IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of ) No. 69616-5-1 t. '>
MASON C. BAILEY, C3 >>73 ) DIVISION ONE JZ~
Respondent, Sr- i _~ ^ - v£3 and ) UNPUBLISHED OPINION X*> ^£j> JACKIE E. BAILEY, O r'5 C"~J ) FILED: June 9, 2014 cn ~? '"r- ro Appellant.
Becker, J. — Jackie Bailey appeals the trial court's orders dissolving her
marriage to Mason Bailey and dividing their property. Because Jackie mainly
challenges the trial court's determinations regarding credibility and weight of the
evidence and fails to demonstrate any error or abuse of discretion, we affirm.
We also grant Mason's request for attorney fees based on Jackie's frivolous
appeal.
FACTS
Mason and Jackie married in August 2008. Mason had retired from
working as a longshoreman and collected social security benefits in addition to
his pension. During the marriage, Jackie worked as a realtor, for an airline, and
in office jobs. Mason and Jackie separated in February 2010. In October 2010, No. 69616-5-1/2
the court appointed Brett Bailey, Mason's son, guardian over Mason. Brett filed a
petition on behalf of Mason seeking dissolution of Mason's marriage to Jackie.
At trial in September 2012, Jackie asked the trial court to find that the
couple had a committed intimate relationship from March 2004 until their
marriage and to make a distribution of assets acquired during that relationship.
Jackie requested reimbursement for the increase in value of Mason's separate
property based on various improvements. Jackie also requested maintenance of
$1,500 per month for two years.
The trial court made an oral ruling stating that even if the evidence
supported a finding of a committed intimate relationship, the equities did not
justify a division of property. The trial judge explained that he did not believe
Jackie's testimony and listed several ways he believed that Jackie had taken
advantage of Mason's dementia for her own personal financial gain. The court
stated in its oral ruling, "I cannot find that Ms. Bailey has in any way been acting
with any sort of good faith or in any way within the nature of the relationship that
this Court could say would be appropriate to grant her an equitable share of
property that may have been accumulated by the parties prior to their marriage."
As to the division of property in the dissolution, the court accepted, with
certain exceptions, Jackie's list of items purchased during the marriage for over
$76,000 but indicated it could not determine the fair market value of the
community property based on the evidence presented at trial. Even using the
purchase value, the court found that Jackie had already received well over half
the value of the community assets from the transfers of vehicles, other assets, No. 69616-5-1/3
and cash for which she did not account. Based on these findings and its
allocation of all community debts to Mason, the trial court not did award any
additional property to Jackie. Based on the lack of evidence demonstrating an
increase in the value of Mason's separate property over the course of the
marriage, the court denied Jackie's request for reimbursement for community
funds or labor. The court also denied Jackie's request for maintenance based on
the short duration of the marriage and Jackie's age and ability to work.
The trial court entered written findings of fact and conclusions of law and a
final dissolution decree. The court listed the community and separate assets and
liabilities allocated to each party. The court assigned all community debts to
Mason and entered a judgment in favor of Mason against Jackie for $41,065 for
her unauthorized transfer of his separate property, specifically two vehicles. The
court also determined that each party would pay his or her own attorney fees.
Jackie appeals.
ANALYSIS
Committed Intimate Relationship
A committed intimate relationship is a "stable, marital-like relationship
where both parties cohabit with knowledge that a lawful marriage between them
does not exist." Connell v. Francisco. 127 Wn.2d 339, 346, 898 P.2d 831 (1995).
In order to prevent unjust enrichment of one party at the end of a committed
intimate relationship, a party may seek an equitable distribution of property
acquired by the parties during the relationship. In re Marriage of Pennington. 142
Wn.2d 592, 602, 14 P.3d 764 (2000). No. 69616-5-1/4
When considering an order resolving claims as to a committed intimate
relationship, we review the trial court's findings of fact for substantial evidentiary
support, conclusions of law de novo, and the distribution of property for abuse of
discretion. Soltero v. Wimer. 159 Wn.2d 428, 433, 150 P.3d 552 (2007). As a
reviewing court, we do not substitute our judgment for that of the trial court,
weigh the evidence, or judge the credibility of the witnesses. In re Marriage of
Greene. 97 Wn. App. 708, 714, 986 P.2d 144 (1999).
Jackie presents a series of related arguments based on her interpretation
of the evidence presented at trial, mainly her own testimony, to challenge the trial
court's refusal to divide property acquired by the parties during the claimed
committed intimate relationship. But Jackie ignores the trial court's specific
rejection of her version of events and mischaracterizes its findings of fact and
oral ruling as to the resolution of her claim for a division of property based on a
committed intimate relationship.
In its oral ruling, the trial court determined that Jackie did not act in good
faith when she placed Mason in a care facility without a medical necessity and
took advantage of his absence by withdrawing large amounts of cash and selling
and transferring vehicles and cash to others without benefit to Mason. The court
stated in its written order: "The wife came before the court with unclean hands in
her request for an equitable division of property acquired by the parties while
they lived together before they married; therefore, the court declined to make such a division." In order to properly challenge on appeal the trial court's findings
offact regarding her lack of good faith, Jackie must demonstrate "why specific No. 69616-5-1/5
findings of the trial court are not supported by the evidence and [must] cite to the
record to support that argument." In re Estate of Lint. 135 Wn.2d 518, 532, 957
P.2d 755 (1998); In re Estate of Palmer. 145 Wn. App. 249, 264-65, 187 P.3d
758 (2008).
Our review of the record establishes that the trial court's findings are
supported by medical and financial records as well as Brett's testimony. Jackie's
citations to her own contrary testimony do not undermine the findings. The trial
court specifically rejected much of the testimony and the self-serving affidavits
Jackie presented to support her description and explanation of her actions as to
the date of acquisition of certain property, Mason's care, her use of cash, and the
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of ) No. 69616-5-1 t. '>
MASON C. BAILEY, C3 >>73 ) DIVISION ONE JZ~
Respondent, Sr- i _~ ^ - v£3 and ) UNPUBLISHED OPINION X*> ^£j> JACKIE E. BAILEY, O r'5 C"~J ) FILED: June 9, 2014 cn ~? '"r- ro Appellant.
Becker, J. — Jackie Bailey appeals the trial court's orders dissolving her
marriage to Mason Bailey and dividing their property. Because Jackie mainly
challenges the trial court's determinations regarding credibility and weight of the
evidence and fails to demonstrate any error or abuse of discretion, we affirm.
We also grant Mason's request for attorney fees based on Jackie's frivolous
appeal.
FACTS
Mason and Jackie married in August 2008. Mason had retired from
working as a longshoreman and collected social security benefits in addition to
his pension. During the marriage, Jackie worked as a realtor, for an airline, and
in office jobs. Mason and Jackie separated in February 2010. In October 2010, No. 69616-5-1/2
the court appointed Brett Bailey, Mason's son, guardian over Mason. Brett filed a
petition on behalf of Mason seeking dissolution of Mason's marriage to Jackie.
At trial in September 2012, Jackie asked the trial court to find that the
couple had a committed intimate relationship from March 2004 until their
marriage and to make a distribution of assets acquired during that relationship.
Jackie requested reimbursement for the increase in value of Mason's separate
property based on various improvements. Jackie also requested maintenance of
$1,500 per month for two years.
The trial court made an oral ruling stating that even if the evidence
supported a finding of a committed intimate relationship, the equities did not
justify a division of property. The trial judge explained that he did not believe
Jackie's testimony and listed several ways he believed that Jackie had taken
advantage of Mason's dementia for her own personal financial gain. The court
stated in its oral ruling, "I cannot find that Ms. Bailey has in any way been acting
with any sort of good faith or in any way within the nature of the relationship that
this Court could say would be appropriate to grant her an equitable share of
property that may have been accumulated by the parties prior to their marriage."
As to the division of property in the dissolution, the court accepted, with
certain exceptions, Jackie's list of items purchased during the marriage for over
$76,000 but indicated it could not determine the fair market value of the
community property based on the evidence presented at trial. Even using the
purchase value, the court found that Jackie had already received well over half
the value of the community assets from the transfers of vehicles, other assets, No. 69616-5-1/3
and cash for which she did not account. Based on these findings and its
allocation of all community debts to Mason, the trial court not did award any
additional property to Jackie. Based on the lack of evidence demonstrating an
increase in the value of Mason's separate property over the course of the
marriage, the court denied Jackie's request for reimbursement for community
funds or labor. The court also denied Jackie's request for maintenance based on
the short duration of the marriage and Jackie's age and ability to work.
The trial court entered written findings of fact and conclusions of law and a
final dissolution decree. The court listed the community and separate assets and
liabilities allocated to each party. The court assigned all community debts to
Mason and entered a judgment in favor of Mason against Jackie for $41,065 for
her unauthorized transfer of his separate property, specifically two vehicles. The
court also determined that each party would pay his or her own attorney fees.
Jackie appeals.
ANALYSIS
Committed Intimate Relationship
A committed intimate relationship is a "stable, marital-like relationship
where both parties cohabit with knowledge that a lawful marriage between them
does not exist." Connell v. Francisco. 127 Wn.2d 339, 346, 898 P.2d 831 (1995).
In order to prevent unjust enrichment of one party at the end of a committed
intimate relationship, a party may seek an equitable distribution of property
acquired by the parties during the relationship. In re Marriage of Pennington. 142
Wn.2d 592, 602, 14 P.3d 764 (2000). No. 69616-5-1/4
When considering an order resolving claims as to a committed intimate
relationship, we review the trial court's findings of fact for substantial evidentiary
support, conclusions of law de novo, and the distribution of property for abuse of
discretion. Soltero v. Wimer. 159 Wn.2d 428, 433, 150 P.3d 552 (2007). As a
reviewing court, we do not substitute our judgment for that of the trial court,
weigh the evidence, or judge the credibility of the witnesses. In re Marriage of
Greene. 97 Wn. App. 708, 714, 986 P.2d 144 (1999).
Jackie presents a series of related arguments based on her interpretation
of the evidence presented at trial, mainly her own testimony, to challenge the trial
court's refusal to divide property acquired by the parties during the claimed
committed intimate relationship. But Jackie ignores the trial court's specific
rejection of her version of events and mischaracterizes its findings of fact and
oral ruling as to the resolution of her claim for a division of property based on a
committed intimate relationship.
In its oral ruling, the trial court determined that Jackie did not act in good
faith when she placed Mason in a care facility without a medical necessity and
took advantage of his absence by withdrawing large amounts of cash and selling
and transferring vehicles and cash to others without benefit to Mason. The court
stated in its written order: "The wife came before the court with unclean hands in
her request for an equitable division of property acquired by the parties while
they lived together before they married; therefore, the court declined to make such a division." In order to properly challenge on appeal the trial court's findings
offact regarding her lack of good faith, Jackie must demonstrate "why specific No. 69616-5-1/5
findings of the trial court are not supported by the evidence and [must] cite to the
record to support that argument." In re Estate of Lint. 135 Wn.2d 518, 532, 957
P.2d 755 (1998); In re Estate of Palmer. 145 Wn. App. 249, 264-65, 187 P.3d
758 (2008).
Our review of the record establishes that the trial court's findings are
supported by medical and financial records as well as Brett's testimony. Jackie's
citations to her own contrary testimony do not undermine the findings. The trial
court specifically rejected much of the testimony and the self-serving affidavits
Jackie presented to support her description and explanation of her actions as to
the date of acquisition of certain property, Mason's care, her use of cash, and the
transfers of the vehicles. We do not review the trial judge's explicit statement
that he did not believe her and did not agree with her interpretation of the
evidence. Greene. 97 Wn. App. at 714.
We also reject Jackie's claim that the trial court improperly considered her
lack of good faith during the marriage when ruling on her request for an equitable
division of property acquired during the committed intimate relationship. Without
citation to relevant authority or cogent analysis, Jackie claims that the finding of
bad faith here is equivalent to the type of marital misconduct that RCW
26.090.080 directs courts to disregard when dividing property in a dissolution.
