### IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matterofthe Marriage of: No. 78617-2-I GREGORYWILLIAM SHEWRING, DIVISION ONE

Appellant, UNPUBLISHED OPINION and CYNTHIA DIANE BLACKSHEAR, FILED: September23, 2019

Respondent. SMITH, J.

— In a dissolution proceeding, a trial court has broad discretion to distribute marital property and award maintenance so as to leave the parties in roughly equal financial positions. Gregory Shewring challenges the court’s distribution of property and award of maintenance, asserting thatthese decisions
were based on impermissible considerations, erroneous calculations, and resulted in an inequitable division of property. But because he fails to demonstrate a manifest abuse ofdiscretion, we affirm. FACTS Gregory Shewring and Cynthia Blackshear began living together in 2001 and married in 2004. After a relationship ofapproximately 15 years, Shewring filed a petition to dissolve the marriage in April 2016. Blackshear moved out of the parties’ home. During the relationship, the parties bought and sold multiple residences and lived in various parts ofthe country. When they separated inNo. 78617-2-l12

2016, theywere living on Whidbey Island in a home they purchased a couple of years earlier. Atthe time oftrial in February2018, both Shewring and Blackshearwere 67 years old and retired. Shewring remained in the Whidbey Island home. Blackshear resided in a rented apartment in Mason County, Washington. Shewring had several sources of retirement income, including a police pension, veteran’s disability income, and an army reserve pension. The court determined that, as of December2016, Shewring received a total monthly income of more than $7,500 from these sources and his income had likely increased since then due to cost of living adjustments. Shewring claimed expenses ofapproximately $4,370, which left him with more than $3,000 per month ofdisposable income. Blackshear, on the other hand, received less than $2,000 in monthly net income, primarilyfrom Social Security. She was also receiving monthly payments of$424 on a five-year promissory note, resulting from the sale ofa property near Shelton, Washington in 2015. Blackshear’s claimed monthly expenses were approximately $4,500. Shewring did not pay spousal supportto Blackshear during the period of nearlytwo years while the dissolution was pending. Pretrial, Shewring argued thatthe court should award a largershare ofthe community assets to him, including the Whidbey Island home. Shewring contended that Blackshear had no need for postdissolution support. Blackshear

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also requested more than 50 percent ofthe community property, as well as lifetime maintenance ofat least $2,500 per month. The courtvalued the parties’ assets in accordance with Shewring’s pretrial affidavit and awarded the parties’ major asset, the marital home, to him.1 The court awarded community assets to Shewring with a total netvalue of$60,000,
more than the value ofassets awarded to Blackshear.2 In addition, the court awarded all ofthe parties’ personal propertyto Shewring and assigned a value of $15,000 to that property.3 Considering the $75,000 difference between the value ofthe community property assets awarded to Shewring and those awarded to Blackshear, the court observed that equalizing the community property awards would require a $37,500 transfer paymentto Blackshear. However, the court concluded that itwas not practical to ordera transfer payment underthe circumstances, and instead, itwould considerthe unequal property distribution in determining the amount and length of maintenance. The court explained:

Assuming thatthe community estate is divided equally, as I believe Ms. Blackshearagreed would be appropriate in her closing argument assuming the Court awards appropriate maintenance, a transfer paymentwould be necessaryfrom Mr. Shewring to Ms. Blackshear in the sum of$37,524. It is not practical underthe facts ofthis case for Mr. Shewring to paythis sum to Ms. Blackshearso the Court has decided to take this into account in the maintenance award. Of

1 The court accepted the appraised value ofthe home, in accordance with Shewring’s pretrial affidavit, rejecting his assertion thatthe appraised value was inflated and less accurate than the tax assessed value.

2 Blackshear deposited inherited funds into a separate bank account during the marriage and the court awarded that accountto heras separate property.

~ Both parties assigned a value of more than $28,000 to the personal property. 3No. 78617-2-1/4
course, the Court’s property and debt division and the maintenance award should be considered as a whole and they should be considered in relation to each other. With respectto maintenance, the court noted there could be no “starker contrast” in the parties’ respective positions. The court stated thatthere was no doubtthat maintenance should be awarded and notto award maintenance, as advocated by Shewring, would amountto a “clear abuse ofdiscretion.” The court identified the issues to be resolved as the amount and duration of maintenance. The court discussed the statutoryfactors under RCW 26.09.090 and pertinent standards under controlling case law. The court noted that Shewring had “substantial” financial resources exceeding his expenses, whereas Blackshearwould have a “difficulttime” meeting her needs without maintenance, given herfinancial resources. Moreover, the court determined that due to her age and health condition, itwas not realisticto believe that Blackshearwould be able to earn income to equalize the parties’ resources. The courtfurther considered the parties’ “middle class standard of living” and “mid-range” length of the relationship. Finally, the court determined that Mr. Shewring had financial
resources thatwould allow him to meet his own needs and pay maintenance, noting that Shewring’s income had likely risen since the documentation of his income was more than a year out ofdate. In addition to these factors and the value ofcommunity property allocated to each party, the court considered the relative value ofthe parties’ pre relationship assets. The testimony established thatwhen the parties began living together, Shewring had poor credit and virtually no assets, whereas Blackshear

