Koher v. Morgan, 42660-5-I

• Decision Date: 21 December 1998
• Docket Number: No. 42660-5-I,42660-5-I
• Citation: 968 P.2d 920,93 Wn.App. 398
• Court: Washington Court of Appeals
• Parties: Dennis M. KOHER, Appellant, v. Mary L. MORGAN, Respondent.

Page 920

93 Wn.App. 398

968 P.2d 920

Dennis M. KOHER, Appellant, v. Mary L. MORGAN, Respondent.

No. 42660-5-I.

Court of Appeals of Washington,

Division 1.

Dec. 21, 1998.

Charles Wilhelm Sandell, Douglass Alan North, Seattle, for Appellant.

Mark David Olson, Seattle, for Respondent.

COLEMAN, J.

Dennis Koher appeals the division of property acquired during his meretricious relationship with Mary Morgan, contending that the trial court erred in applying the commingling rule to profits from his separate business. Koher argues that Morgan does not have an ownership interest in the property he acquired during their relationship or in its increased value after their separation. We find that the trial court correctly applied

a community property like presumption to the couple's property and did not abuse its discretion in subjecting the property, including its increase in value after separation, to a just and equitable distribution. We affirm.

FACTS

The parties stipulated before trial that they lived together in a meretricious relationship from January 1988 to May 1995. Koher entered the relationship owning the Sea Island Sand & Gravel and San Juan Concrete Pumping companies, and Morgan was self-employed as a real estate broker. During the relationship, Koher ran Sea Island and San Juan Concrete as one business. Koher testified that he paid himself a salary for working at his companies and deposited both his wages and the profits from his businesses into his personal checking account. The court found that Koher paid himself an average of $44,440 per year during the relationship, a total of $355,516. Koher gave Morgan from $5,500 to $14,471 each year for their living expenses, approximately $80,000 over the course of their relationship. With the remainder of his salary and the companies' profits, Koher rebuilt his businesses and invested in island properties and retirement accounts.

The trial court determined that many of the assets acquired during the relationship would have been characterized as community property if the couple had been married and thus should be subject to a just and equitable distribution. The court found that Koher had drawn an artificially low salary during the relationship and had undercompensated Morgan for relationship expenses. Because Koher had commingled his earned income with the profits from his businesses and had used the commingled funds to acquire property during the relationship, the court concluded that Koher could not establish his separate property interest in his accounts and real property investments. The court awarded most of the couple's property to Koher and offset the award with a money judgment for Morgan. To calculate the value of the parties' awards, the court used the value of the assets at trial.

DISCUSSION

We review the distribution of property at the end of a meretricious relationship for abuse of discretion. In re the Meretricious Relationship of Sutton, 85 Wash.App. 487, 491, 933 P.2d 1069, review denied, 133 Wash.2d 1006, 943 P.2d 664 (1997), citing In re Marriage of Konzen, 103 Wash.2d 470, 478, 693 P.2d 97 (1985).

The parties have stipulated that they lived together in a meretricious relationship, the term used by our courts to describe a stable, marriage-like relationship where the parties cohabit knowing that they are not legally married. Connell v. Francisco, 127 Wash.2d 339, 346, 898 P.2d 831 (1995) (citing In re Marriage of Lindsey, 101 Wash.2d 299, 304, 678 P.2d 328 (1984)). In Connell, the court concluded that although a meretricious relationship does not create a marital community, the property a couple has earned through their efforts may be subject to a just and equitable distribution to prevent one party from being unjustly enriched at the end of the relationship. ¹ Connell, 127 Wash.2d at 349, 898 P.2d 831. The court thus held that "income and property acquired during a meretricious relationship should be characterized in a similar manner as income and property acquired during marriage." Connell, 127 Wash.2d at 351, 898 P.2d 831.

Under Connell, Koher's earnings during his relationship with Morgan are analogous to the earnings of a spouse during marriage, which are traditionally characterized as community property. See Harry M. Cross, The Community Property Law in Washington, 61 Wash. L.Rev. 13, 30 & n. 84 (1986). We have recently held that under Connell, a party's labor is an asset of the meretricious relationship and any earnings during the relationship similarly belong to the marriage-like community. In re Marriage of Lindemann, 92 Wash.App. 64, 960 P.2d 966, 971 (1998). Here, the trial court determined that the relationship had not received adequate compensation for Koher's work because Koher had taken an artificially low salary. Koher testified that he had worked hard during the relationship to rebuild his businesses and that they were profitable because he was able to buy cheaper, older equipment which he repaired himself or trained others to repair. The trial court determined that given the profits generated by the businesses over the course of the relationship, Koher had undercompensated himself by approximately $196,700.

Out of the $355,516 Koher drew as wages during the relationship, Koher gave approximately $80,000 to Morgan for relationship expenses. With the remainder of his salary and profits, Koher acquired property and equipment and funded other investments. Under Connell, courts apply a community property-like presumption to property acquired during a meretricious relationship regardless of how title was taken. Connell, 127 Wash.2d at 351, 898 P.2d 831. A party asserting his separate interest may rebut the presumption with evidence that the assets were acquired with funds that would have been characterized as his separate property if he had been married. See Connell, 127 Wash.2d at 352, 898 P.2d 831. Although Koher had used both his salary and separate business profits to acquire these assets, he could not identify the type of funds used for each acquisition. Because Koher had not taken a reasonable salary during the relationship, the court found that he had commingled his profits with the income owned by the meretricious relationship as compensation for his labor and had continuously intermixed large sums of separate and relationship income in his personal and business accounts.

Koher argues that the court improperly applied the commingling rule to his accumulated income and profits, contending that the court should have found only a right to reimbursement for the earnings he had foregone. Under Lindsey and Connell, the court has a duty to make a just and equitable distribution of all property considered to be owned by both parties in a meretricious relationship. Connell, 127 Wash.2d at 351, 898 P.2d 831, citing Lindsey, 101 Wash.2d at 307, 678 P.2d 328. Koher had indiscriminately used relationship funds for his investments and was unable to trace any portion of the disputed assets to his separate profits. In these circumstances, we find that it was not an abuse of the trial court's discretion to conclude that it was more appropriate and fair to...