In re the Marriage of Muhammad

Quinn-Brintnall, A.C.J.

(dissenting) — I agree with the majority holding that we will affirm a trial court’s decision regarding property division unless there has been a mani*175fest abuse of discretion. Majority at 171 (citing In re Marriage of Konzen, 103 Wn.2d 470, 478, 693 P.2d 97, cert. denied, 473 U.S. 906 (1985)). But because I believe the record demonstrates that the trial court abused its discretion in distributing the Muhammads’ property, I must dissent.

A trial court abuses its discretion when it bases its decision on manifestly untenable or unreasonable grounds. Friedlander v. Friedlander, 80 Wn.2d 293, 298, 494 P.2d 208 (1972). Here, the trial court based its property distribution decision on the fact that Cherry Muhammad obtained a permanent domestic violence protection order against Dawud A. Muhammad. Although the trial court repeatedly stated that it was not trying to punish Cherry for seeking the order, the court’s self-drafted finding belies this assertion.

The trial court amended the findings drafted by counsel and wrote:

By the Respondent [Cherry] obtaining a permanent domestic violence protection order against the Petitioner, Dawud A. Muhammad, said Petitioner no longer has the ability under Federal Law to own or use a weapon.
The ability to own and use a weapon is a condition of his employment through the King County Sheriff’s Office or any other law enforcement agency.
As a result of the Petitioner’s being unable to own or use a weapon, the Petitioner has been terminated from his employment with the King County Sheriff’s Office and is not eligible for any law enforcement position at this time.
The only work for which the Petitioner is qualified at this time is as a law enforcement officer and he is currently unemployed.
The Respondent knew, and has known for some considerable period of time, that by seeking and making the protection order permanent she would effectively terminate her husband’s ability to work.
By virtue of the obtaining of the permanent domestic violence protection order the Petitioner’s ability to obtain gainful em *176 ployment or meaningful retirement benefits in the future is severely limited due to his education and training.

Clerk’s Papers (CP) at 17 (emphasis added).

It is important to note that the implication of the trial court’s findings, that Dawud is unemployable, is necessarily false. Someone who is capable of performing the duties of a law enforcement officer is also capable of other gainful employment. Moreover, the altercation that formed the factual basis for issuing the protection order involved an intoxicated Dawud threatening Cherry and her sister with a gun. According to the women’s reports, he threatened to shoot Cherry and told her sister, “I’m gonna blow your brains out.” CP at 69. This conduct demonstrated Dawud’s unfitness to be a law enforcement officer, whether Cherry had the courage to report the abuse and seek a formal protection order or not.

Yet the court’s findings inexplicably made Cherry responsible for Dawud’s ineligibility for law enforcement jobs and then disproportionately distributed the Muhammads’ property to Dawud as if he were unemployable. In my opinion, the trial court’s property division decision rests on manifestly unreasonable and untenable grounds and should be reversed.

Review granted at 152 Wn.2d 1007 (2004).