Opinion
No. 33595-6-II.
December 12, 2006.
Appeal from a judgment of the Superior Court for Jefferson County, No. 03-2-00083-2, Leonard W Costello, J., entered July 6, 2005.
Counsel for Appellant/Cross-Respondent Charles Kenneth Wiggins Wiggins Masters PLLC 241 Madison Ave N Bainbridge Island, WA, 98110-1811.
Paula T. Crane Attorney at Law 9226 Bayshore Dr Nw Ste 202 Silverdale, WA, 98383-9196. Counsel for Respondent/Cross-Appellant Steven L. Olsen Olsen McFadden 216 Ericksen Ave Ne Bainbridge Island, WA, 98110-2820.
Alton B Mcfadden II Olsen McFadden Inc PS 216 Ericksen Ave Ne Bainbridge Island, WA, 98110-2820.
Authored by C. C. BRIDGEWATER Concurring: DAVID H. ARMSTRONG J. ROBIN HUNT.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Bridgewater, J., concurred in by Armstrong and Hunt, JJ.
John B. Lockwood appeals: (1) the trial court's determination that he and M. Frieda Fenn were in a meretricious relationship; and (2) the trial court's equitable distribution of property, particularly the separate property (i.e., the family home), from that relationship. Fenn cross-appeals, arguing that the trial court abused its discretion when it equitably distributed 45 percent of the community property to her and 55 percent of the community property to Lockwood. We affirm in part, regarding the trial court's determination that the parties were in a meretricious relationship and the trial court's division of the community property to each party; but we reverse and remand for a just and equitable distribution of only the community property, without consideration of the parties' separate property.
FACTS
Fenn and Lockwood began dating in the summer of 1984. They developed an exclusive dating relationship and thereafter began living together in 1986. Six to eight months after living together, they hosted an "engagement party," during which they told family and friends that they wanted to start a family. Clerk's Papers (CP) at 23. In 1987, Fenn and Lockwood held a ceremony "to memorialize their lifelong commitment to each other and their goals." CP at 23. No officiant was present at the ceremony and neither party obtained a marriage license. Instead of rings, Fenn and Lockwood exchanged necklaces.
Before they lived together, Lockwood had quit his job and had started to design kayak kits. By the time of their commitment ceremony, Lockwood started selling these kits. In 1988, he obtained a business license for Pygmy Boats; in 1995, he incorporated the business, naming himself as the sole shareholder. During the early years of Pygmy Boats, Lockwood performed all the business functions, leaving him with little time for other things. And Fenn worked as a baker and a dishwasher for several employers.
Meanwhile, their daughter, Freya Fennwood, was born in 1988. The parties agreed to raise her according to certain childrearing practices; but they soon found that it was difficult to adhere to these practices in a modern workplace. As a result of these and other circumstances, Fenn primarily raised their daughter while Lockwood primarily ran the business.
"The parties chose her last name to reflect their intent to be seen as a unit with a mixture of independence dependence." CP at 25.
In 1992, Fenn and Lockwood separated, living apart for 18 to 24 months. Fenn and Lockwood referred to this separation as their "two hut household." CP at 26. During this time, they continued to have "intimate relations, raise their child together, eat meals and sleep together three to five times a week." CP at 26. Thereafter the parties reconciled.
In 1997, Fenn and Lockwood acquired a house and real property on Jefferson Street in Port Townsend. In a written statement, they agreed that Fenn would own 41.5 percent as her separate property and that Lockwood would own 58.5 percent as his separate property.
But in 2002, the parties permanently separated. In 2003, Fenn filed for an equitable distribution of the property. The trial court concluded that Fenn and Lockwood were in a meretricious relationship. Thereafter, the trial court awarded 45 percent of the community property to Fenn and 55 percent of the community property to Lockwood. Within the award to Fenn, the trial court included Lockwood's "separate share" of the Jefferson Street property. CP at 57.
In separate proceedings, the trial court entered a parenting plan.
ANALYSIS I. Meretricious Relationships
A meretricious relationship is a "stable, marital-like relationship where both parties cohabit with knowledge that a lawful marriage between them does not exist." Connell v. Francisco, 127 Wn.2d 339, 346, 898 P.2d 831 (1995). The use of such terms as "marital-like" or "marriage-like" are mere analogies because defining meretricious relationships as related to marriage would create a de facto common-law marriage, which our Supreme Court has refused to do. Connell, 127 Wn.2d at 346-50. When a meretricious relationship terminates, the trial court must use a three-prong analysis for disposing of property. In re Pennington, 142 Wn.2d 592, 602, 14 P.3d 764 (2000).
First, the trial court must determine whether a meretricious relationship exists. Pennington, 142 Wn.2d at 602. Accordingly, the trial court analyzes five relevant factors: (1) the purpose of the relationship; (2) the pooling of resources and services for joint projects; (3) the intent of the parties; (4) the degree of continuous cohabitation; and (5) the duration of the relationship. Connell, 127 Wn.2d at 346. These factors are neither "exclusive nor hypertechnical." Pennington, 142 Wn.2d 602. These factors are meant to reach all relevant evidence helpful in establishing whether a meretricious relationship exists. Pennington, 142 Wn.2d at 602. Thus, whether a relationship is properly characterized as meretricious depends on the facts of each case. Pennington, 142 Wn.2d at 602.
Second, if such a relationship exists, the trial court evaluates the interest each party has in the property acquired during the relationship. Pennington, 142 Wn.2d at 602. "The critical focus is on property that would have been characterized as community property had the parties been married." Connell, 127 Wn.2d at 349. Both the property owned by each party before the relationship and the property that would have been characterized as separate property had the couple been married should not be before the court for distribution at the end of the relationship. Connell, 127 Wn.2d at 349, 352.
While property acquired during a meretricious relationship is presumed to belong to both parties, this presumption can be rebutted. Pennington, 142 Wn.2d at 602. If the presumption is not rebutted, the trial court may look to the dissolution statute, RCW 26.09.080, for guidance in fairly and equitably distributing the property acquired during a meretricious relationship. Pennington, 142 Wn.2d at 602.
"The fact that title has been taken in the name of one of the parties does not, in itself, rebut the presumption of common ownership." Connell, 127 Wn.2d at 351.
Lockwood acknowledges that property acquired during a meretricious relationship is presumed to belong to both parties. But without any authority, he then argues, "It follows that the court should only find a meretricious relationship where it is reasonable to infer an agreement between the parties that property acquired during the relationship will be owned by both parties." Br. of Appellant at 28. Lockwood's interpretation would: (1) render the community property presumption meaningless for meretricious relationships; (2) overrule Pennington, 142 Wn.2d 592; Connell, 127 Wn.2d 339; and In re Marriage of Lindsey, 101 Wn.2d 299, 678 P.2d 328 (1984); and (3) reinstate the presumption expressed in Creasman v. Boyle, 31 Wn.2d 345, 356, 196 P.2d 835 (1948) (property acquired during a meretricious relationship was presumed to belong to the person in whose name title to the property was placed). Thus, we disagree with Lockwood's interpretation and we reject the notion that the parties in a meretricious relationship must expressly agree to own property jointly.
Third, the trial court must make a just and equitable distribution of such property. Pennington, 142 Wn.2d at 602. The trial court may consider all relevant factors, including but not limited to, the nature and extent of the community property and the economic circumstances of each spouse at the time the division of the property is to become effective. RCW 26.09.080.
Therefore, "The court may consider the health and ages of the parties, their prospects for future earnings, their education and employment histories, their necessities and financial abilities, their foreseeable future acquisitions and obligations, and whether ownership of the property is attributable to the . . . efforts of one or both spouses." In re Marriage of Gillespie, 89 Wn. App. 390, 399, 948 P.2d 1338 (1997). Finally, when distributing the community property, the trial court's paramount concern should be the economic condition in which it leaves the parties. See
In re Marriage of Williams, 84 Wn. App. 263, 270, 927 P.2d 679 (1996), review denied, 131 Wn.2d 1025 (1997); RCW 26.09.080.
Therefore, we review the trial court's conclusion that the parties were in a meretricious relationship.
II. Existence of a Meretricious Relationship A. Standard of Review
We review findings of fact under a substantial evidence standard, defined as a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true. Wenatchee Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000). If the standard is satisfied, we will not substitute our judgment for the trial court's judgment. Croton Chem. Corp. v. Birkenwald, Inc., 50 Wn.2d 684, 314 P.2d 622 (1957). We review questions of law and conclusions of law de novo. See Veach v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979). And we review only those findings of fact to which error has been assigned. Findings to which error has not been assigned are verities on appeal. Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002).
And even after reviewing those findings of fact to which Lockwood assigns error, we find ample evidence to persuade a rational fair-minded person that he and Fenn were in a meretricious relationship.
B. Purpose of the Relationship
Lockwood claims that the "central aspect of marriage was distinctly absent from [their] relationship." Br. of Appellant at 38. Although he disputes the trial court's finding of fact that they participated in a "marriage-like relationship," he does not dispute the trial court's findings regarding the purpose of their relationship. Br. of Appellant at 34.
The trial court found that the purpose of the Lockwood and Fenn relationship included:
companionship, love, sex, mutual support, having a child, raising their daughter, participating in a community to live like a marriage, but without state or religious involvement, to operate like — and present themselves to the world as — a family, and to share the joys and responsibility of parenting.
CP at 24-25. Lockwood and Fenn shared common goals for their family, business, and community. In fact, one of their goals was "to have a child and raise that child consistent with their common principles." CP at 25. Lockwood did not intend to be the "sole breadwinner" in the relationship; Fenn did not intend to be "financially dependent." CP at 25. And although both Lockwood and Fenn agreed to live in a "Pygmy Society," CP at 33, neither party could follow those ideals because they had to make accommodations for living in a first world country.
In addition, even after an attorney advised the parties in 1997 that the State of Washington had adopted the concept of meretricious relationships, Lockwood took no steps "to avoid operation of the legal consequence of being in a meretricious relationship." CP at 27. Because Lockwood has not challenged these findings of fact, they are verities on appeal. Robel, 148 Wn.2d at 42. And these findings assist us in our review of the trial court's conclusion.
C. Pooling of Resources
Lockwood claims that they never pooled their resources and services for joint projects.
Lockwood states, "The only joint project for Lockwood and Fenn was the Jefferson Street house, but they deliberately took the house in specific percentage ownership interests." Br. of Appellant at 39.
But he fails to observe that this factor is neither exclusive nor hypertechnical. Pennington, 142 Wn.2d at 602. The question is not simply whether they pooled their resources and services for joint projects; the question is whether they pooled and invested their time, effort, or financial resources enough to require an equitable distribution of property.
As Fenn notes, she and Lockwood "started with almost nothing. . . . They sacrificed, struggled, dreamed and thrived as a family." Br. of Resp't at 27-28. But Fenn and Lockwood "pooled their resources and services for joint projects, including work for Pygmy Boats, housekeeping, child rearing and breast[-]feeding." CP at 28. Ultimately, the community produced two significant "assets": Freya Fennwood and Pygmy Boats. CP at 34.
As we discuss, substantial evidence supports this finding of fact. Because Lockwood provides no argument supporting his challenge to this finding of fact, we could treat it as a verity on appeal. City of Burien v. Cent. Puget Sound Growth Mgmt. Hearings Bd., 113 Wn. App. 375, 383, 53 P.3d 1028 (2002). Instead, we hold that substantial evidence supports this finding.
Shortly after beginning their relationship, Fenn and Lockwood shared a house in Seattle, which included a workshop for building kayaks. While the parties had separate bank accounts at this time, they each shared the household and living expenses.
And while the parties had many separate bank accounts, they also had joint bank accounts. "They mixed payment of expenses among these accounts. They moved money in and out of accounts. Both parties used credit cards for various meals and restaurants." CP at 27. Lockwood used his income "to pay community expenses, including meals eaten out by him, her or together." CP at 28.
Again, Lockwood assigns error to this finding of fact, but simply argues, "Whatever this means, it does not mean that they pooled their resources and projects for joint projects." Br. of Appellant at 38. Because Lockwood provides little, if any, argument supporting his challenge to this finding of fact, we treat the finding of fact as a verity because he does not challenge the facts, only the conclusion of "pooling." See Nordstrom Credit, Inc. v. Dept. of Revenue, 120 Wn.2d 935, 939-40, 845 P.2d 1331 (1993); City of Burien, 113 Wn. App. at 383.
The trial court found that Lockwood built his prototype kayak while the parties shared their house in Seattle. And it found that Lockwood did not acquire suppliers and did not begin selling the kayak kits until after he and Fenn had started their relationship. When Lockwood later started Pygmy Boats in Port Townsend, "Lockwood referred to Pygmy Boats as `we' in order to make the business appear larger than a one man operation." CP at 45. Advertisements for the business referred to Pygmy Boats as a family business. Finally, newspaper and magazine articles about the business referred to Fenn and Lockwood as husband and wife.
In both Seattle and Port Townsend, the parties maintained a business office in their residence. Pygmy Boats paid rent to Fenn and Lockwood for use of the business office in their Port Townsend residence. The parties deposited the rent paid into either the parties' joint bank account or Lockwood's individual bank account. "There was no clear pattern of which account received the rent payment." CP at 46. In addition, the parties' personal phone number was the same as the business phone number. At either the business shop or the parties' home, all calls were answered, "Pygmy Boats." CP at 47.
After incorporating Pygmy Boats in 1995, Fenn and Lockwood jointly consulted with their accountant and their attorney for ways to minimize their taxes. On their professionals' advice, Fenn and Lockwood made Fenn an officer of the corporation and provided her a salary comparable to Lockwood's salary. And, depending on how they could most reduce their combined tax liability, either Fenn or Lockwood would claim Freya Fennwood as a dependent on his or her individual tax return. Finally, although Lockwood paid the taxes on the family home out of his individual bank accounts, the community benefited from his actions.
Because Lockwood provides no argument supporting his challenge to this finding of fact, we treat the finding of fact as a verity. City of Burien, 113 Wn. App. at 383.
Lockwood provided "the bulk of family labor" to Pygmy Boats, from which the community benefited. CP at 29. And Fenn provided "the bulk of family labor" to maintaining the household, caring for their daughter, and preparing the meals. CP at 29. Nevertheless, Fenn did work for Pygmy Boats. In particular, she managed the small business when Lockwood was on extended vacations. For some of these services, she was paid as an employee. For other of these services, she was not paid.
With regard to raising a family, Fenn and Lockwood agreed that their daughter:
would be "worn," breast[-]fed for a long period of time, would not be placed in institutional day care, sleep in the "family bed", not eat food ground by a food mill, they would pre-chew her food, leave her undiapered when possible, receive infant massage, live like an "Eskimo Club", not be left in a playpen, be carried rather than strollered and would be home schooled.
CP at 30-31. Although both parties shared these values and tried to adhere to them, these childrearing practices conflicted with the environment of most workplaces. CP at 31. Because of this conflict, Fenn and Lockwood "made choices of how they would contribute to the community. Ms. Fenn's contribution was primarily through Freya. Mr. Lockwood's contribution was primarily through Pygmy Boats." CP at 31.
Although Lockwood assigns error to this finding of fact, he merely claims in his statement of facts, "These findings and the testimony at trial contradict the implication . . . that Lockwood failed to participate fairly in parenting Freya." Br. of Appellant at 20. Because Lockwood provides no argument supporting his challenge to this finding of fact, we treat this finding of fact as a verity. City of Burien, 113 Wn. App. at 383.
In fact, Lockwood denigrated Fenn for her contribution to the community. Although the trial court found that he was not deliberately unappreciative of her work, Lockwood measured contributions to the community "in dollars and cents." CP at 35. Because maintaining the household, caring for their daughter, and preparing the meals could not be measured "in dollars and cents," Lockwood did not recognize Fenn's contributions to the community. CP at 35.
Lockwood did not provide, nor did he wish to provide, the labor and services necessary to maintain the household or care for their daughter.
Again, Lockwood merely claims in his statement of facts, "These findings and the testimony at trial contradict the implication . . . that Lockwood failed to participate fairly in parenting Freya." Br. of Appellant at 20. Because Lockwood provides no argument supporting his challenge to this finding of fact, we treat this finding of fact as a verity. City of Burien, 113 Wn. App. at 383.
Although Fenn's lack of financial contribution to the community was a source of conflict between the parties, Lockwood did not offer to care for their daughter part time so that Fenn could work part time. And Lockwood did not try to find child care for their daughter because "he was very busy at Pygmy Boats." CP at 32.
While Lockwood argues that these facts are no different from the facts in Pennington, the facts in this case, unlike in Pennington, show that Fenn substantially invested her time and effort for the mutual benefit of the parties. We agree with the trial court that Fenn and Lockwood jointly pooled their time, effort, and/or financial resources enough to require an equitable distribution of property, as contemplated by Connell.
D. Intent of the Parties
Lockwood argues that the trial court erred in finding that he and Fenn "decided to create
and participate in a marriage-like relationship without participating in a state substantiated process." Br. of Appellant at 34; CP at 25. He also argues that the trial court erred in finding that he and Fenn "intended to have separate identities and accounts; but intended to be in a meretricious relationship." Br. of Appellant at 34, 42; CP at 26.
Lockwood claims that the finding of fact is erroneous to the extent it implies that "the purpose of the relationship was to be like marriage." Br. of Appellant at 38.
But even assuming, without deciding, that the trial court erred in entering these findings of fact, numerous other findings of fact support the trial court's conclusion that the parties intended to form a meretricious relationship. The trial court found that Fenn and Lockwood had invited guests to an "engagement party," where they told family and friends that "they wanted to have a family together." CP at 23. According to Lockwood, the purpose of the party was "`to present ourselves to persons who stood in the shoes of ? potential in-laws, letting them know this is a long term relationship, letting them be comfortable with the fact that each of us was going to be in the other person's life.'" CP at 23.
Thereafter, Fenn and Lockwood held a ceremony in which they memorialized "their lifelong commitment to each other and their goals." CP at 23. No officiant was present at the ceremony, and the parties had not obtained a marriage license. After the ceremony, Fenn and Lockwood "honeymooned at a friend's home on Lopez Island, then in the southwest Four Corners." CP at 24. Even though the ceremony was similar to a Quaker wedding, both parties knew that a legal marriage did not exist.
Both parties had discussed their "wishes" for what they intended to be a long term relationship. CP at 25. Lockwood did not want to be "the sole breadwinner," and Fenn did not want to be financially dependent. CP at 25.
The trial court found, "Regardless of the term used, they referred to their unit as a family." CP at 28. Lockwood referred to Fenn as his "wife." CP at 28. He also referred to his relationship with Fenn as a "domestic [p]artnership." CP at 28. And, although Fenn preferred the term "partners," she referred to Lockwood as her "husband" during her campaign for a position on the Port Orchard city council. CP at 28, 46. And in her campaign material, she specifically referred to Pygmy Boats as a "family business." CP at 46. Finally, both Fenn and Lockwood remained monogamous throughout their relationship, even during their separation.
Unlike Pennington, both Fenn and Lockwood intended to be in a stable, long-term, cohabitating relationship. And as previously noted, even after an attorney advised the parties that the State of Washington had adopted the concept of meretricious relationships, Lockwood took no steps "to avoid operation of the legal consequences of being in a meretricious relationship," except with regard to the Jefferson Street property, as discussed below. CP at 27. This written agreement as to the separate ownership of the Jefferson Street property implies that all other property was community property. It also implies that the parties knew how to divide property into separate ownership, yet did so only with the Jefferson Street property.
Therefore, we agree with the trial court that Fenn and Lockwood "intended to memorialize their lifelong commitment to each other and their goals" and intended to be in a long term relationship with the other. CP at 23. And again, these findings assist us in our review of the trial court's conclusion.
E. Continuous Cohabitation Duration of the Relationship
The trial court found, "The parties cohabitated continuously for over 16 years. This included a period of 18-24 months, during which they lived in separate homes; after which they reconciled." CP at 26. Furthermore, the trial court found, "The parties referred to that 18-24 month period as a `two hut household'. During that time the[y] continued to have intimate relations, raise their child together, eat meals and sleep together three to five times a week." CP at 26. And even Lockwood concedes that he and Fenn were in a continuous cohabitating relationship. Substantial evidence demonstrates that Fenn and Lockwood were in a stable cohabitating relationship.
Although Lockwood assigned error to this finding of fact, he simply claimed, "The trial court erred in holding that the parties `cohabitated continuously for over 16 years,' while.
Therefore, we agree with the trial court's conclusion that Fenn and Lockwood were in a meretricious relationship.
III. Property Acquired During the Meretricious Relationship
Having concluded that the facts gave rise to a meretricious relationship, the trial court made a list of the parties' separate and community property. Lockwood's separate property totaled $472,559. Fenn's separate property totaled $158,135. The property that Fenn and Lockwood acquired during their meretricious relationship totaled $1,335,807.
The trial court noted that this figure included a math correction from its oral ruling. It is unclear how the trial court calculated this figure. Nevertheless, neither party disputes the trial court's calculation.
The trial court then concluded that 45 percent of the community property should be awarded to Fenn and 55 percent of the community property should be awarded to Lockwood. Thus, the trial court distributed $601,113 of the community property to Fenn, including: (1) $82,367 in community assets; (2) Lockwood's $215,000 "share" of the Jefferson Street property; simultaneously holding that they were separated for 18-24 months during this period." Br. of Appellant at 42. Because Lockwood provides no argument supporting his challenge to this finding of fact, we treat the finding of fact as a verity. City of Burien, 113 Wn. App. at 383. and (3) $303,746 from the Merrill Lynch Account. CP at 57. The trial court distributed $756,394 of the community property to Lockwood.
Again, the trial court noted that these figures included a math correction from its oral ruling. It is unclear how the trial court calculated these figures. But, except for the inclusion of separate property in the distribution, neither party disputes the trial court's calculations.
The trial court concluded, "Mr. Lockwood should receive $1,275,140 in community assets, less $303,746 from the Merrill Lynch Account, less his $215,000 separate share in the Jefferson Street Property for a total community property award of $756,394." CP at 57-58.
On appeal, Lockwood argues that the trial court erred in concluding that the Jefferson Street property was properly before it and subject to a just and equitable distribution. Fenn argues that Lockwood did not raise this issue below and that we should not consider his assignment of error. If anything, Fenn claims that Lockwood invited the error.
But separate property acquired during the meretricious relationship is not before the trial court for division. Connell, 127 Wn.2d at 351. And we have no evidence, authority, or concession from either party that the trial court could dispose of the Jefferson Street property along with the community property upon termination of the meretricious relationship.
Furthermore, because no finding of fact supports the conclusion of law that "[e]ven if the parties had an enforceable separate property agreement, enforcement of such an agreement would result in unjust enrichment," we strike it. CP at 53.
Nevertheless, Lockwood rebutted the presumption that the Jefferson Street property should be treated as community property. The trial court specifically found, "At the time of acquisition the parties entered a written agreement regarding their ownership interests in the Jefferson Street Property. They agreed that Mr. Lockwood would own 58.5 [percent] as his separate property and Ms. Fenn would own 41.5 [percent] as her separate property. The parties abided by this agreement." CP at 39.
The trial court also concluded, "The parties did have an enforceable written agreement to own the Jefferson [S]treet property in specific percentages." CP at 53.
Thus, the Jefferson Street property was never properly before the trial court for distribution, apart from declaring the parties to be joint tenants. Connell, 127 Wn.2d at 352. And the trial court should not have treated this property as community property. Lockwood is correct that the trial court erred in distributing his separate "share" of the Jefferson Street property. CP at 57. On remand, the trial court should not place before it either party's separate property. It must treat the parties as joint tenants in the Jefferson Street property.
IV. Distribution of property
On cross-appeal, Fenn argues that the trial court abused its discretion in distributing the community property. Essentially, Fenn claims that there can be "no justification" for awarding Lockwood 55 percent of the community property when he owns more than three times the amount of separate property and earns more than 27 times the amount of income when compared with her. Br. of Resp't at 43. We disagree with Fenn.
The trial court has broad discretion in awarding property when a meretricious relationship
terminates. See In re Marriage of Fiorito, 112 Wn. App. 657, 667, 50 P.3d 298 (2002). Absent an abuse of discretion, we will not reverse the trial court's decision. Fiorito, 112 Wn. App. at 668.
"A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds." Fiorito, 112 Wn. App. at 663-64.
Here, the trial court considered many relevant factors, including the parties' economic conditions, in making a just and equitable distribution of the community property. As the trial court found, Fenn and Lockwood did not live an extravagant life style. Instead, they saved most of the money that they earned from Pygmy Boats for retirement. "They were frugal." CP at 36.
The trial court found, "In Mr. Lockwood's mind, Pygmy Boats was his creation. In many ways it was his vocation and avocation and his second family. This was recognized in the relationship." CP at 34. Fenn also knew that "Pygmy Boats was Mr. Lockwood's `baby.'" CP at 34. At the time of trial, Lockwood received approximately $300,000 per year from his work at, and investments in, Pygmy Boats. But Lockwood is 62 years old and plans to retire or semi-retire. The trial court also found that Fenn is 48 and will have "10-15 years of a professional working life, if she chooses." CP at 36. Finally, the trial court found, "Awarding Pygmy Boats, Inc. to Mr. Lockwood fulfills the parties' intent that he retire and spend time in the wilderness." CP at 42.
Fenn argues that, given the findings of fact, "there is no tenable reason" to award Lockwood a disproportionate amount of community property. Br. of Resp't at 43. But based on such factors as the nature and extent of the community, the wishes of each party, and the economic circumstances of each party, the trial court awarded Fenn 45 percent of the community property and awarded Lockwood 55 percent of the community property. Such a distribution was not an abuse of discretion. Nevertheless, on remand, the trial court should make a just and equitable distribution that does not include either party's separate property; the trial court is free to dispose of the community property either in the same percentages or in different percentages when arriving at a just and equitable distribution.
Affirmed in part and remanded for a just and equitable distribution only of the parties' community property, not of the parties' separate property.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Bridgewater, P.J.
Armstrong, J.
Hunt, J.