Marriage of Harshman, In re
| Citation | 18 Wn.App. 116,567 P.2d 667 |
| Decision Date | 18 July 1977 |
| Docket Number | No. 3884-I,3884-I |
| Parties | In re the MARRIAGE OF Heidi HARSHMAN, Respondent, and Willis Harshman, Appellant. |
| Court | Washington Court of Appeals |
Inslee, Best, Chapin & Doezie, P.S., Evan E. Inslee, Bellevue, for appellant.
John M. Meyer, Warren Gilbert, Jr., Mount Vernon, for respondent.
Willis Harshman appeals and Heidi Harshman cross-appeals from a decree of dissolution.
The husband raises the following issues: (1) Can a motion for reconsideration pursuant to CR 59 be made more than 5 days after the oral decision? (2) What was the community interest or right of reimbursement in a 29-acre tract of real property purchased by the husband prior to marriage? (3) Did the trial court abuse its discretion in (a) awarding maintenance pending appeal, (b) not providing that the payment of maintenance be offset against the property awarded the wife, (c) failing to terminate the maintenance pending appeal upon the wife's remarriage, and (d) awarding the wife $450 attorney's fees. The wife raises the following issues in her cross-appeal: (1) Was the property distribution just and equitable? (2) Did the trial court err in only awarding support in the amount of $200 per month for each of three children? (3) Did the trial court err in terminating maintenance pending appeal?
The first issue raised in the husband's appeal is whether a motion for reconsideration served more than 5 days after the court's oral decision is timely. CR 59(b) provides:
(b) Time for Motion. A motion for reconsideration . . . may be served and filed after the verdict is received in a case tried by a jury or after the oral or written decision in a case tried to the court. No motion for reconsideration . . . may be served more than 5 days after the entry of the verdict or oral or written decision.
(Italics ours.) Under CR 6(b), the time for serving a motion made pursuant to CR 59(b) may not be extended. The husband contends that, under CR 59(b) and CR 6(b), a motion for reconsideration cannot be made more than 5 days after the court's oral decision. We disagree.
In 4 L. Orland, Wash.Prac. 383 (1968), the author states that CR 59 is
of statutory origin. The last statutory version appeared as RCWA 4.76.020, the language of which was adopted verbatim in the promulgation of Rule 16, General Rules of the Superior Courts, 34A Wash.2d 117, except that there was added thereto the ninth ground relating to substantial justice, and the last two paragraphs of the rule.
Prior to the promulgation of CR 59(b), RCW 4.76.060 provided that:
The party moving for a new trial must, within . . . two days after notice in writing of the decision of the court or referee, if the action was tried without a jury, file with the clerk, and serve upon the adverse party, his motion for a new trial, designating the grounds upon which it will be made.
(Italics ours.) Canzler v. Mammoliti, 40 Wash.2d 631, 632, 245 P.2d 215, 216 (1952), discusses the attempt to clarify RCW 4.76.060 by the adoption of Rule of Superior Court 16, quoting it as follows:
"The time within which a motion for a new trial shall be served and filed in a cause tried by the court without a jury shall not begin to run until the findings of fact and conclusions of law therein shall have been signed by the court."
Thus, prior to the adoption of CR 59(b), effective July 1, 1967, a motion for a new trial was timely if filed within 2 days after the findings of fact and conclusions of law were signed by the court. See Clark v. Ellington, 86 Wash. 110, 149 P. 350 (1915).
In adopting CR 59, the time requirement was extended from 2 to 5 days, and it was provided that the motion may not be served more than 5 days after the entry of the "oral or written decision." The language of this rule is in the disjunctive, and, accordingly, a party may serve a motion for reconsideration after the oral decision or after the written decision. Although, in many instances, the trial court will render an oral decision prior to the entry of a written decision, i. e., findings of fact, conclusions of law, or written order, the rule is that
a trial judge's oral decision is no more than a verbal expression of his informal opinion at that time. It is necessarily subject to further study and consideration, and may be altered, modified, or completely abandoned. It has no final or binding effect, unless formally incorporated into the findings, conclusions, and judgment.
