Marriage Of: Brenda A. Wilson, App./cross-res. v. Gary W. Wilson, Res./cross-app. ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
April 28, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In re the marriage of: No. 52160-1-II
BRENDA A. WILSON,
Appellant/Cross-Respondent,
UNPUBLISHED OPINION
and
GARY W. WILSON,
Respondent/Cross-Appellant.
SUTTON, A.C.J. — This appeal arises from Brenda and Gary Wilson’s prenuptial
agreement, the dissolution of their marriage, and the trial court’s final orders. During their
marriage, they acquired rental investment properties as community property. After their
separation, Brenda managed the rental properties. Prior to trial, the court appointed Acuity
Forensics, owned by Tiffany Couch, to perform an accounting of the rents received and the
expenses paid for the rental properties and ordered the parties to provide the relevant
documentation to determine any net lost profit and proceeds. Couch later presented an accounting
based on the fair market rental value of the properties. Brenda also hired an expert, Heidi Bowen,
who provided an accounting based on the actual rental deposits. After a lengthy bench trial, the
trial court entered final orders. Brenda appeals and Gary cross-appeals.
No. 52160-14-II
We affirm in part and reverse in part. We affirm (1) the trial court’s finding that Brenda’s
net monthly income is $12,000 for child support, and (2) the court’s ruling adopting Couch’s
accounting for purposes of determining the amount of net lost profit and proceeds owed by Brenda
to Gary for their community investment rental properties. We reverse (3) the provisions of the
child support order related to deviation from the standard child support calculation and the court’s
decision not to order a transfer payment from Brenda to Gary. We also reverse (4) the provisions
of the final dissolution order related to the distribution of the community estate, and (5) the portion
of the money judgment entered in favor of Gary related to the offset of $39,000. We deny Brenda’s
request for an award of appellate attorney fees and costs.
We reverse in part and remand for further proceedings consistent with this opinion. On
remand, we order the court to (1) make sufficient written findings of fact to support any deviation
from the standard child support calculation and to reconsider its decision to deny any transfer
payment from Brenda to Gary, and to amend the child support order accordingly, (2) reconsider
the distribution of the community estate and equalize the division of it as equally as possible, and
(3) strike the $39,000 offset and amend the money judgment accordingly.
FACTS
I. BACKGROUND FACTS
A. SEPARATION AND DISSOLUTION
The Wilsons married in 1999, Brenda separated from Gary on December 28, 2012, and the
petition for dissolution of marriage was filed on February 7, 2013. At the conclusion of the trial,
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the parties had two sons, ages 11 and 14.1 Brenda worked as a real estate agent, and Gary worked
for U.S. Fish and Wildlife Service. Prior to marriage, the parties signed a prenuptial agreement.
B. THE PRENUPTIAL AGREEMENT
1. Separate Property
The parties entered into a prenuptial agreement when they were married. The prenuptial
agreement established that the assets and liabilities that each party entered into the marriage with
would remain their own separate property. The parties agreed to be “completely independent of
the other” and that they were entitled to “manage, enjoy, encumber, hold, sell, convey, gift, lease
and dispose of all their separate properties” without the consent of the other. Ex. 1 at 3. These
separate assets included their cash and bank accounts, their personal properties, real property, life
insurance policies, retirement accounts, and Brenda’s business. Gary’s separate property totaling
$394,946.95 is listed in Schedule A to the prenuptial agreement as follows:
SCHEDULE “A”
Cash and Bank Accounts:
Pacific Northwest Federal Credit Union, Savings Acct. XXX166 $ 158.22
Citizens National Bank, Savings Acct. # XXX932 528.92
Columbia Credit Union, Savings Acct. # XXX538 2,123.27
Yakima Valley Credit Union, Savings Acct. # XXX9 13,948.46
Personal Properties:
Household goods and furnishings 12,500.00
Jewelry 21,345.00
Old coin and paper money collection 1,408.73
Sporting goods/camera/tools/equipment 16,450.00
1
The parenting plan is not an issue on appeal.
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No. 52160-14-II
1966 Ford F250 pickup, Wash. License # T61900 3,000.00
1991 Ford Explorer, Wash. License # 597EUP 8,000.00
Real Property:
The property located at XXXX N.E. 52nd Ct.,
Vancouver, Washington: 226,900.00
Life Insurance Policies:
Group life insurance through employer
(face value varies with income) no cash value
Retirement Accounts:
Thrift Savings Plan for Federal Employers 88,584.35
Ex. 1 at Schedule A.
Brenda’s separate property totaling $74,094.85 is listed in Schedule B to the prenuptial
agreement as follows:
SCHEDULE “B”
Cash and Bank Accounts:
Wells Fargo, Checking Acct. # XXXXXXX4-27 $1,733.41
Columbia Credit Union, Savings Acct. #XXX274 50.00
Personal Properties:
Household goods, furnishings and jewelry 2,000.00
1999 Subaru Forestor, Wash. Lic. #WQG988 19,500.00
Camera 200.00
Life Insurance Policies:
First Investors (whole life policy) – cash value 611.44
Business:
1/3 ownership in Right Now Employment, Inc.
(probable increase to 50% in approximately two months from
date of this Agreement) 50,000.00
Ex. 1 at Schedule B.
