                                                                FILED
                                                           FEBRUARY 28, 2017
                                                        In the Office of the Clerk of Court
                                                       WA State Court of Appeals, Division III




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

In re Marriage of:                              )         No. 34064-3-111
                                                )
ELLEN DONEEN,                                   )
                                                )
                     Appellant,                 )
                                                )
              and                               )         PUBLISHED OPINION
                                                )
JAMES DONEEN,                                   )
                                                )
                     Respondent.                )

       LAWRENCE-BERREY, A.CJ. - Ellen Doneen appeals the trial court's property

distribution in the dissolution of her 45-year marriage to James Doneen. She primarily

argues the trial court erred as a matter of law when it failed to distribute all property,

regardless of its character, roughly equally. We take this opportunity to clarify the law: In

reaching a just and equitable distribution of property under RCW 26.09.080, trial courts

must consider multiple factors, in.eluding four statutory factors. Although the duration of

the marriage or domestic partnership is one statutory factor, this factor may not be

considered so heavily so as to exclude the other statutory factors. Because the trial court
No. 34064-3-111
In re Marriage ofDoneen


properly considered multiple factors, including the four statutory factors, we affirm the

trial court's distribution of the parties' property.

                                            FACTS

       James and Ellen Doneen married in July 1969. Around this time, the couple

moved into a farmhouse in Whitman County that James's grandparents had homesteaded

in the 1800s. James eventually inherited the house and land from his father, mother, and

aunt. He inherited the property free and clear, and the couple never paid rent or a

mortgage. Over the years, the couple completed various remodeling and maintenance

projects on the home.

       James worked as a farm hand and Ellen worked at J.C. Penney's. They each made

roughly $20,000 per year, and their combined annual income was typically between

$40,000 and $44,000. They lived paycheck to paycheck and did not have extra money to

save or invest. They had no debts. James later inherited several hundred thousand dollars

in investment accounts from his parents and his aunt.

       In April 2014, Ellen petitioned to dissolve the marriage. The two separated in

September 2014 after 45 years of marriage.

       At the time they separated, they were both 72 years old. Ellen's monthly income

was roughly $1,100 per month, which was from social security and a J.C. Penney's


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No. 34064-3-III
In re Marriage ofDoneen


pens10n. James's income was roughly $1,900, which was from social security and

payments from a federal crop reclamation project.

       Ellen's health was good, except for high blood pressure and blood clots in her leg,

which prevented her from working. James was in remission from cancer and had suffered

three heart attacks, but believed he was able to work.

       At trial, a primary issue was how to characterize the various property, including

the investment accounts and the real property. James testified the farm had been in his

family for 150 years. He testified that when he died he wanted to leave the farm and land

to his grandsons, who wanted to become farmers.

       Ellen called the chief appraiser for Whitman County to opine on the land's value.

The appraiser testified the land was worth between $2,000 and $3,000 per acre.

       In closing, Ellen argued that under In re Marriage of Rockwell, 141 Wn. App. 235,

170 PJd 572 (2007), the trial court was required to place the parties in roughly equal

financial positions for the rest of their lives, regardless of the character of the property.

James asked the court to distribute nearly all of the community assets to Ellen and, if

necessary, also award her a portion of his separate property. After both parties' closing

arguments, the trial court took the matter under advisement and stated it would issue a

letter opinion.



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In re Marriage ofDoneen


        In its letter opinion, the trial court found that most of the investment accounts as

well as all of the real property-which included the land, the house, and the shop-were

James's separate property because he had inherited them from his family. The court

found the real property was worth $600,000 and the investment accounts were

collectively worth $425,978, for a total of $1,025,978. Of James's separate property, the

court awarded James $800,978 and Ellen $225,000.

        The trial court found the community marital property was worth $151,143.00. Of

the community property, the court awarded Ellen $106,532.50 and James $44,610.50.

Taking the separate and community property together, the court awarded James a grand

total of$845,588.50 and Ellen a grand total of$331,532.50.

        The trial court asked the parties to prepare the findings of fact and conclusions of

law. The findings, conclusions, and the decree of dissolution were entered on June 2,

2015.

        Several days later, James suffered a heart attack and died.

        On June 11, Ellen moved for reconsideration. She again argued Rockwell, 141

Wn. App. 235 required the court to equalize the financial circumstances of the parties

because they had a long-term marriage, regardless of the character of the property. She

argued the court failed to do this, as it had awarded James substantially more property.


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In re Marriage ofDoneen


       That same day, James's attorney also moved for reconsideration. 1 James's

attorney argued the trial court should have awarded the tractor to James. He also argued

the court mischaracterized the Mitsubishi Lancer, the Formula boat, and two U.S. Bank

accounts as community property. He argued James had bought the car, bought the boat,

and funded the U.S. Bank accounts with funds from one of his separate annuities, and

therefore they should have been characterized as James's separate property. James's

attorney attached a declaration in support of the motion for reconsideration, which James

had signed a few days before he died.

       Ellen later moved to strike James's motion for reconsideration. She argued

James' s attorney did not have authority to move for reconsideration after James' s death,

and the estate was not substituted as a party before the 10-day deadline for filing a motion

for reconsideration had expired. Ellen moved to substitute the estate as a party under

CR 25, acknowledging that she needed a party to oppose her motion for reconsideration.

The personal representative of James's estate also moved to substitute himself as a party.

      The court held a telephonic hearing to discuss the status of the case in light of

James's death. The court stated it would like to achieve substantial justice and reach the

merits of the parties' reconsideration motions. The court instructed James's attorney to


       1
           There is no evidence James' s attorney knew about James' s death before he filed

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No. 34064-3-III
In re Marriage of Doneen


file another motion for reconsideration after it substituted the estate as a party. The court

then entered an order substituting the personal representative of James' s estate as a party.

       Two months later, the court held a hearing on both parties' reconsideration

motions. At the beginning of the hearing, the trial court stated,

              Gentlemen,-each of you has on a motion for reconsideration. And
       as I've previously told you, I'm of a mind to consider both motions, and
       waive any requirement that they-should have been filed within a certain
       time, because of the extraordinary circumstances of the respondent's death.

Report of Proceedings at 318.

       The court then heard Ellen's motion for reconsideration. Ellen asked the court to

explain why it distributed roughly 75 percent of the total property to James and 25 percent

to her. The court explained that the majority of the property was James's separate

property, and that it had relied on the presumption that courts award separate property to

its owner except when necessary to avoid a serious inequity to the other party. The court

also agreed that James should keep the real property so he could leave it to his side of the

family. The trial court further explained that it did not want to totally invade James's

separate property, but wanted to invade it enough to make the distribution slightly more

equitable.




the motion for reconsideration.

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No. 34064-3-III
In re Marriage of Doneen


       The court then heard James's motion for reconsideration. The court agreed it

mistakenly characterized the Mitsubishi Lancer and Formula boat as community property

and stated it would recharacterize them as James' s separate property.

       The court entered new findings, conclusions, and a decree of dissolution in light of

the parties' motions for reconsideration. The court made several changes to its previous

property distribution. The court recharacterized the Formula boat and U.S. Bank accounts

as James' s separate property and awarded them to James' s estate. The court also

recharacterized the Mitsubishi Lancer as James's separate property, but nevertheless

awarded it to Ellen. The court awarded the tractor to James' s estate.

      Following reconsideration, the court's final property distribution was as follows:

the community marital property was worth $107,422. Of this sum, the court awarded

Ellen $96,172 and James $11,250-roughly a 90 percent/IO percent split in favor of

Ellen. James's separate property was worth $1,023,408. Of this sum, the court awarded

Ellen $228,000 and James $795,408-roughly a 78 percent/22 percent split in favor of

James. 2 The court found that Ellen had no separate real or personal property. In sum,


      2   In its initial order, the court found the U.S. Bank accounts were worth $16,721
and the American Equity 489 account was worth $29,570. However, on reconsideration,
the court did not make findings as to the value of any of these assets. The lack of values
for these assets accounts for the difference in the overall property value between the
initial orders and the orders on reconsideration.

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No. 34064-3-III
In re Marriage ofDoneen


taking the separate and community property together, the court awarded James a grand

total of $806,658 and Ellen a grand total of $324, 172-roughly a 71 percent/29 percent

split in favor of James.

       Ellen appeals.

                                        ANALYSIS

       A.     PROPERTY DISTRIBUTION


       Ellen argues the trial court abused its discretion by erring as a matter of law when

it distributed the assets unequally in favor of James. Relying on Rockwell, 141 Wn. App.

235, she contends the trial court was required to put her and James in roughly equal

financial positions-regardless of the property's character-given the length of their

marriage. Ellen does not challenge any of the trial court's characterizations of the

property as separate or community.

       RCW 26.09 .080 requires a trial court dividing property in a dissolution proceeding

to make a "just and equitable" distribution of property. This statute requires the trial

court to consider multiple factors in reaching a "just and equitable" distribution. These

factors include (1) the nature and extent of the community property, (2) the nature and

extent of the separate property, (3) the duration of the marriage, and (4) the economic

circumstances of the parties at the time of the property division. RCW 26.09.080.



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No. 34064-3-111
In re Marriage ofDoneen


       All property, community and separate, is before the court for distribution. In re

Marriage ofLarson, 178 Wn. App. 133, 137, 313 P.3d 1228 (2013). Prior to 1985,

Washington courts held that the trial court should award a spouse the separate property of

the other spouse only in "exceptional circumstances." E.g., Merkel v. Merkel, 39 Wn.2d

102,115,234 P.2d 857 (1951); 2 WASH. STATE BARASS'N, FAMILY LAWDESKBOOK,

§ 32.3(2) at 32-16 (2d. ed. 2000 & Supp. 2012). Our Supreme Court specifically

discarded this rule in 1985, stating:

       This court will not single out a particular factor, such as the character of the
       property, and require as a matter of law that it be given greater weight than
       other relevant factors. The statute directs the trial court to weigh all of the
       factors, within the context of the particular circumstances of the parties, to
       come to a fair, just and equitable division of property. The character of the
       property is a relevant factor which must be considered, but it is not
       controlling.

In re Marriage of Konzen, 103 Wn.2d 4 70, 4 78, 693 P .2d 97 (1985).

       The trial court has broad discretion to determine what is just and equitable based

on the circumstances of each case. Rockwell, 141 Wn. App. at 242. Because the trial

court is in the best position to determine what is fair, this court will reverse its decision

only ifthere has been a manifest abuse of discretion. Larson, 178 Wn. App. at 138. This

discretion applies to determinations regarding division of property. In re Marriage of

Wright, 179 Wn. App. 257,262, 319 P.3d 45 (2013).


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No. 34064-3-III
In re Marriage ofDoneen


       Although the property division must be "just and equitable," it does not need to be

equal. Larson, 178 Wn. App. at 138; Rockwell, 141 Wn. App. at 243. Nor does it need to

be mathematically precise. Larson, 178 Wn. App. at 138. Rather, it simply needs to be

fair, which the trial court attains by considering all circumstances of the marriage and by

exercising its discretion-not by utilizing inflexible rules. Id.

       In arguing that the trial court abused its discretion by distributing the assets

unequally in favor of James, Ellen relies chiefly on the following quotation from

Rockwell: "In a long term 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.

       At issue in Rockwell was the trial court's distribution of the wife's pension.

Rockwell, 141 Wn. App. at 254. The trial court found that 92 percent of the pension was

community property and 8 percent was the wife's separate property. Id. at 241. Of the

community property portion of the pension, the trial court awarded 60 percent to the wife

and 40 percent to the husband. Id The trial court did this because the husband was

younger, in good health, and employable at a substantial wage, whereas the wife was

retired, older, and in poor health. Id. at 249, 254. The trial court awarded the wife her

separate property portion of the pension. Id. at 241.


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No. 34064-3-III
In re Marriage ofDoneen


       The husband appealed, and the Rockwell court affirmed the trial court's

60 percent/40 percent division of the community property. Id. at 249, 255. The court

reasoned that trial courts have broad discretion in determining what will be a fair and

equitable distribution. Id. at 255. The court further reasoned that "where one spouse is

older, semiretired, and dealing with ill health, and the other spouse is employable, the

court does not abuse its discretion in ordering an unequal division of community

property." Id. at 249.

       Ellen's reliance on Rockwell is misplaced. The Rockwell court affirmed the trial

court; its holding was permissive in nature, not mandatory. See also Sullivan v. Sullivan,

52 Wash. 160, 162-64, 100 P. 321 (1909) (affirming trial court's award of $92,500 to

wife and $129,000 to husband). Rockwell does not support Ellen's contention that trial

courts are required to divide all the property equally in a long-term marriage and ignore

the property's character.

       In making this argument, Ellen focuses almost entirely on the third factor in

RCW 26.09.080: the duration of the marriage. Her argument suggests that the trial court

should have relied on this factor to the exclusion of the others. But the Konzen court

explicitly rejected any approach that focused on one factor and excluded all others.




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No. 34064-3-III
In re Marriage ofDoneen


Konzen, 103 Wn.2d at 478. Ellen ignores that RCW 26.09.080 also directs trial courts to

consider the nature and extent of the separate and community property.

       Here, the trial court awarded Ellen $96,172 of the community property, which was

about 90 percent. The trial court also gave her $228,000 of James's separate property-

roughly 22 percent of it-explaining that it did not want to totally invade James's separate

property, but wanted to invade it enough to make the distribution slightly more equitable. 3

In doing so, the trial court declined to utilize an inflexible rule, but rather properly

considered all the circumstances of the marriage and exercised its discretion to attain a

result in accordance with RCW 26.09.080.

       We conclude the trial court did not abuse its discretion by distributing the property

unequally in favor of James.

       8.     POSTDECREEPROCEDURALISSUES

       Ellen argues the trial court erred when it considered James's motion for

reconsideration. She argues that James's attorney did not have authority to move for




       3Ellen argues in her reply that the trial court erred in awarding the farmland to
James because there was no evidence at trial "that there was a will or other future transfer
of the Doneen land to [James's] grandchildren." Reply Br. of Appellant at 3. It is unclear
how this is relevant. It is undisputed the land was James's separate property, and the trial
court awarded it to James because it had been in his family for generations and he
intended to leave it to his grandsons. This was within the court's discretion.

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No. 34064-3-III
In re Marriage ofDoneen


reconsideration after James' s death, and that the estate was not substituted as a party

before the 10-day deadline for filing a motion for reconsideration had expired. She asks

this court to reverse the portions of the order on reconsideration that granted relief to

James.

         "If a party dies and the claim is not thereby extinguished, the court may order

substitution of the proper parties." CR 25(a)(l). All time limits applicable to substitution

of parties are within the court's discretion under CR 25. Barker v. Mora, 52 Wn. App.

825, 831, 764 P.2d 1014 (1988).

         Under CR 59(b ), however, a party must move for reconsideration "not later than

10 days after the entry of the judgment, order, or other decision." The trial court "may

not extend the time for taking any action under ... [CR] 59(b)." CR 6(b). Consequently,

trial courts have no discretionary authority to extend the time to file a motion for

reconsideration under CR 59(b). See Metz v. Sarandos, 91 Wn. App. 357, 360, 957 P.2d ·

795 (1998) (trial court's enlargement of 10-day CR 59 deadline was reversible error).

         Here, James's attorney filed the reconsideration motion within the 10-day limit.

While James's death prior to the filing caused the filing to be without proper authority,

this infirmity was removed once the estate was substituted and the estate ratified the

motion.



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In re Marriage ofDoneen


       Affirmed.




                               Lawrence-Berrey, A.CJ.

WE CONCUR:




Pennell, J.




                          14