Ferree v. Doric. Co., 62 Wash.2d 561, 566-67, 383 P.2d 900, 904 (1963). See State v. Johnson, 12 Wash.App. 40, 527 P.2d 1324 (1974); Thompson v. Thompson, 9 Wash.App. 930, 934, 515 P.2d 1004 (1973). The 5-day time requirement stated in CR 59(b) is intended to set the maximum time within which a motion for reconsideration and/or a new trial must be made. Cf. Fed.R.Civ.P. 59(b); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2812 (1973). A party may serve a motion for reconsideration at any time following an oral decision so long as the motion is not made more than 5 days after the entry of the written decision. Any other interpretation of CR 59(b) would conflict with the policy of permitting the trial court to change its oral decision prior to the written decision.
This interpretation of CR 59(b) is consistent with Seidler v. Hansen, 14 Wash.App. 915, 547 P.2d 917 (1976), where a motion for reconsideration was filed and heard 2 years after the court's oral decision. In Seidler the plaintiff assigned as error the trial court's reopening of the case to consider additional evidence. It was stated in Seidler v. Hansen, supra at 917-18, 547 P.2d at 919, that "a trial court's oral decision has no binding or final effect unless it is formally incorporated into findings of fact, conclusions of law, and judgment", and that "it was proper for the trial judge and within his discretion to reopen the case". Seidler is, however, inconsistent with In re Cole, 15 Wash.App. 460, 550 P.2d 23 (1976), which appears to state that a motion for a new trial served 16 days after the court's oral decision of permanent deprivation was not timely. 1 We adopt the reasoning of Seidler v. Hansen, supra, and hold that in a case tried to the court (a) a motion for reconsideration and/or a new trial brought pursuant to CR 59(b) is timely unless it is served and filed more than 5 days after the written decision, and (b) in those instances where written findings of fact and conclusions of law are required to be entered by CR 52, the losing party may serve and file a motion for reconsideration of the oral decision at any time until 5 days has passed following the entry of the written findings and conclusions.
Here, the trial court made its oral decision on February 20, 1975. The wife filed and served a motion for reconsideration on March 27, 1975, which was prior to the written decision. Since the motion was not made more than 5 days after the written decision, it was timely.
The next issue raised in the husband's appeal concerns the community's interest or right of reimbursement in a 29-acre parcel of farmland known as the Nevins property. This property was purchased by the husband in 1965, 4 years prior to the parties' marriage, and was used in the husband's farming business. The purchase price was $32,000. The husband paid $2,500 down, assumed an $11,000 mortgage, and entered into a real estate contract for the balance of $18,500. During the marriage, approximately $13,000 was paid on the principal and interest on the mortgage and real estate contract. At the time of dissolution, the Nevins property had a market value of $55,000, with a balance owing of $10,600.
The trial court found that the husband's separate property interest in the Nevins property was valued at $17,425. In another finding of fact, the court stated concerning the community interest:
The parties accumulated considerable community property as follows:
1. TWENTY-NINE ACRE NEVINS TRACT
Value: $55,000.00
Less Mortgage 10,600.00
$44,600.00 (sic)
Community Interest 13000/21,400 = $26,975.00
These findings indicate that the trial court determined the community's interest in the Nevins property by the ratio of the community funds expended on the property during marriage ($13,000) to the total expenditure on the property since its purchase ($21,400). The husband's separate interest was similarly calculated by the ratio of the separate funds expended prior to marriage ($8,400) to the total expended on the property since its purchase ($21,400). The net value of the property $44,600 (sic ) was multiplied by these ratios in determining the community interest of $26,975, and the separate interest of $17,425.
The husband contends that the trial court improperly used the ratio of the community investment to the total investment in determining the community interest in the Nevins property. We agree.
The rule is that the character of property, as community or separate, is determined as of the date of acquisition. Baker v. Baker, 80 Wash.2d 736, 498 P.2d 315 (1972); In re Estate of Madsen, 48 Wash.2d 675, 296 P.2d 518 (1956); In re Estate of Binge, 5 Wash.2d 446, 105 P.2d 689 (1940); Pollock v. Pollock, 7 Wash.App. 394, 499 P.2d 231 (1972); Cross, The Community Property Law in Washington, 49 Wash.L.Rev 729, 755 (1974). Since the husband purchased the Nevins property in 1965, 4 years prior to his marriage, it was his separate property.
Although the Nevins property must be characterized as the husband's separate property, the community has a right of reimbursement protected by an equitable lien against the property to the extent that community funds were used to discharge the principal on the mortgage:
In a mortgage financing situation, where the buyer acquires title at the outset in exchange for a cash payment and...
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