IN RE BRISKEY, 145 Wn. App. 1023 (2008)

No. 36035-7-II.The Court of Appeals of Washington, Division Two.
June 24, 2008.

Appeal from a judgment of the Superior Court for Pierce County, No. 05-3-02423-1, Beverly G. Grant, J., entered February 9, 2007.

Affirmed in part, reversed in part, and remanded by unpublished opinion per Armstrong, J., concurred in by Van Deren, C.J., and Bridgewater, J.

ARMSTRONG, J.

Mary Jo Briskey appeals the trial court’s division of property and maintenance award in the dissolution of her marriage to William Briskey. She argues that the trial court should have included the time she and William cohabited before marrying in determining the length of the marriage and awarded more maintenance, that the trial court should have granted her an equitable lien on William’s separate property, and that the trial court abused its discretion in denying her attorney fees. Finding no error as to the first two issues, we affirm those decisions. But because the trial court applied the wrong standard when it rejected Mary Jo’s request for attorney fees, we remand for the trial court to reconsider this request.

FACTS
William and Mary Jo Briskey married in July 1997 and separated in September 2004. William petitioned for dissolution in July 2005; at the time, William was 72 years old and Mary Jo was 52 years old.

William and Mary Jo began living together in William’s house before their marriage. They separated for several months in 1995 but eventually reconciled. After Mary Jo moved back into William’s home, they married within a year.

William has practiced veterinary medicine since the 1960s; he runs his practice out of his home and he owned most of his veterinary equipment before he married Mary Jo. He also owned his house, several parcels of land, and several retirement funds before the marriage.

Before marrying William, Mary Jo worked as a lab assistant at a hospital from 1972 to 1974 and assisted her previous husband at a store he owned from 1982 to 1990. In 1995, while she and William were separated, Mary Jo again worked at a hospital for nine months. When she moved back into William’s house, she left her hospital job and began assisting William in his practice. William did not pay himself or Mary Jo a salary from the practice’s profits.

When the parties married, William had approximately $11,000 in debt. By the time they separated, this debt had increased to approximately $114,000. By the time of trial, William had reduced the debt to $99,000. The parties accumulated little community property, mostly household goods and furnishings, during the course of their marriage.

William voluntarily paid Mary Jo approximately $3,000 per month plus incidental payments from the date of their separation until he filed for dissolution. After he filed his petition, he paid court-ordered maintenance of $2,400 per month, which the court later reduced to $1,800 per month. By the time of trial, William had paid Mary Jo over $60,000 in maintenance payments. The court also ordered William to pay $2,500 toward Mary Jo’s attorney fees before trial.

Mary Jo testified that she hurt her back after falling off a horse in 1997 and that the pain had gotten progressively worse. She was able to do some light housework but she experienced pain when she did so. She wanted to be employed but believed that was not possible. Gary Peterson, a vocational rehabilitation expert, testified on Mary Jo’s behalf. He testified that he had interviewed Mary Jo, evaluated the results of vocational tests she took, and reviewed statements from her physician and acupuncturist. He opined that, barring extreme medical intervention, Mary Jo would be unable to work at any job.

The trial court awarded William his separate property and Mary Jo most of the community property. It allocated the entire $114,000 in debt to William and ordered him to pay Mary Jo maintenance of $1,800 per month for nine months. It found Mary Jo’s testimony not credible and Peterson’s assessment of her employability unreliable. The trial court declined to award Mary Jo additional attorney fees.

ANALYSIS I. Duration of the Marriage
In a dissolution proceeding, the trial court must consider the duration of the marriage in disposing of the parties’ property and granting spousal maintenance. RCW 26.09.080(3), .090(1)(d). The trial court concluded that William and Mary Jo’s seven-year marriage was not of long duration. But Mary Jo asserts that the trial court should have included the period of cohabitation before marriage in determining the length of the marriage. She essentially argues that she and William had a six-year committed intimate relationship prior to the marriage and that the trial court should have added this period to their marital years to find a thirteen-year, long-term marriage.

A committed intimate relationship[1] is a “stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist.”Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831
(1995) (citing In re Marriage of Lindsey, 101 Wn.2d 299, 304, 678 P.2d 328 (1984)). In analyzing whether a committed intimate relationship exists, a court may consider the following non-exclusive factors: (1) continuity of cohabitation; (2) duration of the relationship; (3) purpose of the relationship; (4) pooling of resources and services for joint projects; and (5) the intent of the parties. In re Pennington, 142 Wn.2d 592, 601-02, 14 P.3d 764 (2000). Whether a committed intimate relationship exists is a mixed question of fact and law; accordingly, we defer to the trial court’s findings of fact but we review de novo its legal conclusions from those findings Pennington, 142 Wn.2d at 602-03.

The trial court found that Mary Jo had not proved continuous cohabitation. It is undisputed that Mary Jo moved into William’s home before their marriage. She later moved out for a period of several months, and she moved back in when they reconciled, less than a year before they married. Their cohabitation was clearly not continuous. But Mary Jo maintains that, because she moved into William’s home in 1991, six years before the marriage, and because their separation lasted only two to three months out of these six years, their cohabitation was “continuous enough” to be a committed intimate relationship. Br. of Appellant at 11, 24.

Mary Jo points to the discussion of the continuous cohabitation element in Pennington. There, the parties cohabited over the course of 10 years, separating and reconciling twice Pennington, 142 Wn.2d at 603. The court found that the cohabitation was “sporadic and not continuous enough to evidence a stable cohabiting relationship.” Pennington, 142 Wn.2d at 603. Mary Jo maintains that the language “continuous enough” demonstrates that the continuity of cohabitation need not be absolute and that it allows for the possibility of “common missteps that accompany many marriages.” Br. of Appellant at 24. This argument, however, ignores that a committed intimate relationship is not the same as a marriage Connell, 127 Wn.2d at 348-49. For this reason, the existence of a committed intimate relationship depends on the facts of each case; there is no bright line rule Pennington, 142 Wn.2d at 602.

The parties gave conflicting evidence on when they began cohabiting. Mary Jo testified that she moved into William’s home in the fall of 1991 or the beginning of 1992 and that they cohabited for three years before she was divorced from her previous husband. But she also testified that divorce proceedings in her previous marriage had begun but not concluded when she began cohabiting with William and that she lived with William while married to her previous husband for “a very short period of time.” Report of Proceedings (RP) at 360, 388. The petition for dissolution of that marriage was filed in April 1994 and granted in September 1994. William testified that Mary Jo first moved into his house one-and-a-half to two years before their marriage. He also testified that she moved into his house around 1985, which he later corrected by testifying that it was actually 1995.

While the cohabitation in Pennington was more sporadic than in the case at hand, the evidence here supports a conclusion that the parties’ cohabiting relationship was not stable. The trial court did not specifically find which year the parties began cohabiting. But the testimony provides substantial support for finding that the parties cohabited not for six years, but for a shorter time, disrupted by a separation of several months.

The trial court did not err in finding that William and Mary Jo did not continuously cohabit before their marriage. This finding in turn supports the trial court’s conclusion that the parties did not have a committed intimate relationship before their marriage. Accordingly, the trial court did not err when it refused to consider the period before the marriage when dividing the property and setting spousal maintenance.

II. Spousal Maintenance
Mary Jo asserts numerous errors relating to the trial court’s maintenance award.

A trial court has broad discretion in awarding maintenance In re Marriage of Terry, 79 Wn. App. 866, 869, 905 P.2d 935 (1995). We will find an abuse of discretion only if the trial court bases its award of spousal maintenance on untenable grounds or untenable reasons. Terry, 79 Wn. App. at 869. The trial court’s paramount concern in considering maintenance is the economic condition in which a dissolution decree leaves the parties. In re Marriage of Washburn, 101 Wn.2d 168, 181, 677 P.2d 152 (1984).

A trial court may order maintenance “in such amounts and for such periods of time as the court deems just.” RCW 26.09.090(1). It must consider all relevant factors, including the parties’ financial resources after dissolution, their abilities to meet their needs independently, the duration of the marriage, the standard of living they established during the marriage, their ages, health, and financial obligations, and the ability of one spouse to pay maintenance to the other. RCW 26.09.090(1)(a)-(f).

Mary Jo assigns error to the following finding of fact related to maintenance:

2.15 Maintenance

Maintenance should be ordered. The court applied the statutory criteria of RCW 26.09.090. The court witnessed the demeanor of each of the witnesses and the credibility of each of the witnesses. The court reviewed the testimony of the expert, Gary Peterson, regarding his observations and conclusions of [Mary Jo].
The court’s observations contrast directly from those of Mr. Peterson. Mr. Peterson was not made aware of [Mary Jo’s] attempted employment nor did he review any of her medical records. The court does not feel that the assessment by Mr. Peterson is reliable. [Mary Jo’s] request for maintenance of $2,937 for life is a ludicrous request. [William] has already paid [Mary Jo] over $60,000 in monthly payments since the date of separation. [Mary Jo’s] request for spousal maintenance is not supported by the statute nor by the record. [Mary Jo’s] claims that she can not work are not credible. [Mary Jo] did not explain with credibility all of the expenses of PayPal and all of the computer use regarding the monies that [William] paid her since the date of separation.
Spousal maintenance is ordered by the court of $1,800 per month for nine months only commencing with the month of February 2007. Spousal maintenance shall terminate at the end of October 2007.

Clerk’s Papers (CP) at 78-79. We review the trial court’s findings of fact for substantial supporting evidence. In re Marriage of Zier, 136 Wn. App. 40, 45, 147 P.3d 624 (2006) review denied, 162 Wn.2d 1008, 175 P.3d 1095 (2007).

Mary Jo maintains that Peterson was aware of her attempts to find employment. Peterson testified that she told him about three jobs she had unsuccessfully applied for. But he also testified that Mary Jo did not disclose that she had had a job for a year-and-a-half. Mary Jo testified that she had been earning money by completing online surveys for the past two years. And she admitted that she did not disclose this to Peterson. This evidence supports the finding that Peterson was not aware of Mary Jo’s employment efforts.

She also asserts that Peterson did review her medical records. But, although Peterson used the term “records” in his testimony, he explained that he reviewed a one-page declaration by Mary Jo’s physician and a letter from her acupuncturist, and that these were the only medical documents he reviewed. This testimony provides substantial support for a finding that Peterson did not review Mary Jo’s medical records.

Mary Jo contends that the trial court erred in failing to address her physical limitations and in finding that she is employable. But the trial court did address the testimony about her capacity for employment, finding it not credible that there was no job she could perform.

Mary Jo argues that she explained her expenses and use of PayPal.[2] She testified that she bought herself clothing and household furnishings on the internet and that she made internet purchases for her daughters, who reimbursed her. She points out that William did not dispute this testimony. Nevertheless, the trial court found this testimony not credible. And credibility determinations are for the trial court; we will not disturb them on appeal.[3] Bartel v. Zucktriegel, 112 Wn. App. 55, 62, 47 P.3d 581 (2002).

Mary Jo questions the amount and duration of the maintenance award. She quarrels with the trial court’s comment that her $2,937 per month maintenance request was “ludicrous,” pointing to William’s stated monthly expenses and his voluntary $3,000 per month payment before filing for dissolution. She argues that the trial court did not take into account her physical limitations and improperly considered fault. And she faults the trial court for failing to make a finding of her need and William’s ability to pay.

The finding of fact on maintenance stated that the trial court considered the factors from RCW 26.09.090; the trial court is not required to enter written findings on each factor. In its oral ruling, the trial court explained some of its considerations. It rejected Mary Jo’s assertions that she cannot work. It emphasized that it did not consider the parties’ fault. The court considered that William was 74 years old and Mary Jo was 21 years younger and that the marriage was of short duration. It considered the parties’ physical and emotional conditions, which it had observed over the 5-day trial. It considered that Mary Jo had already received maintenance for over 2 years. And to allow Mary Jo a time to adjust, it granted 9 months’ additional maintenance for the transition.

The trial court considered the relevant factors and based its maintenance award on those factors. We find no abuse of discretion.

III. Division of Property
Mary Jo also argues that the trial court erred in dividing the parties’ property.

As with an award of maintenance, a trial court has considerable discretion in dividing property, and we will reverse only for an abuse of that discretion. In re Marriage of Kraft, 119 Wn.2d 438, 450, 832 P.2d 871 (1992). All property, community and separate, is before the court and available for distribution. RCW 26.09.080. In dividing the property, a court may consider the nature and extent of community and separate property, the duration of the marriage, and the economic circumstances of each spouse at the time of the division. RCW 26.09.080(1)-(4). The property’s character does not control its disposition. In re Marriage of Olivares, 69 Wn. App. 324, 329-30, 848 P.2d 1281 (1993) (citing Worthington v. Worthington, 73 Wn.2d 759, 768, 440 P.2d 478 (1968)). Rather, the court’s goal is to divide the property fairly, justly, and equitably under all the circumstances. Kraft, 119 Wn.2d at 449.

Mary Jo faults the trial court for not finding that William failed to segregate his separate funds from the community earnings. Although the court made no finding regarding segregation of separate and community property, it stated in its oral ruling that, because William did not segregate his separate property, it was difficult to determine the character of each asset. Nonetheless, the trial court did characterize and distribute the assets. And, unless we can find that the trial court abused its discretion in the property division, its failure to find the extent of commingling was harmless.

Mary Jo contends that the trial court adopted artificial values for three parcels of William’s real property. The trial court used the values that William submitted, which came from 2004 Pierce County tax assessor’s records. But Mary Jo submitted the 2007 values from the tax assessor’s website. She argues that these values more accurately reflect the property’s fair market value because they give the value the land would have without William’s tax exemption.

In its oral ruling, the trial court commented that the parties had argued property values from $540,000 to $900,000, yet neither party had presented anything other than tax assessments to show values. And the court’s discussion of its division made clear that the properties’ value was not the key factor in the distribution. The court awarded all of William’s separate property to him, regardless of its value. Mary Jo has not shown that any error in valuing William’s real property affected the trial court’s property division.

Mary Jo also argues that the trial court should have awarded her an equitable lien on William’s house because William did not segregate community and separate funds, community labor increased the value of his separate property, and he made purchases for his veterinary practice and payments on a line of credit from unsegregated funds.[4]

Mary Jo agreed at trial that the assets William listed as his separate property were assets he had acquired before their marriage. She also agreed with William’s proposed division of their community property. But she requested a lien of $100,000 on William’s home and an award of two of William’s separate funds worth approximately $119,000.

The trial court declined to award Mary Jo any of William’s separate property and did not impose a lien on William’s home. It found that Mary Jo’s request for a $100,000 lien was not “remotely in the realm of reality as to the role she played” in the community. RP (Jan. 17, 2007) at 11. But it did allocate the entire community debt of $114,000 to William, thus relieving Mary Jo of responsibility for it. It awarded Mary Jo half of the taxes paid on William’s separate property during the marriage and half of any money William recovered from a loan he made to his son. And the court took into account the fact that William had paid Mary Jo over $60,000 in maintenance since the parties separated. Given these factors, the trial court did not abuse its discretion by rejecting Mary Jo’s requested lien on William’s separate property or her request for William’s separate funds.

IV. Attorney Fees
A. Attorney Fees at Trial

Mary Jo argues that the trial court erred in denying her attorney fees because it did not consider her need and William’s ability to pay.

In a dissolution action, the trial court may, “after considering the financial resources of both parties,” order one party to pay the other party’s attorney fees. RCW 26.09.140. The trial court must balance the needs of the spouse requesting fees against the other spouse’s ability to pay. In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197
(1989). We review a trial court’s decision regarding attorney fees for an abuse of discretion. Morrow, 53 Wn. App. at 590.

The trial court awarded Mary Jo $2,500 for her attorney fees shortly after William filed the petition. But it denied her request for additional fees at the conclusion of trial because it “felt . . . there were too many falsehoods told to the Court and not fully disclosed to . . . Mr. Peterson.” RP at 17. While Mary Jo’s credibility was relevant to the issue of her employability, it was not relevant to her ability to pay her attorney fees. The trial court abused its discretion by denying Mary Jo additional fees without considering her need and William’s ability to pay. We remand for reconsideration of the issue.

B. Attorney Fees on Appeal

Mary Jo also requests attorney fees on appeal. Under RCW 26.09.140, we may, in our discretion, order one party to pay the other party’s attorney fees on appeal. In exercising our discretion in making such an award, we consider the parties’ relative ability to pay and the arguable merit of the issues raised on appeal. In re Marriage of Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779 (2005). Other than the trial court’s failure to consider her need and William’s ability to pay in denying her an award of attorney fees, Mary Jo did not present any issues that had merit. Moreover, in support of her request for attorney fees on appeal, Mary Jo submitted a financial declaration containing largely the same information that the trial court found not credible. We decline to award Mary Jo her attorney fees on appeal.

We affirm the property division and maintenance award and we reverse the denial of attorney fees at trial and remand for the trial court to reconsider this request.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Bridgewater, J., Van Deren, C.J., concur: