In the Matter of the Marriage of: Kimberly Anne Bartlett & Douglas Alan Bartlett ( 2021 )

FILED
NOVEMBER 9, 2021
In the Office of the Clerk of Court
WA State Court of Appeals Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Matter of the Marriage of )
) No. 36751-7-III cons. with
KIMBERLY ANNE BARTLETT, ) No. 36810-6-III
)
Respondent, )
) UNPUBLISHED OPINION
and )
)
DOUGLAS ALAN BARTLETT, )
)
Appellant. )
)
FEARING, J. — Douglas Bartlett appeals the property division, a spousal
maintenance order, and a child support order entered in his marital dissolution action.
Because the dissolution court did not abuse its discretion in its rulings, we affirm the
court.
FACTS
Douglas Bartlett and Kimberly Bartlett began cohabitating in 2003. The couple
bore a son in 2004 and a daughter in 2006. Douglas and Kimberly intermarried on July
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1, 2006 in Spokane. Kimberly, a trained beautician, quit her job as a hair designer on the
birth of the son in 2004.
In 2003, Douglas Bartlett formed Bartlett, LLC, a business that purchases and sells
used automobiles. Bartlett, LLC held title to Douglas and Kimberly Bartlett’s vehicles,
motor homes, and boats, among other personal property. Kimberly did not know of
ownership of these assets in the limited liability company until she separated from
Douglas in 2017.
Beginning in 2013, the Bartlett family lived on S. Dishman-Mica Rd. outside of
Spokane. The two also owned an adjacent, five-acre lot on Dishman-Mica Rd. At trial,
Douglas and Kimberly agreed that the value of the family home was $475,000 and the
value of the neighboring property was $145,000. Bartlett, LLC owned and leased to
renters an earlier family home at 9908 E. Holman Rd.
In 2016, Douglas Bartlett refinanced the family residence. At that time, Douglas
told Kimberly the refinancing sum was $140,000. After separating from Douglas,
Kimberly learned that he refinanced the residence for $400,000, which increased the
house payment from $1,800 to $2,500 per month. At the time of trial, the couple owed
$385,153 on the family home.
In 2016, the Internal Revenue Service (IRS) imposed a $58,721.16 tax lien on the
Dishman-Mica Road family residence for taxes. At trial, Douglas Bartlett expressed no
concern about this lien and protested that he would retire the lien.
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After separation from Douglas in 2017, Kimberly Bartlett worked part-time as an
assistant cook for Spokane Valley’s Central Valley School District, a hairdresser, and a
house cleaner. At trial, Kimberly averred that she could earn $1,841 per month, although
she earned less than that amount then. She estimated that monthly expenses for her and
the two children totaled $6,420.
The parties disputed the value of the ongoing business, Bartlett, LLC. Douglas
Bartlett hired CPA Steven Kessler, and Kimberly retained the services of CPA Scott
Martin. Kessler valued Bartlett, LLC at $1,089,000. Martin valued the business at
$1,334,412.
During his testimony at trial, accountant Steven Kessler mentioned two
shareholder loans owed to Bartlett, LLC. Kessler valued the loans at $97,250 and
$78,730 respectively. Kessler refused to count the loan values in the valuation of
Bartlett, LLC:
[O]ne asset this business had was a shareholder loan receivable of
$175,000 [the rough value of the two loans combined].
. . . So when I do a net tangible asset, I treat that as zero because
the reality is no shareholder is ever going to repay it and so I make it a
zero.
Report of Proceedings (RP) at 398-99 (emphasis added).
During trial, the parties also disputed the amount of Douglas Bartlett’s income.
Douglas and Kimberly Bartlett’s 2016 tax return reported an adjusted gross income of
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$278,037. Their 2015 joint tax return listed an adjusted gross income of $321,823. All
of the income came from Douglas’ work in the used car field.
In a November 6, 2018 financial declaration, Douglas Bartlett estimated his gross
annual income to be $157,000, or about $13,000 per month. At trial, Kimberly’s expert,
Scott Martin, estimated Douglas’ 2017 gross income to be $137,722. Douglas’ expert
Steven Kessler, instead of testifying to Douglas’ income, estimated the “market rate
compensation” for Douglas’ services at $135,000. RP at 419.
From September 2017 to April 2018, Douglas Bartlett wired international bank
transfers in the total sum of $1,500,000. In 2017 and 2018, Douglas took petty cash
draws from Bartlett, LLC in the tens of thousands of dollars.
Steven Fitch, a former employee of Douglas Bartlett, testified at trial that Douglas
started Spokane County Biodiesel, a company for which Fitch served as the chief
financial officer. According to Fitch, Douglas sold the business in 2012 for $900,000.
PROCEDURE
On November 1, 2017, Kimberly Bartlett filed a petition for dissolution. The
matter proceeded to a trial beginning in December 2018.
At the conclusion of the trial, the dissolution court awarded the family home,
located on S. Dishman-Mica Rd., to Kimberly Bartlett. The court awarded the other two
parcels of real property, on S. Dishman-Mica Rd. and E. Holman Rd., to Douglas
Bartlett. The court awarded a multitude of vehicles, some furniture, and the Washington
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Trust Bank and Banner Bank accounts to Douglas. The dissolution court awarded two
vehicles, a mountain bike, and $15,000 in other property, to Kimberly.
In its oral ruling, the dissolution court accepted Kimberly Bartlett expert’s
valuation of Bartlett, LLC at $1,334,412. In its later written findings of fact and
conclusions of law, however, the court adopted Douglas Bartlett expert’s valuation of the
limited liability company at $1,089,000. The trial court characterized the ownership
interest in the limited liability company as Douglas’ separate property and awarded the
entire interest in the business to Douglas. The dissolution court ordered Douglas to pay
all community debts, including the mortgage and the IRS tax lien on the family home.
In its oral ruling, the dissolution court commented on the equitable nature of its
division of property:
[T]he Court finds a number of properties, and even though they were
listed as part of the LLC, the Court did pierce the veil so to speak to a
limited degree in ascertaining whether these were really community or
separate assets. Perhaps a better way of phrasing is that the distribution
decisions of the Court are fair regardless of characterization.
RP at 533 (emphasis added).
The dissolution court imputed $1,841 of gross monthly income to Kimberly
Bartlett on the assumption that she could earn that amount by working full-time. The
court rejected Douglas Bartlett’s estimate of gross monthly income of $13,000 per month
and instead imputed his income at $18,000. The court explained:
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It is very difficult to ascertain the Respondent’s income because he
controls the income history he draws from the LLC. He has a unique
business, and he really dictates what his salary is and it can vary widely.
The Court finds Respondent has the ability to generate significant income.
Clerk’s Papers (CP) at 331.
Based on the standard calculation for child support, the dissolution court ordered
Douglas Bartlett to pay $876 per month for each of the parties’ two children, totaling
$1,752 per month. The court also ordered Douglas to pay Kimberly Bartlett $3,500 per
month in spousal maintenance for sixty months. The final divorce order reads: that
“[s]pousal support will end . . . when either spouse dies or the spouse receiving support
gets married or registers a new domestic partnership.” CP at 350. In finding of fact and
conclusion of law 13, the court justified spousal support:
Spousal support should be ordered . . . due to the length of the
marriage, Ms. Bartlett’s reliance on the community, the change in her life
patterns prior to the relationship and during the marriage for the benefit of
the community and because of mutual decisions of the spouses. Ms.
Bartlett is a stay-at-home mother, and that was a joint decision as evidenced
by the behavior of the parties. The parties’ lifestyle. Ms. Bartlett has a
need for maintenance. Mr. Bartlett certainly has the ability to pay. Mr.
Bartlett has significant earning potential.
CP at 341-42 (emphasis added). In finding of fact and conclusion of law 22, the
dissolution court explained further:
The Court finds that Mr. Bartlett has considerably better earning
potential than Ms. Bartlett. Part of this is because the husband will be
receiving his corporation business in tact after this divorce, and he can
continue earning a good living there, and Ms. Bartlett has primarily been a
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stay at home Mom. The court also finds that this is an 11-year marriage,
there was not a committed intimate relationship prior to marriage.
The main property item in this case was and is Bartlett LLC. This
LLC was used and interacted in such close proximity to the community, that
it would be unjust not to consider that in the overall distribution of property
and debts. It would be unfair to Ms. Bartlett not to consider that in the
distribution of property and in awarding maintenance. This is one of many
reasons why Ms. Bartlett is, for example, being awarded the family home
and Mr. Bartlett is being assigned the debt on that home—which is an effort
to make this decision an equitable decision considering both community
and separate property and debts.
Regardless of the valuation of the LLC and its character, the
distribution of assets and debts is fair and equitable. The children were
also considered in this distribution since, for example the family home is
the children’s primary residence and the wife has been the primary parent.
The distribution, along with the award of debts and maintenance will assist
Ms. Bartlett in the family residence and a similar life style as before the
divorce.
CP at 343 (emphasis added).
In April 2019, one month after entering the dissolution decree, the dissolution
court entered an order requiring Douglas Bartlett to pay Kimberly’s attorney fees in the
amount of $48,250. The court found that Kimberly
incurred fees and costs and needs help to pay those fees and costs.
The other spouse has the ability to pay fees and costs and should be ordered
to pay the amount as listed in the final order. The court finds that the
amount ordered is reasonable.
CP at 342 (emphasis added).
In September 2019, after Douglas Bartlett moved for reconsideration of the
dissolution court’s decision, the court clarified part of its previous ruling. The court
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explained that Douglas need not immediately retire the mortgage and tax lien on the
family residence, which property it granted to Kimberly.
The IRS Tax Lien must be paid off or removed within 5 years from
the date of this order. Alternatively, if the IRS commences foreclosure
proceedings on the lien, the Respondent must pay the obligation so that the
Petitioner does not lose her home. With regard to the mortgage, the
Petitioner may bring a motion to require full payoff back to the court in 5
years from the date of this order. At that time, the court will review the
circumstances of the parties and determine whether payoff in full is
appropriate.
CP at 505 (emphasis added).
LAW AND ANALYSIS
On appeal, Douglas Bartlett challenges the dissolution court’s calculation of assets
and liabilities, property distribution, computation of income, child support award, spousal
maintenance award, and Kimberly’s attorney fee award. In short, Douglas challenges
everything. Douglas requests that this court vacate the dissolution court’s various orders
and remand to a different judge to preserve the appearance of fairness.
Property Distribution
Douglas Bartlett asserts that the dissolution court miscalculated assets and
liabilities, which resulted in an inequitable and unfair distribution of property and an
untenable spousal maintenance award.
At the time of dissolution, all property owned by the parties comes before the
court for a just and equitable distribution. RCW 26.09.080; In re Marriage of Farmer,
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172 Wn.2d 616, 625, 259 P.3d 256 (2011). A just and equitable distribution need not be
an equal distribution, but rather requires “fairness, based upon a consideration of all the
circumstances of the marriage, both past and present, and an evaluation of the future
needs of parties.” In re Marriage of Larson & Calhoun, 178 Wn. App. 133, 138, 313
P.3d 1228 (2013). In crafting a just and equitable distribution plan, the trial court shall
consider the nonexclusive factors listed in RCW 26.09.080:
(1) The nature and extent of the community property;
(2) The nature and extent of the separate property;
(3) The duration of the marriage or domestic partnership; and
(4) The economic circumstances of each spouse or domestic partner
at the time the division of property is to become effective, including the
desirability of awarding the family home or the right to live therein for
reasonable periods to a spouse or domestic partner with whom the children
reside the majority of the time.
As indicated by RCW 26.09.080, before distributing property, a trial court must
characterize the property as either community or separate. In re Marriage of Gillespie,
89 Wn. App. 390, 399, 948 P.2d 1338 (1997). Assets acquired during marriage are
presumptively community property. In re Marriage of Short, 125 Wn.2d 865, 870, 890
P.2d 12 (1995). Separate property is acquired either before marriage or after marriage by
gift, bequest, devise or descent. RCW 26.16.010, .020); In re Marriage of Short, 125
Wn.2d 865, 870-71 (1995). Although courts generally award separate property to its
owner, the trial court may award separate property to the other spouse. In re Marriage of
Larson & Calhoun, 178 Wn. App. 133, 138 (2013).
