IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of No. 85302-3-I
LAUREL OTIS, DIVISION ONE
Respondent, and UNPUBLISHED OPINION
BRANDON OTIS,
Appellant.
SMITH, C.J. — Brandon and Laurel Otis1 married in August 2009 and
separated in September 2019. Brandon appeals the court’s final orders following
the dissolution trial, asserting that the trial court abused its discretion in granting
Laurel a share of his separate retirement assets and mandating that he name
Laurel the sole beneficiary of his pension and that insufficient evidence exists to
support the court’s finding that Laurel was entitled to a judgment for money owed
for her share of their tax refunds. He also raised the doctrine of equitable
estoppel, arguing that it precludes Laurel from challenging the division of
Brandon’s separate retirement accounts. We affirm the trial court’s distribution of
separate assets and the judgment regarding the tax refund and decline to apply
the doctrine of equitable estoppel, but we remand for the trial court to revise the
1 Because the parties share a last name, we refer to each by their first name solely for clarity. No. 85302-3-I/2
final order and remove the beneficiary requirement. We also grant Laurel
reasonable attorney fees and costs subject to compliance with RAP 18.1(d).
FACTS
Background
Brandon and Laurel Otis married in August 2009 and separated in
September 2019. Laurel petitioned for legal separation in March 2021, which
became a petition for dissolution by agreement of both parties in late 2022. The
parties have two children together.
Following the separation, Brandon left the shared home and moved in with
his parents. Under a temporary order entered in June 2021, Brandon paid Laurel
$3,500 a month in undifferentiated support. Because Laurel remained in the
family home, she was responsible for the mortgage and any other household
expenses.
Trial
Trial on the dissolution began in November 2022 and centered heavily on
distribution of the parties’ assets. Although Brandon and Laurel had a prenuptial
agreement, the court found it unenforceable because Brandon failed to disclose
all of his assets and because Laurel did not have an attorney review the
document. Accordingly, the court performed its own analysis of each party’s
assets and earning capacity.
The court determined that Laurel had a lower earning capacity than
Brandon. Laurel had worked as a flight attendant for a number of years during
the marriage, became a stay-at-home parent once the children were born, and
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was working as a courier for Amazon at the time of trial. Although she struggled
to find full-time employment, Laurel had a retirement account worth $85,000 by
the time of trial.
In contrast, Brandon worked the entirety of the marriage as an electrician.
He had a consistent income and belonged to a local union, which provided him
with a pension and retirement account. Both the pension and retirement account
began accruing before Brandon and Laurel married.
Distribution of shared assets was generally undisputed. The parties
agreed to sell their home in Everett and split the profits evenly between them.
The parties also obtained four tax refunds from 2017 to 2020, totaling just over
$44,000. They agreed, pursuant to a Civil Rule (CR) 2A agreement, to split their
tax refunds evenly and deposited them into an account which they both could
access. The parties further agreed that Laurel would receive her retirement
account in full.
The parties disputed the distribution of Brandon’s separate property.
Brandon asked to retain as separate property the contributions he made to his
pension and retirement accounts before marriage and after separation. Laurel
asked the court to divide the assets as of the date of the dissolution, rather than
the separation, and argued that it would be inequitable to award Brandon his
premarital retirement assets. Laurel’s proposed division granted her 100 percent
of her own retirement and financial accounts, 50 percent of all community assets,
and 50 percent of Brandon’s separate assets. She noted Brandon’s ability to
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amass retirement assets and income during the separation period while she
struggled to find full-time employment with her childcare responsibilities.
The court adopted Laurel’s proposed division of assets but set the end
date for division as of the time of separation. The court also awarded Laurel
$20,000 in attorney fees. The court did not enter a final written order adopting
Laurel’s proposed order until March 2023.
Motions for Reconsideration and Clarification
After the court entered final orders, Brandon moved for reconsideration,
asking the court to reassess the property distribution and asserting that the order
failed to distinguish community property from separate property. He also
challenged the court’s requirement that he name Laurel as his sole pension
beneficiary.
