MARRIAGE OF PENRY, 25514-6-II (Wash.App. 12-7-2001)

No. 25514-6-II.The Court of Appeals of Washington, Division Two.
Filed: December 7, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Thurston County, No. 98-3-01306-1, Hon. Richard D. Hicks, December 17, 1999, Judgment or order under review.

Counsel for Appellant(s), Allan D. Penry (Appearing Pro Se), 605 Devoe St. N.E., Olympia, WA 98506.

Counsel for Respondent(s), Stephen A. Foster, Foster Foster
Schaller, 711 Capitol Way S Ste 701, Olympia, WA 98501-1237.

Toni M. Hood, Foster Foster Schaller, 711 S Capitol Way Ste 701, Olympia, WA 98501.

ELAINE M. HOUGHTON, J.

Allan D. Penry appeals from trial court orders entered as part of the dissolution of Penry’s marriage. He argues that the trial court abused its discretion in distributing marital asserts, ordering child support and maintenance, awarding attorney fees, and entering a permanent protective order. He also argues that the trial court violated the appearance of fairness doctrine. We affirm.

FACTS
Allan Penry (Penry) and Jeannie Stuber (formerly known as Jeannie Penry, hereafter referred to as Stuber) separated in October 1998 after 17 years of marriage. In November 1998, Stuber filed for dissolution of the marriage. Penry and Stuber’s community assets included three houses: a residence on Hicks Lake and two rental properties. Their community assets also included family cars, vans used in Penry’s business, a race car, and retirement accounts. Community debts included a mortgage on the Penry’s residence, consumer credit card debt, and various debts owed on Penry’s business. Penry and Stuber have one child, Blake, who was 15 years old at the time of trial. Stuber taught Blake at home and he continued to live with Stuber after the separation. During the year preceding trial, Penry had very few visits and little contact with Blake. Penry represented himself during the three day trial. As any pro se litigant might, Penry had some difficulty having evidence admitted and understanding evidentiary principles. The trial judge explained courtroom procedure and its rulings to Penry. At one point, however, the trial judge mentioned that he feared he might be helping Penry too much.[1]

Penry’s financial information was disorganized, and the trial court found Penry not forthcoming about his income.[2] At the time of trial, Penry worked installing and repairing heating and air conditioning equipment, for which he was paid from $20 to $50 an hour. Sometimes Penry worked as an independent contractor for other contractors and was paid a percentage of the contract price for the projects on which he worked. He did not disclose the names of all of those for whom he worked. Penry stated his net yearly, after-tax income as $25,000. In addition, Penry received rental income from between $100 to $200 per month per rental property. The rental properties were subject to depreciation write-offs on Penry’s federal income tax. The trial court assigned a net income of $4,000 per year on the rental properties and calculated Penry’s total net income at $29,000 per year. Penry owned and operated a heating and air conditioning company. During the marriage, Penry sold the business for $180,000, but the buyer failed to make payments. Also, a trusted employee embezzled $11,000 and at the time of trial still owed Penry and Stuber restitution. After hearing about the business, the trial court found there were stickers with the business name on furnaces and air conditioners all over Thurston County, presumably increasing the business’s value. Stuber did not hold a job at the time of trial. She had worked from home part-time for Pacific American Institute, a company that organized accommodation in homes for international students. But the company ceased operations shortly before trial began, and Stuber had not found other work. Stuber grossed approximately $5,800 in 1996 and approximately $10,000 in 1997.

The parties presented evidence about the value of their real estate through snapshots and Pierce and Thurston County tax assessments. The parties also testified about the property values and the rental properties. Before trial, Stuber gave notice to Penry of her intention to submit the county assessors’ values for the real estate and Penry did not object within 14 days, as ER 904 required. At trial, Penry tried to enter into evidence a real estate agent’s statement regarding the value of the properties, but it was never admitted into evidence. Penry did not call the real estate agent as a witness to testify about the property’s value. Neither did he seek to admit a statement of a certified real estate appraiser.

The trial court disregarded Penry’s testimony about the properties’ values and instead based its property valuation on the county tax assessment statements. The court found that all three properties were under Penry’s exclusive care and control, and any diminished value due to waste or depreciation was his responsibility. The trial court valued the family residence at Hicks Lake at $123,000 with a mortgage of approximately $43,800. One rental property, referred to as the 75th Street property, the court valued at $92,600 with a mortgage balance of approximately $45,000.

