                                                                                            FILED
                                                                                        CURT O_-. APPEA S
                                                                                                         Q
                                                                                                  t f SI`tt 11

                                                                                      2014 JUN - 3       AM 8: 35

                                                                                       STATE OF WASHINGTON


                                                                                                   DEPUTY
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                      DIVISION II

In re the Marriage of:                                                               No. 43994 -8 -II


DEBORAH SHAWN TANNER,


                                        Appellant,


         v.                                                                     UNPUBLISHED OPINION


ANTHONY DARRELL TANNER,


                                        Respondent.




         LEE, J. —    Deborah Tanner            and   Darrell Tanner' divorced       after   10   years of marriage.    The


sole   issue before the trial         court was       property distribution.       Deborah appeals the trial court' s


property distribution decision arguing that the trial court erred by .(1) mischaracterizing some of

her    separate   property      as    community property, ( 2)           concluding Deborah was not entitled to

equitable reimbursement              for paying community debt           with   funds from her     separate   property, ( 3)


disproportionately distributing               the   property,   and (   4)   denying her request for attorney fees.

Deborah also requests attorney fees on appeal based on both the attorney fees statute, RCW

26. 09. 140,   and   Darrell'   s    alleged   intransigence.     We affirm the trial court and deny Deborah' s

request for attorney fees on appeal.




1 For clarity, we refer to Deborah Tanner by her first name. ' Because Anthony Tanner prefers his
middle name, we refer        to him      as   Darrell. No disrespect is intended.
No. 43994 -8 -II



                                                           FACTS •


          Deborah and Darrell were married on February 14, 2001, and they separated on February

19, 2011.      On       February   23, 2011, Deborah filed a petition for dissolution of marriage and


requested a    just   and equitable       distribution   of   the    parties'   property     and   debts. A trial was held on


August 8, 2012.


          When the parties married, Darrell owned several classic cars and was renting a property

located   on   Chico     Way    NW.    After the marriage, Deborah and Darrell purchased the Chico Way

home with community funds earned from Darrell' s business, Olympic Home Inspections ( OHI).

After they purchased the Chico Way home, Deborah and Darrell used it as a rental property.

Prior to the marriage, Deborah owned a home in Miller Bay Estates.

          After the parties married, Deborah sold her home in Miller Bay Estates and used the

proceeds from the sale as a down payment on a home on Miller Bay Road. Deborah and Darrell

moved     into the Miller       Bay   Road home      and   lived there for the duration              of   their   marriage.   After


purchasing the Miller Bay Road home, Darrell executed a quit claim deed granting Deborah the

Miller Bay Road home as her separate property. Darrell testified that, at the time, the parties had

an understanding that the Chico Way property was his, and the Miller Bay Road property was

Deborah' s.


          Later in the        marriage,    Deborah   and      Darrell took       out   a $   50, 000 Home Equity Line of

Credit ( HELOC)          on   the Miller    Bay    Road home.             Some of the money from the HELOC was

deposited directly into Deborah              and   Darrell'    s    joint checking        account.        Some of the HELOC


money was used to pay off a car bought during the marriage, the mortgage on the Chico Way

property,   and a     VISA      credit card.   Additionally, they lent some of the HELOC money to OHI.

Shortly   after   the   parties separated,     Deborah        sold     the Miller   Bay   Road home.         There were no net

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proceeds from the sale of the Miller Bay Road home after the mortgage and HELOC were paid

off.



          Deborah and Darrell also owned several cars at the time of their separation. One of these


cars was a      1951 Chevrolet       panel van.       Deborah testified that she purchased the Chevrolet panel


van during the marriage, but used her separate funds from an earlier medical settlement.

Deborah asked the court to award her the Chevrolet panel van as her separate property because

she    had   purchased   it   with   her   separate   funds.   Deborah argued that the Miller Bay Road home

was her separate property. She asserted that she was entitled to equitable reimbursement because

the equity in the Miller Bay Road home benefitted the community by securing the HELOC,

which paid off       community debts.            Therefore, Deborah argued that she should be awarded the


Chico Way home as equitable reimbursement for her separate property interest in the Miller Bay

Road home.        Darrell argued that when Deborah was awarded her separate property, notably her

savings and investment accounts, she would have significant liquid assets, and as a result, it


would be just and equitable to award Darrell the Chico Way home and the vehicles that were in

his possession.


          On September 21, 2012, the trial court entered written findings of fact and conclusions of


law,    as well as   the decree      of    dissolution.   The trial court awarded Darrell, among other things,

the    Chico   Way property, his business ( which           was not assigned a value),         and many of the vehicles

in his   possession,     including    the Chevrolet       panel van.    The trial court awarded Deborah, among

other    things, three   specific vehicles, all        financial   accounts    in her   name   totaling $ 94, 013. 40, and

the benefits derived from her previous marriage.


          The trial court concluded that the property distribution was fair and equitable and clearly

stated   that " it   would    make    the    same   distribution   of assets    and   liabilities ...   regardless of the

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characterization of      any    such assets ...     as   community    or separate."    Clerk' s Papers ( CP) at 306.


As to Deborah' s argument that the property distribution should be based on percentage division,

the trial court stated:


                    The Court concludes that consideration of the percentage division of
         values in its division of assets and liabilities is not the preferred method of
         distribution. The Court took into account in its division the fact that [ Deborah] is
         awarded a substantial amount of cash assets by virtue of the IRAs and so
         awarding [ Darrell] the Chico property is               equitable..   The division of the assets is
         fair and equitable.


CP at 306. The trial court declined to award either party attorney fees. Deborah appeals.

                                                         ANALYSIS


         Deborah argues that the trial court erred by ( 1) mischaracterizing the Chevrolet panel van

and   the Miller.    Bay   Road home         as   community property, (        2) refusing to award her equitable

reimbursement, (
                      3) ordering a disproportionate award of property to Darrell, and ( 4) failing to

grant   her   request    for attorney fees.       Here, the trial court' s characterization of the property is

irrelevant because the characterization of the property did not affect the property distribution. As

a matter of law, Deborah isnot entitled to equitable reimbursement from the community estate as

a whole.      And, the trial court did not manifestly abuse its discretion in the overall property

distribution or its decision denying attorney fees. Accordingly, we affirm.

         A trial    court' s   decision in   a marital    dissolution   will   rarely be   changed on appeal.   In re


the Marriage of Buchanan, 150 Wn.                  App.   730, 735, 207 P. 3d 478 ( 2009) (       quoting In re the

Marriage of Williams, 84 Wn.            App.      263, 267, 927 P. 2d 679 ( 1996), review denied, 131 Wn.2d


1025 ( 1997)). "      Appellate courts should not encourage appeals by tinkering with [ dissolution

decisions]"    because the interests of the parties are best served by the finality of the trial court' s

decision.      In   re   the    Marriage     of   Landry,    103    Wn.2d      807,   809,   699 P.2d 214 ( 1985).



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Accordingly, a trial court' s property distribution in a dissolution will be reversed " only if there is

a manifest abuse of        discretion."   In re the Marriage of Muhammad, 153 Wn.2d 795, 803, 108

P. 3d 779 ( 2005).       A spouse challenging a trial court' s decision in a dissolution bears " the heavy

burden   of   showing     a manifest abuse of    discretion   on   the   part of   the trial   court."   Landry, 103

Wn.2d at 809 ( citing In re the Marriage of Konzen, 103 Wn.2d 470, 478, 693 P. 2d 97 ( 1985);

Baker   v.   Baker, 80 Wn.2d 736, 747, 498 P. 2d 315 ( 1972)). "               The trial court' s decision will be


affirmed unless      no reasonable    judge   would   have    reached    the   same conclusion."         Landry, 103

Wn.2d at 809 -10.


A.       CHARACTERIZATION OF PROPERTY


         Deborah argues that the Chevrolet panel van and the Miller Bay Road home were her

separate property because the down payment came from her separate funds and the quit claim

deed clearly establishes the parties' intent to establish the Miller Bay Road home as Deborah' s

separate     property.    However, as Darrell correctly points out, any error in the characterization of

property does not require reversal.

         Failure to properly characterize property may be reversible error, but mischaracterization

of property is not grounds for setting aside a trial court' s property distribution if the division of

the property is fair and       equitable.   In re the Marriage of Gillespie, 89 Wn. App. 390, 399, 948

P. 2d 1338 ( 1997) (      citing In re the Marriage of Shannon, 55 Wn. App. 137, 140, 777 P. 2d 8

 1989)).      Reversal is necessary only when the characterization of the property is crucial to the

distribution.    In re the Marriage of Langham and Kolde, 153 Wn.2d 553, 563 -64 n.7, 106 P. 3d
212 ( 2005) (   citing Shannon, 55 Wn. App. at 142).

         Here, the trial court was explicit in its finding that the characterization of the property did

not affect the distribution of property. The trial court was clear about the reasons for finding that
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the property distribution was fair and equitable, and none of those reasons were based on the

character    of   the property.       Contrary     to Deborah'           s   assertion   that " it is not clear that the trial


court' s   division     of   the assets    would   have been the             same   absent   this   mischaracterization,"   the



record clearly establishes that the characterization of property had no bearing on the trial court' s

property distribution.          Br.   of   Appellant     at   16.       Accordingly, regardless of the legally correct

characterization of the property, characterization of the property is not grounds for reversal in

this case.


B.         EQUITABLE REIMBURSEMENT


           Deborah contends that, under In re the Marriage of Miracle, 101 Wn.2d 137, 675 P. 2d

1229 ( 1984),       she is entitled to equitable reimbursement from the community estate for the

portion     of   her    separate   property    used     to benefit the community.                   Even assuming, without

deciding, that Deborah is correct in her assertion that the Miller Bay Road home is her separate
                                                  Marshall2

property, In       re    the   Marriage      of                     is clear that a party may not seek equitable

reimbursement or an equitable lien against the whole of the community estate, as Deborah

attempts to do here. Accordingly, Deborah' s claim for equitable reimbursement fails as a matter

of law.


           We review the trial court' s decision regarding equitable reimbursement for an abuse of

discretion. Miracle, 101 Wn.2d at 139. In a dissolution proceeding, the trial court is required to

 do equity."        Miracle, 101 Wn.2d            at   139. "   The trial court may impose an equitable lien to

protect    the   reimbursement right when          the circumstances             require   it." Miracle, 101 Wn.2d at 139.


But equitable liens do not apply to property generally and cannot be imposed against the whole

community estate. Marshall, 86 Wn. App. at 882.


2 86 Wn. App. 878, 940 P.2d 283 ( 1997).
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           Deborah relies exclusively on Miracle for her proposition that she is entitled to

reimbursement from the community for the contributions she made through her separate

property.     Specifically, Deborah argues that the equity in her separate property ( the Miller Bay

Road home)         was used          to   benefit the community ( through the HELOC), so she is entitled to


equitable     reimbursement               from the      community         estate.     Although Miracle          establishes   the


availability of an equitable lien to protect a parry' s right to reimbursement, it does not require

one.    101 Wn.2d at 139.


           More    importantly,           Marshall is      on point   for resolving Deborah'        s claim.    In Marshall, the


wife sought equitable reimbursement from community assets based on the reasonable rental

value of    her   separate residence            in   which   the   parties resided   during   the   marriage.    86 Wn. App. at

880 -81.     The wife relied on Miracle to assert that she was entitled to equitable reimbursement


based   on   the   contribution           her   separate   property    made   to the   marital      community.     Marshall, 86


Wn. App. at 882. The court distinguished Miracle and stated:

           Rather than seeking reimbursement for contributions which enhanced the value of
           a specific item of community property, [ the wife] is seeking reimbursement

           against the community assets in toto for the general use of her separate property.
           Washington law does not support such a claim.


Marshall, 86 Wn. App. at 882.

           Like the wife in Marshall, Deborah is seeking equitable reimbursement against the

community         assets   for   a   benefit derived from the equity in the Miller Bay Road home. Marshall


prohibits    such    a claim.         Accordingly, Deborah' s claim for equitable reimbursement fails as a

matter of    law.
No. 43994 -8 -II



C.         PROPERTY DISTRIBUTION


           Deborah challenges the trial court' s property distribution, arguing that Darrell received a

disproportionate          award      because he   was awarded          79   percent of    the community property.     Br. of


App.   at   19.     In a dissolution action, the trial court must order a " just and equitable" distribution


of   the   parties'    assets     and   liabilities,   whether    community        or   separate.   RCW 26. 09. 080.      All


property is before the court for distribution. In re the Marriage ofFarmer, 172 Wn.2d 616, 625,

259 P. 3d 256 ( 2011).               In reaching a just and equitable property division, the trial court must

consider (     1)   the   nature      and   extent   of   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 property division              is to become       effective.   RCW 26. 09. 080. These factors


are not exclusive. RCW 26. 09. 080.


            The trial     court   has broad discretion to determine what is just and                  equitable.    In re the


Marriage of Rockwell, 141 Wn.                  App.    235, 242, 170 P. 3d 572 ( 2007), review denied, 163 Wn.2d


1055 ( 2008).         A just and equitable distribution requires fairness over mathematical precision. In


re   the   Marriage of Crosetto, 82 Wn.                App.   545, 556, 918 P. 2d 954 ( 1996). "       Fairness is attained


by considering all circumstances of the marriage and by exercising discretion, not by utilizing

inflexible     rules."     In   re   the Marriage of Tower, 55 Wn.               App. 697,     700, 780 P. 2d 863 ( 1989),


review      denied, 114 Wn.2d 1002 ( 1990).                   A just and equitable distribution does not necessarily

mean an equal          distribution.        In re the Marriage of DewBerry, 115 Wn. App. 351, 366, 62 P. 3d

525,   review       denied, 150 Wn.2d 1006 ( 2003). "                  Under   appropriate    circumstances ... [    the trial



court]     need not award separate             property to its     owner."      In re the Marriage of White, 105 Wn.

App. 545, 549, 20 P. 3d 481 ( 2001).



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        Here, the trial court distributed 79 percent of the community property to Darrell, but in

doing so, the trial court considered the large amount of liquid assets Deborah was awarded

through her     separate accounts      and   investments.            It is well within the trial court' s discretion to


take into account a party' s separate property award when determining a just and equitable

distribution    of   community property.           Deborah has not shown that the trial court manifestly

abused its discretion in the distribution of property. Accordingly, we affirm.

D.      ATTORNEY FEES


        Deborah appeals the trial court' s decision denying her request for attorney fees. Deborah

also requests   attorney fees   on appeal under        RAP 18. 1.         RCW 26. 09. 140 provides the authority to

grant attorney fees in a dissolution proceeding. RCW 26. 09. 140 states:

        The court from time to time after considering the financial resources of both
        parties may order a party to pay a reasonable amount for the cost to the other
        party of maintaining or defending any proceeding under this chapter and for
        reasonable      attorneys'    fees or other professional fees in connection therewith,
        including sums for legal services rendered and costs incurred prior to the
        commencement of the proceeding or enforcement or modification proceedings
        after entry ofjudgment.
               Upon any appeal, the appellate court may, in its discretion, order a party to
        pay for the cost to the other party of maintaining the appeal and attorneys' fees in
        addition to statutory costs.

When considering the financial resources of both parties, the court balances the financial need of

the requesting party      against    the   other   party'   s   ability to pay.    In re the Marriage of Pennamen,

135 Wn.     App.     790, 807 -08, 146 P. 3d 466 ( 2006).               However, "[ a] s an independent ground we


may award attorney fees and costs based on intransigence of a party, demonstrated by litigious

behavior,   bringing    excessive motions, or        discovery         abuses."   In re the Marriage of Wallace, 111

Wn.   App. 697,      710, 45 P. 3d 1131 ( 2002),        review         denied, 148 Wn.2d 1011 ( 2003).      When the




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award of attorney fees is based on intransigence, the court does not consider the parties financial

resources.     Wallace, 111 Wn. App. at 710.

          1.   Attorney Fees at Trial

         We    review   the trial   court' s   decision granting attorney fees for        abuse of   discretion. In re


the Marriage of Spreen,        107 Wn.         App.     341, 351, 28 P. 3d 769 ( 2001).      The trial court did not


abuse   its discretion in    denying    Deborah'        s request   for attorney fees.   She asserts that Darrell had


the ability to pay based on the trial court' s award; however, she makes no assertion regarding her

own     financial   need.     Under the trial court' s property distribution, Deborah was awarded

approximately $94,000         of    liquid   assets.     There is nothing in the record that indicates Deborah

was unable      to pay her   own    attorney fees.        Further, after reviewing the record, it does not appear

that Deborah ever argued to the trial court that Darrell engaged in intransigent behavior


justifying     an award of   attorney fees.           Deborah' s argument that Darrell was intransigent during

trial is not grounds for reviewing the trial court' s decision, and the trial court did not otherwise

abuse   its discretion. See RAP 2. 5(          a) (   a party may not raise an issue for the first time on appeal).

Accordingly, we affirm the trial court' s decision denying Deborah' s request for attorney fees.

          2.   Attorney Fees on Appeal

          Deborah    also requests     attorney fees       on appeal.    On appeal, she argues both intransigence


and   financial   need.   There is no indication that Darrell has engaged in any intransigent behavior

through the course of this appeal. Thus, intransigence is not an appropriate basis for an award of


attorney fees on appeal.

          Under RCW 26. 09. 140, the award of attorney fees is conditioned on the financial

positions of both parties. When an award of attorney fees is conditioned on financial need, each

party must file a financial affidavit with this court at least 10 days prior to the date the case is set
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for   consideration on   the    merits.   RAP 18. 1(   c).   Neither party complied with the requirements of

RAP 18. 1(   c).   Accordingly, Deborah' s request for attorney fees on appeal is denied.

         We affirm the trial court.


         A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW


2. 06. 040, it is so ordered.




We concur:




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