In follow-up to yesterday’s post about Division I unpublished family law cases, here are some updates from Division 2 that came down today.
In Re The Marriage Of Carrasco, Docket No. 45767-9; Opinion Author Worswick; Concurring: Johanson and Melnick; Attorney for Apellant/Cross-Respondent Josephine C Townsend; Attorneys for Respondent/Cross-Appellant Carolyn Marie Drew and Patricia S. Novotny
Basics of decision: Husband appealed the trial court’s decision regarding maintenance (a/k/a spousal support/alimony) and division of property. He argued that the trial court failed to impute income to his ex-wife for purposes of calculating spousal maintenacne and child support, the decision to award “supplemental” maintenance; securing payments via life insurance policy, ordering Husband to pay all expenses for his adult daughter’s eating disorder treatment, and using the trial date to calculate Wife’s share of the Husband’s retirement account. The court rejected Husband’s claims, affirmed the trial court’s decision, and granted Wife Attorney’s fees.
Basic Facts: 19 year marriage, married while Husband was in school, by the time of divorce, Husband was employed earning roughly $16,210 in gross monthly income. Shortly after marriage, Wife quit her job to raise the couple’s first of three children. From 1994 to 2012 the couple lived off of Husband’s student loans, grants, stipends, and financial aid. Couple acquired few assets. Owned one home in Vancouver, Washington.
Court provided for spousal maintenance of $5,500 per month for a total of nine years, a five year base, plus an additional four years to allow Wife the time to Wife to seek higher education. Husband ordered to have life insurance in Wife’s name equivalent to amounts owed for maintenance. Property divided as follows: Half of Husband’s retirement account to each spouse as separate property; house to Husband with half of the equity to Tarantino. (Parenting plan and child support also entered, but do not appear to be in dispute, except for the imputation of income issue).
Husband had also stipulated in trial that he was going to pay for their adult daughters treatments connected to her eating disorder and then sought not to pay it.
On interesting point of the appeal is that Husband sought to assign error to findings of fact, but did not argue the findings lacked substantial evidence so they are considered verities on appeal.
Division II rejected the claim that income needs to be imputed for maintenance, noting that the only limitation on the amount and duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors, the award must be just. Husband failed to carry his burden of showing that the trial court abused its discretion by ordering an unjust maintenance award.
Division II rejected the argument that, for child support purposes, Wife should have been found to be voluntarily unemployed and her income should have been imputed to minimum wage. The trial court made findings that Wife had attempted to rejoin the workforce, that she was volunteering to gain experience, and that she was attempting to learn a new skill (medical billing). Division II said this provided tenable grounds for the trial court’s ruling that Wife was not intentionally unemployed. Thus, the trial court did not err by not imputing income to Wife for purposes of calculating child support.
The trial court awarded Wife maintenance for nine years, compensating wife for the unrealized benefits of Husband’s education. Husband argued that there was no proof that Wife supported him through medical school, so she should not be compensated and that maintenance should be limited to the number or years Wife needs to get an education. Division II rejected this argument noting that where there are unrealized education benefits a trial court must consider four factors (1) the amount of community funds expended for educational costs, the income the community would have earned had the student spouse worked rather than gone to school, (3) the nonstudent spouse’s lost educational or career opportunities given up due to the student spouse’s education, and (4) each spouse’s future earnings prospects. The court noted that the law does not require reimbursement for past separate expenditures but to reimburse the supporting spouse for expected future benefits from the educated spouse’s increased earning potential that had not yet come to fruition at dissolution. Division II also reiterated that there is no rigid formula for awarding maintenance.
Division II also rejected the argument that the trial court abused its discretion in requiring Husband to maintain a life insurance policy to cover maintenance payments to Wife. Husband’s arguments were (1) if he died and wife got a lump sum, she could invest it the money and the resulting interest would create a windfall, and (2) wife wouldn’t owe taxes on life insurance policy but she owes taxes on her monthly spousal maintenance payments, creating a windfall due related to the lack of taxation. The court rejected this stating that there is no requirement that a property division be mathematically precise – it must be just and equitable. Husband failed to show the trial court manifestly abused its discretion or created an unjust and inequitable result.
