Clyde H. Reed, V Catherina Y. Brown

eaffit
ViS ON 11
2014 .DEC
STA
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTO
DIVISION II
Consolidated Nos. 44151 -9 -11
CLYDE H. REED, 44961 -7 -11
Appellant,
v.
UNPUBLISHED OPINION
CATHERINA Y. BRO WN,
Respondent.
MAXA, J. — Clyde Reed appeals the trial court' s orders establishing the primary
custodial parent and final child support arrangements for his daughter THB, which were entered
on remand following an earlier appeal. Reed argues that the trial court ( 1) failed to follow the
directions in our earlier opinion to independently determine THB' s primary custodial parent and
made several errors in deciding the issue, ( 2) abused its discretion regarding the child support
order in several respects, and ( 3) abused its discretion in awarding Catherina Brown attorney
fees.
We hold that the trial court neither failed to follow our directions on remand nor erred in
making its decision regarding THB' s primary custodial parent. We also hold that the trial court
did not abuse its discretion regarding the child support order or in awarding attorney fees.
Accordingly, we affirm the trial court' s parenting plan, child support order, and award of
attorney fees.
44151 -9 -II / 44961 -7 -11
FACTS
Reed and Brown dated for over a year but broke off their relationship shortly before
learning that Brown was pregnant with THB. Brown gave birth to THB on February 14, 2007.
Reed provided financial support to Brown and THB during and after the pregnancy. Brown lost
her job in January 2007 and subsequently was unable to secure employment. THB lived with
Brown after birth, and Reed periodically visited the child. However, when Brown wanted to
move to Chicago to take a job there, Reed initiated legal proceedings to keep THB in
Washington.
Prior Proceedings
The resulting litigation has proceeded through several different phases.' Initially, Reed
sought a temporary order that would keep THB in Washington and establish a basic visitation
schedule and child support obligations. The court commissioner entered an order that included a
temporary parenting plan and a child support schedule.
The case went to trial before Judge Armijo in December 2008, but the trial was limited to
determining the terms of a parenting plan. Judge Armijo entered a new temporary parenting plan
that designated Brown as THB' s primary custodial parent. The plan gradually increased Reed' s
visitation time in order to progress toward a shared custody arrangement in which Reed would
have overnight visits with THB. Because this was a temporary parenting plan, Judge Armijo did
not consider the seven statutory factors in RCW 26. 09. 187( 3)( a) that a trial court must consider
in making final parenting plan determinations. Judge Armijo scheduled a review of the
1 The litigation history prior to May 2012 is detailed in our earlier unpublished opinion, In re
T.H.B., noted at 168 Wash. App. 1001 ( May 8, 2012).
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temporary plan and the commissioner' s temporary child support schedule, and extended the
temporary child support schedule until the review hearing scheduled for April 17, 2009.
In January 2009 the case was reassigned to Judge Hickman. The review hearing
originally scheduled for April ultimately took the form of a second trial in September 2009 on
the parenting plan and child support issues. The trial court reviewed the temporary parenting
plan and established a permanent plan. In so doing, the trial court essentially adopted Judge
Armijo' s order establishing Brown as the primary custodial parent. However, the trial court did
not expressly consider the RCW 26. 09. 187( 3)( a) factors. The trial court also determined that the
temporary child support order reflected an appropriate arrangement in THB' s best interests and
ruled that it should remain in effect, but inadvertently failed to enter a final child support order.
Reed appealed to this court. In May 2012, we issued an opinion holding that Judge
Hickman had erred by adopting Judge Armijo' s temporary parenting plan as a final parenting
plan without issuing findings on the RCW 26. 09. 187( 3)( a) factors. We remanded " for the trial
court to consider these factors in deciding primary residential parent status." Clerk' s Papers
CP) at 269. Further, because there was no final child support order on record despite the trial
court' s apparent intent to issue one, we remanded for issuance of that order.
Order Determining THB' s Primary Custodial Parent
In the first appeal we directed the trial court on remand to make " an independent
determination of T.H.B.' s primary residential parent." CP at 277. Our opinion also explained
that " remand is required for the trial court to consider [ the RCW 26. 09. 187( 3)( a)] factors in
deciding primary residential parent status." CP at 269. The trial court interpreted these
directions as not requiring a new trial, but rather requiring the court to reassess the primary
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custodial parent designation in light of the statutory factors. The trial court therefore did not .
accept new evidence, but it gave each party an opportunity at a September 2012 hearing to make
a " argument" focused on the seven statutory factors. Report of Proceedings ( RP) ( Sept.
closing
14, 2012) at 13.
During the. September 2009 trial, the trial court granted a motion in limine limiting "the
issues, evidence, and testimony" to events that occurred after the 2008 trial. CP at 31. Because
we did not disturb the limiting order on appeal, the trial court on remand renewed the limitation,
noting also that it would not consider evidence unavailable at the time of the 2009 trial.
Following the hearing, the trial court issued an order analyzing the statutory factors and
reaffirming its original decision designating Brown as THB' s primary custodial parent. Reed
moved for reconsideration in October 2012. In denying that motion, the trial court explained that
its basic analysis had not changed since 2009, even though it issued new findings of fact and
conclusions of law in line with our directions.
Child Support
In the first appeal, we remanded for entry of a final child support order. On remand, the
trial court allowed both parties to present supplementary information and documentation on their
financial circumstances at the time of the September 2009 trial. The trial court believed that we
remanded for entry of the original order, not for entry of an order reflecting the parties' current
financial situations. The trial court stated that either party could move to modify the order if
circumstances had changed since September 2009.
Brown submitted proposed worksheets showing the parties' income and deductions three
days before the September 2012 hearing. Ten days after that hearing, Reed sent the court a letter
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disputing aspects of Brown' s worksheets and attached his own proposed worksheets. For
verification, both Reed and Brown provided additional tax returns, pay stubs, and, in Brown' s
case, unemployment benefit stubs. In October, more than a week after Reed sent his letter and
proposed worksheets, the trial court issued an order outlining the contours of the child support
plan and requesting revised worksheets from Brown reflecting that plan. The trial court then
issued a child support order and final worksheets based on Brown' s revised worksheets in
January 2013.
Reed moved for reconsideration. Among other arguments, he argued for the first time
that net expenses from an apartment building should be deducted from his income for purposes
of calculating his child support obligation. The court held a hearing on the motion in February
2013 and ultimately granted the motion in part, denied it in part, and again asked Brown for
revised worksheets. Reed later challenged the proportional crediting of $115. 28 in medical
expenses on Brown' s revised worksheets, resulting in additional proceedings. The trial court
entered the final child support order with final worksheets in May 2013.
Attorney Fees
When Reed moved for reconsideration of the order determining THB' s primary custodial
parent, Brown asked for attorney fees in response. At the October 2012 hearing, the trial court
awarded Brown $500 in attorney fees but later reduced the amount to $ 400 because Brown' s
attorney had untimely filed a responsive pleading for the hearing.
Reed appeals the order determining THB' s primary custodial parent, the final child
support order, and the award of attorney fees.
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ANALYSIS
Reed challenges the order designating THB' s primary custodial parent, the child support
order, and the trial court' s award of attorney fees. We review the provisions of permanent
parenting plans, child support orders, and the amount of attorney fees awarded for an abuse of
discretion. In re Marriage of Chandola, 180 Wash. 2d 632, 642, 327 P.3d 644 ( 2014)( permanent
parenting plans); In re Marriage ofFiorito, 112 Wash. App. 657, 663, 50 P.3d 298, 302 ( 2002);
Unifund CCR Partners v. Sunde, 163 Wn. App. 473, 484, 260 P.3d 915 ( 2011) ( amount of
attorney fees awarded). A trial court abuses its discretion when its decision is manifestly
unreasonable or based on untenable grounds. Chandola, 180 Wash. 2d at 642. In assessing
reasonableness, we give great deference to the trial court. In re Parentage ofJR.,112 Wn. App.
486, 492, 49 P.3d 154 ( 2002).
A. PRIMARY CUSTODIAL PARENT DESIGNATION
We remanded for designation of THB' s primary custodial parent in light of the statutory
factors the trial court must consider when determining the residential provisions of a permanent
parenting plan. Reed argues that the trial court ( 1) failed to follow our direction to independently
review the primary custodial parent designation, ( 2) improperly concluded that Brown' s time as
THB' s primary custodial parent under the temporary parenting plan supports a final
determination that Brown should be THB' s primary custodial parent, ( 3) erred in entering certain
findings of fact, and ( 4) erred in failing to enter a finding of fact regarding relocation. We reject
these arguments.
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In determining the provisions of a permanent parenting plan, including designation of the
primary custodial parent, the trial court considers the best interests of the child by analyzing
seven factors identified in RCW 26. 09. 187( 3)( a):
i) The relative strength, nature, and stability of the child's relationship with each
parent;
ii) The agreements of the parties, provided they were entered into knowingly
and voluntarily;
iii) Each parent's past and potential for future performance of parenting
functions . . :including whether a parent has taken greater responsibility for
performing parenting functions relating to the daily needs of the child;
iv) The emotional needs and developmental level of the child;
v) The child' s relationship with siblings and with other significant adults, as
well as the child's involvement with his or her physical surroundings, school, or
other significant activities;
vi) The wishes of the parents and the wishes of a child who is sufficiently
mature to express reasoned and independent preferences as to his or her residential
schedule; and
vii) Each parent' s employment schedule, and shall make accommodations
consistent with those schedules.
The statute further specifies that "[ f]actor ( i) shall be given the greatest weight," so the
child' s relationship with each parent is of utmost importance. RCW 26.09. 187( 3)( a).
As long as the trial court properly considers these statutory factors, it has wide discretion
in determining parenting responsibilities. In re Marriage ofPossinger, 105 Wash. App. 326, 335,
19 P.3d 1109 ( 2001). Where the parenting plan shows that the trial court considered the factors
in analyzing the best interests of the child, we generally will not disturb its ruling. See JH., 112
Wash. App. at 493.
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1. Failure to Independently Determine Primary Custodial. Parent Designation
Reed argues that the trial court did not properly follow our direction to independently
review the primary custodial parent designation. He claims that the trial court just used the new
findings and conclusions to bolster its earlier decision without meaningful review. We disagree.
An appellate court' s mandate is binding on the trial court and must be strictly followed.
Bank of Am., N.A. v. Owens, 177 Wn. App. 181, 189, 311 P.3d 594 ( 2013). A trial court cannot
ignore our specific directions. Owens, 177 Wash. App. at 189. We review the trial court' s
interpretation of those directions de novo, like any interpretation of case law. See State v. Willis,
151 Wash. 2d 255, 261, 87 P.3d 1164 ( 2004).
In the first appeal, we remanded Reed' s case for " an independent determination of
T. H.B.' s primary residential parent." CP at 277. We noted that " remand is required for the trial
court to consider [ the RCW 26. 09. 187( 3)( a)] factors in deciding primary residential parent
status." CP at 269. This language clearly directed the trial court to use its discretion to
independently designate THB' s primary custodial parent status in light of the statutory factors
supporting the parenting plan.
The trial court decided not to hold a new trial to take evidence regarding the
determination of THB' s primary custodial parent. Instead, the trial court allowed each side to
make a 40- minute " closing argument" addressing the RCW 26. 09. 187( 3)( a) factors. RP ( Sept.
14, 2012) at 11. We hold that this procedure was consistent with our mandate. We did not
expressly order a new trial, and there is no indication that the trial court needed to gather
additional evidence to make its independent determination.
44151 -9 -II / 44961 -7 -1I
Reed argues that the trial court did not engage in an independent consideration of the
RCW 26. 09. 187( 3)( a) factors, and instead simply " attach[ ed] the seven factors to its original
decision." Br. of Appellant at 27. There is some support in the record for this argument. Early
in the process, the trial court interpreted our opinion as requiring the trial court to state a basis for
the decision it made previously. The trial court stated, " I think it' s clear from the Court of
Appeals that they want me to enter Findings of Facts and Conclusions of Law, based on the
RCW submitted, as to why I entered the parenting plan that I did based on hearing the evidence I
did." RP ( June 15, 2012) at 11 - 12. Similarly, the trial court stated, " I think what I' m going to
have to do is just simply look at the transcript and come up with some Findings of Fact and
Conclusions of Law as to why I did what I did." RP ( June 15, 2012) at 4.
However, despite the trial court' s earlier statements, it appears that it did independently
review the RCW 26. 09. 187( 3)( a) factors and reconsider the primary custodial parent designation.
The trial court allowed each party to reargue the issue based on the statutory factors. The trial
court then entered detailed findings of fact on the seven statutory factors and " reaffirmed" its
2009 ruling " consistent with the Court' s evaluation of the factors." CP at 108. This language
indicates that the trial court independently assessed the primary custodial parent designation in
light of the statutory factors but ultimately arrived at the same decision. Neither the decision nor
the language of the conclusions is inconsistent with an independent review. We therefore hold
that the trial court complied with our directions.
2. Reliance on Previous Designation of Brown as Primary Custodial Parent
The trial court based its conclusion that Brown would be the primary custodial parent in
part on " the fact that the mother has been designated the primary custodial parent by the Court,
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throughout this proceeding." CP at 108. Reed argues that the trial court erred in concluding that
Brown' s time as primary custodial parent under the .temporary parenting plan supports a final
determination that Brown should be the primary custodial parent under the permanent plan as
well. We disagree.
Reed relies on In re Marriage ofKovacs, in which our Supreme Court held that a trial
court may not presume that the primary custodial parent under a temporary parenting plan will
remain the primary custodial parent under the final parenting plan. 121 Wash. 2d 795, 808 -09, 854
P.2d 629 ( 1993). However, there is no indication in the record that the trial court applied such a
presumption. Instead, the trial court reasonably inferred from the circumstances that Brown had
developed a strong bond with THB due to her role as primary caregiver. The language of the
findings suggests that the trial court viewed the primary caretaker relationship, rather than
Brown' s legal designation as primary custodial parent, as the most important evidence of a
strong bond.
Inferring the existence of a strong bond between a child and his or her primary caretaker
is different than presuming that continued placement with the child' s current primary custodial
parent is in the child' s best interest, even if the ultimate effect was the same in this particular
case. We hold that the trial court did not err in considering the fact that Brown had been the
primary custodial parent for several years.
3. Findings of Fact
Reed challenges two of the trial court' s findings of fact. Findings of fact must be
supported by substantial evidence, which is defined as a quantum of evidence sufficient to
persuade a rational, fair -minded person the premise is true. In re Marriage of Wilson, 165 Wash.
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App. 333, 340, 267 P.3d 485 ( 2011). The trial court, as trier of fact, determines credibility and
weighs the evidence, and we generally will not second guess the trial court on those questions.
Wilson, 165 Wash. App. at 340. As long as substantial evidence was before the trial court, a
reviewing court will not substitute its judgment even though it may have resolved a factual
dispute differently. Wilson, 165 Wash. App. at 340. 2
a. Strength of Bond and Relationship
Reed challenges the trial court' s finding that Brown had the stronger bond with THB. He
argues that the court ( 1) improperly equated the length of time spent with the child to a bond
with the child, ( 2) based its determination on a factual error, ( 3) considered evidence outside the
scope of review, and ( 4) failed to properly consider contrary evidence he submitted. However,
we find that none of these arguments are persuasive.
i. Equation of Time Spent and Strength of Bond
Reed argues that the trial court unreasonably equated the amount of time spent with the
child and the strength of the resulting bond. We disagree.
The trial court found that THB had a stronger relationship with Brown due to the amount
of time the two spent together, while her relationship with Reed was characterized by a " lack of
consistent visitation." CP at 105. Reed seems to argue that such a finding is per se unreasonable
because it is possible to spend extensive time with a person without developing a strong bond.
However, it is reasonable to infer that a very young child will have a stronger bond with a parent
2 As a threshold matter, Reed does not clearly assign error to specific findings of fact as required
in RAP 10. 3( g). We choose to waive strict compliance with RAP 10. 3( g) and review the
findings Reed challenges.
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who is consistently present as a caregiver and companion than with a parent with whom the child
has not spent much time.
While Reed presented evidence that his own bond with THB was strengthening, he
offered no evidence that Brown' s extensive interactions with THB had not produced the strong
bond that would normally be expected. Therefore, we hold that substantial evidence supported
this finding.
ii. Factual Error Regarding Reed' s Visitation
Reed argues that the trial court erred in finding that he " had not had overnight visitations
for any substantial period and had seen the child mostly on day visits only." CP at 105.
According to Reed, this finding is erroneous because the trial court granted him two overnight
visits per week in March 2009, about six months before trial. We agree that this finding was
unsupported by substantial evidence, but we hold that the finding was not necessary to support
the trial court' s conclusions. We therefore affirm those conclusions and the resulting decision.
The trial court granted Reed one overnight visitation per week in March 2009, as
contemplated in the temporary parenting plan. At that time, THB was just over two years old.
So by the time of trial, overnight visitation had been in place for roughly one -fifth of her life.
This seems to be a substantial period relative to the child' s age. Moreover, the trial court limited
the admissible evidence to that pertaining to the period from the end of the December 2008 trial
until the time of the September 2009 trial, and Reed had overnight visitation for more than half
of that period. Therefore, it was unreasonable to find that Reed " had not had overnight
visitations for any substantial period" at the time of the September 2009 trial. CP at 105.
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However, this finding was not necessary to support the trial court' s conclusions. The
court pointed to the overall lack of consistent overnight visitation as one reason for finding that
Reed had not yet had an opportunity to develop a bond as strong as Brown' s. In effect, this issue
is not distinct from the issue of whether it is reasonable to infer that a young child will bond
more closely with its consistent primary caregiver than with a parent it sees less frequently.
The finding as to the overnight visits appears in the section of the findings on the strength
of THB' s bonds at that time. The trial court' s finding as to the substantiality of the overnight
visitation period was not necessary to support the court' s overall findings on the strength of
THB' s bonds. And only the findings on that issue were necessary to support the court' s
conclusions. We therefore hold that the trial court' s erroneous finding that Reed' s overnight
visitation period was insubstantial is immaterial.
iii. Consideration of Evidence Outside Scope
Reed challenges the trial court' s findings regarding the strength of THB' s bond with
Brown because it was based on evidence barred by the trial court' s order precluding evidence
before December 2008. As noted above, the trial court in its findings relied on the fact that
Brown had been the primary caregiver since THB was born. To the extent the court considered
Brown' s history with THB to be more than just contextual information, it would violate the
limiting order because it would require the court to consider events prior to December 2008 —
specifically, Brown' s caregiving activities between THB' s birth in February 2007 and the end of
the 2008 trial.
However, it appears that the trial court simply reconsidered Brown' s present relationship
with THB in its historical context. The court found that a bond based on Brown' s shared history
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with THB existed at the time of trial. Brown' s status as primary caregiver during THB' s infancy
simply contextualized this bond. Because the court could reasonably conclude from Brown' s
testimony that the bond remained strong at the time of trial, the court did not need to base its
ruling on any particular events or information outside the scope of its limiting order. Therefore,
we hold that the trial court did not err in referring to pre -September 2008 evidence.
iv. Failure to Consider Reed' s Contrary Evidence
Reed seems to argue that it was unreasonable for the trial court to find that Brown had a
stronger relationship with THB because Reed presented more and better evidence of the strength
of his relationship. While Reed' s evidence may appear more persuasive in the written record, we
will not disturb the trial court' s credibility and weight determinations. Wilson, 165 Wash. App. at
340. Brown did present evidence as to the strength of her relationship with THB. We hold that
the trial court did not abuse its discretion by deeming Brown' s evidence more persuasive than
Reed' s, even though the opposite decision might also have been reasonable.
b. Brown' s Parenting Ability
Reed argues that the trial court erred by finding that "[ t] here was nothing brought to the
attention of the Court ... that the mother' s past, present or future performance of the parenting
functions would be impaired in terms of the child' s daily needs." CP at 106. We disagree.
Reed points to the testimony of an occupational therapist who testified that Brown had
taken THB out of occupational therapy with the intent to enroll her in a similar therapeutic
course, but had not returned to therapy after failing to enroll in that course. However, Brown
testified that she had attempted to enroll THB in the program and was simply on a waiting list,
and did not believe that she was supposed to bring THB back to occupational therapy in the
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meantime. Notably, THB was taken off the waiting list and actually began the new therapeutic
course during the trial. The trial court apparently credited Brown' s testimony and considered the
therapist' s testimony not credible or inapposite. Because this finding turned on credibility and
evidentiary weight, we find that substantial evidence supported the finding.
4. Failure to Make Findings
Reed argues that the trial court erred by failing to address certain issues in its factual
findings as well. According to Reed, the trial court was required to address ( 1) Brown' s intent to
relocate with THB, and ( 2) Brown' s alleged abusive conduct directed toward Reed. We
disagree.
In general, a trial court must make findings of fact on all material issues. Fed. Signal
Corp. v. Safety Factors, Inc., 125 Wash. 2d 413, 422, 886 P.2d 172 ( 1994). An issue is material in
this context if a finding on that issue is necessary to support the trial court' s conclusions of law.
See Scott v. Trans -Sys., Inc., 148 Wash. 2d 701, 707 -08, 64 P.3d 1 ( 2003).
a. Relocation
Reed argues that the trial court violated our mandate in the first appeal and erred by
failing to include factual findings regarding Brown' s intent to relocate with THB. We disagree.
We stated in our earlier opinion that " in light of Brown's asserted desire to move her and
T.H.B. to Chicago, it is especially important that the trial court carefully consider all the
enumerated factors in RCW 26. 09. 187( 3)( a)." CP at 270. But we did not direct the trial court to
address relocation on remand. We directed the trial court to address the enumerated factors, and
the parents' intent to relocate is not among them. We acknowledged that Brown' s apparent
desire to relocate with THB made it "especially important" that the trial court address the RCW
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26. 09. 187( 3)( a) factors, but this does not amount to a direction that the trial court issue findings
as to Brown' s intent to relocate. Therefore, we hold that the trial court' s failure to make factual
findings on relocation did not violate our mandate.
Reed argues that because Brown previously expressed a desire to move out of the area
with THB, and such a relocation could impact several of the factors enumerated in RCW
26. 09. 187( 3)( a), the trial court was required to make factual findings as to Brown' s intent to
relocate. As Reed points out, Brown' s intent to relocate was related to several of the RCW
26. 09. 187( 3)( a) factors. But a parent' s desire and intent to relocate is not itself one such factor.
Neither does it control nor determine any of the factors.
The trial court' s findings in this case are sufficient to address the enumerated factors, and
those findings are adequately supported without findings on Brown' s intent to relocate. The
issue is therefore not material, and we hold that the trial court did not err by failing to address it
with specific findings of fact.
b. Abusive Use of Conflict
Reed also argues that the trial court erred by not addressing written materials
summarizing evidence about Brown' s alleged efforts to restrict visitation and abusive use of
conflict that had been presented at the 2009 trial. Reed seems to indicate that RCW 26. 09. 191( 3)
required the trial court to address this evidence in its findings of fact. We disagree.
RCW 26.09. 191( 3) provides only that the trial court " may preclude or limit any
provisions of the parenting plan" where a parent has abusively used conflict in a potentially
dangerous manner or withheld the child from the other parent without good cause. The trial
court clearly had discretion to weigh the persuasive value of Reed' s materials, and was not
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required to address them. Regardless, the trial court did address the matters raised in Reed' s
materials, reaffirming its earlier decision that Brown' s conduct did not violate RCW 26.09. 191.
Because specific findings on Reed' s submitted materials were not necessary to support the trial
court' s conclusions, we hold that the trial court did not abuse its discretion by omitting
discussion of the materials in its findings of fact.
B. CHILD SUPPORT ORDER
Reed assigns a number of errors to the trial court' s handling of the child support order on
remand. As noted above, we review child support orders for an abuse of discretion. Fiorito, 112
Wash. App. at 663. A trial court does not abuse its discretion as long as it considers all relevant
factors and the award is not unreasonable. Fiorito, 112 Wn. App. at 664. We hold that the trial
court did not abuse its discretion regarding the child support order.
1. Acceptance of Brown' s Worksheets
Reed argues that the trial court erred by accepting Brown' s worksheets when they were
1) incomplete, and ( 2) based on information outside the scope of admissible evidence. We
reject both arguments.
a. Incomplete Worksheets
Reed argues that the trial court erred in accepting Brown' s worksheets when the
worksheets did not include her income from a side business she owned. RCW 26. 19. 035( 3)
provides that "[ t]he court shall not accept incomplete worksheets or worksheets that vary from
the worksheets developed by the administrative office of the courts."
But Reed did not challenge Brown' s worksheets for omitting her business income until
his motion for reconsideration. Under CR 59, the trial court may decline to address arguments
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made for the first time on a motion for reconsideration, as long as the court does not abuse its
discretion. River House Dev. Inc. v. Integrus Architecture, PS, 167 Wash. App. 221, 231, 272 P.3d
289 ( 2012). And new evidence may generally only serve as grounds for granting a motion for
reconsideration when it is newly discovered and " could not with reasonable diligence have
discovered and produced at the trial." CR 59( a)( 4).
While Brown' s side business was addressed at the 2009 trial, Reed did not produce
evidence of her personal income from that business. Reed did not seek to discover information
about Brown' s business income prior to the September 2012 hearing and produced no such
evidence at that hearing. Even when Reed raised his motion for reconsideration, he offered only
speculative estimates of Brown' s income and did not seek production of the actual data. The
trial court therefore had insufficient data with which to assess Brown' s business income. We
hold that the trial court did not abuse its discretion by accepting Brown' s worksheets. 3
b. Financial Data Outside the Scope of Evidence
Reed claims that by accepting Brown' s worksheets, the trial court erroneously considered
evidence outside the scope of its order limiting the evidence to that available at the time of the
2009 trial. Reed points to two pieces of evidence he believes the court should not have
considered: ( 1) Brown' s 2009 and 2010 tax returns, and ( 2) a medical bill from 2010. We reject
these arguments.
3 Reed points to Brown' s late disclosure of her worksheets prior to the September 2012 hearing
as the reason for his failure to provide the necessary data or at least raise the issue of Brown' s
failure to provide those data. But he failed to raise the issue in his letter to the court sent more
than a week after that hearing, even though he made other arguments related to Brown' s
proposed worksheets.
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i. 2009 and 2010 Tax Returns
Brown provided the trial court with her 2009 and 2010 tax returns for income verification
purposes. RCW 26. 19. 071( 2) requires tax returns " for the preceding two years" and pay stubs to
verify each party' s income. Reed argues that Brown' s use of the tax returns for income
verification violated the court' s order limiting evidence to that available at the time of the 2009
trial because neither document was created until October 2011 ( and could not even have been
created until after the time of trial).
But the trial court asked the parties to submit relevant supplemental financial information
on remand. It appears that Brown already had provided 2007 and 2008 tax returns to the trial
court before the September 2009 trial. Reed does not point to any relevant authority requiring
the trial court not to accept the supplemental tax returns for verification purposes. He also does
not suggest that the trial court considered information in the tax returns related to the period after
the September 2009 trial. Therefore, Reed has not shown that the trial court abused its discretion
by accepting Brown' s 2009 and 2010 tax returns in September 2012 for the purpose of assessing
her financial circumstances in September 2009.
ii. Medical Bill
Brown provided the court with a medical bill for $ 115. 28, and claimed the billed amount
as medical expenses on her worksheet. The bill was for three visits, two of which occurred after
the 2009 trial. Had Reed brought this to the court' s attention, the court seemingly would have
been bound by its own order to reject at least the portion of the expenses related to the two post -
trial visits. However, Reed did not bring this to the trial court' s attention despite having
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opportunities to do so. Under RAP 2. 5( a), "[ t] he appellate court may refuse to review any claim
of error which was not raised in the trial court."
Reed now claims that because Brown provided the worksheets to him only three days
before the September 2012 hearing, he did not have enough time to inspect them and discover
the error. But, as noted above, Reed challenged other aspects of the worksheets in his letter to
the court, as well as in his motion for reconsideration and at later hearings. Reed even
challenged the proportional credit of the billed amount, but did not challenge the use of the bill
or the deductibility of the expenses. The failure to do so deprived the trial court of an
opportunity to address the likely mistake. Under RAP 2. 5( a), we decline to review this issue on
appeal.
2. Failure to Impute Income
Reed argues that the trial court failed to impute income to Brown for voluntary
unemployment or underemployment when calculating her income. However, the court did
impute income to Brown. Reed actually appears to be suggesting that the court abused .its
discretion by disagreeing with him as to the amount of income to impute. Reed points to no facts
or law suggesting that the trial court abused its discretion. Instead, he directs our attention to his
presentation to the trial court of highly speculative calculations as part of his motion for
reconsideration, which the trial court considered and rejected. We hold that the trial court did
not abuse its discretion in rejecting Reed' s proposed calculations.
3. Refusal to Deduct Reed' s Business Expenses
Reed argues that the trial court erred by failing to deduct his net expenses from an
apartment building from his income for purposes of calculating his child support obligation. But
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Reed did not raise this issue to the trial court before moving for reconsideration of the trial
court' s order, and the trial court did not abuse its discretion by refusing to deduct these expenses.
Among the expenses that the trial court shall deduct from a parent' s income for purposes
of setting child support obligations are "[ n] ormal business expenses." RCW 26. 19. 071( 5)( h).
Reed argued at the hearing on his motion for reconsideration that the net expenses from the
apartment should be deducted from his income as normal business expenses. Reed had
previously provided some evidence of his business expenses before the court entered its child
support order. But he specifically disclaimed any deduction of the net loss amount in a letter to
the court in September 2012. He also claimed no business expenses in his original proposed
worksheet. Only the proposed worksheet Reed presented on the day of the reconsideration
hearing included a deduction of the expenses. Therefore, Reed did not raise the issue of the
business expenses deduction before his motion for reconsideration.
At the reconsideration hearing, Reed explained that he could not have requested
deduction of the business expenses because he never received recalculated worksheets from
Brown after the trial court requested those worksheets in an October order. However, Reed
already had disclaimed the business expenses deduction in his letter to the court and associated
worksheet before the court issued that order. Moreover, the ordered changes to Brown' s
recalculated worksheets did not include consideration of Reed' s business expenses. Reed
therefore did not have a good excuse for failing to argue for the deduction, and the trial court did
not abuse its discretion by refusing to deduct these expenses at the reconsideration stage.
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4. Incorrect Start Date
Reed argues that the trial court abused its discretion by making the child support order
effective retroactive to April 2009 instead of September 2009, the date of the previous trial. We
disagree.
Reed states that " the court made clear that it would not allow materials that preceded the
date of the trial" and that the order therefore could not have retroactive effect. Supp. Br. of
Appellant at 15. But this both misstates the evidentiary limitations on remand and draws an .
incorrect legal conclusion. The trial court limited the evidence it would consider to what was
available at the time of the 2009 trial and refused to allow materials that preceded the 2008 trial.
But even if Reed had stated that evidentiary limitation correctly, his conclusion would not follow
because the effective date of the order did not depend on what evidence was allowed.
Reed also seems to argue that the date was arbitrary. A trial court abuses its discretion by
acting arbitrarily. Harris v. Drake, 152 Wash. 2d 480, 493, 99 P.3d 872 ( 2004). But the court did
not set an arbitrary date. At the culmination of the 2008 trial, the court scheduled a review of the
temporary parenting plan for April 17, 2009. The court intended to enter a final support order at
that review hearing. While the actual final order was greatly delayed by the reassignment,
second trial, appeal, and remand proceedings, that order should have been entered in April 2009.
Therefore, we find that the trial court did not abuse its discretion in setting the start date for
Reed' s adjusted child support obligations at April 2009.
C. . ATTORNEY FEES
Reed challenges the trial court' s award of $400 in attorney fees to Brown for responding
to Reed' s October 2012 motion for reconsideration of the final parenting plan. RCW 26. 09. 140
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grants the trial court broad discretion in assessing attorney fees in the context of child support
and parenting plan proceedings " after considering the financial resources of both parties." We
review the amount awarded for attorney fees for an abuse of discretion. Unifund, 163 Wash. App.
at 484.
In light of the considerable disparity between Reed' s and Brown' s financial resources and
the fact that Reed incurred no overt cost for his pro se appearance while Brown was paying an
attorney to represent her, $ 400 was not an unreasonable amount. We therefore hold that the trial
court did not abuse its discretion in awarding Brown $400 in attorney fees.
For the reasons described above, we affirm the trial court' s parenting plan, child support
order, and award of attorney fees.
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:
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