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2. Reimbursement Claim
The prenuptial agreement also precluded each party from making a claim for
reimbursement against the separate property of the other.
[N]either party shall claim a right of reimbursement for any labor, materials, money
or the like contributed to or on behalf of the separate property of the other party and
any such contribution shall be considered either a de minimis contribution, a gift to
the other party, or that the community has received a compensating benefit from
the use of the property to or which the contribution was made.
Ex. 1 at 5.
3. Presumption–Separate Property
Under Section VI of the agreement, there is a presumption that
[F]rom time to time [] third parties may require that both parties’ names be placed
on the title to a piece of separate property for purposes such as obtaining financing
or refinancing in a community property state or for other reasons. In the event this
shall occur, such event will not cause that effected party’s separate property to
become common or community property and the separate value of the property
shall continue unless both parties acknowledge, in a separate writing, that it is the
intent of the parties that the separate property so affected shall become common or
community property of the parties.
Ex. 1 at 8.
4. Community Property Acquired After Marriage
Under Section X of the prenuptial agreement, there is a presumption that “[f]rom time to
time the parties my desire to own property in the form of community property, tenancies in
common property, and join tenancy property.” It goes on to state that
[i]n the event common or community property is created, it shall be
managed according to the laws concerning management of common or community
property. Common or community property shall be subject to the laws of intestate
succession concerning common or community property
Ex. 1 at 8.
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No. 52160-14-II
To create community property under the agreement, the parties must either “(a) acquire the
property in both parties’ names; (b) purchase it from a common bank account; or (c) execute a
written agreement so classifying the property.” Ex. 1 at 8.
5. Other Provisions Related to any Claim and Property Distribution
Section XVII of the agreement, entitled “Distribution Upon Dissolution” states in relevant
part,
1. Neither party shall make any claim whatsoever and neither party is entitled to,
nor will receive any award of or from the separate property and/or estate of the
other. . . ;
... .
4. In dividing assets and liabilities of their marital community, the separate
property of each party shall not be taken into account directly or indirectly;
5. The parties’ community assets and debts shall be divided as equally as possible;
....
Ex. 1 at 14-15 (emphasis added).
C. COMMUNITY PROPERTY–THE INVESTMENT RENTAL PROPERTIES
During their marriage Gary and Brenda acquired multiple rental investment properties as
community property which properties are listed below.
Community Real Property
1 XXXX Robin Court, Redmond, OR 97756
2 XXXX NE 37th Street, Vancouver, WA 98661
3 XXXX SE Columbia River Dr., Vancouver, WA 98661
4 XXXX SE Columbia River Dr., Vancouver, WA 98661
5 XXX SE Fairwinds Loop, Vancouver, WA 98661
Clerk’s Papers (CP) at 17-18. The parties also acquired a family residence together (NW 209th
Street).
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No. 52160-14-II
D. ACCOUNTING OF RENTAL PROPERTIES
From the date of separation, December 28, 2012, until the date of trial, June 22, 2017, the
parties continued to collect rents and pay expenses on their community investment properties.
Brenda managed the properties, although not in an organized or cooperative manner. As a result,
on March 25, 2016, the trial court entered an order appointing Acuity Forensics, owned by Couch,
to “determine the rents received and expenses paid (or owing) between May 1, 2013 and February
29, 2016” for the five community real estate investment properties. CP at 105.2 The parties were
ordered to “provide to the professional whatever records of rents received and expenses paid since
May 1, 2013 for each separate property within seven . . . days of the retainer of the professional,”
and to “act with due diligence and good faith in responding to any request that the professional
deems reasonably necessary and proper to accounting as ordered herein.” CP at 106. “For each
separate real estate investment identified above, the professional shall determine the net amount
actually received by each party and the amount actually paid by each party for any ‘expenses’ for
each separate real estate investment between May 1, 2013 and February 29, 2016.” CP at 106.
Couch is a certified public accountant, certified in financial forensics, and certified as a
finance examiner. She has been an accountant for over 19 years, with 10 of those years in Clark
County. “Her expertise is in matters involving fraud investigation, forensic accounting, contract
and regulatory compliance, internal control risk assessment, and complex litigation.” CP at 136.
Couch has been retained many times for forensic accounting and to provide expert witness
testimony in litigation.
2
This became known as “Accounting Period 1.” In October 2016, the court ordered “Accounting
Period 2” from March 1, 2016 through February 28, 2017.
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No. 52160-14-II
1. Couch’s Accounting—Fair Market Rental Value
On June 15, 2017, Couch provided the court and parties with her report. It was organized
by property and established the rents received and expenses paid for each rental unit. Couch based
her accounting of the income received from each rental unit using lease agreements, all known
expenditures—including mortgage payments, property tax payments, and home ownership
association dues. Couch noted that when documents were missing, she used estimates based on
known income and expenditures. She also relied on statements from the parties and tax-related
documents. Couch stated that while the report may not include all actual expenses and that
including them “would change the findings in th[e] report, it [was her] professional opinion that
those changes would not substantially or materially change the findings” of the report. CP at 253.
She also noted that “the [m]arital [e]state is not being reimbursed for rents in a unit being used by
Brenda Wilson; and another unit is being offered for free to Brenda Wilson’s clients without any
consideration to the [m]arital [e]state.” CP at 253.
