                                                                                                             FILED
                                                                                                  G301. 11 (  UE APPEIk S
                                                                                                           DIV1SI0 N" " i
                                                                                                                   '

                                                                                              29 13 DEC 31          AN 9: 16
      IN THE COURT OF APPEALS OF THE STATE O.                                                          W,
                                                                                                                51Q         y


                                                            DIVISION II                           BY
                                                                                                                EYUTY
In re the Marriage of:                                                                     No. 43543 -8 -II


PATRICIA ALMOND,


                             Respondent /Cross Appellant,


           V.                                                                       UNPUBLISHED OPINION


ERIC ALMOND,


                             A


           PENOYAR, J. —            Eric and Patricia Almond challenge the trial court'.s 2012 order granting

Patricial

             a    judgment       of $59, 757. 20       in   unpaid child    support and maintenance.              Included in that


judgment is a 2008 judgment from which the trial court subtracted unincurred daycare and

preschool        expenses and related              interest.   Eric argues that the trial court was required to reduce


the 2008 judgment further to include only the interest on unpaid support dating from 2007 and

that the prospective interest on the judgment must be similarly recalculated. Eric also argues that

the trial court did not give him proper credit for the Thrift Savings Plan ( TSP) funds he paid, and

he requests an award of attorney fees in his reply brief based on Patricia' s intransigence.

           Patricia         cross   appeals,       arguing that the trial         court   erred   by (     1)   reducing the 2008

judgment         by   the   amount of unincurred expenses, (              2) failing to award her interest on the unpaid

maintenance, and ( 3) denying her attorney fees based on Eric' s intransigence. Patricia also




 1
     We   refer   to the    parties   by   their   first   names   for clarity.
43543 -8 -II



requests   fees   on appeal   based    on either   her financial    need or   Eric'   s   intransigence. We hold that


the trial court properly recalculated the 2008 judgment and the interest due on that judgment as

well as    the   unpaid maintenance.       We affirm the trial court' s decision to deny Patricia attorney

fees, deny her request for fees on appeal, and decline to consider Eric' s request for attorney fees

because it was made for the first time in his reply brief.

                                                         FACTS


          When the parties entered a decree ending their eight - ear marriage on April 30, 2007, the
                                                               y

trial   court    entered   judgments    against    Eric totaling    more   than $ 17, 000.        In calculating those

judgments, the trial       court gave    Eric   credit   for   a portion of   his TSP      account.   The 2007 decree


required    Eric to pay      maintenance    of $ 1,   000 for two     years    and    child   support   of $   967. 66 per


month, plus daycare and preschool expenses of $429. 55 per month, for a monthly child support

obligation of $1, 397.21.


          A few months later, Eric filed a pro se petition for modification of child support, seeking

reimbursement for his payment to Patricia for daycare expenses that she had not actually

incurred and additional relief. Patricia responded with a motion for contempt, arguing that Eric

had failed to pay the       court- ordered child support and maintenance.                 On January 8, 2008, the trial

court dismissed Eric' s petition due to his failure to show a substantial change in circumstances

and awarded Patricia attorney fees. The trial court continued the contempt hearing to January 30

 so that Eric could obtain counsel. When he failed to appear on January 30, the trial court issued

 a bench warrant for his arrest and reserved the issue of contempt for his appearance.




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43543 -8 -II



        At the January 30 hearing, the court entered additional judgments for unpaid child

support and maintenance              that totaled $ 14, 213. 37.               The new judgments were consolidated with


those from the decree          of    dissolution for          a principal    balance   owed of $31,   911. 50.   Interest on the


judgments      was      calculated     as    of   December 31,           2007, in the    sum   of $ 1,   825. 52, and the court


awarded   Patricia       additional     attorney fees          of $1,   000.    The court also awarded her a judgment for


 4, 038. 98, which represented the unpaid portion of Eric' s TSP funds.

         In 2010, Eric filed           a motion         for    adjustment of child      support.   In 2011, Patricia moved


again   to have Eric held in            contempt.         She also sought consolidation of the judgments against


Eric, an update of the interest due on those judgments, and attorney fees.

