Valerie D. Tollefsen, Res./cross-app. v. Gary A. Tollefsen, App./cross-res. ( 2013 )

FED
COURT OF A PEALS
DIVISIOP, II
2013 APR 15 AM 9:08
W
IN THE COURT OF APPEALS OF THE STATE " WASH Vl\
DIVISION II
In re the Marriage of No. 42334-
11- 1
VALERIE DAWN TOLLEFSEN,
Respondent and Cross Appellant,
and
GARY A.TOLLEFSEN, UNPUBLISHED OPINION
and Cross Re
BRINTNALL J. — Gary Tollefsen appeals the trial court's order requiring him to
QUINN-
continue paying postmajority child-
support for- daughter as well as -part of her postsecondary
his -
educational expenses. His former wife, Valerie Tollefsen, cross appeals and argues that the trial
court erred in requiring Gary to pay only half of their daughter's postsecondary educational
expenses at a public school. Because the trial court did not apply the proper standard in
modifying the original child support order, and because it issued inherently contradictory
conclusions of law, we reverse the modification order and remand for further proceedings
consistent with this opinion.
1 We refer to the parties by their first names for clarity
No. 42334 1 II
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FACTS
Gary and Valerie were divorced on February 5, 2003, and an order of child support
2003 order ") was entered on the same date. Their two children, Nathaniel and Lila, were then
20 and 11 years old. The 2003 order specified as follows with regard to Gary's support
obligations for Lila:
The obligor parent shall pay $
00
1, per month in child support for Lila until
000.
she [r] age 18 or graduates from high school, whichever comes last. If Lila
eaches
elects to pursue a post-secondary education, child support for her will continue
until she turns 23 years old.
Clerk's Papers (CP)at 3. Paragraph 3.4 provided for additional support:
1
In the event that the children pursue a post-secondary education then, in addition
to support provided for in paragraph 3. , Obligor parent shall pay the tuition,
5
book expenses and student fees, if any, for both children. If a child opts to take a
break," not continue his/ er post secondary education for a reason other than
and h
illness then the father is not responsible to resume his payments for tuition, book
expenses and student fees.
CP at 5. In addition, paragraph 3.8 required Gary to provide the children with health insurance
1
if such coverage became available through his employment or union membership and did not
exceed 25 percent of his basic childsupport obligation.
Gary paid support pursuant to the 2003 order without dispute until he filed a motion to
suspend Lila's child support in April 2010. He explained that Lila would turn 19 in August
2010, and that she had been attending Grays Harbor College and working toward both her
general education development (GED)certificate and college credits. Gary had learned recently,
however, that Lila was no longer attending either high school, GED classes, or community
2
Gary's obligation to pay Nathaniel's support is not at issue.
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No. 42334 1 II
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college. He sought to have his " egular and post-
r secondary" child support obligation suspended
until Lila reenrolled in school full time. CP at 14.
At the May 10 hearing on his motion.,
Gary argued that while the 2003 order provided for
continuing support if Lila took a break during college for health reasons, it did not so provide if
she took a break from high school. Valerie explained that Lila had transferred to Grays Harbor
College in 2007 to try to earn her GED, that she had been out of school since November 2009,
.
and that she had been trying to reenroll every quarter. The court ordered a subsequent hearing
with medical evidence and also ordered all current support to remain in effect until then. On
May 11, Valerie filed a petition/ otion for child support to continue. She asserted that Lila had
m
not been able to complete high school or earn her GED because of significant health issues, and
she sought an order keeping Gary's child support and postsecondary educational support
obligations in place through Lila's 23rd birthday.
On August 12, 2010, the court held an evidentiary hearing on Gary's motion to suspend
child support and Valerie's motion to continue child support. During the hearing, Gary asserted
that his motion to -
suspend nonmajority child support was moot because he had learned two days
earlier that Lila had recently completed her GED. Gary added that his obligation to pay
postsecondary child and educational support would begin when he had proof of Lila's full time
-
enrollment in college. Agreeing that any dispute about nonmajority support was moot, Valerie
explained that Lila was enrolled full time for the summer and would apply for full time
-
enrollment in the fall. The trial court addressed Gary's motion in its oral ruling:
ve
Y] u'withdrawn your motion, so I' not going to let you revisit it on the high
o m
school.... already said it was moot..It' moot. Candidly, I don't consider
You s
for purposes of dissolution decree is a GED equal to a high school education.
