In Re The Marriage Of Vernon R Blank, Ii, V Amanda Blank ( 2014 )

FILED
QI#, ZT OF APPEALS
IN THE COURT OF APPEALS OF THE STATE OF WASHINGT& I S IM Il
20Ili JAN 2 AM 9: 17
DIVISION II
In re the Marriage of: STA S Imo'.
Sij( N ON
No. 42959 -4 -II
VERNON RUSSELL BLANK II, Y
I EP " Y
Respondent,
V.
J
AMANDA L. BLANK, UNPUBLISHED OPINION \,
PENOYAR, J. — Amanda Blank and Russell Blank both appeal the trial court' s
modification of the child support order and the order on postsecondary educational support
Amandal
relating to their dissolution. contends the trial court rested its decisions on
unreasonable or untenable grounds when it: ( 1) failed to include all Russell' s income when
calculating his child support obligation, ( 2) determined their younger son Ryan was not enrolled
in high school during certain periods, ( 3) did not make Russell pay his full share of their elder
son Adam' s postsecondary educational expenses at the University of Idaho, ( 4) ordered that
Ryan' s postsecondary costs be shared by Ryan, Amanda, and Russell in equal one third shares,
5) - failed to - include - Adam' s Sylvan -Learning - Center- expense in Russell' s --postsecondary - -
educational support obligation, and ( 6) failed to award her reasonable attorney fees. On cross
appeal Russell argues the trial court rested its decisions on unreasonable or untenable grounds
when it: ( 1) calculated Russell' s net monthly income to include some income from his spouse,
2) ordered that Russell pay child support for Ryan beyond June 2010, Ryan' s anticipated date of
graduation from high school, ( 3) required Russell to contribute to Ryan' s and Adam' s
postsecondary education, and ( 4) failed to award him reasonable attorney fees.
1
We use the parties' first names for clarity and intend no disrespect.
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First, we hold that the trial court erred when it calculated Russell' s income and remand
for the trial court to include all personal expenses paid by Russell' s business in his income.
Second, we hold the trial court erred by finding Ryan not enrolled in high school for the months
of February, March, July, and August 2010 and remand for the trial court to revise Russell' s
child support obligation. Third, because the trial court must base the postsecondary educational
support obligation on the relative income of the parties, we remand for the trial court to
apportion the two thirds share of Ryan' s postsecondary expenses allocated to Russell and
Amanda based on their respective incomes. Fourth, we hold the trial court erred when it failed to
find Russell intransigent and failed to award Amanda reasonable attorney fees and remand for an
entry of reasonable attorney fees for Amanda. Finally, we award Amanda reasonable attorney
fees on appeal. Regarding the remaining issues, we hold the trial court reasonably exercised its
discretion when it ordered child support and postsecondary support.
FACTS
I. INITIAL PROCEEDINGS
Russell and Amanda divorced on December 29, 1993. In re Marriage of Blank, No.
39483 -9, 2010 WL 4308204, at * 1 ( Wn. App. 2010). They have two children, Adam, who was
born on April 17, 1989, and Ryan, who was born on November 11, 1991. Blank, 2010 WL
4308204, at * 1. Russell owns his own photography business, Perler Photography, Inc., which his
wife, Leann Blank, helps him manage. On July 31, 2008, Russell filed a petition for
modification of child support, requesting that the court ( 1) enter a new order for child support
payments, ( 2)- order repayment or credit for overpaid child support, and ( 3) award alternating
years for tax exemptions between Russell and Amanda. Blank, 2010 WL 4308204, at * 1. On
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December 29, 2008, Russell filed a motion for an order setting child support for Ryan, a minor
child at the time. Blank, 2010 WL 4308204, at * 1.
The superior court commissioner issued a letter ruling concluding that Amanda' s income
was $ 4, 738 and Russell' s was $ 7, 600, making Russell' s support obligation for Ryan. $750 per
month. Blank, 2010 WL 4308204, at * 1. The superior court commissioner denied both parties'
requests for attorney fees. Blank, 2010 WL 4308204, at * 1.
After the trial court denied Amanda' s and Russell' s motions for revision, Amanda
appealed to this court, arguing that the trial court failed to conduct a de novo review of the record
before the commissioner which resulted in an improper calculation of Russell' s income. Blank,
2010 WL 4308204, at * 1. Amanda further argued that the trial court erred when it did not award
her reasonable attorney fees. Blank, 2010 WL 4308204, at * 1. We held that:
T] he record of the trial court proceedings does not contain the trial court' s
explanation of its basis for denying Amanda' s motion to revise the final order for
child support and fails to demonstrate how it calculated [ Russell' s] child support
obligation. Because the record does not adequately support the trial court' s ruling
as to [ Russell' s] income, its rulings regarding tax exemptions and attorney fees
are not supported by substantial evidence.... Accordingly, we vacate the trial
court' s final order for child support and remand for further proceedings.
Blank, 2010 WL 4308204, at * 1.
II. PROCEEDINGS ON REMAND
On remand, the trial court undertook a complete review of all documents, pleadings,
transcripts, letter rulings, and sealed financial records. The trial court also heard reargument
regarding the original motions for revision filed by each party as to the child support order. The
trial court reviewed the record before the trial court commissioner de novo and issued a letter
ruling on March 22, 2011.
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In the letter ruling, the trial court found that Russell' s monthly income was $ 7, 708. 12 and
provided detailed findings supporting that number. The trial court started with Russell' s 2008
W - income
2 with a credit given for $ 2, 000. 00 for his voluntary pension payments. The trial
court then allocated 25 percent of Leann' s net monthly income to Russell because Russell " has
discretion to set salary for himself and his spouse [ and] Leann Blank' s salary is higher than
Russell' s], even though he owns the company." Clerk' s Papers ( CP) at 1273. The trial court
also found that 50 percent of Perler' s 2008 business expenses, plus a $ 1, 835. 16 shareholder loan,
should be considered personal expenses of the marital community, less " the $ 250 per bi- weekly
paycheck reimbursed by Leann Blank to the corporation for personal expenses incurred for the
benefit of the marital community," totaling $ 38, 204. 55. CP at 1274. The trial court then
designated 50 percent of the $ 38, 204.55 to Russell, for a total of $ 19, 102. 28 for the year and
1, 591. 86 per month. The trial court also found that 20 percent of Perler' s monthly vehicle
expense should be attributed as Russell' s personal expense, in the amount of $165. 24 per month.
Applying these calculations to the child support worksheet, the trial court found that Russell' s
net monthly income was $ 7, 708. 12.
Based on his net monthly income and the child support guidelines in effect as of May
2009, Russell' s child support obligation for Ryan was $ 755. 16 per month, with an effective date
of August 1, 2008. The percentages set in the child support worksheet were 62 percent for
Russell and 38 percent for Amanda. The trial court found that the parties were required to pay
for Ryan' s uninsured medical expenses or other extraordinary expenses at the stated percentages.
The trial court did not revise the commissioner' s ruling denying attorney fees. Looking
solely at Russell' s conduct in the current petition and related motions, the trial -court found that
Russell did not engage in fraud or intransigence, in part, because he had " disclosed over 2000
M
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pages of financial. documents in response to discovery requests." CP at 1276. The trial court
also found that each parry should bear their own fees under RCW 26.09. 140 because Russell did
2
not have the ability to pay the fees requested, nor did Amanda have the need. The trial court
reserved making a decision on medical insurance, postsecondary educational support, and for
over -
payment and /or back support until further presentation.
III. MOTIONS FOR RECONSIDERATION
Amanda moved for reconsideration of the trial court' s letter ruling, arguing that the trial
court ( 1) overlooked certain items when calculating Russell' s 2008. income, ( 2) erred by not
finding that Amanda is entitled to attorney fees, and ( 3) erred by finding that Russell did not
engage in fraud or intransigence. The trial court held a hearing on Amanda' s motion for
reconsideration and to enter an order on child support. The trial court granted Amanda' s motion
for reconsideration in part and modified Russell' s income slightly to correct a mistake in its letter
ruling that stated Leann made biweekly payments of $250 to Perler, when she actually made
semimonthly payments of $ 250 to Perler. This modification, however, did not change the
monthly child support payment. The trial court denied the remainder of Amanda' s motion.
Russell moved for reconsideration of (1) the court' s determination that income generated
by Leann be imputed to Russell in calculating his net monthly income, and ( 2) the orders that
2 The trial court also found that
T]he Petition was prompted by and necessitated by the older child reaching the
age of majority and changes in the law affecting extrapolation. This court finds
that the Petition was brought in good faith[.] Finally, this court is also mindful
that Amanda Blank has made no showing that she actually paid any attorney' s
fees to Mr. Berry and therefore, has not made the requisite showing of need.
CP at 1276.
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require Russell to continue paying any form of child support for Ryan because he is beyond age
18 or beyond what would have been his normal graduation date. Amanda also moved for a
determination of postsecondary support for Adam and Ryan.
At a hearing on the motions, the trial court determined it was appropriate and fair to
attribute some of Leann' s income to Russell. The trial court, however, revised the calculation
used to determine how much of Leann' s income to attribute to Russell and also modified the
shareholder loan figure considered as income, which resulted in a new child support payment
3
amount of $772. 21.
IV. RULINGS ON CHILD SUPPORT AND POSTSECONDARY SUPPORT
On June 15, 2011, the trial court orally ruled Russell was not required to pay child
support for Ryan for the months of February, March, July, and August 2010 because it found
Ryan was not enrolled in high school for those months. Ryan signed up for Running Start
classes at Pierce College in January 2010, but the trial court found he was not enrolled because
he received no credits for the classes and was not otherwise in high school.4 The trial court
found that Ryan was not enrolled in July and August 2010 because he was 18, he had not
graduated from high school, and he was not earning any credits. With the exception of the
months of February, March, July, and August 2010, the trial court also found that Russell must
3
To determine of the amount of Leann' s income that should be imputed to Russell, the trial court
took both Russell' s and Leann' s gross salaries and averaged them to come up with a difference
of $569. 75 a month. The trial court did not deduct the $ 250. 00 semimonthly payments with the
new calculation. The trial court still attributed 25 percent of the business expenses as Russell' s
personal expenses and factored in a $ 12, 000. 00 shareholder loan.
4
Ryan turned 18 on November 11, 2009, which was the fall term of his senior year. He would
have graduated in June of 2010 if he had graduated on track. The trial court noted that Ryan
struggled academically but that there was no question Amanda was entitled to child support for
Ryan through his 18th birthday. So the trial court looked at what Ryan was doing at the end of
fall term 2009, going into 2010.
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reimburse Amanda for Ryan' s medical expenses, except for chiropractic expenses, based on the
percentage rate specified on the child support worksheet.
