                                                                                  20,f Ec


 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
                                                        o. 75496-3-1
FANAYE ASHAGARI,
                                                        IVISION ONE
                       Respondent,
                                                        NPUBL1SHED OPINION
               and

ZELEKE KASSAHUN,

                       Appellant.                       ILED: December 11,2017


       TRICKEY, J. — This is Zeleke Kassah n's third appeal related to the
dissolution of his marriage to Fanaye Ashagar.
                                             . This court decided Kassahun's

first appeal in March 2015.          We subseque tly resolved his second appeal

challenging the trial court's dissolution order a d findings on remand. Kassahun

now appeals the trial court's denial of his moti n to modify his child support and

maintenance obligations.1 Finding no error, we affirm.

                                          FACTS

       This court previously,stated the relevant nderlying facts as follows:

       [Kassahun and Ashagari were married in January 1998.] The parties
       have three children. Ashagari did not return to work outside the home
       after their first child was born . . ..
       . . ..

       [The parties] purchased a taxicab lice se in 2000. In 2002, they
       acquired the Abyssinia Market . . .. Ov r the years they were able

1 For clarity, we refer to the trial court that presided ver the dissolution proceeding as the
dissolution court, and to the trial court that preside over the modification proceeding as
the modification court.
No. 75496-3-1/ 2

      to save a large sum of money. In 201 , unbeknown to Ashagari,
      Kassahun withdrew $187,000 from th joint bank account and
      invested $180,000 in'another taxicab lic nse.

      Kassahun paid himself a modest sal ry from his work at the
      Abyssinia Market. His tax returns reflect d the paychecks he wrote
      to himself from the business account as ell as his income from one
      of the taxicabs. He reported an income rom the taxicab licenses of
      less than $1,000 a year. But at trial, K ssahun claimed to receive
      $1,000 each month per taxicab, paid in cash. He provided no
      documented proof of this income and St ted that he does not keep
      records of the income.[21

      In 2011, Kassahun and Ashagari separa ed. The trial court concluded that

Kassahun's gross monthly income was $13,750. The dissolution court awarded

Ashagari $1,347.72 per month in child su11port and $5,000 per month in

maintenance.

       Kassahun appealed, and this court f und that the dissolution court's

explanation of its method for determining Kass hun's gross monthly income was

unclear. This court remanded for further findin s on the calculation of Kassahun's

gross monthly income and recalculation of Ka sahun's maintenance and support

obligations, if necessary.

       On remand, the dissolution court revi ed its calculation of Kassahun's

monthly income to $12,750. The dissolution co rt also changed the method it used

to compute Kassahun's taxes so that his tax Ii bility decreased by approximately

$1,000. This increased his net monthly income o $5,399.52. The dissolution court

did not change Kassahun's $5,000 per month        aintenance obligation, but adjusted

his child support obligation to $1,696 per mont



2In re Marriage of Ashagari and Kassahun, not-d at 186 Wn. App. 1033, 2015 WL
1307124, at *1-3, review denied, 184 Wn.2d 1012, 360 P.3d 818(2015).
                                        2
No. 75496-3-1 /3

       Following the dissolution trial, Kassahun filed a petition for modification of

child support and maintenance, arguing that th order of child support worked a

severe economic hardship on him and that there was a substantial change in

circumstances meriting modification because his income had been significantly

reduced.

       The modification court heard evidence a out Kassahun's financial situation

over four days in May 2016. Kassahun's 2011 income tax return showed that he

reported $36,000 in W-2 wages and $755 of •usiness income from his taxicab

licenses. After deductions and expenses, his r ported taxable income for the year

was $4,479.

       Kassahun's 2013 income tax return sho ed that he reported $33,000 in W-

2 wages, $4,240 in ordinary dividends, and $ ,654 in business income from his

taxicab licenses.3 After his claimed expenses a d deductions, his reported taxable

income was $0.

       Kassahun's 2014 income tax return sho ed that he reported $39,000 in W-

2 wages, $3,357 in ordinary dividends, and $ ,047 of business income from his

taxicabs for a total of $50,404. After his cl imed deductions and expenses,

including alimony, Kassahun's claimed adjuste gross income was -$19,265.

       Kassahun did not file his 2015 taxes. In August 2014, Kassahun filed a

financial declaration, which'stated that his total   onthly net income was -1,226.50.

He declared that his total gross income, consis ing only of wages, was $3,824.50.

He declared that his total monthly deductions were $5,051.00, including spousal


3 Kassahun describes his claimed dividend as 'moneys he had borrowed from his
business which he could not repay." Br. of Appellant at 10.
                                           3
No. 75496-3-1 /4

maintenance payments.

