamyan acquired the house
during their marriage.26 Thus, we presume the house was community property,27
and Mkrtchyan has the burden of rebutting that presumption.28
To establish that the house was his separate property, Mkrtchyan must
provide clear and convincing evidence he acquired the house with his separate
funds.29 He relies heavily on the court’s finding that his separate funds were used
for the down payment on the house. He quotes In re Marriage of Chumbley for the
proposition that “[p]roperty acquired during marriage has the same character as
the funds used to purchase it.”3° But the Chumbley court was analyzing a stock
purchase,31 which is legally and substantively different than a purchase of real
property acquired by a down payment combined with a loan secured by a
25 In re Estate of Bor.qhi, 167 Wn.2d 480, 483-84, 219 P.3d 932 (2009)
(citing Harry M. Cross, The Community Property Law, 61 WASH. L. REV. 13, 39
(1986)).
265~ RP (June 14, 2018) at 1187 (Mkrtchyan testifying that the house was
purchased in September of 2015).
27 Kile & Kendall, 186 Wn. App. at 876.
28 See k1. (“The burden of rebutting this [community property] presumption
is on the party challenging the asset’s community property status and can only be
overcome by clear and convincing proof that the transaction falls within the scope
of a separate property exception.”) (internal quotation marks omitted) (quoting
Dean v. Lehman, 143 Wn.2d 12, 19-20, 18 P.3d 523 (2001)).
29 Schwarz v. Schwarz, 192 Wn. App. 180, 189, 368 P.3d 173 (2016).
30150 Wn.2d 1,5,74 P.3d 129 (2003).
31 kI. at 4-5.
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mortgage.32 The proposition from Chumbley is misapplied where, as here, the
contested property was not truly “acquired” in a single cash payment.
Mkrtchyan and Adamyan used a mortgage to acquire a house during their
marriage. Mkrtchyan does not challenge the finding that the mortgage was
community debt, making it a verity on appeal.33 And although Mkrtchyan notes he
had separate property funds available to pay the mortgage, he fails to cite any
evidence he actually used those funds to make mortgage payments. Under these
facts, Mkrtchyan’s use of his separate funds for a down payment does not rebut
the presumption that the couple acquired the house as community property.
Mkrtchyan also relies on a quitclaim deed signed by Adamyan—purporting
to deed her interest in the house to him—to rebut the community property
presumption. But “the name on a deed or title does not determine the separate or
community character of the property, or even provide much evidence.”34 The
critical question is whether clear and convincing evidence shows the grantor
spouse’s intent to change the property from community to separate.35 Because
spousal intent is a question of fact, Mkrtchyan’s argument is actually a challenge
32See State of Cal. v. Tax Comm’n of State, 55 Wn.2d 155, 158, 346 P.2d
1006 (1959) (shares of stock are personal property).
~ Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 808, 828 P.2d
549 (1992).
~ Borqhi, 167 Wn.2d at 488.
ki. at 484-85.
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to the court’s finding that Adamyan did not sign the quitclaim deed ‘of her own free
will.”36
We review findings of fact for substantial evidence.37 Evidence is
substantial when a sufficient quantity exists to persuade a fair-minded, rational
person of its truth.38 Substantial evidence supports a finding of fact even when
contradicted by other evidence because credibility determinations are not subject
to review.39
Substantial evidence supports the court’s finding of fact. Adamyan testified
she did not understand the quitclaim deed when she signed it. When they closed
on the house, Adamyan had been living in the United States for approximately one
year. She generally did not communicate in English at that time, even for a simple
transaction like buying items in a store. According to Mkrtchyan, she was trying to
get to the point of conducting such basic transactions in English. Adamyan and
Mkrtchyan both testified that no one translated the quitclaim deed into Armenian or
explained it to her in Armenian. As Adamyan explained, “[T]here were numerous
documents displayed on the table. [Mkrtchyanj had told me that we were going
there to sign the documentation for the newly purchased house. And I never
36 CP at 12 (finding of fact 8).
~ Kile & Kendall, 186 Wn. App. at 876.
In re Marriacie of Raskob, 183 Wn. App. 503, 510 n.7, 334 P.3d 30 (2014)
38
(quoting Bering v. Share, 106 Wn.2d 212, 220, 721 P.2d 918 (1986)).
~ Burrill, 113 Wn. App. at 868.
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No. 78989-9-1113
asked him what was the meaning of. . . that paperwork because I trusted [him].”4°
Although Adamyan also testified she “didn’t even doubt that [Mkrtchyan] could buy
a house without [her]”41 and Mkrtchyan testified that Adamyan said she did not
care whether the house was separate property, this contradictory evidence does
not unsettle the trial court’s finding of fact.
Substantial evidence supports the trial court’s factual determination that
Adamyan did not intend to change the house into separate property when she
signed the quitclaim deed. Because Mkrtchyan does not present clear and
convincing evidence to rebut the presumption that the house was community
property, the court did not err by classifying it as such.
Ill. Attorney Fees on Appeal
Adamyan requests attorney fees on appeal. RAP 18.1 authorizes an award
of attorney fees where allowed by law. Under ROW 26.09.140, a party may be
entitled to attorney fees on appeal. An award of attorney fees under
ROW 26.09.140 includes consideration of “‘the parties’ relative ability to pay.”42
40 RP (June 20, 2018) at 1400-01. Adamyan testified through an Armenian
interpreter.
4Hd.at 1400.
42 In re Marriage of Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779 (2005)
(quoting In re Marriage of Leslie, 90 Wn. App. 796, 807, 954 P.2d 330 (1998)).
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No. 78989-9-1114
Based on Mkrtchyan’s substantially greater ability to pay,43 we award Adamyan
attorney fees from this appeal upon her compliance with RAP 18.1.
Therefore, we affirm.
WE CONCUR:
~—
1)
Aid
I
dhlA41
/ /
~ Mkrtchyan failed to file a financial affidavit as required by RAP 18.1(c).
The record before us reveals his monthly income is several times greater than
Adamyan’s.
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