Jose Velazquez, V. Bertha G. Velazquez ( 2022 )

Filed
Washington State
Court of Appeals
Division Two
March 29, 2022
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Marriage of
JOSE VELAZQUEZ,
No. 55191-8-II
Appellant,
v.
BERTHA G. VELAZQUEZ, UNPUBLISHED OPINION
Respondent.
CRUSER, J. — Jose Velazquez and Bertha (Velazquez) Alcantar-Lizarraga1 were married
in 1993. Bertha2 has health problems and has not worked in years, while Jose often worked several
jobs to support their family. Jose filed for divorce in 2019 and appeals the portion of an order that
requires him to make permanent maintenance payments of $1,800 per month to Bertha. Jose argues
that the trial court erred by (1) not accurately considering Bertha’s financial resources and (2)
finding that Jose has the ability to make the permanent maintenance payments.
We hold that the trial court did not err in its assessment of Bertha’s financial resources or
by finding that Jose has the ability to make the spousal maintenance payments because the trial
1
In the final divorce order, Bertha’s last name is noted as Alcantar-Lizarraga. However, the court
record for this case uses her former last name, Velazquez, because that was her name when the
case was initiated.
2
For clarity, we refer to the parties by their first names. No disrespect is intended.
No. 55191-8-II
court’s findings were supported by substantial evidence. Accordingly, we affirm the trial court’s
award of spousal support to Bertha.
FACTS
Jose and Bertha got married in Tacoma in 1993. Throughout their marriage, Jose worked
at least two jobs at a time and worked overtime to provide for their family. Bertha last worked in
2002 or 2003. She is considered to be a person with a disability due to the physical and mental
health conditions that she experiences.
Jose filed for divorce in July 2019. Prior to any maintenance award, both parties filed
financial declarations with the court. These declarations required the parties to list “liquid assets,
like cash, stocks, bonds, that can easily be cashed,” separating out categories for financial accounts
and other liquid assets. Ex. 7 at 3-4 (boldface omitted). Bertha’s financial declaration, dated
December 3, 2019, listed that she had $900 in available assets, which came from “[c]ash on hand
and money in all checking & savings accounts.” Id. at 3. The court issued a temporary order in
January 2020, which required Jose to provide $2,600 per month in spousal maintenance to Bertha
in addition to paying for her car insurance.
Jose amended his financial declaration on April 29, 2020 to reflect that he had lost one of
his two jobs due to the COVID-19 pandemic. The amended declaration listed Jose’s net monthly
income as $3,638.57 per month including overtime. On April 30, 2020, the court issued another
temporary order that reduced maintenance payments to Bertha to $1,800 per month. This
temporary order also stated that Bertha “shall either seek employment or apply for [Social Security
disability] benefits.” Ex. 17 at 3. Bertha had previously applied for Social Security disability
benefits in September 2019 and was denied because she had more than $2,000 in resources. The
2
No. 55191-8-II
Social Security Administration defined a “resource” as “money and anything that you own and
can turn into cash.” Ex. 13.
At trial, the main issue was the amount of maintenance the court should award. At the time,
Jose was still working one job as a forklift operator and was making $625 per week after taxes.
During his testimony, he did not express any safety concerns regarding his work. He explained
that he works overtime when it is available, but the availability of overtime varies. Generally, he
works eight hours of overtime per week at $30 per hour. The trial court was “persuaded” that Jose
could afford spousal maintenance in the amount of $1,800 per month because overtime was
available at his current job. Verbatim Report of Proceedings (VRP) at 56. The court found “that
Mr. Velazquez is certainly capable of making more money. Historically he has, but he is not doing
it at this point through no fault of his own.” Id. The trial court also explained that Bertha cannot
go back to work, “even on a part-time basis,” due to her medical issues, her age, English not being
her first language, and the fact that she has not worked since 2002 or 2003. Id. at 54.
Jose pushed back on the court’s ruling, stating, “as far as my ability to have and hold two
jobs at this time in life, I mean, I could, and I have historically, but I’m 61 years old now.” Id. at
57. Jose then explained that, if he had to work two jobs, his lack of sleep could be dangerous to
other people because he drives a forklift. The trial court clarified that it “did not take into account
[Jose’s] ability to work a second job. Instead, what [it] took into account was [his] historic income
based on the fact that [he] generally work[s] overtime at [his] primary vocation.” Id. at 58. The
court made its August 2020 order reviewable within two years, with updated financial information
from the parties, “[d]ue to Covid-19 and its effects on earnings.” Clerk’s Papers (CP) at 93.
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No. 55191-8-II
Jose appeals the court’s spousal maintenance order.3
SPOUSAL MAINTENANCE AWARD
A. LEGAL PRINCIPLES
Trial courts exercise broad discretionary powers when awarding spousal maintenance. In
re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984). RCW 26.09.090(1) provides
a list of nonexclusive factors that the trial court must consider, including:
(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 his 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.
We review an award of maintenance for abuse of discretion. In re Marriage of Anthony, 9
Wn. App. 2d 555, 564, 446 P.3d 635 (2019). “A trial court abuses its discretion if its decision is
manifestly unreasonable or based on untenable grounds or untenable reasons.” Id. at 563.
Where the trial court has weighed the evidence, our role on review is to determine whether
substantial evidence supports the trial court’s findings of fact and, in turn, whether the findings
3
Bertha did not file a response brief.
4
No. 55191-8-II
support the conclusions of law. In re Marriage of Rockwell, 141 Wn. App. 235, 242, 170 P.3d 572(2007). “ ‘Substantial evidence exists if the record contains evidence of sufficient quantity to
persuade a fair-minded, rational person of the truth of the declared premise.’ ” Id. (internal
quotation marks omitted) (quoting In re Marriage of Griswold, 112 Wn. App. 333, 339, 48 P.3d
1018 (2002)). We do “ ‘not substitute [our] judgment for the trial court’s, weigh the evidence, or
adjudge witness credibility.’ ” Id. (quoting In re Marriage of Greene, 97 Wn. App. 708, 714, 986
P.2d 144 (1999)). If the trial court’s decision is based on “factual findings [that] are unsupported
by the record,” the trial court has abused its discretion. In re Marriage of Littlefield, 133 Wn.2d
39, 47, 940 P.2d 1362 (1997).
B. ANALYSIS4
1. Bertha’s Financial Resources
Bertha filed for Social Security disability benefits in September 2019, but she was denied
benefits because she had more than $2,000 in resources. Her financial declaration, from December
2019, listed that she had $900 in available assets. Jose appears to argue that Bertha’s resources
have diminished since the time that she last applied for disability benefits and that she should
continue to pursue Social Security benefits as a means of income. Jose claims that the trial court
abused its discretion in finding that Bertha has no available financial resources because she has
not “diligently sought” disability benefits. Br. of Appellant at 25. We disagree.
4
Jose does not assign error to the relevant findings of fact made by the trial court in rendering its
decision. However, under RAP 1.2, “appellate review has been granted where proper assignment
of error is lacking but the nature of the challenge is clear and the challenged finding is set forth in
the party’s brief.” Fuller v. Emp’t Sec. Dept, 52 Wn. App. 603, 605, 762 P.2d 367 (1988).
Therefore, this opinion assumes that he did assign error to the relevant findings, which are
reviewed for substantial evidence. See Rockwell, 141 Wn. App. at 242.
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No. 55191-8-II
The trial court did not make a finding that Bertha has no available financial resources; the
court simply found that she is unable to work. This finding is supported by substantial evidence.
