In re Marriage of Voshell v. Voshell, No. 32318-4-II (WA 3/7/2006)

• Decision Date: 07 March 2006
• Docket Number: No. 32318-4-II.,32318-4-II.
• Court: Washington Supreme Court
• Parties: In re the Marriage of MICHELL VOSHELL Respondent, v. ARLEN WILLIAM VOSHELL, Appellant.

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Unpublished Opinion

In re the Marriage of MICHELL VOSHELL Respondent, v. ARLEN WILLIAM VOSHELL, Appellant.

No. 32318-4-II.

Court of Appeals of Washington, Division Two.

Filed: March 7, 2006.

Appeal from Superior Court of Clark County. Docket No: 02-3-01756-5. Judgment or order under review. Date filed: 08/27/2004. Judge signing: Hon. Edwin L Poyfair.

Counsel for Appellant(s), Mark Evan Didrickson, Attorney at Law, 400 Columbia St Ste 110, Vancouver, WA 98660-3425.

Counsel for Respondent(s), Carolyn Marie Drew, Scott Horenstein Law Firm PLLC, 900 Washington St Ste 1020, PO Box 61507, Vancouver, WA 98666-1507.

Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988

QUINN-BRINTNALL, C. J.

Arlen Voshell appeals the property distribution, child support, and maintenance awards entered on the dissolution of his marriage to his wife Michell. We affirm the trial court's awards and grant Michell's request for attorney fees on appeal.

FACTS

Arlen and Michell¹ married on September 25, 1993,² and separated on October 1, 2002. They had three children aged 15, 12, and 9 at the time of these proceedings.³ On March 15, 2004, the parties and their counsel appeared before Judge Edwin Poyfair for entry of final orders. In an expedited proceeding, Arlen and Michell presented child support, maintenance, and property division issues to the court for resolution. The court received documentary evidence, testimony from Thomas Anderson, a certified public accountant (CPA), and asked clarifying questions of the parties under oath. It set child support at $1,130.84 a month, found that Michell was totally disabled,⁴ and awarded her spousal maintenance for five years in the amount of $1,595 per month for three years and $1,200 for two years. In its property distribution order, the court awarded Arlen the family residence and the Battle Ground Apartments. Michell received a $90,482 judgment to compensate for the loss of her interest in the property and a KPMG 401(k) account valued at $23,908. The trial court subsequently denied Arlen's motions to reconsider or for a new trial.

Arlen appeals the trial court's (1) expedited trial procedures; (2) order distributing property; (3) child support order; and (4) maintenance award.

ANALYSIS

CR 59 Denial

RAP 2.2(a)(9) permits an appeal from the denial of a motion for a new trial or reconsideration and simultaneous appellate review of `the trial court's decision or the issues pertaining to that decision.' RAP 2.4(c); 15 Karl B. Tegland, Washington Practice: Civil Procedure sec. 38.3 at 4 (2003). The standards governing review depend on the basis asserted for reconsideration or a new trial. Schneider v. City of Seattle, 24 Wn. App. 251, 255-56, 600 P.2d 666 (1979), review denied, 93 Wn.2d 1010 (1980); 15 Tegland, supra sec. 38.30 at 59 (2003). We review a trial court's denial of motions for irregularity of proceedings and excessive awards for an abuse of discretion. Danielson v. Carstens Packing Co., 115 Wash. 516, 517, 197 P. 617 (1921); 15 Tegland, supra sec. 38.30 at 59. But we review alleged errors of law de novo. In re Marriage of Chumbley, 150 Wn.2d 1, 5, 74 P.3d 129 (2003). And we review a trial court's finding of fact for substantial evidence. In re Marriage of Mansour, 126 Wn. App. 1, 12, 106 P.3d 768 (2004). Where substantial evidence exists, we will not overturn a trial court's child support award, spousal maintenance award, or order on property valuation and distribution absent an abuse of discretion. Mansour, 126 Wn. App. at 12-14.

Challenge to Form of Proceedings

Initially Arlen seeks to challenge the fairness of the expedited trial procedure that the trial court employed here. But an expedited trial on focused issues was a reasonable procedure and any objection to the form of proceeding was waived when Arlen failed to object below. RAP 2.5(a), RAP 10.3(a)(5). Moreover, since Arlen, with assistance of his counsel, agreed to the procedures used, any error was invited. In re Marriage of Blakely, 111 Wn. App. 351, 360, 44 P.3d 924 (2002) (a party cannot complain about an error on appeal that he set up himself) (citing In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995)), review denied, 148 Wn.2d 1003 (2003).

Property Characterization and Distribution

Arlen also challenges the trial court's characterization of the family residence, KPMG 401(k) account, and the Battle Ground Apartments, and argues that this mischaracterization necessarily resulted in an incorrect distribution of his assets.

All separate and community property is available for the trial court to distribute amongst the parties at dissolution. The trial court is not required to divide community property equally or award separate property to its owner. RCW 26.09.080 requires only that the court's property dispositions appear just and equitable after considering all relevant factors.⁵ In re Marriage of White, 105 Wn. App. 545, 549, 20 P.3d 481 (2001).

We review a trial court's property division decisions for manifest abuse of discretion. See In re Marriage of Konzen, 103 Wn.2d 470, 478, 693 P.2d 97, cert. denied, 473 U.S. 906 (1985). But classification of property as separate or community is a question of law which we review de novo. Chumbley, 150 Wn.2d at 5.

When property is mischaracterized, we will remand `where (1) the trial court's reasoning indicates that its division was significantly influenced by its characterization of the property, and (2) it is not clear that had the court properly characterized the property, it would have divided it in the same way.' See In re Marriage of Shannon, 55 Wn. App. 137, 142, 777 P.2d 8 (1989) (remand appropriate when the court explicitly states characterization was important factor in its division of property). Our review of the record here convinces us that the trial court divided the property irrespective of its characterization as separate or community. This, it was entitled to do. Konzen, 103 Wn.2d at 478 (property characterization does not control distribution decisions; the court is required to make a fair, just, and equitable division of the assets under the circumstances). The court explained that it was dividing the property in the way it did based on the `totality of the circumstances' and assessing the equities of the situation. Because the property characterization did not significantly affect the court's decision, we need not address the propriety of the court's characterization of the assets further.⁶

The trial court distributed three assets: the family residence, KPMG 401(k) account, and the Battle Ground Apartments. Arlen owned all three assets before he married Michell. During the marriage, however, the parties took out a $130,000 loan. The parties quit claimed a deed for the family residence into both parties' names to obtain the loan. From this loan, $60,000 was used to refinance and pay off a debt to TQ Construction on the family residence; $3,500 was used to pay off a private contract on the Battle Ground Apartments; and $6,000 to pay off a loan on the KPMG 401(k) account.

The trial court divided these assets as follows: KPMG 401(k) to Michell, residence and Battle Ground Apartments to Arlen. Michell also received $90,482 to compensate her for her community interest in the real property awarded to Arlen.

In so doing, the trial court awarded 48 percent of the property to Arlen and 52 percent to Michell.⁷ Whatever the character of the property, the trial court did not abuse its discretion in making this award. Child Support and Maintenance

Income

Arlen asserts that the trial court erred in finding his monthly income was $3,400⁸ and this error requires reversal of the trial court's child support and maintenance awards. We disagree.

A trial court's finding of fact will be upheld if it is supported by substantial evidence, `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.' In re Marriage of Boisen, 87 Wn. App. 912, 918, 943 P.2d 682 (1997), review denied, 134 Wn.2d 1014 (1998); Mansour, 126 Wn. App. at 12-14.

Here, substantial evidence supports the court's finding that Arlen earns $6,200 gross and $3,400 net per month.⁹ Documentary evidence showed that Arlen's company, Capta, earned $4,500 per month gross in 2003. And Arlen did not dispute that he earned an additional $1,700 a month from his work at Miatech. In addition, Anderson, a CPA, testified that a proper calculation of Arlen's true income should not be limited to the $1,700 Arlen chose to draw from Capta, but must include Capta's gross revenues to which Arlen had unfettered access.

In calculating Arlen's available income, the trial court found Arlen's assertions regarding his income unbelievable¹⁰ and relied instead on Anderson's expert opinion on this point. We do not second guess a trial court's credibility determinations. See, e.g., State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990); Mansour, 126 Wn. App. at 13.

The trial court also adjusted Arlen's income downward by deducting approximately 20 percent from his gross income for taxes, as well as the amount of the maintenance award. The court presumed that Arlen was earning $6,200 and was in the 20 percent tax bracket. This was a reasonable inference for the court to make. See Mason v. Mortgage America, Inc., 114 Wn.2d 842, 853, 792 P.2d 142 (1990).¹¹

Child Support

While Arlen is correct that a court setting child support is required to determine the gross and net monthly income of both parents, and that RCW 26.19.071(5)(h) specifically requires that `normal business expenses' `shall be disclosed and deducted from gross monthly income to determine net monthly income,' a party asserting business expenses has the burden to prove them. In re Marriage of Gainey, 89 Wn. App. 269, 274-75, 948 P.2d 865 (1997). And it is not error...