                                                                               FILED 


                                                                          May 30, 2013 


                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 



         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Marriage of:                         )
                                               )
SUE SHAPIRO,                                   )
                                               )
                        Respondent,            )
                                               )
       and                                     )
                                               )
MARTIN SHAPIRO,                                )         UNPUBLISHED OPINION
                                               )
                        Appellant.             )

       SIDDOWAY,1. - Martin Shapiro appeals several tenns of the trial court's

dissolution of his 27-year marriage to Sue Shapiro. He challenges (1) the trial court's

distribution of property as inequitable because based upon a characterization of the

family home (acquired by him before marriage) as community property and because of

its allocation to him of the home in which the parties' daughter resides, (2) the trial

court's default finding of a community lien against the family home, (3) the court's

valuation of his separately owned business, and (4) an award of maintenance that he

alleges is excessive.

       The trial court's characterization of the family home as community property fails

in light of the Washington Supreme Court's clarification of the law in its postdecree
No. 29839-6-III
In re Marriage ofShapiro


decision in In re Estate ofBorghi, 167 Wn.2d 480, 484-55, 219 P.3d 932 (2009) but its

default finding ofa community lien of90 percent of the home's value is supported by

substantial evidence. We reverse in part, with directions to the court to revise the decree

to reflect Mr. Shapiro's separate ownership of the home and the community lien, and so

that the court may amend the decree to reflect a modification of the maintenance award

ordered by the court on reconsideration but not reflected in the existing decree. We

otherwise affirm. I

                      FACTS AND PROCEDURAL BACKGROUND

       Martin and Sue Shapiro started dating in college in 1974. After graduating in

1976, Mr. Shapiro returned to Yakima and bought a one-bedroom home and acreage on

Dahl Road for $14,000. Ms. Shapiro moved in with him following her graduation a year

later. The parties were married in 1979 and have two adult children, Jessica and

Amanda.

       Mr. Shapiro had worked since a teenager in his family's business, Chicago Junk &

Machinery Company, and returned to work for his father after graduating from college.

Chicago Junk buys, processes, and resells scrap metals. It is located on six lots, one of

which was given to Mr. Shapiro before the marriage and has always been held in his name.


        1 Both parties requested an award of attorney fees in connection with our
commissioner's consideration of and ruling on a motion to strike filed by Mr. Shapiro
early in the appellate process. The fee requests were referred to the panel. We deny both
requests.

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No. 29839-6-III
In re Marriage ofShapiro


When Mr. Shapiro's father died in 1985, his interest in the business operation passed to

Mr. Shapiro individually, but the five remaining lots on which the business was located

passed to other members of Mr. Shapiro's family. For a couple of years following his

father's death, Mr. Shapiro worked as a warehouse supervisor for Washington Fruit to

supplement his and Ms. Shapiro's income while Ms. Shapiro assumed some of his

responsibilities at Chicago Junk, so that they could generate the cash flow needed to keep

the business running and buy the five lots from his family. They succeeded in purchasing

the lots, which Chicago Junk thereafter rented from the marital community.

       Mr. Shapiro's income from the business was the principal source of a comfortable

living enjoyed by the parties during the marriage. Although the amount of salary that he

drew varied over the years, there was testimony at trial that over its long history the

business had paid an average of $97,000 a year to the owner. In the first five months of

2009 (the trial took place in July 2009) Mr. Shapiro had been paid $77,500 as officer's

wages. At the time of trial, Mr. Shapiro was 56 years old. Report of Proceedings (RP) at

254.

       Ms. Shapiro's undergraduate degree was in counseling. She worked as a teacher's

aide before becoming pregnant with Jessica in 1979. After Jessica was born, she stayed

home for a time but then began working part time outside the home in counseling and

education-related positions. When her daughters were in their teens she earned her

Master's degree in education with a guidance and counseling certification. She and

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No. 29839-6-III
In re Marriage ofShapiro


another teacher then started an alternative high school in the late 1990s where she worked

for three years. In or about 2001, she quit working for a time and then started substitute

teaching, which she continued to do until 2005.

       Although she worked part time for much of the marriage and even more when her

daughters had grown, Ms. Shapiro testified that her primary role had always been

maintaining the household and supporting the children in their school and after-school

activities. She also handled the household finances.

       Ms. Shapiro had quit working by the time of the parties' separation in 2006 and

did not work in the three years between then and the 2009 trial, other than to provide

uncompensated baby-sitting for Jessica, who had three children. Jessica was attending

school, and Ms. Shapiro baby-sat the children on the several days a week that Jessica had

classes.

       Ms. Shapiro's income at the time of trial consisted of $2,000 per month in

temporary support being paid to her by Mr. Shapiro and $500 per month she was

collecting in rent from Jessica. Her expectation for the next year was that she would

continue to baby-sit the grandchildren while Jessica was in school and substitute teach

part time, when Jessica did not need her to baby-sit. She testified that gross pay for

substitute teachers was $100 per day. When questioned about her prospects for better-

paying employment, she explained that she would be unable to teach full time without

getting a teaching certificate, which she believed would take at least two years of

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No. 29839-6-111
In re Marriage ofShapiro


additional coursework. She believed that with a little more training, she could be a

school counselor, but had not made any serious effort to look into that option. At the

time of trial, Ms. Shapiro was 54 years old.

       The parties owned nine substantial pieces of real property at the time of trial. The

first was the home on Dahl Road that Mr. Shapiro had purchased on returning to Yakima

after college graduation. In the 29 years the parties lived there before separating, what

had started out as a one-bedroom home had been expanded, modified, and remodeled

many times.

       In 2004, Mr. Shapiro and Ms. Shapiro had refinanced their indebtedness on

several properties into a single mortgage against the Dahl Road home. In connection

with the refinance, Mr. Shapiro quitclaimed the Dahl Road home to "Martin S. Shapiro

and Sue B. Shapiro, Husband and Wife," "for and in consideration oflove and affection."

