Opinion
Nos. 61951-9-I; 62556-0-I.
January 11, 2010.
Appeals from a judgment of the Superior Court for King County, No. 00-3-07408-9, James A. Doerty, J., entered October 3, 2008.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Dwyer, J., concurred in by Schindler, C.J., and Ellington, J.
In these consolidated appeals, Lawrance Edwards challenges the trial court rulings requiring him to reimburse 43.1 percent of his older daughter's postsecondary education expenses, denying his motion to vacate that order, denying his motion to hold Julea Edwards in contempt for failure to comply with the residential schedule as to his younger daughter, and awarding attorney fees to Julea. He does not establish that the trial court ignored the appropriate factors, abused its discretion or otherwise violated constitutional or statutory standards when it set his share of postsecondary education expenses, denied his motion for contempt and denied his motion to vacate. For lack of adequate findings, the awards of attorney fees are reversed and remanded for further proceedings. With the exception of the attorney fee rulings, the trial court orders are affirmed.
For ease of reference, we refer to the parties by their first names.
FACTS
In 2001, the superior court entered an agreed order of child support, including the provision that: "The parents shall pay for the postsecondary educational support of the children. Postsecondary support provisions will be decided by agreement or by the court." The adjusted order of child support entered in 2006 retained that same provision. Lawrance's proportional share of income from the 2006 child support worksheets was 43.1 percent.
In the spring of 2008, Julea filed a motion to enforce the child support order including medical, dental, vision, and orthodontia expenses as well as a request for payment of the 18-year-old daughter's college expenses. On May 23, 2008, a superior court commissioner heard the motion and entered a judgment awarding Julea $877 for the children's medical, dental, and vision expenses together with $3,202 for orthodontia expenses. The May 23, 2008 order also requires Lawrance to reimburse Julea for 43.1 percent of the 18-year-old daughter's college expenses, after deducting loans, financial aid, and scholarships. The commissioner found that:
The father has 3 postsecondary degrees including a J.D. . . . and that [the older daughter] is an honors student and that she has been accepted to the University of Washington, and based on the parties income, it is appropriate for the father to contribute to the cost of [the daughter's] postsecondary education.
The commissioner awarded Julea $2,000 in attorney fees.
Lawrance filed a motion to revise. On June 16, 2008, a superior court judge denied the motion to revise and awarded Julea an additional $500 in attorney fees.
In August 2008, Lawrance filed a motion for contempt alleging that Julea had frustrated his recent efforts to exercise residential time with his 17-year-old daughter. He also filed a CR 60 motion to vacate the May 23 and June 16, 2008 orders and to enforce the residential schedule from the original parenting plan. On October 3, 2008, the superior court judge denied the motion for contempt and awarded Julea $2,000 in fees:
The court finds that the father is the primary cause of the failure of his relationship with his children and the reason they do not want to see him. Per RCW 26.09.160(4) the mother has a reasonable excuse for failing to comply with the parenting plan regarding visitation with [the 17-year-old daughter]. Julea Edwards is awarded $2,000 in attorney's fees.
The court also denied the motion to vacate and awarded Julea an additional $2,000 in attorney fees:
There is no basis under CR 60 to vacate the orders; respondent is simply rearguing his case. . . . The motion to enforce the residential schedule is denied as the father has been the primary cause in the failure of his relationship with his children and the reason they do not want to see him. For these reasons, the court finds that this motion was brought in bad faith. Julea Edwards is awarded $2,000 in attorney's fees.
Lawrance's appeals of the May 23, June 16, and October 3, 2008 orders have been consolidated on appeal.
ANALYSIS
Lawrance's eleven assignments of error address four topics: the order setting his share of postsecondary education expenses, the denial of his motion for contempt, the denial of his motion to vacate, and the awards of attorney fees.
Postsecondary Education Expenses. A trial court has broad discretion to set the amount of postsecondary support with reference to the child's needs, and we will not overturn that amount absent an abuse of discretion. See In re Marriage of Kelly, 85 Wn. App. 785, 792-93, 934 P.2d 1218 (1997). A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. In re Marriage of Schumacher, 100 Wn. App. 208, 211, 997 P.2d 399 (2000). A court also abuses its discretion if its decision is based on an erroneous view of the law. Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993). Additionally, the appellant has the burden of providing an adequate record for review. In re Marriage of Haugh, 58 Wn. App. 1, 6, 790 P.2d 1266 (1990).
Lawrance offers a flurry of challenges to the order on college expenses, but his arguments lack merit and he provides an inadequate record on appeal. First, he contends that the trial court failed to apply RCW 26.19.090 to determine whether he had any obligation to pay postsecondary expenses, and that the trial court failed to enter required findings of fact. RCW 26.19.090(2) guides the court's discretion in setting the parameters of an order for postsecondary support:
The court shall exercise its discretion when determining whether and for how long to award postsecondary educational support based upon consideration of factors that include but are not limited to the following: 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. Also to be considered are the amount and type of support that the child would have been afforded if the parents had stayed together.
But here, the parties agreed in 2001 that they would pay for postsecondary education expenses. If unable to agree to the amount, they agreed that they would turn to the court to set the amount. Under an "agreement with open terms, the parties intend to be bound by the key points agreed upon with the remaining terms supplied by a court or another authoritative source." Keystone Land Dev. Co. v. Xerox Corp., 152 Wn.2d 171, 176, 94 P.3d 945 (2004). The agreed child support order, including the postsecondary education provision, is the equivalent of an agreement with open terms. Julea did not seek to modify the child support order, but merely to enforce the agreed support order. The question whether the parties would pay for college expenses was not before the trial court. The only question was each parent's share of the college expenses.
Further, even assuming that the trial court's enforcement of the support agreement is guided by the nonexclusive factors set forth in RCW 26.19.090, the limited record on appeal reveals that the trial court was presented with information on those factors. The court was advised of the older daughter's age, her admission to the University of Washington, her scholarship applications, her financial aid, her use of her earnings to pay personal expenses, the parent's level of education, and the resources and income of the parents. The parents' expectation to provide a college education is clear from the 2001 support agreement.
Lawrance also contends that the trial court failed to make necessary findings. The statute does not indicate that express findings are required and Lawrance cites no persuasive authority for such a requirement. Further, "[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. Here the trial court received testimony regarding the factors. Consistent with the holding in Kelly, we presume the trial court considered the evidence provided in the pleadings before ordering postsecondary support. Additionally, the trial court found that:
Contrary to Lawrance's suggestion, In re Marriage of Scanlon, 109 Wn. App. 167, 181, 34 P.3d 877 (2001) does not hold that findings are required. Rather the court noted the absence of either findings or evidence as to the factors and held "[a]bsent evidence supporting an award of postsecondary educational expenses and support, the order was at best premature."
The father has 3 postsecondary degrees including a J.D. . . . and that [the older daughter] is an honors student and that she has been accepted to the University of Washington, and based on the parties income, it is appropriate for the father to contribute to the cost of [the daughter's] postsecondary education.
We are satisfied from the findings and the record on appeal that the court gave due consideration to the statutory factors.
Regarding the finding that the older daughter is an honors student, the declarations in support of Julea's motion refer to the daughter's admission to the University of Washington, but do not contain any express reference to high school honors. Because Lawrance has not provided a complete report of proceedings of the May 23, 2008 hearing, we cannot determine whether this point was in dispute at the hearing. Further, even in the absence of testimony that the daughter was an honors student, the daughter's admission to the University of Washington is consistent with her success in high school, and supports the trial court's exercise of its discretion to set the amount of Lawrance's share of college expenses.
Second, Lawrance offers numerous arguments that the trial court abused its discretion in requiring him to pay college expenses. But there were tenable reasons to enforce the agreement to provide for postsecondary education expenses, and to require Lawrance to pay those expenses in the same proportion as his 43.1 percent share of income. His contention that he could not be required to pay for college expenses in the absence of a relationship with his daughter lacks any support in Washington case law. Lawrance's arguments that more detailed facts could have been presented to the trial court regarding his daughter's exact needs, her financial aid requests, her scholarship applications, her earnings, and her ability to attend a less expensive college do not establish that the trial court abused its discretion on the information provided by both parents. Lawrance provides no compelling authority that an express finding of dependency is a prerequisite to enforcement of an agreed order to pay for postsecondary education expenses.
The authority Lawrance cites from other jurisdictions does not support any relief. For example, Gac v. Gac, 796 A.2d 951 (N.J. Super. Ct. App. Div. 2002) holds only that trial court should have considered the fact that child had rebuffed ex-husband's attempt to establish a relationship, but that undisputed fact, standing alone, did not necessarily eradicate ex-husband's obligation to make appropriate contributions for child's college education.
Third, Lawrance contends that under the holding in Kelly, his older daughter was a necessary party to the proceedings. But Kelly merely holds that when a petition to modify a child support order is filed before the child turns 18, then the trial court has jurisdiction to consider and decide the petition after the child turns 18. Here, there was no petition to modify support, only a motion to enforce the support order. Lawrance cites no authority that an 18-year-old high school senior is a necessary party to enforce an agreed child support order for postsecondary education expenses.
Fourth, Lawrance contends that his agreement to pay college expenses is subject to a variety of contract defenses including failure of an implied condition precedent that he retains a relationship with his daughter, and an alleged breach of an implied covenant of good faith and fair dealing. He also asserts frustration of purpose, and public policy considerations regarding "the fundamental importance of the parent child relationship and the need for frequent and continuous contact between the children and parents." But the cases he cites to do not address comparable factual settings. He provides no authority that his own failure to maintain a relationship with his daughter releases him from his agreement. It was not an abuse of discretion to conclude that the failed relationship is not a defense to enforcement of a support obligation and to reject his other contract defenses.
Fifth, Lawrance offers unpersuasive constitutional challenges to the order to pay postsecondary educational expenses. Constitutional arguments that have not been adequately briefed need not be addressed on appeal. Spokane v. Taxpayers, 111 Wn.2d 91, 96, 758 P.2d 480 (1988). Lawrance contends he was denied equal protection, but does not compare groups similarly situated. He argues he has a First Amendment right not to associate with the University of Washington, but he offers absolutely no authority that a parent has a First Amendment right to veto a particular educational institution. He argues that article 1, section 12 of the Washington Constitution and his fundamental right to parent shield him from paying for the education of a child he has no relationship with, but does not cite any authority on point. Lawrance has not adequately briefed his constitutional arguments and fails to establish any constitutional right to evade an agreement to provide for his child's college expenses.
Finally, Lawrance has not provided a complete transcript of the arguments on the motion to enforce the support agreement or any of the pleadings filed on the motion to revise. His challenges to the substance of the May 23 and June 13, 2008 orders fail for lack of an adequate record.
The clerk's papers include a transcript of the trial court's May 23, 2008 oral decision, but no record of the proceedings during the hearing prior to the oral decision. Regarding the June 16, 2008 denial of his motion to revise, Lawrance has not included his motion to revise or any response to the motion.
Motion for Contempt. Lawrance's challenge to the denial of his motion for contempt is, in effect, an attack upon the credibility of Julea's evidence that he is the primary cause of the failure of his relationship with his daughters. Sufficient evidence supports the trial court's determination that Julea had a reasonable excuse for refusing to force her 17-year-old daughter to engage in a four week summer placement after several years of no face-to-face contact with Lawrance.
We review a trial court's decision in a contempt proceeding for an abuse of discretion. In re Marriage of James, 79 Wn. App. 436, 439-40, 903 P.2d 470 (1995). We review the trial court's factual findings for substantial evidence. In re Marriage of Myers, 123 Wn. App. 889, 893, 99 P.3d 398 (2004). Credibility determinations are not reviewed on appeal. In re Marriage of Rideout, 150 Wn.2d 337, 352, 77 P.3d 1174 (2003). "Once the moving party has established a prima facie case, the responding parent must rebut that showing with evidence of legitimate reasons for failing to comply with the parenting plan. RCW 26.09.160(4)." James, 79 Wn. App. at 442-43.
Soon after the superior court rejected his motion to revise the order requiring him to pay college expenses for his 18-year-old daughter, Lawrance sought to exercise the provision in the parenting plan allowing four weeks of residential placement with his 17-year-old daughter during the summer. Lawrance had not had any face-to-face contact with the 17-year-old for several years and Julea vigorously opposed Lawrance's efforts to fly the 17-year-old daughter to California to see him.
On August 1, 2008, Lawrance appeared in King County Superior Court for an ex parte hearing before the same judge who had denied his motion to revise. Lawrance sought a current order that he is entitled to spend four weeks with the younger daughter. He argued that the matter should be heard without notice because "as soon as she finds out she's going to run." The court told Lawrance that he would have to give notice and that it would be better if he filed a motion to show cause for contempt for failing to comply with the residential schedule. Lawrance filed his motion for contempt and a separate CR 60 motion to vacate.
In response to the motion for contempt, Julea argued that she had a reasonable excuse for failing to comply with the residential schedule in view of the entire history of the relationship between Lawrance and his daughters. She asserted that Lawrance had destroyed his relationship with both daughters and he was seeking the four weeks of residential placement in retaliation for the recent order requiring him to pay college expenses. Julea acknowledges that the daughters need their father, but contends that Lawrance needs to rebuild the relationship slowly. The trial court ruled that Lawrance is the primary cause of the failure of his relationship with the children and Julea had a reasonable excuse for failing to comply with the parenting plan regarding the 17-year-old daughter.
The record contains pages of e-mails, letters, and documents regarding the relationship between the parents and the daughters over the years. Many of those documents reveal an antagonistic relationship between the parents. But in several documents, Julea expressed her desire that Lawrance maintain his relationship with his daughters and recounted their need to maintain a relationship with him. Lawrance focuses upon a June 15, 2005 letter from the daughters he views as their termination of his relationship with them. But that letter and other documents reveal the daughters' frustration with Lawrance's strict, demanding and unsupportive parenting style. In 2006, Lawrance returned a Christmas card from his daughters and enclosed their childhood photos. Julea testified that the return of these items was devastating to the children.
The trial court was not compelled to accept Lawrance's theory that Julea had prompted and encouraged the daughters to discontinue their relationship with him. There is substantial evidence to support the finding that Lawrance was the primary cause of the failure of his relationship with his daughters. Lawrance argues that the trial court directed him to file the motion for contempt, but the trial judge's comment at the June 1, 2009 ex-parte hearing was not a finding by the trial court that there was a reasonable basis for such a motion. The trial court did not abuse its discretion in determining that Julea had a reasonable excuse not to force the 17-year-old daughter into a four week summer visit with Lawrance after years of no face-to-face contact.
Motion to Vacate. The key question regarding the trial court's denial of Lawrance's motion to vacate under CR 60(b)(1)(3)(4)(5)(6) and (11), is whether he was merely rehashing the same arguments previously rejected by the court or whether he demonstrated any legitimate basis for relief. A trial court's decision on a motion to vacate a judgment under CR 60(b) is reviewed for an abuse of discretion. In re Marriage of Tang, 57 Wn. App. 648, 653, 789 P.2d 118 (1990). Lawrance argues that "the fraud, misrepresentation, misconduct, newly discovered evidence, and irregularity were [Julea's] refusals to allow the youngest daughter and [Lawrance] to exercise their time together and that behavior of [Julea] contradicted the testimony [Julea] provided 23 May 2008 and 12 June 2008." The same trial judge who denied the motion to revise the May 23 support order heard the motion to vacate. The court concluded that Lawrance was merely rearguing the case. Lawrance points to "new evidence" in the form of his detailed analysis of Julea's financial information, contending that he did not realize until he saw detailed bank records that there was a discrepancy between the bank records and Julea's reported income. But relief under CR 60(b) for new evidence requires a showing that the evidence would likely change the outcome of the proceedings and could not have been discovered by the exercise of due diligence. Lawrance does not establish that the discrepancy in Julea's financial information could not have been discovered before the May 23, 2008 hearing, and it is not clear that his analysis of financial records would probably change the determination that he should pay 43.1 percent of the college expenses. He also points to new arguments that Julea contradicted her earlier testimony that the children wanted to pursue a relationship with him, and she failed to provide academic records as ordered by the court on May 23. But he does not establish that either of these arguments compelled the trial court to vacate the prior ruling. Lawrance fails to demonstrate that the trial court abused its discretion by denying the motion to vacate and concluding that motion was brought in bad faith. Attorney Fees. Lawrance challenges all of the fee awards made in the trial court. Other than the mention of bad faith on the motion to vacate, the trial court did not articulate the specific basis for any of the awards of attorney fees. The trial court did not set out the specific basis for computing the amount of any of the awards. Where a trial court fails to provide sufficient findings of fact and conclusions of law to develop an adequate record for appellate review of the fee award, we will vacate the judgment and remand for a new hearing and the entry of findings of fact and conclusions of law regarding the fee award. Bobbitt, 135 Wn. App. at 30. The awards of attorney fees in the trial court must be vacated and this matter remanded for the entry of findings of fact and conclusions of law regarding the fee awards.
Go2Net, Inc. v. C I Host., Inc., 115 Wn. App. 73, 88, 60 P.3d 1245 (2003).
When one party acts in bad faith by engaging in foot-dragging and obstruction the equitable grounds of intransigence is established. In re Marriage of Greenlee, 65 Wn.App. 703, 708, 829 P.2d 1120 (1992); In re Marriage of Eide, 1 Wn.App. 440, 445, 462 P.2d 562 (1969).
Attorney Fees on Appeal. Julea requests attorney fees on appeal on multiple grounds. Lawrance requests fees on appeal with no citation to authority as required by RAP 18.1. Julea prevailed in defending the enforcement of the support order under RCW 26.18.160. She has not filed the declarations necessary to establish need and ability to pay as required by RCW 26.09.140 and RAP 18.1(c). She does not establish that the appeal was entirely frivolous.
We award Julea her reasonable attorney fees incurred on appeal limited to the issues of the enforcement of the support order, provided that she timely provides an affidavit of fees and expenses as required by RAP 18.1(d), segregating the fees incurred on those issues.
Affirmed in part and reversed and remanded for further proceedings.
Because Julea established a reasonable basis for an extension of time to file her respondent's brief, we deny Lawrance's request for sanctions regarding the extension of time.
We concur: