GOWER v. SHINSTROM, 49775-8-I (Wash.App. 2-18-2003)

No. 49775-8-I.The Court of Appeals of Washington, Division One.
Filed: February 18, 2003. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION

Appeal from Superior Court of Skagit County, No. 99-2-01331-2, Hon. John M. Meyer, December 3, 2001, Judgment or order under review.

Counsel for Appellant(s), Gail R. Smith, P.O. Box 1245, Mount Vernon, WA 98273.

Counsel for Respondent(s), Kenneth J. Evans, Attorney At Law, 506 Main, Mount Vernon, WA 98273-3840.

Philip J. Buri, Brett Daugert, 300 N Commercial St, Bellingham, WA 98227-5008.

ELLINGTON, J.

This case involves a 22-year relationship, which the trial court found to be meretricious. David Shinstrom challenges that finding, as well as the court’s property distribution and its award of prejudgment interest. Because the record supports the court’s findings, we affirm the property distribution. Prejudgment interest was not appropriate on this unliquidated claim, however, and we remand for assessment of interest from the date the judgment was entered.

FACTS
Christina Gower and David Shinstrom were a couple for 22 years. They were never married. They lived together in Washington from June 1993 until September 1998, when they permanently separated. Gower filed a petition to dissolve their relationship and distribute the property they had acquired.

The trial court held the relationship was meretricious, and awarded Gower $400,000 as her share of the property accumulated during the time they lived together in Washington, valued at $862,694. The court also awarded prejudgment interest. Shinstrom appeals.[1]

DISCUSSION
Existence of Meretricious Relationship. A meretricious relationship is a stable, marital-like relationship where the parties cohabit knowing they are not married. Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995). Five factors help determine whether the parties had a meretricious relationship: continuous cohabitation, duration of the relationship, purpose of the relationship, pooling of resources and services, and the parties’ intent. Connell, 127 Wn.2d at 346. This list of factors is not exclusive, and no single factor is more important than another. In re Pennington, 142 Wn.2d 592, 602, 605, 14 P.3d 752 (2000). The trial court here entered extensive findings of fact on each of the Connell factors and concluded they weighed in favor of the existence of a meretricious relationship. We review the court’s factual findings for substantial evidence, but examine the court’s legal conclusions de novo. Pennington, 142 Wn.2d at 602-03.

According to the court’s findings, Shinstrom and Gower had been a couple since 1976 and lived together from August 1980 to September 1998, with the exception of a gap between 1987 and 1990. Occasionally, Shinstrom would be out of town or would move to a new location ahead of Gower, but `largely these were the types of things you would expect to see in a stable, long-term relationship where moves were involved.’ Clerk’s Papers at 620. During the three-year period where Gower and Shinstrom did not live together, they often spent the night together. Although Shinstrom provided most of the money and they kept separate accounts, Gower provided many services, including maintaining the residences they lived in, and she used most of the money she earned for their day-to-day living expenses. They pooled their services by working on various properties and homes together.

The parties intended their relationship to be long term, and intended to acquire assets which could be used when they decided to retire. From these findings, the court concluded a meretricious relationship existed during the time Gower and Shinstrom lived together in Washington. Shinstrom argues chiefly that the evidence does not support the court’s findings of fact. Each of the challenged findings, however, is amply supported by the record, which includes Gower’s testimony, and the findings in turn support the court’s determination. The trial court did not err in concluding a meretricious relationship existed. Orcas Island Residence. Shinstrom also argues the trial court erred by including the Orcas Island residence as part of the property to be distributed, because it was his separate property. We disagree. Once the court finds a meretricious relationship, it must examine the relationship and property accumulation and make a just and equitable division of the property. Marriage of Lindsey, 101 Wn.2d 299, 304, 678 P.2d 328 (1984).

The court may characterize property as separate or community by analogy to marital property. Connell, 127 Wn.2d at 351. Unlike a marriage, however, at the end of a meretricious relationship, only what would have been community property is before the court. Connell, 127 Wn.2d at 351. The court may not dispose of the parties’ separate property. Marriage of Lindemann, 92 Wn. App. 64, 69, 960 P.2d 966 (1998). All property the parties acquire during a meretricious relationship is presumed to be owned by both parties and is before the court for distribution. Connell, 127 Wn.2d at 351. Here, the Orcas Island home is presumed to be a community asset because it was purchased in 1994, during the relationship. This presumption, however, is rebuttable, and the party asserting such property is separate may overcome the presumption with clear and convincing proof that the property is separate, i.e., by tracing with some degree of particularity the separate source of funds used for the acquisition. Connell, 127 Wn.2d at 351-52; In re Marriage of Hurd, 69 Wn. App. 38, 50, 848 P.2d 185 (1993).

Shinstrom argues he rebutted the presumption, because, as the trial court found, he demonstrated that the down payment came from the sale of his separate assets in Maine:

The down payment for the home was a loan from Mr. Al Good, secured by a lien against the property owned by {Shinstrom} in Maine, and the proceeds from the sale of an airplane purchased by {Shinstrom} in Maine and sold after moving to Orcas Island.

Clerk’s Papers at 616.

But when “separate funds are commingled with community funds so that they cannot be traced or identified, the commingled funds, or assets acquired therefrom, become community property.” Hurd, 69 Wn. App. at 50
(quoting Mumm v. Mumm, 63 Wn.2d 349, 352, 387 P.2d 547 (1963)).

Here, the proceeds from the sale of the airplane, approximately $46,000, were commingled with community funds. Shinstrom deposited the proceeds into his checking account,[2] and they cannot be traced with specificity to the down payment, because in the two months before Shinstrom wrote the check to the escrow company, the account balance dropped below $46,000. Only through additional deposits of presumptively community funds did the balance rise back above $46,000. Moreover, the cash portion of the down payment was about $54,000 greater than the plane proceeds and therefore necessarily included community funds from the checking account. Shinstrom has failed to overcome the presumption that the Orcas Island residence is owned by both parties.

The trial court did not abuse its discretion by including the Orcas Island home as part of the property to be distributed, and we affirm the property distribution.

Prejudgment Interest. When the amount claimed is liquidated, prejudgment interest should be awarded. Dautel v. Heritage Home Center, Inc., 89 Wn. App. 148, 153, 948 P.2d 397 (1997); Car Wash Enter., Inc. v. Kampanos, 74 Wn. App. 537, 548, 874 P.2d 868 (1994) (citing Hansen v. Rothaus, 107 Wn.2d 468, 472, 730 P.2d 662 (1986)). A claim is liquidated “where the evidence furnishes data, which, if believed, makes it possible to compute the amount with exactness, without reliance on opinion or discretion.” Car Wash, 74 Wn. App. at 548 (quoting King Cy. v. Puget Sound Power Light Co., 70 Wn. App. 58, 61, 852 P.2d 313 (1993)). If the fact finder must exercise discretion to determine the measure of damages, the claim is unliquidated. Car Wash, 74 Wn. App. at 549.

In its June 7, 2001 oral ruling, the trial court awarded a $350,000 judgment in favor of Gower, and expressly provided for interest to accrue from June 15. Gower contends the claim was liquidated as soon as the court issued its oral ruling and therefore interest was appropriate before the judgment was formally entered. In Kiessling v. Northwest Greyhound Lines, 38 Wn.2d 289, 297, 229 P.2d 335 (1951), however, our Supreme Court held otherwise:

The verdict of a jury or pronouncement by the court determines and fixes a definite amount of recovery, but the demand is not fully liquidated until the entry of judgment for the reason that the court may grant a new trial because the award is excessive or insufficient or may raise or lower the amount and afford the party adversely affected the option to accept the same or submit to a new trial of the case; or, in the case of award by the court, the trial judge may change his mind and make a different award than included in the original pronouncement.

The very situation contemplated in Kiessling occurred in this case: the trial judge changed his mind and increased Gower’s award to $400,000 before entering the judgment on December 3. The claim was not liquidated until the judgment was entered, and the award of prejudgment interest must be reversed.

CONCLUSION
We affirm the property distribution, but reverse the award of prejudgment interest and remand with instructions to assess interest from the date the judgment was entered.

GROSSE and BAKER, JJ., concur.