IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matterofthe Marriage of: 

### ) No. 79096-0-I ERIC MARVIN WIRKKALA, 

### ) ) DIVISION ONE Respondent, 

### )

) UNPUBLISHED OPINION v. 

### ) LORI DENISE WIRKKALA, 

### ) FILED: August 5, 2019 

### ) Appellant.
MANN, A.C.J.

— On March 17, 2017, the trial court issued a final decree of dissolution in the marriage of Eric and Lori Wirkkala.1 The court awarded the couple’s business—Wirkkala Construction, Inc. (WCI)—to Eric but required him to pay Lori 60 percent ofthe value ofthe business’ assets. The court also determined that 17 percent of Lori’s Oregon PERS I retirement accountwas community property. Lori appeals. Because the final distribution of property belowwas fair, just, and equitable, we affirm.

1 We use the parties’ first names to avoid confusion. No disrespect is intended.No. 79096-0-1/2

Eric and Lori began a romantic relationship between 1993 and 1994. In 1994 or 1995, the couple bought paving equipment and started a part-time asphalt sealing companytogether. In 1995, the couple incorporated WCI. The nextyear, after Eric and Lori purchased Swensen Construction, WCI became Eric’s full timejob. Lori remained employed full-time for Clatsop County, Oregon, and worked forWCI on nights and weekends. In general, Ericwas in charge ofthe day-to-day operations while Lori took
care ofthe books and office work. Eric and Lori were married in 1998. In 1999, Lori left herjob with Clatsop County and became a full-time employee ofWCI. Throughoutthis period, the couple’s personal and business financeswere intertwined. While each took a salaryfrom WCI, they also used WCI accounts to payfor personal expenses. In August2010, Eric petitioned for legal separation. Lori counter-petitioned for dissolution. The trial court initially entered a temporary order intended to preserve the status quo. The court granted the parties 50/50 residential time with their son and ordered thatthey cooperate to operate WCI jointly. The court also appointed Niki Goodin “to help the parties straighten outthe business [books] and to reportto the court aboutthe status and issues ofthe business.” In March 2014, Eric asked the trial courtto remove Lori from the business and to alterthe parenting plan. Relevant here, Eric argued that Lori was violating the court’s temporary order by not cooperating with Goodin and refusing to turn over business records.

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The trial courtfound “there is substantial evidence that [Lori] has violated the court’s order.” The court restrained Lori from “acting in any mannerfor [WCI] and ordered [her] to turn over all business records related in anyway with [WCI].” On October23, 2014, the trial courtjudge recused himselfand the case was reassigned to a newtrial courtjudge. Trial was held trial overtwo periods oftime. The first phase oftrial took place in June 2015 and was primarilyfocused on the parenting plan. During this period, the parties agreed to have two independent entities—Keith Thurman and the Ritchie Brothers Auction House—appraise all ofthe parties’ real property and WCI’s assets. Butthe parties neveragreed on an entityto appraise WCI, itself. The second phase oftrial took place in February 2016 and primarily addressed the parties’ property, including Lori’s Oregon PERS I retirement account. The parties’ agreed that some portion of Lori’s accountwas community property but disagreed what portion. Lori testified that she had accumulated 17 years’ worth of PERS I funds before she married Eric and only 13 months after her marriage. Eric argued that 17 percent of Lori’s PERS I accountwas community property. On April 11,2016, the trial court issued a letter ruling detailing how it intended to divide the parties’ property. The court issued a final decree ofdissolution and accompanying findings offact and conclusions of law on March 17, 2017. The court awarded WCI to Eric but mandated that he pay Lori 60 percent ofthe value ofthe business’ assets as compensation. The court also concluded that 17 percent of Lori’s PERS I accountwas community property. Lori appeals.

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In a dissolution action, “the trial court must order a ‘just and equitable’ distribution ofthe parties’ property.” In re Marriage of Larson and Calhoun, 178 Wn. App. 133, 137, 313 P.3d 1228 (2013) (citing RCW26.09.080). “Ajust and equitable division does not require mathematical precision, but ratherfairness.” Larson, 178 Wn. App. at 138 (internal citation removed). The trial court is in the best place to decide issues of fairness. Brewerv. Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999). Moreover, the
erroneous valuation ofone item does not require reversal ofan otherwise fair and equitable distribution. In re Marriage of Pilant, 42 Wn. App. 173, 181, 709 P.2d 1241 (1985).2 As the Supreme Court has counseled, [T]rial court decisions in a dissolution action will seldom be changed upon appeal. Such decisions are difficult at best. Appellate courts should not encourage appeals bytinkering with them. The emotional and financial interests affected by such decisions are best served byfinality. The spouse who challenges such decisions bears the heavy burden of showing a manifest abuse ofdiscretion on the part ofthe trial court. The trial court’s decision will be affirmed unless no reasonablejudge would have reached the same conclusion. In re Marriage of Landry, 103 Wn.2d 807, 809-10, 699 P.2d 214 (1985). A. Lori first contends thatthere is insufficient evidence in the record from which the trial court could have concluded that 17 percent of her PERS I retirement accountwas community property.

2 See also In re MarriaQe of Brady, 50 Wn. App. 728, 732, 750 P.2d 654 (1988) (“Despite the trial court’s errorin characterization ofthe parties’ property, we will notdisturb the distribution ofthose properties ifin ourjudgmentthat distribution is otherwise fair, justand equitable.”). -4-No. 79096-0-1/5

Findings offact may be overturned only ifthey are not supported by substantial evidence in the record. In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). “Substantial evidence is thatwhich is sufficient to persuade a fair-minded person ofthe truth ofthe matterasserted.” Katare, 175 Wn.2d at 35. We will reverse a trial court’s division of property only ifthe trial court manifestly abused its discretion. In
re Marriage ofWright, 179 Wn. App. 257, 261, 319 P.3d 45 (2013). The evidence in the record establishes that Lori accumulated 18 years’ worth of funds in her PERS 1 account. She asserts that based on the date the couple were married 13 months’ worth ofthe accountwas community property, or about 6 percent.3 The record, however, establishes that Eric and Lori were in an intimate committed relationship before theywere married. They began dating in 1993 or 1994, they made a major purchase and began a business together in 1994, and they incorporated WCI together in 1995. Ifthe community property accumulation began atthe date the pair incorporated WCI, about 22 percent of Lori’s PERS I accountwould be community property.4 If it began from when they purchased the paving equipment, about 28 percentwould be community property.5 Below, Eric presented argumentto the trial court on Lori’s PERS I account
numerous times. Each time his general theme was the same: “I proposed a numberfor the PERS

. . . which was purely a speculation

. . . the number I had proposed forthe community number is not mathematically precise.” Itwas not mathematically precise because Lori refused to turn overcurrent documents on the account. As Eric’s counsel

~(13 months/216 months) x 100 = 6.01 percent. 18 years equals 216 months. 4(4 years/18 years) x 100 = 22.2 percent.

~ (5 years/ 18 years) x 100 = 27.7 percent.-5-No. 79096-0-1/6

explained, “I’ve received nothing. This is a very simple thing for [Lori] to getfrom the State of Oregon

. . . I’ve got nothing but eight-year old records.” The trial court similarly expressed its dissatisfaction with Lori’s failure to turn over necessary documents, “you’re the one that has control orthe abilityto get information from that account.” The courtthen warned, “I’m going to complete the paperwork and
reserve on that issue and give her 90 days to come up with the actual.

. . information or else I will accept [Eric’s] number.” And the courtwrote in the Decree of Dissolution, Lori “must present all current PERS 1 value information orthe amount listed shall remain unchanged.” Yetthe record still contains no information about Loris PERS 1 account information. Lori was given numerous chances to submit actual up to date information about her PERS I account and was specifically told ifshe failed to do so the courtwould accept Eric’s numbers. While it is not clearfrom the record preciselywhere Eric got the 17 percentfigure from, 17 percent is certainlywithin the realm of possibilitywhen one considers that it could have been as high as 28 percent. Because the precise start date oftheir intimate committed relationship is unclear and because Lori failed to correct Eric’s proposed numbers, the trial court’s determination that 17 percent of Lori’s PERS I accountwas community propertywas not an abuse ofdiscretion. B. Next, Lori argues thatthe first assigned trial judge abused its discretion when modifying the original temporary orderand removing Lori from WCI. But a final judgment renders the propriety ofa temporary order moot. Ferry CountyTitle & Escrow Co. v. Fogle’s Garage, Inc., 4 Wn. App. 874, 881, 484 P.2d 458 (1971); see also

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Valentine v. Valentine, 31 Wn.2d 650, 653, 198 P.2d 494 (1948) (questions on the propriety ofa temporary restraining orderwere moot in light ofthe final decree); State
ex rel. Carroll v. Simmons, 61 Wn.2d 146, 149, 377 P.2d 421 (1962) (a temporary order merges with the final judgment and any questions as to the propriety ofthe temporary order becomes moot). Therefore, Lori’s argument is moot. C. Finally, Lori argues thatthe trial court erred in valuing WCI. The “trial court has broad discretion with respectto property division

. . . and will be reversed only upon a showing ofa manifest abuse ofdiscretion.” In re Marriage of Olivares, 69 Wn. App. 324, 328, 848 P.2d 1281 (1993), abrogated on other grounds by, In re Estate of Borghi, 167 Wn.2d 480, 219 P.3d 932 (2009). A court abuses its discretion when its decision is “manifestly unreasonable, or based on untenable grounds or reasons.” Wright, 179 Wn. App. at261. “[T]he trial court must ensure thatthe final division ofthe property is fair, just and equitable underall the circumstances.” Olivares, 69 Wn. App. at 329. Lori asserts thatthe trial courtfailed to precisely setforth which factors and methods it considered in finding the value ofWCI. Lori contends that In re Marriage of Berg, 47Wn. App. 754, 756-57, 737 P.2d 680 (1987), held that a trial court’s reliance on a company’s bookvalue is perse insufficient to value the company.6 Berg does not hold that reliance on bookvalue is per se insufficient.7 And further, the trial court properly setforth the factors it considered and did not rely on just WCI’s bookvalue. In Berg, similarto here, the primary dispute was the value ofthe

6 “Bookvalue meansthe value ofthe corporation as shown on the books ofaccountafter subtracting liabilities.” ~g, 47Wn. App. at755, nI.

~ Instead, itsimply recognizesthat“numerous courts have rejected the contention that bookvalue alone is an accurate measure ofa corporation’s actual value.” ~ 47Wn. App. at758. -7-No. 79096-0-1/8

parties’ business. 47 Wn. App. at 755. On appeal, the court concluded thatthe trial courtfailed to create an adequate record for review ofthe business’ value. Berg, 47 Wn. App. at 756. The court noted that “when a trial courtvalues a closely held corporation for purposes ofa dissolution, it must setforth on the record which factors and method were used in reaching its final value.” Berg, 47 Wn. App. at 757. The trial court in Berg failed to do so, because it “simply accepted respondent’s testimonythat the corporation was worth its bookvalue even though the court expressly stated in its memorandum opinion thatthe business had a marketvalue.” Berg, 47 Wn. App. at 758. Here, the trial court did much more. First, the trial court repeatedly admonished both parties that an expert appraiserwas necessaryto fullyvalue WCI and ifthey could not agree on one, the court could evaluate options undera battle ofthe experttype scenario.8 Lori cannot refuse to take up the court’s offerto pick an appropriate expert, refuse to hire herown expert, and now argue thatthe court erred in notfullyvaluing WCI when itwas impossible forthe courtto do so without an expert appraiser. And this is especiallytrue where, as here, Lori openly admitted that she wanted the courtto sell offWCI’s assets and simply divide the proceeds—which indicates that itwould be against her interestto getWCI fully appraised. But more importantly, the trial court set outwhatfactors itwas considering and did not considerjustWCI’s bookvalue. All ofWCI’s major assets were appraised by

8 See Reportof Proceedings (RP) (Sept. 21, 2015) at 79-80 (‘I mean.

. . myonly option [might be to liquidate the business and splitthe proceeds].

. . Ifyou can’tagree on an evaluator, maybe you can agreeto letthe Court pickan evaluatorand then we can startthe trial on the other property.

. . . Ifyou have a battle ofthe two evaluators, I can heartheircredentials and howwilling they areto be independent and whattheir prices are going to be and you can agree thatthe Courtwill appoint one.

. I don’tsee me picking a numberoutofthe sky [as to the business’s value]just becausewe have no evaluatorand the parties come in and one saysthere’s really no value ofthe business and the other says, oh, the business is worth a million dollars.”) -8-No. 79096-0-119

experts. This allowed the courtto establish a baseline value forWCI, similarto its book value. The trial courtthen recognized thatthere was some additional value associated with WCI’s goodwill beyond the value of its assets. The court determined that itwas appropriate to accountforthis additional value by granting Lori 60 percent ofthe value ofthe business’s assets.9 The trial court did exactlywhatwas required of it. Ittookthe presentation of evidence that it received and divided the property in a fair and equitable manner. It accounted forthe factthatthere was value in WCI above and beyond the bookvalue by granting Lori a 60/40 split on the value ofWCI’s assets. And it otherwise divided the parties’ property in a reasonable manner. Based on the evidence in the records before us, this was not a manifest abuse ofthe trial court’s discretion. Affirmed.



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9See RP (Jan. 19, 2017) at 106-07, 112 (I said the business is going to be divided 60/40, because he gets an ongoing business with goodwill and all the things thatwe didn’t have expert testimony about.

. . I recognize there’s goodwill in [WCI].

. . That’s where I

— I tacked on the 60/40.”); RP (Mar. 10, 2017) at 14-15 (I gave her60 percent because I didn’t get anything else from... him. Justto do a fire sale ofeverything would have resulted in both sides getting less. So I did the best I could with admittedly poor presentation ofevidence.”). -9-