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In re Marriage of Byerley

Court of Appeals of Washington, Division 2

September 16, 2014

In the Matter of the Marriage of Margaret Byerley, Respondent, and James Howard Cail, Appellant

Page 109


Appeal from Pierce County Superior Court. Docket No: 11-3-02558-5. Judge signing: Honorable Susan K Serko. Judgment or order under review. Date filed: 11/16/2012.

Emmelyn Hart (of Lewis Brisbois Bisgaard & Smith ), for appellant.

Daniel N. Cook (of Faubion Reeder Fraley & Cook PS ), for respondent.

Authored by Thomas R Bjorgen. Concurring: Linda Cj Lee, J. Robin Hunt.


Page 110

Bjorgen, A.C.J.

[183 Wn.App. 680] ¶ 1 -- James H. Cail and Margaret Byerley separated and ultimately divorced 4½ years after they married. Their marriage followed 10 years of unmarried cohabitation. Cail appeals from the dissolution decree and associated qualified domestic relations order (QDRO), arguing that the trial court abused its discretion by (1) characterizing the house in which Byerley and Cail resided as community property and calculating the final property distribution based on that characterization, (2) erroneously calculating the parties' community and separate interests in their pensions, resulting in an inequitable economic disparity, and (3) entering a QDRO that improperly increased Byerley's rights in one of Cail's pensions inconsistently with the dissolution decree. Because the trial court erred in characterizing the house as community property, and we cannot determine whether the trial court would have distributed the couple's property in the same way had it properly characterized the house, we reverse and remand. We reject the remainder of Cail's claims and decline to award either party costs or attorney fees on appeal.


¶ 2 Byerley and Cail met in April 1995 and dated for about five months before breaking up. Some time prior to July 1996, they resumed their romantic relationship. During [183 Wn.App. 681] this time, Cail was married to another woman, although he and his then-wife had separated and begun dissolution proceedings. The superior court entered the dissolution decree ending Cail's prior marriage on September 13, 1996.

¶ 3 Cail began searching for a house to buy in May or June 1996. Shortly thereafter, Cail and Byerley looked at the house at issue here together. The purchase and sale agreement, dated July 18, 1996, identifies the buyer as " James H. Cail and Assigns, Single." Ex. 7. Cail and Byerley apparently sought to obtain a title insurance policy, effective July 22, 1996, naming both as insureds. On or

Page 111

before July 26, 1996, Byerley signed a copy of the purchase and sale agreement as a buyer, but neither Cail nor the seller initialed or otherwise acknowledged the addition of her signature.

¶ 4 The seller executed a statutory warranty deed conveying the property to " James H. Cail, a single person" on September 9, 1996. Ex. 31. The title company recorded the deed in Cail's name alone four days later on September 13, the same day Cail's prior marriage officially dissolved.

¶ 5 Byerley and Cail began living together in the house in " October" or " the end of September" 1996, and set up a joint checking account from which they paid certain expenses related to the house. Clerk's Papers (CP) at 78; Verbatim Report of Proceedings (VRP) at 329-30. Although Byerley contributed labor and funds to the house, Cail refinanced the house multiple times during their relationship without consulting Byerley or including her name on any documents. The parties never executed a writing expressing an intent to convert the house from Cail's separate property to community property.

¶ 6 The parties married on October 20, 2006 and separated on June 30, 2011. Byerley filed a petition for dissolution a few days later.

¶ 7 At trial, the parties presented very different accounts of their relationship. Compare VRP at 77 (Byerley testifies [183 Wn.App. 682] that " [i]t was a loving relationship. It was committed, intimate." ), with VRP at 321 (Cail testifies that after 1998, " we always knew we were roommates. We were platonic, and it wasn't anything more." ). Cail admitted that their relationship had started out as " boyfriend/girlfriend" but testified that it " disintegrated in no time" and did not involve sexual intimacy after 1998. VRP at 302, 319, 399. Cail maintained that financial considerations motivated his living arrangement with Byerley and that Byerley never had any part in the house purchase transaction. Cail claimed that they married only so that Byerley could take advantage of his generous union health insurance plan.

¶ 8 Byerley, in contrast, described their relationship as mutually loving and testified that they were sexually intimate " [o]nce or twice a week" during the time they lived together until sometime in 2009. VRP at 75-76, 80, 91. She testified that they married out of love and to " set an example for [their] grand kids." VRP at 76. Byerley maintained that she and Cail attempted to buy the house together but ultimately closed the deal in Cail's name alone because they could not obtain joint financing due to Byerley's poor credit history.

¶ 9 Various witnesses gave testimony tending to corroborate the version presented by the party calling the witness. Sharon Benson, identified as the " selling agent" on the purchase and sale agreement, testified that the inclusion of " and [a]ssigns" after Cail's name on the agreement indicated the intent to add another buyer to the contract. Ex. 7; VRP at 39. Benson stated that she had " [n]o doubt, whatsoever" that the parties intended Byerley to be the second buyer. VRP at 65.

¶ 10 Byerley and Cail also presented different expert valuations of the community property shares of their pensions. Byerley's expert calculated the values of the community property portion of Cail's pension plans starting from October 31, 1996, the date Byerley's expert used as the date cohabitation commenced. Cail's expert, on the other hand, [183 Wn.App. 683] calculated the community share beginning with the date of Cail and Byerley's marriage, October 20, 2006, yielding a much smaller figure.

¶ 11 Although both parties worked and had similar incomes prior to Cail's retirement, Cail had a much longer work history and had contributed a larger share of his income to his pension funds than Byerley had to hers. The value of Cail's pensions thus amounted to more than $940,000, making up over 80 percent of the parties' total net assets. According to Byerley's expert, the community share of Cail's pensions totaled $370,404, of which $170,823 consisted of Cail's defined benefit union pension, converted to a present lump-sum value. Byerley had paid into her pensions only ...

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