Marriage of Barnett, In re, 10909-7-III

• Decision Date: 14 November 1991
• Docket Number: No. 10909-7-III,10909-7-III
• Citation: 63 Wn.App. 385,818 P.2d 1382
• Parties: In re the MARRIAGE OF Elizabeth K. BARNETT, Respondent, and Stanchole E. Barnett, Appellant.
• Court: Washington Court of Appeals

Page 385

63 Wn.App. 385

818 P.2d 1382

In re the MARRIAGE OF Elizabeth K. BARNETT, Respondent and Stanchole E. Barnett, Appellant.

No. 10909-7-III.

Court of Appeals of Washington Division 3, Panel Four.

Nov. 14, 1991.

Kenneth D. Beckley, Frederick & Beckley, Ellensburg, for appellant.

Richard T. Cole, Cone, Gilreath, Ellis, Cole & Korte, Ellensburg, for respondent.

WALTER A. STAUFFACHER, Judge Pro Tem. ^*

After a 44-year marriage, Elizabeth K. Barnett, age 81, and Stanchole E. Barnett, age 76, were granted a decree of dissolution. Mr. Barnett appeals, contending the court abused its discretion in allowing interest on a lien in favor of Mrs. Barnett and in awarding maintenance. We modify the judgment and affirm.

The Barnetts' major asset is their salvage business, Capitol Avenue Repair. Mr. Barnett, who is in reasonably good health, still maintains an active interest in that salvage business, which consists of real property and scrap metal valued by the parties at $200,000. He continues to haul scrap metal to the Coast for sale at an average price of $2,000 per load. Mrs. Barnett is confined to a wheelchair. She suffers from diabetes, high blood pressure, and cataracts. When the decree of dissolution was filed, her monthly income totaled $833: $188 from social security, $25 rental income from a house, $200 rental income from A & A Auto Repair, and $420 from an assignment of Mr. Barnett's social security check. Her monthly expenses were $860.

Under the decree of dissolution, Mrs. Barnett was awarded a $100,000 lien against Capitol Avenue Repair to be secured by a note and deed of trust. ¹ Mr. Barnett was to make all reasonable efforts to sell the business. In the event the sale did not occur within 1 year of the decree of dissolution, the lien was to earn interest at 10 percent per annum. No schedule of interest payment times was stated. Applying the statutory standards of RCW 26.09.090, the court awarded Mrs. Barnett maintenance of $500 per month for the remainder of her life. This appeal follows.

First, Mr. Barnett contends the court erred in awarding 10 percent interest on the lien commencing 1 year after the date of the decree of dissolution. He argues there was no payment date for the lien and thus interest could not commence prior to default in payment. We find no error.

In In re Marriage of Young, 44 Wash.App. 533, 535, 723 P.2d 12 (1986), the court held a judgment of a court of record that requires payment of money may be enforced by execution. Interest accrues from the date of entry of a judgment. A decree of dissolution is a judgment and a party may execute on the judgment from the date of its entry. Young, at 535, 723 P.2d 12. When performance of the award is deferred to a future date, execution must also be deferred. Young, at 536, 723 P.2d 12.

The interest specified here is 10 percent; statutory interest under RCW 4.56.110 is not involved. The award itself is a distribution of property to compensate Mrs. Barnett for her interest in Capitol Avenue Repair without forcing Mr. Barnett to sell by a date certain. The 1-year deferral period serves as a financial incentive to encourage Mr. Barnett to sell the property. This award is reviewed only to determine if there has been a manifest abuse of discretion. Here, Mrs. Barnett is of advanced age, in poor health and lacks standing to force a sale of the property. See Byrne v. Ackerlund, 108 Wash.2d 445, 739 P.2d 1138 (1987); Washington State Bar Ass'n, Community Property Desk Book, § 5.40, at 5-31 (2d ed. 1989). The distribution was fair and equitable. In re Marriage of Konzen, 103 Wash.2d 470, 478, 693 P.2d 97, cert. denied, 473 U.S. 906, 105 S.Ct. 3530, 87 L.Ed.2d 654 (1985). The court did not abuse its discretion by making that property income productive with the imposition of interest.

Second, Mr. Barnett contends the court erred in imposing $500 monthly maintenance until Mrs. Barnett's death or remarriage because that award was based on speculation he would be able to produce substantial income from the salvage business. ² He also asserts the award was erroneous in light of the fact Mrs. Barnett's monthly expenses were $860 and her income without maintenance was $833.

An award of maintenance is within the discretion of the court. In re Marriage of Bulicek, 59 Wash.App. 630, 800 P.2d 394 (1990). The amount of maintenance and its duration must be just in light of all the relevant factors. RCW 26.09.090; In re Marriage of Morrow, 53 Wash.App. 579, 585, 770 P.2d 197 (1989). If the assets of the parties are insufficient to permit compensation to be effected entirely through a property division, a supplemental award of maintenance is appropriate. In re Marriage of Washburn, 101 Wash.2d 168, 178, 677 P.2d 152 (1984). When...