Opinion
No. 52730-4-I
Filed: March 7, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 98-3-04681-7. Judgment or order under review. Date filed: 07/14/2003. Judge signing: Hon. Patricia H Aitken.
Counsel for Appellant(s), Kary Lyle Krismer, Attorney at Law, PO Box 80128, Seattle, WA 98108-0128.
Counsel for Respondent(s), John Hughes O'Rourke, Attorney at Law, 618 S 223rd Ste 6, PO Box 98741, Seattle, WA 98198-0741.
In this decision, we review a trial court's calculation of the child support owed by one ex-spouse to the other when some of the child's educational expenses were paid by a third party. We also review the court's denial of attorney fees. The two parties, Maria Luz Krismer and Cornelio T. DeLeon, married and had a daughter. In their dissolution, Krismer was awarded custody of their daughter. Each parent was ordered 'to pay half' of their daughter's college expenses. Years later, Krismer moved the trial court to enforce the child support order. The trial court found DeLeon in contempt for failing to pay support, but credited him with half of the educational expenses paid by Krismer's current mother-in-law. The court did not award Krismer attorney fees. Krismer appeals. We affirm the court's calculation of the unpaid support, as the court did not abuse its discretion by crediting DeLeon with half of the payment made by a third party. We reverse the court's refusal to award attorney fees, as Krismer was a prevailing party entitled to attorney fees under the child support statutes.
FACTS
Maria Krismer and Cornelio DeLeon divorced in 1994, and the superior court ordered child support for their daughter, Shiboo DeLeon. Under the order, 'each parent is ordered to pay half of the room, board and other reasonable [postsecondary] educational expenses' of their daughter.
Krismer's present mother-in-law purchased tuition units through an advanced college tuition payment program for Shiboo DeLeon. See RCW 28B.95.010-.900. When Shiboo DeLeon attended the University of Washington, the mother-in-law's purchase paid for $3,014 worth of tuition.
By May 2003, DeLeon failed to make some of his child support payments to Krismer. Krismer moved for an order to show cause why a court should not (1) find DeLeon in contempt for failing to comply with the child support order, (2) establish a judgment of $7,133.20, plus $808.24 in interest for delinquent child support and educational costs going back to 2001, (3) grant sanctions for contempt, and (4) award attorney fees of $1,250. The court ordered DeLeon to appear at a hearing and show why the relief should not be granted. In his response to the order, DeLeon claimed that he would agree to entry of a judgment for his daughter's educational expenses but that he hadn't been given school records as required under RCW 26.19.090(4). In a declaration, DeLeon stated, 'Assuming that proof of expenses is provided in this manner, I have no objection to entry of a judgment for 50% of those amounts.' By the time of the hearing, the only issues in dispute were Krismer's request for attorney fees and the proper calculation of the unpaid support in light of the mother-in-law's payments. After the hearing, the court ordered Krismer and DeLeon to mediation and declined to find DeLeon in contempt or award attorney fees. Krismer moved for a revision of the court's ruling.
Upon Krismer's motion for revision, the court entered a finding that DeLeon failed to pay all the support owed to Krismer. But the court set the amount at $5,566.20 with $630.66 interest, not the $7,133.20 with $808.24 interest requested by Krismer. The court found DeLeon in contempt, but did not award attorney fees. Krismer appeals the finding on the grounds that the court reduced the child support owed by DeLeon to account for the educational costs covered by Krismer's mother-in-law through the guaranteed education tuition account and that the court erred in doing so. Krismer also appeals the court's decision not to award attorney fees. DeLeon requests attorney fees for Krismer's appeal.
ANALYSIS
We begin by examining Krismer's claim that the court erred in calculating the child support owed by DeLeon. Findings of fact that are supported by substantial evidence will be upheld on appeal. W. Nat. Assur. Co. v. Hecker, 43 Wn. App. 816, 822, 719 P.2d 954 (1986). Krismer argues that this court should apply a de novo standard of review because the trial court based its findings on written evidence and not oral testimony. For support, Krismer relies on In re Marriage of Hunter, 52 Wn. App. 265, 758 P.2d 1019 (1988), in which this court independently reviewed a child support judgment that was decided on the basis of affidavits. Hunter, 52 Wn. App. at 268. But this court has since applied the substantial evidence standard of review to findings of fact, not the independent review standard, even when the trial court relied on written evidence. In In re Marriage of Stern, 68 Wn. App. 922, 846 P.2d 1387 (1993), this court disagreed with Hunter and applied the substantial evidence standard of review for a child support modification proceeding. Stern, 68 Wn. App. at 924, 928. We stated that '[i]t is illogical to state that we conduct exactly the same review as the trial court when we also require the trial court to enter findings of fact and conclusions of law.' Stern, 68 Wn. App. at 928. We also noted that the trial court has the benefit of oral argument to clarify conflicts in the record and that concerns of judicial economy make exhaustive appellate review inappropriate for findings of fact. Stern, 68 Wn. App. at 928. We therefore will determine whether the trial court's calculation of the child support owed by DeLeon is supported by substantial evidence.
Krismer appeals the calculation on the ground that the original court order requires DeLeon to pay 50 percent of educational expenses and that the payment of some of educational expenses by Krismer's mother-in-law does not affect this requirement. Krismer contends that the court therefore erred in reducing the amount of child support owed by DeLeon by an amount equal to half of the educational expenses paid by Krismer's mother-in-law. We disagree. The language of the court order in which 'each parent is ordered to pay half' of Shiboo DeLeon's educational expenses does not indicate how a court should calculate the child support owed by DeLeon when a third party pays some of the expenses. The trial court therefore could determine that the intent of the court order was for Krismer and DeLeon to pay for outstanding educational expenses on an equal basis, not for DeLeon to pay half of all educational expenses regardless of how much Krismer pays. A similar situation was presented in In re Marriage of Boisen, 87 Wn. App. 912, 943 P.2d 682 (1997). That case involved a separation agreement in which one ex-spouse agreed to pay half of all education expenses for two children. Boisen, 87 Wn. App. at 914. The Court of Appeals ruled that a corollary to the agreement was that payments by a third party would be credited equally between the two ex-spouses. Boisen, 87 Wn. App. at 921. Krismer does not contend that DeLeon's delinquency pressured her mother-in-law into supporting Shiboo DeLeon's education or that her mother-in-law expected reimbursement. We therefore see no basis to take a different approach in this dispute. The court's calculation enjoys substantial evidentiary support, and we affirm.
We next analyze Krismer's argument that she was entitled to attorney fees in her motion to enforce the child support order. In any action to enforce a child support order under chapter 26.18 RCW, the prevailing party is entitled to a recovery of costs, including an award for reasonable attorney fees. RCW 26.18.160. A person owing a duty of support is not a prevailing party unless the person to whom the duty is owed acted in bad faith in bringing an enforcement action. RCW 26.18.160. Under RCW 26.18.160, the award of attorney fees to the prevailing party is mandatory, since the terms of the statute are not discretionary. In re Marriage of Nelson, 62 Wn. App. 515, 520, 814 P.2d 1208 (1991).
Under RCW 26.18.160 and Nelson, Krismer was a prevailing party who was entitled to attorney fees. She successfully moved the trial court to enforce the order of child support. DeLeon contends that he conceded owing unpaid child support and that the only issue in dispute for the trial court was the treatment of the payments by Krismer's mother-in-law. DeLeon argues that the trial court sided with him on the issue of the payments by Krismer's mother-in-law and that he was therefore the prevailing party. But the proper question under RCW 26.18.160 is whether Krismer successfully brought an action to enforce a child support order, not whether the court sided with DeLeon on secondary issues he chose to dispute. DeLeon conceded that he had failed to pay child support. The fact that by the time of the hearing the only issues in dispute were Krismer's request for attorney fees and the proper calculation of the unpaid support in light of the mother-in-law's payments is not material. It was still necessary for Krismer to move for enforcement of the child support order, and the trial court ultimately granted judgment against DeLeon and found him in contempt. RCW 26.18.160 therefore makes mandatory an award of attorney fees to Krismer.
DeLeon makes a related argument that the trial court sided with him in his argument about the payments by Krismer's mother-in-law, that both he and Krismer prevailed on different issues, and that neither is a prevailing party entitled to attorney fees. In Nelson, however, this court ruled that a party successfully seeking enforcement of a support order is a prevailing party under RCW 26.18.160 even if the opposing party prevails on a particular argument, such as an offset of the judgment. Nelson, 62 Wn. App. at 520. Krismer is the prevailing party even though the court accepted DeLeon's argument about the payments by Krismer's mother-in-law. DeLeon also argues that he had justification in failing to pay the child support on the ground that Krismer did not provide him with necessary records. But DeLeon does not challenge the judgment against him or the contempt finding. Krismer therefore was a prevailing party, and she was entitled to an award of attorney fees.
DeLeon requests attorney fees for the cost of this appeal under RAP 18.1. But because he does not set forth a basis for attorney fees and because Krismer prevails on one of her arguments on appeal, DeLeon is not entitled to attorney fees.
In conclusion, we affirm the trial court's calculation of the child support owed by DeLeon to reflect the payment of Shiboo DeLeon's educational costs by Krismer's mother-in-law. We reverse the trial court's decision denying attorney fees to Krismer, and remand for entry of an award of attorney fees in the amount of $1,200 as requested.
SCHINDLER and GROSSE, JJ., concur.