In re Marriage of Evans v. Evans, No. 32357-5-II (WA 12/20/2005)
| Decision Date | 20 December 2005 |
| Docket Number | No. 32357-5-II.,32357-5-II. |
| Court | Washington Supreme Court |
| Parties | In re the Marriage of: CARMEN R. EVANS, Respondent, v. RILEY D. EVANS, Appellant. |
Appeal from Superior Court of Kitsap County. Docket No: 02-3-00546-8. Judgment or order under review. Date filed: 09/27/2004. Judge signing: Hon. Bryan E Chushcoff.
Counsel for Appellant(s), Randy Wallace Loun, Law Office of Randy W Loun, 509 4th St Ste 6, Bremerton, WA 98337-1401.
Counsel for Respondent(s), John Hartwell Mc Gilliard, Crawford, McGilliard, Peterson et al, 623 Dwight St, Port Orchard, WA 98366-4693.
Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Valerie a Villacin, Attorney at Law, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Riley Evans appeals the dissolution trial court's property distribution and denial of his motion for a new trial of the parenting plan. He argues the trial court (1) wrongly characterized the family home and money he paid to his mother, (2) misvalued the family home and a boat, and (3) wrongly denied his motion to reopen the income evidence to consider his lost job. Finding no reversible error, we affirm.
Riley and Carmen Evans1 met when Carmen worked for Riley as his bookkeeper. They married in 1987. They had two children, born in 1991 and 1998. Carmen filed for marital dissolution on May 3, 2002.
Riley bought the family home for $332,000 as early as two years before the marriage or as late as six months after the marriage. Carmen's name was not on the original deed. Riley financed part of the home with his separate property, and the balance with a $190,000 mortgage he executed with Carmen on November 17, 1987, six months after they married. Although Riley asserts he paid $2000 per month on the home for two years before the marriage, he has provided no supporting documentation.
One month after executing the first mortgage, Riley and Carmen executed two additional mortgages: a $138,000 second mortgage on December 7, 1987, and another for $38,434.75 on December 9, 1987. According to Riley, these additional mortgages secured his separate debt from the settlement of a lawsuit.
Ten years later, on July 7, 1997, Riley and Carmen refinanced the three mortgages with a single $325,000 mortgage on the family home. Simultaneously, Riley executed a quitclaim deed conveying his separate interest in the family home to the marital community. He testified he quitclaimed the home because the title company required Carmen's name on the deed.
In 1999, Riley and Carmen used community funds to buy an older boat for $30,000. On March 1, 2000, Riley paid his mother $137,372.21 by check. He testified he was repaying an investment his parents had made long ago.
Before and into the first year of the marriage, Riley ran an architectural engineering and surveying business, where Carmen worked as a bookkeeper. Riley also developed real estate and constructed houses. At the time of trial, Riley was earning a salary of $100,000 per year. The record does not show whether Carmen continued to work outside the home.
Carmen filed for marital dissolution on May 3, 2002. The night of May 30, 2002, Riley began verbally abusing her. As she had done in the past, Carmen retrieved a tape recorder. In the presence of their children, Riley slapped the recorder out of her hands, grabbed her by the arms, and threw her against a window, saying, Report of Proceedings (RP) (Carmen Evans) at 9. Riley's assault bruised Carmen's breasts and arms.
The dissolution proceeded to trial on December 15 and 16, 2003, before the late Judge Thomas Majhan. On December 31, Judge Majhan signed and filed his Memorandum Opinion, to which he attached his signed 11-page Parenting Plan Final Order bearing hand-written interlineations where his order differed from the printed format. Two weeks later, Judge Majhan died from a long-term illness.
On March 1, 2004, Riley moved for a new trial. Judge Anna M. Laurie granted a new trial on the property distribution and child support issues. She denied a new trial on the parenting plan issues, ruling that the plan attached to Judge Majhan's Memorandum Opinion was final.
Judge Bryan Chushcoff presided over the new trial on the property distribution and child support issues. Carmen and Riley presented competing appraisers who testified that the current value of the family home was $600,000 and $786,500,2 respectively. Riley's appraiser testified that the value of the boat, which was in poor shape, was $18,000, in 2004, a year before trial.
The trial court valued the family home at $630,000, and awarded it to Carmen. The trial court awarded Riley a lien on this home in the amount of $6,019.65 plus seven percent interest per annum, with Carmen paying $144.13 per month until the lien is paid. The trial court rejected Riley's boat appraisal, valued it at $30,000 (the 1999 purchase price), and awarded it to Riley.
The trial court ruled, `A disproportionate division of property should favor {Carmen} given {Riley's} separate property and greater earnings.' Clerk's Papers (CP) at 156. The trial court awarded community property to Riley valued at $200,862.21,3 and to Carmen valued at $318,708.71.4 The trial court also distributed to Riley as his separate property undeveloped land in Bremerton valued at $50,000, and $25,117.48 in separate liabilities. Ruling that Carmen was `in need of assistance' and Riley had `the ability to pay,' the trial court ordered Riley to contribute $5,000 to payment of Carmen's legal fees.
After trial, Riley moved to reopen the case to present evidence that he had lost his job. The court denied this motion.
Riley appeals.
Riley argues that (1) Judge Majhan's Memorandum Opinion and the attached parenting plan contained insufficient findings of fact; (2) therefore, Judge Laurie could not step into Judge Majhan's shoes; and (3) she was required to conduct a new trial on the parenting issues. We agree with Riley that dissolution proceedings require written findings of fact and conclusions of law. CR 52(a)(2)(B). We disagree, however, that sufficient findings and conclusions were lacking here.
Death of the original judge who tried a case triggers a limited court rule exception to RCW 2.28.030(2)'s5 prohibition against a successor judge completing the case:
If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after . . . findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if such other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may in his discretion grant a new trial.
CR 63(b) (emphases added). See also DGHI Enter. v. Pac. Cities, Inc., 137 Wn.2d 933, 939, 977 P.2d 1231 (1999). Taken together, the statute and the court rule In re Marriage of Crosetto, 101 Wn. App. 89, 96, 1 P.3d 1180 (2000) (quoting State v. Bryant, 65 Wn. App. 547, 550, 829 P.2d 209 (1992)).6
Judge Laurie's implicit determination that Judge Majhan's Memorandum Opinion and attached Parenting Plan Final Order met the requirements of CR 63(b) for purposes of the parenting issues is a question of law, which we review de novo. See DGHI, 137 Wn.2d at 938; WESCO Distr., Inc. v. M.A. Mortenson Co., 88 Wn. App. 712, 714, 946 P.2d 413 (1997). If we agree with Judge Laurie that Judge Majhan met the requirements of CR 63(b), we then review Judge Laurie's decision to deny Riley's request for a new trial for abuse of discretion, based on CR 63(b)'s use of the permissive phrase `may,' allowing the successor judge to determine whether to perform the duties of the deceased judge who had tried the case. CR 63(b).
Riley argues that after Judge Majhan died, there was no longer a living judge who had been present for the trial to enter the required findings of fact for the parenting plan that Judge Majhan had attached to his Memorandum Opinion; thus, the only solution was a new trial. Riley argued below to Judge Laurie that Judge Majhan's Memorandum Opinion had `no more force than an oral opinion,' and that written memorandum opinions cannot be sufficient to allow a succeeding judge to take over from one who has died. We disagree.
In general, a trial court must make findings of fact and conclusions of law sufficient to suggest the factual basis for its ultimate conclusion. Groff v. Dep't of Labor & Indus., 65 Wn.2d 35, 40, 395 P.2d 633 (1964). The degree of particularity required in these findings `depends on the circumstances of the particular case, the basic requirement being that the findings must be sufficiently specific to permit meaningful review.' In re Dependency of C.B., 61 Wn. App. 280, 287, 810 P.2d 518 (1991) (citing In the Detention of Labelle, 107 Wn.2d 196, 218, 728 P.2d 138 (1986)). The purpose of the requirement of findings and conclusions is to insure the trial judge `has dealt fully and properly with all the issues in the case before he decides it and so that the parties involved and this court on appeal may be fully informed as to the bases of his decision when it is made.'
Labelle, 107 Wn.2d at 218-19 (quoting State v. Agee, 89 Wn.2d 416, 421, 573 P.2d 355 (1977)).
CR 52(a)(4) provides: `If a...
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