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# I FILED JUNE 6, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHING TON DIVISION THREE Inthe Matter ofthe Marriage of ) No. 33720-1-111 ) SHELLEYRENEE WILLSON, ) ) Appellant, ) ) UNPUBLISHED OPINION and ) ) ROY CHARLES WILLSON, ) ) Respondent. ) SIDDOWAY, J.

- Shelley Willson and Roy Willson1 separated in 2014 after 22 years ofmarriage. Following trial, Roywas awarded 53 percent ofthe community property and 60 percent ofthe total property, with the remaining 4 7 percent and 40 percentrespectively awardedto Shelley. We affirm. 

## FACTS Roy and Shelley were married in September 1991 and separated in March 2014. Roy was 62 years ofage at the time ofthe dissolution trial and Shelley was 54.

1As the parties share a last name for the purposes ofthis appeal, their first names are used for clarity and readability. No disrespect is intended by doing so.No. 33720-1-111 In re Marriage of Willson Roy retired from law enforcement in 2003 and receives a pension. His gross monthly income from the pensionplan is $6,817.45, with a net monthly income of $5,505.39. Roy's prior employer covers hishealth insurance premiums and out-of-pocket medical costs excluding dental, vision, and hearing. There is no evidence in the record regarding the value ofthese benefits. Roy is not eligible to receive social security benefits by virtue ofbeing a member ofthis pensionplan. Roy presented expert testimony that valuedthe social security benefits he would have received, but is not entitled to draw, at $183,620.00. Shelley presented experttestimony thatvaluedthese social security benefits at $162,000.00. Roy also has several health issues including a form ofleukemia, a heart condition, and posttraumatic stress disorder. Hehas received medical treatmentto manage these issues overthepast 10 years and has been able to live
an active lifestyle during his retirement. Roy testified his illnesses do notpreventhim from seeking employment. Shelley has a general studies degree from Washington State University and a twoyear civil engineeringtechnology degree from YakimaValley Community College. She began municipal employmentin 1984, working as a traffic technician. Overthe years, Shelley worked herway up the ranks ofcity employmentand in 2013 she was appointed
as the city wastewatertreatmentplant manager. Shelley resigned herposition as
2No. 33720-1-111 In re Marriage ofWillson

wastewater manager in October 2014, while the dissolution action was pending, and received unemployment benefits that were set to expire inthe summer of2015. Shelley had been looking for work since 2014 but had not found new employment by the time oftrial. According to Shelley, it was difficult for her to find comparable work to the wastewater managerposition because she lacked certain engineering certification and licensure requirements. Roy and Shelley's home was built on land that originally belonged to Shelley's family. In 2003, the home was converted to community property via a quit claim deed. During the marriage, a number ofimprovements had been made to the home, with some ofthe laborprovided by Roy. There was no testimony at trial regarding whether these improvements increased the value ofthehome. A realtor at trial testified the value ofthe home was approximately $230,000. The dissolution trial became very heated at times. Although the trial court instructed the parties not to talk about what causedthe end ofthe marriage, bothparties broached the subject. Duringpretrial hearings, Roy's counsel sought to explain, over an objection, that Shelley had voluntarily quit herjob in orderto avoid being fired for violating her employer's antifratemizationpolicy. Shelley soughtto introduce evidence that Roy had forced her to leave herjobby threateningto expose herviolation ofthe


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antifraternizationpolicy. Despite this allegation, Shelley did not dispute the characterizationthat she "voluntarily" quitherjob. 1 Verbatim Report ofProceedings (VRP) (May 27, 2015) at 102; 3 VRP (May 29, 2015) at210. The trial court entered findings offact and conclusions oflaw, dividing the assets between theparties. In its findings, the trial court noted it was "mindful"thatRoy was reaching an age whenpeople retire, his retirement was planned during the marriage, and thathe had seven fewer years ofearning capacityremaining than Shelley. Clerk's Papers (CP) at 112-13. While noting Roy ''wouldbe capable ofsome unknown type of employment," the court also statedthe likelihood ofRoy earning as much as Shelley in the immediate future was "slim." 

### Id. As to Shelley, the court found it was "clear from the record she is capable ofearning between $95,000 to $105,000 gross peryear" plus her retirement benefits. 

### Id. at 113. After corrections were made onreconsideration, Roy was awarded 53 percent ofthe community property and 60percent ofthe total property. Roy's award included the marital home. Shelley appeals. ANALYSIS The trial court's findings and conclusions in support ofa dissolution decree are entitled to great weight and will not be disturbed absent a manifest abuse ofdiscretion.
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### 1 No. 33720-1-111 In re Marriage of Willson
In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572 (2007). A trial court is expected to make ajust and equitable distribution ofproperty, guidedby the statutory factors set forth at RCW 26.09.080. To meetthis objective, the court need not divide property equally. In re Marriage of Larson, 178 Wn. App. 133, 138, 313 P.3d 1228 (2013). So long as a trial court's distribution decision falls within the guidelines set by
our statutes and case law, it will be left undisturbed on appeal, even ifthe members ofthis court would have reached a different result in the first instance. Id. at 138-39;Rockwell, 141 Wn. App. at 242-43. Shelley contends the trial court erred here for a number ofreasons. She argues: (1) the trial court impermissibly injected fault into the proceedings by penalizing her for quitting herjob, (2) the trial court erred in valuing Roy'spension, and (3) substantial evidence does not support the trial court's findings on a number ofissues. 

### Faulting Shelleyfor quitting her job Shelley's first argument is that the trial court impermissibly injected fault into the dissolutionproceeding. Had this occurred, it would be error. Trial courts are required to make the aforementionedjust and equitable distribution "withoutregard to misconduct." RCW 26.09.080. See also In re Marriage of Muhammad, 153 Wn.2d 795, 803-06, 108 P.3d 779 (2005) (trial court improperly weighed wife's decision to obtain a protective
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order and faulted her for causing husband to lose hisjob). Shelley claims the trial court impermissibly faulted her for quitting herjob as the municipal wastewater treatment plant manager. We disagree. While the trial court expressed surprise that Shelley would voluntarily resign her lucrativeposition, it did not penalize her for this decision. This case did not involve child support ormaintenance. There was no imputation ofincome for purposes ofdevising an award to Roy.2 Instead, the trial court merely considered Shelley's admission that she voluntarily quit herjob in order to assess whether she had the future capacity to earn a salary similarto the one she received from the city.3 This was an appropriate consideration under RCW 26.09.080(4). In re Marriage of Leland, 69 Wn. App. 57, 72,847 P.2d 518 (1993) (although earning capacity "is not a divisible asset ...it is a factor to be considered when dividing the community and separate propertyin a dissolution proceeding"). Contrary to Shelley's assertions, the trial court appropriately restricted evidence regarding the reasons why Shelley resigned her employment. Ifthe court had considered

2 This case does not, therefore, raise the issue identified inMuhammadofa trial court altering its distribution ofproperty to offset one spouse's voluntary unemployment. 153 Wn.2d at 804-05. 3 Shelley claims the trial court faulted herfor taking early retirement. However, at the time Shelley left herjob, she had not yet decided whether to retire. She was stilljob searching. 6 

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# I No. 33720-1-111 In re Marriage of Willson Shelley's accusation that Roy blackmailed her into quitting herjob,Roy'sproffered evidence that Shelley couldhave received herjob back wouldhave become relevant. Shelley insisted that this evidence not come in. But Shelley cannot have itboth ways. Bothtypes ofevidence either needed to be excluded or admitted. Given the prohibition
on assessing fault, the trial courtproperly acted within its discretion in choosing the former option. 

### Pension benefits Following the procedure set up inRockwell, the trial court removed the impact of social security benefits from the parties' future earning capacities by discounting the value ofRoy'spension by the estimated amount he would have received in social security benefits but is not entitled to draw. 141 Wn. App. at 243-45. In so doing, the trial court accepted social security figures suggested by Shelley's expert, instead ofRoy's. We discern no error in the court'sRockwellanalysis. Shelley argues the trial court should have factored in the value ofRoy's health plan in determining his future pension earnings. However, no evidence was presented with respect to the value ofRoy's health benefits. The record contains information about the value ofShelley's health benefits, butthere is no evidence suggestingthat Shelley and Roy's health benefits would be the same. Without any figures to work with, the trial
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court's valuation ofRoy's pension benefits was not erroneous. 

### Substantialevidence Shelley argues that some ofthe trial court's findings offact are not supported by substantial evidence. Each ofher contentions is addressed in turn. 

### Shelley's earning capacity Shelley first argues the trial court erred when it determined she was capable of earning between $95,000.00 and $105,000.00 gross peryear, plus herpension benefits. We will defer to the trial court's findings, so long as they are "withinthe range ofcredible evidence." Rockwell, 141 Wn. App. at 248. The evidence at trial was that, during her last year ofemployment,4 Shelley received a salary of$103,104.28.5 Giventhis fact, at least
some evidence supported the trial court's findings. We will not disturb this finding on appeal.

4 Shelley contends the trial court erred by relying onher final year ofpay, rather than an average ofseveral years. None ofthe exhibits that Shelley used at trial to show her income priorto 2014 were included with the record on appeal. It is Shelley's burden to provide such documentation. Because she has not done so, we will not review this aspect ofher arguments. See Rhinevaultv. Rhinevault, 91 Wn. App. 688,692,959 P.2d 687 (1998). 5 Shelley resigned herposition as wastewatertreatmentplant manager on October24, 2014. As ofthat date, she earned a total of$138,123.86. This number includes a one-time payout for unused vacation and sick leave that was valued at $35,119.58. Thus, Shelley's actual earnings during 2014 were $103,104.28. 8 

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### Roy's healthand employability Shelley next argues that substantial evidence does not support the trial court's findings as to Roy's health and employability. Specifically, the trial court found Roy suffers from multiple health issues, which may become more severe, and that his chances for future employment are minimal. The trial court's findings are supported by substantial evidence. Contrary to Shelley's assertions, there is no requirement for experttestimony regarding these issues. The trial court was entitled to rely on Roy's testimony. See Rockwell, 141 Wn. App. at 242. In addition, it was not unreasonable for the trial court to infer that Roy was not employable, particularly given that Roy'sretirement had beenplanned during marriage and was in place for over a decade priorto dissolution. 

### Increase in the value of the home Shelley argues that Roy has not shown howthe improvements he made to the home increased its value. However, she offers no legal argument as to why this matters. Roy was awarded the marital home, and the home was valued at $230,000 by a realtor who testified at trial. There is no indication inthe record that Roy was awarded the home
as compensation for separate funds he expended onrepairs and improvements. Given the inadequate briefing and legal argument, we decline review ofthis issue. See State v.
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# l I I I No. 33720-1-III In re Marriage of Willson Wheaton, 121 Wn.2d 347, 365, 850 P.2d 507 (1993). 

### Unequalproperty division Given the parties' disparity in age and earning capacity, thetrial court did not abuse its discretion in dividing the community property unequally. In re Marriage of Doneen, 197 Wn. App. 941, 948-49, 391 P.3d 594 (2017). Shelley's assertions to the contrary are without merit. CONCLUSION The trial court's order ofdissolution is affirmed. Given Roy's substantialproperty award and monthly income, we deny his request for attorney fees. In re Marriage of Wright, 179 Wn. App. 257,270,319 P.3d 45 (2013). A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for publicrecord pursuantto RCW 2.06.040. 

# d]ddocu~-~· Siddoway, J. WE CONCUR:

Lawrence-Berrey, A.C.J. Pennell, J. 

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