In sum, Couch calculated how much each party received from the rental incomes, as well
as how much each party spent on the properties from their separate property accounts. She
concluded that as of June 15, 2017, Brenda owed Gary $64,756.31 in lost fair market proceeds and
profits. In November, Couch updated her report based on information regarding the actual fair
market rents for two of the rental properties. She concluded that if fair market rent had been
charged for those two properties between May 2013 and March 2017, the parties would have
received an additional $116,375.67 in rental income. As a result, Couch concluded that Brenda
owed Gary $71,243.78 through March 2017.
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No. 52160-14-II
2. Brenda Retains Separate Accounting Expert
Brenda hired her own expert, Bowen, who is also a certified public accountant and a
certified fraud examiner. Bowen completed her reporting based on input from Brenda and the
actual rent deposits from May 2013 to February 2017. Bowen concluded that Gary owed Brenda
$29,653.55. Bowen’s conclusion was based on the same period of time covered by Couch’s
amended report. The two experts had differing calculations for one of the two Columbia Drive
properties. Couch relied on the fair market rental income and profits, while Bowen calculated the
rental income based on bank deposits or the amount reported from Brenda—this resulted in a
difference of $52,000 in rental income between the two reports.
II. TRIAL AND FINAL ORDERS
Trial commenced on March 20, 2017, and lasted for 16 days. The key issues before the
court were (1) the parties’ net monthly income for child support based on a 50/50 residential
schedule, (2) the property division and whether the prenuptial agreement was valid, (3) the amount
of lost net profit from the rental properties that Brenda managed after their separation until trial,
and (4) the characterization of the $70,000 payment Gary made to his father related to work
performed on the rental properties and whether Gary owed Brenda an offset. The court orally
ruled on April 18, 2018, and entered written findings of fact, conclusions of law, and final orders
on June 12, 2018.
A. PRENUPTIAL AGREEMENT
The trial court found that the prenuptial agreement “afforded the parties the opportunity to
accumulate community property during their marriage, which they did to a great extent, while at
the same time allowing them to retain earnings as their separate property to manage as they saw
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No. 52160-14-II
fit.” CP at 17. Accordingly, the court ruled that “[t]he prenuptial agreement is valid and
enforceable in these proceedings.” CP at 17. Under the prenuptial agreement, the court had the
authority to distribute the parties’ community property and was required to divide it as “equally as
possible.” Ex. 1 at 15.
B. DIVISION OF THE SEPARATE PROPERTY
Consistent with the prenuptial agreement, the trial court awarded to Gary his separate
property listed in Schedule A of the agreement, including the Solarity account, and awarded to
Brenda her separate property listed in Schedule B of the agreement.
C. DIVISION OF THE COMMUNITY PROPERTY
At trial, the parties’ community property consisted largely of their rental properties and
their family home, which was awarded as follows:
Real Property Awarded to Awarded to Value
Gary Brenda
NW 209th Street X $308,000
Robin Court (Eagle Crest) X $291,000
NE 37th Street X $185,000
SE Columbia River Drive (1) X $214,700
SE Columbia River Drive (2) X $172,300
SE Fairwinds Loop X $123,077
Total: $599,000 $695,077
CP at 17-18, 23, 26-27.
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No. 52160-14-II
The court also awarded the following as community property:
Property Awarded to Awarded to Value
Gary Brenda
Gary’s retirement (Federal ½ of total ½ of total value Not in record.
Employee Retirement System value
pension) between the dates of
marriage and separation
Chase Account X Not in record.
Wells Fargo Account X $124.07 (as of 9/27/17)
Columbia Credit Union X
Account $13,393
Columbia Credit Union X
Account $51
Total: $13,568.07
CP at 19, 23 39.
Based on the record, the total distribution of separate and community property to the parties
was as follows: Brenda was awarded $695,077 of the income-producing properties, as well as
various bank accounts, her personal property, her cars, and the separate property listed in the
prenuptial agreement. Gary was awarded $291,000 of the income-producing properties, as well
as the family residence worth $308,000, various accounts, his personal property, his cars, and the
separate property listed in the prenuptial agreement. In dividing the community property as it did,
the trial court concluded that “[t]aking into consideration the parties' prenuptial agreement, the
nature and extent of all of the community and separate property, the duration of the marriage, and
the economic circumstances of each spouse at the time of dissolution, the court[] divides the assets
and debts of the parties.” CP at 32.
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No. 52160-14-II
D. LOST RENTAL INCOME AND PROFITS-JUDGMENT TO GARY
After considering both Couch’s and Bowen’s accountings, the court ordered Brenda to pay
Gary “for his community share of net profits and proceeds from the parties’ investment properties,”
to be secured by a promissory note and deed of trust on one of the properties awarded to Brenda.
CP at 20. In determining the amount of the judgment, and ordering that Brenda pay Gary
$142,287, the court relied on Couch’s accounting through February 2017. This figure, based on
Couch’s accounting, was based on money that Brenda owed Gary because he was underpaid rental
property income, and he overpaid the expenditures. Based on Couch’s accounting, the court found
that Brenda had not been charging fair market rental value, her business was not paying rent for
the space it used, and Brenda provided “comp stays” to her clients. Verbatim Report of
Proceedings (VRP) at 832.