       In a financial declaration filed on May 9, 016, Kassahun declared that his

gross monthly income was $5,676.08. He d clared that he had $2,787.90 in

monthly deductions, for a mOnthly net income o $2,888.18.

       At the modification trial, Kassahun testifi d that he had been forced to take

out a $50,000 loan from Taketu Truneh to meet his support obligations and to pay

his personal expenses and attorney fees. Kas ahun said that he was able to pay

his maintenance obligation until June 2015, when he was unable to borrow more

money. But he also testified that he continue to borrow money from his cousin

Aklilu Mekuria to pay his child support obligati°

       After Kassahun stopped paying mai tenance, Ashagari had to stop

attending classes to find a job. Ashagari atte pted to find full-time employment

and was rejected. She eventually obtained           work study position at Shoreline

Community College that pays $584.85 per mon h. At one point, Ashagari received

public assistance in the form of food stamps. This assistance stopped after the

State garnished $2,000 from Kassahun's pers nal account for maintenance.

       After the garnishment, Kassahun ope ed a new business account into

which he deposits his wages and taxicab in          me to avoid garnishment by the

State. Kassahun paid his rent, taxicab insuran e, utilities, and other expenses out

of this new business account.

       Kassahun testified that his taxicab licen es did not have any value because

of changes in the industry, his inability to reta n drivers, and his inability to lease

the licenses. John Megow from the City of Seattle testified that the taxicab licenses


                                          4
No. 75496-3-1/5

were still valuable and in high demand despite decreases in value over the prior

two years.

        Evidence presented at the modification t ial showed that Kassahun made a

profit from the Abyssinia Market and invested t e earnings back into the business.

Also, Kassahun wrote checks from his busines account that he either cashed or

used to pay for personal expenses. He used usiness credit cards for personal

expenses and legal fees. Kassahun did not re ort these expenditures as income

on his personal income tax returns.4 Further, t trial Kassahun disclosed for the

first time that he had a Visa credit card thro gh BMW. He used this card for

personal expenses.

       After filing his petition for modification, Kassahun moved for an order to

show cause regarding language in the di solution decree that made his

maintenance obligation "'non-modifiable.'"6              he dissolution court struck the

language because it "was not part of the court' oral ruling and is not a ruling the

court has discretion to make."6 Kassahun has ot appealed that order.

        In its final order and findings, the           odification court did not change

Kassahun's monthly child support obligation.

        Kassahun appeals.




4 See, e.o., Ex. 67(2012 personal income tax retu n); Ex. 69(2012 personal income tax
return, listing an ordinary dividend); Ex.74(2013 pe sonal income tax return); Ex. 77(2014
personal income tax return, listing an ordinary divid nd). After the parties' dissolution trial,
Kassahun filed amendments to his 2012 and 013 personal income tax returns to
decrease the retained earnings listed in his corpor te tax returns.
5 Clerk's Papers(CP) at 160-61.
6 CP at 163.

                                               5
No. 75496-3-1 /6

                                   ANALYSIS

                      Striking of Non-Modificati n Language

      Kassahun argues that the dissolution couIrt erred when it failed to reconsider

the amount and duration of Ashagari's maintenance award after the "non-

modification" language was stricken from the dissolution decree. Because the

dissolution court reconsidered Ashagari's maintenance award on remand after it

struck the non-modification language, we disagree.

      Unless a separation contract so provide a maintenance or support decree

may be modified only upon a showing of a su stantial change in circumstances.

RCW 26.09.170(1)(b); RCVV 26.09.070(7).

      In In re Marriage of Short, the trial court rdered the husband to pay the wife

$750 per month in maintenance payments for 2 months. 71 Wn. App. 426, 433,

859 P.2d 636(1993), aff'd in part, rev'd in part, 125 Wn.2d 865, 876, 890 P.2d 12

(1995). The trial court gave the husband "lea e to pay this maintenance in one

accelerated lump sum if he so chose," which e did. Short, 71 Wn. App. at 433.

The trial court then "determined that the spo sal maintenance award had been

fully, finally and completely satisfied and     rovided in the decree that the

maintenance award would be nonmodifiable by either party for any reason." Short,

71 Wn. App. at 433.

      The Court of Appeals reversed, and the upreme Court affirmed in relevant

part. In re Marriage of Short, 125 Wn.2d 865, 876, 890 P.2d 12 (1995). The

Supreme Court held that"whenever a nonmodi iable maintenance award provision

is stricken from a decree of dissolution, he amount and duration of the


                                        6
No. 75496-3-1 /7

maintenance award must be reconsidered" a          matter of law. Short, 125 Wn.2d

at 876.

         Here, the dissolution court entered the issolution decree, which included

the "non-modifiable" language, on November 1 , 2013.7 Kassahun filed his notice

of appeal on December 12, 2013. Kassahun flu d his motion for an order to show

cause on November 14, 2014. On February            2015, the dissolution court ruled

that the language should be stricken. A ye r later, following Kassahun's first

appeal in this case, the dissolution court entere its order and findings on remand

on March 17, 2016. It declined to alter its deter 'nation that Kassahun should pay

$5,000 per month in maintenance.

         The dissolution court's maintenance aw rd has been reconsidered since it

struck the "non-modifiable", language. Followi g Kassahun's first appeal in this

case, this court directed the dissolution court o recalculate Kassahun's income

and revisit his child support and maintenan e obligations, if necessary. The

dissolution court recalculated Kassahun's inco e, and explicitly declined to modify

its maintenance award. Thus, the dissolution ourt reconsidered its maintenance

award following its striking of the "non-modi !able" language in the dissolution

decree.

                       Substantial Chan se in Circumstances

         Kassahun argues that the modification ourt abused its discretion when it

found that there had been no substantial         hange in circumstances meriting

modification of his support obligations. Specifi ally, he argues that the modification



7   Ex. 23.
                                          7
No. 75496-3-1/ 8

court's findings of fact were not supported by su s stantial evidence and that it erred

when it did not explicitly calculate his current gr ss monthly income.

       Findings of Fact

       Kassahun argues that several of the modification court's findings of fact

were not supported by substantial evidence. We examine each of Kassahun's

challenges in turn.

      "Where the trial court has weighed the evidence, the reviewing court's role

is simply to determine whether substantial evi ence supports the findings of fact

and, if so, whether the findings in turn support t e trial court's conclusions of law."

In re Marriage of Wilson, 165 Wn. App.            33, 340, 267 P.3d 485 (2011).

"Substantial evidence is evidence sufficient to persuade a fair-minded person of

the truth of the declared premise." In re Marr a e of Hall, 103 Wn.2d 236, 246,

692 P.2d 175 (1984).

      "An appellate court should 'not substitut [its] judgment for the trial court's,
                           ;
weigh the evidence, or adjudge witness credibi ity." Wilson, 165 Wn. App. at 340

(alteration in original) (quoting In re Marriage if Greene, 97 Wn. App. 708, 714,

986 P.2d 144 (1999)).

       First, Kassahun contends that evidei ce at the modification trial was

insufficient to show that he,has continued to tae approximately $11,000 from his

business to pay for personal expenses, a found by the dissolution court.

Assuming that Kassahun is challenging the riodification court's finding that he




                                          8
No. 75496-3-1 / 9

"routinely uses his business account for per onal expenses,"8 this finding is

supported by substantial evidence.

         At trial, Kassahun testified that he used usiness funds and business credit

cards to pay for personal expenses.° Although e claimed that he disclosed these

amounts when he claimed an ordinary dividen of $3,357 on his 2014 personal

income tax return, he testified to payments fro          his business account to pay for

personal expenses that exceeded this claimed ividend in 2014.10

         Kassahun stated that he stopped us ng business funds for personal

expenses in late 2015 or early 2016, and that he paid personal expenses out of

the new business account he opened to avoi garnishment. But his argument

largely relies on his self-serving testimony. Fu her, he testified that he used cash

from the business without keeping a ledger a d that his statements for his new

business account did not itemize where the deposits into it originated. The

modification court did not find Kassahun's testimony at trial credible, which this

court will not disturb on appeal." Therefore, we conclude that the modification




8   CP at 456.
9 See,        RP (May 18, 2016) at 422-423 (des ribing checks written from business
account to pay for personal credit card); RP (Ma 17, 2016) at 279-80 (use of Costco
American Express credit card to pay attorney fees)
10 See Ex. 77; cf. Ex. 76(corporate tax return lists v lue as cash distribution, not dividend);
RP (May 18, 2016) at 422-23; see, e.q., Ex. 61 (c eck for $1,200 to himself in January,
check for $1,200 to pay personal credit card in Jani. ary, check for $340 to pay refrigerator
technician in February, check for $1,200 to pay p rsonal credit card in February, check
for $1,200 to pay personal credit card in March).
11 Kassahun also challenges Ashagari's statem nts during closing argument at the
modification trial that Kassahun used funds from hi business accounts to pay for personal
expenses. Ashagari's statements during closing rgument were based on the evidence
presented at trial, Kassahun did not object to the , and they are not a finding of fact by
the modification court. We reject Kassahun's chall nge.
                                              9
No. 75496-3-1/10

court's finding that Kassahun uses business a counts for personal expenses is

supported by substantial evidence.

