In Re The Marriage Of: Eric M. Wirkkala v. Lori D. Wirkkala ( 2019 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the 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) UNPUBLISHED OPINION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 of the value of the business’ assets. The court also determined that 17 percent
of Lori’s Oregon PERS I retirement account was community property. Lori appeals.
Because the final distribution of property below was 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
company together. In 1995, the couple incorporated WCI. The next year, after Eric and
Lori purchased Swensen Construction, WCI became Eric’s full time job. Lori remained
employed full-time for Clatsop County, Oregon, and worked for WCI on nights and
weekends. In general, Eric was in charge of the day-to-day operations while Lori took
care of the books and office work.
Eric and Lori were married in 1998. In 1999, Lori left her job with Clatsop County
and became a full-time employee of WCI. Throughout this period, the couple’s personal
and business finances were intertwined. While each took a salary from WCI, they also
used WCI accounts to pay for personal expenses.
In August 2010, 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 that they cooperate to operate WCI jointly. The court also appointed Niki
Goodin “to help the parties straighten out the business [books] and to report to the court
about the status and issues of the business.”
In March 2014, Eric asked the trial court to remove Lori from the business and to
alter the parenting plan. Relevant here, Eric argued that Lori was violating the court’s
temporary order by not cooperating with Good in and refusing to turn over business
records.
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The trial court found “there is substantial evidence that [Lori] has violated the
court’s order.” The court restrained Lori from “acting in any manner for [WCI] and
ordered [her] to turn over all business records related in any way with [WCI].”
On October23, 2014, the trial court judge recused himself and the case was
reassigned to a new trial court judge. Trial was held trial over two periods of time. The
first phase of trial took place in June 2015 and was primarily focused 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 of the parties’ real
property and WCI’s assets. But the parties never agreed on an entity to appraise WCI,
itself.
The second phase of trial 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 account was 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 account was 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 of dissolution and
accompanying findings of fact and conclusions of law on March 17, 2017. The court
awarded WCI to Eric but mandated that he pay Lori 60 percent of the value of the
business’ assets as compensation. The court also concluded that 17 percent of Lori’s
PERS I account was community property. Lori appeals.
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No. 79096-0-1/4
In a dissolution action, “the trial court must order a ‘just and equitable’ distribution
of the parties’ property.” In re Marriage of Larson and Calhoun, 178 Wash. App. 133, 137,
313 P.3d 1228 (2013) (citing RCW 26.09.080). “A just and equitable division does not
require mathematical precision, but rather fairness.” Larson, 178 Wash. App. at 138
(internal citation removed). The trial court is in the best place to decide issues of
fairness. Brewer v. Brewer, 137 Wash. 2d 756, 769, 976 P.2d 102 (1999). Moreover, the
erroneous valuation of one item does not require reversal of an otherwise fair and
equitable distribution. In re Marriage of Pilant, 42 Wash. 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 by tinkering with them. The emotional and financial
interests affected by such decisions are best served by finality. The
spouse who challenges such decisions bears the heavy burden of
showing a manifest abuse of discretion on the part of the trial court. The
trial court’s decision will be affirmed unless no reasonable judge would
have reached the same conclusion.
In re Marriage of Landry, 103 Wash. 2d 807, 809-10, 699 P.2d 214 (1985).
A.
Lori first contends that there is insufficient evidence in the record from which the
trial court could have concluded that 17 percent of her PERS I retirement account was
community property.
2 See also In re MarriaQe of Brady, 50 Wash. App. 728, 732, 750 P.2d 654 (1988) (“Despite the trial
court’s error in characterization of the parties’ property, we will not disturb the distribution of those
properties if in our judgment that distribution is otherwise fair, just and equitable.”).
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No. 79096-0-1/5
Findings of fact may be overturned only if they are not supported by substantial
evidence in the record. In re Marriage of Katare, 175 Wash. 2d 23, 35, 283 P.3d 546
(2012). “Substantial evidence is that which is sufficient to persuade a fair-minded
person of the truth of the matter asserted.” Katare, 175 Wash. 2d at 35. We will reverse a
trial court’s division of property only if the trial court manifestly abused its discretion. In
re Marriage of Wright, 179 Wash. 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 of the account was community property, or about 6 percent.3
The record, however, establishes that Eric and Lori were in an intimate committed
relationship before they were 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. If the community property accumulation began at the date the pair
incorporated WCI, about 22 percent of Lori’s PERS I account would be community
property.4 If it began from when they purchased the paving equipment, about 28
percent would be community property.5
Below, Eric presented argument to the trial court on Lori’s PERS I account
numerous times. Each time his general theme was the same: “I proposed a number for
the PERS . . . which was purely a speculation . . . the number I had proposed for the
community number is not mathematically precise.” It was not mathematically precise
because Lori refused to turn over current 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.
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No. 79096-0-1/6
explained, “I’ve received nothing. This is a very simple thing for [Lori] to get from 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 or the ability to get information
from that account.” The court then 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 court wrote in the Decree of Dissolution, Lori
“must present all current PERS 1 value information or the amount listed shall remain
unchanged.” Yet the 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 if she failed to do so the court would
accept Eric’s numbers. While it is not clear from the record precisely where Eric got the
17 percent figure from, 17 percent is certainly within the realm of possibility when one
considers that it could have been as high as 28 percent. Because the precise start date
of their 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 account was community property was not an abuse of discretion.
B.
Next, Lori argues that the first assigned trial judge abused its discretion when
modifying the original temporary order and removing Lori from WCI. But a final
judgment renders the propriety of a temporary order moot. Ferry County Title & Escrow
Co. v. Fogle’s Garage, Inc., 4 Wash. App. 874, 881, 484 P.2d 458 (1971); see also
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No. 79096-0-1/7
Valentine v. Valentine, 31 Wash. 2d 650, 653, 198 P.2d 494 (1948) (questions on the
propriety of a temporary restraining order were moot in light of the final decree); State
ex rel. Carroll v. Simmons, 61 Wash. 2d 146, 149, 377 P.2d 421 (1962) (a temporary order
merges with the final judgment and any questions as to the propriety of the temporary
order becomes moot). Therefore, Lori’s argument is moot.
C.
Finally, Lori argues that the trial court erred in valuing WCI. The “trial court has
broad discretion with respect to property division . . . and will be reversed only upon a
showing of a manifest abuse of discretion.” In re Marriage of Olivares, 69 Wash. App.
324, 328, 848 P.2d 1281 (1993), abrogated on other grounds by, In re Estate of Borghi,
167 Wash. 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. at 261. “[T]he trial court must ensure that the final division of the property is fair,
just and equitable under all the circumstances.” Olivares, 69 Wash. App. at 329.
Lori asserts that the trial court failed to precisely set forth which factors and
methods it considered in finding the value of WCI. Lori contends that In re Marriage of
Berg, 47 Wash. App. 754, 756-57, 737 P.2d 680 (1987), held that a trial court’s reliance on
a company’s book value is per se insufficient to value the company.6
Berg does not hold that reliance on book value is per se insufficient.7 And
further, the trial court properly set forth the factors it considered and did not rely on just
WCI’s book value. In Berg, similar to here, the primary dispute was the value of the
6 “Book value means the value of the corporation as shown on the books of account after
subtracting liabilities.” ~g, 47Wn. App. at 755, nI.
~ Instead, it simply recognizes that “numerous courts have rejected the contention that book value
alone is an accurate measure of a corporation’s actual value.” ~ 47 Wash. App. at 758.
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No. 79096-0-1/8
parties’ business. 47 Wash. App. at 755. On appeal, the court concluded that the trial
court failed to create an adequate record for review of the business’ value. Berg, 47
Wash. App. at 756. The court noted that “when a trial court values a closely held
corporation for purposes of a dissolution, it must set forth on the record which factors
and method were used in reaching its final value.” Berg, 47 Wash. App. at 757. The trial
court in Berg failed to do so, because it “simply accepted respondent’s testimony that
the corporation was worth its book value even though the court expressly stated in its
memorandum opinion that the business had a market value.” Berg, 47 Wash. App. at 758.
Here, the trial court did much more. First, the trial court repeatedly admonished
both parties that an expert appraiser was necessary to fully value WCI and if they could
not agree on one, the court could evaluate options under a battle of the expert type
scenario.8 Lori cannot refuse to take up the court’s offer to pick an appropriate expert,
refuse to hire her own expert, and now argue that the court erred in not fully valuing
WCI when it was impossible for the court to do so without an expert appraiser. And this
is especially true where, as here, Lori openly admitted that she wanted the court to sell
off WCI’s assets and simply divide the proceeds—which indicates that it would be
against her interest to get WCI fully appraised.
But more importantly, the trial court set out what factors it was considering and
did not consider just WCI’s book value. All of WCI’s major assets were appraised by
8 See Report of Proceedings (RP) (Sept. 21, 2015) at 79-80 (‘I mean. my only option [might be
. .
to liquidate the business and split the proceeds]. If you can’t agree on an evaluator, maybe you can
. .
agree to let the Court pick an evaluator and then we can start the trial on the other property.
. . If you
.
have a battle of the two evaluators, I can hear their credentials and how willing they are to be
independent and what their prices are going to be and you can agree that the Court will appoint one. .
I don’t see me picking a number out of the sky [as to the business’s value] just because we have no
evaluator and the parties come in and one says there’s really no value of the business and the other
says, oh, the business is worth a million dollars.”)
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No. 79096-0-119
experts. This allowed the court to establish a baseline value for WCI, similar to its book
value. The trial court then recognized that there was some additional value associated
with WCI’s goodwill beyond the value of its assets. The court determined that it was
appropriate to account for this additional value by granting Lori 60 percent of the value
of the business’s assets.9
The trial court did exactly what was required of it. It took the presentation of
evidence that it received and divided the property in a fair and equitable manner. It
accounted for the fact that there was value in WCI above and beyond the book value by
granting Lori a 60/40 split on the value of WCI’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 of the trial court’s discretion.
Affirmed.
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WE CONCUR:
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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 that we 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 her 60 percent because I didn’t get anything else from... him. Just to
do a fire sale of everything would have resulted in both sides getting less. So I did the best I could with
admittedly poor presentation of evidence.”).
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