Opinion
No. 52396-1-I Consolidated with 52602-2-I
Filed: July 12, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 99-3-02274-6. Judgment or order under review. Date filed: 05/22/2003. Judge signing: Hon. Joan E DuBuque.
Counsel for Appellant(s), Darrel Lance Lahtinen, Attorney at Law, 606 Post Ave Ste 101, Seattle, WA 98104-1445.
Jean Marie Schiedler-Brown, Attorney at Law, 606 Post Ave Ste 101, Seattle, WA 98104-1445.
Counsel for Respondent(s), Michael T. Schein, Maltman Reed Ahrens Malnati PS, 801 2nd Ave Ste 1415, Seattle, WA 98104-1517.
When issues not raised by the pleadings are tried by consent of the parties, they are treated in all respects as if they had been raised in the pleadings. Here, at a trial respondent, Heather Stark, presented evidence by affidavit in support of specific items of relief not requested in her petition for modification of child support. Appellant, John Brunsman, did not object to this evidence, and failed to respond to Stark's proposed order that set forth all the relief Brunsman now contends was granted in error. We hold that the issues related to the additional items of relief were tried by the parties' implied consent, and we deem the petition amended to conform to the proof adduced at trial. Because substantial evidence supports each item of relief Stark requested, the trial court did not err in entering the support modification order. We affirm.
FACTS
In April 2000, Brunsman was ordered to pay support for two children born of the marriage, Jake and Britten, in the amount of $1,219.24 per month. This amount was based on evidence showing that Brunsman's gross monthly income at the time was $5,847.00 and his net monthly income was $4,408.67. At the same time, Stark's monthly income, gross and net, was $1,488.00.
By February 2003, when the support modification order was entered, Brunsman's gross monthly income had increased to $10,000, while his net monthly income had increased to $6,912.23. At the same time, Stark's gross monthly income was $2,170, while her net monthly income was $1,931.42. Other circumstances had also changed by 2003. Jake was to attend college in another state, which necessitated post-secondary educational support, and Stark had developed an illness that caused her health care costs to increase and her income to decrease. Stark also presented evidence showing that Brunsman had understated his true financial circumstances, and that he had paid for a number of personal expenses through his business.
Based on this evidence, which Stark presented at a trial by affidavit, the trial court found a substantial change of circumstances, increased the amount of support for Britten, ordered a $500 per month upward deviation from the standard support calculation based on an extrapolation from the parties' combined income and to account for the cost of supporting Jake when he would be home during school breaks, awarded post-secondary educational support for Jake, and ordered Brunsman to account for and release funds that he was holding on the children's behalf. The trial court also found that Brunsman had failed to timely and fully comply with discovery requests and applicable laws and rules regarding the disclosure of information to Stark, and that Brunsman had submitted inaccurate information to the court and misrepresented his income and assets.
Brunsman filed a motion for reconsideration of the modification order, which the trial court denied. Brunsman also filed a motion for revision of an order of terms, the support modification order, and the order denying reconsideration. The trial court denied this motion as well. Next, Brunsman filed a `motion for new trial/to vacate 4/22/03/to modify order.' The trial court also denied these motions.
Brunsman appeals from the modification order, the denial of the motion for reconsideration, the denial of his motion for revision, and the denial of his motion for new trial.
DECISION
Brunsman claims the trial court erred in a number of respects when it entered the support modification order and denied various post-trial motions. Although his briefing is extremely unclear about what specific errors he claims the trial court made, it is sufficiently clear that he contends: (1) that the trial court exceeded its authority by awarding relief that Stark did not request in her petition, (2) that a number of the trial court's findings are not supported by substantial evidence or were not made at all, (3) that the trial court should have granted Brunsman's motion for oral testimony, and (4) that the award of attorney fees was excessive.
1. Relief awarded
Brunsman argues that the following items of relief were not requested in the petition and therefore should not have been granted in the order: (1) a deviation upward in child support; (2) an order that all funds held for the children's benefit be turned over to the mother; (3) an order for an accounting of the children's funds for the previous ten years, and that any funds withdrawn therefrom be replenished; (4) an order that the father ensure the children receive their inheritance; and (5) an order barring the father from communicating with the children regarding their post-secondary educational costs or decisions.
Brunsman is correct that Stark's petition did not specifically request each of these items. But certain issues developed during discovery about which Stark presented evidence at the trial by affidavit. Brunsman admits that he did not object to this evidence, and that, despite receiving two continuances for the purpose of preparing a response, he twice failed to respond to Stark's proposed order, which set forth all the relief Brunsman only now complains of.
Under Civil Rule 15, when issues not raised by the pleadings are tried by implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Jeschke v. Jeschke also controls here. In Jeschke, the appellant argued that the respondent had failed to state sufficient facts in her petition for modification of a child custody order. The court held that the sufficiency of the petition was irrelevant once evidence supporting the petition was presented. After observing that `evidence was taken at the hearing, in which both parties fully participated,' the court held that `[t]he petition is therefore to be considered as amended to conform to the proof if the facts were properly before the trial court or the evidence was admitted without objection.' Here, as in Jeschke, Stark presented evidence supporting specific items of relief, and Brunsman did not object to it. Consequently, we consider the petition amended to conform to the evidence the trial court admitted, and we hold that the trial court did not err by granting relief relating to the issues that were tried with the parties' implied consent.
Jeschke v. Jeschke, 16 Wn.2d 617, 134 P.2d 464 (1943).
Jeschke, 16 Wn.2d at 619.
Jeschke, 16 Wn.2d at 619.
Jeschke, 16 Wn.2d at 619-20.
We further conclude that the admitted evidence supported the relief ordered. Stark's declarations regarding Brunsman's income, the existence of various funds held by Brunsman for the benefit of his children, and Brunsman's communication with his children were all based on his own admissions or on business records that Brunsman himself produced during discovery. In addition, the trial court explained that it based the upward deviation on several factors, including an extrapolation of combined net income, `[a] significant disparity in the livings costs of the parents due to conditions beyond their control,' and the additional expenses Stark will incur in providing Jake with shelter and food when he is home from school. [CP 1271] The trial court's findings are supported by substantial evidence, and we conclude that the court did not err by ordering the requested relief.
2. Motion for oral testimony
Brunsman also claims the trial court erred by denying his motion for oral testimony. Brunsman made this motion on the day of trial, several months after the deadline for filing such a motion had passed. [CP 8] He fails to explain how the trial court abused its discretion by denying such an untimely motion, or what `extraordinary circumstances' aside from circumstances brought about by his own intransigence and disregard for court rules and procedures necessitated oral testimony. This argument therefore fails.
See King County Local Rule 94.04(h)(7)(C)(iv).
3. Attorney fees
Next, Brunsman claims the trial court erred by awarding Stark her attorney fees because she was able to pay them and because the trial court awarded the fees in a punitive way. Brunsman cites one case for the proposition that attorney fee awards in domestic relations cases are based on an equitable determination, not simply on a lodestar calculation. This is, of course, a correct proposition of law. But the trial court's substantiated findings as to the parties' incomes show that it did not abuse its discretion in awarding fees based on the parties' relative need and ability to pay.
See In re Marriage of Van Camp, 82 Wn. App. 339, 918 P.2d 509 (1996).
As to the issue of whether a trial court may or may not award attorney fees in a purportedly punitive way, Brunsman cites no authority. Where no authorities are cited in support of a proposition, we are not required to search them out, but we may assume that counsel, after a diligent search, has found none. This claimed error is not well taken. Indeed, several cases stand for the proposition that where a party is found to be intransigent, the trial court may order that party to pay attorney fees, regardless of financial status. Here, literally hundreds of pages in the record contain overwhelming evidence of Brunsman's intransigence at virtually every stage of this litigation. The trial court therefore did not err by awarding attorney fees to Stark.
DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).
See, e.g., Mattson v. Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999).
We have considered Brunsman's remaining arguments including those related to the order of post-secondary educational support, the mistakes committed by his former attorney, and his request to have original documents returned to him and we conclude that they have no merit.
We affirm. Stark's request for attorney fees and costs on appeal is granted.
We decline to address Stark's motion to dismiss parts of Brunsman's appeal because of a purported untimely notice of appeal. The issue upon which Stark bases her motion was not briefed in the trial court, and the facts relating to this issue are not sufficiently developed to enable us to conclude that we are without jurisdiction to consider Brunsman's appeal from this order.