       Second, Kassahun argues that substan !al evidence does not support the
                              1
modification court's finding that changes in the ar-for-hire industry were known at

the time of trial and evidence of those change could have been offered. At the

modification trial, Emanuel Jonjanel, a taxicab river, testified that he was aware

of ride-sharing services such as Uber and Lyft t least three years prior, and had

been solicited to drive for them. Jonjanel's test mony is sufficient to establish that

it was foreseeable in 2013, the year of the dissolution trial, that ride-sharing

services could have an impact on the taxicab in ustry. Thus, we conclude that the

trial court's finding that the Parties could have ffered evidence about how market

forces could impact the taxicab industry at the dissolution trial was supported by

substantial evidence.

       Third, Kassahun argues that the trial co It's finding in its order and findings

on remand that he did not require "'additional 1 ans to meet his child support and

maintenance obligations" was not supported y substantial evidence.12 The trial

court's order and findings on remand is not at issue in the present appea1.13 We

decline to address this argument. RAP 10.3(a (4).




12Br. of Appellant's at 19(quoting CP at 1326).
13 See Notice of Appeal (appealing final order a d findings on petition to modify child
support and maintenance order, entered on M y 26, 2016, and the order denying
respondent's motion for reconsideration, entered o June 7, 2016); see also In re Marriage
of Ashagari and Kassahun, noted at 199 Wn. App. 1034, 2017 WL 2634197.
                                           10
No. 75496-3-1/ 11

       Substantial Change in Circumstances

       Kassahun argues that the trial court ab sed its discretion when it did not

calculate his current gross , monthly income t determine whether a substantial

change in circumstances had occurred.             ecause the trial court properly

determined that Kassahun' did not demonstr te that a substantial change of

circumstances had occurred based on the evidence presented at trial, we

disagree.

       Generally,"the provisions of any decree especting maintenance or support

may be modified . . . only upon a sho ing of a substantial change in

circumstances." RCW 26.09.170(1)(b).

       In a petition to modify a maintenance a ard or child support obligation, the

moving party must show a substantial change I circumstances that the parties did

not contemplate at the time of the dissolution ecree. In re Marriage of Spreen,

107 Wn. App. 341, 346, 28 P.3d 769 (2001); I re Marria e of Scanlon, 109 Wn.

App. 167, 173, 34 P.3d 877(2001). "The phra e 'change in circumstances' refers

to the financial ability of the obligor spouse to ay vis-a-vis the necessities of the

other spouse." In re Marriage of Ochsner, 47 Wn. App. 520, 524, 736 P.2d 292

(1987).

       A party's support obligation must be ba ed on the current circumstances of

the parties. Scanlon, 109 Wn. App. at 178. But generally a party may not argue

that a material change of circumstances has ccurred if the underlying condition

or situation could have been brought to the aft ntion of the court at a prior hearing.

Heuchan v. Heuchan, 38 Wn.2d 207, 214-15, 28 P.2d 470 (1951).


                                         11
No. 75496-3-1 / 12

       "All income and resources of each parent's household shall be disclosed

and considered by the court when the court determines the child support obligation

of each parent." RCW 26.19.071(1). Offered income and deductions must be

verified by tax returns for the prior two years nd current paystubs, and "[o]ther

sufficient verification" is required to verify "inc me and deductions which do not

appear on tax returns or paystubs." RCW 26.19.071(2). A court may not

"essentially guess[]" a party's income if does nthi have either "statutorily mandated

verification. ..[or] adequate independent recorlds to determine it." In re Marriage

of Bucklin, 70 Wn. App. 837, 841, 855 P.2d 11 7(1993).

       Absent an abuse of discretion, this co rt will not reverse a trial court's

decision regarding whether a change in circ mstances justifies a modification.

Spreen, 107 Wn. App. at 346. A trial court abuses its discretion if its decision "is

manifestly unreasonable, based on untenable grounds, or granted for untenable

reasons." In re Marriage of Schumacher, 100 Wn. App. 208, 211, 997 P.2d 399

(2000).

       Here, Kassahun bore the burden at the modification trial of proving that a

substantial change in circumstances had occurred. He has not carried this burden.

       The modification court considered the tax returns Kassahun submitted,

which showed that he reported taxable incom of $4,479 in 2011 and $0 in 2013,

and an adjusted gross income of -$19,265         ith $0 of taxable income in 2014.

Kassahun declared that he had a net monthly i come of -$1,226.50 in August 2014

and of $2,888.18 in May 2016. Kassahun tes ified about his income, reliance on

loans, and the value of his taxicab licenses.


                                         12
No. 75496-3-1/ 13

       The modification court noted that mu h of Kassahun's testimony and

argument focused on his allegation that the "t !al court wrongly attributed to him
                          i
more income than he actually has."14 T e modification court found that

Kassahun's testimony and, evidence was not credible, and its findings closely

paralleled those of the dissolution court in its rder and findings on remand. In

light of its consideration of Kassahun's testi ony and documentary evidence

regarding the alleged substantial change in cir1umstances, the modification court

did not abuse its discretion when it determined that Kassahun had not carried his

burden of demonstrating a substantial change. 5

       Kassahun relies on In re Marria e of Bucklin to argue that the modification

court was required to calculate his present inc me in order to determine whether

a substantial change in circumstances had oc urred. 70 Wn. App. 837, 855 P.2d

1197 (1993). In Bucklin, Russell Bucklin ar ued that a substantial change in

circumstances had occurred because one of is real estate holdings had been

destroyed by a hurricane. 70 Wn. App. at 839. Bucklin's evidence of his current

income was based on his Own testimony and andwritten notes. Bucklin, 70 Wn.

App. at 839. The trial court explicitly found tha Bucklin had neither complied with

the statutory requirements for verifying his income nor presented adequate

independent records to determine it, but still gr nted his motion to modify his child



14CP at 456.
15 Kassahun also argues that his claimed loss of income from his taxicab licenses
constituted a substantial change in circumstances Br. of Appellant at 26-27. Because
we have concluded that the modification court's finding that the changes in the taxicab
industry were known at the time of trial, this aIlege3J substantial change in circumstances
was not unforeseen at the , time of the original award and is not a valid basis for
modification. See Spreen, 107 Wn. App. at 346; Scanlon, 109 Wn. App. at 173.
                                            13
No. 75496-3-1/ 14

support obligation. Bucklin, 70 Wn. App. at 39, 841. The Court of Appeals

reversed the trial court's order reducing Bucklin s child support obligation, holding

that the trial court abused its discretion by granting his motion to modify after

"essentially guessing" at his income. Bucklin, 70 Wn. App. at 841-42.

       Kassahun's reliance On Bucklin is mispl ced. Bucklin held that a trial court

abuses its discretion when it grants a party's motion to modify its child support

obligation without having any valid evidentiary asis for doing so. Bucklin did not

hold that a modification court had to provide n explicit calculation of a party's

current gross monthly income before denying a motion to modify. Moreover, here,

the modification court was not obligated to atte pt to calculate Kassahun's income

because he did not submit credible evidenc of his current income or of any

substantial change in circumstances.

       Challenges to Dissolution Court's Findin

       Kassahun argues that there has             een a substantial change in

circumstances because the record ofthe modifi ation trial does not support several

of the dissolution court's findings. Specificall , he argues that the record of the

modification trial does not show that he was a le to continue to save money, had

access to substantial amounts of cash, or that he had expenses of approximately

$8,700, as found by the dissolution court.

       The moving party in a modification proc eding bears the burden of proving

a substantial change in circumstances that        as unforeseen at the time of the

original award. Spreen, 107 Wn. App. at 346; canlon, 109 Wn. App. at 173.




                                         14
No. 75496-3-1/ 15

       Here, Kassahun is arguing that he no longer has the saving ability, access

to cash, or expenses that the dissolution court f und. Thus, he bore the burden of

proving a substantial chat-6e in circumstances in each of these categories at the

modification trial.   He has not offered doc irnentary evidence of any such

changes.16 His argument that the modificatioi trial record does not support the

dissolution court's findings is unpersuasive, an we conclude that he has failed to

carry his burden.

                             Severe Economic Hardship

       Kassahun argues that, even if no subst ntial change in circumstances has

occurred, his child support obligation works a evere economic hardship on him

and must be modified. Because the record does not show that Kassahun's child

support obligation works a severe economic hardship on him, we disagree.

       "An order of child support may be mod fied one year or more after it has

been entered without a showing of substantiall changed circumstances:(a) If the

order in practice works a severe economic ha dship on either party or the child."

RCW 26.09.170(6)(a).

       This court "reviews a modification of ch Id support for abuse of discretion."

Schumacher, 100 Wn. App. at 211.

       Here, Kassahun relies on his argumen s that the modification court could

not determine whether a substantial chang             in circumstances had occurred

because it did not explicitly calculate his gros monthly income and that he was


16Kassahun cites his current financial declaration, iled on May 10, 2016, to argue that the
modification court could not have reached a figur of $8,700. But the modification court
did not make a specific finding regarding Kassah n's expenses or income. Kassahun's
argument is insufficient to demonstrate a substanti I change in circumstances.
                                           15
No. 75496-3-1/ 16

reliant on loans from third parties to meet his ob igations. As discussed above, the

modification court did not abuse its discretion     hen it did not explicitly calculate

Kassahun's gross monthly 'income. Also, the modification court concluded that

Kassahun's testimony about his reliance on lo ns to meet his support obligations

was not credible, and the documentary eviden e he submitted did not support his

claims.17

       Moreover, Kassahun stopped paying ma ntenance in July 2015. He opened

a separate business account to shelter his p rsonal savings from garnishment,

both of which substantially reduced the burde on his finances. Therefore, the

modification court did not abuse its discretion vhen it determined that the record

does not show that Kassahun's child support obligation works a severe economic

hardship on him.

                       Inclusion of Asha ari's A tual Income

       Kassahun argues that a substantial cha ge in circumstances has occurred

because Ashagari now has actual income.18 :ecause Ashagari's current actual

income does not constitute'a substantial chan e in circumstances, we disagree.

       A trial court's failure to "include all sources of income not excluded by

statute" when calculating a parent's monthly gross income is reversible error.

Bucklin, 70 Wn. App. at 840. In a modification trial, the court may modify an award


17 See, e.g., Ex. 59(Bank of America checking account showing Kassahun's purchases
at Museum of Flight, Lithia BMW of Seattle, and Nordstrom's after he stopped paying
maintenance).
18 It is unclear if Kassahun is challenging the original dissolution court's decision to
calculate Ashagari's income based on her receipt of $5,000 per month in maintenance,
rather than her actual income. As discussed ab ve, the dissolution court's order and
findings on remand are not at issue in the curre t appeal. We disregard Kassahun's
challenge to the dissolution court's calculation of tile child support obligation.
                                             16
No. 75496-3-1/17

of maintenance or child support if the moving p rty proves that there has been an

unforeseen substantial change in circumstanc s. Spreen, 107 Wn. App. at 346;

Scanlon, 109 Wn. App. at 173-74.

      This court will not reverse a trial cou 's decision whether a change in

circumstances justifies a modification absent a abuse of discretion. Spreen, 107

Wn. App. at 346; Schumacher, 100 Wn. App. It 211.

      Here, the dissolution court awarded A hagari maintenance so that she

could obtain training that would allow her to ecure a job that paid more than

minimum wage, and included her maintenance ward as income when it calculated

its child support award. Kassahun stopped aying maintenance in July 2015.

Since then, Ashagari has 'held a work study position at Shoreline Community

College that pays $584.85 per month.

      Kassahun has not established that A hagari's new income stream is a

substantial change in circumstances that       erits modification of his support

obligation. Although there has been a change in that she has actual income, it is

by no means significant. Moreover, Ashagari ound a job because of Kassahun's

failure to meet his maintenance obligation. Th s, we reject Kassahun's argument

and conclude that the trial court did not err wh n it declined to modify Kassahun's

support obligation based on Ashagari's new a tual income.

             Volunta    Underem lo ment and 1m utation of Income

       Kassahun argues that the trial court erred by not imputing income to

Ashagari based on its finding that she was not voluntarily underemployed.




                                        17
No. 75496-3-1 / 18

       First, Kassahun argues that the modific tion court's findings that Ashagari

was unable to afford classes after he stopped paying maintenance and that his

cessation of maintenance payments has del yed Ashagari's progress toward

financial independence were not supported by ubstantial evidence. We disagree.

      "Substantial evidence is evidence su licient to persuade a fair-minded

person of the truth of the declared premise." FILRII, 103 Wn.2d at 246.

      As discussed above, Ashagari testified hat she had to leave school after

Kassahun stopped paying maintenance becau e she had to find a job to support

their children. Even with her part-time job      nd child support payments from

Kassahun, Ashagari's income was so low that he had to rely on public assistance

in the form offood stamps. Moreover, she stop ed receiving food stamps because

the State was able to collect $2,000 from Kassahun for his maintenance obligation,

not because she was able to find gainful employment. Thus, evidence at the

modification trial showed that Ashagari was forced to abandon her education

because of Kassahun's actions, and that her need for support reached the point

where she was reliant on food stamps. Theref re, both of the modification court's

findings of fact are supported by substantial evidence.

      Second, Kassahun argues that the trial court abused its discretion when it

determined that Ashagari is not voluntarily und remployed and declined to impute

income to her.

      "The court shall impute income to a p rent when the parent is voluntarily

unemployed or voluntarily underemployed. Th court shall determine whether the

parent is voluntarily underemployed or volun arily unemployed based upon that


                                        18
No. 75496-3-1/ 19

parent's work history, education, health, and ge, or any other relevant factors."

RCW 26.19.071(6). "A parent may not avoid his or her child support obligation by

remaining voluntarily unemployed or underem loyed." In re Marriage of Goodell,

130 Wn. App. 381, 389, 122 P.3d 929(2005)( iting RCW 26.19.071(6)).

       A court's decision on whether to         mpute income to a voluntarily

underemployed spouse is reviewed for abus of discretion. In re Marriage of

Wright, 78 Wn. App. 230, 234, 896 P.2d 735(1995).

       As discussed above, after Kassahun stopped paying his maintenance

obligation, Ashagari had to stop attending cla ses to find a job and at one point

was reliant on public assistance. Taken toge her, this evidence amply supports

the   modification   court's ' conclusion that Ashagari was not voluntarily

underemployed. Therefore, we conclude that t e modification court did not abuse

its discretion by finding that Ashagari is not vol ntarily underemployed.

       Kassahun, relying primarily on Ashagar's testimony, argues that Ashagari

was voluntarily underemployed because she ould have obtained financial aid or

looked for more employment, is proficient in English, had other relevant work

history, and could have applied herself morel her English as a second language

classes. Kassahun's arguments are challeng s to the trial court's weighing of the

evidence that this court will not review on ap eal. See Wilson, 165 Wn. App. at

340. We reject this line of argument.




                                        19
No. 75496-3-1/ 20

                                Modification Court Bias

          Kassahun argues that the modification c urt's decision is improperly based

on bias or consideration of, his marital miscon uct. Because Kassahun has not

cited evidence demonstrating that the modificat on court was biased, we disagree.

          There is a presumption that a trial jud e properly discharged his or her

official duties without bias or prejudice. Jone v. Halvorson-Berq, 69 Wn. App.

117, 127, 847 P.2d 945 (1993). The party see ing to overcome that presumption

must provide specific facts establishing bias.    ee State v. Post, 118 Wn.2d 596,

619,619 n.9, 826 P.2d 172, as amended by 87 P.2d 599 (1992).

          Kassahun argues that the modificatior court improperly considered the

dissolution court's determination that he had e gaged in domestic violence. This

would have been improper because a court ma not consider a party's misconduct

when constructing a maintenance award. RC           26.09.090(1); In re Marriage of

Muhammad, 153 Wn.2d 795, 108 P.3d 779 (2005). But Kassahun does not cite

any statement of the modification court that ind cated that it improperly considered

his marital fault. Accordingly, we reject this arc ument.

          Kassahun challenges various decisions of the modification court, asserting

that "[n]o impartial trier of fact could reach the e same conclusions based on the

evidence presented in this proceeding."19 Firs , he repeats his argument that the

modification court abused its discretion by n t explicitly calculating his current

gross monthly income. This argument is unp rsuasive for the reasons described

above.



19   Br. of Appellant at 34.
                                          20
No. 75496-3-1/21

       Second, he argues that the modifica ion court exhibited bias when it

criticized him for placing "a higher priority on m intaining his comfortable life style

[sic] than fulfilling his obligations" and not mod rating his discretionary spending.

Kassahun has not cited legal authority in s pport of his contention that the

evaluation of the evidence presented at trial d monstrates bias, and relies on his

self-serving testimony that his spending decis ons were necessary. Further, the

facts cited by Kassahun support the modific tion court's conclusions and are

insufficient to overcome the presumption that t e court did not act with bias toward

him. We reject his challenges.

       Third, Kassahun argues that the modifi ation court exhibited bias when it

examined his expenditures and the sources o his funds while it did not question

Ashagari's undocumented withdrawals of c sh from her child support and

maintenance payments. He does not cite leg -I authority to support his argument

that this demonstrates bias or that Ashagari w s required to provide an accounting

of her spending of support payments as the re ipient. Further, the present appeal

concerns a modification trial initiated by Kass hun. His own financial status is at

issue in this proceeding, not Ashagari's use of child support and maintenance

funds. We reject his argument.

       Fourth, Kassahun argues that the modification court exhibited bias when it

determined that his testimony and the testimoriiy of his Certified Public Accountant

(CPA)regarding his use of cash from the busirtess without documentation was not

credible. In support of his argument, he cite his own testimony and that of his

CPA, and the tax returns that they prepar d. Kassahun's challenges are in


                                          21
No. 75496-3-1 /22

essence a challenge to the modification court's factual and credibility

determinations based on his testimony and th t of his CPA. This court does not
                          1
reweigh the evidence or judge witness credibilit on appeal. Wilson, 165 Wn.App.
                           ,
at 340. We reject his argument.

        In his reply brief, Kassahun argues that the modification court's judge was

inherently biased in favor of women, citing the j dge's statement that she had been

a "lifelong advocate for women [and] chili ren" in her online biographical

information.20 He also argues that Ashagari's counsel improperly alerted the court

that their client was victim of domestic viLlence because they introduced

themselves as attorneys for the Northwest Ju tice Project (NJP). Both of these

arguments are raised for the first time in Kassauhn's reply brief, and we decline to

address them. RAP 10.3(c).

        Kassahun also requested that on reman this court direct the superior court

to assign this case to a new judge. Because n remand is necessary in this case,

we do not reach this issue.;

                           Attorne Fees on As seal

        Ashagari requests that this court orde Kassahun to pay her reasonable

attorney fees and costs. After considering th relative financial positions of the

parties, we conclude that Ashagari is entitled o recover her reasonable attorney

fees.



20 Kassahun analogizes the judge's statement t a situation of "representing a black
person before a white judge" who stated that he or she was a "lifelong advocate for White
Citizens' Councils and traditional Southern value ." Reply Br. of Appellant at 21; see
http://www.kingcounty.gov/—/media/courts/superio -court/docs/judges/ramseyer-
bio.ashx?la=en.
                                          22
No. 75496-3-1/ 23

       In a dissolution proceeding, the cou           may order a party to pay the

reasonable attorney fees and costs of the other party after considering the financial

resources of both parties. RCW 26.09.140. Upon an appeal, the appellate court

has the discretion to order a party to pay the ot er party's reasonable attorney fees

and appellate costs. RCW 26.09.140.

       Reasonable attorney fees are not necessarily based on the amount of fees

actually incurred by a litigant. See Scott Fetir Co. v. Weeks, 122 Wn.2d 141,

148-49, 859 P.2d 1210 (1993). Usually, Wa hington courts will use a lodestar,

which is calculated by multiplying the numbe of hours reasonably expended to

obtain the result by a reasonable hourly rate. B wers v. TransAmerica, 100 Wn.2d

581, 594, 675 P.2d 193 (1983). Whether a lit gant is represented by a nonprofit

legal aid program or a private practitioner is i relevant to the issue of whether a

successful litigant is entitled to reasonable a orney fees. See Tofte v. Dep't of

Soc. & Health Servs., 85 Wn.2d 161, 165, 531 P.2d 808(1975).

       Prior to the present ,appeal, Ashagari a d Kassahun have gone through a

trial, one full appeal, a trial on remand, a modif cation trial, and a second appeal of

the dissolution court's order and findings on r mand. Kassahun has initiated the

majority of these proceedings. On remand, th dissolution court concluded that its

calculation that Kassahun has a gross               onthly income of $12,750 is a

conservative estimate.21 In this appeal, he has not demonstrated that a substantial

change in circumstances has occurred that arrants modification. By contrast,



21This court has affirmed the dissolution court's ca culation in Kassahun's other appeal to
this court. See In re Marria e of Asha ari and K ssahun, noted at 199 Wn. App. 1034,
2017 WL 2634197.
                                           23
No. 75496-3-1/ 24

Ashagari has not received maintenance payments from Kassahun since July 2015,
                           1
has a current gross monthly income of $584.85, and at one point was reliant on

food stamps.

       Ashagari has been represented by NJP nd received legal services free of

charge. NJP is publicly funded and bears the c sts of representing its clients. NJP

is permitted by the Legal Services Corporation and the Office of Civil Legal Aid to

pursue attorney fees in cases where they are uthorized by statute or case law.

Ashagari has agreed to assign any attorney fe s recovered to NJP.

       In light of the relative financial resourc s of the parties, we exercise our

discretion to award reasonable attorney fees nd costs to Ashagari under RCW

26.09.140.

       Kassahun argues that this court is b und by the modification court's

conclusion that he should not be required to ay attorney fees so that he could

focus on fulfilling his support obligations. He ha not cited legal authority in support

of his assertion that this court is bound by the trial court's decision to not award

fees when deciding whether to award attorney f es and costs on appeal. We reject

his argument.

       Affirmed.


                                                        1      Ut<
WE CONCUR:




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