         The court declined to hold Eric in contempt and ordered the parties to complete

mediation. After mediation failed, Eric requested attorney fees based on Patricia' s intransigence

as well as a     judgment for         unincurred expenses               from April 2007 to the     present.    The court issued


an order stating that the trial issues would include Eric' s motion to adjust child support, his right
to reimbursement of daycare and preschool expenses, and Patricia' s issues regarding back child

support/maintenance, costs and attorney fees, update of the interest calculation of the past

judgments, and consolidation of all judgments.


         Following a two -day trial in March 2012, the court issued an oral ruling acknowledging

that the 2008 judgment               was    the law      of    the   case.     To make that judgment a " just resolution,"

however,       the    court reduced         it   by $ 3, 463. 40 to account for unincurred daycare and preschool

 expenses of $429. 55          a month           from   May     through December 2007.          Clerk' s Papers ( CP) at 122.


 The court then added the prior awards for attorney fees and TSP funds, finding that Eric had not

 proven that the TSP award in the 2008 judgment was erroneous, and recalculated the 2008

judgment       at $   33, 483. 08.    The    court ordered        that the $    1, 825. 52 in interest awarded in 2008 should

                                                                         3
43543 -8 -II



be adjusted to reflect the removal of the unincurred expenses, but that the interest owing on the

recalculated judgment since 2008 should then be added to it.


        The trial court determined that Eric had not paid maintenance from January 2008 to April

2009, for   a   deficit     of $ 16,   000.    The court also observed that child support for the 51 months


between January 2008 and the present totaled $ 71, 257.71, from which $21, 907.05 in unincurred

expenses    should    be     subtracted.      Eric had    paid more      than $    58, 000 in child support since 2008,


which amounted         to   an overpayment of $8,           249. 55.    The trial court applied that overpayment to


the maintenance owed and declined to award interest for the unpaid maintenance because it was

being collected along with the child support, though the court added that interest on the

remaining balance would be collected prospectively.

        The trial court denied each party' s request for fees and costs, observing that Patricia had

already been      awarded $       6, 650 in fees and costs and that Eric was facing another substantial

judgment. The       court added         that Patricia    has limited income. The court directed the parties to do


the   remaining       calculations       and    return    with   proposed         orders,      adding     that "     if there' s any

disagreement,     you can      bring    it back to   me."    CP at 125.


         At a subsequent hearing, Patricia submitted a proposed " Order and Judgment on Motion

for Adjustment of Child Support, Reimbursement of Unincurred Day Care Expenses /Judgment

                                                Update                    30, 2008 Order."          CP    at   34.    Patricia noted
for Maintenance /Clarification            and             of   January

that a potential issue         might     be the   calculation of       interest   on   the     original   2008 judgment.            She


 explained that she had not included in her calculation the amount of interest on the unpaid child

 support   covered     by    the 2008 judgment.             Her proposed order reduced the interest in the 2008

judgment to $ 1, 775. 84, listed the total               principal     judgment        as $   33, 483. 08, and calculated the


                            that judgment from                    1, 2008,   through          March 31, 2012,         at $   17, 076. 37.
 accrued   interest   on                              January
43543 -8 - II



Patricia reached the accrued interest figure by calculating the amount of annual interest due and

multiplying that     amount    by   the   number of years since    the judgment.      Patricia' s order added that


Eric also owed maintenance of over $ 7, 000.


            Eric argued that Patricia had improperly calculated the interest due on the unpaid support

from 2007 to the present and that the total judgment against him totaled approximately $ 29,000,

which       was   about $   35, 000 less than Patricia had        calculated.      Eric reached his figures by

calculating the interest due on a monthly rather than annual basis, and he argued that Patricia' s

approach did not account for the payments he had actually made. Patricia responded that she had

calculated the interest based on the court' s findings regarding the judgments due. After agreeing

to take another look at the interest figures, the trial court found that Patricia' s proposed order

reflected its oral ruling, but the court reduced the amount of maintenance owed to give Eric
credit for mediation costs.


            Eric appealed, and Patricia filed a cross appeal.

                                                     ANALYSIS


I.          CALCULATION OF 2012 JUDGMENT


            Eric argues that the trial court did not go far enough in revising the 2008 judgment that

was included in the 2012 judgment. He challenges the validity of the 2008 judgment and asserts

that   it   incorrectly included    interest   on child support   he had   paid.   Eric also argues that the 2008


judgment for the       unpaid   TSP funds is incorrect.        Patricia argues that the trial court should not


have revised the 2008 judgment at all and that the court also erred in failing to award her interest

 on the unpaid maintenance from 2008 and 2009.




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43543 -8 -II




          We begin our review by observing that trial court decisions in dissolution proceedings

will seldom be changed on appeal. In re Marriage ofBooth, 114 Wn.2d 772, 776, 791 P. 2d 519

 1990).     Such decisions will be upheld unless they are manifestly unreasonable or based on

untenable grounds. In re Marriage ofLandry, 103 Wn.2d 807, 809, 699 P.2d 214 ( 1985).

          The trial court reduced the 2008 judgment by $3, 463. 40 to account for Eric' s payment of

unincurred     daycare    and preschool     expenses   in 2007.    The provisions of any decree regarding

child support generally may be modified only as to installments accruing subsequent to a petition

for   modification or motion      for   adjustment.   RCW 26. 09. 170( 1);   See In re Marriage of Glass, 67

Wn.    App.    378,    388,   835 P. 2d 1054 ( 1992) ( neither child support nor maintenance can be


modified    retroactively).     Money paid for past -due support serves to reimburse the custodian for

monies actually expended, and accumulated child support judgments generally may not be

retroactively   modified.       Hartman    v.   Smith, 100 Wn.2d 766, 768, 627 P. 2d 176 ( 1984); In re


Marriage of Capetillo, 85 Wn. App. 311, 316, 932 P. 2d 691 ( 1997).

          Patricia argues that the finality of the 2008 judgment is reinforced by the principle of res

judicata, which precludes a party from bringing a claim that has been litigated or could have

been litigated in a prior action. Marino Prop. Co. v. Port Comm' rs ofPort ofSeattle, 97 Wn.2d

307, 312, 644 P. 2d 1181 ( 1982) (          quoting Walsh v. Wolff, 32 Wn.2d 285, 287, 201 P.2d 215

 1949)).    She points out that Eric did not appear at the hearing that resulted in the 2008 judgment

and did not appeal that judgment or seek its clarification or modification under CR 59 or CR 60.

          Eric responds that both equity and statutory law entitle him to the relief the trial court

granted.    In special circumstances, Washington courts will apply equitable principles to mitigate

the harshness of claims for retrospective support if mitigation will not work an injustice to the

 custodian or    the   child.   Hartman, 100 Wn.2d       at   768 -69; Capetillo, 85 Wn.   App.   at   316 -17.   In
43543 -8 -II




addition, RCW 26. 19. 080( 3) mandates that unincurred daycare expenses must be reimbursed if

the overpayment amounts to at least 20 percent of the obligor' s annual day care expenses. In re

                                                             390,    393 -94,    23     P. 3d   1106 ( 2001).    Overpayment
Marriage        of Barber,          106     Wn.    App.

reimbursement           claims      properly brought           and   proved     under    RCW 26. 19. 080( 3)    are mandatory


unless the claim itself is barred by equity. Barber, 106 Wn. App. at 395 -96.

            The trial       court   did   not cite   RCW 26. 19. 080( 3)          in reducing the 2008 judgment by the

amount of unincurred expenses, but it stated that recalculation was required to make the 2008

judgment "      a    just   resolution."      CP   at   122.    Because this overpayment did not reimburse Patricia


for sums actually paid, which is the point of payments for past -due support, we see no error in

the trial court' s corresponding reduction of the 2008 judgment. Had the trial court indicated that

it   was    acting   under    RCW 26. 19. 080( 3),           the record would be clearer but in any case the result is

the same and the result is appropriate.


