Opinion
No. 61818-1-I.
March 9, 2009.
Appeal from a judgment of the Superior Court for King County, No. 08-3-01765-0, Patricia H. Clark, J., entered May 13, 2008.
Affirmed by unpublished opinion per Schindler, C.J., concurred in by Appelwick and Leach, JJ.
Theodore Biery challenges the trial court's order that he pay a proportionate share of the cost of his daughter's placement at a therapeutic boarding school after her repeated hospitalizations for mental health issues following suicide attempts and other dangerous behavior. Because the trial court properly determined that the terms of the support order requiring Biery to pay a proportional share of extraordinary health care expenses include such costs, we affirm.
FACTS
Cheri Estes and Biery are the parents of N.M. N.M. has resided primarily with her mother all of her life. In 1993 the parties entered an agreed child support order in a Whatcom County parentage proceeding. The parties never married, and have never obtained a parenting plan for N.M. through legal action.
Based on the relative incomes of the parties, the 1993 support order sets a fixed amount of monthly support for Biery to pay Estes and provides that Biery must also pay 64 percent of "extraordinary health care expenses."
In 2002, the parties agreed to modify the support order to require Estes to provide medical insurance for N.M. and agreed that "any additional costs not covered by insurance will be split . . . in the percentages set forth in the original court order." The parties did not change or modify the 1993 requirement to pay extraordinary health care expenses on a proportional basis or the base monthly support. While the parties' incomes have risen considerably over the years, there has been no other modification or adjustment of the child support order.
In 2006, N.M. began experiencing serious mental health issues, which led to self-destructive behavior including self-mutilation, substance abuse, and running away to live on the streets. Out-patient therapy was unsuccessful, and N.M. continued to display dangerous behavior. After a suicide attempt in November, 2006, N.M. was placed in Fairfax Hospital for psychiatric treatment. N.M. was eventually released and Estes filed an At-Risk-Youth petition, which was granted, but N.M. continued to have difficulties and was readmitted to Fairfax in December 2006. Released again, her problems continued, and in January 2007, N.M. was admitted to Northwest Behavioral Healthcare in Portland, Oregon, where she stayed for a month of treatment.
After returning home, N.M.'s behavior deteriorated again. She ran away a number of times and was caught stealing at her school. N.M. was readmitted to Northwest Behavioral Healthcare in March and remained there until April 15. The day after she came home she attempted suicide by combining Estes' antidepressant medication with alcohol. After N.M. was released from a medical hospital she was readmitted to Fairfax, where she was placed on 72 hours suicide watch.
Based on consultation with N.M.'s therapists, Estes sought a placement for N.M. to provide her a safe and therapeutic setting when she was released from Fairfax. As N.M.'s release became imminent, Estes was able to enroll N.M. in Sister's Academy, an "emotional-growth boarding school for 'at-risk' adolescent females" in Oregon. The average stay at Sister's Academy is between fourteen and eighteen months, and the base monthly cost is $4,785. Estes attempted to discuss the placement with Biery, but he did not respond before she had to make the decision about moving N.M. to Sister's Academy directly following her release from Fairfax.
Estes placed N.M. at Sister's Academy. Within a few days, Biery informed Estes that he did not approve of the placement. He rejected Estes' request that he contribute 64 percent of the monthly fee and instead suggested N.M. live with him. Estes did not agree to withdraw N.M. from Sister's Academy.
Estes and her husband exhausted their insurance and took out loans to pay N.M.'s costs at Sister's Academy. After several months, Biery visited N.M. at Sister's and participated in counseling with her there. Biery continued to pay his regular child support obligation, but still refused to contribute to the cost of Sister's. Estes eventually filed a petition in the King County Superior Court to enforce the 1993 order and require Biery to contribute his proportional share of the cost of N.M.'s stay at Sister's. She also filed a motion for contempt for Biery's refusal to do so.
After a show cause contempt hearing based on affidavits, a court commissioner granted Estes' request to enforce 1993 the order, finding that the costs of N.M.'s placement at Sister's Academy qualified as an extraordinary health care expense under the terms of the order. The commissioner accordingly entered a judgment of $26,660 against Biery. The judgment amount represented 64 percent of the Sister's Academy costs to date, but included an offset for the regular support Biery had paid to Estes after N.M. entered Sister's. Characterizing the issue as legitimately debatable, the commissioner declined to find Biery in contempt.
Biery moved to revise the commissioner's order. At the hearing, the court rejected Biery's arguments that N.M.'s problems were not as great as Estes had claimed and that placement at Sister's therefore was not justified:
We're talking about a young woman who has begun to involve herself in self-harm. In cutting on herself, she — yes she is not going to school, yes, she is running away to be with [her boyfriend], but more serious . . . she is making an attempt on her own life, that is way above and beyond teenage angst.
The court entered written findings that N.M.'s placement at Sister's Academy constituted a "medical intervention" that was a "medical necessity" given N.M.'s diagnosed mental health issues, and reached the same result as the commissioner in all respects.
Biery appeals.
ANALYSIS
The allocation of the support obligation between a child's parents is governed by RCW 26.19.080. Under RCW 26.19.080(1), the basic monthly obligation is derived from the economic table and is allocated based on each parent's share of the combined monthly net income. Ordinary health care expenses are included in the basic obligation, but under RCW 26.19.080(2):
. . . Monthly health care expenses that exceed five percent of the basic support obligation shall be considered extraordinary health care expenses. Extraordinary health care expenses shall be shared by the parents in the same proportion as the basic child support obligation.
We review a trial court's decision regarding amounts required for child support beyond the basic support obligation for abuse of discretion. RCW 26.19.080(4); In re Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999). We will not reverse such a decision unless it is manifestly unreasonable, or based on untenable grounds or reasons. In re Marriage of Fiorito, 112 Wn. App. 657, 663-64, 50 P.3d 298 (2002). A trial court's unchallenged findings of fact are verities on appeal. In re Marriage of Possinger, 105 Wn. App. 326, 338, 19 P.3d 1109 (2001). Challenged findings of fact will be upheld if they are supported by substantial evidence. In re Marriage of Crosetto, 82 Wn. App. 545, 560, 918 P.2d 954 (1996). Determinations of credibility and the weight to give competing evidence are left to the trier of fact and are not subject to review. In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).
Biery contends that the trial court erred by misusing its contempt powers to order an improper retroactive modification of child support when no petition for modification was filed. He further argues that substantial evidence does not support the finding that the Sister's Academy costs constitute extraordinary health care expenses within the meaning of the support order, and alternatively contends that even if it did, the court abused its discretion by failing to consider whether the costs were reasonable under all of the circumstances. We disagree with each contention.
Biery first argues that the only proper purpose of a contempt hearing is to determine whether an individual has intentionally violated a court order. He therefore contends that once the court determined that he was not in contempt, the matter should have ended. But Estes filed both a petition to enforce the decree and a motion for contempt. Moreover, Washington courts have long recognized that trial courts in contempt proceedings are not limited to the question of contempt, but are authorized to consider and determine the extent to which the parties should perform the duties imposed upon them by support orders. In re Marriage of Watkins, 42 Wn. App. 371, 373, 710 P.2d 819 (1985), citing Bradley v. Fowler, 30 Wn.2d 609, 621, 192 P.2d 969 (1948).
We also reject Biery's related argument that the court's actions constituted an improper retroactive modification of the Whatcom County support order. A "modification" occurs "when a party's rights are either extended beyond or reduced from those originally intended." In re Marriage of Christel, 101 Wn.App. 13, 22, 1 P.3d 600 (2000). But in this case the court did no more than properly enforce RCW 26.29.080 and the plain language of the support order requiring Biery to pay a proportional share of N.M.'s extraordinary health care expenses.
Biery nonetheless contends that the court erred in concluding he was responsible for paying a proportionate share of the costs of N.M.'s placement at Sister's as a reasonable and necessary health care expense. This argument also fails.
It was undisputed that N.M.'s problems were so severe that they had led to suicide attempts and other extremely dangerous behavior. Biery has not challenged the trial court's specific written findings that N.M.'s placement at Sister's was medically necessary for her well being:
The court finds that this placement was a medical necessity.
The court finds that the child has been diagnosed with mental health disorders and that the action taken by the mother rises to the level of medical intervention.
These unchallenged findings are verities. Possinger, 105 Wn. App. at 338.
Moreover, substantial evidence supports the findings. We interpret "necessary and reasonable expenses" in a manner that serves the best interests of the child. Mattson, 95 Wn. App. at 600. Biery focuses on the academic aspects of Sister's Academy to argue that N.M.'s placement there cannot be considered an extraordinary health care expense. But the trial court was entitled to give great weight to the features of the Sister's Academy program providing an individual treatment plan and a cognitive behavioral approach to address N.M.'s mental health issues. And it was undisputed that the cost exceeded five percent of the basic support obligation for N.M. The court properly concluded that Biery was required to pay a proportional share of the cost as an extraordinary health care expense under RCW 26.19.080(2) and the plain language of the 1993 order. See also Burdo v. Burdo, 93 A.D.2d 922, 462 N.Y.S.2d 333, 334 (1983) (treatment of parties' daughter at alcohol and drug rehabilitation clinic properly considered a medical expense); Helmes v. Schultze, 161 N.C. App. 404, 588 S.E.2d 524, 528-29 (2003) (costs of drug treatment center and psychiatric care properly required to be paid under obligation to pay children's unreimbursed reasonable medical, psychiatric, and psychological expenses).
Biery also contends the trial court should have disregarded the opinion of N.M.'s counselor Carol L. Haynes, who supported N.M.'s placement at Sister's Academy as the best response to dealing with N.M.'s diagnosed condition of bipolar disorder. He contends Haynes was merely a "sympathetic social worker," but the record shows that Haynes has twenty years experience as a state-certified children's mental health specialist and was thoroughly acquainted with N.M. and her family's circumstances. Contrary to Biery's contention, the trial court was entitled to rely on Haynes' opinion that Sister's Academy provided the type of structured therapeutic program that N.M. required, and that further attempts to treat N.M. in the community were unlikely to succeed. Burrill, 113 Wn. App. at 868.
In the alternative, Biery argues that even if it is clear that N.M. needed further psychological treatment and placing her in a facility was necessary, the trial court nonetheless abused its discretion. He argues the record contains no basis to conclude that Sister's Academy's charges are reasonable under the circumstances, or that the costs of treatment at Sister's could not be apportioned separately from the academic components of the program, which he should not be required to support.
As for the overall costs, however, the record contains Estes' declaration that she began looking into long-term placements after N.M.'s final discharge from Northwest Behavioral Health when N.M.'s doctors suggested that she required full-time supervision. In the three days Estes then had to locate a placement during N.M.'s final stay at Fairfax, Estes researched several potential recommended placements and chose Sister's as less expensive than Northwest Behavioral and the least expensive of several other options. The court was entitled to find Estes credible, and given Biery's gross annual household income of over $195,000, was also entitled to conclude that the costs, though substantial, were reasonable under all of the circumstances.
Biery generally complains that the support ordered for N.M.'s stay at Sister's constituted a seven-fold increase over his basic support obligation. But his monthly payment had for many years been much lower than supjport based on the schedule. Also without separately assigning error, Biery repeats complaints he aired*in the trial court that Estes' decision to place N.M. at Sister's Academy was unilateral. But as the trial court observed, the absence of a parenting plan, which Biery could have sought over the years, effectively left Estes in the position of a pre-parenting act custodian required to make such decisions. Moreover, Estes did attempt, albeit unsuccessfully, to involve Biery in the decision.
As for the contention that the court should have attempted to separate the academic components of N.M.'s placement at Sister's Academy from the therapeutic components, Biery did not raise this argument to the trial court, instead maintaining consistently that Sister's provided only an educational program and therefore no portion of the expense could be justified. Accordingly, we decline to consider this contention for the first time on appeal. RAP 2.5.
Moreover, as Estes argues, RCW 26.19.080(3) provides the trial court authority to apportion costs of expenses such as private school tuition among the parents in the same proportion as the basic support obligation in any event.
Both parties request attorney fees on appeal. Biery requests fees under RCW 26.09.140. To award fees under this statute on appeal, this court examines "the financial resources of both parties." In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990). These considerations do not support an award of fees to Biery, who has greater financial resources than Estes. Estes requests fees under RCW 26.18.160, which makes an award of fees mandatory to the prevailing party "[i]n any action to enforce a support or maintenance order," regardless of the parties' financial circumstances. Estes is the prevailing party on appeal. We accordingly award Estes her reasonable fees on appeal under RCW 26.18.160 in an amount to be determined by a commissioner of this court, subject to Estes' compliance with RAP 18.1.
We affirm.