Huston v. Huston

In re the Marriage of: KEVAN HUSTON, Appellant, and ANA HUSTON, Respondent.

No. 76144-7-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 9, 2018

UNPUBLISHED

COX, J. — This is primarily a factual appeal by Kevan Huston ("Kevan"). He challenges the findings and conclusions of the trial court. Substantial evidence supports the findings and the findings support the conclusions, with one exception. That exception is the monthly net income figure that the trial court calculated on the child support worksheets. We cannot reconcile that figure with the information on Kevan's 2015 W-2 form that the trial court used for his child support obligation and other matters in this dissolution. Accordingly, we affirm in part, vacate in part, and remand with directions to address these apparent inconsistencies.

Kevan and Ana Huston met in late 2001.¹ They married two years later. At the time, Ana held a M.S. Degree in Nursing and worked in a family clinic in New York City. The couple had their first child, E., in 2005 and decided that Ana would leave her job to stay at home with E.

Over the next few years, they moved frequently for Kevan's work. After some time in San Francisco, Kevan accepted a position with Microsoft in the Seattle area in 2008. Four years later, the couple returned to New York so Kevan could take a position as vice president at his current employer, Evercore Partners. When he joined Evercore Partners, he received restricted stock units ("RSUs") to compensate him for stock options he lost by leaving Microsoft. In 2007, the couple had a second child, M.

That same year, the marriage began fracturing. The couple saw a couple's counselor for several months. Kevan would act aggressively at these sessions.

Kevan began abusing alcohol and other substances. His drinking markedly increased shortly after the move to San Francisco. Once in Washington, Kevan began experiencing anxiety, for which he was proscribed certain prescription drugs, including benzodiazepine. He became dependent on this drug. Back in New York City, Kevan drank more and began using cocaine in early 2013.

By October 2012, Ana was pregnant with a third child, K. After Thanksgiving, Kevan perpetrated two acts of domestic violence involving Ana and, in December 2012, the couple separated.

Ana took the children and left to stay with family in Peru. Then, after a brief stay with Kevan's parents, she moved with the children to Woodinville, Washington. In June 2014, the couple purchased a house in Carnation, with a $20,000 gift of funds from Ana's mother to Ana for the down payment.

Kevan petitioned for dissolution of the marriage on March 25, 2015. He moved for temporary orders on June 24, 2015, seeking a temporary parenting plan and a temporary order for child support. The trial court commissioner entered the requested temporary orders, ordered an award of monthly maintenance to Ana for $3,500, and appointed Dr. Melanie English as parenting evaluator. On July 31, 2015, Kevan moved to revise the commissioner's ruling. He argued that the trial court should find Ana to be voluntarily underemployed and revise certain financial obligations imposed in the previous ruling.

In August 2015, Kevan e-mailed the trial court to request emergency relief. The trial court judge heard the matter by conference call and then, acknowledging that it had come "before the court in an unusual procedural posture," granted a specific August visitation schedule. Kevan failed to exercise his rights under this schedule.

Shortly after, the trial court entered an order on the motion to revise the commissioner's ruling. The new order granted in part and denied in part themotion. It imputed income to Ana of $30 per hour. It upheld an earlier award of $5,000 in attorney fees imposed against Kevan.

Kevan moved to reconsider on August 28, 2015, asking that the trial court impute a higher income to Ana, and revise several financial obligations Kevan had been ordered to pay. The trial court largely denied that motion.

Trial was set for March 14, 2016, but Kevan moved to continue until late April. The trial court granted that motion. Trial then took place over seven days spanning the next two months.

The trial court prepared and entered its own findings of fact, decree, child support order, and parenting plan on September 14, 2016. The findings and conclusions are 34 pages long. On September 26, 2016, Kevan moved for reconsideration of these final orders. He argued that the trial court should reconsider its orders on maintenance, imposition of an attorney fee award, and its imputation of $30 hourly wages to Ana. The trial court denied that motion, except to amend the earlier finding to reflect that Kevan's wages had been garnished for child support.

Kevan appeals.

DIVISION OF PROPERTY AND LIABILITIES

Kevan argues that the trial court abused its discretion by dividing the parties' assets and liabilities based on allegedly incorrect findings. We disagree.

RCW 26.09.080 requires that the trial court in a dissolution proceeding divide the parties' community and separate assets. The division must be "just and equitable" but not necessarily equal.²

The trial court must consider a non-exhaustive list of factors in making this division. These include the nature and extent of community and separate property, the marriage's duration, and the economic circumstances of the parties at the time of division, "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."³ The trial court may also consider any party's concealment of assets.⁴ It may not consider the parties' misconduct.⁵

This court reviews for abuse of discretion the trial court's division of assets and liabilities.⁶ It does not reassess credibility.⁷ Since the trial court weighed the evidence, this court's review is limited to determining if substantial evidence supports the trial court's findings of fact.⁸ If so, this court then determineswhether the findings support the conclusions of law and the judgment.⁹ Substantial evidence is a quantum of evidence "sufficient to persuade a fair-minded person of the truth of the declared premise."¹⁰

Depletion of Fidelity IRA *3958

Kevan argues that the trial court abused its discretion by finding that he wasted $117,000 of community assets in the Fidelity IRA *3958, contending that he spent these funds on community expenses. He argues that the trial court consequently abused its discretion by recapturing the amount of this account and allocating it to him in the division of assets. His argument ignores the trial court's actual findings.

At the date of separation in December 2012, the account carried a balance of $117,208. The trial court found that Kevan withdrew $9,991 from this account between June and September 2013, and $9,496 between December 2013 and March 2014. After that, the trial court found that Kevan withdrew $5,000 in March 2014. Between then and June 2014, the account was reduced by $90,530. Between March and April 2015, another $2,000 was withdrawn. The account was in Kevan's name.

The trial court associated these withdrawals with Kevan's extensive discretionary expenses. It noted credit card payments he made in 2014 exceeding $60,000 and a $10,000 payment he made to his girlfriend at the time of trial. It also noted that he had carried a "healthy balance in his accounts at alltimes." The trial court further found that Kevan had not shown a financial need to justify the withdrawals that he made from this account.

The trial court did not abuse its discretion in recapturing $117,000 in this account and allocating the full $117, 208 value, as of the date of separation, to Kevan.

Kevan argues that he spent the relevant funds on community expenses. The record does not support this argument.

Kevan provides various explanations for these expenses on appeal. These explanations contradict the earlier explanation he gave in his motion for temporary orders, filed June 24, 2015. There, he alleged that he had spent the funds from his IRA on travel costs to see his children.

On appeal, Kevan claims that he paid $18,500 from this account for rent for their home in Tarrytown, NY. Not only were these payments made between December 2012 and April 2013, outside the relevant period of withdrawals, but Kevan cites to statements for the *3460 account, not the Fidelity IRA *3958.

Kevan also claims that he repaid Ana's mother $20,000 from this account on March 6, 2013. Not only is this outside the relevant period, but the record of this transaction shows only a customer withdrawal from the *3460 account.

Kevan alleges that he transferred $35,000 on April 9, 2013, from joint savings account *3460 to Ana's personal checking account to pay the children's tuition. Not only was this transfer made outside the relevant period but it did not implicate Fidelity IRA *3958.

Kevan alleges that he paid $32,562 as a down payment for the Carnation home on June 24, 2014. That payment was made from a Merrill Lynch Bank of America account *3445, not this IRA account.

Lastly, Kevan alleges that he paid $18,151.90 in private school tuition for the 2014 to 2015 school year. But these payments came from American Express accounts.

Kevan argues that the trial court contradicted itself in describing the depletion of this account. He points to the trial court's recognition that the balance of this account was $107,219 in December 2013 and $92,754 in March 2014. He argues that these findings contradict the trial court's finding that Kevan had spent $90,000 "of the funds in that account in the few months after [Ana] moved." But this finding referred to the Bank of America account *3460. Kevan makes similar contentions regarding a $50,000 withdrawal that conflate these two accounts. If these are the same account, Kevan has failed to prove it by citation to this record.

Cash Payment to Ana

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