Similarly, Laurel moved for clarification of the court’s final orders. She
identified clerical errors and asked the court not to consider Brandon’s arguments
that it had already dismissed. The court considered both motions,2 granted
Laurel’s motion in part to clarify the tax refund award, and entered new final
orders. The court did not grant Brandon’s requested changes.
Brandon appeals.
2 Laurel filed a motion requesting that this court take judicial notice of the superior court’s docket indicating that the trial court considered both Brandon and Laurel’s motions for reconsideration and clarification. Given that the trial court’s docket is a source whose accuracy cannot reasonably be questioned, as required by ER 201(b), we take judicial notice of the superior court docket.
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ANALYSIS
Standard of Review
We review a trial court’s distribution of property for abuse of discretion. In
re Marriage of Groves, 10 Wn. App. 2d 249, 254, 447 P.3d 643 (2019). A court
abuses its discretion if the property distribution is manifestly unreasonable or
based on untenable grounds or reasons. In re Marriage of Wright, 179 Wn. App.
257, 261-62, 319 P.3d 45 (2013). A trial court has broad discretion in dissolution
proceedings to divide property in an equitable fashion. Groves, 10 Wn. App. 2d
at 254-55.
Premarital Retirement Assets
Brandon argues that the trial court abused its discretion in granting Laurel
half of his retirement assets accrued before marriage, stating that the court’s final
order was impermissibly vague. Laurel asserts that the trial court’s award was
neither vague nor accidental and that the distribution was a reasonable exercise
of the court’s discretion. The court did not abuse its discretion in granting Laurel
half of Brandon’s separate property.
The court has broad discretion to make a just and equitable distribution of
property. RCW 26.09.080. Such a distribution requires the analysis of all
relevant factors, including “(1) [t]he nature and extent of the community property;
(2) [t]he nature and extent of the separate property; (3) [t]he duration of the
marriage . . .; and (4) [t]he economic circumstances of each spouse . . . at the
time the division of property is to become effective.” RCW 26.09.080. The court
may distribute all property, whether it is categorized as community or separate.
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Wright, 179 Wn. App. at 261. “ ‘[A] court need not find exceptional
circumstances to justify awarding a portion of one spouse’s [separate] property to
the other spouse.’ ” In re Marriage of Larson, 178 Wn. App. 133, 141, 313 P.3d
1228 (2013) (second alteration in original) (quoting In re Marriage of Griswold,
112 Wn. App. 333, 347-78, 48 P.3d 1018 (2002)). Further, it is fair and equitable
to award a share of separate property to a spouse with a lesser earning capacity.
Larson at 178 Wn. App. at 142.
Here, as shown in the final child support order, the court documented that
Laurel had a lower earning capacity than Brandon. The court considered that
Laurel did not have a consistent income at the time of trial, the parties’
community and separate property, and the economic circumstances of each
spouse at separation. The court then imputed Laurel’s income at full-time
minimum wage. RCW 26.19.071(6) provides that a court should impute income
if a parent is voluntarily unemployed or underemployed. The imputed income is
then the amount the court finds a party could or should be earning, not the
party’s actual earnings. But even if Laurel were to actually meet her imputed
income, full-time minimum wage is still significantly lower than Brandon’s yearly
income of approximately $115,000. Given this difference in earning capacity,
and the fact that it is fair and equitable to award separate property to a spouse
with a lower earning capacity, the court did not abuse its discretion by awarding
Laurel a share of Brandon’s premarital retirement assets.
Brandon also contends that the court abused its discretion in granting
Laurel half of his premarital retirement assets because the order was
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impermissibly vague, making it “impossible” to tell whether the trial court meant
to award separate rather than community property. He notes that the court
entered the final order months after trial and failed to adequately characterize
any of the property. Although the court did not characterize any assets as
separate or community property in its final order, there is no evidence in the
record that the court was unaware of the character of the property, or that the
parties disputed the characterization of the property. Because the court adopted
Laurel’s proposal, it follows that the court also adopted her characterization.
