In Re The Marriage Of: Amber Hansen, Resp/cross-app v. Troy Edward Hansen, App/cross-resp

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of O 7n-:-' ) No. 73468-7-1 ''J-- AMBER HANSEN, ) (consolidated w/73860-7-1) co ';

:&•» 9J,n"' Respondent/ ) DIVISION ONE Cross-Appellant, up C>;/'

and ) UNPUBLISHED OPINION TROY EDWARD HANSEN, ) FILED: October 31, 2016 Appellant/ Cross-Respondent. ]

Becker, J. — Troy Hansen appeals from decisions regarding property division

and child support. Amber Hansen cross appeals from an order requiring the parties to

split equally the costs of postsecondary education for the children. We affirm.

Amber and Troy Hansen were married in 2001. They have two children, ages 12

and 7 at the time of the decree in April 2015. Throughout the marriage, Troy's income

was the family's primary source of support. He has owned and operated a bail bond

company since 1989. Amber did not work outside the home during the marriage.

According to undisputed findings of fact, she was financially dependent on Troy from the

time their relationship began several years prior to the marriage, when she was 17. No. 73468-7-1/2

In June 2013, Troy enlarged his business by purchasing a bail bond company in

another city. He funded this purchase in part by withdrawing $242,211 from retirement

accounts he shared with Amber. As a result of withdrawing retirement funds, the couple

incurred taxes and early withdrawal fees totaling $120,136.

Amber filed for divorce in October 2013. After a bench trial, the court determined

a 50/50 division of the couple's roughly $9 million estate was fair and equitable. Troy

was awarded the business and other assets and was ordered to make an equalizing

cash payment to Amber of $596,704. Maintenance was awarded to Amber at the rate

of $20,000 per month for 60 months. The court entered additional findings and orders

which included: Troy wasted community assets by withdrawing retirement funds; the

total value of the business includes the value of real property located in Kent,

designated as Troy's separate property; Troy must pay $4,000 per month in child

support; and the parties must equally split the costs of postsecondary education

support.

WASTE

When distributing property in a dissolution, a trial court may properly consider

one spouse's waste or concealment of assets. In re Marriage of Wallace, 111 Wn. App.

697, 708, 45 P.3d 1131, review denied, 148Wn.2d 1011 (2003). Washington courts

have characterized waste as "negatively productive conduct." In re Marriage of Clark,

13 Wn. App. 805, 808-09, 538 P.2d 145, review denied, 86 Wn.2d 1011 (1975). Waste

has also been characterized as "gross fiscal improvidence, the squandering of marital

assets, or. . . the deliberate and unnecessary incurring of tax liabilities." In re Marriage

of Steadman, 63 Wn. App. 523, 528, 821 P.2d 59 (1991). No. 73468-7-1/3

Here, the court treated the $120,136 in taxes and penalties for withdrawing

retirement funds as a "predistribution" to Troy of community assets. Half that amount,

or $60,068, was deducted from Troy's share of the 50/50 division of community assets.

The court made two findings in support of this decision. First, Troy "wasted community

assets by cashing out IRA accounts totaling $242,211 and incurring tax penalties

($24,221) and additional federal income tax ($95,915) and he should be charged with

the penalty and additional tax in the total amount of $120,136 as predistributions of

property to him." Finding of Fact 2.7(20). Second, due to Troy's "actions in

contemplation of divorce, the parties' estate has minimal liquid assets." Finding of Fact

2.11(11). Troy challenges both findings. He asks that the decree be remanded for

amendment of the findings and an order requiring Amber to reimburse the sum of

$60,068.

We will not disturb findings that are supported by substantial evidence. In re

Marriage of Rockwell. 141 Wn. App. 235, 242, 170 P.3d 572 (2007). review denied. 163

Wn.2d 1055 (2008). Substantial evidence is "'evidence of sufficient quantity to

persuade a fair-minded, rational person of the truth of the declared premise.'" In re

Marriage of Griswold. 112 Wn. App. 333, 339,48 P.3d 1018(2002) (Quoting Bering v.

SHARE, 106Wn.2d212, 220, 721 P.2d 918 (1995)). review denied, 148Wn.2d 1023

(2003).

The trial court heard testimony that Troy's decision to withdraw retirement funds

was prudent, despite the penalties incurred for liguidating a retirement account,

because it enabled him to expand his business by acquiring a new branch office. The

expected return on investment was higher than from the retirement account. On the No. 73468-7-1/4

other hand, the court heard testimony that the parties owned substantial unencumbered

property, suggesting that Troy could have financed the transaction from other sources

without incurring penalties. And Amber testified that although she agreed to the

withdrawal of retirement funds, she was unaware of the financial consequences.