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No.42334 1 II
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If this matter had [come] before me about high school support and
dropping out and going on a GED, ... I would have terminated the support
obligation because she was not in high school.... I guess you gave up on
So
that, because I' not letting you bring it back. Your client has accepted the GED
m
to move into the postsecondary matter.
CP at 25 27. The court warned Lila that she would need to be enrolled full time at an approved
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college, university, or vocational school to continue receiving support.
In the written ruling that followed, the trial court stated that Lila had finished her GED
and that Gary had withdrawn his motion regarding "regular" child support as moot; that the
postsecondary provisions of the 2003 order applied to future child support; that the
postsecondary education must be full time and continuous for support to continue; that if Lila did
not attend or stopped attending school, the support obligations would cease 30 days thereafter;
and that Gary was responsible for $ , of Valerie's attorney fees.
2000
Lila then enrolled at the University of Phoenix, an online school. When Gary learned of
that enrollment, he filed a "Motion and Affidavit Re: Post secondary Support"on September 9,
2010. He asserted that he believed Lila would continue attending Grays Harbor College and that
no one had consulted him about her enrollment the far expensive online school. The
court set the matter for trial and ordered Gary to continue paying support pursuant to the 2003
order pending a final determination of his support obligations.
At the May 27, 2011 trial, Lila's physician testified that Lila has bipolar disorder and
anxiety issues for which he began treating her in 2006. Lila has seen several psychiatrists about
these conditions. Lila testified that she withdrew from local college classes because of anxiety
and depression and that she has done better at the University of Phoenix than at on-
campus
schools. She was not sure whether she quit high school in November 2009, but she thought she
waited a few months to start her GED.
E
No. 42334 1 II
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Valerie testified that Lila had been attending Grays Harbor College, albeit
unsuccessfully, before she enrolled at the University of Phoenix. Valerie explained that she had
not earned a paycheck since before her children were born and that her only income, independent
of the child support payments, is $ 0, 00 a year from her pension.
1 8
Gary testified that he had no input regarding Lila's decision to enroll at the University of
Phoenix. He objected to her decision because of the university's poor reputation, for -
profit
status, and high cost. Gary acknowledged that Lila was doing well at the university, that she did
not do well at Grays Harbor College, and that she has medical problems. He said he would not
mind paying postsecondary support if he approved of Lila'
s college choice. Gary is a
longshoreman with an annual income of $ 2, 00 and
8 0 a 401K plan. A Grays Harbor College
credentials evaluator testified that the University of Phoenix is an accredited school with a tuition
that is 46 percent higher than public school tuition.
that his first motion from April 2010 should control. He
In closing, Gary argued
appeared to adopt the trial court's earlier reasoning in arguing that his support obligation should
have terminated at that time Noting that he had not paid any of Lila's expenses at the University
of Phoenix, Gary asked to be responsible only for the costs of a community college and
completely excused from paying •child support. Valerie responded that Gary's previous motion
regarding nonmajority support was moot, that Lila had applied to the University of Phoenix six
days after the parties agreed the motion was moot, and that Gary should be ordered to pay
postsecondary support as set forth in the 2003 order.
In its oral ruling, the court said it had made a mistake in its August 2010 ruling and now
believed that Gary's support obligation stopped when Lila quit high school in November 2009, a
few months after she turned 18. The court added, however, that the parties had agreed the issue
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No. 42334 1 II
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was moot. The court also stated that it never had contemplated Lila's enrollment at the
University of Phoenix and never would have authorized support for that choice. The court
ordered Gary to continue to pay Lila's child support because of its fear that Gary's insurer would
drop her medical coverage without such support, and it also ordered Gary to pay half of Lila's
expenses for tuition and books at any public school institution. The court ordered each party to
pay its own fees.
