NIEMELA v. KALKWARF, 126 Wn. App. 1014 (2005)

No. 53484-0-IThe Court of Appeals of Washington, Division One.
Filed: March 7, 2005 UNPUBLISHED OPINION

Appeal from Superior Court of Whatcom County. Docket No. 01-2-01860-1. Judgment or order under review. Date filed: 11/07/2003. Judge signing: Hon. David a Nichols.

Counsel for Appellant(s), Edward L. Hubbard, Attorney at Law, 603 Garden Dr, Lynden, WA 98264-6405.

John a Meenk, Attorney at Law, 119 7th St, Lynden, WA 98264-1346.

Counsel for Respondent(s), Betsy Brinson, Nelson Brinson Thigpen Fryer PS, 1811 C St, Bellingham, WA 98225-4017.

Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.

KENNEDY, J.

Patricia Niemela appeals the mid-trial dismissal of her complaint for equitable relief based on her claim that she lived in a meretricious relationship with Clarence Adderley. Because the record does not adequately explain the trial court’s reasoning or otherwise reflect the court’s consideration of the necessary factors to rule on the motion, we vacate the dismissal and remand.

Niemela began an intimate relationship with Adderley in 1982. In 1987, Adderley purchased a house in which he intended to reside with Niemela. They did so until 2001. After the couple stopped living together, Niemela filed a complaint for an equitable division of property. Before trial, Adderley died and his daughter Vera Kalkwarf took up defense of the suit as the personal representative of his estate. Kalkwarf brought a CR 41 (b)(3) motion to dismiss at the conclusion of Niemela’s case. The court granted the motion and later entered, with a few changes, Kalkwarf’s proposed findings of fact and conclusions of law. Niemela appeals, contending that she had presented sufficient evidence of a meretricious relationship to avoid a mid-trial dismissal.

A meretricious relationship is a “`stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist.” In re Marriage of Pennington, 142 Wn.2d 592, 601, 14 P.3d 764 (2000), quoting Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995). To determine whether such a relationship exists, our Supreme Court has directed courts to consider five factors: (1) continuous cohabitation; (2) duration of the relationship; (3) purpose of the relationship; (4) pooling of resources and services for joint projects; and (5) intent of the parties. Pennington, 142 Wn.2d at 601, citing Connell, 127 Wn.2d at 346. The list of Connell factors is neither exclusive nor hypertechnical. Pennington, 142 Wn.2d at 602. Ultimately, a court decides whether a meretricious relationship exists on a case-by case basis. Id. The parties disagree about the correct standard of review. Niemela argues that review is de novo because the trial court failed to apply the Connell factors properly and erroneously ruled as a matter of law that she failed to produce evidence from which a rational trier of fact could conclude that a meretricious relationship existed. She contends that the trial court must be reversed because she produced evidence that, if believed, could have supported such a conclusion. See McLanahan v. Farmers Ins. Co. of Washington, 66 Wn. App. 36, 39, 831 P.2d 160 (1992) citing 4 Lewis Orland, Wash. Prac., Rules Practice sec. 5502, at 243-44 (3d ed. 1983).[1]

Kalkwarf, on the other hand, contends that this court must apply a deferential standard and affirm if any reasonable view supports the trial court’s ultimate determination to grant the dismissal. Kalkwarf, therefore, does not address all of Niemela’s specific arguments and takes the position that it was not necessary for the trial court to address all of the Connell factors because the court reached the same conclusion as the Supreme Court did in Pennington.

When a court grants a CR 41(b)(3) motion to dismiss at the conclusion of the plaintiff’s case in a bench trial, it may grant the motion either as a matter of law or a matter of fact. Enterprise Timber, Inc. v. Washington Title Ins. Co., 76 Wn.2d 479, 457 P.2d 600 (1969).

When the trial court rules as a matter of law, it must treat the plaintiff’s evidence as true and determine that the plaintiff has failed to establish a prima facie case. No findings of fact are necessary or required. Alternatively, when the trial court rules as a matter of fact, it may weigh the evidence in support of plaintiff’s case and make “a factual determination that plaintiff has failed to establish a prima facie case by credible evidence, or that the credible evidence establishes facts which preclude plaintiff’s recovery.”

Roy v. Goerz, 26 Wn. App. 807, 810, 614 P.2d 1308 (1980), overruled on other grounds by Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984), quoting in part N. Fiorito Co. v. State, 69 Wn.2d 616, 618, 419 P.2d 586 (1966). The Roy court observed that it is frequently difficult to discern in which of the two ways the trial court proceeded. 26 Wn. App. at 810. Such is the case here.

The court’s written ruling does not indicate which type of dismissal the court granted. The entry of factual findings in itself generally can be taken as an indication that the court ruled in fact rather than in law. Roy, 26 Wn. App. at 810. But the ruling fails to resolve disputed facts, and some of the language in the trial court’s written ruling suggests the court was ruling in law.[2] When there is doubt as to whether the trial court ruled in fact or in law, it is appropriate to consider the trial court’s oral opinion. Id. at 811. Here, the oral ruling and other parts of the record also at least suggest that the court was ruling as a matter of law rather than fact.[3]

Although Kalkwarf cites several cases supporting the proposition that rulings on CrR 41(b) motions are reviewed deferentially, those opinions involve only the kind of CrR 41(b)(3) ruling in which the court rules as a matter of fact. The language Kalkwarf quotes is merely another way of stating the deferential test to use in reviewing findings for substantial evidence when the court ruled as a matter of fact. See Yates v. State Board for Community College Educ., 54 Wn. App. 170, 174, 773 P.2d 89 (1989); Lillig v. Becton-Dickinson, 105 Wn.2d 653, 659-60, 717 P.2d 1371 (1986). But the problem here is that we cannot determine from this record whether the court was ruling as a matter of fact or a matter of law. Our Supreme Court has stated that bench trial findings in a civil case should at least apprise the appellate court of `what questions the trial court decided and the theory for the decision.’ Backlund v. University of Washington, 137 Wn.2d 651, 657 n. 1, 975 P.2d 950 (1999). Here, because we cannot discern the theory behind the trial court’s decision, we cannot determine the correct standard of review. Remand is required.

Moreover, because the trial court did not expressly address all of the Connell factors and did not expressly answer the question of whether Niemela and Adderley lived in a quasi-marital meretricious relationship, even if we assumed that the trial court granted Kalkwarf’s motion as a matter of fact rather than law, the findings are inadequate for review. This insufficiency is demonstrated by the parties’ briefing as to disputed factual issues the trial court did not resolve. For example, Niemela contends that she and Adderley shared an intimate physical relationship for most of the almost 20 years that they lived together. Kalkwarf, on the other hand, contends that after the couple moved into the house they were never intimate. Each party cites to different parts of the record and would have this court draw competing inferences from the evidence to support their characterization. But resolving such disputes is a function of the trial court, not this court.[4] And contrary to Kalkwarf’s contention, the trial court never resolved the dispute by finding that Niemela or her witnesses were not credible.

Regarding the appropriate remedy, Niemela contends that the oral and written findings demonstrate that the trial court failed to apply the proper law. She points out that the court appeared to rely exclusively on the sole factor of the extent to which the couple had pooled resources, which arguably conflicts with the Pennington court’s directive that `[o]ne Connell factor is not more important than another.’ 142 Wn.2d at 605.[5] Niemela requests that we reverse the order of dismissal and remand with direction to the trial court to proceed to the defense case. See Lonsdale v. Chesterfield, 91 Wn.2d 189, 588 P.2d 217 (1978).

But we conclude that the appropriate resolution is a remand for reconsideration of the motion to dismiss based upon express consideration of all of the Connell factors. If, upon reconsideration, the court determines that dismissal is not appropriate, the court will proceed to the defense case. If the court determines as a matter of law that it should dismiss because no reasonable finder of fact could conclude that a meretricious relationship existed, then no other findings are necessary. And if the court determines that Niemela’s case fails as a matter of fact, then findings should be entered resolving factual disputes and reflecting consideration of each of the Connell factors and any other considerations necessary to determine whether Niemela and Adderley shared a marital-like relationship. See Pennington, 142 Wn.2d at 602 (consideration of the five Connell factors meant to reach all relevant evidence helpful in establishing whether a meretricious relationship exists).

The order of dismissal is vacated and the case remanded for further proceedings consistent with this opinion.

APPELWICK and AGID, JJ., concur.