In re Marriage of Bostain, No. 30450-3-II (WA 5/17/2005), 30450-3-II
| Decision Date | 17 May 2005 |
| Docket Number | No. 30450-3-II,30450-3-II |
| Court | Washington Supreme Court |
| Parties | In re the Marriage of DENISE CHERYL BOSTAIN, Respondent, and LEARL LEROY BOSTAIN, Appellant. |
Appeal from Superior Court of Cowlitz County. Docket No: 02-3-00205-1. Judgment or order under review. Date filed: 05/15/2003. Judge signing: Hon. Jill M Johanson.
Counsel for Appellant(s), Kurt Allen Anagnostou, Attorney at Law, 1801 1st Ave # 4a, PO Box 1793, Longview, WA 98632-8110.
Counsel for Respondent(s), Robert Harold Falkenstein, Attorney at Law, 950 12th Ave Ste 100, PO Box 868, Longview, WA 98632-7537.
Kenneth Wendell Masters, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.
Learl L. `Larry' Bostain appeals a dissolution decree dividing property between him and his former wife, Denise C. Bostain, now known as Denise C. Nelson. He contends that the trial court erred in finding that a meretricious relationship existed before the couple's marriage and in failing to honor their `non-marital agreement.' He also contends that the trial court improperly considered parol evidence undermining both the non-marital agreement and a quit claim deed transferring interest in the parties' home from joint ownership to Bostain individually. Bostain also asserts that the trial court erred in entering a contempt order that he is unable to comply with and in imposing attorney fees and a penalty of $50 per day until he complies with the order.
We hold that the trial court did not err in finding a meretricious relationship existed prior to marriage. We also hold that the couple's `non-marital' agreement was not a valid prenuptial agreement and did not establish the intent of the parties. Essentially, the court divided the assets acquired during the relationship and marriage equally and gave each his or her separate property.1 It did not abuse its discretion in doing so. Nor is it apparent from the record Bostain has provided that the court abused its discretion in finding Bostain in contempt of court and in ordering that he pay attorney fees and a penalty of $50 per day until he complied with the court's order. Thus, we affirm.
Bostain and Nelson met in December 1990, while Nelson was out with her church singles group. Bostain was married at the time. He separated from his wife in April 1991, and filed for dissolution of the marriage in October of that same year.
Nelson had also been married, but her husband died in 1988, in a car accident that also seriously injured her. Nelson had been living with her grandmother while recovering from her injuries. Bostain began staying with Nelson in August 1991.
In April 1992, Nelson purchased a home on Palm Drive in Kelso, Washington, with funds she received from her deceased husband's employer, a railroad company. In May, Bostain moved in with her.
Bostain worked as a pipe fitter at Weyerhaeuser and Nelson stayed home with her son from her previous marriage.2 Nelson would cook and clean house and do 'all the regular things you do as a stay at home wife, mother.' 1 Report of Proceedings (RP) at 23. Bostain would also cook. Bostain paid $300 per month in `rent' to Nelson. 2 RP at 172.
The two spent no significant time apart and maintained a relationship similar to that of a married couple. They traveled together to Hawaii, Las Vegas, and Reno and attended car shows together. Nelson estimated that Bostain proposed to her 10 times during their relationship before they were eventually married in January 1999. Nelson testified that if she had married Bostain, she would have lost her late husband's railroad pension that she was using to raise her son.3
Following the April 1993 dissolution of his marriage, Bostain received money from the sale of his prior home and wanted to apply the proceeds to the purchase of another home. Bostain and Nelson searched for a new home together but found nothing suitable. Nelson went to a real estate agent she knew who helped them locate property on Sparks Drive in Kelso near the Palm Drive residence. Bostain bought the unimproved lot for $17,933.92. Nelson testified that she paid the $2,000 earnest money on the property, although Bostain asserted that he paid her back.
The couple also hired a contractor and went to Portland to select a design for the new home. Bostain paid the contractor a down payment of $33,235 from his separate funds and took out a loan for the remaining $80,000. Nelson testified that she participated in nearly all aspects of putting together the new home, helping to select everything from siding to carpeting. Bostain's testimony downplayed Nelson's involvement as merely giving `her opinion and her opinion only.' 2 RP at 192-93. Nelson provided the appliances for the new home from her Palm Drive residence.