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owned a home and a sailboat, and was employed full time. Atthe time ofthe marriage, she had approximately $50,000 in savings. By 2004, Blackshear had sold herTexas home and the boat and used the proceeds to purchase homes in Florida and Washington. The court concluded there was a difference of approximateiy $74,000 in the value ofassets the parties brought into the relationship .4 The courtfound that Blackshear had a minimum need of$2,105, given her income and expenses, and that her projected future expenses were reasonable. The courtfurther observed that because Blackshear had been unable to cover her expenses afterthe separation, she had withdrawn approximately $35,000 from a communitysavings account. The court noted that monthly maintenance of$2,500 per month forfive years would result in payments totaling $150,000, which would be approximately equal to the total sum ofthe differentials the court outlined. Therefore, the court determined thatfive years was the “minimum duration” of maintenance. In consideration ofthe statutoryfactors and the evidence in the case, the court ruled that maintenance of$2,500 per month fora total ofeightyears would be appropriate. The courtfurtherordered Shewring to obtain term life insurance coverage naming Blackshear as the beneficiaryto secure the maintenance awarded and to paythe insurance premiums forfive years.5 The court also required Shewring to

~ The courtfound that Shewring’s contribution was approximately $28,000 from proceeds ofthe sale of property owned during a prior marriage.

~ The court required Blackshearto take over payment ofthe premiums if she wished to extend the coverage foran additional three years. 5No. 78617-2-1/6

elect and maintain formerspouse survivor benefit plan coverage for Blackshear. Shewring appeals. ANALYSIS Shewring challenges the amount and duration of maintenance awarded to Blackshear, characterizing the award as a ‘transfer payment” spread overa period ofeight years.6 Shewring contends thatthe trial court appropriately divided the parties’ community assets equally, but then erred by assessing additional sums against him based on pre-relationship assets that did not retain theirseparate characterand Blackshear’s post-separation use ofcommunity funds. As a result of its errors in adding these amounts to the “transfer payment,” Shewring contends thatthe court modified the division of propertyto “grossly favor” Blackshear. Trial courts are entitled to broad discretion in dissolution proceedings. In
re Marriage ofWright, 179 Wn. App. 257, 261, 319 P.3d 45 (2013). Generally,
we will not disturb a trial court’s decisions in a dissolution proceeding. In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). Because the trial court is in the best position to determine what is fair, its decisions will be reversed only ifthere has been a manifest abuse ofdiscretion. In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). Atrial court abuses its discretion if its decisions are based on untenable grounds or untenable reasons. Muhammad, 153 Wn.2d at 803. This discretion applies both to a trial court’s

6 In her responsive briefing, Blackshear also challenges aspects ofthe decree ofdissolution and the court’s failure to award lifetime maintenance. However, she did notfile a notice of cross appeal as required by RAP 5.1(d). Accordingly, we do not address those challenges.
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division of propertyand debts and to awards of maintenance. Wright, 179 Wn. App. at 261 (property division); In re Marriage ofValente, 179 Wn. App. 817, 822, 320 P.3d 115 (2014) (maintenance). We reject Shewring’s characterization ofthe issue. The trial court did not order a transfer payment. Indeed, the court expressly declined to do so. And the trial court did not modify its division of property, which awarded a greatershare of the communityestate to him. Instead, the court considered statutory and other relevantfactors for purposes ofdetermining the amount and duration of maintenance. Shewring’s argument is simplythatthe amount of maintenance is unreasonable and that, in light ofthe substantial maintenance awarded, the overall distribution of property is inequitable. When distributing property in a dissolution proceeding, RCW26.09.080 requires that a trial court considerthe following factors: (1) the nature and extent ofthe community property, (2) the nature and extent ofthe separate property, (3) the duration ofthe marriage, and (4) the economic circumstances ofeach spouse atthe time the division ofthe property is to become effective. In weighing these factors, the court must make a ‘just and equitable” distribution ofthe marital property. RCW26.09.080. Atrial court need not divide community property equally. In re Marriage of Rockwell, 141 Wn.App. 235, 243, 170 P.3d 572 (2007). “Future earning potential ‘is a substantial factorto be considered bythe trial court in making ajust and equitable property distribution.” Rockwell, 141 Wn. App. at 248 (quoting In re Marriage of Hall, 103 Wn.2d 236, 248, 692 P.2d 175 (1984)).

7No. 78617-2-1/8 With respectto maintenance, when a trial court awards maintenance, it has considerable discretion as to the amount and duration ofthe award. In re Marriage of Luckey, 73Wn. App. 201, 209, 868 P.2d 189 (1994). There is no uniform standard fordetermining the properduration ofa maintenance award. Rather, maintenance awards are ‘flexible tool{s] bywhich the parties’ standard of living may be equalized foran appropriate period oftime.” In re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984). “The only limitation on amount and duration of maintenance under RCW26.09.090 is that, in light ofthe relevantfactors, the award must bejust.” In re Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990). RCW26.09.090 governs an award of maintenance. In awarding maintenance, the court must considerthe following nonexclusive statutory factors: (a) The financial resources ofthe party seeking maintenance, including separate or community property apportioned to him or her, and his or her abilityto meet his or her needs independently

. . (b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or herskill, interests, style of life, and otherattendant circumstances; (c) The standard of living established during the marriage or domestic partnership; (d) The duration ofthe marriage or domestic partnership; (e) The age, physical and emotional condition, and financial obligations ofthe spouse or domestic partnerseeking maintenance; and (f) The ability ofthe spouse or domestic partnerfrom whom maintenance is soughtto meet his or her needs and financial obligations while meeting those ofthe spouse or domestic partner seeking maintenance. RCW26.09.090(1).

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The record demonstrates thatthe trial court considered all the relevant statutoryfactors. Attrial, the court heard evidence aboutthe parties’ respective financial condition, the duration ofthe marriage and prior relationship, and the parties’ standard of living before and afterseparation. The trial court clearlytook into account the extent ofthe parties’ resources, expenses, and theirfuture economic prospects, given their ages, and physical and emotional conditions. The court also considered Blackshear’s estimated future expenses and her testimonythat she was operating at a deficitto meet her monthly household expenses. As noted, the statutoryfactors are not exclusive. It is well settled thatthe trial court may properly consider otherfactors, including the property division, when determining maintenance, and thatthe court may also consider maintenance in making an equitable division of property. In re Marriage of Estes, 84Wn. App. 586, 593, 929 P.2d 500 (1997). No authority supports Shewring’s position thatthe courtwas prohibited from considering pre-relationship assets thatwere used forthe benefit ofthe community but did not remain separate assets.The testimony established that Blackshearwas financially secure with stable income and assets when the relationship began. Proceeds from the sale of herassets allowed the parties to fund subsequent purchases ofother properties. Shewring, on the other hand, entered the relationship with neither property norsavings, and had poor credit. The court did not engage in “double counting” assets by recognizing thatthe improvement of Shewring’s financial

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position was due, in no small part, to the infusion of Blackshear’s assets and income. And itwas not inequitable forthe courtto considerthat because of Blackshear’s retirement, age, and deteriorated health condition, she would be unable to regain financial securitywithout significant spousal support.7 Shewring also fails to establish thatthe court impermissibly considered the lack ofsupport during the pendency ofthe dissolution and Blackshear’s use of community resources to cover her expenses in that period. The court awarded the value ofa bank accountto Blackshearthat, atthe time ofseparation, had a balance of$73,350. But, bythe time oftrial, the account had a diminished value because Blackshear used approximately $35,000 to pay expenses, including attorney fees. Recognition ofthis was not a “miscalculation” ofthe value ofthe account. And the court’s consideration ofthe loss in value ofthe assetfor purposes ofdetermining maintenance was not inconsistentwith its decision not to award attorneyfees “in light ofthe overall division of property and debts and the maintenance award.” The court reasonably determined thatthe loss in value ofthe accountwas likely due to the factthat Blackshear had not received maintenance. Shewring’s reliance on In re Marriage of Spreen, 107 Wn. App. 341, 28 P.3d 769 (2001), is unavailing. In that case, the court granted a motion to modify maintenance in light ofthe formerwife’s deteriorated mental health condition.

~ We reject Shewring’s claim thatthe court made a mathematical error by considering the value ofsome of Blackshear’s assets in 2001, when the parties began living together, and her bank balance atthe time ofthe marriage. For purposes ofdetermining equitable maintenance, the courtwas not required to considerthe value ofall assets at a single point in time.
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Butthe courtthen arbitrarily limited the extension of maintenance to only one additional year, on the ground thatthe wife had received maintenancefor long enough and was “entitled” to no more than sixyears ofsupport. Spreen, 107 Wn. App. at 345. This case does not involve a modification action. And unlike the court in Spreen, in determining the maintenance award, the trial courtfairly considered the statutoryfactors and properlyfocused on the parties’ respective postdissolution financial condition. Shewring argues thatthe court intended an equal distribution of property, butthen awarded $240,000 in maintenance to be paid overthe course ofeight years, which had the effect ofdrastically reducing his share ofthe property. But, to the contrary, the court’s statements indicate onlythat it intended an equitable resultwith respectto the allocation of propertyand maintenance. And his argument disregards the factthat his income will enable him to paythe $2,500 monthly support paymentwithout resortto the use ofcommunity property assets. Shewring fails to establish thatthe award of maintenance was untenable. Contraryto his claim, the trial court considered the division ofall property, including Blackshear’s award ofseparate property. There is nothing to suggest the courtfailed to appreciate the impact ofadditional costs associated with life insurance and survivor benefits. The court considered Blackshear’s expenses and abilityto meet herown needs, and the fact that some of Blackshear’s expenses were projected estimates, not actual expenses. While Shewring disagrees, the maintenance award alsojustified the property division which allocated a higher share ofthe propertyto him, as well as the parties’ most

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valuable asset, the Whidbey Island home. The evidence in the record supports the award and the trial court did not abuse its discretion. Affirmed. 

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WE CONCUR:

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