Danny J. Payne v. Colleen M. Payne

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of ) No. 781 84-7.-I
)
DANNYJ. PAYNE,
Respondent,
and )
) UNPUBLISHED OPINION
COLLEEN M. PAYNE,
n/k/a COLLEEN DAWSON, ) FILED: August 5, 2019
)
Appellant. )
VERELLEN, J. — Colleen Dawson challenges three aspects of the
dissolution decree ending her marriage to Danny Payne. She contests the court’s
reliance on the couple’s date of separation rather than the date of dissolution to
value Payne’s Boeing VIP 401 K retirement account. But Dawson fails to show the
court erred by relying on the only valuation evidence before it.
She also disagrees with the court’s classification of a predissolution
financial withdrawal as coming from the marital estate rather than a prepayment of
spousal maintenance. But she did not seek, and the parties did not agree to the
withdrawal as temporary maintenance.
Finally, Dawson challenges the sufficiency of the evidence to support the
finding that Payne paid her $1 ,500 per month “‘during the pendency of this
No. 78184-7-1/2
dissolution action.”1 But Dawson has not provided an adequate record to
challenge this finding of fact.
Therefore, we affirm.
FACTS
Payne and Dawson married in February of 2006.2 Payne petitioned for
dissolution of their marriage in August of 201 5~3 At the time, Payne lived in
Washington, and Dawson had relocated to Georgia.4 The court granted Payne’s
dissolution petition in December of 201 7~5 The court awarded Dawson 50 percent
of Payne’s Boeing VIP 401K that accrued between February 26, 2006, when they
married, and June 8, 2015, when they separated.6 The court also classified a
$17,000 predissolution cash withdrawal Dawson made from a shared bank
account as community property.7 The court issued an amended dissolution
decree in February of 2018 after a motion for reconsideration.8
Dawson appeals.
1 Appellant’s Br. at 1 (quoting Clerk’s Papers (CP) at 63).
2CPat59.
~ CP at 1.
4CPat2, 16.
~ CP at 50.
6CP at 115.
7CPat6O.
8 CP at 112.
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ANALYSIS
“A trial court in dissolution proceedings has broad discretion to make a just
and equitable distribution of property based on the factors enumerated in
RCW 26.09.080.”~ Property divisions made in dissolution proceedings may be
reversed only where the court manifestly abused its discretion.1° A court abuses
its discretion where its decision is based on untenable grounds or reasons.11
Generally, findings of fact are accepted if supported by substantial evidence.12 But
where, as here, the appellant declines to provide a verbatim report of proceedings
to allow fair review of a court’s factual determinations, we treat findings of fact as
verities. 13
First, Dawson contends the court improperly valued the Boeing VIP 401K
account by using their separation date rather than their trial date to calculate the
~ In re Marriage of Wright, 179Wn. App. 257, 261, 319 P.3d 45(2013).
Under RCW 26.09.080, the trial court is to make a distribution of property that is
just and equitable after consideration of all relevant factors, including but not
limited to “(1) The nature and extent of the community property; (2) The nature and
extent of the separate property; (3) The duration of the marriage - ; and (4) The
. .
economic circumstances of each spouse . at the time the division of property is
. -
to become effective.”
10 In re Marriage of Larson & Calhoun, 178 Wash. App. 133, 138, 313 P.3d
1228 (2013) (quoting In re Marriage of Muhammad, 153 Wash. 2d 795, 803, 108 P.3d
779 (2005)).
~ Wright, 179 Wash. App. at 261-62.
~Id. at 262.
13 Morris v. Woodside, 101 Wash. 2d 812, 815, 682 P.2d 905 (1984); In re
Custody ofA.F.J., 161 Wash. App. 803, 806 n.2, 260 P.3d 889 (2011), affd, 179
Wash. 2d 179, 314 P.3d 373 (2013).
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account’s value.14 But the only evidence of the plan’s value was balance
statements from 2006 and 2015, provided by Payne.15 The court declined
Dawson’s request on reconsideration to revalue the assets because
there is insufficient evidence in the record to allow the court to
determine the amount of [Payne’s] separate contributions to the
Boeing VIP account or [Dawson’s] separate contributions to the
Lowes 401K account, or the amount of appreciation or
depreciation . between the date of separation and the date of
. .
trial. [1 6]
Dawson does not now contend that the court had sufficient evidence to
make that valuation. A party who voluntarily chooses not to value an asset before
entry of a dissolution decree may not “‘return to court to do what should have been
done prior to entry of the final decree.”17 The court reasonably relied on the only
evidence before it to value the VIP plan.
Second, Dawson contends the court erred by classifying a $17,000
predissolution withdrawal she made from a community bank account as a property
division rather than as temporary maintenance from separate property.18 Dawson
argues she was, effectively, “paying 1/2 of her temporary maintenance out of her
share of community property.”19 We review property classifications de novo.2°
14 Appellant’s Br. at 6.
15 CP at 137-38.
16 CP at 115.
17 In re Marriage of Curtis, lO6Wn. App. 191, 197,23 P.3d 13(2001)
(quoting In re Marriage of Maddix, 41 Wash. App. 248, 253, 703 P.2d 1062 (1985)).
18 Appellant’s Br. at 11.
19 Id. at 12.
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Dawson contends, without authority, the $17,000 was separate property
because she used it for maintenance during the pendency of her dissolution.21 But
she concedes she took the money “from the family resources”22 held in a
“community bank account” before applying for maintenance.23 And the court found
Dawson and Payne had not agreed to treat the money as maintenance before she
withdrew it without his consent.24 The court observed “that she chose not to seek
temporary maintenance payments, and instead used the $17,000. . . for living
expenses, does not change the nature of the removed funds [into] a de facto early
distribution from the [marital] estate.”25 The court did not abuse its discretion by
classifying the $17,000 as a predissolution distribution from community property.26
20 In re Marriage of Griswold, 112 Wash. App. 333, 339,48 P.3d 1018 (2002).
21 Appellant’s Br. at 12.
22 OP at 16.
23 Appellant’s Br. at 3.
24 cp at 126.
25 OP at 126-27.
26 See In re Marriage of Hadley, 88 Wash. 2d 649, 658, 565 P.2d 790 (1977)
(“[T]he use of the terms alimony, maintenance payment, or property award does
not necessarily require that the award be so treated. There is no magic in the use
of these terms. Our concern is with the fairness of the award as determined by
those factors set out in ROW 26.09.080 (property) and ROW 26.09.090
(maintenance).”) (citation omitted). Dawson claims this classification penalizes her
“simply because [she] did not incur the expense of applying formally for a
court-ordered award” and penalizes her for “avoiding litigation and for finding
creative solutions to problems outside of the court.” Appellant’s Br. at 13-14. By
this logic, courts should reward parties to dissolution proceedings who unilaterally
deplete the marital estate for their own convenience. We disagree.
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Finally, Dawson argues a particular finding lacked substantial evidence.27
When weighing the factors for spousal maintenance, the court found Payne had
“been paying $1 ,500.OO per month to [Dawson] during the pendency of this
dissolution action.”28 But Dawson waived this line of argument by declining to
provide a full record for our review.29
Therefore, we affirm.
WE CONCUR:
UJPh L
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~ ~‘A11L
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27 Appellant’s Br. at 1.
28CPat63.
29 Morris, 101 Wash. 2d at 815.