Opinion
No. 56787-0-I.
July 31, 2006.
Appeal from a judgment of the Superior Court for King County, No. 94-3-05226-1, Theresa B. Doyle, J., entered August 10, 2005.
Counsel for Appellant(s), Wendy Rae Gelbart, Attorney at Law, 4957 Lakemont Blvd SE Ste C4, Bellevue, WA 98006-7801.
Catherine Wright Smith, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Valerie a Villacin, Edwards, Sieh, Smith Goodfriend, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Counsel for Respondent(s), Steven Jeffrey Fields, Attorney at Law, 18222 104th Ave NE Ste 101, Bothell, WA 98011-3491
Affirmed in part, reversed in part, and remanded by unpublished opinion per Cox, J., concurred in by Grosse and Dwyer, JJ.
Three separate orders that enforce, adjust, and modify, respectively, provisions of an August 1997 child support order are before us for review. Michael Silverman appeals the denial of revision of the three most recent orders. We affirm in part and reverse in part.
Michael Silverman and Catherine Kendall dissolved their marriage in 1997. Their parenting plan provides that they share almost equal time with their four sons, Nate, Bennett, Eric, and Troy Silverman. The original child support order required Silverman to pay $1,050.00 per month to Kendall for the couple's four children, a 25 percent downward deviation from the standard calculation. The order also required the parents to equally share expenses for daycare, extraordinary medical expenses, and educational expenses including extracurricular activities. The order contained an annual adjustment provision, which was to take effect in August 1998. But neither party sought adjustment on the effective date. Finally, the order reserved the issue of the parents' post-secondary support obligations.
A September 24, 1998 Order on Family Law Motion established a procedure for reimbursement of the parents' shared expenses. We discuss the specifics of this order later in this opinion.
In March 2001, the parties reached an oral agreement that the father would provide additional monthly support to the mother because of her distressed financial situation. Silverman paid the additional support until August 2002, at which time he reduced his payments to the level set forth in the 1997 order.
In March 2005, Silverman moved for an order enforcing the 1997 order of child support, seeking reimbursement for 50 percent of what he characterized as educational expenses. He also moved for modification. That same month, Kendall moved for adjustment of support for the years 1999 through 2004.
The motions to enforce and adjust child support were heard together by a court commissioner. Another court commissioner heard the modification motion.
The first commissioner granted Silverman's request for enforcement, but significantly reduced the amount of reimbursement and awarded him attorney fees less than he requested. The commissioner also granted Kendall's motion for adjustment.
Following a trial by affidavit, the second commissioner granted Silverman's motion for modification of the child support order. Among other things, the court ordered that funds in Guaranteed Education Tuition (GET) accounts the father had established for the children after dissolution of the marriage be applied to support before the parents' respective contributions were required. Silverman moved for revision of all three orders, which a superior court judge denied. Silverman appeals.
ENFORCEMENT
Silverman argues that the court abused its discretion in reducing the amount of reimbursements he requested in his order for enforcement. He also contends the court abused its discretion in awarding him only $750 in attorney fees. We disagree with both arguments.
Once the superior court makes a decision on a motion for revision, any further appeal is from the superior court's decision, not the commissioner's ruling. This court's review of factual questions, including an attorney's fee determination, is limited to determining whether substantial evidence supports the court's finding of fact. We review questions of law de novo.
State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004).
In re Marriage of Stern, 68 Wn. App. 922, 928, 846 P.2d 1387 (1993).
Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006).
Reimbursement Amount
The 1997 support order required a 50/50 division of payments for "educational expenses for the children of the parties only. These include any preschool, private school, tutoring, summer school, and extracurricular activity of the children." The September 24, 1998 Order on Family Law Motion provided:
In the future, if either party claims reimbursement, the claim must be submitted to the other party in writing within 30 days. The party receiving the claim must either pay it or object in writing within 15 days, or the claimed expense will be deemed accepted.
Clerk's Papers at 103.
Silverman moved for reimbursement of numerous expenses he had incurred, dating back to 1998. In her response, Kendall objected, for the first time, to certain expenses that she claimed were not legitimate educational expenses. She had known of these expenses, but had not objected within the time limitations of the September 1998 order. Silverman claimed her failure to timely object barred her from objecting in response to the motion. The court commissioner and superior court disagreed, thereby reducing Silverman's award to $992.26.
Silverman does not seriously argue that the court's decision to disallow certain expenses was outside the range of permissible choices to the extent of the nature of those expenses. Rather, he argues the court had no discretion to evaluate the expenses because Kendall failed to follow the procedures outlined in the court's September 1998 order.
In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 (1997).
The better practice would have been for both parties to follow the procedures outlined in that order. But the court below was in the best position to determine that it would enforce the provisions of its August 1997 support order by limiting reimbursement to educational expenses while suspending, for this motion only, the procedural requirements of its September 1998 order. We note that Silverman does not identify true prejudice by the court's approach in this case. And we see none. In short, we cannot say that the court abused its discretion by reducing the amount of reimbursement to what it concluded were truly educational expenses, as directed by the original support order.
Attorney Fees on Enforcement Motion
Silverman contends that the trial court abused its discretion by awarding him attorney fees of $750, rather than the full amount of his $2,500 request.
"RCW 26.18.160 entitles the prevailing party to a recovery of costs, including an award for attorney fees, in `any action to enforce a support order under this chapter.'" But the statute requires only that an award of reasonable fees be made to the prevailing party.
In re Marriage of Nelson, 62 Wn. App. 515, 519, 814 P.2d 1208 (1991).
There is no authority for the proposition that the court abused its discretion by not granting the full fee request. Likewise, there is no authority for the proposition that $750 is not reasonable here. There was no abuse of discretion here.
ADJUSTMENT
Silverman argues that the trial court abused its discretion in granting Kendall's motion for retroactive adjustment of child support. He maintains that the court should have denied the request on the basis of laches and equitable estoppel. We disagree.
In an assignment of error, Silverman also contends that the court lacked sufficient information to make an informed decision on the motion because Kendall provided inadequate financial information for each year she sought adjustment. However, because he provides no argument on this assignment of error, we do not address it. See RAP 10.3(a)(5); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Laches
"Laches is an equitable defense designed to prevent injury to the party asserting it, if such injury is caused by his opponent's delay." The party asserting laches bears the burden of proof. "Absent unusual circumstances, the doctrine of laches should not be invoked to bar an action short of the applicable statute of limitation." To defend a claim of laches, the defendant must prove: (1) the plaintiff had knowledge of the facts constituting a cause of action or could have discovered them; (2) the plaintiff unreasonably delayed in filing the claim; and (3) the defendant was damaged by the delay.
Nettles v. Beckley, 32 Wn. App. 606, 608, 648 P.2d 508 (1982).
.
In re Marriage of Capetillo, 85 Wn. App. 311, 317, 932 P.2d 691 (1997) (quoting In re Marriage of Hunter, 52 Wn. App. 265, 270, 758 P.2d 1019 (1988)).
Marriage of Capetillo, 85 Wn. App. at 317.
The laches defense has met mixed results in the context of claims for back child support, and its application is fact-specific. Here, Silverman argues that laches barred Kendall's claim because she presented no explanation as to why she had waited six years to seek an adjustment. In addition, he contends that he was harmed because the delay resulted in Kendall's presenting incomplete financial documentation, which prevented him from verifying Kendall's income when she finally sought adjustment. Finally, he asserts that because the parties temporarily adjusted support after an oral agreement, and Kendall did not pursue court action, Silverman refrained from himself seeking a modification of support when one of their sons lived exclusively with him for a period of time.
See id. (laches not a defense where 10 year delay resulted from mother's fear of father, her inability to pay an attorney, and father demonstrated no prejudice from delay); In re Marriage of Sanborn, 55 Wn. App. 124, 128, 777 P.2d 4 (1989) (delay of 28 months not unreasonable); Marriage of Hunter, 52 Wn. App. at 270 (laches did not apply to seven year delay where mother knew father could not pay); Nettles, 32 Wn. App. at 609 (laches did not apply to 13 year delay in bringing paternity and child support action where father presented no evidence of damage or injury); In re Marriage of Leslie, 112 Wn.2d 612, 620, 772 P.2d 1013 (1989) (delay in bringing action to modify support not unduly long when obligor waited for resolution of obligee's court action).
Mere delay, lapse of time, acquiescence, standing alone, do not bar a claim brought within the statute of limitations.
.
Even if Kendall's delay was unreasonable, Silverman fails to demonstrate how he was damaged by the court's refusal to apply the doctrine of laches. "A defendant cannot prove damage simply by showing he is having to do now what he has been legally obligated to do for years."
Marriage of Capetillo, 85 Wn. App. at 318.
Silverman cites In re Marriage of Dicus to support his claim, but that case is distinguishable. There, the father asserted a claim for an offset of support and then subsequently abandoned the claim. He then waited 13 years — beyond the statute of limitations — to litigate the claim. He presented no facts at all to justify "such an unusually long delay." Here, as explained by both parties, the parties jointly agreed to refrain from filing for adjustment as the father agreed to voluntarily pay additional support. In addition, Kendall testified that, over the years, she had repeatedly requested Silverman's financial information but he had refused to provide it.
110 Wn. App. 347, 357, 40 P.3d 1185 (2002).
Marriage of Dicus, 110 Wn. App. at 357.
Id.
Based upon the foregoing, we conclude that the court properly decided to not apply a laches defense. There was no error in denying revision.
Equitable Estoppel
Silverman argues that Kendall's claim should have been barred on the basis of equitable estoppel. However, Silverman did not argue estoppel to either the commissioner at the adjustment hearing or to the judge on his motion for revision. We decline to consider this argument, which Silverman raises for the first time on appellate review.
RAP 2.5(a).
MODIFICATION
Silverman argues that the court erroneously decided the question of the division of the parents' post-secondary support obligations, the transfer payment, and the amount of Kendall's current net income. We agree in part.
Post-Secondary Support
Silverman argues that the trial court incorrectly ordered that the GET accounts be applied toward the children's post-secondary support before imposing an obligation on Kendall to pay her proportionate share of the support. We agree.
Postsecondary support must be apportioned according to the net income of the parents as determined under applicable law. Unchallenged findings are verities on appeal.
In re Marriage of Daubert, 124 Wn. App. 483, 505, 99 P.3d 401 (2004).
State v. Hill, 123 Wn.2d 641, 644, 870 P.2d 313 (1994).
Here, the unchallenged finding by the court was that "[t]he existing GET accounts funded by the father shall be next applied to [college] expenses." That finding is a verity on appeal.
Clerk's Papers at 575 (emphasis added).
In Marriage of Daubert, this court held that postsecondary child support must be apportioned according to the net income of the parents, as determined by the governing statutes. The court is required to consider the basic needs of the student and the expenses of attendance once it decides that postsecondary support is appropriate. One parent's ability to pay more is not sufficient justification for ordering more support. In this case, the court determined that the children should first make a contribution of 20 percent of their college expenses to their education. Neither party objects to that determination. Thereafter, the court ordered that the GET accounts should then be applied to postsecondary expenses. This was error. Under Daubert, the obligations of the parents are to be shared in proportion to their net incomes, using the governing law to calculate those incomes. Ignoring this requirement by first requiring the application of GET accounts to the postsecondary obligation before the parents' duty to pay is imposed impermissibly departs from this requirement.
Id. at 505.
Id. at 498 (citing In re Marriage of Scanlon, 109 Wn. App. 167, 179-80, 34 P.3d 877 (2001)).
Kendall relies on oral remarks the court made. Among those remarks the court appears to have stated that the "funds are in constructive trust for the children, so they should be next applied." We note that the oral remarks were neither stated in the written findings nor expressly incorporated into them. The court's written findings are the court's final determination of the issues before it. So we need not consider the court's oral remarks for purposes of the court's final order. Moreover, there is no authority cited for the proposition that GET accounts that are funded by a parent are gifts to children under the circumstances of this case.
See In re Marriage of Griffin, 114 Wn.2d 772, 777, 791 P.2d 519 (1990) (A trial court's findings may be supplemented or clarified by its oral opinion.).
Kendall's reliance on In re Marriage of Boisen is misplaced. In Marriage of Boisen, the parties entered into a separation agreement that obligated the ex-husband to pay half of their children's college expenses. Thereafter, the ex-wife remarried and, after she and her second husband separated, he paid the children's college expenses directly from his separate funds. The ex-wife claimed reimbursement of one-half of the college expenses under the separation agreement finding that although the ex-husband had not paid his obligation under the separation agreement, his obligation under the separation agreement had been fulfilled.
87 Wn. App. 912, 943 P.2d 682 (1997).
Id. at 914.
Id. at 915.
Id. at 921.
As Silverman argues, a key difference here is that the funds being applied are not third party funds. As the court expressly found, he established the GET accounts. Absent any written findings that the accounts were funded in whole or in part by others, Marriage of Boisen is inapplicable.
The court has broad discretion in the matter of postsecondary education expenses to order what is necessary and fair. Here, the parties' presumptive proportional shares of income to support those expenses are the appropriate measure of dividing those expenses. The ruling to the contrary is incorrect.
In re Marriage of Newell, 117 Wn. App. 711, 718, 72 P.3d 1130 (2003); see also Childers v. Childers, 89 Wn.2d 592, 601, 575 P.2d 201 (1978); In re Marriage of Kelly, 85 Wn. App. 785, 790, 934 P.2d 1218 (1997).
Transfer Payment
Silverman next contends that the court erred in ordering him to make a transfer payment to Kendall, given their nearly equal shared residential time and similar financial situations. We disagree.
In its order of child support on modification, the court found Silverman's net income to be $8,781 and Kendall's to be $6,000. The court ordered Silverman to pay $1,057.61 per month for support of Eric, Bennett, and Troy, through August, when the two older boys were expected to start college. It ordered Silverman to thereafter pay $325.00 per month in child support for Troy. The ordered amounts represented a 25 percent downward deviation from the standard calculation. The deviation was based on the parents' nearly equal shared residential time, taking into account the father's greater economic capacity.
Child support modifications and adjustments are reviewed for abuse of discretion. The trial court's support calculation will be upheld absent a manifest abuse of discretion. Further, after a trial court determines there are grounds for a deviation from the presumptive schedule for child support, that determination is also reviewed for an abuse of discretion.
In re Marriage of Clarke, 112 Wn. App. 370, 375, 48 P.3d 1032 (2002) (citing Marriage of Griffin, 114 Wn.2d at 776); In re Marriage of Ayyad, 110 Wn. App. 462, 467, 38 P.3d 1033 (2002).
Marriage of Littlefield, 133 Wn.2d at 46-47; Marriage of Clarke, 112 Wn. App. at 375 (citing In re Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999)).
In re Marriage of Bell, 101 Wn. App. 366, 372, 4 P.3d 849 (2000).
Relying on In re Marriage of Holmes, Silverman asserts that the court erred in presuming he was the obligor parent based solely on his higher income. Marriage of Holmes is not helpful because it did not address a situation where both parents shared custody equally. In State ex rel. M.M.G. v. Graham, the court noted that, where parents share custody, allocating the entire child support burden on one parent contravenes the legislature's intent of equitably apportioning child support.
128 Wn. App. 727, 117 P.3d 370 (2005).
123 Wn. App. 931, 940-41, 99 P.3d 1248 (2004) (citing RCW 26.19.001).
In shared custody situations the court may still determine one parent is the obligor — but it may not base this determination on that parent's greater income alone. Here, the court, in its oral ruling, noted that its examination was de novo and under the facts before the court "there is no doubt that the residential credit deviation . . . of 50 percent would be appropriate." The court ordered a 25 percent deviation as "a way to adjust for the father's far greater economic capacity than the mom's." The court is required to calculate the amount of child support and may then order a deviation "based on the amount of residential time spent with the obligor parent . . . so long as doing so will not result in insufficient funds in the household receiving the support to meet the needs of the children while they are residing in that household." The court apparently did that here and exercised its discretion in formulating an order of support that met the needs of the three remaining children.
Graham, 123 Wn. App. at 940-41.
In re Marriage of Crosetto, 82 Wn. App. 545, 560, 918 P.2d 954 (1996) (Absent specific findings on a particular issue, an appellate court may look to the oral opinion to determine the trial court's basis for the deviation.).
Graham, 123 Wn. App. at 941.
The Graham court acknowledged just this situation, noting that "a deviation could be warranted in a situation where the children's residential time is shared between parents but would still be discretionary and focused on the legislature's primary intent to maintain reasonable support for the children in each household." Here, the court noted that it was exercising its discretion because it determined that a 50/50 reduction "would unfairly reduce the income to the basic household."
Id.
We conclude that there was no abuse of discretion in setting the transfer payment.
Income Determination
Finally, Silverman contends that the court erred in finding that Kendall's net monthly income was $6,000. We reject this contention. In its ruling, the commissioner explained the calculations after reviewing the submitted financial documentation and the arguments of the parties. The court calculated that Kendall had understated her income, based on a review of her financial documents and declarations. The court added back in a home office tax deduction that Kendall had deducted from income in her tax returns and rounded up, to arrive at a net income of $6,000 per month. Each argument Silverman advanced to allege that Kendall misstated or underreported her income was explained either by Kendall's declarations, her deposition, or other financial documentation.
Kendall argued her net income was $5,218; Silverman alleged it was $8,611.
Silverman relies on In re Marriage of Mansour for the proposition that, not only must the income finding be within the range of evidence presented by the parties, but the reviewing court must also be able to determine how the trial court reached its decision. In Marriage of Mansour, the court reversed the trial court's finding that the father had a net monthly income of $4,000 though the father had reported a net monthly income of $4,664 and the mother alleged he earned $5,443. The court found that Mansour had erred in filing his tax returns and determined his income "based upon his work and the last three years as a real estate agent." There was no indication what financial documents or testimony the court had relied on in making the income determination. The court clearly indicated that it had not relied upon Mansour's tax returns.
126 Wn. App. 1, 106 P.3d 768 (2004).
Id. at 13.
Id.
Id.
Here, the case is very different. The court clearly did rely on the tax returns, child support schedules, and other financial documentation before it, including those provided by Silverman, in reaching its conclusion. That was sufficient.
The handwritten interlineations that appear to not add up may be the result of the court's discussion with attorneys that the information taken from the respective parties was to be reconciled and the final amount should be `backed in.'
We conclude that the superior court's decision to deny revision of the modification order was supported by substantial evidence.
ATTORNEY FEES
Both parties seek costs and attorney fees on appeal under RCW 26.09.140 and RAP 18.1. Determining whether a fee award is appropriate requires the court to consider the parties' need and relative ability to pay. We also examine the arguable merit of the issues raised on appeal.
See In re Marriage of Trichak, 72 Wn. App. 21, 26, 863 P.2d 585 (1993).
See State ex rel. Stout v. Stout, 89 Wn. App. 118, 127, 948 P.2d 851, 855 (1997) (citing Marriage of Griffin, 114 Wn.2d at 779-80).
Here, Silverman is in a better financial position than Kendall, and she presents meritorious legal arguments on appeal. Given the disparity in income and assets between the two, and Silverman's ability to pay, we award reasonable costs and fees for this appeal to Kendall, provided she complies with RAP 18.1(d).
See In re Marriage of Sheffer, 60 Wn. App. 51, 59, 802 P.2d 817 (1990).
We affirm the order in part and reverse in part. We remand for further proceedings consistent with this opinion.
DWYER and GROSSE, JJ., Concur.