In the Matter of the Marriage of RICHARD DENNIS GROVES, Respondent, and MARY NOONAN GROVES, Appellant.
Groves appeals the trial court's characterization and
division of her former husband, Dennis Grove's, Law
Enforcement Officer and Fire Fighter (LEOFF I) disability
allowance. The trial court characterized Dennis's
disability allowance as separate property and awarded the
entire monthly allowance to Dennis.
disability allowance that has the character of compensation
for future lost wages is generally separate property and not
divisible upon dissolution, a disability allowance that takes
the place of a standard retirement pension is more akin to
deferred compensation and therefore is divisible upon
dissolution. Because Dennis was eligible to retire when he
became disabled, and certainly would have retired prior to
the parties' dissolution, his disability allowance was
more akin to deferred compensation and should have been
characterized as community property. Further, the trial
court's failure to divide Dennis's disability
allowance-the parties' most substantial asset-indicates
that the final division of property was unfair, unjust, and
inequitable. Accordingly, we reverse and remand.
joined the Seattle Fire Department on February 11, 1963, and
became a lieutenant in 1979. Dennis and Mary married on
November 18, 1991; they did not have any children together.
In October of 1992, Dennis was injured in the line of duty
while fighting a fire. After his injury, the Seattle
Firefighters Pension Board doctor determined that Dennis was
no longer able to physically handle the duties of a
firefighter. Accordingly, on April 15, 1993, the Seattle
Firefighters Pension Board approved Dennis's line of duty
disability. That decision was subsequently affirmed by the
State Department of Retirement Systems on May 5, 1993. Since
then, Dennis has received a monthly disability allowance set
at approximately 60 percent of the salary of a fire
department lieutenant. At the time of trial Dennis was
receiving $5, 784 a month in disability.
majority of the couple's assets were brought into the
marriage by Dennis. Mary owned a small equity in a
condominium and a small IRA deferred compensation account.
The mortgage balance on Mary's condominium was fully paid
using Dennis's separate liquid investments early in the
marriage. The condominium was rented during the marriage and
the community shared the revenue. Upon sale, the proceeds
from the sale of the condominium were placed in Dennis's
investment accounts. During their marriage, the couple lived
in a house that Dennis had separately purchased.
November 12, 1998, the couple signed a community property
agreement. The agreement provided that all of their separate
property would be transferred to community property. On the
agreement, Dennis hand wrote "Our intention is to now
own all of our property together as community property."
After signing and having the agreement notarized, the couple
drove to three different counties to record the agreement and
quit claim deeds that they made out to each other.
October 21, 2016, after nearly 25 years of marriage, Dennis
petitioned for dissolution. Both parties cross moved for
summary judgment on the validity of the community property
agreement and the characterization of Dennis's disability
allowance. On the community property agreement, the trial
court rejected Dennis's argument that he was coerced into
signing the agreement or that he did not know what he was
signing. The trial court found that the agreement was valid
and that the parties' actions were "consistent with
an intent to make all of their property community." The
court reserved on the characterization of Dennis's
disability allowance until trial.
trial, the trial court awarded each party half of their
collective assets except Dennis's disability allowance.
The court awarded both parties 50 percent each of the net
proceeds from the sale of the family home, 50 percent each of
various savings bonds, and 50 percent each of Mary's IRA
account, a money market account, and a joint account. But the
trial court determined that Dennis's disability allowance
was his separate property and was not "in any part
community in character." Further, the court concluded
that "any service related pension/allowance is owned for
the most part (97.5%) by Dennis as his separate interests as
he worked for the [Seattle Fire Department] for 28.5 years
trial court also granted Mary a monthly maintenance of $1,
600 for five years. The five-year time frame was intended to
last until Mary qualified for Medicare and Social Security
payments. At the time of trial, Dennis was 75 years old and
Mary was 61.
argues that the trial court erred in characterizing
Dennis's disability allowance as his separate property
and then abused its discretion by awarding the full allowance
to Dennis. We agree.
performing its obligation to make a just and equitable
distribution of properties and liabilities in a marriage
dissolution action, the trial court must characterize the
property before it as either community or separate."
In re Marriage of Kile. 186 Wn.App. 864, 875, 347
P.3d 894 (2015). We review de novo a trial court's
characterization of property as separate or community. In
re Marriage of Mueller. 140 Wn.App. 498, 503-04, 167
P.3d 568 (2007).
trial court's characterization, however, is not
controlling. In re Marriage of Shannon. 55 Wn.App.
137, 141, 777 P.2d 8 (1989). "Rather, the trial court
must ensure that the final division of the property is
'fair, just and equitable under all the circumstances[,
]"' In re Marriage of Olivares. 69 Wn.App.
324, 329, 848 P.2d 1281 (1993) (quoting In re Marriage of
Hadley, 88 Wn.2d 649, 656, 565 P.2d 790 (1977)), because
"all of the property of the parties, whether it be
community or separate, is before the trial court for
disposition." Shannon, 55 Wn.App. at 141.
dividing property, the trial court must consider: (1) the
nature and extent of the community property, (2) the nature
and extent of the separate property, (3) the duration of the
marriage, and (4) the economic circumstances of each spouse
at the time the division of property is to become effective.
RCW 26.09.080. No factor is afforded ...