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    IN THE COURT OF APPEALS OF THE STATE OF WASHINUI
                                                                                                                            UT
                                                  DIVISION II

In the Matter of the Marriage of.                                                     No. 46313 -0 -II


VICTOR M. ZANDI,


                                      Respondent,


          V.



 DEANNA M. ZANDI,                                                              UNPUBLISHED OPINION


                                      I1


         MELNICK, J. —        Deanna M. Zandi ( the mother) appeals an order requiring her to pay 25

percent of medical expenses          incurred   by    T. Z. ( the   child).   The mother argues that a December 9,


2009 child support order required Victor M. Zandi ( the father) to pay all uninsured medical

expenses. We agree with the mother and reverse.


                                                          FACTS


         The order of child support between the parties, required the father to pay all uninsured

medical expenses. The child is insured under the father' s Kaiser Permanente (Kaiser) policy. The

policy required an insured to seek care at a Kaiser -approved facility or physician or to obtain pre -

approval   for    out -of n
                          - etwork    doctors    of    facilities.     Emergency care is covered at non -Kaiser

facilities in the event a Kaiser facility is not available.

         In July 2011, while visiting her aunt in Ohio; the child developed kidney stones. Her aunt

took   her to   a non -Kaiser   emergency       room, which          treated and   released   her.   Kaiser paid for this


emergency       room visit.   She   needed   follow-up surgery to         remove a   large    kidney   stone:   The   nearest
46313 -0 -II




Kaiser medical facility was 4 to 8 hours away. The aunt took the child to a non -Kaiser facility for

the follow up surgery. Although a doctor at this facility stated that Kaiser would cover the costs

of   the surgery, Kaiser         refused   to pay the approximately $ 13, 000 in               medical     bills.   The father


appealed through the Kaiser appeal process, and Kaiser denied the appeal because the surgery was

performed by a non -Kaiser provider without any request for authorization or assistance from

Kaiser regarding this matter

          On March 30, 2012, the mother filed a petition to modify child support and in it also

requested      the father to pay         medical        expenses       incurred in   July   2011   as "   uninsured   medical




expenses."      Clerk'   s.   Papers ( CP)   at   12.    Following argument, the trial court ordered the mother to

pay 25 percent and the father to pay 75 percent of the outstanding medical bills. In a written order,

the court determined that because the mother was in a better position, as the primary residential

parent,   to   secure coverage        for the treatment through Kaiser, " the uninsured medical expenses for


this incident    should       be" divided. CP       at   247. The      mother appeals.      She argues that the trial court


lacked the authority to ignore the terms of the child support order and apportion payment of

uninsured medical expenses.


                                                           ANALYSIS

          RCW 26. 18. 170' allows a parent to seek payment of medical expenses as set out in a child

support order. The trial court concluded that the child' s Ohio medical expenses were " uninsured."




 RCW 26. 18. 170( 17) provides, in part:


          If a parent required to provide medical support fails to pay his or her portion,
          determined          under   RCW 26. 19. 080,          of      any   premium,      deductible,    copay,    or

          uninsured medical expense incurred on behalf of the child, pursuant to a child
          support order, the department or the parent seeking reimbursement of medical
          expenses may enforce collection of the obligated parent' s portion of the premium,
          deductible, copay, or uninsured medical expense incurred on behalf of the child.



                                                                   2
46313 -0 -II



The father argues on appeal that the uncovered medical expenses were insured and Kaiser refused


to pay only because the mother did not follow policy requirements.

           The father did    not cross- appeal.'       However, because the father is not seeking affirmative

relief, he is permitted to argue any grounds supported by the record to sustain the trial court' s

decision. RAP 2. 4( a)       (   barring affirmative relief to respondent in the absence of a cross appeal);

State   v.    Green, 177 Wn.        App.   332, 341     n. 8,   312 P. 3d 669 ( 2013).   If we accept the father' s


argument       that the   medical    expenses    were     not " uninsured,"    the trial court could apportion the


expenses.        Accordingly, we first address whether the trial court correctly determined that the

child' s     medical   expenses     were uninsured.           We then address whether the trial court properly

allocated the expenses.


I.         UNINSURED MEDICAL EXPENSES


             RCW 26. 18. 170( 18)( d) defines "[        u] ninsured medical     expenses"   as " premiums,   copays,



deductibles, along        with other   health   care costs not covered      by insurance." Statutory interpretation

is   a question of     law that   we review     de   novo.      Clallam County v. Dry Creek Coal, 161 Wn. App.

366, 385, 255 P. 3d 709 ( 2011).           When the plain language of the statute is unambiguous, our inquiry

ends.        Dry   Creek Coal, 161 Wn.           App.    at     385. "   Unambiguous statutes are not subject to


interpretation; one looks at the plain language of the statute without considering outside sources."

Durland v. San Juan County, 174 Wn. App. 1, 22- 23, 298 P. 3d 757 ( 2012).




     The father raises the issue whether the record is sufficient to allow review because the mother
did not transcribe the hearing at which the trial court orally ruled to allocate the medical expenses.
RAP 9. 1. The written order is in the record, along with the medical documents and declarations
considered by the court, and the facts are largely undisputed. Accordingly, .we conclude that the
record is sufficient to permit review.




                                                                  3
46313 -0 -II




           The parties disagree whether the child' s expenses are " health care costs not covered by

insurance";         the mother contends that because Kaiser did not cover the expenses, they are

uninsured, and the father argues that his Kaiser policy covered the expenses but the mother failed
                                                                            3.
to follow the policy              requirements     to obtain    coverage.        Because the plain language of RCW


26. 18. 170 includes            as " uninsured"    expenses    any    costs " not covered   by   insurance" and because


Kaiser is not covering the disputed medical expenses, we conclude that the trial court did not err

in determining that the expenses were uninsured.

Il.        CHILD SUPPORT ORDER


           The issue thus becomes whether the trial court had the authority to require the mother to

pay 25 percent of the uninsured medical expenses after she sought to enforce a child support order

requiring the father to pay 100 percent. As stated, the trial court concluded that the mother should

pay part of the expense because, as the primary residential parent, she was in a better position to

secure coverage for the kidney stone treatment by Kaiser Permanente.

           We hold that the trial court abused its discretion by altering the terms of the child support

order.      While child support obligations may be modified under certain circumstances, those



3 The father additionally argues that the trial court found that the child was covered by his insurance
and     that this   is   a   verity   on appeal   because the   mother    did    not assign error   to this   finding. We do
not read this finding as a determination by the trial court that the child' s medical expenses were
not " uninsured medical expenses."  The full paragraph highlighted by the father states:

           Among other things, the treatment included emergency room visits to the hospital
           and also          surgery to      kidney stones. The child was covered through the
                                          remove   the

           father' s Kaiser Permanente medical insurance provided by his employer. However,
           the nearest Kaiser facility is located in the Cleveland, Ohio area. Kaiser refused to
           cover the majority of the treatment, including surgery.

CP at 247. Neither party disputes that at the time of the incident, the child had medical insurance.
This fact, however, does not control the outcome of this appeal. Even a covered person can incur
      u] ninsured    medical          expenses"   as defined by RCW 26. 18. 170( 18)( d) because the definition
includes expenses such as premiums and copays that are regularly incurred by covered individuals.


                                                                  M
46313 -0 -II




circumstances did not apply here. See Schumacher v. Watson, 100 Wn. App. 208, 213, 997 P. 2d

399 ( 2000) ( as a general rule, court must find a substantial change of circumstances before


modifying      an order).   In so ruling, we are mindful that the record does not demonstrate that, under

the circumstances, the mother acted unreasonably in choosing a non -Kaiser facility to perform the

surgery.    Therefore, we need not decide if, pursuant to the child support order, the father would


have to pay all of the uninsured medical expenses if a Kaiser facility had been readily accessible

and the mother acted unreasonably in not taking their child to it.4 The trial court acted without

legal authority in changing the terms ,of the child support order and therefore abused its discretion

in requiring the mother to pay part of the child' s uninsured medical expenses. See Morin v. Burris,

160 Wn. 2d 745, 753, 161 P. 3d 956 ( 2007) ( trial court abuses its discretion when its decision is


based on untenable grounds).


        We reverse.


        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.

                                                                             a




                                                                  Melnick, J.


I concur:




        4jorgen, A.C. J.




4 While we understand the dissent' s concerns, there are no facts in the record to indicate that the
mother acted with an intent to cause unnecessary expense. Furthermore, the father remains entitled
to seek modification of the child support order. RCW 26. 09. 170.


                                                       5
46313 -0 -II




         WORswICK, J., (      dissenting) — The majority holds that costs for T.Z.' s ( the child' s)

kidney stone removal, which Kaiser Permanente ( Kaiser) would have paid for but for a non -

Kaiser   provider   performing the      removal, constitutes "[      u] ninsured medical expenses" under RCW


26. 18. 170( 18)( d).   I would hold that because T.Z.' s kidney stone removal would.have been

covered under the Kaiser insurance had the removal been performed by a Kaiser provider, it is

not an "[ u] ninsured medical expense[]."            RCW 26. 18. 170( 18)( d).    Thus, I respectfully dissent.

           Uninsured medical expenses' includes premiums, copays, deductibles, along with other

health   care costs not covered     by   insurance."     RCW 26. 18. 170( 18)( d) ( emphasis       added).   I would


hold that while medical costs that an insurance company never promised to pay ( such as

premiums, copays,       and   deductibles)      are " not covered,"   medical costs that an insurance company

promised    to pay for   subject   to   an   in -network limitation   are " covered."   RCW 26. 18. 170( 18)( d).


Thus, the latter are not " uninsured medical expenses" under RCW 26. 18. 170( 18)( d).

         Basic fairness supports this interpretation, as illustrated by this case. Victor M. Zandi

 the father) provided insurance that would have covered the costs for T.Z.' s kidney stone

removal as long as the removal was performed by a Kaiser provider (or Kaiser' s prior approval

was obtained).      T.Z.' s kidney stone removal was provided by a non -Kaiser provider without

Kaiser' s prior approval, resulting in a large medical bill that could have been avoided. The

majority' s holding requires Victor to pay 100 percent of this large medical bill, even though

Victor provided T.Z. with insurance that covered the kidney stone removal subject to the

insurance plan' s in -network limitation and even though Victor was not responsible for violating

that in -network limitation.


          Under the majority' s holding, a parent with control over his or her child' s medical care

could    boundlessly    violate   the insurance     plan' s   in -network limitation   with   knowledge that the
46313 -0 -II



other parent would be forced to absorb the resulting costs. This is patently unfair. Furthermore,

where the parent with control over the child' s medical care has no responsibility for the costs of

violating the insurance plan' s in -network limitation, he or she has no incentive to avoid a

violation.




        Recognizing this, the trial court reasonably decided that because Deanna M. Zandi (the

mother) was T.Z.' s primary residential parent, she was in a better position to control where T.Z.

had her medical procedure and therefore should absorb 25 percent of the costs for the violation

of the insurance contract' s in -network limitation. Thus, I respectfully dissent. I would affirm the

superior court.




                                                                  J. Worswick




                                                  VA
