IN RE MARRIAGE OF CORNUTT v. CORNUTT, 120 Wn. App. 1011 (2004)

No. 51902-6-I.The Court of Appeals of Washington, Division One.
Filed February 9, 2004. UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 99-3-50308-6. Judgment or order under review. Date filed: 02/04/2003.

Counsel for Appellant(s), Dennis Cornutt (Appearing Pro Se), 5613-41st S.W., Seattle, WA 98136.

Counsel for Respondent(s), Cerise Barber (Appearing Pro Se), 5616-46th Ave. S.W., Seattle, WA 98136.

PER CURIAM.

Dennis Cornutt appeals from a dissolution decree and order of child support. He challenges the superior court’s refusal to impute income to his former wife for child support purposes and further contends the court erred in its characterization, evaluation and distribution of property. We affirm.

Dennis Cornutt and Cerise Barber were married in 1982. When the marriage was dissolved in 2003, they had two children, Elise, age 17, and Daniel, age 15. Although Cerise[1] was represented by counsel when dissolution proceedings began in 1999, by the time trial commenced both parties were representing themselves, as they are on appeal. Their financial assets included two houses, one of which Dennis brought into the marriage as separate property and rented out, and the other that the parties purchased during the marriage and in which the family had resided. No money was owed on either house. An account referred to by the parties as the `Qualstar’ account also contained in excess of $90,000 and Dennis had a pension of which the community portion was valued at approximately $48,000.

While the dissolution was pending, the children began living with Dennis at the rental home.[2] By the time of trial, Cerise had arranged to attend school full-time to obtain a two-year degree, intending to become employable. Dennis testified that he supported her decision and did not ask the court to impute any income to Cerise or require that she make any child support payments. Rather, he proposed paying maintenance to Cerise for a year after the dissolution as he had under the temporary orders. Cerise disagreed with the amount of maintenance than Dennis wanted to provide, and the parties further disagreed as to the property distribution and the children’s residential schedule.

After a difficult two-day trial, the court entered a decree of dissolution, set a residential schedule and entered a child support order that included the finding that Cerise was unemployable until she had finished her education. The court declined to order maintenance, but instead ordered a disproportionate distribution of the community assets, directing that Cerise receive the residential home, Dennis receive the rental home and his pension and that the Qualstar account be divided with $50,000 awarded to Dennis and $43,000 to Cerise.

In a motion to reconsider, Dennis for the first time asked the court to impute income to Cerise, order her to pay him child support and reconsider the property distribution.[3] The trial court denied Dennis’s motion in a written ruling.

As to the request to impute income, the court first noted that the request could be rejected because it was never raised at trial. The court further found that Cerise had been in a long-term marriage, had not worked outside the home, was over 50 years of age, had little work experience, was unlikely to find employment without additional training and was enrolled in a full-time program to receive training. Based on those facts, the court found Cerise was not voluntarily unemployed or underemployed. As to Dennis’s property distribution claims, the court noted, as it had in its oral ruling, the poor quality of the proof of valuation and the court’s intention to impose a disproportionate split of community assets in light of the parties’ uneven economic circumstances.

Dennis appeals, repeating the arguments raised in his motion to reconsider.

Imputed Income.
Dennis argues that the court erred by not imputing an unspecified amount of income to Cerise, contending that her desire to obtain a two-year community college degree rather than immediately seek a minimum wage job represents a `voluntary lifestyle choice’[4] that does not affect her obligation to support the children. He also discounts Cerise’s testimony regarding her medical difficulties and argues that the court’s findings regarding Cerise’s lack of employability are not supported because Cerise engaged in nearly full-time work as late as 1983 and occasionally earned minimum wages in part-time jobs during the marriage.

But even if all of Dennis’s claims were true, as the trial court recognized in denying the motion to reconsider, failing to raise a claim regarding child support calculations at trial may preclude later review.[5] The court’s decree specifically provides for revisiting the question of support if Cerise fails to attend school or takes a full-time job, and in any event by January 2005. By failing to raise this issue during the trial, Dennis prevented Cerise from providing more evidence. We decline to consider the issue here.[6]

Property Distribution.
Dennis assigns error to the property distribution in three ways, contending the court did not properly characterize the property; did not assign value to the property in a consistent manner, and abused its discretion in dividing the property by giving the larger house to Cerise.[7]

Regarding characterization, Dennis argues that the court failed to make a specific apportionment of the Qualstar account into community and separate funds. In its oral ruling, the court expressed frustration as to the lack of proof regarding the funds that had gone into and out of the account from the time of separation up to the time of the dissolution. The court nonetheless considered that up to $20,000 of the $93,000 in current funds were Dennis’s separate property contributions, and understood that the award of $43,000 to Cerise was more than half of the community portion of the account. Given the quality of the record, we can discern no error by the court in this conclusion.

Moreover, the division of property before a dissolution court is not governed by its characterization as separate or community: it is based upon what is just and equitable under the circumstances.[8] If a trial court mischaracterizes property, remand is required only if the trial court’s reasoning indicates the nature of the property significantly influenced how it was divided, and it is not clear the property would have been divided the same way had it been properly characterized.[9]
Even if the trial court erred by not more precisely characterizing the Qualstar funds, it is clear that the court’s determination of what was just and equitable was not driven by the characterization, but rather was a product of the court’s proper concern with the overall economic circumstances of the parties. Remand is unnecessary.

Dennis also argues that the trial court was not consistent in the way it assigned value to the houses. But the quality of proof differed for each house. The court relied for its determination of the value of the community residence on a 2000 appraisal of $175,000, a figure Dennis did not disagree with. For the rental house, however, there was no appraisal. Dennis testified that he had no idea of its value other than a recent tax assessment valuation of $165,000. Dennis’s contention that the court should have limited its inquiry to the properties’ value at the time of separation is inconsistent with the statutory requirement that the court dispose of the parties’ property considering the economic situation at the time of disposition.[10] The court’s valuation was within the range of evidence and therefore will not be disturbed on appeal.[11]

Finally, Dennis contends that the trial court’s decision to award the larger community residence to Cerise was error. He asks this court to order the parties to switch houses, citing RCW 26.09.080(4), which states a preference for awarding the family home to the spouse with whom the children reside the majority of the time.[12] But a trial court is in the best position to determine what is “fair, just and equitable under all the circumstances” and is accordingly granted broad discretion when distributing property in dissolution proceedings.[13]

The trial court was aware of Dennis’s concerns regarding the size of the two residences, which he articulated at trial in requesting that the court award him both houses. The court considered, however, that Cerise had a strong vested interest in the residential house and Dennis had indicated plans to expand the rental house for the children, who had not expressed a desire to live in the residential house in any event. Cerise had engaged in substantial work on the residential home after Dennis moved out. Elise was just a few months from the age of majority and was hoping to be able to live on campus when she began college. Dennis, a carpenter, indicated that he could expand the useable space in the rental house by finishing the basement or enclosing a porch. Each house was free of debt and the parties received an amount of cash that would enable them to make modifications or even move. Leaving the parties in the homes they had been living in for the past three years was not an abuse of discretion.

We affirm.

COLEMAN and AGID, JJ., concur.