Patton v. Patton, 27893-6-II.

• Decision Date: 16 September 2003
• Docket Number: No. 27893-6-II.,27893-6-II.
• Parties: In re the Marriage of: DERRICK OBRIAN PATTON, Respondent, and ELIZABETH ANN PATTON, Appellant.
• Court: Washington Court of Appeals

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In re the Marriage of: DERRICK OBRIAN PATTON, Respondent, and

ELIZABETH ANN PATTON, Appellant.

No. 27893-6-II.

Court of Appeals of Washington, Division II.

September 16, 2003.

Appeal from Superior Court of Lewis County, Docket No: 00-3-00190-0, Judgment or order under review, Date filed: 08/30/2001.

Philip P. Malone, Attorney at Law, Poulsbo, WA, Counsel for Appellant(s).

Jennifer Bayer Johnson, Attorney at Law, Chehalis, WA, Counsel for Respondent(s).

MORGAN, P.J.

Elizabeth Patton appeals a decree that dissolved her marriage to Derrick Patton. The issues are property division and child support. We affirm, with one exception.

The Pattons were married on October 8, 1977. They separated between January and October 1999. They have two children, Cherrise, born in 1984, and Pat, born in 1982.

On May 9, 2000, Derrick filed a petition for dissolution. On September 8, 2000, the trial court awarded temporary child support for Cherrise but not for Pat, effective October 1, 2000.

On March 14, 2001, based on a three-day trial, the court entered a Decree of Dissolution, Findings of Fact and Conclusions of Law, Order of Child Support, Child Support Worksheet, and Final Parenting Plan. The trial court characterized the following assets as community property: Derrick's military retirement pay, Elizabeth's Costco 401(k), their home, business proceeds, a Dodge Caravan, a Harley Davidson motorcycle, a 1999 IRS tax return, and proceeds from the sale of the 1989 Freightliner truck. The trial court characterized the following debts as community liabilities: the 1999 IRS tax obligation, a VISA bill, debt owed on the Dodge Caravan, a loan from Derrick's father, and the first and second mortgages on the couple's home. The trial court awarded Derrick:

Any and all bank accounts held solely in {his} name. $13,331 cash out from {Elizabeth} to offset the inequity in the property/debt distribution. VA Disability in {Derrick's} name. One-half interest in the family home to be held as tenancy in common with {Elizabeth} until the house is sold after the parties' daughter graduates from high school. One-half of {Elizabeth's} Costco 401(k) plan, valued as of January 9, 1999. Harley Davidson Motorcycle valued at $4,000. The proceeds from the sale of the 1989 Freightliner in the amount of $8,500. One-half of {Elizabeth's} 1999 tax return in the amount of $2,148. 57.5% of {Derrick's} monthly taxable military retirement income, to be calculated as follows: Gross Benefit — VA Disability — Survivor Benefit Plan Costs {=} Taxable Military Retirement Income.{¹}

The trial court awarded Elizabeth:

Any and all bank accounts held solely in {Elizabeth's} name. Proceeds from the trucking business in the amount of $30,800, which {Elizabeth} has already received. One-half interest in the family home to be held as tenancy in common with {Derrick} until the house is sold after the parties' daughter graduates from high school. One-half of {Elizabeth's} Costco 401(k) plan, valued as of January 9, 1999. Dodge Caravan with net equity of $4,500. One-half of {Elizabeth's} 1999 tax return in the amount of $2,148. 42.5% of {Derrick's} monthly taxable military retirement income {calculated as above}.

The trial court awarded each party certain additional items of personal property. It ordered that the parties share the mortgage responsibility; that Derrick pay the $5,000 loan from his father, and 50 percent of the 1999 IRS tax obligation; and that Elizabeth pay the debt (if any) on the Dodge Caravan, the VISA bill, 50 percent of the 1999 IRS tax obligation, and a judgment of $13,331 to Derrick. The court later entered an amended decree and an Order for the Division of Military Retirement Pay.

I.

The first issue is whether the trial court erred by dividing the property as it did. A trial court can and must distribute all the property in which the parties have an interest at trial.² A trial court cannot distribute property in which the parties have no interest at trial,³ although it may consider, as one factor affecting distribution, whether a spouse has wasted or improvidently disposed of property before trial.⁴ The trial court is obligated to make a "just and equitable" distribution,⁵ but not necessarily an equal one.⁶ The distribution must be supported by substantial evidence,⁷ but so long as that requirement is met, the trial court has broad discretion,⁸ which we review only for abuse.⁹ Elizabeth asks us to review (A) the trial court's omission of a conclusion of law, (B) military retirement pay, (C) proceeds from the sale of the truck, (D) the loan from Derrick's father, (E) the Harley Davidson, (F) proceeds from the business, (G) the $13,331 that Elizabeth was ordered to pay Derrick, and (H) whether the distribution was just and equitable overall.

A.

Elizabeth argues that the trial court erroneously failed to enter a conclusion of law that it was dividing the property equally. She seems to assert that the trial court was bound after stating, in its oral ruling, that it wanted to divide the property "as close to equally as possible."¹⁰

As already noted, a court must divide property justly and equitably, but not necessarily equally.¹¹ It is not bound by an oral ruling, and it may alter its view before entering a decree.¹² We conclude that the trial court had discretion to divide the property unequally, and not to enter a contrary conclusion of law.

B.

Elizabeth argues that the trial court erroneously divided Derrick's military and VA disability pensions. Derrick entered the military on August 21, 1974. He and Elizabeth married 37 months later. He retired on March 24, 1995, and he now receives a military pension and a VA disability pension. Dividing Derrick's 247 months of military service into his 209 months of marriage to Elizabeth, the court characterized 85 percent of Derrick's military pension as community property and 15 percent as Derrick's separate property. The court characterized the disability pension as Derrick's separate property and did not count it as part of his military retirement. Distributing the pensions in accordance with these characterizations, the court awarded Elizabeth 42.5 percent of the military pension, Derrick 57.5 percent of the military pension, and Derrick the VA disability pension.

Elizabeth asserts that the trial court abused its discretion by awarding her 42.5 percent, rather than 50 percent, of the military pension. Disagreeing, we hold that the trial court had discretion to award her 50 percent of the community share; Derrick 50 percent of the community share; and Derrick his separate property share.

Elizabeth may also be contending that the trial court erred by not awarding half of Derrick's disability pension to her. She seems to urge that Derrick was receiving the disability pension because he had waived an equivalent amount of his military pension; that she was entitled to half of what he had waived; and that the trial court was required to award her half by adding it to her share of the military pension. Even if her proposal were possible under state law in the absence of federal law,¹³ it clearly is not possible under the United States Supreme Court's decision in Mansell v. Mansell.¹⁴ We conclude that the trial court did not abuse its discretion when it distributed the military and VA disability pensions.

C.

Elizabeth argues that the trial court erred in valuing the parties' truck. In 1998, the parties purchased a used 1989 Freightliner for $17,000. In the petition for dissolution that Derrick filed on May 9, 2000, he listed the truck's value as $17,000. According to a bill of sale, however, he sold the truck to Jarvis Truck Sales on April 27, 2000, for $8,500. According to his trial testimony, although he believed the truck was worth $9,000 or $10,000, $8,500 was "all {he} could get for it."¹⁵ He had no previous relationship with Jarvis Truck Sales, and he had tried to sell the truck over a period of three months. The court valued the truck at $8,500 and awarded the proceeds of the sale to Derrick.

Elizabeth now asserts that the truck's value was $17,000, and that she was entitled to half that amount. The record contains substantial evidence that the truck's fair market value was $8,500 on the date it was sold. The trial court was not required to award Elizabeth half of the truck, as long as it gave her a just and equitable portion of the entire marital estate.¹⁶ The trial court did not abuse its discretion.

D.

Elizabeth complains that the trial court erred with respect to the loan from Derrick's father. The parties borrowed $10,000 from Derrick's father to start a trucking business. According to Derrick's oral testimony, $5,000 was repaid before trial. According to Elizabeth's oral testimony, $8,000 was repaid before trial. No one produced cancelled checks, receipts, or other documentation. The trial court chose to believe Derrick, found that the remaining debt was $5,000, and allotted it to Derrick. Although Elizabeth now urges that the remaining debt was less than $5,000, we review only for substantial evidence,¹⁷ Derrick's testimony constituted substantial evidence, and there was no error.

E.

Elizabeth argues that the trial court erred with respect to a motorcycle. Finding that the motorcycle was community property, the court valued it at $4,000 and awarded it to Derrick. Elizabeth now urges that because the motorcycle was community property, the court was required to award her half its value. Derrick responds that the value of the motorcycle was "included in the distribution calculations and went in Derrick's column, thereby decreasing the equalizing offset she was ordered to pay."¹⁸ Under RCW 26.09.080, Elizabeth had the right to a just and equitable distribution of the marital estate, not a right to half of any particular asset, and there was no error.

F.

Elizabeth argues that the trial court erred with respect to proceeds from the parties' trucking business. She fails to...