Filed Washington State Court of Appeals Division Two
December 29, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II In re the Matter of the Marriage of No. 46706-2-II
ELIZABETH A. ROBBINS,
Respondent,
and
SAMUEL F. VALDEZ, UNPUBLISHED OPINION
Appellant.
JOHANSON, C.J. — Samuel Valdez appeals from the trial court’s decree dissolving his
marriage to Elizabeth Robbins. First, Valdez argues that the trial court abused its discretion when
it awarded Robbins one of the parties’ real properties based on the property’s tax assessed value.
Valdez failed to preserve this argument for review and he invited any alleged error. And even if
the merits of his argument are reached, the trial court’s property valuation was not an abuse of
discretion. Second, Valdez argues that the trial court failed to make a fair and equitable division
of the marital property. But the trial court properly acted within its broad discretion. Accordingly,
the trial court’s orders are affirmed. No. 46706-2-II
FACTS
I. BACKGROUND
Robbins and Valdez entered their marriage with significant separate property. During the
marriage, they accumulated substantial community property and contributed their labor and funds
to each other’s separate property. Specifically, the parties acquired a five-acre land parcel at 1554
Altoona Pillar Rock Road, Rosburg (1554 property). In 2010, the parties entered an agreement
(the Bruneau Agreement) with Tom and Maryanne Bruneau to eventually sell the 1554 property
for $250,000. In October 2012, the parties separated following a 10-year marriage. After the
parties’ separation, Valdez negotiated a tax assessed value of $130,000 for the 1554 property.
II. TRIAL
In June 2014, the parties appeared for a three-day dissolution of marriage trial. Regarding
the 1554 property, Robbins testified that the Bruneaus intended to forfeit the property under the
agreement because they could not afford to buy it for $250,000. If Robbins was awarded the
property she would sell it to the Bruneaus for the $130,000 tax assessed value. Robbins entered
the 2013-2014 tax assessment into evidence with no objection from Valdez.1
In contrast, Valdez testified that the 1554 property was worth $250,000. He could not
remember the Bruneau Agreement’s terms nor did he enter the agreement into evidence.2 Valdez
1 The parties agreed “to the admissibility of” documents detailing the tax assessed values of the parties’ real property holdings. 2 Report of Proceedings at 288. 2 Although the Bruneau Agreement was never admitted at trial, both parties cited to it in their briefs. The Agreement appears in the Clerk’s Papers because it was submitted on a pretrial motion within the sealed financial records. Without its admission at trial there is no indication the trial court considered it.
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also referred to the Bruneau Agreement alternatingly as a “contract” and an “earnest money
agreement” and stated he collected $1,000 per month from the Bruneaus which his counsel referred
to as “rent.” 3 Report of Proceedings (RP) at 394-95. Valdez acknowledged the Bruneaus’
possible forfeiture of the agreement. Throughout trial, Valdez’s arguments directed the court to
consider the value of the “property.” Finally, in his closing, Valdez asserted that “all the parties
agree [the 1554 property is not] worth what the contract indicated the value was” and he asked to
be awarded the property. 3 RP at 512.
III. FINDINGS OF FACT AND DISSOLUTION DECREE
Although Valdez asserted that the parties entered the marriage with close to equal
contributions, the trial court found this was not supported by the evidence. The trial court
determined that overall, Robbins’s testimony was more credible than Valdez’s and largely adopted
Robbins’s tracing to characterize the ownership of the properties. Regarding the 1554 property,
the court found, “The land was sold to Hall/Brunneau [sic] for $250,000.00. Valdez obtained a
revaluation to $130,000.00 as to the land and argued for the $130,000.00 value to be adopted by
the court. The court awards this property value to Robbins.” Clerk’s Papers (CP) at 110.
The dissolution decree awarded each party their separate property, valued their community
property at $640,981, and ordered an equal division. Valdez received property valued at $432,136
and Robbins received property valued at $208,847. The trial court ordered Valdez to pay Robbins
an equalizing award of $111,645. The trial court also compensated the community for work
performed on the parties’ separate properties and rejected Valdez’s request for an additional award
based on equity.
The parties’ marriage was dissolved in September 2014. Valdez appeals.
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ANALYSIS
I. THE 1554 PROPERTY
Valdez argues that the trial court abused its discretion by awarding to Robbins the 1554
property at its taxed assessed value rather than awarding her the Bruneau Agreement as personal
property valued at $245,000—the amount Valdez stated was left owing on the agreement at the
time of trial. Valdez waived this claim and invited any alleged error with respect to it, precluding
review. But even if the merits are reached, substantial evidence supports the trial court’s valuation
of the real property at $130,000.
A. VALDEZ WAIVED HIS CLAIM
Robbins argues that Valdez failed to argue at trial that the community asset was the
Bruneau Agreement and not the real property itself and, thus, this claim cannot be considered on
appeal pursuant to RAP 2.5(a). Robbins is correct.
Under to RAP 2.5(a), we do not review any issue, theory, argument, or claim of error not
presented at the trial court level. Lindblad v. Boeing Co., 108 Wn. App. 198, 207, 31 P.3d 1 (2001).
We avoid such review in order to encourage trial court correction of alleged errors and to avoid
unnecessary appeals. Demelash v. Ross Stores, Inc., 105 Wn. App. 508, 527, 20 P.3d 447 (2001).
As Robbins correctly asserts, Valdez never claimed at trial that the parties’ only community
interest in the 1554 property was the Bruneau Agreement, not in the land itself. Indeed, he never
presented a copy of the Bruneau Agreement to the trial court and stated he was not certain of its
terms. Valdez’s arguments focused on the value of the “property” asset, not an alleged community
asset of a purchase and sale agreement Valdez advocates for now. And during closing, Valdez
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argued he should be awarded the real property, not the agreement. Because Valdez raised this
claim for the first time on appeal, he has waived it.
B. VALDEZ INVITED ERROR
Robbins also claims that because Valdez argued for an award of the real property
throughout trial, Valdez invited error with respect to his claim that the trial court abused its
discretion in awarding the 1554 property at a value of $130,000. Again, Robbins is correct.
The doctrine of invited error precludes review when the appellant induces the trial court to
take the action to which error is assigned on appeal. In re Dependency of K.R., 128 Wn.2d 129,
147, 904 P.2d 1132 (1995).
Valdez induced the trial court to consider awarding the real property when, throughout
trial, his arguments directed the court to consider the value of the “property” and not a personal
property interest in the Bruneau Agreement. Additionally, at closing, Valdez asked to be awarded
the property itself, not the agreement as personal property, and he conceded that “all the parties
agree [the 1554 property is] not worth what the contract indicated the value was.” 3 RP at 511-
12.
Valdez undermined the ongoing validity of the Bruneau Agreement, thus inducing the trial
court to disregard it and its valuation in favor of the recent, valid tax assessment. He did so by
acknowledging the Bruneaus may forfeit the contract when he stated, “No matter what happens on
this contract, I have no intentions of seeing them leave. I’m quite confident we will work
something out.” 3 RP at 396. This sentiment about the tenuous nature of the contract and his
commitment to “work something out” was clearly counter to a request to award the agreement at
its reported face value.
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Valdez invited the trial court to award the real property and assign value to the property at
less than $250,000. Valdez’s claim that the trial court erred by awarding the real property, valued
at $130,000, is invited error and he is not entitled to review.
C. SUBSTANTIAL EVIDENCE SUPPORTS THE 1554 PROPERTY VALUATION
Valdez argues that the value of the Bruneau Agreement was the $245,000 in principal owed
under the agreement and that the tax-assessed value had no relevance. Even if Valdez’s claim that
the trial court abused its discretion when it awarded the 1554 property at a value of $130,000 is
considered on the merits, the claim still fails.
Trial courts have broad discretion in distributing property and liabilities in marriage
dissolution proceedings. See RCW 26.09.080. RCW 26.09.080 requires that property divisions
be just and equitable following a consideration of relevant statutory factors including 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.
We review the trial court’s dissolution orders, including property division, for abuse of
discretion. In re Marriage of Buchanan, 150 Wn. App. 730, 735, 207 P.3d 478 (2009). A trial
court abuses its discretion when its decision is manifestly unreasonable or based on untenable
grounds or reasons. In re Marriage of Fiorito, 112 Wn. App. 657, 663-64, 50 P.3d 298 (2002).
A trial court may assign values to property so long as the value is within the range of
evidence presented. See In re Marriage of Soriano, 31 Wn. App. 432, 435, 643 P.2d 450 (1982).
A trial court may have substantial evidence for properly placing a value on a property where the
trial court considers greater and/or lesser values placed on the property by different witnesses. In
re Marriage of Sedlock, 69 Wn. App. 484, 491, 849 P.2d 1243 (1993). Evidence is substantial if
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it exists in sufficient quantum to persuade a fair-minded person of the truth of the declared premise.
In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).
An owner may testify as to his property’s value and the weight to be given to that testimony
is left to the trier of fact. Worthington v. Worthington, 73 Wn.2d 759, 763, 440 P.2d 478 (1968).
It does not matter if other evidence contradicts the value decided by the trial court since credibility
determinations are left to the trier of fact and are not subject to review. Burrill, 113 Wn. App. at
868. The record is reviewed in the light most favorable to the party in whose favor the findings
were entered when determining whether substantial evidence supports the trial court’s finding of
fact on the value of an asset. In re Marriage of Gillespie, 89 Wn. App. 390, 404, 948 P.2d 1338
(1997). Unchallenged findings of fact are verities on appeal. Humphrey Indus., Ltd. v. Clay St.
Assocs., LLC, 176 Wn.2d 662, 675, 295 P.3d 231 (2013).
Because the emotional and financial interests affected by appeals of marriage dissolution
decrees are best served by finality, trial court decisions in such proceedings are rarely changed on
appeal. In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985); Buchanan, 150 Wn.
App. at 735. Thus, we affirm a trial court’s decision unless no reasonable judge would have
reached the same conclusion. Landry, 103 Wn.2d at 809-10.
To support his claim, Valdez relies solely on Freeborn v. Seattle Trust & Savings Bank, 94
Wn.2d 336, 340, 617 P.2d 424 (1980). In Freeborn, the court held that a vendor’s interest in a
real estate contract is personal property: “Washington case law supports the conclusion that the
right to receive contract payments under a contract for the sale of real property is personal
property.” 94 Wn.2d at 340. However, this case is distinguishable from Freeborn. 94 Wn.2d at
340. Here, as stated above, no contract was entered into evidence and Valdez called the
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arrangement with the Bruneaus an “earnest money agreement” with “rent” payments, rather than
contract payments under a sale of real property as in Freeborn. 3 RP at 394-95. Thus, Valdez
failed to establish that he had the right to receive payments under a contract for the sale of the
property.
The evidence presented at trial supports the court’s award of the real property and valuation
at $130,000. First, the 2013-2014 tax assessment of the 1554 property valued the property at
$130,000. Second, the Bruneau Agreement was never entered into evidence so its precise terms
were not before the trial court. Third, the trial court considered both parties’ testimony with respect
to their wishes to be awarded the property, the property’s value, and specifically Robbins’s belief
that the Bruneaus would forfeit the existing agreement leading her to rewrite it for $130,000, and
the trial court found Robbins more credible.
Finally, in regards to the 1554 property, the court found that “[t]he land was sold to
Hall/Brunneau [sic] for $250,000. Valdez obtained a revaluation to $130,000.00 as to the land and
argued for the $130,000.00 value to be adopted by the court. The court awards this property value
to Robbins.” CP at 110. Valdez does not challenge this finding on appeal and, thus, it is a verity.
Humphrey Indus., 176 Wn.2d at 675.
The trial court considered the values advocated by the parties and then properly used its
discretion to assign the 1554 property’s value at $130,000. Sedlock, 69 Wn. App. at 491. Any
reasonable trial court could have decided to award the real property at a value based on the tax
assessment. Landry, 103 Wn.2d at 809-10. The trial court’s award of the real property and its
valuation was supported by substantial evidence, was not an abuse of discretion, and is affirmed.
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II. THE EQUALIZING AWARD
Valdez contends the equalizing award was inequitable and decided in error. He supports
his contentions with three arguments, each of which are addressed in turn. His contentions fail
because the trial court properly exercised its discretion.
A. THE TRIAL COURT CONSIDERED THE MARITAL ASSETS AS A WHOLE
First, Valdez argues that the memoranda of decision and the final decree do not show that
the trial court considered the marital assets as a whole when it awarded the equalizing judgment.
This argument is unpersuasive.
In the decree, the trial court included an asset chart that documents all of the parties’ real
and personal property, community and separate, including reimbursements to Robbins. The
decree’s asset chart includes the trial court’s determined values for each community asset and the
trial court’s notes from trial. The chart documents how the trial court determined the total value
of the community assets and the amount of the equalizing award. In its five-page memoranda of
decision, the trial court demonstrates that it made a reasonable property distribution after
considering all of the parties’ assets. The trial court found Robbins’s testimony more credible and
used her spreadsheet as a “go-by.” CP at 106. The trial court also explains what of the party’s
claims and assessed values it adopted and why, regarding the many properties at issue.3
The court’s decision was not based on manifestly unreasonable or untenable grounds, but
was a proper evaluation of the facts before it under RCW 26.09.080. Fiorito, 112 Wn. App. at
3 Among the assets and claims discussed in the memoranda of decision are the parties’ property at 1198 Altoona Pillar Rock Road; Valdez’s equity relief claim, claim for maintenance, and claim that Robbins induced him to prematurely draw from his worker’s employment and retirement plan; estimates of work contributed by the parties to Robbins’s cabin; and the parties’ stock and loans, among others. 9 No. 46706-2-II
663-64. The decree and memoranda of decision lay out the whole of the parties’ properties and
assets and supports the conclusion that the trial court considered all of the parties’ assets when it
made the property division and awarded the equalizing payment to Robbins.
B. THE TRIAL COURT ACTED WITHIN ITS BROAD DISCRETION
Second, Valdez argues that the trial court abused its discretion when it distributed property
based on each spouse’s connections to the property and ignored his counsel’s suggested property
division. This argument fails.
The trial court’s “broad discretion” to determine what is equitable and just in a dissolution
requires the court to consider not only the nature and extent of the community property, but also
all relevant factors. In re Marriage of Larson & Calhoun, 178 Wn. App. 133, 137-38, 313 P.3d
1228 (2013), review denied, 180 Wn.2d 1011 (2014). A trial court abuses its discretion when its
decision is manifestly unreasonable or based on untenable grounds or reasons. Fiorito, 112 Wn.
App. at 663-64.
We decline to reach Valdez’s contentions because he fails to support them with authority
or argument. RAP 10.3; Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d
549 (1992) (holding an assignment of error will be waived where there is no supporting authority
or argument). Valdez cites to no authority that a trial court abuses its broad discretion when it
awards property after considering each party’s connection to the property and when it declines to
follow one party’s suggested division of property. Further, Valdez makes no argument why such
considerations would amount to an abuse of discretion. His contentions are waived under RAP
10.3 and Cowiche Caynon. 118 Wn.2d at 809.
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However, even if not waived, the trial court properly exercised its broad discretion to
consider the parties’ connections to the assets and to reject Valdez’s suggested division of the
property and instead to award the property based on the evidence before it.
C. THE EQUALIZING AWARD DID NOT RESULT IN A PATENT ECONOMIC DISPARITY
Valdez argues that the equalizing award of $111,645 is “crushing” and claims that a
manifest abuse of discretion has occurred where a decree results in a patent disparity between the
parties’ economic circumstances. Br. of Appellant at 12. Again, this argument fails.
To support his contention that the equalizing payment was crushing, Valdez points solely
to the fact that the equalizing judgment is over 17 percent of the total value of the community
property. But he cites no authority to support his contention and makes no argument why this
award results in a patent disparity between the parties’ economic circumstances.
Robbins responds by citing to several authorities which affirmed the award of an equalizing
judgment, including In re Marriage of Wright, 179 Wn. App. 257, 319 P.3d 45 (2013), review
denied, 180 Wn.2d 1019 (2014). In Wright, a trial court’s division of property awarding more
tangible and liquid assets to one party where the property division accommodated the other party’s
request for specific high-value items was not an abuse of discretion. 179 Wn. App. at 263.
Division One of this court found there was no abuse of discretion where the wife was awarded
$3,369,196 more than her husband given that with his projected earnings after the dissolution, he
would ultimately end up with $2.7 million more than the wife, and given the trial court’s grant of
his requests during dissolution. Wright, 179 Wn. App. at 262-63.
Here, the equalizing judgment of $111,645 created only a $1.00 imbalance between the
parties as opposed to $3,369,196 in Wright. 179 Wn. App. at 262-63. The trial court here awarded
11 No. 46706-2-II
the husband many of the high-value assets he requested including a community property in
Cathlamet, Washington that Mr. Valdez extensively excavated, his boat, and his airplane, and also
found he is a “very skilled individual who has the ability to find work in his field of construction
or real estate investments.” CP at 107. Although the practical effect of the equalizing award may
be that Valdez must sell some of his real property or other assets, or work to pay the award, he has
not met his heavy burden to show the trial court’s decision represents a manifest abuse of
discretion.
The trial court considered the overall distribution and found that “[t]he distribution of
property and liabilities as set forth in the decree is fair and equitable.” CP at 123. Valdez does
not challenge this finding on appeal and, thus, it is a verity. Humphrey Indus., 176 Wn.2d at 675.
In conclusion, Valdez’s arguments are all belied by the record and unsupported by the law.
The trial court properly reviewed the overall distribution of community property within its broad
discretion, and the trial court’s award was not based on untenable grounds and did not result in
patent economic disparity between the parties.
III. ATTORNEY FEES
Robbins requests attorney fees because Valdez’s appeal is frivolous under RAP 18.9(a),
RAP 18.1, and In re Marriage of Healy, 35 Wn. App. 402, 406, 667 P.2d 114 (1983). Valdez
argues attorney fees should not be awarded to Robbins because they were not awarded below and
there has been no showing of need or of his ability to pay. We agree with Robbins.
RAP 18.1(a) states a party must request fees in the manner provided by the rule that
grants the party the right to recover attorney fees. Under RAP 18.9(a), on motion of a party, we
may order a party who files a frivolous appeal to pay terms or compensatory damages to the other
12 No. 46706-2-II
party if harmed by the appeal. In Healy, a father appealed his child support payment to reduce it
by one-half without any factual or legal support for the reduction such that the court found the
issues presented were “so devoid of merit that there is no reasonable possibility of reversal,”
making the appeal frivolous. 35 Wn. App. at 406.
As in Healy, Valdez’s arguments regarding the 1554 property and the equalizing award
lacked factual or legal support, and his appeal regarding these issues was frivolous. Valdez failed
to preserve his arguments related to the 1554 property and invited any alleged error. Valdez also
did not provide support for his contention that the trial court abused its broad discretion by
awarding an equalizing judgment to Robbins.
Finally, Robbins was harmed by the frivolous appeal under RAP 18.9(a), given that she
had to pay to respond to the appeal. We reject Valdez’s contentions that because attorney fees
were not awarded below and because Robbins did not make a showing of need or his ability to
pay, fees should not be awarded now because he fails to support those contentions with any
authority or argument. RAP 10.3; Cowiche Canyon, 118 Wn.2d at 809. Valdez cites to no
authority that an appeals court may not award attorney fees if the trial court did not do so. Finally,
RAP 18.9(a) does not require that Robbins make a showing of need or of Valdez’s ability to pay;
she need only show that he brought a frivolous appeal. Because Robbins incurred fees in
responding to this frivolous appeal, Robbins is entitled to attorney fees under RAP 18.9(a), RAP
18.1, and Healy, 35 Wn. App at 405-06.
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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 in accordance with RCW 2.06.040,
it is so ordered.
JOHANSON, C.J. We concur:
WORSWICK, J.
MAXA, J.