In re the Marriage of Helen J. Griswold and Michael T. Griswold

Both parties to this marital dissolution action are
appealing the superior court's distribution of property. The primary
issues involve the court's characterization of an employment bonus and
lawsuit settlement proceeds that the husband received after the parties
separated. The husband also contends the property distribution was
inequitable. The wife raises eight other miscellaneous issues involving
the court's distribution. We affirm.

Helen J. Griswold and Michael T. Griswold were married in 1983. Mr.
Griswold earned a bachelor's degree in accounting and a master's degree in
business administration after the parties married. Ms. Griswold worked
throughout the marriage. By the 1990s, she was operating a small business,
from which she earned about $12,000 per year.
Mr. Griswold began working for Washington Water Power Company as a
financial analyst in 1989. In the years 1992 to 1996, Mr. Griswold's
wages, including bonuses, ranged from about $42,000 to about $62,000. In
1997, he began working as an energy trader with Avista Energy, with an
annual salary of $75,000. He became the senior power trader in 1998, and
his earnings increased to $219,000, consisting of $120,000 in salary and
the rest in bonuses.

The parties separated on November 2, 1998. Ms. Griswold filed this
action, and the court conducted a trial in October and December 2000. The
court entered a decree of dissolution and other related documents in
January 2001. In its initial findings of fact and conclusions of law, the
court awarded each party all of his or her separate property and half of
the community property. On reconsideration, the court awarded to Ms.
Griswold $138,000 of Mr. Griswold's separate property. Both parties appeal
the court's distribution of the marital property.

We first consider the trial court's characterization of an employment
bonus Mr. Griswold received in 1999. Pursuant to an incentive plan that
Avista Energy implemented in 1998, Mr. Griswold received a bonus of
$980,772 in March 1999, just a few months after the parties separated.
This amount was comprised of several elements: (1) $32,358 was based on the
company's total performance during 1998; (2) $35,035 was called 'holdback
and discretionary,' which was a reserved amount to be paid out at year's
end based on nonquantitative employee criteria; (3) $5,372 was called a 'Q4
bonus,' which was an amount awarded to traders involved in long-term
contracts; (4) $848,006 was called the 'super trader award' or 'special
trader award,' which was based on the value of an individual trader's
'book';1 (5) $60,000 was to mitigate Mr. Griswold's concerns about being
shorted by the bonus plan and to give him an incentive to remain at Avista
Energy. To be eligible for a bonus under Avista Energy's plan, a trader
was required to remain employed at the time the bonus is paid.

Mr. Griswold's bonus thus was based primarily on the value of his book.

Because electricity prices fluctuated dramatically,2 the resulting value of
his book also fluctuated dramatically. Mr. Griswold testified that the
base figure for the 'super trader award' increased by $620,000 from
November 2, 1998, when the Griswolds separated, to the end of the 1998
calendar year, when the bonus
amounts were calculated. He testified that he completed 1,200 to 1,500
trades during that two-month period. One of those was the so-called 'Enron
sale' of electricity that he had purchased in October 1998, yielding a
profit of $4.2 million.
In characterizing the Griswolds' property, the trial court held that the
bonus would be calculated on a pro rata basis from January 1, 1998, through
November 2, 1998 (the date of separation). The court thus concluded that
84 percent of the bonus was community property and 16 percent was Mr.
Griswold's separate property. The court awarded to Mr. Griswold all of his
separate portion of the bonus and half of his community portion.
Both parties are appealing the court's characterization of the bonus.

In a dissolution action, the court must make a 'just and equitable'
distribution of the marital property. RCW 26.09.080. A trial court has
broad discretion in distributing the marital property, and its decision
will be reversed only if there is a manifest abuse of discretion. In re
Marriage of Kraft, 119 Wn.2d 438, 450, 832 P.2d 871 (1992). All of the
parties' property, both community and separate, is before the court for
distribution. In re Marriage of Olivares, 69 Wn. App. 324, 328, 848 P.2d
1281, review denied, 122 Wn.2d 1009 (1993). Factors to be considered are:
(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 the parties. RCW 26.09.080. In applying
these factors, the court first must characterize the marital property as
either separate or community. Olivares, 69 Wn. App. at 329.

A court's characterization of property as either separate or community
is a question of law subject to de novo review. In re Marriage of Skarbek,
100 Wn. App. 444, 447, 997 P.2d 447 (2000). However, factual findings upon
which the court's characterization is based may be reversed only if they
are not supported by substantial evidence. Id. 'Substantial evidence
exists if the record contains evidence of sufficient quantity to persuade a
fair-minded, rational person of the truth of the declared premise.' Bering
v. SHARE, 106 Wn.2d 212, 220, 721 P.2d 918 (1986), cert. dismissed, 479
U.S. 1050 (1987).

Assets acquired during a marriage are presumed to be community
property. In re Marriage of Short, 125 Wn.2d 865, 870, 890 P.2d 12 (1995).
This presumption may be rebutted by showing the assets were acquired as
separate property. Id. Spouses' earnings and accumulations during a
permanent separation are considered separate property. Id. at 871; RCW
26.16.140.

In Short, our Supreme Court addressed the question whether employee
stock options, which were unvested during the spouses' marriage but became
vested during their separation, should be characterized as separate or
community. The court applied the so-called 'time rule':
To determine how unvested employee stock options are characterized under
RCW 26.16, a trial court must first ascertain whether the stock options
were granted to compensate the employee for past, present, or future
employment services. This involves a specific fact-finding inquiry in
every case to evaluate the circumstances surrounding the grant of the
employee stock options. Unvested employee stock options granted during
marriage for present employment services, assuming the parties were not
'living separate and apart' under RCW 26.16.140 when the stock options were
granted, are acquired when granted. Unvested employee stock options
granted for future employment services are acquired over time as the stock
options vest. See In re Estate of Binge, 5 Wn.2d 446, 484, 105 P.2d 689
(1940).

Short, 125 Wn.2d at 873.3

Mr. Griswold contends the bonus is his separate property because he
received it after the separation. He presents essentially two arguments
for why the time rule should not apply here. First, he contends his book
had no inherent value because of the market volatility and the need for
discretionary decisions by the trader. But the fluctuating value of
property and the continued need for discretionary decisions do not render
the property valueless. As even Mr. Griswold recognizes, the book had a
specific, though fluctuating, value on specific dates.

Second, Mr. Griswold contends the bonus had no value when the parties
separated (or even, presumably, at the end of the calendar year) because
his receipt depended on satisfaction of the requirement that he remain
employed at the time the bonus was paid. But the unvested stock options in
Short, to which the court applied the 'time rule,' also were contingent on
continued employment. Short, 125 Wn.2d at 871; see also In re Marriage of
Stachofsky, 90 Wn. App. 135, 145, 951 P.2d 346, review denied, 136 Wn.2d
1010 (1998). This requirement alone does not preclude application of the
'time rule.'

The 'time rule' requires a trial court to determine, as a matter of
fact, whether the benefit is conferred for past, present, or future
services. Short, 125 Wn.2d at 873. Here, the court impliedly found Mr.
Griswold's bonus was compensation for his services during 1998, and this
finding is supported by substantial evidence.4
Mr. Griswold likens the bonus to severance pay, which 'carries with it no
contractual right to a payment that arises after a certain number of years
of employment and which will definitely be paid in the future.' In re
Marriage of Bishop, 46 Wn. App. 198, 201, 729 P.2d 647 (1986). In Bishop,
the court held that severance pay received after the marriage was the
separate property of the receiving spouse, recognizing that '{i}t is
something of value over and above the community's contribution, and cannot
truly be considered as having been onerously traded by the community.' Id.
at 203. Here, by contrast, the trial court impliedly found that Mr.
Griswold's bonus was compensation for his services in 1998. His services
thus were 'onerously traded' by the community during the period when the
community existed. Bishop's reasoning does not apply.

Mr. Griswold's arguments have no merit.

Ms. Griswold, too, objects to the court's application of the 'time
rule.' Contending the value of Mr. Griswold's book changed daily based on
market factors alone, she argues the evidence was insufficient to show that
his efforts after separation on November 2, 1998, contributed to the amount
of the 1998 bonus. See In re Marriage of Sedlock, 69 Wn. App. 484, 508,
849 P.2d 1243, review denied, 122 Wn.2d 1014 (1993) (increase in value
attributable to market forces does not change character of property). She
argues that Mr. Griswold had the ability to prove the value of the
postseparation trades, but he failed to do so. This argument fails to
recognize the complexity of the business in which Mr. Griswold was engaged.
For example, the 'Enron trade' involved a purchase before separation and a
sale after separation. RP at 512. Assigning the value of the entire
transaction to pre- or postseparation efforts would both complicate the
analysis and ignore the circumstances. Based on Mr. Griswold's testimony
that he engaged in 1,200 to 1,500 trades from November 2, 1998 through the
end of the calendar year, the trial court properly found the bonus was a
result of Mr. Griswold's efforts both before and after separation.

The court did not err in characterizing Mr. Griswold's bonus as partly
community and partly separate property.

We next consider the court's characterization of settlement proceeds
from a lawsuit Mr. Griswold filed against Avista Energy. Shortly after
receiving his bonus in March 1999, Mr. Griswold left Avista Energy and
began working with another company. He then hired a lawyer, Robert Dunn,
to pursue a claim against Avista Energy for breach of contract, wrongful
discharge, and constructive termination. In a demand letter dated March
16, 2000, Mr. Dunn alleged that 'as a quick fix to {Avista Energy's} budget
shortcomings, the Incentive Plan was ultimately capped despite
representations to employees that bonus payments would be 'uncapped.'
Exhibit (Ex.) R-156, p. 4. The letter detailed Mr. Griswold's claims of
underpayment for the years 1997 and 1998, and added that he also was owed
an undetermined but 'substantial sum' as compensation for trades he
executed in 1999. The letter offered to settle Mr. Griswold's claim for
$1,483,304, an amount that Mr. Dunn said did not include compensation for
1999 trades, penalties, or interest.5

In September 2000, Mr. Dunn took the deposition of Thomas Johns, Mr.
Griswold's supervisor at Avista Energy. As a result of Mr. Johns'
testimony, Mr. Dunn testified that 'I was firmly convinced that we had
established without a doubt the fact that the '99 book for Mr. Griswold was
substantiated.' RP at 757. Mr. Dunn immediately withdrew the prior
settlement offer, which he believed did not reflect 'the full scope and
extent of the '99 claim.' RP at 759. He testified the potential value of
the 1999 claim 'was a very, very large number.' RP at 759. In an e-mail
message to Mr. Dunn, Mr. Griswold valued his claim for 1999 at $4,528,297.
Mr. Griswold acknowledged that this amount was based on 'mid-market' prices
and assumed the 1998 bonus plan would apply to his 1999 book.

Shortly after Mr. John's deposition, Avista Energy began negotiating
to settle Mr. Griswold's claims. Mr. Dunn testified: 'My opinion is that
{Avista Energy} recognized they had some huge potential exposure in this
case, and it was highlighted by the testimony of Mr. Johns and our moves to
make the '99 claim the focus of our case.' RP at 761-62.

Avista Energy settled with Mr. Griswold for $700,000. Despite Mr.
Griswold's requests, Avista Energy refused to allocate any portion of the
settlement amount to any particular year. Mr. Dunn testified that the case
would not have settled for that amount without the claims for 1999, but he
was unable to allocate specific portions of the settlement amount to a
specific year.

In characterizing the settlement proceeds, the trial court first
deducted attorney fees and other costs, leaving a remainder of $407,954.18.

The court further found:

a) The community portion of these funds shall be calculated as follows:
The amount of $1,483,304, reflecting the proportionate aspect of the bonus
attributable to the 1997 and 1998 book of the husband{,} should be divided
into the total value of the claim made for the years 1997, 1998 and 1999,
or $6,011,601 ($1,483,304 plus $4,528,297 for the 1999 book value), to
realize the starting point for the preliminary figure for the community
component of this settlement. The figure of $4,528,297 for the 1999 book
value does not include the Enron trade, as is indicated by Exhibit 138, but
the Enron trade should have been included in the 1997/1998 book in any
event, because it took place prior to 1999.

b) $1,483,304 divided into the sum total equals 25% of the whole. As
applied to the remaining figure referenced above of $407,954.18, the
starting point for determination of the distribution of the community share
is $101,988.54.

c) From this starting point, and in order to realize the true community
component, the resultant figure of $101,988.54 should then be pro rata
determined based upon the number of days reflecting the existence of the
community in 1998, i.e. from January 1, 1998 through November 2, 1998, or
84% as calculated above, for a total of $85,670.37.

Clerk's Papers (CP) at 10.

The court then divided this community component in half, reflecting a
preliminary award to Ms. Griswold of $42,835.18. After deducting income
taxes, the court awarded $25,872.45 to Ms. Griswold.

Mr. Griswold asks us to apply the rule that property is characterized
by its status at the time of its acquisition. See In re Marriage of Zahm,
138 Wn.2d 213, 223, 978 P.2d 498 (1999). However, this presumption may be
rebutted by evidence to the contrary. Id. Here, by asking Avista Energy
to apportion the settlement proceeds, Mr. Griswold conceded some of the
proceeds were properly attributed to his services before 1999. This
evidence alone rebuts the presumption that the lawsuit proceeds were
entirely Mr. Griswold's separate property.

Ms. Griswold contends, on the other hand, that the trial court erred
by using Mr. Dunn's demand letter and Mr. Griswold's calculation of the
value of his 1999 book as a basis for apportioning the proceeds. However,
Mr. Griswold's and his lawyer's assessment of the values of the pre-1999
claims and the 1999 claims provides a basis for a fair-minded person to
determine the relative values of those claims. Substantial evidence thus
supports the court's determination that 25 percent of the proceeds was
attributable to the pre-1999 claims and 75 percent was attributable to the
1999 claims.

Ms. Griswold raises three other issues regarding the lawsuit proceeds.
First, she contends Mr. Griswold's claim for $1,483,304 acknowledged his
prior receipt of the $980,077 bonus (which the court concluded was
attributed to Mr. Griswold's pre-1999 services). She contends this amount
should be added to Mr. Griswold's pre-1999 claims to establish the proper
ratio. But the bonus was apportioned in a separate calculation. Ms.
Griswold's attempt to include the bonus in allocating the lawsuit proceeds
fails to recognize that 84 percent of the bonus was characterized as
community property. The court did not err in excluding the bonus in
allocating the lawsuit proceeds.

Second, Ms. Griswold contends the court erred in failing to consider
the Enron trade. In his e-mail to Mr. Dunn, Mr. Griswold calculated the
value of his 1999 book both with and without the Enron trade. Because this
trade was completed before 1999, Ms. Griswold reasons, the trial court
should have included it in the pre-1999 portion of the ratio. However, Mr.
Dunn's initial demand letter expressly referred to the Enron trade, and its
value thus was included in the offer to settle the lawsuit for $1,483,304.
The court did not err in failing to add the value of the Enron trade to the
pre-1999 portion of the ratio.

Third, Ms. Griswold points out that the trial court divided the pre-
1999 portion of the lawsuit proceeds using the same 84 percent/16 percent
formula it had used to divide the 1998 bonus into community and separate
property portions. However, the pre-1999 portion of the lawsuit proceeds
included claims for both 1997 and 1998. The court's formula thus failed to
account for 1997. Arguably, this failure may be justified by Mr.
Griswold's proposed settlement agreement, in which he attempted to allocate
one-third of the proceeds to 1998 and two-thirds to 1999. But the trial
court's calculation (quoted above) clearly recognized that the pre-1999
claims were for both 1997 and 1998. The court's formula thus is not based
on substantial evidence and resulted in a mischaracterization of the
property.

Failure to properly characterize the property may be reversible error.
{Blood v. Blood, 69 Wn.2d 680, 682, 419 P.2d 1006 (1966)}. However,
mischaracterization of property is not grounds for setting aside a trial
court's allocation of liabilities and assets, so long as the distribution
is fair and equitable. In re Marriage of Brady, 50 Wn. App. 728, 731, 750
P.2d 654 (1988); {Worthington v. Worthington, 73 Wn.2d 759, 768-69, 440
P.2d 478 (1968)}; Brossman v. Brossman, 32 Wn. App. 851, 854, 650 P.2d 246
(1982), review denied, 98 Wn.2d 1017 (1983). Where there is
mischaracterization, the trial court will be affirmed unless the reasoning
of the court indicates (1) that the property division was significantly
influenced by characterization and (2) that it is not clear that the court
would have divided the property in the same way in the absence of the
mischaracterization. In re Marriage of Shannon, 55 Wn. App. 137, 142, 777
P.2d 8 (1989).

In re Marriage of Olivares, 69 Wn. App. 324, 330, 848 P.2d 1281, review
denied, 122 Wn.2d 1009 (1993).

Here, the trial court awarded exactly half of the community property
to each party. Arguably, then, the court's initial property division was
influenced by the mischaracterization. However, on reconsideration, the
court revised its property distribution and awarded Ms. Griswold $138,000
of Mr. Griswold's separate property. This decision makes it clear the
characterization did not significantly influence the ultimate property
distribution. Because we conclude below that the distribution as a whole
was fair and equitable, the error does not require reversal.

Next, we address Mr. Griswold's contention that the court abused its
discretion by awarding $138,000 of his separate property to Ms. Griswold.
He points out that the court failed to find there were unusual or
exceptional circumstances.6 The origin of a requirement for exceptional
circumstances appears to be Bodine v. Bodine, 34 Wn.2d 33, 35, 207 P.2d
1213 (1949), in which the court held:

While under Rem. Rev. Stat., sec. 989, all the property of the
parties, community and separate, is before the superior court and subject
to distribution, and while the superior court may, under certain
circumstances, award part or all of one spouse's separate property to the
other, the situations which warrant such action are exceptional.

Since that time, other cases have cited Bodine or its progeny for the
requirement that exceptional circumstances are required to award one party
the separate property of the other. See Browning v. Browning, 46 Wn.2d
538, 542, 283 P.2d 125 (1955); Merkel v. Merkel, 39 Wn.2d 102, 115, 234
P.2d 857 (1951); Olivares, 69 Wn. App. at 330; Moore v. Moore, 9 Wn. App.
951, 953, 515 P.2d 1309 (1973). However, none of these cases acknowledges
that in the same year the court decided Bodine, the Legislature revised the
dissolution statute, listing the specific factors to be considered. See
Laws of 1949, ch. 215, sec. 11. The revision modified the principle that
one factor should weigh more heavily than others:
While both separate and community property have always been considered to
be before the court in a dissolution action, it was not until the statute
was revised in 1949 that the allocation of separate property was explicitly
governed by statutory criteria. Laws of 1949, ch. 215, sec. 11, p. 701.
Prior to this change the courts were free to weigh the character of the
property more heavily than other factors when allocating separate property.
However, the current statute specifically applies the statutory criteria to
separate property. . . .

. . . .

. . . This court will not single out a particular factor, such as the
character of the property, and require as a matter of law that it be given
greater weight than other relevant factors. The statute directs the trial
court to weigh all of the factors, within the context of the particular
circumstances of the parties, to come to a fair, just and equitable
division of property. The character of the property is a relevant factor
which must be considered, but is not controlling.

In re Marriage of Konzen, 103 Wn.2d 470, 477-78, 693 P.2d 97, cert. denied,
473 U.S. 906 (1985).

Under Konzen, a court need not find exceptional circumstances to
justify awarding a portion of one spouse's separate party to the other
spouse. The trial court here thus did not abuse its discretion by failing
to find there were exceptional circumstances.
Finally, we briefly address several miscellaneous issues Ms. Griswold
raises. The first is her contention that the court abused its discretion
by failing to treat her pretrial draw from the Avista Energy bonus as
support and maintenance and Mr. Griswold's pretrial draw as a property
distribution. By agreement before trial, each party received $50,000 in
cash from the Avista Energy bonus that Mr. Griswold received in March 1999.
Ms. Griswold apparently used the money to supplement her net income from
her business, which the court found was $1,000 per month. Mr. Griswold
used the money to pay for living expenses, moving expenses, a new
residence, and attorney fees. His gross income at the time was $12,500 per
month.

In distributing the bonus, the trial court merely addressed the assets
remaining in the account where Mr. Griswold deposited it. It therefore did
not address the $100,000 that the parties already had received and spent.
Because those assets no longer existed at the time of trial, the court had
no duty to distribute them. See In re Marriage of White, 105 Wn. App. 545,
549, 20 P.3d 481 (2001).

Although Ms. Griswold asked the court to treat her portion of the draw
as support and maintenance and Mr. Griswold's portion as a property
distribution, the court clearly viewed the matter as having been resolved
before trial with an equal distribution. Ms. Griswold has failed to
demonstrate an abuse of discretion.

Next, Ms. Griswold contends the court erred in assigning to her the
value of a ring that she sold before trial.7 Among the personal property
distributed by the court was a wedding ring valued at $3,500, which the
court found was community property. Ms. Griswold testified she sold the
ring for $3,000 in January 1999 because 'I had no money for the kids and
I.'8 RP at 153.

Although Ms. Griswold apparently contends the proceeds from the
wedding ring should have been treated as a support or maintenance payment,
the court instead chose to characterize it as community property and award
it to her. Based on the evidence that Ms. Griswold had other assets at her
disposal, there is no basis for concluding the court abused its discretion.

Next, Ms. Griswold contends the court abused its discretion by
deducting money from the lawsuit settlement proceeds for Mr. Griswold's
future attorney fees without requiring an accounting. Before distributing
the lawsuit settlement assets, the court deducted $50,000 to pay for Mr.
Griswold's expenses for legal representation in an investigation of Avista
Energy's trading practices by the Commodity Futures Trading Commission.
This was the amount set aside in the settlement with Avista Energy for
attorney fees resulting from the investigation, which raised the
possibility of civil or criminal liability for Mr. Griswold. The trial
court's distribution did not address the possibility that Mr. Griswold's
attorney fees might not reach $50,000, nor did it require a future
accounting of the fees paid.

Based on the settlement's allocation of $50,000 to pay for future
attorney fees, the court's decision to deduct this amount from the
settlement proceeds before distribution was based on substantial evidence
and was not an abuse of discretion.

In fact, when Ms. Griswold raised this issue again on reconsideration,
Mr. Griswold presented an affidavit of his attorney stating his fees and
costs already were approaching $50,000 and 'would likely exceed $250,000.'
CP at 412. Ms. Griswold has cited no authority for her request for an
accounting. As for her request for reimbursement of any overpayment, the
record clearly suggests there has been no overpayment.

The court did not abuse its discretion in denying Ms. Griswold's
request for reimbursement and an accounting.

Next, Ms. Griswold contends the court erred in failing to require
redistribution of the bonus and settlement proceeds if Mr. Griswold amended
his income tax returns or received a tax refund. In distributing both the
bonus and the settlement proceeds, the court first deducted income taxes
for each of the three years involved, based on the Internal Revenue
Service's calculation provided to Mr. Griswold. From Ms. Griswold's
portion of the lawsuit settlement proceeds, the court deducted Mr.
Griswold's 'incremental tax rate' of 39.6 percent. CP at 10. The court
did not require an accounting or revision based on possible future
amendment of these amounts.

Ms. Griswold has provided no evidence suggesting the trial court's tax
calculations were incorrect or likely to be amended. Her argument is
speculative, and she has provided no authority to support her request for
an accounting. The court did not abuse its discretion by failing to order
one.
Next, Ms. Griswold contends the court's valuation of the family home was
not supported by substantial evidence. The court awarded to Ms. Griswold
the equity in the family home, which it determined was worth $176,000.
This was the amount of an appraisal dated September 2, 1997, which was
introduced by Mr. Griswold. Ms. Griswold presented an appraisal, dated
October 2, 2000, valuing the home at $149,000.

In explaining why it chose to accept the 1997 appraisal, the court
noted in its oral decision:
The Court finds that the value of that home is $176,000. I looked at both
Exhibits 70 and 95. Exhibit 70 by Mr. Davis which was done provided a
value as of 10/2/2000. It seems to this Court that we have tried to put
everything else as of the date of the separation. That value is probably
not a correct value based upon that.

Granted that the value of Exhibit 95 (the 1997 appraisal) is valuing
the house as of September 22nd, 1997. But it appears to be more close in
time and a more accurate representation of what the value is.

RP at 930-31.

Ms. Griswold points out that, contrary to the court's oral decision,
it did not always value assets at the time of the parties' separation. She
contends that the court should have concluded the house depreciated in
value from 1997 to 2000 solely because of market forces, for which the
community should be responsible. However, the 2000 appraiser noted that
'{t}he overall condition of the home shows lack of maintenance and upkeep.'
Ex. P-70, p. 2. This evidence supports the court's decision to accept the
1997 appraisal, making her alone responsible for the lack of maintenance
and resulting depreciation in the home's value. The trial court's finding
is supported by substantial evidence.

Next, Ms. Griswold contends the court abused its discretion by
assigning to her the 1998 real estate tax liability for the family home.
In distributing the parties' debt, the court determined that $8,687 in real
estate taxes on the family home were Ms. Griswold's separate debt. The
court denied her motion for reconsideration.

Ms. Griswold apparently contends the $8,687 includes all or a portion
of taxes for the year 1998. Because the parties separated only at the end
of that year, she reasons, the community should be responsible for most of
the 1998 taxes. However, she has cited to no evidence in the record to
support her contention that the amount includes taxes for 1998.

In fact, although Ms. Griswold testified the 1998 real estate taxes
had not been paid, she admitted she had not paid any real estate taxes on
the home since the parties separated, even though she had lived in the home
since that time and had received a $50,000 draw from Mr. Griswold's bonus
to pay for various living expenses, including real estate taxes. Under the
circumstances, the court did not abuse its discretion in assigning the
entire debt to Ms. Griswold.
Next, Ms. Griswold contends the court abused its discretion by failing to
assign to Mr. Griswold a loss from investing the Avista Energy bonus. When
Mr. Griswold first received his bonus from Avista Energy, he deposited it
into a Charles Schwab account and invested it in a municipal bond fund.
The investment lost approximately $16,000 before Mr. Griswold transferred
the investment to a money market account. The trial court found:
There should be no assessment against Mr. Griswold for any alleged loss in
the Charles Schwab account under temporary orders. There is no evidence of
an intentional misappropriation of those funds. The community has
benefited greatly by the husband's otherwise appropriate investment ability
and there is no basis to penalize either party for a loss which occurred.

CP at 335.

Ms. Griswold contends Mr. Griswold alone should bear the $16,000 loss,
because it was his investment decision alone that caused it. She cites no
authority in support of this contention.9 In fact, as the trial court
recognized, Mr. Griswold's financial decisions had profited the community
greatly, and there was no reason why he alone should be held responsible
for a particular loss. The court did not abuse its discretion in failing
to assign this loss separately to Mr. Griswold.
Next, Ms. Griswold contends the court abused its discretion by declining to
assign to Mr. Griswold the money he withdrew from a bank account containing
community funds. During their marriage, the Griswolds maintained a
checking account with Seafirst Bank.10 Shortly after they separated, the
account contained $14,382.70. Within two months, the account balance
dwindled to $304.44. The court found in its oral decision:
The cash with regard to the amount in an account of the parties at the time
of separation having a value of $18,607 alleged by Mrs. Griswold, the Court
finds no basis to sustain that contention. The account was utilized by
both parties, was utilized for the benefit of both parties.

RP at 934-35.

Ms. Griswold contends that, with three exceptions totaling $1,794.90,
the money in the account was used exclusively to pay Mr. Griswold's
expenses after the separation. But the trial court expressly found that
both parties had utilized the account to pay their expenses. This finding
is supported by Mr. Griswold's testimony that some of the money went to Ms.
Griswold's business and 'there are some bills paid out of this, too.' RP
at 856. The court did not abuse its discretion by declining to award the
contents of the account to either party.
Finally, Ms. Griswold has requested an award of reasonable attorney fees on
appeal. RCW 26.09.140 authorizes an appellate court, in its discretion and
'after considering the financial resources of both parties,' to award
reasonable attorney fees. We agree with the trial court that, in light of
the substantial assets available to both parties, an award of attorney fees
in this case is unwarranted.

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Click the case caption above for the full text of the Court's opinion.

Affirmed

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Unavailable

None