Resp't's Ex. 38 (capitalization omitted). Notwithstanding the recited consideration, Mr.

Shapiro testified that he conveyed the property into both parties' names at the lender's

insistence, as a condition of the refinancing.

       The value of the Dahl Road home at the time of trial was estimated to be $430,000

by Mr. Shapiro's appraiser and $455,000 by Ms. Shapiro's appraiser. The mortgage

against the home at the time of the parties' separation was $280,140.46, but had been

reduced to $224,660.30 by the time of trial.




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No. 29839-6-III
In re Marriage ofShapiro


       The second substantial property acquired by the parties and owned at the time

of their separation were the five lots of the Chicago Junk business property purchased

from members of Mr. Shapiro's family. After the lots were acquired, leases had been

prepared from the marital community to Chicago Junk and were producing $2,000 per

month in rentals to the community at the time of trial. Testimony at trial estimated

the value of the five community lots and Mr. Shapiro's separate, sixth lot to total

$283,500.

       In or about 2000, the couple bought what was referred to below as the 28th

Avenue home, to hold as a rental property. Ms. Shapiro moved into the home when the

parties separated. At the time of trial, it was owned free and clear. Ms. Shapiro valued it

at $170,000 and Mr. Shapiro valued it at $175,000. RP at 73.

       In 2001, Mr. Shapiro purchased 17 acres neighboring the Dahl Road home. He

applied $22,000 that he had received from the sale of his mother's home, which was

separate property, to the purchase price of$76,000. Before applying the cash bequest to

the purchase, however, he deposited it to a joint account. When asked at trial whether he

had intended to keep that money separate from his wife, he answered, "Not at the time."

RP at 346. He improved the 17 acres with 9 acres of cherry trees and 800 to 1,000

Christmas trees, which cost about $10,000, meant for resale. The 17 acres was valued at

$97,000 without the trees.




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No. 29839-6-III
In re Marriage ofShapiro


       In 2002, the parties purchased a home on 23rdAvenue with a view to renting it to

their daughters. At the time of trial, Ms. Shapiro was renting it to Jessica for $500 per

month "because that's all [Jessica] could afford," although she acknowledged that the

rental value was probably $1,200 per month. RP at 23. Mr. Shapiro had allowed Jessica

to live there for a time rent free and advocated giving the home to the daughters, but Ms.

Shapiro had insisted that Jessica pay something for rent. Mr. Shapiro had disclaimed the

rent, saying it could go to Ms. Shapiro. The house was valued by the parties at $200,000.

       The parties owned a home in Kauai, Hawaii. Mr. Shapiro placed its value at

$623,000. CP at 43. It was subject to a mortgage at the time of trial of $319,304.75. Mr.

Shapiro testified that he could no longer afford to make the payments.

       The parties owned a cabin in Pleasant Valley, valued at $82,500.

       They owned 80 acres in Umtanum Ridge worth roughly $60,000.

       They owned a lot on Terrace Heights worth $8,000.

       They owned rental mobile home properties on Naches Road that they agreed had a

combined value of $90,000.

       The major valuation dispute at the time of trial was over the value of Chicago

Junk, of which Mr. Shapiro was the sole shareholder. The court heard valuation

testimony from Mr. Shapiro; from Michael Moriarty, the certified public accountant who

had done Chicago Junk's accounting work since 1978; and from Ms. Shapiro's valuation




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No. 29839-6-II1
In re Marriage ofShapiro


expert, Mathew Petersen. Mr. Shapiro also offered and the court admitted the published

deposition of Dean Rasmussen, a scrap metal buyer.

       Mr. Petersen prepared his valuation for Ms. Shapiro as of year-end 2005, to reflect

the value at the time of the parties' separation, after which she ceased to have any

influence in the business. He worked through asset, income, and market approaches to

value before selecting the income approach for his final conclusion of value, which was

$827,000. The time frame of operations he analyzed was from 2001 to 2005, which he

characterized as one business cycle. He used a weighted average because the company

brought in more revenue in 2004 and 2005. His valuation was premised on a reasonable

compensation rate to Mr. Shapiro of $62,000 per year.

       Ms. Shapiro testified that in addition to the going concern value of the business,

Mr. Shapiro had accumulated and set aside a large number of antiques, which he had

always said they would sell and use for their retirement. She estimated their value as at

least $10,000.

       Mr. Moriarty was called as a witness by Mr. Shapiro and critiqued Mr. Petersen's

valuation. He testified that the attribution of compensation to Mr. Shapiro of only

$62,000 was unrealistically low, based on a historical average salary to the owners of

$97,000. He criticized the time frame selected for analysis by Mr. Petersen as including

two years (2004 and 2005) with exceptionally high, unrepresentative revenues. He

challenged Mr. Petersen's assumptions about inventory turnover and competition,

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No. 29839-6-111
In re Marriage o/Shapiro


expressing the view that Chicago Junk has no goodwill value. For that reason, and

because commodity prices had fallen, he based his conclusion of value on the company's

book value of$508,389 as of year-end 2005.

       Mr. Rasmussen testified to the volatility of the scrap metal industry, the value of

Chicago Junk's inventory, the strength of its competition, and his opinion that there was

no market for scrap metal businesses.

       Mr. Shapiro testified at trial that the business was struggling. He seconded

testimony by Mr. Moriarty and Mr. Rasmussen about the scrap metal business. On cross-

examination, however, he admitted having drawn the $77,500 in officer's wages in the

first five months of2009 and that he had paid each of his daughters $5,000 during the

first quarter of2009, a continuation ofa pattern from 2008, when he paid each a total of

$20,000. The money was paid for occasional work by Jessica and no work by Amanda,

who no longer lived in the area.

       Each party had a small IRA (individual retirement account) with values that

appeared from exhibits and testimony to be roughly equal in value.

       The trial court was presented with evidence of numerous other items of personal

property and incidental real estate interests that it addressed in its findings, conclusions,

and decree, but they are not in dispute on appeal.

       Ms. Shapiro asked that both the Dahl Road home and Chicago Junk be

characterized by the trial court as community property, identified her preferences as to

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No. 29839-6-111
In re Marriage ofShapiro


distributions of the parties' properties, and requested a maintenance award of $6,000 per

month. She asked that a deadline not be placed on the maintenance award, explaining

that she had assumed she would be married for the rest of her life.

       Mr. Shapiro asked that the Dahl Road home and Chicago Junk be recognized as

his separate property, identified his preferences as to distribution, and argued that Ms.

Shapiro's maintenance should be substantially limited given her education, qualifications,

and additional years of potential gainful employment.

       At the conclusion of what proved to be a four-day trial, the court took the

extensive evidence submitted by the parties under advisement. It convened the parties for

an oral ruling several weeks later and entered complete findings of fact and conclusions

of law thereafter.

       The court found that the parties owned, among others, the following community

property assets, having the following values net of encumbrances:

             Dahl Road home and acreage                            $165,000
              28th Avenue home                                     $172,500
              23rd Avenue home                                     $200,000
             Kauai home                                            $279,249
             Community business lots (5 of 6)                      $196,875
             Pleasant Valley cabin                                    $82,500
             Naches Road properties                                   $90,000
             Umtanum Ridge property                                   $60,000
             Terrace Heights property                                  $8,000


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No. 29839-6-111
In re Marriage ofShapiro


CP at 50-55.

      It found that one or the other owned, among others, the following separate

property assets, having the following values net of encumbrances:

               MR. SHAPIRO
               Chicago Junk                                       $827,000
               Business lot acquired before marriage              $39,375 2
               Dain Rauscher IRA                                    $38,438
               TOTAL:                                             $904,813


                MS. SHAPIRO
               Dain Rauscher IRA                                    $37,212
                TOTAL:                                              $37,212
Id.

       It awarded the community property as follows, and with the following values:

                    MS. SHAPIRO                                MR. SHAPIRO
           28th Avenue home        $172,500            Dahl Road home          $165,000
                                                       and acreage
           Kauai home              $279,249            23rd Avenue home        $200,000
           Pleasant Valley cabin    $82,500            Naches Road               $90,000


       2  Neither in its oral ruling nor in its findings and conclusions did the trial court
place a value on the business lot that was Mr. Shapiro's separate property. We have
assumed that each of the business lots had an equal value in arriving at a value of $39,375
for the separate property lot. The value could be as high as $86,625, however, given the
difference between the value placed on the community lots ($196,875) and the testimony
at trial as to the total value of all six lots ($283,500). The $47,250 difference makes no
difference to any issue on appeal.

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No. 29839-6-111
In re Marriage a/Shapiro


        Umtanum Ridge              $60,000            Business lots            ~196~875
                                                      (community
                                                      portion)
        Terrace Heights              $8,000


        TOTAL:                    $602,249                                     $651,875


       Considering the foregoing community property distributions and the parties'

separate properties, Mr. Shapiro was left with a total of$I,556,688 in value of assets

($651,875 community, $904,813 separate), while Ms. Shapiro was left with a total of

$639,461 in value ($602,249 community, $37,212 separate). In light of the discrepancy,

the court ordered that Mr. Shapiro make a transfer payment of$250,000. It ordered that

the payment be made over 10 years and bear interest at a rate of 5 percent, and that it be

secured by a deed of trust on the Dahl Road property. The resulting obligation was made

payable by the decree at $2,651 a month.

       When it came to Ms. Shapiro's maintenance request, the court concluded that Mr.

Shapiro's continual employment had positioned him to earn $15,000 per month in salary

and that distributing income-producing properties to him would leave him with a $2,000

per month lease payment from Chicago Junk, $600 per month rent from the Naches Road

properties, and $500 per month rent from the 23rd Avenue house, totaling $18,100 in

income per month. The court determined that Ms. Shapiro could earn $1,500 per month

as a substitute teacher and was qualified as a counselor, but that no evidence had been


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No. 29839-6-111
In re Marriage ofShapiro


presented of her potential salary as a counselor. The court ordered maintenance

payments of $4,500 a month, to continue until Mr. Shapiro retires or turns 67, whichever

is later. It ordered that 25 percent of Mr. Shapiro's eventual Social Security benefit be

allocated to Ms. Shapiro.

       A motion for reconsideration was denied. Mr. Shapiro appeals.

                                         ANALYSIS

       Mr. Shapiro challenges the court~s characterization of the Dahl Road home as

community property, the amount and basis of its default community lien against the Dahl

Road home, its distributing to him the 23rd Avenue home in which the parties' daughter

lives, the value placed on Chicago Junk, and the amount and term of the maintenance

award to Ms. Shapiro. We address the challenges in turn.

                            I. Characterization of Dahl Road Home

       In a marriage dissolution action, the trial court is required to make a disposition of

the parties' property and liabilities that is "just and equitable" after considering "all

relevant factors including, but not limited to: (1) [t]he nature and extent of the community

property; (2) [t]he nature and extent of the separate property; (3) [t]he duration of the

marriage or domestic partnership; and (4) [t]he economic circumstances of each spouse

or domestic partner at the time the division of property is to become effective." RCW




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No. 29839-6-III
In re Marriage ofShapiro


26.09.080. 3 The discretion given the trial court is broad and we will reverse only upon a

showing of a manifest abuse of discretion. In re Marriage ofKraft, 119 Wn.2d 438, 450,

832 P.2d 871 (1992).

       In order to apply all the relevant factors, the court must first characterize the

marital property as either community or separate. In re Marriage ofGriswold, 112 Wn.

App. 333, 339, 48 P.3d 1018 (2002). Its characterization of property as either separate or

community is a question of law subject to de novo review. Id.

       The trial court characterized the Dahl Road home as community property.

Anticipating a challenge on appeal, it found that if the Dahl Road home were determined

to be separate property, it would award a community lien of 90 percent of its value based

on community contributions. Mr. Shapiro challenges both findings. We first address his

challenge to the trial court's characterization of the Dahl Road home as community

property.

    . The character of the property is established at the time of its acquisition. In re

Estate ofBorghi, 141 Wn. App. 294,297, 169 P.3d 847 (2007), affd, 167 Wn.2d 480.

Once evidence reveals that property is separate in character, it maintains its distinction

until the party challenging the asset's character provides direct and positive evidence



       3We quote the current version ofRCW 26.09.080, which was amended by Laws
of 2008, chapter 6, section 1011 to make the language gender neutral and to include
domestic partners.

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No. 29839-6-III
In re Marriage 0/ Shapiro


that proves otherwise. In re Estate o/Dewey, 13 Wn.2d 220,226-27,124 P.2d 805

(1942) (quoting Guye v. Guye, 63 Wash. 340, 3.52, 115 P. 731 (1911)). The term

"direct and positive evidence" equates to a "clear and convincing evidence" standard.

Borghi, 167 Wn.2d at 484-85 nA. When real property is at issue, an acknowledged

writing is generally required to change the separate status of the real property to

community property. In re Estate o/Verbeek, 2 Wn. App. 144, 156-58,467 P.2d 178

(1970).

       The evidence was undisputed that Mr. Shapiro purchased the Dahl Road home

before marriage and its character began as separate. But at the time of trial and the trial

court's entry of its findings, conclusions, and decree, two cases-In re Marriage      0/ Hurd,
69 Wn. App. 38, 848 P.2d 185 (1993) and In re Marriage o/Olivares, 69 Wn. App. 324,

848 P.2d 1281 (l993)-had been broadly read to provide that where title to separate

property was later placed in the name of both spouses, a presumption is permitted that the

transaction was intended as a gift to the community. Borghi, 167 Wn.2d at 487. The

presumption of a gift to the community could only be overcome by clear and convincing

evidence.

       In light of this precedent, the trial court concluded that while the home started out

as Mr. Shapiro's separate property, "[he] voluntarily deeded the property to the marital

community" and that "[the] property on Dahl Road is community property." CP at 50.




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No. 29839-6-111
In re Marriage ofShapiro


The court also observed that the community had taken on the consolidated debt on the

Dahl Road home.

        Attempting to persuade the trial court otherwise, Mr. Shapiro's lawyer had argued

throughout trial that a challenge to the holding of Hurd was awaiting decision by the

Washington Supreme Court in Borghi. With this argument apparently in mind, the trial

court's findings and conclusions contained the following default finding of a community

lien:

                If this matter is appealed and the Court of Appeals decides
        differently the Court makes the following additional comments: The value
        of the land is $60,000.00 and the house is worth $385,000.00. The house
        started out quite small. Substantial improvements and additions were
        made. In the event the Court of Appeals decides it still [sic] Husband's
        separate property the trial Court finds that the community has a lien for
        90% of the house value and the land would be the Husband's separate
        property. This is only in the event of an appeal.

CP at 50-51.

        Thereafter, in November 2009, the Supreme Court issued its decision in Borghi.

The four-member lead opinion disapproved Hurd and Olivares, holding that "even when

a spouse's name is included on a deed or title at the direction of the separate property

owner spouse, this does not evidence an intent to transmute separate property into

community property but merely an intent to put both spouses' names on the deed or title."

167 Wn.2d at 489. It observed, "There are many reasons it may make good business

sense for spouses to create joint title that have nothing to do with any intent to create


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No. 29839-6-111
In re Marriage ofShapiro


community property." Id. The opinion reiterated what it characterized as the "well-

settled rule" that no presumption arises from the names on a deed or title and held that

clear and convincing evidence was required to overcome the presumption that the

property remained separate. Id. at 490-91. The concurring opinion required for a

majority agreed, except to say that the facts presented did not require the court to decide

what type of evidence is sufficient to overcome the separate property presumption. Id at

492 (Madsen, 1., concurring).

       At best, Ms. Shapiro's evidence established that the parties' mortgage obligations

were combined to save money and that Mr. Shapiro entered into the refinancing

willingly, knowing that a transfer of title to the Dahl Road home would be required. Mr.

Shapiro's testimony that he executed the quitclaim deed only to secure the refinancing,

not to change the separate character of the property, was essentially undisputed. Given

the presumption that the separate character of the property continued, no presumption

from the transfer of title, and the dearth of any evidence (apart from the deed) that Mr.

Shapiro intended to make a gift to the community, the trial court erred in characterizing

the Dahl Road home as community property. Given undisputed testimony as to the

enlargement and improvement of the home during the 27-year marriage, however, there

was an issue as to the existence and extent of a community lien.




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No. 29839-6-II1
In re Marriage ofShapiro


                             II. Amount of the Community Lien

      The default community lien found by the trial court was for 90 percent of the

value of the Dahl Road home. It found the original home property to have a value of

$385,000 and the 17 acres acquired later to have a value of $60,000. Although the court

was not explicit about how the encumbrance was to be handled, we assume that it

intended the community and separate interests to bear an aliquot portion of the debt.

