In Re the Marriage of Williams

263 computed and without can with exactness one that be 472, 730 Rothaus, v. 107 Wn.2d Hansen discretion. the claim and it was Farmers contested P.2d period subject time set forth to calculation Dombroskys. Affirmed.

Morgan JJ., concur. Bridgewater, Review denied at Wn.2d

[No. 1996.] 14648-1-III. Division Three. December Marriage In the Matter Lee Respondent, Williams, James Appellant. Williams, Lowry, Roach, F. Monahan and Monahan & Richard appellant. McAdams, Wernette, Ponti &

Ronald K. McAdams respondent. P.S., for dissolving her 27- A.C.J. the decree

Schultheis, year marriage, family home, received the Glenda Williams approximately community possessions, one-half of the one- equal community debts, half to of the and maintenance Along por- her husband’s retirement. with his one-half of community possessions, retirement, of and tion the debts Stanley equity of the share in Williams received his Stanley family ap- by home. Several issues are raised on peal, notably his insistence that the trial most improperly on retirement based the maintenance award currently accessible and that include benefits that years premarital military Stanley also four of service. community gambling dissipated as- contends Glenda’s sets. We affirm. Stanley August and filed for divorce in

Glenda family The in October 1993. moved home out couple’s emancipated, although two children were still liv- ing Stanley, high degree, at home. who has a school was a supervisor city full-time street crew for the Walla gross salary $3,000 Walla. His was Glenda, about a month. high degree, holding also who has a school was down three jobs just position until before trial: a full-time with a medi- job seven-days-a- clinic, cal a K-Mart, weekend at a night job caring elderly week an woman. Her sal- total ary jobs grossed $2,500 for these about a month. One week job, making trial, before her lost clinic so she was only $1,300 time trial.1 began May Stanley in

Trial 1994. was entitled to retire April years city, after 30 with the hut he decided working. to continue The trial court awarded Glenda equal Stanley’s to one-half of total retire- marriage, including years ment accrued military four marriage.2 service retirement accrued before This award was characterized the court as a settle- representing maintenance, ment rather than true what Glenda would have received if had retired in April. joint The him court directed to elect a and survivor annuity option in his retirement so that she would continue to receive his benefits after death. spent anywhere trial

Evidence at showed Glenda had (her taking from estimate, month into account win- $400 losses) (his nings as as $2,400 estimate, well a month on based checks cashed taverns and cash on advances cards) gambling during years credit the latter of their marriage. $12,000 The trial $10,000 court found that spent gambling, were on but refused to characterize the gambling dissipation as costs of the marital assets because gambling legal encouraged Washington. money spent gambling court found that on was no differ- over, proceedings 1Before the dissolution were Glenda found another clinic job, job salary, expected at a lower but to earn much had in her as as she former year. within a city’s system permitted military 2The retirement the to be service time computing included retirement benefits. money spent any on other entertainment ent from adjust property to reflect it. to settlement declined property decree, received valued In the final Glenda plus approximately of her husband’s $71,000 one-half security Stanley and her social benefits. retirement own plus approximately $74,000 received valued security rest his retirement and social benefits. community $19,600, debts was about Glenda’s share Stanley’s $22,100. and assigned Most of the debt share was about improvement loans, home

to Glenda related to assigned Stanley to while of the debt to related credit most gambling. arguably to card balances tied Glenda’s pay monthly $703, was directed to maintenance representing portion benefits, her of his retirement terminating upon retirement or death of either his party. party Each or her at- was directed his own torney Stanley’s motion for fees. reconsideration was appeal denied and this followed. awarding

Stanley first contends the court erred in main- qualify tenance. He not for a asserts Glenda does mainte- meeting capable nance independently. her needs award because she if Even the maintenance award is treated argues, just equi- property settlement, as a he it are table because it is based on retirement benefits that military premarital not now and that include available benefits. begin noting mar that trial court decisions in

We rarely changed proceedings appeal. ital on dissolution Stenshoel, In re 866 P.2d 635 Wn. challenges prop a maintenance or a who award erty distribution must demonstrate that the trial court manifestly Washburn, abused its discretion. (1984); Terry, 168, 179, Wn.2d 677 P.2d 152 App. 866, 869, 905 P.2d 935 grant a

It is within the trial court’s discretion period order in an and for a of time amount 26.09.090(1). just. of the fac RCW Some court deems postdissolution include: the tors the court must consider 268

financial the resources of their to parties; abilities meet their needs independently; the duration of the marriage; the standard of living they established their mar- riage; ages, their health and financial obligations; and the of one to ability spouse pay maintenance the to other. 26.09.090(1); Terry, RCW 79 869. The court’s is paramount concern the economic in condition which the dissolution parties. Washburn, decree leaves the 101 Wn.2d at 181.

Here, the court found that the marriage long was term and Stanley that earned more than twice what Glenda earned, cut "a assuming job she back to normal one situa- tion.” More the court not to important, did attempt justify monthly maintenance, Glenda’s as payments but rather as a In property settlement. the court’s words: upon

The award of proposition that, maintenance is based the retired, if receiving immediately husband wife would be a portion pension. his state of retirement The intent is to award her in equal now maintenance a sum to of one-half what she receive, upon Option (joint would based 2 and survivor annu- ity). awards,

Unlike maintenance the do typical payments not upon terminate Glenda’s or marriage, cohabitation but the only upon Stanley’s death either retire- ment. the As court stated the presentment hearing: "This basically is settlement. property By calling it maintenance he it income gets deduct tax and doesn’t have purposes the tax on it.” supporting Further fact that this award actually a property specific settlement its tie to al- Stanley’s and matured pension location: vested benefits. (deferred Hurd, 38, 45, 848 P.2d 185 "vested”; earnings subject to forfeiture are deferred that earnings may be received "ma- immediately tured”), 1020 Wn.2d The trial included properly Stanley’s pen sion actually deferred compensation benefits — —in Chavez, community’s be divided. assets to denied, 129 Wn.2d 314, review 432, 436, 909 P.2d determining by computed Maintenance was April pension it matured at the time value Stanley dividing by ($1,406) actu- When it two. ally the amount one-half of to receive retired, Glenda was couple mar- representing was of months the number of months number the total ried divided dividing approved retire- method This is the worked. years Although pensions. the four Id. ment benefits strictly speaking, military Stan- premarital were, benefits city they property, ley’s separate credited to his had been property any plan. as rate, the status of At retirement controlling. community separate Olivares, In re is not or App. 122 324, 329, P.2d 848 69 Wn. court mischaracter- if the trial 1009 Even Wn.2d long upheld property, as as will be the the allocation izes App. equitable. at 330. Olivares, 69 Wn. fair and it is monthly payments the award of we review Whether property settlement, the or as a as maintenance here question circumstances, whether, under the is ultimate just. Bulicek, .090; In 59 26.09.080, RCW the award App. also In re See 630, 633, 800 P.2d Wn. (1991) (when App. 385, 388, 818 P.2d 1382 Barnett, postdissolution equalize the are insufficient the assets through property parties positions divi of the economic ap supplemental maintenance is of alone, a award sion propriate). and liabilities marital assets Distribution of the monthly salary, however, In terms is discussed below. Stanley’s gross payments income reduce the maintenance gross income to $2,300 raise Glenda’s and to around keeps assuming all anywhere she $3,200, from around jobs, load her work $1,900, if she reduces around three or provide job. intended to The trial to one full-time jobs. part-time quit All enough the two income to provision agree court that the Bulicek all, with we was are available benefits until retirement maintenance pension thoughtful and of the resolution "a issues that allows ... a continuous stream of income.” App. Bulicek, 59 Wn. at 635.

Stanley next contends the trial court divided the mari- inequitably. particular, tal and debts he gambling contends Glenda’s debts should have been dissipation argues treated as of the marital He also assets. the value his accrued vacation and sick leave should assets, not have been included in his up using because he end cashing both rather than them out. paramount maintenance,

As with the trial court’s distributing property concern when in a dissolution is the parties. economic condition which decree leaves Terry, "just equita Wn. 871. court’s and requires ble” distribution consideration of all relevant fac including separate community properties tors, marriage. and the 26.09.080; duration RCW Bulicek, Here, 636. the court divided the parties roughly equally. total assets and liabilities of the Stanley contends, however, certain liabilities and assets should not have been included.

Washington recognize courts that consideration party’s responsibility creating dissipating of each just equitable marital assets relevant distri property. Steadman, 523, 527, bution of (1991); App. Clark, 805, 821 In 808-09, P.2d 59 re 145, 538 P.2d 86 Wn.2d 1001 "negatively trial has discretion to consider whose productive depleted couple’s conduct” assets and to apportion higher or a debt load fewer assets to the waste partner. App. ful 13 In Clark, marital Wn. at 809. this case, the trial court considered evidence that Glenda expended large gambling early sums on at from least 1990 until she for also the fact that filed divorce. It considered legal, encouraged, Washington gambling even in "brought that in a of income” substantial amount by working jobs. Analogizing at three situation buys expensive where one an car or boat that im buys drops mediately value, a that loses or race horse

271 gambling was $12,000 lost in dead, court decided dissipa- than costs of entertainment in the nature more Stanley although that court also found assets. The tion of withdrawing gambling may was known Glenda not have to the cards cards, he had access credit cash from several going "approximately find- on.” These was what and knew ings supported adequately the record.3 Stanley that es and Wisconsin cases from Illinois cites dissipation may gambling mari a considered be tablish App.3d Hagshenas, 178, 600 N.E.2d 234 Ill. In re tal assets. (1992); App.3d 47, Smith, 114 448 N.E.2d In re Ill. 437 (1983); Anstutz, 331 112 Wis.2d A.L.R.4th (Ct. 1983). particular, App. Illinois, N.W.2d 844 loosely legislated against dissipation, a defined as "where spouse benefit for his or her own marital uses marriage purpose at a time unrelated to the and for jeopardy.” marriage relationship in serious when the Washington courts, on the other Smith, 448 at 548. N.E.2d negatively produc labor or hand, focus instead on "whose creating dissipating responsible was tive conduct Clark, at 809. Balanc marital assets.” certain against spending, ing her excessive Glenda’s extra income gambling related to include the the court here decided community’s not find total liabilities. We do debts in the an of discretion. this abuse argument

Stanley’s the trial court erred that pay including in the and sick leave his vested vacation community’s is a merit. Vacation assets is without earning. Sick Hurd, at 47. Wn. form of deferred upon is also a retirement be cashed-out leave that must be benefit, all such benefits matured vested and Nuss, 47; in a dissolution action. Id. allocated (1992). contends 334, 343, 828 P.2d 627 and sick leave— valuation of the vacation court’s gambling trial, Stanley I was that she was but testified: "I was aware 3At gambling. pull money spend time Like so much at one never aware she would — maybe spending maybe at the $100 was I would feel she tabs. I would think into, 4, maybe $500 . . . run [sic] she set there and most. But now I find out one time.” — light $6,500 was excessive in $5,680. of its net value of The trial court took the net value of the vacation and sick leave at the time dissolution, added the retirement contributions and noted that too much income tax was computation approach withheld. This is similar in to that App. Hurd, used in 47, and does not constitute an abuse of discretion.

Finally, Stanley argues attorney he was entitled to fees appeal at trial and is entitled to them on because Glenda sporadic, incomplete untimely responses made to his discovery requests. points particular He to Glenda’s provide requested failure to him with canceled checks before trial. attorney

An award of fees under RCW 26.09.1404is discretionary and is reviewed for abuse of discretion. In re Knight, App. (1994), 721, 729, 75 Wn. 880 P.2d 71 (1995). Generally, denied, 126 Wn.2d 1011 the needs of the requesting party against must be balanced the other party’s ability pay. Kruger Kruger, App. 329, v. 37 Wn. 333, 679 P.2d 961 The consider, also spouse’s intransigence however, "the extent to which one spouse seeking require caused the a fee award to ad legal ditional Crosetto, services.” In re 82 Wn. (1996); 563, 918 Morrow, P.2d 954 intransigence 590, 770 established, P.2d 197 Once spouse seeking the financial resources of the fees are irrel Crosetto, evant. at 564. provide contends Glenda’s failure to

