Connell v. Francisco

• Decision Date: 20 July 1995
• Docket Number: No. 61941-7,61941-7
• Citation: 898 P.2d 831,127 Wn.2d 339
• Court: Washington Supreme Court
• Parties: Shannon CONNELL, Respondent, v. Richard FRANCISCO, Petitioner.

Page 339

127 Wn.2d 339

898 P.2d 831

Shannon CONNELL, Respondent, v. Richard FRANCISCO, Petitioner.

No. 61941-7.

Supreme Court of Washington En Banc.

July 20, 1995.

Weber & Gunn, Kenneth W. Weber, Vancouver, amicus curiae

Kelly, Harvey & Martin, H. Clarke Harvey and M. Douglas Kelly, Clinton, for petitioner.

Edwards, Sieh, Wiggins & Hathaway, Malcolm Edwards, Seattle, Edwards, Sieh, Wiggins & Hathaway, Charles Wiggins, Bainbridge Island, and Cohen, Manni & Theune, Jacob Cohen, Oak Harbor, for respondent.

GUY, Justice.

This case requires us to decide how property acquired during a meretricious relationship is distributed. ¹

BACKGROUND

Petitioner Richard Francisco and Respondent Shannon Connell met in Toronto, Canada, in June 1983. Connell was a dancer in a stage show produced by Francisco. She resided in New York, New York. She owned clothing and a leasehold interest in a New York apartment. Francisco resided in Las Vegas, Nevada. He owned personal property, real property, and several companies, including Prince Productions, Inc. and Las Vegas Talent, Ltd., which produced stage shows for hotels. Francisco's net worth was approximately $1,300,000 in February 1984.

Connell, at Francisco's invitation, moved to Las Vegas in November 1983. They cohabited in Francisco's Las Vegas home from November 1983 to June 1986. While living in Las Vegas, Connell worked as a paid dancer in several stage shows. She also assisted Francisco as needed with his various business enterprises. Francisco managed his companies and produced several profitable stage shows.

In November 1985, Prince Productions, Inc. purchased a bed and breakfast, the Whidbey Inn, on Whidbey Island, Washington. Connell moved to Whidbey Island in June 1986 to manage the Inn. Shortly thereafter Francisco moved to Whidbey Island to join her. Connell and Francisco resided and cohabited on Whidbey Island until the relationship ended in March 1990.

While living on Whidbey Island, Connell and Francisco were viewed by many in the community as being married. Francisco acquiesced in Connell's use of his surname for business purposes. A last will and testament, dated December 11, 1987, left the corpus of Francisco's estate to From June 1986 to September 1990 Connell continuously managed and worked at the Inn. She prepared breakfast, cleaned rooms, took reservations, laundered linens, paid bills, and maintained and repaired the Inn. Connell received no compensation for her services at the Inn from 1986 to 1988. From January 1989 to September 1990 she received $400 per week in salary.

Connell. Both Connell and Francisco had surgery to enhance their fertility. In the summer of 1986, Francisco gave Connell an engagement ring.

Francisco produced another profitable stage show and acquired several pieces of real property during the period from June 1986 to September 1990. Property acquired by Francisco included: a condominium in Langley, Washington, for $65,000; a waterfront lot next to the Inn for $35,000; property identified as the Alan May property for $225,000; real property identified as the restaurant property for $320,000; a house in Langley, Washington, for $105,000; and a condominium in Las Vegas, Nevada, for $110,000. In addition to the real property acquired by Francisco, Prince Productions, Inc. acquired two pieces of real property next to the Inn. Connell did not contribute financially toward the purchase of any of the properties, and title to the properties was held in Francisco's name individually or in the name of Prince Productions, Inc.

Connell and Francisco separated in March 1990. When the relationship ended Connell had $10,000 in savings, $10,000 in jewelry, her clothes, an automobile, and her leasehold interest in the New York apartment. She continued to receive her $400 per week salary from the Inn until September 1990. In contrast, Francisco's net worth was over $2,700,000, a net increase since February 1984 of almost $1,400,000. In March 1990, he was receiving Connell filed a lawsuit against Francisco in December 1990 seeking a just and equitable distribution of the property acquired during the relationship. The Island County Superior Court determined Connell and Francisco's relationship was sufficiently long term and stable to require a just and equitable distribution. The Superior Court limited the property subject to distribution to the property that would have been community in character had they been married. The trial court held property owned by each party prior to the relationship could not be distributed. In addition, the Superior Court required Connell to prove by a preponderance of the evidence that the property acquired during their relationship would have been community property had they been married.