The finding that Troy wasted assets refers to his decision to withdraw retirement

funds as a means of funding the purchase, not to his decision to make the purchase.

The court perceived that Troy's decision to liquidate the retirement accounts left the

community with few liquid assets at a time when divorce was contemplated. Initiation of

divorce proceedings is typically expensive for both parties. A shortage of ready cash

disadvantages the party who is not in control of the family income. The trial court could

reasonably view Troy's decision to incur tax liabilities as negatively productive conduct

in the context of its impact on the relative positions of the parties at the time the divorce

petition was filed.

We are unpersuaded by Troy's argument that Amber's agreement to the

liquidation of the retirement accounts precludes a finding of waste. A spouse's

acquiescence in the other's arguably wasteful spending is one factor that may be

relevant in analyzing whether waste occurred. See In re Marriage of Williams, 84 Wn.

App. 263, 270-71, 927 P.2d 679 (1996) (wife's gambling with husband's knowledge was

more like "entertainment costs" than "dissipation of assets"), review denied, 131 Wn.2d

1025 (1997). But acquiescence is not dispositive. It is not clear Amber truly understood

Troy's decision to withdraw retirement funds or had any ability to influence it.

The court heard testimony suggesting the couple's relationship was unstable

around the time the opportunity to acquire the branch office arose and Troy decided to No. 73468-7-1/5

take it. Amber testified that she and Troy separated in April 2013, then reconciled in

May 2013. Troy denied that his reason for the temporary reconciliation was that he

wanted or needed Amber's compliance with the transactions involved in the acquisition.

But the trial court was in the better position to weigh his testimony, not this court. In re

Marriage of Greene. 97 Wn. App. 708, 714, 986 P.2d 144 (1999). The finding that

Troy's actions caused the parties' estate to have minimal liquid assets and were in

contemplation of divorce was an available inference from the evidence presented.

On this record, we conclude that substantial evidence supports the challenged

findings regarding Troy's withdrawal of retirement funds.

SEPARATE PROPERTY

The trial court found that the bail bond company was community property with a

value of $2,890,000. The business, the court found, included property located in Kent

and valued at $170,000 with no encumbrance, "which is husband's separate property."

Finding of Fact 2.7(9)(q).

Troy contends the court erred by including the value of Troy's separate property

in the overall valuation of the company and that he should be reimbursed accordingly.

Reviewing for substantial evidence, Rockwell. 141 Wn. App. at 242, we conclude the

record supports the finding that the company's operations included the Kent property.

A trial court has broad discretion to distribute property in a dissolution based on

factors listed in RCW 26.09.080. In re Marriage of Wright. 179 Wn. App. 257, 261, 319

P.3d 45 (2013), review denied. 186 Wn.2d , 327 P.3d 54 (2014). "The court may

distribute all property, whether categorized as community or separate." Wright, 179 Wn.

App. at 261. The court acknowledged the inclusion of the separate Kent property in the No. 73468-7-1/6

valuation of community property. "With due consideration of the criteria set out in RCW

26.09.080, the distribution of property and liabilities as set forth in the decree is fair and

equitable regardless of the character of the property before the court and the husband's

separate property claims." Conclusion of Law 3.4. Troy has failed to demonstrate that

the trial court's division of property was not based on appropriate factors or otherwise

constituted an abuse of discretion. We conclude the court did not err by including the

value of the Kent property in the valuation of the bail bond business.

CHILD SUPPORT

Troy challenges the child support order requiring him to make a monthly transfer

payment of $4,000. We review child support obligations for an abuse of discretion, in

re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). A manifest abuse of

discretion occurs where the trial court's decision rests on untenable grounds. In re

Marriage of Zacapu. 192 Wn. App. 700, 705, 368 P.3d 242 (2016).

A statutory table establishes presumptive amounts of child support based on the

parents' combined monthly net income, up to $12,000. RCW 26.19.020. Under the

standard calculation, Troy's monthly transfer payment would have been $1,709. When

the parents' combined income is greater than $12,000, as it was in this case, a trial

court "may exceed the presumptive amount of support set for combined monthly net

incomes of twelve thousand dollars upon written findings of fact." RCW 26.19.065(3).

Cursory findings are inadequate. In re Marriage of McCausland, 159 Wn.2d 607, 620, 152 P.3d 1013 (2007). The court must consider, at a minimum, the parents' standard of

living and the children's needs. McCausland. 159 Wn.2d at 620-21. No. 73468-7-1/7

Troy contends comments made by the judge during the proceedings indicate a

lack of consideration of the McCausland factors. But what is relevant in determining

whether the court followed McCausland is the court's written findings, not the court's

oral comments. An "oral decision of the trial court which is inconsistent with its written

findings and conclusions may not be used to impeach such findings." In re Marriage of

Raskob. 183 Wn. App. 503, 519-20, 334 P.3d 30 (2014).

The court found four reasons for deviating from the standard calculation:

1. The parents' combined monthly income exceeds $12,000 per month. 2. The children's needs and the family's historical child-related expenses. 3. Tax planning 4. Wealth

Troy argues these findings are too cursory to satisfy the McCausland standard.

The court included "the children's needs" as one of its reasons for deviating from

the standard calculation. Another reason was "wealth," which implies the court

considered the parties' standard of living. And, in a different section, the court found the

"standard of living during the marriage was high." Finding of Fact 2.11(6). Amber's

reasonable monthly expenses were found to be $24,000, an amount that included

expenses related to the children. Finding of Fact 2.11(6). We conclude the findings,

although they are skimpy and somewhat vague, are adequate under McCausland; they

demonstrate the court based the deviation on appropriate factors.

Nor did the court abuse its discretion when it declined to reconsider the child

support order in view of an amendment to the decree adjusting the income figures in a

way that lessened the income disparity. Troy again relies on oral comments by the

judge, which as previously mentioned do not control this court's analysis. In the No. 73468-7-1/8

absence of persuasive argument demonstrating an abuse of discretion, we conclude the

court did not err by declining to reconsider its child support order.

POSTSECONDARY SUPPORT

Amber cross appeals the order requiring each party to bear 50 percent of the

costs of postsecondary support.

Child support obligations must be equitably apportioned between parents. RCW

26.19.001. Postsecondary educational support is child support, In re Marriage of

Daubert. 124 Wn. App. 483, 502, 99 P.3d 401 (2004), abrogated on other grounds by

McCausland, 159 Wn.2d 607 (2007), and it "must be apportioned according to the net

income of the parents." Daubert. 124 Wn. App. at 505. Troy's proportionate share of

the income is 66 percent and Amber's is 34 percent. Amber contends the court erred

by ordering them to share the cost egually.

If the facts support a deviation from the standard support obligation, the court

may also deviate from a proportionate allocation of extraordinary expenses. In re

Yeamans. 117 Wn. App. 593, 600, 72 P.3d 775 (2003); see ajso In re Marriage of

Casey, 88 Wn. App. 662, 667-68, 967 P.2d 982 (1997).

Amber argues against the application of Yeamans and Casey. She implies that a

disproportionate allocation of the responsibility for postsecondary support is equitable

only if it benefits the parent favored by the deviation from the basic support obligation. For example, in Casey, the trial court granted the mother a deviation from her basic

support obligation, reducing her obligation from $25 to zero. Casey. 88 Wn. App. at

665, 667. The father was required to pay 100 percent of the children's transportation

costs and extraordinary health care expenses, even though his income constituted only No. 73468-7-1/9

90 percent of the parties' combined income. Casey, 88 Wn. App. at 667-68. Here, on

the other hand, the deviation from the standard child support obligation favors Amber,

but the disproportionate allocation of postsecondary support favors Troy.

The trial court did not err. The standard is abuse of discretion, whether the

deviation is supported by poverty or by wealth. Because the trial court deviated from

the basic support obligation (increasing Troy's obligation from $1,709 to $4,000), the

court had discretion to deviate from a proportionate allocation of postsecondary support.

The property distribution leaves Amber with considerable wealth. When each child is

old enough to undertake postsecondary education, Amber's household expenses may

diminish. The record reflects that there is an account in the children's names with a

balance of over $100,000, and these funds are intended to go towards college tuition.

Under these circumstances, equal sharing of college costs is not inequitable and not an

abuse of discretion.

ATTORNEY FEES

At trial, the court awarded Amber $75,000 in attorney fees based primarily on

Troy's intransigence throughout the trial proceedings. The court found the award

represented the amount Amber's fees were needlessly increased and also recognized

Amber's need to have her attorney fees paid and Troy's ability to pay.

Amber requests an award of attorney fees on appeal. Under RCW 26.09.140,

our discretion to award fees is guided by the relative resources of the parties and the

merits of their positions on appeal. Troy has not been intransigent in this appeal and

the issues he has raised are not frivolous. Amber has substantial wealth, including

income-producing assets. We decline to grant Amber's request for fees on appeal. No. 73468-7-1/10

Affirmed.

Sgjcgg, WE CONCUR: u

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