 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
MARGARET ELLEN MORGAN, a	)
Washington individual,	  )                            No. 74657-0-1
                                              )
                       Respondent,	)                  DIVISION ONE
                                              )
               V.	                            )       UNPUBLISHED OPINION
                                              )
NICKY WARREN BRINEY, a	)
Washington individual,	 )
                                              )
                       Appellant.	)                   FILED: June 26, 2017


       TRICKEY, J. — Nicky Briney appeals the trial court's distribution of property

after the termination of his committed intimate relationship (CIR) with Margaret

Morgan.' Briney argues that his CIR with Morgan began in 1999 not 1995 because

she moved out of their shared residence for eight months, returning in March 1999.

Because the parties moved into a jointly-selected home in 1995 and cohabitated

for a decade after Morgan moved back, it was not error to conclude that the CIR

had begun by 1995.

       Briney also maintains that the trial court erred by characterizing the home

he and Morgan lived in as a community asset.2 The house was presumptively

community property because it was acquired after the CIR began. Because Briney

did not meet his burden of showing it was purchased with his separate funds, we



' In the past, courts referred to CIRs as "meretricious" relationships, but, because the term
has a negative connotation, courts now use the term "committed intimate relationship,"
which "'accurately describes the status of the parties and is less derogatory."' Olver v.
Fowler, 161 Wn.2d 655, 657 n.1, 168 P.3d 348 (2007) (quoting Olver v. Fowler, 131 Wn.
App. 135, 140 n.9, 126 P.3d 69 (2006)).
2 Although we recognize that, by definition, there is no "community" property outside a
marriage, we refer to the property as community property because property acquired
during a CIR is "characterized in a similar manner as income and property acquired during
marriage." Connell v. Francisco, 127 Wn.2d 339, 351, 898 P.2d 831 (1995).
No. 74657-0-1 / 2

affirm the court's award to Morgan based on her interest in the value of the house.

       Finally, Briney argues that the court erred by awarding Morgan an interest

in the increase in value of his separate property. Because Morgan did not show

that the increase in value was due to community efforts, we reverse that award.

                                           FACTS

       Briney and Morgan began a romantic relationship in 1987.3 In the early

years of their dating, Morgan moved to California to work for her family's business.4

While Morgan lived in California, both Morgan and Briney "remained commifted to

the relationship."5 Morgan visited Seattle regularly and stayed with Briney in his

apartment, they talked by phone, and they "exchanged loving correspondence.116

       In 1990, Morgan returned to Seattle. She and Briney decided to live

together. Briney proposed to Morgan in 1991. He gave her an engagement ring,

which she kept for the next 20 years.

       In 1992, after Briney's adult daughter came to live with him, Morgan moved

into her own apartment nearby. Morgan and Briney continued to date but saw

each other less frequently. During this time, Briney helped Morgan's family while

they were experiencing a financial crisis.




3 Briney does not assign error to any of the court's findings of fact except its "findings that
Ms. Morgan's services contributed to the increase in the value of the house." Br. of
Appellant at 20. Accordingly, the remaining findings of fact are verities on appeal. Davis
v. Dep't of Labor & Indus., 94 Wn.2d 119, 123, 615 P.2d 1279 (1980).
4 The trial court gives 1998 as the date for this move. Both parties give the date for
Morgan's move to California as 1988. Br. of Appellant at 6; Br. of Resp't at 6. They do
not mention that the trial court dated the move as 1998. Given that the court also found
that Morgan moved back from California in 1990, we assume that the 1998 date was a
scrivener's error.
5 Clerk's Papers (CP) at 671.
sCPat671.
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No. 74657-0-1 / 3

       In mid-1994, Morgan moved back in with Briney. The two lived together in

an apartment until November 1995. While they lived in the apartment, Briney paid

for the rent, utilities, and most meals. In 1995, Morgan and Briney began looking

for a house to buy.

       In November 1995, they agreed to buy a house in the Queen Anne

neighborhood of Seattle. Briney's name was the only one on the title to the house,

he provided the initial down payment of $74,000, and he was the sole obligor on

the original mortgage.

       The house was "dated" and "'needed work."'7 The parties agreed to

remodel it but took very little action. In 1998, Morgan moved out due to tensions

about the lack of remodeling. , They lived apart for approximately eight months.s

       In the spring of 1999, Morgan moved back into the house.9 The couple took

on three major remodels of the home. Briney paid for the remodels, but Morgan

and Briney collaborated on what should be done. Morgan performed extensive

landscaping and gardening.

       They were "couple-like in all aspects of their lives."10 They had a"two-way

supportive relationship during good times and bad times."" Briney was the

primary earner, and Morgan, though working full-time, took on a greater share of




' CP at 673.
8 The trial court refers to this break as a year and a half break in its findings of fact. Both
parties describe this as a shorter separation in their briefs. Br. of Appellant at 9; Br. of
Resp't at 10. They do not mention that the trial court described the break as longer. We
assume that the parties agree the break was eight months and that the court's description
of it as a year and a half was a scrivener's error.
e CP at 674.
10 CP at 678.
" CP at 678.
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No. 74657-0-1 / 4

the household duties. Morgan "cooked, cleaned, and did [Briney's] laundry

throughout the entire relationship."12

       Unfortunately, Briney became depressed and suicidal during the third

remodel. Even after it was completed, Briney remained in a"severe depressive

state" for years, while Morgan provided unwavering aid and support.13

       In 2013, Morgan moved out after Briney became "very abusive.1114 In August

2013, Morgan initiated this action to divide the property.

       In May 2015, the case proceeded to a bench trial. The court found that

Morgan and Briney were in a CIR from the time they moved into the house in

November 1995 until they broke up in 2013, that the house was a community asset,

and that Morgan was entitled to nearly half the value of the house and half of the

increase in value of some of Briney's separate property.

       Briney appeals.	 '

                                     ANALYSIS

                     Property Distribution at Termination of CIR

       A CIR "is a stable, marital-like relationship where both parties cohabit with

knowledge that a lawful marriage between them does not exist." Connell, 127

Wn.2d 339, 346, 898 P.2d 831 (1995). Washington has a"three-prong analysis"

for disposing of property after a CIR. In re Marriage of Pennington, 142 Wn.2d

592, 602, 14 P.3d 752 (2000). First, the trial court must determine whether a CIR

existed. Penninpton, 142 Wn.2d at 602. Second, if such a relationship existed,



12
   CP at 677.
13 CP at 676.
14 CP at 670, 677.

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No. 74657-0-1 / 5

"the trial court evaluates the interest each party has in the property acquired during

the relationship. Third, the trial court then makes a just and equitable distribution

of such property." Pennington, 142 Wn.2d at 602.

       This court reviews property distribution at the end of a CIR for an abuse of

discretion, but it reviews the trial court's findings of fact for substantial evidence

and the conclusions of law de novo. Soltero v. Wimer, 159 Wn.2d 428, 433, 150

P.3d 552 (2007).

       Briney challenges the trial court's determinations for each prong. He argues

that the CIR came into existence in 1999 not 1995. He argues that the trial court

erred by concluding that the house was a community asset and awarding Morgan

an interest in the increase in the value of his separate property, including the

house. He also argues that the court erred in its division of the community

property. We address each argument in turn.

                                 Exisfence of a CIR

       Briney argues that the trial court erred when it determined that Morgan and

Briney's CIR began in 1995. Specifically, Briney argues that, because Morgan

moved out for eight months between 1998 and 1999, their CIR only began after

Morgan moved back in for the last time in March 1999. Looking at the totality of

the circumstances, Morgan and Briney's CIR continued during the eight months

they lived apart. Therefore, their CIR began at least as early as 1995.

       Five factors are relevant to the existence of a CIR: "continuous cohabitation,

duration of the relationship, purpose of the relationship, pooling of resources and

services for joint projects, and the intent of the parties." Connell, 127 Wn.2d at


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No. 74657-0-1 / 6

346. These factors are not exclusive, and no orie factor is more important than the

others. Pennington, 142 Wn.2d at 602, 605. Ultimately, the existence of a CIR

depends on the facts of each case, and the "factors are meant to reach all relevant

evidence" that may be helpful. Pennington, 142 Wn.2d at 602.

       Here, Morgan and Briney had a relationship of long duration. Briney

concedes that the CIR lasted at least 14 years. They had also continuously

cohabitated for about four years before Morgan moved out in 1998.15 In the

context of an almost 20-year relationship, an eight-month separation is not very

significant. Even while they were not living together, Morgan and Briney "remained

in contact"   and did not date other people.16 This suggests the couple still intended

to be in a romantic relationship.

       The court specifically found that the two "lived and worked together as a

couple" from 1995 to 2013, even during the time they did not cohabitate." The

record supports this finding. Morgan moved only three blocks away, Morgan said

she did not consider them to be breaking up when she moved out, and Briney

continued to pay for the insurance on Morgan's truck during the physical

separation.

       Based on all the relevant evidence, it was not error for the court to conclude

that the CIR had begun by the time they moved into the house in 1995. In fact,

the trial court's findings that Morgan and Briney lived in an apartment continuously


15 The exact dates are not clear from the record, but Morgan moved into an apartment
with Briney in mid-1994 and moved out of the house summer 1998 (approximately eight
months before spring 1999).
16 CP at 674-75. The court did not find Briney's assertions that he had dated other people
during the eight months credible.
" CP at 677.
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No. 74657-0-1 / 7

together for months starting sometime in 1994, looked for a house together in

1995, "agreed to buy" a house that needed work, and moved into that house

together, suggest that the CIR began before Morgan and Briney moved into the

house in Queen Anne in November 1995. Therefore, we disagree with the trial

court's conclusion that the CIR began in 1995, and hold that the CIR began when

Morgan moved into the apartment with Briney in mid-1994.18

                              Property Characterization

       House

       Briney argues that the trial court erred by awarding Morgan a share in the

value of the house. Briney says it was separate property because it was acquired

before the CIR began. Briney also maintains that even if the house was acquired

after the CIR began, he purchased it with his separate funds. The trial court

properly determined that the house was a community asset because Briney

acquired it after the CIR had begun and Briney did not meet his burden to show he

used separate funds to buy it.

       The character of property, whether community or separate, is determined

at the time of acquisition. In re Marriage of Skarbek, 100 Wn. App. 444, 447, 997

P.2d 447 (2000). When the purchase of property includes a real estate contract

or a mortgage, it is "acquired when the obligation is undertaken." In re Estate of



18In its decree and final judgment, the court stated that the CIR began in November 1995,
when the parties moved into the house. Elsewhere it described the CIR as existing more
loosely from 1995 to 2013. Briney notes that Morgan did not challenge the court's
conclusion that the CIR began "at the same time" that Briney purchased the house. Reply
Br. of Appellant at 3-4. But, as Briney has already made clear, the existence of a CIR, or
the date it begins, is a legal conclusion, which this court reviews de novo. As explained
below, this court must determine when the CIR began because the legal character of
assets depend on whether they were acquired before or after the beginning of the CIR.
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No. 74657-0-1 / 8

Borghi, 167 Wn.2d 480, 484, 219 P.3d 932 (2009) (citing Harry M. Cross, The

Community Property Law in Washington, 61 WASH. L. REv. 13, 39 (1986)).

Property acquired before a CIR began is presumed to be separate property;

property acquired during a CIR is presumed to be community property. Skarbek,

100 Wn. App. at 447, 449.19

       But the property retains the character of the funds used to purchase it. If

one partner purchases property with separate funds during the CIR, the property

is that partner's separate property. Merritt v. Newkirk, 155 Wash. 517, 520-21, 285

P. 442 (1930). The party asserting that an asset acquired during the CIR is

separate property "has the burden of proving it was acquired with separate funds."

Skarbek, 100 Wn. App. at 449. The party must present "clear, cogent, and

convincing evidence that the asset falls within a separate property exception."

Burgess v. Crossan, 189 Wn. App. 97,103, 358 P.3d 416 (2015). The party cannot

meet this burden by "mere self-serving" declarations that the partner "acquired it

from separate funds and a showing that separate funds were available for that

purpose." Berol v: Berol, 37 Wn.2d 380, 382, 223 P.2d 1055 (1950). The party

must be able to trace the funds "with some degree of particularity." . Berol, 37

Wn.2d at 382. The absence of a finding of fact on an issue is "presumptively a

negative finding against the person with the burden of proof." Taplett v. Khela, 60

Wn. App. 751, 759, 807 P.2d 885 (1991).

       Here, the trial court determined that the house was "clearly a community




 In a CIR, separate property is not subject to division at the end of the relationship. In re
19
Marriaae of Lindemann, 92 Wn. App. 64, 68-69, 960 P.2d 966 (1998).
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No. 74657-0-1 / 9


asset."20 As explained ab'ove, the CIR began in mid-1994. The house was

purchased in November 1995. Therefore, the house is presumptively a community

asset.

         To rebut that presumption, Briney needed to show that he acquired the

house with separate funds. The parties agree that Briney paid the initial $74,000

down payment, but the trial court's findings of fact do not contain any specific

information about the source of the funds that Briney used to make that down

payment.21 Briney does not trace the funds he used for the down payment to a

specific separate account or show that the funds came from separate income.

         In his briefing, Briney points to his self-serving testimony that it was his

money, Morgan's admission that it was his money, and statements showing his

net worth at the time of acquisition. That is not the type of proof required to satisfy

his burden, and there is no finding that he met his burden with clear and convincing

evidence. Therefore, we presume that the court made a finding against Briney on

this issue. Accordingly, we conclude that the trial court did not err by characterizing

the house as a community asset.

         Briney's Separate Property

         Briney argues that the trial court erred by determining that Morgan had an

interest in the increase in the value of his retirement and investment accounts,

which were his separate property. Specifically, Briney argues that Morgan



20CP at 686.
21 The court describes the money for the down payment as Briney's "funds" in one of its
legal conclusions, but also talks about Morgan's "efforts" to improve the property during
the CIR in the same conclusion. CP at 682-83. Noting that one partner provides a service
or asset is not the same as legally characterizing that service or asset as separate rather
than community.
                                            ~
                                            ~',
No. 74657-0-1 / 10

provided no proof that the increase in the value of these separate assets was

attributable to community efforts. Morgan contends that the trial court did not err

because her support to the community allowed the assets to increase in value and

Briney admitted that his labor increased the value of these assets during the CIR.

We agree with Briney.

       The court presumes that any increase in the value of one party's separate

property during a CIR remains separate. Lindemann, 92 Wn. App. at 69. The

community is not entitled to any increase in value attributable to natural increases

in value or separate efforts, which include rents, issues, profits, and "other qualities

inherent in the business." Lindemann, 92 Wn. App. at 70. But the community "is

entitled to the fruits of all labor performed by either party to the relationship

because each [partner] is the servant of the community." Lindemann, 92 Wn. App.

at 72.22

       Accordingly, the other party can rebut the presumption that the increase in

value is separate by showing with clear and convincing evidence that the increase

is attributable to community efforts, including "community labor or funds."23

Lindemann, 92 Wn. App. at 70. If a party's community labor or funds increases

the value of separate property, the community may be entitled to reimbursement

for that labor. Connell, .127 Wn.2d at 351. When a party has not segregated his

income from separate property from the income he produced by community labor



zz The community in a CIR is entitled to those fruits "to the same extent" as if it was a
marital community. Lindemann, 92 Wn. App. at 72.
23 Lindemann phrases the burden of proof as "direct and positive" evidence, but the

Supreme Court has indicated that we should conclude that burden is equal to the more
general "clear and convincing" standard. 92 Wn. App. at 70; Borghi, 167 Wn.2d at 490.
                                           WO
No. 74657-0-1 / 11

income, and he uses his income to increase the value of separate property, a

presumption arises that "the increase in value belongs to the community."

Lindemann, 92 Wn. App. at 70.

         Here, the trial court awarded Morgan an interest in the increase in value of

Briney's investment and retirement accounts. Morgan would presumptively be

entitled to a share of these assets only if they were community property or if they

were separate property but the increase in their value was attributable to

community efforts. There are no findings of fact to support an award on either of

these grounds.

         Morgan does not appear to dispute that, because Briney acquired these

assets before the CIR began, the assets are presumptively separate. But Morgan

argues that these assets are, nevertheless, presumed to be community assets

because Briney commingled the income he earned during the CIR with the income

earned from the separate accounts. To support her commingling argument,

Morgan cites Briney's statements that he contributed to these accounts during the

CIR and Briney's admissions that he does not know whether the increase in value

of his accounts was due to his contributions or market appreciation. But there was

no finding that Briney comingled the income attributable to community efforts with

income from the separate sources. Accordingly, Morgan was not entitled to a

share in the increase in the value of Briney's separate financial assets on that

basis.

         Thus, in order to rebut the presumption that the increase in value remained

separate, Morgan had to show that it was attributable to community efforts. There


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No. 74657-0-1 / 12

are no trial court findings of fact confirming that she met her burden. Morgan

argues that the trial court's conclusion that "[t]here is only one exhibit from Mr.

Briney dating back to 2006 that demonstrates Mr. Briney received income from his

investment accounts into the bank accounts he would use to support the

community expenses" demonstrates that community efforts increased the value of

Briney's separate property.24 But the fact that Briney used income from his

investment accounts, separate assets, to pay for some community expenses does

not prove that community efforts increased the value of those investment accounts.

          Morgan also relies on Briney's statement that the value of those "'assets

increased during [the] 18 years [of their CIR] because of market appreciation and

the money and work [he] invested in them.11'25 While that may be proof that some

portion of the increase in value was attributable to Briney's efforts during the CIR,

his statement is not sufficient evidence to support awarding Morgan half of the

increase in value of Briney's separate property.

          Finally, Morgan relies on exhibits 76, 77, and 78, which were not admitted

at trial, to show that the commingling of Briney's separate and community assets

and that community efforts increased the value of. Briney's separate property.

Briney argues that this court should not consider those exhibits because the trial

court did not admit them during trial. We agree with Briney.

          This court does not "accept evidence on appeal that was not before the trial

court." State v. Curtiss, 161 Wn. App. 673, 703, 250 P.3d 496 (2011) (citing RAP

9.11).


24
     CP at 685.
25   Br. of Resp't at 41 (quoting CP at 37).
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No. 74657-0-1 / 13

       Here, the trial court listed the exhibits it considered in its findings of fact and

conclusions of law. It did not include exhibits 76, 77, and 78. Briney proposed

admitting these exhibits at trial, Morgan objected, and the court reserved ruling on

whether to admit them. The court also reserved ruling on exhibits 71 and 72, but

admitted them after Briney offered them at trial. Although Briney reviewed exhibits

76, 77, and 78 during his testimony, he never moved to admit them.

       In her brief, Morgan says that the court "referred to" exhibit 78 in its

conclusions of law. In its fifth conclusion of law,.the court mentions that "[t]here is

only one exhibit from Mr. Briney dating back to 2006 that demonstrates Mr. Briney

received income from his investment accounts into the bank accounts he would

use to support the community expenses."26 But the court did not cite any exhibit

by number.27 And, further, the court did not admit exhibit 78 at trial.

       In June 2016, long after the trial had concluded, Morgan moved to have the

trial court include exhibits 76, 77, and 78 in the record for appeal. The court

granted Morgan's motion. This ruling, which specifically orders that the exhibits

be "included in the court record," does not order that the exhibits be admifted into

evidence or indicate that the court considered them at trial.28 Accordingly, we do

not consider these exhibits as evidence on appeal.

        Lastly, Morgan places great emphasis on the "incalculable" contributions



26 CP at 685.
27 When Briney moved for reconsideration, he pointed out that the court referred to an
unspecified exhibit in its findings. In response, Morgan attached the contents of exhibit
78, without labeling it as exhibit 78. Briney objected to its use on the basis that the court
had not admitted it at trial. Briney requested that, if the court were to rely on the information
in exhibit 78 to support its findings and conclusions, he be granted an opportunity to rebut
Morgan's and the court's use of the exhibit.
28 CPat916.

                                              13
No. 74657-0-1 / 14


she made to Briney's mental health during the CIR.29 These contributions show

why equity may favor a generous division to Morgan of the community assets that

were before the court. But the trial court did not link Morgan's efforts to the

increase in value of Briney's separate property and Briney's separate property is

not before the court for distribution. Thus, her efforts do not entitle her to a share

of Briney's separate property.

          We conclude that the trial court erred in awarding Morgan an interest in the

increase in value of the separate property because Morgan did not meet her

burden of proving that any increase in value of Briney's investment and retirement

accounts was attributable to community efforts. Accordingly, we reverse that

award.

                                  Property Distribution

          Value of House

          Briney argues that, even if the trial court did not err by awarding Morgan a

share in the value of the house, the court's award to Morgan for the house was too

high. Briney makes several arguments about what portion of the value of the

house is an increase in the value due attributable to community efforts. Because

the court awarded Morgan a share in the value of the house as a community asset,

not based on the increase in value of separate property, we do not address these

arguments.

          Briney also argues that the court erred by incorrectly assessing the value of

the house. We conclude that the trial court's assessment of the value of the house



29
     Br. of Resp't at 45.
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No. 74657-0-1 / 15

was supported by substantial evidence.

       Although the court labeled its determination of the house's value a

conclusion of law, it is essentially a finding of fact. See Para-Med. Leasing, Inc. v.

Hangen, 48 Wn. App. 389, 397, 739 P.2d 717 (1987). The parties offered

competing valuations of the house, and the trial court chose Morgan's valuation.

The trial court relied on a professional appraisal of the house, completed in the fall

of 2014 to calculate the value. Because the appraisal occurred over a year after

the CIR ended, the court reduced the value of the house by 15 percent. The court

apparently rejected Briney's suggestion that the court determine the value of the

house from an assessment completed in 2013 for tax purposes. We affirm the trial

court's award to Morgan for her share in the value of the house.

       Offset

       Briney contends that the trial court erred by refusing to offset any award to

Morgan by the value of the benefit Morgan enjoyed from using Briney's separate

property during the CIR. We disagree.

       The court is required to make an equitable distribution of community

property at the conclusion of a CIR. Connell, 127 Wn.2d at 351. If the court has

determined that the community should be reimbursed for one party's labor, it "may"

offset that reimbursement "against any reciprocal benefit received by the

`community."' Connell, 127 Wn.2d at 351.

       We conclude that declining to offset Morgan's award was within the trial

court's discretion. Because we reverse the court's award to Morgan of an interest

in Briney's separate property, Morgan's award is a share of the community



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property, not a reimbursement to the community of value added to the separate

property. Regardless, the court identified several reasons why equity would favor

a large award to Morgan, including that Briney had originally included Morgan in

his will, that Morgan was responsible for nursing Briney through a crippling

depression, and that they spent a majority of their adult lives together. The court's

reasons justify its award.

       We affirm the trial court's award to Morgan of an interest in the house, but

reverse its award to her of an interest in Briney's separate financial assets. We

remand for entry of a new judgment.




                                                                   Y,~

WE CONCUR:




                                                                  ~~~~ ~
                                                 _      —	             — ,




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