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This court will only reverse a trial court’s property distribution in a marriage
dissolution when the trial court abuses its discretion. In re Marriage of Zier, 136 Wn.
App. 40, 45, 147 P.3d 624 (2006). A trial court abuses its discretion when it exercises it
on untenable grounds or in an unreasonable manner, “namely, when the court ‘relies on
unsupported facts, takes a view that no reasonable person would take, applies the wrong
legal standard, or bases its ruling on an erroneous view of the law.’” Kelley v.
Centennial Contractors Enterprises, Inc., 169 Wn.2d 381, 386, 236 P.3d 197 (2010).
A trial court’s characterization of property as separate or community property is a
question of law. In re Marriage of Skarbek, 100 Wn. App. 444, 447, 997 P.2d 447(2000). This court reviews questions of law de novo. In re Marriage of Herridge, 169
Wn. App. 290, 297, 279 P.3d 956 (2012). If the trial court mischaracterizes the parties’
property as separate or community property, this court “will not disturb the distribution of
those properties if in [its] judgment that distribution is otherwise fair, just and equitable.”
In re Marriage of Brady, 50 Wn. App. 728, 732, 750 P.2d 654 (1988).
Douglas Bartlett first insists that the dissolution court accepted Kimberly Bartlett
expert’s valuation for Bartlett, LLC of $1,334,412, rather than his expert’s correct
valuation of $1,089,000. We would find no error if the court accepted Kimberly’s
valuation, but we disagree that the court did so. While the court initially accepted the
higher valuation during its oral ruling, the court ultimately adopted Kessler’s lower
valuation in its findings of fact and conclusions of law. When a trial court’s oral ruling
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contradicts its written findings and order, the appellant may not use the oral ruling to
impeach the court’s findings or judgment. Ferree v. Doric Co., 62 Wn.2d 561, 567, 383
P.2d 900 (1963).
Douglas Bartlett next argues that the dissolution court failed to recognize two
shareholder loans owed to Bartlett, LLC, which failure led to a miscalculation of the
company’s value. We disagree. Contrary to Douglas Bartlett’s contention, the
dissolution court accounted for both shareholder loans. As mentioned, the court adopted
the valuation of $1,089,000 prepared by Douglas’s expert, Steven Kessler. Kessler’s
valuation excluded the shareholder loans. Because the court adopted Kessler’s valuation,
the court necessarily adopted his treatment of the shareholder loans.
Douglas Bartlett highlights that Bartlett, LLC owned most of the personal
property, including vehicles, used by Kimberly and him. Douglas then insists, since the
court characterized the limited liability company as his separate property, the court
should have deemed the personal property to also be his separate property. Therefore, the
dissolution court should have awarded all of the vehicles, motor homes, and boats to him
without an offsetting award to Kimberly. We disagree.
To repeat, although courts generally award separate property to its owner, a trial
court may award one spouse’s separate property to the other when necessary for a just
and equitable distribution. In re Marriage of Larson & Calhoun, 178 Wn. App. 133, 138
(2013). When a closely held company takes title to assets used by the company’s owner
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and his wife in their everyday affairs, the trial court does not err in awarding some of the
company assets to the wife, even if the company remains the separate property of the
owner. Douglas and Kimberly Bartlett in function utilized the separate property as
community property. Any ruling by the court, other than awarding Kimberly some of the
vehicles, might be unfair.
We conclude that the dissolution court did not abuse its discretion when dividing
the parties’ property even if the court may have mischaracterized some of the assets as
community property rather than separate property. As stated by the trial court, the court
would have divided the property similarly even if some of the property he characterized
as community property was separate property.
The dissolution court awarded Kimberly Bartlett a residence with equity of
$87,000 and other assets valued at less than $100,000. Douglas Bartlett received a
business worth $1,089,000 and a real property lot worth $145,000. Thus, Douglas’s
awarded exceeded Kimberly’s award five times. Douglas’ income not only exceeded
Kimberly’s imputed gross monthly income of $1,841 by a significant margin, but his
earning potential far exceeds Kimberly’s potential.
Douglas Bartlett does not dispute the dissolution court’s awarding of the family
home to Kimberly Bartlett as her separate property. Nevertheless, he challenges the
court’s order directing him to pay the house’s mortgage. He fails to explain why this
order constitutes an abuse of discretion. The house mortgage payment increased from
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$1,800 to $2,500 per month, due to Douglas’ refinancing of the home for $400,000 in
2016, and Douglas never enlightened the court as whether the refinancing benefited
Kimberly. Kimberly could not pay her expenses and the expenses of the children without
Douglas paying the debt. For these reasons and because Kimberly’s accrued income is
substantially lower than Douglas, the dissolution court did not abuse its discretion when
requiring Douglas to pay the parties’ debts incurred prior to separation, including the
family home mortgage.
Spousal Maintenance
Douglas Bartlett contends that the dissolution court erroneously and arbitrarily
imputed his gross monthly income at $18,000. Douglas complains that this abuse of
discretion resulted in an arbitrarily high spousal maintenance and child support award to
Kimberly.
In awarding maintenance, the dissolution court exercises broad discretion. In re
Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984). Thus, this court will
affirm the maintenance award absent an abuse of discretion. In re Marriage of Wright,
179 Wn. App. 257, 270, 319 P.3d 45 (2013). “The only limitation on the amount and
duration of maintenance under RCW 26.09.090 is that the award must be ‘just.’” In re
Marriage of Wright, 179 Wn. App. 257, 269 (2013). RCW 26.09.090 emphasizes “the
justness of an award, not its method of calculation.” In re Marriage of Washburn, 101
Wn.2d 168, 182 (1984).
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RCW 26.09.090(1) provides a nonexhaustive list of factors for the dissolution
court to consider when awarding spousal maintenance:
(a) The financial resources of the party seeking maintenance,
including separate or community property apportioned to him or her, and
his or her ability to meet his or her needs independently, including the
extent to which a provision for support of a child living with the party
includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to
enable the party seeking maintenance to find employment appropriate to his
or her skill, interests, style of life, and other attendant circumstances;
(c) The standard of living established during the marriage or
domestic partnership;
(d) The duration of the marriage or domestic partnership;
(e) The age, physical and emotional condition, and financial
obligations of the spouse or domestic partner seeking maintenance; and
(f) The ability of the spouse or domestic partner from whom
maintenance is sought to meet his or her needs and financial obligations
while meeting those of the spouse or domestic partner seeking
maintenance.
Douglas Bartlett highlights that the trial court’s imputation of his gross monthly
income at $18,000 even exceeded the amount calculated by Kimberly’s expert, Scott
Martin. Martin estimated the income to be $11,435. We note that even Douglas admitted
to a yearly income above Martin’s testimony. Douglas declared income of $13,000 per
month. Regardless, the trial court may always reject expert testimony in whole or in
part. Group Health Cooperative of Puget Sound, Inc. v. Department of Revenue, 106
Wn.2d 391, 399, 722 P.2d 787 (1986); Brewer v. Copeland, 86 Wn.2d 58, 74, 542 P.2d
445 (1975).
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The dissolution court imputed Douglas Bartlett’s gross monthly income at
$18,000, because Douglas controls the amount of money he withdraws from Bartlett,
LLC. Douglas can manipulate his income by holding money received for his services
within the limited liability company. The court recognized that Douglas enjoys “the
ability to generate significant income.” CP at 331.
The parties’ 2015 and 2016 tax returns reported an adjusted gross income of
$278,037 and $321,823 respectively. These figures exceed the amount of income the
dissolution court attributed to Douglas Bartlett. From September 2017 to April 2018,
Douglas sent more than $1,500,000 in international bank and wire transfers. In 2017 and
2018, he took money from the limited liability company labeled as “draws” and “petty
cash” in the tens of thousands of dollars. In short, the trial court did not abuse its
discretion when calculating, for purposes of spousal maintenance, the amount of
Douglas’ income. If anything, the dissolution court’s calculation was low.
Douglas Bartlett maintains that he cannot afford to pay the court-ordered spousal
maintenance of $3,500 per month. Nevertheless, financial records show otherwise. He
claims that the dissolution court failed to conclude that maintenance was necessary to
achieve a just and equitable property division. Yet, the property division is a distinct
question from spousal maintenance. Douglas argues that the court failed to consider
Kimberly’s financial need before awarding her maintenance. The record shows that
Kimberly garners only a low income that does not meet her and the children’s expenses.
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Douglas Bartlett characterizes the spousal maintenance award as indefinite,
because the award lacks a provision stating it will terminate on remarriage. Nevertheless,
the dissolution order declares that “[s]pousal support will end . . . when either spouse dies
or the spouse receiving support gets married or registers a new domestic partnership.”
CP at 350.
Child Support
For the same reasons that we conclude that the trial court did not abuse its
discretion when calculating Douglas Bartlett’s gross monthly income for purposes of
spousal maintenance, we rule that the dissolution court did not abuse its discretion when
making the same calculation for purposes of child support.
Attorney Fees at Trial
Douglas Bartlett argues that the dissolution court erroneously ordered him to pay
$48,250 of Kimberly’s attorney fees, because the court entered no findings as to
Kimberly’s need or his ability to pay. Douglas does not challenge the reasonableness of
the amount of the award.
This court reviews the trial court’s legal basis for granting attorney fees de novo.
In re Estate of Langeland, 195 Wn. App. 74, 82, 380 P.3d 573 (2016). This court
reviews the court’s decision of the amount of the award for an abuse of discretion. In re
Estate of Langeland, 195 Wn. App. 74, 82 (2016).
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RCW 26.09.140 authorizes the trial court to award attorney fees in marital
dissolution actions. Before awarding attorney fees, the trial court must balance the needs
of the spouse requesting them with the ability of the other spouse to pay. In re Marriage
of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989). Contrary to the contention of
Douglas, the dissolution court found, based on sufficient evidence, that Kimberly needed
assistance to pay her attorney fees and that Douglas possessed the ability to pay the fees.
Attorney Fees on Appeal
Kimberly Bartlett requests reasonable attorney fees on appeal on four grounds:
(1) pursuant to RCW 26.09.140, based on her financial need and Douglas Bartlett’s
ability to pay, (2) pursuant to RCW 26.09.260(13), because Douglas brought this appeal
in bad faith, (3) pursuant to RAP 18.9, based on Douglas’ refusal to comply with the
dissolution court’s decree, and (4) based on Douglas’ intransigence. Kimberly also
requests sanctions pursuant to RCW 26.09.550.
We note that RCW 26.09.260 governs modification of a parenting plan or custody
decree. RCW 26.09.260(13) requires this court to assess attorney fees and costs of the
nonmoving part if it finds that “a motion to modify a prior decree or parenting plan has
been brought in bad faith.” RCW 26.09.550 governs sanctions in parental relocation
matters. This appeal involves no modification of earlier plans or decrees or a request for
relocation.
RCW 26.09.140 authorizes this court to award attorney fees on appeal:
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Upon any appeal, 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 addition to statutory costs.
Determining whether a fee award is appropriate requires the court to consider the parties’
relative ability to pay. The court should also examine the arguable merit of the issues
raised on appeal. In re Marriage of Leslie & Verhey, 90 Wn. App. 796, 807, 954 P.2d
330 (1998).
With the successful ongoing business, Douglas Bartlett sits in a significantly better
financial position than Kimberly. While Douglas’ entire appeal may not be frivolous, he
asserts some thoughtless arguments, such as his contention that the dissolution court
valued Bartlett, LLC at $1,334,412. Therefore, we award Kimberly reasonable attorney
fees and costs on appeal. Because we award attorney fees and costs on appeal pursuant
to RCW 26.09.140, we decline to address whether to award fees under RAP 18.9(a) or
because of intransigence.
CONCLUSION
We affirm all of the dissolution court’s rulings. We award Kimberly Bartlett
reasonable attorney fees and costs against Douglas on appeal.
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
_________________________________
Fearing, J.
WE CONCUR:
______________________________
Pennell, C.J.
______________________________
Staab, J.
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