            Eric' s assertion that the 2008 judgment must be completely recalculated, however, goes

too   far   and comes        too late.     Eric waived the right to challenge the judgment by failing to appear

at   the 2008        hearing     and      by failing    to   appeal   the resulting judgment.           While he claims that


judgment failed to account for payments he made before the judgment was entered, this claim

should have been presented to the court at the January 2008 hearing. Consequently, we reject

Eric' s related argument that the trial court erred by calculating the interest due on the 2008 .

judgment.            The trial court appropriately calculated the amount of the judgment and then

appropriately calculated the interest due at the rate of 12 percent per year. See RCW 4. 56. 110( 4)
 judgments bear interest from date of entry at maximum rate permitted under RCW 19. 52.020);

RCW 19. 52. 020( 1) (           12 percent per annum is maximum rate).




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43543 -8 - II



          Eric also contends that the judgment for TSP funds included in the 2008 judgment was -

erroneous.      We    reject   this   contention        for   several reasons.      First, we note that the 2008 judgment


is final in this     respect.    Second, we observe that the trial court found that Eric did not prove at


trial that this      amount     was        incorrect.      On appeal, Eric' s brief refers to his trial testimony to

support   his   claim     of error,        but that testimony is         not part   of   the     appellate record.    The record


before us does not show that the trial court' s decision rejecting. Eric' s challenge to the 2008 TSP

judgment was manifestly unreasonable.

          Finally, Patricia contends that the trial court erred by declining to award her interest on

the   unpaid maintenance         from 2008           and   2009 up to the date        of   the   court' s   decision in 2012.   As


the trial court recognized, interest was being collected on child support from 2008 even though

Eric had overpaid that support, so the court declined to award Patricia interest on the unpaid

maintenance. We do not see this decision as manifestly unreasonable.

II.       ATTORNEY FEES


          Patricia argues that the trial. court erred by denying her attorney fees based on Eric' s

intransigence, as demonstrated by his failure to abide by previous court- imposed judgments and

payments.




          We review a trial court' s decision regarding attorney fees to determine whether it was

manifestly      unreasonable          or   clearly   untenable.         In re Marriage of Crosetto, 82 Wn. App. 545,

563, 918 P. 2d 954 ( 1996).                 When determining whether to award attorney fees, the trial court

generally must balance the needs of the spouse requesting them against the ability of the other

spouse    to pay.     Crosetto, 82 Wn.           App.      at   563.    The court also may consider the extent to which

 one spouse' s intransigence caused the spouse seeking a fee award to require additional legal

                          Marriage of Morrow, 53                       Wn.          579,   590, 770 P. 2d 197 ( 1989).           If
 services.      In   re                                                      App.
43543 -8 -II




intransigence is established, the financial resources of the spouse seeking fees are irrelevant.

Morrow, 53 Wn. App. at 590.

            Before trial, Patricia sought an award of attorney fees based on her contempt allegations

against         Eric.     The trial court noted that Patricia had already received attorney fees in prior

proceedings based on Eric' s failure to adhere to court orders regarding his child support and

maintenance obligations, and it declined to award Patricia additional fees. It appears that Patricia

bears some responsibility for the failed mediation, and we do not view the trial court' s refusal to

award her fees for Eric' s intransigence as manifestly unreasonable.

                Patricia also requests attorney fees on appeal based on either RCW 26. 09. 140 or Eric' s

intransigence. RCW 26. 09. 140 provides that


                t]he court from time to time after considering the financial resources of both
                parties may order a party to pay a reasonable amount for the cost to the other
                party of maintaining or defending any proceeding under this [ marital dissolution]
                chapter....




Fees under RCW 26.09. 140 are awarded, however, only when the requesting party files an

affidavit         of    financial   need     no   later than 10 days before       a   case   is   considered.   RAP 18. 1( c).


Because Patricia has not filed any such affidavit, we decline to award her attorney fees under

RCW 26. 09. 140. We also decline to award fees based on Eric' s intransigence, as Patricia' s cross

appeal is the result of the trial court' s calculations rather than any misconduct on Eric' s part.

                Eric    also    requests   fees   on   appeal   because   of   Patricia' s intransigence.       We deny this

request         because it is       raised   for the first time in his reply brief. See Hawkins v. Diel, 166 Wn.


App.       1,    13    n. 2,   269 P. 3d 1049 ( 2011) (    fee request must be raised in opening brief under RAP

 18. 1).




                                                                   GS
43543 -8 - II



         Affirmed.


         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.




                                                     YPenoya.,.,             l




We concur:




         Hunt, J.




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