The court considered Bertha’s medical issues, her age, English not being her first language, and
the fact that she has not worked since 2002 or 2003. This is enough “ ‘to persuade a fair-minded,
rational person of the truth of the declared premise.’ ” Rockwell, 141 Wn. App. at 242 (internal
quotation marks omitted) (quoting Griswold, 112 Wn. App. at 339). Further, this finding supports
the trial court’s conclusion that Bertha is in need of financial assistance. 5
We hold that the trial court did not abuse its discretion in assessing Bertha’s financial
resources under RCW 26.09.090(1)(a).
2. Jose’s Ability to Make Maintenance Payments
Jose next argues that the trial court erred by disregarding his age and the nature of his work
in its determination that he is able to pay Bertha $1,800 per month. We disagree.
As an initial matter, the trial court did not make a finding of fact regarding Jose’s age.
Furthermore, the record contains conflicting information about how old Jose is. Compare VRP at
57 (“I’m 61 years old now.”) with CP at 27 (“Petitioner is ten years younger than me”), 51 (“I am
50 years old”), 54 (born in 1969), 83 (born in 1969). Therefore, we cannot consider Jose’s age in
reviewing the trial court’s finding that Jose had the ability to make maintenance payments.
In addition, to the extent that Jose’s argument is predicated on the nature of his employment
as a forklift operator, Jose did not express any safety concerns regarding the nature of his work
until after the court’s oral ruling. And these safety concerns were coupled with the idea that he
5
Contrary to Jose’s assertions, the letter from the Social Security Administration denying Bertha’s
application for benefits also supports this conclusion because it shows that Social Security was not
an available resource for Bertha.
6
No. 55191-8-II
may have to work a second job: “in order to pull off the two jobs, I sleep very little, sometimes
only two hours to be able to have those two jobs. While I’m doing that, then I would put other
people in danger, people at where I work because I drive a forklift.” VRP at 57-58. The trial court
clarified that it “did not take into account [Jose’s] ability to work a second job. Instead, what [it]
took into account was [his] historic income based on the fact that [he] generally work[s] overtime
at [his] primary vocation.” Id. at 58.
It was proper for the court to look at Jose’s historic earning patterns, as his ability to meet
both his own needs and Bertha’s needs is a factor for the court to consider in awarding
maintenance. RCW 26.09.090(1)(f). In Jose’s amended financial declaration, submitted to the
court a couple of months before trial, he indicated that his net monthly income was $3,638.57. His
testimony at trial was generally consistent with this figure, where he indicated that he made $625
weekly after taxes and worked eight hours of overtime per week at $30 per hour, although the
availability of overtime varied due to the pandemic. Based on this testimony, the trial court found
that Jose could afford spousal maintenance in the amount of $1,800 per month because overtime
was available to him at his current job.
The trial court properly weighed the relevant factors under RCW 26.09.090(1), and it found
that Jose had the ability to make payments. This finding was supported by substantial evidence. 6
6
Notably, “[d]ue to Covid-19 and its effects on earnings,” the trial court made its order reviewable
within two years, with updated financial information from the parties. CP at 93. In his brief, Jose
acknowledged the reviewability of the order and said that he “may move, and inevitably, will have
to move for modification of the instant order, under RCW 26.09.170, at the date when he is unable
to continue working at the pace mandated by the court.” Br. of Appellant at 26. Therefore, if Jose
is now unable to make the payments as ordered due to a lack of available overtime or other change
in employment circumstance, he may bring that issue before the trial court. But that information
is not before us.
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No. 55191-8-II
We hold that the trial court did not abuse its discretion in finding that Jose could pay $1,800 per
month to Bertha.
CONCLUSION
We hold that the trial court did not err in its assessment of Bertha’s financial resources or
by finding that Jose has the ability to make spousal maintenance payments to Bertha because the
trial court’s findings were supported by substantial evidence. Accordingly, we affirm the trial
court’s award of spousal support to Bertha.
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.
CRUSER, J.
We concur:
WORSWICK, J.
LEE, C.J.
8