Boisen v. Burgess
| Citation | 87 Wn.App. 912,943 P.2d 682 |
| Decision Date | 12 September 1997 |
| Docket Number | No. 19498-8-II,19498-8-II |
| Parties | In re the Marriage of Sheryl Page (Burgess) BOISEN, Appellant, v. Malcolm BURGESS, Respondent. |
| Court | Court of Appeals of Washington |
Merrifield B. Rees, and McCormick, Hoffman, Rees, Faubion, Van Buskirk, Johnson & McLeod, P.S., Lakewood, for Appellant.
Joel E. Bradshaw, Bradshaw & Richards, P.S., Seattle, for Respondent.
Sheryl Page Boisen sued Malcolm Burgess for one-half of the college expenses incurred by their two children. The trial court dismissed the action because all of the children's expenses had been paid by a third party. Ms. Boisen appeals, and we affirm.
Ms. Boisen married Malcolm Burgess in 1964. They had a child, Arden, on September 6, 1969, and another child, Kevin, on June 10, 1971. They separated on December 21, 1973, and obtained a decree of dissolution on January 23, 1975.
On December 20, 1974, Ms. Boisen and Mr. Burgess executed a written separation agreement. It provided that Ms. Boisen would have custody of the two children, and that Mr. Burgess would pay child support, including "one-half of the board, room, tuition, and books and other necessary expenses for a four-year college education of each child." 1 The ensuing dissolution decree reiterated the same provisions.
In October 1975, Ms. Boisen married Dr. Elliot Boisen. At the times relevant here, they lived with the children in Tacoma, and Dr. Boisen worked as a physician for the Veteran's Administration. 2
In July 1987, Dr. Boisen and Ms. Boisen separated. He moved to Alaska, where he continued to work as a VA physician. She and the children remained in Tacoma. They never attempted to reconcile, according to the trial court's findings.
Dr. Boisen filed for divorce in 1989 and obtained a final decree on December 20, 1991. The decree did not require him to pay child support. 3
Meanwhile, Arden started college in the fall of 1987 and graduated in December 1992. Kevin started college in the fall of 1989 and graduated in June 1994. Together, the two children incurred college expenses of $211,796.
Between August 1987 and June 1994, Dr. Boisen paid the entire $211,796 directly to the children, their college, and their creditors. According to the trial court's findings, he paid using the earnings from his Alaska job. He paid not because he was required to, but because he "felt that it was the right thing to do." 4
In June 1994, Ms. Boisen sued Mr. Burgess to recover one-half of the $211,796, or $105,898. She alleged, in a document that appears to have been her original pleading, that "MALCOLM BURGESS [ ] was ordered to pay these expenses pursuant to the Separation Agreement of December 20, 1974 ... [and] that MALCOLM BURGESS has failed and refused to pay said expenses." 5
Trial was held on March 20, 1995. After hearing testimony from Ms. Boisen, Dr. Boisen and Mr. Burgess, the trial court ruled that Dr. Boisen had paid the $211,796 out of his separate property and, concomitantly, that Ms. Boisen had "not provided funds towards the parties' two children's post-secondary education costs." 6 It further ruled, at least implicitly, that Dr. Boisen's payments would be credited one-half to Ms. Boisen and one-half to Mr. Burgess. Thus, it appears to have reasoned that Mr. Burgess was obligated to pay one-half of the children's college expenses ($105,898); that Mr. Burgess was entitled to a credit of one-half of Dr. Boisen's payments ($105,898); and thus that Mr. Burgess "has satisfied all child support requirements" related to the children's college expenses. 7 When it dismissed the action with prejudice, Ms. Boisen filed this appeal, in which she now seems to assert two alternative theories of recovery.
Ms. Boisen first claims reimbursement. At least implicitly, she asserts that the trial court erred by holding that she contributed nothing to the children's college expenses. In fact, she says, she contributed $211,796, and she is entitled to have Mr. Burgess reimburse her for one-half that amount, pursuant to the 1974 settlement agreement. As she puts it in her brief, she "expended the sum of $211,796 for a four-year education for each of the children; and she should be entitled to reimbursement from the children's father for 50 percent of that amount." 8
The premise underlying this theory is that Ms. Boisen paid the children's college expenses. In formulating and maintaining that premise, she does not dispute that Dr. Boisen was the actual payor of the $211,796. She argues, however, that he paid using money that belonged to the Boisen marital community (i.e., to the marital community composed of him and her), and thus that she was a co-payor of the entire amount. She does not contend, nor could she contend on the basis of this record, that she paid the children's college expenses using money that was her separate property. 9
The trial court rejected Ms. Boisen's argument that Dr. Boisen paid with money belonging to the Boisen marital community. It based its rejection on RCW 26.16.140, and on two essential propositions of fact.
RCW 26.16.140 provides in pertinent part:
When a husband and wife are living separate and apart, their respective earnings and accumulations shall be the separate property of each....
For purposes of this statute, a husband and wife live separate and apart when they have separated permanently rather than just physically, 10 when they no longer have the will to continue the marital relationship, 11 or when they manifest "a decision to renounce the community, with no intention of ever resuming the marital relationship." 12 Each of these expressions is synonymous with the others.
The trial court's first essential proposition of fact, expressed in Findings of Fact 5 and 6 and Conclusion of Law 3 (part of which is a mislabeled finding of fact), was that Dr. Boisen and Ms. Boisen permanently separated in July 1987 and thereafter lived separate and apart. The trial court's second essential proposition of fact, expressed in Findings of Fact 6 through 8 and Conclusion of Law 4 (part of which is a mislabeled finding of fact), was that Dr. Boisen paid the children's college expenses, beginning in August 1987, with money earned from his Alaska job (i.e., with money earned while he and Ms. Boisen were living separate and apart). Based on RCW 26.16.140 and these findings, the trial court concluded that Dr. Boisen had paid the children's college expenses with his separate property; that Ms. Boisen had not contributed; and that Ms. Boisen was not entitled to recover from Mr. Burgess on a reimbursement theory.
The question before us is whether we should overturn the trial court's findings. The answer is no, for at least two reasons.
First, Ms. Boisen does not assign error to Findings of Fact 5 through 8, or to the factual portion of Conclusion of Law 3. Thus, each is a verity on appeal. 13
Second, and more importantly, the trial court's findings are supported by substantial evidence, 14 i.e., by evidence which, when viewed in the light most favorable to the party prevailing below, is sufficient to persuade a fair-minded, rational person that the declared premise is true. 15 With respect to separation, Dr. Boisen testified that he moved to Anchorage on July 1, 1987, and that Ms. Boisen remained in Tacoma with the children. Although he visited infrequently after that, they never sought marital counseling or made other attempts at reconciliation. Upon arriving in Alaska, he immediately set up his own residence and his own bank account, which he maintained continuously until divorce. With respect to the source of funds, Dr. Boisen testified that he paid the children's college expenses with money from his Alaska bank account, and that the contents of that account were his Alaska earnings. During the same time frame, Ms. Boisen's only income was from rental property that she owned and managed, and both she and Dr. Boisen testified that no rental income went toward college expenses. A rational trier of fact viewing this evidence in the light most favorable to Mr. Burgess could find, by a preponderance of evidence, that the Boisens permanently separated on July 1, 1987; that they lived separate and apart after that, within the meaning of RCW 26.16.140; and that Dr. Boisen paid the children's college expenses using money he earned while he and Ms. Boisen were living separate and apart. It follows that Dr. Boisen paid out of his separate property; that Ms. Boisen did not contribute; and that Ms. Boisen is not entitled to recover on a reimbursement theory.
Ms. Boisen's alternative theory is that even if Dr. Boisen paid the $211,796 out of his separate property, so that he is a third party payor in relationship to her and Mr. Burgess, she is nevertheless entitled to recover because (1) Mr. Burgess owes $105,898 under the 1974 separation agreement and (2) the trial court erred by crediting him with one-half of the amount paid by Dr. Boisen. As she puts it in her brief,
The primary question here involved is whether a parent is relieved of support arising out of [a] [d]issolution [d]ecree incorporating a settlement agreement ... when a third party provides assistance in support for college education. The obvious answer ... should be no. 16
Mr. Burgess' obligation to pay college expenses was established and defined when he and Ms. Boisen executed the 1974 separation agreement. As noted already, that agreement provides that he "will pay one-half of the board, room, tuition, and books and other necessary expenses for a four-year college education of each child." 17 Mr. Burgess construes this to mean that he was required to pay one-half of the children's college expenses, less payments made by third parties. In contrast, Ms. Boisen construes it to mean that Mr. Burgess was required to pay one-half of the children's college expenses, without credit or deduction for payments made by third parties.
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