                                                                           ,

                                                                      FILED
                                                              COURT OF APPEALS OW I         '
                                                                                                Is.r• rii•I •
                                                               STATE OF WASHINGTON
                                                                                            9     "4"




                                                                2018 APR 23 At 9:t,2




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION ONE

In the Matter of the Marriage of                No. 75846-2-1
MICHAEL F. GULIZIA

                        Respondent,
                                                UNPUBLISHED OPINION
            and

SVETLANA B. LAUREL

                        Appellant.              FILED: April 23, 2018

      SCHINDLER, J. — Svetlana Laurel appeals the dissolution decree, findings of fact

and conclusions of law, and the order granting reconsideration. Laurel argues the court

erred in characterizing the house as community property and denying her request for an

equitable lien and a disproportionate share of the community property. Laurel also

contends the court did not have the authority on reconsideration to order the sale of the

house. We affirm in all respects.

Marriage

      Svetlana Laurel has a degree in computer science. Michael Gulizia has a degree

in aerospace engineering. The couple met while working at the Boeing Company in

Houston, Texas and began dating in January 1998. Gulizia and Laurel married on

December 31, 2001 and have two children, N.G.G. and N.M.G.
No. 75846-2-1/2

        162004, Gulizia and Laurel relocated to California to Work for Boeing. Laurel

sold her house in Houston and they bought a house in Costa Mesa, California. In 2005,

Gulizia and Laurel relocated to work for Boeing in Washington and bought a house in

Kent.

        Gulizia and Laurel separated in January 2015. On August 6, Gulizia filed a

petition for dissolution. The court entered a temporary parenting plan designating

Laurel the residential parent. The court appointed Lynn Tuttle to conduct a parenting

evaluation. Tuttle recommended the court designate. Gulizia as the residential parent.

Trial

        The two-day trial began on August 17, 2016. The primary dispute was

designation of the residential parent. Laurel challenged the recommendation of the

parenting plan evaluator to designate Gulizia as the residential parent. Laurel also

requested the court distribute the home and bank accounts based on the "56/44 income

disparity between the parties."

        Laurel asserted she was entitled to an equitable lien of $95,000 for her

contribution of separate funds to purchase the Kent house. Laurel claimed there was

"no equity in the house after you take into account the down payment that came from

her separate property funds." Laurel's attorney told the court that neither party had

obtained a real estate appraisal and suggested the court could order an appraisal at the

end of trial. The court rejected the suggestion, stating, "I'll make a ruling based on the

evidence that's presented to me."

        Several witnesses testified at trial, including Tuttle, Laurel, and Gulizia. The

court admitted into evidence more than 30 exhibits, including a Wells Fargo Bank

account statement, a BECU account statement, two Citibank account statements,

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No. 75846-2-1/3

documents related to the sale of the Houston house, the purchase agreement for the

Costa Mesa house, the mortgage statement for the Kent house, Boeing retirement and

pension plan statements for Gulizia, and Ameritrade and T. Rowe Price investment

statements for Gulizia. Laurel did not present "any documentation" or evidence about

her retirement or investment accounts at trial.

      There was limited trial testimony about the house and property distribution.

Laurel testified she used "only [her] sole funds" to buy the house in Houston and

received "about $90,400" when she sold the house. Laurel said they used the funds

from the house in Houston to buy the Costa Mesa house and the house in Kent.

       Laurel testified about necessary repairs for the house in Kent. Laurel said the

"water damage needs to be fixed," the carpets and hardwood floors need to be

replaced, there are holes in the walls, and the house "needs to be repainted inside and

out." Laurel obtained repair estimates to replace the roof, 28 double-pane windows, the

concrete porch and driveway, a wood deck, and the fence. Laurel testified that as of

August 16, 2015, the balance on the outstanding mortgage on the Kent house was

$145,762.

       Laurel admitted she did not "allow [Gulizia] to have the home appraised." Instead

of a real estate appraisal, Laurel sought to introduce a "comparative market analysis"

prepared by two realtors with a "suggested list price for the house." The court denied

admission of the exhibits but allowed Laurel to testify as to the value of the house.

Laurel testified the house "could bring about $400,000, but all of these repairs need to

be done prior to that." Laurel testified she was not "planning to stay in the house" and

asked the court to "include the cost of sale in the reduction of valuation" because the

sale "will eventually happen."

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No. 75846-2-1/4

       Laurel testified that the two Citibank accounts with community funds totaled

approximately $363,000 and $395,000. Laurel admitted she transferred community

funds of $40,000 to her separate Wells Fargo account and in "late 2015-2016," Laurel

purchased a 2015 Lexus RX450 hybrid for $55,000. Laurel testified that she has a

Boeing 401(k) retirement fund, a Boeing pension plan, "Ameritrade accounts," and one

E*TRADE account but did not present any evidence on valuation. Laurel asked the

court to distribute all the property "[a]ccording to income."

       Gulizia did not dispute Laurel owned the house in Houston. Gulizia testified he

and Laurel bought the Costa Mesa house with "a hodgepodge of the proceeds from the

Houston house" and joint funds. Gulizia said they used proceeds from the Costa Mesa

house to buy the house in Kent.

       Gulizia testified that an upstairs shower in the Kent house "leaked into the

butler's pantry" in 2013 and the "hardwood floor and the walls were damaged." Gulizia

said they received "6 or $7,000" from the home insurance company but Laurel would

not agree to hire the contractor. Gulizia testified that other than the floors and walls, the

house did not "need any other repairs." Gulizia testified that the work estimates Laurel

obtained are "home improvements... not necessary to sell the house." Gulizia wanted

to "be bought out for [his] share of the equity" in the Kent home.

       Gulizia said he attempted to obtain an appraisal of the home but Laurel refused

to allow the "appraiser in the house." Gulizia introduced a Zillow estimate of the value

of the Kent house. The court denied admission of the exhibit but allowed Gulizia to

testify about the proposed value. Gulizia testified that if sold as is, the value of the

home is $455,000. Gulizia submitted a Kelley Blue Book value for his 2008 Toyota

Sienna. Gulizia testified that he has savings accounts at BECU.

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No. 75846-2-1/5

       During closing argument, Gulizia asked the court to follow the recommendation

of the parenting evaluator and designate him the residential parent. Gulizia argued

Laurel did not "overcome the community property presumption" that the Kent house is

community property. "There is zero evidence as to what they sold the California home

for, zero evidence as to what they bought the Washington home for,[and] nothing to

show how the money moved along." Gulizia asserted Laurel tried to "deflate the home's

value" with optional maintenance and repair estimates. Gulizia asked the court to order

Laurel to pay "one half of the... net value of the home."

       Laurel argued the court should maintain "the current plan" and designate her as

the residential parent. Laurel asserted the children have "thrived with this existing plan"

because Laurel is the "sole provider of the educational benefits" and is "the sole person

.. . involved in doing all of these activities." Laurel argued she was entitled to an

equitable lien of approximately $90,000 and the court should divide the assets on a

"disproportionate basis" because there is a "disparate amount of income."

       The court entered a dissolution decree, findings of fact and conclusions of law, a

parenting plan, and a child support order. The court designated Laurel the residential

parent. As agreed to by the parties, the court awarded Laurel the Kent house. The

court found the Kent house was a community asset and Laurel did not carry her burden

of establishing the right to an equitable lien.

       The division of real property described in the order is fair, just, and
       equitable. Both spouses agreed that the court should award the Kent
       Property to the Respondent. And in their proposed orders, both spouses
       proposed the language that the court uses in section 8.2 of the Final
       Divorce Order.




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No. 75846-2-1/6

       The division of community personal property described in the final order is
       fair, just, and equitable. In their proposed orders, both spouses proposed
       the property division that the court makes in sections 8 and 9 of the Final
       Divorce Order.

The court ordered Laurel to "refinance or sell the family home" and pay Gulizia

$148,983 "to buy[him] out of his equity" in the residence.

       The court awarded Laurel the two Citibank accounts and the Wells Fargo Bank

account. The court awarded Gulizia the BECU bank accounts. The court awarded

each party their separate retirement, pension, and investment accounts. The court

awarded Gulizia the 2008 Toyota Siena and Laurel the 2015 Lexus RX450 hybrid.

       Laurel filed a motion for reconsideration. Laurel argued the order to pay Gulizia

$148,983 was not supported by the evidence. Laurel asserted the court ignored her

contribution to the equity in the house, did not take into account the need for

"substantial" repairs to the house, and erred in ordering an equal distribution of the

community funds. Laurel argued the court should use the income from the 'Washington

Child Support Schedule Worksheet" to distribute the community property. In response,

Gulizia argued Laurel did not overcome the presumption that the house community

property and the evidence supported the court's "50/50 division of the assets."

       The court granted reconsideration in part. The court rejected the argument that

Laurel was entitled to an equitable lien.

      [Laurel] did not submit evidence of(1) whether they made a down
      payment when they bought the Kent house,(2)the amount of any down
      payment, or(3) what funds they used to make any down payment. The
      law presumes that the Kent house is community property and there is not
      competent trial evidence to overcome this presumption.

The court also rejected the argument that it erred in ordering a 50/50 distribution of

community assets. The order states the court considered the factors set forth in RCW


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No. 75846-2-1/7

26.09.080 in making a just and equitable distribution of property. However, based on

Laurel's testimony that she planned to sell the home and move to south Seattle, the

court concluded the "most just and equitable resolution is for the house to be sold and

the proceeds split between the parties." The court ordered Laurel to sell the house by

March 1, 2017. The order states each party shall receive "50 percent of the net

proceeds." Laurel appeals.

Adequacy of the Record

       Laurel has the burden of presenting an adequate record for review. In re

Marriage of Rhinevault, 91 Wn. App. 688, 692, 959 P.2d 687(1998). As an appendix to

her brief, Laurel attaches trial exhibit 29, "Gulizia - Property and Debt Chart - 7/15/16."

Exhibit 29 lists "Property," including the value of four bank accounts, the 2008 Toyota

and the 2015 Lexus, and the Kent house. The record reflects the court admitted over

30 exhibits, including many financial documents. But Laurel did not designate any

exhibits. The failure to designate exhibits and provide an adequate record

compromises our review on appeal. In re Parentage & Custody of A.F.J., 161 Wn. App.

803, 806 n.2, 260 P.3d 889(2011). Because we are unable to review the exhibits

admitted at trial, our review is limited to the trial record. RAP 9.6; Happy Bunch, LLC v.

Grandview N., LLC, 142 Wn. App. 81, 90, 173 P.3d 959 (2007).

Characterization of Property

       Laurel argues that the court abused its discretion by characterizing the Kent

residence as "wholly community property." Laurel asserts she is entitled to an equitable

lien for her contribution of separate funds.

       In a dissolution action, all property, both separate and community is before the

court for distribution. In re Marriaqe of Farmer, 172 Wn.2d 616, 625, 259 P.3d 256

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No. 75846-2-1/8

(2011). The court determines the character of property at the time of acquisition. In re

Estate of Borghi, 167 Wn.2d 480, 484, 219 P.3d 932(2009). A party may rebut the

community property presumption by offering clear and convincing evidence that the

property was acquired with separate funds. In re Marriage of Chumbley, 150 Wn.2d 1,

5, 74 P.3d 129(2003). "[R]eal property purchased with both community funds and

clearly traceable separate funds will be divided according to the contribution of each."

Chumbley, 150 Wn.2d at 8.

       The court's characterization of property as separate or community presents a

mixed question of law and fact. In re Marriage of Schwarz, 192 Wn. App. 180, 191-92,

368 P.3d 173(2016). We review factual findings supporting the characterization for

substantial evidence. In re Marriage of Mueller, 140 Wn. App. 498, 503-04, 167 P.3d

568 (2007). "So long as substantial evidence supports the finding, it does not matter

that other evidence may contradict it." In re Marriage of Burrill, 113 Wn. App. 863, 868,

56 P.3d 993(2002). The ultimate characterization of property as community or

separate is a question of law we review de novo. Mueller, 140 Wn. App. at 503-04.

        The court found Laurel "did not submit evidence of(1) whether they made a

down payment when they bought the Kent house,(2)the amount of any down payment,

or(3) what funds they used to make a down payment." Substantial evidence supports

the court's characterization of the Kent house as community property. There is no

dispute that Laurel owned the Houston house as her separate property. Laurel testified

they used "the $90,000 that[she] got in the Houston house" to purchase the Costa

Mesa house. Laurel said the purchase agreement for the Costa Mesa house includes a

"reference" to a bank account that was "in [her] name only." Laurel testified the




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No. 75846-2-1/9

separate funds "eventually rolled into the house in Kent." But Laurel did not provide any

documentation to support her.testimony.

       Laurel refers to exhibits admitted at trial related to the purchase of the Costa

Meta house but she did not submit evidence about the amount or source of any down

payment made on the Kent house. Because Laurel did not designate these exhibits, we

accept the court's findings as verities on appeal. Happy Bunch, 142 Wn. App. at 90.

      "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[s]he acquired it from separate funds and a showing that
      separate funds were available for that purpose."

Schwarz, 192 Wn. App. at 189(quoting Berol v. Berol, 37 Wn.2d 380, 382, 223 P.2d

1055 (1950)).

       Because the findings support the conclusion that Laurel did not overcome the

community property presumption, the court did not abuse its discretion in denying

Laurel's request for an equitable lien.

Valuation of Property

       Laurel contends substantial and unrebutted evidence supports her testimony on

the value of the Kent house. Laurel argues she presented evidence that the Kent house

"is in dire need of repairs" that reduce the fair market value. Laurel contends her

testimony that the house "could bring about $400,000" is evidence of value. Laurel

claims Gulizia's testimony does not support the value of the Kent house as $455,000.

       Laurel's argument ignores the testimony of Gulizia that not all of the repairs are

necessary. An owner may testify as to the value of his property. Worthington V.

Worthington, 73 Wn.2d 759, 763, 440 P.2d 478(1968). We defer to the trier of fact on

issues of conflicting testimony and the credibility of a witness. Burrill, 113 Wn. App. at


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No. 75846-2-1/10

863. Here, both parties testified as to the value of the house and we will not substitute

our judgment for the trial court on a factual dispute over the valuation of property.

Worthington, 73 Wn.2d at 762.

Distribution of Property

       Laurel contends the court erred in ordering an equal distribution of the net

proceeds from the sale of the Kent house. Laurel also contends she is entitled to a

disproportionate share of the community assets based on income. In a dissolution

proceeding, the trial court has "broad discretion to make a just and equitable distribution

of property based on the factors enumerated in RCW 26.09.080." In re Marriage of

Wright, 179 Wn. App. 257, 261, 319 P.3d 45(2013).

       We review the distribution of assets for manifest abuse of discretion. In re

Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102(1999). A just and equitable

division "'does not require mathematical precision, but rather fairness, based upon a

consideration of all the circumstances of the marriage, both past and present, and an

evaluation of the future needs of parties.'" In re Marriage of Larson, 178 Wn. App. 133,

138, 313 P.3d 1228(2013)(quoting In re Marriage of Crosetto, 82 Wn. App. 545, 556,

918 P.2d 954(1996)). In determining whether the distribution was just and equitable,

we review the overall distribution of property. In re Marriage of Rockwell, 141 Wn.2d

235, 254-55, 170 P.3d 572(2007). "The trial court is in the best position to assess the

assets and liabilities of the parties and determine what is 'fair, just and equitable under


        RCW 26.09.080 requires the trial court to consider 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.


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No. 75846-2-1/11

all the circumstances.'" Brewer, 137 Wn.2d at 769(quoting In re Marriage of Hadley,

88 Wn.2d 649, 656, 565 P.2d 790(1977)).

       The record shows the court considered the factors under RCW 26.09.080.

Because Laurel did not designate the exhibits admitted at trial, we cannot review the

financial information that was before the court. Therefore, we accept as a verity on

appeal the court finding that the distribution of real and personal property is "fair, just,

and equitable." See Happy Bunch, 142 Wn. App. at 90. Further, it is the overall division

of property that must be fair, just, and equitable. But here, the record on appeal does

not allow us to review the division of property in its entirety. The testimony established

that Gulizia and Laurel each had retirement and pension accounts and separate

investment accounts. Gulizia presented documentation of the value of his retirement

and investment accounts but Laurel did not submit any documentation or testify as to

the value of her accounts. Without a complete record, we conclude Laurel cannot show

manifest abuse of discretion in the distribution of property.2

Sale of Kent House

        The trial court has the authority to order the sale of the family residence in a

dissolution to achieve an equitable property distribution. In re Marriage of Foley, 84 Wn.

App. 839, 844, 930 P.2d 929 (1997); In re Marriage of Sedlock, 69 Wn. App. 484, 503,

849 P.3d 1243(1993).

        Citing High v. High, 41 Wn.2d 811, 252 P.2d 272(1953), and Arneson v.

Arneson, 38 Wn.2d 99, 227 P.2d 1016 (1951), Laurel contends that absent consent of

        2 In her reply brief and for the first time on appeal, Laurel argues she is entitled to a
disproportionate distribution of the assets because she suffers from a chronic illness, fibromyalgia. We
will not address an argument raised for the first time on appeal in a reply brief. See Stetter v. Dep't of
Labor & Indus., 147 Wn.2d 702, 711 n.5, 57 P.3d 248(2002)(declining to reach an issue that was not
raised or briefed below); King v. Rice, 146 Wn. App. 662,673 n.30, 191 P.3d 946(2008)(declining to
consider argument and authority made for the first time in a reply brief).


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No. 75846-2-1/12

the parties, the trial court did not have jurisdiction to order the sale of the Kent house.

High and Arneson are distinguishable.

       In High, the record showed "the property had been bought for speculation and

was worth little now but might increase in value later." ,High, 41 Wn.2d at 823. The

court held that under the circumstances, the trial court abused its discretion in ordering

the sale of the three separate tracts of land. High, 41 Wn.2d at 823. In Arneson, the

court held the trial court did not have jurisdiction in the dissolution proceeding to order

the sale of property for the benefit of creditors. Arneson, 38 Wn.2d at 101.

      [T]he court has no power to compel a liquidation for the benefit of creditors
      as an incident to a divorce decree. Nor can any of the statutory
      proceedings, having that as its purpose, be consolidated with a divorce
      action for trial.

Arneson, 38 Wn.2d at 101.

       Laurel also argues the court abused its discretion by ordering the sale of the

house. We review the court's decision to order the sale of the family residence for

abuse of discretion. Sedlock,69 Wn. App. at 504-05. Laurel contends the court

abused its discretion because the parties did not have an opportunity to address sale of

the Kent residence. The record does not support her argument. At trial, Laurel testified

she was not "planning to stay in the house." Laurel testified she retained a real estate

agent and was "actually looking" for a new home in the south end of Seattle. Laurel

said she wanted to move to the south end of Seattle and the sale would "eventually

happen."

       Consistent with the testimony at trial, the court concluded the "most just and

equitable resolution is for the house to be sold and the proceeds split between the




                                              12
No. 75846-2-1/13

parties." The court order states specifically:

      The Court reaches this determination after considering all relevant factors,
      including those in RCW 26.09.080 and including Laurel's testimony that,
      with the help of a real estate agent, she is looking to sell the Kent house
      and move to south Seattle, a sale "that will eventually happen."

Because substantial evidence supports the decision, the court did not abuse its

discretion by ordering Laurel to sell the Kent residence.

Attorney Fees

       Laurel requests attorney fees and costs under RAP 18.1. Laurel only requested

attorney fees in the last sentence of her brief. RAP 18.1 "requires more than a bald

request for attorney fees on appeal." Wilson Court Ltd. P'ship v. Tony Maroni's, Inc.,

134 Wn.2d 692, 710 n.4, 952 P.2d 590(1998). We decline to award Laurel fees on

appeal.

       We affirm.




WE CONCUR:                                            VA\NES1_,2           1



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