In Re The Marriage Of: Gregory William Shewring, App. And Cynthia Diane Blackshear, Res.

• Court: Court of Appeals of Washington
• Decided: September 23, 2019
• Docket: 78617-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of: No. 78617-2-I GREGORY WILLIAM SHEWRING, DIVISION ONE Appellant, UNPUBLISHED OPINION and

CYNTHIA DIANE BLACKSHEAR, FILED: September 23, 2019 Respondent.

SMITH, J. — In a dissolution proceeding, a trial court has broad discretion

to distribute marital property and award maintenance so as to leave the parties in

roughly equal financial positions. Gregory Shewring challenges the court’s

distribution of property and award of maintenance, asserting that these decisions

were based on impermissible considerations, erroneous calculations, and

resulted in an inequitable division of property. But because he fails to

demonstrate a manifest abuse of discretion, we affirm.

FACTS

Gregory Shewring and Cynthia Blackshear began living together in 2001

and married in 2004. After a relationship of approximately 15 years, Shewring

filed a petition to dissolve the marriage in April 2016. Blackshear moved out of

the parties’ home. During the relationship, the parties bought and sold multiple

residences and lived in various parts of the country. When they separated in No. 78617-2-l12

2016, they were living on Whidbey Island in a home they purchased a couple of

years earlier.

At the time of trial in February 2018, both Shewring and Blackshear were

67 years old and retired. Shewring remained in the Whidbey Island home.

Blackshear resided in a rented apartment in Mason County, Washington.

Shewring had several sources of retirement income, including a police

pension, veteran’s disability income, and an army reserve pension. The court

determined that, as of December 2016, Shewring received a total monthly

income of more than $7,500 from these sources and his income had likely

increased since then due to cost of living adjustments. Shewring claimed

expenses of approximately $4,370, which left him with more than $3,000 per

month of disposable income.

Blackshear, on the other hand, received less than $2,000 in monthly net

income, primarily from Social Security. She was also receiving monthly

payments of $424 on a five-year promissory note, resulting from the sale of a

property near Shelton, Washington in 2015. Blackshear’s claimed monthly

expenses were approximately $4,500. Shewring did not pay spousal support to

Blackshear during the period of nearly two years while the dissolution was

pending.

Pretrial, Shewring argued that the court should award a larger share of the

community assets to him, including the Whidbey Island home. Shewring

contended that Blackshear had no need for postdissolution support. Blackshear

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also requested more than 50 percent of the community property, as well as

lifetime maintenance of at least $2,500 per month.

The court valued the parties’ assets in accordance with Shewring’s pretrial

affidavit and awarded the parties’ major asset, the marital home, to him.1 The

court awarded community assets to Shewring with a total net value of $60,000,

more than the value of assets awarded to Blackshear.2 In addition, the court

awarded all of the parties’ personal property to Shewring and assigned a value of

$15,000 to that property.3 Considering the $75,000 difference between the value

of the community property assets awarded to Shewring and those awarded to

Blackshear, the court observed that equalizing the community property awards

would require a $37,500 transfer payment to Blackshear. However, the court

concluded that it was not practical to order a transfer payment under the

circumstances, and instead, it would consider the unequal property distribution in

determining the amount and length of maintenance. The court explained:

Assuming that the community estate is divided equally, as I believe Ms. Blackshear agreed would be appropriate in her closing argument assuming the Court awards appropriate maintenance, a transfer payment would be necessary from Mr. Shewring to Ms. Blackshear in the sum of $37,524.

It is not practical under the facts of this case for Mr. Shewring to pay this sum to Ms. Blackshear so the Court has decided to take this into account in the maintenance award. Of

1 The court accepted the appraised value of the home, in accordance with Shewring’s pretrial affidavit, rejecting his assertion that the appraised value was inflated and less accurate than the tax assessed value. 2 Blackshear deposited inherited funds into a separate bank account

during the marriage and the court awarded that account to her as separate property. ~ Both parties assigned a value of more than $28,000 to the personal property.

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course, the Court’s property and debt division and the maintenance award should be considered as a whole and they should be considered in relation to each other.

With respect to maintenance, the court noted there could be no “starker

contrast” in the parties’ respective positions. The court stated that there was no

doubt that maintenance should be awarded and not to award maintenance, as

advocated by Shewring, would amount to a “clear abuse of discretion.” The court

identified the issues to be resolved as the amount and duration of maintenance.

The court discussed the statutory factors under RCW 26.09.090 and

pertinent standards under controlling case law. The court noted that Shewring

had “substantial” financial resources exceeding his expenses, whereas

Blackshear would have a “difficult time” meeting her needs without maintenance,

given her financial resources. Moreover, the court determined that due to her

age and health condition, it was not realistic to believe that Blackshear would be

able to earn income to equalize the parties’ resources. The court further

considered the parties’ “middle class standard of living” and “mid-range” length of

the relationship. Finally, the court determined that Mr. Shewring had financial

resources that would allow him to meet his own needs and pay maintenance,

noting that Shewring’s income had likely risen since the documentation of his

income was more than a year out of date.

In addition to these factors and the value of community property allocated

to each party, the court considered the relative value of the parties’ pre

relationship assets. The testimony established that when the parties began living

together, Shewring had poor credit and virtually no assets, whereas Blackshear

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owned a home and a sailboat, and was employed full time. At the time of the

marriage, she had approximately $50,000 in savings. By 2004, Blackshear had

sold her Texas home and the boat and used the proceeds to purchase homes in

Florida and Washington. The court concluded there was a difference of

approximateiy $74,000 in the value of assets the parties brought into the

relationship .4

The court found that Blackshear had a minimum need of $2,105, given her

income and expenses, and that her projected future expenses were reasonable.

The court further observed that because Blackshear had been unable to cover

her expenses after the separation, she had withdrawn approximately $35,000

from a community savings account. The court noted that monthly maintenance

of $2,500 per month for five years would result in payments totaling $150,000,

which would be approximately equal to the total sum of the differentials the court

outlined. Therefore, the court determined that five years was the “minimum

duration” of maintenance. In consideration of the statutory factors and the

evidence in the case, the court ruled that maintenance of $2,500 per month for a

total of eight years would be appropriate.

The court further ordered Shewring to obtain term life insurance coverage

naming Blackshear as the beneficiary to secure the maintenance awarded and to

pay the insurance premiums for five years.5 The court also required Shewring to

~ The court found that Shewring’s contribution was approximately $28,000 from proceeds of the sale of property owned during a prior marriage. ~ The court required Blackshear to take over payment of the premiums if she wished to extend the coverage for an additional three years.

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elect and maintain former spouse survivor benefit plan coverage for Blackshear.

Shewring appeals.

ANALYSIS

Shewring challenges the amount and duration of maintenance awarded to

Blackshear, characterizing the award as a ‘transfer payment” spread over a

period of eight years.6 Shewring contends that the trial court appropriately

divided the parties’ community assets equally, but then erred by assessing

additional sums against him based on pre-relationship assets that did not retain

their separate character and Blackshear’s post-separation use of community

funds. As a result of its errors in adding these amounts to the “transfer payment,”

Shewring contends that the court modified the division of property to “grossly

favor” Blackshear.

Trial courts are entitled to broad discretion in dissolution proceedings. In

re Marriage of Wright, 179 Wn. App. 257, 261, 319 P.3d 45 (2013). Generally,

we will not disturb a trial court’s decisions in a dissolution proceeding. In re

Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). Because the trial

court is in the best position to determine what is fair, its decisions will be reversed

only if there has been a manifest abuse of discretion. In re Marriage of

Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). A trial court abuses its

discretion if its decisions are based on untenable grounds or untenable reasons.

Muhammad, 153 Wn.2d at 803. This discretion applies both to a trial court’s

6 In her responsive briefing, Blackshear also challenges aspects of the decree of dissolution and the court’s failure to award lifetime maintenance. However, she did not file a notice of cross appeal as required by RAP 5.1(d). Accordingly, we do not address those challenges.

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division of property and debts and to awards of maintenance. Wright, 179 Wn.

App. at 261 (property division); In re Marriage of Valente, 179 Wn. App. 817, 822,

320 P.3d 115 (2014) (maintenance).

We reject Shewring’s characterization of the issue. The trial court did not

order a transfer payment. Indeed, the court expressly declined to do so. And the

trial court did not modify its division of property, which awarded a greater share of

the community estate to him. Instead, the court considered statutory and other

relevant factors for purposes of determining the amount and duration of

maintenance. Shewring’s argument is simply that the amount of maintenance is

unreasonable and that, in light of the substantial maintenance awarded, the

overall distribution of property is inequitable.

When distributing property in a dissolution proceeding, RCW 26.09.080

requires that a trial court consider the following factors: (1) the nature and extent

of the community property, (2) the nature and extent of the separate property, (3)

the duration of the marriage, and (4) the economic circumstances of each spouse

at the time the division of the property is to become effective. In weighing these

factors, the court must make a ‘just and equitable” distribution of the marital

property. RCW 26.09.080. A trial court need not divide community property

equally. In re Marriage of Rockwell, 141 Wn.App. 235, 243, 170 P.3d 572

(2007). “Future earning potential ‘is a substantial factor to be considered by the

trial court in making a just and equitable property distribution.” Rockwell, 141

Wn. App. at 248 (quoting In re Marriage of Hall, 103 Wn.2d 236, 248, 692 P.2d

175 (1984)).

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With respect to maintenance, when a trial court awards maintenance, it

has considerable discretion as to the amount and duration of the award. In re

Marriage of Luckey, 73Wn. App. 201, 209, 868 P.2d 189 (1994). There is no

uniform standard for determining the proper duration of a maintenance award.

