Opinion
Nos. 25143-8-III; 25991-9-III.
January 8, 2008.
Appeals from a judgment of the Superior Court for Benton County, No. 02-3-00947-7, Craig J. Matheson, J., entered March 8, 2006 and March 31, 2007.
Affirmed by unpublished opinion per Brown, J., concurred in by Sweeney, C.J., and Stephens, J. Pro Tem.
For the second time, Dr. Myles McCartney appeals the award of maintenance to his former spouse, Viki McCartney. By unpublished opinion, this court reversed a 15-year award starting at $4,000 a month for 10 years and then slowly trailing off, holding the trial court failed to consider the RCW 26.09.090 factors and the duration was unjust. In re Marriage of McCartney, No. 23198-4-III (Dec. 8, 2005) ( MCCARTNEY I). On remand, the court again ordered Dr. McCartney to begin paying $4,000 a month, but limited the payments to four years and set $2,000 a month for two more years. Dr. McCartney contends the remand court erred in deciding maintenance was needed and misinterpreted MCCARTNEY I as fixing the beginning maintenance level at $4,000 per month. Because the court considered the statutory factors, including the property division and the facts bearing on the duration of the payments, and since the court did consider and vary the payment amounts and duration, we affirm.
Dr. McCartney originally appealed an order denying a stay on payments during remand (No. 25143-8-III). Neither party addresses this issue in their briefs; thus, it is waived. See RAP 10.3; see also State v. Johnston, 100 Wn. App. 126, 134, 996 P.2d 629 (2000) (issue is waived when party fails to provide argument).
FACTS
The facts are drawn from MCCARTNEY I. The McCartneys were married on June 25, 1983, and later had two children. They separated on November 1, 2002. At the time of trial, Ms. McCartney was 44 and Dr. McCartney was 48. The children were 19 and 17. Ms. McCartney attended Columbia Basin College and earned an AA degree. She worked as a waitress and in a clerical position in the public sector. After marriage, she did not work steadily. The parties owned an eye care business, Uptown Vision Center, where Dr. McCartney worked as an optometrist. He bought the business from his father in 1981. The business had been operating at the same location in Richland for 53 years. Dr. McCartney also operated two multi-level marketing businesses during the marriage. He was solely responsible for running these businesses.
The couple owned six rental properties, which Ms. McCartney managed. She deposited the rents into her bank account and used the money for rental expenses and other things. Ms. McCartney continued to receive this income while separated. During the marriage, Ms. McCartney and her sister bought a farm. When they sold it, Ms. McCartney received $4,000 as a down payment and $327.92 a month from the sale, which was deposited into her account.
On June 3, 2004, the parties filed a property settlement agreement listing marital assets of over $1 million. Dr. McCartney received Uptown Vision Center and both multilevel marketing businesses. The value of his assets was $537,000. Ms. McCartney received the home and the six rental properties valued at $619,465. Ms. McCartney was unemployed at trial time. Her income was limited to $327.92 per month from the farm contract and $1,500 in maintenance. When all six rental properties were rented, she collected $6,200 per month. However, she estimated the rental income was negative after depreciation. Dr. McCartney agreed the rentals did not produce a profit.
After trial, the court ratified the property settlement agreement. The court found Dr. McCartney had an annual income of $150,000 or $12,500 a month. The court imputed the minimum wage of $1,386.70 a month for Ms. McCartney. The court awarded her maintenance for 15 years. For the first 10 years, Dr. McCartney would pay Ms. McCartney $4,000 a month. Then, she would receive $250 less a month for each of the remaining five years.
This court reversed, holding the court did not consider the RCW 26.09.090 factors and the award was unjust. This court remanded "for consideration of the factors in RCW 26.09.090 as to the maintenance award." MCCARTNEY I, slip op. at 10.
The remand court ruled this court did not reverse the $4,000 a month beginning maintenance amount. Dr. McCartney unsuccessfully requested reconsideration. Ms. McCartney provided evidence that she had consulted a vocational counselor to further her educational goal of becoming a school guidance counselor. Ms. McCartney testified she would start college as soon as she paid off some of her debt and did not "have to go to court anymore." Report of Proceedings (RP) at 78.
After setting out the six factors of RCW 26.09.090 and stating it had considered them, the court concluded: "An appropriate maintenance award is $4,000 a month for four years, and $2,000 a month for an additional two years." Clerk's Papers at 1133. Dr. McCartney again appealed.
ANALYSIS A. Evidence Sufficiency
The issue is whether the court erred in awarding maintenance to Ms. McCartney. Dr. McCartney contends the evidence does not support the court's finding that it considered the RCW 26.09.090 factors when awarding maintenance. We review maintenance awards for an abuse of discretion. In re Marriage of Zahm, 138 Wn.2d 213, 226-27, 978 P.2d 498 (1999). Discretion is abused when it is manifestly unreasonable or based upon untenable grounds or reasons. In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004).
A maintenance order "shall be in such amounts and for such periods of time as the court deems just, without regard to marital misconduct, after considering all relevant factors." RCW 26.09.090(1). Those factors include:
(a) The financial resources of the party seeking maintenance, including separate or community property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party;
(b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his skill, interests, style of life, and other attendant circumstances;
(c) The standard of living established during the marriage;
(d) The duration of the marriage;
(e) The age, physical and emotional condition, and financial obligations of the spouse seeking maintenance; and
(f) The ability of the spouse from whom maintenance is sought to meet his needs and financial obligations while meeting those of the spouse seeking maintenance.
RCW 26.09.090(1)(a)-(f). Dr. McCartney focuses on factors (a) and (b).
"Ideally, trial courts will enter findings of fact on each factor." Horner, 151 Wn.2d at 895. But, like here, a court does not err by failing to enter such findings if substantial evidence was presented on each factor and the court's oral opinion and written findings reflect it considered each factor. Id. at 896. The findings of fact, coupled with the court's oral ruling, are sufficient for review.
Regarding RCW 26.09.090(a), Dr. McCartney received Uptown Vision Center and both marketing businesses, totaling $537,000. Ms. McCartney received the home and the six rental properties, totaling $619,465. However, Dr. McCartney had a monthly income of $12,500 per month and Ms. McCartney had minimum wage income imputed in the amount of $1,386.70 per month. Recognizing the disparate monthly incomes, the court stated, "even when you divide the asset, you still have the difference of earning capacity." RP at 136. While the property division is fairly equal, the monthly incomes are not. This difference supports a discretionary award of maintenance.
RCW 26.09.090(b) specifically allows considering the time necessary to acquire education or training to enable a party seeking maintenance to find employment as a discretionary factor in awarding maintenance. Ms. McCartney provided evidence on remand that she consulted a vocational counselor regarding furthering her education to become a junior high or high school guidance counselor. She testified she would start college as soon as she paid off some of her debt and did not "have to go to court anymore." RP at 78. In its oral ruling, the court stated, "it is time to get going. . . . Whether you work and go to school or just work, that's up to you." RP at 138. Thus, the court considered RCW 26.09.090(b) within its discretion. Ms. McCartney's expressed career interest and her plan to start college after paying debts and resolving litigation issues support a six-year maintenance award.
We cannot say the remand court abused its discretion in awarding maintenance.
B. Maintenance Amount
The issue is whether the trial court erred in concluding and then denying reconsideration of its decision that it was bound to $4,000 a month for the beginning maintenance amount.
We review a trial court's decision to deny a motion for reconsideration under the abuse of discretion standard. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002). A trial court's interpretation of an appellate opinion, however, is reviewed de novo. See State v. Willis, 151 Wn.2d 255, 261, 87 P.3d 1164 (2004) ("We review a trial court's interpretation of case law de novo.").
The RCW 26.09.090 factors are used to determine the maintenance "amounts and for such periods of time as the court deems just." RCW 26.09.090(1). This court reversed "the maintenance award" and remanded "for consideration of the factors in RCW 26.09.090." MCCARTNEY I, slip op. at 10. The reversal required the remand court to discretionarily decide whether to award maintenance after considering the RCW 26.09.090 factors and, if so, to decide the amount and duration. The court at the outset incorrectly reasoned the maintenance amount was not within our remand direction. Even so, the remand court took new evidence and looked over the prior trial record before considering Ms. McCartney's need and Dr. McCartney's ability to pay maintenance. Then the remand court reasoned that the prior judge had correctly determined the initial need was $4,000 a month, but varied the duration and pay-down amounts significantly in favor of Dr. McCartney. Because the remand court actually did reconsider the initial maintenance amount and recognized that modification was still available on changed conditions, we do not agree that any reversible error resulted.
The remand court placed considerable weight on the over $11,000 difference in monthly incomes. The remand court openly valued the MCCARTNEY I trial court's reasoning in setting maintenance. The parties reargued all maintenance factors, including need level. The relevant employment facts and incomes were unchanged from the first trial. What mainly changed on remand was limiting the duration to correspond with the evidence of Ms. McCartney's education goal and the pay-down schedule over the last two years. In effect, the trial court did adjust the maintenance amount. In sum, we cannot say the remand court erred in setting the terms. Given all, the court's ruling did not amount to reversible error.
C. Attorney Fees
Ms. McCartney requests attorney fees and costs on appeal under RCW 26.09.140 and RAP 18.1(a). Such an award is proper if one party has a need and the other party has the ability to pay. RCW 26.09.140. Where this court is required to consider the financial resources of each party, RAP 18.1(c) requires each party to file a financial affidavit no later than 10 days prior to oral argument. While neither party complied with this time frame, the allotted time is enlarged to serve the ends of justice. RAP 18.8(a).
Ms. McCartney has the need and Mr. McCartney has the superior ability to pay. Attorney fees and expenses are awarded to Ms. McCartney on appeal and the matter referred to a commissioner of this court under RAP 18.1(f).
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.
WE CONCUR:
Sweeney, C.J.
Stephens, J. Pro Tem