But "the 'marital misconduct' which a court may not consider under RCW
26.09.080 refers to immoral or physically abusive conduct within the marital
relationship and does not encompass gross financial improvidence, the
squandering of marital assets, or. . . the deliberate and unnecessary incurring of No. 69616-5-1/6
tax liabilities." In re Marriage of Steadman. 63 Wn. App. 523, 528, 821 P.2d 59
(1991) (footnote omitted). Washington courts have repeatedly "held that
negatively productive conduct that causes the dissipation of marital assets can
be considered" in shaping a fair and equitable division of the parties' assets and
liabilities. In re Marriage of Muhammad. 153 Wn.2d 795, 804, 108 P.3d 779
(2005); Steadman. 63 Wn. App. at 528. Jackie fails to establish error in the
court's consideration of her lack of good faith in her use of marital assets and
Mason's separate property when ruling on her request for equity.
In simple terms, the trial court determined here that Jackie, acting without
good faith and against Mason's interests during the marriage, misappropriated
substantial amounts of marital assets as well as Mason's separate property for
her own personal financial gain. Based on the properly supported findings, we
cannot say that the trial court abused its discretion by determining that a division
of property acquired by the parties prior to the marriage would not be just and
equitable under the circumstances here.
Dissolution Property Division
In a dissolution action, all property, community and separate, is before the
court for distribution. In re Marriage of Stachofskv. 90 Wn. App. 135, 142, 951
P.2d 346. review denied. 136Wn.2d 1010(1998).
We review an order distributing property for an abuse of discretion and will
only reverse a trial court's decision if there is a manifest abuse of discretion. Jn
re Marriage of Kraft. 119 Wn.2d 438, 450, 832 P.2d 871 (1992). The relevant
factors in determining a just and equitable distribution of property are provided by
6 No. 69616-5-1/7
statute. They include (1) the nature and extent of community property, (2) the
nature and extent of 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. RCW 26.09.080. The trial court is in the best
position to determine what is "'fair, just and equitable'" under the circumstances.
In re Marriage of Brewer. 137 Wn.2d 756, 769, 976 P.2d 102 (1999), quoting in
re Marriage of Hadlev. 88 Wn.2d 649, 656, 565 P.2d 790 (1977).
Jackie argues the trial court erred in the division of marital property by (1)
rejecting her claim that two vehicles were her separate property because Mason
transferred them into her name, (2) giving Mason a judgment against her for
those two vehicles, (3) refusing to reimburse the community for improvements to
Mason's separate property, and (4) failing to consider the economic condition of
the parties after their separation and her lack of resources to pay the judgment.
Jackie does not dispute that Mason bought the two vehicles at issue with
his separate funds before the marriage. And the trial court rejected Jackie's
testimony about the alleged transfers and her interpretation of the documents
she presented. The trial courtfound Jackie sold or transferred those vehicles
during the marriage without Mason's consent and without benefit to him. The trial judge explicitly stated that he believed Jackie was "in cahoots" with a friend, who sold one of the vehicles for $23,000 shortly after buying it from Jackie for
only $500. The trial court did not err by finding Brett's testimony regarding Mason's acquisition and use ofthe vehicles, Mason's medical condition, and the No. 69616-5-1/8
appearance of Mason's signature, as well as other evidence, more credible and
convincing than Jackie's testimony.
The trial court imposed the $41,065 judgment against Jackie based on (1)
its findings that two specific vehicles, a Wrangler and a Ram, were Mason's
separate property; (2) clear evidence produced at trial establishing the trade-in
value of the Wrangler and the resale price of the Ram; and (3) the undisputed
fact that Jackie did not give any of the proceeds to Mason after she made the
transactions. As to the division of the remaining assets and liabilities, the court
awarded each party his or her remaining separate property as Jackie listed in her
property description. The trial court noted that despite the short duration of the
marriage, the parties incurred a great deal of debt, all of which it allocated to
Mason, and Jackie accumulated a significant amount of separate property. In
light of Mason's significant debt and Jackie's use of assets and cash during the marriage, the trial court determined that it was appropriate to award Mason the remaining community property. Because these determinations are supported by, and within the range of, the evidence in the record, Jackie fails to establish a
manifest abuse of discretion.
We also reject Jackie's challenge to the trial court's denial of her request
for reimbursement to the community for improvements made to Mason's
separate property. Again, Jackie relies primarily on her testimony and evidence describing certain improvements, the purchase price ofvarious materials, and estimates of costs of services. But the court indicated that it would not order
such reimbursement based on the lack of proof as to specific dates of any
8 No. 69616-5-1/9
particular project and the lack of any evidence, beyond Jackie's estimates and
speculation, as to the value of the property before and after any improvements
made during the marriage. Given the lack of positive and direct evidence that
Mason's property increased in value over the course of the marriage as a result
of community funds or labor, Jackie fails to demonstrate error. In re Marriage of
Elam. 97Wn.2d 811, 816,650 P.2d 213 (1982) (court may impose lien on
separate property where "direct and positive evidence that the increase is
attributable to community funds or labors" rebuts presumption that increase in
value of separate property is also separate).
Finally, the record reveals that the court specifically considered the
parties' economic condition after the division. While Mason's age, physical and
emotional condition, and substantial debt incurred during the marriage mean
"what he has got now is what he is going to get," Jackie has no debt resulting
from substantial community expenditures during the marriage and "can work
presumably for at least 15 more years" based on her age and physical condition.
The fact that the trial court expressed doubt on the record as to whether Jackie
would actually pay the $41,065 judgment does not demonstrate a failure to
consider her economic condition. Jackie fails to demonstrate error in the
property division.
Motion to Continue
Jackie claims the trial court erred by excluding the testimony of her expert
witness, Kent Thomas, a real estate appraiser. This is a mischaracterization of
the record. After all available witnesses had testified, Jackie explained that she No. 69616-5-1/10
had been unable to contact Thomas and requested a continuance to locate him
and bring him to court. The trial court denied the motion to continue the trial.
We review a denial of a motion to continue for manifest abuse of
discretion. In re Dependency of V.R.R.. 134 Wn. App. 573, 580-81,141 P.3d 85
(2006). In considering a continuance, the trial court considers various factors,
"including diligence, due process, the need for an orderly procedure, the possible
effect on the trial, and whether prior continuances were granted." V.R.R.. 134
Wn. App. at 581.
After a lengthy discussion on the record, the trial court stated that even if
Thomas had appeared to testify, his testimony would not be helpful to the court
because Thomas had not visited the property and would be relying only on
Jackie's statements and the report of Mason's appraiser. The court also
considered that the case had been pending for over a year and a half, and
Mason's condition, as well as the guardianship and vulnerable adult protection
order proceedings, justified a priority resolution and decision of the case.
Jackie complains about changes in the trial schedule and claims that
Thomas's expert testimony was essential to her claim for reimbursement. But
she fails to acknowledge or address the trial court's determination that Thomas's
opinion would have been unhelpful. Jackie has not identified a manifest abuse of discretion.
Attorney Fees
Jackie contends the trial court erred by denying her request for attorney
fees at trial under RCW 26.09.140. That section allows the trial court to order a
10 No. 69616-5-1/11
party to pay reasonable attorney fees of the other party "after considering the
financial resources of both parties." A trial court's decision not to award fees
under RCW 26.09.140 will be reversed only if "untenable or manifestly
unreasonable." In re Custody of Salerno. 66 Wn. App. 923, 926, 833 P.2d 470
(1992).
The trial court explicitly considered the "extraordinary large attorneys fees"
incurred by both parties, Mason's circumstances and debt, and Jackie's income,
and found that although Jackie may have a need, Mason would be strained to
pay his own fees. The trial court's decision to require each party to pay his or her
fees was reasonable. Jackie fails to establish abuse of discretion.
Jackie requests attorney fees on appeal under RCW 26.09.140, citing her
financial need and Mason's ability to pay. Mason requests an award of attorney
fees under RAP 18.9(a) as a sanction for Jackie's frivolous appeal. "An appeal is
frivolous if no debatable issues are presented upon which reasonable minds
might differ, and it is so devoid of merit that no reasonable possibility of reversal
exists." Chapman v. Perera. 41 Wn. App. 444, 455-56, 704 P.2d 1224, review
denied. 104 Wn.2d 1020 (1985). Because Jackie's arguments turn on the trial
court's clear and explicit determinations of credibility and weight of the evidence
or lack of evidence, matters which are not subject to review, we are convinced
that the appeal presents no debatable issues upon which reasonable minds might differ and is devoid of merit. We award reasonable appellate attorney fees to Mason under RAP 18.9 upon his compliance with RAP 18.1.
11 No. 69616-5-1/12
Affirmed.
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