(dissenting) — We review de novo a trial court’s characterization of property to be divided in dissolution proceedings. In re Marriage of Marzetta, 129 Wn. App. 607, 616, 120 P.3d 75 (2005), review denied, 157 Wn.2d 1009 (2006). Here, we should review two agreements and we should answer two essential questions. First, did Donna and Kelly Zier, by executing the status agreement, intend to transfer their individual shares to the community? The intent of the parties to an agreement is a question of fact. See, e.g., In re Marriage of Boisen, 87 Wn. App. 912, 920-21, 943 P.2d 682 (1997) (separation agreement). Here, there is no serious dispute that the parties did intend a transfer—what was separate property was now owned by the community.
¶27 Second, does the plain language of Telect, Inc.’s stockholders’ agreement, signed by Donna and Kelly as a condition of receiving their individual stock, preclude any legally effective transfer without an affirmative vote of 66-2/3 percent of Telect shareholders? Again, the language restricting stock transfers is plain. And we should not disregard it. Wagner v. Wagner, 95 Wn.2d 94, 101, 621 P.2d 1279 (1980). Nor should we rewrite the agreement under the guise of construing it. Id.
*50¶28 By the plain language of the agreement, no stock transfer can occur without an affirmative two-thirds vote of the shareholders. This means that neither Donna nor the court can transfer Donna’s separate ownership of her stocks to the community based on tacit approval. The court made no finding of shareholder approval for transferring Donna’s ownership interest to the marital community.
¶29 Therefore, the court erred as a matter of law in concluding (a) that the status agreement constituted an effective transfer and (b) that the court had the power to effect a stock transfer that the parties themselves could not effect. The result was that the court mischaracterized separate property as community property.
¶30 Now, until a judge correctly characterizes the property in a dissolution action as community or separate, I do not know how she can make any “fair and equitable” distribution. Where the classification of stocks is crucial to the distribution, “we must remand so the trial court may exercise its discretion with the correct character of the property in mind.” In re Marriage of Shui, 132 Wn. App. 568, 587, 125 P.3d 180 (2005).
¶31 Here, the mischaracterized stock was this marital community’s major asset. I do not know how we can pass upon the court’s exercise of discretion when that discretion is based on an error as to who owns what. Only when the property has been correctly categorized as separate or community may the court exercise its wide discretion to divide the property as seems to the court to be fair and equitable. In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102 (1999).
¶32 I disagree with the statement that “a dissolution court’s mischaracterization of property is rarely a proper basis to reverse the court’s property distribution.” Majority at 46. The case cited for that proposition, In re Marriage of Gillespie, does not say that. In re Marriage of Gillespie, 89 Wn. App. 390, 399, 948 P.2d 1338 (1997). And I can find no case that does say that.
*51¶33 There is some discussion in In re Marriage of Shannon to the effect that we will affirm notwithstanding a mischaracterization of property if we can divine that the trial judge would have divided the property in the same way despite the error. In re Marriage of Shannon, 55 Wn. App. 137, 141-43, 777 P.2d 8 (1989). The authority for that statement is, for me, questionable. It is certainly at odds with the pronouncements by our Supreme Court. Brewer, 137 Wn.2d at 766. But, even if it were correct, we have no indication on this record that, if Donna Zier’s separate property had not been erroneously characterized as community property, the judge would have divided the correctly identified separate stocks in the same way. The judge may have. But she may not. I do not know.
¶34 I, therefore, respectfully dissent. I would reverse and remand to give the trial judge the opportunity to reconsider the distribution of this property using the correct characterization of the stock in light of the stockholders’ agreement.
Review denied at 162 Wn.2d 1008 (2007).