                                                                                                 FILED
                                                                                           cQUIRT OF APPEALS
                                                                                                r31V! s1 NLT

                                                                                          201ti SEP 00     MI 9: 21

                                                                                          STATE OF WASHINGTON

                                                                                            Y
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                       DIVISION II


In re the Domestic Partnership of:                                                      No. 44289 -2 -II


JEAN M. WALSH,


                      Appellant /
                                Cross- Respondent,


            v.



KATHRYN L. REYNOLDS,                                                              PUBLISHED OPINION


                      Respondent /Cross -Appellant.


            HUNT, J. —        Jean M. Walsh appeals and Kathryn L. Reynolds cross -appeals the trial


court' s decree of dissolution of domestic partnership, challenging the court' s findings of fact and

conclusions of        law.    They argue that the trial court erred in ( 1) ruling that they had lived in an
                              1
    equity relationship " between            January   1, 2005,   and   August 20, 2009; ( 2)    ruling that they owned

their Federal Way home as tenants in common; and ( 3) awarding each approximately 50 percent




1
    Washington        courts recognize        an "   equity relationship"    as   a "   stable, marital -
                                                                                                        like relationship
where both parties cohabit with knowledge that a lawful marriage between them does not exist.'
In    re   Meretricious               of Long, 158 Wn. App. 919, 925, 244 P. 3d 26 ( 2010) ( quoting
                             Relationship
Connell       v.   Francisco, 127 Wn.2d 339, 346, 898 P. 2d 831 ( 1995)). Courts also refer to such an

 equity relationship"             as a "` committed  intimate relationship ' or a "' meretricious relationship. '

Long, 158 Wn. App.                at   922 ( quoting Olver v. Fowler, 161 Wn. 2d 655, 657 n. 1, 168 P. 3d 348
    2007)).
No. 44289 - -II
           2



share of equity in the Federal Way,home.2 Walsh also appeals the trial court' s award of attorney
fees and costs to Reynolds.


          We   affirm    the trial    court' s   finding      of an "      equity relationship" between the parties for


purposes of equitably allocating their community property in dissolving their registered domestic

partnership.     We     reverse   the trial      court' s    finding      that this " equity relationship"     began only in

2005 and remand to the trial court to reconsider and to amend its finding about when the parties'

    equity relationship" began and then to reassess its equitable distribution of community property

based    on   this   finding.   We also affirm the trial court' s award of attorney fees and costs to

Reynolds, and we grant her attorney fees and costs on appeal.

                                                              FACTS


                                                      I. RELATIONSHIP


          Jean Margaret Walsh is           an     orthopedic         surgeon    living   in Pierce   County.    In 1986, she


moved     to Fresno, California,         where she purchased a               home   with   her   personal savings.   In 1987,


she used additional personal savings to purchase a private medical practice.


          In 1988, Walsh        met     Kathryn Reynolds.                After dating for about three months, Reynolds

moved     into Walsh' s Fresno home, but              she paid no mortgage or utilities.              Thereafter, Walsh and


Reynolds lived together for 20 years but maintained separate bank accounts and financial



2
    Each party   seeks a greater share of           the     assets   than the trial   court awarded.      More specifically,
Walsh argues that the trial court should have applied community property law more narrowly,
    only to assets acquired as of their Washington domestic partnership registration on August
i. e.,
20, 2009 ( thereby decreasing the community assets available for distribution and leaving a
greater share of assets as        her   separate    property). Reynolds argues that the trial court should have
applied .community property law more expansively, i. e., to assets acquired from the beginning of
the parties' relationship in California, 1988 ( thereby increasing the community assets available
for distribution and increasing her share of property).



                                                                     2
No. 44289 - -II
          2



records.    Reynolds was then working for a hardware store; she later worked for a custom home

builder.


          Soon after Reynolds moved in with Walsh, they agreed that Walsh would pay Reynolds a

salary for performing      housekeeping         at   the home      they   shared.    At Reynolds' request, Walsh fired


her former housekeeper        and    hired Reynolds to         perform      the   same work    for the   same   pay. Walsh


also made contributions to Reynolds' separate retirement account.


         In 1989, Reynolds was laid off from her custom homebuilding job and returned to school

at   Fresno State      University.     Walsh         paid   Reynolds'       tuition and other educational expenses;


Reynolds completed her degree in 1993.


          In 1992, Walsh      gave    birth to       a   daughter.       Walsh paid Reynolds additional money for

daycare     services   for her daughter.        In early 1993, Reynolds moved out of Walsh' s house, but

Walsh      continued    to pay Reynolds for household                 and   daycare    services.   A few months later,

however, Reynolds         moved      back into Walsh'         s    house.    In December 1993, Reynolds adopted


Walsh' s daughter.


           In 1996, Walsh    gave    birth to      a son, whom        Reynolds      adopted   in 1997. When Walsh was


pregnant, she     had decided to      sell   her     private medical practice.         The medical equipment sold for


about $    20, 000. 00.   Walsh     also   sold    for $ 131, 766. 22 one share of a local health management


company,      which she    had   acquired    in 1987, the         year   before   she met   Reynolds.    Walsh used these


proceeds and a portion of her personal bank account to purchase a 20 -acre eastern Fresno


property in her     own name.        Walsh' s income decreased significantly after she sold her practice,

but she continued to pay Reynolds at the same rate as previously.




                                                                  3
No. 44289 -2 -11



        In 1998, Reynolds          gave   birth to   a   daughter,   whom   Walsh    adopted    in 2000.    Walsh paid


for all three adoptions, all the children' s expenses, the entire mortgage, all utilities, and all other


household      expenses.    When Reynolds paid for something for the children or for the household,

she would request and receive reimbursement                     from Walsh.   For purposes of buying household

items, Walsh added Reynolds as an authorized user on Walsh' s separate credit card in 2000; in

2007, Walsh added Reynolds as an authorized user on another separate credit card.


        Between 1990            and   2011, Walsh        paid   Reynolds   over $   500, 000.   Walsh also paid off


Reynolds' $ 7, 500       credit card   debt,   which     Reynolds later    repaid   to Walsh    with a $   500 monthly

deduction from her daycare and housekeeping salary.

                                A. Registered Domestic Partners, California, 2000


          On March 6, 2000, Walsh and Reynolds registered as domestic partners in California.


That   year,    Walsh sold her eastern Fresno property and purchased a house in Tacoma,

Washington, again in her own name. In June, Walsh and Reynolds moved to Washington, where


Walsh found employment as an orthopedic surgeon.


          Walsh    and    Reynolds     continued      their existing financial      arrangement:     Walsh paid the


mortgage; health, dental, and auto insurance; the children' s private school tuition; and other


household      expenses.     Walsh also provided Reynolds with medical benefits by listing her as a

domestic    partner      with    her insurer,   and      continued   to pay Reynolds       an   income.     Walsh and


Reynolds kept titles for their respective personal cars in their own names; title to the family car,

however, was in both naives.


          In 2003, Walsh sold the Tacoma home and used the sale proceeds to purchase a home in

Federal   Way. This time, Walsh and Reynolds both signed the deed, which expressly stated that



                                                                4
No. 44289 -2 -II



they   were "     acquir[ ing] all interest" in the property " as joint tenants with right of survivorship,

and not as    community property           or as   tenants in   common."       Clerk'   s   Papers ( CP)   at   368.   Walsh,


however, took out a mortgage on the Federal Way property solely in her name; again, Reynolds

made    no   financial    contribution     to the home' s       purchase    or mortgage.        Walsh also paid for all


utilities, until the parties' 2012 dissolution.


                              B. Registered Domestic Partners, Washington, 2009


         In August 2009, Walsh and Reynolds registered as domestic partners in Washington.


They separated seven months later on March 14, 2010.

                       II. PROCEDURE: DOMESTIC PARTNERSHIP DISSOLUTION TRIAL


         Walsh      petitioned     for dissolution    on   March 11, 2011.       The parties agreed on a parenting

plan   and   child     support     order   for their 16-     and    13-   year -
                                                                               old   children.     Post separation and


dissolution, Walsh continues to pay for over 92 percent of the private school tuition for their son

and younger daughter and nearly all college tuition and costs for their older daughter.

Collectively, the parties had amassed over $2 million in real property, retirement, and investment

accounts     at    the time   of   the dissolution.        Only property distribution and attorney fee issues

remained for trial.




                                                                5
No. 44289 - -II
          2



         After a three -day trial, the trial court assessed the five Long3 factors4 as applied to Walsh

and Reynolds' relationship and found that they had lived and held themselves out as family for

almost 23 years, since 1988, when they began cohabiting in California. The trial court also noted

that if these two        people " were a   heterosexual     couple          that had been cohabiting       since   1988...     this



Court would not hesitate to find that a meretricious or equity relationship existed for the 20 plus

years prior   to the date     of   the [ formal statutory Washington]                marriage."     Suppl. CP at 412.


         Nevertheless, the trial           court   concluded             that ( 1)   the parties had     lived in    an "    equity


relationship"       beginning January         1,   2005, 5 until they registered as domestic partners under
Washington'     s    Domestic       Partnership      Act,   chapter          26. 60 RCW, in 2009; ( 2) therefore, the


property the parties had acquired during this " equity relationship" period was subject to equitable

distribution as if it were community property; and ( 3) the property the parties had obtained after

their August 20, 2009 domestic partnership registration in Washington, but before their March

14, 2010 separation, was community property.

         The trial court also ( 1) found that the parties owned the Federal Way residence as tenants .

in   common; (      2)   ordered   the   residence    sold; (   3)       awarded     Walsh   an   initial $ 40, 834. 42 from the



3 In re Meretricious Relationship ofLong, 158 Wn. App. 919, 925, 244 P. 3d 26 ( 2010).

4 At least before our legislature promulgated statutes recognizing domestic partnership status and
extending community property rights to such partnerships, Washington courts recognized a
common law " equity relationship"   in a ' stable, marital -like relationship where both parties
cohabit with knowledge that a lawful marriage between them does not exist. '     Long, 158 Wn.
App. at 925 ( quoting Connell, 127 Wn.2d at 346). Long set forth a non -exclusive list of factors
for courts to consider in determining whether an equity relationship exists between partners.
Long, 158 Wn. App. at 925 -26.

5 The trial court ruled that it would be unconstitutional to find an equitable relationship existed
before  January 1, 2005, because neither California' s nor Washington' s registered domestic
partnership laws vested Walsh and Reynolds with community property rights.



                                                                     6
No. 44289 -2 -II



sale of the house for mortgage payments on the home before January 1, 20056; and ( 3) divided

the remaining      proceeds       51. 89   percent    to Walsh   and   48. 11   percent   to Reynolds.        The trial court


divided equally the remaining community property assets acquired between January 1, 2005, and

March 14, 2010. The trial court awarded Reynolds $ 35, 117. 50 in attorney fees and $ 2,400. 75 in

costs, but no maintenance.


          Walsh appeals and Reynolds cross -appeals.


                                                         ANALYSIS


          Walsh argues that the trial court erred in ruling that ( 1) the " equity relationship" doctrine

applied to the parties' relationship before they registered as domestic partners in Washington on

August 20, 2009, namely in acknowledging                           Washington- registered "
                                                             a non -                                     equity relationship"


that began on January 1, 2005, when California amended its domestic partnership statute to

                                                                       domestic                     2)    assets    the   parties
                                                                                   partners8;   (




extend     community property              rights   to   registered




accumulated       during   this " equity relationship,"        between January 1, 2005, and August 20, 2009,

were community property subject to distribution during the dissolution trial; and ( 3) the parties

held the Federal Way home as tenants in common, rather than as joint tenants with a right of

survivorship. Walsh further argues that the trial court erred in (4) distributing the proceeds of the

Federal    Way    house    sale   equally;    and (   5) awarding Reynolds attorney fees            and costs.      Except for



6
    The trial   court also awarded         Walsh $ 180, 000 from her father'        s contributions and $          30, 000 from
inherited funds used to pay down the mortgage before Walsh and Reynolds separated on March
2010.
7
    The trial    court   reduced      Reynolds'       requested   attorney fee amount           by $     2, 635 for time her
attorney had spent familiarizing herself with Pierce County Local Rules, for discovery not in
compliance with the local rules, and for a trial brief never submitted to the court.

8
    CAL. FAM. CODE § 297. 5.
No. 44289 -2 -II



the trial court' s     finding    that the      parties' "   equity relationship" began in 2005, we disagree with

Walsh' s contentions.


         Reynolds cross -appeals, arguing that the trial court erred in ( 1) failing to characterize as

joint   assets   the   parties'    assets       accumulated      before    January    2005; ( 2) ruling that the parties'


 equity relationship"       commenced            in   January   2005,    rather   than in 1988; (   3) ruling that Walsh and

Reynolds held the Federal Way property as tenants in common; and ( 4) entering the decree of

dissolution. We agree with Reynolds.


                                                   I. STANDARD OF REVIEW


         We review a trial court' s property distribution to determine whether substantial evidence

supports   its findings     of    fact,   and whether         those findings      support   its   conclusions of      law. In re


Marriage of Pennington, 142 Wn.2d. 592, 602 -03, 14 P. 3d 764 ( 2000). " Substantial evidence is


 evidence in sufficient quantum to persuade a fair -
                                                   minded person of the truth of the declared


premise. '       Gormley     v.   Robertson, 120 Wn.             App.     31, 38, 83 P. 3d 1042 ( 2004) (         quoting Fred

Hutchinson Cancer Research Ctr.                   v.   Holman, 107 Wn.2d 693, 712, 732 P. 2d 974 ( 1987)).                     We


defer to the trial     court' s   factual findings. Pennington, 142 Wn.2d                   at    602 -03.    But we review its


conclusions of law de novo. Long, 158 Wn. App. at 925.

          We review for abuse of discretion the trial court' s distribution of property at the end of an

 equity relationship."            Long,     158 Wn.          App.   at   928.     Once the trial      court   finds   an "   equity


relationship,"    the court distributes all property the parties acquired through their efforts during

the " equity relationship."               Id.    To divide the property justly and equitably, the trial court

examines     the relationship and the parties'                  property   accumulation.          Id. at 928 -29 ( citing In re

Marriage of       Lindsey,        101     Wn.2d 299, 304, 678 P. 2d 328 ( 1984)).                      The trial " court may




                                                                    8
No. 44289 -2 -II



characterize     property         as ` separate'    and `   community'      by   analogy to      marital     property."    Id. at 929


quoting Connell         v.   Francisco, 127 Wn.2d 339, 351, 898 P. 2d 831 ( 1995)); see RCW 26. 16. 010-


030 ( definitions of separate and community property).

          But,   unlike           a    marriage    dissolution,     where     all     property    is    before the        court,   only


community        property             is   before the trial      court    for distribution        at   the    end    of   an "   equity


relationship.         Id.    at   929 ( citing Connell, 127 Wn.2d                at   351).   Any      increase in the "     value   of




separate    property is likewise              separate    in   nature."   Id. (citing     In re Marriage of Lindemann, 92

Wn.    App.   64, 69, 960 P. 2d 966 ( 1998)).               Nevertheless,


           if the court is persuaded by direct and positive evidence that the increase in value
          of separate property is attributable to community labor or funds, the community
          may be equitably entitled to reimbursement for the contributions that caused the
          increase in value."


Id. (emphasis     added) (            quoting Lindemann, 92 Wn. App. at 70).

                                                   II. COMMUNITY PROPERTY


          Walsh and Reynolds had lived together since 1988, before formalizing their relationship

by    registering     as     domestic         partners,     first in California         on    March     6,   2000,    and again in


Washington       on   August 20, 2009.             The trial court ( 1) characterized the parties' relationship as an

    equity relationship "9            between the 2005 amendment to California' s Domestic Partnership Act

and the parties' 2009 registration as domestic partners in Washington; and ( 2) ruled that the


assets the parties had acquired during this period were community property under the common




9
    Suppl. CP 404.
No. 44289 -2 -II



law " equity relationship" doctrine.'°

              Walsh contends that ( 1) RCW 26. 60. 08011 limited the application of community property

rights        to    registered       domestic    partnerships,            beginning with either the effective date of

Washington' s domestic partnership statute ( June 12, 2008) 12 or the date the parties registered
 here, August 20, 2009),                whichever      is later; ( 2)     the trial court erred in ruling that the parties had

an " equity relationship" between January 1, 2005, and August 20, 2009, when they registered as

domestic partners in Washington; and ( 3) the trial court erred in ruling that the assets the parties

acquired during that 4 1/ 2 -year period were community property, subject to distribution during

their dissolution trial.


1°
       The trial court also ruled that property the parties had acquired after they registered as
domestic           partners   in Washington —between August 20, 2009, and their separation on March 14,
2010 —was             subject    to Washington'        s    community property law                   and   RCW 26. 60. 080.            Neither

party disputes the trial court' s application of Washington' s statutory community property law to
this            August
           post -             20, 2009      period   of     their relationship.             Thus, the trial court' s distribution of
community property acquired during this latter period is not at issue on appeal.
11
           RCW      26. 60. 080,      which     governs          community          property         rights     of     registered     domestic
partnerships, provides:

        Any community property rights of domestic partners established by chapter 6,
        LAWS OF 2008 shall apply from the date of the initial registration of the domestic
        partnership or June 12, 2008, whichever is later.
In 2008, Washington registered domestic. partners did not automatically enjoy rights such as
community property; in contrast, California registered domestic partners enjoyed the rights and
duties of marriage, including community property rights, as early as 2005. 2003 Cal. Stat. 3081,
       4,   at]   3083[ - 84].      Walsh contends that ( 1) California' s broader grant of rights is a substantial
difference between Washington'                   s   domestic partnership                   rights   before 2008; ( 2) consequently,

Washington would not have recognized the relatively expansive domestic partnerships of
California in 2008, Br.                of   Appellant       at   7 -8,   16;   and (   3)    it was not until December 2009 that
Washington' s domestic                 partnerships    became "          equivalent"        to California'      s.    Br. of Appellant at 16
11.   1.     But because         we     can   affirm       the trial     court' s   ruling based           on        the   alternative "   equity
relationship"           doctrine, we need not                 address whether Washington would have recognized
California' s domestic partnerships before 2008.

12
      LAWS OF 2008,           ch.   6, § 601.




                                                                          10
No. 44289 -2 -II



           In her cross -appeal, Reynolds argues that, in distributing the parties' property at the

dissolution trial, the trial court abused its discretion in applying the " equity relationship" doctrine

to only this 4 1/2- year post -Washington registration period and in failing to consider their entire

22 -year relationship       as an "      equity relationship. "13        Thus, we first address the propriety of the trial

court' s    application      of    the "    equity    relationship"         doctrine     to    the   parties'       pre- Washington-


registration relationship. We next address whether the trial court erred in limiting application of

the " equity relationship" doctrine to the 4 1/ 2 years before the parties registration in Washington,

rather than extending it to earlier periods of their relationship.

                      A. Application of "Equity Relationship" Doctrine Before 2008

           Walsh contends that Washington' s 2008 Domestic Partnership Act, chapter 26. 60 RCW,

did not extend community property rights to pre- existing registered California domestic

partnerships under the " equity relationship" doctrine because the two states' community property
                                                                   14                                 09015.
rights schemes were not "           substantially     equivalent. "          See RCW 26. 60.                    Walsh is incorrect.


           The " equity relationship"            or "` [ meretricious]         relationship '         doctrine is a creature of


common       law,   not statute.         Lindsey, 101 Wn.2d at 304 ( quoting Latham v. Hennessy, 87 Wn.2d

13
  Reynolds actually uses the term " committed intimate relationship." See, e. g., Br. of Resp'                                       t at
23. But for purposes of this opinion, we use the term that the trial court used, " equity

relationship."      CP at 375. See also n. 1, supra.


14 More specifically, Walsh argues that ( 1) RCW 26. 60. 090, which establishes reciprocity with
other states'      domestic partnership laws, provides that Washington will recognize " substantially
equivalent"       foreign domestic partnerships; ( 2) when California extended community property
rights     to domestic      partners       in 2003, Washington did             not;    and (   3)    therefore, Washington and
California'   s   domestic partnership laws            were not "        substantially   equivalent."      RCW 26. 60. 090.

15
     The legislature   amended           RCW 26. 60. 090 in 2009, 2011,              and   2012. LAws          of   2012,   ch.   3, §   12;
LAWS OF 2011,         ch.   9, §    1;    LAWS   OF   2009,   ch.   521, §     72.    These amendments did not alter the
statute in any way relevant to this case; accordingly, we cite the current version of the statute.



                                                                    11
No. 44289 -2 -II



550, 552 -53, 554 P. 2d 1057 ( 1976),        overruled in part on other grounds by Lindsey, 101 Wn.2d at

303 -04) ( recognizing    meretricious     relationship doctrine      and   instructing   trial courts to make '   just


and equitable '      distribution of property when terminating such relationships). 16 Thus, the trial

court did not need to conclude that California' s and Washington' s domestic partnership statutory

schemes were "       substantially equivalent" in 2008 in order to apply Washington' s common law

 equity relationship"      doctrine to property that Walsh and Reynolds had acquired before they

registered their domestic partnership in Washington in 2008.

           In Washington, all property acquired during a marriage is presumptively community

property.     RCW 26. 16. 030; In re Marriage of Short, 125 Wn.2d 865, 870, 890 P.2d 12 ( 1995).

In 2008,      our state legislature expressly extended this community property presumption to

property acquired during a registered domestic partnership, including partnerships registered in

other states.      RCW 26. 16. 030; LAWS OF 2008,        ch.   6, §   604. 17 Before the legislature' s statutory

recognition of domestic partnerships in 2008, however, Washington courts recognized a common


law " equity relationship" in    a '      stable, marital -
                                                          like relationship where both parties cohabit with




16
     See   also   Olver, 161 Wn.2d   at   668 -69 ( " Washington common law has evolved to look beyond
how property is titled,       requiring equitable distribution of property that would have been
community property had the partners been married. ").

17 RCW 26. 60. 090 expressly grants reciprocity to domestic partnerships already existing in other
jurisdictions when Washington' s registered domestic partnership law became effective:
         A legal union, other than a marriage, of two persons that was validly formed in
         another jurisdiction, and that is substantially equivalent to a domestic partnership
         under this chapter, shall be recognized as a valid domestic partnership in this state
         and shall be treated the same as a domestic partnership registered in this state
           regardless of whether it bears the name domestic partnership.
 Emphasis added).




                                                         12
No. 44289 -2 -II



knowledge that              a   lawful    marriage       between them does         not exist. '
                                                                                                    Long, 158 Wn. App. at 925

 quoting Connell, 127 Wn.2d at 346).

             Courts consider several factors in determining the existence of an " equity relationship;"

     N] o    one     factor is determinative"             or " more   important than        another."          Long, 158 Wn. App. at

926.        These factors include " continuous cohabitation, relationship duration, relationship purpose,

pooling       of resources and services              for joint     projects, and   the parties' intent."          Long, 158 Wn. App.

at    926 (        citing    Connell,       127     Wn.2d     at    346). "     These factors            are    neither exclusive     nor


hypertechnical but               rather. a means     to   examine all       relevant   evidence."        Long, 158 Wn. App. at 926

 citing Pennington, 142 Wn.2d at 602).

             Here, the trial court assessed the five Long factors as applied to Walsh' s and Reynolds'

relationship and entered the following findings of fact and conclusions of law:

              1.    Continuous Cohabitation: The trial                 court   found,     and   the record shows, "        But for a few


brief interruptions, the               parties   continuously       cohabited   from 1988        until   2010."     Suppl. CP at 411.


              2.     Relationship         Duration:       The trial    court    found that the       parties'      relationship " lasted


approximately 23                years."    Suppl. CP at 411.


              3.     Relationship       Purpose:     The trial      court   found, " The purpose of this relationship was to


create a           family. This is evidenced by the parties' conception, birth, and cross adoption of three

children,           living       together     in    an    intimate     committed         relationship,         supporting    each   other


emotionally            and      financially   and   holding    themselves       out    to the   world as a      family."    Suppl. CP at


411.


              4.     Pooling      of   Resources:        The trial court found that, although Walsh was the principal


income         earner,      both Walsh        and   Reynolds "      contributed       their time   and     energy to ...     raising .. .




                                                                        13
No. 44289 -2 -II



their   family" and to " joint projects such as the extensive remodel of the Federal Way home."

Suppl. CP at 411.


          5.     Parties' Intent:      The trial            court      found that,   although     the   parties "   clearly intended to

keep    certain assets separate,"           there was " no doubt that they intended to live together as a family."

Suppl. CP at 411.


          Substantial evidence supports these findings, including that Walsh and Reynolds intended

to   be in     a marriage -like      relationship               with   a   shared purpose.       The record contains substantial


evidence of their permanency planning, shared love and intimacy, adopting and raising children

as a couple, extended family relationships, caring for one another when sick, providing financial

and non -financial support for each other and their children, and holding themselves out as a

couple.      That they later formalized their relationship by registering as statutory domestic partners

does    not     defeat   application        of   the   common              law " equity   relationship"      doctrine to their years


together       before the statutory     registration option                 became   available     to them. We hold that the trial


court    correctly       ruled   that Walsh        and          Reynolds lived in         an "   equity relationship"         before they

registered as domestic partners in Washington in 2009, beginning at least as far back as the

January 1, 2005 date the trial court chose.

          We      also   hold, however, that the trial                     court erred    in   limiting   application    of   the " equity


                                                       1/
relationship" doctrine to only the 4                        2   years   before the   parties     registered in Washington.         There


are several other dates that could serve as starting points for application of this doctrine here.

We first       consider    the   parties'    registration           in California. California' s legislature first recognized


domestic partnerships between same -sex couples in 1999, when it enacted CAL. FAM. CODE §


297.     In 2003, California expanded this statute to give domestic partnerships the same statutory



                                                                            14
No. 44289 -2 -II



rights and benefits as married heterosexual couples, thereby expressly extending community

property     rights   to domestic        partnerships.       CAL. FAM. CODE § 297. 5( k)( 1).                 Walsh and Reynolds


registered as domestic partners in California in 2000, receiving the benefits of California' s

community property rights law both at that time and later when the statute was amended in 2003.

         We     see    no   reason      why the five        Long "    equity relationship" factors that the trial court


applied to the parties' post -2005 relationship should not also apply to their pre -2005 domestic

partnership relationship in California,'$                   which, as the trial court here expressly recognized,

involved     continuous cohabitation               for " approximately 23             years"      in a relationship for which the

purpose      was "    to   create   a   family"     while "   holding themselves out to the world as a family."

Suppl. CP      at   411.     Throughout their relationship, both Walsh                         and   Reynolds " contributed their


time   and   energy to ...      raising ...        their   family"    and      to " joint   projects,"   with " no doubt that they

intended to live together           as a   family."        Suppl. CP      at   411.   We hold, therefore, that the trial court


should have extended application of the " equity relationship" doctrine to the parties' relationship

before     2005,      including         their    registered    domestic          partnership         under    California' s   act,   an




unimpeachable indicator of the intended nature of their relationship.

                                          1.    No statutory preemption before 2008

         But Walsh           also   argues       that, because the legislature "                  devised a statutory means of

resolving property distribution issues                by    enacting RCW 26. 09. 080"                 and applying it to domestic




18 That California' s legislature did not expressly extend community property rights to registered
domestic      partners      until   2003 has        no     bearing    on       whether      the   parties    established   an "   equity
relationship" before that time, with its corresponding common law community property rights.



                                                                     15
No. 44289 -2 -II


                            19
partners   in 2008,              this   statute preempts        the   common      law " equity relationship" doctrine. Br. of


Appellant        at   25.   To the extent that she argues the statute retroactively preempted common law

equity doctrine before 2008, when there was no legislation in Washington, Walsh is incorrect.

During     most        of   Walsh'       s    and   Reynolds'       22 -year relationship, Washington' s statutes neither

recognized same -sex domestic partnerships nor prescribed a means of resolving their property

distribution issues that expressly                    preempted       common       law.    Until our legislature enacted RCW


26. 09. 080       and       provided           statutory      community         property     rights    for   registered   domestic


partnerships, only the common law " equity relationship" doctrine addressed property distribution

for such partnerships.


         This         common        law " equity relationship"              doctrine does not depend on the formality or

 legality"       of   the   parties'     marriage or       relationship.        Vasquez v. Hawthorne, 145 Wn.2d 103, 107,


33   P. 3d 735 ( 2001).                  For relationships that existed before our legislature enacted RCW


26. 09. 080,      courts         could       apply the " equity relationship"             doctrine to couples like Walsh and


Reynolds, find that they had been                          living     in   a " meretricious"    or "   equity" relationship, and,

                                                                                                             20
consequently,           distribute their            community property equitably.                 See Id.         Although RCW




19 RCW 26. 09. 080 governs the disposition of property and liabilities in a dissolution and
provides relevant factors for a court to consider when distributing assets, such as:
            1)    The nature and extent of the community property;
           2)     The nature and extent of the separate property;
           3)     The duration of the marriage or domestic partnership; and
           4)         The economic circumstances of each spouse or domestic partner at the time
           the division of property is to become effective.
The legislature             amended           the   statute   in 2008 to include the terms " domestic                partner"   and

 domestic partnership" in                     addition   to "   spouse"     and " marriage."     See LAws OF 2008, ch. 6, §
1011.


20 As our Supreme Court has more specifically explained:

                                                                           16
No. 44289 - -II
           2



26. 09. 080 provides a framework for a trial court' s distribution of a couple' s domestic partnership

property, the 2008 amendments to this statute do not retroactively affect the rights, benefits, and

property   expectations      of parties      to    a meretricious       or "   equity relationship" accrued before the


amendment' s effective       date in 2008.          See LAWS       OF   2008,    ch.   6 § 1011.       Thus, this statute does


not control distribution of property that Walsh and Reynolds accumulated during their

relationship before the 2008 amendment.

        Walsh also cites RCW 26. 60. 080 as purporting to show that the legislature intended

domestic partners to enjoy community property rights only as of the statute' s effective date or

the date the   parties registered as            domestic   partners, whichever came             later.   Here, the trial court


correctly ruled that the parties' pre -2008 community property rights were based on the common

law " equity relationship"          doctrine, rights that already existed before our legislature enacted

RCW 26.60. 080, formalizing community property rights " established by [ chapter 26. 60 RCW]"

and   expressly extending them to               registered   domestic     partners     effective   2008.    RCW 26. 60. 080.


Agreeing with the trial court on this point, we hold that RCW 26. 60.080 did not erase the parties'




        When equitable claims are brought, the focus remains on the equities involved
        between the     parties.         Equitable      claims are not     dependent      on   the "   legality" of the
        relationship between the parties, nor are they limited by the gender or sexual
         orientation of     the   parties.      For example, the use of the term " marital- like" in prior
         meretricious relationship cases is a mere analogy because defining these
         relationships as related to marriage would create a de facto common -
                                                                             law
         marriage, which          this   court    has   refused   to   do. [ Pennington, 142 Wn.2d at 601].
         Rather than relying on analogy, equitable claims must be analyzed under the
         specific   facts   presented      in   each case.    Even when we recognize " factors" to guide
         the court' s determination of the equitable issues presented, these considerations
         are not exclusive, but are intended to reach all relevant evidence.
Vasquez, 145 Wn.2d at 107 -08.




                                                                  17
No. 44289 -2 -II



 equity     relationship"           that already existed before they registered as domestic partners in

Washington.


                                         2. Findings of fact; conclusions of law


           Walsh also argues that substantial evidence does not support the trial court' s factual

findings.     Relying on Pennington, Walsh contends that the trial court should have reached a

different conclusion after weighing the five Long factors.21 Walsh asserts that, contrary to the

trial court' s findings, the parties did not pool their resources, arguing that instead they made a

 concerted      effort    to   remain    separate      financial    entities,"   such as by maintaining separate bank

accounts and by never entering into a joint debt. Br. of Appellant at 31.

           But we defer to the trial court' s factual findings as long as substantial evidence supports

them.      Pennington, 142 Wn.2d            at   602 -03.      As we have already explained, here the evidence and

the trial court' s application of the five Long factors support the trial court' s characterizing the

parties'        2005
           post -         relationship     as an "    equity relationship."          Suppl. CP at 412.


                                                         3.    Cross -appeal


           In her cross- appeal, Reynolds argues that the trial court erred in declining to apply the

 equity relationship" doctrine to the first 17                    years   of   the   parties'   22 -year relationship.      Walsh


counters     that ( 1)   the trial court " properly           considered   the   common         law, [ applicable]    statutes, and




21 More specifically, Walsh argues that, in Pennington, the Washington Supreme Court held that
the parties      did     not   meet    the "` pooling        factor because they did not purchase
                                                              of resources '


property jointly, did not contribute jointly to their retirement accounts, and maintained separate
bank    accounts.        Br.   of   Appellant    at   28 ( quoting Pennington, 142 Wn.2d               at   607).    Nevertheless,

Walsh acknowledges that the purpose of her relationship with Reynolds was to " co- parent" their
children. Br. of Appellant at 29. Walsh' s " co- parent" assertion supports the trial court' s finding

that the parties held themselves out as one family, which weighs in favor of its finding an " equity
relationship ".




                                                                   18
No. 44289 -2 -II


                                                                         22
the   length    and nature      of   the   parties'    relationship "         when    it limited   application of        the " equity



relationship"        doctrine to the latter period of their relationship between January 1, 2005, and

August 20, 2009; but ( 2) in so doing, the trial court erred in using January 1, 2005, as the date on

which      their " equity relationship"         began and their separate properties converted to community

property, rather than August 20, 2009, the date when the parties registered as domestic partners

in Washington.


           We agree with Walsh that the trial court erred in using January 1, 2005, as the start date;

but   we    disagree that the date          should    have been August 20, 2009.              The findings of fact and the


record     do   not   support   the trial     court' s     legal   conclusion     that the   parties' "   equity relationship"


began    no earlier     than 2005.         Pennington, 142 Wn.2d at 602 -03; see Long, 158 Wn. App. at 925

 we review de novo the trial court' s legal rulings).


           As the trial court explained,


           If the two people in this case were a heterosexual couple that had been cohabiting
           since 1988, ... this Court would not hesitate to find that a meretricious or equity
           relationship existed for the 20 plus years prior to the date of the marriage.

Suppl. CP       at   412. Nevertheless, the trial court declined to consider whether the facts supported


applying the " equity relationship"                   doctrine to any period during the first 17 years of these

parties' relationship, reasoning that characterizing their properties before California' s domestic

partnership          law became       effective       on   January       1,   2005,   would "      retroactive[   ly]"    alter their



 property rights without due process of law. "23 Reynolds contends that ( 1) this statement shows

that the trial court treated the initial period of the parties' same -sex relationship differently than it


22
     Reply Br. of Appellant at 5 ( emphasis omitted).

23 Suppl. CP at 412, 413. Neither party raises a due process argument on appeal.

                                                                    19
No. 44289 -2 -II



would have treated a heterosexual relationship; and ( 2) acknowledging an " equity relationship"

does   not require "' retroactive application '            of laws governing domestic partnerships and " is no

different than   other cases where            heterosexual   couples cohabit prior   to marrying. " 24 Br. of Resp' t

at27.




          RCW 26. 09. 080 gives the trial court broad discretion in crafting a just and equitable

distribution of the parties' property, which distribution we will not disturb on appeal absent a

showing that the trial court committed a manifest abuse of discretion. In re Marriage ofHilt, 41

Wn.    App.   434, 439, 704 P. 2d 672 ( 1985) (          citing In re Marriage ofMiracle, 101 Wn.2d 137, 675

P. 2d 1229 ( 1984); Baker             v.   Baker, 80 Wn.2d 736, 498 P. 2d 315 ( 1972)).          In light of the trial


court' s comprehensive and detailed overall distribution of Walsh and Reynolds' separate and


community assets, we cannot say that the trial court abused its discretion in ruling that the

parties' non -separate assets became community property beginning at least as early as in 2005

and in crafting its property distribution accordingly.

          But the trial court failed to consider the common law and its application to the parties'


 equity    relationship"        that existed before California' s 2005 statutory recognition of such

relationships,    despite explaining that had Walsh and Reynolds been a legally recognized

heterosexual     marriage,       it   would     not   have " hesitate[ d] to find that   a   meretricious   or "   equity


24 Reynolds cites several cases for the proposition that courts treat property accumulated during a
period of cohabitation before marriage as " community- like" and, thus, available for distribution
during a dissolution. Br. of Resp' t at 27 ( citing Bodine v. Bodine, 34 Wn.2d 33, 36 -37, 207 P. 2d
1213 ( 1949); Lindsey, 101 Wn.2d at 306 -07; In re Marriage ofHilt, 41 Wn. App. 434, 441, 704
P. 2d 672 ( 1985)).      But none of these cases stand for the proposition that a trial court is required
to treat   long -
                term      cohabitation as an " equity relationship" that creates community property;

rather,   the trial   court "
                            may  be ... justified in treating such property as though it belonged to the

community."           Bodine, 34 Wn.2d at 36.      See Connell, 127 Wn.2d at 350 ( warning that an

interpretation of meretricious or " equity relationships" that " equates cohabitation with marriage .
   ignores the conscious decision by many couples not to marry. ").


                                                               20
No. 44289 -2 -II



relationship"       existed   for the 20     plus years prior       to the   date   of   the   marriage."     Suppl. CP at 412.


Thus,    we remand         to the trial    court   to   consider     the   extent of     the   parties' "   equity relationship"


during this earlier pre -2005 period, to apply the five Long factors to this portion of their

relationship, and to revise its property distribution accordingly.

                                   B. Tenancy in Common, Federal Way Property

          Walsh also argues that, although the trial court correctly determined that the parties

owned the Federal Way property as tenants in common, the trial court improperly allocated the

proceeds      from the property'      s sale.      Walsh concedes that Reynolds contributed to the property in

the   form    of " sweat   equity."    Br.   of   Appellant    at   37 -38. Nevertheless, Walsh asserts that the trial


court should have awarded her 100 percent of the equity in the Federal Way property, rather than

51. 89    percent,    because "[      s] he made all financial contributions towards the mortgage and


reconstruction of       the Federal       Way house ...        from her      separate    property funds."      Br. of Appellant


at 37. This argument fails.


           In Reynolds' cross -appeal, she argues that ( 1) the trial court erred in concluding that the

parties held the Federal Way home as tenants in common; and ( 2) instead, they owed it as joint

tenants    with a right       of   survivorship.        According to Reynolds, when the parties purchased the

Federal       Way    property,     they   titled it in both of their            names      as "   joint tenants with right of


survivorship,       and not as      community property           or      tenants in   common."        Br. of Resp' t at 33 -34.

Reynolds is correct about the language on the title; but this language alone does not determine

the   legal   character of     the property.        See Merrick v. Peterson, 25 Wn. App. 248, 258, 606 P. 2d

700 ( 1980) ( joint tenancy           with    right     of   survivorship      requires    all "   four unities of time, title,


interest   and   possession ";      it is not enough to have only unity of title).



                                                                    21
No. 44289 -2 -II



          The trial     court       acknowledged           that the     Federal     Way      property title "        express[ ed] [   the


parties']    intent" to hold the property             as   joint tenants   with right of         survivorship. Suppl. CP at 420.


Nevertheless, it concluded that, because only Walsh was liable on the mortgage, she and

Reynolds held the property              as "     tenants in    common ".       CP     at    375.    Even under the trial court' s


 tenants in common" characterization, Reynolds contends that ( 1) Walsh' s mortgage obligation


did not terminate the joint tenancy with right of survivorship; and ( 2) even if the trial court had

concluded that the parties owned the property as tenants in common, the trial court acted within

its discretion in dividing the parties' assets equitably, rather than awarding 100 percent of the

equity to Walsh.         We agree with the trial court that the parties held the Federal Way property as

 tenants     in   common,"          despite their stated intent to hold title as joint tenants with right of


survivorship.          We    also    agree     with    Reynolds, however, that because                   of    the   parties'   existing


 equity relationship,"          the trial court did not abuse its discretion in dividing the value of the

property as it did.

            RCW 64. 28. 020          governs      joint tenancy         with   a   right    of   survivorship: "       Every interest

created     in favor    of   two    or more persons          in their   own right      is   an   interest in   common ...        unless




declared in its        creation     to be    a   joint tenancy,       as provided          in RCW 64. 28. 010," which, RCW


64. 28. 010, in turn,        provides    that "[      j] oint tenancy shall be created only by written instrument,

which ...      shall   expressly declare the interest            created    to be    a joint     tenancy." RCW 64. 28. 010. " It


is well settled that a joint tenancy with survivorship is created when the four unities of time, title,

interest     and possession exist."              Merrick, 25 Wn. App. at 258 ( citing Holohan v. Melville, 41

Wn.2d 380, 249 P. 2d 777 ( 1952)). "                   In a true joint tenancy, each of the tenants has an undivided

interest in the    whole, and not        the     whole of an undivided             interest."      Merrick, 25 Wn. App. at 258.



                                                                    22
No. 44289 -2 -II



          The record here shows that the parties never became joint tenants because they did not

have the      requisite      unity     under    Merrick: Reynolds             was not 'liable on        the    mortgage.    Thus, any

joint tenancy         severed at       its inception.      See Merrick, 25 Wn.              App.   at   258.     Despite the parties'


clear specification that they took the property as joint tenants with right of survivorship, Walsh' s

unilaterally undertaking the                  mortgage    obligation (       1)   was    inconsistent     with   the " unity" interest


element, essential          to   create such a      joint tenancy;          and (   2) automatically "     converted"      what might




have been joint tenancy                with right of     survivorship into          a   tenancy in   common.        Merrick, 25 Wn.


App.     at   258 ( "[     A] ny agreement subsequently executed which is inconsistent with the joint

tenancy       converts     it into     a   tenancy in   common. ")      We hold, therefore, that the trial court correctly

concluded as a matter of law that Walsh and Reynolds owned the Federal Way property as

tenants in common.


          Nevertheless, in a dissolution proceeding, a trial court has discretion to divide the parties'

assets   in    a manner         that   it determines is ' just     and equitable. '            In re Marriage of Farmer, 172

Wn.2d 616, 625, 259 P. 3d 256 ( 2011) ( quoting RCW 29. 06. 080). •                                  Considering Reynolds' non-

financial contributions to the property and regardless of Walsh' s claims of her separate property

contributions, the trial court here exercised this discretion by awarding Reynolds " close to a 50

 percent]         share   in the equity in the Federal           Way home."             Suppl. CP    at   495.   The trial court also


based its decision, in part, on the fact that it did not award any maintenance to Reynolds, the

party with far less income and earning potential.

          We hold that the trial court did not abuse its broad discretion in the manner in which it

crafted       a   just    and    equitable      division    of   the    parties'        non -separate     properties,   including its

allocation of the equity in the Federal Way property, after balancing the parties' respective needs



                                                                       23
No. 44289 -2 -II



and contributions.      We also hold, however, that the trial court erred in refusing to consider that

the parties had    a    common       law " equity relationship" before        January    1,   2005, for community

property distribution purposes.

                                               III. ATTORNEY FEES


                                                        A. Trial


         Walsh contends that the trial court erred in awarding Reynolds her attorney fees and

costs.   Walsh argues that ( 1) the 2008 Domestic Partnership Act, chapter 26. 60 RCW, does not

permit a trial court to award attorney fees in a dissolution; and ( 2) RCW 26. 09. 140' s fee -shifting

provision,   which      applies     generally to   dissolutions,      did not apply to domestic partnership

dissolutions    until   December 3, 2009.          Reynolds counters that the trial court acted within its


discretion when it awarded her fees and costs. We agree with Reynolds.


                                              B. Standard of Review


         Attorney fees     in   a   dissolution proceeding      are   based   on need   and   ability to pay.   In re


Marriage of     Terry,    79 Wn.      App.   866, 871, 905 P. 2d 935 ( 1995).           We review a trial court' s


attorney fee    award    for   abuse of   discretion.   Kellar v. Estate of Kellar, 172 Wn. App. 562, 591,

291 P. 3d 906 ( 2012),     review     denied, 178 Wn.2d 1025 ( 2013).           In determining a reasonable fee,

we consider the difficulty of the case, the time involved in the preparation and presentation of the

case, and the amount and character of property involved. In re Marriage ofKnight, 75 Wn. App.

721, 730, 880 P. 2d 71 ( 1994).


                C. Application of RCW 26. 09. 140 to Domestic Partnership Dissolution

         The trial court first ruled that RCW 26. 09. 140 applied to registered domestic partnership

dissolutions.    The trial court then found that " Walsh has the ability to pay, and [ that] Reynolds



                                                           24
No. 44289 -2 -II



has   a need.     The disparity in income requires this Court to award [ Reynolds] 100 percent of her

attorney'   s   fees to be   paid    by [ Walsh]."   Suppl. CP         at   416. The trial court determined Reynolds'


fee award according to the factors in Knight, and In re Marriage ofIrwin, 64 Wn. App. 38, 822

P. 2d 797 ( 1992);        and   it    ordered   Walsh to pay Reynolds $                  35, 117. 50 in attorney fees and

 2, 400. 75 in costs.


          Walsh asserts that, because the parties registered their domestic partnership in August

2009,     before the legislature amended RCW 26. 09. 140 to include the current fee -shifting

provision, the trial court should not have applied this amendment to their dissolution. But Walsh


petitioned for dissolution in March 2011, more than a year after the fee -shifting amendment took

effect    in December 2009.           Thus, the trial court properly applied RCW 26. 09. 140' s fee -shifting

provision to the parties' 2011 dissolution proceeding, the " precipitating event" for purposes of

falling   under     this 2009       amendment.       State   v.   Pillatos, 159 Wn.2d 459, 471,              150 P. 2d 1130


 2007).     A "'    statute operates prospectively when the precipitating event for operation of the

statute occurs after enactment, even when the precipitating event originated in a situation

existing    prior   to   enactment. '      Pillatos, 159 Wn.2d              at   471 (   emphasis   omitted) (   quoting In re

Estate ofBurns, 131 Wn.2d 104, 110 -11, 928 P. 2d 1094 ( 1997)).

           Walsh also argues that substantial evidence does not support an award of attorney fees

and costs to Reynolds, because, over the course of their relationship, Walsh provided Reynolds

with significant assets and financial benefits, which Reynolds could have used to pay her own

attorney fees.       But Walsh fails to provide any authority to support her implicit argument that a

trial court abuses its discretion by awarding attorney fees to a party who has received assets

during the relationship and after dissolution. Nor does Walsh otherwise meet the high burden of



                                                                  25
No. 44289 -2 -II



showing        abuse of      trial court discretion         in its attorney fee          award.      In re Custody of Smith, 137

Wn.2d 1, 22, 969 P. 2d 21 ( 1998) ( citing Knight, 75 Wn.                              App.   at   729),   alld, Troxel v. Granville,

530 U. S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 ( 2000).                                Thus, we do not further address this


argument. RAP 10. 3( a)( 6).


             Walsh next argues that, even if the trial court did not abuse its discretion, we should


reduce       the attorney      fee     award    to Reynolds because it            was unreasonable.             Walsh contends that,


under        the Knight     factors, ( 1) the facts        of   the    case were not      difficult, (2) it was unreasonable to


require       her to pay fees for time Reynolds' attorney                      spent   becoming familiar          with     local   rules, (   3)


these fees were excessive given the relatively short period of the parties' registered Washington

domestic partnership, and ( 4) the fees were unreasonable because Reynolds " had no reasonable

awareness as            to" how   much she       incurred in attorney fees. Br.               of   Appellant    at   45.   Walsh ignores


that the trial court already reduced Reynolds' fees by subtracting from the requested amount the

 attorney'      s   time to familiarize         herself    with [     Pierce   County    Local Rules] ($ 845. 00)," "              discovery

not     in   compliance with [         Pierce   County      Local Rules] ($ 345. 00),"             and "[ a]   ttorney fees... [       for a]


trial brief     never submitted ($         1, 445. 00)."     Suppl. CP at 474.


              Walsh does not show that the trial court' s discretionary determination of attorney fees

was unreasonable. Therefore, we affirm the trial court' s attorney fee and costs award at trial.

                                                                 D. Appeal


              Reynolds also asks us to award her attorney fees and costs on appeal based on her need

and     Walsh'      s   ability to pay, citing RCW 26. 09. 140.                 This statute provides that, in an appeal of a


trial    court' s order      in   a   dissolution proceeding, "          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



                                                                        26
No. 44289 -2 -II



addition   to statutory       costs."     Thus, we have discretion to award attorney fees after considering

the   relative resources       of   the   parties and    the   merits of   the   appeal.   In re Marriage of Leslie, 90

Wn.     App.    796, 807, 954 P. 2d 330 ( 1998),               review   denied, 137 Wn.2d 1003 ( 1999); RAP 18. 1.


Because Reynolds prevails on appeal, we grant her attorney fees and costs on appeal, subject to

her demonstrating to our court commissioner her need relative to Walsh' s ability to pay and her

submitting supporting documentation.

          We     reverse     the trial    court' s   property distribution       and remand    to the trial   court (   1)   to


reconsider whether          the   parties   had    a common      law " equity relationship"     before January 1, 2005;

and (   2) if   so,   to   redistribute     the   parties'   community     assets   accordingly.    We affirm the trial


court' s award of attorney fees and costs to Reynolds.


                                                                           L4J,
                                                                    Hunt, J.
We concur:




                                                                  27
