Templin v. Klavano

In the Matter of the Marriage of: BARBARA TEMPLIN, Appellant, and JAMES KLAVANO, Respondent.

No. 73415-6-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

August 29, 2016

UNPUBLISHED

COX, J. — Barbara Templin appeals the dissolution decree ending her marriage to James Klavano. The trial court properly exercised its discretion in admitting Trial Exhibit 301, distributing property, and declining to award Templin maintenance. But the court failed to apply the proper standards—need and ability to pay—in denying Templin's request for reasonable attorney fees at trial.

Klavano's cross appeal raises several issues. None of his claims establishes that the trial court committed reversible error in any respect.

We affirm the decree, except for the denial of Templin's request for reasonable attorney fees. We remand the question of whether such fees should be awarded to the trial court for reconsideration with directions that it apply the proper standards. We award Templin reasonable attorney fees and expenses on appeal, the amount of which the trial court shall determine on remand.¹ We deny Templin's motion to strike portions of Klavano's cross reply brief.²

Barbara Templin and James Klavano married on May 4, 2003. They had no children together. Each had a prior marriage. The trial court found that they separated on July 22, 2013, after this 10 year marriage.

Templin has been a flight attendant for over 30 years. Klavano owned several businesses before and during this marriage.

Templin petitioned for dissolution of the marriage in July 2013. This case has been, and continues to be, highly contested. The trial court noted this with reference to the trial court proceedings in its ruling denying attorney fees.³

Following a nine day bench trial, the trial court prepared and entered its findings of fact and conclusions of law. Thereafter, the court entered the dissolution decree. "Exhibit 1" to the decree is a chart that shows, among other things, the court's distribution of property. The trial court also denied Templin's request for an award of reasonable attorney fees.

Templin moved for reconsideration of the denial of an award of attorney fees to her. The trial court denied this motion.⁴

Templin appeals. Klavano cross appeals.

STANDARD OF REVIEW

In dissolution proceedings, the trial court "has broad discretion to make a just and equitable distribution of property based on the factors enumerated in RCW 26.09.080."⁵ Appellate courts generally defer to trial courts on this question because they are "'in the best position'" to assess the parties' assets and liabilities "in order to determine what constitutes an equitable outcome."⁶

We review for abuse of discretion the trial court's decisions on property disposition, maintenance, and awardability of reasonable attorney fees.⁷

A trial court abuses its discretion if its "decision is 'manifestly unreasonable, or exercised on untenable grounds, or for untenable reasons.'"⁸ A decision is manifestly unreasonable "if it is outside the range of acceptable choices, given the facts and the applicable legal standard."⁹ A decision is based on untenable grounds "if the factual findings are unsupported by the record."¹⁰ A decision is based on untenable reasons "if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard."¹¹

We review the trial court's findings of fact for substantial evidence.¹² "Substantial evidence exists so long as a rational trier of fact could find the necessary facts were shown by a preponderance of the evidence."¹³

We do "not decide the credibility of witnesses or [re]weigh the evidence" on appeal.¹⁴

The trial court's findings of fact and conclusions of law must be "sufficient to suggest the factual basis for the ultimate conclusions."¹⁵ Conclusions of law are reviewed de novo.¹⁶

BASIS OF DECISIONS

Templin first argues that the trial court based its decisions on property division, maintenance, and attorney fees on Templin's alleged marital misconduct, not on RCW 26.09.080's controlling factors. Specifically, she argues that the court abused its discretion "in admitting [Trial] Exhibit 301, and then in relying on it [for] its property distribution and in denying the wife maintenance and fees."¹⁷ The record does not support this argument.

RCW 26.09.080 governs the trial court's disposition of marital property and liabilities. When distributing property, courts may not consider "misconduct,"which "'refers to immoral or physically abusive conduct within the marital relationship . . . .'"¹⁸

Here, the trial court admitted Trial Exhibit 301—a copy of Templin's March 2008 journal entry—to assess Templin's credibility. The court expressly ruled that the exhibit would not be admitted to show fault.¹⁹ This was not an abuse of discretion.

This exhibit is a copy of musings by Templin that she recorded in her journal during a March 2008 trip to Washington D.C. with Klavano. The document speaks for itself. We need not decide whether it is evidence of "misconduct" under the statutes and case law.

What is absolutely clear from this record is that the trial court admitted this exhibit for a proper purpose, not for the purpose of fault. For example, at the end of trial, the court reaffirmed that Washington is a "no fault state" and that the court did not see "any fault." Nothing in this record shows the trial court believed otherwise.

Templin fails to make any argument, supported by case or other authority, to challenge this ruling based on admissibility. We assume she has found no such support.

Templin primarily argues that the trial court improperly used this exhibit. She relies on a "finding" within the trial court's order denying her motion forreconsideration to support her argument. But it is wholly unpersuasive. For reasons that are unclear to this court, the trial court stated in this order that this marriage was a "short-term marriage of four years. See Trial Exhibit 301."²⁰

This is patently incorrect. The court's previously entered findings, conclusions, and decree make clear that the court determined this was a 10 year marriage, not one of only four years.

We also note that, in any event, the length of a marriage is not a proper criterion in determining whether fees should be awarded in a dissolution proceeding. Rather, need and ability to pay are controlling, as the legislature directs in RCW 26.09.140. In sum, this "finding" in the order on reconsideration is without force or effect.

There is absolutely no evidence to support the argument that the trial court used this properly admitted evidence for an improper purpose. Thus, we deny Templin's request to remand this case with directions that it be reassigned to a different judge.²¹

We now turn to consideration of the trial court's application of the statutes and case law to the duties before it. Those duties include making a just and equitable division of property and deciding whether maintenance should be awarded.

PROPERTY DISPOSITION

Templin argues that the trial court abused its discretion in its property disposition in several ways. None is persuasive.

Templin broadly asserts that the award to her of less than 10 percent of the marital estate, given her resources, is an abuse of discretion.²² No property distribution requires mathematical precision.²³ And there is no "10%" rule in the distribution of property.

To determine whether this award was within the broad scope of the trial court's discretion, we look to Ovens v. Ovens.²⁴ That is a supreme court case that neither party discusses. But it is instructive.

There, both parties had been previously married and divorced.²⁵ Marjorie Ovens was a clerical worker at the time of the marriage, but was not employed thereafter.²⁶ She owned separate property at the time of the marriage.²⁷

Wallace Ovens was an appliance salesman.²⁸ He, too, had separate property at the time of the marriage.²⁹ During the marriage, however, hereceived from his mother's estate cash distributions, securities, and household effects of substantial value.³⁰ From this separate property, he purchased a lot on which the parties later constructed a home.³¹

During the divorce proceedings that followed, the trial court divided the marital estate. Marjorie Ovens appealed, arguing that the division of property was not equal.³²

The supreme court affirmed the award.³³ The court stated that an "equitable division of the total property involved does not entail a right to an equal division" of the parties' separate property.³⁴ The court held that the trial court had "properly awarded to each of the parties, respectively, their traceable separate property, and divided the community property equally."³⁵ The division awarded a greater portion of the total property to the husband because of his inheritance. But the "fact that the award to each spouse of his or her separate property resulted in unequal portions was not error."³⁶ "The division was equitable in view of [the husband's] inheritance."³⁷

This case mirrors that one in large measure. Here, both parties had been previously married. Each came to the marriage with separate property. Klavano came with substantial separate property. Templin came with substantially less separate property than Klavano.

This trial court decided what constituted community property and what constituted traceable separate property. Exhibit 1 to the decree shows this. The court had to apply the statutory factors to divide a marital estate valued at over $8.4 million. Of this total, over $1.45 million was community property.

The court awarded 50 percent of the total community property to each party. It then made certain adjustments to Templin's share of her award. We discuss these in more detail later in this opinion.

The court further awarded Templin her traceable separate property totaling $215,933. And the court awarded Klavano his traceable separate property of over $6.8 million.

As in Ovens, the trial court in this case awarded 50...