In re the Marriage of Rockwell

170 P.3d 572, 141 Wash. App. 235
CourtCourt of Appeals of Washington
DecidedAugust 27, 2007
DocketNo. 56954-6-I
StatusPublished
Cited by165 cases

This text of 170 P.3d 572 (In re the Marriage of Rockwell) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re the Marriage of Rockwell, 170 P.3d 572, 141 Wash. App. 235 (Wash. Ct. App. 2007).

Opinion

Appelwick, C.J.

¶1 Peter Rockwell challenges the fairness of a 60/40 division of property in the dissolution of a long-term marriage. He argues the trial court improperly considered his future earning capacity as a factor in the overall fairness of the division. He claims the trial court erred in making an adjustment for Social Security benefits that his wife would have received but for her type of federal pension. Carmen Rockwell cross-appeals, arguing that the court erred when it chose the subtraction method to characterize and value her federal pension. We reverse the trial court’s use of the subtraction method for pension characterization and valuation but affirm on all other issues and remand for further proceedings.

FACTS

¶2 Peter and Carmen Rockwell were married from 1978 until 2004, a total of 26 years. Carmen1 had been employed in the federal civil service for 16 years prior to the marriage. During those 16 years, she took two breaks from this service, one for a period of about 14 months, and another for a period of just under 5 years. She continued in this field for 24 more years during their marriage. Peter has bachelor’s degrees in mechanical engineering and liberal arts. He worked as an engineer in Washington, D.C., before seeking a position in technical sales. In order to advance Carmen’s career, the couple moved to New York in 1984, and then to Seattle in 1986. Each time, Peter gave up his current employment and sought reemployment in their new location. In 1999, when Peter was 48, he was laid off. In his last year of employment, he had earned a $72,000 salary and a [240]*240commission of about $18,000. He searched for employment in similar fields but without success, and stopped seeking employment after the spring of 2002.

¶3 Carmen retired in 2002 at age 60, testifying to health concerns that kept her from continuing her employment. She had advanced from a position as a “GS-3” clerk to a “GS-15” executive, for which she earned a $120,000 salary as the head of the Northwest Regional Office of Civil Rights. Because she was enrolled in the Civil Service Retirement System (CSRS), she earned a substantial pension that is in lieu of any Social Security benefits. This pension is now in “pay status.”

¶4 In 2004, Carmen filed for dissolution of the marriage. At trial, the parties and their experts presented lengthy testimony regarding Carmen’s career and health; Peter’s career, job search, and health; the future possible income streams of both parties; the community debts; and the tangible assets available to each. The trial court received evidence on various real and personal properties, including the family home, Carmen’s individual retirement account (IRA) and thrift savings plan, Peter’s contributory and rollover IRA’s, two automobiles, rental proceeds, life insurance policies, Peter’s disability insurance policy, frequent flier miles, and Carmen’s CSRS pension.

¶5 In its oral ruling issued on June 24, 2005,2 the trial court stated that it was “backing] out the Social Security contribution assessment for—that Mr. Kessler provided, that’s $159,464.” This is the value of Social Security that Carmen would have received if she was not receiving her particular type of federal pension. The trial court “compensated” her for that amount in its written findings of fact.

[241]*241¶6 In addressing the division of the pension, the trial court noted Peter’s entitlement to Social Security benefits and their potential to increase, Carmen’s lack of Social Security benefits due to her type of pension, and Peter’s inheritance funds that he gifted to the community. It accepted the “subtraction method” that Peter’s actuary expert used to value Carmen’s pension, finding that 92 percent of the pension was community property and 8 percent was Carmen’s separate property. The trial court concluded that it was fair and equitable to divide the community property portion of the pension 60 percent to Carmen and 40 percent to Peter, and to award Carmen her separate property portion of the pension. This meant that Peter is to receive 36.8 percent of the gross value of the pension.

¶7 Both parties moved for reconsideration of the oral ruling, filing a motion and response to the same on July 26, 2005. There are no significant differences between what the parties raised in their motions for reconsideration and the issues raised on appeal. The trial court denied Peter’s motion for reconsideration in its entirety. The trial court also denied Carmen’s motion for reconsideration in its entirety.

¶8 The trial court issued its written findings of fact on August 26, 2005. Based on those findings, the trial court stated, “Given the difference in age, earning capacity, physical condition, and that husband had the ability to earn income and save for retirement in the future, it is fair and equitable to divide the community property 60 percent to wife and 40 percent to husband.” It also ordered the family home to be sold in order to provide liquidity to both parties.

¶9 Neither party moved for reconsideration of the written findings of fact. Peter filed his notice of appeal on September 26, 2005. Carmen filed her notice of cross-appeal on October 4, 2005.

[242]*242ANALYSIS

I. Standard of Review

¶10 Appellate courts apply the substantial evidence standard of review to findings of fact made by the trial judge. See 3 Wash. State Bar Ass’n, Washington Family Law Deskbook § 65.4(1), at 65-9 (2d ed. 2006). As long as the findings of fact are supported by substantial evidence, they will not be disturbed on appeal. Thorndike v. Hesperian Orchards, Inc., 54 Wn.2d 570, 575, 343 P.2d 183 (1959). “ ‘Substantial evidence exists if the record contains 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, 106 Wn.2d 212, 220, 721 P.2d 918 (1986)). Where the trial court has weighed the evidence, the reviewing court’s role is simply to determine whether substantial evidence supports the findings of fact and, if so, whether the findings in turn support the trial court’s conclusions of law. In re Marriage of Greene, 97 Wn. App. 708, 986 P.2d 144 (1999). A court should “not substitute [its] judgment for the trial court’s, weigh the evidence, or adjudge witness credibility.” Id. at 714 (citing In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996)).

¶11 The trial court’s distribution of property in a dissolution action is guided by statute, which requires it to consider multiple factors in reaching an equitable conclusion. These factors include (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.

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Bluebook (online)
170 P.3d 572, 141 Wash. App. 235, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-rockwell-washctapp-2007.