This is yet another pop quiz that looks at how Washington courts apply our state’s community property laws to specific individuals and their unique stories.   To recap:  Washington is a community property state, which generally means that all property that a couple acquires during their marriage is presumed to be jointly owned by both spouses, while all property acquired before (or after) marriage is considered to be separate property.  Although these rules seem pretty clear in black and white, in real life it can be quite difficult to determine which property is community and which is separate.  The Borghi case provides one example of how the line between “separate” and “community” can be easily blurred.

In 1966, Jeanette Borghi purchased a piece of property under a real estate contract.  About nine years later, she married Robert Borghi.  Shortly after their marriage, a development company issued a special warranty deed for the property to “Robert G. & Jeanette L. Borghi, husband and wife.” Jeanette and Robert lived together on the property for 15 years, and at one point took out a mortgage on the property so that they could purchase a mobile home.

In June of 2005, Jeanette died without having executed a will stating her wishes for the distribution of her property.  She had two heirs: Robert, and Arthur Gilroy, her son from a previous marriage.  The estate went into probate with Robert acting as the personal representative.  Robert asked the court to determine whether or not the property was community property.  If the property was considered community, then it would pass to Robert.  If not, Arthur was entitled to a one-half share in the property.

The probate court ruled that the property was community.  Arthur appealed, arguing that the property was the separate property of his mother.  The Court of Appeals “reluctantly” agreed with him.  Robert (or rather, Robert’s estate as Robert passed away in 2006 before a final determination was made) then appealed that decision.

The issue before the Supreme Court of Washington on appeal was this: “whether the real property acquired by Jeanette Borghi prior to her marriage to Robert Borghi changed in character from her separate property to community property by the time of her death.”  Specifically, the Supreme Court had to determine whether the 1975 deed that included both Robert’s and Jeanette’s names changed the character of the property from separate to community.

Robert argued that the inclusion of his name on the deed created a presumption that Jeanette intended to make a gift of her separate property to the community.  Arthur argued that the deed was insufficient evidence of his mother’s intention to convert her separate property to community property.

How did the court decide?

A. The Supreme Court ruled that because Robert’s name was on the 1975 deed, the court had to presume that Jeanette made a gift of her separate property to the community, making Robert and her equal owners of the property.  If Jeanette had intended to keep the property separate, the deed would have been in Jeanette’s name only.

B. The Supreme Court ruled that a deed in both parties’ names was not sufficient evidence that Jeanette intended to change the character of her separate property.  Because there are many reasons why it would make good business sense for spouses to create joint title that have nothing to do with any intent to community property, the court could not presume that a change in title was evidence of intent to change the character of separate property.   Thus, the property had to be presumed to be the separate property of Jeanette.

C. The Supreme Court ruled that a deed in both parties’ names was not sufficient evidence that Jeanette intended to change the character of her separate property.  Additional evidence was required to show Jeanette’s intent.  The court remanded the case to the Superior Court to evaluate whether there was other sufficient evidence of Jeanette’s intentions regarding the property.

Answer: B.

The right of the spouses in their separate property is as sacred as is the right in their community property, and when it is once made to appear that property was once of a separate character, it will be presumed that it maintains that character until some direct and positive evidence to the contrary is made to appear.  In re Estate of Borghi, 167 Wn2d 480 (2009).

The Supreme Court ruled that the deed was not sufficient evidence of an intention to change the character of Jeanette’s property from separate to community.  The Court, stating that “courts will not be bound by the terms of the deed but will look beyond it and ascertain, if possible, the true intent and purpose of the parties.”  Absent some other written and signed document indicating that Jeanette desired to transfer the property to community ownership, the Court had to presume that the property retained its separate character up until Jeanette’s death.

So what kind of writing could have satisfied the Court that Jeanette wanted to gift her separate property to the community? The Court pointed out that there are at least two ways that a spouse can convert separate property into community property.  The first way is to execute a quit claim deed transferring property to the community.  The second is to enter into a community property agreement which generally converts all existing and future property of both spouses into community property.  And, the court noted that a spouse could “otherwise in writing evidence his or her intent” to make a gift of separate property to the community.

You can read the full Borghi opinion here.

In two previous pop quizzes, we discussed previous Washington court decisions regarding community property and community liability for torts committed by one spouse.  To recap:  Washington is a community property state, which generally means that all property that a couple acquires during their marriage is considered to be jointly owned by both spouses, and neither spouse can transfer or destroy the property of the other without that spouse’s consent.   All other property (such as property acquired before marriage, or property received as a gift) is considered separate.  The issue of community property has created some interesting and difficult questions for Washington courts in the context of monetary liability for torts (lawyer jargon for wrongful conduct that injures someone else).

As discussed in our previous articles, there are several general rules that courts rely on in deciding if a victim of one spouse’s tort can be awarded community property as compensation for his injuries.  First, the court has to determine whether the spouse who committed the tort was acting for the benefit of the community when he committed his tort.  That rule was set out in two cases, including LaFramboise v. Schmidt, which we discussed in our first article on this issue.

So, if the community is liable, then the victim may collect from community property.   If not, the victim must first collect his award from the separate property of the tortfeasor spouse (i.e. the spouse who injured the victim).  But – if there is not enough separate property to fully compensate the victim, then the victim can go after community property.  This last rule was set out in the case  deElche v. Jacobsen, back in 1985.

The Washington Supreme Court recently dealt with this issue again in a case called Clayton v. Wilson.  Armed with your knowledge of community liability from our previous articles, let’s take a look at the facts of Clayton, and see if you can guess how the Court decided.

Clayton v. Wilson

The Wilsons owned several rental properties.  In about 1993, the Clayton family rented one of these rental homes.  They had a young son named Andrew.  Mr. Wilson hired Andrew to do yard work at some of the rentals, as well as at the Wilsons’ own home.  He began sexually abusing Andrew by requiring him to perform various sexual acts before he paid him (out of community-owned money) for the day’s work.  This abuse continued until Andrew was about 16 years old.

In December of 2002, when Andrew turned 18, he told his mother about the sexual abuse.  His mother called the police, and Mr. Wilson was arrested.  Shortly after he was arrested, Mr. Wilson admitted to his wife that he had abused other boys, and the couple eventually filed for divorce.  They also entered into a property settlement agreement which divided up their assets.  The agreement gave Mrs. Wilson approximately 90% of the couple’s community property, which meant that most of the property previously owned by both Mr. and Mrs. Wilson became Mrs. Wilson’s separate property.

The Wilsons were divorced in March of 2003.  A little over a year later, Andrew sued both Mr. and Mrs. Wilson for injuries suffered as a result of Mr. Wilson’s abuse.  Andrew was eventually awarded $1.4 million to compensate him for his physical and emotional injuries.  At trial, Mrs. Wilson argued that she was not liable to Andrew for Mr. Wilson’s wrongdoing because the abuse was not committed while Mr. Wilson was acting for the benefit of the community.

If the court had bought Mrs. Wilson’s argument, then Andrew would have only been able to collect from community property (i.e. community owned by the Wilsons 50-50) if Mr. Wilson did not have sufficient separate property to pay him.  This would have been a good result for Mrs. Wilson because, due to the separation agreement, there was almost no community property left!

However, the trial court did not buy her argument, and found that she was liable for her husband’s terrible acts.  Mrs. Wilson appealed, again arguing that the sexual abuse was Mr. Wilson’s separate tort for which she could not be liable.

How did the court decide?

A. Mrs. Wilson was not liable for Mr. Wilson’s egregious crime because the abuse was not committed while Mr. Wilson was acting for the benefit of the community. Furthermore, there was no evidence that Mrs. Wilson knew what was going on at the time.  Andrew could only collect his damages from Mr. Wilson, and if Mr. Wilson did not have enough property to pay him, he would not get his full award.

B. Mrs. Wilson was not liable to for Mr. Wilson’s tort.  Andrew first had to collect from Mr. Wilson’s separate property, and could only collect damages from Mrs. Wilson’s portion of the community property if Mr. Wilson’s separate property was insufficient.

C. Mrs. Wilson was liable for Mr. Wilson’s tort because Mr. Wilson’s abused Andrew while acting for the benefit of the community.  Andrew could collect his damage award from either Mrs. Wilson or Mr. Wilson, regardless of whether their property was separate or community-owned.

D. Mrs. Wilson was not liable because she was no longer married to Mr. Wilson.

Answer:  C.

The Clayton court found that the community (i.e. both Mr. Wilson and Mrs. Wilson) was liable to Andrew because:

Mr. Wilson used yard work as a means to groom the young boy. The abuse always occurred within the context of yard work, which consisted of community business. Mr. Wilson sexually abused Clayton while overseeing him as an employer, supervisor, landlord, and caretaker. The marital community benefited from Clayton’s labor. Mr. Wilson paid Clayton for his work with community funds, and only after he finished abusing Clayton on each occasion. these facts point confidently toward community liability because Mr. Wilson’s torts occurred while he was on “some community errand, affair, or business at the time of the tort.”

So, Mrs. Wilson was just as liable as Mr. Wilson for the sexual abuse, and Andrew could collect his judgment against either Mr. or Mrs. Wilson, regardless of the character of the now-divorced spouses’ property.

It should also be noted that the court believed that the separation agreement signed by the Wilsons was designed to stop Andrew from collecting on his judgment – 90%/10% splits are very rare in divorce settlements, after all. Because of that, the court held that the agreement was void.

So, even if Mrs. Wilson had not been found liable for Mr. Wilson’s tort, Andrew still would have been able to collect his award, as all of the property “awarded” to Mrs. Wilson was still legally community property reachable by Andrew if Mr. Wilson did not have a sufficient amount of separate property from which to pay him.

Lessons To Be Learned

Obviously, this whole chain of events was very rough on Mrs. Wilson, who in short order found that her husband was a pedophile and that they would both lose almost everything they had worked for as a result. But as innocent as Mrs. Wilson might have been of the original crimes, her after-the-fact efforts – working with the guilty party to do move assets to avoid having to pay off a victim – did nothing to help her with the court. In fact, the Washington Supreme Court confirmed that her actions constituted fraud. So in addition to the lessons about community property, this case also shows that Washington courts take quite a dim view of moving assets to avoid paying off litigation verdicts.

There are two clear morals to this story: First, pay attention to what your spouse may be doing, especially while making money or caring for community property – don’t live in denial. Second, if you want the court to think you’re innocent, don’t work with your spouse to stiff the people your spouse hurt.

This quiz examines some of the considerations that a court addresses when determining whether to make significant changes to a Parenting Plan, such as by ordering that a child move from living primarily with one parent to the other.

In Washington custody cases, the court’s top priority is promoting a child’s “best interests.”   Another lesser, but still important priority is promoting the child’s relationship with both parents.  Thus, most parenting plans are formulated so that a child spends time with each parent, even when the court has found it best that a child live most of the time with only one parent.

What can a parent, and the court, do when one parent – the parent who has the most time with the child – refuses to allow the other parent see the child?

Washington courts try to encourage a child's relationship with both of his parents.

The first legal remedy for a parent who has been denied rightful visitation with a child is to file a motion for contempt under RCW 26.09.160:

An attempt by a parent, in either the negotiation or the performance of a parenting plan … to refuse to perform the duties provided in the parenting plan, or to hinder the performance by the other parent of duties provided in the parenting plan, shall be deemed bad faith and shall be punished by the court by holding the party in contempt of court and by awarding to the aggrieved party reasonable attorneys’ fees and costs incidental in bringing a motion for contempt of court.

In contempt cases where one parent has refused visitation with the other, the court will usually order that parent (called a “contemnor” in legal jargon) to give the other parent make up time to remedy their violation of the court order. And, under RCW 26.09.260(2)(d), if a parent violates the parenting plan twice in three years, the other parent may file for a modification of the parenting plan, and ask that the child’s primary residence be changed.

While a court will consider changing a child’s residence if one parent refuses to promote the child’s relationship with the other, the court’s ultimate decision will rest on whether such a change is in the child’s best interest.  So, how does all of this play out in real life?  The case of Parentage of Schroeder provides a real-life illustration.

Couple conflict!

