In the Matter of the Marriage of: Judith K. Tulleners & Andre J. Tulleners, 37742-3

Background

Judith and Andre Tulleners married in November 1997; they separated in May 2016 after ~18.5 years of marriage.
Andre had substantial retirement assets at retirement (2006): a lump-sum company plan $514,106 and a 401(k) $357,017.10; he rolled both into IRAs and later purchased an annuity. At separation the combined retirement assets were valued at $767,924.
Before marrying Judith, Andre’s 401(k) was divided in his 1997 divorce; he received $187,500 then. Judith contended the 401(k) later fell to ~$40,000 during the early-2000s Williams stock crash and grew again largely from community contributions during the marriage; Andre failed to supply tracing evidence for contributions and investment performance.
The trial court initially characterized most retirement assets as community property (because Andre failed to trace) but awarded Andre a Nuss-type credit (stated not less than $378,000) to reflect asserted separate contributions, producing a disproportionate division.
On prior appeal this court remanded, instructing the trial court to determine (viewing evidence most favorably to Judith) the lowest value of Andre’s separate funds preserved through the marriage and to value Judith’s teacher pension; on remand the trial court adopted valuations, awarded Judith the full community portion of her pension, but again granted Andre a Nuss-type credit without adequate findings about the 401(k)’s low point.
This second appeal reverses the Nuss-type credit as unsupported by sufficient findings about the lowest preserved separate value; the court remands for evidence of the 401(k)’s lowest value during the marriage and for recalculation of the property division (if no evidence is offered, the court directs denial of any Nuss credit).

Issues

Issue	Plaintiff's Argument (Judith)	Defendant's Argument (Andre / Estate)	Held
Did the trial court err by seeking/considering additional evidence on remand?	Remand procedures and evidence requests were improper and included an attorney declaration that should not be admitted.	Remand allowed further proceedings; offered evidentiary submissions (including counsel declaration).	Not reviewed — Judith failed to object below, so appellate court declines to consider procedural complaints.
Was the attorney Craig Mason’s declaration admissible?	Mason is not an expert and counsel may not present evidence under RPC 3.7(a).	Mason’s submission provided market-index-based valuation assistance on marriage-date value.	Not reviewed — no objection in trial court, so appellate court declines to address.
Were trial court findings supporting characterization/valuation of retirement accounts (FOF 9 and 10) supported by evidence?	FOF 9 and 10 lack admissible evidence and violate remand instructions.	Court relied on available evidence and reasonable allocation methodology.	FOF 9 is supported (company lump sum and pro rata allocation); FOF 10 (401(k) marriage-date valuation) is problematic/uncertain.
Did the court properly grant a Nuss-type credit to Andre and in the required conservative amount?	Credit was improper and not supported by tracing; must view evidence favorably to Judith and limit credit to the lowest value reasonably shown preserved.	Estate argued Andre contributed separate retirement funds and advanced a valuation supporting a credit.	Reversed. Credit vacated for lack of adequate findings about the 401(k)’s lowest preserved value. Remanded for proof of the lowest value; if neither party proves it, deny any Nuss-type credit and reallocate assets.
Did the trial court err in adopting the estate’s pension valuation over Judith’s expert?	Trial court should have explained why it rejected Judith’s expert valuation.	Court may credit one expert over another based on credibility and reasoned assumptions.	No reversible error; trial court may accept one expert’s valuation without detailed negative findings.

Key Cases Cited

In re Marriage of Nuss, 65 Wn. App. 334, 828 P.2d 627 (permits considering origin of property as separate to justify disproportionate award)
In re Marriage of Tulleners, 11 Wn. App. 2d 358, 453 P.3d 996 (prior appellate remand requiring conservative proof of separate retirement funds and valuation of pension)
In re Marriage of Chumbley, 150 Wn.2d 1, 74 P.3d 129 (tracing burden: separate property must be clearly and convincingly traced)
In re Estate of Witte, 21 Wn.2d 112, 150 P.2d 595 (separate property retains character if clearly traced)