IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON MARGARET ELLEN MORGAN, a ) Washington individual, ) No. 74657-0-1 ) Respondent, ) DIVISION ONE ) V. ) UNPUBLISHED OPINION ) NICKY WARREN BRINEY, a ) Washington individual, ) ) Appellant. ) FILED: June 26, 2017
TRICKEY, J. — Nicky Briney appeals the trial court's distribution of property
after the termination of his committed intimate relationship (CIR) with Margaret
Morgan.' Briney argues that his CIR with Morgan began in 1999 not 1995 because
she moved out of their shared residence for eight months, returning in March 1999.
Because the parties moved into a jointly-selected home in 1995 and cohabitated
for a decade after Morgan moved back, it was not error to conclude that the CIR
had begun by 1995.
Briney also maintains that the trial court erred by characterizing the home
he and Morgan lived in as a community asset.2 The house was presumptively
community property because it was acquired after the CIR began. Because Briney
did not meet his burden of showing it was purchased with his separate funds, we
' In the past, courts referred to CIRs as "meretricious" relationships, but, because the term has a negative connotation, courts now use the term "committed intimate relationship," which "'accurately describes the status of the parties and is less derogatory."' Olver v. Fowler, 161 Wn.2d 655, 657 n.1, 168 P.3d 348 (2007) (quoting Olver v. Fowler, 131 Wn. App. 135, 140 n.9, 126 P.3d 69 (2006)). 2 Although we recognize that, by definition, there is no "community" property outside a marriage, we refer to the property as community property because property acquired during a CIR 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). No. 74657-0-1 / 2
affirm the court's award to Morgan based on her interest in the value of the house.
Finally, Briney argues that the court erred by awarding Morgan an interest
in the increase in value of his separate property. Because Morgan did not show
that the increase in value was due to community efforts, we reverse that award.
FACTS
Briney and Morgan began a romantic relationship in 1987.3 In the early
years of their dating, Morgan moved to California to work for her family's business.4
While Morgan lived in California, both Morgan and Briney "remained commifted to
the relationship."5 Morgan visited Seattle regularly and stayed with Briney in his
apartment, they talked by phone, and they "exchanged loving correspondence.116
In 1990, Morgan returned to Seattle. She and Briney decided to live
together. Briney proposed to Morgan in 1991. He gave her an engagement ring,
which she kept for the next 20 years.
In 1992, after Briney's adult daughter came to live with him, Morgan moved
into her own apartment nearby. Morgan and Briney continued to date but saw
each other less frequently. During this time, Briney helped Morgan's family while
they were experiencing a financial crisis.
3 Briney does not assign error to any of the court's findings of fact except its "findings that Ms. Morgan's services contributed to the increase in the value of the house." Br. of Appellant at 20. Accordingly, the remaining findings of fact are verities on appeal. Davis v. Dep't of Labor & Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980). 4 The trial court gives 1998 as the date for this move. Both parties give the date for Morgan's move to California as 1988. Br. of Appellant at 6; Br. of Resp't at 6. They do not mention that the trial court dated the move as 1998. Given that the court also found that Morgan moved back from California in 1990, we assume that the 1998 date was a scrivener's error. 5 Clerk's Papers (CP) at 671. sCPat671. 2 No. 74657-0-1 / 3
In mid-1994, Morgan moved back in with Briney. The two lived together in
an apartment until November 1995. While they lived in the apartment, Briney paid
for the rent, utilities, and most meals. In 1995, Morgan and Briney began looking
for a house to buy.
In November 1995, they agreed to buy a house in the Queen Anne
neighborhood of Seattle. Briney's name was the only one on the title to the house,
he provided the initial down payment of $74,000, and he was the sole obligor on
the original mortgage.
The house was "dated" and "'needed work."'7 The parties agreed to
remodel it but took very little action. In 1998, Morgan moved out due to tensions
about the lack of remodeling. , They lived apart for approximately eight months.s
In the spring of 1999, Morgan moved back into the house.9 The couple took
on three major remodels of the home. Briney paid for the remodels, but Morgan
and Briney collaborated on what should be done. Morgan performed extensive
landscaping and gardening.
They were "couple-like in all aspects of their lives."10 They had a"two-way
supportive relationship during good times and bad times."" Briney was the
primary earner, and Morgan, though working full-time, took on a greater share of
' CP at 673. 8 The trial court refers to this break as a year and a half break in its findings of fact. Both parties describe this as a shorter separation in their briefs. Br. of Appellant at 9; Br. of Resp't at 10. They do not mention that the trial court described the break as longer. We assume that the parties agree the break was eight months and that the court's description of it as a year and a half was a scrivener's error. e CP at 674. 10 CP at 678. " CP at 678. 3 No. 74657-0-1 / 4
the household duties. Morgan "cooked, cleaned, and did [Briney's] laundry
throughout the entire relationship."12
Unfortunately, Briney became depressed and suicidal during the third
remodel. Even after it was completed, Briney remained in a"severe depressive
state" for years, while Morgan provided unwavering aid and support.13
In 2013, Morgan moved out after Briney became "very abusive.1114 In August
2013, Morgan initiated this action to divide the property.
In May 2015, the case proceeded to a bench trial. The court found that
Morgan and Briney were in a CIR from the time they moved into the house in
November 1995 until they broke up in 2013, that the house was a community asset,
and that Morgan was entitled to nearly half the value of the house and half of the
increase in value of some of Briney's separate property.
Briney appeals. '
ANALYSIS
Property Distribution at Termination of CIR
A CIR "is a stable, marital-like relationship where both parties cohabit with
knowledge that a lawful marriage between them does not exist." Connell, 127
Wn.2d 339, 346, 898 P.2d 831 (1995). Washington has a"three-prong analysis"
for disposing of property after a CIR. In re Marriage of Pennington, 142 Wn.2d
592, 602, 14 P.3d 752 (2000). First, the trial court must determine whether a CIR
existed. Penninpton, 142 Wn.2d at 602. Second, if such a relationship existed,
12 CP at 677. 13 CP at 676. 14 CP at 670, 677.
4 No. 74657-0-1 / 5
"the trial court evaluates the interest each party has in the property acquired during
the relationship. Third, the trial court then makes a just and equitable distribution
of such property." Pennington, 142 Wn.2d at 602.
This court reviews property distribution at the end of a CIR for an abuse of
discretion, but it reviews the trial court's findings of fact for substantial evidence
and the conclusions of law de novo. Soltero v. Wimer, 159 Wn.2d 428, 433, 150
P.3d 552 (2007).
Briney challenges the trial court's determinations for each prong. He argues
that the CIR came into existence in 1999 not 1995. He argues that the trial court
erred by concluding that the house was a community asset and awarding Morgan
an interest in the increase in the value of his separate property, including the
house. He also argues that the court erred in its division of the community
property. We address each argument in turn.
Exisfence of a CIR
Briney argues that the trial court erred when it determined that Morgan and
Briney's CIR began in 1995. Specifically, Briney argues that, because Morgan
moved out for eight months between 1998 and 1999, their CIR only began after
Morgan moved back in for the last time in March 1999. Looking at the totality of
the circumstances, Morgan and Briney's CIR continued during the eight months
they lived apart. Therefore, their CIR began at least as early as 1995.
Five factors are relevant to the existence of a CIR: "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, 127 Wn.2d at
5 No. 74657-0-1 / 6
346. These factors are not exclusive, and no orie factor is more important than the
others. Pennington, 142 Wn.2d at 602, 605. Ultimately, the existence of a CIR
depends on the facts of each case, and the "factors are meant to reach all relevant
evidence" that may be helpful. Pennington, 142 Wn.2d at 602.
Here, Morgan and Briney had a relationship of long duration. Briney
concedes that the CIR lasted at least 14 years. They had also continuously
cohabitated for about four years before Morgan moved out in 1998.15 In the
context of an almost 20-year relationship, an eight-month separation is not very
significant. Even while they were not living together, Morgan and Briney "remained
in contact" and did not date other people.16 This suggests the couple still intended
to be in a romantic relationship.
The court specifically found that the two "lived and worked together as a
couple" from 1995 to 2013, even during the time they did not cohabitate." The
record supports this finding. Morgan moved only three blocks away, Morgan said
she did not consider them to be breaking up when she moved out, and Briney
continued to pay for the insurance on Morgan's truck during the physical
separation.
Based on all the relevant evidence, it was not error for the court to conclude
that the CIR had begun by the time they moved into the house in 1995. In fact,
the trial court's findings that Morgan and Briney lived in an apartment continuously
15 The exact dates are not clear from the record, but Morgan moved into an apartment with Briney in mid-1994 and moved out of the house summer 1998 (approximately eight months before spring 1999). 16 CP at 674-75. The court did not find Briney's assertions that he had dated other people during the eight months credible. " CP at 677. 0 No. 74657-0-1 / 7
together for months starting sometime in 1994, looked for a house together in
1995, "agreed to buy" a house that needed work, and moved into that house
together, suggest that the CIR began before Morgan and Briney moved into the
house in Queen Anne in November 1995. Therefore, we disagree with the trial
court's conclusion that the CIR began in 1995, and hold that the CIR began when
Morgan moved into the apartment with Briney in mid-1994.18
Property Characterization
House
Briney argues that the trial court erred by awarding Morgan a share in the
value of the house. Briney says it was separate property because it was acquired
before the CIR began. Briney also maintains that even if the house was acquired
after the CIR began, he purchased it with his separate funds. The trial court
properly determined that the house was a community asset because Briney
acquired it after the CIR had begun and Briney did not meet his burden to show he
used separate funds to buy it.
The character of property, whether community or separate, is determined
at the time of acquisition. In re Marriage of Skarbek, 100 Wn. App. 444, 447, 997
P.2d 447 (2000). When the purchase of property includes a real estate contract
or a mortgage, it is "acquired when the obligation is undertaken." In re Estate of
18In its decree and final judgment, the court stated that the CIR began in November 1995, when the parties moved into the house. Elsewhere it described the CIR as existing more loosely from 1995 to 2013. Briney notes that Morgan did not challenge the court's conclusion that the CIR began "at the same time" that Briney purchased the house. Reply Br. of Appellant at 3-4. But, as Briney has already made clear, the existence of a CIR, or the date it begins, is a legal conclusion, which this court reviews de novo. As explained below, this court must determine when the CIR began because the legal character of assets depend on whether they were acquired before or after the beginning of the CIR. 7 No. 74657-0-1 / 8
Borghi, 167 Wn.2d 480, 484, 219 P.3d 932 (2009) (citing Harry M. Cross, The
Community Property Law in Washington, 61 WASH. L. REv. 13, 39 (1986)).
Property acquired before a CIR began is presumed to be separate property;
property acquired during a CIR is presumed to be community property. Skarbek,
100 Wn. App. at 447, 449.19
But the property retains the character of the funds used to purchase it. If
one partner purchases property with separate funds during the CIR, the property
is that partner's separate property. Merritt v. Newkirk, 155 Wash. 517, 520-21, 285
P. 442 (1930). The party asserting that an asset acquired during the CIR is
separate property "has the burden of proving it was acquired with separate funds."
Skarbek, 100 Wn. App. at 449. 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 the partner "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 some degree of particularity." . Berol, 37
Wn.2d at 382. The absence of a finding of fact on an issue is "presumptively a
negative finding against the person with the burden of proof." Taplett v. Khela, 60
Wn. App. 751, 759, 807 P.2d 885 (1991).
Here, the trial court determined that the house was "clearly a community
In a CIR, separate property is not subject to division at the end of the relationship. In re 19 Marriaae of Lindemann, 92 Wn. App. 64, 68-69, 960 P.2d 966 (1998). 0 No. 74657-0-1 / 9
asset."20 As explained ab'ove, the CIR began in mid-1994. The house was
purchased in November 1995. Therefore, the house is presumptively a community
asset.
To rebut that presumption, Briney needed to show that he acquired the
house with separate funds. The parties agree that Briney paid the initial $74,000
down payment, but the trial court's findings of fact do not contain any specific
information about the source of the funds that Briney used to make that down
payment.21 Briney does not trace the funds he used for the down payment to a
specific separate account or show that the funds came from separate income.
In his briefing, Briney points to his self-serving testimony that it was his
money, Morgan's admission that it was his money, and statements showing his
net worth at the time of acquisition. That is not the type of proof required to satisfy
his burden, and there is no finding that he met his burden with clear and convincing
evidence. Therefore, we presume that the court made a finding against Briney on
this issue. Accordingly, we conclude that the trial court did not err by characterizing
the house as a community asset.
Briney's Separate Property
Briney argues that the trial court erred by determining that Morgan had an
interest in the increase in the value of his retirement and investment accounts,
which were his separate property. Specifically, Briney argues that Morgan
20CP at 686. 21 The court describes the money for the down payment as Briney's "funds" in one of its legal conclusions, but also talks about Morgan's "efforts" to improve the property during the CIR in the same conclusion. CP at 682-83. Noting that one partner provides a service or asset is not the same as legally characterizing that service or asset as separate rather than community. ~ ~', No. 74657-0-1 / 10
provided no proof that the increase in the value of these separate assets was
attributable to community efforts. Morgan contends that the trial court did not err
because her support to the community allowed the assets to increase in value and
Briney admitted that his labor increased the value of these assets during the CIR.
We agree with Briney.
The court presumes that any increase in the value of one party's separate
property during a CIR remains separate. Lindemann, 92 Wn. App. at 69. The
community is not entitled to any increase in value attributable to natural increases
in value or separate efforts, which include rents, issues, profits, and "other qualities
inherent in the business." Lindemann, 92 Wn. App. at 70. But the community "is
entitled to the fruits of all labor performed by either party to the relationship
because each [partner] is the servant of the community." Lindemann, 92 Wn. App.
at 72.22
Accordingly, the other party can rebut the presumption that the increase in
value is separate by showing with clear and convincing evidence that the increase
is attributable to community efforts, including "community labor or funds."23
Lindemann, 92 Wn. App. at 70. If a party's community labor or funds increases
the value of separate property, the community may be entitled to reimbursement
for that labor. Connell, .127 Wn.2d at 351. When a party has not segregated his
income from separate property from the income he produced by community labor
zz The community in a CIR is entitled to those fruits "to the same extent" as if it was a marital community. Lindemann, 92 Wn. App. at 72. 23 Lindemann phrases the burden of proof as "direct and positive" evidence, but the
Supreme Court has indicated that we should conclude that burden is equal to the more general "clear and convincing" standard. 92 Wn. App. at 70; Borghi, 167 Wn.2d at 490. WO No. 74657-0-1 / 11
income, and he uses his income to increase the value of separate property, a
presumption arises that "the increase in value belongs to the community."
Lindemann, 92 Wn. App. at 70.
Here, the trial court awarded Morgan an interest in the increase in value of
Briney's investment and retirement accounts. Morgan would presumptively be
entitled to a share of these assets only if they were community property or if they
were separate property but the increase in their value was attributable to
community efforts. There are no findings of fact to support an award on either of
these grounds.
Morgan does not appear to dispute that, because Briney acquired these
assets before the CIR began, the assets are presumptively separate. But Morgan
argues that these assets are, nevertheless, presumed to be community assets
because Briney commingled the income he earned during the CIR with the income
earned from the separate accounts. To support her commingling argument,
Morgan cites Briney's statements that he contributed to these accounts during the
CIR and Briney's admissions that he does not know whether the increase in value
of his accounts was due to his contributions or market appreciation. But there was
no finding that Briney comingled the income attributable to community efforts with
income from the separate sources. Accordingly, Morgan was not entitled to a
share in the increase in the value of Briney's separate financial assets on that
basis.
Thus, in order to rebut the presumption that the increase in value remained
separate, Morgan had to show that it was attributable to community efforts. There
11 No. 74657-0-1 / 12
are no trial court findings of fact confirming that she met her burden. Morgan
argues that the trial court's conclusion that "[t]here is only one exhibit from Mr.
Briney dating back to 2006 that demonstrates Mr. Briney received income from his
investment accounts into the bank accounts he would use to support the
community expenses" demonstrates that community efforts increased the value of
Briney's separate property.24 But the fact that Briney used income from his
investment accounts, separate assets, to pay for some community expenses does
not prove that community efforts increased the value of those investment accounts.
Morgan also relies on Briney's statement that the value of those "'assets
increased during [the] 18 years [of their CIR] because of market appreciation and
the money and work [he] invested in them.11'25 While that may be proof that some
portion of the increase in value was attributable to Briney's efforts during the CIR,
his statement is not sufficient evidence to support awarding Morgan half of the
increase in value of Briney's separate property.
Finally, Morgan relies on exhibits 76, 77, and 78, which were not admitted
at trial, to show that the commingling of Briney's separate and community assets
and that community efforts increased the value of. Briney's separate property.
Briney argues that this court should not consider those exhibits because the trial
court did not admit them during trial. We agree with Briney.
This court does not "accept evidence on appeal that was not before the trial
court." State v. Curtiss, 161 Wn. App. 673, 703, 250 P.3d 496 (2011) (citing RAP
9.11).
24 CP at 685. 25 Br. of Resp't at 41 (quoting CP at 37). 12 No. 74657-0-1 / 13
Here, the trial court listed the exhibits it considered in its findings of fact and
conclusions of law. It did not include exhibits 76, 77, and 78. Briney proposed
admitting these exhibits at trial, Morgan objected, and the court reserved ruling on
whether to admit them. The court also reserved ruling on exhibits 71 and 72, but
admitted them after Briney offered them at trial. Although Briney reviewed exhibits
76, 77, and 78 during his testimony, he never moved to admit them.
In her brief, Morgan says that the court "referred to" exhibit 78 in its
conclusions of law. In its fifth conclusion of law,.the court mentions that "[t]here is
only one exhibit from Mr. Briney dating back to 2006 that demonstrates Mr. Briney
received income from his investment accounts into the bank accounts he would
use to support the community expenses."26 But the court did not cite any exhibit
by number.27 And, further, the court did not admit exhibit 78 at trial.
In June 2016, long after the trial had concluded, Morgan moved to have the
trial court include exhibits 76, 77, and 78 in the record for appeal. The court
granted Morgan's motion. This ruling, which specifically orders that the exhibits
be "included in the court record," does not order that the exhibits be admifted into
evidence or indicate that the court considered them at trial.28 Accordingly, we do
not consider these exhibits as evidence on appeal.
Lastly, Morgan places great emphasis on the "incalculable" contributions
26 CP at 685. 27 When Briney moved for reconsideration, he pointed out that the court referred to an unspecified exhibit in its findings. In response, Morgan attached the contents of exhibit 78, without labeling it as exhibit 78. Briney objected to its use on the basis that the court had not admitted it at trial. Briney requested that, if the court were to rely on the information in exhibit 78 to support its findings and conclusions, he be granted an opportunity to rebut Morgan's and the court's use of the exhibit. 28 CPat916.
13 No. 74657-0-1 / 14
she made to Briney's mental health during the CIR.29 These contributions show
why equity may favor a generous division to Morgan of the community assets that
were before the court. But the trial court did not link Morgan's efforts to the
increase in value of Briney's separate property and Briney's separate property is
not before the court for distribution. Thus, her efforts do not entitle her to a share
of Briney's separate property.
We conclude that the trial court erred in awarding Morgan an interest in the
increase in value of the separate property because Morgan did not meet her
burden of proving that any increase in value of Briney's investment and retirement
accounts was attributable to community efforts. Accordingly, we reverse that
award.
Property Distribution
Value of House
Briney argues that, even if the trial court did not err by awarding Morgan a
share in the value of the house, the court's award to Morgan for the house was too
high. Briney makes several arguments about what portion of the value of the
house is an increase in the value due attributable to community efforts. Because
the court awarded Morgan a share in the value of the house as a community asset,
not based on the increase in value of separate property, we do not address these
arguments.
Briney also argues that the court erred by incorrectly assessing the value of
the house. We conclude that the trial court's assessment of the value of the house
29 Br. of Resp't at 45. 14 No. 74657-0-1 / 15
was supported by substantial evidence.
Although the court labeled its determination of the house's value a
conclusion of law, it is essentially a finding of fact. See Para-Med. Leasing, Inc. v.
Hangen, 48 Wn. App. 389, 397, 739 P.2d 717 (1987). The parties offered
competing valuations of the house, and the trial court chose Morgan's valuation.
The trial court relied on a professional appraisal of the house, completed in the fall
of 2014 to calculate the value. Because the appraisal occurred over a year after
the CIR ended, the court reduced the value of the house by 15 percent. The court
apparently rejected Briney's suggestion that the court determine the value of the
house from an assessment completed in 2013 for tax purposes. We affirm the trial
court's award to Morgan for her share in the value of the house.
Offset
Briney contends that the trial court erred by refusing to offset any award to
Morgan by the value of the benefit Morgan enjoyed from using Briney's separate
property during the CIR. We disagree.
The court is required to make an equitable distribution of community
property at the conclusion of a CIR. Connell, 127 Wn.2d at 351. If the court has
determined that the community should be reimbursed for one party's labor, it "may"
offset that reimbursement "against any reciprocal benefit received by the
`community."' Connell, 127 Wn.2d at 351.
We conclude that declining to offset Morgan's award was within the trial
court's discretion. Because we reverse the court's award to Morgan of an interest
in Briney's separate property, Morgan's award is a share of the community
15 No. 74657-0-1 / 16
property, not a reimbursement to the community of value added to the separate
property. Regardless, the court identified several reasons why equity would favor
a large award to Morgan, including that Briney had originally included Morgan in
his will, that Morgan was responsible for nursing Briney through a crippling
depression, and that they spent a majority of their adult lives together. The court's
reasons justify its award.
We affirm the trial court's award to Morgan of an interest in the house, but
reverse its award to her of an interest in Briney's separate financial assets. We
remand for entry of a new judgment.
Y,~
WE CONCUR:
~~~~ ~ _ — — ,