The opinion
FILED
JULY 28, 2022
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 the Matter of the Marriage of )
) No. 37878-1-III
CINDY D. SCINTO, )
)
Respondent, )
)
and ) UNPUBLISHED OPINION
)
JOHN P. SCINTO, )
)
Appellant. )
FEARING, J. (lead opinion) — In this marital separation case, John Scinto appeals
the superior court’s property division and the award of spousal maintenance and attorney
fees to his wife, Cindy Scinto. The appeal primarily forces this court to examine the
elasticity of discretion afforded a superior court when awarding property to separating
spouses. John complains that the trial court abused its discretion when it allocated 79.2
percent of the couple’s assets to his wife, Cindy. This opinion awkwardly presents the
majority view on affirming the superior court’s spousal maintenance award and award of
attorney fees to wife Cindy Scinto, but the minority view on affirming the trial court’s
property division. Because of the unique circumstances of this case, including Cindy’s
severe medical ailments, her inability for gainful employment, and her need for the
No. 37878-1-III
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family residence, I would hold that the superior court did not abuse its discretion. The
majority holds otherwise.
FACTS
John and Cindy Scinto married in 1982 in New York. They separated for the third
time in June 2017. For reasons underscored later, the parties seek a legal separation, not
a marital dissolution. Trial occurred in September 2019.
In 1989, when domiciling in Arizona, Cindy and John Scinto bore a son, later
diagnosed to be on the autistic spectrum. The child, now an adult, resides on his own.
Since their marriage, John Scinto has worked for the United States Postal Service.
Between 1982 and 1988, John labored as a mail carrier, first in North Carolina and then
in New York. In 1988, the couple transplanted to Hereford, Arizona, where John worked
as a distribution window clerk. He served in the same position at Sierra Vista, Arizona
from 1989 to 1991.
From 1991 to 1996, John Scinto served as a postmaster, first in McNeal and later
in Stanfield, Arizona. Beginning in 1996, John assumed the position of customer service
analyst, a position in which he continues to serve at a higher level. In his first analyst
position, he oversaw five hundred rural delivery routes in Arizona. He scrutinized routes
to create and preserve proper sizing. This analysis demanded following contractual
provisions, handbooks, and manuals and interfacing with rural communities.
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John and Cindy Scinto moved, with their son, to Spokane in 1998, where John
continued as a customer service analyst. All three have resided in Spokane since. In
2000, John received a promotion to retail delivery analyst, in which position he evaluated
city delivery routes for eastern Washington and Idaho. His tasks included assessing the
amount of time a carrier spent on a route and the amount of time that the carrier should
have spent on the route.
At some unremembered time, John Scinto received another promotion, this time to
retail fleet leader. John analyzed mail counts and city delivery routes. With assistance
from computer software, John determined the most efficient methods to deliver mail. He
supervised others who walked postal routes and who reported to him numbers that he, in
turn, reviewed.
In 2006, John Scinto became an operation specialist with the United States Postal
Service, at which time he journeyed to Washington, D.C. on temporary assignment. John
developed policies and programs regarding rural delivery. He updated Postal Service
manuals. Cindy and the couple’s son continued to live in Spokane, and John periodically
returned home. John continues employment with the Postal Service today as a rural
delivery specialist working from Spokane.
At the time of trial, John Scinto accrued a monthly salary of $9,636, paid
biweekly. This salary equates to yearly income of $115,633. The Postal Service monthly
deducts $59 for Medicare and $669 for civil service retirement from John’s paycheck.
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He claims his net monthly income is $7,200 after also deducting for income taxes. John
also monthly deducts an amount from his paycheck into a voluntary retirement plan
known as a thrift savings plan.
Cindy Scinto’s physical condition overshadows other factors in this appeal. Cindy
suffers from relentless health problems requiring constant monitoring and resulting in
high medical expenses. The ailments include a heart transplant attended to coronary
artery disease, a pancreas transplant caused by type 1 diabetes, Graves’ disease with
labile thyroid levels, osteopenia, recurrent kidney stones, chronic kidney failure and
disease, sleep apnea, recurrent skin carcinoma due to the effects of immunosuppressant
treatment for the transplants, and actinic keratosis.
Cindy Scinto has endured diabetes since childhood. At a young age, she began
injecting herself with insulin through needles. She developed carpal tunnel syndrome
because the diabetes contributed to numbness and pain in her wrists and fingers. Because
of the diabetes, Cindy encountered a difficult pregnancy with the couple’s son, and her
physician placed her in the hospital for the last two months of pregnancy. Cindy needed
six months to recover from continued swelling after childbirth.
Cindy Scinto’s pregnancy resulted in a hormonal imbalance, which increased her
blood sugar imbalance. After the Scintos moved to Spokane, surgeons removed Cindy’s
uterus and ovaries. Cindy took estrogen for an unidentified time, which did not assist in
balancing her hormones or blood sugar.
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To end the practice of injecting herself with needles, Cindy Scinto acquired, at an
unidentified time, an insulin pump. She changes the pump’s catheter every three days.
Grave’s disease is an autoimmune disorder that impacts the thyroid. On an
unknown date, a surgeon removed Cindy Scinto’s thyroid as a result of the disease.
Cindy Scinto develops trigger fingers, an immune system response to synovial
tissue in her hands. The infirmity renders her fingers stiff and locked. Some surgeries
have ameliorated this finger ailment, but trigger fingers return on occasion. When a
finger sticks, she struggles to pry open the digit.
In 2001, son Jonathan and Cindy were jogging for his physical education
instruction. Cindy suddenly developed cramps, pain in her legs, and breathlessness. Her
chest felt crushed by an elephant. Cindy visited her family physician. An
echocardiogram, blood work, and blood pressure showed no abnormality. The physician
sent Cindy home with a diagnosis of acid reflux.
Three days later Cindy Scinto visited the emergency room at a Spokane Valley
hospital. The hospital immediately conveyed Cindy to Sacred Heart Medical Center in
Spokane. At the medical center emergency room, medical personnel performed a nuclear
treadmill test. A cardiologist diagnosed a large blockage in Cindy’s left anterior
descending artery, known as a widow maker. Personnel quickly carted Cindy to the
surgery theater, wherein a surgeon implanted stents.
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On numerous later occasions, surgeons installed stents in arteries surrounding
Cindy Scinto’s heart. Cindy received eleven stents. Additional blockage soon followed
the placement of each of the stents. Cindy underwent an angioplasty with the addition of
each stent. Recovery from each surgery required three days in the hospital. Cindy had a
pacemaker implanted in her heart.
Despite receiving the various heart surgeries, doctors determined that Cindy
Scinto needed a heart transplant, and she was placed on the transplant list. One does not
receive a transplant unless close to death. A cardiologist told Cindy she was near death,
although seventy individuals possessed higher priority on the transplant list. On July 14,
2005, a Seattle donor died, but no heart surgeon wanted to relocate the donor’s heart
because the donor suffered a viral cancer called cytomegalovirus from drug use. The
donor also smoked tobacco. Surgeons questioned whether the heart would benefit
anyone. Being near death, Cindy asked for the donor’s heart. A Leer jet flew the heart
from Seattle to Spokane. The transplant lasted six hours. Cindy remained in intensive
care for two weeks. Her recovery lasted one year. Her breathing improved from the
transplant, however.
An organ transplant cultivates new ailments. The transplant patient must medicate
with anti-rejection drugs. Because of the diseased substitute heart donated to Cindy
Scinto, cancer manifested itself in four months after the transplant. Cindy underwent
chemotherapy.
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Cindy Scinto also developed skin cancer on her nose. Prednisone taken for the
heart transplant had thinned her skin. A surgeon removed one side of Cindy’s nose and
removed the cancerous cells before regrafting the nose skin. Cindy thereafter underwent
chemotherapy on her face for the skin cancer. Cindy developed skin cancer in other areas
of her body. Skin cancer on her shinbone area demanded the removal of a chunk of flesh
and forty stitches.
After heart surgery, Cindy Scinto encountered difficulty measuring her blood
sugar level. Medications for the heart transplant prevented her body from absorbing
insulin. Also, insulin did little to balance Cindy’s blood sugar level.
One day in 2011, Cindy Scinto became delusional and went into shock. Because
of complications with diabetes resulting from the heart transplant, Cindy then needed a
pancreas transplant. She went to the Mayo Clinic for assistance, but the clinic refused to
operate because of her earlier heart transplant. Cindy returned to Spokane. She later
learned that European surgeons travel to the University of Illinois in Chicago and
perform risky surgeries. Cindy went to Chicago for a pancreas transplant. European
surgeons drive a hard bargain. Before the surgery, Cindy signed a release stating she
faced a zero percent chance of survival. She remained in downtown Chicago until the
availability of a pancreas donation. She recovered in Chicago for a month after the
transplant.
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Two years after the pancreas transplant, Spokane practitioners refused to provide
follow-up care for Cindy’s pancreas. Seattle physicians also refused to administer
checkups. Cindy then traveled to Tucson for checkups. Years later the pancreas treating
physician moved from Tucson to Tampa, where Cindy now travels.
Cindy Scinto boasts that she is the first person in the world to receive both a heart
and a pancreas transplant. The two transplants have further compromised Cindy’s
immune system. She must avoid areas contaminated with viruses and bacteria. She has
contracted pneumonia since the last transplant. The pneumonia landed Cindy in a
hospitalization isolation ward. The ailment required frequent removal of fluid from the
lungs and intravenous medications.
Cindy Scinto submits to follow-up examinations of her heart every three months.
Each year she undergoes angioplasty. She has had bypass surgeries since the transplant.
During one surgery, the surgery team broke Cindy’s sternum. She later needed additional
surgery to rewire the sternum.
On an unidentified day in December 2013, Cindy Scinto felt movement in her
shoulder. The pacemaker, which had not been removed during the heart transplant, had
become dislodged and moved toward Cindy’s lungs. The Scintos then lived separately,
so Cindy drove herself to the emergency room. A surgeon removed the pacemaker on the
following day.
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In addition to taking anti-rejection medications for both transplants, Cindy Scinto
uses medications to improve her immune system. The latter drugs bring side effects,
such as sweating, shakes, and nausea. The medications damage Cindy’s kidneys. Cindy
gathers kidney stones too large to pass on her own. Because of Cindy’s surrogate
pancreas, physicians employ unique procedures to remove the stones.
At the time of trial, Cindy Scinto experienced forty percent blockage in her heart’s
main artery. Surgeons cannot fix the blockage such that her life span may be short.
At trial, Cindy Scinto had needed new glasses for one year, but lacked funds to
purchase them. She requires complicated lenses, which raise the price of glasses to as
high as $250.
Cindy weekly visits a counselor for anxiety and depression.
Because of the use of steroids, Cindy Scinto’s teeth crack. She needed braces. In
2018-19, she paid $2,607 for braces. At trial, Cindy needed a new tooth and bridges, at a
cost of $10,000.
Through employment with the United States Postal Service, John Scinto provides
medical insurance with Blue Cross Blue Shield for Cindy and the couple’s son. Still,
Cindy must pay copays for medications and doctor visits. She pays $5,000 in copays
each year. After a family member incurs $5,000 for in-network care, the Blue Cross Blue
Shield policy pays for all later expenses in the policy year. Cindy reaches this
catastrophic amount each year.
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The Blue Cross Blue Shield policy affords limited dental and eye coverage.
Cindy’s dentist submitted the cost of braces to the medical insurance company, and the
company denied coverage. Cindy lacks coverage for much of her dental treatment. The
medical insurance company initially refused to pay for her counseling.
One or more of her physicians directed Cindy to obtain a gym membership for
needed exercise. She monthly pays for a gym membership. John Scinto allowed a
family gym membership to lapse after Cindy’s filing of the legal separation petition.
In December 2018, Cindy Scinto lacked money to pay for medications. John
would not pay. She raised $1,400 by Facebook for the medications.
During John Scinto’s rise in the United States Postal Service structure, Cindy
worked as homemaker and caregiver for the couple’s son. She homeschooled the autistic
son. In the last decade, Cindy has worked part time performing computer graphics with a
ministry in Coeur d’Alene and Post Falls and penning articles. Cindy accrues only
nominal income. Cindy Scinto cannot gain employment because of her medical
condition and unending medical appointments. She formerly wrote on a freelance basis
but can no longer do so because of the condition of her hands.
In his spare time, John plays the guitar in a band. He earns a small amount of
income for music performances, but his expenses always exceed the income. John owns
numerous pieces of musical and sound equipment.
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Since the filing of the separation petition, Cindy Scinto has resided in the family
residence. She wishes to continue to live in the home for financial, physical, and
emotional reasons. A realtor estimates the value of the home to be $285,000. The couple
owes no debt against the residence. John now lives in an apartment above a garage and
pays monthly rent in the amount of $1,475.
Under Postal Service employment rules, the service pays the employee for
accumulated leave time at the time of separation from employment. At the time of trial,
John Scinto had accumulated leave valued at $34,880.
PROCEDURE
This appeal arises from the third filing between the parties. John Scinto filed for
marital dissolution in 2013. John filed for dissolution again in 2017. Both cases were
dismissed. Cindy filed this proceeding as a legal separation in 2017.
Under a 2018 temporary order, John Scinto paid Cindy $2,500 per month in
spousal maintenance pending trial. The order did not require that John pay any medical
expenses.
John Scinto procured a restraining order against Cindy because of her publishing
defamatory comments online and interfering with John’s business relations. Cindy sent a
message to one of John’s fellow band members that suggested the band expel John. She
wrote that John turned her life into a nightmare. On her Facebook page, Cindy expressed
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outrage toward John. The restraining order prevented Cindy from referencing John on
social media or in any publication and from attending his musical performances.
After entry of the restraining order and after a mediation of the proceeding, Cindy
Scinto wrote to a nephew of John:
Your uncle and I went to mediation yesterday. He would not meet
me half way. What he offered was leave me penniless and with no where
[sic] to live. . . .
....
. . . Your uncle insisted on a divorce but he’s holding it up with lies
and by not submitting paperwork. I’m broke. Will run out of money for
my anti rejection medication. This is shortening my life. It’s not fair to
Jonathan either to lose his mom.
Doesn’t anyone in this family care?
Clerk’s Papers (CP) at 182-83. In a second e-mail to the nephew, Cindy wrote:
All I wanted was my half of the assets and alimony to live on. Just
what I’m supposed to get. But he refuses. And he has plenty of money.
I’m sitting in my living room with gloves on because I have the
temperature down to 62.
CP at 182.
At trial, John Scinto argued that the message to the nephew violated the restraining
order and a confidentiality provision in the mediation agreement. John asked that the
restraining order continue after entry of the order of legal separation. Cindy denied the
need for a continuing order and argued that she would not engage in similar messages in
the future. She explained that the message arose from her experiencing posttraumatic
stress disorder. At trial, she was under care for the disorder.
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At the opening of the trial, Cindy Scinto requested leave of the trial court to amend
the request for legal separation to a prayer for marital dissolution. The court denied the
amendment because of the lack of a formal motion. John testified that he had agreed to a
legal separation so that Cindy could maintain health insurance.
During the trial, the parties announced an agreement that John would share fifty
percent of the community portion of his retirement pension with Cindy. Cindy also asked
the court to divide John’s income until he retires.
During the trial testimony of Cindy Scinto, the superior court asked counsel about
the parties’ respective wishes for disposing of the family residence. Cindy’s counsel
requested possession of the residence and a nominal payment of $4,534 to John for his
share in the home. John’s counsel bade the court to split the equity in half. The superior
court then requested the attorneys to ponder and later address the legality and possibility
of awarding Cindy a life estate with John retaining ownership of a one-half interest in the
abode. The court remarked:
I don’t even know what the legality of that is. Neither party
requested that and so perhaps my hands are tied without a motion from a
party, but—perhaps it’s not, though. It could be that I have wide enough
discretion to consider that in deliberations, but I’m putting it out there so
it’s not hidden from the parties, and I’d like some discussion of it in this
trial.
Report of Proceedings (RP) at 198.
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During closing argument, the following colloquy transpired between the superior
court and Cindy Scinto’s counsel regarding the court’s earlier inquiry about a life estate
for Cindy in the residence:
So to answer the Court’s question in short, I do think you have the
legal authority to issue a life estate. I think that that may create more
problems when you do that to the resolution of this case.
RP at 423.
THE COURT: . . . tell me again your specific concern if the Court
were to hypothetically grant a life estate with reversion back to Mr. Scinto
in the event that Ms. Scinto preceded him in death.
MR. HUGHES [Cindy’s counsel]: Certainly. There’s a couple of
issues. I think that we would have to figure out what portion of her
property to be distributed to her estate, and what portion is his property to
be distributed to his estate.
THE COURT: What if the Court’s hypothetical is simply to grant
her a life estate with a 100 percent reversion back to Mr. Scinto at the end
of her life, and if Mr. Scinto doesn’t survive her, then it would revert to
her?
MR. HUGHES: I think that in the event that she predeceased him
that the value of the home . . . is double what Mr. Scinto is requesting in
equalization. So in that scenario he would have received essentially double
the equalization and would be a windfall. The reverse scenario I think
would be something of windfall to Ms. Scinto[,] if she were to predecease
[him,] she would have a zero amount that would be paid to him. That
would be closer to a 73 percent distribution of assets to her should he
predecease. So I would think that if you granted a life estate with an offset
of equality of the total value, we would have to say if either party
predeceased X amount would be reverted to each estate of the other party. I
think that analysis would in the end be similar to the analysis of trying to
sort of figure out what the payment would be and Ms. Scinto’s position
having heard the Court’s question and talking through that if the Court
finds that evidence would be 4,000, 50,000, 80,000 or 120,000, if you find
a number that’s an equalization payment, I believe that the law gives this
Court authority to say she will pay back his interest X amount a month and
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this is how it would be secured. I think that would make clear the issue as
to what Mr. Scinto’s interest is and what her interest is and then that
amount can be—can be otherwise accommodated.
If the Court was to think it creates potential issues between the
estates of both parties and likely between parties that are not party to this
case that are then going to take issue relative to this Court’s judgment here
in the form of an estate because Ms. Scinto’s estate would probably have
issue with that, I’m assuming Mr. Scinto would like to have issue with that
should he be deceased.
RP at 428-29.
During closing, John Scinto’s counsel asked the superior court to award Cindy the
home, but require Cindy to obtain a loan against the home and pay the proceeds of the
loan to John as an equalization payment. Counsel rejected the superior court’s suggestion
of a life estate because neither party could access the equity in the home until Cindy’s
death. According to John’s counsel, Cindy should sell the home and purchase a cheaper
condominium. Cindy could thereby access some of the equity in the home.
After closing statements by counsel, the superior court recessed the trial for six
weeks before announcing his ruling. The sparse written findings of fact incorporate the
court’s oral ruling, so we quote the ruling at length.
The Court is to put the parties in the financial position they would be
in if they remained married taking into account a number of factors
including the community property and both parties’ earning potential.
Again, this is a long-term marriage that makes this Court’s task very
difficult in this case, but nevertheless, the Court did its best to comply with
the statutes and case law which require this Court to take into account both
parties’ past earning potential, future earning potential, their age, and their
physical characteristics. In this case, it was particularly complicated
because [Cindy Scinto], to this Court’s satisfaction, it was proven that she
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really did not have the ability based on her extensive medical conditions
which are complicated [sic] the ability to earn much income. Historically
she had not earned much income, and the Court found her testimony
credible that she doesn’t have an ability to earn any significant income due
to her health concerns going forward in time. Substantial evidence
persuaded me to this finding.
I do find that she’s disabled for the purposes of earning potential. I
do find that she’s disabled, and although there was testimony that she had
earned some money here and there, the speaking engagements, being an
author, or a part-time writer, the Court nevertheless continues to find that
she’s not in a position to be a significant earner for herself due to her
extensive healthcare concerns.
RP at 449-50.
The superior court valued the couple’s Greenacres residence at $290,000 and
awarded the house to Cindy Scinto. The court awarded personal community property to
Cindy in the amount of $108,853.50 and personal community property to John in the
amount of $105,060.50. Including the real property award, the trial court awarded
$398,853.50 or 79.2 percent of the community property assets to Cindy and $105,060.50
or 20.8 percent to John. The trial court declared:
The reason for the disproportionate award in this case, this is the
parties’ primary community asset [the residence], is due to the
circumstances of the nature of their lifestyle during the marriage.
Essentially, [John Scinto] has been employed by and has had a healthy
financial career with the U.S. Postal Service. . . . He’s had steady
employment throughout the marriage. [Cindy] essentially was a stay-at-
home parent for much of the child’s life and has not really been in a
condition to be an income earner. Her earning potential has been
significantly limited by her extensive medical issues that were articulated in
the substantive evidence here. She’s had a heart transplant. She’s had a
litany of medical conditions which the Court found to be credible and
proven to this Court’s satisfaction by a preponderance of the evidence.
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The Court feels a disproportionate award is necessary in this case
due to her lack of earning potential as well as the fact that this was a long-
term marriage, and her own contribution from being a stay-at-home mother
and homemaker contributed to [John’s] ability to advance his career and
earn income. The Court is tasked with making a fair, just, and equitable
distribution of property to put the parties in the position they would be in if
they remained married. Knowing that the request from [Cindy] was the
Court split the income, I was not inclined to do so in that fashion. So the
Court is awarding the real property in its entirety on any and all equity.
There is no debt associated with that real property.
RP at 451-52. The superior court commented about other ways to dispose of the
couple’s residence:
I do want you to know I looked at other options that whether a trust
could be set up, whether a life estate should be granted. I looked at things
upside down to try to make sure that both parties were in a fair and just
position and this what I came up with, this is what I think is the best
resolution given the fact it’s a long-term marriage.
RP at 478.
The superior court uttered oral findings in favor of a maintenance award:
I am going to order maintenance in this case, and I’m going to make
a lifetime maintenance order. The Court rarely does so, but the Court finds
it appropriate given the long-term nature of the marriage being 35 years.
The Court also considered all the factors enumerated in RCW 26.09.090.
That includes the financial resources of the party seeking maintenance,
including any separate or community property apportioned to her, as well
as both parties’ abilities to meet their own needs independently.
The Court also considered the time, any necessary time to acquire
sufficient education and training to enable the party seeking maintenance to
find appropriate employment based on her skills, interest, lifestyle, and
other attendant circumstances. In this case, considering that factor the
Court finds that it is not practical for [Cindy Scinto] to be an earner for
herself due to the extensive medical conditions she has. Historically that
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was also the case, she was never a significant earner during the lifetime of
the marriage.
The Court also considered the standard of living that was established
during the marriage. And, again, the Court tries to do its best with the
limited resources available to give the parties the ability to live a lifestyle
that was close to that experienced in the marriage and finds that’s fair, just,
and equitable.
Again, the Court also considers the late age, the physical and
emotional conditions of both parties and the financial obligations of the
wife, who is seeking maintenance; again, noting her lack of ability to earn
income and his ability to earn income through his both historic and during
trial his continued stability in his career earning over six figures.
The Court also considered the ability of [John] in this case to meet
his own financial obligations as well as meeting those of the spouse who
was seeking maintenance and her ability to meet her own needs. The Court
considered all factors enumerated in RCW 26.09.090 and finds that a
lifetime maintenance award of $2,300 per month going forward is
appropriate.
The Court also has concerns regarding her ability to acquire medical
insurance, so that’s another reason why this Court in addition to the factors
enumerated in .090, the Court also has concerns about that. I think, frankly,
even with the disproportionate award and even with the lifetime
maintenance award, she may have difficulty securing the appropriate
medical insurance or the medical out of pocket and/or medical necessities
that she may need. However, this Court can’t create assets out of nowhere,
and the Court has to account for [John’s] right to live a life that’s somewhat
close in proximity to the life that he lived during the marriage, and so the
Court finds that $2,300 is sufficient plus the disproportionate award with
respect to the home is fair, just, and equitable in its totality. And although
that may not meet every need of [Cindy], the Court nevertheless finds it is
fair, just, and equitable and is the most this Court would order in terms of
lifetime maintenance. I find a maintenance above and beyond this, such as
a splitting of the income would be unfair to [John] and would also deprive
[John] of having an existence that was close in proximity to the marriage.
So $2,300 will be the maintenance, lifetime maintenance award.
RP at 453-55.
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John Scinto’s counsel informed the superior court that John’s Postal Service
pension would pay between $6,000 and $8,000 per month. Counsel also reminded the
court that the parties had agreed to equally share the monthly pension benefit. In
response, the court remarked:
I will indicate that if under any contingency that her [Cindy’s] share
of the retirement, once it goes into effect, drops below [$]2,300, he [John]
will have to at least get her to [$]2,300 in maintenance. That is fair, just,
and equitable.
RP at 476.
During its oral ruling, the superior court addressed the possibility that either John
or Cindy Scinto would transform the legal separation proceeding to a marital dissolution
and the effect of a dissolution on Cindy’s ability to afford medical care. John represented
that he would not seek a dissolution so that Cindy could retain health insurance. The
court commented:
It has been represented that [Cindy Scinto] was going to convert this
to a dissolution, which she has every right to do. The Court took into
account in the maintenance award that most likely if this turns into a
dissolution, she may not be able to meet her medical needs with a $2,300
maintenance award even considering the disproportionate award. However,
the Court is aware of the equity position that [John Scinto] has indicated
he’s not seeking dissolution for the purposes of her maintaining her medical
insurance and the Court took that into account to a certain degree. And so
if she seeks a dissolution that will be granted, that may put her in financial
strain if she’s not able to essentially acquire affordable medical insurance.
However, that really is her choice to do and it would be unfair for this
Court to obviously force her to do that. She has every right and public
policy would support her ability to seek a dissolution once she meets the
statutory criteria in the 90 days of that one, she files appropriately.
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RP at 477.
The superior court awarded Cindy Scinto attorney fees to be paid by John:
The Court has determined that [John Scinto] shall pay $15,000 of
[Cindy Scinto’s] attorney’s fees, offset by the amount [John] had to pay to
obtain the restraining order against [Cindy].
[John] proved fees related to obtaining a restraining order against
[Cindy] by providing invoices in the amount of $3,754.50.
The Court therefore orders [John] to pay [Cindy’s] attorney’s fees in
the amount of $11,245.50 payable to Hughes & Nelson, Attorneys at Law,
PLLC, payable within 30 days of entry of this order or subject to entry of a
judgment and/or garnishment/collection.
CP at 351. The court added:
With respect to the attorney fees in this case: the Court was mindful
of attorney fees request and did apportion for that. I’m going to indicate
that [John Scinto] in this case will pay 15,000 in attorney fees and that will
be offset by the precise amount with respect to the restraining order, the
temporary restraining order, so I don’t have an attorney fees calculation for
that. So the parties are instructed I’m awarding that [John is] to pay 15,000
in attorney fees to [Cindy] offset by the temporary, the amount to be
reflected seeking the temporary restraining order. So, Counsel, I guess I’ll
have to see a supplemental on that as to what that amount would be
precisely, but I find that fair, just, and equitable.
In looking at this case, I think both parties could have come to a
resolution. Even though one party has certainly a less earning potential, I
also think that this case could have been settled so the Court has wide
discretion to apportion attorney fees, so that’s the extent to which I’m
ordering [John] to assist with attorney fees in this case and her earning
income.
....
. . . It’s based on the total assessment of equities in this case. So I
think some contribution from [John] to [Cindy] is warranted given his
earning potential and her lack of earning potential. But I also, again, I’ve
offset that by the temporary—whatever attorney fees comprise and were
needed related to the seeking and obtaining of the temporary restraining
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order, and I’m not inclined to award any additional attorney fees above and
beyond the [$]15,000 based in part on the assessment of all equities to
include financial discrepancies of the parties in this case and this Court had
also formed a perception that this case could have been settled out of court.
Anyway, that’s the Court’s position on this.
I actually don’t think the Court is required to articulate a reason
when it distributes attorney fees given the statutes, just gives the Court
wide discretion in that case, but, nevertheless, the Court considered all
issues of equity.
RP at 462-63. John did not object to the attorney fee award.
LAW AND ANALYSIS
John Scinto assigns three errors to the superior court’s rulings. First, the court
erred when ordering spousal maintenance to continue after his retirement. Second, the
court inequitably divided the couple’s property. Third, the court erred when awarding
Cindy reasonable attorney fees. I address the assignments in such order. Although this
proceeding entails a legal separation, not a marital dissolution, the same rules with regard
to spousal maintenance, a property division, and attorney fees apply. The Washington
decisions I discuss entail dissolutions, formerly known as divorces.
Maintenance
The superior court ordered John Scinto to pay Cindy $2,300 per month until his
retirement. Once John retires, John and Cindy, per agreement, will each receive half the
value of John’s United States Postal Service retirement pension income. If Cindy’s
receipt of retirement income falls below $2,300 a month, John must pay the difference as
maintenance. On appeal, John argues that any maintenance obligation should end once
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No. 37878-1-III
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he retires and Cindy begins receiving 50 percent of the pension payments. John does not
challenge his paying $2,300 per month before his retirement. He does not complain
about Cindy receiving half of his retirement pay. He only complains about paying Cindy
the difference between $2,300 and her share of the retirement pay after he ceases
employment.
A trial court may award maintenance in a legal separation:
(1) In a proceeding for dissolution of marriage or domestic
partnership, legal separation, declaration of invalidity, or in a proceeding
for maintenance following dissolution of the marriage or domestic
partnership by a court which lacked personal jurisdiction over the absent
spouse or absent domestic partner, the court may grant a maintenance order
for either spouse or either domestic partner. The maintenance order shall
be in such amounts and for such periods of time as the court deems just,
without regard to misconduct, after considering all relevant factors
including but not limited to:
(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
this 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.
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RCW 26.09.090.
An award of maintenance lies within the trial court’s discretion. In re Marriage of
Vander Veen, 62 Wn. App. 861, 867, 815 P.2d 843 (1991). Washington courts have
approved awards of lifetime maintenance in a reasonable amount when the party seeking
maintenance will not be able to contribute significantly to his or her own livelihood. In
re Marriage of Mathews, 70 Wn. App. 116, 124, 853 P.2d 462 (1993).
In support of his contention that the superior court abused its discretion when
awarding continuous spousal maintenance, John Scinto relies on numerous factual
contentions, some which are irrelevant and some which are mistaken. John contends that
the superior court cannot base spousal maintenance on some unforeseen future event.
Presumably this unforeseen event is his pension payment dipping below a total of $4,600
per month. At the same time, John underscores that no evidence suggests that Cindy will
ever receive less than $2,300 per month. We agree. In fact, John’s counsel represented
to the superior court that Cindy will never receive less than $3,000 per month as her share
of Postal Service retirement benefits. John does not explain why he frets about an event
he insists will never occur and appeals a ruling that will never impact his behavior.
John Scinto emphasizes that he will not receive any income other than his
retirement pay when ending employment. Therefore, assuming both he and Cindy
receive less than $2,300 per month from the Postal Service, Cindy will continue to
receive that amount, while his income falls according to his paying Cindy the shortfall.
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Again, his counsel claimed this scenario would never occur. Anyway, John fails to note
that he could gain other employment, after retirement from the Postal Service, to
supplement his pension. Cindy cannot probably gain gainful employment.
John mentions that Cindy will receive $500 per month in Social Security
payments, while he will receive none. He asks this court to rely on these facts when
reviewing the maintenance award. Nevertheless, John failed to cite to the record for the
purported facts. RAP 10.3 governs the content of a brief on appeal. RAP 10.3(a)(5)
demands that any “[r]eference to the record must be included for each factual statement.”
This reviewing court need not search the record for applicable portions supporting a
party’s arguments. Mills v. Park, 67 Wn.2d 717, 721, 409 P.2d 646 (1966). Therefore,
we do not consider how receipt of Social Security benefits, or the lack of receipt, impacts
the parties’ respective welfare.
John Scinto writes in his brief that he nets $6,572 per month and, after paying rent
of $1,475 per month and his other expenses, he incurs a deficit of $616 a month. The
evidence does not support net income of $6,572 unless John deducts voluntary
contributions to his thrift savings plan and some other unidentified expense. The
evidence shows that John nets $7,200 each month. Like any other separating or
divorcing couple, the parties cannot live as economically comfortable apart as they did
together. Both John and Cindy may need to curtail spending in order to live within their
respective incomes.
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The trial court based its decision for spousal maintenance, if not its property
allocation also, in part on future health expenses. John Scinto complains that the court
entered no finding as to the amount of future expenses. Nevertheless, the undisputed
evidence established that Cindy always reached the catastrophic yearly cap such that she
annually paid $5,000 of unreimbursed expenses.
John Scinto also complains that the superior court erred in considering his
retirement pension when determining the maintenance award. Nevertheless, the parties
stipulated at trial that Cindy Scinto would receive one-half of John’s pension income
upon his retirement. John insists that Cindy will not receive less than $2,300 through her
half of the pension payment. John will receive a credit for all of the pension payment
against his $2,300 per month maintenance obligation. Thus, assuming the superior court
relied on the value of the pension when calculating the maintenance sum, the reliance
prejudiced John none. Regardless, the trial court entered no findings relating to the
pension. The record does not reflect that the court considered the pension value or
monthly payments when reaching a decision.
In the course of its oral ruling, the superior court pondered the potential impact of
Cindy Scinto’s ability to obtain health insurance on a later conversion of the proceeding
from legal separation to marital dissolution. Six months following a decree of legal
separation, either party may move the court for a mandatory conversion of the decree of
legal separation to a decree of dissolution. RCW 26.09.150(2)(a). John Scinto
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No. 37878-1-III
In re Marriage of Scinto
challenges the trial court’s maintenance and property distribution orders to the extent the
court predicated its ruling on this possible impact.
We disagree with John Scinto’s reading of the superior court’s comments with
regard to transforming the legal separation decree to a dissolution. John pledged not to
convert the decree. The trial court remarked that Cindy requested to convert the
proceedings to dissolution at the outset of trial. In turn, the court noted that conversion to
dissolution would jeopardize Cindy’s insurance for medical expenses. The trial court
warned that, if Cindy exercises her right to convert the proceeding to a dissolution, she
causes herself financial harm. But the court did not express any intent to increase the
maintenance award or property division in anticipation of such a possibility.
John Scinto principally relies on In re Marriage of Mathews, 70 Wn. App. 116
(1993), but misstates its holding. In In re Marriage of Mathews, this court found error
when the trial court awarded indefinite maintenance equivalent to one-half of Donald
Mathews’ income to his divorcing spouse when a qualified domestic relations order
already operated to transfer one-half of all retirement or disability income. This court
found error when the combination of the two orders would have deprived Mathews of his
half of the retirement income. Mathews does not stand for the proposition that a court is
forbidden from awarding maintenance that extends beyond retirement.
John Scinto also relies on Morgan v. Morgan, 59 Wn.2d 639, 369 P.2d 516
(1962), wherein the Supreme Court reversed an alimony award based entirely on the
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No. 37878-1-III
In re Marriage of Scinto
conjectural possibility that the wife might face future health problems. The Supreme
Court’s ruling does not prevent a trial court from considering a party’s existing health
problems when crafting a maintenance award. The Scinto separation court found Cindy
suffered extraordinary physical ailments that prevented her from any gainful
employment. The testimony and exhibits resoundingly supported this finding.
John Scinto does not provide any law demonstrating that the trial court’s
maintenance award constituted reversible error. He does not cite any law that precludes
the superior court from awarding maintenance that results in the supporting spouse
receiving less income than the needy spouse. He does not argue in the abstract that
$2,300 in monthly spousal maintenance is unfair.
The trial court considered the RCW 26.09.090 factors in crafting the maintenance
award, including the parties’ abilities to earn income, standards of living, ages, and
physical conditions. We discern no abuse of discretion.
Property Division
John Scinto next challenges the superior court’s division of the couple’s property
as unfair because Cindy received 79.2 percent of the value of the assets. John
particularly complains that the court awarded Cindy the family residence without any
equalization payment to him. Again, this opinion constitutes the minority view.
RCW 26.09.080 governs division of property in a legal separation:
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No. 37878-1-III
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In a proceeding for dissolution of the marriage or domestic
partnership, legal separation, declaration of invalidity, or in a proceeding
for disposition of property following dissolution of the marriage or the
domestic partnership by a court which lacked personal jurisdiction over the
absent spouse or absent domestic partner or lacked jurisdiction to dispose
of the property, the court shall, without regard to 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 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.
The listed factors are not exclusive and a court may consider other factors,
including the health and ages of the parties, their prospects for future earnings, their
education and employment histories, their necessities and financial abilities, their
foreseeable future acquisitions and obligations, and whether the property to be divided
should be attributed to the inheritance or efforts of one or both spouses. In re Marriage
of Urbana, 147 Wn. App. 1, 11, 195 P.3d 959 (2008). The court should ponder all the
circumstances of the marriage, both past and present, and evaluate the future needs of
parties. In re Marriage of Crosetto, 82 Wn. App. 545, 556, 918 P.2d 954 (1996). The
economic circumstances of each spouse on dissolution hold paramount concern. In re
Marriage of DeRuwe, 72 Wn.2d 404, 408, 433 P.2d 209 (1967); In re Marriage of
Urbana, 147 Wn. App. 1, 11 (2008).
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An equitable division does not require mathematical precision. In re Marriage of
Zahm, 138 Wn.2d 213, 218-19, 978 P.2d 498 (1999). On the one hand, the superior
court need not divide community property equally as long as the award is fair considering
all circumstances of the marriage. In re Marriage of Doneen, 197 Wn. App. 941, 949,
391 P.3d 594 (2017). On the other hand, if the dissolution decree results in a patent
disparity in the parties’ economic circumstances, this court will reverse the decision
because the trial court will have committed a manifest abuse of discretion. In re
Marriage of Urbana, 147 Wn. App. 1, 10 (2008); In re Marriage of Rockwell, 141 Wn.
App. 235, 243, 170 P.3d 572 (2007). Importantly, in a long-term marriage of twenty-five
years or more, the trial court should place the parties in roughly equal financial positions
for the rest of their lives. In re Marriage of Rockwell, 141 Wn. App. 235, 243 (2007).
The longer the marriage, the more likely the court will make a disproportionate
distribution of the community property. In re Marriage of Rockwell, 141 Wn. App. at
243. When one spouse is older, semiretired, and dealing with ill health, and the other
spouse is employable, the court does not abuse its discretion in ordering an unequal
division of community property. In re Marriage of Rockwell, 141 Wn. App. at 243.
Future earning capacity is a substantial factor to be considered by the trial court in
making a just and equitable property distribution. In re Marriage of Hall, 103 Wn.2d
236, 248, 692 P.2d 175 (1984).
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The relative physical condition of the parties is a material consideration in
rendering a property division. Shay v. Shay, 33 Wn.2d 408, 410, 205 P.2d 901 (1949);
Guarino v. Guarino, 29 Wn.2d 314, 324, 186 P.2d 927 (1947). In Shay v. Shay, the
Supreme Court approved a property allocation, over the objection of the husband,
because of the wife’s precarious medical condition that included hypertrophic
cardiovascular disease.
We will reverse a property division made during the dissolution of a marriage only
on a manifest abuse of discretion. In re Marriage of Muhammad, 153 Wn.2d 795, 803,
108 P.3d 779 (2005). We afford the superior court “broad discretion” in distributing the
marital property. In re Marriage of Rockwell, 141 Wn. App. 235, 242 (2007). A trial
court abuses its discretion if its decision is manifestly unreasonable or based on untenable
grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940
P.2d 1362 (1997).
John Scinto principally relies on In re Marriage of Urbana, 147 Wn. App. 1
(2008). In Urbana, this court held that the superior court abused its discretion when
awarding the husband twenty percent of the property and the wife eighty percent.
Nevertheless, we ruled that the abuse of discretion arose from the superior court’s failure
to state the basis for the property division, not that the division was necessarily unfair.
We remanded for the trial court to enter findings. In re Marriage of Urbana, 147 Wn.
App. 1, 13 (2008).
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Each dissolution must be decided on its unique facts. In In re Marriage of
Davison, 112 Wn. App. 251, 258-59, 48 P.3d 358 (2002), this court affirmed the superior
court’s property allocation. Although the husband received half of the parties’ total
assets, he complained that he only received twenty-five percent of the community
property. In In re Marriage of Tower, 55 Wn. App. 697, 701, 780 P.2d 863 (1989), this
court affirmed the grant to one spouse of sixty-three percent of the property because of
the unique circumstances.
I must agree with John Scinto that the superior court divided the marital property
disproportionately. I may even agree that the superior court’s allocation reaches the outer
boundary of a court’s discretion. Nevertheless, the division stayed within the border of
reasoned discretion because of the remorseless physical infirmities that beset Cindy, her
inability to work, her annual unreimbursed medical expenses, and the benefit resulting
from her continued occupation of the marital residence. The property division may best
permit the respective spouses to continue with a standard of living enjoyed before the
separation.
No decision presents a mathematical formula for deciding a fair and equitable
property division. No decision declares that the court may not award one spouse a
percentage of property beyond a maximum figure. No case holds that an eighty percent
allocation to one spouse necessarily exceeds the superior court’s authority.
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No. 37878-1-III
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John Scinto highlights that Cindy need not pay a mortgage. Nevertheless, she will
pay home insurance, property taxes, and maintenance on the residence. John will always
garner more than Cindy’s $2,300 per month spousal maintenance, which will permit him
to pay rent or purchase a modest home.
The superior court may have possessed discretion to order that Cindy Scinto own
one-half of the real property in fee simple and the other half as a life estate to return to
John or his heirs on Cindy’s death. The court asked the parties to comment on this
possible division. Nevertheless, John did not ask for a life estate, but rather argued
against the device. I observe that the couple’s son is the only natural heir of both parties
and will likely benefit from the home no matter who dies first. When neither party asks
for a life estate and both parties argue against a life estate, a trial court does not abuse its
discretion when denying the ownership vehicle.
John Scinto, in addition to and related to his contention that the superior court
abused its discretion, maintains that the trial court entered insufficient findings of fact to
facilitate appellate review of the property division. He requests remand for more specific
findings by the trial court. A trial court’s findings of fact must declare the ultimate facts
that justify its conclusions. In re Marriage of Tulleners, 11 Wn. App. 2d 358, 369, 453
P.3d 996 (2019). The trial court found that Cindy Scinto faced a litany of health
problems and would be unable to obtain income by her own efforts, but did not attempt to
assign monetary values to these circumstances. These articulated findings indicate that
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No. 37878-1-III
In re Marriage of Scinto
the trial court based the property division on permissible factors. John does not provide
law suggesting that the trial court was required to submit findings with greater specificity.
Although John Scinto assigned error to the superior court’s property allocation as
fair, John assigned no error to underlying findings of fact lying within the court’s oral
ruling. We encourage counsel to draft numbered written findings that echo the superior
court’s oral ruling for more efficient review for this court. Nevertheless, we know of no
reason to disregard findings emanating from an oral ruling. An appellate court may
utilize the trial court’s oral opinion to clarify formal findings. In re Marriage of Yates, 17
Wn. App. 772, 773, 565 P.2d 825 (1977). Unchallenged findings of fact are verities on
appeal. Rush v. Blackburn, 190 Wn. App. 945, 956, 361 P.3d 217 (2015).
A majority of this panel encourages, but does not require, the trial court to amend
the property award so it is less disproportionate. Along these lines, the majority
repeatedly writes that the superior court “could have” ordered otherwise. But the
majority never writes that the superior court “should have” ruled differently. If this court
does not direct the superior court to amend its property division, this court concludes that
the division may be fair. If the division may be fair, the superior court did not abuse its
discretion.
Attorney Fees
John Scinto argues that the superior court erred in awarding Cindy Scinto $15,000
in attorney fees, offset by the fees incurred by John in obtaining a restraining order
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No. 37878-1-III
In re Marriage of Scinto
against Cindy for publicizing malicious statements about John. After the deduction, the
court awarded Cindy the sum of $11,245.50.
The American Rule generally denies attorney fees to a party unless a contractual,
statutory, or recognized equitable exception applies. Dalton M, LLC v. North Cascade
Trustee Services, Inc., 20 Wn. App. 2d 914, 941, 504 P.3d 834 (2022). RCW 26.09.140
authorizes the superior court to award a party fees in a legal separation proceeding.
RCW 26.09.140 declares:
The court from time to time after considering the financial resources
of both parties may order a party to pay a reasonable amount for the cost to
the other party of maintaining or defending any proceeding under this
chapter and for reasonable attorneys’ fees or other professional fees in
connection therewith, including sums for legal services rendered and costs
incurred prior to the commencement of the proceeding or enforcement or
modification proceedings after entry of judgment.
Under RCW 26.09.140, the court should consider the need of the party requesting
the fees, the ability to pay the fees, and the general equity of the fee given the disposition
of the marital property. In re Marriage of Van Camp, 82 Wn. App. 339, 342, 918 P.2d
509 (1996). In determining fees, a court should also consider (1) the factual and legal
questions at issue, (2) the amount of time spent preparing the case, and (3) the value of
the property involved. In re Marriage of Foley, 84 Wn. App. 839, 846-47, 930 P.2d 929
(1997).
If the trial court makes an award, the court must state on the record the method it
used to calculate the award. In re Marriage of Ayyad, 110 Wn. App. 462, 473, 38 P.3d
34
No. 37878-1-III
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1033 (2002); In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994); In re
Marriage of Sanborn, 55 Wn. App. 124, 130, 777 P.2d 4 (1989). Although this rule
mentions only the calculation of the award and not the basis underlying the award, we
conclude the same rule should apply in the context of the basis of the award. Under other
circumstances, the trial court must furnish a record of its reasons for a decision in order to
accommodate appellate review of the decision. State v. Williams, 87 Wn.2d 916, 920,
557 P.2d 1311 (1976); Lawrence v. Lawrence, 105 Wn. App. 683, 686, 20 P.3d 972
(2001).
The superior court followed the language of RCW 26.09.140 by considering the
financial resources of the parties. In its oral ruling the court noted John Scinto’s earning
potential and Cindy Scinto’s lack of earning potential. The court did not grant all of
Cindy’s incurred fees, because it deemed the case should have settled and because Cindy
caused John fees by her defamatory statements. We recognize that the court did not cite
to the statute and suggested it need not articulate a reason for the award. Nevertheless, no
rule requires a citation to the statute as long as the court relies on the substance of the
statute. The court articulated its reasons for the award and the amount.
Attorney Fees on Appeal
In the final sentence of her brief, Cindy Scinto requests attorney fees on appeal
under RPC 18.1. We assume Cindy references RAP 18.1, which permits a party to
request fees or expenses if applicable law grants the right to recover attorney fees or
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No. 37878-1-III
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expenses. RAP 18.1(a). Cindy fails to devote a section of her brief to the request for fees
or expenses as required by RAP 18.1(b). Therefore, we deny the request for attorney fees
on appeal. Dalton M, LLC v. North Cascade Trustee Services, Inc., 20 Wn. App. 2d 914,
963 (2022).
CONCLUSION
We affirm the superior court’s maintenance award and award of reasonable
attorney fees to Cindy Scinto. We reverse the property division and remand to the
superior court for further review of the property allocation. We deny Cindy an award of
fees on appeal.
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.
36