In 1987, Doug and Tracy ended a tumultuous four month relationship.  Shortly thereafter, Tracy discovered that she was pregnant.  According to Tracy, Doug wanted nothing to do with either her or their unborn child after she informed him of the pregnancy.  According to Doug, he was not even aware of the pregnancy until a paternity suit was filed against him in 1988 – after he and Tracy’s daughter, Ashley, was born.

In 1989, Doug was established as Ashley’s legal father.  For the next two years Doug regularly spent time with Ashley, although she  continued to live primarily with her mother, Tracy.  During this time, Doug lived with his parents and Tracy believed that Doug was really just handing Ashley off to his parents during his visits with Ashley rather than caring for his young daughter himself.

In 1991 and 1992, Doug’s parents made two reports to Child Protective Services in which they alleged that Tracy was allowing Ashley to be molested by an unknown individual.  Tracy countered that it was Doug who was molesting Ashley.  Ashley, who had begun to exhibit defiant and angry behaviors, started seeing a counselor.  Although neither CPS nor the counselor found evidence that Doug had indeed molested his daughter, Tracy refused to let Doug see Ashley.

In 1996, Doug filed a petition asking for regular visitation with Ashley.  A two year legal battle ensued.  Tracy argued that it was not Doug, but Doug’s parents who really wanted visitation with Ashley.  A guardian ad litem – a person appointed by the court to represent the interests of a child involved in litigation – conducted an investigation.  The guardian ad litem noted that it appeared that Ashley did not know her father, lending credence to Tracy’s suspicions that it was Doug’s parents who were spending time with Ashley.  The guardian ad litem also found that Ashley, now eight years old, was manipulating both of her parents into continuing their conflict over visitation.

Nonetheless, in 1998 the court entered a parenting plan which provided that Ashley would continue to live primarily with Tracy while having regular and generous time with Doug.  Although Tracy did not appeal this order, she disagreed with it. Just one month after the parenting plan was ordered, Tracy refused to let Doug see Ashley.  The court found her in contempt of the parenting plan and ordered her to provide Doug with make up visits.

Doug, his parents, and Tracy continued to fight over Doug’s visits with Ashley.  Ashley continued to act out and cause problems between the parents.  Tracy continued to refuse Doug’s visits with Ashley.  In 1999, Doug filed a second motion for contempt against Tracy.  He also requested that the court modify the parenting plan to give him primary custody of Ashley,  on the grounds that Tracy violated the parenting plan twice in three years.

Did the Court order that Ashley should live with Doug due to Tracy’s refusal to promote Ashley’s relationship with Doug?

A)  Yes. Tracy was found in contempt of the parenting plan two times in three years, so the court punished Tracy by taking away Ashley.

B)  Yes. The court wanted both parents to have a role in a child’s life.  Because Tracy refused to let Ashley see her father, the court ordered that Ashley should live with Doug  so that she could develop a relationship with him.

C)  No. The court found that Tracy refused visitation for a good a reason, so she should not be ordered to release Ashley to Doug.

D)  No. The court found that even though Tracy violated the parenting plan two times in three years, it was not in Ashley’s best interests to live with her father.

Where is Ashley going to live?

Answer: D.  The Schroader court found that Ashley should continue to live with her mother:

In Washington, the best interests of the child shall be the standard by which the court determines and allocates the parties’ parental responsibilities … While courts also should encourage the involvement of both parents, this is a secondary goal and courts should never sacrifice the best interests of the child to allow both parents to be involved.

Although the Schroeder court acknowledged that Tracy had consistently violated the parenting plan by refusing to let Doug  see Ashley, the court ultimately noted that it could:

not order a change of custody merely because the custodial parent was in contempt of a court order; rather, there needed to be a finding that a change of custody was in the best interests of the child…  It would be inappropriate to sacrifice the best interests of the child based on the misconduct of one parent.

In other words, even though the court may modify a parenting plan when one parent refuses visitation, the court should not modify a plan unless that modification is in the child’s best interest.  See Parentage of Schroeder, 106 Wn. 343 (2001).

The Schroeder case not only demonstrates how important the “best interests” standard is, it also highlights difficult it can be to determine exactly how to promote a child’s best interests when two parents simply cannot get along.  Even though the court acknowledged that Tracy was violating the parenting plan and stifling Ashley’s relationship with her father (and her paternal grandparents), the court also believed that making Ashley live with her dad was not likely to strenghten her relationship with him.  No doubt this was a tough decision that did not have a perfect result for Tracy, Doug, or even, most importantly, Ashley.  Schroeder shows how a court attempts to make the best decision for a child even when there are no easy answers.

This is the second part of our two part quiz on community property and a spouse’s liability for injuries caused by his or her spouse to another individual.  In the first part of this quiz, we looked at how a court determines whether or not the community should be liable for a tort (i.e., civil wrongdoing) committed by only one spouse.   This part of the quiz shows how the the courts approach compensation when only one spouse is liable for the tort but may not have any separate property from which to compensate their victim.

Should the lucky groom of this blushing be liable for whatever she does with that chainsaw?

The first case describes how property that was once community becomes separate upon the death of one spouse – thereby allowing the court to get around the community/separate distinction altogether when trying to compensate a tort victim.  The second case shows how the court shifted from an absolute prohibition on compensating tort victims with community property (as seen in the Newbury case in Pt. 1), to a more equitable approach which allows a tort victim to take community property when there’s no separate property to take, and which also allows the innocent spouse to seek reimbursement for the taken property from the wrongdoing spouse.

The Wasted Hostage-Taker

Margaret and Sam were married for 20 years. Sam struggled with a drinking problem throughout the marriage. Fed up with his drinking, Margaret finally left Sam. She filed for divorce and sought a restraining order which prohibited him from visiting her when he was drunk. One evening in November of 1972, Sam decided to try to patch things up with Margaret. Unfortunately, Sam’s strategy for getting back together with his wife involved booze, firearms and hostage-taking.

That evening, Sam went to his wife’s apartment with a rifle. Maragaret was not home at the time. Sam shot off a round at the apartment complex and, understandably, was eventually asked to leave. Sam decided to pay a visit to a couple – Lloyd and Patricia – with whom he and Margaret had been close during their marriage. He added a revolver to his cache of weapons, and showed up at Lloyd and Patricia’s house with the firearms in hand.

If your wife leaves you because of your drinking, getting drunk and holding her friend hostage is probably not the best reconciliation strategy.

Upon being greeted by their drunk and heavily armed friend, Lloyd and Patricia gave Sam some coffee, which Sam enhanced with whiskey. The cops were called, and began gathering outside the house. Meanwhile, Sam announced that he was on a mission to reconcile with Margaret. He called Margaret several times and informed her that he would be holding their friends hostage until she agreed to get back together. Sam then made good on his word and pointed his rifle at Lloyd and fired. It did not go off – that time.

Lloyd then attempted to take the gun from Sam, and a scuffle ensued. It was during this struggle that Lloyd was shot several times. Sam was then shot and killed by law enforcement from outside the house.

Lloyd later sued Sam’s estate for the injuries he sustained during the fight. While he was alive, Sam had no separate property as a result of his being married to Margaret. Could Lloyd collect from Sam’s estate?

a) Yes, because the husband was acting for the benefit of the community, in trying to reconcile with his wife.

b) No, because the wife didn’t do anything wrong and should not be jointly liable.

c) Yes, since Sam was dead, there was no longer a community and all of the property in his estate was “separate.”

It should go without saying that these two things are a bad combination.

Answer: C. Upon the death of a spouse, the community is considered to be dissolved. At that point, half of the community property became the husband’s separate estate, and the other half became the wife’s separate property.  Thus, even though Sam had no separate property while he was married, his interest in community property converted to separate property upon his death.  Thus, Sam’s separate estate could be reached by Lloyd to compensate him for his injuries.  See Edmonds v. Ashe, 13 Wn. App. 690, 537 P.2d 812 (1975).

The Amorous Yachtsman

Mr. and Mrs. Jacobsen were spending a day with Ms. deElche and her ex-husband, Mr. deElche, on their respective yachts. When the Jacobsens and Mr. deElche started drinking heavily on the Jacobsens’ yacht, Ms. deElche decided to call it a night, and retired to bed in her ex-husband’s boat. After a long night, an intoxicated Mr. Jacobsen climbed abroad the deElche yacht, and sexually assaulted Ms. deElche.

Ms. deElche later sued the Jacobsens. The court found that Mr. Jacobsen was separately liable for the offense because the assault had not been committed for the benefit of the community. So, Ms. deElche received a judgment against Mr. Jacobsen’s separate estate only.

However, the Jacobsens had previously signed a community property agreement which converted all of their property, whether originally separate or community, into community property. Thus, Ms. deElche was out of luck because she could not collect on her judgment as Mr. Jacobsen had no separate estate. Ms. deElche appealed, arguing that she should be able to collect from Mr. Jacobsen’s half of community-owned assets. Did the Court of Appeals agree?

a) No, the husband was not acting for the benefit of the community when he assaulted Ms. deElche so she could only collect from his separately owned assets. Since he had no such assets, she was out of luck.

b) No, the wife didn’t do anything wrong and should not be penalized for her husband’s wrong-doing. Since of the Jacobsens’ property was community owned, there was nothing Ms. deElche could do to get the money the court awarded to her.

c) Yes, there wasn’t enough, or any, separate property for Ms. dElche to collect upon, so she should be able to take from Mr. Jacobsen’s 50% share of the community property.

Stormy seas ahead for the Jacobsens...

Answer: C. The court in deElche attempted to strike a balance between punishing the offending spouse, compensating the victim, and shielding the non-offending spouse from liability for the individual wrong-doing of the other.  Thus, the deElche court held that in cases where there is not enough, or not any separate property from which to collect, a victim may reach the offender’s half interest in community personal property. The non-offending spouse then has a right to reimbursement from the offending spouse. So, upon the termination of the community (usually through a divorce, which Ms. Jacobsen quite understandably pursued later), the non-offending spouse is entitled to receive payment for any property sold or transferred as a result of the offending spouse’s misdeeds.  See deElche v. Jacobsen, 95 Wn.2d 237, 622 P.2d 835 (1980).

The problem we've seen the court grapple with is how to compensate a victim, without stripping an innocent spouse of his or her property.

The deElche case effectively overturned Newbury v. Remington (which was discussed in Part 1), where the court strictly adhered to the rule that only the separate property of a married tortfeasor (i.e.  wrongdoer) can be used to compensate a separate tort.  The deElche court ruled that while separate torts should primarily be compensated with separate property, in cases where there is no separate property, a tort victim can collect from community property.  The rule in deElche then allows the innocent spouse to seek reimbursement from the guilty spouse.  What deElche ultimately represents is a balanced solution to the problem we first looked at in the Newbury case – the problem of how to compensate a tort victim without punishing an innocent spouse – by allowing for the recovery of community property by the victim, with an option to seek reimbursement for the innocent spouse.  Perhaps not perfect, but certainly more likely to prevent injustice to both the victim and the innocent spouse, while still holding a married tortfeasor responsible for his or her misdeeds.

Last week we discussed whether or not a spouse can be criminally liable for damaging his community owned property.  We’re continuing on the theme of community property with this two-part pop quiz. Today we ask if community property (that is, property jointly owned by spouses) can be collected by a victim in cases where one spouse has committed a tort against a third individual (i.e., not his/her spouse).

The courts have been tackling this thorny community property issue for decades: How to determine whether the community is liable for injuries to a third party when the tort is committed by just one of the spouses? It’s a difficult question because it involves the competing interests of two innocent parties – the person injured by the negligent/reckless spouse, and the other spouse who’s life savings are often at stake for something he or she didn’t have anything to do with.

Although New York state is not a community property state, the related issue of the assets of a possibly innocent spouse have been big news lately as Ruth Madoff has tried to protect her millions from the many angry creditors of her fraudster husband Bernie. Poor Ruth!

You might have to take a close look at a tort feasor's property to figure out how to collect a judgment.

First, let’s look at a more common example of how this problem might arise:  Let’s say Able is hit by Harry Husband”s car while Harry is speeding through a red light.  Able is injured, and eventually sues Harry for the injuries he suffered.  Able is successful and the jury awards him several thousands of dollars to compensate for his injuries.  Now, Able wants to collect his money from Harry.