The second rental property, referred to as the 80th Street property, the court valued at $97,500 with a mortgage balance of $53,000.

At the end of the trial, the trial court decided to split the marital assets almost equally between Penry and Stuber, awarding Penry 56 percent and Stuber 44 percent of the community property. The trial court declined to accept Penry’s proposal to liquidate all assets and divide the proceeds because it ruled that liquidation would incur unnecessary tax liabilities and disrupt Blake’s life. The trial court awarded the Hicks Lake home to Stuber and the two rental properties to Penry.

The trial court made Stuber the residential and sole decision making parent for Blake, but it placed no visitation restrictions on Penry. The court granted Stuber’s request for a permanent order restraining Penry’s contact with her. This order specifically does not restrict Penry’s contact with Blake and explicitly allows him to attend Blake’s school or extracurricular activities and have `ordinary and normal reasonable father contact.’ Clerk’s Papers at 185.

The trial court had difficulty accurately calculating child support and maintenance schedules because Penry did not present clear income information to the court. When the trial court ran the computerized worksheets, the child support payments of $915.94 seemed high to the court.

The court left the child support payments at that amount, but it adjusted downward the maintenance payments from $600 to $300 per month. The court ordered maintenance and only payable until December 2000.[3]
The court also pointed out to Penry that he could have this amount reviewed if Stuber became employed.

Finally, the court awarded Stuber attorney fees of $7,220 and costs of $394.

On December 17, 1999, the parties found themselves back in court, presumably to enter the findings of fact and conclusions of law. Although there is no record of this court appearance in the clerk’s papers, it appears from the report of proceedings from this hearing that an attorney now represented Penry. Penry, through his attorney, moved the court to continue the entry of the findings of fact and conclusions of law in order to consider appraisals regarding the property valuation. The trial court declined to reopen the property valuation issue because Penry could have presented this evidence at trial. Penry also moved, through his attorney, to reopen the issue of child support. The court declined to revisit these issues because it did not believe that Stuber had colluded with her employer to lose her job before trial and because the court had the impression from trial that Penry was hiding sources of income, even if only through disorganization. The court ruled that if Penry came back to court with clear written records of his income, the child support could be adjusted at that time. Penry also moved the court to reopen the issue of attorney fees, but the court declined to do so. The court noted that Penry had caused excessive attorney fees for Stuber in representing himself, thus lengthening the process. Although the court determined that this result was not intentional, it still created extra expenses for Stuber. Penry appeals.

ANALYSIS Property Distribution
Penry first contends that the trial court abused its discretion in distributing marital assets because it failed to evaluate the relevant factors specified in RCW 26.09.080.[4] Specifically, Penry argues that the trial court did not recognize Penry’s separate property contribution to the family home. He also asserts that the county-assessed values of the home and rental properties were inadmissible. Finally, Penry argues that the trial court erred in not selling the family home and dividing the proceeds in half.

A showing of manifest abuse of discretion is required to reverse a trial court’s property distribution on appeal. In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999). When distributing property during a dissolution proceeding, a trial court’s discretion is broad. Brewer, 137 Wn.2d at 769 (finding broad discretion in RCW 26.09.080). This is because the trial court is in the best position to determine what is fair, just, and equitable. Brewer, 137 Wn.2d at 769. `A manifest abuse of discretion is a decision manifestly unreasonable or exercised on untenable grounds or for untenable reasons.’ In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991) (quoting In re Marriage of Tower, 55 Wn. App. 697, 700, 780 P.2d 863 (1989), review denied, 114 Wn.2d 1002 (1990)).

Separate Property
At trial, Penry did not produce adequate evidence of separate property contributions. There is a strong presumption that assets acquired after marriage are community property. RCW 26.16.030; Dean v. Lehman, 143 Wn.2d 12, 19-20, 18 P.3d 523 (2001). To prove that he had a separate interest in an asset acquired after marriage, Penry needed to have shown clear and convincing evidence at trial of actual use of separate funds to purchase it. Dean, 143 Wn.2d at 20. Penry could have shown this by Stuber’s admission, a third-party’s testimony, or by tracing documents such as a closing statement showing receipt of separate funds. See 19 Kenneth W. Weber, Washington Practice: Family and Community Property Law § 10.5, at 138 n. 5 (1997).

Here, Penry did not offer any such evidence. He only offered documents regarding proceeds from a sale of a house he bought before his marriage to Stuber. Penry argued at trial that he had taken $19,000 of the proceeds from this sale and contributed it to the family’s Hicks Lake home. Although this may be evidence of the existence of separate funds, Penry did not provide specific evidence of their application to the family’s home on Hicks Lake.

Penry also filed a document titled, `Respondent’s Offer of Proof Re Separate Estate Testimony of Absent Witness.’ Clerk’s Papers at 117 (all capitals omitted). This document is an unsigned declaration of Penry’s father, Doyle Penry, regarding his memory that Penry used $19,000 of his separate funds to purchase the Hicks Lake house. The trial court properly excluded this from evidence and apparently did not consider it when making its decision.

Despite Penry’s contentions to the contrary, Stuber did not admit that Penry had a separate property interest in the Hicks Lake house. She remembered that she and Penry had some separate money before their marriage, and that she had used hers to buy household appliances. But Stuber did not admit that Penry spent separate funds on the Hicks Lake house.

Penry did not provide sufficient evidence to rebut the presumption that the Hicks Lake house was community property. The trial court did not abuse its discretion in characterizing the property as community.

County Tax Assessment Statements
Penry further contends that the court inappropriately considered the county tax assessment when it valued the Hicks Lake house. The thrust of Penry’s argument seems to be (1) that the county assessor’s value was improperly admitted; and (2) that the court improperly relied on it in valuing the Hicks Lake house.

First, the Pierce and Thurston County Assessors’ valuation of property was properly admitted. Evidence Rule 904 states that in a civil trial certain documents may be admitted if all parties are served with a notice at least 30 days before trial and there are no objections for 14 days after the notice. ER 904.

On September 14, 1999, Stuber properly filed her notice of intent to offer the Pierce County assessor’s valuation of the two rental properties and the Thurston County assessor’s valuation of the Hicks Lake property. She also filed an affidavit of mailing to Penry on September 14, 1999. Penry did not object to the admission of the assessments. Because Stuber complied with ER 904, the documents were properly admitted.

Second, the court did not abuse its discretion when relying on the county tax assessors’ valuations to make its own valuation of the rental properties and the Hicks Lake house. The trial court has broad discretion when distributing marital property subject to dissolution. Brewer, 137 Wn.2d at 769. A trial court may rely on assessor’s values for real property. See In re Marriage of Hadley, 88 Wn.2d 649, 658, 565 P.2d 790
(1977), distinguished on other grounds by Whitney v. Seattle-First Nat. Bank, 90 Wn.2d 105, 579 P.2d 937 (1978), and In re Marriage of Matson, 41 Wn. App. 660, 705 P.2d 817 (1985), aff’d, 107 Wn.2d 479 (1986).

Here, both Penry and Stuber testified as to their valuation of the real estate, which they may do as owners. State v. Wilson, 6 Wn. App. 443, 451, 493 P.2d 1252 (1972) (holding that an owner of real property had a right to testify as to the property’s value because he or she is presumed to be sufficiently acquainted with its value to give an intelligent assessment of its value). The trial court acted within its discretion in ignoring the parties’ personal valuations and instead relying on the county assessment to value the property.

In sum, the trial court’s characterization, valuation, and distribution of the property was well within its broad discretion. We will not disturb its decision on appeal.

Child Support and Maintenance
Penry further contends that the court improperly set child support and maintenance obligations. Penry, however, provides no basis for overturning the trial court’s child support order. An appellant must demonstrate that a trial court’s award of child support is based on untenable grounds or untenable reasons for an appellate court to overturn it. In re Marriage of Peterson, 80 Wn. App. 148, 152, 906 P.2d 1009
(1995), review denied, 129 Wn.2d 1014 (1996) (citations omitted).

He fails to do so. Penry supplied the trial court with the $25,000 basis of his income the court used to create the schedule. Penry refers to a disability that affects his income by preventing him from working. This information was not before the court at the time of trial so the court properly did not consider it.

Penry also argues that the trial court’s error is demonstrated by the trial court’s reduction in child support to $100 per month in January 2001.[5] Normally, a court will modify a child support order only when a party shows a substantial change in circumstances. RCW 26.09.170(1)(b). Here, however, the trial court specifically told Penry that if he produced clearer documentary evidence of his income, he may seek a future modification of his child support obligation.

The trial court similarly did not abuse its discretion when it awarded maintenance to Stuber. An award of maintenance is a matter of the trial court’s discretion. See RCW 26.09.090(1). Here, as with the child support order, the court based its maintenance calculation on Penry’s own representations to the court of his income. Further, the court adjusted downward the maintenance payments by halving the standard calculation, and it ordered maintenance only until December 2000.[6] The court also pointed out that Penry could have this amount reviewed if Stuber became employed before December 2000.

The trial court did not abuse its broad discretion in ordering maintenance and child support.

Protection Order
Penry next contends that the trial court’s `No Contact Order’ improperly obstructed his contact with Blake. This argument is without basis. The order specifically allows Penry to contact Blake while prohibiting Penry from contacting Stuber. In the trial court’s oral ruling, it stated explicitly that `there is no order restricting Mr. Penry from any type of ordinary and normal reasonable father contact here.’ Report of Proceedings at 354.

Appearance of Fairness
Penry also contends that the court violated the appearance of fairness by referring to him in `derisive and sanctimonious terms[.]’ Br. of Appellant at 28. The appearance of fairness doctrine has been violated when a reasonably prudent and disinterested observer would conclude that not all parties obtained a fair, impartial, and neutral hearing. WA Med. Disciplinary Bd. v. Johnston, 99 Wn.2d 466, 478, 663 P.2d 457 (1983). The person challenging the fairness of the court must present `sufficient evidence of actual bias or even probable bias to conclude that [the challenger] received an unfair hearing.’ Sherman v. Moloney, 106 Wn.2d 873, 883, 725 P.2d 966 (1986) (footnote omitted).

Penry presents no evidence to show bias against him that resulted in an unfair hearing. He gives no examples of the derisive or sanctimonious terms he argues the court made. Our careful reading of the record also indicates no such terms were used.

Contrary to Penry’s argument, the record demonstrates that the trial judge took pains to accommodate Penry’s lack of knowledge and inexperience in the courtroom. The record is replete with instances in which the judge patiently and repeatedly explained evidence rules and courtroom procedure to Penry. E.g., Report of Proceedings at 72, 73, 78, 93, 117, 119, 153.

At one point during the trial, the judge even worried aloud that he was prejudicing the other side by helping Penry too much.

We find no basis for Penry’s argument that the trial court demonstrated unfairness, and his argument fails.

Attorney Fees
Finally, Penry argues that the court erred when it awarded attorney fees to Stuber.

In a family law matter, the trial court may award one party’s attorney fees and costs to be paid by the other party. RCW 26.09.140. The court is to consider the financial resources of both parties. RCW 26.09.140. Here, the court did not believe that Penry had disclosed all his financial information. The court noted that Penry’s business is an income source for him, but Stuber was unemployed at the time of trial. The court also noted that Penry caused excessive attorney fees for Stuber in representing himself. Although the court determined that Penry did not intentionally create additional fees and costs, he still caused Stuber to incur them.

The court ruled that the fees Stuber’s lawyer billed were reasonable and ordered Penry to pay them.

Because Penry has not refuted any of these facts, he has not demonstrated that the trial court erred in awarding attorney fees and costs, and the trial court award is affirmed.

Stuber requests fees on appeal. On appeal, we may award attorney fees in addition to the other statutory costs. RCW 26.09.140. But we must examine the arguable merit of the issues on appeal as well as the financial resources of both parties. In re Marriage of Griffin, 114 Wn.2d 772, 779-80, 791 P.2d 519 (1990) (citation omitted). Here, Stuber failed to serve a financial affidavit on Penry no later than 10 days before oral argument. RAP 18.1(c). As such, we cannot evaluate her financial resources and, therefore, decline her request for attorney fees on appeal.

Affirmed.

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.

WE CONCUR: ARMSTRONG. C.J., HUNT, J.