The court found Brenda liable for, and Gary due, the following sums arising from Brenda’s
exclusive management of the parties’ investment properties:
 $71,244 for the first accounting period for Gary’s share of net profits and
proceeds
 $12,855 for the second accounting period for Gary’s share of net profits and
proceeds
 $12,293 for half of the lost fair market rental value for the Columbia River
Drive property
 $36,895 for half of the lost fair market value for the Eagle Crest property
CP at 20.
E. OFFSET
In total, the trial court found that Brenda owed Gary $142,287. The court offset that
amount by $39,000, roughly one-half of the amount Gary paid his father for work done on the
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No. 52160-14-II
rental properties. Gary testified that he had paid his father from a premarital separate property
account, the Solarity account, but with funds that had been comingled with Brenda’s.
Brenda testified that Gary’s father was not entitled to be paid for his work. Brenda testified
that she was unaware of the payment, but Gary testified that she was aware of it. Couch also
testified that Gary provided her with text messages between himself and Brenda which showed
that Brenda was aware that Gary was paying his father. Even though the trial court found that the
“Solarity” account was Gary’s separate property under the prenuptial agreement, the court found
that Gary failed to prove that the money paid to his father constituted a community debt, and it
ruled that Brenda was entitled to an offset to “reimburse $39,000 for her share” of the $70,000
paid to Gary’s father. CP at 20. The court stated:
Wife is not ordered an offset for – and Husband is – the separate property house,
there is no offset for any – I didn’t find the evidence sufficient to establish the
$80,000 offset for improvements made during the marriage.
So, likewise, regarding the payments made to Mr. Wilson’s dad, I do not find
sufficient documentation or evidence to establish that. So I am awarding the
Solarity account to [Gary] and putting that in his column, but not giving that as –
not allowing that it is a division of community property, essentially, that’s offsetting
the award on some of the other properties.
VRP at 831-32.
F. CHILD SUPPORT ORDER CALCULATION
The trial court entered a parenting plan with a shared 50/50 residential schedule for the
parties’ two minor children. In its child support order, the court set Brenda’s net monthly income
at $12,000 and Gary’s net monthly income at $6,136.43. The court adopted the “[m]other’s agreed
figure of $12,000” as her net monthly income. VRP at 829.
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No. 52160-14-II
In her trial aid briefing, Brenda urged the trial court to determine her net monthly income
from employment as $12,000 per month. Brenda testified at trial that she was asking the court to
set her monthly net income at $12,000 per month, which she arrived at from her 2016 gross income.
She also testified that her net income for the year, as of March of 2017, from sales commissions
alone was $37,601.44. At the final hearing following trial, the court indicated that it had based the
child support calculations on the 2017 tax returns, which Gary’s counsel then asked about. The
court said, “I think what she indicated to me is that she wanted it set, I believe, at a 12,000 amount.”
VRP at 829. Brenda did not object.
G. DENIAL OF TRANSFER PAYMENT
The standard child support calculation was $1,912.48 from Brenda to Gary. The trial court
then applied an overnight credit of $1,302.50 to Brenda because of the 50/50 residential schedule,
which reduced the transfer payment to Gary to $609.98.
The trial court decided to deviate from the already-reduced transfer payment after the
residential credit because “[t]he children . . . spend significant time with the parent who owes
support, [and] [t]he non-standard amount still gives the other parent’s household enough money
for the children’s basic needs.” CP at 44. Based on this deviation, the trial court denied Gary’s
request for a transfer payment from Brenda. The trial court stated that the facts supporting its
decision were contained in the child support worksheets. However, in the record before us, these
sections of the worksheets is completely blank.
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No. 52160-14-II
H. APPEALS
Brenda appeals and assigns error to provisions of the final dissolution order, provisions of
the findings of fact and conclusions of law regarding the marital estate, and provisions of the child
support order. Gary cross appeals.
ANALYSIS
Brenda argues that the trial court erred by (1) setting her net monthly income at $12,000,
and (2) basing entry of the judgment owed by Brenda to Gary on Couch’s testimony, reports, and
accounting of the community investment rental properties. In his cross appeal, Gary argues that
the trial court erred by (3) deviating from the standard child support calculation without sufficient
written findings of fact, (4) denying him a transfer payment from Brenda, and (5) dividing up the
marital estate as it did rather than equalizing the distribution of it as required under the prenuptial
agreement. We affirm in part and reverse in part, and remand for further proceedings consistent
with this opinion.
I. STANDARD OF REVIEW
Final dissolution orders and child support orders are reviewed for a manifest abuse of
discretion. See In re Parentage of L.H., 198 Wash. App. 190, 194, 391 P.3d 490 (2016); In re
Marriage of Booth, 114 Wash. 2d 772, 776, 791 P.2d 519 (1990). A trial court abuses its discretion
if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In
re Marriage of Katare, 175 Wash. 2d 23, 35, 283 P.3d 546 (2012).
II. BRENDA’S NET MONTHLY INCOME
Brenda argues that the trial court erred by setting her net monthly income at $12,000 for
the child support calculation based on her 2016 tax return, rather than relying on updated 2017 tax
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No. 52160-14-II
return information.3 We hold that substantial evidence supports the trial court’s finding that
Brenda’s net monthly income was $12,000 and thus, the court did not manifestly abuse its
discretion.
We review a trial court’s findings to determine whether they are supported by substantial
evidence in the record. In re Marriage of Wilson, 165 Wash. App. 333, 340, 267 P.3d 485 (2011).
This court will “‘not substitute [its] judgment for the trial court’s, weigh the evidence, or adjudge
witness credibility.’” In re Marriage of Rockwell, 141 Wash. App. 235, 242, 170 P.3d 572 (2007)
(alteration in original) (quoting In re Marriage of Greene, 97 Wash. App. 708, 714, 986 P.2d 144
(1999)). “In determining whether substantial evidence exists to support a court’s finding of fact,
the record is reviewed in the light most favorable to the party in whose favor the findings were
entered.” In re Marriage of Gillespie, 89 Wash. App. 390, 404, 948 P.2d 1338 (1997).
Here, Brenda testified that her gross income in 2016 was “$203,220 or $16,935 per month.”
VRP at 229. She also testified that her net income for 2017, as of that March, from sales
3
Preliminarily, Gary argues that Brenda invited any error. We agree.
Under the invited error doctrine, a party may not set up an alleged error and then complain
about the error on appeal. In re Marriage of Morris, 176 Wash. App. 893, 900, 309 P.3d 767 (2013).
Here, the trial court set Brenda’s net monthly income at $12,000 because she specifically
asked the court to do so. In her trial aid briefing, Brenda urged the court to determine her net
monthly income from employment is $12,000 per month. She testified at trial that she was asking
the court to set her net monthly income at $12,000 per month, which she arrived at from her 2016
gross income. Further, Brenda never requested that the trial court verify her income under RCW
26.19.071.
We agree with Gary and hold that the invited error doctrine applies, so Brenda may not
complain about the error on appeal. Morris, 176 Wash. App. at 900. However, we exercise our
discretion under RAP 1.2(c) to reach the merits.
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No. 52160-14-II
commissions alone was $37,601.44. This number did not include her monthly base salary of
between $1,900 and $2,500 or income she received from her rental properties. Because Brenda
testified that she had made $37,601.44 in the first three months of 2017, her net monthly income
was roughly $12,533.66. Therefore, her 2017 income from her 2017 tax return was still consistent
with her 2016 net income, which the court accepted to determine her net monthly income. Because
substantial evidence supports the trial court’s finding that Brenda’s net monthly income at the time
of trial was $12,000, we hold that there was no manifest abuse of discretion, and the court’s
calculation is correct.
III. DEVIATION DOWNWARD FROM THE STANDARD CHILD SUPPORT CALCULATION
Gary argues that the trial court erred by deviating downward from the standard child
support calculation without sufficient written findings and by failing to order a transfer payment
to him. He argues that given the parties’ respective incomes, the standard child support calculation
required a transfer payment of $609.98 from Brenda to Gary. Gary claims that based on the
parties’ income disparity, there were no grounds to deviate downward from the standard child
support calculation and to eliminate the transfer payment entirely from $609.98 to zero. Because
we are unable to determine the basis for the court’s deviation from the standard child support
calculation, we remand and order the trial court to make sufficient written findings of fact to
support any deviation from the standard child support calculation and to reconsider its decision to
deny any transfer payment from Brenda to Gary, and to amend the child support order accordingly.
The legislature adopted the uniform child support schedule as a means to equitably
apportion the child support obligation between parents, insure child support is adequate to meet a
child’s basic needs, and provide additional child support commensurate with the parents’ income,
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No. 52160-14-II
resources, and standard of living. RCW 26.19.001. A child support order must be supported by
written findings of fact and must be accompanied by a completed child support worksheet signed
under penalty of perjury by both parties and signed as correct upon review by the presiding judicial
officer. RCW 26.19.035(2), (3).
Under RCW 26.19.075, the trial court has discretion to deviate from the standard child
support calculation based on a variety of factors, including: the child’s residential schedule and the
effect the child support obligation has on the parents’ income and expenses. Under the plain
language of the statute, if the child spends a significant amount of time with the parent who is
obligated to make a support payment, then the court may deviate downward from the standard
child support calculation. RCW 26.19.075(1)(d). However, the court may not deviate if doing so
will result in insufficient funds to meet the basic needs of the child in the household receiving the
child support. RCW 26.19.075(1)(d). Further, deviation “remains the exception to the rule and
should be used only where it would be inequitable not to do so.” In re Marriage of Burch, 81 Wn.
App. 756, 760, 916 P.2d 443 (1996).
“The statute also unequivocally requires written findings of fact to support any deviation
and a consideration of the total circumstances of both households.” In re Marriage of Choate, 143
Wash. App. 235, 242, 177 P.3d 175 (2008) (citing RCW 26.19.075; In re Marriage of McCausland,
159 Wash. 2d 607, 620, 152 P.3d 1013 (2007) (emphasis omitted) (“Although cursory findings of
fact and the trial record might appear to justify awarding a child support amount that exceeds the
economic table, only the entry of written findings of fact demonstrate that the trial court properly
exercised its discretion in making the award.”). Where written findings of fact are insufficient or
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No. 52160-14-II
unclear, we may construe the court’s order by reviewing its oral ruling. See Shelden v. Dep’t of
Licensing, 68 Wash. App. 681, 685, 845 P.2d 341 (1993).
Here, as discussed above, the court awarded Brenda the majority of the income-producing
investment rental properties, and thus, her income will be substantially more than her claimed net
monthly income of $12,000—compared to Gary who will no longer be receiving income from four
of the five community investment properties and whose net monthly income is $6,136.43.
The trial court calculated the standard calculation from the parties’ worksheets and the
parties’ net monthly incomes, Brenda at $12,000 and Gary at $6,136.43:
Parent Name: Standard Calculation Worksheet line 17
Brenda Wilson $1,912.48 (Ex. A)
$2,094.53 (Ex. B)
Gary Wilson $692.52 (Ex. A)
$785.47 (Ex. B)
CP at 44, 54, 60.
The trial court calculated the standard calculation of $1,912.48 from Brenda to Gary. The
court applied a residential credit of $1,302.50 to Brenda based on the 50/50 residential schedule,
resulting in a transfer payment calculation of $609.98 to Gary. The court decided to deviate
downward from this calculation, which already accounted for the residential credit, of $609.98 to
zero because “[t]he children . . . spend significant time with the parent who owes support, [and]
[t]he non-standard amount still gives the other parent’s household enough money for the children’s
basic needs.” CP at 44. Based on this deviation, the trial court did not order any transfer payment
by Brenda to Gary. To support this deviation, the court cited the worksheets, Part VIII, lines 20
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through 26. However, these sections of the worksheets are completely blank. See CP at 54-55,
60-61. Therefore, it is unclear based on the record before us what facts the trial court relied upon
in deciding to deviate from the transfer payment calculation of $609.98 to zero.
Here, there are no written findings of fact explaining that the trial court considered
“evidence concerning the increased expenses to [Brenda] making support transfer payments
resulting from the significant amount of time with [her].” RCW 26.19.075(1)(d). There are also
no findings that Gary has decreased expenses because the children reside with him and Brenda
equally. In fact, there was evidence that Gary shoulders certain expenses Brenda does not, such
as the children’s medical and dental insurance, which is $211.14 per month. Although the parties
both provided testimony regarding their respective costs for their children, the court did not
incorporate this into its findings. Further, the court granted a residential credit when it lowered
the transfer payment to $609.98, and then it reduced the transfer payment again to zero with no
explanation.
As discussed above, we can rely upon the court’s oral ruling to determine the court’s intent
here. Shelden, 68 Wash. App. at 685. However, the court’s oral ruling does not clarify the basis for
ordering a deviation or for ordering no transfer payment from Brenda to Gary. Therefore, based
on this record, we cannot be sure that the trial court “properly exercised its discretion” in ordering
a deviation and in ordering no transfer payment. McCausland, 159 Wash. 2d at 620 (emphasis
omitted).
We hold that based on this record, the trial court failed to provide written findings of fact
to support its decision to deviate from the standard child support calculation and failed to justify
its denial of any transfer payment from Brenda to Gary. Because of the lack of an adequate record,
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we reverse and order the trial court to make sufficient written findings of fact to support any
deviation from the standard child support calculation and to reconsider its decision to deny any
transfer payment from Brenda to Gary, and to amend the child support order accordingly.
IV. COUCH ACCOUNTING
Brenda argues that the trial court erred by adopting Couch’s accounting of the net lost
income to Gary because Couch’s accounting exceeded the scope of her original expert
appointment. She also argues that substantial evidence does not support the court’s findings, and
the findings do not support the court’s conclusions. We hold that (1) the trial court did not err by
adopting Couch’s accounting, (2) Couch did not exceed the scope of her appointment, and (3)
there was substantial evidence to support the trial court’s findings, and the findings support the
count’s conclusions regarding the amount of lost fair market rental income and profits Brenda
owed Gary. Therefore, the trial court did not err by entering a judgment in the amount of $142,287
for Gary.
“Admissibility of evidence is within the broad discretion of the trial court and will not be
reversed on appeal absent a showing of manifest abuse of discretion.” In re Parentage of J.H.,
112 Wash. App. 486, 495, 49 P.3d 154 (2002). “Discretion is abused if it is based on untenable
grounds or for untenable reasons.” J.H., 112 Wash. App. at 495. We “may sustain a trial court on
any correct ground, even though that ground was not considered by the trial court.” J.H., 112 Wn.
App. at 495. The factfinder has broad discretion in weighing expert opinions. In re Marriage of
Sedlock, 69 Wash. App. 484, 491, 849 P.2d 1243 (1993).
ER 702 establishes that expert testimony may be used at trial “[i]f scientific, technical, or
other specialized knowledge will assist the trier of fact to understand the evidence or to determine
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a fact in issue.” ER 703 allows an expert to base her opinion on facts made known to the expert
prior to trial. ER 704 establishes that an expert may provide her opinion on an ultimate issue.
Finally, ER 705 establishes that the expert may testify to her opinion or inference without prior
disclosure of the underlying facts or data.
The trial court’s order appointing Couch to perform a forensic accounting stated, in
relevant part,
For each separate real estate investment identified above, the professional shall
determine the net amount actually received by each party and the amount actually
paid by each party for any “expenses” for each separate real estate investment
between May 1, 2013 and February 29, 2016 . . . .
CP at 106. The court extended Couch’s appointment through February 28, 2017, to create a second
accounting period, but denied Couch’s request to expand the scope of her appointment beyond that
date.
After considering both experts’ accountings, the court ordered Brenda to pay Gary “for his
community share of net profits and proceeds from the parties’ investment properties,” to be secured
by a promissory note and deed of trust on one of the properties awarded to Brenda. CP at 20. In
determining the amount of the judgment, and ordering that Brenda pay Gary $142,287, the court
adopted Couch’s accounting through February 2017. This figure was based on Couch’s
calculations which showed that Brenda owed Gary funds generated from the income properties
because he was underpaid for the rental property income, and he overpaid the expenditures. Based
on Couch’s accounting, the court found that Brenda had not been charging fair market rental value,
her business was not paying rent for the space it used, and that Brenda provided “comp stays” to
her clients. VRP at 832.
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On this record, Brenda fails to show how Couch exceeded the scope of her initial
appointment when Couch provided the court with the accounting it ordered on the investment
properties. Brenda also fails to show that the court erred by adopting Couch’s accounting. And
substantial evidence supports the court’s findings and the findings support the court’s conclusions
related to the net lost profit and proceeds. We hold that (1) the trial court did not err by adopting
Couch’s accounting, (2) Couch did not exceed the scope of her appointment, and (3) there was
substantial evidence to support the trial court’s findings, and the findings support the count’s
conclusions regarding the amount of lost fair market rental income and profits Brenda owed Gary.
Therefore, the trial court did not err by entering a judgment in the amount of $142,287 for Gary.
V. DIVISION OF THE COMMUNITY ESTATE
Gary argues that the trial court erred by awarding a disproportionate share of the
community estate to Brenda instead of dividing it as “equally as possible,” as required by the
prenuptial agreement. We hold that the trial court erred by not fully abiding by the prenuptial
agreement and by not dividing the community estate as equally as possible. Thus, we reverse the
portion of the final decree of dissolution related to the community property distribution.
A. STANDARD OF REVIEW
A prenuptial agreement is binding if it is procedurally and substantively fair. In re
Marriage of Bernard, 165 Wash. 2d 895, 902, 204 P.3d 907 (2009). “Public policy favors prenuptial
agreements.” In re Marriage of Marzetta, 129 Wash. App. 607, 617, 120 P.3d 75 (2005), abrogated
on other grounds by, McCausland, 159 Wash. 2d 607. “Prenuptial agreements are contracts subject
to the principles of contract law.” Marzetta, 129 Wash. App. at 617.
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In dissolution proceedings, the trial court has broad discretion to make a just and equitable
distribution of all property based on the factors enumerated in RCW 26.09.080. Rockwell, 141
Wash. App. at 242-43. A division of property need not be precisely equal; rather, it must be fair to
both parties depending on their circumstances at the time of the dissolution. RCW 26.09.080.
RCW 26.09.080 provides a list of factors the court must consider, including, but not limited
to:
(1) [t]he nature and extent of the community property; (2) [t]he nature and extent
of the separate property; (3) [t]he duration of the marriage or domestic partnership;
and (4) [t]he economic circumstances of each spouse or domestic partner at the time
the division of property is to become effective, including the desirability of
awarding the family home or the right to live therein for reasonable periods to a
spouse or domestic partner with whom the children reside the majority of the time.
The court must make a “just and equitable” distribution of the property. RCW 26.09.080. “All
property, community and separate, is before the court for distribution.” In re Marriage of Doneen,
197 Wash. App. 941, 948, 391 P.3d 594 (2017). We
“will not single out a particular factor, such as the character of the property, and
require as a matter of law that it be given greater weight than other relevant factors.
The statute directs the trial court to weigh all of the factors, within the context of
the particular circumstances of the parties, to come to a fair, just and equitable
division of property. The character of the property is a relevant factor which must
be considered, but it is not controlling.”
Doneen, 197 Wash. App. at 948-49 (quoting In re Marriage of Konzen, 103 Wash. 2d 470, 478, 693
P.2d 97 (1985)).
The trial court has broad discretion in dividing property in a decree of dissolution and will
be reversed only upon a showing of a manifest abuse of discretion. In re Marriage of Buchanan,
150 Wash. App. 730, 735, 207 P.3d 478 (2009). A trial court abuses its discretion if its decision is
manifestly unreasonable, meaning that its decision is outside the range of acceptable choices, or is
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No. 52160-14-II
based upon untenable grounds. Buchanan, 150 Wash. App. at 735. We review the trial court’s
factual findings for substantial evidence, which is “‘evidence of sufficient quantity to persuade a
fair-minded, rational person of the truth of the declared premise.’” Rockwell, 141 Wash. App. at
242, (quoting In re Marriage of Griswold, 112 Wash. App. 333, 339, 48 P.3d 1018 (2002)). Where
written findings of fact are insufficient or unclear, we may construe the court’s order by reviewing
its oral ruling. Shelden, 68 Wash. App. at 685.
B. COMMUNITY PROPERTY DISTRIBUTION
At trial, the parties’ community estate consisted largely of five rental properties and their
family home. As stated above, the trial court awarded the community investment properties
between the parties. Gary was awarded the family home and the Robin Court property (totaling
$599,000) and Brenda was awarded the remaining four properties (totaling $695,077).
The court also awarded one-half of Gary’s retirement to each party, and the four
community bank accounts with the Chase account going to Gary and the Wells Fargo and
Columbia Credit Union accounts going to Benda. Here, the trial court found that the prenuptial
agreement was valid and enforceable. However, the court, in dividing the marital estate, explained,
[T]he job of the [c]ourt is to make a fair and equitable division of assets, and I do
not do that with precision between the parties. There’s a number of factors. Like
I say, probably this case has what I would call more moving parts than most, in that
Mrs. Wilson has a very good career but she also spent a good portion of her career
as primary. And we have the prenuptial agreement so that I – it says, you know,
don’t look at separate property, but I don’t think that binds the court not to look at
the overall division.
VRP at 833-34.
Gary argues that the trial court ignored the provision in the prenuptial agreement which
states, “The parties’ community assets and debts shall be divided as equally as possible.” Ex. 1 at
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15. Another related provision in the agreement states, “In dividing assets and liabilities of their
marital community, the separate property of each party shall not be taken into account directly or
indirectly.” Ex. 1 at 14. Gary claims that the court had two options to equalize the judgment: (1)
award him an additional $48,038.50 to the $599,000 in community real property that he was
awarded (compared to Brenda’s award of $695,077), or (2) award him the Fairwinds Loop
property valued at $123,000 and award Brenda an offset to the $142,247 judgment she owes him.
We agree with Gary that the prenuptial agreement, which is valid and enforceable, requires
the court to divide the community property “as equally as possible.” The trial court failed to do
so here. Although the trial court has broad discretion to divide the property equitably, it failed to
abide by a valid and enforceable prenuptial agreement. Thus, we reverse this portion of the decree
of dissolution related to the distribution of community estate.
VI. OFFSET
Gary argues that the trial court erred by offsetting the judgment by $39,000. Brenda argues
that this was not an error because her name was listed on the Solarity account, and she did not
approve of Gary’s payment of funds from that account to his father for the work he performed on
the rental properties. We agree with Gary that the court erred by granting Brenda an offset of
$39,000.
“‘In performing its obligation to make a just and equitable distribution of properties and
liabilities in a marriage dissolution action, the trial court must characterize the property before it
as either community or separate.’” In re Marriage of Groves, 10 Wash. App. 2d 249, 254, 447 P.3d
643 (2019) (quoting In re Marriage of Kile, 186 Wash. App. 864, 875, 347 P.3d 894 (2015) review
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denied, 458 P.3d 781 (2020)). We review de novo a trial court’s characterization of property as
separate or community.” Groves, 10 Wash. App. 2d at 254.
Here, because the trial court found the prenuptial agreement to be valid and enforceable, it
was bound by it. Bernard, 165 Wash. 2d at 902. Pursuant to the prenuptial agreement, the court
properly characterized the Solarity account as Gary’s separate property. Brenda does not challenge
this finding.
The prenuptial agreement also states in relevant part that:
[N]either party shall claim a right of reimbursement for any labor, materials,
money, or the like contributed to or on behalf of the separate property of the other
party and any such contribution shall be considered either a de minimis
contribution, a gift to the other party, or that the community has received a
compensating benefit from the use of the property to or for which the contribution
was made.
Ex. 1 at 5.
Under the provisions of the prenuptial agreement, even though Brenda’s name was on the
Solarity account and community funds may have been deposited into the account “from time to
time,” Brenda does not have a right of reimbursement under the prenuptial agreement. Ex. 1 at 3-
5. Thus, we hold that that the trial court erred by offsetting the judgment to Gary of $142,287 by
$39,000. We remand this portion of the final decree of dissolution and order the court to strike the
$39,000 offset and amend the judgment accordingly.
VII. APPELLATE ATTORNEY FEES AND COSTS
Brenda argues that based on RAP 18.1(a), she is entitled to an award of appellate attorney
fees and costs. We deny her request.
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No. 52160-14-II
If applicable law grants to a party the right to recover reasonable attorney fees or
expenses on review . . . the party must request the fees or expenses as provided in
this rule.
RAP 18.1(a). However, the prenuptial agreement does not allow for a party to request attorney
fees. Because Brenda is not entitled to an award of attorney fees and costs, we deny her request.
CONCLUSION
We affirm (1) the trial court’s finding that Brenda’s net monthly income is $12,000 for
child support, and (2) the court’s ruling adopting Couch’s accounting for purposes of determining
the amount of net lost profit and proceeds owed by Brenda to Gary for their investment rental
properties. We reverse (3) the provisions of the child support order related to the deviation from
the standard child support calculation and the court’s decision not to order a transfer payment from
Brenda to Gary. We also reverse (4) the provisions of the final dissolution order related to the
distribution of the community estate, and (5) the portion of the money judgment entered in favor
of Gary related to the offset of $39,000.
We remand for further proceedings consistent with this opinion. On remand, we order the
court to (1) make sufficient written findings of fact to support any deviation from the standard
child support calculation and to reconsider its decision to deny any transfer payment from Brenda
to Gary, and to amend the child support order accordingly, (2) reconsider the distribution of the
community property and equalize the division of it as equally as possible, and (3) strike the $39,000
offset and amend the money judgment accordingly.
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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.
SUTTON, A.C.J.
We concur:
MAXA, J.
GLASGOW, J.
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