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

In the Matter of the Marriage of         )       No. 75524-2-1
                                         )
NELLY Y. CAIRO,                          )
                                         )
                     Respondent,         )
                                         )
          and                            )
                                         )
RONALD CAIRO,                            )       UNPUBLISHED OPINION
                                         )
                     Appellant.          )       FILED: January 16, 2018
                                         )

       VERELLEN, C.J. — In dissolution proceedings, trial courts must determine
the separate or community character of marital property and make a just and

equitable distribution of that property. Ronald Cairo contends the trial court

mischaracterized property his wife inherited during their marriage and, as a result,

inequitably divided the marital property. We disagree and affirm.

                                       FACTS

       Nelly and Ronald Cairo married in 1985 and separated in 2014. Nelly

petitioned to dissolve the marriage, and the matter proceeded to trial. The court

later entered a decree of dissolution and findings of fact and conclusions of law.

The court found as follows:
No. 75524-2-1/2



            1.     The Petitioner, Nelly Cairo, is 80 years old. The
      Respondent Ronald Cairo is 58 years old. ... This is a thirty to thirty-
      one year marriage.


              3.     The court, in dividing the property in this case is guided
      by the case In re Marriage of Rockwell, 141 Wn. App. 235 (2007).
      That case has facts very similar to the facts in this case. In
      Rockwell, the court established the principal that when you are
      dividing property, the court should look at the nature and extent of
      the community property, the nature and extent of separate property,
      the duration of the marriage and the economic circumstances of
      each spouse at the time of division of property. The court must
      make a just and equitable distribution of the property which can
      result in a disparity or differential distribution of the property.

             4.     Here, with respect to the division of assets and debts,
     the court is facing a classic Rockwell scenario. The factors that favor
     this for Ms. Cairo is the fact that she is 80 years old. She has
     hearing issues, health issues and memory issues. Nelly Cairo has
     not worked during the course of the marriage and she does not have
     prospects for working at this time. She currently survives off
     maintenance and her small payment that she gets of $733... from
     SSI and DSHS.

             5.     Mr. Cairo is 57 years old. He has a job as a truck
     driver for a U.S. Mail subcontractor. He has worked all his life in this
     field. He has the ability to earn income and has a small IRA ....
     Throughout the course of the marriage, he was the sole economic
     support for the family.


             7.     The court. .. makes the following findings:

                     1.     Wife inherited the property in Lima Peru. That property
                     has been in her name since 1990s. The Husband claims that
                     the property. . . was a community asset by virtue that he built
                     it up some and he is entitled to an equitable offset of some
                     sort. His testimony was that he helped pay off the property
                     by buying out the rest of the heirs to the tune of $20,000
                     some time between 1994 and 1998. Husband also claimed
                     that he paid $200 a year in taxes on the property and that he




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                       worked at least for one of the heirs for at least 90-days in
                       order to purchase the property. The evidence regarding this
                       is also that he indicated that he did this out of his love for his
                       wife.

                       2.    The Lima, Peru property is the Wife's separate property
                       by inheritance. There is no authority to provide Husband an
                       offset because the Wife provided him companionship and
                       housekeeping, which has a value. Therefore, the Lima, Peru
                       home is Wife's separate property. . . .



              21. In determining the. .. spousal maintenance, the court
       looked at the home in Lima, Peru as an asset available for her
       support. Whether she sells it or not, is her choice but it will not be
       used as leverage against the Husband's maintenance. The value of
       the Lima property is roughly $500 per month if the property was sold
       for $60,000 and available to her for a 10-year period.

              22. The court finds that this division of property is fair and
       equitable and places the parties basically on an equal level.111

       Ronald appeals.

                                      ANALYSIS

       Ronald contends the trial court mischaracterized the Peru property and,

consequently, inequitably divided the marital property. We review a trial court's

characterization of property de novo.2 We review the findings underlying its

characterization for substantial evidence3 and treat unchallenged findings as

verities.4 A trial court's division of marital property will be reversed only for


       I Clerk's Papers(CP)at 14-16(emphasis added).
       2 In re Marriage of Skarbek, 100 Wn. App. 444, 447, 997 P.2d 447(2000).

       3 Id.

       4   In re Marriage of Brewer, 137 Wn.2d 756, 766, 976 P.2d 102(1999).



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manifest abuse of discretion.5 For the reasons set forth below, we conclude

Ronald fails to demonstrate error in the trial court's characterization and division of

the parties' property.

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

at the time of acquisition."6 Property acquired during marriage is presumptively

community property.7 This presumption "is rebuttable by establishing that the

acquisition fits within a separate property provision."5 Property acquired during

marriage by gift or inheritance is separate property.9 "Once the separate character

of property is established, a presumption arises that it remained separate

property."19 A party seeking to rebut a presumption of either community or

separate property must do so with clear and convincing evidence."

       Ronald's principal argument on appeal is that the trial court erred in

characterizing the Peru property as Nelly's separate property. He contends the

court failed to apply the presumption that property acquired during marriage is



       5 In re Marriage of Zier, 136 Wn. App. 40,45, 147 P.3d 624 (2006).
       6 In re Marriage of Schwarz, 192 Wn. App. 180, 189, 368 P.3d 173(2016).

       7   Id.
       8 In re Marriage of Short, 125 Wn.2d 865, 870, 890 P.2d 12(1995).
       9 RCW 26.16.010; Short, 125 Wn.2d at 870-71;(property acquired after
marriage by inheritance is separate property); Estate of Madsen v. Commissioner
of Internal Revenue, 97 Wn.2d 792, 796,650 P.2d 196 (1982, overruled on other
grounds, Aetna Life Ins. Co. v. Wadsworth, 102 Wn.2d 652, 659,689 P.2d 46
(1984).
       '° In re Estate of Borghi, 167 Wn.2d 480, 484, 219 P.3d 932(2009).
       11 Id. at n.4.



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presumed to be community property. But as noted above, property inherited

during marriage is presumed to be separate property. The trial court found that

"the Lima Peru Property. . . is Wife's inheritance and therefore her separate

property."12 Ronald does not dispute that Nelly inherited the Peru property.

Accordingly, any community property presumption was rebutted by the undisputed

fact that Nelly inherited the Peru property. Ronald argues, however, that he

rebutted any separate property presumption with clear and convincing evidence of

commingling after inheritance. He contends the Peru property became community

property when he allegedly used community funds to pay taxes and maintenance

on the property and to buy out other heirs. This contention fails for several

reasons.

       First, Ronald has not provided a sufficient record to determine whether he

preserved this claim below.13 Closing arguments were not transcribed, and

Ronald has not filed a narrative or agreed report of proceedings.14 The clerk's

papers also contain nothing indicating Ronald preserved this contention below. To

the contrary, the court's findings indicate that he sought an equitable offset for his

alleged expenditures on the property but did not seek a recharacterization and

division of Nelly's separate property interest. The court expressly denied Ronald's



       12 CP   at 6.
      "Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368(1988)
(appellants have the burden of providing a sufficient record for review); RAP 2.5(a)
(appellate court need not review claims raised for the first time on appeal).
       14 See   RAP 9.3, 9.4.



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request for an offset, stating "Where is no authority to provide Husband an offset

because the Wife provided him companionship and housekeeping, which has a

value."15 Ronald does not assign error to that conclusion.

      Second, Ronald's claim that "the [Peru] property became commingled by

the use of community funds" is not persuasive.16 Commingling of separate and

community funds may give rise to a presumption that the commingled funds are

community property.17 But the presumption arises only when separate and

community funds are "hopelessly commingled and cannot be separated."15 The

funds must be "so commingled that they may not be distinguished or

apportioned."19 Ronald's alleged payments were not commingled with other funds

and were traceable to specific shares of the property or to expenditures that did

not change the property's character.2°




       15   CP at 14.
       16   Appellant's Br. at 18.
       17   Schwarz, 192 Wn. App. at 190.
       18 Skarbek, 100 Wn. App. at 448.
      19 Schwarz, 192 Wn. App. at 190 (quoting In re Marriage of Pearson-
Maines, 70 Wn. App. 860, 866, 855 P.2d 1210 (1993)).
      29 Cf. Borghi, 167 Wn.2d at 491 n.7(use of community founds to pay for
improvements may give rise to an equitable lien, but such later actions do not
change the property's character from separate to community).



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       Third, Ronald provided no receipts, bank statements, or other proof tracing

his alleged payments on the property to particular funds. He thus failed to rebut

the separate property presumption with clear cogent and convincing evidence.21

       Finally, Ronald's claim requires findings the court did not make.

Specifically, while the court entered findings summarizing Ronald's testimony

regarding the alleged payments, it made no findings accepting or rejecting that

testimony. There are no findings regarding the the credibility of the testimony or

whether it amounted to the clear, cogent and convincing evidence necessary to

rebut the separate property presumption. In the absence of findings on a material

disputed issue, the trial court is deemed to have found against the party having the

burden of proof.22 Here, Ronald bore the burden of rebutting the separate

property presumption. Accordingly, the absence of findings is deemed to be a

finding against him.23 Therefore, his theory that he used community funds to buy

out other heirs, and to pay taxes and maintain the property fails.

       Ronald concludes that "the Peruvian property should have been considered

a part of the community property and thereby a part of the estate that was



      21  Morgan v. Brinev, 200 Wn. App. 380, 390, 403 P.3d 86(2017)(self-
serving declarations were insufficient to rebut presumption of community property;
party must trace payments to funds of a particular character 'with some degree of
particularity")(quoting Berol v. Berol, 37 Wn.2d 380, 382, 223 P.2d 1055 (1950)).
       22 Tate-Reynolds Co. v. Inland Metal Fabricators, Inc., 36 Wn. App. 146,
149, 672 P.2d 765(1983).
       23 See Morgan, 200 Wn. App. at 390-91 (absence of finding that husband
rebutted presumption of community property with clear and convincing evidence
would be deemed a finding against him on that issue).



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considered [and divided] by the trial court."24 He claims that [i]n committing error

by not properly characterizing the marital property, the court necessarily could not

properly evaluate the distribution of the marital property."25 Because Ronald has

not demonstrated error in the court's property characterization, this contention

fails.

         Last, Ronald claims the trial court erred in ruling the Wells Fargo account

containing $3,600 "was his separate property that required an offset in the division

of the community property."26 Ronald misinterprets the court's decision.

         The court found:

         The Husband gets to keep the $3,600 he took for expenses at the
         beginning [of] the separation. In Washington State, as a community
         property state, when one party takes community assets there is a right of
         reimbursement to the other side. One way of dealing with this is simply to
         say that the Husband gets to keep that money especially when there are
         small dollars involved. That is what the court is doing here and Husband is
         awarded that $3,600 which he has already received.[27]

         Nelly maintains that she sought half of the Wells Fargo account "as her

share of that community bank account," but "[t]he court simply declined to give any

of that money to [her].. . because these were 'small dollars.'"28 Nelly's

interpretation of the court's decision is supported by the plain language of the

finding, and Ronald does not dispute her interpretation in his reply brief.


         24   Appellant's Reply Br. at 2.
         25   Id. at 8.
         26 Appellant's   Br. at 2.
         27 CP    at 14(emphasis added).
         28   Resp't's Br. at 9-10.




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       Nelly requests attorney's fees and costs based on her need and Ronald's

ability to pay.29 We conclude the parties will bear their own fees and costs on

appeal.

      Affirmed.




WE CONCUR:




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       29   RCW 26.09.140.



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