          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



CALIFORNIA SHELLFISH COMPANY,                   No. 72336-7-I
INC. d/b/a POINT ADAMS PACKING                                                                 o
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CO.,                                            DIVISION ONE                                 -ACZ.




                     Appellants,                                                      G"3



                     v.                                                                        COPV"



SEAFOOD SALES, INC.; TERRYR.                    UNPUBLISHED OPINION                     wO
                                                                                                   —-to

BERTOSON, an individual; and DOES
1 through 50, inclusive,

                     Respondents.               FILED: August 3, 2015


       Lau, J. —After California Shellfish Company, Inc. obtained a judgment against

Seafood Sales, Inc. and Terry Bertoson, it moved for an order directing the sale of

Bertoson's residential property. Because the trial court erred in denying the motion on

the grounds that Bertoson's wife was not a party to the action, we reverse.

                                         FACTS


       Bertoson is the president and majority shareholder of Seafood Sales. On

November 3, 2010, Bertoson executed an agreement on behalf of Seafood Sales to

purchase seafood on credit from California Shellfish. Seafood Sales failed to make

payments and California Shellfish filed suit against Seafood Sales and Bertoson for

breach of the credit agreement. The caption reads: "CALIFORNIA SHELLFISH
No. 72336-7-1/2



COMPANY, INC. d/b/a POINT ADAMS PACKING CO. v. SEAFOOD SALES, INC.;

TERRY R. BERTOSON, an individual; and DOES 1 through 50, inclusive." Clerk's

Papers (CP) at 1.

      On August 16, 2013, the trial court granted summary judgment in favor of

California Shellfish and entered a judgment of $247,946.41 against "Seafood Sales, Inc.

and Terry R. Bertoson." CP at 105. After failing to collect on the judgment through

garnishment proceedings, California Shellfish sought and obtained an order directing

Bertoson to appear at a supplemental proceedings examination. The examination

revealed that Bertoson and his wife Nancy owned residential property in Shoreline.1

Bertoson testified the property was subject to $440,794 in liens and encumbrances

senior to the judgment. The trial court issued a writ of execution against the property

and appointed an appraiser. The appraiser valued the property at $810,000.

       California Shellfish moved for an order directing the sale of the property.

Bertoson opposed the sale, arguing that it was community property and could not be

used to satisfy the judgment because neither Nancy nor the marital community were

named in the complaint and the judgment was entered against only Bertoson in his

individual capacity. The trial court denied the motion, finding "the marital community

was not a party to this action." California Shellfish appeals.

                                        DECISION


       California Shellfish contends the trial court erred in denying the motion to order

the sale of the Bertosons' property. The issues before the court involve questions of



       1We refer to Nancy Bertoson by her first name to avoid confusion.
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No. 72336-7-1/3



law and the standard of review on appeal is de novo. Labriola v. Pollard Group. Inc..

152 Wn.2d 828, 832, 100 P.3d 791 (2004).

       It is well-settled that "[a] debt incurred by either spouse during marriage is

presumed to be a community debt." Oil Heat Co. of Port Angeles, Inc. v, Sweeney. 26

Wn. App. 351, 353, 613 P.2d (1980). Parties do not dispute that Bertoson and Nancy

were married at the time the judgment was entered. Accordingly, the judgment against

Bertoson is presumed to be against the marital community.

       Bertoson asserts broadly that "[a] party seeking a judgment which it intends to

enforce against the assets of the marital community must plead and prove community

liability." Br. of Resp't. at 3. This is incorrect. It is the "party seeking to avoid the

obligation" that bears the burden of overcoming this presumption by clear and

convincing evidence. Warren v. Washington Trust Bank. 19 Wn. App. 348, 360, 575

P.2d 1077(1978).

       Bertoson did not present any evidence to overcome the presumption that the

judgment is a community obligation. Bertoson argued merely that community property

could not be used to satisfy the judgment because neither Nancy nor the marital

community were named in the complaint. This argument is not persuasive because a

marital community is not "a legal person separate and apart from the members

composing the partnership or community," nor is "the property acquired during

marriage . . . owned by a legal personality distinct from the spouses composing the

community." deElche v. Jacobsen. 95 Wn.2d 237, 243, 622 P.2d 835 (1980). "A

judgment against only one spouse will presumed to be a community liability, and the

judgment may be enforced against the community even though only one spouse was

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named as a defendant and served." 14A Karl B. Tegland, Washington Practice: Civil

Procedure § 35:14, at 501 (2d ed.2009).

       Because the judgment against Bertoson is a judgment against the marital

community whether or not the marital community was named in the complaint, the trial

court erred in denying California Shellfish's motion to direct the sale on the grounds that

"the marital community was not a party to this action." Consequently, we reverse the

trial court's order denying the motion on this basis and remand for further proceedings.

       California Shellfish requests attorney fees and costs on appeal pursuant to RAP

18.1(a), which authorizes an award where "applicable law grants to a party the right to

recover reasonable attorney fees or expenses on review." California Shellfish cites to

the credit agreement, which provides that Seafood Sales and Bertoson shall "pay all

costs, expenses and attorney's fees incurred" in collection proceedings. As the

prevailing party on appeal, California Shellfish is awarded reasonable attorney fees and

costs on appeal, subject to compliance with RAP 18.1.




WE CONCUR:




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