At the subsequent hearing on the written findings and conclusions, Valerie argued that
2010 motion to suspend child support not still before the court. Gary
Gary's April was
responded that it was still "n some fashion"before the court and that even though the argument
i
regarding suspension of nonmajority support was moot, the facts regarding that support showed
that his overall support obligation should have terminated when Lila dropped out of high school.
Report of Proceedings ( June 3, 2011) at 6. The court stated that it had made a mistake
i
concerning the nonmajority support but that Gary had paid it. The court added that Lila had
obtained an equivalency degree and was entitled to postsecondary support, and it denied Gary's
motion for reconsi eration.
Gary appeals and argues that he is not required to pay support of any kind. Valerie cross
appeals and challenges the following findings of fact and conclusions of law:
2. Findings of Fact
2
4. By her own testimony, Lila Tollefsen stopped attending high school in
November 2009.
5. By her own testimony, Lila Tollefsen believed she had completed her
GED by April 2010 and did not take GED classes thereafter.
6. Between November 2009 and September 2010, Lila Tollefsen was not
attending or enrolled in any post secondary educational institution on a
full time basis.
Ce
No. 42334 1 II
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8. Valerie Tollefsen has presented evidence that Lila Tollefsen has suffered
from mental health issues which were not apparent at the time of entry of
the original child support order.
10. Gary Tollefsen was afforded no participation opportunity in this choice of
institutions. Gary Tollefsen objects to being required to pay for the
University of Phoenix for several reasons stated in his testimony. The
court finds Mr. Tollefsen's reasons to be entirely appropriate, and the
court would not have ordered Mr. Tollefsen to pay full tuition for the
University of Phoenix.
3. Conclusions of Law
1
1. Gary Tollefsen's obligation to pay post majority, non post -secondary child
support should have properly terminated when the minor child stopped
attending high school in November 2009.
2. Valerie Tollefsen's sic] did not timely file a motion to extend post
[
majority, non post-secondary child support, with the result that Gary
Tollefsen had no legal obligation to pay current child support of any kind
between November 2009 and at least September 2010.
3. The 2003 child support order did not properly create a post-
secondary
child support obligation due to the age of Lila Tollefsen at the time of
entry of that order, 11 years of age.
5. The post-
secondary education requirements of the original child support
order are reaffirmed, but the father should not be required to pay any of
the cost of the University of Phoenix due to the various appropriate
considerations raised in his testimony.
6. The father should be required to pay one half of the tuition and fees an - -
-
book expenses for any public school which Lila Tollefsen might enroll in
and attend commencing September 2011.
CP at 179= 0. The court also concluded that it is in Lila's best interest to remain covered by
8
Gary's medical insurance and to pursue her education. The conclusions of law did not refer to
the fact that the court also ordered Gary to continue paying regular child support.
DISCUSSION
APPEALABILITY
Gary's notice of appeal challenges the trial court's'orders of May 10, 2010; August 12,
2010; October 18, 2010; and June 3,2011. Valerie challenges Gary's ability to appeal the 2010
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No. 42334 1 II
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orders and argues that we lack jurisdiction to consider the issues these orders resolved. See
Moore v. Wentz, 11 Wn. App. 796, 800, 525 P. d 290 (1974) where notice of appeal not filed
2 (
within 30 days of entry of order or within 30 days of timely motion made subsequent to
judgment, Court of Appeals lacked jurisdiction to entertain appeal of order).We reject Valerie's
jurisdictional challenge because of the ongoing nature of this support obligation dispute. For the
reasons set forth below, however, we decline to reach the merits of most of the issues raised.
ORDER ON POSTMAJORITY CHILD SUPPORT AND POSTSECONDARY EDUCATIONAL EXPENSES
The order requiring Gary to pay half of Lila's expenses at a state institution modifies the
postsecondary support provisions in the 2003 support order, which contained no such limitation
on Lila's ability to receive postsecondary educational support. Valerie argues that the trial court
improperly modified the 2003 support order because Gary never filed the petition and financial
worksheets required for such modification under RCW 26. 9.
175.
0
We review a modification of child support for abuse of discretion. The challenging party
must demonstrate that the trial court's decision is manifestly unreasonable, based on untenable
grounds, or granted for untenable reasons. In re Marriage of Schumacher, 100 Wn.App. 208,
211, 997 P. d 399 (2000).A trial court also violates the abuse of discretion standard if it bases
2
its ruling on an erroneous view of the law. In re Marriage of Choate, 143 Wn. App. 235, 240,
3
Valerie also argues that Gary improperly extended the appeal period by inserting old orders
into the new order. The findings and conclusions do not address previous orders, however, and
we reject this claim of error.
4
These issues include whether Gary's entire support obligation ended because Lila dropped out
of high school or because Valerie did not seek postsecondary support in a timely manner, and
whether Gary's postsecondary support obligation was void ab initio because of Lila's age at the
time of the 2003 order.
E'?
No. 42334 1 II
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177 P. d 175 (2008).In addition, substantial evidence must support the trial court's findings of
3
fact. Schumacher, 100 Wn. App. at 211.
RCW 26. 9.
175(
1 provides that "[ proceeding for the modification of an order of child
0 ) a]
support shall commence with the filing of a petition and worksheets. The petition shall be in the
form prescribed by the administrator for the courts."A decree is modified when a party's rights
are extended beyond or reduced from those originally intended in the decree. In re Marriage of
Jarvis, 58 Wn. App. 342, 345, 792 P. d 1259 (1990).
2
Gary argued below that if his support obligation did not terminate, the court should
modify it based on the change of circumstances that included Lila's health issues as well as her
decision to attend the University of Phoenix. But Gary did not comply with RCW 26. 9.in
175
0
seeking modification, and we reverse the modification on this basis. See In re Marriage of
Sagne 159 Wn. App. 741, 744 45,247 P. d 444 (affirming child support modification because
- 3
trial court had continuing jurisdiction to modify support and father complied with requirements
of RCW 26. 9.
175),
0 review denied, 171 Wn. d 1026 (2011).
2
In addition to complying with RCW 26. 9. the party seeking modification of a
175
0 -
support obligation generally must.show a substantial change of circumstances since the decree's
entry that was not contemplated at the time of the decree.' RCW 26. 9. re Marriage of
170(
1 In
0 );
Arvey, 77 Wn. App. 817, 820, 894 P. d
2 1346 (1995). The trial court's findings refer to two
changes in circumstance: Lila's health and her decision to attend the University of Phoenix. The
5
Valerie challenges several of the findings of fact. We do not address these challenges,
however, because they are not supported by adequate argument and because they are irrelevant
to both the relief granted and our resolution of this case. In re Marriage ofAngelo, 142 Wn.
App. 622, 628 n. , 175 P. d 1096, review denied, 164 Wn. d 1017 (2008).
3 3 2
The exceptions to this requirement do not apply here. RCW 26. 9.
b).
170(
1
0 )(
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No.42334 1 II
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modification imposed, however, does not respond to any change in Lila's health..Rather, it
appears to rest solely on her college choice. No express limitations were placed on that choice in
either the 2003 order or in the trial court's order of August 2010. In August, the court instructed
Lila that continued support depended solely on her full time enrollment at an accredited school.
-
The University of Phoenix is an accredited school, and Lila's decision to attend the University of
Phoenix rather than the expected Grays Harbor College does not constitute a substantial change
of circumstance sufficient to justify the significant support modification the trial court imposed.
The trial court concluded that it was in Lila's best interest to continue her education, but
the "best interests of the child" standard does not govern a support modification. We also
observe that the trial court's order requiring Gary to pay regular child support as well as half of
Lila's college expenses is inconsistent with its conclusion that Gary's support obligations
terminated in 2009 and with its conclusion that the 2003 order did 'not properly create a
postsecondary support obligation due to Lila's age. We cannot resolve.these inconsistencies, so
we reverse the order modifying Gary's child support obligations and remand for new
proceedings
p- g that with the requirements of RCW 26. 9.and .175. Any resulting.order
1
pY q 170
0
must rest on findings that support consistent conclusions regarding Gary's support obligations.
ATTORNEY FEES
Valerie argues that the trial court erred in declining to award her attorney fees and that
she is entitled to such an award on appeal.
Valerie first contends that she is entitled to fees under RCW 26. 8.which provides
160
1
that "[ n any action to enforce a support or maintenance order under this chapter, the prevailing
i]
party is entitled to a recovery of costs, including an award for reasonable attorney fees."Without
citing the record, Valerie argues that her " otion and Declaration to Present Oral Testimony on
M
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No. 42334 1 II
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Motion for Payment of Child Support and Postsecondary Support" was brought consistent with
RCW 26. 8. Br. of Resp't at 23. As Gary asserts, there is no such pleading in the record.
160.
1
Valerie did file 'a " etition/ otion for Child Support to Continue" in May 2010, and the court
P M
awarded her fees in its August ruling. The record does not contain any subsequent action or
pleading to enforce the support order that would warrant an additional award of fees under RCW
160.
26. 8.
1
Valerie also contends that the trial court should have awarded her fees under RCW
26. 9. and because of Gary's
140
0 intransigence. RCW 26: 9.allows for such awards in
140
0
family law cases:
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 ofjudgment.
The award of attorney fees under this statute is within the sound discretion of the court
and depends on the need of the recipient and the other party's ability to pay. In re Marriage of
Ochsner, 47 Wn. App. 520, 528, 736 P. d 292, review denied, 108 Wn. d 1027 (1987). The
2 2
court may, however, alternatively award fees if one spouse's intransigence caused the spouse
seeking a fee award to require additional legal services. In re Marriage of Crosetto, 82 Wn.
App. 545, 563, 918 P. d 954 ( 1996). "Intransigence
2 is the quality or state of being
uncompromising." Schumacher, 100 Wn. App. at 216. Intransigence is demonstrated by
litigious behavior, bringing excessive motions, or discovery abuses. In re Marriage of Wallace,
111 Wn. 3 review
45 P. d 1131 ( 2002), denied, 148 Wn. d
2 1011 ( 2003). If
App. 697, 710,
11
M
No. 42334-
11- 1
intransigence is established, the financial resources of the spouse seeking the fees are irrelevant.
Crosetto, 82 Wn. App. at 564.
Gary's income is considerably greater than Valerie's income, but RCW 26. 9.does
140
0
not require an award of fees where one spouse's income exceeds the other's income. The trial
court was clearly troubled by Lila's unanticipated decision to attend the University of Phoenix.
The trial court declined to award either party fees, and this decision does not appear to be an
abuse of discretion under RCW 26. 9. Moreover, Lila's decision to attend the University of
140.
0
Phoenix, after she implied that she would attend a far less expensive community college, was the
impetus for Gary's continued support challenge and undermines Valerie's claim of intransigence.
Valerie also contends that RCW 26. 9.entitles her to attorney fees on appeal, as the
140
0
statute adds that.u] any appeal, the appellate court may, in its discretion, order a party to
"[ pon
pay for the cost to the other party of maintaining the appeal and attorneys' fees in addition to
statutory costs."In considering such as request for fees under RCW 26. 9.we consider the
140,
0
arguable merit of the issues raised and the parties' financial resources. In re Marriage ofBooth,
114 Wn. d 772;791 P. d 519 (1990). Appellate courts have granted attorney fees under -
2 2 -
RCW 26. 9.when one party provided an affidavit of need as RAP 18.1 requires and the
140
0
other party did not submit a contravening affidavit. See In re Marriage of Ambrose, 67 Wn.
App. 103, 110, 834 P. d 101 (1992).
2
But Valerie did not file an affidavit showing both her need and Gary's ability to pay as
RAP 18.1 requires. In re Marriage of Hoseth, 115 Wn. App. 563, 575, 63 P. d 164, review
3
denied, 150 Wn. d 1011 (2003).Consequently, we deny her request for attorney fees on appeal.
2
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No. 42334-
11- 1
Reversed and remanded.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
040,
2.6.it is so ordered.
0
We concur:
fOAIANSON, A. .
J.
C
BJ , J.
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