In re the Marriage of: Roger L. Aldrich & Mary Beth Aldrich

FILED
DECEMBER 20, 2018
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of ) No. 35748-1-III
)
ROGER L. ALDRICH, )
)
Appellant, )
) UNPUBLISHED OPINION
and )
)
MARY BETH ALDRICH, )
)
Respondent. )
LAWRENCE-BERREY, C.J. — Roger Aldrich appeals the court commissioner’s
decision reducing, instead of terminating, his monthly obligation to pay lifetime spousal
maintenance to Mary Beth Aldrich. We affirm.
FACTS
Mr. Aldrich and Ms. Aldrich were divorced on June 4, 2010. As part of the
divorce decree, the trial court entered detailed findings related to Ms. Aldrich’s request
for lifetime maintenance. In essence, the trial court found that Mr. Aldrich’s earning
capacity was greater than his current $60,000 salary, he had unique skills as a security
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expert, and those skills “should be in demand for the foreseeable future.” Clerk’s Papers
(CP) at 10. On the other hand, Ms. Aldrich had chronic depression and 30 years of
mental health treatment. These conditions made it “difficult for her to work full time and
she is presently not employable.” CP at 10. The trial court ordered Mr. Aldrich to pay
Ms. Aldrich lifetime spousal maintenance in the monthly amount of $2,500, plus 35
percent of any net monthly income over $5,000 per month. In 2010, Mr. Aldrich was 62
years old.
In February 2015, Mr. Aldrich’s employer, Center for Personal Protection and
Safety (CPPS), notified him of a decrease in his salary from $140,000 to $105,000 due to
less demand for its services. In May 2015, CPPS informed Mr. Aldrich that his position
with the company had been eliminated and offered him a new position at a further-
reduced salary of $70,000 per year. Eventually, this position was eliminated on August 1,
2015.
Mr. Aldrich filed a petition for modification of spousal maintenance on
September 1, 2015. At that time, he continued to work for CPPS, but as an independent
contractor. CPPS paid him $1,000 per day on an “‘as needed’” basis. CP at 580.
Income from this arrangement totaled $20,500 between January 2016 and June 2016.
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The matter was heard by a court commissioner on May 9, 2016. The court
commissioner dismissed Mr. Aldrich’s petition to modify. He appealed the dismissal, and
we reversed with instructions to reconsider his request.
On September 11, 2017, the parties reargued their positions to the court
commissioner. The court commissioner issued a letter decision that was incorporated by
reference into the commissioner’s later findings and conclusions. We number and
summarize the pertinent findings:
1. Since the 2010 order, there have been changes in the security industry, and
CPPS specifically, in which Mr. Aldrich’s circumstances have substantially changed.
2. Ms. Aldrich’s argument that Mr. Aldrich is purposefully unemployed is not
supported by actual evidence.
3. Mr. Aldrich makes $7,682.00 in gross monthly income: $2,149.79 from Air
Force Retirement, $2,198.44 from a Federal Civil Service Annuity, $1,668.00 from Social
Security and approximately $1,666.00 from income from CPPS. Deductions of $1,934.00
bring his net income to $5,748.00. His stated expenses total $4,430.00, which leaves an
excess of $1,318.00 each month.
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4. Ms. Aldrich lists gross income of $6,034.00 per month: $970.41 in
retirement, $1,630.00 from Social Security, and $3,425.00 from other sources. Deducting
approximately $1,300.00 in taxes (22 percent), her net income is approximately $4,734.00
per month. Based on her stated monthly expenses of $6,512.00, the commissioner
determined that Ms. Aldrich has a need for an additional $1,700.00 each month.
From these findings, the court commissioner concluded:
Based on consideration of the factors that play into maintenance, namely
RCW 26.09.060 . . . it appears that Ms. Aldrich has the need and Mr.
Aldrich has the ability to pay continuing maintenance in the amount of
$1,300 each month, under the same terms as previously ordered, for the
lifetime of Ms. Aldrich or until she remarries.
CP at 581.
The court commissioner required the maintenance award to be covered by an
appropriate life insurance policy on Mr. Aldrich with Ms. Aldrich listed as the
beneficiary. The reduction in maintenance was ordered retroactive to September 1, 2015,
the date Mr. Aldrich filed his petition for modification. To account for overpayments
made since September 1, 2015, the court reduced Mr. Aldrich’s monthly payment to
$1,000 until such time as the full amount is credited back to him.
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Mr. Aldrich appeals.
ANALYSIS
Mr. Aldrich raises two central arguments on appeal: (1) The court commissioner
abused its discretion in not terminating his monthly spousal support obligation, and
(2) the court commissioner abused its discretion in not awarding a judgment for
overpayments and not terminating the insurance requirement. Before we can address Mr.
Aldrich’s two central arguments, we need to determine the facts before us.
Mr. Aldrich lists 17 separate assignments of error. Of these, 8 relate to contested
findings. The contested findings pertain to the parties’ income and expenses set forth
above in items 3 and 4. Mr. Aldrich does not contest the challenged findings in any
organized manner. Instead, he reargues the evidence he presented, including the expert
opinion he offered concerning his current and future earning capacity. The court
commissioner struck that expert’s opinion. Mr. Aldrich has not assigned error to this or
otherwise explained why the court commissioner erred in this regard.
An appellant must demonstrate why specific findings of the trial court are not
supported by the evidence and cite to the record in support of that argument. In re Estate
of Lint, 135 Wash. 2d 518, 532, 957 P.2d 755 (1998). In the absence of a clear challenge,
we treat findings of fact as verities on appeal. In re Estates of Palmer, 145 Wash. App.
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249, 265, 187 P.3d 758 (2008). For this reason, we accept the court commissioner’s
findings relating to the parties’ incomes and expenses.
A. DECISION NOT TO TERMINATE SPOUSAL MAINTENANCE
We review a modification order to determine if the trial court’s findings are
supported by substantial evidence and whether it made legal error. In re Marriage of
Hulscher, 143 Wash. App. 708, 713, 180 P.3d 199 (2008). We review the trial court’s
decision of whether or how much to modify for an abuse of discretion. In re Marriage of
Drlik, 121 Wash. App. 269, 274, 87 P.3d 1192 (2004).
Mr. Aldrich raises four arguments to support his contention that the court
commissioner erred by not terminating spousal maintenance: (1) spousal maintenance was
ordered to be paid out of his separate property award, (2) the decision was
based on 2010 income and expense information, (3) the decision was erroneously based
on RCW 26.09.060 instead of RCW 26.09.090, (4) the decision failed to consider his
ability to meet his own financial needs while meeting those of his former spouse, and
(5) Ms. Aldrich has no continual need for spousal maintenance.
1. The record is unclear whether Mr. Aldrich is required to pay spousal
maintenance out of his separate property award
Mr. Aldrich argues the court commissioner erred by requiring him to pay the
reduced spousal maintenance out of his separate property award.
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In In re Marriage of Mathews, 70 Wash. App. 116, 125, 853 P.2d 462 (1993) and In
re Marriage of Barnett, 63 Wash. App. 385, 388, 818 P.2d 1382 (1991), we held that
spousal maintenance cannot be ordered to be paid from sources awarded to the obligor
spouse as that spouse’s separate property.
The court commissioner found that Mr. Aldrich’s monthly income from CPPS was
approximately $1,666. The finding is unclear whether this is gross or net monthly
income. In reviewing the September 11, 2017 argument, it is clear this is a net figure.
See CP at 593. Because Mr. Aldrich’s net income from CPPS is greater than $1,300, the
reduced spousal maintenance, we conclude that the court commissioner did not require
him to pay spousal maintenance from his separate property.
2. The court commissioner’s 2017 decision was based on the most
current income and expense information provided by the parties
Mr. Aldrich argues the court commissioner erred in basing its decision on 2010
income and expenses. The record does not support his argument. The court
commissioner’s 2017 decision was based on the most recent income and expense
information provided by the parties.
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3. The court commissioner’s decision shows it was based on
RCW 26.09.090, and its references to RCW 26.09.060 were
unintended and had no bearing on the decision
Mr. Aldrich argues the court commissioner erred when it based its decision on
RCW 26.09.060, which pertains to temporary spousal maintenance or child support.
Mr. Aldrich correctly notes that the court commissioner cited RCW 26.09.060 in
its decision and again in its findings and conclusions. The citations were unintended and
had no bearing on the decision. The decision itself notes that Mr. Aldrich requested
modification of spousal maintenance. The court commissioner no doubt intended to cite
RCW 26.09.090.
4. The decision did not fail to consider Mr. Aldrich’s ability to meet his
own needs
Mr. Aldrich argues the court commissioner erred by failing to consider whether he
could meet his financial needs while meeting those of his former spouse.
RCW 26.09.090 requires a court to consider various factors when determining
whether and how much spousal maintenance to award. One factor is the ability of the
obligor to meet his or her needs after paying the obligee. RCW 26.09.090(1)(f). We
conclude that the court commissioner considered this factor.
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Mr. Aldrich is paid $1,000 per day by CPPS, and works on an as-needed basis.
The court commissioner found that Mr. Aldrich’s average gross monthly earnings from
CPPS were $1,666. This equates to him working less than two days per month.
The court commissioner found that Mr. Aldrich’s total monthly net earnings
exceeded his monthly expenses by $1,318. It then set Mr. Aldrich’s monthly spousal
maintenance obligation at $1,300, which is less than $1,318. This establishes that the
court commissioner considered RCW 26.09.090(1)(f).
5. Ms. Aldrich’s lack of need for continued spousal maintenance was
not sufficiently raised below
Mr. Aldrich argues the court commissioner erred by not terminating spousal
maintenance because Ms. Aldrich lacks the need for continued maintenance. Ms. Aldrich
responds, “Mr. Aldrich’s entire Petition was based on his inability to pay maintenance
and not Ms. Aldrich’s [lack of] need for maintenance. No one argued that there was a
change in circumstance for Ms. Aldrich.” Resp’t’s Br. at 14. Mr. Aldrich, citing Clerk’s
Papers 359 to 360, argues that he raised the issue in his July 25, 2017 declaration.
Mr. Aldrich’s two-page declaration is a response to Ms. Aldrich’s request to
continue the hearing on his petition. In his declaration, Mr. Aldrich emphasizes his
efforts to have the hearing occur promptly and Ms. Aldrich’s efforts to delay the hearing.
He argues that delay is causing him “serious and irreparable damage” because spousal
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maintenance should be terminated. CP at 360. He then re-emphasizes that Ms. Aldrich
has continually delayed the matter and notes her lack of financial need as shown by her
habit of depositing monthly payments quarterly instead of monthly. In the declaration,
Mr. Aldrich never argues that his petition should be granted because Ms. Aldrich lacks
the need for continued spousal maintenance.
The parties argued the matter to the court commissioner on September 11, 2017.
Mr. Aldrich’s argument was that his ability to earn had substantially decreased. He did
not argue that Ms. Aldrich lacks the need for continued spousal maintenance.
Under RAP 2.5(a), an appellate argument not first made in the trial court generally
is waived. The purpose of the rule is to encourage the efficient use of judicial resources.
State v. O’Hara, 167 Wash. 2d 91, 98, 217 P.3d 756 (2009). When arguments are not raised
below, the trial court is deprived of an opportunity to make necessary findings for
appellate review.
Here, Mr. Aldrich did not argue to the commissioner that spousal maintenance
should be terminated because Ms. Aldrich lacked the need for continued maintenance.
His failure to argue this resulted in the court commissioner not making necessary findings
for appellate review. We, therefore, do not consider this argument on appeal.
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B. NO JUDGMENT FOR OVERPAYMENTS AND REQUIRING CONTINUATION OF
INSURANCE
1. Set-off of overpayments not an abuse of discretion
Mr. Aldrich argues that the court commissioner abused its discretion when it failed
to award him a judgment for spousal maintenance overpayments.
RCW 26.09.170(1) authorizes a court to modify spousal maintenance only as to
installments accruing after the petition to modify is filed and only upon a showing of a
substantial change in circumstances. The statute does not direct a trial court how to
compensate an obligor for overpayments made between the filing of the petition and the
court’s modification order.
Here, the court commissioner elected to modify the monthly spousal obligation
retroactively to when Mr. Aldrich filed his petition, 24 months earlier. This benefitted
him considerably. He now complains that the court commissioner abused its discretion in
not allowing him to enter a judgment against Ms. Aldrich. A judgment would accrue 12
percent interest per annum, and would permit a full offset of spousal maintenance until
the principal and interest is paid.
Mr. Aldrich cites In re Marriage of Glass, 67 Wash. App. 378, 835 P.2d 1054
(1992), and argues a court is required to enter judgment for a retroactive reduction of
spousal maintenance. Glass stands only for the proposition that support payments that
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have accrued become a vested judgment, and statutory interest must be added to those
judgments. Id. at 389. Here, Ms. Aldrich received monthly spousal maintenance
pursuant to a court order. The modification of that order did not result in a vested
judgment for support paid prior to the modification.
The court commissioner, having benefitted Mr. Aldrich considerably by making
the reduced spousal maintenance retroactive, did not abuse its discretion by not further
benefitting him with a judgment.
2. Mr. Aldrich may reduce the face value of the term life insurance
Mr. Aldrich argues that the face value of the term life insurance policy should be
reduced because the monthly spousal maintenance obligation has been reduced. We
direct Mr. Aldrich to Exhibit K of the 2010 Divorce Decree. “[Mr. Aldrich] may review
the insurance coverage periodically, based on the average life expectancy, and adjust the
coverage face value on the policy accordingly.” CP at 29.
Mr. Aldrich may adjust the face value of the term insurance policy. If Ms. Aldrich
disputes the reduced face value, that issue can be resolved by the appropriate judicial
officer.
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Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Lawrence-Berrey, C.J.
WE CONCUR:
Fearing, J.
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