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In re Marriage of Kaplan

Court of Appeals of Washington, Division 1

July 23, 2018

In the Matter of the Marriage of HEIDI K. KAPLAN, Appellant, and DONALD C. KAPLAN, Respondent.

          OPINION

          MANN, A.C.J.

         Heidi Kaplan appeals the division of property, award of maintenance, and child support calculation. She argues that the trial court failed to recognize the long-term marriage and to allow her to maintain her predissolution economic status, improperly imputed income to her for child support, and failed to award her attorney fees. We reverse the trial court's decision to impute income for child support. We affirm on all other issues.

         FACTS

         Donald Kaplan and Heidi Kaplan married on October 7, 1990.[1] After a marriage of 25 years, Donald and Heidi separated on July 20, 2015. Donald filed a dissolution action on July 6, 2015, in Harris County, Texas. Heidi filed her petition for dissolution in the King County Superior Court on July 15, 2015. After concluding that Washington had jurisdiction over the dissolution, the Texas court dismissed Donald's petition without an award of costs to either party. A five-day bench trial in King County Superior Court began on June 20, 2016.

         At the time of the dissolution, Donald was a business development manager at Phillips 66. Donald had worked for Phillips 66, or its predecessor company, since 1990. Donald's career required the family to move four times for different positions. The family had lived in Seattle since 2001. Donald accepted a promotion in 2014 and transferred to Houston. Heidi and their two children remained in Seattle. At the time of trial, Donald's gross monthly salary was $19, 802 monthly and $237, 624 annually. Including his average annual bonus, Donald's annual salary was approximately $387, 000 per year.

         In 2014, Donald and Heidi discussed Donald's desire to retire after their youngest daughter, Sophie, graduated from high school. During trial, Donald testified that he intended to retire in roughly four years. Donald also testified he had concerns about his continued employment at Phillips 66. Brent Longnecker, a consultant who advises energy companies in strategy, governance, and executive pay testified on behalf of Donald. Longnecker testified that Donald's position in business development and acquisitions was at risk because oil companies are less inclined to make capital expenditures and expand their business.

         Heidi graduated from Syracuse University in 1985 with a Bachelor of Science degree in speech communications and rhetorical studies. After graduating, Heidi pursued a career in product development and merchandising until their older daughter, Jillian, was born in 1996. The Kaplan's second daughter, Sophie, was born in 1999. Heidi remained at home to take care of Jillian and Sophie from 1996 until the time of trial in June 2016. At the time of the trial, Jillian was 20 years old and in college in California; Sophie was 17 and a high school senior in Seattle. Over the years, Heidi volunteered at Jillian and Sophie's schools, including acting as president of the parent teacher association. In doing so, she organized fundraisers and events, engaged in community outreach, and managed volunteers. Heidi also attended workshops and courses, such as a grant writing course and an art history course.

         At trial, Heidi argued that she was at the time unemployable. David Goodenough, a vocational counselor, testified in support of this contention. Goodenough assessed both Heidi's immediate employability and her long-term career capabilities as of May 2016. Goodenough offered his expert opinion that Heidi was not currently employable except at a "low end" job. Goodenough testified that Heidi required retraining to secure marketable skills, a process that would require time.

         The trial court entered findings of fact, conclusions of law, and a final dissolution decree on October 25, 2016. As for the distribution of property, the court found, and the parties do not dispute, that the overall value of the estate was $5.2 million. Donald asked the court to effectively award him 50 percent of the community property. Heidi asked the court to effectively award her 60 percent of the community property. The trial court concluded that "[w]hen the Court considers the nature and extent of all the property, the duration of the marriage and the financial position of each party, it finds that a fair and equitable division is the allocation of 55% of the assets to Ms. Kaplan and 45% to Mr. Kaplan."

         The trial court next addressed maintenance for Heidi. The trial court found that Donald's salary was likely to stay flat or experience only small increases and that future bonuses were unlikely. The trial court also found that Donald hoped to retire in 2020. Heidi requested maintenance in the amount of $18, 850 per month for 12 years, until Donald was 66 years old in 2028. Donald agreed that Heidi should receive maintenance, but asked the court to order maintenance for 5 years at $9, 500 per month. After finding that Donald would continue working for roughly four more years, that Heidi was healthy, well educated, and had maintained a basic skill set, and that both parties' monthly expenses were approximately $10, 000, the trial court awarded maintenance to Heidi at $10, 000 per month for 6 years, until August 2022. The court also noted that Heidi may "choose to enroll in an education program," but stated the court "is not specifically awarding maintenance in consideration of any such possible program."

         The parties agreed to a parenting plan. The court entered a child support order imputing a monthly income of $2, 714 after finding Heidi was "voluntarily underemployed" under RCW 26.19.071(6). The trial court declined to award fees.

         Heidi appeals.

         ANALYSIS

         Distribution and Maintenance

         1. Effect of Long-Term Marriage

         Heidi's primary argument is that the trial court erred, as a matter of law, in failing to place the parties in roughly the equivalent financial position they had before the dissolution. We disagree.

         Heidi's argument appears based on two incorrect premises. First, Heidi repeatedly asserts that the trial court "must endeavor to place the parties in roughly the equivalent financial position they had before the dissolution after the dissolution." Heidi offers no legal authority for this assertion. Upon dissolution, the trial court must provide for a just and equitable distribution of the parties' assets, liabilities, and income. The predissolution economic circumstances of the parties is just one factor that the trial court must consider. RCW 26.09.080(4) (disposition of property); RCW 26.09.090(1)(c) (maintenance). Heidi is not "entitled to maintain her former standard of living as a matter of right." Cleaver v. Cleaver, 10 Wn.App. 14, 20, 516 P.2d 508 (1973).

         Heidi also asserts that in distributing assets and awarding maintenance, the trial court must follow the "overarching premise" that because of their long-term marriage, the parties must be placed in roughly equivalent financial positions for the rest of their lives. Heidi's argument is based on an overly narrow reading of the statement made by this court in Marriage of Rockwell, 141 Wn.App. 235, 243, 170 P.3d 572 (2007), that in long-term marriages of over 25 years "the trial court's objective is to place the parties in roughly equal financial positions for the rest of their lives."

         Rockwell, affirmed the trial court's unequal distribution of community property after a long-term marriage. The trial court did not, however, limit its consideration to the length of the marriage or conduct a mathematical analysis to ensure equal financial positions for the rest of the parties' lives. Instead, the trial court examined a variety of factors in reaching its decision to award an unequal distribution. As this court explained,

This requires considering the combination of the division of property and the expected income and earnings of the parties. And, where one spouse is older, semi-retired and dealing with ill health, and the other spouse is employable, the court does not abuse its discretion in ordering an unequal division of community property. Peter was younger, in good health and employable at a substantial wage. Moreover, substantial evidence showed that Carmen was retired, older and in poor health. Accordingly, the trial court did not abuse its discretion when it compared Peter's age, health and employability (and thereby, future earning capacity) against Carmen's as a basis for its 60/40 split of the community property.

Rockwell, 141 Wn.App. at 249.

         In a recent case, Division Three of this court considered and rejected an argument similar to Heidi's. In Marriage of Doneen, 197 Wn.App. 941, 950, 391 P.3d 594, 599 (2017), review denied, 188 Wn.2d 1018, 396 P.3d 337 (2017), the wife appealed the trial court's property division that left her with less than 50 percent of the marital assets. She argued that under Rockwell, the court was required to equalize the financial circumstances of the parties because they had a long-term marriage. Doneen, 197 Wn.App. at 945. The court rejected this argument, holding that the objective established in Rockwell "was permissive in nature, not mandatory, in nature." Doneen, 197 Wn.App. at 950. In affirming, the court noted that the trial court properly "declined to utilize an inflexible ...


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