certain canceled checks before trial constituted intransi gence, entitling attorney him to fees and costs. Just before gave Stanley’s trial, counsel some of registers, specially her check but told him she had to request copies of the checks from her bank. When Stan- court, considering 4RCW 26.09.140 allows the "from time to time after parties,” spouse financial resources of both to order one the reasonable spouse’s proceed costs of the other defense or maintenance of the dissolution ings. appellate awarding court is also authorized to exercise its discretion in appeal. fees and costs on ley’s protested had not had time to at trial that he counsel registers, offered him a continu- the court examine registers on the without ance. He chose to cross-examine argument he continuance, final until after but reserved Eventually, handed over at the checks. Glenda had looked registers copies checks, are in the of the which all the argu- postponement final of the record. Other than the registers provide the checks and ment, Glenda’s failure to handicap timely appear to Stan- in a manner did not more way. important, Stanley ley any significant did in More intransigence request attorney fees on the basis Generally, not consider an issue raised for trial. we will appeal. Equip. Co., the first time on Washburn v. Beatt (1992). 246, 289, 840 P.2d 860 120 Wn.2d attorney ap request Both and Glenda fees on peal. 26.09.140, award Pursuant to RCW this maintaining defending attorney reasonable fees for or an seeking provided party 26.09, fees action under RCW 18.1(c). required by an RAP submits affidavit of need as App. App. 565; Bulicek, Crosetto, 82 Wn. 59 Wn. at 640. timely submitted an of need and we award affidavit defending attorney her reasonable fees and costs for this 18.1(c); appeal. RAP 26.09.140. RCW Affirmed. J., concurs.

Munson, — (dissenting) majority opinion ac- J. Thompson, curately sets out the facts of this case. The court abused awarding Glenda, in to order- its discretion ing Stanley gambling debts, and I dis- to Glenda’s agree majority’s attorney ap- on with the award of fees peal. respectfully Therefore, I dissent.

Spousal maintenance a matter within the trial court’s App. 633, Bulicek, 630, 800 P.2d discretion. In re (1990). A maintenance award constitutes an abuse a fair consideration of discretion when it fails to evidence paying spouse meet unable to the facts and renders the obligations imposed by his own needs as well as the Mathews, court. In 116, Wn. 853 P.2d 122 Wn.2d 1021 Pensions are divided (1) dividing monthly either amount between the parties period in a constant amount time (2) pension payable; awarding which the the entire pension awarding to one the other a sum certain pension. in lieu of the DeRevere, DeRevere v.

741, 746, 491 P.2d 249 question reviewing The ultimate a maintenance or- just. der is whether the award is 26.09.090; See ROW Bulicek, 59 case, 630. In this Glenda had the ability support herself, Bulicek, unlike in which the court awarded the wife maintenance until the retirement paid physical inability benefits were because of her work. Id. at 630. Glenda was also awarded valued approximately Any $71,000. need for maintenance was Awarding Stanley’s pension minimal. half of without his ability pay forced him to elect to retire. This result is just, warranted; thus, nor the court abused its discre- tion. majority agreed

The with the trial court that the mari- expended by gambling tal assets Glenda on did not consti- dissipation tute a of assets. This decision was based in part gambling legal. on the court’s observation that The legality activity bearing of an should have no on whether dissipation it constitutes a of marital assets. This court previously money spent found that on an excessive drink- ing properly habit was considered a division of dissipation as a Clark, 805, of assets. In re 807-08, 538 P.2d 86 Wn.2d 1001 expending community The extreme to which Glenda was gambling dissipation community assets on awas assets. solely It was error to find otherwise because some forms of gambling legal.

The court also based its decision on the fact that Glenda had substantial income of her own at the time she was gambling. relating lifestyle Evidence to the of a determining by purpose of the court for the be considered negatively productive created the labor or conduct whose dissipation marital assets. Id. at 809. Consideration of party dissipating earned assets is additional income certainly neg- gambling Glenda’s habits were not relevant. regardless atively productive Thus, of Glenda’s conduct. gambling income, a dis- additional sipation her still constituted community assets. determining attorney appeal, fees on the court must financial consider the merit of the issues and the resources parties. King, App. 134, 139, of both 831 P.2d (1992). The assets awarded to Glenda combined with ability support her continued herself did not constitute parties appeal. need. The should their own fees on Review denied 131 Wn.2d 1025 [No. 19275-6-II. December 1996.] Division Two. Department Industries, The of Labor & Respondent, Appellant. Charles Johnson, v. Department Respondent, Corrections, v. Appellant. Johnson,

Charles

Case Details

Case Name: In Re the Marriage of Williams

Court Name: Court of Appeals of Washington

Date Published: Dec 5, 1996

Citation: 927 P.2d 679

Docket Number: 14648-1-III

Court Abbreviation: Wash. Ct. App.