Regarding Ryan' s high school education expenses, the trial court determined Russell did
not have to reimburse any of the Pierce College Running Start fees because Ryan did not pass
any class or receive any credit at Pierce College. The trial court determined that Russell must
reimburse Amanda for bookstore and other charges for Ryan' s Running Start classes at Clover
Park at the percentage rate specified on the child support worksheet. The trial court required
Ryan to share in the cost of the tools Amanda purchased for his Clover Park classes at a one-
third share, with the remaining two -thirds being shared between Russell and Amanda at the
percentage rate. Regarding Ryan' s postsecondary support, the trial court held that Ryan should
contribute to the cost of his postsecondary education and allocated one -third of the expense of
his AA degree to Ryan, one -third to Russell, and one -third to Amanda based on the standards set
in RCW 26. 19. 090. The trial court further noted that Russell' s postsecondary support obligation
was contingent on Ryan maintaining good academic standing according to the institution.
The trial court then addressed medical expenses and postsecondary support for Adam.
The trial court ruled the amount Russell already paid toward Adam' s semester at the University
of Idaho in the fall of 2008, for which he received no credits, was adequate. The trial court also
did not order support for the 2009 winter and spring quarters at Pierce College because Adam
was not in good academic standing because his cumulative grade point average was less than a
2. 0. Adam had improved by fall of 2009 and, although ordered retrospectively, the trial court
ordered postsecondary support beginning in the fall of 2009 with Adam, Russell, and Amanda
each contributing one -third. Absent extraordinary circumstances, the trial court held this support
was to end in the spring of 2012, when Adam would turn 23. The trial court also ordered Russell
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to pay one -third of the past unreimbursed medical expenses, except chiropractic and massage
expenses, for the months Russell must pay postsecondary support. Going forward, however,
Russell had no obligation to pay unreimbursed medical expenses unless it was an extraordinary
expense.
V. FURTHER MOTIONS FOR RECONSIDERATION
Amanda moved for reconsideration of the trial court' s June 15, 2011 oral ruling arguing
that ( 1) Ryan had been continuously enrolled in high school since he was 18, ( 2) the trial court
erred in excluding chiropractic and massage treatment as a reimbursable expense, ( 3) the trial
court erred when it looked at postsecondary support from the vantage point of the June 2011
evidentiary hearing, rather than from August 1, 2008, and ( 4) the trial court erred when it ruled
that postsecondary education and healthcare expenses would not be based on each party' s share
of their combined monthly incomes.
The trial court held a hearing on August 5, 2011 regarding Amanda' s motion for
reconsideration and entered an amended final order of child support on September 8, 2011. The
trial court did not reconsider the four months ( February, March, July, and August 2010) it did not
allow child support for Ryan because " enrollment is something more than just simply signing
up." CP at 2120. The trial court, however, allowed unreimbursed medical expenses for those
months, including chiropractic expenses. Going forward, the trial court believed it was
appropriate to allocate some postsecondary support to Ryan and thus did not reconsider its
decision to allocate one -third to Ryan, one -third to Russell, and one -third to Amanda.
The trial court did not reconsider its decision that Russell was not obligated - make any
to
further payment for Adam' s semester at the University of Idaho or his first two quarters at Pierce
College. However, because the order on Adam' s postsecondary support was retroactive, the trial
42959 -4 -II
court did reconsider its decision and ordered that only Russell and Amanda share in Adam' s
postsecondary expenses based on the proportionate rate. Going forward, until Adam turned 23,
the trial court ordered that the share remain proportionate between Russell and Amanda. The
trial court also allowed Russell to get a credit for any class that he paid for that Adam withdrew
from or had to retake.
Russell moved for reconsideration of the September 9, 2011 order arguing that the June
15, 2011 order required him to pay approximately $ 9, 000 to Amanda and the amended order
required him to pay an additional $ 20, 000, which he did not have. Russell also argued that
Amanda included a $ 4, 300 Sylvan Learning Center expense in the judgment, which the trial
court did not approve. The trial court denied Russell' s motion for reconsideration except that it
held Russell was not responsible for the Sylvan Learning Center expense. Amanda timely
appealed and Russell timely cross appealed.
ANALYSIS
I. STANDARD OF REVIEW
We review a trial court' s modification of child support to determine if the trial court' s
decision rests on unreasonable or untenable grounds. In re Marriage ofMcCausland, 159 Wn.2d
607, 615 -16, 152 P. 3d 1013 ( 2007) ( quoting In re Marriage ofLeslie, 90 Wn. App. 796, 802 -03,
954 P. 2d 330 ( 1998)). We also review the trial court' s modification to determine if it is based on
an erroneous view of the law. In re Marriage of Choate, 143 Wn. App. 235, 240, 177 P. 3d 1752008) ( quoting Wash. State Physicians Ins. Exch. & Ass' n v. Fisons Corp., 122 Wn.2d 299, 339,
858 P. 2d 1054 ( 1993)). Further, the trial court' s findings of fact must be supported by
substantial evidence. In re Marriage of Schumacher, 100 Wn. App. 208, 211, 997 P.2d 3992000). Substantial evidence is that which is sufficient to persuade a fair -
minded person of the
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truth of the declared promise. In re Marriage of Hall, 103 Wn.2d 236, 246, 692 P. 2d 1751984). We may not disturb findings of fact supported by substantial evidence even if there is
conflicting evidence. In re Marriage of Lutz, 74 Wn. App. 356, 370, 873 P. 2d 566 ( 1994)
quoting Henery v. Robinson, 67 Wn. App. 277, 289, 834 P.2d 1091 ( 1992)).
II. RUSSELL' S 2008 INCOME
Amanda argues the trial court erred when it failed to include all Russell' s income when
calculating his share of the child support obligation. Specifically, she argues the trial court erred
1) by treating only 25 percent of Perler' s business expenses as Russell' s income, ( 2) when
calculating the amount of shareholder loans from Perler that should be included in Russell' s
income, and ( 3) by disregarding Russell' s unreported cash. Russell does not directly respond to
these arguments and instead contends the trial court erred by imputing Leann' s income to him
and by attributing Perler' s business expenses as his personal expenses in violation of RCW
26. 19. 071.
A. Russell' s Personal Expenses
Russell admitted that Perler paid certain personal expenses for him and Leann. Amanda
argues that because Perler is Russell' s separate property, the trial court erred when it determined
that only half of Russell' s and Leann' s personal expenses that Perler paid should be attributed to
Russell as his income. Thus, Amanda argues 100 percent of what the trial court stated were
personal expenses should be considered Russell' s income. Russell does not directly refute
Amanda' s argument and instead responds only that the trial court erred by failing to state which
expenses it deemed personal expenses. Because Perler. is Russell' s separate property, 100
percent of the personal expenses paid by this business should be treated as his income.
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4
When determining a parent' s child support obligation, the trial court must consider all
income and resources of each parent' s household. RCW 26. 19. 071( 1). The trial court should
consider only the income of the parents of the children whose support obligation is at issue and
should not include the income of a new spouse in its calculation of gross income. RCW
26. 19. 071( 1), ( 4). A parent' s separate property and the profits from that property remain that
parent' s separate property so long as it can be traced and identified. RCW 26. 16. 010; In re
Marriage of Chumbley, 150 Wn.2d 1, 6, 74 P. 3d 129 ( 2003). If the parent is a business owner
and has a business " expense account[] which do[ es] more than actually reimburse for true
business expenses" then the parent business owner has an increased ability " to pay maintenance
because the owner is spared from paying the[] expenses on a personal basis [ and] ... [ t]here are
a number of such items buried in business financial statements that create factual and
discretionary issues." 20 KENNETH W. WEBER, WASHINGTON PRACTICE: FAMILY & COMMUNITY
PROPERTY LAW § 34. 10, at 370 ( 1997).
Here, the trial court reviewed Amanda' s declaration that identified which of Perler' s
expenses she determined or speculated were actually personal expenses, Leann' s response
declaration agreeing that some expenses were personal but disputing others, and all the submitted ,
financial documents. From the declarations and documents, the trial court found it " appropriate
to designate 50 [ percent] of the 2008 identified expenses as personal, after first subtracting the
250 per bi- weekly paycheck reimbursed by Leann Blank to the corporation for personal
5
expenses incurred for the benefit of the marital community. " CP at 1274. After including an
annualized shareholder loan, the court found the amount of personal expenses charged to the
5
The trial court later corrected it calculation to reflect $250. 00 semi -monthly payments instead
of $250. 00 bi- weekly payments.
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business for 2008 was $ 38, 204. 55 and that $ 19, 102. 28 represented Russell' s one half
community share of these expenses, for a value of $ 1, 591. 86 per month business income
imputable to Russell." CP at 1274.
But the character of property as separate or community is established at the point of
acquisition. RCW 26. 16. 010; In re Marriage of White, 105 Wn. App. 545, 550, 20 P. 3d 4812001). Russell owned Perler as his separate property before his marriage to Leann and thus
it Russell' The trial court
Perler and any income generates remains s separate property.
committed an error 'of law by attributing 50 percent of the personal expenses to Leann. Thus we
remand for the trial court to attribute 100 percent of the personal expenses to Russell' s income.
Additionally, although the trial court did not specifically identify each and every expense it
found to be a personal expense, it completed a thorough review of the available documents and
determined it was appropriate to designate 50 percent of the business expenses as personal.
Because the trial court properly exercised its discretion, we do not disturb that decision.
B. Leann' s Income Treated as Russell' s
Russell argues the trial court erred by imputing some of Leann' s income to him in
violation of RCW 26. 19. 071. Russell incorrectly argues the trial court imputed 25 percent of
Leann' s income to him. The trial court initially allocated 25 percent of Leann' s income to
Russell, but after Russell moved for reconsideration, the trial court modified its calculation and
instead averaged Russell' s and Leann' s gross salaries to come up with a difference of $569. 75 a
month which it allocated to Russell.
Here, the trial court noted that Leann had no obligation to support Ryan, but also found
that Russell had " discretion to set [ the] salary for himself and [ Leann]" and Leann' s salary was
higher than his, " even though he own[ ed] the company .... [ T] herefore, [ it was] appropriate to
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consider Leann' s salary in determining the amount of [Russell' s] income." CP at 1273. The trial
court then allocated $ 569. 75 of Leann' s salary a month to Russell. The trial court found that
Leann should earn a salary because she performed services for Perler on a full -ime basis, but
t
that it was appropriate to consider her income in calculating Russell' s child support obligation
because Russell set her salary higher than his, even though he owned the company. Allocating
569. 75 to Russell' s income made his and Leann' s respective salaries equal, which the trial court
found to be a fair method of calculation.
The trial court did not improperly impute Leann' s income to Russell, but merely
allocated what was realistically Russell' s income as the owner of Perler. Because the trial court
properly exercised it discretion and its decision is not manifestly unreasonable, we hold the trial
court did not err when allocating a portion of Leann' s income to Russell.
C. Shareholder Loan Calculation
Amanda next argues the trial court erred by calculating the amount of the shareholder
loans from Perler that should have been included in Russell' s net monthly income. Amanda
states that between July 14, 2068 and December 14, 2008, the balance of shareholder loans
Russell took increased $ 12, 025. 90 and that the court divided this amount over 12 months when it
should have divided it over 5 months. Thus, Amanda maintains the sum of $2, 405. 18, rather
than $ 1, 051. 00, per month should have been included in Russell' s net monthly income.
Other than to state that the trial court must consider all income and that the trial court
made a " clerical error," Amanda provides no legal support for her contention that the shareholder
loan should be calculated over 5 months versus 12. Because Amanda failed to provide
meaningful argument or legal support for this argument, we need not consider it. RAP
10. 3( a)( 6).
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D. Unreported Cash
Finally, Amanda argues the trial court erred by disregarding Russell' s unreported cash.
Again, other than to state the trial court must consider all income, Amanda provides no legal
support for her argument that the trial court should have included this alleged unreported cash in
Russell' s income. The trial court undertook a careful and complete review of all documents,
pleadings, transcripts, letter rulings, and sealed financial records; heard re- argument from the
parties; and reviewed the record before the trial court commissioner. The trial court also heard
argument and reviewed declarations regarding Russell' s alleged unreported cash. Because the
trial court had discretion to weigh the conflicting evidence presented and its decision does not
rest on unreasonable grounds, we hold the trial court did not err by not including the alleged
unreported cash in Russell' s income.
III. RYAN' S ENROLLMENT IN HIGH SCHOOL
The relevant provision in the child support order states "[ s] upport shall be paid: until
Ryan reaches the age of 18 or as long as he remains enrolled in high school, whichever occurs
last." CP at 2027. The parties dispute the application of this simple provision in two specific
time periods. Russell also maintains that Ryan refused to take affirmative steps to complete his
high school education on time, and thus at age 18, Ryan was no longer dependent and became
emancipated.
A. February and March 2010
The trial court found that although Ryan had signed up for Running Start classes in
January 2010, he was not enrolled in high school in February and March 2010 because he
received no credits for his Running Start classes and was not otherwise in high school.
Specifically, the trial court stated " I believe that enrollment is something more than just simply
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signing up." CP at 2120. But a Bethel public schools student records employee authored a letter
on July 1, 2011 verifying that Ryan had been continuously enrolled in high school since January
27, 2009. Although Ryan received no credit for one class and failed the other in the months of
February and March 2010, he was enrolled in high school classes and his status as a high school
6
student remained the same for those months. Thus, the trial court' s decision to suspend
Russell' s child support payments for those months because Ryan received no credits for his high
school classes was based on unreasonable grounds.
B. July and August 2010
The trial court also found that Ryan was not enrolled in July and August 2010 because he
was 18, had not yet graduated from high school, was not earning any credits, and was not making
any significant progress towards his high school degree. If Ryan had graduated on track, he
would have graduated in June 2010. After the 2010 summer break, however, Ryan continued his
high school classes and the student records employee stated that Ryan was continuously enrolled
in high school since January 27, 2009. Further, the child support order requires that Russell
make payments every month and does not allow for abatement during the summer months. See
In re Marriage of Jarvis, 58 Wn. App. 342, 347, 792 P. 2d 1259 ( 1990) ( holding that the trial
court erred when it modified the child support decree to eliminate child support payments during
the summer months).
Because the record indicates that Ryan remained continuously enrolled in high school
beginning in January 2009 through December 2011, the trial court' s decision to suspend child
support payments in July and August 2010 because Ryan was not earning any credits during the
6
Additionally, a successful, eventual outcome is not required for a student to be " enrolled" under
the ordinary meaning of the term.
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summer break from school is based on unreasonable grounds. Accordingly, we reverse and
remand for the trial court to modify the child support order to reflect that Ryan was enrolled in
high school during February, March, July, and August 2010.
C. Child Support Payments after Ryan' s expected date of graduation
Russell maintains that when Ryan turned 18 in November 2009, he was no longer
dependent and became emancipated, and thus the trial court erred when it ordered him to
continue child support payments for Ryan beyond Ryan' s anticipated date of graduation in June
2010. Amanda responds that Russell was obligated to continue his child support payments
because Ryan was still a dependant and Russell' s obligation was conditioned on whether Ryan
was still enrolled in high school. We affirm because the parties agreed in writing to extend their
child support obligations beyond Ryan' s 18th birthday, as long as he remained in high school.
RCW 26. 09. 170( 3) provides that: " Unless otherwise agreed in writing or expressly
provided in the decree, provisions for the support of a child are terminated by emancipation of
the child or by the death of the parent obligated to support the child." See also In re Marriage of
Gimlett, 95 Wn.2d 699, 703 -05, 629 P. 2d 450 ( 1981). For the purposes of this statute,
emancipation refers to the child reaching the age of majority - 18. Gimlett, 95 Wn.2d at 702.
The child support order here specifically provides for child support payments after
emancipation — it requires Russell to continue payments until Ryan reaches 18 or graduates from
high school, whichever is later. The child support order does not require that Ryan graduate in
7 To support her argument, Amanda relies on Kruger v. Kruger, 37 Wn. App. 329, 332, 679 P. 2d
961 ( 1984). Amanda' s citation to this case is misplaced because Kruger held the trial court did
not err by calculating child support arrearage to include the time between the children' s 18th and
21st birthdays in which they were enrolled in full -ime programs of higher education, whereas
t
here the parties are arguing about Russell' s obligation of child support while Ryan is still in high
school between his 18th and 21 st birthday.
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four years or on time to continue receiving child support payments. Nor does the order base
Russell' s child support obligation on a determination of Ryan' s dependency. Instead, the order
requires that Russell continue making child support payments " as long as [ Ryan] remains
a
enrolled in high school." CP at 2027. Thus, during the time Ryan remained enrolled in high
school, Russell was required to continuing making child support payments for Ryan. The trial
court properly exercised its discretion when it ordered Russell to continue making child support
payments for Ryan through December 2011.
D. Unreimbursed Extraordinary Health Care Expenses
Russell also argues the trial court erred when it ordered him to contribute to Ryan' s
unreimbursed extraordinary health care expenses after November 2009 ( when Ryan turned 18) or
June 2010 ( when Ryan was supposed to graduate from high school) because ( 1) Ryan was no
longer a dependent, ( 2) the trial court never determined the reasonableness or necessity of the
costs, and ( 3) the trial court never addressed Russell' s ability to contribute to the health care
expenses. 9 We hold the trial court properly exercised its discretion when ordering Russell to pay
a portion of Ryan' s unreimbursed extraordinary health care expenses after June 2010 because
RCW 26. 19. 080 requires that parents share paying their child' s health care expenses and a
determination of the reasonableness or necessity of the expenses is discretionary.
RCW 26. 19. 080( 2) provides that "[ m] onthly health care costs shall be shared by the
parents in the same proportion as the basic child support obligation." RCW 26. 19. 080( 4)
8 The parties' discussion of dependency, therefore, is irrelevant to a determination of Russell' s
child support obligation for Ryan beyond the date of Ryan' s anticipated graduation in June 2010.
9 Russell also assigned error to the trial court' s order for him to pay a portion of Adam' s
unreimbursed extraordinary health care expense. However, he devoted no portion of his briefing
and offered no legal support for this argument. Thus, we need not consider it under RAP
10. 3( a)( 6).
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provides that "[ t] he court may exercise its discretion to determine the necessity for and the
reasonableness of all amounts ordered in excess of the basic child support obligation." The child
support order at issue here requires that Russell " pay 63. 4 [ percent] of unreimbursed
extraordinary health care expenses for Ryan, if monthly medical expenses exceed 5 [ percent] of
the basic support obligation from worksheet line 5 for Ryan, until he graduates from high
school." CP at 2029. Thus, in accordance with RCW 26. 19. 080( 2), the trial court determined
that while Russell still had a child support obligation for Ryan, he would also have an obligation
to pay unreimbursed extraordinary health care expenses. As previously discussed, the trial court
properly ordered that Russell was required to pay child support for Ryan beyond his anticipated
date of graduation. Because Ryan was still in high school and the trial court' s order complies
with RCW 26. 19. 080, we hold the trial court properly exercised its discretion when ordering
Russell to pay his proportionate share of Ryan' s unreimbursed extraordinary health care
expenses.
IV. POSTSECONDARY SUPPORT FOR RYAN AND ADAM
Russell next argues that the trial court erred by ordering him to contribute to Ryan and
Adam' s postsecondary educational support. The child support order in this case has always
provided that "[ t] he parents shall pay for the post secondary educational support of the children.
Post secondary support provisions will be decided by agreement or by the court." CP at 456
December 3, 2004 child support order). Russell did not petition to modify the postsecondary
support provision. Instead, he specifically noted that the child support order requires him and
Amanda to pay postsecondary support, but that he and Amanda were not able to reach an
agreement. Accordingly, as the trial court noted and Russell acknowledged, Russell was
required to pay postsecondary support for both Adam and Ryan, but the amount of the payments
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and how long Russell was required to make the payments were to be decided by the court
because Russell and Amanda were not able to reach an agreement.
A. Postsecondary Educational Support Obligation
The trial court has broad discretion to order support for postsecondary education.
Childers v. Childers, 89 Wn.2d 592, 601, 575 P. 2d 201 ( 1978); see also In re Marriage of
Newell, 117 Wn. App. 711, 718, 72 P. 3d 1130 ( 2003); In re Marriage ofKelly, 85 Wn. App. 785,
795, 934 P. 2d 1218 ( 1997). RCW 26. 19. 090( 2) gives the trial court discretion to determine how .
long to award postsecondary educational support and provides a non -exhaustive list of factors to
consider:
Age of the child; the child' s needs; the expectations of the parties for their
children when the parents were together; the child' s prospects, desires, aptitudes,
abilities or disabilities; the nature of the postsecondary education sought; and the
parents' level of education, standard of living, and current and future resources.
To continue receiving postsecondary educational support:
The child must enroll in an accredited academic or vocational school, must be
actively pursuing a course of study commensurate with the child's vocational
goals, and must be in good academic standing as defined by the institution.
RCW 26. 19. 090( 3). If the child fails to comply with these conditions, the parent' s postsecondary
educational support obligation is automatically suspended for the period or periods in which the
child fails to comply. RCW 26. 19. 090( 3).. Additionally, the trial court should not order payment
of postsecondary educational support beyond a child' s 23rd birthday, except in exceptional
circumstances. RCW 26. 19. 090( 5).
Russell contends the trial court failed to address all the factors listed in RCW 26. 19. 090
and thus the postsecondary educational support order is improper. The trial court, however,
specifically noted that it considered the factors from RCW 26. 19. 090( 2) when making its
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postsecondary educational support order. And although the trial court did not make extensive
findings on the record as to each factor, RCW 26. 19. 090 sets forth no requirement that the trial
court explicitly consider the factors on the record. In re Marriage of Cota, _ Wn. App. ,
312 P. 3d 695, 699 ( 2013). Moreover, "[ w] e must presume that the court considered all evidence
before it in fashioning the order [ on postsecondary education expenses]." Kelly, 85 Wn. App. at
793. Thus, the trial court did not err by not explicitly entering findings as to each factor listed in
RCW 26. 19. 090( 2).
1. Ryan
The trial court ordered Russell to contribute to Ryan' s AA degree. The trial court found
that Ryan had a plan and was at Clover Park. The trial court further stated Ryan " has a vocation
in mind, and that is a year degree.
two - It appears to be commensurate with the child' s abilities
and the child' s prospects. He, so far, has had trouble with attendance and, therefore, trouble
getting credits, but academically he' s doing well or at least appropriate, appropriately." CP at
2064. Because Ryan had yet to begin his postsecondary education, the trial court properly
exercised its discretion when it ordered Russell to contribute to Ryan' s postsecondary education
subject to Ryan' s compliance with RCW 26. 19. 090 and maintaining good academic standing
according to the institution.
2. Adam
Russell contends that his postsecondary support obligation for Adam should have been
suspended from January 2009 through the entry of the trial court' s final order in December 2011
because Adam " was never in good academic standing as defined by the institution and was never
a full time student." Resp' t' s Br. at 31. We disagree because Adam was in good academic
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standing with Pierce College, as required by RCW 26. 19. 090( 3), beginning in spring quarter
2009.
Here, the trial court did not order postsecondary support for the 2009 winter and spring
quarters at Pierce College because Adam was not in good academic standing with Pierce
College. But in fall 2009 Adam obtained a 4. 0 grade point average and increased his cumulative
grade point average above a 2. 0. Thus, the trial court ordered Russell to pay postsecondary
support for Ryan beginning in fall of 2009 through spring of 2012 ( when Adam would turn 23),
as long as he remained in good academic standing. The trial court also ordered that Russell
would get a credit for any class for which he paid that Adam withdrew from or had to retake.
Pierce College defines good academic standing as: " Any student who earns 5 or more
credits for each quarter in which they are enrolled, and maintains a 2. 0 or better cumulative grade
point average will be considered in good academic standing at Pierce College." CP at 1784. On
July 6, 2011, the director of student success at Pierce College authored a letter noting that " Adam
has maintained a 2. 0 or better cumulative grade point average beginning Spring Quarter 2009
and has been in good academic standing with the college since Spring Quarter 2009." CP at
1879. Because the trial court' s order complies with RCW 26. 19. 090 and Pierce College' s
definition of good academic standing, we determine the trial court properly exercised its
discretion when ordering postsecondary educational support for Adam.
B. Amount of Postsecondary Educational Support Ordered
Amanda argues the trial court erred ( 1) by holding that the costs of postsecondary support
for Ryan be shared by Amanda, Russell, and Ryan in equal one -third shares, and ( 2) by refusing
to make Russell pay his full share of postsecondary support for Adam' s first semester at the
University of Idaho. We hold the trial court' s decision to apportion one -third of Ryan' s
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postsecondary educational expenses to Ryan was a proper exercise of its discretion, but remand
for the trial court to apportion the remaining two -
thirds between Russell and Amanda based on
their respective net incomes. Additionally, we hold the trial court' s decision that Russell is not
required to pay any more on Adam' s fall 2008 semester was a proper exercise of its discretion.
1. Ryan
Regarding the order that Ryan contribute one -third to his postsecondary education,
Amanda provides no authority that the trial court erred when apportioning some of the
postsecondary educational expense to Ryan. When ruling on postsecondary educational support
for Ryan, the trial court stated that it is important for a child to be invested in his own education.
Further, because the order is prospective, the trial court noted that Ryan still has the opportunity
to get grants, apply for financial aid, and seek part-time employment. We hold that the trial court
properly exercised its discretion when apportioning some of the postsecondary education
expenses to Ryan.
Regarding Russell and Amanda' s contribution, we hold that the trial court' s decision to
apportion one -third to Amanda and one -third to Russell is based on an erroneous view of the
law. Although RCW 26. 10. 090( 1) states the child support schedule is advisory and not
mandatory in postsecondary educational support, Division I held that " postsecondary support
must be apportioned according to the net income of the parents as determined under [] chapter
26. 19 RCW]." In re Marriage of Daubert, 124 Wn. App. 483, 505, 99 P. 3d 401 ( 2004),
abrogated on other grounds by McCausland, 159 Wn.2d 607. Accordingly, we remand for the
trial court to apportion the remaining two -
thirds of Ryan' s AA degree expenses to Amanda and
Russell based on their respective incomes.
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2. Adam
The trial court found that Russell' s$ 3, 275. 00 contribution to Adam' s fall 2008 semester
at the University of Idaho, in which he received no credits, satisfied his obligation for
postsecondary educational support for that semester. Amanda argues the trial court' s decision is
contrary to RCW 26. 19. 090( 3) because generally a parent pays for college and its related costs at
the beginning of the quarter or semester and no one knows at that time if the student will meet
the academic requirements of RCW 26. 19. 090( 3). Despite Russell' s request that Adam attend a
community college or in - tate university, Adam, with Amanda' s support, chose to attend the
s
University of Idaho. Adam did not succeed at the University of Idaho and received no credits for
the classes he took; thus, he decided to transfer to Pierce College. Because the trial court has
broad discretion to order what is fair and necessary for postsecondary education, we do not
disturb the trial court' s order regarding Russell' s obligation to contribute to Adam' s fall 2008
semester. See Childers, 89 Wn.2d at 601 -02.
V. SYLVAN LEARNING CENTER EXPENSE
Amanda argues the trial court erred by not including the cost of Adam' s tutoring at
Sylvan Learning Center in his postsecondary educational support. Russell did not respond to this
argument.
The trial court has broad discretion to order what is fair and necessary regarding
postsecondary support. Childers, 89 Wn.2d at 601 - 02; Kelly,. 85 Wn. App. at 795. The trial
court may include expenses that are sufficiently related to the child' s postsecondary education.
Kelly, 85 Wn. App. at 795.
The trial court orally ordered that Russell contribute to Adam' s postsecondary support on
June 15, 2011; however, for reasons that are not clear, the paper order reflecting the June 15,
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2011 oral ruling was not signed until August 5, 2011. In between the oral ruling and the signing
of the order, Amanda added the Sylvan Learning Center expense to Adam' s post secondary
educational expenses, which neither Russell nor the trial court noticed until after signing the
order. After a hearing on December 9, 2011, the trial court ordered that Russell was not required
to contribute to the Sylvan Learning Center expense and stated,
I realize that it really is related to his education, but the fact is he' s been in college
for three and a half years already. The father has — I
ordered him to pay expenses
going back to the beginning, and this is an extraordinary expense that was
incurred unilaterally by the mother without any consultation, without any input,
and I' m not going to order him to contribute toward it.
Report of Proceedings ( Dec. 9, 2011) at 33. Because the trial court has broad discretion to order
what support it finds fair and necessary, the trial court properly exercised its discretion when
deciding not to include the Sylvan Learning Center expense in Russell' s obligation because it
was an extraordinary expense that Amanda incurred without seeking input from Russell.
VI. REASONABLE ATTORNEY FEES
Amanda argues the trial court erred by failing to award her reasonable attorney fees and
expenses due to Russell' s intransigence. We hold the trial court erred by finding Russell did not
engage in intransigence and remand for a determination of reasonable attorney fees for Amanda.
The decision to award attorney fees is within the trial court' s discretion. In re Marriage
of Knight, 75 Wn. App. 721, 729, 800 P. 2d 71 ( 1994). The party challenging the trial court' s
decision bears the burden of proving the trial court exercised its discretion in a way that was
clearly untenable or manifestly unreasonable." Knight, 75 Wn. App. at 729.
Amanda contends the trial court erred by refusing to look at past history and prior court
findings of intransigence. The trial court may award fees under RCW 26. 09. 140 if one spouse's
intransigence caused the spouse seeking a fee award to require additional legal services. In re
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Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P. 2d 954 ( 1996). A parent is intransigent
where he produces " conflicting information about his income and, by his actions, force[ s the
other parent] to conduct intense discovery, which increase[ s] her legal bills." In re Marriage of
Mattson, 95 Wn. App. 592, 605, 976 P. 2d 157 ( 1999). If intransigence is established, the
financial resources of the spouse seeking the fees are irrelevant. Crosetto, 82 Wn. App. at 564.
The trial court found, based solely on Russell' s conduct in connection with the instant
petition for modification and its related motions, that Russell did not engage in intransigence.
The trial court based its decision, in part, on the fact that Russell disclosed over 2, 000 pages of
financial documents in response to discovery requests. The trial court further noted that Russell
acknowledged that he paid some personal expenses through Perler, but that he fully disclosed all
his financial information; thus, even though he misstated his income, Russell was not attempting
to defraud the court because he provided all the information the court needed to determine his
income.
The trial court erred by not finding Russell intransigent. In two prior proceedings,
Russell engaged in behavior similar to the instant case by misreporting his income, paying his
personal expenses through his business, and turning over voluminous financial records requiring
Amanda and the court to incur additional costs and time to determine Russell' s true income.
Specifically, in 2004 the trial court stated,
Yes. I know that, Mr. Blank, there' s a lot of talk about the production of
two banker' s boxes of documents being produced, but I was struck by the fact that
many of the things I was interested in there was just no documentation for.
There was even difficulty answering simple questions as to what Mr.
Blank' s salary was. I just think that the production of voluminous material is not
persuasive. Having practiced insurance defense for a number of years, I certainly
am not swayed by volumes of materials. It' s the quality that' s given that matters
and relevance that matters.
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CP at 442. Russell' s behavior in the current proceeding was substantially similar to the behavior
the trial court twice previously found to be intransigent. In all three cases his behavior was
intransigent. Russell' s disclosure to the trial court that he used his business to pay personal
expenses and providing 2000 pages of financial documents did not cure his intransigence.
In the instant case,_Russell initially reported his net monthly income as $ 5, 500. 00. After
an appeal to this court and multiple hearings and motions on remand, the trial court determined
Russell' s income was actually $ 8, 195. 08, and after this appeal his income will increase further.
Russell' s practice of misreporting his income and then providing substantial financial documents
for Amanda and the trial court to sort through to determine his true income is intransigent. See
Mattson, 95 Wn. App. at 605 ( where a parent provides conflicting information about his income,
forcing his former spouse to incur increased legal fees to conduct intense discovery, is evidence
of intransigence). Accordingly, we remand for the trial court to enter a finding that Russell was
intransigent and award Amanda reasonable attorney fees for her increased legal fees due to
Russell' s intransigence. 10
VII. ATTORNEY FEES ON APPEAL
Amanda and Russell request attorney fees under RCW 26. 09. 140 and RAP 18. 1. We
have discretion to order a party to pay for the cost of maintaining the appeal and attorney fees in
addition to statutory costs. RCW 26. 09. 140. When awarding attorney fees, we examine the
arguable merit of the issues and the parties' financial resources. In re Marriage of Griffin, 114
Wn.2d 772, 779, 791 P. 2d 519 ( 1990). In order to receive attorney fees, the parties must file
financial affidavits with the court no later than 10 days before oral argument. RAP 18. 1( c).
io The trial court should award only such fees as are reasonable. The amount of Amanda' s claim
for attorney fees appears on its face to be unreasonable in these circumstances.
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Here, Russell failed to file a financial affidavit on time, which precludes an attorney fee award.
Amanda filed her financial affidavit and after careful review, we find she exhibited sufficient
financial need and grant her reasonable attorney fees on appeal.
We remand to the trial court for further proceedings consistent with this opinion.
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
2. 06. 040, it is so ordered.
We concur:
Maxa, J.
pearman, J. ,
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