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In re Marriage of Williams

December 5, 1996

IN RE THE MARRIAGE OF GLENDA LEE WILLIAMS, RESPONDENT,
v.
AND STANLEY JAMES WILLIAMS, APPELLANT.



Appeal from Superior Court of Walla Walla County. Docket No: 93-3-00293-3. Date filed: 01/18/95. Judge signing: Hon. Yancey Reser.

Petition for Review Denied May 7, 1997,

Authored by John A. Schultheis. Concurring: Ray E. Munson. Dissenting: Philip J. Thompson

The opinion of the court was delivered by: Schultheis

SCHULTHEIS, A.C.J. In the decree dissolving her 27-year marriage, Glenda Williams received the family home, approximately one-half of the community possessions, one-half of the community debts, and maintenance equal to one-half of her husband's retirement. Along with his portion of the community possessions, debts and retirement, Stanley Williams received his share of the equity in the family home. Several issues are raised by Stanley on appeal, most notably his insistence that the trial court improperly based the maintenance award on retirement benefits that are not currently accessible and that include four years of premarital military service. Stanley also contends Glenda's gambling dissipated the community assets. We affirm.

Glenda filed for divorce in August 1993 and Stanley moved out of the family home in October 1993. The couple's two children were emancipated, although still living at home. Stanley, who has a high school degree, was a full-time street crew supervisor for the city of Walla Walla. His gross salary was about $3,000 a month. Glenda, who also has a high school degree, was holding down three jobs until just before trial: a full-time position with a medical clinic, a weekend job at K-Mart, and a seven-days-a-week night job caring for an elderly woman. Her total salary for these jobs grossed about $2,500 a month. One week before trial, Glenda lost her clinic job, so she was only making $1,300 at the time of trial. *fn1 Trial began in May 1994. Stanley was entitled to retire in April 1994, after 30 years with the city, but he decided to continue working. The trial court awarded Glenda maintenance equal to one-half of Stanley's total retirement accrued during the marriage, including four years of military service retirement accrued before marriage. *fn2 This award was characterized by the court as a property settlement rather than true maintenance, representing what Glenda would have received if Stanley had retired in April. The court directed him to elect a joint and survivor annuity option in his retirement so that she would continue to receive benefits after his death.

Evidence at trial showed Glenda had spent anywhere from $400 a month (her estimate, taking into account winnings as well as losses) to $2,400 a month (his estimate, based on checks cashed at taverns and cash advances on credit cards) gambling during the latter years of their marriage. The trial court found that $10,000 to $12,000 were spent on gambling, but refused to characterize the gambling costs as dissipation of the marital assets because gambling is legal and encouraged in Washington. The court found that money spent on gambling was no different from money spent on any other entertainment and declined to adjust the property settlement to reflect it.

In the final decree, Glenda received property valued at approximately $71,000 plus one-half of her husband's retirement and her own social security benefits. Stanley received property valued at approximately $74,000 plus the rest of his retirement and social security benefits. Glenda's share of the community debts was about $19,600, and Stanley's share was about $22,100. Most of the debt assigned to Glenda related to home improvement loans, while most of the debt assigned to Stanley related to credit card balances arguably tied to Glenda's gambling. Stanley was directed to pay Glenda monthly maintenance of $703, representing her portion of his retirement benefits, terminating upon his retirement or the death of either party. Each party was directed to pay his or her own attorney fees. Stanley's motion for reconsideration was denied and this appeal followed.

Stanley first contends the court erred in awarding maintenance. He asserts Glenda does not qualify for a maintenance award because she is capable of meeting her needs independently. Even if the maintenance award is treated as a property settlement, he argues, it is not just or equitable because it is based on retirement benefits that are not now available and that include premarital military benefits.

We begin by noting that trial court decisions in marital dissolution proceedings are rarely changed on appeal. In re Stenshoel, 72 Wash. App. 800, 803, 866 P.2d 635 (1993). The party who challenges a maintenance award or a property distribution must demonstrate that the trial court manifestly abused its discretion. In re Washburn, 101 Wash. 2d 168, 179, 677 P.2d 152 (1984); In re Terry, 79 Wash. App. 866, 869, 905 P.2d 935 (1995).

It is within the trial court's discretion to grant a maintenance order in an amount and for a period of time the court deems just. RCW 26.09.090(1). Some of the factors the court must consider include: the postdissolution financial resources of the parties; their abilities to meet their needs independently; the duration of the marriage; the standard of living they established during their marriage; their ages, health and financial obligations; and the ability of one spouse to pay maintenance to the other. RCW 26.09.090(1); Terry, 79 Wash. App. at 869. The court's paramount concern is the economic condition in which the dissolution decree leaves the parties. Washburn, 101 Wash. 2d at 181.

Here, the court found that the marriage was long term and that Stanley earned more than twice what Glenda earned, assuming she cut back to "a normal one job situation." More important, the court did not attempt to justify Glenda's monthly payments as maintenance, but rather as a property settlement. In the court's words:

The award of maintenance is based upon the proposition that, if husband retired, wife would be receiving immediately a portion of his state retirement pension. The intent is to award her now maintenance in a sum equal to one-half of what she would receive, based upon Option 2 (joint and survivor annuity). Unlike typical maintenance awards, the payments do not terminate upon Glenda's cohabitation or marriage, but only upon the death of either party or Stanley's retirement. As the court stated in the presentment hearing:

"This maintenance is basically property settlement. By calling it maintenance he gets to deduct it for income tax purposes and doesn't have to pay the tax on it."

Further supporting the fact that this award is actually a property settlement is its tie to a specific property allocation: Stanley's vested and matured pension benefits. In re Hurd, 69 Wash. App. 38, 45, 848 P.2d 185 (deferred earnings not subject to forfeiture are "vested"; deferred earnings that may be received ...


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