Division II rejected Husband’s argument that he intended a cap of approximately $20,000 on his daughter’s medical treatment. Division II noted the stipulation was made on the record in open court and that a stipulation made in open court is a binding contract. The trial court found that the parties agreed to Husband paying all expenses related to daughter’s eating disorder. The transcript clearly says “all treatment” without a cap. Division II also notes that Husband’s argument against the agreement is that Wife may some day seek to enforce the agreement in an absurd manner and the court says this claim is not ripe because there is no allegation that she is currently seeking to enforce it in an absurd manner. In the future, the context rule of contracts will permit a court to interpret the stipulation in a reasonable manner consistent with Husbands intent.
Division II rejected the argument that Wife had no right to retirement benefits after the separation – noting again that the court may divide up all property, community or separate, as shall appear just and equitable. The court noted that the characterization of property as community or separate does not control its distribution and a court must consider all relevant factors and has the discretion to dispose of separate and community property so long as it is just and equitable. Husband failed to prove that the trial court manifestly abused its discretion by using the trial date instead of separation date and notes that Husband did not argue that the award was not just or equitable.
Wife filed an affidavit of financial need at least 10 days before oral argument and finding that Wife had a financial need, the court granted her attorney fees on appeal in amount to be determined by the court’s commissioner.
In the Marriage of Allen, Docket No. 31619-0; Opinion Author: Fearing; Concurrence: Brown and Siddoway; Attorney for Appellant: Jeffrey Ray Allen (Appearing Pro Se); Attorney for Respondent: Catherine Marie Allen (Appearing Pro Se) and Kacie L Maggard, Yakima County Prosecutor’s Office
Father appealed an order increasing his child support obligation based upon (1) Commissioner should have recused himself because the commissioner previously represented Jeffrey against his former wife; (2) Court erred in denying request for change of venue; and (3) Court denied Father due process when another commissioner changed his child support obligation because he never received information about Mother’s finances. All of the Father’s arguments were rejected and the order modifying Father’s child support order were affirmed.
The Mother was receiving public benefits and the State of Washington moved in Grant County Superior Court, where the order was originally entered for an increase to the Father’s obligation. After divorce, Mother moved to Everett, Snohomish County, and father moved to Tacoma, Pierce County. Father moved to change venue to Snohomish County. Wife requested it remain in Grant County alleging the father was seeking to avoid modification.
The Court ordered a change of venue unless the State objected and the state objected to a change of venue on the ground that transferring venue would delay the motion to increase child support. The Motion to change venue was denied and the hearing was rescheduled. Father sought reconsideration, but mislabeled his motion for reconsideration causing confusion. At this time Father aslo argued the Commissioner should have recused himself since he used to be Father’s attorney. Father’s request for reconsideration was rejected as untimely.
Division III noted that Father’s brief contained no citation to the record and egregiously violated RAP 10.3 and 10.4 and thus, Father’s assigned errors are treated without merit. Division III noted that since Father did not raise the issue of disqualification until after the commissioner denied Father’s motion to change venue and so the issue was waived for assignment of error.
Division III noted that RCW 26.09.280 allows for a child support modification to proceed in the court in which the final order, judgement, or decree was entered, and so it was proper to be filed in Grant County. The Commissioner’s reliance upon the objection of the state and to avoid further delay modifying child support order was a validly articulated reason for the decision not to change venue and thus did not abuse discretion.
Father also made the claim that the state had the responsibility to provide proof of personal service or certificate of mailing. Division III said the Civil Rules allow for proof to be provided by a declaration of service and so Due Process was not denied to Father.
Attorney Fees – a portion of an opening brief must be devoted to fees or expenses under RAP 18.1(b). Argument and citation to authority are required under the rule to advise the court of the appropriate grounds for an award of attorney fees as costs. Both parties failed to devote a section of their briefs to their requests for attorney’s fees, therefor both requests were denied, plus they were pro se so likely incurred no fees.