But let’s say Harry has been married to Wanda for 30 years.  His house is co-owned by Wanda.  All of Harry’s bank accounts are co-owned with Wanda, and all of the money sitting in them was earned over the last 30 years.   Is it fair for Able to take property that is co-owned by Wanda, when Wanda is not personally responsible for the accident that injured Able?

Can Able take property that is technically owned equally by both Harry and Wanda?  It depends...

In situations like this, the court has to first determine whether or not the community is liable to the injured person.  The court does this by determining whether or not the tort was committed either (1) in the “management” of community property or (2) while the tortfeasor (the person who caused the injury) was acting for the “benefit” of the community.

If the court finds that only one of the spouses is responsible for the injury, the court must then perform a delicate balancing act, and consider the rights of a victim to compensation for injuries caused by one spouse and the innocence of the tortfeasor’s spouse.  After all, it hardly seems fair that a victim can take property co-owned by a person who did not cause the injury.  Nor does it seems fair that an injured person should be practically precluded from collecting on a judgment because the tortfeasor is married and has no separate property. (If the wrong-doing spouse had sufficient separate property to pay off the injured party, or course, it would be much simpler!)

Let’s see how this has played out in court, in one case from the Thirties and another one from the Fifties.


Courts have been thinking about the tort liability of married people for a long time.

Here, we have a classic case of old-timey road rage. The court’s description of the case explains the situation quite eloquently:

It appears by the findings of fact that the appellant Newbury, while driving an automobile southerly on Thirty-fifth avenue N.E., in Seattle, overtook an automobile belonging to Remington and wife going in the same direction and driven by A. D. Remington. Appellant attempted to pass the automobile belonging to the Remingtons, and for a distance of several blocks Remington, by turning his car to his left at times, so drove it as to prevent appellant from passing, and on several occasions abruptly slowed down his car so as to require appellant to act quickly to avoid a collision, during all of which time A. D. Remington, and another man riding with him, were making gestures of various kinds to the appellant.

[Remington] alighted from his automobile and went back to the plaintiff’s automobile and accused the plaintiff of driving through an arterial highway at the intersection of E. 95th St. without stopping. The said defendant at said time threatened to have the plaintiff arrested. The plaintiff remained seated in his automobile in company with his young lady companion and refused to engage in any altercation with said defendant. That the said defendant suddenly said: ‘I have changed my mind about having you arrested, and will take care of you myself,’ and thereupon reached through the open window of the plaintiff’s automobile and with one hand grabbed the glasses from plaintiff’s nose, and at the same time struck the plaintiff a violent blow across the mouth with his other hand, cutting the plaintiff’s lip and inflicting permanent injuries as hereinafter set out. That the said defendant threw the plaintiff’s glasses to the pavement, breaking and ruining them.

So, Newbury sued Remington for the assault.  He was eventually awarded 1000 dollars. Was he able to collect funds owned by Remington and wife as community property?

a) Yes, the marital community is jointly responsible for any tort committed.

b) Yes, the community was liable because the husband was driving the community-owned car.

c) No, because the wife didn’t do anything wrong.

d) No, because the family car didn’t actually injure the victim.

Don't mess with this guy.

Answer: D. The court examined whether Remington committed the tort in “the management of community property.”  In other words, the court wanted to know if the husband was somehow acting for the community at the time he assaulted Newbury.  The court ultimately determined that Remington acted as an aggressor, without consideration of the family vehicle. Thus, Newbury could not collect his judgment against Remington from community assets.

Essentially, because Remington got out of the family car and used his separate fists to assault Newbury, the community was not liable.  Had Remington hit Newberry with the family car, the result likely would have been different because Remington would have used a piece of community property to cause injury.  See Newbury v. Remington, 184 Wn. 665, 52 P.2d 312 (1935).

(Note: This case is no longer considered to be good law, as it was overruled by a 1980 case, deElche v. Jacobsen.  That case will be discussed in the 2nd part of this quiz).


Here we have a case where the couple agreed to care for another woman’s child while the woman traveled out of state.   The husband and wife were paid a month fee for this service.  However, unbeknown to the wife, the husband molested the child and was eventually arrested and charged for his crime.  The child’s mother then sued both the husband and wife for the husband’s transgression.  Was the community liable for the husband’s egregious tort?

a) Yes, because the tort occurred in the management of a community business.

b) No, because the wife didn’t do anything wrong.

c) No, because the husband was not acting in the course and scope of his employment.

Can a wife be liable for the crimes of her husband?

Answer: A. The husband and wife agreed to care for the child, and received payment for the service.  Because the community (i.e. both the husband and the wife) benefited financially from the child care arrangement, both the husband and the wife were responsible for any act by either husband or wife while caring for the child.  Thus, the court held that the child’s mother could take community property as compensation for injuries suffered by the child as a result of the husband’s actions. See LaFramboise v. Schmidt, 42 Wn.2d 198, 254 P.2d 485 (1953).

These cases demonstrate how courts determine whether or not a victim of a tort can take community property, by determining whether or not the tort was committed either (1) in the management of community property or (2) while one or both spouses are acting for the benefit of the community.

Part two of this pop quiz will focus on how courts determine whether a victim can take community property when it’s clear that tort that the tortfeasor spouse is solely liable for the victim’s injuries.

Is it a Crime to Damage Community Property?

As we discussed in a previous article, Washington is a community property state.  This means that, in this state, most property that a couple acquires during their marriage is considered to be the property of both spouses.  So any given piece of property, from a car to a condo, that a married person buys is generally considered to be equally owned by both spouses.  The issue of whether property is community or separate is a very important consideration for the courts when a couple divorces, and their property needs to be divided between the two soon-to-be exes.

While community property is primarily of concern to courts in domestic and other civil court matters, the issue of community property occasionally arises in criminal matters.  Here’s one example.

kill your television

In December of 1998, Angel Coria and his wife went out for dinner at a restaurant in Tacoma.  During their dinner, Mr. Coria believed that the wait staff at the restaurant were flirting with his wife.  Mr. Coria became enraged, and the couple got into a fight while driving home after dinner.  During this argument, Mr. Coria assaulted his wife, and she was injured. Once they returned home, Mrs. Coria rushed into the house and called the police.  Mr. Coria sped away in his truck.  The police arrived at the Coria’s house, an ambulance was called for Mrs. Coria, but Mr. Coria was nowhere to be found.

Around midnight, Mrs. Coria returned home from the hospital.  Within less than two hours, she heard banging sounds in the garage and fled the house.  She called the police from a neighbor’s house and reported that he believed her husband was back.

When the police officers arrived at the Coria’s house, it was a disaster.  A mirror was broken, the TV was knocked over, the microwave was torn from the wall.  The couple’s pet cockatiel was dead, its cage smashed.  The garage door had been ripped off its rollers, and a door frame and lock had been damaged.  The linoleum tiles in the kitchen were slashed.   The couple’s young daughter pointed to the broken mirror and said “Daddy broke.”  It was later determined that $555.00 worth of the couple’s property was damaged or destroyed.

Mr. Coria was later charged with assault of his wife, and with malicious mischief for damaging the couple’s property.  Malicious mischief is a felony, which applies when a person “knowingly and maliciously causes physical damage to property of another exceeding $250.”  (See RCW 9A.48.080).  The husband appealed, and claimed that he could not have damaged “the property of another” because he had damaged community property, which was just as much his property as it was his wife’s property.  In other words, Mr. Coria argued that because he owned the property that he damaged and destroyed, he hadn’t committed malicious mischief.  The Court of Appeals agreed wtih him, and the case was sent to the Washington Supreme Court for review.

Did Mr. Coria only hurt himself?

So, did the Supreme Court agree that Mr. Coria could not be found guilty of destroying what property owned by both he and his wife?

a). Yes, the court found that the husband did not commit malicious mischief because he destroyed property owned equally by he and his wife, and therefore he had not destroyed the property of another.

b). No, because the wife is just as much at the owner of the destroyed property as the husband, the destroyed property was the property of another.

Answer: B. See State v. Coria, 146 Wn. 2d 631. The Supreme Court ruled that the property destroyed by Mr. Coria was indeed the property of another because Mrs. Coria was a co-owner.  Even though Mr. Coria shared an ownership interest in the property, he could not take it upon himself to destroy it without penalty.  His ownership rights could not trump those of his wife, and his destruction of their co-owned property interfered with Mrs. Coria’s ownership rights.  Thus, Mr. Coria was ultimately found guilty of of malicious mischief.

So, given that community property is generally considered to be owned by spouses on a 50-50 basis, we might think that Mr. Coria should only be liable for half of the damages – after all, he owned one half of all the damaged and destroyed stuff  and he’s free to do whatever he wants with his half – right?

Well, the court did not really answer this question for two reasons. First, Mr. Coria did not raise this theory as a defense. Secondly, even if this theory could be used as a defense, it would not have saved Mr. Coria. The property that Mr. Coria destroyed was valued at $555.00.  Even if he was liable for only half of the value of the damaged property, he still damaged property over $250.00, making him guilty of malicious mischief anyway.

Who’s the Daddy?

The case of “JMK”

This pop quiz involves a particularly interesting, and occasionally absurd issue in family law – the question of how the courts determine exactly who is the parent of a child.*  This probably seems like a simple issue to resolve, especially now that a DNA test can determine genetic relationship with virtual certainty.

However, the assignment of the title of “parent” to an individual is decidedly more complicated in the law, especially in the case of fathers.  And in the eyes of the law, genetic relationship is only one of several ways that a man might acquire the legal designation of “father” or “parent.”

It all looks pretty simple, but sometimes figuring who is a parent can be very complicated.

For example, under Washington law, a man who donates sperm for use in artificial insemination is generally not considered to be the legal father of any child conceived using that sperm, unless the parties agree, in writing, that the sperm donor is also the child’s “father.”  We’ll call this law “the sperm donor statute” for simplicity’s sake.

One of the purposes of the sperm donor statute was to prevent a man who anonymously donated sperm to any number of women – with whom the man had no other relationship – from later being obligated to pay child support purely based on his genetic relationship to a child with whom he’d likely have no other relationship.

The thinking is that a man who sells or donates his sperm probably isn’t trying to be a father in the traditional sense of the word, nor is the woman who receives it trying to create a parental relationship with him.  Thus a sperm donor is not considered a “father” to a child despite the fact that he is genetically related.

However, just as human relationships are immensely complicated, the repercussions of what appears to be a very sensible policy can be very complicated.  Let’s take a look at one real-life example of how complicated figuring out “who’s the daddy” can be…

Meet Michael, His Wife, His Girlfriend, and his son Jason…

In the late 1980s, “Michael” and “Teresa” met at work.  Michael was married, but he started stepping out on his wife with Teresa, and they began an off-and-on relationship that lasted for over 10 years.

Although we tend to assume that most men don’t want “the other woman” to have a child, Michael was different. In 1995, the he and Teresa began trying to have a child. After the couple could not conceive naturally, they used in vitro fertilization or IVF, in the hopes that Teresa would become pregnant.

The IVF treatments worked.  Teresa gave birth to “Jason” in 1998.  When Jason was born, Michael visited Teresa in the hospital, and wrote notes referring to himself as “Dad.” Michael also signed a paternity affidavit stating he was Jason’s father and had his name put on the birth certificate.  Jason even had Michael’s last name, and Michael paid Teresa child support for Jason’s care.

At first, Michael seemed to be pretty into the whole "Dad" thing.

… and his other “son”, Derek.

In 2001 Teresa gave birth to her second child, “Derek.” Again, she used Michael’s sperm and conceived using IVF.

Now, this is where things get… even more complicated.  Derek was conceived in February of 2001.  Neither Michael nor Teresa disputed that fact.  What was disputed, however, is whether Teresa and Michael were still in a relationship at the time she became pregnant by Michael via IVF.

Teresa claimed that the relationship ended in March 2001, while Michael claimed the couple was kaput by January of 2001 – one month before Derek was conceived via IVF.

Unlike the proud papa Michael had been with Jason, Michael reacted differently to Derek. He visited Teresa in the hospital while she was in labor, but he did not sign a paternity affidavit.  The cutesy notes of Jason’s birth were no more.

Michael paid some child support for Derek, but stopped in January 0f 2002, when Derek was about 3 months old.   Notably, the stop in payments corresponds with when his wife (remember, Michael has a wife?  We think he probably had difficulty remembering this as well…) finds out about the affair.

Just like his other son Jason, Derek shares genes with Michael... so why might Michael not be Derek's father too?

Michael started making up all sorts of stories to try to smooth things over with his wife.  He claimed he had only paid child support payments because Teresa was blackmailing him to keep the relationship a secret, and that he had signed Jason’s paternity affidavit under blackmail, duress, and fraud.

Teresa filed a petition in Superior Court, and asked that Michael be declared the father of both Jason and Derek.  She also asked the court to order Michael to pay child support for both boys.

Michael claimed that he was not the “father” of either child because he did not sign a written agreement stating that he was to be the father before Teresa became pregnant.  Michael even claimed that because Teresa conceived by IVF, he should not be required to take a blood test because a court could only require blood testing when there was a reasonable possibility that the “requisite sexual contact” occurred.

Michael lost round one. The Superior Court ordered him to take the blood tests, which confirmed that he was the biological father of both boys. The court then ordered him to pay child support.

Michael appealed the case, arguing that, under the sperm donor statute, he was not legal father of Jason or Derek because he did not sign a written consent prior to Teresa’s insemination.

The Court of Appeals reversed the ruling. It determined that Michael was just a sperm donor for both boys, despite the fact that Teresa conceived using IVF and not artificial insemination. He was not the legal father because the parties had not agreed in writing prior to IVF that he would become the father by giving his sperm to Teresa.

So… quiz time:

pop quiz

Did the Supreme Court agree with the Court of Appeals?

a)      Yes. The Supreme Court agreed with the Court of Appeals stating that Michael was not the legal father because he did not agree in writing prior to IVF that he would become the father of Jason and Derek by giving his sperm to Teresa.

b)      No. The Supreme Court stated that Michael was Jason’s father because he had signed the paternity affidavit, but was not Derek’s father because he had not signed the affidavit.

c)      No. The Supreme Court stated that Michael was the father of Jason and Derek because court-ordered blood tests had confirmed that he was the biological father of both boys.

d)     No. The Supreme Court stated that Michael was the father of Jason because he had signed the paternity affidavit. Michael was declared the father of Derek because the former statute only prevented semen donors from becoming the father when the woman conceived via artificial insemination, not IVF. Further genetic testing confirmed that Michael was Derek’s father.

Answer: D. See In re. J.M.K.; 155 Wn.2d 374 (2005).

One interesting thing about this case – and there are many very interesting things about JMK – is that Michael was deemed the father of Jason and Derek for two totally different reasons!

As for Jason – under Washington law, a man who signs an acknowledgment of paternity has 60 days after filing the acknowledgement to challenge the acknowledgment. Otherwise, it is deemed valid. Michael did not challenge his acknowledgment within the time frame; therefore, he was deemed the legal father of Jason. (See RCW 26.26.330.)

As for Derek  – the sperm donor statute at the time of Derek’s conception and birth referred only to artificial insemination and not IVF. Therefore, it was not applicable to Michael’s case because Derek was conceived using IVF. Michael was then deemed to be the father of Derek when genetic testing confirmed he was the father. The current statute, however, references all methods of assisted reproduction – including IVF. (See RCW 26.26.705.)  Thus, it’s possible, if not likely, that if this case came up now, Michael could be deemed the “father” of Jason but not Derek – despite the fact that, genetically speaking, he is the father of both boys.

Michael probably wasn't as happy about fatherhood as this guy.

The Uniform Parentage Act and constitutional rights of children:

Another interesting aspect of JMK is the Washington Supreme Court’s recognition that children of married parents and children of non-married parents have the same rights.  The Court noted that if they decided that Michael should not be at least financially responsible for both children, they would essentially create one set of rights for children whose parents aren’t married, and another for children whose parents are married.  The Court stated that this raised a constitutional concern regarding the legal standing of children of unmarried parents.

This concern led to Washington’s adoption of the Uniform Parentage Act or “UPA.”  The purpose of the UPA is to “give full equality to all children by recognizing their right to parental support and their legal relationship with both parents.” (Gomez v. Perez, 409 U.S. 535, 93 S. Ct. 872 (1973)).  The UPA, in addition to recognizing that all children have the same rights regardless of whether their parents are married – also sets out a number of ways in which a man can be deemed the “father” of any child.

*Seattle University School of Law Professor, Julie Shapiro, provided much of the inspiration for this article.  Professor Shapiro regularly leads thought-provoking discussions of the issue of  parenthood, and especially fatherhood, both in the classroom and on her excellent blog, Related Topics.

The Case Of The Delayed Dad

This pop quiz involves a 2002 law which imposes a statute of limitations of two years for challenging another man’s claim of paternity. The main purpose of the law is to encourage stability for children by ensuring that the question of paternity for children is generally decided within two years of the child’s birth.

For example, if you are married and your wife has a child, the child is presumed to be yours, (even if it really isn’t). So if you, your wife, or some other guy wants to claim that the child isn’t yours, the parentage case has to be filed before the child’s second birthday party.  But to every rule lies an exception – or does it?

If you have any doubts, better file a paternity case before his next

In 1999, Tracy became pregnant while living with Keith. She gave birth to a child, Sabrina, and soon after, Tracy and Keith signed papers stating that Keith was the father. However, Tracy had also been sleeping with David. (Because the names of all parties are protected in parentage cases, we just made up some names here.)

Six years later, perhaps inspired by the moment, Tracy told David that he might actually be Sabrina’s father. Trouble was, because Tracy was a drug addict by this time, she wasn’t Sabrina’s primary caretaker any more – Keith had fought for, and received, primary custody from the court. The next year, sadly, Tracy died. Her parents encouraged David to take an informal (that is, not court-ordered) DNA test in March 2007. And of course, it confirmed genetically (but not legally) that he actually was Sabrina’s father – not Keith.

So David off and filed a parentage petition. Keith naturally opposed this because it was long past two years since Keith himself had signed papers acknowledging that he was Sabrina’s father.  David asked that a Guardian Ad Litem (someone chosen by the court to speak for the child’s best interests) be appointed to determine if it was in Sabrina’s interests to have a formal DNA test to determine who was her biological father.

The trial court refused to appoint a GAL, and simply dismissed the case. David appealed.

So the question is: Does two years really mean two years, or is David’s story compelling enough to create an exception to the rule. In other words:

Did the court of appeals agree that David waited too long to fight for paternity (even though the baby was apparently really his)?

(a) No. The appellate court ruled that David was the father because of the unofficial (but highly reliable) DNA test, and that to keep his daughter from him any longer was unfair to David.

(b) No. The appellate court sent the case back to trial court for appointment of guardian ad litem to represent Sabrina’s interests in deciding whether to have an official DNA test because she had a constitutional right to be a party to the action that determined her paternity.

(c) Yes. The appellate court carefully weighed the informal DNA test versus Keith’s long-standing commitment to Sabrina (acknowledging paternity, developing a relationship with her, and being her primary caretaker) and determined that it would not be fair to Keith to take Sabrina away from him after all he had done for her.

(d) Yes. The appellate court agreed with the trial court that the statutory time limit had passed, and that that was all that mattered (regardless of what relationship Keith had or didn’t have with Sabrina).

The court had to balance stability versus genetics

Answer: (b) No, the appellate court sent case back to trial court for appointment of guardian ad litem to represent Sabrina’s interests in determining whether genetic testing should be conducted. The primary concern was not fairness to David, but rather protection of Sabrina’s constitutional rights.

In its reasoning, the court quoted the following from the 1985 case State v. Santos (104 W.2d 142):

Procedural due process already requires that a child must be a party to a paternity action in recognition of the principle that “no individual should be bound by a judgment affecting his or her interests where he has not been made a party to the action.”

A child must not be a party in name only. It is fundamental that parties whose interests are at stake must have an opportunity to be heard “at a meaningful time and in a meaningful manner.”  Because a child cannot represent his or her own interests, RCW 26.26.090 requires that a child be represented by a guardian or a guardian ad litem, who in fact protects the child’s interests….

The child’s interest in a paternity proceeding extends beyond the immediacy of support which a potential father might provide. Inheritance rights and familial bonds are also at stake. Substantive due process, we believe, requires accuracy in establishing paternity.” (citations removed).

The court ruled for David, not our of fairness to David, but out of fairness to Sabrina.

For all the details, read In the Matter of the Parentage of Q.A.L. 146 Wn.App 631 (September, 2008)

You may also wish to read the statute in dispute:

RCW 26.26.540 – Proceeding to adjudicate parentage — Time limitation: Child having acknowledged or adjudicated father.
(1) If a child has an acknowledged father, a signatory to the acknowledgment or denial of paternity must commence any proceeding seeking to rescind or challenge the paternity of that child only within the time allowed under RCW 26.26.330 or 26.26.335.

(2) If a child has an acknowledged father or an adjudicated father, an individual, other than the child, who is neither a signatory to the acknowledgment nor a party to the adjudication and who seeks an adjudication of paternity of the child must commence a proceeding not later than two years after the effective date of the acknowledgment or adjudication.

Pop Quiz – Judges On The Verge

Pop Quiz is an ongoing series about cases from the Washington State Court of Appeals and the Washington Supreme Court.  Each post includes some facts about a specific case, then invites you to guess which of the four choices best describes the court’s ruling.

Scales of JusticeThis is a divorce case involving a property settlement and a Judge who waxed eloquent about the wife’s supposed “marital misconduct.” The biggest surprise, given the Judge’s ideas about which spouse was guilty of misconduct, is that the case is actually from 2005, not 1905.  Judges like this are exactly why we have a Court of Appeals …

During their four-and-a-half year marriage, Mr. Muhammad was employed as a deputy sheriff for Pierce County, and Mrs. Muhammad was employed at a supermarket and at Pierce County Transit.  In April 2001, Mr. and Mrs. Muhammad engaged in an argument during which Mr. Muhammad allegedly pointed a weapon at his wife.

Subsequently, the couple separated, and Mrs. Muhammad obtained an order of protection, which barred Mr. Muhammad from owning or possessing a firearm in any capacity.  As a result, Mr. Muhammad lost his job in law enforcement.  The trial court remarked extensively on the relationship between Mr. Muhammad’s unemployment and Mrs. Muhammad’s decision to obtain a protective order. The remarks included the following excerpts:

“… Mrs. Muhammad has sought to punish Mr. Muhammad….”

“[Mrs. Muhammad] had to know or at least should have known or should have been told that if she proceeded with this protection order, that [Mr. Muhammad] was not going to have a job and he wasn’t going to have an income and he wasn’t going to be able to pay his debts….”

The trial court considered marital fault when distributing the property amongst the parties, disfavoring Mrs. Muhammad because she obtained an order for protection.  The Court of Appeals affirmed the trial court’s distribution of the parties’ assets and liabilities.

Did the Washington State Supreme Court affirm the trial court’s analysis of Mrs. Muhammad’s decision to obtain a domestic violence protection order against her as marital fault?

(a) Yes, a Washington State court may consider any form of marital fault or misconduct in all dissolution of marriage cases.

(b) Yes, the consideration of fault was justified in dividing the property because Mrs. Muhammad should have known what the consequences of her actions would have been.

(c) No, the trial court abused its discretion; consideration of marital misconduct is explicitly prohibited by Washington State statute.

(d) No, the Washington State Supreme Court found fault against Mrs. Muhammad based on other grounds.

Answer: (c) No, the trial court abused its discretion; consideration of marital misconduct is explicitly prohibited by Washington State statute.

Citation: 153 Wash.2d 795, 108 P.3d 779 (Wash. 2005)

Check out this important statute: RCW 26.09.080. Disposition of property and liabilities–Factors

In a proceeding for dissolution of the marriage, legal separation, declaration of invalidity, or in a proceeding for disposition of property following dissolution of the marriage by a court which lacked personal jurisdiction over the absent spouse or lacked jurisdiction to dispose of the property, the court shall, without regard to marital misconduct, make such disposition of the property and the liabilities of the parties, either community or separate, as shall appear just and equitable after considering all relevant factors including, but not limited to:

(1) The nature and extent of the community property;

(2) The nature and extent of the separate property;

(3) The duration of the marriage; and

(4) The economic circumstances of each spouse 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 with whom the children reside the majority of the time.