IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Committed Intimate Relationship of: No. 88028-4-I
Karen D. Allston, DIVISION ONE
Respondent, UNPUBLISHED OPINION
and
Michael M. Pollock,
Appellant.
COBURN, J. — Michael Pollock appeals the trial court’s property distribution order
following the termination of his 12-year-long committed intimate relationship (CIR) with
Karen Allston. Pollock contends that the trial court erred by not considering the parties’
oral agreement to keep their finances separate and by characterizing his previously
separately owned property on Bainbridge Island as community property. 1 We disagree
and affirm the trial court’s division of the parties’ community-like property. However, we
agree with Pollock that the trial court abused its discretion in awarding an equitable
$100,000 reimbursement to Allston from the sale proceeds of Pollock’s separately
owned house in Seattle. Accordingly, we affirm in part, reverse in part, and remand for
1 Though “community property” definitionally does not exist outside of a marriage, courts refer to property acquired during a CIR as community property because such property is “characterized in a similar manner as income and property acquired during marriage.” Connell v. Francisco, 127 Wn.2d 339, 351, 898 P.2d 831 (1995). 88028-4-I/2
entry of a corrected judgment.
FACTS
Allston and Pollock were in a CIR from 2009 to 2021. 2 The parties lived together
throughout the duration of their CIR, starting in June 2009 when Allston moved into
Pollock’s previously purchased house at 8701 NW 19th Avenue 3 in Seattle. 4 Around
2011 the parties moved together to Bainbridge Island where they remained living
together until the end of their CIR in July 2021. This same month Allston petitioned the
trial court for a distribution of the parties’ community-like property. The case went to a
bench trial that spanned six days in fall 2023.
At trial Allston testified that when the parties lived together in the Seattle house,
she helped with the house mortgage payments and other expenses. Additionally, she
financially contributed to and worked on improvement projects on the house, including
cleaning up and putting in new plants in the garden. Allston testified to assisting with a
renovation of the basement by limewashing the walls. She also helped Pollock with
installing hardwood in the living room and vinyl flooring in the bedroom, as well as
helping to lay and grout tiles in the kitchen. Additionally, Allston testified she purchased
and helped Pollock to install two new windows in the dining room. Allston did not
present any testimony as to the value of the work she did related to the Seattle house or
whether that work contributed to any increased value of the house.
2 Pollock disputed the existence of a CIR at trial but concedes on appeal that the parties were in a CIR. 3 Because the court’s findings and conclusions vary as to the street address of the house, we defer to the street address that is both used in Pollock’s briefing and in parts of the court’s order. 4 A second house in Seattle also was part of the property distribution. Only the house at 8701 NW 19th Avenue is at issue in this appeal, which we generally refer to as the Seattle house. 2 88028-4-I/3
As to finances, Allston testified that the parties had a joint bank account during
their relationship to which the parties each committed to contributing a monthly amount
of $4,000. However, the actual amount deposited varied. When asked if the parties had
an agreement that all their other income would remain their separate property, Allston
answered, “No, not exactly; not specifically.” Allston explained that the purpose of the
joint account was “[t]o make it easy to have a pot of money to withdraw for joint
household expenses, pet expenses, food, dining out, things we did together.”
After the parties moved from the Seattle house to Bainbridge Island, both parties
testified that Pollock used the joint account to pay for the Seattle house mortgage for
four months in 2017. Allston testified that the payments were $2,219.76. 5 In spring
2021, before the end of the CIR, Pollock sold the Seattle house and kept the proceeds
of $373,472 in a separate investment account.
Allston testified that she was aware Pollock owned the Bainbridge Island property
when the parties began dating. Pollock showed her the property because he wanted her
to invest with him in building a house on the property. As the parties’ relationship
progressed, Allston decided it was a good investment.
Allston stated that Pollock “had a land loan [on the Bainbridge Island property]
that he told me he had a balloon payment due that he could not pay. So he termed my
contribution to helping him pay that off and putting a house on the [Bainbridge Island]
property as an investment.” Allston also testified that Pollock
was working with the bank to try to refinance, et cetera, et cetera. And so shortly after that, he mentioned that he was trying to put a … modular home on the [Bainbridge Island] property. And he was worried that the land loan was going to be due and he didn’t have the money to cover that,
5 One payment was $2,249.76, which Allston testified included a late fee. 3 88028-4-I/4
so he really needed help investing in building a house, so he didn’t lose his property.
The parties designed a modular home together for the Bainbridge Island
property. Allston made a down payment of $34,379 for the construction of the modular
home on the property. Allston also obtained a construction loan with Pollock for the
property. Both parties were subject to the loan and both parties’ names were on the
construction deed of trust. The bank was unwilling, however, to grant the construction
loan to the parties unless Allston had an interest in the property.
Pollock testified that he did not want to give Allston an interest in the Bainbridge
Island property. Allston testified that on the day that the parties had to file a quitclaim
deed to add Allston to the title for the Bainbridge Island property, Pollock “was very
angry and said he decided he didn’t want to do it.” Allston explained:
[Pollock] was not happy. He felt like [the Bainbridge Island property] was his property and he shouldn’t have to, you know, share it with me in order to build a house on it. And the bank told him that’s not correct. I said, I’m not going to invest in something to build a house with you if I have no skin in the game. This is, you know, my investment as well.
