In the Matter of the Marriage of: Crystal Dawn Ballard & Scott Ballard

• Court: Court of Appeals of Washington
• Decided: October 17, 2024
• Docket: 39468-9
• Status: Unpublished

Opinion

FILED OCTOBER 17, 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In the Matter of the Marriage of: ) No. 39468-9-III ) CRYSTAL DAWN BALLARD, ) ) Respondent, ) ) and ) UNPUBLISHED OPINION ) SCOTT BALLARD, ) ) Appellant. )

LAWRENCE-BERREY, C.J. — In this dissolution matter, Scott Ballard appeals the

trial court’s parenting plan and property award. He argues the trial court lacked sufficient

evidence to impose parental restrictions, erred by declining to consider whether the

parties were in a committed intimate relationship (CIR) at the time Crystal Ballard

purchased the family home, and erred when it adopted Ms. Ballard’s lay opinion of their

home’s value. We disagree with his arguments and affirm.

FACTS

On January 8, 2022, Scott Ballard consumed so much vodka that he was unable to

stand. Emergency personnel responded to the scene and eventually transported Mr. No. 39468-9-III Marr. of Ballard

Ballard to the hospital, where his blood-alcohol content (BAC) was 0.36 percent.1 In the

wake of this incident, Mr. Ballard’s wife, Crystal Ballard, discovered alcohol bottles

concealed throughout the Ballards’ home and in an outbuilding on the couple’s property.

Ms. Ballard petitioned to dissolve the couple’s marriage.

Relevant to this appeal, the Ballards at trial contested the following: (1) custody of

their two-year-old son, (2) the character of their family home as a separate or community

asset, and (3) the value of their home.

Custody

In her proposed parenting plan, Ms. Ballard sought primary residential placement

of the Ballards’ son on the basis that Mr. Ballard suffered from long-term alcohol abuse

that obstructed his ability to parent. Ms. Ballard further argued that Mr. Ballard’s

alcoholism warranted the following parenting restrictions:

• Substance abuse evaluation

• Substance abuse therapy

• Substance abuse testing

• Prohibition against consuming alcohol

• Supervision of parental visits.

1 By comparison, a BAC reading of 0.08 or higher within two hours of driving renders a person guilty of the crime of driving while under the influence. RCW 46.61.502(1)(a).

2 No. 39468-9-III Marr. of Ballard

Clerk’s Papers (CP) at 9.

Conversely, Mr. Ballard argued that his history as the child’s primary caregiver

warranted awarding him primary residential placement. While Mr. Ballard conceded that

he had abused alcohol on January 8, 2022 and for roughly one year prior, he

characterized this abuse as an isolated interval that did not reflect a longer-term problem.

Specifically, Mr. Ballard argued that his drinking during this period was attributable to

marital stress and to grief over the death of his mother.

Ultimately, the trial court awarded Ms. Ballard primary custody and imposed

parenting restrictions on Mr. Ballard. When imposing its restrictions, the court cited not

just the January 8, 2022 incident but indeed a pattern of incidents that suggested recurrent

intoxication on Mr. Ballard’s part—incidents both preceding January 8, 2022 and

subsequent to that date.

Of the incidents cited, two derived from Mr. Ballard’s own testimony.

Specifically, Mr. Ballard admitted that on consecutive nights, two months after the

January 8, 2022 incident, he had consumed multiple shots of vodka.

The balance of the incidents derived from Ms. Ballard’s testimony, which Mr.

Ballard did not meaningfully contradict. Specifically, Ms. Ballard testified that Mr.

Ballard had, variously: (1) cursed, with slurred speech, at Ms. Ballard’s daughter from

another marriage, (2) become intoxicated and refused “about ten times” to complete his

3 No. 39468-9-III Marr. of Ballard

tax return, (3) left “huge food messes in the kitchen” late at night, (4) become so

intoxicated that Ms. Ballard’s son from another marriage had needed to lift Mr. Ballard

off the floor, and (5) become so intoxicated that Mr. Ballard had yelled at Ms. Ballard’s

son—then an eighth grader—about not having sexual intercourse. Rep. of Proc. (RP) at

213, 211. The first incident described above occurred seven months before January 8,

2022.

Finally, the trial court when imposing its parenting restrictions cited Mr. Ballard’s

“very, very high” BAC on January 8, 2022—implying that this BAC was relevant to a

finding of long-term alcohol abuse. RP at 381.

Family home

In her petition for dissolution, Ms. Ballard characterized the Ballards’ family

home as separate property she had acquired before marriage. Supporting this contention

was a tax affidavit indicating that Ms. Ballard had purchased the home from her parents

in 2016, prior to the Ballards’ 2017 marriage.

Mr. Ballard did not dispute that Ms. Ballard had purchased the home from her

parents prior to the couple’s marriage. However, in his response to Ms. Ballard’s

petition, Mr. Ballard disagreed with Ms. Ballard’s characterization of the couple’s real

property, and instead argued that there was a “community interest in the [couple’s]

home.” CP at 33.

4 No. 39468-9-III Marr. of Ballard

At trial, Mr. Ballard argued for the first time that the couple’s home had been

purchased during a time when the Ballards were engaged in a CIR—an assertion that if

true would render the home presumptive community property. Mr. Ballard offered this

argument even though his previous attorney, at a pretrial hearing, had not corrected

opposing counsel’s statement that Mr. Ballard was alleging only a community interest in

the home, and not alleging a CIR.

Ms. Ballard moved to exclude Mr. Ballard’s evidence of a CIR, arguing Mr.

Ballard had waited too long to raise that issue, creating unfair surprise. The court granted

Ms. Ballard’s motion, stating that, “We don’t do trial by surprise here.” RP at 101. The

court further stated that “alleging a committed, intimate relationship is different than . . .

alleging that there’s a community interest in a separate property home.” RP at 101.

At the close of trial, the court awarded the family home, as separate property, to

Ms. Ballard. However, the court also found that Mr. Ballard, an architect, had created a

$10,000 community interest in the home by designing and implementing various

renovations. The court further found that the Ballards had created a $16,457 community

interest in the home through joint mortgage payments. The court awarded the home’s

full community interest—$26,457—to Ms. Ballard, while compensating Mr. Ballard with

full ownership of a $30,000 lot the community owned in the Bahamas.

5 No. 39468-9-III Marr. of Ballard

Home valuation

Ms. Ballard valued the family home at $380,000. Ms. Ballard derived this figure

from the property’s tax-assessed value of $340,000, adjusted upward to reflect unfinished

improvements the community had administered to the home. However, because Mr.

Ballard objected to the home’s tax-assessed value as hearsay, Ms. Ballard withdrew the

exhibit containing the tax-assessed value. As a result, Ms. Ballard’s $380,000 valuation

remained on the record with no context to support it besides Ms. Ballard’s descriptions of

the home’s partly finished state. Ms. Ballard did not order an appraisal.

Mr. Ballard, on the other hand, valued the family home at $500,000. Mr. Ballard

derived this figure from his expertise as an architect, and from the fact that the home in

its renovated condition had five bedrooms and three bathrooms, rather than the two

bedrooms and one bathroom Mr. Ballard claimed the tax report reflected. Mr. Ballard

also testified that he and Ms. Ballard, when discussing refinancing, had together assumed

that the house was worth $500,000. Although Mr. Ballard ordered an appraisal, he

ultimately did not offer the appraisal as evidence.

In its oral ruling, the trial court concluded that “[n]either party really provided a

basis for their assessments.” RP at 387-88. Nevertheless, the court adopted Ms.

Ballard’s $380,000 valuation, finding this figure to be “a more appropriate assessment of

the value of the home, particularly given the amount of credit card debt Ms. Ballard has

6 No. 39468-9-III Marr. of Ballard

assumed post separation in getting those bathrooms done, replacing the stairs on the deck

and other trim work and different things.” RP at 388. The court also noted that

photographs of the home, submitted as evidence, established that the house, as of the

couple’s separation, clearly was not finished.

Mr. Ballard timely appeals the court’s (1) parenting restrictions, (2) refusal to

consider evidence of a CIR, and (3) valuation of the Ballards’ home.

ANALYSIS

PARENTING RESTRICTIONS

Mr. Ballard argues the parenting restrictions the trial court imposed were improper

where no evidence supported the conclusion that Mr. Ballard suffered from long-term

alcohol abuse. We disagree.

Standard of review

This court reviews parenting plans for abuse of discretion. In re Marriage of

Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014). A trial court operates within its

discretion where its findings derive from the factual record, its conclusions apply sound

law, and its decisions are not manifestly unreasonable. In re Marriage of Bowen, 168

Wn. App. 581, 586-87, 279 P.3d 885 (2012). Where a trial court in a family law matter

enters findings of fact, those findings must derive from substantial evidence. In re

Marriage of Rideout, 150 Wn.2d 337, 352, 77 P.3d 1174 (2003). Substantial evidence is

7 No. 39468-9-III Marr. of Ballard

that quantum of evidence necessary to persuade a fair-minded person of the truth of the

premise. In re Dependency of J.D.P., 17 Wn. App. 2d 744, 755, 487 P.3d 960 (2021).

Alcohol abuse

A trial court may impose parenting restrictions where a child’s best interests

are put at hazard by a parent’s “long-term impairment resulting from drug, alcohol, or

other substance abuse that interferes with the performance of parenting functions.”

RCW 26.09.191(3)(c). Courts should impose such restrictions only where “necessary to

‘protect the child from physical, mental, or emotional harm.’” Chandola, 180 Wn.2d at

648 (quoting RCW 26.09.002). However, courts need not wait for such harm to accrue

before intervening. Id. at 645.

Here, Mr. Ballard argues the trial court should not have imposed restrictions under

RCW 26.09.191(3)(c) because there was “no evidence whatsoever indicating that Scott

ha[d] a long-term impairment from alcohol abuse.” Br. of Appellant at 19.

Underpinning this contention is the assumption that Mr. Ballard’s alcohol-related

incident on January 8, 2022 was merely an isolated occurrence.

However, the trial court determined and this court agrees that sufficient evidence

supported the finding that Mr. Ballard’s alcohol abuse was long-term. First, Ms.

Ballard’s testimony recounted five or more occasions on which Mr. Ballard had

exhibited drunken behavior, the earliest of which incidents occurred seven months before

8 No. 39468-9-III Marr. of Ballard

January 8, 2022. Moreover, Mr. Ballard himself testified that he drank multiple vodka

shots on separate nights in March 2022—two months after the January 8, 2022 incident.

Taken as a whole, this evidence suggests that Mr. Ballard drank heavily in the runup to

January 8, 2022, and continued drinking after that date, despite suffering alcohol-related

hospitalization. In other words, his consumption on January 8, 2022 was not an isolated

occurrence.

Second, the details surrounding Mr. Ballard’s hospitalization on January 8, 2022

suggest that his drinking that day was not an isolated affair. Specifically, Mr. Ballard

registered a BAC of 0.36 percent, which is more than four times the BAC threshold for

being guilty of driving under the influence. This BAC alone suggests that Mr. Ballard’s

body was accustomed to abusive drinking. Were his body not so accustomed, such a

quantity of alcohol would likely have made it impossible for Mr. Ballard to maintain

consciousness, interact with responding paramedics, and be led out of the house on his

feet.

Finally, the fact that Mr. Ballard, as of January 8, 2022, was concealing alcohol

throughout the Ballard home and in outbuildings on the Ballard property suggests that his

drinking had reached an advanced stage. Simply put, an individual on a one-day bender

does not lay up stores of alcohol that he may avail himself of later.

9 No. 39468-9-III Marr. of Ballard

Because the evidence, taken as a whole, suggests that Mr. Ballard’s alcohol abuse

was both (1) long-term, and (2) corrosive to his conduct, the trial court was justified in

concluding that Mr. Ballard’s alcohol abuse posed a threat to his child’s best interests.

As such, Mr. Ballard’s drinking warranted parenting restrictions. RCW 26.09.191(3)(c).

While the evidence did not show that actual harm had befallen the Ballards’ son, the mere

threat of such harm justified those restrictions. Chandola, 180 Wn.2d at 645.

COMMITTED INTIMATE RELATIONSHIP

Mr. Ballard argues the trial court erred where it refused to consider evidence of a

CIR between him and his wife at the time she purchased the family’s home. We

disagree.

Where a trial court refuses to consider the existence of a CIR, we review that

decision for abuse of discretion. See In re Marriage of Neumiller, 183 Wn. App. 914,

920, 335 P.3d 1019 (2014). This standard applies irrespective of whether we color the

court’s decision as an evidentiary matter or as a matter of leave to amend pleadings.

State v. Munguia, 107 Wn. App. 328, 334, 26 P.3d 1017 (2001) (evidentiary matter);

Neumiller, 183 Wn. App. at 920 (leave to amend pleadings).

10 No. 39468-9-III Marr. of Ballard

Existence of CIR

Just as property acquired during a marriage presumptively belongs to the marital

community, property acquired during a CIR likewise belongs, presumptively, to both of

the relationship’s parties. In re Committed Intimate Relationship of Muridan, 3 Wn. App.

2d 44, 56, 413 P.3d 1072 (2018). Where a party in a dissolution action alleges that a CIR

predated the marriage, that party may raise the CIR issue as late as the day of trial.

Neumiller, 183 Wn. App. at 918, 923. Notwithstanding this rule, a trial court may

exclude otherwise admissible evidence where the evidence’s probative value “is

substantially outweighed by the danger of unfair prejudice.” ER 403.

Here, Mr. Ballard argues the trial court should have allowed him to allege the

existence of a CIR on the day of trial, even though his response to Ms. Ballard’s petition

alleged only a community interest in the family home, and not a CIR. In support of his

argument, Mr. Ballard relies almost exclusively on Neumiller, where this court held that a

party to a dissolution action may allege a CIR as late as the day of trial. 183 Wn. App. at

918, 923.

In many respects, Neumiller is analogous to the case at bar and would be

controlling. In Neumiller, as in this case, the respondent spouse purchased what would

become the family home while the couple was dating but before the couple married.

183 Wn. App. at 917. The marriage dissolved, and in the runup to a dissolution trial, the

11 No. 39468-9-III Marr. of Ballard

respondent claimed the family home was separate property while the appellant claimed

the house was community property. Id. at 917-18. It was not until the day of trial that

the appellant alleged the existence of a CIR that would potentially alter the character of

the disputed property. Id. at 918. The trial court refused to consider the existence of a

CIR, concluding that the appellant had raised the issue “‘way too late in the game.’” Id.

We reversed, and held that a party in a dissolution action may allege the existence of a

CIR as late as the day of trial. Id. at 923.

However, Neumiller is distinguishable on two bases. First, Mr. Ballard’s counsel

at the hearing before trial stood silent while Ms. Ballard’s counsel stated on the record

that she expected Mr. Ballard to allege only a community interest in the family home, and

not to allege a CIR. Indeed, the trial court after counsel made this statement even asked

Mr. Ballard’s attorney if she wished to respond, to which Mr. Ballard’s attorney replied,

“No, Your Honor. I think the information I provided is sufficient.” RP at 88. By failing

to correct Ms. Ballard’s expectation, Mr. Ballard’s attorney signaled to Ms. Ballard that

she could reliably assume he would not allege a CIR.

12 No. 39468-9-III Marr. of Ballard

Second, we determined 2 in Neumiller that the wife’s late assertion of a CIR should

not have surprised Mr. Neumiller. Id. By contrast, the trial court here stated that Mr.

Ballard’s late assertion of a CIR would surprise Ms. Ballard. This statement by the trial

court amounts to a finding, and as such, we must defer to it. Zink v. City of Mesa, 17 Wn.

App. 2d 701, 708, 487 P.3d 902 (2021).

Having determined that Mr. Ballard’s late assertion of a CIR would unfairly

surprise Ms. Ballard, the trial court was justified, under ER 403, in excluding evidence of

such a relationship.

Mr. Ballard argues the trial court erred where it valued the Ballards’ home at

$380,000 despite (1) Ms. Ballard offering no evidence supporting that value, and (2) Mr.

Ballard, an architect, assigning a significantly higher value to the home. However, Mr.

Ballard’s professional credentials did not obligate the trial court to adopt his valuation of

the Ballards’ home. Because the value the court assigned to the home derived from

available evidence, we affirm.

2 In Neumiller, the trial court concluded that amending a pleading could not be done at trial. 183 Wn. App. at 922. On that basis, we reversed. Id. The Neumiller trial court did not make a finding whether the late amendment created an unfair surprise to Mr. Neumiller.

13 No. 39468-9-III Marr. of Ballard

Findings of fact supporting a division of marital property draw review under the

substantial evidence standard. In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170

P.3d 572 (2007). Substantial evidence is that quantum of evidence necessary to persuade

a fair-minded person of the truth of the premise. Dependency of J.D.P., 17 Wn. App. 2d

at 755.

Valuation

Where parties to a marital dissolution assign conflicting values to an asset, the trial

court “may adopt the value asserted by either party or any value in between the two.”

Rockwell, 141 Wn. App. at 250. A party who testifies as to the value of their home has

furnished admissible evidence as to that value, to which evidence the trier of fact may, in

its discretion, assign appropriate weight. Worthington v. Worthington, 73 Wn.2d 759,

763, 440 P.2d 478 (1968).

Here, the trial court adopted the $380,000 home value Ms. Ballard proposed.

Because Ms. Ballard proposed that value, the value was supported by at least some

measure of evidence. Id. Moreover, the value Ms. Ballard proposed and the trial court

adopted plainly satisfied the Rockwell principle articulated above. 141 Wn. App. at 250.

Further supporting the $380,000 valuation was testimony and photographic

evidence establishing that the home improvements on which Mr. Ballard based his higher

14 No. 39468-9-111 Marr. ofBallard

valuation were, as of the date of separation, unfinished. Because the renovations were

not finished, the trial court was justified in discounting Mr. Ballard's valuation even if

Mr. Ballard's professional credentials might have bolstered his credibility. Mr. Ballard

also effectively conceded that the home's tax-assessed value-reflecting its unimproved

condition-was meaningfully less than the value he proposed.

Affirmed.

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.

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