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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of
                                                      No. 72148-8-
CORRIE WEBER,
                                                      DIVISION ONE
                     Respondent,

             and
                                                      UNPUBLISHED OPINION
BLAINE J. WEBER,
                                                      FILED: August 31, 2015
                    Appellant.


       Becker, J. — In this postdissolution proceeding, appellant Blaine Weber

sought declaratory judgment regarding the terms of his current and future

maintenance obligation. A superior court commissioner denied the motion. On a

motion for revision, a superior court judge affirmed the denial. We hold the

superior court acted within its discretion in determining that declaratory judgment

was not the appropriate mechanism to resolve the parties' dispute. Prior orders

suspending the maintenance obligation during the economic downturn did not

modify the total amount of maintenance downward in the way appellant

contends. We affirm.
No. 72148-8-1/2


                                        FACTS

       Corrie and Blaine Weber married in 1974.1 During the marriage, Blaine

was employed as a principal in an architectural firm he founded and Corrie was

employed as a legal secretary. In 2007, Corrie filed a petition to dissolve the

parties' 33-year marriage.

      The parties reached a mediated property settlement agreement that was

incorporated by reference into the 2008 decree of dissolution. The parties

agreed that Blaine would pay maintenance of "$6,000 per month [to Corrie] for 72

months commencing March 1, 2008 and ending February 28, 2014." The parties

agreed Blaine would then "pay spousal maintenance ... in the sum of $4,000 per

month for 36 months commencing March 1, 2014 and ending February 29,

2017." Over 9 years, the total amount of maintenance to be paid was thus

$576,000.

       The primary community property asset was the parties' ownership interest

in the architecture firm. The court awarded the shares in the firm to Blaine. In

order to achieve the agreed upon division of community property assets, the

decree provided for Blaine to make a transfer payment of $465,000 to Corrie,

secured by a promissory note and payable in four annual installments beginning

in 2009. Interest on the note accrued at six percent per year, but a missed

installment payment would cause the interest rate to double.

       Between 2005 and 2007, Blaine's annual income ranged between

approximately $370,000 and $515,000. However, between mid-2008 and 2011,



       1 For clarity, we refer to each party by first name.
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No. 72148-8-1/3


the economic recession and housing market collapse greatly affected the income

generated by the architectural firm. Based on these circumstances, in March

2009, Blaine filed a petition to modify maintenance.

       On June 26, 2009, King County Court Commissioner Leonid

Ponomarchuk entered an order stating: "The Petition for Modification of

Maintenance is granted." The commissioner entered a temporary order

continuing trial on the motion and suspending maintenance payments for three

months:


                 The maintenance is not non-modifiable and the Court has
       discretion to modify.
               Obligor has made a showing of grounds/basis for
       modification. The court denies the request to terminate
       maintenance but will suspend the maintenance for the months of
       June, July, Aug and September 2009, pursuant to the authority set
       forth in [In re Marriage of Drlik. 121 Wn. App. 269, 87 P.3d 1192
       (2004)].
               The court will review the maintenance suspension on
       September 25, 2009 and is continuing the trial to that date.

The commissioner's order required Blaine to provide updated financial

information before the trial date and denied the requests of both parties for

attorney fees.

       Three months after entry of this order, Blaine filed a CR 60(b) motion to

vacate the transfer payment provisions of the dissolution decree. Around the

same time, Blaine defaulted on the first installment on the promissory note,

triggering the doubling of the interest rate. A court commissioner denied the CR

60 motion, ruling that the global economic conditions did not provide a sufficient

basis to set aside the final judgment. The superior court denied a motion for

revision. In an unpublished decision, this court affirmed. See In re Marriage of
No. 72148-8-1/4


Weber, No. 64739-3-1, noted at 162 Wn. App. 1001 (2011). In September 2013,

Blaine made a transfer payment of $591,649 to Corrie to pay off the promissory

note.


        No review hearing took place in September 2009. Between 2009 and

2011, the parties entered several orders stipulating to a continuance of the

"terms and conditions" imposed in the June 2009 order and to a continuance of

the trial by affidavit on Blaine's modification petition.

        A trial by affidavit finally occurred on July 29, 2011, before then King

County Superior Court Commissioner Lori K. Smith. The commissioner

expressly found a "basis to modify the maintenance downward." At the time of

the July 2011 trial, Blaine still had no significant income. The court imputed

income to Blaine of $100,000 per year and income to Corrie based on the

median income for her age. The court then modified maintenance to a minimum

of $2,000 and maximum of $6,000 per month according to a variable formula:

        The court modifies the maintenance obligation to $2,000 per month
        beginning August of 2011. Further, if Mr. Weber receives a draw of
        more than $6,000 per month, he shall pay to Mrs. Weber as
        additional maintenance 50% of the amount over $6,000, such that if
        he received $10,000, his maintenance obligation for that month
        shall be $2,000 + $2,000 but maintenance shall not exceed terms
        of the original settlement agreement.

The order further stated that the matter "shall be reviewed" in one year, in July

2012, on the family law calendar. The commissioner invited the parties to bring a

motion sooner if Blaine received income and "not just draws."

        In August 2011, the same commissioner denied Blaine's motion to

reconsider the order and awarded attorney fees to Corrie. Although Blaine's
No. 72148-8-1/5


motion to reconsider is not included in the record on appeal, it appears that he

primarily challenged the imputation of income and the evidence supporting the

court's decision to order a minimum monthly maintenance payment of $2,000.

       Neither party requested the review hearing called for by the July 2011

maintenance order. Blaine's income rebounded and eventually surpassed its

previous level. In early 2012, he began to pay monthly maintenance at the rate

of $6,000.

      The parties' original agreement provided for the fixed rate of maintenance

to drop from $6,000 to $4,000 on March 1, 2014. Accordingly, on that date,

Blaine paid Corrie maintenance of $4,000. Corrie objected. She claimed that

Blaine was not entitled to reduce his payment because she was entitled to 72

months of maintenance at a rate of $6,000 and by that calculation, Blaine owed

$172,000 in unpaid maintenance for the initial 72-month period. Corrie claimed

she was entitled to receive continued payments at $6,000 until the shortfall was

paid, and only then would the 36-month term of reduced maintenance

commence.


       Shortly after this exchange, on April 17, 2014, Blaine filed a "Motion for

Declaratory Relief Re: Terms of Maintenance Obligation." He sought declaratory

relief as to his current and future maintenance obligation based on the June 2009

and July 2011 orders. Based on the language of these orders, Blaine asked the
court to declare that (1) the June 2009 order suspending maintenance "relieved"

him of the obligation to pay maintenance during the suspension period with no

obligation to "make up" those payments; (2) the July 2011 order lifting the
No. 72148-8-1/6


suspension and modifying maintenance did not require Blaine to compensate

Corrie for reduced maintenance paid under the variable formula; (3) the July

2011 order did not change the decree's provision setting March 2014 as the date

when the monthly maintenance payments would drop to $4,000; and (4) the July

2011 order did not change the decree's provision setting February 2017 as the

date when maintenance terminates.

       Corrie opposed Blaine's motion. Corrie argued that Blaine's request for

declaratory judgment should be dismissed as a veiled and inappropriate request

for modification and retroactive termination of spousal maintenance. Corrie also

argued that declaratory judgment was not appropriate in a case involving

modifiable spousal maintenance. Corrie asserted that Blaine was merely

attempting to prevent a future request to extend maintenance beyond 2017 if the

financial circumstances warranted such a request.

       In May 2014, Commissioner Bonnie Canada-Thurston denied the motion

for declaratory relief in an order stating that the 2009 order "was not a

modification of the maintenance order" and Commissioner Ponomarchuk's use of

the term "suspended" did not under any circumstances "terminate or nullify"

Blaine's obligation under the parties' original property settlement agreement. "At

the original and final TBA [trial by affidavit] the trial court had the authority to

retroactively modify the maintenance back to the date of filing of the modification.

That court did not." The order stated that it would be "unconscionable" for the

court to make any changes retroactively to the property settlement agreement

and doing so "would violate the terms of arms length bargaining" that set up the
No. 72148-8-1/7


property settlement agreement and "would be analogous to an impermissible

retroactive modification of maintenance."

       Blaine moved for revision. Following a hearing, King County Superior

Court Judge Tanya Thorpe denied the motion. The court ruled that there was no

basis for declaratory relief because the pertinent orders "are clear on their face

regarding spousal maintenance being suspended and then providing a formula

for future maintenance to be paid." The court affirmed the decision and findings

of commissioner Canada-Thurston "consistent with this court's oral ruling and

these additional findings."

       Both the commissioner and the superior court judge declined to award

fees. Blaine appeals.

                                    ANALYSIS


       In an appeal from a decision on a motion to revise a commissioner's

ruling, this court reviews the decision on revision, not the commissioner's ruling.

Boeing Emps'. Credit Union v. Burns, 167 Wn. App. 265, 270, 272 P.3d 908,

review denied, 175 Wn.2d 1008 (2012). Accordingly, we must determine

whether the superior court abused its discretionary authority under RCW

2.24.050 by refusing to revise the commissioner's order denying Blaine's motion

for declaratory judgment. See In re Marriage of Dodd. 120 Wn. App. 638, 644,

86 P.3d 801 (2004). To the extent we are called upon to interpret the language

of the prior orders, our review is de novo. In re Marriage of Chavez. 80 Wn. App.

432. 435-36. 909 P.2d 314. review denied. 129Wn.2d 1016(1996).
No. 72148-8-1/8


       Blaine claims that the superior court committed reversible error by denying

his motion. In his view, the 2009 commissioner's order extinguished his

maintenance obligation for the period when maintenance payments were

suspended. He argues that "suspend" means to stop, rather than defer. He

relies on the absence of language in the 2009 order stating that the obligation

would continue to accrue during the period of suspension. He also points out

that the 2011 order did not include a requirement to pay maintenance arrearage,

nor did it alter the dates and caps set forth in the decree. For this reason, he

contends that the superior court should have declared that his maintenance

obligation was capped at $4,000 per month after March 2014 and that it

terminates altogether in 2017 according to the terms of the original decree.

      A threshold issue, however, is whether Blaine was entitled to declaratory

relief. In briefing before this court and during oral argument, Blaine's counsel

suggested that his motion was merely a request for clarification of the 2009 and

2011 orders. But the motion was clearly brought under the authority of the

Uniform Declaratory Judgments Act, chapter 7.24 RCW, and it expressly sought

a judicial declaration of his "rights" under the 2009 and 2011 orders.

       Under the Uniform Declaratory Judgments Act, a court has the power to

declare "rights, status and other legal relations." RCW 7.24.010. A decree, or an

agreement merged therein, may be subject to a declaratory action to ascertain

the rights and duties of the parties. Byrne v. Ackerlund. 108 Wn.2d 445, 453-55,

739 P.2d 1138 (1987). But historically, our courts have often limited the

operation of the Uniform Declaratory Judgment Act to cases where there is no



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No. 72148-8-1/9


statute providing a satisfactory alternative legal remedy. Grandmaster Sheng-

Yen Lu v. King County. 110 Wn. App. 92, 98-99, 38 P.3d 1040 (2002); Ronken v.

Bd. of Comm'rs of Snohomish County. 89 Wn.2d 304, 310, 572 P.2d 1 (1977)

(granting declaratory relief is within the discretionary authority of trial courts, but

courts should be "circumspect" about granting such relief).

       The parties have a genuine dispute about how and whether the 2009 and

2011 orders affect the total amount of maintenance Blaine will be required to pay.

Nevertheless, as the superior court noted in the oral ruling, Blaine sought

declaratory judgment with regard to orders that were "modifiable and, in fact, the

Court had previously modified." Blaine concedes that the maintenance

provisions agreed to and incorporated into the decree are modifiable. They

continue to be so. And as the superior court further observed in its oral ruling, by

seeking declaratory judgment with respect to orders that had been in place for

several years, Blaine circumvented the specific review process on the family law

calendar set forth in those orders. Chapter 26.09 RCW is the comprehensive

statutory scheme that governs virtually all aspects of dissolution proceedings,

including support obligations. Review of maintenance based on current

circumstances continues to be available on the family law motions calendar.

Because review in a family law proceeding is available, the trial court did not

abuse its discretion in denying Blaine's motion for declaratory relief.
       In any event, Blaine's interpretation ofthe 2009 and 2011 orders is not
compelling. Blaine argues thatthe commissioner's use ofthe term "suspend" in
the 2009 order means that maintenance was forgiven or extinguished during the
No. 72148-8-1/10


period that payments were suspended. He cites no authority supporting that

interpretation.

       The only pertinent authority is the case cited in the 2009 order and by the

superior court, Drlik, 121 Wn. App. 269. In Drlik, the appellate court simply held

that given the broad definition of "modify," the trial court's authority to modify

maintenance included the authority to suspend it. Drlik, 121 Wn. App. at 274-75.

The case does not hold that "suspend" has a single, fixed meaning.

       The 2009 order does not explicitly state that the maintenance obligation

will continue to accrue while suspended, but neither does it state that it will not.

In 2009, the commissioner suspended maintenance with the expectation that the

suspension would last for only three months during a short continuance of the

trial on the petition to modify. In these circumstances, it was more reasonable for

the trial court to conclude that the commissioner intended for Blaine's

maintenance obligation to be deferred, not extinguished.

       The commissioner's intent reflected in the 2011 order was to reassess

maintenance based on updated financial information by June 2012 at the latest.

This too undermines Blaine's argument. Like the 2009 order, the 2011 order

modified maintenance downward only on a temporary basis. There is no

language indicating it was intended as a definitive reduction of the total

maintenance obligation created by the decree.




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No. 72148-8-1/11


                                  Attorney Fees

       Corrie requests attorney fees under RCW 26.09.140 and RAP 18.1. This

provision gives the court discretion to award attorney fees to either party based

on the parties' financial resources, balancing the financial need of the requesting

party against the other party's ability to pay. In re Marriage of Pennamen, 135

Wn. App. 790, 807-08, 146 P.3d 466 (2006). In exercising our discretion, we

examine the arguable merit of the issues and the parties' financial resources, |n

re Marriage of C.M.C.. 87 Wn. App. 84, 89, 940 P.2d 669 (1997), affirmed. 136

Wn.2d 800, 966 P.2d 1247 (1998).

       Corrie relies on the financial affidavits both parties submitted below in

2014 and designated for the record on appeal. Blaine responds in his reply brief
that those affidavits demonstrate that Corrie does not have a need because she

continues to receive maintenance and he does not have the ability to pay.

       Corrie now objects to the current financial declaration submitted by Blaine.

Blaine now objects that Corrie has waived her right to request fees on appeal by

filing herfinancial declaration, the same declaration in the appeal record, after
the deadline established in RAP 18.1(c). We exercise our discretion to waive the

deadline and to consider the financial declarations of both parties. See RAP

1.2(a); RAP 18.8(a). In consideration of the merits and the financial
circumstances, we conclude that Corrie is entitled to an award of attorney fees

on appeal, subject to her compliance with that portion of RAP 18.1 requiring her
to submit an affidavit of fees and expenses.

       Affirmed.




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No. 72148-8-1/12




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