Jean Walsh, Appellant V Kathryn Reynolds, Respondent (Majority)

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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 No. 44289 -2 -II In re the Domestic Partnership of: JEAN M. WALSH, Appellant / Cross- Respondent, v. PUBLISHED OPINION KATHRYN L. REYNOLDS, 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 of Long, 158 Wn. App. 919, 925, 244 P. 3d 26 ( 2010) ( quoting Francisco, 127 Wn.2d 339, 346, 898 P. 2d 831 ( 1995)). Courts also refer to such an Meretricious Connell v. Relationship equity relationship" Long, 158 Wn. App. 2007)). intimate relationship ' or a "' meretricious relationship. ' 922 ( quoting Olver v. Fowler, 161 Wn. 2d 655, 657 n. 1, 168 P. 3d 348 as a "` committed at 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 finding court' s 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 We also affirm the trial court' s award of attorney fees and costs to finding. Reynolds, and we grant her attorney fees and costs on appeal. FACTS I. RELATIONSHIP Jean Margaret Walsh is moved to Fresno, California, an orthopedic surgeon where she purchased a living home in Pierce with her County. In 1986, she personal savings. In 1987, she used additional personal savings to purchase a private medical practice. In 1988, Walsh moved met After dating for about three months, Reynolds Kathryn Reynolds. 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 20, 2009 ( thereby decreasing the community assets available for distribution and leaving a i. e., 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 her former housekeeper at the home shared. perform hired Reynolds to and they the At Reynolds' request, Walsh fired 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 Walsh University. paid Reynolds' tuition and other educational expenses; Reynolds completed her degree in 1993. In 1992, Walsh daycare Walsh services gave birth to for her daughter. continued a daughter. In early 1993, Reynolds moved out of Walsh' s house, but to pay Reynolds for household however, Reynolds back into Walsh' moved Walsh paid Reynolds additional money for s and house. daycare services. A few months later, In December 1993, Reynolds adopted Walsh' s daughter. In 1996, Walsh pregnant, she about $ had decided to 20, 000. 00. company, gave Walsh which she had birth to sell also her sold acquired a son, whom Reynolds adopted private medical practice. in 1997. When Walsh was The medical equipment sold for for $ 131, 766. 22 one share of a local health management 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 Reynolds' $ 7, 500 and 2011, Walsh credit card debt, paid which Reynolds Reynolds later over $ repaid 500, 000. to Walsh Walsh also paid off 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 domestic expenses. partner Walsh also provided Reynolds with medical benefits by listing her as a 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 " and not as acquir[ ing] all interest" in the property " as joint tenants with right of survivorship, 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 plan and petitioned child support for dissolution order on March 11, 2011. for their 16- and 13- The parties agreed on a parenting 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] Nevertheless, the trial beginning January relationship" Washington' court s Domestic 1, concluded that ( 1) marriage." Suppl. CP at 412. the parties had lived in an " equity 2005, 5 until they registered as domestic partners under 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 in a ' stable, marital -like relationship where both parties common law " equity relationship" 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 January 1, 2005, because neither California' s nor Washington' s registered domestic partnership laws vested Walsh and Reynolds with community property rights. before 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 a non Washington- registered " equity relationship" that began on January 1, 2005, when California amended its domestic partnership statute to extend community property during accumulated rights to registered this " equity relationship," domestic partners8; ( 2) assets the parties 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 6 Way The trial house sale equally; court also awarded and ( 5) awarding Reynolds attorney fees Walsh $ 180, 000 from her father' and costs. s contributions and $ Except for 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 equity relationship" began in 2005, we disagree with parties' " Walsh' s contentions. Reynolds cross -appeals, arguing that the trial court erred in ( 1) failing to characterize as joint assets the parties' equity relationship" assets before accumulated commenced in January 2005, January rather 2005; ( 2) ruling that the parties' 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. Hutchinson Cancer Research Ctr. defer to the trial court' s v. App. 31, 38, 83 P. 3d 1042 ( 2004) ( quoting Fred Holman, 107 Wn.2d 693, 712, 732 P. 2d 974 ( 1987)). factual findings. Pennington, 142 Wn.2d at 602 -03. We 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." relationship," Long, App. Id. 928. Once the trial court finds an " equity To divide the property justly and equitably, the trial court the relationship and the parties' Marriage of at the court distributes all property the parties acquired through their efforts during the " equity relationship." examines 158 Wn. Lindsey, 101 property accumulation. Id. at 928 -29 ( citing In re Wn.2d 299, 304, 678 P. 2d 328 ( 1984)). 8 The trial " court may No. 44289 -2 -II characterize as ` separate' property quoting Connell and ` community' by analogy to marital property." Id. at 929 Francisco, 127 Wn.2d 339, 351, 898 P. 2d 831 ( 1995)); see RCW 26. 16. 010- v. 030 ( definitions of separate and community property). But, unlike a community property relationship. Id. separate Wn. at marriage is before the trial where court separate 64, 69, 960 P. 2d 966 ( 1998)). in nature." all property for distribution 929 ( citing Connell, 127 Wn.2d property is likewise App. dissolution, at 351). Id. (citing is at Any before the the end of court, an " increase in the " only equity value of In re Marriage of Lindemann, 92 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 Washington on as domestic partners, August 20, 2009. equity relationship "9 first in California on March 6, 2000, and again in The trial court ( 1) characterized the parties' relationship as an 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 domestic registered beginning with either the effective date of partnerships, Washington' s domestic partnership statute ( June 12, 2008) 12 or the date the parties registered here, August 20, 2009), is later; ( 2) whichever 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 2010 was in Washington between August 20, 2009, and their separation on March 14, subject to Washington' community property law s and RCW 26. 60. 080. Neither party disputes the trial court' s application of Washington' s statutory community property law to this post August 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] Walsh contends that ( 1) California' s broader grant of rights is a substantial 3083[ - 84]. 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. Washington' s domestic 11. 1. But because relationship" we of Appellant partnerships can affirm at 7 -8, became " the trial doctrine, we need not 16; LAWS OF 2008, ch. 3) court' s it was not until December 2009 that to California' ruling based on s. Br. of Appellant at 16 the alternative " equity address whether Washington would have recognized California' s domestic partnerships before 2008. 12 and ( equivalent" 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 court' s application as an " of equity relationship. "13 the " equity Thus, we first address the propriety of the trial relationship" doctrine to the pre- Washington- parties' 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 rights schemes were not " substantially The " equity relationship" common law, 14 equivalent. " See RCW 26. 60. or "` [ meretricious] relationship ' 09015. Walsh is incorrect. doctrine is a creature of Lindsey, 101 Wn.2d at 304 ( quoting Latham v. Hennessy, 87 Wn.2d not statute. 13 Reynolds actually uses the term " committed intimate relationship." See, e. g., Br. of Resp' 23. But for purposes of this opinion, we use the term that the trial court used, " equity relationship." t at 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' equivalent" rights to domestic California' 15 domestic partnership laws, provides that Washington will recognize " substantially foreign domestic partnerships; ( 2) when California extended community property s partners in 2003, Washington did domestic partnership laws The legislature LAWS OF 2011, amended ch. 9, § 1; were not " not; substantially RCW 26. 60. 090 in 2009, 2011, LAWS OF 2009, ch. and ( 521, § 72. 3) therefore, Washington and equivalent." and 2012. LAws RCW 26. 60. 090. of 2012, ch. 3, § These amendments did not alter the statute in any way relevant to this case; accordingly, we cite the current version of the statute. 11 12; No. 44289 -2 -II 550, 552 -53, 554 P. 2d 1057 ( 1976), 303 -04) ( recognizing and equitable ' meretricious overruled in part on other grounds by Lindsey, 101 Wn.2d at relationship doctrine and instructing trial courts to make ' just 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 16 See also a ' Olver, 161 Wn.2d how property is titled, at stable, marital like relationship where both parties cohabit with 668 -69 ( " Washington common law has evolved to look beyond 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 between them does marriage Long, 158 Wn. App. at 925 not exist. ' quoting Connell, 127 Wn.2d at 346). Courts consider several factors in determining the existence of an " equity relationship;" N] o 926. one or " more important than Long, 158 Wn. App. at another." These factors include " continuous cohabitation, relationship duration, relationship purpose, of resources and services pooling at factor is determinative" 926 ( Connell, citing hypertechnical but 127 for joint Wn.2d rather. a means to projects, and at These factors 346). " examine all the parties' intent." relevant are Long, 158 Wn. App. neither exclusive nor Long, 158 Wn. App. at 926 evidence." 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: Continuous Cohabitation: The trial 1. brief interruptions, the 2. create a years." Relationship continuously Duration: Relationship approximately 23 3. parties court found, cohabited The trial court the record shows, " and from 1988 until found that the 2010." parties' But for a few Suppl. CP at 411. relationship " lasted Suppl. CP at 411. Purpose: The trial court found, " The purpose of this relationship was to family. This is evidenced by the parties' conception, birth, and cross adoption of three children, living emotionally and together financially in and an intimate holding committed themselves out relationship, to the supporting world as a family." each other Suppl. CP at 411. 4. income Pooling earner, of Resources: both Walsh and The trial court found that, although Walsh was the principal Reynolds " contributed 13 their time and energy to ... raising .. . No. 44289 -2 -II their family" and to " joint projects such as the extensive remodel of the Federal Way home." Suppl. CP at 411. Parties' Intent: 5. keep The trial found that, court although the parties " clearly intended to there was " no doubt that they intended to live together as a family." certain assets separate," Suppl. CP at 411. Substantial evidence supports these findings, including that Walsh and Reynolds intended to be in a marriage like with relationship 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 That they later formalized their relationship by registering as statutory domestic partners couple. does not together court defeat before the statutory correctly of application ruled the common law " equity registration option that Walsh and became relationship" available Reynolds lived in an " doctrine to their years to them. We hold that the trial 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 relationship" doctrine to only the 4 1/ 2 years court erred before the in limiting parties application of the " equity 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 rights property 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,'$ involved continuous cohabitation was " purpose Suppl. CP time and at to create 411. a which, as the trial court here expressly recognized, for " approximately 23 family" while " holding themselves out to the world as a family." Throughout their relationship, both Walsh energy to ... their raising ... intended to live together as a family" and Suppl. CP family." in a relationship for which the years" at to " joint 411. Reynolds " contributed their and projects," with " no doubt that they 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. But Walsh also No statutory preemption before 2008 argues that, because the legislature " resolving property distribution issues by devised a statutory means of 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 partners in 2008, Appellant 19 statute preempts the common law " equity relationship" doctrine. Br. of To the extent that she argues the statute retroactively preempted common law 25. at this equity doctrine before 2008, when there was no legislation in Washington, Walsh is incorrect. During Walsh' of most 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 26. 09. 080 and provided preempted statutory common community Until our legislature enacted RCW law. property rights for registered domestic partnerships, only the common law " equity relationship" doctrine addressed property distribution for such partnerships. This legality" 33 common of the law " equity relationship" parties' P. 3d 735 ( 2001). 26. 09. 080, courts could marriage or relationship. Vasquez v. Hawthorne, 145 Wn.2d 103, 107, For relationships that existed before our legislature enacted RCW apply the " equity relationship" Reynolds, find that they had been consequently, doctrine does not depend on the formality or distribute their living in doctrine to couples like Walsh and a " meretricious" or " equity" relationship, and, 20 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) 3) The nature and extent of the community property; The nature and extent of the separate property; The duration of the marriage or domestic partnership; and 4) The economic circumstances of each spouse or domestic partner at the time 2) the division of property is to become effective. The legislature amended domestic partnership" in the statute addition in 2008 to include the terms " domestic to " spouse" and " marriage." 1011. 20 As our Supreme Court has more specifically explained: 16 partner" and See LAws OF 2008, ch. 6, § 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 of parties expectations amendment' s effective to a meretricious date in 2008. See LAWS OF or " equity relationship" accrued before the 2008, ch. Thus, this statute does 6 § 1011. 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 that already existed before they registered as domestic partners in relationship" 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 to effort 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 Pennington, 142 Wn.2d them. 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 " Suppl. CP at 412. equity relationship." 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 counters that ( 1) the trial court " properly years of considered the the parties' common 22 -year relationship. law, [ applicable] Walsh statutes, and 21 More specifically, Walsh argues that, in Pennington, the Washington Supreme Court held that factor because they did not purchase property jointly, did not contribute jointly to their retirement accounts, and maintained separate did not meet accounts. Br. of the parties bank the "` pooling Appellant at of resources ' 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 the length and nature relationship" of the 22 parties' relationship " when it limited application of the " equity 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 their " equity relationship" which 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 record began disagree that the date do not support no earlier should the trial than 2005. have been August 20, 2009. court' s legal conclusion that the The findings of fact and the parties' " equity relationship" 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 ' different than other cases where of laws governing domestic partnerships and " is no heterosexual couples cohabit prior 24 Br. of Resp' t to marrying. " 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) ( P. 2d 1229 ( 1984); Baker v. citing In re Marriage ofMiracle, 101 Wn.2d 137, 675 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" relationships, heterosexual that existed before California' s 2005 statutory recognition of such despite explaining that had Walsh and Reynolds been a legally recognized 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)). to treat rather, term long - the trial community." But none of these cases stand for the proposition that a trial court is required as an " equity relationship" that creates community property; be ... justified in treating such property as though it belonged to the may See Connell, 127 Wn.2d at 350 ( warning that an Bodine, 34 Wn.2d at 36. cohabitation court " 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" Thus, existed we remand for the 20 to the trial plus years prior court to consider date of the marriage." extent of the parties' " to the the Suppl. CP at 412. 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 the form from the property' of " sweat Walsh concedes that Reynolds contributed to the property in s sale. Br. equity." 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 "[ reconstruction of s] he made all financial contributions towards the mortgage and 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 Federal Way survivorship, of According to Reynolds, when the parties purchased the survivorship. property, and not as they titled it in both of their community property or names tenants in as " joint tenants with right of 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. 700 ( 1980) ( joint tenancy interest and possession "; with See Merrick v. Peterson, 25 Wn. App. 248, 258, 606 P. 2d right of survivorship requires all " it is not enough to have only unity of title). 21 four unities of time, title, No. 44289 -2 -II The trial acknowledged court intent" to hold the property parties'] as Federal that the joint tenants Way property title " with right of express[ ed] [ the survivorship. Suppl. CP at 420. Nevertheless, it concluded that, because only Walsh was liable on the mortgage, she and Reynolds held the property tenants in as " CP common ". 375. at 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. in tenants We agree with the trial court that the parties held the Federal Way property as despite their stated intent to hold title as joint tenants with right of common," We survivorship. also equity relationship," agree with Reynolds, however, that because of the parties' existing the trial court did not abuse its discretion in dividing the value of the property as it did. RCW 64. 28. 020 created in favor declared in its of creation 64. 28. 010, in turn, which ... shall two governs joint tenancy or more persons to be provides a in their joint tenancy, that "[ with a right of survivorship: " is an interest in own right as provided Every interest common ... unless in RCW 64. 28. 010," which, RCW j] oint tenancy shall be created only by written instrument, 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)). " interest in the whole, and not the In a true joint tenancy, each of the tenants has an undivided whole of an undivided 22 interest." Merrick, 25 Wn. App. at 258. No. 44289 -2 -II The record here shows that the parties never became joint tenants because they did not have the requisite joint tenancy under unity severed at Merrick: Reynolds its inception. was not 'liable on See Merrick, 25 Wn. App. at the mortgage. 258. Thus, any Despite the parties' clear specification that they took the property as joint tenants with right of survivorship, Walsh' s unilaterally undertaking the element, essential to create such a have been joint tenancy App. tenancy obligation ( joint tenancy; with right of 1) was and ( inconsistent with 2) automatically " survivorship into a tenancy in the " unity" interest converted" common. what might Merrick, 25 Wn. A] ny agreement subsequently executed which is inconsistent with the joint 258 ( "[ at mortgage 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' separate non - properties, including its allocation of the equity in the Federal Way property, after balancing the parties' respective needs 23 No. 44289 -2 -II We also hold, however, that the trial court erred in refusing to consider that and contributions. the parties had a common law " equity relationship" before 1, January 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, applies which dissolutions until generally to December 3, 2009. dissolutions, did not apply to domestic partnership 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 Marriage of attorney fee Terry, award in a dissolution proceeding 79 Wn. for 291 P. 3d 906 ( 2012), App. abuse of review are based on need 866, 871, 905 P. 2d 935 ( 1995). discretion. and ability to pay. In re We review a trial court' s Kellar v. Estate of Kellar, 172 Wn. App. 562, 591, 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. attorney' s The disparity in income requires this Court to award [ Reynolds] 100 percent of her fees to be by [ Walsh]." paid 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 A "' 2007). this 2009 amendment. State v. Pillatos, 159 Wn.2d 459, 471, 150 P. 2d 1130 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 Wn.2d 1, 22, 969 P. 2d 21 ( 1998) ( citing Knight, 75 Wn. award. App. at In re Custody of Smith, 137 729), alld, Troxel v. Granville, Thus, we do not further address this 530 U. S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 ( 2000). argument. RAP 10. 3( a)( 6). Walsh next argues that, even if the trial court did not abuse its discretion, we should the attorney reduce under the Knight require fee award to Reynolds because it factors, ( 1) the facts of the case were not her to pay fees for time Reynolds' attorney Walsh contends that, was unreasonable. spent difficult, (2) it was unreasonable to 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' not in s time to familiarize compliance with [ trial brief Pierce never submitted ($ herself with [ County 1, 445. 00)." Pierce County Local Rules] ($ 845. 00)," " Local Rules] ($ 345. 00)," and "[ a] discovery ttorney fees... [ for a] 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 trial Walsh' s ability to pay, citing RCW 26. 09. 140. court' s order in a dissolution proceeding, " This statute provides that, in an appeal of a 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 the to statutory relative resources Wn. App. Thus, we have discretion to award attorney fees after considering costs." of the parties and the 796, 807, 954 P. 2d 330 ( 1998), merits of review the appeal. In re Marriage of Leslie, 90 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 reconsider whether and ( 2) if so, to the trial the court' s parties redistribute had the property distribution a common parties' and remand law " equity relationship" community assets L4J, We concur: 27 court ( 1) to before January 1, 2005; accordingly. court' s award of attorney fees and costs to Reynolds. Hunt, J. to the trial We affirm the trial

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