FILED SEPTEMBER 12, 2024 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
In the Matter of the Marriage of: ) ) No. 39546-4-III ANDREW O. THEW, ) ) Appellant, ) ) UNPUBLISHED OPINION and ) ) WHITNEY MARY JACQUES, ) ) Respondent. )
FEARING, J. — In this marital dissolution appeal, we must decide whether a
residence titled solely in the husband’s name should be treated as community property.
The husband purchased the home before the marriage but purchased the house for his
then girlfriend and later wife to occupy with him, and the girlfriend and her daughters
moved into the residence at the same time as the husband. The question on appeal
requires examination of Washington’s committed intimate relationship rule. Because the
husband, then boyfriend, spent seven nights a week at the girlfriend’s prior residence
before the move, because the couple had already become pregnant, because the husband
chose the house in part to please the girlfriend’s daughter, because the couple intended
the home to be a family home, because the parties agreed that the husband would pay the
mortgage in exchange for the wife paying for food, utilities, and child expenses, because
the husband failed to show the date of the home purchase or that he was the only one to No. 39546-4-III In re Marriage of Thew
make the down payment, because the couple thereafter bore two children that resided in
the home, and because the couple had a long-term relationship, we answer the question in
the affirmative. We affirm the marital dissolution court’s characterization of the
residence as similar to community property and affirm the equal division of assets and
debts.
FACTS
This divorcing couple is husband Andrew Thew and wife Whitney Jacques.
Because they engaged in a monogamous girlfriend-boyfriend relationship before
marriage, we refer to them as girlfriend and boyfriend during the period before the
marriage and as husband and wife after the marriage. The appeal raises the sole issue of
whether a home, on Driscoll Boulevard in Spokane, purchased before the marriage was
the separate property of the husband or community-like property of both spouses based
on the existence of a committed intimate relationship. The parties call the house the
“Driscoll home.” Title to the residence was listed only in the husband’s name.
In short, the parties met in 2009 and began dating in 2013. Andrew Thew
purchased the Driscoll home on some unspecified date in May 2015, and the couple
moved into the abode on May 5, 2015. Thew and Whitney Jacques married in 2016 and
separated in 2022. In trial testimony, the parties differed in the facts behind their intimate
relationship, the purchase of the residence, their understandings about the nature of the
home, and their financial arrangements.
2 No. 39546-4-III In re Marriage of Thew
In long, Andrew Thew and Whitney Jacques met through mutual friends in 2009.
Thew works as a maintenance foreman for Spokane Parks and Recreation. Jacques
operates a small organic farm in Vinegar Flats. Thew and Jacques started dating in June
of 2013. At that time, Jacques was married to someone else, whom she divorced in 2014.
She had two daughters from this previous marriage.
Whitney Jacques avowed at trial that a committed intimate relationship began
when she and Andrew Thew began dating in June 2013. The couple had known one
another for a while before dating and, according to Jacques, “jumped right into being in a
committed relationship.” Report of Proceeding (RP) at 66-67. Thew and she dated each
other exclusively between June 2013 and their marriage in April 2016.
Whitney Jacques testified that she and Andrew Thew spoke about pregnancy and
marriage before the purchase of the Driscoll home. Jacques did not wish to bear children
with someone to whom she was not married. According to Jacques, she and Thew tried
to get pregnant for three months until she became pregnant in 2014. She and Thew were
excited about the pregnancy and told his family about it. Jacques miscarried in early
2015.
Andrew Thew averred that the couple’s first pregnancy, which resulted in a
miscarriage, was unplanned. Nevertheless, according to Thew, he and Whitney Jacques
discussed getting married when she got pregnant.
3 No. 39546-4-III In re Marriage of Thew
The parties never shared a bank account, did not share expenses, and did not begin
pooling resources or finances until they moved into the Driscoll home on May 5, 2015.
Andrew Thew and Whitney Jacques had separate residences until they moved into the
Driscoll home. According to Jacques, Thew spent every night at her previous apartment,
however. She added that Thew, who then rented a house with a coworker, never spent
time at the rented house. Thew testified he spent four to five nights per week at Jacques’
residence beginning in 2013. Thew continued to receive his mail at the other address.
We do not know the specific date on which Andrew Thew purchased the Driscoll
home. As far as this court knows, Thew did not introduce as an exhibit at trial the
purchase documents. He also did not testify to the date of any earnest money agreement,
closing of the transaction, or delivery of the deed. Also, as far as we know, Thew did not
introduce as an exhibit any financial records that confirmed the purchase. Thew testified
that only he searched for a home and that Whitney Jacques accompanied him to view the
Driscoll home only after he paid earnest money.
According to Whitney Jacques, she and Andrew Thew shared the down payment,
with her contributing $1,000 and Thew contributing $4,000. She presented no
documentation supporting her contribution. Thew testified that he did not ask Jacques to
contribute to the purchase of the Driscoll home. Thew did not recall Jacques making a
$1,000 contribution to the down payment.
