No. 26198-7-II.The Court of Appeals of Washington, Division Two.
Filed: March 1, 2002. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Pierce County, No. 98-3-02691-9, Hon. Kitty-Ann Vandoorninck, June 16, 2000, Judgment or order under review.
Counsel for Appellant(s), Ross E. Taylor, Attorney At Law, 4217 Juniper Dr W, University Pl, WA 98466.
Catherine W. Smith, Edwards Sieh Smith and Goodfriend, 701 5th Ave Ste 7170, Seattle, WA 98104.
Counsel for Respondent(s), Herbert Gelman, Gelman Associates, Ste 300, 1101 S Fawcett Ave, Tacoma, WA 98402-2010.
ELAINE M. HOUGHTON, J.
Susan Merleen Zongas appeals from the trial court’s property distribution in the dissolution of her marriage to James William Zongas. We affirm.
FACTS
Susan and James Zongas married in March 1985. James[1] entered the marriage with substantial real property assets and a net worth of $2,670,000.[2] Susan entered the marriage with a house, a 1967 Corvette, and $20,000 from a previous marriage.
During their marriage, the couple derived its main source of income from the proceeds of developing some of James’s land and selling it. James was a carpenter by trade with technical expertise and professional connections. Susan maintained the books, paid the bills, and helped with the landscaping and interior decoration of homes they built and sold. In 1994, the couple’s net worth amounted to $5.3 million.
In September 1985, Susan and James entered into a three-prong community property agreement (CPA). The CPA: (1) converted both parties’ currently owned separate property to community property; (2) characterized all after-acquired property as community property; and (3) vested the survivor with title in all the community property. Based on this, the trial court characterized all of the couple’s assets as community and found that neither party had any separate property.
In 1993, James’s mother quitclaimed her home to James. In January 1997, James conveyed a life estate to his mother and himself in his mother’s house, with a remainder interest to his son from a previous marriage, James Zongas, Jr. Susan did not sign the quitclaim deed. James signed the conveyance indicating the property was his `separate estate.’ Clerk’s Papers at 35 (capitals omitted). The trial court found that the conveyance of the life estate in the house to James and his mother, with the remainder to James Jr., was a community gift.
In 1992, Susan and James signed a contract with Charles Woolley to develop a parcel of Woolley’s land into multiple duplex or single family lots. The contract called for James to finance and develop the property, then split the profits with Woolley. If the project resulted in a loss, James was responsible for the debt. At the time of trial, James had secured only a preliminary plat approval on the property. Susan testified she believed the contract to be worth $20,000. James and Woolley both placed a zero value on it. The trial court found that the contract had no value and awarded it to James. Susan and James separated in February 1997. Susan petitioned for dissolution of the marriage in August 1998. When the couple separated, Susan removed and cashed approximately $40,000 worth of cashier’s checks from the couple’s business. She also accumulated $61,000 in credit card debt after the separation. The trial court awarded James a $20,000 judgment to equalize the $40,000 in cashier’s checks that Susan took, and it characterized the $61,000 credit card debt as Susan’s separate liability.
Susan appeals portions of the trial court’s property valuation and distribution.
ANALYSIS Standard of Review
In a marriage dissolution action, all property, whether separate or community, is before the court for distribution. In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999). The trial court’s property distribution must be just and equitable. In re Marriage of Zahm, 138 Wn.2d 213, 218, 978 P.2d 498 (1999); RCW 26.09.080. The trial court’s determination of what is a fair and equitable property distribution does not require mathematical precision but rather fairness after full consideration of all the circumstances of the marriage. Zahm, 138 Wn.2d at 219. In distributing property as part of a marriage dissolution, the trial court has broad discretion. Brewer, 137 Wn.2d at 769. A trial court abuses its discretion when it bases its decision on untenable grounds. In re Marriage of Gillespie, 89 Wn. App. 390, 398-99, 948 P.2d 1338 (1997).
Conveyance of the House
Susan first contends that the trial court erred in finding that the conveyance of the house to James and his mother for life, with the remainder to James Jr., was a community gift.
A gift of community property must have the express or implied consent of both spouses. RCW 26.16.030(2);[3] In re Marriage of Schweitzer, 132 Wn.2d 318, 331, 937 P.2d 1062 (1997). James testified that he discussed the reconveyance of the property with Susan. Susan denied that he discussed it with her and testified that she only learned of the reconveyance in 1997. Apparently, the trial court believed that James discussed the reconveyance with Susan.
Generally, we defer to the trial court on credibility determinations.[4] But mere discussion does not establish implied consent to the gift of community property.[5] The trial court erred in finding that Susan impliedly consented to the gift. Nevertheless, because our review of the record discloses that the court would have made the same distribution, and because the distribution is fair and equitable, the error is harmless. See Gillespie, 89 Wn. App. at 399 (mischaracterization of property in a marriage dissolution proceeding may be reversible error, but is not grounds for setting aside a property distribution if it is fair and equitable).
Valuation of the Woolley Contract
Susan next contends that the trial court erred in assigning a zero value to the Woolley contract and awarding it to James. We review a trial court’s property valuation of property in a marriage dissolution for abuse of discretion. Gillespie, 89 Wn. App. at 403.
At trial, Susan testified that she believed the contract to be worth $20,000. She based this figure on her personal opinion and provided no other evidence to support that opinion. James testified that the contract had no value. In addition, Woolley, the property owner, testified that James had no financial stake in the property, could not sell it, and had only obtained a preliminary plat approval on it. Furthermore, the project viability required a substantial capital infusion.[6] If any profit was to be realized, it was years away. Here, the trial court, in its discretion, could have determined that placing any monetary value on the contract was too speculative.
Thus, the trial court did not abuse its discretion in assigning a zero value to the contract and awarding it to James, who still worked in the building trade.
Susan’s Post-separation Credit Card Debt
Susan next contends that the trial court erred in characterizing her $61,000 post-separation credit card debt as her separate responsibility. She asserts that the debt is community because she used the funds to live on after separation.
As noted, the trial court is in the best position to evaluate and divide the assets and liabilities in a marriage dissolution, and we review its decisions for abuse of discretion. Brewer, 137 Wn.2d at 769. Furthermore, the trial court may consider the `negatively productive conduct’ of the spouse responsible for depleting the marital assets, and it has discretion to assign a higher debt load to the wasteful spouse. In re Marriage of Williams, 84 Wn. App. 263, 270, 927 P.2d 679 (1996), review denied, 131 Wn.2d 1025 (1997) (quoting In re Clark 13 Wn. App. 805, 809, 538 P.2d 145, review denied, 86 Wn.2d 1001
(1975)). Here, Susan admitted that she accumulated the credit card debt after she left James. She claimed that the charges were to pay off bills and to defray her living expenses, such as prescription drugs. But she was unable to provide an accounting of her charges.
Moreover, she testified that she made hundreds of purchases from the QVC shopping network. There was no evidence that James knew about these charges or the accumulating credit card debt. Thus, the trial court properly characterized the credit card debt as Susan’s separate debt because of the wasteful manner in which she made the purchases after the separation and her inability to account for what she spent. The trial court did not abuse its discretion in doing so.
Money Judgment
Finally, Susan contends that the trial court erred in entering a $20,000 judgment against her. At trial, Susan admitted that she cashed $40,000[7] in cashier’s checks from the couple’s business account when she left James. She also does not deny leaving James a total of $4,000 to cover $6,000 in bills at the time of separation. She claimed that she used the $40,000 to live on after the couple’s separation.
The touchstone of a trial court’s property distribution in a marriage dissolution is that it is just and equitable. RCW 26.09.080; Zahm, 138 Wn.2d at 218. Here, the $20,000 judgment against Susan reimburses James for his one-half of the $40,000 in cashier’s checks that Susan had taken. The trial court’s award is fair and reasonable under the circumstances and it did not abuse its discretion.
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: MORGAN, P.J., SEINFELD, J.
Neither spouse shall sell, convey, or encumber the community real property without the other spouse joining in the execution of the deed or other instrument by which the real estate is sold, conveyed, or encumbered, and such deed or other instrument must be acknowledged by both spouses.
RCW 26.16.030(3).