Applying the debt ratably to each interest results in the community having a $128,478 net

interest in the home property and a $22,247 net interest in the acreage, and Mr. Shapiro

having a separate $14,275 net interest in the home property.4

      Mr. Shapiro argues first that the increase in value of the Dahl Road home is

presumed to be separate and Ms. Shapiro has not provided evidence of the investment of

community funds or labor needed to rebut the presumption. Second, he argues that Ms.




       4 The combined value placed on the Dahl Road home and adjacent acreage is
lower than the appraised values presented at trial. The encumbrance amount is within the
range of evidence presented on its amount at the time of the parties' separation. Given
the knowns-(l) that the court valued the acreage at $60,000, the home property at
$385,000, and the 90 percent community interest in the home property at $346,500, see
CP at 50, 94; and (2) that it valued the acreage and home property together, net of
encumbrances, at $165,000, see CP at 50-it necessarily treated the encumbrance amount
as $280,000 ($445,000 total value minus $165,000). Allocating the total net value of
$165,000 to the gross values of$60,000 for the acreage, $346,500 for the community
interest in the home property, and $38,500 for Mr. Shapiro's separate interest in the home
property yields the net values of $22,247 (acreage), $128,478 (community interest), and
$14,275 (separate interest). ($22.247 + $128,478 + $14,275 = $165,000.)

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No. 29839-6-III
In re Marriage ofShapiro


Shapiro's benefit from living rent free in the residence offsets any right of reimbursement

to the community.

       Where a spouse presents direct and positive evidence that the increase in the value

of separate property was attributable in part to community funds or labor, the community

has a right of reimbursement and the court may impose a lien for its contribution to the

separate property. In re Marriage ofElam, 97 Wn.2d 811,816,650 P.2d 213 (1982); In

re Marriage ofMiracle, 101 Wn.2d 137,139,675 P.2d 1229 (1984).

       The court may determine the value of community contributions by either

determining a reasonable wage or assessing the resulting increase in value. In re

Marriage ofPearson-Maines, 70 Wn. App. 860, 869, 855 P.2d 1210 (1993) (citing Harry

M. Cross, The Community Property Law in Washington, 61 WASH. 1. REv. 13, 71

(1986». We review a trial court's decision to grant a community lien for an abuse of

discretion. In re Marriage ofMarshall, 86 Wn. App. 878, 882, 940 P.2d 283 (1997).

       In explaining in its oral decision why it would impose a default community lien if

the home were determined not to be community property, the court commented on the

extent of the transformation to the Dahl Road home:

       [T]he house started off when it was originally purchased by the husband
       was quite small. There were a number of expansions of the house. By the
       time we got to the present status of the house, it was unrecognizable as
       being the same house as the husband started off with.

CP at 94.


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No. 29839-6-III
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       The court's observation was based on substantial evidence. Several pictures of the

condition of the home when Ms. Shapiro moved in were admitted into evidence. They

reveal a tiny home, the exterior of which, at least (there being nO pictures of the interior),

is in dilapidated condition. The home is not fenced and there is no landscaping to speak

of.

       Also admitted were a number of pictures of the home at the time the parties

separated. They reveal a completely different, vastly larger home, fenced, apparently in

good condition, fully landscaped, and with a swimming pool area. Both parties testified

that they put a great deal of labor into the additions and improvements, as did family

members and friends. They mortgaged the property several times to pay for renovations

and other properties, and throughout the marriage paid the mortgage with community

funds. Both parties' appraisals valued the home property at the time of separation at

$430,000 or more.

       It is true that Ms. Shapiro did not provide dollar figures for the cost of the

improvements or the increase in value. Mr. Shapiro argues that the lack of numeric

support in the trial court's findings for the 90 percent allocation requires that we reverse

the trial court's finding of a right of reimbursement and equitable lien. Yet from the

pictures alone, it would be an injustice not to recognize that the lion's share of the value

of the house is the result of its transformation during the marriage. The pictures are not

only direct and positive evidence, they call for a substantial community lien beyond a

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No. 29839-6-111
In re Marriage ofShapiro


reasonable doubt. While cost information would have been helpful, it is understandable

that it was not available given the 27-year passage of time, the parties' testimony that the

improvements took place in many stages, and the unforseeability to Ms. Shapiro of

having to prove the time and material invested in a future dissolution proceeding. The

pictures and the testimony of the parties was the best evidence of the general magnitude

of the improvements. They support the trial court's finding that the community is

entitled to a right of reimbursement and equitable lien in an amount equal to 90 percent of

the value of the home property.

       Mr. Shapiro next argues that the court should have offset the community's right of

reimbursement and lien to account for Ms. Shapiro's opportunity to live in his separate

property, relying on Miracle, 101 Wn.2d at 139. In that case, the parties lived in a home

that was the separate property of the wife during six years of their seven-year marriage.

The community made no improvements to the home. But both parties deposited their

income-including the wife's separate rental income from another property she owned-

into a joint account; from that account the wife made payments of $124 to $151 a month

toward her purchase contract for the home in which the parties lived. When the parties

divorced, the husband asked for a right of reimbursement to the extent of real estate

contract payments made from the joint account. The trial court refused, concluding that

the payments were more than offset by a benefit to the community in the form of the

$250 to $300 a month rental value of the home.

                                             21 

No. 29839-6-II1
In re Marriage ofShapiro


       The outcome in Miracle turned on the abuse ofdiscretion standard. The court

held that "[t]he trial court may impose an equitable lien to protect the reimbursement

right when the circumstances require it." 101 Wn.2d at 139. Given the offsetting benefit

to the husband, it respected the trial court's exercise of its discretion not to impose a lien.

       The outcome in Miracle is inconsistent with a number of other cases involving

community improvements to separate property, as Professor Harry Cross observed in the

last of his surveys of Washington community property law, citing, in particular, Elam.

He characterized Elam as "like most other marriage dissolution cases in that [in Elam]

there is no indication that argument was made that reimbursement had already been

made, or that the contribution was a gift, or that reciprocal benefit was provided, or that

there was some other basis for concluding an equitable lien should be denied." Cross,

supra, 61 WASH. L. REv. at 70 n.292. A trial court is not required to offset the

community lien with a claimed benefit if it is not fair and equitable. Mr. Shapiro has not

shown that the trial court abused its discretion in finding no offsetting benefit here.

       When we modify the trial court's distribution of property to reflect the separate

character of the Dahl Road home and the community lien, it makes very little difference

to the value of community property distributed to each party. Thus revised, the court's

default finding was that the parties owned, among others, the following community

property assets, having the following values net of encumbrances:




                                              22
No. 29839-6-111
In re Marriage ofShapiro



               Community lien, Dahl Road home                  $128,478
               Dahl Road acreage (17 acres)                     $22,247
               28th A venue home                               $172,500
               23rd Avenue home                                $200,000
               Kauai home                                      $279,249
               Community business lots (5 of 6)                $196,875
               Pleasant Valley cabin                            $82,500
               Naches Road properties                           $90,000
               Umtanum Ridge property                           $60,000
               Terrace Heights property                          $8,000

CP at 50-55.

      As revised, the parties owned, among others, the following separate property

assets, having the following values net of encumbrances:

               MR. SHAPIRO
               Dahl Road home net of community lien             $14,275
               Chicago Junk                                    $827,000
               Business lot acquired before marriage            $39,375
               Dain Rauscher IRA                                ~38A38
               TOTAL:                                          $919,088


               MS. SHAPIRO
               Dain Rauscher IRA                                ~37.212
               TOTAL:                                           $37,212 

Id.




                                              23 

No. 29839-6-III
In re Marriage ofShapiro


      As corrected, the value of the community property awarded to the parties is as

follows:

                    MS. SHAPIRO                                MR. SHAPIRO
           28th Avenue home         $172,500          Dahl Road                $150,725
                                                      acreage and
                                                      community
                                                      interest, Dahl
                                                      Road home
           Kauai home               $279,249          23rd Avenue              $200,000
                                                      home
           Pleasant Valley cabin     $82,500          Naches Road               $90,000
           Umtanum Ridge             $60,000          Business lots            $196,875
                                                      (community
                                                      portion)
           Terrace Heights            $8,000


           TOTAL:                   $602,249                                   $637,600


       The community property distribution is closer to fifty-fifty with this adjustment.

Considering the parties' separate property, their positions remain unchanged. Mr.

Shapiro was left with $1,556,688 in value of assets ($637,600 community, $919,088

separate), while Ms. Shapiro was left with $639,461 in value ($602,249 community,

$37,212 separate).

                              III. Distribution of23rd Avenue Home

       Mr. Shapiro's next argument why the distribution of assets is inequitable is that

the court abused its discretion in awarding him the 23rd Avenue home in which Jessica

                                               24 

No. 29839-6-III
In re Marriage ofShapiro


was living and paying below-market rent. Relying on the fact that he was already paying

its mortgage and his contention that both parties wanted the home gifted to their

daughter, he asks us to order the trial court to either award the house to Ms. Shapiro for

$150,000, award it to him for the reduced amount of$150,000, or charge neither party

and gift the home to the daughter jointly. The record does not support his

characterization of Ms. Shapiro's position; while she wanted the daughters to have the

home, she did not believe it should be "given" to them. The court's rationale in awarding

the 23rd Avenue home to Mr. Shapiro was that he could make the choice whether or not

to give it to the daughters.

       The court was required to distribute the property to Mr. Shapiro or Ms. Shapiro

and award it based on its fair market value, which the parties agreed was $200,000. The

parties were left with roughly equal distributions of community property, although Mr.

Shapiro received more in value both originally and as corrected. This is precisely the

type ofjudgment best made by the trial court. Mr. Shapiro has not shown any abuse of

discretion.

                                 IV. Value of Chicago Junk

       Mr. Shapiro next argues that the trial court placed too high a value on Chicago

Junk. The trial court sided with Mr. Shapiro in denying Ms. Shapiro any community

interest or right of reimbursement from Chicago Junk for the work she performed over




                                             25 

No. 29839-6-II1
In re Marriage ofShapiro


the years. 5 The $827,000 value placed on the business as Mr. Shapiro's separate property

was nonetheless important to the trial court's overall disposition. All of the parties'

property, both community and separate, was before the court for distribution.

Friedlander v. Friedlander, 80 Wn.2d 293,305,494 P.2d 208 (1972). The significantly

higher value of separate and community property that Mr. Shapiro was left with

following the marriage was considered by the court in ordering the $250,000 transfer

payment.

       "[W]hen the parties offer conflicting evidence in valuation, the court may adopt

the value asserted by either party or any value in between the two." In re Marriage of

Rockwell, 141 Wn. App. 235, 250,170 P.3d 572 (2007). A court's valuation of an asset

that is within the scope of evidence will not be disturbed on appeal. In re Marriage of

Mathews, 70 Wn. App. 116, 122, 853 P.2d 462 (1993).

       Mr. Shapiro expresses concern that in adopting Mr. Petersen's valuation, the trial

court failed to recognize that he had presented evidence of lower values through the

testimony of Mr. Moriarty and Mr. Rasmussen. The record reveals, however, that Mr.

Shapiro's evidence was effectively presented and the trial court was actively engaged in

ruling on objections and asking its own questions. There is no basis for questioning the



       5 Ms. Shapiro's response brief argues that the trial court should have recognized
her right to reimbursement and ordered an equitable lien against the business, but she has
not cross appealed. We will not consider the argument.

                                             26 

No. 29839-6-III
In re Marriage ofShapiro


trial court's attention to and understanding of the evidence. Nor is there any reason to

believe that the court overlooked the deposition of Mr. Rasmussen; Mr. Shapiro's lawyer

mentioned Mr. Rasmussen's testimony several times in closing argument at the time of

trial and raised his testimony again in moving for reconsideration.

       Mr. Shapiro also argues that the business should have been valued as of2009

rather than 2005 but Washington cases recognize the trial court's broad discretion to

designate a valuation date that is equitable. Lucker v. Lucker, 71 Wn.2d 165, 168,426

P.2d 981 (1967). Here, the rationale of Ms. Shapiro's expert, Mr. Petersen, was that the

date of separation was used because Ms. Shapiro had no ability to influence the business

after that date. Notably, Mr. Shapiro's expert, Mr. Moriarty, used the same date in

offering book value as the appropriate measure of value.

       Mr. Shapiro's evidence was effectively presented. It was countered by Ms.

Shapiro'S presentation of the valuation opinion of Mr. Petersen. We do not reweigh the

evidence. Because the court's valuation of Chicago Junk falls within the scope of the

evidence, we will not disturb it.

                                    V. Maintenance Award

       Mr. Shapiro finally contests the trial court's maintenance award, claiming (1) he

cannot afford to pay it, (2) Ms. Shapiro was demonstrably able to pay her monthly

expenses on less during the period of separation, and (3) insufficient consideration was

given to Ms. Shapiro's obligation to seek gainful employment. He also argues that the

                                            27 

 No. 29839-6-III
 In re Marriage ofShapiro


 duration of the maintenance award is too long and that an agreement by the trial court to

 shorten the duration and clarify Ms. Shapiro's interest in his future Social Security

 benefit has never been reduced to an amended decree.

        The trial court's decree awards Mr. Shapiro "75% of any and all social security

 earned by him either [sic] during the marriage" and awards Ms. Shapiro "25% of

 Husband's social security retirement," to be paid to her "[c]ommencing the month

 following the termination of maintenance ... to be paid to Wife until Wife's remarriage,

 cohabitates with another person or the death of either party." CP at 65,67. Addressing

 maintenance, the decree provides "maintenance shall be paid at the rate of $4500.00 a

 month until Husband turns 67 or retires; whichever is later," adding that the maintenance

 obligation similarly terminates upon the death of either party or Ms. Shapiro's

 cohabitation or remarriage. CP at 60.

        Mr. Shapiro challenged aspects of the maintenance award in a motion for

 reconsideration. At the May 2010 hearing on his motion, the trial court orally agreed to

 three clarifications or modifications that have so far not been memorialized in an

. amended decree. It first clarified the Social Security term, stating "I was not saying that I

 was granting Ms. Shapiro an interest in Mr. Shapiro's Social Security. What I was saying

 was the amount of maintenance that he would be paying would be calculated based upon

 the amount of his Social Security." CP at 375. Upon being advised that Ms. Shapiro

 could be entitled to a Social Security benefit of more than 50 percent of Mr. Shapiro's

                                              28 

No. 29839-6-III
In re Marriage ofShapiro


benefit, the court explained, "[M]y intent was basically to even out the Social Security

benefits that they would get," and that ifher benefit was more than 50 percent of Mr.

Shapiro's benefit "then the amount that he would pay would be determined by one-half of

the difference between the Social Security that they were each entitled to." CP at 376.

The court finally agreed to adjust the termination date for maintenance, stating:

               THE COURT: ... My problem was I-with the nature of his
       business it might be hard to figure out when he's retiring because he could
       just be semi-retired and maybe go into the office three times a week or two
       times a week .... I'll change it slightly-it just goes until he's 67 and ifhe
       continues to work after that and doesn't retire, it ends when he's 67. The
       $4,500.00 ends when he's 67.
               [MR. SHAPIRO'S LAWYER]: So it would be retire at 67. The 67
       is the last available date.
               THE COURT: It goes until he's 67. The $4,500.00 does, and after
       that the maintenance continues at a rate that is one-half of the difference
       between the Social Security payments to which they would be entitled at
       that time.

CP at 380.

       An order on the motion for reconsideration was not presented until almost a year

after the hearing. Although Ms. Shapiro had been directed to present an order, the

belated order was presented by Mr. Shapiro, evidently to enable him to file a notice of

appeal. The order entered indicates that the motion for reconsideration was denied. The

parties may have forgotten that the trial court had agreed to the three clarifications or

modifications discussed above.

       Mr. Shapiro appears to be entitled to an amended decree on these three issues, not


                                             29 

No. 29839-6-III
In re Marriage ofShapiro


as a matter of appeal, but as a housekeeping matter in the trial court. Upon issuance of

the mandate, the trial court will be free to amend the decree accordingly.

       We tum, then, to Mr. Shapiro's argument that the maintenance is excessive.

      RCW 26.09.090 6 provides that a court may grant a maintenance order for either

spouse in a dissolution proceeding "in such amounts and for such periods of time as the

court deems just, without regard to misconduct," after considering all relevant factors,

including six statutory factors. 7 The court is governed strongly by the need of one party

and the ability of the other party to pay an award. In re Marriage ofFoley, 84 Wn. App.

839,845-46,930 P.2d 929 (1997) (citing Endres v. Endres, 62 Wn.2d 55,56,380 P.2d

873 (1963)). Yet a maintenance award "is not just a means of providing bare necessities,

but rather a flexible tool by which the parties' standard of living may be equalized for an

appropriate period of time." In re Marriage afWashburn, 101 Wn.2d 168, 179,677 P.2d

152 (1984). The paramount concern in determining maintenance awards is the economic

condition in which the dissolution decree leaves the parties. Id. at 181. "In a long term



       6We quote the current version ofRCW 26.09.090, which was amended by Laws
of 2008, chapter 6, section 1012 to make the language gender neutral and to include
domestic partners.
        7 The statutory factors considered are (1) the financial resources of the party
seeking maintenance; (2) the time necessary for the party seeking maintenance to acquire
education and training to find employment; (3) the standard of living during the marriage;
(4) the duration of the marriage; (5) the age, physical and emotional condition, and the
financial obligations of the party seeking maintenance; and (6) the ability of the party
against whom maintenance is being sought to pay support. RCW 26.09.090; In re

                                            30 

No. 29839-6-II1
In re Marriage ofShapiro


marriage of 25 years or more, the trial court's objective is to place the parties in roughly

equal financial positions for the rest of their lives." Rockwell, 141 Wn. App. at 243.

       We review a maintenance award for abuse of discretion. In re Marriage ofZahm,

138 Wn.2d 213, 226-27, 978 P.2d 498 (1999). The only limitation on amount and

duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors, the

award must be just. In re Marriage ofLuckey, 73 Wn. App. 201, 209,868 P.2d 189

(1994).

       The trial court's original oral decision, its findings and conclusions, and its oral

ruling on Mr. Shapiro's motion for reconsideration make clear that it considered all of the

relevant factors, including the statutory factors. Mr. Shapiro nonetheless argues that the

court gave inadequate consideration to his ability to pay and to Ms. Shapiro's need,

pointing to his historic expenses and the small amount of temporary maintenance on

which Ms. Shapiro lived during the period of the parties' separation.

       It is unreasonable for Mr. Shapiro to suggest that the trial court should have been

guided by Ms. Shapiro's temporary maintenance award. During the separation, Mr.

Shapiro was receiving most of the income from the community's rental properties and

paying most of the community liabilities. It was to be expected-and is a fact-that with

the distribution ofthe properties, Ms. Shapiro is now responsible for expenses that were



Marriage ofFoley, 84 Wn. App. 839,845,930 P.2d 929 (1997).

                                              31
No. 29839-6-III
In re Marriage ofShapiro


previously paid by Mr. Shapiro. In addition, during the period of separation, Ms. Shapiro

proved unable to meet any extraordinary expenses; she had to turn to Mr. Shapiro and her

family members for help whenever such expenses arose. Even before taking into account

the increase in her expenses, then, the temporary support amount had been inadequate.

Finally, the temporary support amount never took into consideration the amount required

to place the parties to this long-term marriage in roughly equal financial positions for the

rest of their lives.

        The trial court more properly looked at what the parties could reasonably be

expected to earn and then balanced Ms. Shapiro's lesser historic monthly expenses with

her entitlement to be left with a reasonable standard of living.

        The evidence was undisputed that while Ms. Shapiro had education, work

experience, and skills, the periodic and part-time nature of her work and the parties'

reliance on her as the primary caretaker on the home front left her relatively unable to

support herself in the manner to which she and her husband had become accustomed.

While Mr. Shapiro stressed her qualifications and her failure to seriously pursue more

gainful employment, Ms. Shapiro stressed the obstacles she faced as a woman in her mid­

50s who had been out of the full-time workplace for decades.

        The trial court did impute reasonable income to Ms. Shapiro, contrary to Mr.

Shapiro's argument that it failed to require her to contribute to her own support. It

imputed $1,500 a month in income. At the rate of pay for substitute teaching testified to

                                             32 

No. 29839-6-II1
In re Marriage ofShapiro


at trial, the imputed income requires that she substitute teach for 180 days a year. One

hundred eighty days amounts, essentially, to a full school year. Cf RCW 28A.150.220

(providing that each school district shall make available to students an annual average

total instructional hour offering of at least 1,000 hours; at 5.5 hours a day, 1,000 hours

amounts to 180 days); former WAC 180-16-215 (2002) (providing that each school

district shall conduct a school year of no less than 180 school days).

       Taking into consideration the parties' respective incomes and the total $7,151 a

month that Mr. Shapiro will pay to Ms. Shapiro for the lO-year term of the transfer

obligation ($4,500 in maintenance and $2,651 in transfer payment installments), Mr.

Shapiro is left with $10,949 in net monthly income to apply to his expenses while Ms.

Shapiro is left with $8,651 in net monthly income to apply to hers.

       Given the number of expenses formerly borne by Mr. Shapiro for which Ms.

Shapiro became responsible following the distribution of properties, we cannot say that

the trial court abused its discretion in fixing the maintenance amount. 8 It did not abuse its

discretion in rejecting Mr. Shapiro's argument that Ms. Shapiro should sell some of the


       8 Mr. Shapiro provided his own analysis of the parties' respective monthly
expenses during the period of separation as an appendix to his brief. We will not parse it
because we reject its implicit premise that Ms. Shapiro should continue to get by on a
small fraction of the community's historic income just because she led a hand-to-mouth
existence during the separation. We do note that his analysis treats his income as a gross
amount, with an adjustment for taxes, while treating Ms. Shapiro's imputed income as
net. We find no basis in the record for the discrepancy. He also claims farm expenses for
his 17 agricultural acres without recognizing any corresponding farm income.

                                             33 

No. 29839-6-111
In re Marriage ofShapiro


community assets she received to meet her income needs so that he can maintain his own

level of expenditures without having to sell any community asset distributed to him.

       The trial court was in the best position to determine the maintenance award. Its

award falls within the range of its discretion.

       We reverse the trial court's characterization of the Dahl Road home as community

property and remand the case with directions to the trial court to (1) correct its decree to

reflect the separate character of the Dahl Road home and the community lien and (2) to

entertain an amended decree addressing the three matters relating to the maintenance

award that it appears to have agreed to clarify or modify at the hearing on the motion for

reconsideration. On the remaining issues raised by the appeal, we affirm.

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

Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 




Korsmo, C.J.



C~f.jk: 

                                              34 

