Opinion
No. 58096-5-I.
October 15, 2007.
Appeal from a judgment of the Superior Court for King County, No. 04-3-04225-2, Catherine D. Shaffer, J., entered March 24, 2006.
Affirmed by unpublished opinion per Coleman, J., concurred in by Becker and Cox, JJ.
The issues in this dissolution case are whether the trial court abused its discretion in its property distribution and awards of spousal maintenance and child support. Also at issue is whether a court may award child support in a lump sum. We affirm because the property distribution and awards of spousal maintenance and child support are supported by the evidence and lump sum child support awards are valid in Washington.
FACTS
Shann O'Rourke, age 49, and Michael O'Rourke, age 53, were married in 1982 and have two children — Ciara, age 20, who is in college and not at issue in this case, and T.O., age 16, who is developmentally disabled due to oxygen deprivation at birth. Before the marriage, Shann worked as a receptionist, but during the marriage, the parties agreed that she would stay home to care for the children, which was especially important because of T.O.'s disabilities. Shann testified that it was typical for Michael to write her a check for $2,400 to pay for the family's living expenses, not including the mortgage. Michael is a self-described entrepreneur who bought, sold, and managed real estate throughout the marriage. He testified that he bought and sold 30 to 40 properties during the marriage and solely managed the parties' community business, Olympic Recycling, which he founded in 1996. By the time of trial, the parties had over $3 million in assets, most of which were real estate holdings.
Starting in December 2003, Michael began to spend substantial time away from home, sometimes not returning for weeks at a time. Neither Shann nor the children could contact him when he was away. By July 22, 2004, when Shann filed for legal separation, Michael had been home only one day between July 1 and July 22.
Shann suspected that Michael was using drugs because of his appearance and erratic behavior. Michael was arrested for possession of drug paraphernalia twice in 2004 and pleaded guilty to at least one such charge. He also tested positive for cocaine in a court ordered urinalysis. At the end of the trial, however, the court found, "During the period of dissolution Mr. O'Rourke has found his feet again. The court does not think he is currently using drugs, and he has really made a more consistent commitment to his daughter, T.O." Findings of Fact (FF) at 13.
There was extensive testimony at trial about the parties' postdissolution earning potentials. Shann had been out of the workforce since 1986. After the separation, she began working as a records clerk for the Bellevue Police Department, earning $13.42 per hour working 20 hours per week and only while T.O. was in school. In order to decide what to pursue as a career, Shann consulted Jan Reha, a vocation counselor. Based on her background, interests, and Reha's assessment, she decided to pursue a career in social work. This field would allow her the flexibility to care for T.O. when T.O. was not in school. Shann, who was six classes short of a bachelor's degree, planned to finish college and then earn her master's degree in social work from the University of Washington. Reha estimated that the total cost of Shann's education would be $37,143. Shann could then earn between $28,000 to $35,000 per year in a community-based job or $30,000 to $50,000 in a hospital-based job.
Michael has a high school education. As an entrepreneur, however, he was able to support his family's lifestyle at the cost of $100,000 annually. During the marriage, he acquired over $3 million in real property and other investments. He testified that he would likely focus on real estate development after the dissolution because he had done well in that field during the marriage. He also testified that he had been looking for investments during the separation and had the opportunity to become a silent partner in a restaurant, but the deal fell through because the dissolution was still pending. He also testified that he considered partnering with his brothers in buying and selling fine art. He was not concerned about obtaining the funds necessary for his business ventures because he still had connections with banks that would loan him money.
The court concluded that Michael has a "tremendous ability to acquire and sell property" and will be "able to go back to making money in no time flat." FF 2.12. It also concluded that Shann "will never come close to [her] husband's ability to earn money." FF 2.12. The court acknowledged Shann's ability to be "a good manager, accountable, responsible, [and] frugal," but concluded that she would "not likely . . . earn much." FF 2.12. It found that Shann would "need a degree in order to develop earning ability," and even then, "she won't have much in way of earning capacity going forward." FF 2.12.
The court awarded Shann spousal maintenance. It stated that it had
"considered all the statutory factors in making this baseline award, including the time necessary for the wife to acquire her Master's degree in Social Work, the standard of living during the marriage, the long length of the marriage, and the husband's tremendous ability to buy and sell property that he has demonstrated in the past."
FF 2.12. Instead of ordering Michael to pay spousal maintenance on a monthly basis, the court found that a disproportionate award of property to Shann in the amount of $86,400 was "fair, equitable, and reasonable to both parties." FF 2.12. This was equivalent to a monthly maintenance award of $2,400 — the amount that Michael had paid Shann on a monthly basis during the marriage for the family's living expenses — for a period of three years, so that Shann could complete her degree. The trial court also awarded Shann $37,143 for the cost of her education, also in the form of a lump sum disproportionate award of property.
The court made a disproportionate property distribution, in part because it found that Michael breached his fiduciary duty to the marital community. At the time of the separation, Olympic Recycling owned three trucks and 500 to 600 steel recycling bins and lids. Michael testified that one truck caught fire in July 2004 but that he had failed to insure the truck, resulting in a total loss. The second truck was "sold for nothing at an auction" because Michael failed to retrieve it after it had been impounded at the end of July 2004 when one of his company's drivers was pulled over and arrested for driving without a valid license. 7 Verbatim Report of Proceedings (VRP) (Mar. 24, 2006) at 1038. By the time of trial, only the third truck remained and it needed repairs. Michael did not retrieve the steel bins, which were located at various businesses.
The testimony on the value of the trucks and bins was inconsistent. There was testimony that the trucks were bought used for $30,000 to $40,000 and that the trucks were bought new for $80,000 to $90,000. There was evidence that the bins were purchased for between $400 and $900 each. Finally, there was testimony that the total value of the trucks and bins was $585,000. The court stated that Michael's testimony was "all over the map on the value of things." 7 VRP (Feb. 13, 2006) at 1037. The court assigned the trucks and bins a total liquidation value of $110,000, though the court believed they were in fact worth more. It credited Michael's award with the liquidation value of these assets because he had wasted them and "it was his responsibility to manage the major assets of the business." FF 2.8.
The court also found that Michael had breached his fiduciary duty to the community by failing to collect $6,700 in rental income on some of the community's real properties. It attributed this amount to him because, just as with Olympic Recycling, it found that he had failed in his duty towards the community in his management of the real property.
The court found that both breaches of fiduciary duty were the result of Michael's "drug-using lifestyle." The court concluded that Michael had placed himself in a position to manage the community property and was therefore "required to deal with that property with the utmost care towards the other spouse's and the community's interest."
The court awarded Shann 62 percent of the community property in light of the length of the marriage, the fact that Shann had less earning potential than Michael, and Michael's breaches of fiduciary duty. The parties' assets were worth $3,225,915. The trial court thus awarded Shann $2,007,264 and Michael $1,218,651. It also ordered Michael to pay the majority of the community debts, totaling $148,186. The court found that Michael would be able to meet his own needs and succeed at business with the property awarded him.
The court ordered Michael to pay child support for T.O. in a lump sum of $72,000, which amounts to $1,000 per month until T.O. turns 21. The $1,000 amount includes $487.39 for basic child support and $512.61 for T.O.'s additional expenses. The court originally calculated Michael's child support obligation at $1,783.98 per month, but then reduced it because this amount was more than 45 percent of his imputed income.
The court deviated from the worksheets because it found that T.O. is moderately disabled and has special needs. At age 15, T.O. had the cognitive function of an 8-year-old and the social skills of a 6-year-old. The high school she attends plans to give her a special degree in lieu of a diploma. It is undisputed that T.O. will remain dependent on her parents until she is at least 21 years old. T.O.'s therapist, Kathy Hasson, testified that it is unlikely that T.O. will ever catch up to her peers. Shann testified that T.O. will always be "somewhat dependant." 1 VRP (Jan. 19, 2006) at 154. In addition to Hasson and Shann, one of T.O.'s counselors and a parenting evaluator testified about T.O.'s disabilities. The court concluded that T.O.'s needs "include her parents' need to work with a qualified provider to help them address her special needs. . . ." FF 2.19. The court awarded child support in a lump sum because "[i]t is in the best interests of T.O. that she be assured that this support will be available for her . . . [and] the only way of accomplishing this, given the father's history of instability and unreliability, is for these sums to be paid up front." FF 2.19.
Michael appeals the trial court's findings of fact and conclusions of law, decree of dissolution, parenting plan, and order of child support. Both parties request attorney fees on appeal.
Analysis
Michael contends the court erred by concluding that legitimate business decisions were breaches of fiduciary duty. He also argues that the court erred in valuing Olympic Recycling's assets. Trial courts have broad discretion in the distribution of property and liabilities in marriage dissolution proceedings. In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999). The trial court is in the best position to assess the assets and liabilities of the parties and determine what is "fair, just and equitable under all the circumstances." Brewer, 137 Wn.2d at 769. The trial court may consider one spouse's "gross fiscal improvidence" or "squandering of marital assets" in making a fair and equitable distribution of the parties' assets and liabilities. In re Marriage of Steadman, 63 Wn. App. 523, 528, 821 P.2d 59 (1991). A trial court does not abuse its discretion by assigning values to property within the scope of the evidence. In re Marriage of Soriano, 31 Wn. App. 432, 435, 643 P.2d 450 (1982).
The trial court's conclusion that Michael breached his fiduciary duties with respect to Olympic Recycling's assets is within the scope of the evidence because there was testimony that after the parties separated, he did nothing to the preserve those assets. Michael failed to insure the truck that was destroyed by fire, did nothing to recover the truck that was sold at auction after being impounded, and did not repair the third truck. He also did not collect the 500 to 600 bins that were originally purchased for between $400 and $900 each. The court's conclusion that Michael breached his fiduciary duties with respect to the rental properties is also supported by the evidence because Michael himself testified that he failed to collect rent on properties that he was responsible for managing. The trial court did not err by crediting Michael's award with the amount of money he lost because of these breaches of fiduciary duty.
The court also did not err in valuing Olympic Recycling's assets. There was evidence that the trucks and bins were worth as much as $585,000 and evidence that they were worth much less. The court's findings that the trucks were worth $30,000 each and that the entire collection of bins was worth $20,000 were well within the scope of the varying evidence on the value of these assets. See Soriano, 31 Wn. App. 432 (where the trial court placed a value upon property that is greater than that given by one of the witnesses and less than that by another witness, the court had substantial evidence to support its findings). Even if the trial court erred in its valuation of the assets, reversal is not warranted because $110,000 represents only three percent of the entire estate. See In re Marriage of Pilant, 42 Wn. App. 173, 709 P.2d 1241 (1985) (holding that the trial court erred in its valuation of certain property but affirming because the property represented only seven to nine percent of the estate).
Michael's next contention is that the court penalized him for marital misconduct. In a dissolution proceeding, the court must distribute property "without regard to marital misconduct." RCW 26.09.080. In general, misconduct or fault means "immoral or physically abusive conduct within the marital relationship. . . ." Steadman, 63 Wn. App. at 528 (footnote omitted). The statutory prohibition against consideration of fault does not apply to "gross fiscal improvidence, the squandering of marital assets or . . . the deliberate and unnecessary incurring of tax liabilities." Steadman, 63 Wn. App. at 528.
The trial court did not base its property distribution on marital misconduct. As discussed above, the court based a relatively small part of its property distribution on Michael's mismanagement of Olympic Recycling's assets and certain rental properties. The court was free to consider this type of financial misconduct in dividing property and debts. See Steadman, 63 Wn. App. at 528 (quoting In re Marriage of Clark, 13 Wn. App. 805, 809, 538 P.2d 145 (1975)) (upholding trial court's allocation of debts because it was the husband's "'negatively productive conduct,' [which] resulted in the tax liabilities at issue."). The court did discuss Michael's drug use but not for the purpose of establishing marital misconduct. Instead, the court discussed his drug use to explain the causes of his breaches of fiduciary duty.
Michael also contends that the court ignored the fact that his family's wealth was the result of his hard work during the marriage. "The fact one spouse, be it husband or wife, may be the major income producer will not justify giving him a larger share of the community property." In re Marriage of DeHollander, 53 Wn. App. 695, 701, 770 P.2d 638 (1989). The court did not ignore Michael's contributions to the estate, but instead, it properly considered the factors in RCW 26.09.080, such as the "nature and extent of the community property," "duration of the marriage," and "economic circumstances of each spouse . . ." It also properly considered Michael's squandering of certain assets.
Michael next argues that the trial court could not assign him the value of the trucks and bins because they no longer existed at the time of trial. In support, he cites In re Marriage of White, 105 Wn. App. 545, 20 P.3d 481 (2001), which held that the trial court erred in awarding the wife $30,511 that had been her separate property but was used to pay off the mortgage of the family residence four years before the parties' separation. The Court of Appeals reasoned that these funds could not be distributed to the wife because they had been spent on the family residence four years earlier. White is distinguishable because, here, the trucks and bins existed at the time of the parties' separation. It was within the court's discretion to value these assets at the time of separation as opposed to the date of trial for purposes of distribution. See In re Marriage of Griswold, 112 Wn. App. 333, 351, 48 P.3d 1018 (2002) (affirming trial court's decision to value the family home at the time of separation).
We next consider Michael's argument that the trial court's award of spousal maintenance was unsupported by the evidence. 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 but are not limited to
(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). Like a property distribution, an award of spousal maintenance is a discretionary decision that will not be disturbed on appeal absent a showing that the trial court abused its discretion. In re Marriage of Luckey, 73 Wn. App. 201, 209, 868 P.2d 189 (1994).
The court's findings on Michael's future earning potential are supported by the evidence. Throughout the trial, Michael described himself as an entrepreneur who was successful in his real estate dealings despite lacking a higher education. During the marriage, he had amassed over $3 million dollars in net assets. He testified that he would likely focus on real estate development after the dissolution because he was successful in that field during the marriage. He was not concerned about obtaining the funds necessary for his business ventures after the dissolution.
I've done business for 20 years with different bankers. I have had $500,000 lines of credit, 600, 400, secured with sometimes only $40,000 worth of real estate, which meant the banks could lose, if I foreclosed or if I went bankrupt, $400,000. I have paid every bill to everyone I've owed in my life. Those bankers know me. There are still bankers that will do business with me when this is all over with.
5 VRP (Jan. 30, 2006) at 858. This evidence supports the trial court's conclusion that Michael would continue to be successful after the dissolution.
Michael argues that the court did not leave him with enough capital to be successful in his business ventures, in part because he was assigned Olympic Recycling's debts and has to pay child support in a lump sum. Michael was awarded around $1 million in property even after he pays child support, spousal maintenance, and other obligations. He also testified that he would be able to obtain financing from banks. Thus, Michael himself testified that he will be able to continue with his successful real estate ventures.
The court's findings on Shann's future earning potential are also supported by the evidence. During most of the marriage, Shann stayed at home to raise the parties' two daughters, one of whom is developmentally disabled. Shann does not have an extensive employment history or a college degree. After earning her graduate degree in social work, she will be able to make between $28,000 and $50,000. Michael testified that during the marriage, it cost $100,000 annually for the family to live, and Shann will, at best, earn half that amount.
Michael next argues that the court erred in imputing income to Shann instead of basing the child support award on her actual income. Michael argues that Shann's actual income includes her lump sum property distribution in lieu of monthly spousal maintenance and $200 per month in rental income. Michael has waived this argument because he asked the court to impute both parties' incomes based on census data. During closing argument, counsel for Michael told the court,
With respect to child support for [T.O.], because that's basically what I'm going to say about parenting for [T.O.], Mr. O'Rourke does not wish in any way to avoid child support obligations for [T.O.]. He looks to Your Honor to set it at an amount that is appropriate. The proposed worksheets that — that I submitted had imputed income for both parents. At that rate Mr. O'Rourke's basic child support was — I believe that's — pardon me. That was Exhibit 105. Imputing it — just the mean — the mean census data for both of them resulted in combined net income of around $4,897 per month. And without considering medical insurance, Mr. O'Rourke's basic child support was $405 per month.
7 VRP (Feb. 13, 2006) at 1060-61. An error is deemed waived if the complaining party materially contributed to the error. In re Dependency of K.R., 128 Wn.2d 129, 147, 904 P.2d 1132 (1995). Additionally, Michael did not argue at trial that Shann's lump sum property distribution in lieu of monthly spousal maintenance should be included as income for the purpose of determining child support.
Michael likely benefited from the court's decision to use imputed incomes based on mean census data. The court imputed his annual income at $34,152. If the court had not imputed his income based on census data, it could have imputed it based on what he was "capable and qualified" of earning. In re Marriage of Shellenberger, 80 Wn. App. 71, 81, 906 P.2d 968 (1995). Based on the evidence at trial, Michael was capable and qualified to earn between $65,000 and $130,000 per year. See 4 VRP (Jan 25, 2006) at 531 (Olympic Recycling paid Michael $65,000 in 2000) and 3 VRP (Jan 24, 2006) at 423 (Michael averaged a profit of $120,000 to $130,000 per year on real estate). Had the trial court calculated the parties' incomes as Michael proposes on appeal, his income would be much larger than what he claims is Shann's actual income. See Brief of Appellant at 39 (Michael calculates Shann's actual income, including spousal maintenance, as $42,756 per year).
We next consider issues regarding the court's award of child support. Michael first contends that the trial court's child support award for extraordinary expenses is not supported by the evidence. Michael failed to argue below that the extraordinary expenses were unnecessary and has thus waived this issue. RAP 2.5(a); Whidbey Environmental Action Network v. Island County, 122 Wn. App. 156, 176, 93 P.3d 885 (2004).
Moreover, the trial court's award of child support was within its discretion in light of T.O.'s special needs. Under RCW 26.19.075, the court may deviate from a standard calculation of child support because of "[s]pecial needs of disabled children" and "[s]pecial medical, educational, or psychological needs of the children." RCW 26.19.075(c)(iii), (iv). The court specifically stated that it was deviating from the standard calculation set forth in the worksheets because of T.O.'s special needs. For example, the court found that T.O.'s special needs would likely require additional services.
Here's my concerns, though, about [T.O.]. Even if she has been able to get along so far without — without a lot of additional services, I will point out that as time goes on she does need additional services. She's needed counseling, and I don't think that need has [inaudible] that need for counseling that she's had. I think it's an ongoing need and it's a special need that doesn't fall into the normal calculations we make in a child support worksheet.
7 VRP (Feb. 13, 2006). The court also found that T.O. would need the assistance of a qualified medical provider.
I also think that [T.O.] needs, and her parents need, to work with a qualified medical provider who can help them to address her special needs, her special requirements for her — her living skills. Her parents need to figure out how to help her learn [inaudible] and how to help her learn to clean up and how to help her prevent from having a fire in her house and how to help her pay for things, I mean how to manage money. And if you ever want her to live anyplace but with her mother, and I'm sure you both do want to give her as much independence as you can, I think you both are going to need some — some medical assistance to do it. And I think it's not going to be something where you go see a doctor for a few months and then you're all done finding out about [T.O.'s] special needs.
The trial court based these findings on extensive testimony about T.O. from her therapist, her counselor, a parenting evaluator, and Shann.
The child support award is also reasonable because the $512.61 per month Michael pays in addition to basic child support goes towards expenses he would normally be required to pay but is relieved from paying under the court's support order. Michael is relieved from paying any portion of T.O.'s orthodontia, which is not covered by insurance; her counseling, which costs $95 per hour; her daycare, the cost of which will increase when Shann begins school full time; her participation in Campfire Girls, Girl Scouts, theater, gymnastics, youth choir; and the additional special services that the court anticipated T.O. will require.
Michael next argues that the trial court erred in making its child support award because it did not consider the government assistance T.O. is eligible to receive. Shann does not respond to this argument and the court did not discuss government assistance in its findings of fact and conclusions of law.
Shann testified that T.O. is eligible to receive a "respite fund" from the Department of Social and Health Services (DSHS) capped at $1,400 a year, which Shann planned to use for T.O.'s horseback riding. Shann also testified that T.O. receives medical coupons from DSHS, is eligible to receive 37 "personal care" hours per month from DSHS, and may be eligible for Social Security benefits when she turns 18. As of the time of trial, Shann had used the personal care hours benefit only once. Neither the respite fund nor the personal care hours can be legally used for childcare while a parent is working.
We reject Michael's argument because the utility and value of these government benefits is not clear from the appellate record. The personal care hours are of limited utility because Shann cannot use them while she is working and it is not clear that she can use them while she is in school. And while there was some testimony about the value of these benefits, it is not clear that they were worth so much that the trial court abused its discretion in failing to consider them, especially since the court originally concluded that T.O. needed a total of well over $2,000 per month in child support.
Michael next contends that the court abused its discretion in ordering him to pay T.O.'s child support in a lump sum because a lump sum child support payment is unauthorized under the statute and unfair because it cannot be modified in the event of a substantial change in circumstances. We reject these arguments because lump sum child support awards are not prohibited by statute, previous cases have approved of such awards, the trial court made extensive findings supporting the appropriateness of the award, and a lump sum award does not preclude either parent from seeking modification.
Michael fails to cite to a statute that prohibits lump sum child support awards. Moreover, Washington courts have approved such awards, although in different circumstances. In re Marriage of Babbitt, 50 Wn. App. 190, 193, 747 P.2d 507 (1987), the court held that "an agreement to accept a lump sum payment in lieu of periodic future child support payments" was not against public policy. Babbitt, 50 Wn. App. at 193. In support of its holding, the court cited Holaday v. Merceri, 49 Wn. App. 321, 327, 742 P.2d 127 (1987), which held that a "disparate property division may be the basis for relieving one parent from child support obligations." Holaday was an appeal from a modification trial in which the trial court concluded that a disparate property distribution satisfied the wife's child support obligation. While neither Babbit nor Holaday confronted the question of whether a trial court may order child support to be paid in a lump sum, the holdings in those cases support Shann's argument that lump sum awards are valid. If it is not against public policy to allow parties to agree to a lump sum child support award, then it is inconsistent to hold that a trial court violates public policy by ordering such an award, especially when it is warranted by the facts.
The court's decision to award child support in a lump sum was supported by the evidence. The court was concerned that Michael would not be able to make monthly payments because he has "no steady, predictable source of income." FF 2.12. This finding was based on the extensive testimony regarding the erratic nature of his income. In its oral ruling, the trial court acknowledged the difficulty of setting child support due to Michael's manner of earning his income.
I mean, we'll never really have imputed income for a standard monthly income figure for Mr. O'Rourke, I don't think. I just don't think that's the way it works for him. I think he's an entrepreneur and he's always going to [have] an entrepreneur's kind of income regardless of what's reflected on a tax return.
7 VRP (Feb. 13, 2006) at 1108. The trial court recognized that it would not be in T.O.'s best interests if her mother were forced to seek back judgments for unpaid child support or attempt to garnish Michael's nonexistent wages.
Michael also argues that the court abused its discretion because a lump sum child support award cannot be modified in the event of a substantial change in circumstances, such as if T.O. marries or dies. In support, he cites to the order of child support, in which the court crossed out the "Periodic Adjustment" provision and handwrote, "Does not apply" above it. The court obviously omitted this provision because it was not applicable to a lump sum child support award. In the event of a substantial change in T.O.'s life, however, a lump sum prepayment of child support does not preclude either parent from seeking modification of the award. See Babbitt, 50 Wn. App. at 194 (acknowledging that the mother could petition for payment of counseling expenses upon a showing of a substantial change in circumstances regardless of the child support credit to the father); see also Holaday, 49 Wn. App. at 331 (acknowledging that the father could seek modification of child support even though mother's support obligation at the time of dissolution was satisfied by a disparate property award, but holding that father failed to show a substantial change in circumstances).
Finally, both parties request attorney fees based on their financial resources. We decline to award fees because the trial court's property distribution left Michael and Shann with enough assets to pay their own attorney fees.
Shann also contends that the court should award her attorney fees because Michael's actions since the trial have been intransigent. Michael did not file a reply brief and, thus, does not respond to this argument. Shann alleges that Michael did not seek a stay of the trial court's orders but nevertheless failed to pay spousal maintenance, child support, and the obligations associated with the properties awarded to him in the decree, including mortgage payments on the real properties awarded to him. As a result of his failure to make mortgage payments, Shann claims that she has been forced to make the payments because her name is still on these mortgages and her credit is damaged by every late or missed payment. She alleges that Michael failed to reimburse her for the cost of the parenting evaluation, the substance abuse evaluation, and the supervised visitation, as he was ordered to do. She also contends that Michael's appeal is evidence of intransigence.
We do not award Shann attorney fees based on intransigence because Michael's alleged violations of the trial court's orders are already the subject of a different proceeding. In support of her allegations, Shann cites to a "motion/declaration for an order to show cause re contempt and for order offsetting judgment." This motion/declaration was filed under a different cause number (which was consolidated with the cause number of the original dissolution). According to the record, a hearing on Shann's motion was to be held on April 4, 2007. Such an action is the appropriate forum for Shann's intransigence argument. As for this appeal, it is not evidence of intransigence because Michael has raised debatable issues.
For the foregoing reasons, we affirm.
WE CONCUR: