IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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*p.
In the Matter of the Marriage of ) C-- rn
) No. 76039-4-1
SANDRA RAMIREZ, ) r•,)
) DIVISION ONE "*"(-7
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Respondent, )
) 41,
and )
) UNPUBLISHED OPINION
TOMAS RAMIREZ PENALOZA, )
) FILED: January 23, 2017
Appellant, )
)
MARK D. WALDRON, )
)
Real Party in )
Interest. )
)
BECKER, J. — Sandra Ramirez and Tomas Ramirez Penaloza divorced
after a 33 year marriage. Tomas challenges the property distribution and
maintenance award. We affirm.
Sandra and Tomas were married in 1981. They have four children. Only
one child remains dependent; he was 13 at the time of the decree. Throughout
the marriage, Tomas's income was the family's primary source of support. He
has owned and operated a reforestation business since 1989. Sandra has not
worked outside of the home for over a decade.
Sandra filed for divorce in 2014. Tomas later removed $667,213 from the
reforestation business and deposited these funds into personal accounts. Tomas
transferred the funds to an attorney trust account after the court ordered him to
do so.
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The parties agreed to the values of their property by written stipulation
dated June 2, 2015. Their assets totaled over $3 million. The agreed-upon
value of the reforestation business was $1,619,500.
After a nine day bench trial, the court issued findings of fact and
conclusions of law and a decree of dissolution on July 22, 2015. The court
determined a roughly 50/50 property distribution was fair and equitable. Tomas's
property award included 100 percent ownership of the reforestation business.
Sandra's property award included the funds held in trust, including the $667,213
Tomas withdrew from business accounts.
Maintenance was awarded to Sandra at a rate of $10,000 per month for a
minimum of 5 years and maximum of 11 years. The decree stated the court
would review the maintenance obligation in 5 years to determine whether it
should be modified.
Tomas moved for reconsideration. He requested that the court amend the
final judgment and grant a new trial on the issues of property distribution and
maintenance. He argued, in part, there was insufficient evidence to support the
property and maintenance awards to Sandra because the court had not found
that the reforestation business "would be left with efficient operating capital" to
continue operations. The court denied Tomas's motion, stating, "The division of
property decided at the conclusion of trial is fair to both parties." Tomas appeals.
Tomas argues the property distribution was not fair and equitable, as
required under RCW 26.09.080, because the court failed to consider his
economic circumstances. He contends the court erred by awarding nearly all of
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No. 76039-4-1/3
the parties' liquid assets to Sandra, including the $667,213 that Tomas withdrew
from the reforestation business.
We review property distributions for an abuse of discretion. In re Marriage
of Crosetto, 82 Wn. App. 545, 556, 918 P.2d 954 (1996), citing In re Marriage of
Wright, 78 Wn. App. 230, 234, 896 P.2d 735 (1995); see also Davis v. Davis, 13
Wn. App. 812, 813, 537 P.2d 1048 (1975) ("Wide discretion and latitude rests
with the trial court" in distributing property).
Courts are required to make a just and equitable property distribution,
considering all relevant factors. RCW 26.09.080. One relevant factor is the
economic circumstances of each spouse when the distribution is to become
effective. RCW 26.09.080. Other factors include the duration of the marriage,
nature and extent of the community property, and each party's relative health,
age, education and employability. RCW 26.09.080; Crosetto, 82 Wn. App. at
556. "An equitable division of property does not require mathematical precision,
but rather fairness, based upon a consideration of all the circumstances of the
marriage, both past and present, and an evaluation of the future needs of
parties." 'Crosetto, 82 Wn. App. at 556.
The court made findings regarding the parties' ages, health, and earning
capacities. The court considered the parties' economic circumstances. The
court determined that Tomas operated a "quite successful" business and earned
an average yearly income exceeding $300,000 from 2011 to 2013. Sandra, on
the other hand, had been out of the workforce since 2003, when the parties
decided she should stay home to care for their youngest child. She has obtained
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no training or education since earning an associate's degree in the early 1990s.
Tomas does not assign error to these findings. It is a reasonable inference, from
these findings, that a just and equitable property award would confer greater
liquid assets to Sandra—the party whose earning capacity is limited at present.
Tomas takes issue with the fact that Sandra received $667,213 in funds
which he characterizes as "financial assets" or "working capital" of the
reforestation business. He argues that "the division of assets by the Court did
not include consideration of the amount by which the removal of $667,213.46"
from the business "reduced the value of that company."
This argument is unpersuasive. Tomas withdrew the funds and placed
them in personal accounts; the funds no longer constituted company assets
when the court made its property distribution. Even assuming the funds
constituted company assets, Tomas fails to explain why the court was not
entitled to award them to either party, pursuant to the court's broad discretion to
distribute property in a dissolution. In re Marriage of Wright, 179 Wn. App. 257,
261, 319 P.3d 45 (2013), review denied, 186 Wn.2d 1017 (2014).
Tomas stipulated to the value of the reforestation business prior to trial.
The court relied on the stipulated value. When Tomas argued during posttrial
proceedings that he should not be bound by the stipulated value because he did
not foresee that the company would lose $667,213 to Sandra, the court rejected
this argument:
We were in trial on this case for a substantial amount of
time. If Mr. Ramirez didn't agree with what Ramirez Reforestation
was worth, the amount that was stipulated to, then why did he
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No. 76039-4-1/5
stipulate to it? Why weren't we in court litigating it? Because it was
not a situation where the Court decided the value of the company.
Tomas argues he should have been relieved from the stipulation, citing
the principle that a trial court has discretion to relieve a party from a stipulation
when it is shown that relief is necessary to prevent injustice. Stevenson v.
Hazard, 152 Wash. 104, 110, 277 P. 450 (1929). Tomas fails to demonstrate
relief is necessary to prevent injustice. It was foreseeable that the court might
exercise its discretion to award funds to Sandra that Tomas had withdrawn from
the business.
The court ordered Tomas to "claim as dividends" on his tax return the
funds he removed from the reforestation business in 2014, including the
$667,213 awarded to Sandra. Tomas argues the court further burdened him by
requiring that the transfer of funds awarded to Sandra be treated as a dividend,
thereby making Tomas and his business liable for substantial additional tax
liabilities.
Tomas fails to support his claim regarding tax consequences with any
citations to the record or relevant authority. His expert testified that there would
be no tax consequences for the business associated with transferring money to
the marital community. Regarding the impact of the court's decision on Tomas's
personal tax obligations, he fails to demonstrate the court abused its discretion
by requiring that he incur a liability of the marital community. A trial court in a
dissolution proceeding may exercise discretion when apportioning liabilities.
RCW 26.09.080.
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Tomas contends the court relied on improper considerations when making
the property distribution. He refers to the court's remark, at the hearing on
reconsideration, that Tomas was determined to resist any distribution of property
to Sandra. This remark does not reflect reliance on an improper consideration; it
was merely an observation. And in any event, the written findings control our
analysis. In re Marriage of Raskob, 183 Wn. App. 503, 519-20, 334 P.3d 30
(2014). The written findings support the property distribution. In sum, we find no
abuse of discretion with respect to the property distribution.
Tomas challenges the award of spousal maintenance. We will not reverse
absent an abuse of discretion. Crosetto, 82 Wn. App. at 558, citing In re
Marriacie of Mathews, 70 Wn. App. 116, 123, 853 P.2d 462, review denied, 122
Wn.2d 1021 (1993).
A trial court has direction in a dissolution to award maintenance in an
amount and for a period of time "as the court deems just," considering all relevant
factors. RCW 26.09.090(1). Relevant factors include the financial need of the
party seeking maintenance and the ability of the spouse from whom maintenance
is sought "to meet his or her needs and financial obligations while meeting those of
the spouse or domestic partner seeking maintenance." RCW 26.09.090(1)(a), (f).
Other factors include: the time necessary for the party seeking maintenance to
find appropriate employment; the standard of living established during the
marriage; the duration of the marriage; and the age, physical and emotional
condition, and financial obligations of the spouse seeking maintenance. RCW
26.09.090(1)(b)-(e).
No. 76039-4-1/7
The findings entered by the trial court reflect consideration of relevant
factors. The court determined Sandra had been out of the workforce for several
years and could not "maintain her lifestyle or become self-supporting without
assistance" from Tomas. The court concluded, "The wife has an ongoing need
for spousal maintenance for 11 years and the husband has the ability to pay
spousal maintenance for 11 years as he is being awarded the parties' business,
which has historically afforded the parties a very high standard of living for the
community in which they live."
Tomas contends the court failed to adequately consider whether he could
afford the maintenance obligation while also meeting his own financial needs.
Specifically, he argues the maintenance award was improper because the court
did not find that his reforestation business "could continue to operate into the
future after $667,213.46 had been removed from its operating capital funds." He
contends the business has struggled to continue operating since the divorce
proceedings began. This argument does not demonstrate error. The property
distribution left Tomas with substantial assets.
Tomas fails to substantiate his claim that the business is failing. The only
evidence he points to is a declaration submitted prior to trial by the accountant for
the business, stating that the company needed greater working capital on deposit
than it currently had. The record reflects that Tomas earns substantial income
through his business.
Tomas contends there is insufficient evidence to support the court's
finding of an ongoing need by Sandra of maintenance of $10,000 per month for
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No. 76039-4-1/8
11 years. We disagree. The award is supported by findings that Sandra lacks
current experience in the workforce; she last worked at part-time jobs many
years ago, with top pay of $15.00 per hour; and the parties during the marriage
become accustomed to a very high standard of living.
We find no abuse of discretion with respect to the property or maintenance
awards. We also find no error in the order denying reconsideration.
Sandra requests attorney fees on appeal pursuant to RCW 26.09.140.
Our discretion to award fees is guided by the relative resources of the parties and
the merits of their positions on appeal. RCW 26.09.140. Sandra asserts that she
has financial need, Tomas has the ability to pay, and that Tomas's decision to file
an appeal is part of his "ongoing intransigence."
Sandra has substantial wealth. Tomas's decision to file an appeal, alone,
does not demonstrate intransigence. His intransigence during the trial phase of
this proceeding will not support an award of attorney fees on appeal. His claims
on appeal are not meritless. We decline to grant Sandra's request for fees.
Affirmed.
WE CONCUR:
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