$5,000 per week in salary from Prince Productions, Inc. ²

The only property characterized by the Superior Court as being property that would have been community in character had Connell and Francisco been married was the increased value of Francisco's pension plan. The increased value of the pension plan, $169,000, was divided equally, with $84,500 distributed to Connell. The Superior Court, concluding Connell did not satisfy her burden of proof with respect to the remaining property, distributed to Francisco the remainder of the pension plan and all real property.

The Court of Appeals reversed, holding both property owned by each prior to the relationship and property that would have been community in character had the parties been married may be distributed following a meretricious relationship. Connell v. Francisco, 74 Wash.App. 306, 317, 872 P.2d 1150 (1994). The Court of Appeals also ruled the analogous application of RCW 26.09.080 by the Superior Court to meretricious relationships would be meaningless without a community-property-like presumption attaching Francisco petitioned this court for discretionary review. He argues property owned by each party prior to the relationship may not be distributed following a meretricious relationship, and a community-property-like presumption is inapplicable when a trial court distributes property following a meretricious relationship. We granted discretionary review.

                to all property acquired during the relationship.  Connell, 74 Wash.App. at 320, 872 P.2d 1150.   The Court of Appeals remanded the case to the Superior Court
                

ANALYSIS

A meretricious relationship is a stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist. In re Marriage of Lindsey, 101 Wash.2d 299, 304, 678 P.2d 328 (1984); Harry M. Cross, Community Property Law in Washington (Revised 1985), 61 Wash.L.Rev. 13, 23 (1986).

Relevant factors establishing a meretricious relationship include, but are not limited to: continuous cohabitation, duration of the relationship, purpose of the relationship, pooling of resources and services for joint projects, and the intent of the parties. Lindsey, 101 Wash.2d at 304-05, 678 P.2d 328; Latham v. Hennessey, 87 Wash.2d 550, 554, 554 P.2d 1057 (1976); In re Marriage of DeHollander, 53 Wash.App. 695, 699, 770 P.2d 638 (1989).

In Lindsey, this court ruled a relationship need not be "long term" to be characterized as a meretricious relationship. Lindsey, 101 Wash.2d at 305, 678 P.2d 328. While a "long term" relationship is not a threshold requirement, duration is a significant factor. A "short term" relationship may be characterized as meretricious, but a number of significant and substantial factors must be present. See Lindsey, 101 Wash.2d at 304-05, 678 P.2d 328 (a less than 2-year meretricious relationship preceded marriage).

The Superior Court found Connell and Francisco were parties to a meretricious relationship. This finding is not contested.

Historically, property acquired during a meretricious relationship was presumed to belong to the person in whose name title to the property was placed. "[I]n the absence of any evidence to the contrary, it should be presumed as a matter of law that the parties intended to dispose of the property exactly as they did dispose of it." Creasman v. Boyle, 31 Wash.2d 345, 356, 196 P.2d 835 (1948). This presumption is commonly referred to as "the Creasman presumption".

To avoid inequitable results under "the Creasman presumption", Washington courts developed a number of exceptions. In re Estate of Thornton, 81 Wash.2d 72, 79-81, 499 P.2d 864 (1972) (implied partnership); Hennessey, 87 Wash.2d 550, 554 P.2d 1057 (implied partnership); Humphries v. Riveland, 67 Wash.2d 376, 407 P.2d 967 (1965) (constructive trust); West v. Knowles, 50 Wash.2d 311, 311 P.2d 689 (1957) (tracing source of funds); Dahlgren v. Blomeen, 49 Wash.2d 47, 298 P.2d 479 (1956) (contract theory); Omer v. Omer, 11 Wash.App. 386, 523 P.2d 957, review denied, 84 Wash.2d 1009 (1974) (constructive trust); see generally Washington State Bar Ass'n, Community Property Deskbook §§ 2.70-2.76 (1989).

In 1984, this court overruled Creasman. Lindsey, 101 Wash.2d at 304, 678 P.2d 328. In its place, the court adopted a general rule requiring a just and equitable distribution of property following a meretricious relationship.

[W]e adopt the rule that courts must "examine the [meretricious] relationship and the property accumulations and make a just and equitable disposition of the property." Latham v. Hennessey, supra at 554 . Cf. RCW 26.09.080. See West v. Knowles, supra at 320 ; Poole v. Schrichte, 39 Wn.2d 558, 569, 236 P.2d 1044 (1951). Cf. Buckley v. Buckley, 50 Wash. 213, 96 P. 1079 (1908).

Lindsey, 101 Wash.2d at 304, 678 P.2d 328.

In Lindsey, the parties cohabited for less than 2 years prior to marriage. When they subsequently divorced, the wife argued the increase in value of property acquired during the meretricious portion of their relationship was The dispute in the present case arises from this court's reference in Lindsey to former RCW 26.09.080 by use of the "Cf." signal. At issue is to...