At the time, Nelson was concerned that title to this home (that, she testified, the parties considered 'ours') was being taken in Bostain's name alone. It was because of this concern that, in November 1993, Bostain quit claimed the property 'for and in consideration of love and affection . . . to Learl Leroy Bostain and Denise Cheryl Nelson.' Ex. 6. At trial, Bostain testified that he transferred the property because he wanted Nelson, not his children from a prior marriage, to have the property if he died.
Nelson and Bostain moved into the Sparks Drive residence in February 1994.4 Nelson paid Bostain $300 per month she paid the utilities and wrote Bostain a check for the remainder with the notation `house payment.' 1 RP at 118. She also paid the property taxes on the residence.
The two also generally paid for their own clothing and cars and kept separate bank accounts. They purchased a 1965 Corvette together and built a garage for it at the Sparks Drive residence. Nelson wrote checks for over $6,000 for materials for the garage.
At trial, Bostain introduced a document called the `Amended: Non-Marital Agreement,'5 which the parties apparently executed in November 1993. Ex. 14. Bostain had it prepared by Alan Rudberg, a non-lawyer whom Nelson referred to as a `pretend attorney.' 1 RP at 72. The non-marital agreement provided that Bostain and Nelson would be responsible for their own expenses and that property each acquired would remain separate. It also provided that Bostain would be responsible for a $300 payment to Nelson while he resided with her and, if Bostain were to 'purchase and reside in any other residence . . . {and Nelson chooses to reside with him}, then she shall assume the same financial considerations that {Bostain} is currently obligated to make to her.' Ex. 14. The document was signed by Bostain and Nelson and notarized by P. Stuart McAllister in Cowlitz County on November 2, 2003. At trial, Nelson acknowledged that she thought it was her signature on the document because `{n}obody else could write like me.' 1 RP at 68. But she had no recollection of meeting with Rudberg nor reading or signing the document. She had no recollection of the parties having shared financial information at the time nor did she receive any legal advice regarding the document. Bostain testified that they entered into the agreement at Nelson's request because `she was concerned about {his} ex-wife or children getting her property.' 2 RP at 185.
In November 1997, the parties transferred the Sparks Drive property back into Bostain's name via quit claim deed. Nelson testified that she only agreed to the transfer because they were trying to settle a claim against Louisiana-Pacific (LP) for faulty siding and LP raised an issue of title; Nelson and Bostain agreed they would put her name back on the title once the matter was settled. Bostain testified that they made the second transfer because he was no longer worried about his health after successful heart surgery.
Bostain and Nelson married on January 12, 1999. After they married, each put the other on their checking accounts and they invested jointly in a Continental Investors account. Bostain retired6 in January 2002 when Weyerhaeuser offered him early retirement and he received a pension buyout payment of $251,736. He also received his 401(k) account and a performance share account from Weyerhaeuser.
Nelson petitioned for dissolution of the marriage on April 12, 2002. Trial occurred on December 5 and 12, 2002. At trial, Nelson sought her separate property (which consisted of investments and various accounts) plus half of the property acquired during their relationship and marriage.
On February 18, 2003, the court entered its findings and conclusions. The court found a meretricious relationship beginning in May 1992 and entered `Additional Findings of Fact' regarding the meretricious relationship. Clerk's Papers (CP) at 95. The court found the non-marital agreement invalid, stating:
The court finds that neither party had the advice of attorneys, that there was not full disclosure of assets of the parties, that the parties did not know their legal rights with regard to their relationship and that {Nelson} could not waive rights she did not know she had. In addition, there was failure of proof as to the circumstances surrounding the alleged execution of the document. No attorney was involved in drafting the agreement.
The court also characterized the property, awarded each party his or her separate property, and split community property and 'community-like' property acquired during the meretricious relationship evenly between the two, with the exception of their joint investment account, which it split according to their contributions. Among other things, the court found that the Sparks Drive residence, which it valued at $157,000, was community or community-like property, subject to an offset of Bostain's $49,000 separate property contribution. The court adopted in its findings Nelson's version that Bostain said he would transfer the Sparks property back to joint ownership after...
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