Opinion
No. 22736-7-III
Filed May 26, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Spokane County. Docket No. 01-3-01985-4. Judgment or order under review. Date filed: 01/13/2004. Judge signing: Hon. Neal Q Rielly.
Counsel for Appellant(s), Mary Elizabeth Schultz, Attorney at Law, 818 W Riverside Ave Ste 810, Spokane, WA 99201-0917.
Counsel for Respondent(s), Dale Leonard Raugust, Raugust Hahn PLLC, 606 S Pines Rd, Spokane, WA 99206-5185.
Catherine and Steven Beall, M.D., were married in 1997 and divorced in 2002. They have two children. One year after the dissolution decree was entered, Dr. Beall successfully petitioned to reduce his maintenance and support obligations. Ms. Beall appeals, contending the court erred in reducing these obligations given the disparity between Dr. Beall's gross monthly income of $8,269.22 per month, and her income of $800 per month. Ms. Beall challenges the findings and conclusions entered on the petition for modification of child support, the order on modification of support, and the order of child support, all entered in November 2003. Ms. Beall also requests attorney fees on appeal.
We reverse the order denying the motion for revision of the commissioner's order because the superior court applied an incorrect standard of review. Ms. Beall is awarded her attorney fees on appeal. The matter is remanded to the superior court.
FACTS
Dissolution Proceeding. Catherine Beall and Dr. Steven Beall were married in November 1997 and divorced in 2002. At the time of the dissolution, the couple's two children were age 7 and age 2. The couple cohabitated for three years prior to their marriage, and the trial judge took this into account when determining the longevity of the marriage.
Employment at Time of Dissolution Trial. At the time of the dissolution trial, Dr. Beall, a neurologist, was employed on a year-to-year contract with the Saginaw Valley Neurosurgery Group (SVNG) in Michigan.
Prior to his employment with SVNG, Dr. Beall completed a medical staff fellowship at the National Institute of Health, focusing on multiple sclerosis. After his fellowship, Dr. Beall worked at the Multiple Sclerosis Clinic at the University of British Columbia, and, fours year later, was appointed an assistant professor. In 2001, Dr. Beall became the Director of the Multiple Sclerosis Center at Holy Family Hospital in Spokane; he held this position for three months. At the time of the dissolution trial, Dr. Beall had accepted the position in Saginaw, Michigan.
In contrast, Ms. Beall was unable to be employed in the United States because of her immigration status. However, at the time of the dissolution trial, she had been conditionally admitted to a two-year Master of Initial Teaching Program at Gonzaga University. Ms. Beall planned to become a citizen and to obtain certification to teach in Washington State. The teaching program took two years, but a third year was required before Ms. Beall could obtain full-time employment.
Dissolution. The trial court determined that Dr. Beall's salary at SVNG was $14,583 per month. As a result, the court ordered Dr. Beall to pay child support of $1,952 per month — plus $500 in child care expenses during the time that Ms. Beall was a full-time student or employed on a full-time basis. Also, the court imposed a $1,200 maintenance payment for three years.
In its division of property, the court awarded Dr. Beall the house that had been the Bealls' residence in Spokane. The court further ordered that Ms. Beall and the children could live in the house, rent-free, for three years. In its oral ruling, the court explained: `The Court will credit the husband with $1,000 per month maintenance that reflects the fair rental value of that home as part of . . . his overall maintenance obligation.' Clerk's Papers (CP) at 30. On the child support worksheet, Ms. Beall's gross monthly income was listed as $1,200 and did not include the $1,000 credit for her living in the house awarded to Dr. Beall. Similarly, Dr. Beall's net monthly income was calculated using a deduction of $1,200 for spousal maintenance paid.
A `basic child support obligation' is based upon the parties' combined monthly net income and the number of children for whom support is ordered. RCW 26.19.011(1). The income sources in gross monthly income include income from any source.
RCW 26.19.071(3). Only spousal maintenance `actually received' constitutes income. RCW 26.19.071(3)(q). Arguably, the court did not include the $1,000 credit in its calculation of Ms. Beall's income because it was not spousal maintenance that she actually received.
When making the award of maintenance, the court, in its oral ruling, explained that it considered the factors set forth in RCW 26.09.090, and, specifically, the need to allow Ms. Beall to complete her education, obtain citizenship, and become self-sufficient. The court also recognized that Ms. Beall's financial resources were limited, but the court had confidence that once Ms. Beall completed her education, she would be able to obtain employment and be self-sufficient. The oral ruling of the court, and the resulting order, expressed the court's conclusion that Ms. Beall required financial assistance for three years, but would then be self-sufficient. The court observed that the economic circumstances of the parties `are indeed disparate.' CP at 27. While Ms. Beall had the opportunity to earn $50,000 in four or five years, the economic outlook for Dr. Beall was more certain and much brighter. The court noted that, even if Ms. Beall was employed full-time, her income would be approximately three times less than Dr. Beall's income. Nevertheless, the award of maintenance and the rent-free housing expired three years after the entry of the final dissolution documents. The court expressed `a high degree of optimism' that Ms. Beall's educational endeavors would provide her with employment opportunities.
CP at 32.
Dr. Beall did not appeal these orders.
Petition for Modification/Revision. Approximately one year after the dissolution order was entered, Dr. Beall filed a petition for modification of both the child support and the maintenance obligations. In support of his petition, he alleged that the trial court's order was a severe economic hardship. He also alleged that he was now employed at a much lower salary because his one-year contract with SVNG had expired, and he was not eligible for unemployment benefits.
In support of his petition, Dr. Beall submitted a financial statement showing that his monthly gross income was now $8,269.22, and his yearly income was $102,083.31. He calculated his expenses as $4,213.57 and his monthly net income as $5,723.28.
Pro se, Ms. Beall responded to this petition, arguing that the divorce proceeding was complex given her immigration status, and the disparity in the parties' income and education. Ms. Beall acknowledged that Dr. Beall was no longer working at SVNG and had accepted a lower-paying job. She also pointed out that the amount of the Dr. Beall's income, even at its reduced level, exceeded the amount the trial court used to determine the support obligations. She maintained that there was no showing that the nonrenewal of his contract with SVNG was voluntary or involuntary.
After considering the documents submitted by the parties, the commissioner determined that Dr. Beall's reduction in income constituted a substantial change in circumstances. The commissioner found that Dr. Beall's gross monthly income was $8,333. The commissioner then modified Ms. Beall's maintenance award from $1,200 per month to $800 per month. The child support obligation was reduced from $1,952 per month to $1,062 per month. In the modified order of child support, Ms. Beall's net monthly income was listed as $1,800 and included the $1,000 credit for her living in the house awarded to Dr. Beall. Also, Dr. Beall's net monthly income was listed as $4,857 employing a deduction for spousal maintenance paid that included the $1,000 amount. There is no explanation in the record for these changes. Ms. Beall sought revision of the commissioner's orders modifying the maintenance and child support awards. The superior court denied revision and denied reconsideration. Ms. Beall appeals.
ANALYSIS
The question before us is whether the court erred by ordering a modification of maintenance based upon a change in Dr. Beall's circumstances. More specifically, the issue is whether the superior court erred in denying the motion for revision. The actions of a superior court commissioner are subject to revision by a superior court judge. RCW 2.24.050. When considering a commissioner's ruling on revision, the superior court reviews both the commissioner's findings of fact and conclusions of law de novo, examining all of the evidence and issues presented to the commissioner. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004).
Our review of a superior court's order denying the motion for revision is more limited. We determine whether the superior court abused its discretion and authority under RCW 2.24.050 when it denied the motion for revision. Under this standard, we do not substitute our judgment for that of the superior court unless its decision rests on unreasonable or untenable grounds. In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990).
The modification of a decree granting maintenance or support requires a showing of a substantial and material change in the conditions and circumstances of one party. Lambert v. Lambert, 66 Wn.2d 503, 508, 403 P.2d 664 (1965). The factors examined are (1) the necessities of the children and the disadvantaged spouse, and (2) the practical and realistic ability of the advantaged spouse to pay. Id. The petitioner for modification has the burden of establishing the required change in circumstances. Id. To determine whether this burden has been met, the court must examine the facts submitted, and ask whether the facts relied upon could and should have been presented at the previous hearing. Id. at 509.
In support of its order reducing the maintenance order, the court commissioner entered a single finding: `There has been the following change in circumstances since the order was entered (explain): reduction in income by obligee.' CP at 179. The evidence supporting this factual finding is fairly described as thin. Dr. Beall provided the court with the following sworn statement: `The respondent is now employed at a much lower salary and not financially able to provide the current level of child support and maintenance payments because the respondent was working on a one-year contract which expired July 31, 2003. He is not eligible for unemployment compensation.'
CP at 80. As support for this declaration, Dr. Beall provided the court with a copy of his first pay stub.
In its written decision denying Ms. Beall's motion for revision, the court stated:
I am satisfied that there is substantial evidence to support the Commissioner's finding that there was a substantial change of circumstances not contemplated at the time the orders were entered. I am also satisfied that the Order is equitable. The motion to revise is denied.
CP at 219. Apparently, the trial court believed that its review of the commissioner's findings was limited to determining whether the findings were supported by substantial evidence. In In re Marriage of Moody, 137 Wn.2d 979, 986, 976 P.2d 1240 (1999), the Supreme Court considered whether the superior court judge applied the proper scope of review to the motion for revision of the court commissioner's ruling. In affirming the trial court, the Supreme Court stated: `In cases such as this one, where the evidence before the commissioner did not include live testimony, then the superior court judge's review of the record is de novo.' Id. at 993. Here, the superior court judge's review of the record was de novo and was not limited to determining whether the commissioner's findings were supported by substantial evidence.
In reviewing the decision of the trial court, we will not substitute our judgment for its judgment. Nevertheless, from this record, we cannot determine whether a de novo review of the record would have led the superior court to a different conclusion regarding whether there had been a substantial change in circumstances. In this regard, we note the scarcity of evidence supporting a modification order that substantially undermines the original dissolution decree. The dissolution court went to some length to make certain that Ms. Beall would have sufficient financial resources to complete her education and achieve economic self-sufficiency. Lambert requires the court considering modification to examine both the necessities of Ms. Beall and the ability of Dr. Beall to pay. Lambert, 66 Wn.2d at 508.
We reverse the order denying the motion for revision and remand for further hearings consistent with this opinion. Ms. Beall is awarded her attorney fees on appeal. The amount of her attorney fees shall be determined by the superior court on remand. This entire file has been designated confidential by the trial court. The only apparent reason for this designation is that the parties stipulated to the entry of an order of confidentiality that the trial court signed. Stipulation by the parties is not a sufficient reason for designating a file confidential. By order of this court, this opinion and the information in this opinion is made public and is released from the order of confidentiality.
The 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.
SWEENEY, A.C.J., and BROWN, J., concur.