Opinion
No. 37100-6-II.
May 12, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-3-00821-0, Marc T. Christianson, J. Pro Tem., entered November 5, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Armstrong, J.
UNPUBLISHED OPINION
Michael L. Smith (Smith) appeals from the trial court's Findings of Fact and property distribution in dissolving his marriage to Kimberly P. Sjolander, fka Smith, (Sjolander). Smith argues that the trial court erred in (1) failing to use the Washington State Insurance Commissioner's Mortality table to value the parties' pension plans, (2) failing to consider Sjolander's survivor's annuity, (3) failing to consider Smith's reduced Social Security benefits, (4) finding that Sjolander's defined benefit plan had not vested, and (5) finding him in contempt of court for failing to provide the Office of Personnel Management with a copy of the trial court's Findings and Decree. We affirm.
Kimberly Sjolander, fka Smith, legally changed her name to "Sjolander" during the dissolution proceeding.
FACTS
Michael L. Smith and Kimberly P. Sjolander married on April 4, 1981, and separated on March 1, 2005. During the parties' 2007 dissolution trial, the court heard testimony from Smith and Sjolander about their community and respective separate property assets, financial circumstances, and health.
Neither party requested maintenance.
I. Smith's Financial Circumstances and Health
At the time of the dissolution proceeding, Smith, who was 58 years old, was working fulltime as a supply technician for the Department of the Army at Fort Lewis, Washington, for whom he had worked since 1999. His net "take home" salary was approximately $4,700 per month.
Salary deductions for various benefits reduced Smith's actual paycheck to about $3,300-$3,400 per month in gross take home pay as follows: $325 per month for Smith's federal savings account health expenses; $310 per month reduction of Smith's Social Security benefit under the Federal Windfall Elimination Provision; and mandatory contributions to Smith's Federal Civil Service Retirement System plan.
Smith had taken out two mortgages on the "family home" with monthly payments of $1,949 on the first mortgage and $315 on the other mortgage. Smith owed back payments on both mortgages totaling approximately $8,596. He also owed $14,500 in attorney fees for his representation during the dissolution proceeding. He had already paid $4,500 toward this amount. Additionally, Smith had signed as the primary signor on his daughter's college loans, and he paid for her living expenses when she resided at his home during the summer.
The record on appeal contains no information about whether Smith owned this home before marrying Sjolander.
Smith and Sjolander had two children together, both of whom had reached the age of majority at the time of the parties' dissolution proceeding. Smith testified that he is the primary signor on his daughter's student loans and that she resides with him during the summers; but his financial statement, does not include information about these costs.
The record on appeal contains no information about this loan amount or status. But in dividing their assets, the trial court recognized that the parties have a daughter in college.
Smith suffered from numerous physical and mental ailments, which appeared likely to require future medical attention, including post-traumatic stress disorder (PTSD), carpal tunnel syndrome, osteoarthritis, recurring kidney stones, hernia damage, and back problems. He also had both hips surgically replaced. Nevertheless, he remained fully employed at the time of dissolution.
Smith had been part of the Civil Service Retirement System since 1978. At the time of the dissolution proceedings, he planned to continue working for another nine years and then to retire at age 65. Smith did not want Sjolander to receive a survivor's benefit annuity from his Civil Service Retirement System plan unless he predeceased her or she reached 70 years old, whichever came first.
The trial court admitted Smith's current Social Security statement, which stated that he would receive $587 per month in benefits (before deductions) if he retired at the age of 66. After factoring in the Federal Windfall Elimination Provision, however, it appears that Smith would receive approximately $268 per month in social security benefits if he retired at age 65.
II. Sjolander's Financial Circumstances and Health
As a result of serious medical conditions, Sjolander was not employed for a ten-year period during her marriage to Smith. She was 50 years old at the time of the dissolution proceedings. She had been working as a para educator for the Tacoma School District for 10 years, first as a part-time employee and then as a full-time employee since 2000. She was receiving $1,275-1,500 per month in gross take-home pay. And she was living with her father because she could not afford rent on her low income.
Sjolander works approximately 35 hours per week at a wage of $15.42 per hour. Additionally, Sjolander earns $10 per hour as a tutor.
