In Re the Marriage of Hadley

Horowitz, J.

(dissenting) — The wife (Claudette Hadley), who is now totally disabled, invokes the jurisdiction of this court to review the property distribution provisions of the dissolution decree. The ultimate contention made by the wife, to use the words of DeRuwe v. DeRuwe, 72 Wn.2d 404, 409, 433 P.2d 209 (1967), a divorce case, is: "the husband came out of the marriage with too great a share and the wife too little."

The parties recognize we cannot disturb the trial court's decree unless the evidence in the case shows the court's "discretion has been exercised upon a ground, or to an extent, clearly untenable or manifestly unreasonable." Friedlander v. Friedlander, 80 Wn.2d 293, 298, 494 P.2d 208 (1972). Having reviewed the record, the briefs and the *660contentions of able counsel for each of the parties, and with all due respect to the trial court, I am compelled to concluded this court's intervention is necessary to achieve a "just and equitable" disposition of the property rights of the parties. RCW 26.09.080-.090.

The wife's assignments of error on her appeal concern: (1) the community and separate status of the individual properties of the parties and the trial court's awareness of their correct characterization; (2) the individual values of those properties; and (3) the propriety of a 10-year maintenance award in favor of the wife in lieu of a corresponding property award. Each issue will be separately discussed.

The Status of Community and Separate Properties

RCW 26.09.080 describes the factors the court must consider in the disposition of marital property upon dissolution of the marriage. That statute provides:

the court shall, without regard to marital misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to:
(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, including the desirability of awarding the family home or the right to live therein for reasonable periods to a spouse having custody of any children.

RCW 26.09.090 deals with maintenance orders the court may enter for either spouse and the factors to be considered.

RCW 26.09.080 implicitly requires the trial court be aware of the separate and community nature of the marital property as well as the "extent" thereof of each. Even prior to RCW 26.09.080, Baker v. Baker, 80 Wn.2d 736, 745, 498 P.2d 315 (1972) made it clear that:

*661The court, in a divorce action, must have in mind the correct character and status of the property as community or separate before any theory of division is ordered.

See also Pollock v. Pollock, 7 Wn. App. 394, 499 P.2d 231 (1972). If the court fails to bear in mind the true and correct character of the property being divided, its division is invalid. Pollock v. Pollock, supra at 405. DeRuwe v. DeRuwe, supra at 408, quoted approvingly in Pollock on page 399:

we will, if shown some abuse of discretion, correct the decree to ameliorate or remove if possible the inequities fostered by it.

The findings and conclusions of the trial court are very general in nature. It is extremely difficult, if not impossible, to determine specifically — apart from the property status agreements describing certain property — just what assets the court considered to be community property. Had the trial court entered findings in the detail set forth in the wife’s proposed findings and conclusions, it would have been possible to determine whether the court bore in mind the correct status of the community and separate properties of the parties and the extent thereof.

The husband, to support his claim the trial court bore in mind the correct status of the properties, relies upon certain property status agreements entered into by the husband and wife between November 26, 1965, and March 28, 1974. These the trial court held to be valid. Findings of fact Nos. 13-16; conclusion of law No. 7. The findings also adopt the husband's 1975 financial statement as fairly reflecting the "present value of the assets before the court." Finding of fact No. 19.

For reasons next stated, however, I believe the property status agreements are invalid and therefore cannot be used to support the husband's claim the court bore in mind the correct status of the properties described therein.

Most of the estate of the parties was acquired after marriage. At marriage, the husband's net worth, using his own figures, was approximately $2,300,000. According to his *662December 31, 1974, financial statement, the total value of the assets of himself and his wife had grown to $15,987,009. According to his December 31, 1975, financial statement, relied on by him and by the trial court in ordering a division of the properties, the estimated market value of the assets of the parties separate and community had decreased to $11,741,219. For the first time, there appeared on his financial statements a reserve for taxes in the sum of $3,516,333. This reserve was to provide for capital gain taxes in the event all assets were liquidated. By adding the tax reserve to other deductions to meet a possible contingent tax liability, there remained a net worth of $5,860,555.

In the absence of the property status agreements, it would have been necessary for the husband to prove de novo the separate status of the properties acquired after marriage and the increase in that value to overcome the presumption that all property acquired during marriage is presumptively community property. DeRuwe v. DeRuwe, supra; In re Estate of Allen, 54 Wn.2d 616, 622, 343 P.2d 867 (1959); Berol v. Berol, 37 Wn.2d 380, 381-82, 223 P.2d 1055 (1950); In re Estate of Dougherty, 27 Wn.2d 11, 176 P.2d 335 (1947); Pollock v. Pollock, 7 Wn. App. 394, 499 P.2d 231 (1972).

To overcome the presumption, the husband, inter alia, would have had to comply with at least two basic rules:

1. The tracing rule described in Berol v. Berol, supra at 381-82:

The burden rests upon the spouse asserting the separate character of the property acquired by purchase during the marriage status to establish his or her claim by clear and satisfactory evidence. E. I. DuPont de Nemours & Co. v. Garrison, 13 Wn. (2d) 170, 174, 124 P. (2d) 939, and cases cited therein. The requirement of clear and satisfactory evidence is not met by the mere self-serving declaration of the spouse claiming the property in question that he acquired it from separate funds and a showing that separate funds were available for that purpose. Separate funds used for such a purpose should be traced with some degree of particularity.

*663(See also In re Estate of Allen, 54 Wn.2d 616, 343 P.2d 867 (1959) and Cross, The Community Property Law in Washington, 49 Wash. L. Rev. 729, 745 (1974)); and

2. The necessity of proving a contemporaneous segregation of income between the community and separate estate. In re Estate of Smith, 73 Wn.2d 629, 630-31, 440 P.2d 179 (1968). When separate property is combined with community property in the acquisition or production of assets, that segregation may take the form of a reasonable salary for the husband's post-marital business services. Pollock v. Pollock, supra at 400-01, states:

Following marriage, plaintiff continued to manage his separate property successfully. He derived substantial income from the combined use of his separate property and his services. However, the community was entitled to the economic benefit of his services. The rule is that if plaintiff seeks to retain the separate character of income derived from a combination of his separate business and his post-marital personal services with respect thereto, he is required to make a contemporaneous segregation of the income so derived as between the community and his separate estate. This can be accomplished by the allocation to the community of what in effect would be a reasonable salary for his services. The allocation in the nature of a salary, is then considered community income, and the balance of his income remains his separate property.

In the instant case, the husband's individual services after marriage in causing the growth in the value of his separate property and in accumulating additional separate property was outstanding. The community, however, was entitled to the benefit of his post-marital services to his separate property in the form of a reasonable salary. The evidence shows the husband received a salary for his services from Hadley Properties, Inc., a management corporation he wholly controlled. The evidence also shows he received no salary for his personal services to other corporations and projects he considered to be his separate property — corporations and projects, to some of which at least, his skills, abilities and services greatly contributed in *664bringing about a substantial increase in the value of his separate property.

I have found no evidence in this record — indeed the briefs point to none — that the salary which the husband himself fixed and controlled was reasonable for the services he rendered for the benefit of the separate property. There is also no finding the salary he received was reasonable or that it was reasonable for the purpose mentioned. It is true that there is a conclusion of law that "the community has been fairly compensated by substantial salaries and otherwise for all efforts expended by Richard on behalf of his separate property." Conclusion of law No. 4. However, this conclusion must be supported by the findings of fact. The only references in the findings of fact show that the salary received by the husband "averaged over $57,000 for each year of marriage . . . and [were] expended for community purposes." Finding of fact No. 9. Finding of fact No. 10 states "during marriage Richard transferred separate funds in excess of $68,000 to separate accounts, and these sums were expended for community purposes. In addition, Richard expended approximately $235,000 from his separate property accounts for community purposes."

These findings are so general in character that it is virtually impossible to determine just what their relationship is to the problem of showing a contemporaneous segregation of separate and community income in connection with the services rendered by the husband in the management of his properties and of the community properties and to the reasonableness of his salary. Using averages for each year of the marriage does not show what contemporaneous segregation of income was made in any particular year with respect to any particular property at the time the property was acquired or at the time the services were rendered with respect to that property or the reasonableness of the salary. Stating that the husband transferred separate funds to community accounts and expended a given sum from his separate property accounts for community purposes does not necessarily show any contémporaneous segregation of *665income or the reasonableness of his salary. For all the findings show, the transfer of the separate funds for the benefit of the community might well have been voluntary payments having no relationship to a reasonable compensation for his earning abilities he used in augmenting his separate estate. The burden of proving the separate character of the properties claimed by the husband was upon him and that burden had to be established "by clear and convincing evidence." See National Bank of Commerce v. Green, 1 Wn. App. 713, 717, 463 P.2d 187 (1969).

If the salary was unreasonably low, and if to this is added the necessity of proving by "clear and satisfactory evidence” with "some degree of particularity" the separate status of the properties acquired or augmented in value after marriage (see Berol v. Berol, supra), the husband and the court would have been faced with serious difficulties in determining the separate character of properties otherwise presumed to have been acquired as community property.

It is therefore evident the husband felt the need for his own benefit of obtaining property status agreements in order to fix the separate and community character of the properties and thus avoid difficult problems of proof. Because of the vital importance of the property status agreements in determining the separate and community character of the properties of the parties, it is essential the question of the validity of the agreements be considered in light of applicable legal principles.

The relationship between a husband and wife after marriage is not and is not expected to be an arm's length relationship. That relationship is one of trust and confidence in which the managing husband stands in a fiduciary relationship to his wife. See Friedlander v. Friedlander, 80 Wn.2d 293, 494 P.2d 208 (1972) and Hamlin v. Merlino, 44 Wn.2d 851, 272 P.2d 125 (1954), later discussed.

The factual background evidencing important aspects of that relationship between the parties is correctly set forth in paragraph 10 of the wife's proposed findings dealing with *666the property status agreements. As appears from that paragraph, a property status agreement dated October 14, 1973, exhibit No. 6, an addendum to that agreement dated October 14, 1973, exhibit No. 5, and an amendment dated March 28, 1974, exhibit No. 4, were in force at the time this action was commenced. These agreements were relied upon by the trial court to determine the separate and community property status of the properties described in the agreements. These agreements were prepared at the husband's request by attorneys who represented him in his business matters and in the personal affairs of the parties.

These agreements were prepared for the purpose of estate planning to minimize estate taxes in the event of the wife's death prior to that of the husband. Each of the three agreements was signed by the wife at the residence of the parties in the presence of the husband, who urged her to sign these documents and indeed made it quite plain he wanted her to sign them.1 The agreements do not recite any express consideration. The agreements provided for a continued reduction in the amount of the community property interests of Mrs. Hadley and provided for a continuing increase in the amount of the separate property interests of the husband.

The wife did not have knowledge of all the material facts upon which to make a finding the agreements were fraudulent in fact or that the wife was overreached in fact in connection with the execution of the agreements. She contends, however, that the failure of the husband to discharge his fiduciary duty of disclosure had the same effect.

The wife's proposed findings point out the 1973 agreement and the 1973 addendum were examined by Mr. Wheeler Grey, a Seattle attorney, prior to the time she signed the agreements. Mr. Grey, however, refused to render a legal opinion to her concerning the validity, fairness or reasonableness of the agreements because he lacked the information necessary to determine whether they were *667fair or correct. The wife did not consult with any attorney about the 1974 amendment. At the time these agreements were signed, Mrs. Hadley, because of her affliction with multiple sclerosis, was dependent upon her husband to see to her physical well-being and to see to it that she received adequate medical treatment. None of the property status agreements were entered into in contemplation of dissolution proceedings.

The basic question relates to the burden of proof concerning the validity of the agreements and the discharge of that burden in light of the Friedlander and Hamlin cases next discussed.

The burden of proof is upon the husband to prove the validity of the agreements because of the confidential or. fiduciary relationship in which he stands to his wife. This rule is made clear in Friedlander v. Friedlander, supra, and Hamlin v. Merlino,’ supra, cases which the majority opinion holds contain principles "applicable here." Cf. Statement of facts 1116.

In Friedlander, a prenuptial agreement which essentially provided that each of the parties' separate property would retain that character and in the event of divorce neither party would make claim to the other's separate property, was held to be void. The court stated at page 300, quoting 2 A. Lindey, Separation Agreements and Ante-Nuptial Contracts § 90, at 84 (rev. ed. 1967)':

where the provision made for the wife is disproportionate to tlie property of the husband, a presumption arises that the contract was procured by deliberate concealment of the amount and value of the husband's property; and the husband or those claiming under him against the. wife have the burden of showing that she had full knowledge of the value of her interest in the husband's property, or that the circumstances were such that she reasonably should have had such knowledge.

Applying this rule, the court stated on pages 302 and 303:

This brings us to the nature of the good faith disclosure required by a prenuptial agreement. To render such *668an agreement valid there must be a fair and reasonable provision for the wife, or, in the absence thereof there must be a full, frank disclosure of the future husband's property and his worth. Juhasz v. Juhasz, supra [134 Ohio St. 257, 16 N.E.2d 328, 117 A.L.R. 993 (1938)]; Warner v. Warner, supra [235 Ill. 448, 85 N.E. 630 (1908)]; 2 A. Lindey, § 90, at 36-37. This is not to say that she must know the exact financial status of his resources. However, she must at least have a full and fair disclosure of all material facts relating to the amount, character and value of the property involved so that she will not be prejudiced by the lack of information, but can intelligently determine whether she desires to enter the prenuptial contract. Juhasz v. Juhasz, supra; Warner v. Warner, supra; 2 A. Lindey, § 90, at 44; 41 Am. Jur. 2d Husband and Wife §§ 313-14 (1968). Viewed in the light of this test, we hold that plaintiff failed to sustain his burden of proof.
Further, the prospective spouse must sign the agreement freely and voluntarily on independent advice with full knowledge of her rights. Hamlin v. Merlino, supra at 864; 2 A. Lindey, § 90, at 36-38. It is clear that defendant did not have such advice prior to signing the agreement.

Hamlin and Friedlander each point out that parties to a nuptial agreement do not deal with each other at arm's length. The relationship is one of trust and confidence which imposes a fiduciary duty upon one to the other, and this includes the duty of fair and full disclosure.

In the instant case, the husband failed to comply with the requirement in Friedlander on page 302 that the wife

must at least have a full and fair disclosure of all material facts relating to the amount, character and value of the property involved so that she will not be prejudiced by the lack of information, but can intelligently determine whether she desires to enter the . . . contract.

There was no showing that Mrs. Hadley knew the agreements would be used not only for estate planning purposes but would, or could, be used against her in the event of divorce — the very use to which the agreements were put in the instant case.

*669The complexities of the transactions involved and the need for information is emphasized by the fact that if Mr. Wheeler Grey, an able member of the Seattle bar, found himself unable to advise Mrs. Hadley concerning the wisdom of signing the agreements because he lacked the necessary information and Mrs. Hadley didn't have that information, how much less qualified was Mrs. Hadley to make an informed decision.

The majority opinion argues the wife should have obtained the necessary material information she needed before she signed the agreements. It fairly appears from the record she faced an insistent husband who appeared impatient at the delay in his wife's signing. See Statement of facts 178. She apparently decided to sign, trusting her husband, upon whom she relied, to protect her interests. This was not a new experience for her. Thus, at one point in her testimony, she testified with reference to signing legal papers presented to her by her husband, in response to a question asked her on cross-examination:

Q. Would you have signed anything if you didn't understand what it meant? . . .
A. If Richard said that this was to be signed, his word was all I needed.

Statement of facts 912-13.

The husband then contends that the wife ratified these agreements in her wills executed June 17, 1974, and September 10, 1974. However, when these wills were executed she was no better informed concerning the facts she should have been told about than she was at the time she executed the property status agreements. Under these circumstances, there can be no ratification by one who lacks full knowledge of material facts, which it is the duty of the husband to disclose. See Wickre v. Allen, 58 Wn.2d 770, 364 P.2d 911 (1961); Wilson v. Pearce, 57 Wn.2d 44, 355 P.2d 154 (1960); Power v. Esarey, 37 Wn.2d 407, 224 P.2d 323 (1950).

Mr. Hadley further argues his wife is estopped to rely upon the invalidity of the agreements because after she executed them they were relied upon by himself and third *670persons. The rights of third persons are not before this court and just what justifiable reliance was had by these people is not in the record. Even if, however, an estoppel could be urged in specific cases as to third persons, the estoppel would be inapplicable as between the husband and wife. A husband under fiduciary obligation to his wife to make a full and fair disclosure cannot, by obtaining her signatures to these property status agreements without complying with his duty of disclosure, obtain a right to treat them as valid on the ground that he relied upon them. This is not a case of justifiable reliance. Leonard v. Washington Employers, Inc., 77 Wn.2d 271, 280-81, 461 P.2d 538 (1969). A signature obtained under these circumstances as between husband and wife permits the wife to contend the agreements are void.

Finding of fact No. 13 upholds the validity of the property status agreements. That finding states "the parties knowledgeably and voluntarily executed a series of agreements which identify their property and fix the community and separate status and character of that property . . . Richard and Claudette discussed these agreements, and each was explained to her . . . Claudette was kept informed of business developments by Richard . . . The 1973 agreement and the addendum were based upon a study conducted by a certified public accountant and an attorney who traced the then assets to the respective sources and characterized the then assets in accordance with the character of the source asset. The agreement reflects the results of the study and the addendum recites its conclusions." The finding further refers to "Claudette [engaging] Wheeler Grey, an attorney at law, to examine the 1973 agreement and addendum." The finding continues: "Grey told Claudette he needed more information in order to render a legal opinion concerning these documents. Claudette did not provide Grey with more information, nor did she request Grey to obtain any additional information." Finding of fact No. 14 again states "these agreements were *671knowledgeably and voluntarily signed by Richard and Claudette ..."

The difficulty with these findings is that they ignore the significance of the husband's duty to disclose "all material facts relating to the amount, character and value of the property involved ..." Nowhere is it found in clear and direct terms that such a disclosure was made. The statement that the agreements were "explained to her" provides no details and thereby ignores the sufficiency of the explanation, whatever that might have been and there is no finding on this crucial question. So far as the study conducted by the certified public accountant, even he testified that as to one asset, he relied upon the property status agreement which he treated as valid. There is no claim that in doing so, he undertook to find out just what representations were made to the wife as required by the rule of disclosure under Washington law. The husband cannot convert his duty to disclose into a duty on the part of the wife to find out when he fails to disclose to his wife what is his duty to disclose. There was no knowledgeable and intelligent waiver by the wife of the husband's duty of disclosure. Findings Nos. 13 and 14 are not supported by substantial evidence in material respects.

If the property status agreements are void, then the findings cannot be used for the purpose of demonstrating the court was aware of the correct status of the properties of the parties described in those agreements. Nevertheless, the court relied upon these agreements, holding them valid, without giving proper effect to the husband's duty of disclosure. The court also orally explained during the proceedings on the wife's motion for a new trial that it had specifically addressed the question of what was community and what was separate. He stated, "I thought I did when I said I upheld the agreement. The agreement spelled out what the properties were." Statement of facts 1087, line 24. Under the circumstances, reliance upon void agreements to determine the separate and community character of the property was improper and requires a new trial for the *672purpose of enabling a determination to be made, whether, independently of the property status agreements, there is substantial evidence to show that the court was aware of the correct nature and extent of the community and separate property he divided.

The Value of the Properties

The court must consider the value of each item of separate and community property which the court must divide in a "just and equitable" fashion. See Wold v. Wold, 7 Wn. App. 872, 874-75, 878, 503 P.2d 118 (1972). The court relied upon Mr. Hadley's 1975 financial statement which purported to state, inter alia, an "Estimated Market Value" for each of the properties described therein. The statement was received over objection of the wife's attorneys. The values estimated in most cases were based upon a capitalization of net income method, using a 9 percent capitalization rate. This method is illustrated in the 1975 Hadley financial statement, petitioner's exhibit No. 137, schedule J, pages 62-63. See Statement of facts 599. The usual methods of establishing fair market value were not used. Whatever deficiencies existed in this method of proving fair cash market value were accentuated in at least two instances when assessed values for real property taxation purposes were used instead of using the capitalization method. Assessed values re not admissible as evidence of fair cash market value. In re Medina, 69 Wn.2d 574, 418 P.2d 1020 (1966); American State Bank v. Butts, 111 Wash. 612, 191 P. 754, 17 A.L.R. 168 (1920); In re North-lake Ave., 96 Wash. 344, 165 P, 113 (1917).

There was evidence as the brief of appellant, page 45, points out, that had the 9 percent capitalization method relied on to value other Hadley properties been used, the two properties in which assessed values were used would have resulted in a value higher by approximately $1,500,000. For all the record shows, the trial court might well have increased the wife's distributive share had it considered that the husband had understated the value of his *673separate property by $1,500,000. This matter needs to be further considered on retrial. Since no question has been raised by the parties concerning the propriety of the use of the capitalization method with respect to other properties contained in the 1975 financial statement, it is unnecessary to comment further about the propriety of that method in fixing values.

A second matter showing an understatement of the value of the parties' property is shown by the use of two tax reserves. The first was a $3,516,333 tax reserve set forth for the first time in the 1975 financial statement. This tax reserve was based on the amount of unrealized appreciation at capital gain rates should the property of the parties be liquidated. Note No. 5 to the financial statement further shows "The actual tax could vary according to the actual method of liquidation adopted."

This tax reserve dealt with a contingent liability for taxes. Whether that liability would ever come into existence would depend upon whether and to what extent properties would be liquidated. The possibility is always there but there is no evidence the contingent liability for which the tax reserve has been set up will ever come into being. Under the court's decree, the benefits derived from the use of the tax reserve as a method of reducing Mr. Hadley's net worth is awarded to Mr. Hadley. What happens if the contingent liability never comes into being or does not come into being in the amount for which the tax reserve is set up? If the tax reserve is overstated or is merely a paper entry in its entirety, then the value of the assets in the 1975 financial statement has been substantially understated.

Moreover, there is a second tax reserve, i.e., one in a corporation in which the parties owned a 90 percent interest. The reserve was set up because if the leasehold income were to be sold, there would be an income tax effect. Here, too, there is no evidence that the leasehold will be sold in the foreseeable future so that the tax reserve may well be unnecessary. If unnecessary, the fair value of the building involved has been understated by 90 percent of $765,250. *674However, to the extent the tax reserve will not be needed, the benefit of the assets against which the tax reserve has been set up go to Mr. Hadley.

No doubt in arriving at the fair value of the properties involved it is necessary to consider the possibility of sale or liquidation and the tax impact of sale or liquidation, but the possibility must be real, not conjectural. The evidence does not establish that the tax reserves are for any real rather than conjectural contingency. Upon remand for the purpose of determining the separate and community property status of the parties, it will also be necessary to determine what effect should be given to these reserves in arriving at the fair value of the properties distributable.

The Maintenance Award

The trial court sought to make an equal distribution of $2,050,812, or $1,025,406 each. As he explained:

Now, if we take the $1,025,406 that goes to Mrs. Hadley, and if we take the $1,025,406 that goes to Mr. Hadley as his part of the community property, and we add these two figures together, that's $2,050,812 . . .

Instead of awarding Mrs. Hadley $1,025,406 in property, the trial court included in that award, in lieu of property distribution, $480,000 in the form of a maintenance award, payable without interest over a period of 10 years. It explained:

So I am going to award $4,000 per month for her support for the next ten years. Now, if she lives ten years, I am sure the arithmetic is quite simple on this, this would amount to $48,000 a year, which in ten years would be $480,000.
I did this, gentlemen, rather than making a distribution of $480,000 from the assets, because I feel that there is no reason to believe that Mr. Hadley, having been successful, can't be successful in the future, and he expressed his intent that he wanted her to be properly cared for for the rest of her life.

Obviously, the award of maintenance in lieu of property does not result in equal distribution of the amounts the *675court intended to distribute equally. Unlike a property distribution, a maintenance award is terminable at the wife's death; the award does not have a present value of $480,000 at the time of the decree as distinguished from a property award because it is payable without interest in installments over a period of 10 years and the present value of the award is a discounted figure. Moreover, the award cannot be bequeathed because it terminates upon the wife's death, whereas property can be bequeathed and remains in the ownership of the wife's estate, notwithstanding her death. Further, the maintenance payments are includable in the wife's income for federal income tax purposes in the year in which the installments are received. I.R.C. § 71. Still further, the payments are deductible by the husband in computing his federal income in the year of payment. I.R.C. § 215.

Moreover, if $4,000 a month is necessary to meet the wife's needs (there is no claim to the contrary), her failure to get that amount by reason of the tax liabilities described impairs her ability to meet her needs in view of her serious afflictions. Moreover, if, as a result of substituting the maintenance award for a property award, Mrs. Hadley gets less than one-half of her community share, she also becomes liable for income tax at capital gain rates attributable to community property awarded to the husband. United States v. Davis, 370 U.S. 85, 8 L. Ed. 2d 335, 82 S. Ct. 1190, rehearing denied, 371 U.S. 854, 9 L. Ed. 2d 92, 83 S. Ct. 14 (1962). It is unnecessary to note other differences. It is not surprising, therefore, that in Dreyer v. Dreyer, 10 Wn. App. 624, 627, 519 P.2d 12 (1974), the court noted: "The time has passed when you can say alimony may be given merely in lieu of any property division."

It is true at one point the court noted that one of the buildings distributed to Mrs. Hadley as part of her one-half share of $2,050,812, had been treated as the husband's separate property. Ultimately, however, he lumped the items separate and community together by making up the $2,050,812, thereby indicating he wanted both parties to *676each receive an equal amount, namely, $1,025,406. In distributing that amount to the defendant wife, he erroneously included the maintenance award of $480,000 as if it were the equivalent of a property distribution. See Statement of facts 1092-093. He should not have done so.

Concluding Observations

The trial court's decree requires revision because of the trial court's failure to bear in mind the correct status of the community and separate property of the parties and the correct values of the properties involved. Without reliance on the property status agreements, the court's findings fail to designate the items of property which are separate and the items which are community and their respective true values. When a court has made no such characterization, it cannot be determined that the court bore in mind the correct characterization and values of the properties. The cause must be reversed to enable such characterization and values to be determined. I am unable on this record to make that characterization and determination myself. It would be better in my view for the trial court to do so on the basis of an adequate record in which the property status agreements will not be treated as valid.

Moreover, the failure of the court to make a property award instead of a maintenance award of $480,000 is error.

It is true, the husband's affairs are such that the decree entered by the court should take into account his need for additional financing so that division of assets may not adversely affect his ability to obtain such financing. The maintenance award is also implicit recognition of the court's confidence in Mr. Hadley's future substantial earning ability. However, equity and justice require that the court, with such help as the parties may give, explore other possibilities that will protect the husband and, at the same time, not be unfair to the wife. See Baker v. Baker, 80 Wn.2d 736, 498 P.2d 315 (1972); Lynch v. Lynch, 38 Wn.2d 437, 229 P.2d 885 (1951); Spencer v. Spencer, 24 Wn.2d 574, 166 P.2d 845 (1946); Halverson v. Halverson, 137 *677Wash. 619, 243 P. 644 (1926). Thus, for example, the court may award a compensatory judgment to the wife. DeRuwe v. DeRuwe, 72 Wn.2d 404, 433 P.2d 209 (1967); and Pollock v. Pollock, 7 Wn. App. 394, 499 P.2d 231 (1972).

I would reverse for further proceedings consistent with this opinion.

Stafford and Utter, JJ., concur with Horowitz, J.

Reconsideration denied September 2, 1977.

See Statement of facts 183, lines 5-8.