In re Tulleners

• Decision Date: 05 December 2019
• Docket Number: No. 35641-8-III,35641-8-III
• Citation: 11 Wash.App.2d 358,453 P.3d 996
• Court: Washington Court of Appeals
• Parties: In the MATTER OF the MARRIAGE OF Judith K. TULLENERS, Appellant, and Andre J. Tulleners, Respondent.

11 Wash.App.2d 358

453 P.3d 996

In the MATTER OF the MARRIAGE OF Judith K. TULLENERS, Appellant,

and

Andre J. Tulleners, Respondent.

No. 35641-8-III

Court of Appeals of Washington, Division 3.

FILED DECEMBER 5, 2019

David James Crouse, Attorney at Law, 422 W Riverside Ave. Ste. 920, Spokane, WA, 99201-0305, for Appellant.

Craig A. Mason, Mason Law, 1707 W Broadway Ave., Spokane, WA, 99201-1817, for Respondent.

PUBLISHED OPINION

Siddoway, J. ¶1 Judith Tulleners appeals the trial court’s division of property in the decree dissolving her marriage to Andre Tulleners. After her appeal was filed, Andre Tulleners died, and his estate, which was substituted as respondent, has moved the court to find the action abated and dismiss the appeal.

¶2 We hold that because Judith is challenging only property provisions of a final decree, abatement does not apply. On the merits, we conclude that the trial court’s findings in support of two adjustments to the property division are inadequate for appellate review. We reverse the trial court’s total dollar awards of community property and remand for the entry of additional findings.

FACTS AND PROCEDURAL BACKGROUND

¶3 Judith Tulleners and Andre Tulleners were married for 18½ years, in what was a second marriage for both. When Judith filed for divorce in May 2016, she and Andre were both in their early 70s and retired. Both were living on social security and retirement assets.

¶4 At the divorce trial, Judith was able to provide a calculation from the administrator of her public employment retirement plan for the percentage of her pension payment that was community versus separate property. The administrator determined it was 67.6 percent separate property and 32.4 percent community property. Her retirement plan included a small defined contribution component, worth $11,872, to which she contributed before and during the marriage. The court characterized it as commingled and, therefore, community property.

¶5 Andre had worked for 32 years for Williams Companies, which provided a pension benefit and later a 401(k) plan. Contributions were made to both during the 8½ years of his marriage preceding his retirement in 2006. He cashed out his pension benefit upon retirement. At the time of the divorce trial, he held what remained of that lump sum payment and his 401(k) in two individual retirement accounts (IRAs) and an annuity. At the time of the parties’ separation, the combined value of those assets was $767,924.

¶6 Andre offered virtually no evidence of the contributions made toward his retirement benefits during the 8½ employed years of the marriage. He offered evidence that at the time the dissolution of his first marriage became final—which was six months before his marriage to Judith—his 401(k) account was worth $375,000, half of which ($187,500) was awarded to him in that earlier divorce. He offered evidence that when he retired in 2006, the value of the account was $357,017.

¶7 It was Judith’s position that much of the $357,017 value at retirement was community property. She testified that when Williams Companies’ stock crashed in the early 2000s, her husband told her that the value of his 401(k) had declined to $40,000. She claims that he asked, and she agreed, that they would rely primarily on her income to pay expenses so that he could maximize contributions to rebuild his 401(k). Although Mr. Tulleners denied at trial that he ever told Judith his 401(k) account had declined in value to $40,000, he acknowledged that it did decline because of problems with its investment in Williams Communications stock. He also agreed that he told Judith he wanted to maximize his contributions to the account, and that he did maximize his contributions to the 401(k) account during the marriage.

¶8 Mr. Tulleners provided evidence that when he retired in May 2006, the lump sum he received in lieu of a pension benefit was $514,106. He rolled that amount into one of two IRAs, later moving assets back and forth between the IRAs. In 2013, he used $300,000 of the IRA funds to purchase an annuity.

¶9 The trial court’s decision explaining its division of assets stated that Mr. Tulleners offered "no evidence ... as to the structure of [the] pension, such as the amounts or timing of the contributions by Mr. Tulleners’ employer." Clerk’s Papers at 87. Mr. Tulleners also offered "no documentation as to how and when contributions were made to [the 401(k) ] account between May 1997 and May 2006 when he took the funds upon retirement." Id. at 87-88. Because there was no tracing done by Mr. Tulleners, the trial court characterized his IRAs and annuity as entirely community property.

¶10 The court placed the following values on the parties’ community and separate property:

Community property: $1,019,914, plus a 32.4 percent interest in Judith’s pension payments. ($767,924 in value of the community property comprised investment assets acquired with Andre’s part separate-part community pension payout and 401(k) account)

Judith’s separate property: $251,730 plus her 67.6 percent separate property interest in her pension payments

Andre’s separate property: $20,000

¶11 Judith’s separate property consisted of assets inherited from her mother that she had maintained as separate. The nature of Andre’s separate property is not clear, but the characterization and values of these separate properties is not challenged on appeal.

¶12 Had the trial court divided the community property equally, each party would have received approximately $510,000. Had it combined all of the separate and community property for which it had values and divided the total equally, each party would have received $645,822. Instead, in a memorandum opinion, the court awarded the assets in the following manner:

                             Community property                   Separate property
                  Andre      $718,172 plus a QDRO1           $20,000
                             addressing the community
                             interest in Judith's pension
                             payments
                  Judith     $301,742, plus a QDRO                $251,730 plus the 67.6
                             addressing the community             percent separate property
                             property interest in her pension     interest in her pension
                             payments                             payments
                

[Editor’s Note: The preceding image contains the reference for footnote¹ ]

See Report of Proceedings (RP)² at 293. ¶13 Judith challenged the significant disparity in her and Andre’s community property awards. The trial court addressed her objection at the presentment hearing on the final papers. It pointed out that the total community and separate property awarded to Judith was $553,472, approximately $184,500 less than the $738,172 total of community and separate property it awarded to Andre, and then explained:

[Judith’s public employment pension] wasn’t valued. And I appreciate that when we split something exactly in half on a pension, it doesn’t really matter what we value. In this case it had to matter to me, if you will, because [Judith] was receiving ... roughly 68 percent of that pension as a separate property asset. And so there is a value to that. And then she received half the community. And there is a value to that. So ultimately she received 82, 83 percent.

....

Secondly, although I characterized [Andre’s] pension, which is a two-part item, the pension and his 401k that he had, or the defined benefit and defined contributions portion of his pension as community, because [Andre] failed to trace appropriately, and I thus divided it.

I did have in mind that the evidence in my mind was clear that [Andre] walked away from his prior marriage with $187,000 sitting in what I’ll call the 401k side of his pension.

And you’ll notice again the difference here is about 185 between the two estates.

So essentially I took that into consideration that he couldn’t tell me if there was any interest earned on it, he couldn’t trace it back. The accumulations after that, who knows. But I considered the fact that he had walked into the marriage with—setting aside the defined benefit side because we didn’t have tracing documents sufficient on that—setting aside that, this to me it was clear he walked into the marriage with a significant asset, and I gave him some credit for that. Obviously I’m not doing a dollar for dollar or that’s not the point, but I gave him some credit for total equity.

RP at 295-97.

¶14 The final papers were entered in late September 2017. Judith timely appealed.

¶15 Following commencement of the appeal, Judith learned that Andre had been diagnosed with late stage amyotrophic lateral sclerosis

(ALS). No evidence had been presented at trial that Andre had health issues. Judith moved to vacate the decree. The trial court denied the motion.

¶16 Andre died after the appeal was fully briefed, and Patrick Tulleners, his son from his first marriage, was appointed personal representative and substituted as the respondent. He filed a motion asking this court to determine whether abatement applies since no third party interests were involved in the dissolution, relying on In re Marriage of Fiorito , 112 Wash. App. 657, 660-63, 50 P.3d 298 (2002). We requested supplemental briefing on the issue of abatement. Decision on the motion was referred to the panel.

ANALYSIS

I. ABATEMENT DOES NOT APPLY

¶17 Relying on Fiorito , the parties assume that if we find abatement to apply as a result of Andre’s death, appellate review is foreclosed and the trial court’s findings, conclusions, and decree will be the final word. They assume that abatement will apply unless we find either equitable grounds for review or that third party interests were resolved in the action below. Both assumptions misunderstand In re Marriage of Himes , 136 Wash.2d 707, 721, 965 P.2d 1087 (1998), and the earlier case law that it overruled.

¶18 Confusion arises because the decisions on which the parties rely come up in two different contexts. Most of the cases involve a motion or independent action to vacate a...