Allston testified she would not have moved forward with the investment in the
Bainbridge Island property if Pollock had not signed the quitclaim deed. Allston was
asked:
Q. Did you make that clear to him? A. I did. In fact, he expressed some frustration that he was having to give me half his property in order to make this transaction work. And I said, that’s fine. Let’s not do it. I don’t have to contribute. You can do whatever you want with the property. I’m going to find a house to live in with my pets. … I was in no hurry to move to Bainbridge. It’s not like I begged him to, you know, build this house with him. He’s the one who asked me to build the house.
4 88028-4-I/5
Ultimately, Pollock decided to sign the quitclaim deed. Allston explained that
Pollock changed his mind
because he was going to lose that land. He couldn’t pay the balloon payment that was due [on the land loan], so he would have ended up with nothing if he had not signed that – not quitclaim-deeded me the property in order for us to build on that land.
On the language of the quitclaim deed, the court heard testimony from both
parties that Allston recommended to Pollock that they consider a joint tenancy with right
of survivorship. Pollock testified that the bank simply required Allston to be added to the
title as a condition of the loan and did not otherwise require the quitclaim deed to
include language regarding a joint tenancy with right of survivorship. Rather, if Allston
died, she did not want to be in a position of sharing a house with Pollock’s seven
siblings. Pollock testified that he agreed to the right of survivorship language, telling
Allston, “Okay, that’s fine. You know, I get hit by a truck, it’s yours. Because [Allston] did
not want to be in a position where they would kick her out of the house. That was the
purpose of it.” Allston stated that Pollock also wanted to avoid sharing the property with
Allston’s family who would otherwise potentially inherit Allston’s interest in the property if
Allston died.
Additionally, the court heard testimony from Pollock that during the time Allston
made a downpayment on the modular home and he signed the quitclaim deed, the
parties’ relationship was “working out well.” The parties discussed moving to the
Bainbridge Island property and “coming together” as a couple long-term. Pollock was
Q. … Now, were these talks kind of going along simultaneously when you two were, you know, when the money was put down for the
5 88028-4-I/6
modular home and you were doing this quitclaim deed? Was this all kind of simultaneous together? A. Well, yeah. I mean, the design of the house – I mean, it was the happy, We’re going to design a house and we’re going to live in it and have a happy life …. And I thought we were going to get married. So, yeah, all that was going on.
Pollock testified that the parties intended to design the modular house, live in it
together, and have a happy life. Pollock thought that, even though Allston told Pollock
she did not want to get married by the time the quitclaim deed was executed, “a door
was being left open for [marriage].”
The trial court admitted the quitclaim deed into evidence during trial. Recorded in
June 2010, the deed states:
THE GRANTOR, Michael Moritz Pollock … conveys and quit claims an undivided one-half interest to Karen Dawn Allston, to be held in joint tenancy with a right of survivorship, … together with all after acquired title of the grantor[s] herein.
Pollock testified that he recalled signing the quitclaim deed and read what he was
signing. Allston estimated construction of the modular home began around July 2010,
and the parties moved into the home the following year.
In 2017, Allston testified she refinanced the mortgage on the Bainbridge Island
property to remove Pollock’s name at his request. Allston took on the full obligation of
the mortgage to allow Pollock to refinance the Seattle house “to get a better rate.”
Allston explained, “[T]he only way he could [do] that, because of his credit, was if I
assumed the full mortgage.”
After trial, the court issued its oral ruling in December and issued its final division
of property and final order dissolving the CIR in January 2024. We include here the
written findings of fact relevant to this appeal.
6 88028-4-I/7
In support of its determination that the parties were in a CIR, the trial court
included Finding 4.4., “Pooling of Resources and Services for Joint Projects.” The court
found that “the parties pooled their money together to build” the modular house on the
Bainbridge Island property. The court also found under Finding 4.4 in part:
The parties maintained more than one joint back account and had joint credit cards, they purchased items together and jointly made improvements to the [house on the Bainbridge Island property]. Ms. Allston paid half the mortgage and helped with expenses when they lived at [the Seattle house]. She maintained and improved the garden, and painted inside the house and helped with purchasing new windows. Ms. Allston dealt with and discussed the building plans for [the house on the Bainbridge Island property] with the architect as much as Mr. Pollock did and often emailed him separately when Mr. Pollock was out of town. Mr. Pollock emailed Ms. Allston about the financial benefits of the two of them investing in [the Bainbridge Island property] and the [Seattle] home. Ms. Allston contributed $34,379 on a downpayment on [the Bainbridge Island property]. Both of the parties’ names were on the construction loan and construction deed of trust. Ms. Allston helped pay for the permits and agreed to help build the home at [the Bainbridge Island property] if Mr. Pollock agreed to give her half interest in the land. He reluctantly agreed and signed a quitclaim deed in … 2010 giving here an undivided one half interest in joint tenancy with right of survivorship. He was unable to afford to build the home without her financial assistance and credit. She helped pay for improvements to the home [on the Bainbridge Island property] including decking, landscaping, etc. … The parties commingled their finances often, paying for community items with funds from their separate accounts and paying for separate items with funds from their joint account. For example, Ms. Allston paid her father’s taxes from the joint account and Mr. Pollock bought the Toyota Tundra with funds from his individual account. Mr. Pollock also wrote a check to his mother from the joint account. These are just some examples of the commingling. All of the accounts appear to have been used interchangeably, and the accounts they considered “separate” contained their paychecks which were community property funds.
The trial court found that the Seattle house was Pollock’s separate property. The
court generally designated the proceeds from the sale of the Seattle house as Pollock’s
separate property. However, the court determined that the sale proceeds were subject
to an equitable right of reimbursement. Under Finding 9.5, titled “Community Right of
7 88028-4-I/8
Reimbursement for Contribution to [the Seattle house],” the court determined that
“Allston has an equitable right of reimbursement of $100,000 for her contributions to [the
Seattle house] property during the [CIR].” The court awarded Pollock the sale proceeds
of the Seattle house, $373,472, minus the $100,000 that the court awarded Allston in
equitable reimbursement. The court stated:
[F]inding [9.5] is based on the following facts: … Allston moved into the home in 2009 and lived there until 2011 when the parties moved to Bainbridge Island.[] Pollock was able to refinance this [Seattle house] property during the relationship due to[] Allston’s agreement and ability to refinance the [Bainbridge Island] property into her name only. This greatly improved[] Pollock’s credit and ability to get loans. []Allston contributed to improvements to the [Seattle house] property and payments on the mortgage after they moved to Bainbridge did come from the joint account. Due to the commingling and poor record keeping previously mentioned,[6] payments from []Pollock’s individual account(s) toward the mortgage would have been with community funds from his paychecks. Even though []Pollock had renters, the rental income was sporadic so there is no evidence to support that separate property income covered the expenses.
The court concluded that the equitable reimbursement award of $100,000 to Allston was
fair, just, and equitable.
Under [F]inding 9.1, the trial court concluded that the Bainbridge Island property
was community property. The court acknowledged that because Pollock purchased the
property in 2000 before the parties’ CIR began, it was presumed to be his separate
property. However, the court determined that Pollock’s execution of the quitclaim deed
in July 2010 granting Allston “an undivided one half interest in joint tenancy with right of
survivorship” defeated this presumption by “effectuat[ing] a transmutation of separate
property to community property.” The court also observed under Finding 9.1, “There is
no question the [modular] home is community property,” stating:
6 This appears to reference the above-quoted trial court’s findings related to commingling under Finding 4.4. 8 88028-4-I/9
Allston helped purchase [the modular home], and refinance it after the relationship began in 2009. [The parties] jointly improved the house spending thousands on landscaping, decking, plants, and furniture. … Ms. Allston paid $34,000 on the modular home and [the parties] were both on the construction loan and construction deed of trust. The land loan of $178,000 was rolled into the construction loan, so the mortgage payments [the parties] made together were also on the underlying land and the house together. Mr. Pollock would not have been able to build the house on that property without Ms. Allston’s assistance.
As part of its determination to divide the community assets and debts equally
between the parties, the trial court awarded the Bainbridge Island property to
Allston.
Pollock appeals.
DISCUSSION
Legal Principles
A CIR is a stable and marital-like relationship during which the parties cohabit
with the shared knowledge that a lawful marriage between them does not exist. Connell
v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995). The distribution of property
from a CIR requires a three-step analysis. In re Marriage of Pennington, 142 Wn.2d
592, 602, 14 P.3d 764 (2000). The trial court must first determine whether a CIR exists.
Id. If such a relationship exists, the trial court evaluates the interest each party has in
the property acquired during the relationship. Id. Lastly, the court makes a just and
equitable distribution of the community-like property. Id. The critical focus in distributing
property between parties upon the dissolution of a CIR is to identify what would have
been characterized as community property if the parties were married and to prevent
the unjust enrichment of one party at the expense of the other. Id.; Connell, 127 Wn.2d
at 349.
9 88028-4-I/10
Generally, we review a trial court’s property distribution order at the end of a CIR
for abuse of discretion. Morgan v. Briney, 200 Wn. App. 380, 387, 403 P.3d 86 (2017)
(citing Soltero v. Wimer, 159 Wn.2d 428, 433, 150 P.3d 552 (2007)). A trial court
abuses its discretion if it bases its decision on untenable grounds or untenable reasons.
Byerley v. Cail, 183 Wn. App. 677, 685, 334 P.3d 108 (2014). We review a trial court’s
findings of fact for substantial evidence and conclusions of law de novo. Morgan, 200
Wn. App. at 387 (citing Soltero, 159 Wn.2d at 433). Substantial evidence exists where
there is “‘a quantum of evidence sufficient to persuade a rational fair-minded person the
premise is true.’” In re Custody of A.T., 11 Wn. App. 2d 156, 162, 451 P.3d 1132 (2019)
(quoting Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369
(2003)). We will not disturb a trial court’s finding of fact that is supported by substantial
evidence even if there is conflicting evidence. Burrill v. Burrill, 113 Wn. App. 863, 865,
56 P.3d 993 (2002). We defer to the trial court’s weighing of evidence and witness
credibility determinations. Muridan v. Redl, 3 Wn. App. 2d 44, 55, 413 P.3d 1072
(2018). Unchallenged findings of fact are verities on appeal. A.T., 11 Wn. App. 2d at
163.
Division of Community-Like Property
A. Oral Agreement
Challenging the trial court’s Finding 4.4, Pollock contends that the trial court
erred by not determining whether there was an enforceable oral agreement between the
parties to keep their finances separate apart from the parties’ joint account that they
used to equally share household expenses. Altogether, Pollock argues, the trial court
10 88028-4-I/11
failed to analyze whether the terms of the purportedly binding agreement were
breached to warrant remedy. We disagree.
In a marriage dissolution, all separate and community property is before the trial
court for distribution. Lindemann v. Lindemann, 92 Wn. App. 64, 68-69, 960 P.2d 966
(1998). This rule does not apply in a CIR. Id. at 69. Instead, our Supreme Court has
held that to avoid equating cohabitation with marriage, a trial court may only distribute
the property that the parties acquired through efforts contributed during the relationship.
Connell, 127 Wn.2d at 350. Thus, only the parties’ community-like property is subject to
distribution, and separate property is not before the trial court for distribution in a CIR
case. Lindemann, 92 Wn. App. at 69.
Parties in a CIR, like spouses, may change the character of their community-like
property to separate property by entering into mutual agreements. In re Parentage of
G.W.-F., 170 Wn. App. 631, 638, 285 P.3d 208 (2012). Such agreements may be oral
or written. Id. The party who seeks to enforce an oral agreement changing the nature of
the property accumulated during a CIR must show by clear and convincing evidence
both (1) the existence of the agreement and (2) that the parties jointly observed the
terms of the agreement throughout the CIR. Id. (citing In re Marriage of Mueller, 140
Wn. App. 498, 505, 167 P.3d 568 (2007)). Because oral agreements are particularly
difficult to prove, “‘courts will overturn an oral property agreement if the parties do not
consistently adhere to the agreement during their [relationship].’” Id. (alteration in
original) (quoting Mueller, 140 Wn. App. at 505). “Thus, to enforce an oral agreement
changing the nature of the property accumulated during the committed intimate
11 88028-4-I/12
relationship, a court must find that an oral agreement existed and that it was observed
throughout the relationship.” Id.
In the instant case, Pollock’s counsel asserted at opening that, except for a joint
account that the parties set up to cover household and mortgage expenses, the parties
had an oral agreement to keep their finances separate. This oral agreement ostensibly
encompassed, for example, the parties’ retirement accounts and investments. Counsel
indicated that the oral agreement should control the trial court’s characterization of the
parties’ respective property to “keep[] everything separate.”
The trial court’s written findings and conclusions do not state whether the court
determined whether an oral agreement between the parties existed. However, as part of
its conclusion that the parties were in a CIR, which Pollock does not dispute on appeal,
the court found that the parties “often” commingled their finances under Finding 4.4. The
trial court concluded that the parties pooled resources and services for joint projects,
finding that the parties:
pa[id] for community items with funds from their separate accounts and pa[id] for separate items with funds from their joint account. For example, Ms. Allston paid her father’s taxes from the joint account and Mr. Pollock bought the Toyota Tundra with funds from his individual account. Mr. Pollock also wrote a check to his mother from the joint account. These are just some examples of the commingling. All of the accounts appear to have been used interchangeably, and the accounts they considered “separate” contained their paychecks which were community property funds.
Pollock concedes that “the parties did not religiously adhere to their oral
contract.” Nonetheless, Pollock argues that “[a]ny commingling resulted in great efforts
to trace/un-commingle those finances” in accordance with their oral agreement. He
claims that the trial court’s rejection of the parties’ oral agreement to keep their finances
12 88028-4-I/13
separate was based on the incorrect finding that the parties did not follow the
agreement throughout their CIR and allowed Pollock’s personal and “un-commingled”
accounts to be subject to division.
In its oral ruling, the court discussed its finding that the parties pooled their
resources and services for joint projects and stated that
[d]espite [the parties’] efforts – they said they intended to keep their finances separate, they failed miserably and co-mingled finances left and right. They borrowed funds from the joint accounts to pay personal expenses.
(Emphasis added.) The court continued:
I find the joint accounting was messy and not purely for community – and not purely used for community purposes, that neither were their single or separate accounts. They would use them interchangeably. They were on an honor system to reimburse the joint account, but the Court is not satisfied that that was done in order to keep them separate. … So the Court also finds that the oral agreement they had to keep their finances separate was invalid, and they didn’t follow it.
(Emphasis added.) Later, in its discussion of findings pertaining to the characterization
of property, the court stated that it
already indicated that the Court does not find the oral agreement to keep their finances separate binding or valid … simply because they didn’t follow it because of the co-mingling. The Court finds that they did not act in accordance with their supposed agreement during their relationship.
(Emphasis added.)
Pollock asserts that these emphasized portions of the oral ruling indicate that the
court implicitly found that an oral agreement existed, which thereby compelled the court
to find whether the agreement was enforceable to properly identify what of the parties’
property was subject to community distribution.
13 88028-4-I/14
However, to prove an enforceable oral agreement, it was Pollock’s burden to
establish not only that he and Allston agreed to keep their finances separate, but that he
and Allston consistently honored that agreement throughout their CIR. G.W.-F., 170
Wn. App. at 638. By referring to the parties’ “supposed” oral agreement as both “invalid”
and not “binding,” the trial court’s oral ruling may have been an inartful explanation of
this two-step test. Regardless, it is apparent from the record that, even assuming the
parties had an oral agreement, the court was not persuaded that the parties consistently
followed the agreement to render it enforceable in the context of a CIR community-like
property distribution. We must interpret the trial court’s silence in its written order on this
material issue of fact against Pollock as the party who bears the burden of proof to
show that the parties had an enforceable oral agreement. Crane & Crane, Inc. v. C & D
Elec., Inc., 37 Wn. App. 560, 570, 683 P.2d 1103 (1984).
Here, the record contains substantial evidence that the parties did not
consistently abide by an oral agreement to keep their finances separate throughout the
duration of their CIR. See Puget Sound Nat. Bank v. St. Paul Fire & Marine Ins. Co., 32
Wn. App. 32, 42, 645 P.2d 1122 (1982).
Pollock does not dispute the trial court’s findings that describe “some examples”
of the parties’ commingling of finances, including findings that Pollock purchased the
community’s Toyota Tundra with funds from his separate account and that both parties
used money from their joint account to assist their parents.
Additionally, Allston’s testimony supports a finding that the creation of the joint
account was for logistical convenience and that the parties did not consistently keep
their finances separate. When asked whether the parties had an oral agreement to only
14 88028-4-I/15
contribute to a joint account and otherwise keep their finances separate, Allston
answered, “I wouldn’t say it was that precise. It was an understanding that the joint
account would primarily be used for joint couple expenses, eating out; food; our phones;
our car expenses; the pets, for sure; and our utilities; and our mortgage.” Allston
testified that she and Pollock did not have a specific agreement that their income would
remain their separate property. Allston paid for various things for the community from
her separate account. According to Allston, there were multiple times that the parties did
not have enough funds in their joint account to pay the mortgage, so either she or
Pollock would transfer their own funds. The parties’ individual contributions to the joint
account were “not always equal.” Allston also stated that the parties “often intermingled
our separate property with our joint property. We bought things for each other using
joint, using separate. It wasn’t as clear-cut as, this is separate; this is joint; this is
separate.”
In his briefing, Pollock cites to Exhibit 104 as evidence of the parties’ “good faith
effort” to abide by their oral agreement. The trial court admitted Exhibit 104, which
consisted of a spreadsheet summary of deposits into and withdrawals from the parties’
joint account starting in August 2015. Pollock offered the spreadsheet at trial as
evidence that the parties made efforts to use the joint account for shared expenses so
they could otherwise segregate their personal funds in their individual accounts
according to their oral agreement. Pollock testified that the parties used the spreadsheet
to summarize bank statements to help ensure the parties were putting in roughly equal
amounts and to track activity with the joint account so that they could shore up the
account when it was used for personal expenses or to determine when money needed
15 88028-4-I/16
to be withdrawn from the account to reimburse a party for an overpayment. For
example, Pollock testified that if he or Allston made a joint purchase from their separate
account, they would then write a check from the joint account to their separate account.
The trial court, however, was not persuaded by the spreadsheet, referring to it in its oral
ruling as “not particularly helpful” because it was “inaccurate in many respects” 7 and
“only started from 2015, so it ignored the prior four years that [the parties] were
together.”
Because the record supports that Pollock did not carry his burden to establish an
enforceable oral agreement, we conclude the trial court did not err. 8
B. Transmutation of Bainbridge Island Property
Challenging the trial court’s Finding 9.1, Pollock contends that the court erred by
characterizing the Bainbridge Island property as community property. We disagree.
A “court’s characterization of property is a mixed question of law and fact.” In re
Marriage of Watanabe, 199 Wn.2d 342, 348, 506 P.3d 630 (2022). We review the
characterization of property de novo as a question of law. Id. at 348-49. We review
factual findings in support of the characterization for substantial evidence, such as “time
of acquisition, method of acquisition, and intent of the donor.” Id. at 348.
Though marital community property rules do not directly apply to CIR dissolution
proceedings, courts may look to such laws for guidance and apply them in CIR cases.
Muridan, 3 Wn. App. 2d at 56 n.4; G.W.-F., 170 Wn. App. at 637. “[U]pon the demise of
7 After being questioned about discrepancies regarding various transactions, Pollock agreed that his spreadsheet was inaccurate. 8 Because we leave the weighing of conflicting evidence to the trier of fact, Pollock’s reliance on additional testimony in the record as support for his assertion that the parties’ financial activity in “totality” was consistent with their oral agreement is unpersuasive. Quinn v. Cherry Lane Auto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009). 16 88028-4-I/17
… [a CIR], the characterization of property as separate and community will apply by
analogy even though in the absence of a marriage there is by definition no true
community property.” Lindemann, 92 Wn. App. at 68-69 (citing Connell, 127 Wn.2d at
350-51).
“If property is separate property as of the date of acquisition, it will remain
separate property through all of its changes and transitions as long as it can be traced
and identified.” Watanabe, 199 Wn.2d at 351. Once the separate character of the
property at issue is established, a presumption arises that it remains separate property
absent direct and positive evidence showing that the owner intended to transmute or
convert the property from separate to community property. Id.; In re Est. of Borghi, 167
Wn.2d 480, 484-85, 219 P.3d 932 (2009) (plurality opinion) (citing Guye v. Guye, 63
Wash. 340, 349, 352, 115 P. 731 (1911)). In other words, there must be sufficient
evidence of the owner’s intent to “change the character” of the separate property to
property that is for the benefit of the community. Borghi, 167 Wn.2d at 484-85; see, e.g.,
Graves v. Columbia Underwriters, 93 Wash. 196, 198-99, 160 P. 436 (1916) (holding
that wife did not convert separate property to community property by adding husband to
mortgage based on request of loan company because borrowed money was not
“devoted to a community use” but “solely for the purpose of preserving the wife’s
separate property from loss under tax foreclosure”). “Separate property remains
separate ‘unless, by the voluntary act of the spouse owning it, its nature is changed.’”
Borghi, 167 Wn.2d at 485 (quoting Guye, 63 Wash. at 349).
Here, it is not disputed that Pollock acquired the Bainbridge Island property
before the start of the CIR, thereby creating a presumption of separate property. He
17 88028-4-I/18
maintains that he never intended to transmute the property to community property and
claims that the trial court improperly rested its determination of transmutation on the fact
that Pollock quitclaimed an interest in the Bainbridge Island property to Allston. Relying
on the Supreme Court’s decisions in Borghi, 167 Wn.2d 480, and Watanabe, 199
Wn.2d at 351, Pollock argues that evidence showing Pollock signed a quitclaim deed
giving Allston an undivided one-half interest in joint tenancy with the right of survivorship
is not sufficient to defeat the presumption that the Bainbridge Island property is
Pollock’s separate property. 9
Pollock overstates the Supreme Court’s holding in Borghi by suggesting that an
owner’s execution of a quitclaim deed categorically cannot establish intent of
transmutation. In Borghi, the court held that a third party’s inclusion of the owner’s
husband on a special warranty deed did not show whether the owner had intended to
transmute her separate property into community property prior to her death. 167 Wn.2d
at 482-85, 490-91. The Borghi court observed that “[w]ith respect to real property, a
spouse may execute a quitclaim deed transferring the property to the community, join in
a valid community property agreement, or otherwise in writing evidence his or her intent
[to transmute separate property into community property].” Id. at 488-89. Though, in
absence of such evidence of intent, a change in the name or names in which the title is
held “tells us nothing or is ambiguous at best.” Id. at 489. In Borghi, there was no
9 Pollock does not seem to dispute the trial court’s finding that the house the parties built on the Bainbridge Island property is community property. Instead, in his reply brief, Pollock argues that the modular home improved the Bainbridge Island property. He thus argues that Allston has not rebutted the presumption that the property on which the modular home sits is Pollock’s separate property. 18 88028-4-I/19
evidence as to why the third party included the husband’s name on the special warranty
deed. Id.
Consistent with Borghi, Washington courts have held that a quitclaim deed or
other method of property conveyance executed by the owning spouse can be sufficient
evidence to demonstrate the owner’s intent to transmute separate property to
community property. See, e.g., Volz v. Zang, 113 Wash. 378, 383, 194 P. 409 (1920)
(stating that “separate property may be changed by a proper conveyance or agreement
into community property”); In re Marriage of Groves, 10 Wn. App. 2d 249, 253, 255,
260-61, 447 P.3d 643 (2019) (holding that trial court erred by not applying community
property agreement that required equal division of separate property to husband’s
disability allowance). Thus, though our Supreme Court has observed that “‘[t]here are
many reasons it may make good business sense for spouses to create joint title that
have nothing to do with any intent to create community property,’” “‘a spouse may
[nonetheless] execute a quitclaim deed transferring the property to the community.’”
Watanabe, 199 Wn.2d at 352 (quoting Borghi, 167 Wn.2d at 488-89) (citing Volz, 113
Wash. at 383; Guye, 63 Wash. at 353).
In Watanabe, Pedersen inherited a 50 percent interest in property in Arlington,
Washington, that was later used to finance the purchase of a second property. 199
Wn.2d at 345-46. Because Pedersen did not have credit to obtain financing, the loan
company required the addition of her husband Watanabe to the Arlington property’s
title. Id. at 346. Pedersen quitclaimed her interest in the Arlington property to herself and
Watanabe “to establish community property.” Id. at 351 (internal quotation marks
omitted). The Supreme Court determined that evidence supported the trial court’s
19 88028-4-I/20
finding that Pedersen did not intend to convert the Arlington property to community
property, including “the fact that the deed was drafted by the lender, Pedersen’s
testimony that she had no recollection of signing the deed and did not have anyone
explain what signing would entail, and the loan company’s requirement that Watanabe
be added to the title.” Id. at 352 & n.4. The court held that because Pedersen presented
an alternative reason for including Watanabe on the title—that the title company
required Watanabe to be on the deed—Watanabe did not meet his burden to show that
Pedersen intended to convert her separate Arlington property to community property. Id.
at 354.
Unlike in Borghi, Pollock, as he concedes in his briefing, executed the quitclaim
deed and not a third party. Consistent with Borghi, this writing is evidence of intent. 167
Wn.2d at 488-89; see also id. at 484-85 (citing Guye, 63 Wash. at 352). Distinct from
Watanabe, Pollock remembers signing the quitclaim deed and read what he signed.
Importantly, though both parties testified that the loan company required Allston’s
name on the deed, the trial court also heard testimony from Allston that Pollock
understood prior to signing the deed that its execution would grant her an interest in the
property in exchange for her assistance with the construction of the modular home. The
modular home was not an investment for only Pollock’s benefit, but a mutually
understood joint investment for the parties and their future together. Pollock testified
that at the time that Allston made a downpayment on the modular home and he signed
the quitclaim deed, the parties intended to design the house and live in it together.
Pollock had hope at the time that the parties would eventually marry. As the trial court
found and Pollock does not dispute, “Pollock would not have been able to build the
20 88028-4-I/21
[modular] house on th[e] [Bainbridge Island] property without Ms. Allston’s assistance.”
Therefore, on balance there is substantial evidence that Pollock did not merely add
Allston’s name on the deed to obtain financing for the property but that he intended to
“change the character” of the Bainbridge Island property from his own property to a
property and home that he and Allston could enjoy together as committed intimate
partners. Borghi, 167 Wn.2d at 484-85.
The undisputed fact that Pollock was reluctant to join title with Allston on the
Bainbridge Island property does not negate the evidence that he carried out the
conveyance with intention, knowledge, and of his own free will. 10 Cf. Watanabe, 199
Wn.2d at 352 & n.4 (internal quotation marks omitted) (holding that facts supported the
trial court’s finding that wife did not intend to transmute her separate property into
community property, such as her lack of knowledge regarding signing quitclaim deed
that expressly conveyed property to herself and husband “to establish community
property”). Because we defer to the trial court’s credibility determinations and weighing
of conflicting evidence, Pollock’s purported evidence to the contrary is not persuasive.
In re Marriage of Black, 188 Wn.2d 114, 127, 392 P.3d 1041 (2017).
Moreover, the quitclaim deed did not merely include Allston’s name but granted
“an undivided one-half interest” to Allston “to be held in joint tenancy with a right of
survivorship.” (Emphasis added.) In the context of a conveyance, property transforms
10 Pollock does not, for example, argue that he signed the quitclaim deed under duress or undue influence. The lack of evidence otherwise distinguishes this case from our sister division’s decision in In re Marriage of Marzetta, which Pollock cites in his opening brief. See 129 Wn. App. 607, 620, 120 P.3d 75 (2005), abrogated on other grounds by, McCausland v. McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007)). In Marzetta, the court rejected the husband’s claim to the asserted community property on the basis that the wife did not quitclaim the property to the husband “with knowledge of the nature of the transfers.” Id. 21 88028-4-I/22
from separate to community property “‘when the parties intend such a change to take
place and evidence this intention by a conveyance conforming in all essentials to the
requirements of the law affecting the transfer of real property.’” Watanabe, 199 Wn.2d at
352 (second emphasis added) (quoting Volz, 113 Wash. at 384).
Here, the trial court observed in its challenged Finding 9.1 that Pollock conveyed
an undivided half interest of the Bainbridge Island property to Allston as a “joint tenancy
with [a] right of survivorship.” The record shows that the bank did not require this
particular form of conveyance as a condition for the loan. Rather, Allston and Pollock
intentionally added this language to the deed to avoid future entanglement with the
other’s family regarding ownership of the property in the event the other party died.
Pollock testified he understood the “right of survivorship” language as protecting Allston
from being evicted by his family from the modular house if he died. Thus, Pollock’s
conveyance to Allston of an undivided half-interest in the property in the form of a joint
tenancy with a right of survivorship further demonstrates his intent to change the
character of the Bainbridge Island property for community use.
Because substantial evidence supports the trial court’s determination that the
separate property presumption was overcome, the trial court did not abuse its discretion
in characterizing the Bainbridge Island as community property subject to distribution.
Equitable Reimbursement
Pollock contends that the trial court arbitrarily awarded $100,000 as an equitable
reimbursement to Allston from the sale proceeds for Pollock’s separately owned house
22 88028-4-I/23
in Seattle. 11 Because the record does not provide evidence to enable the court’s
conclusion that Allston was entitled to an equitable reimbursement award of $100,000
for community contributions to the Seattle house, we agree with Pollock and conclude
that this award must be stricken.
An increase in value in a party’s separate property is presumed to be separate
property. Lindemann, 92 Wn. App. at 69 (citing In re Marriage of Elam, 97 Wn.2d 811,
816, 650 P.2d 213 (1982)). However, the non-owning party may be equitably entitled to
reimbursement for community contributions that caused the increase in value. Id. at 70
(citing Elam, 97 Wn.2d at 816-17; Connell, 127 Wn.2d at 351). “[I]f the court is
persuaded by direct and positive evidence that the increase in value of separate
property is attributable to community labor or funds, the community may be equitably
entitled to reimbursement for the contributions that caused the increase in value.” Id.
(citing Elam, 97 Wn.2d at 816-17; Connell, 127 Wn.2d at 351) (emphasis added). The
mere efforts of a party to maintain a home do not give rise to a right of reimbursement.
In re Marriage of Johnson, 28 Wn. App. 574, 579, 625 P.2d 720 (1981). The party
alleging a right to reimbursement carries the burden of showing by clear and convincing
evidence both (1) that community contributions create an underlying right to
reimbursement and (2) the amount of reimbursement that the party is so entitled. See
19 ELIZABETH A. TURNER, WASHINGTON PRACTICE: FAMILY AND COMMUNITY PROPERTY LAW
§ 11:37 (2d ed. 2015); Elam, 97 Wn.2d at 816-17. Clear and convincing evidence exists
when “‘the ultimate fact in issue is shown by the evidence to be highly probable.’” In re
11 As to this issue, Pollock assigns error to the trial court’s Findings 9.5 and 10.1 in the trial court’s Findings and Conclusions about the CIR and Findings and Conclusions 8 and 9 in the court’s Final Dissolution Order. 23 88028-4-I/24
Dependency of A.N.C., 24 Wn. App. 2d 408, 414, 520 P.3d 500 (2022), review denied,
1 Wn.3d 1012, 532 P.3d 1024 (2023) (internal quotation marks omitted) (quoting In re
Dependency of K.R., 128 Wn.2d 129, 141, 904 P.2d 1132 (1995)). When such a factual
finding is appealed, this court must consider whether there is substantial evidence to
support the finding and whether there is substantial evidence to satisfy the “highly
probable” test. In re Sego, 82 Wn.2d 736, 739, 513 P.2d 831 (1973).
Here, the trial court’s finding that Allston was entitled to $100,000 for community
contributions is not supported by evidence to satisfy this test. The trial court found that
Allston made community contributions to the Seattle house in the form of labor and
funds for improvement projects and assistance with mortgage payments for the house
after the parties moved to Bainbridge Island. However, the court’s written orders do not
point to evidence to establish that the value of the Seattle house increased as a result of
these contributions or to evidence that supports that the contributions were valued at an
amount close to $100,000. See In re Marriage of Pearson-Maines, 70 Wn. App. 860,
869, 855 P.2d 1210 (1993).