4 No. 39546-4-III In re Marriage of Thew
Whitney Jacques believed, when they looked for a home, that Andrew Thew
intended for the home to be their joint property. Jacques avowed:
He [Thew] talked about having room for all of us. He wanted to have a yard for the girls, my [Jacques’] daughters that we already had and future children. He wanted, you know, to make a master bedroom in the basement and so we could have our kids upstairs. He was excited for the girls to have their own room. He was excited that there was purple roses on the linoleum in the kitchen because at the time my 17-year-old daughter loved purple and she loved roses and he thought she would be really excited about it.
RP at 70-71. According to Jacques, Thew spoke of the home as “their” home to friends
and family.
Andrew Thew insisted, during trial, that the Driscoll residence remained his sole
property during the parties’ entire relationship. Yet, on cross-examination, when asked
about photographs taken on the day he moved into the home, which photos showed
Whitney Jacques and her two daughters, Thew testified:
It was our home together. It was my house.
RP at 120. Perhaps Thew meant that the physical structure remained his possession,
while the abode’s ambiance, the home’s domesticity, the intimate moments transpiring in
the residence, and the joy of family living became that of the entire family.
Andrew Thew solely paid the mortgage. Both parties testified, however, to an
agreement under which Thew paid the mortgage, while Whitney Jacques paid for food,
5 No. 39546-4-III In re Marriage of Thew
utilities, and child-related expenses. The parties never shared bank accounts. According
to Thew, after the purchase of the home, Jacques asked him to place her name on the title.
Andrew Thew and Whitney Jacques married on April 7, 2016. When the couple
wed, Jacques requested Home Depot gift cards from friends and family so that she and
Thew could perform improvements to the Driscoll home. Jacques’ mother gave a
wedding gift of a new front window for the residence.
Andrew Thew and Whitney Jacques bore two children together. Their first child
was born on November 1, 2016. Thew testified to a common belief reached by one of the
marriage partners that, after the birth of children, living conditions changed and he did
not feel like the home was his space anymore. He testified, “It was hers, and I didn’t feel
welcome in my own home.” RP at 92. Jacques and Thew resided together in the Driscoll
home for six-and-a-half years before Jacques vacated the home on January 1, 2022.
PROCEDURE
Andrew Thew filed for marital dissolution in December 2021. The dissolution
court entered an agreed parenting plan in August 2022. The case proceeded to trial in
November 2022 with only the division of assets and liabilities at issue.
After trial, the dissolution court adjudged the Driscoll home to be a community
asset valued at $330,000. The court added that the mortgage on the Driscoll home,
valued at $124,970, was community debt. The court divided all community property and
6 No. 39546-4-III In re Marriage of Thew
debt equally between the parties. The dissolution court awarded Andrew Thew the
Driscoll home and ordered him to pay Whitney Jacques an equalization payment.
The dissolution court entered, in part, the following findings of fact:
8. Real Property
The spouses’ real property is listed below: . . . Driscoll Blvd. [characterized as community property] Conclusion: The division of real property described in the final order is fair ....
11. Community Debt
The spouses’ community debt is listed below: Guild Mortgage of $124,970 Conclusion: The division of community debt described in the final order is fair. ....
22. Other findings or conclusions
At trial, the Respondent asserted that the parties were in a Committed Intimate Relationship (CIR) prior to their marriage. The Petitioner denied that a CIR existed prior to marriage. The Court has analyzed the five Connelly [sic] factors to determine if CIR existed prior to the parties’ marriage. Factor One - Cohabitation: The parties started dating in 2013. At that time, Ms. Jacques was legally married to another individual but separated. Her divorce from her husband was finalized in spring 2014. Until the Driscoll property was purchased in May of 2015, the parties each had their own residence. Although Mr. Thew frequently stay [sic] at Ms. Jacques’ home on Broadway, he did not consider that to be his home, he did not receive any mail there, and the Broadway address was not listed on his driver’s license. Consequently, the parties did not cohabitate together until after they moved into the Driscoll home in May 2015.
7 No. 39546-4-III In re Marriage of Thew
Factor Two - Duration of Relationship: The parties’ relationship started prior to their marriage and lasted until the end of 2021 or beginning of 2022 when this dissolution action was filed. Consequently, the parties’ relationship continued for eight and a half years. Factor Three - Intent of the Parties: The parties intended to be in a long-term relationship and continued with the long-term relationship when the Driscoll house was purchased in May 2015. The parties moved into the house as a family and continued to have two children. The parties eventually married. There was a mutual agreement of the parties to form that type of a relationship, living together, resources, to build a family, and eventually end up married, things of that nature support the intent of the parties to be in that kind of a relationship. Factor Four - Pooling of Resources: Once the parties moved into the Driscoll home, Mr. Thew paid the mortgage while Ms. Jacques paid the utilities, food, and expenses that came up for the kids. Sharing of these expenses continued until Ms. Jacques vacated the Driscoll home in January 2022. The parties also invested their time and resources into the Driscoll home. Factor Five - Purpose of Relationship: Based on the totality of testimony heard and the evidence admitted at trial, the purpose of the relationship, particularly based on the fact that the parties eventually married and have two children, was to have companionship, friendship, love, mutual support, caring, and building a family together. That purpose began prior to the parties getting married. Based on the analysis of the foregoing factors, the parties were in a CIR prior to their marriage and prior to the purchase of the Driscoll house. Because the Driscoll home was purchased during the existence of a CIR, it is presumed community. A party alleging separate [sic] nature of an asset otherwise presumed to be community must provide clear, cogent, and convincing evidence to support such an assertion. Mr. Thew’s testimony with regards to the down payment of $4,000 being separate in nature is self- serving and does not meet the burden. As such, the entire Driscoll home is community in nature.
Clerk’s Papers (CP) at 69-72 (boldface omitted). Although the trial court acknowledged
the purchase of the home as occurring in May 2015, the court entered no finding of fact
8 No. 39546-4-III In re Marriage of Thew
as to the actual date of the purchase of the Driscoll home or as to whether Whitney
Jacques contributed to the down payment on the home.
LAW AND ANALYSIS
On appeal, Andrew Thew argues that no committed intimate relationship may
exist before the date the parties begin to cohabitate. In turn, he contends that the
dissolution court could not have declared the Driscoll home to be community property
because, as a matter of law, no committed intimate relationship existed at the time he
purchased the home. He highlights that the dissolution court did not find that the parties
cohabitated until moving to the Driscoll home. He contends that the dissolution court’s
division of property was unfair, but solely on the basis of the mischaracterization of the
Driscoll home. In the course of his attack on the dissolution court’s decision, Thew
contends that findings of fact 8, 11, and portions of 22 lacked a basis in the evidence.
Whitney Jacques argues that the couple entered a committed intimate relationship
when they began dating in 2013, two years before the purchase of the home. According
to Jacques, because Andrew Thew purchased the Driscoll home during the intimate
relationship, the dissolution court properly treated the residence as community property.
Jacques further argues that, assuming the dissolution court erred in finding that a
committed intimate relationship changed the status of the Driscoll home from Thew’s
separate property to community property, the court still could have awarded her, during
the marital dissolution, an interest in the home or an equalization payment.
9 No. 39546-4-III In re Marriage of Thew
RCW 26.09.080 allows the court to award one spouse the separate property of the other
spouse as part of an equitable division of property. Because we rule that the dissolution
court did not err, we do not address this last argument from Jacques.
Findings of Fact
Before analyzing the law of a committed intimate relationship, we isolate the
findings of fact challenged by Andrew Thew to determine if evidence supports the
findings. Thew challenges findings of fact 8 and 11, and portions of 22.
In finding of fact 8, the trial court found the Driscoll home to be the community
property of the parties and its equal division of the property to be fair. In finding of fact
11, the trial court found the mortgage on the home to be a community liability. Finding
of fact 11 follows from finding of fact 8. Both findings of fact 8 and 11 are mixed
findings of fact and conclusions of law. We reserve an examination of whether
substantial evidence supports the findings when analyzing the law of a committed
intimate relationship.
Finding of fact 22 comprises a lengthy recital of facts relevant to the determination
of whether the parties entered a committed intimate relationship and whether the Driscoll
home should be classified as community property. Andrew Thew challenges six discrete
findings within the paragraph that conclude that (1) the parties entered a committed
intimate relationship before May of 2015, (2) the parties’ committed intimate relationship
lasted eight years, (3) the parties intended a long-term marital and family relationship that
10 No. 39546-4-III In re Marriage of Thew
included raising children together, (4) the couple shared expenses and pooled resources
with Thew paying the mortgage and Whitney Jacques paying food, utilities, and child
expenses, (5) the parties intended a lengthy relationship that included love,
companionship, support, and building a family even before the marriage, and (6) the
Driscoll home was purchased during a committed intimate relationship. We review the
evidence behind each finding.
We defer to the trial court’s challenged findings of fact when supported by
substantial evidence. Muridan v. Redl, 3 Wn. App. 2d 44, 54, 413 P.3d 1072 (2018).
Substantial evidence exists if the record contains evidence of a sufficient quantity to
persuade a fair-minded, rational person of the truth of the declared premise. In re
Marriage of Fahey, 164 Wn. App. 42, 55, 262 P.3d 128 (2011). The existence of a
committed intimate relationship, or the date it begins, is a legal conclusion, which this
court reviews de novo. Morgan v. Briney, 200 Wn. App. 380, 389, 403 P.3d 86 (2017).
We note that the dissolution court’s findings of fact echo the testimony of Whitney
Jacques, not Andrew Thew. Still, the court made no express finding of credibility. In
Byerley v. Cail, 183 Wn. App. 677, 334 P.3d 108 (2014), this court accepted the
testimony of the girlfriend as a verity because, although the trial court did not expressly
make a credibility determination, the findings established that the court credited Margaret
Byerley’s testimony and did not believe James Cail’s testimony. We do similarly with
Jacques’ testimony.
11 No. 39546-4-III In re Marriage of Thew
The trial court found that Andrew Thew and Whitney Jacques entered a committed
intimate relationship before the purchase of the Driscoll home. The finding does not
identify the date on which the intimate relationship began or the exact date of the
purchase. Often, a court encounters difficulty pinpointing a specific date when the
intimate relationship began because couples slide into the relationship. Thew does not
expressly disclose the date on which he contends the committed intimate relationship
began, but his argument implies none existed before the April 2016 marriage. More
importantly, he argues that no committed intimate relationship could start before the two
cohabitated at the Driscoll residence.
We leave until later in the opinion the question of whether a couple must
cohabitate in order to enlist in a committed intimate relationship. Assuming cohabitation
is not necessary, we find sufficient evidence to support a finding of a committed intimate
relationship months before May 2015. The parties dated no one else between June 2013
and May 2015. The two spoke about marrying and having children, and Whitney Jacques
did not wish to bear a child with someone other than a husband. Jacques became
pregnant in 2014. Andrew Thew became excited. Although the two maintained separate
residences, Thew, according to Jacques, spent every night and nearly all free time at her
residence. Thew sought to purchase a home for the family, including children that the
two would bear together.
12 No. 39546-4-III In re Marriage of Thew
Andrew Thew attacks the dissolution court’s finding that the parties’ committed
intimate relationship lasted eight years. This challenge relates to Thew’s contention that
a committed intimate relationship could not commence until cohabitation. We agree that,
assuming cohabitation is an essential element to such a relationship, the committed
intimate relationship lasted only six to seven years. If cohabitation is not necessary, the
committed intimate relationship lasted as long as eight years. We do not consider the
difference between six and eight years significant in our later analysis.
Andrew Thew next challenges the finding that the parties intended a long-term
marital and family relationship that included raising children together. Overwhelming, if
not undisputed testimony, supports this finding. Even before May 2015, the parties
discussed marriage and child rearing. Whitney Jacques became pregnant in 2014. Thew
purchased a home with a color scheme to please Jacques’ oldest daughter.
Andrew Thew complains that the evidence does not support a finding that the
couple shared expenses and pooled resources with Thew paying the mortgage and
Whitney Jacques paying food, utilities, and child expenses. We agree that the evidence
supports no such finding if the trial court intended for the finding to extend to time before
occupying the Driscoll home. The undisputed evidence, including Thew’s testimony,
however, showed the parties agreed to share expenses after dwelling in the Driscoll
residence.
13 No. 39546-4-III In re Marriage of Thew
Andrew Thew next assigns error to the finding that the parties intended a lengthy
relationship that included love, companionship, support, and building a family even
before the marriage. For reasons already expressed, substantial evidence supported this
finding.
Finally, Andrew Thew challenges the finding that he purchased the Driscoll home
during a committed intimate relationship. We reserve discussion on this finding.
Committed Intimate Relationship
To analyze the parties’ legal contentions on appeal, we first discuss the adoption
of, and principles emanating from, this state’s committed intimate relationship rule.
Before 2007, the law branded a cohabitating intimate relationship as a “meretricious
relationship,” a phrase sometimes defined by laypeople as an attractive relationship that
lacked integrity. Because of the pejorative nature of the term, the Washington Supreme
Court, in 2007, relabeled the relationship with a politically correct term of “committed
intimate relationship.” Olver v. Fowler, 161 Wn.2d 655, 168 P.3d 348 (2007). We
generally use the latter nomenclature. We also note that the committed intimate
relationship signifies the same relationship considered to be a common law marriage in
many other jurisdictions. 52 Am. Jur. 2d Marriage § 36 (2024). Common law marriage
is not recognized under Washington law. In re Marriage of Pennington, 142 Wn.2d 592,
600, 14 P.3d 764 (2000); Peffley–Warner v. Bowen, 113 Wn.2d 243, 249, 778 P.2d 1022
(1989). So, we pretend we do not apply common law marriage and utter the phrases
14 No. 39546-4-III In re Marriage of Thew
“marital-like relationship” or “committed intimate relationship” instead. In re Marriage
of Pennington, 142 Wn.2d 592, 601 (2000).
Historically, the law presumed property acquired during a meretricious
relationship to belong to the person who held title to the property. Connell v. Francisco,
127 Wn.2d 339, 347, 898 P.2d 831 (1995). In the absence of any evidence to the
contrary, courts presumed as a matter of law that the parties intended to dispose of the
property exactly as they acquired it. Creasman v. Boyle, 31 Wn.2d 345, 356, 196 P.2d
835 (1948). The Washington Supreme Court labeled the presumption the Creasman
presumption.
Legal pundits and one Washington Supreme Court justice attacked the Creasman
presumption as unfair. Justice Finley penned:
The rule often operates to the great advantage of the cunning and the shrewd, who wind up with possession of the property, or title to it in their names, at the end of a socalled [sic] meretricious relationship. So, although the courts proclaim that they will have nothing to do with such matters, the proclamation in itself establishes, as to the parties involved, an effective and binding rule of law which tends to operate purely by accident or perhaps by reason of the cunning, anticipatory designs of just one of the parties.
West v. Knowles, 50 Wn.2d 311, 316, 311 P.2d 689 (1957) (Finley, J., concurring).
Although on occasion the presumption might benefit the woman in the relationship,
typically the man benefited as seen in most reported decisions.
15 No. 39546-4-III In re Marriage of Thew
To avoid inequitable results, Washington courts developed a number of
exceptions, including an implied partnership, a constructive trust, tracing source of funds,
contract theory, tenancy in common, and a constructive trust. Latham v. Hennessey, 87
Wn.2d 550, 554 P.2d 1057 (1976); In re Estate of Thornton, 81 Wn.2d 72, 499 P.2d 864
(1972); Humphries v. Riveland, 67 Wn.2d 376, 407 P.2d 967 (1965); Shull v. Shepherd,
63 Wn.2d 503, 506, 387 P.2d 767 (1963); West v. Knowles, 50 Wn.2d 311 (1957);
Dahlgren v. Blomeen, 49 Wn.2d 47, 298 P.2d 479 (1956); Omer v. Omer, 11 Wn. App.
386, 523 P.2d 957 (1974); Washington State Bar Association, Community Property
Deskbook §§ 2.70–2.76 (1989). Presumably, these alternative theories of acquiring an
adjudicated ownership interest in property by a boyfriend or girlfriend remain available,
but Whitney Jacques does not rely on any of them.
In 1984, the Washington Supreme Court abrogated the Creasman presumption in
In re Marriage of Lindsey, 101 Wn.2d 299, 678 P.2d 328 (1984). In its place, the court
adopted a general rule requiring a just and equitable distribution of property following a
meretricious relationship. Connell v. Francisco, 127 Wn.2d 339, 347 (1995); In re
Marriage of Lindsey, 101 Wn.2d 299, 304 (1984).
The Washington Supreme Court grounded the rule of meretricious relationship,
now committed intimate relationship, on an underlying equitable foundation. In re
Marriage of Pennington, 142 Wn. 2d 592, 602 (2000); Muridan v. Redl, 3 Wn. App. 2d
44, 62 (2018). Courts, when applying factors showing the presence of a committed
16 No. 39546-4-III In re Marriage of Thew
intimate relationship, should remember that the factors are simply the tools courts use to
enhance an understanding of the equities that encompass a committed intimate
relationship analysis. Muridan v. Redl, 3 Wn. App. 2d 44, 62 (2018). The bottom line is
that, when a committed intimate relationship ends, no one party should be unjustly
enriched. Muridan v. Redl, 3 Wn. App. 2d 44, 62 (2018). The doctrine simply seeks a
fair and equitable division of assets at the end of the relationship. In re Marriage of
Pennington, 142 Wn. 2d 592, 602 (2000); Muridan v. Redl, 3 Wn. App. 2d 44, 62 (2018).
These sentences suggest that no court should be slavish to any black letter rules behind a
committed intimate relationship analysis. This suggestion directs utilize fairness and
equity in resolving Andrew Thew’s appeal.
Cohabitation
Andrew Thew insists that a couple must be cohabitating at the time of the
acquisition of an asset for that asset to be treated as community property under the
committed intimate relationship rule. In turn, he emphasizes the dissolution court’s
finding that he and Whitney Jacques did not cohabitate until they moved into the Driscoll
home. One Court of Appeals decision agrees with Thew: Byerley v. Cail, 183 Wn. App.
677 (2014). We disagree with the decision and rule otherwise.
In Byerley v. Cail, 183 Wn. App. 677 (2014), James Cail contended that
uncontroverted evidence at trial established that he purchased the house as his separate
property before the inception of the committed intimate relationship. Margaret Byerley
17 No. 39546-4-III In re Marriage of Thew
testified that she and Cail began cohabitating at the end of September or in October 1996.
Cail, on the other hand, denied at trial that the parties had a committed intimate
relationship at all and contended that he bought the house in July 1996. Cail alone signed
a purchase and sale agreement in July. The seller executed a deed conveying the property
to Cail alone on September 9, 1996, which deed was recorded on September 13.
This court, in Byerley v. Cail, reversed the trial court and held that the property
remained the separate property of James Cail. In so holding, this court ruled that a
committed intimate relationship cannot commence before the date the parties began
living together. Cohabitation is a sine qua non of a committed intimate relationship.
When declaring cohabitation to be essential for treatment of an asset under the
committed intimate relationship rule, the Court of Appeals, in Byerley v. Cail, relied on a
passage from Connell v. Francisco:
A meretricious 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 (1995) (emphasis added). Other decisions
have repeated this description of a committed intimate relationship as including
cohabitation. Muridan v. Redl, 3 Wn. App. 2d 44, 55 (2018). Nevertheless, the
Washington Supreme Court, in Connell v. Francisco, never expressly held that residing
in separate residences precludes a committed intimate relationship. More importantly,
the Supreme Court cited for its description of the meretricious relationship the decision of
18 No. 39546-4-III In re Marriage of Thew
In re Marriage of Lindsey, 101 Wn.2d 299 (1984), the decision that first recognized one
party may gain an interest in property titled in the other party’s name despite living
together outside of marriage. The Supreme Court, in In re Marriage of Lindsey,
mentioned nonmarital couples cohabitating, but the court nowhere suggested that
cohabitation is needed. The court did not describe a meretricious relationship as a stable,
marital-like relationship, during which both parties cohabitate.
The Washington Supreme Court, years after In re Marriage of Lindsey, collated a
list of five factors mentioned in Lindsey that evidence a committed intimate relationship.
The list reads: (1) continuity of cohabitation, (2) duration of the relationship, (3) purpose
of the relationship, (4) pooling of resources and services for joint projects, and (5) the
intent of the parties. Connell v. Francisco, 127 Wn.2d 339, 346 (1995). We will later
analyze the factors. For now, we note that the five factors are not exclusive. In re
Marriage of Pennington, 142 Wn.2d 592, 602 (2000). No one factor is determinative or
more important than another. Walsh v. Reynolds, 183 Wn. App. 830, 845, 335 P.3d 984
(2014); In re Long and Fregeau, 158 Wn. App. 919, 926, 244 P.3d 26 (2010). Courts
should not apply these factors in a hyper-technical fashion, but must base the
determination on the circumstances of each case. In re Marriage of Pennington, 142
Wn.2d 592, 602 (2000); Muridan v. Redl, 3 Wn. App. 2d 44, 55 (2018). While the
criteria assist in determining the existence of committed intimate relationship, the
Supreme Court did not adopt them as a rigid set of requirements but directed that courts
19 No. 39546-4-III In re Marriage of Thew
examine each case on its facts. In re of Marriage of Lindsey, 101 Wn.2d 299, 305
(1984).
The first factor is continuity of cohabitation. No decision states that continuity of
cohabitation includes occupying the same residence at the time of the acquisition of the
subject property. More importantly, since no factor controls the outcome of the case, no
length or discrete time of cohabitation should govern. Rigidly conditioning a
community-like interest in an asset on cohabitation at the time of acquisition conflicts
with the rule that no one factor controls and obstructs the direction of the Supreme Court
to perform equity in each case. Such rigid application of the rule fails to recognize that
couples do not necessarily enter a committed intimate relationship at a precise moment in
a discrete place.
We next note that Andrew Thew provided no testimony as to when he acquired the
Driscoll home. He supplied no documents confirming the date of the sale. The trial court
entered no finding identifying the date of the acquisition other than noting the purchase
occurred in May 2015.
Although Andrew Thew titled the home in his name, Whitney Jacques also paid
$1,000 for the down payment. Thew fails to recognize this payment and its implication
for Jacques partially owning the home.
20 No. 39546-4-III In re Marriage of Thew
The dissolution court deemed Andrew Thew’s testimony that he tendered a $4,000
down payment as self-serving and a failure in his burden of proof. Thew presented no
document confirming payment for the acquisition of the Driscoll home.
In Morgan v. Briney, 200 Wn. App. 380 (2017), the committed intimate
relationship began in mid-1994. Nickey Briney purchased the house in his name in
November 1995. To rebut the presumption of the house being a community asset, Briney
needed to show that he acquired the house with separate funds. The parties agreed that
Briney paid the initial $74,000 down payment, but the trial court’s findings of fact did not
contain any specific information about the source of the funds that Briney used to make
that down payment. Briney did not trace the funds he used for the down payment to a
specific separate account or show that the funds came from separate income. On appeal,
Briney emphasized his testimony that he used his money, Margaret Morgan’s admission
that he used his money, and statements showing his net worth at the time of acquisition.
This court ruled that such testimony did not satisfy Briney’s burden of proof. This court
noted that the trial court never entered a finding that Briney met his burden with clear and
convincing evidence. Therefore, we presumed that the court made a finding against
Briney on this issue. We further held that the trial court did not err by characterizing the
house as a community asset.
Assuming Andrew Thew secured the Driscoll home before the couple and the
daughters inhabited the home, the acquisition would have occurred only days before the
21 No. 39546-4-III In re Marriage of Thew
move. No case addresses the situation of when the title to the home is placed in one
partner’s name and the couple contemporaneously occupied the residence while engaged
in an intimate family relationship. Thew splits hairs too thinly. The two intended to live
together as a family at the Driscoll home and Jacques became pregnant with their child
before the move.
Finally, we note that the dissolution court found that the couple first cohabitated
when living in the Driscoll home, but also found that the committed intimate relationship
began before the parties moved into the residence. Thus, the trial court deemed
cohabitation unessential to its finding of the committed intimate relationship. The
findings do not identify the date when the relationship began, but the trial court must
have considered that Andrew Thew spent all of his free time at Whitney Jacques’
apartment before the couple switched to the Driscoll home. For this reason, we question
the trial court’s finding that cohabitation did not occur until the two occupied the Driscoll
In Morgan v. Briney, 200 Wn. App. 380 (2017), the parties disputed when the
committed intimate relationship began. The parties also contested the character of the
house as Nickey Briney asserted he purchased the property with his separate financial
resources before the commencement of the committed intimate relationship. Briney
contended the committed intimate relationship began after an eight-month hiatus in his
and Margaret Morgan’s cohabitation, about four years after acquiring the house. The
22 No. 39546-4-III In re Marriage of Thew
trial court determined the committed intimate relationship began when the parties moved
into the house together. The Court of Appeals, after noting the existence of a committed
intimate relationship is dependent on the facts of each case, actually rolled back the date
the committed intimate relationship commenced to an earlier date when the parties first
began cohabitating in an apartment.
Connell Factors
We now review the five Connell factors that guide us when assessing whether the
relationship ripened into a committed intimate relationship. To repeat, those factors are:
continuous cohabitation, duration of the relationship, purpose of the relationship, pooling
of resources and services for joint projects, and the intent of the parties. Connell v.
Francisco, 127 Wn.2d 339, 346 (1995). These factors are not exclusive, and no one
factor is more important than the others. In re Marriage of Pennington, 142 Wn.2d 592,
602 (2000). Courts should not apply these factors in a hyper-technical fashion, but must
base the determination on the circumstances of each case. In re Marriage of Pennington,
142 Wn.2d 592, 602 (2000); Muridan v. Redl, 3 Wn. App. 2d 44, (2018). The weight to
be given to each factor has not been established, nor has how to balance one factor
against any other factor or factors. Muridan v. Redl, 3 Wn. App. 2d 44, 62 (2018).
Ultimately, the existence of a committed intimate relationship depends on the facts of
each case, and the “factors are meant to reach all relevant evidence” that may be helpful.
In re Marriage of Pennington, 142 Wn.2d 592, 602 (2000).
23 No. 39546-4-III In re Marriage of Thew
Continuity of Cohabitation
We journey through the Connell factors, beginning with cohabitation. Andrew
Thew emphasizes finding of fact 22 that reads in part: “the parties did not cohabitate
together until after they moved into the Driscoll home in May 2015.” CP at 72. We have
already noted that Thew, despite maintaining a different address, stayed every night at
Whitney Jacques’ apartment for months before May 2015. The parties had already acted
as a committed, intimate couple talking about marriage and conceiving a child.
Even assuming Whitney Jacques and Andrew Thew did not cohabitate before the
purchase of the Driscoll home, the two immediately cohabitated on its purchase in May
2015. The couple thereafter continuously cohabitated until January 2022. This factor
favors a committed intimate relationship.
Duration of Relationship
Andrew Thew argues that the trial court erred in finding that the parties had an
eight-and-a-half-year relationship, particularly when the court found they did not
cohabitate until May 2015. Even under Thew’s reckoning, the relationship lasted six
years. This duration suffices for the factor to favor a committed intimate relationship.
While a “long term” relationship is not a threshold requirement, duration is a
significant factor. Connell v. Francisco, 127 Wn.2d 339, 346 (1995). In In re Marriage
of Lindsey, 101 Wn.2d 299 (1984), the Supreme Court deemed that a relationship lasting
less than two years qualified as a meretricious relationship.
24 No. 39546-4-III In re Marriage of Thew
In Muridan v. Redl, 3 Wn. App. 2d 44 (2018), the trial court found the duration of
the relationship of the parties involved to be approximately seven years. This court
upheld the trial court’s finding because the available record established the parties “were
in a dating relationship for about two years before living together as a couple for a total
of over six years.” Muridan v. Redl, 3 Wn. App. 2d 44, 59 (2018).
Intent of the Parties
Andrew Thew argues that substantial evidence fails to support the trial court’s
finding that the parties intended to engage in a long-term relationship before cohabitating.
According to Thew, the dissolution court arrived at this finding based only on decisions
the couple made after residing together.
In Muridan v. Redl, 3 Wn. App. 2d 44 (2018), the trial court found that the parties
intended to live together as a family and enter into a committed intimate relationship.
This court upheld the finding because the parties continuously lived together for over six
years, executed a domestic partnership affidavit, chose to raise a child together, remained
committed to each other when problems arose in their marriage, and actively attempted to
have a second child together.
Testimony established that Whitney Jacques and Andrew Thew, before May 2015,
discussed building a family together, buying a home, and marrying. The couple excitedly
experienced a pregnancy before the purchase of the Driscoll home. Thew spoke about
Jacques’ daughters from her previous marriage residing in the home. Once the parties
25 No. 39546-4-III In re Marriage of Thew
moved into the Driscoll dwelling, they shared expenses and lived together continuously
for six years. They married on April 7, 2016. During their marriage, the parties bore two
children together. This evidence establishes that the parties intended to be in a long-term,
committed relationship before and after the purchase of the home.
Pooling of Resources
The dissolution court found that the parties pooled resources, and we earlier found
substantial evidence to support the finding. This factor favors the presence of a
committed intimate relationship.
Fairness stemming from the parties’ pooling of resources particularly demands a
ruling in favor of Whitney Jacques. While Andrew Thew used his paycheck to pay the
mortgage, Jacques spent her earnings on food, utilities, and child expenses for the entire
family. Thew, in essence, wishes his income to solely benefit him, while Jacques’ wages
benefitted the family as a whole. Thew does not suggest that he will repay Jacques a
portion of the money she invested in the well-being of the family that included Thew and
his children.
Purpose of Relationship
Andrew Thew does not assert any argument with respect to this factor. Instead, he
writes that “The trial court did conclude that the purpose of the relationship was to have
companionship, friendship, love, mutual support, caring and building a family,” and that
“The trial court found that purpose to have ‘began back prior to the marriage.’” Br. of
26 No. 39546-4-III In re Marriage of Thew
Appellant at 35 (quoting RP 182). Thew states the court found that this factor supported
the existence of a committed intimate relationship. We agree. This factor weighs in
favor of the existence of a committed intimate relationship at the time of the Driscoll
home purchase.
Conclusion
This court reviews a trial court’s conclusion that the parties were in a committed
intimate relationship de novo. Muridan v. Redl, 3 Wn. App. 2d 44, 54 (2018). Whether
such relationship existed poses a mixed question of law and fact. We review de novo
whether the trial court’s legal conclusions properly follow from the findings. Muridan v.
Redl, 3 Wn. App. 2d 44, 54 (2018).
All five Connell factors weigh in favor of concluding that a committed intimate
relationship existed between Andrew Thew and Whitney Jacques when the Driscoll home
was purchased. We conclude that the dissolution court did not err when finding such a
relationship existed for purposes of joint ownership of the Driscoll residence.
Andrew Thew also challenges the dissolution court’s characterization of the
mortgage debt on the Driscoll home as a community liability. Of course, this ruling
benefits Thew assuming the home gained community property status. A debt incurred by
either spouse during marriage is presumed to be a community debt. Oil Heat Co. of Port
Angeles v. Sweeney, 26 Wn. App. 351, 353, 613 P.2d 169 (1980). This presumption
generally applies to debt incurred during a committed intimate relationship.
27 No. 39546-4-III In re Marriage of Thew
The test for determining whether a debt obligation is separate or community in nature is the purpose for which the note was executed. If the money is borrowed for a community purpose, then the debt is community. On the other hand, if the money is borrowed for a separate purpose, then the debt is separate.
In re Marriage of Hurd, 69 Wn. App. 38, 54-55, 848 P.2d 185 (1993) (citations omitted).
The mortgage on the Driscoll home was acquired during a committed intimate
relationship. Therefore, that debt is presumed to be community-like.
Equitable Division of Marital Assets
Declaring the parties to have engaged in a committed intimate relationship and
identifying a time when the relationship began are not ends in themselves. These
assessments help to determine the nature of an asset for purposes of dividing assets when
the relationship ends, whether or not the couple eventually married. Property acquired
before an intimate family relationship began is presumed to be separate property, while
the law considers property acquired during the relationship to be community property.
Morgan v. Briney, 200 Wn. App. 380, 390 (2017).
Andrew Thew does not contend that, even if the committed intimate relationship
existed at the time of his acquisition of the Driscoll home, the asset should remain his
separate property because he solely paid for the house. The party asserting that an asset
acquired during the committed intimate relationship is separate property bears the burden
of proving it was acquired with separate funds. Morgan v. Briney, 200 Wn. App. 380,
28 No. 39546-4-III In re Marriage of Thew
390 (2017). The party must present clear, cogent, and convincing evidence that the asset
falls within a separate property exception. Burgess v. Crossan, 189 Wn. App. 97, 103,
358 P.3d 416 (2015). The party cannot meet this burden by mere self-serving
declarations that he acquired it from separate funds and a showing that separate funds
were available for that purpose. Berol v. Berol, 37 Wn.2d 380, 382, 223 P.2d 1055
(1950). The party must be able to trace the funds with particularity. Berol v. Berol, 37
Wn.2d 380, 382 (1950); Morgan v. Briney, 200 Wn. App. 380, 390 (2017). The name
under which property is held does not constitute direct and positive evidence
determinative of whether the property is community or separate. In re Marriage of
Skarbek, 100 Wn. App. 444, 448, 997 P.2d 447 (2000).
Andrew Thew argues the dissolution court abused its discretion in dividing the
property and in finding the property division to be just and equitable. To support this
contention, Thew only argues that the dissolution court mischaracterized the Driscoll
residence and the mortgage as a community asset and community debt.
This court reviews a trial court’s property division in a dissolution proceeding for
an abuse of discretion. Byerley v. Cail, 183 Wn. App. 677, 684-85 (2014). This court
applies that same standard “to a trial court’s distribution of property following a
committed intimate relationship.” Byerley v. Cail, 183 Wn. App. 677, 685 (2014). A
trial court abuses its discretion if its decision is manifestly unreasonable, adopts a
position no reasonable judge would take, is based on untenable grounds, or misapplies
29 No. 39546-4-III In re Marriage of Thew
the law. Muridan v. Redl, 3 Wn. App. 2d 44, 54 (2018); In re Matter of L.H., 198 Wn.
App. 190, 194, 391 P.3d 490 (2016). We conclude the dissolution court did not abuse its
discretion when dividing the couple’s assets and liabilities.
Attorney Fees
Whitney Jacques requests attorney fees on appeal pursuant to RCW 26.09.140.
She argues she has the need and Andrew Thew has the ability to pay. Because we affirm
Jacques’ equalization payment of $102,515 from Thew, we deny the request for fees.
We affirm the dissolution court’s division of property. We deny Whitney Jacques
an award of reasonable attorney fees and costs on appeal.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Fearing, J.
I CONCUR: I CONCUR IN RESULT ONLY:
Lawrence-Berrey, C.J. Pennell, J.