In her proposed order, Laurel requested an award of half of Brandon’s
separate property. The court adopted Laurel’s proposed division but limited the
award of separate property to Brandon’s property acquired before separation
rather than dissolution. This limitation indicates that the court fully considered
the grant of Brandon’s separate property and intentionally did not limit the award
to postmarital assets. The language in the award is not vague. In fact, in his
motion for reconsideration, Brandon argues that the trial court’s award “will result
in [Laurel] receiving a portion of [the] separate property, earned prior to the
marriage.” It is clear that even Brandon understood the court’s aim. And he
cannot now claim that the language of the award is not clear enough to
determine whether the court intended to award his separate property to Laurel.
The court did not abuse its discretion in granting Laurel half of Brandon’s
separate retirement assets.
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Retirement and Pension Beneficiary Mandate
Brandon contends that the trial court abused its discretion in mandating
that he name Laurel the sole beneficiary of his retirement accounts because the
order grants Laurel rights in his future assets and the order is contrary to public
policy. Laurel asserts that the mandate was proper and reasonable in light of
Brandon’s ongoing child support obligations. The trial court abused its discretion
because the order both awarded Laurel future assets and is contrary to public
policy.
Retirement income is divisible at dissolution, but only “[t]hat portion of the
retirement income earned during the existence of the community.” Arnold v.
Dep’t of Ret. Sys., 128 Wn.2d 765, 778, 912 P.2d 463 (1996). Future assets,
such as retirement income earned after the end of the marriage, are not properly
before a dissolution court and should not ordinarily be divided between spouses.
In re Marriage of Anglin, 52 Wn. App. 317, 320, 759 P.2d 1224 (1988). “[W]hen
a spouse continues to accumulate pension benefits following divorce, case law
does not support the . . . approach of simply dividing the total pension in half.” In
re Marriage of Chavez, 80 Wn. App. 432, 436, 909 P.2d 314 (1996).
Additionally, public policy encourages future marriages and discourages
handling dissolutions in a way that “would place unwarranted stress upon a
second marriage.” Van Dyke v. Thompson, 95 Wn.2d 726, 732, 630 P.2d 420
(1981). Instead, public policy aims to “disentangl[e] the divorcing spouses,”
allowing them to move forward unencumbered. In re Marriage of Bulicek, 59 Wn.
App. 630, 634, 800 P.2d 394 (1990).
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In requiring that Brandon make Laurel the sole death beneficiary of his
retirement accounts and pension, the trial court placed no limitation on this
condition such that Laurel would remain Brandon’s sole beneficiary for the rest of
his life, assuming that he predeceases her. As a result, this order not only
awards Laurel Brandon’s future assets but also prevents him from naming his
children or a new spouse as his beneficiary. Brandon, who was 41 years old at
the time of separation, is likely to contribute to his pension and retirement
accounts for another two decades. Laurel cites no authority to support her
assertion that she should be the sole beneficiary for the indefinite future.
Moreover, the requirement that Laurel be the sole beneficiary is contrary to public
policy. The trial court abused its discretion in awarding Laurel decades of future
assets beyond the end of the marriage.
Laurel’s assertion that the requirement is reasonable in light of Brandon’s
ongoing child support obligations is unpersuasive. Laurel asserts that Brandon’s
right to change beneficiaries is overridden by the equities in favor of his children,
to whom he owes continued support; but in support of this assertion, Laurel relies
on case law discussing life insurance policies. Because life insurance policies
and retirement assets are vastly different, this situation is distinguishable. In
addition, Brandon will only owe child support for the next twelve years. Requiring
that Laurel be the sole beneficiary for the remainder of Brandon’s life is not
proportionate to his child support obligation. We remand for the trial court to
revise the final order and strike the beneficiary requirement.
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Tax Refund Share
Brandon asserts that the trial court’s finding that Laurel is entitled to a
further portion of their shared tax refund is not supported by substantial evidence.
We disagree.
We review a trial court’s findings of fact for substantial evidence. Wright,
179 Wn. App. at 262. Evidence is substantial if it is sufficient to persuade a
rational person of the asserted premise. Merriman v. Cokeley, 168 Wn.2d 627,
631, 230 P.3d 162 (2010). “A reviewing court may not disturb findings of fact
supported by substantial evidence even if there is conflicting evidence.”
Merriman, 168 Wn.2d at 631. We do not reweigh evidence or determine the
credibility of witnesses. In re Dependency of A.M.F., 23 Wn. App. 2d 135, 141,
514 P.3d 755 (2022), aff’d, 1 Wn.3d 407 (2023). Rather, the question is
“ ‘whether the evidence most favorable to the prevailing part supports [the]
challenged findings.’ ” Structurals Nw., Ltd. v. Fifth & Park Place, Inc., 33 Wn.
App. 710, 716, 658 P.2d 679 (1983) (quoting N. Pac. Plywood, Inc. v. Access
Road Builders, Inc., 29 Wn. App. 228, 232, 628 P.2d 482 (1981)). Unchallenged
findings of fact are considered verities on appeal. In re Marriage of Fiorito, 112
Wn. App. 657, 665, 50 P.3d 298 (2002).
As previously noted, Brandon and Laurel received four tax refunds from
2017 to 2020, totaling just over $44,000. They agreed to split the funds evenly.
Brandon now asserts that Laurel has already spent the majority of her half and
therefore is not entitled to the $10,442.85 judgment that the court awarded.
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It is undisputed in the record that Laurel withdrew $11,760.81 of the tax
refund money to pay attorney fees. Both parties documented this withdrawal and
its subsequent use, providing substantial evidence to support the finding. But
Brandon contends that Laurel withdrew an additional $11,700 of the tax refund.
The trial court did not err in determining that substantial evidence only supported
the initial withdrawal for attorney fees.
On appeal, Brandon contends that Laurel spent a total of $18,906 on
attorney fees, three missed mortgage payments, and other personal expenses.
He also states that she transferred $4,554.53 to her own account, without any
explanation. This would indicate that Laurel had already spent more than her
half of the tax refunds. But at trial, Brandon asserted that she only spent $16,160
between the fees and two mortgage payments. And he relied on incomplete
exhibits to support his claim. The exhibits either excluded relevant time periods
or missed the pages of the statement listing the actual transactions. He
conceded on cross-examination that his exhibits were insufficient to prove his
point. Because Brandon fails to provide substantial evidence to establish that
Laurel spent an additional $11,700 in mortgage payments and personal
expenses, the only fact in the record supported by substantial evidence is
Laurel’s withdrawal for attorney fees.
The trial court did not abuse its discretion in awarding Laurel the
remainder of her share of the tax refund.
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Equitable Estoppel
Brandon asserts that the doctrine of equitable estoppel precludes Laurel
from challenging the division of Brandon’s separate retirement accounts in her
response. Laurel contends that equitable estoppel does not apply because
Brandon fails to establish all required elements. Because Brandon cannot
establish any of the required elements of equitable estoppel, the doctrine does
not apply.
The doctrine of equitable estoppel applies when “one party has made a
statement, admission, or act that has been justifiably relied on to the detriment of
another party.” In re Marriage of Tupper, 15 Wn. App. 2d 796, 812, 478 P.3d
1132 (2020). To establish equitable estoppel, a party must show: “(1) an
admission, act or statement inconsistent with a later claim; (2) another party’s
reasonable reliance on the admission, act or statement; and (3) a resulting injury
to the relying party if the party making the admission, act, or statement is
permitted to contradict or repudiate the earlier admission, act, or statement.”
Tupper, 15 Wn. App. 2d at 812.
1. Inconsistent Statement
Brandon argues that Laurel’s alleged agreement at trial to split only the
community portions of his retirement accounts is inconsistent with the final order,
which includes his separate retirement property. He fails to identify, however,
where Laurel actually agreed to the division of only community property. In
briefing, Brandon simply states that he relied on “Laurel’s agreement that only
community portions of his retirement accounts would be split via [qualified
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domestic relation orders].” At oral argument, Brandon asserted that Laurel’s
response that both parties were on “the same page” establishes that Laurel
agreed to split only community property. But it is unclear from the record what
the parties were actually on “the same page” about. Brandon’s interpretation of
that statement is not enough to establish that Laurel initially agreed to divide only
community property. In fact, Laurel’s trial brief shows that she asked for the
opposite, requesting 50 percent of Brandon’s separate assets. It is unlikely that
Laurel would have agreed to something different without any further discussion.
Without evidence of an inconsistent statement, Brandon fails to meet the first
element.
2. Reasonable Reliance
Brandon next contends that in allowing the court to draft the final orders
rather than submitting proposed orders himself, he relied on Laurel’s alleged
agreement to split only the community portions of his retirement accounts. But
both Brandon and Laurel were clear at trial: they agreed that the court should
draft the final order because neither trusted the other to make the appropriate
changes to the document. Because Brandon cannot establish that he
reasonably relied on Laurel’s alleged statement, Brandon fails to meet the
second element.
3. Resulting Injury
Finally, Brandon asserts that, as a result of his reliance, he suffered
injuries in the form of having to move for clarification and now this appeal. But
Brandon has not established an inconsistent statement or any reasonable
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reliance. And because the court drafted the final order, and declined to grant
Brandon’s motion for reconsideration, any variation from what Brandon assumed
the final order to be cannot be attributed to Laurel. Because Brandon does not
indicate any other form of injury, he fails to meet the third element.
Nothing precludes Laurel from challenging Brandon’s account of the
division of his separate property.
Attorney Fees
Lastly, Laurel requests attorney fees under RCW 26.09.140, which
permits the grant of fees, after consideration of the financial resources of both
parties, based on financial need. Because Laurel establishes her need and we
determine that Brandon has the ability to pay, we award Laurel reasonable
attorney fees and costs pursuant to RAP 18.1, subject to compliance with
RAP 18.1(d).
RAP 18.1 provides that applicable law may grant a party the right to
recover reasonable attorney fees or expenses on review. RCW 26.09.140
provides that after considering the financial resources of both parties, “upon any
appeal, the appellate court may, in its discretion, order a party to pay for the cost
to the other party of maintaining the appeal and attorneys’ fees in addition to
statutory costs.” “A party relying on RCW 26.09.140 ‘must make a showing of
need and of the other’s ability to pay fees in order to prevail.’ ” In re Marriage of
Gharst, 25 Wn. App. 2d 752, 761, 525 P.3d 250 (2023) (quoting In re Marriage of
Kirschenbaum, 84 Wn. App. 798, 808, 929 P.2d 1204 (1997)). The statute does
not specify that the party requesting fees must prevail. RCW 26.09.140.
14 No. 85302-3-I/15
Laurel asserts that because the trial court determined that she has the
financial need and that Brandon has the ability to pay, she is entitled to fees on
appeal. According to her RAP 18.1(c) financial declaration, Laurel works a
strictly commission-based job and her total monthly expenses exceed her
income. Brandon’s financial declaration, in contrast, displays a monthly income
well-over double Laurel’s income. Given this, and despite the fact that we are
reversing in part, we award Laurel reasonable attorney fees and costs pursuant
to RAP 18.1, subject to compliance with RAP 18.1(d).
We affirm the trial court’s distribution of separate assets and remaining
share of the tax income but remand for the trial court to revise the final order and
strike the beneficiary requirement. We also grant Laurel reasonable attorney
fees and costs subject to compliance with RAP 18.1(d).
WE CONCUR: