                                                                    FILED
                                                                DECEMBER 5, 2019
                                                            In the Office of the Clerk of Court
                                                           WA State Court of Appeals, Division III




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

 In the Matter of the Marriage of              )
                                               )        No. 35641-8-III
 JUDITH K. TULLENERS,                          )
                                               )
                      Appellant,               )
                                               )
        and                                    )        PUBLISHED OPINION
                                               )
 ANDRE J. TULLENERS,                           )
                                               )
                      Respondent.              )

       SIDDOWAY, J. — Judith Tulleners appeals the trial court’s division of

property in the decree dissolving her marriage to Andre Tulleners. After her

appeal was filed, Andre Tulleners died, and his estate, which was substituted as

respondent, has moved the court to find the action abated and dismiss the appeal.

       We hold that because Judith is challenging only property provisions of a

final decree, abatement does not apply. On the merits, we conclude that the trial

court’s findings in support of two adjustments to the property division are

inadequate for appellate review. We reverse the trial court’s total dollar awards of

community property and remand for the entry of additional findings.
No. 35641-8-III
In re Marriage of Tulleners


                 FACTS AND PROCEDURAL BACKGROUND

       Judith Tulleners and Andre Tulleners were married for 18½ years, in what

was a second marriage for both. When Judith filed for divorce in May 2016, she

and Andre were both in their early 70s and retired. Both were living on social

security and retirement assets.

       At the divorce trial, Judith was able to provide a calculation from the

administrator of her public employment retirement plan for the percentage of her

pension payment that was community versus separate property. The administrator

determined it was 67.6 percent separate property and 32.4 percent community

property. Her retirement plan included a small defined contribution component,

worth $11,872, to which she contributed before and during the marriage. The

court characterized it as commingled and, therefore, community property.

       Andre had worked for 32 years for Williams Companies, which provided a

pension benefit and later a 401(k) plan. Contributions were made to both during

the 8½ years of his marriage preceding his retirement in 2006. He cashed out his

pension benefit upon retirement. At the time of the divorce trial, he held what

remained of that lump sum payment and his 401(k) in two individual retirement

accounts (IRAs) and an annuity. At the time of the parties’ separation, the

combined value of those assets was $767,924.




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       Andre offered virtually no evidence of the contributions made toward his

retirement benefits during the 8½ employed years of the marriage. He offered

evidence that at the time the dissolution of his first marriage became final—which

was six months before his marriage to Judith—his 401(k) account was worth

$375,000, half of which ($187,500) was awarded to him in that earlier divorce.

He offered evidence that when he retired in 2006, the value of the account was

$357,017.

       It was Judith’s position that much of the $357,017 value at retirement was

community property. She testified that when Williams Companies’ stock crashed

in the early 2000s, her husband told her that the value of his 401(k) had declined

to $40,000. She claims that he asked, and she agreed, that they would rely

primarily on her income to pay expenses so that he could maximize contributions

to rebuild his 401(k). Although Mr. Tulleners denied at trial that he ever told

Judith his 401(k) account had declined in value to $40,000, he acknowledged that

it did decline because of problems with its investment in Williams

Communications stock. He also agreed that he told Judith he wanted to maximize

his contributions to the account, and that he did maximize his contributions to the

401(k) account during the marriage.

       Mr. Tulleners provided evidence that when he retired in May 2006, the

lump sum he received in lieu of a pension benefit was $514,106. He rolled that


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amount into one of two IRAs, later moving assets back and forth between the

IRAs. In 2013, he used $300,000 of the IRA funds to purchase an annuity.

       The trial court’s decision explaining its division of assets stated that Mr.

Tulleners offered “no evidence . . . as to the structure of [the] pension, such as the

amounts or timing of the contributions by Mr. Tulleners’ employer.” Clerk’s

Papers at 87. Mr. Tulleners also offered “no documentation as to how and when

contributions were made to [the 401(k)] account between May 1997 and May

2006 when he took the funds upon retirement.” Id. at 87-88. Because there was

no tracing done by Mr. Tulleners, the trial court characterized his IRAs and

annuity as entirely community property.

       The court placed the following values on the parties’ community and

separate property:

         Community property:              $1,019,914, plus a 32.4 percent interest
                                          in Judith’s pension payments. ($767,924
                                          in value of the community property
                                          comprised investment assets acquired
                                          with Andre’s part separate-part
                                          community pension payout and 401(k)
                                          account)

         Judith’s separate property:      $251,730 plus her 67.6 percent separate
                                          property interest in her pension payments

         Andre’s separate property:       $20,000




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       Judith’s separate property consisted of assets inherited from her mother that

she had maintained as separate. The nature of Andre’s separate property is not

clear, but the characterization and values of these separate properties is not

challenged on appeal.

       Had the trial court divided the community property equally, each party

would have received approximately $510,000. Had it combined all of the separate

and community property for which it had values and divided the total equally,

each party would have received $645,822. Instead, in a memorandum opinion, the

court awarded the assets in the following manner:

                       Community property                 Separate property

 Andre                 $718,172 plus a QDRO1              $20,000
                       addressing the community
                       interest in Judith’s pension
                       payments

 Judith                $301,742, plus a QDRO              $251,730 plus the 67.6
                       addressing the community           percent separate property
                       property interest in her pension   interest in her pension
                       payments                           payments

See Report of Proceedings (RP)2 at 293.


       1
           Qualified domestic relations order. See 29 U.S.C.A. § 1056(d)(3)(A).
       2
         The report of proceedings contains a pagination error. The pages
numbered 167 through 172 are followed by another six pages numbered 167
through 172. For all references beginning with the second page numbered 167,
our citations are to the page numbers in their actual sequence rather than the
numbers affixed by the court reporter.

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      Judith challenged the significant disparity in her and Andre’s community

property awards. The trial court addressed her objection at the presentment

hearing on the final papers. It pointed out that the total community and separate

property awarded to Judith was $553,472, approximately $184,500 less than the

$738,172 total of community and separate property it awarded to Andre, and then

explained:

      [Judith’s public employment pension] wasn’t valued. And I
      appreciate that when we split something exactly in half on a pension,
      it doesn’t really matter what we value. In this case it had to matter
      to me, if you will, because [Judith] was receiving . . . roughly 68
      percent of that pension as a separate property asset. And so there is
      a value to that. And then she received half the community. And
      there is a value to that. So ultimately she received 82, 83 percent.
              ....
              Secondly, although I characterized [Andre’s] pension, which
      is a two-part item, the pension and his 401k that he had, or the
      defined benefit and defined contributions portion of his pension as
      community, because [Andre] failed to trace appropriately, and I thus
      divided it.
              I did have in mind that the evidence in my mind was clear
      that [Andre] walked away from his prior marriage with $187,000
      sitting in what I’ll call the 401k side of his pension.
              And you’ll notice again the difference here is about 185
      between the two estates.
              So essentially I took that into consideration that he couldn’t
      tell me if there was any interest earned on it, he couldn’t trace it
      back. The accumulations after that, who knows. But I considered
      the fact that he had walked into the marriage with—setting aside the
      defined benefit side because we didn’t have tracing documents
      sufficient on that—setting aside that, this to me it was clear he
      walked into the marriage with a significant asset, and I gave him
      some credit for that. Obviously I’m not doing a dollar for dollar or
      that’s not the point, but I gave him some credit for total equity.


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RP at 295-97.

       The final papers were entered in late September 2017. Judith timely

appealed.

       Following commencement of the appeal, Judith learned that Andre had

been diagnosed with late stage amyotrophic lateral sclerosis (ALS). No evidence

had been presented at trial that Andre had health issues. Judith moved to vacate

the decree. The trial court denied the motion.

       Andre died after the appeal was fully briefed, and Patrick Tulleners, his son

from his first marriage, was appointed personal representative and substituted as

the respondent. He filed a motion asking this court to determine whether

abatement applies since no third party interests were involved in the dissolution,

relying on In re Marriage of Fiorito, 112 Wn. App. 657, 660-63, 50 P.3d 298

(2002). We requested supplemental briefing on the issue of abatement. Decision

on the motion was referred to the panel.

                                    ANALYSIS

I.     ABATEMENT DOES NOT APPLY

       Relying on Fiorito, the parties assume that if we find abatement to apply as

a result of Andre’s death, appellate review is foreclosed and the trial court’s

findings, conclusions, and decree will be the final word. They assume that




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abatement will apply unless we find either equitable grounds for review or that

third party interests were resolved in the action below. Both assumptions

misunderstand In re Marriage of Himes, 136 Wn.2d 707, 721, 965 P.2d 1087

(1998), and the earlier case law that it overruled.

       Confusion arises because the decisions on which the parties rely come up in

two different contexts. Most of the cases involve a motion or independent action

to vacate a final judgment in a divorce case after one of the parties to the marriage

has died. In the early decision in Dwyer v. Nolan, our Supreme Court held that a

final judgment in such a case cannot be challenged because

       there are no proper parties to this proceeding, and that, in the nature
       of things, the plaintiff having died, the question of divorce cannot be
       relitigated. It will not be gainsaid that an action for divorce is a
       purely personal action. Nothing is sought to be affected but the
       marital status of the husband and wife. The distribution of property
       in such an action is incidental, and it is clearly incontestable that,
       upon the death of either party, whether before or after the decree, the
       subject of the controversy is eliminated.

40 Wash. 459, 460-61, 82 P. 746 (1905). In such cases, an appeal of the divorce

decree is not at issue.

       Dwyer’s holding was a distinctly minority view. The overwhelmingly

majority view was that circumstances can exist where a challenge to a divorce

decree should be entertained even if a party to the marriage has died. Himes, 136

Wn.2d at 721 & n.38.



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       After first questioning the wisdom of Dwyer in Osborne v. Osborne, 60

Wn.2d 163, 166, 372 P.2d 538 (1962), the Washington Supreme Court overruled it

in Himes, holding that courts should decide on equitable grounds whether to

vacate a dissolution decree after the death of one of the parties. 136 Wn.2d at 721.

       Judith and Andre’s estate also rely on cases from a separate and more

directly applicable context: cases in which a party unhappy with a property

division appeals, one of the parties to the divorce then dies, and the appellant

argues that abatement upon death has rendered the property division a nullity.

Cases eventually overruled by Himes did not hold that if abatement applies, the

decree stands, and the appeal is dismissed. They held that the divorce decree itself

becomes a nullity. In the leading case of McPherson v. McPherson, 200 Wash.

365, 93 P.2d 428 (1939), the respondent—the executor for the estate of a wife who

died during the appeal—argued that her death did not abate the trial court’s

property division, which was favorable to her, and the appellate court could review

and affirm it. The court observed:

              There is much authority from other jurisdictions to sustain
       this contention of respondent, but we are of the opinion that, under
       our decisions, the interlocutory decree, in its entirety, abates and
       becomes a nullity upon the death of one of the parties, whether
       before or after the interlocutory decree is entered.

Id. at 369. The court cited to Dwyer’s holding that the distribution of property in a

divorce action is “‘incidental.’” Id. (quoting Dwyer, 40 Wash. at 460). It did


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acknowledge that in Masterson v. Ogden, 78 Wash. 644, 139 P. 654 (1914), the

court had reviewed property provisions of a decree notwithstanding the death of

the husband during the appeal, but the majority viewed that decision as

“determining the rights of third parties.” 200 Wash. at 371-72. But cf.

McPherson, 200 Wash. at 373 (Blake, C.J., dissenting) (reading Masterson as

holding that an interlocutory order is final and conclusive insofar as it affects the

division of property).

       At the time McPherson was decided, a trial court’s initial decree in a

divorce action was interlocutory, not final. A final decree could not be entered

until the passage of six months or the conclusion of an appeal, whichever occurred

later. See, e.g., In re Estate of Martin, 127 Wash. 44, 47-48, 219 P. 838 (1923)

(discussing REM. COMP. STAT. § 988). It is possible that the interlocutory

character of the decree explains the McPherson court’s reason for treating the

entire divorce action as abated.

       The law has changed, of course; divorce decrees are now entered on a final

basis and finality of the dissolution can be delayed only if an appeal challenges the

finding that the marriage is irretrievably broken. RCW 26.09.150(1); and see, e.g.,

In re Marriage of Moody, 137 Wn.2d 979, 989, 976 P.2d 1240 (1999). No

decision following the statutory change addresses whether McPherson applies to

decrees on appeal that are final rather than interlocutory. Some have read pre-


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Himes Washington case law as holding that the death of a party during any appeal

results in abatement unless the interests of third parties are affected, however. See

Francis M. Dougherty, Annotation, Effect of Death of Party to Divorce

Proceeding Pending Appeal or Time Allowed for Appeal, 33 A.L.R.4th 47, 51

(1984).

       Fortunately, in overruling Dwyer as it related to an action to vacate a

divorce decree, the Himes court also addressed Dwyer’s influence on Washington

cases dealing with abatement. Himes, 136 Wn.2d at 725-26. Himes adopted the

majority rule that the death of a party to an appeal in a divorce action does not

abate the property provisions of a decree. Id. (citing Bell v. Bell, 181 U.S. 175,

178-89, 21 S. Ct. 551, 45 L. Ed. 804 (1901)).

       In light of Himes, Judith is not required, in order to avoid abatement, to

satisfy us that equitable considerations or third party interests are present.

Equitable considerations only come into play when an independent action is

brought to vacate a divorce decree, as was the case in Himes. “Third party

interests” were an exception to the application of abatement in cases like

McPherson, which Himes overruled. All Judith needs to demonstrate is that she is

challenging the property provisions of a final divorce decree. She is. Abatement

does not apply.




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II.    ADDITIONAL FINDINGS ARE NEEDED FOR APPELLATE REVIEW OF THE TRIAL
       COURT’S AWARD OF COMMUNITY PROPERTY

       A trial court in a dissolution proceeding is to “make such disposition of the

property and the liabilities of the parties, either community or separate, as shall

appear just and equitable after considering all relevant factors.” RCW 26.09.080.

Factors identified by the statute as relevant include the nature and extent of the

community and separate property, the duration of the marriage, and the economic

circumstances of the parties. Id.

       An asset is separate property if acquired before marriage, acquired during

marriage by gift or inheritance, acquired during marriage with the traceable

proceeds of separate property, or, in the case of earnings or accumulations,

acquired during permanent separation. In re Marriage of White, 105 Wn. App.

545, 550, 20 P.3d 481 (2001). Separate property brought into the marriage will

retain its separate character as long as it can be traced or identified. In re

Marriage of Schwarz, 192 Wn. App. 180, 190, 368 P.3d 173 (2016). If

community and separate funds are so commingled that they cannot be

distinguished or apportioned, the entire amount is rendered community property.

In re Marriage of Pearson-Maines, 70 Wn. App. 860, 866, 855 P.2d 1210 (1993).

       A trial court has considerable discretion in making a property division, and

“will be reversed on appeal only if there is a manifest abuse of discretion.” In re



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In re Marriage of Tulleners


Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). “‘A trial

court abuses its discretion if its decision is manifestly unreasonable or based on

untenable grounds or untenable reasons.’” Id. (quoting In re Marriage of

Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997)).

       For appellate review to be possible, a trial court’s findings of fact must

declare the ultimate facts that justify its conclusions; if they do not, an appellant is

entitled to have the cause remanded so that findings adequate for review can be

made. Phelps v. Phelps, 2 Wn.2d 272, 276, 97 P.2d 1080 (1940).

       Judith and Andre were only one year apart in age at the time of divorce and

both were fully retired, so earning capacity was not an issue. The only asset not

before the court for disposition was the parties’ social security benefits, and Andre

received more than Judith: he was receiving $1,587 per month, while Judith

received $1,101. While Judith presented evidence of her earlier cancer and eye

surgeries, the court was not presented with evidence that either party had any

special financial need; the parties appear to have had equivalent needs for income

during retirement. The only factors identified by the trial court as supporting its

disproportionate award of community property was its consideration of Andre’s

untraced separate property interest in his retirement assets and Judith’s separate

property interest in her pension for which no present value evidence was offered.




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In re Marriage of Tulleners


       Our informed guess from the trial court’s oral statements is that it was

trying to divide the property equally after recognizing that Andre’s commingled

retirement assets had a substantial separate property origin, and after imputing to

Judith an estimated value of her separate property interest in her pension. Both

were legitimate considerations, as long as the values used by the court were

supported by the evidence.

       Awarding Andre a disparate share of his retirement assets finds conceptual

support in In re Marriage of Nuss, in which this court held that even “the origin of

community property as one party’s separate property may . . . be considered in

appropriate cases as a reason for awarding all or a disparate share thereof to that

party.” 65 Wn. App. 334, 341, 828 P.2d 627 (1992). Significantly, however, the

asset at issue in Nuss was not characterized as community property because of

commingling. It was a home that the husband brought to a short-term marriage

and quitclaimed to the community in connection with a refinancing. The trial

court was presented with an unchallenged value for the total equity in the home

and made an unchallenged finding that “no more than half the present value of the

property, and probably less than that, was the result of community effort and

increase in value since it became community property.” Id. at 340. In other

words, in giving the husband a credit to account for the home’s separate property




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origin, the Nuss court had reliable value and allocation information, which it

viewed in the light most favorable to the wife.

       In this case, some Nuss-type credit to Andre for the value of the retirement

assets he brought into the marriage would be within the trial court’s discretion.

But when the reason for characterizing the property as community is because

Andre did not trace his separate property interest, he cannot be rewarded for

failing to trace. All credible evidence must be viewed in the light most favorable

to Judith, and reasonable inferences must support a finding that the value Andre

brought into the marriage, to the extent that value was preserved during the

marriage,3 was at least if not more than the amount of credit given.

       To be clear, Andre’s retirement assets, because untraceably commingled,

are conclusively presumed to be community property, as the trial court recognized.

What is within the trial court’s discretion is to make a disparate award of those

assets to Andre if it is possible to determine a minimum value of those assets that

was brought into the marriage and preserved.

       Attributing a value to Judith’s separate property interest in her pension

payments was also within the trial court’s discretion. But the value must be

supported by the evidence and the fact that Judith did not provide evidence of a


       3
        Any losses or declines in value during the marriage must be taken into
account.


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reasonable present value cannot be held against her where the court did not request

evidence of such a value from the parties. Judith proposed to divide the

community interest on a percentage, as-received basis, and provided the necessary

evidence. “An award of pension rights on a percentage, as-received basis is . . .

encouraged” because it “avoids difficult valuation problems, shares the risks

inherent in deferred receipt of income, and provides a source of income to both

spouses.” In re Marriage of Bulicek, 59 Wn. App. 630, 638, 800 P.2d 394 (1990).

       The problem in this case with the trial court’s award of community property

is that it did not make a finding of the amount of Andre’s retirement assets for

which it was giving him a Nuss-type credit, and it did not make a finding of the

value it was imputing to Judith’s separate property interest in her pension plan. At

most, we can guess at the values the trial court had in mind. If the $738,172 in

community and separate assets it distributed to Andre was intended to be one-half

of the total value of the parties’ community and separate assets—not just the

community and separate property for which it had values, but adding an imputed

value for Judith’s separate property interest in her pension payments—then we can

extrapolate that the trial court gave Andre a 54 percent credit in his commingled

retirement assets ($416,430) before dividing the remaining $351,494 community

property value between the parties. We can extrapolate that it treated Judith’s




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separate property interest in her pension plan as having a value of $184,700. (Our

extrapolation of these amounts is explained in the appendix to this opinion.)

       If we were certain this is what the court intended, we could entertain a

challenge from Judith that the evidence—viewed in the light most favorable to

her—does not support a finding that the value of Andre’s retirement assets brought

into the marriage and preserved is at least $416,430. She would be able to

challenge the court’s attribution of a value of $184,700 to her separate property

payment stream from her pension plan.

       Judith is unable to challenge the property award effectively, however,

because we do not know if these are the values assumed by the trial court, given

the incompleteness of its findings. If a Nuss-type credit to Andre is a basis for the

disproportionate award, Judith needs a finding on the amount of that credit; if a

present value for Judith’s separate property interest in her pension plan figures is a

basis for the disproportionate award, she needs a finding on that imputed value as

well. She is entitled to findings on those matters so that she can assign error if she

believes they are not supported by the record. We need findings on those matters

so that we can fairly consider her appeal.

       We reverse the trial court’s total dollar awards of community property to

Andre and Judith and remand for the entry of additional findings in support of




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whatever award is made. The trial court will determine what further proceedings

to conduct, if any, before entering additional findings.




                                               Jfcilow~
                                           Siddoway, J.
                                                                   .J= .
WE CONCUR:




Lawrence-Berrey, C.J.




Fearing, J.




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Appendix



                                     APPENDIX

       If the $738,172 in community and separate assets the trial court distributed to
Andre was intended to be one-half of the total value of the parties’ community and
separate assets—not just the community and separate property for which it had values,
but adding an imputed value for Judith’s separate property interest in her pension
payments—then, using that and other values and amounts from the record (unshaded), we
can calculate the value imputed to Judith’s separate property payment stream from her
pension plan (JSP), the amounts of Andre’s commingled retirement assets to which the
court found Andre and Judith to be entitled (AE and JE), and the portions of Andre’s
commingled retirement assets that the court found to be Andre’s separate property (ASP)
and community property (CP).

     Asset                           Total value     To Andre        To Judith

     Community property other          $251,990       $125,995        $125,995
     than Andre’s commingled
     retirement assets
     ($1,019,914 – $767,924)

     Andre’s commingled                $767,924       $592,177c      $175,747c
     retirement assets

                                                    Meaning the commingled
                                                    assets were treated as 54%
                                                    Andre’s separate property
                                                       and 46% community
                                                            propertyd

     Andre’s traceable separate         $20,000         $20,000
     property

     Judith’s traceable separate       $251,730                       $251,730
     property

     Assumed value of Judith’s        $184,700b                      $184,700b
     separate property interest in
     her pension

     TOTAL:                          $1,476,344a      $738,172        $738,172



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Appendix


a
      If $738,172 is intended to be one-half the total value of the couple’s assets, then
      total value = 2 x $738,172, or $1,476,344.
b
      $1,291,644 is the total value of the couple’s assets other than the imputed value
      for Judith’s separate property interest in her pension payments (JSP), so JSP =
      $1,476,344 – $1,291,644, or $184,700.
c
      $738,172 is Andre’s total property award, made up of $125,995 + $20,000 + AE
      (Andre’s entitlement from his commingled retirement assets). AE then equals
      $592,177 ($738,172 – ($125,995 + $20,000)). And since AE is $592,177, JE
      (Judith’s entitlement from Andre’s commingled retirement assets) is $767,924 –
      $592,177, or $175,747.
d
      If the objective is that Andre’s entitlement from the commingled retirement assets
      (AE) is his entire separate property interest in those assets (ASP) plus one-half the
      community’s interest in those assets (CP), then $592,177 (AE) = ASP + ½ CP, so
      $592,177 – ½ CP = ASP.
      We know that the total commingled value ($767,924) = ASP + CP, so another
      thing we know about ASP is that it equals $767,924 – CP.
      Those equivalences to ASP must also be equal, so
             $767,924 – CP = $592,177 – ½ CP;
             $767,924 – $592,177, or $175,747 = ½ CP;
             $351,494 = CP; and
             ASP will be $416,430 ($767,924 – $351,494)
      As a percentage of total value, ASP is 54%, rounded ($416,430 ÷ $767,924) and
      CP is 46%, rounded ($351,494 ÷ $767,924).




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