Though a trial court may determine the value of community contributions by
determining a reasonable wage or assessing the resulting increase in value, this
quantification of the reimbursement must be within the scope of evidence. Id. (citing
Harry M. Cross, The Community Property Law, 61 WASH. L. REV. 13, 71 (1986)); In re
Marriage of Soriano, 31 Wn. App. 432, 436-37, 643 P.2d 450 (1982); see Elam, 97
Wn.2d at 817. A trial court abuses its discretion where it assigns value to property that
is not within the scope of evidence. Soriano, 31 Wn. App. at 436-37; see also In re
Marriage of Rockwell, 141 Wn. App. 235, 250, 170 P.3d 572 (2007) (stating that when
24 88028-4-I/25
parties offer conflicting evidence as to property value in a property division dispute, a
court may adopt either asserted value or any value in between).
At trial Allston did not present a theory at opening or closing for how much she
should be reimbursed for any ostensible community contributions to the Seattle house.
In response to Pollock’s argument on appeal that the $100,000 award was arbitrary,
Allston fails to cite to anything in the record that comes close to supporting a
reimbursement award of $100,000. 12
The trial court’s written orders do not provide a basis for how the court
determined that the reimbursable amount was $100,000. See Pearson-Maines, 70 Wn.
App. at 869. In its discussion of the characterization of different assets at oral ruling, the
court observed that Allston made contributions to the house, including “windows,
painting, flooring, [and] landscaping.” 13 The court stated, “Unfortunately, the Court was
not provided any documentation to show how much she paid for those items.” In regard
to the amount of the equitable reimbursement award, the court stated, “And regarding
the right of reimbursement, again, I didn’t have sums, so I’m trying to – the Court is
making an equitable determination and giving her a right of reimbursement of $100,000
12 At oral argument Allston, without supporting cites to the record, asserted for the first time on appeal that the court properly based the $100,000 reimbursement award on Allston’s share of 10 years of mortgage payments on the Seattle house made with community funds after the parties moved out of the house through the end of the CIR. Wash. Ct. of Appeals oral arg., Allston v. Pollock, No. 88028-4-I (July 23, 2025), at 09 min., 27 sec. through 12 min., 06 sec. video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-2025071129/. We do not consider further this new argument that was not made in the response brief. RAP 10.3(b); see RAP 10.3(a)(6). 13 An appellate court may look to a trial court’s oral ruling to interpret its written order when not inconsistent with the written order. Wallace Real Est. Inv. Inc., v. Groves, 72 Wn. App. 759, 770, 868 P.2d 149 (1994). 25 88028-4-I/26
for the [Seattle] home.” When asked by Pollock’s counsel how the court “came up to
$100,000 reimbursement,” the following exchange occurred:
THE COURT: Again, I had to use an equitable figure. I figured [Allston’s] contributions in the time that she – it’s based on my – what I think is fair given the entirety of their relationship. … There was testimony that there was sporadic rent on the [Seattle] house. [Allston] lived there for two years before. And so community funds during their CIR were used to pay for the mortgage on the [Seattle] house. [Allston] contributed to the landscaping, the other items I mentioned. So I did my best to come up with a figure the Court felt was fair under all the circumstances. [Pollock’s counsel]: So that 100,000 is what the Court is saying [Allston] should be reimbursed for her efforts and money put into the [Seattle house]? THE COURT: Correct.
We note as a matter of law that the court’s reference to mortgage payments
made with community funds during the two years that Allston lived at the Seattle house
cannot constitute reimbursable community contributions. An equitable right to
reimbursement may not arise upon the termination of a CIR if the contributing party
received a reciprocal benefit through use and enjoyment of the separately owned
property. Lindemann, 92 Wn. App. at 74 (citing Connell, 127 Wn.2d at 351; In re
Marriage of Miracle, 101 Wn.2d 137, 139, 675 P.2d 1229 (1984)). “In that case, equity
will find that the contributing spouse has already been reimbursed.” Miracle, 101 Wn.2d
at 139 (citing Harry M. Cross, The Community Property Law in Washington, 49 WASH. L.
REV. 729, 777 n.220, 779 (1974)).
Principally, the trial court seemed to conflate the determination of the
reimbursement award with its overall determination of a fair and equitable property
distribution between the parties. A generalized assessment of what is “fair” in the
context of the CIR is not sufficient to overcome the presumption of separate property in
26 88028-4-I/27
considering a right to reimbursement. As the party alleging a right to equitable
reimbursement, Allston has the burden to show that the specific valuation of the
requested compensation existed within the scope of evidence. Such evidence is not
apparent from the record before us. We therefore conclude that the trial court’s
reimbursement award of $100,000 is not supported by the record and constitutes an
abuse of discretion.
Pollock concedes that the trial court’s error in its treatment of his separate
property does not affect the court’s overall distribution of the parties’ community-like
assets and debts. Wash. Ct. of Appeals oral arg., Allston v. Pollock, No. 88028-4-I (July
23, 2025), at 6 min., 41 sec. through 7 min., 11 sec. video recording by TVW,
Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-
appeals-2025071129/. Accordingly, we strike the equitable reimbursement award and
remand for the court to enter a corrected judgment consistent with this opinion.
CONCLUSION
We affirm the trial court’s division of the parties’ community-like property,
including the court’s award of the Bainbridge Island property to Allston. However, we
reverse the trial court’s award of an equitable reimbursement to Allston from the sale
proceeds of Pollock’s separately owned Seattle house. Thus, we remand for entry of a
new judgment consistent with this opinion.
WE CONCUR: