Urbana v. Urbana

• Citation: 195 P.3d 959,147 Wn. App. 1
• Decision Date: 22 July 2008
• Docket Number: No. 36260-1-II.,36260-1-II.
• Court: Court of Appeals of Washington
• Parties: In the Matter of the Marriage of Elizabeth A. URBANA, Respondent, v. Robert M. URBANA, Appellant.

195 P.3d 959

147 Wn. App. 1

In the Matter of the Marriage of Elizabeth A. URBANA, Respondent, v. Robert M. URBANA, Appellant.

No. 36260-1-II.

Court of Appeals of Washington, Division 2.

July 22, 2008.

Publication Ordered October 28, 2008.

Mark Evan Didrickson, Attorney at Law, Vancouver, WA, for Appellant.

Elizabeth Urbana, Battleground, WA, (Appearing Pro Se).

Juliet Carolyn Laycoe, Laycoe & Bogdon PC, Vancouver, WA, for Respondent.

VAN DEREN, C.J.

¶ 1 Robert Urbana appeals the trial court's division of the marital property in his dissolution from Elizabeth,¹ arguing that it erred when it awarded Elizabeth a disproportionate share because it prospectively awarded child support for their child, A.R.U., it considered his marital misconduct, and it required him to support his stepchildren. Holding that the trial court abused its discretion, we vacate and remand to the trial court for further proceedings consistent with this opinion.

FACTS

I. Marriage and Separation

¶ 2 Robert and Elizabeth were married on January 27, 1996. Elizabeth had two daughters from a prior marriage and Robert and Elizabeth had a son, A.R.U., born on May 21, 1996. Robert and Elizabeth separated in June 2005 because Robert allegedly assaulted his eldest stepdaughter. Soon thereafter, both stepdaughters alleged that Robert had sexually molested them. Robert was subsequently convicted of three counts of second degree child molestation and one count of third degree child molestation. And the trial court sentenced Robert to 100 months' incarceration.² The earliest date that Robert may be released from incarceration is December 20, 2011, when A.R.U. will be 15 years old.

II. Temporary Parenting Plan

¶ 3 When the parties separated, the trial court's temporary parenting plan required Robert to pay $254.00 per month as child support. At the time of the dissolution proceeding, he had paid only $27.00 and was $4,291.00 in arrears. Under the temporary parenting plan, Robert had residential time with A.R.U., but he failed to transfer A.R.U. properly back to Elizabeth and threatened Elizabeth in A.R.U.'s presence. Later the court terminated his contact with A.R.U.

III. The Family Home

¶ 4 When the couple married, they lived in Elizabeth's home in Portland until 1997, when they moved to Battle Ground, Washington. Before they moved, Robert performed some manual labor on Elizabeth's Portland home. Elizabeth netted $22,906.00 from the Portland home. The couple used those proceeds to pay community debts and to put $15,131.00 down on the Battle Ground home. Robert signed a quitclaim deed to Elizabeth when they purchased the Battle Ground home.³ Later, Elizabeth opened a $15,000.00 home equity line of credit on the Battle Ground home that the couple used to pay off bills and for vehicle repairs. When Robert and Elizabeth separated, Elizabeth still owed $10,509.00 on the home equity line of credit and $107,880.00 on the original home loan.

IV. Elizabeth's Employment History

¶ 5 Elizabeth is employed by the City of Portland and earns a pension. In June 2001, Elizabeth quit her job and cashed out her entire pension, netting $53,458.00 after penalties and taxes, because the Battle Ground home was in foreclosure.⁴ She used approximately $4,000.00 to resolve the foreclosure. The family also took a vacation to Disneyland and, when Elizabeth's pension money ran out, she returned to work for the City of Portland where she has remained continuously employed.⁵ Shortly after the parties separated, Elizabeth's pension plan was valued at $5,453.00.

V. Robert's Employment History

¶ 6 During the marriage, Robert worked sporadically as a painter. Prior to the couple's marriage, when Robert was in his early twenties, he had a driving accident and his fifth and sixth neck vertebrae were compressed. As a result, he has degenerative arthritis. During the marriage, Robert had surgery for a double hernia⁶ and, after the surgery, his income dropped dramatically.

¶ 7 At the time of the dissolution proceeding, Robert was working while incarcerated and making $0.34 per hour for a maximum seven-hour day.⁷ Statutorily, the Department of Corrections will allocate 15 percent of Robert's pay toward his child support obligation. RCW 72.09.111.⁸

VI. Other Financial Obligations

¶ 8 When the couple separated, they owed $500.00 on a credit card and $500.00 for vehicle repairs, $400.00 of which Elizabeth had paid off by the time of trial. Elizabeth also testified that Robert had written five checks that were returned for insufficient funds and that they owed $800.00 for mobile phone charges.

VII. Trial Court's Decision

¶ 9 The trial court ruled that the Battle Ground home was 87.9 percent community property and 12.1 percent Elizabeth's separate property. It found the fair market value of the home was $220,000.00. It subtracted the underlying mortgage of $108,000.00, leaving a net home value of $112,000.00. After applying the 87.9 percentage, it concluded that the value of the community portion was $98,448.00.

¶ 10 In reaching its decision on the property division, the trial court noted that Robert is currently incarcerated and had a record of sporadic employment during the marriage; whereas Elizabeth was steadily employed. It also stated that, while Elizabeth receives some child support for her daughters from her prior relationship, she will receive no support from Robert for A.R.U. The trial court also stated that it considered that, at or after the time of separation, Elizabeth discovered that Robert had been sexually abusing both of her daughters. The trial court concluded, "no child support order can be entered because [Robert] is unemployed. However, that factor does not have to be overlooked in the disposition of property in a divorce case such as this." Report of Proceedings (RP) at 114. It then awarded Elizabeth the Battle Ground home because she will be supporting herself and three children. In addition, it concluded that a fair and equitable division of the property, based on the parties' circumstances, was 20 percent of the community property to Robert and 80 percent to Elizabeth.

¶ 11 To determine the value and division of the community property, the trial court added the community home equity, $98,448.00, and Elizabeth's pension, $5,453.00, for a net community property value of $103,901. It then multiplied that net value by 20 percent, concluding that Robert was entitled to $20,780.00. Then, the trial court subtracted Robert's child support arrearages of $4,291.00, one-half of Elizabeth's pension used to prevent foreclosure in 2001, $2,000.00, and one-half of the community debt at time of separation, $500.00. The trial court concluded that this left Robert with net community property of $13,989.00. At that point, Elizabeth raised the issue of the home equity line of credit. The trial court then reduced Robert's share by one-half of the outstanding balance on the home equity line of credit, leaving him $9,790.00, but asked counsel to check its calculations before entering the final order. In its final decree, the trial court awarded Robert $9,790.00. The trial court also found that "no child support obligation will be required" because Robert was incarcerated. But it ordered that if Robert "is released from prison prior to [A.R.U.] reaching age of majority, [Elizabeth] may petition the court to establish child support." Clerk's Papers (CP) at 81.

¶ 12 Robert unsuccessfully moved for reconsideration. In denying his motion, the trial court emphasized that in distributing the marital property, "[i]n terms of what is just, equitable and fair, the court may consider all circumstances of the marriage, both past and present, and an evaluation of the future needs of the parties." And it concluded that "[i]n making a distribution of property, the court should consider the responsibilities of raising the parties['] minor child and child custody [and the] post-dissolution circumstances of the wife, including her financial obligations to children born from another marriage." CP at 99-100.

¶ 13 Robert appeals.⁹

ANALYSIS

¶ 14 Robert argues that the trial court erred in awarding a disproportionate share of the community property to Elizabeth because it must have included prospective child support for A.R.U. and it failed to base any such calculation on the statutory child support calculation guidelines. He also argues that the trial court may not divide property based on marital misconduct, nor can it consider support for former stepchildren when considering future economic circumstances of the parties.

I. Standard of Review—Disposition of Property

¶ 15 "A property division made during the dissolution of a marriage will be reversed on appeal only if there is a manifest abuse of discretion." In re Marriage of Muhammad, 153 Wash.2d 795, 803, 108 P.3d 779 (2005). A trial court abuses its discretion if its decision is manifestly unreasonable, based on untenable grounds, or based on untenable reasons. Qwest Corp. v. City of Bellevue, 161 Wash.2d 353, 369, 166 P.3d 667 (2007). While the trial court "is not required to divide community property equally," if its dissolution "decree results in a patent disparity in the parties' economic circumstances," we will reverse its decision because the trial court will have committed a manifest abuse of discretion. In re Marriage of Rockwell, 141 Wash.App. 235, 243, 170 P.3d 572 (2007).

II. Dividing Property at Dissolution

¶ 16 Robert notes that the trial court's findings and conclusions rely on case law that cites the former dissolution statute. When making the final just and equitable disposition of the marital property, the former dissolution statute, RCW 26.08.110 (1949), required the trial court to consider: (1) "the respective merits of the parties," (2) "the condition in which they will be left by such divorce or annulment," (3) "the party through whom the property was acquired," and (4) "the burdens imposed upon it for the...