Rather, maintenance awards are ‘flexible too l{s] by which the parties’ standard of

living may be equalized for an appropriate period of time.” In re Marriage of

Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984). “The only limitation on

amount and duration of maintenance under RCW 26.09.090 is that, in light of the

relevant factors, the award must be just.” In re Marriage of Bulicek, 59 Wn. App.

630, 633, 800 P.2d 394 (1990).

RCW 26.09.090 governs an award of maintenance. In awarding

maintenance, the court must consider the following nonexclusive statutory

factors:

(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him or her, and his or her ability to meet his or her needs independently . .

(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other attendant circumstances; (c) The standard of living established during the marriage or domestic partnership; (d) The duration of the marriage or domestic partnership; (e) The age, physical and emotional condition, and financial obligations of the spouse or domestic partner seeking maintenance; and (f) The ability of the spouse or domestic partner from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse or domestic partner seeking maintenance.

RCW 26.09.090(1).

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The record demonstrates that the trial court considered all the relevant

statutory factors. At trial, the court heard evidence about the parties’ respective

financial condition, the duration of the marriage and prior relationship, and the

parties’ standard of living before and after separation. The trial court clearly took

into account the extent of the parties’ resources, expenses, and their future

economic prospects, given their ages, and physical and emotional conditions.

The court also considered Blackshear’s estimated future expenses and her

testimony that she was operating at a deficit to meet her monthly household

expenses.

As noted, the statutory factors are not exclusive. It is well settled that the

trial court may properly consider other factors, including the property division,

when determining maintenance, and that the court may also consider

maintenance in making an equitable division of property. In re Marriage of Estes,

84 Wn. App. 586, 593, 929 P.2d 500 (1997). No authority supports Shewring’s

position that the court was prohibited from considering pre-relationship assets

that were used for the benefit of the community but did not remain separate

assets.

The testimony established that Blackshear was financially secure with

stable income and assets when the relationship began. Proceeds from the sale

of her assets allowed the parties to fund subsequent purchases of other

properties. Shewring, on the other hand, entered the relationship with neither

property nor savings, and had poor credit. The court did not engage in “double

counting” assets by recognizing that the improvement of Shewring’s financial

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position was due, in no small part, to the infusion of Blackshear’s assets and

income. And it was not inequitable for the court to consider that because of

Blackshear’s retirement, age, and deteriorated health condition, she would be

unable to regain financial security without significant spousal support.7

Shewring also fails to establish that the court impermissibly considered the

lack of support during the pendency of the dissolution and Blackshear’s use of

community resources to cover her expenses in that period. The court awarded

the value of a bank account to Blackshear that, at the time of separation, had a

balance of $73,350. But, by the time of trial, the account had a diminished value

because Blackshear used approximately $35,000 to pay expenses, including

attorney fees. Recognition of this was not a “miscalculation” of the value of the

account. And the court’s consideration of the loss in value of the asset for

purposes of determining maintenance was not inconsistent with its decision not

to award attorney fees “in light of the overall division of property and debts and

the maintenance award.” The court reasonably determined that the loss in value

of the account was likely due to the fact that Blackshear had not received

maintenance.

Shewring’s reliance on In re Marriage of Spreen, 107 Wn. App. 341, 28

P.3d 769 (2001), is unavailing. In that case, the court granted a motion to modify

maintenance in light of the former wife’s deteriorated mental health condition.

~ We reject Shewring’s claim that the court made a mathematical error by considering the value of some of Blackshear’s assets in 2001, when the parties began living together, and her bank balance at the time of the marriage. For purposes of determining equitable maintenance, the court was not required to consider the value of all assets at a single point in time.

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But the court then arbitrarily limited the extension of maintenance to only one

additional year, on the ground that the wife had received maintenance for long

enough and was “entitled” to no more than six years of support. Spreen, 107

Wn. App. at 345. This case does not involve a modification action. And unlike

the court in Spreen, in determining the maintenance award, the trial court fairly

considered the statutory factors and properly focused on the parties’ respective

postdissolution financial condition.

Shewring argues that the court intended an equal distribution of property,

but then awarded $240,000 in maintenance to be paid over the course of eight

years, which had the effect of drastically reducing his share of the property. But,

to the contrary, the court’s statements indicate only that it intended an equitable

result with respect to the allocation of property and maintenance. And his

argument disregards the fact that his income will enable him to pay the $2,500

monthly support payment without resort to the use of community property assets.

Shewring fails to establish that the award of maintenance was untenable.

Contrary to his claim, the trial court considered the division of all property,

including Blackshear’s award of separate property. There is nothing to suggest

the court failed to appreciate the impact of additional costs associated with life

insurance and survivor benefits. The court considered Blackshear’s expenses

and ability to meet her own needs, and the fact that some of Blackshear’s

expenses were projected estimates, not actual expenses. While Shewring

disagrees, the maintenance award also justified the property division which

allocated a higher share of the property to him, as well as the parties’ most

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valuable asset, the Whidbey Island home. The evidence in the record supports

the award and the trial court did not abuse its discretion.

Affirmed.

~AA~JA d WE CONCUR: