Tuesday, April 22, 2008

If Your Spouse Is a Child Abuser, Watch Out

A new case from the Washington State Court of Appeals, Division I, Clayton v. Wilson and Wilson, No. 57891-0-I, holds that a marital community is liable for the sexual assaults that one spouse committed against a child while managing the community’s assets.

Mr. Wilson sexually assaulted a minor child some forty times over a period of a few years after providing the Child with yard work at the Wilson’s rental properties. Mr. Wilson’s modus operandi was as follows: first, he would invite the boy to one of his rental properties to perform yard work. The boy would then perform the yard work. Mr. Wilson would then take the boy inside, molest him, and then pay him for the yard work.

The boy finally disclosed the abuse after he was eighteen. Upon disclosure, the police arrested Mr. Wilson and Mr. Wilson confessed.

Essentially the day after Mr. Wilson was released, Mr. and Mrs. Wilson retained a lawyer and agreed to get divorced. Working over the weekend, the lawyer drafted a separation agreement that transferred approximately $1.6 million, or 90 percent of all the community assets, to Mrs. Wilson. This agreement was then incorporated into the decree of dissolution.

Many months later, Mr. Wilson pled guilty and was sentenced to 130 months in prison. Several months later yet, the boy filed a civil law suit. At the bench trial, the court found that the sexual assaults occurred in the course of managing the community business and that, therefore, both Mr. Wilson and the marital community were liable. Total damages were about $1.4 million.

The first issue here was whether the community could be liable for the secret, intentional misconduct of one of its members.

The second issue was whether the community could be liable even after it was dissolved.


Analogizing to employment law, where the employer is liable for the torts of the employee, the court found that the community, Mr. Wilson’s employer, was liable for actions of it employee, Mr. Wilson, even though Mr. Wilson sexually assaulted the boy in secret and with intent.

Finding the community liable, of course, was only half of the boy’s battle. You can’t squeeze blood from a turnip and you can’t squeeze money from a defunct community. Mrs. Wilson had money, but the community did not. The boy needed to somehow undue the divorce and restore the marital community.

He did so with a theory of fraudulent transfer. The Court held that the separation agreement that transferred most of the money to Mrs. Wilson was invalid for lack of consideration. Assuming that an equitable distribution would have been 50 / 50, Mr. Wilson gave up 40 % of his assets without getting anything in exchange. Therefore, for the purposes of the boy’s claim, the community was never dissolved and it assets were still available to satisfy the judgment.


The moral here is don’t be greedy. It makes lots of sense to divorce your spouse the moment you discover that he has been sexually abusing children for the last several years. However, don’t take advantage of it. If Mrs. Wilson had settled for her equitable share of the community property, say, 50%, the Court undoubtedly would have found that the separation contract was supported by consideration. The decree of dissolution, therefore, would have been valid and her money would have been shielded.

Monday, April 7, 2008


A recent opinion from Division II, Hulscher v. Hulscher, docket # 35157-9, 4/01/2008, holds that a provision for non-modifiable maintenance is valid if embedded in a decree of dissolution. If nothing else, the decision illustrates the perils of pro se representation. (The father was pro se. The mother was represented.)


The father agreed to pay what appears to be excessive maintenance. Maintenance was set at $1,100 per week, minus child support. Maintenance terminated at the death or remarriage of the mother. Otherwise, it was non-modifiable. In addition, the father paid for the older child’s college education at a private university and the younger child’s education at a private high school. He also paid health insurance for himself, the mother, and the children.

To make these payments, the father worked 100 hours per week as a longshoreman. The opinion does not indicate whether the mother, a home-maker whose children were no longer living with her, made any attempts to find employment or to become employable.


To me, the maintenance provision is unfair for at least two reasons. First, it is based on what the father can supposedly pay and bears no relationship to what the mother needs. Indeed, the total amount the father pays for maintenance and child support is constant, $1,100 per week or nearly $4,800 per month.

However, the portion that goes to the mother changes based on the amount that goes to the children. The original child support payment was nearly $2,600 per month. Thus, the mother got $2,200 per month when the children are living with her. After the children age-out and child support is no longer due, the mother gets $4,800. This is not sensible, the mother’s needs should not go up after the children leave, they should go down.

The maintenance provision also appears to be unfair because it does nothing to encourage the mother to join the work force. I mentioned that the maintenance award is supposed to be the product of the mother’s needs and the father’s ability to pay. It is also supposed to be related to the length of time it should take for the mother to gain employment and the length of the marriage. The mother should receive maintenance long enough to give her time to get a job and maybe the education that she forewent during her marriage.

At time the father filed his petition to modify or vacate the decree, the mother was a home maker with one child in college and the other child living with the father. Thus, she was in an ideal position to attend college or job training and find a job. Indeed, the commissioner who originally heard the petition to modify the maintenance provision of the decree phased out the maintenance over time as follows:

1st 4 years: 100%
next 2 yrs: 75%
next 2 yrs: 50%
next years: 0%

The commissioner reasoned as follows; 1) The mother should be able to obtain a college degree or equivalent within four years; 2) As the father got older, it was not reasonable to expect him to continue working 100 hours per week, especially given the physical requirements of his job.

The trial court affirmed, but the appellate court reversed, holding essentially that non-modifiable means non-modifiable and that non-modifiable maintenance provisions are specifically allowed for by statute. Legally, it was the correct ruling. However, based on the facts, the ruling seems harsh.


You can’t fault the court for following the law. However, you can fault the father for not hiring an attorney. I doubt a competent attorney would have agreed to those maintenance provisions. A few thousand dollars in attorney’s fees at the front end of the divorce would probably have saved scores of thousands of dollars post divorce.