                                                                                                    FILED
                                                                                              COURT OF APPEALS
                                                                                                  DIVISION 11

                                                                                             2015 JUN - 4             AM 8: 36

                                                                                              ST`     E    1'       ASFINGTON
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                                                                                              SY          1...




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                              DIVISION II


In the Matter of the Marriage of:                                                 No. 45674 -5 -II


ALIZA WISEMAN (f n/
                 / a Tristan Benz),


                                     Respondent,                         UNPUBLISHED OPINION


         v.




 TIMOTHY JAMES BENZ,


                                     Appellant.



        BJORGEN, A. C. J. —       Timothy Benz appeals the order of child support, decree of

dissolution, and findings of fact and conclusions of law entered after the trial on Aliza

Wiseman' s petition to dissolve her marriage to Benz. Benz contends that ( 1) the trial court


unjustly or inequitably divided the parties' community and separate property in the decree of

dissolution, ( 2)   the trial court made several errors related to the order of child support, and ( 3)

numerous irregularities occurred in the dissolution proceedings. We hold that ( 1) Benz fails to

show an unjust or      inequitable division   of   the couple' s property, ( 2)    Benz waived his major claim


of error related    to the   order on child support   by   stipulating to it in   open court, and (   3) any        other
No. 45674 -5 -II



error or irregularity in the dissolution proceedings is either unsupported by the record or

harmless. We affirm.


                                                      FACTS


       Benz   and   Wiseman'     s marriage     began in 1995. It ended in 2011 when Wiseman


petitioned for its dissolution and moved to California with the couple' s three children.


       Both Wiseman and Benz represented themselves at the trial on Wiseman' s petition. After


Wiseman rested her case, Benz, who had reserved his opening statement, indicated a desire to

make one, but the trial court moved immediately into the presentation of his evidence. Benz then

introduced some evidence of his own before resting his case.

        The evidence the trial court admitted gave it some measure of the parties' income, assets,


and liabilities. Benz worked as a real estate broker earning approximately $2, 500 per month.

Wiseman    worked as a personal assistant         earning " roughly   under [$   2, 000] a month doing social

media" work.    Verbatim Report         of   Proceedings ( VRP) ( Oct. 1, 2013) at 58. Wiseman had also


received substantial sums of money for a loss of consortium claim from the death of her father,

but she testified at trial that she had spent that money on the upkeep of her children and business

endeavors.




        The parties had significant assets. The evidence showed that the loss of consortium

payments Wiseman received had funded two annuities, one in her name and one in Benz' s, each

valued at $ 30, 000.   In   addition,   Wiseman had nearly $ 82, 000 that she had taken from a


community account just before she separated from Benz. She claimed at trial that the money

came from the loss of consortium claim for her father' s death and was her separate property.

Benz had   retirement accounts, "       probably" existing before his marriage, worth approximately

  20, 000, VRP ( Oct. 1, 2013) at 104 -06, and an annuity account in South Africa worth roughly



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No. 45674 -5 -II



 100, 000. Finally, an individual named Mike Sumsky had executed a promissory note worth

 70, 000 plus interest to Benz and Wiseman.


         The couple owned a home in Port Orchard, although Benz stated that the home was in


foreclosure and there was no possibility of curing the default on the mortgage. Benz and

Wiseman also owned an interest in a timeshare, although Benz again claimed that interest had no

value.




         The parties had resolved some, but not all, of the issues created by the dissolution before

trial. Benz and Wiseman had agreed to a parenting plan, which they had filed with the superior

court   before the dissolution trial.   Benz and Wiseman had also agreed to a child support payment


schedule requiring Benz to pay $ 750 per month, or $250 for each of the three children. The

parties stipulated to the existence of this agreement in open court and testified that it was in the

best interests of their children. Benz and Wiseman further stipulated in open court that Benz

owed three months of overdue child support payments. Finally, proceedings before the

Department of Social and Health Services had produced an agreed settlement /consent order


governing medical insurance and expenses.

          Benz and Wiseman, however, could not agree to a division of their assets and liabilities.

Benz contended that the parties had an agreement, but Wiseman denied that any agreement

existed. Benz could offer no written proof of the agreement.


          At the end of the dissolution proceeding, the trial court awarded each party the annuity

that named them as a beneficiary, their personal property, the money in their post -separation

 accounts, and half of the Sumsky promissory note. Benz was awarded approximately three

 quarters of   his   retirement account, or around $   15, 000; the South African annuity; and the

 couple' s interests in real property. Wiseman was awarded the $ 81, 000 that she had withdrawn


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No. 45674 -5 -II



from the money market account as her separate property and approximately one -quarter of

Benz' s retirement account, around $ 5, 000. The trial court adopted the parenting plan Benz and

Wiseman had agreed to, the stipulated order of child support, and the stipulated agreement that


Benz owed three months of overdue child support. It also left in place the agreed

settlement /consent order governing medical insurance and expenses.

           Benz now appeals the order of child support, the decree of dissolution, and the findings

of fact and conclusions of law, incorporating the parenting plan, entered after the dissolution

trial.


                                                         ANALYSIS


                                                 I. PROPERTY DIVISION


            Benz first contends that the trial court erred in its division of the parties' property,

appearing to make five arguments in this regard. First, Benz contends that the property division
was unjust and inequitable, because the trial court awarded Wiseman the funds she withdrew

from the community account as her separate property without a commensurate offset to him.
The      offset   Benz   requests   is   an undivided   interest in the   Sumsky   promissory   note.   Second, Benz


claims that the property division was unjust and inequitable because it left him with insufficient

assets to pay the order of child support. Third, Benz contends that the trial court erred by failing

to properly account for his and Wiseman' s income when distributing the parties' property.

Fourth, he contends that the trial court erred by failing to give effect to his and Wiseman' s

pretrial agreement to divide their property. Fifth, Benz contends that the trial court initially erred

in dividing some of the couples' property. We are not persuaded by these contentions and affirm

the trial court' s division of the property.




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No. 45674 -5 -II



          RCW 26. 09. 080 governs the disposition of property and liabilities in dissolution

proceedings. The provision requires the trial court to divide all the parties' property, community

or separate, in a manner " just and equitable" in light of all relevant factors. RCW 26. 09. 080.

Those factors include, at a minimum, the nature and extent of the parties' community and

separate property, the length of the marriage or domestic partnership, and the economic

circumstances of each spouse or domestic partner at the effective date of the division of the


property. RCW 26. 09. 080( 1) -( 4).


          We review the trial court' s division of property in dissolution proceedings for an abuse of

discretion. In     re   Marriage of Urbana, 147 Wn.     App.   1, 9, 195 P. 3d 959 ( 2008). The trial court


abuses its discretion where its ruling is manifestly unreasonable or it exercises its discretion on

untenable grounds or untenable reasons.           Urbana, 147 Wn. App. at 9 -10.

          We review the trial court' s classification of property as separate or community as a mixed

question of fact and law. In re Marriage ofMartin, 32 Wn. App. 92, 94 -95, 645 P. 2d 1148

 1982).    Property is characterized as community or separate at the point of acquisition. In re

Marriage of Skarbek, 100 Wn.           App.   444, 447, 997 P. 2d 447 ( 2000). Damages a spouse receives


in compensation for a personal injury are acquired as separate property. In re Marriage of

Brown, 100 Wn.2d 729, 737 -38, 675 P. 2d 1207 ( 1984).


          Depositing funds into an account does not constitute an acquisition of property. Skarbek,

100 Wn.     App.   at   446.   Consequently, separate property deposited into a community account

retains its separate character unless commingled such that it cannot be distinguished from the


community funds in the account. Skarbek, 100 Wn. App. at 448. The party claiming that certain

commingled funds are separate property must " clearly and convincingly trace them to a separate

source."    Skarbek, 100 Wn. App. at 448. Evidence satisfies the clear and convincing test when



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No. 45674 -5 -II



  sufficient     to   convince    the   fact finder that the fact in issue is   highly   probable. "   Dillon v.


Seattle Deposition Reporters, LLC, 179 Wn. App. 41, 86, 316 P. 3d 1119 ( quoting Tiger Oil

Corp.   v.   Yakima        County,    158 Wn.   App.   553, 562, 242 P. 3d 936 ( 2010)), review granted, 180


Wn.2d 1009 ( 2014).


         Benz contends that the trial court erred in finding that Wiseman had shown by clear and

convincing evidence that the funds she withdrew from the money market account were her

separate property. However, even if Benz were correct, he has not shown that the assumed

incorrect characterization of the withdrawn funds resulted in an unjust and inequitable division

of property.


         First, any mischaracterization of property is harmless unless it "significantly

influence[     s]"    the trial court' s division and we cannot tell on review that a proper characterization


would not have affected the trial court' s division of property. In re Marriage ofShannon, 55

Wn.    App.     137, 142, 777 P. 2d 8 ( 1989).         Here, nothing suggests that the trial court based its

division of Benz and Wiseman' s property on its characterization of the money she withdrew.

Under Shannon, any error in characterizing the property is therefore harmless. 55 Wn. App. at

142.


             Second, as already noted, the trial court' s duty in dividing the assets in a dissolution is to

reach a just and equitable distribution in light of all relevant factors. RCW 26. 09. 080. A review

of the trial court' s division of the property shows that it did so here. Benz and Wiseman each

received one of the $ 30, 000 annuities and half of the community' s interest in the $ 70, 000

promissory note. Each also received their post -separation property and the community property

they possessed after Wiseman moved out and took some of their things with her. Benz received

  115, 000     of    his   separate   property, $ 15, 000 from his   retirement account and $     100, 000 from the




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No. 45674 -5 -II



South African annuity, along with the parties' interests in real estate, which admittedly might

have negative value. Wiseman received the $ 82, 000 she withdrew from a community account as

her separate property and $ 5, 000 from Benz' s retirement account. The parties received a roughly

equal share of the total of their separate and community property, making the division just and

equitable given the parties' relatively equal earnings. The court did not abuse its discretion in

making this division.

        Benz next contends that the trial court divided the parties' property in an unjust and

inequitable manner because the division left him unable to pay the order of child support. The

record does not support this claim. The trial court awarded him substantial assets. Nothing

shows that Benz cannot pay his child support obligations or that any such inability, if it exists,

resulted from the trial court' s order.


        Benz also claims that the trial court failed to properly consider Wiseman' s income when

dividing his and Wiseman' s property. Again, the record does not support this claim. Benz had

greater income than Wiseman, and while Wiseman did receive money from an unrelated loss of

consortium claim, she testified that money was gone by the time of the dissolution trial.

        Benz further argues that the trial court erred by refusing to give effect to his and

Wiseman' s pretrial agreement on the division of their assets. Civil Rule ( CR) 2A, however,

forbids the superior courts from recognizing a purported agreement once it is disputed, unless the

party attempting to enforce the agreement can provide written proof of the agreement or the




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No. 45674 -5 -II



counter   party    acknowledges     the   agreement    in   open court.'     Benz could produce no document


signed by Wiseman stipulating to any division of property, and she denied the existence of any

agreement in open court. Under CR 2A, the trial court could not enforce the alleged agreement


to divide Benz and Wiseman' s property.

          Finally, Benz maintains that the trial court' s original division of the parties' property

suffered from irregularities, namely that the trial court awarded one asset twice, awarded one

asset   that did   not exist   to Benz,   and   failed to   award   two   significant assets.   We decline to address


the merits of this claim as it is moot. See State v. Deskins, 180 Wn.2d 68, 80, 322 P. 3d 780

 2014).    Even if Benz is correct about the trial court' s original division, the parties sought

clarification from the trial court and it provided for the proper division of these assets. We may

not provide him any effective relief given that correction.

          The trial court' s division of property was just and equitable and was not an abuse of

discretion.


                                                   II. CHILD SUPPORT


          Benz also appeals the order of child support, contending that the trial court awarded child

support payments to Wiseman that are neither in accordance with the Washington State Child

Support Schedule Worksheet nor commensurate with Benz' s income. Benz also contends that

the trial court erred by ordering that he pay overdue child support payments as a monetary

judgment and by allowing Wiseman to submit a " manipulated" worksheet. Appellant' s Br. at 5.



 1 CR 2A provides that
                n] o agreement or consent between parties or attorneys in respect to the
          proceedings in a cause, the purport of which is disputed, will be regarded by the
          court unless the same shall have been made and assented to in open court on the
          record, or entered in the minutes, or unless the evidence thereof shall be in writing
          and subscribed by the attorneys denying the same.

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No. 45674 -5 -II



Because the parties stipulated in open court that Benz could and should pay $750 a month in

child support in the best interests of the children and that he owed three months of overdue child


support, Benz waived any claims of error or rendered any error harmless. We affirm the order.

         RCW 26. 09. 100( 1) requires the trial court to order " either or both parents owing a duty of

support to any child of the marriage or the domestic partnership" to pay child support as

calculated using chapter 26. 19 RCW for dependent children upon dissolution of a marriage.

RCW 26. 19. 020 sets the support schedule for a child based on the combined monthly net income

of the child' s parents, the child' s age, and the number of siblings the child has. RCW

26. 19. 035( 1)( c) generally requires the use of the child support schedule when ordering child

support under RCW 26. 09. 100, although RCW 26. 19. 075 allows the trial court to deviate from

the standard calculation. We review a trial court' s order of child support for an abuse of

discretion. In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P. 2d 519 ( 1990).

         Benz first argues that the trial court erred by ordering $750 a month in child support and

accepting     a " manipulated" child support worksheet.          Appellant'      s   Br.   at   5.   Benz, however,

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agreed   in   open court   that   he   would   pay $ 750   a month   in   child support.         By doing so, he waived

any claim that the trial court erred in ordering him to make those payments. In re Marriage of

Kaplan, 23 Wn. App. 503, 505, 597 P. 2d 439 ( 1979).

         Benz also claims that the ordered support is financially unsustainable and that his

agreement to the order was contingent upon the division of property he agreed to with Wiseman.

We reject these claims because nothing in the record supports them.



2 The parties' agreement alone is insufficient to justify a deviation from the scheduled payments.
RCW 26. 19. 075( 5). However, the record contains testimony from both Benz and Wiseman that
 a deviation, which increased Benz' s payments, was in the best interests of the children. The
presence of that testimony indicates that the trial court did not order the deviation solely on the
basis of the parties' agreement, but also on the best interests of the children.

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No. 45674 -5 -I1



         Finally, Benz contends that the trial court erred by ordering a monetary judgment against

him for overdue child support and by coaching Wiseman to seek such a judgment. We find

Benz' s arguments unpersuasive. First, the trial court did not err when it did so; child support


payments become a judgment when due. In re Marriage ofKahle, 134 Wn. App. 155, 160 -61,

138 P. 3d 1129 ( 2006);    In re Marriage of Watkins, 42 Wn. App. 371, 374, 710 P.2d 819 ( 1985)

    C] hild    support payments   become    vested   judgments- as the installments    come   due. ') ( quoting


Schafer   v.   Schafer, 95 Wn.2d 78, 80, 621 P. 2d 721 ( 1980)).        Second, the record shows that the


trial court did not coach Wiseman; it instructed her, a pro se litigant, on how to properly prepare

the decree of dissolution it would issue as its order. The trial court' s order of child support was

well supported and was not an abuse of discretion.

                                          III. TRIAL IRREGULARITIES


          Benz   next argues   that   a number of   irregularities tainted the dissolution trial.   Specifically,

he contends that the trial court ( 1) was incompetent, (2) denied him his right to an opening

statement, (    3) gave disparate time to Wiseman to present her case, and ( 4) rushed to judgment,

failing to consider the exhibits and evidence offered by the parties. Benz' s claims are without

merit.




          Benz first contends that it was error to allow Judge Dixon to preside over his trial because

Judge Dixon lacked experience in family law and failed to grasp the subject matter of the

dissolution     proceedings.   To the contrary, no evidence supports Benz' s contentions, and the

record shows that Judge Dixon did his best to work through a dissolution proceeding made

 complicated by the fact that both litigants represented themselves.

          Benz also contends that the trial court erred by refusing to allow him to make an opening

 statement. Benz initially reserved his opening statement, and the trial court told him to ask to


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make an opening statement at the beginning of his case -in- chief. Benz appears to have made

such a request, but the trial court moved directly into the presentation of Benz' s case.

Nevertheless, Benz does not show that the error affected or presumptively affected the outcome

of the trial, and the trial court allowed him to present evidence and argue his case during closing.

We hold that any error was harmless. Brown v. Spokane County Fire Prot. Dist..No. 1, 100

Wn.2d 188, 196, 668 P. 2d 571 ( 1983) ( no reversal for error without prejudice).


        Benz next contends that the trial court gave Wiseman significantly longer time to present

her case than it gave him. While true, that disparity occurred because Benz rested after

presenting a shorter case. The trial court in no way denied Benz equal time, and no error

occurred.




        Finally, Benz contends that the trial court rushed to judgment and failed to consider the

evidence presented by the parties. No evidence shows a rush to judgment. Instead, the record

shows that the trial court attempted, as best it could, to consider the evidence presented by the

parties in a somewhat chaotic manner. We find no error.

                                               IV. ATTORNEY FEES


        Benz does not request attorney fees. Wiseman requests reasonable attorney fees for her

work in responding to Benz' s appeal. Pro se litigants who are not attorneys may not receive an

award of attorney fees on appeal. In re Marriage ofBrown, 159 Wn. App. 931, 938 -39, 247

P. 3d 466 ( 2011).     Therefore, we deny Wiseman' s request for attorney fees on appeal.

                                                 CONCLUSION


         We   affirm   the trial   court' s child support order,   decree   of   dissolution,   and   findings   of   fact
No. 45674 -5 - II



and conclusions of law.


        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.




                                                                           c.J
 We concur:




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