                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                            January 3, 2019
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    In the Matter of the Marriage of:                                 No. 50920-2-II

    SHANE D. REGO,
                                                                UNPUBLISHED OPINION
                          Respondent,

    and

    SUZANNE J. REGO,

                          Appellant.


          SUTTON, J. — Suzanne J. Rego appeals from a trial court’s order requiring her to make a

$10,717 transfer payment to Shane Rego as part of their property settlement in their dissolution

action. She argues that (1) the trial court improperly considered as evidence a spreadsheet that

Shane1 submitted with his trial brief and that the trial court’s admission and use of the spreadsheet

as evidence violated her procedural due process rights; and (2) the trial court incorrectly interpreted

the parties’ stipulated agreement. Because the record shows that the trial court did not consider

the spreadsheet as evidence and the record is inadequate to allow us to review whether the trial

court incorrectly interpreted the parties’ stipulated agreement, we affirm.

                                               FACTS

          Suzanne and Shane Rego were married in 2007. Shane filed a petition for dissolution of

the marriage in 2016.




1
    We refer to Suzanne and Shane by their first names to avoid confusion; we intend no disrespect.
No. 50920-2-II


       In May 2017, Suzanne and Shane entered into a stipulated agreement. CR 2A. The portion

of the stipulated agreement addressing the division of “assets and liabilities” provided:

       The below described allocation of assets and liabilities constitutes a CR[]2A
       stipulation and agreement. The signatures affixed below acknowledge the
       agreement made voluntarily by the parties. The parties and their attorneys
       acknowledge that the agreement shall be enforceable pursuant to CR[]2A and each
       will take all necessary steps to effectuate the agreement.

       The purpose of the agreement is to finalize those issues capable of resolution. The
       agreement reflects the values and characterization of property. All issues not
       addressed in the agreement or specifically reserved below shall be resolved at a
       later date or at trial . . . .

       The property awarded to Shane Rego are [sic] as follows

       $37,000.00 Edward Jones account – ½ the community share of the account
       $11,427.00 Edward Jones account – Husband’s separate property share
       2004 Escalade (value of $5,700.00)
       1997 Lexus [sic] – Husband’s separate property vehicle

       All bank accounts in his name.

       The obligations awarded to Shane Rego are as follows

       Liability associated with 2004 Escalade $6,643.00
       Bank of America Visa . . . $16,272.00

       The property and obligations awarded to Suzanne Rego are as follows:

       $37,000 Edward Jones account – ½ the community share of the account
       $ 4,218.00 SERS retirement account.

       All bank accounts in her name.

Clerk’s Papers (CP) at 70.




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No. 50920-2-II


       Another section of the stipulated agreement addressed the sale of the community real

property.2 This section included the following statement, “The parties agree the remaining funds

[from the sale of the real property following a reduction for certain costs] are to be used to equalize

the property distribution but do not agree as to the specific allocation of the remaining funds.”

       On the morning of trial, Shane submitted a trial brief. In this brief, Shane argued that the

stipulated agreement required a “transfer payment.” Shane also attached to his trial brief a

spreadsheet listing the non-real-estate assets and debts of the parties that Shane purported to be a

summary of the stipulated agreement:




CP at 68.


2
 Additional sections of the agreement addressed personal property, child support, and
maintenance.


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No. 50920-2-II


       The spreadsheet summarized the distribution of two vehicles, an Edward Jones account,

Suzanne’s SERS retirement account, and a Bank of America Visa debt as described in the

settlement agreement, with the addition of adding a value to the vehicle that was awarded to Shane

as his separate property. But the spreadsheet also included a $10,717 “marital lien” against

Suzanne, which represented the difference in the value of community property allotted to each

party less the credit card debt—a “marital lien” was not specifically mentioned in the settlement

agreement. CP at 68 (capitalization altered).

       It appears that Shane and Suzanne both testified at trial. But we cannot discuss their

testimony or the evidence presented or verify whether the spreadsheet was introduced at trial

because only the closing arguments have been transcribed.

       In closing argument, Shane’s counsel referred to the spreadsheet attached to his trial brief

while summarizing the settlement agreement and arguing that a $10,717 transfer payment from

Suzanne was required. Shane’s counsel noted that the transfer payment would “equalize that piece

of the property division.” Verbatim Report of Proceedings (VRP) at 3.

       Suzanne’s counsel objected to the use of the spreadsheet and asked the trial court to look

at the settlement agreement rather than the spreadsheet. Suzanne’s counsel stated that the first

time he had seen the spreadsheet was the day of trial and asserted that the spreadsheet was not

correct because it “puts the debt that [Shane] agreed to take, back onto [Suzanne].” VRP at 6-7.

Suzanne’s counsel further asserted that there had been no testimony about the spreadsheet and that

the spreadsheet did not reflect the settlement agreement. Suzanne’s counsel also argued that the

settlement agreement did not contemplate a “transfer payment.” VRP at 7.




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No. 50920-2-II


       After discussion of other matters, the parties discussed whether the settlement agreement

had contemplated a transfer payment, as outlined in the spreadsheet, or whether the agreement had

been reached in light of the parties’ disparate incomes and did not contemplate a transfer payment.

The trial court commented, “But, the spreadsheet just reflects part of the deal, it’s not the whole

picture.” VRP at 22. They then discussed whether the spreadsheet allocated half of the credit card

debt to Suzanne and, if it did, whether she had agreed to that approach in the settlement agreement.

Suzanne’s counsel argued that the transfer payment essentially made Suzanne assume half of the

credit card debt and that Suzanne had not agreed to that.

       The trial court stated that the spreadsheet

       ties in to the argument, it’s designed to explain the argument, their argument is that,
       I mean, they don’t say it like this, but I think the argument in a nutshell is, look at
       the disparity here if you want some basis to follow our recommendation as to what
       you ought to do, factor that disparity into what your decision is.

VRP at 23-24. The trial court continued, “I don’t think it’s the beginning and end of the analysis

is this spreadsheet. In fact, I have not even looked at it until we started to talk.” VRP at 24.

       Shane’s counsel responded, “[T]he spreadsheet is not a binding document. It is simply a

convenient summary of what the [settlement] agreement says and the [settlement] agreement also

says that the proceeds from the sale are to be used to equalize the property distribution. I think

those terms are fairly clear.” VRP at 24. Suzanne’s counsel disagreed that the settlement

agreement’s terms were clear.

       The trial court responded, “I think I see what [Suzanne’s counsel] is saying though, too. I

mean, I think he’s saying that if you had presented us this spreadsheet like this, we probably

wouldn’t have agreed to it in this form.” VRP at 24-25. Suzanne’s counsel agreed. The trial court




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No. 50920-2-II


stated, “I think I can, you know, take a look at this and come up with something that’s fair to both

parties.” VRP at 25.

       In a memorandum opinion, the trial court summarized the property allocation as presented

in the settlement agreement and the spreadsheet. But it then stated, “Based on this agreement,

[Shane] receives a (net) community property award of $19,785 and [Suzanne] receives a

community property award of $41,218. The difference between the two awards is $21,433 and a

marital lien of $10,717 is required to equalize the awards.” CP at 58-59 (emphasis added).

       Suzanne moved for reconsideration, arguing that the trial court’s decision to enter a martial

lien against her (1) violated her right to procedural due process because the spreadsheet was

presented for the first time on the day of trial and she was not given an opportunity to respond to

the spreadsheet, (2) was improper because the trial court failed to interpret the contract using

established rules for contract interpretation, and (3) was improper because the spreadsheet

amounted to extrinsic evidence of Shane’s subjective intent. The trial court denied Suzanne’s

motion for reconsideration. Suzanne appeals.

                                           ANALYSIS

                        I. EXTRINSIC EVIDENCE AND DUE PROCESS ISSUES

       Suzanne first argues that the trial court erred when it considered the spreadsheet because

the spreadsheet was extrinsic evidence of an intent to equalize the property award by splitting the

net community property distribution equally. We disagree.




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No. 50920-2-II


       The discussion about the spreadsheet during closing argument demonstrates that the trial

court understood the spreadsheet to be a summary of Shane’s argument, not evidence of the parties’

intent to split the net community property distributions equally. For instance, the trial court

expressly stated that the spreadsheet was designed to explain Shane’s arguments and that the court

intended to examine the case as a whole and reach a conclusion that was fair to both parties. This

statement by the court does not suggest that the trial court considered the spreadsheet to be

evidence of the parties agreeing to split the net community property distribution equally.

Accordingly, this argument fails.

       Suzanne further argues that because the spreadsheet was not properly introduced as

evidence and was not presented until the day of trial, she never had the opportunity to object to the

admission of the spreadsheet as evidence or the ability to present opposing evidence. She asserts

that this violated her procedural due process rights. But, as discussed above, the trial court did not

consider the spreadsheet as evidence. Accordingly, this argument fails.

                               II. CONTRACT INTERPRETATION ISSUE

       Suzanne next argues that the trial court incorrectly interpreted the settlement agreement

when it concluded that the settlement agreement allowed for the marital lien or transfer payment.

Suzanne asserts that because the spreadsheet cannot be considered as evidence of the parties’ intent

when they entered into the agreement and neither party submitted evidence of intent during the

trial, the interpretation of the stipulated agreement is a question of law that must be determined by

us. The record is inadequate to allow review of this argument.

       “The party seeking review has the burden to perfect the record so that, as the reviewing

court, we have all relevant evidence before us.” Stiles v. Kearney, 168 Wn. App. 250, 259, 277



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No. 50920-2-II


P.3d 9 (2012) (citing Bulzomi v. Dep’t of Labor & Indus., 72 Wn. App. 522, 525, 864 P.2d 996

(1994)). “An insufficient appellate record precludes review of the alleged errors.” Stiles, 168 Wn.

App. at 259 (citing Bulzomi, 72 Wn. App. at 525). Although Suzanne asserts that the parties did

not address the settlement agreement at trial, the only record of the trial proceedings Suzanne has

provided on appeal is a transcript of the closing arguments. We cannot rely solely on Suzanne’s

assertions in her appellate brief. Without a record of the trial, we cannot address this issue.

                                  III. APPELLATE ATTORNEY FEES

          Shane requests attorney fees and costs under RCW 26.09.140, RAP 14.2, and RAP 18.1.

          RAP 18.1(a) allows us to award attorney fees to a party entitled to them under “applicable

law.” We may award costs to the party that substantially prevails on review. RAP 14.2. We also

have the discretion to order a party to pay the other party’s attorney fees and costs associated with

the appeal of a dissolution action. RCW 26.09.140. In exercising our discretion, we consider the

arguable merit of the issues on appeal and the parties’ financial resources. In re Marriage of King,

66 Wn. App. 134, 139, 831 P.2d 1094 (1992). In order for us to consider their financial resources,

both parties must file financial declarations prior to ten days before the date of oral argument. RAP

18.1(c). Because neither party filed an affidavit ten days before this case was considered, we do

not consider Shane’s request. In re Marriage of Crosetto, 82 Wn. App. 545, 565-66, 918 P.2d 954

(1996).




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No. 50920-2-II


        We affirm.

        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.



                                                    SUTTON, J.
 We concur:



 JOHANSON, P.J.




 BJORGEN, J.




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