At the time of the dissolution proceedings, Sjolander continued to suffer from long-term health issues, including: damage to internal organs; recurrent bladder and kidney problems, for which she depends on catheters; and breast cancer, for which she was in remission. Nevertheless, she was still working full time for the school district.
Sjolander began to earn State Employment Retirement System (SERS) pension benefits in 2000, when she started full-time employment at the school district. Her SERS plan deducts 15 percent from her paycheck (approximately $225 per month). Her SERS plan was worth $8,000 or $9,000 at the time of her separation from Smith. But she cannot redeem this amount until her pension vests in 2010, after she has worked as a full-time employee for the school district for 10 years.
III. Characterization of Assets and Liabilities A. Community Property
Following the dissolution trial, the trial court listed the following as community property assets: (1) the parties' 1,200 square-foot home, (2) Smith's Civil Service pension, (3) Sjolander's SERS pension, and (4) household goods and services.
The record states that the home was "12,000 square feet." This appears to have been an inadvertent scrivener's error.
B. Separate Property
The trial court listed the following assets as Smith's separate property: a 2003 Ford Taurus, a 1999 Chevrolet S-10, a 1994 Ford Explorer, and a 1977 Chevrolet Nova. The trial court listed a 1997 Dodge Intrepid as Sjolander's separate property.
C. Liabilities
The trial court noted that the parties had "no known community liabilities." As for their separate liabilities, the trial court found that Smith's debts included "any debt or lien against the home awarded to him under the property division above" and the following items: (1) $175,000 for the home mortgage; (2) a $30,000 home equity loan; (3) a $7,800 car loan; (4) a $2,700 signature loan, (5) a $12,400 direct loan, (6) a $3,000 debt to American General Finance; and (7) $10,000 in attorney fees. Clerk's Papers (CP) at 5.
The trial court found that Sjolander's separate liabilities included: (1) a $2,000 personal loan; (2) a $4,900 Visa credit card balance; (3) a $2,000 MasterCard balance; and (4) a $600 debt to Franciscan Health.
IV. Division of Assets and Liabilities
Before dividing the parties' assets, the trial court noted: "[A] host of factors make this case extremely difficult, not the least of which is that as these parties approach the home stretch towards retirement there are just not sufficient assets to give either of them a comfortable future." Report of Proceedings (RP) (Aug. 17, 2007) at 8. The trial court further noted that the federal Windfall Elimination Provision of the Social Security Act would reduce Smith's Social Security payments. The trial court also found that there was insufficient proof of the amount of Sjolander's Social Security benefit. Thus, the trial court declined "to factor any changes or alterations in the division based upon consideration of both parties' Social Security benefits." RP (Aug. 17, 2007) at 9.
A. Smith
To Smith, the trial court awarded: (1) the parties' family home; (2) $4,000 from Sjolander's Defined Contribution Plan "by way of non-taxable rollover to a qualified retirement account in his name"; (3) a designated portion of his Civil Services retirement plan (as set forth below); (4) the 2003 Ford Taurus, the 1999 Chevrolet S-10, the 1994 Ford Explorer, and the 1977 Chevrolet Nova; (5) household goods and furnishings in his possession; (6) bank accounts in his possession; (7) social security benefits he had accrued ($268 per month if he retires at age 65); and (8) any property he had acquired since the date of separation. Clerk's Papers (CP) at 10.
B. Sjolander
To Sjolander, the trial court awarded: (1) any benefits under her SERS plan, except for the $4,000 rollover; (2) the 1997 Dodge Intrepid; (3) household goods and furnishings in her possession; (4) bank accounts in her possession; (5) social security benefits that she had accrued; and (6) any property she had acquired since the date of separation. CP at 10-11.
The record on appeal does not include the amount of social security payments that Sjolander would receive. She testified at trial: "They tell me I'm going to get Social Security. I don't have any idea what that could be. I don't know how that could be calculated. I didn't pay into it for the 10 years I was drawing Social Security Disability." RP (Aug. 13, 2007) at 71.
C. Retirement Plans
The parties stipulated to admission of the Washington State Insurance Commissioner's mortality table for determining their respective life expectancies at the time of trial. Using this table, Smith's life expectancy was 19.23 years, and Sjolander's was 30.45 years.
Neither party submitted expert testimony about whether their physical ailments would reduce their life expectancies.
1. Smith's civil service retirement annuity and survivor annuity
The trial court stated that the fairest way to divide Smith's civil service retirement annuity was to apply the Bulicek formula, rather than using fixed sums, "because of the health conditions of the parties, the uncertainty about their exact retirement date, [and] whether there will be a medical retirement or some other event that may not cause the calculation assuming an age 65 retirement to come true." RP (Aug. 17, 2007) at 7. Applying this formula, the trial court ordered that Sjolander would receive 50 percent of the civil service retirement annuity amount that Smith had accrued from April 4, 1981, to March 1, 2005 (numerator), divided by the total years that Smith had served in the Civil Service (denominator).
The trial court appears to use the phrase "Civil Service Retirement Annuity" interchangeably with "pension" to describe Smith's retirement plan.
In re Marriage of Bulicek, 59 Wn. App. 630, 632, 800 P.2d 394 (1990). The Bulicek formula calculates the community portion of a retirement benefit by multiplying the years of marriage times the monthly benefit at retirement and then dividing this total by the years of service spent earning the retirement benefit.
The trial court further concluded that the best way to allocate the survivor benefit annuity was to "take the cost of the survivor benefit off the top and divide the pension [Smith's civil service retirement annuity] after that." RP (Aug. 17, 2007) at 8. Smith would then receive his separate property portion of his civil service retirement annuity and one-half of the community property portion; Sjolander would receive the other half of the community property portion. In its Decree of Dissolution, the trial court ordered that "[Smith] shall forthwith do all acts necessary to acquire the survivor's benefit annuity, naming Kimberly P. Sjolander as the sole beneficiary of that survivor's annuity." CP at 12.
The parties stipulated to Smith's computation of his civil service retirement annuity, showing that Smith would receive an unreduced monthly annuity of $3,875.85 if he retires at age 65. This computation also noted that a "survivor benefit reduction" would reduce Smith's civil service retirement annuity amount by $365.09, which amount the parties later revised to $369.09. After subtracting this corrected survivor's annuity amount, Smith's civil service retirement annuity benefit would be $3510 per month.
2. Sjolander's pension
The trial court found that Sjolander's SERS pension plan consisted of two parts: a defined benefit component and a defined contribution component. The trial court found that the defined benefit component was not a divisible asset because Sjolander's SERS pension plan had not yet vested, and the parties had failed to present sufficient information about its possible value. Accordingly, the trial court declined to allocate the defined benefit component of Sjolander's SERS pension plan.
The trial court determined, however, that the defined contribution component of Sjolander's pension plan was a divisible community asset, valued at between $10,230.50 and $10,589.31 at the time of trial. The trial court awarded Smith $4,000 of the defined contribution portion of Sjolander's pension plan, leaving the remaining $6,589.31 for Sjolander.
The trial court based this distribution on the following facts: (1) Sjolander's earning capacity was lower than Smith's, (2) their daughter in college lived with Smith during the summers, and (3) and Smith's health conditions would likely affect his ability to work until the age of 65.
V. Attorney Fees
Based on the parties' poor financial situations, the trial court required the parties to pay their own attorney fees and costs
VI. Contempt
On November 19, 2007, Sjolander filed a motion asking the trial court's commissioner to find Smith in contempt because he failed to do all acts necessary to obtain the survivor's annuity by failing to forward certified copies of the trial court's Findings and Decree to the Office of Personnel Management. In response, the superior court commissioner issued an "Order on Cause re Contempt/Judgment," noting that Smith had intentionally failed to comply with the September 28, 2007 order to provide the Office of Personnel Management with a copy of the trial court's Findings of Fact and Decree of Dissolution.
Nevertheless, in its Judgment on the Contempt Motion, the superior court commissioner stated: (1) "The Court declines to order contempt at this time," CP at 16 (emphasis added); (2) "Mr. Smith shall forthwith comply with paragraph 3.15 of the decree," CP at 16; (3) Smith violated the trial court's Order by failing to provide certified copies of the trial court's Order and Decree to the Office of Personnel Management; and (4) "Ms. Sjolander may renew her motion for contempt if this order is not revised and Mr. Smith does not insure the annuity is in place in a timely fashion." CP at 17. The record before us on appeal does not show that Sjolander thereafter renewed her motion for contempt or that the court ever found Smith in contempt.
The superior court commissioner then stayed the "Order on Cause re Contempt/Judgment," until November 30, 2007, "to allow a motion for revision to be held and stayed until a revision motion, if brought, is heard pursuant to court rules." CP at 17. Additionally, the trial court's Commissioner stated that, "Ms. Sjolander may renew her motion for contempt if this order is not revised and Mr. Smith does not ensure the annuity is in place in a timely fashion." CP at 17.
Smith appeals the trial court's September 28, 2007 Findings of Fact and Conclusions of Law and Decree of Dissolution, and the superior court commissioner Commissioner's "contempt ruling."
ANALYSIS
Smith challenges portions of the trial court's property division as unfair and an abuse of its discretion. We disagree.
As a general rule, Washington law provides:
In a proceeding for dissolution of the marriage . . . the court shall, without regard to misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage or domestic partnership; and
(4) The economic circumstances of each spouse or domestic partner at the time the division of property is to become effective, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse or domestic partner with whom the children reside the majority of the time.
I. Standard of Review
The trial court has broad discretion to distribute property during a dissolution proceeding because it stands in the best position to determine what is fair, just, and equitable. In re Marriage of Wallace, 111 Wn. App. 697, 707, 45 P.3d 1131 (2002) ( citing In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999)), review denied, 148 Wn.2d 1011 (2003). On appeal, we will reverse a property division made during dissolution of a marriage only if the party challenging the distribution can show that the trial court manifestly abused its discretion. Urbana v. Urbana, 147 Wn. App. 1, 9-10, 195 P.3d 959 (2008); Wallace, 111 Wn. App. at 707 ( citing In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984)).
The trial court is not required to divide community property equally, but if its dissolution decree results in a patent disparity in the parties' economic circumstances, we will reverse the ruling, finding a manifest abuse of discretion. Urbana, 147 Wn. App. at 10. A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or for untenable reasons. Wallace, 111 Wn. App. at 707 ( citing In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991)).
II. Retirement Benefits
Smith first argues that the trial court abused its discretion in failing to use the Washington State Insurance Commissioner's mortality tables in determining the value of the parties' respective retirement benefits. Sjolander counters that the trial court properly exercised its discretion by considering the parties' economic circumstances in making its property division.
Smith cites In re Marriage of Pilant, 42 Wn. App. 173, 709 P.2d 1241 (1985) and Layton v. Yakima, 170 Wash. 338-39, 16 P.2d 449 (1932) for the proposition that a trial court's failure to rely on the Washington State Insurance Commissioner's mortality tables is an abuse of discretion. But neither of these cases support his argument. Contrary to Smith's assertion, although Pilant encourages the courts to use the mortality table to calculate life expectancy, it does not require courts to use this table to value the pensions. Pilant, 42 Wn. App. at 181. In Pilant, we noted:
In Washington such actuarial tables of "average expectancy of life" are computed and maintained by the Insurance Commissioner, pursuant to statute, for the use of the courts. Our Supreme Court has urged the courts to use these tables when life expectancy must be predicted. However, Washington appellate courts have never disapproved other actuarial resources, and one other such table was used by the expert witness in this case.
Pilant, 42 Wn. App. at 179-80 (citations omitted).
We found no abuse of discretion in the Pilant trial court's distribution of property because (1) "mischaracterization of property is not necessarily a reversible error, if the distribution is, on the whole, fair and equitable"; and (2) "the erroneous valuation of one item in [a] particular case, does not require reversal of the otherwise fair and equitable distribution of [property]." Pilant, 42 Wn. App. at 181 ( citing Washburn, 101 Wn.2d at 177).
Smith's reliance on Layton, a case from the 1930s, is similarly misplaced. Although Smith interprets Layton to stand for the proposition that courts must use mortality tables to calculate life expectancy, Layton does not address that issue. Instead, the issue was whether the trial court erred in admitting mortality tables into evidence as part of a negligence action. Layton, 170 Wash. at 338-39.
Here, the parties stipulated to admission of the Washington State Insurance Commissioner's mortality table to determine the parties' life expectancies. Using these tables, they calculated Smith's life expectancy at 19.23 years, and Sjolander's life expectancy at 30.45 years. The trial court considered these life expectancies in dividing of the parties' assets, but it had no obligation to use these tables in its valuation of the retirement plans. Instead, noting the parties' health conditions and uncertain retirement dates for Smith, the trial court determined that the Bulicek formula was the fairest way to divide the parties' assets.
Bulicek, 59 Wn. App. at 638-39.
In so doing, the trial court neither mischaracterized the property nor erroneously valued the parties' assets. See Pilant, 42 Wn. App. at 181.
We find no abuse of discretion in the trial court's decision not to follow the mortality tables strictly in dividing the parties' retirement plans. Thus, Smith's first argument fails.
III. Sjolander's Survivor's Annuity
Second, Smith argues that, in dividing the parties' assets, the trial court abused its discretion in failing to consider Sjolander's survivor's annuity. This argument also fails.
Contrary to Smith's assertion, the record shows that the trial court spent significant time and effort considering Sjolander's survivor's annuity and the court did take this annuity into account in distributing the property. Noting that there were not sufficient assets available to give either party a comfortable retirement, the trial court decided that the best approach was to take the survivor's annuity "off the top" and then to divide the pension so that Smith would receive Page 14 his separate property and his half of the community property share of his pension and Sjolander would receive her half of the community property share of Smith's pension. The trial court based this decision on the parties' economic circumstances and on the fact that under Smith's proposal, Sjolander would receive no money from his pension fund until she reached age 70 (unless Smith predeceases her). Nevertheless, the trial court decided to award Smith $4,000 of Sjolander's defined contribution plan.
The trial court explained how it divided the parties' assets under "Retirement Plans" in Section IV, C.
In calculating Sjolander's survivor's annuity in this manner, the trial court avoided the unfair and inequitable result of providing Sjolander with no share of Smith's pension for approximately 20 years (or until she turned 70 years old). Additionally, the trial court recognized that (1) Sjolander had a lower earning capacity than Smith, (2) the parties had a daughter in college who lived with Smith during the summers, and (3) and Smith's health conditions would likely affect his ability to work until age 65.
Under Washington law, the trial court is not required to divide all assets equally. Chavez v. Chavez, 80 Wn. App. 432, 436, 909 P.2d 314, review denied, 129 Wn.2d 1016 (1996). In Chavez, we held that (1) in dividing pension benefits following a marriage dissolution, "case law does not support the trial court's approach of simply dividing the total pension in half," 80 Wn. App. at 436; and (2) the Bulicek formula is a proper method for courts to use in calculating the community portion of pension benefits. Id. (citing Bulicek, 59 Wn. App. at 638-39).
As we stated in Urbana, the trial court is not required to divide the property equally, as long as this does not produce "a patent disparity in the parties' economic circumstances." Urbana, 147 Wn. App. at 10. Smith does not argue that the trial court's division of property produced a patent disparity in the parties' economic circumstances. Instead, he asserts only that the trial court failed to value Sjolander's survivor's annuity properly, in other words, just like any other asset. Contrary to Smith's argument, the record demonstrates that the trial court did not abuse its discretion in considering the value of Sjolander's survivor annuity when it divided the parties' assets. Thus, Smith's second argument fails.
IV. Smith's Social Security Benefits
Next, Smith argues that the trial court abused its discretion in failing to consider that his participation in the Federal Civil Service Retirement System reduced his Social Security benefits by $310 per month. The record contradicts this assertion, and this argument also fails.
The record shows that the trial court was fully aware of Smith's federal Windfall Elimination off-set against his Social Security benefits and considered this offset in making its fair and equitable distribution of the property. As the evidence at trial demonstrated, Smith accrued less Social Security (than the normal amount for his age and occupation) because of his participation in the Federal Civil Service Retirement plan. Because this retirement plan provides full benefits in addition to Social Security, the federal Windfall Elimination Provision will reduce Smith's Social Security benefit by $310 per month (leaving a total of $268) to avoid providing double benefits.
Contrary to Smith's assertion, the record demonstrates that the trial court considered Smith's reduced Social Security in making its distribution of the property. Again, Smith has failed to show that the trial court abused its discretion and, thus, his third argument fails.
V. Sjolander's Defined Benefit Plan
Smith also argues that the trial court should have considered Sjolander's "Defined Benefit Plan" in dividing the parties' assets because, contrary to the trial court's finding, Sjolander's plan had vested. Again, we disagree.
At the time of the dissolution proceeding, the trial court found that Sjolander's SERS benefit plan had not vested because she had not yet completed the requisite 120 months of work with the school district. The parties presented no evidence to the contrary.
Appellate courts apply the substantial evidence standard of review to the trial court's findings of fact. In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572 (2007), review denied, 163 Wn.2d 1055 (2008). As long as substantial evidence supports the findings of fact, we will not disturb them on appeal. Id. "Substantial evidence exists if the record contains evidence of a sufficient quantity to persuade a fair-minded, rational person of the truth of the declared premise." Id. (citing In re Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d 1018 (2002). Where the trial court has weighed the evidence, our role is simply to determine whether substantial evidence supports the findings of fact and, if so, whether the findings in turn support the trial court's conclusions of law. In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999).
Contrary to the requirements of RAP 10.3(6), Smith provides no support for his argument that the trial court erred in finding that Sjolander's Defined Benefit Plan had not vested. Instead, he simply copied into his brief the text of RCW 41.35.420, which provides: "(1) NORMAL RETIREMENT. Any member with at least five service credit years who has attained at least age sixty-five shall be eligible to retire and to receive retirement allowance computed according to the provisions of RCW 41.35.400." RCW 41.35.420. Because Smith failed to develop this argument, we do not further consider it. RAP 10.3(a)(6).
Br. of App. at 26.
We note, however, that even were we to consider this point, RCW 41.35.420 provides no support for Smith's argument: It neither mentions vesting directly nor addresses how or when such benefits vest.
VI. Contempt
Lastly, Smith argues that the trial court commissioner erred in finding him in contempt of court for failing to forward certified copies of the trial court's Findings of Fact and Decree of Dissolution to the Office of Personnel Management. Smith contends that (1) under federal law, it was Sjolander's responsibility to provide the certified copies; and (2) because federal law preempts this area, the trial court lacked authority to shift the duty to Smith. Sjolander counters that Smith's preemption argument fails because the trial court did not find Smith in contempt of court. Sjolander is correct.
In its Order on Cause re Contempt/Judgment, the Commissioner found that Smith had intentionally failed to comply with its September 28, 2007 Order when he failed to forward a copy of the Findings of Fact and Decree of Dissolution to the Office of Personnel Management. Nevertheless, in its Judgment on the Contempt Motion, the trial court stated: (1) "The Court declines to order contempt at this time." CP at 16 (emphasis added); (2) "Mr. Smith shall forthwith comply with paragraph 3.15 of the decree," CP at 16; (3) Smith violated the trial court's Order by failing to provide a certified copy of the trial court's Order and Decree to the Office of Personnel; Management; and (4) "Ms. Sjolander may renew her motion for contempt if this order is not revised and Mr. Smith does not insure the annuity is in place in a timely fashion." CP at 17. The record before us on appeal does not show that Sjolander thereafter renewed her motion for contempt or that the court ever found Smith in contempt.
Accordingly, Smith's final argument fails.
VII. Attorney Fees
Sjolander asks us to award her attorney fees on appeal under RCW 4.84.185. She establishes financial need by noting that Smith's income is three times higher than her income. She also asserts that his arguments lack merit. We award attorney fees to Sjolander in an amount to be determined by our court commissioner upon Sjolander's compliance with RAP 18.1(f).
We affirm.
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.
ARMSTRONG, J. and VAN DEREN, C.J., concur.