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In re Marriage of Neumiller

Court of Appeals of Washington, Division 3

October 7, 2014

In the Matter of the Marriage of Dawn D. Neumiller, Appellant, and Steven R. Neumiller, Respondent

Page 1020

PUBLISHED IN PART

Appeal from Spokane Superior Court. Docket No: 11-3-01328-4. Judge signing: Honorable Michael P Price. Judgment or order under review. Date filed: 11/02/2012.

Jason R. Nelson, for appellant.

Martin A. Peltram, for respondent.

Authored by Kevin M. Korsmo. Concurring: Stephen M. Brown, Laurel H. Siddoway.

OPINION

Page 1021

Korsmo, J.

[183 Wn.App. 916] ¶ 1 -- In a marriage dissolution proceeding, does one party have to plead the existence of a premarital committed intimate relationship in order to consider that relationship when characterizing property as separate or community? Appellant Dawn Neumiller appeals from the dissolution of her marriage to respondent Steven Neumiller, alleging several errors at trial. We agree only with her contention that the trial court should have considered evidence of the existence of a committed intimate relationship before characterizing the two most significant assets before the court and remand for the trial court to do so. In all other regards we affirm.

FACTS

¶ 2 The Neumillers met in 1996; both had previously been married and had children from their previous relationships. Ms. Neumiller lived with her children in a home on West 10th Avenue in Spokane that was owned by her [183 Wn.App. 917] parents. She had rented the home from her parents since 1990 under what she described as a " rent to own" agreement.

¶ 3 Ms. Neumiller became pregnant in 1998 by Mr. Neumiller, and he moved in to the 10th Avenue home at that time and took over making the monthly house payments. The couple's son was born in November 1998. In 1999, Mr. Neumiller purchased the 10th Avenue house by taking out a mortgage to finance it after first selling his own home.[1] The mortgage was solely in Mr. Neumiller's name.

¶ 4 The couple's second child, a daughter, was born in November 2000. The mother cared for the children and did not have an occupation outside of the home except for some occasional sewing work. The father worked from the house as a consultant and grant writer. The couple married in January 2005. As before the marriage, the finances were largely kept separate, with Mr. Neumiller managing his separate assets and also paying any community costs and debts.

¶ 5 Ms. Neumiller initially filed for dissolution of the marriage in 2009 and moved out of the 10th Avenue house with the children that October. The dissolution petition was dismissed the following year. Ms. Neumiller filed a new dissolution petition on May 26, 2011. It asserted that the parties had married in Idaho on January 28, 2005, and had separated October 20, 2009. Mr. Neumiller turned 62 in October 2011 and took early retirement. He began receiving Social Security payments and wound down his business affairs. Each of the children also began to receive a monthly Social Security check.

[183 Wn.App. 918] ¶ 6 Ms. Neumiller's original counsel was disbarred. She proceeded pro se for a while, but a new attorney took over shortly before the scheduled trial date. The parties filed a joint trial management report in which the wife claimed the 10th Avenue house was community property, while Mr. Neumiller alleged it was his personal property. Ms. Neumiller contended that the American Funds retirement account, valued at nearly $71,000, also was community property, while Mr. Neumiller contended that the account was his separate property.

¶ 7 The matter proceeded to trial. On the day of trial, the husband filed his response to the petition and the wife filed an amended petition. The amended petition listed the separation date of the couple as May 26, 2011, the date that the original 2011 dissolution

Page 1022

petition was filed. The amended petition again stated that the couple had married in Idaho on January 28, 2005, but included an additional sentence: " The parties cohabited in a marriage like relationship since the fall of 1998." Clerk's Papers (CP) at 257.

¶ 8 Mr. Neumiller's counsel moved in limine to prevent Ms. Neumiller from presenting evidence relating to a committed intimate relationship since she had not pleaded the matter in her original petition. The trial court deferred ruling on the motion and permitted the parties to testify as they wished. Ms. Neumiller testified concerning the couple's premarriage relationship and asked to be awarded half of the equity in the house and half of the American Fund account. After Ms. Neumiller rested her case, ...


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