 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of:
                                                  No. 78615-6-1
JONATHAN ARRAS,
                                                  DIVISION ONE
                    Respondent,
                                                  UNPUBLISHED OPINION
                    and

LAURA ARRAS (f.k.a. MCCABE),                      FILED: July 15, 2019

                   Appellant.


       MANN, A.C.J. — Based on a finding of disability by the Social Security
Administration, the trial court granted Laura McCabe's motion to modify her child

support obligation prospectively, but denied her request to extinguish child

support owed under prior child support orders. Because the superior court did

not err in declining to retroactively modify prior orders, we affirm.



       Jonathan Arras and Laura McCabe dissolved their marriage in 2010. The

parenting plan provided for the parties' two children to reside primarily with Arras.

The parties agreed to a downward deviation of the amount of support owed by
No. 78615-6-1/2

McCabe because of the amount of time the children resided with her. The court

ordered McCabe to pay child support of $84.30 per month to Arras.

        In October 2013, the court modified the parenting plan and reduced

McCabe's residential time with the children to four nights per month.' At the

same time, the court declined to impose RCW 26.09.191 restrictions on McCabe,

finding that McCabe's mental health issues were "adequately treated and

managed."

       Arras then sought to modify the child support order, primarily to eliminate

the downward deviation of McCabe's child support obligation. McCabe opposed

modification and claimed she had been unable to work since January 2013 due

to "severe and debilitating" depression "combined with a lack of employment

opportunities." In January 2014, the trial court rejected McCabe's claim of

disability and imputed income of $2,693 to her, finding that McCabe's income

was "unknown" and she appeared to be "voluntarily under employed." The court

ordered McCabe to pay monthly child support of $579.74. The court also

imposed sanctions of $1,000 against McCabe for the "failure to comply with court

rules" and forcing Arras to respond to improperly filed materials. McCabe did not

appeal the order or pay the sanctions.

        In October 2016, a superior court commissioner denied McCabe's petition

to modify the 2014 child support order. The court concluded there was no

"substantial change in circumstances since the 2014 child support order was




       1 This court affirmed the trial court's decision to modify the parenting plan. See In re
Marriage of Arras, noted at 183 Wn. App. 1009 (2014).


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No. 78615-6-1/3

entered."2 The court also rejected McCabe's request to order Arras to pay

support to her, to eliminate imputed income, and to strike her back child support

debt. The court ordered McCabe to pay $3,000 of Arras's attorney fees and

costs as a sanction:

       Because she attempted to re-litigate a 4 year old claim of disability
       that has already been rejected twice before by the Court, she
       claimed a disability that was contradicted by her prior statements
       under oath, and she failed to comply with the financial disclosure
       rules. The proceedings appear to have been motivated by
       Respondent's efforts to get out from under [the Division of Child
       Support's] collection efforts.

Again, McCabe did not appeal the order or pay the sanction.

        In March 2017, The Social Security Administration, which had previously

rejected McCabe's claim for disability benefits "several" times, determined that

McCabe had a qualifying disability, major depressive disorder, and was entitled

to benefits as of February 2013.3 In May 2017, the agency began to pay monthly

benefits of $1,044 to McCabe. The agency further determined that it owed

McCabe more than $50,000 in back disability benefits. Because McCabe's

treatment providers expected her mental health condition to improve with

treatment, the agency scheduled a review of the disability determination in

September 2018.

        Based on this decision, on May 31, 2017, McCabe filed another petition to

modify child support. McCabe informed the court that she had earned no income



        2 Nevertheless, since two years had lapsed since the prior child support order and the
children's age brackets had changed, the court reduced McCabe's obligation slightly from
$579.74 to $573.80.
        3 The agency found that McCabe became disabled under its rules in August 2012, but did
not become eligible for benefits until February 2013, twelve months before she filed a claim for
benefits.


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No. 78615-6-1/4

for four and a half years and had survived since 2012 on loans from family and

"donations for items from charitable organizations." McCabe asked the court to

find her unable to contribute financial support to the children. McCabe also

requested that the court order Arras to pay support to her and to vacate her past-

due child support obligation and prior sanctions.

        Arras objected. He disputed McCabe's claim that she had been disabled

and unable to work since 2012. He pointed to McCabe's prior statements in the

proceedings involving modification of the parenting plan and other evidence that

she was functioning and, to some degree, working after 2012.

        In October 2017, the Social Security Administration transferred

$17,622.86, a portion of McCabe's disability back benefits, to the Division of

Child Support(DCS)to satisfy McCabe's back child support obligation. McCabe

resisted release of the funds to Arras and the DCS granted her request to

temporarily suspend the release until the resolution of her modification petition.

However, in December 2017, after the modification action was continued for a

second time, the DCS Conference Board issued a decision stating that it would

release the funds unless she procured a court order staying disbursement.4 On

January 8, 2018, the superior court granted a temporary stay until the resolution

of McCabe's claim for relief from back child support.

        On February 16, 2018, a superior court commissioner held a hearing on

McCabe's motion to modify. The commissioner granted the motion, finding that

        4 A conference board is an "informal review of case actions and of the circumstances of
the parties and children related to a child support case." WAC 388-14A-6400(1). A conference
board is "not a formal hearing under the Administrative Procedure Act, chapter 34.05 ROW," and
"does not replace any formal hearing right created by chapters 388-14A WAC, or by chapters
26.23, 74.20 or 74.20A ROW." WAC 388-14A-6400(4),(5).


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No. 78615-6-1/5

the Social Security Administration's finding of disability was a substantial change

in circumstances. The commissioner also found that McCabe had been "unable

to work since August 2012" and that she was not voluntarily unemployed. The

commissioner recalculated McCabe's support obligation based on her monthly

disability benefit amount and reduced her monthly child support payment to

$110.31, effective January 1, 2018.5 However, the commissioner denied

McCabe's request for equitable relief, declining to retroactively modify prior

orders to relieve her of the accrued child support obligation and sanctions and

refused to order Arras to pay child support to McCabe. The commissioner lifted

the temporary stay, allowing the DCS to release funds to Arras to satisfy

McCabe's support obligation and declined to award attorney fees to either party.

        McCabe moved to revise the commissioner's order. The superior court

agreed with the commissioner's decision to modify the existing child support

order based on the 2017 finding of disability. The court disagreed, however, with

the commissioner's finding that McCabe had been unable to work since August

2012. The court found that, while McCabe clearly had a history of depression,

"there is also a great deal of documentation in the file that she has been able to

work at least part time. It is inconsistent with somebody who says now that she

can't or said over time she could barely get out of bed in the morning that she's

advertising artwork online, serving on arts boards, which takes time."

       The court determined there was no basis for equitable relief from either

prior support orders or sanctions. Specifically, the court determined there were


        5 The   court declined to modify the obligation retroactively to May 2017, the date McCabe
filed her petition to modify support.


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No. 78615-6-1/6

no "traditional grounds for equitable relief here," and that it had "no authority" to

vacate the previously awarded sanctions. The court also found that McCabe

"had not provided all of her financial documentation," and her claim that she had

no bank account between 2012 and 2017 was not credible. The court found it

"astonishing" that McCabe asked the court below to make her the obligee and

affirmed the commissioner's ruling denying that request.

                                                  II.

       When a party moves for revision of a commissioner's ruling, the superior

court reviews the decision de novo, based on the evidence and issues presented

to the commissioner. See RCW 26.12.215; RCW 2.24.050; In re Marriage of

Moody, 137 Wn.2d 979, 992-93, 976 P.2d 1240 (1999). On appeal from a

superior court order denying revision, we review the superior court's decision, not

the commissioner's decision. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132

(2004). Our task on review is to determine whether the findings are supported by

substantial evidence and whether the trial court has made an error of law. In re

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

of Stern, 68 Wn. App. 922, 929, 846 P.2d 1387 (1993).

       It is undisputed that following the commissioner's February 2018 ruling,

the DCS released over $17,000 in accrued benefits to Arras on McCabe's

behalf.6 RCW 26.18.190 addresses the effect of benefits paid by the Social

Security Administration in these circumstances. When a parent becomes eligible

for social security due to a disability, RCW 26.18.190(2) mandates that the court

        6 On this basis, in August 2018, a commissioner of this court denied as moot McCabe's
motion to stay the enforcement of the superior court commissioner's ruling allowing disbursement
of funds held by the DCS.


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No. 78615-6-1/7

offset any disability payments on a parent's behalf against the child support

obligation of that parent. RCW 26.18.190(2) states:

        When the social security administration pays social security
        disability dependency benefits, retirement benefits, or survivors
        insurance benefits on behalf of or on account of the child or
        children of a person with disabilities, a retired person, or a
        deceased person, the amount of benefits paid for the child or
        children shall be treated for all purposes as if the person with
        disabilities, the retired person, or the deceased person paid the
        benefits toward the satisfaction of that person's child support
        obligation for that period for which benefits are paid.

See In re Parentage of Fairbanks, 142 Wn. App. 950, 956, 176 P.3d 611(2008);

In re Marriage of Hughes,69 Wn. App. 778, 782, 850 P.2d 555 (1993).

        The statute also expressly provides that, when the Social Security

Administration has paid benefits to satisfy a child support obligation, the obligor

parent has no right to be reimbursed for those amounts:

        Under no circumstances shall the person who has the obligation to
        make the transfer payment have a right to reimbursement of any
        compensation paid under subsection (1), (2), or (3) of this section.

RCW 26.18.190(4). Accordingly, the statute prohibits the "restitution" requested

by McCabe in this case.

        Disregarding these provisions, McCabe argues that the court erred in

denying her motion for revision because equitable principles justified retroactively

modifying her accrued child support obligation.7

        "Child support payments become vested judgments as installments

become due." Capetillo, 85 Wn. App. at 316; Hartman v. Smith, 100 Wn.2d 766,

768, 674 P.2d 176 (1984); Schafer v. Schafer, 95 Wn.2d 78, 80, 621 P.2d 721

         7 McCabe does not address ROW 26.18.190(4), but appears to concede in her reply brief
that the DCS may place a lien on disability benefits to satisfy a child support obligation unless that
obligation is retroactively modified or extinguished.


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    No. 78615-6-1/8
(
    (1980). RCW 26.09.170(1) prohibits retroactive modification of accumulated

    child support payments. In re Marriage of Shoemaker, 128 Wn.2d 116, 121, 904

    P.2d 1150(1995). RCW 26.09.170(1)(a) provides, in relevant part:

           the provisions of any decree respecting maintenance or support
           may be modified. ..[o]nly as to installments accruing subsequent
           to the petition for modification or motion for adjustment.

           Thus, an order modifying a child support obligation applies only to

    installments accruing subsequent to the petition for modification. ROW

    26.09.170(1); Chase v. Chase, 74 Wn.2d 253, 259, 444 P.2d 145 (1968),

    overruled on other grounds by Aetna Life Ins. Co. v. Wadsworth, 102 Wn.2d 652,

    659, 689 P.2d 46 (1984). Retrospective modification upsets vested judgments

    and "opens the door to uncertainties, costs and hardship." In re Marriage of

    Schumacher, 100 Wn. App. 208, 212, 997 P.2d 399 (2000); Shoemaker, 128

    Wn.2d at 121.

           In rare circumstances, however, Washington courts have allowed

    traditional equitable principles "to mitigate the harshness of particular claims for

    retrospective support if it will not work an injustice to the custodian or the child."

    Capetillo, 85 Wn. App. at 316-17; Shoemaker, 128 Wn.2d at 122-23; In re

    Marriage of Hunter, 52 Wn. App. 265, 270, 758 P.2d 1019 (1988). In order to

    exercise its limited discretion to relieve an obligor from past due support, the

    court must identify an equitable principle that justifies departure from the general

    rule that support obligations cannot be modified retrospectively. Hunter, 52 Wn.

    App. at 269. Our courts have upheld retroactive modifications of child support

    where the equitable principle is premised on a traditional equitable defense, such
No. 78615-6-1/9

as equitable estoppel or laches. Shoemaker, 128 Wn.2d at 123(no equitable

principle justified retroactive modification of support obligations).

         Money paid to the obligee parent for past-due support reimburses that

parent for funds actually expended. Capetillo, 85 Wn. App. at 316; Hartman v.

Smith, 100 Wn.2d 766, 768, 674 P.2d 176 (1984). Thus, one of the rationales for

allowing equitable modification of back child support payments is that the child,

the beneficiary of the support order, has already been supported by the obligee

parent and that parent can, by words or actions, forfeit the right of

reimbursement. For example, in Hartman, after the parties' dissolution, the court

awarded custody of the child to the mother and ordered the father to pay child

support. Hartman, 100 Wn.2d at 766-67. Later, the father gave his consent to

allow the mother's new spouse to adopt the child. Hartman, 100 Wn.2d at 767.

Both parties understood that the adoption would relieve the father of his

obligation to pay child support. Hartman, 100 Wn.2d at 767. A court later

vacated the adoption. Hartman, 100 Wn.2d at 767. The mother then sought to

recover support that would have accrued during the 7-year period when the

parties assumed that the adoption was valid. Hartman, 100 Wn.2d at 767-68.

Our supreme court ruled that equitable estoppel barred the mother's claim.

Hartman, 100 Wn.2d at 769-70. The court reasoned that throughout the

presumptive adoption period, the mother represented to the father that he no

longer had to provide support and the father relied on her representations and on

the terms of the adoption decree. Hartman, 100 Wn.2d at 769; see also Schafer,

95 Wn.2d 78, 81-82 (applying equitable credits against accrued support);



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No. 78615-6-1/10

Marriage of Watkins, 42 Wn. App. 371, 374-75, 711 P.2d 1076 (1985)(applying

laches).

       In this case, McCabe does not claim that Arras relinquished the right to

reimbursement. Instead, she argues that using a portion of her benefits to satisfy

her child support obligation creates a financial hardship. With respect to this

argument, this court's decision in Hunter is instructive. In that case, during a

period of over six years when the father was largely unemployed, he failed to pay

child support. Hunter, 52 Wn. App. at 266-67. The parents discussed child

support numerous times, but the mother took no legal action to enforce the

father's obligation. Hunter, 52 Wn. App. at 267. Eventually, after the father

began earning reliable income, the mother initiated proceedings to collect unpaid

child support. Hunter, 52 Wn. App. at 267. The father argued that the mother

recognized his need to recover from alcoholism and financially reestablish

himself and relinquished her right to collect support. Hunter, 52 Wn. App. at 267.

A trial court commissioner entered judgment against the father for approximately

$30,000 in unpaid child support and interest. The superior court granted a

motion to revise because the judgment was "'unduly burdensome" and reduced

the amount to $10,000. Hunter, 52 Wn. App. at 267.

       This court reversed, concluding that the trial court could not retroactively

modify the father's support obligation based on its assessment that the obligation

was onerous and it was unlikely the father would ever have sufficient resources

to pay it. Hunter, 52 Wn. App. at 269. The court observed that while traditional

equitable defenses of !aches and equitable estoppel can apply in the context of



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No. 78615-6-1/11

child support, the facts did not support either defense. Hunter, 52 Wn. App. at

273. The court discerned "no other equitable principles which would operate to

retroactively modify" the father's support obligation. Hunter, 52 Wn. App. at 273.

       Likewise here, McCabe requested retroactive relief on the basis of "severe

economic hardship." And while she does not dispute that Arras supported the

children when she was unable to contribute, she asserts that disbursing a portion

of her disability benefits to compensate him results in an unearned "windfall."

She also argues that payment of a portion of her back benefits to satisfy her

support obligation is not in the children's best interests because they spend some

residential time at her home. Here and below, McCabe's position is that she is

entitled to retroactive modification of her child support obligation simply because

she has a greater financial need than Arras. But as the decision in Hunter

illustrates, this rationale does not fall within the "framework of established

'equitable principles" that warrants retroactively modifying a court order. See

Hunter, 52 Wn. App. at 269 (quoting Hartman, 100 Wn. App. at 769). Even in

light of the trial court's express finding that the father in Hunter would likely never

have sufficient income to pay the accrued support obligation, we held that the

court's "stated reasons [did] not justify departure from the general rule." Hunter,

52 Wn. App. at 269. Unlike the case in Hunter, McCabe undisputedly received

an asset which allowed her to satisfy the past due support obligation. The court

did not err in concluding there were no "traditional grounds for equitable relief" in

this case. See Hunter, 52 Wn. App. at 269.




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No. 78615-6-1/12

       McCabe also contends that CR 60 provided a basis for the court to vacate

the prior orders of support and orders imposing sanctions. But McCabe did not

seek relief under CR 60 below. Because she did not argue that CR 60 applied

and the trial court did not consider it, we decline to review McCabe's argument.

Shoemaker, 128 Wn.2d at 121 (declining to decide whether child support order

could have been vacated under CR 60 where the issue was not raised before the

trial court); see also RAP 2.5(a)(appellate court may refuse to review "any claim

of error which was not raised in the trial court").

       McCabe also raises a number of procedural issues. She contends the

superior court exceeded the scope of review under RCW 2.24.050 by

considering matters in the court file. RCW 2.24.050 provides that a decision on a

motion for revision "shall be upon the records of the case." Therefore, the

revision court may not consider additional evidence submitted after the

commissioner enters a ruling. See Moody, 137 Wn.2d at 992-93 (affirming

superior court's refusal to consider additional evidence that a party attempted to

submit with a motion for revision); In re Marriage of Balcom & Fritchle, 101 Wn.

App. 56, 59, 1 P.3d 1174 (2000)(reversing superior court's revision because the

superior court entertained supplemental evidence submitted in support of motion

to revise).

         Here, the court reviewed the record that was before the commissioner,

no more. Neither party asked the superior court to consider new evidence in

conjunction with the motion for revision. Contrary to McCabe's claim, the entire




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No. 78615-6-1/13

docket of the dissolution case was before the commissioner. In the words of the

statute, the review was of the "records of the case."

       McCabe also claims that disbursement of funds by the DCS in accordance

with the commissioner's ruling violated her constitutional right to "meaningful

review" and interfered with her ability to seek revision of the commissioner's

ruling. We disagree. All commissioner rulings are subject to revision by the

superior court. RCW 2.24.050; Wash. Const. art. IV, § 23. This right ensures

litigants that disputed decisions are made by elected judges. McCabe was fully

able to exercise her right to revision under the process set forth in RCW

2.24.050. And while the DCS is generally required to disburse funds within eight

days of receipt, RCW 26.23.035(1)(b), McCabe obtained a temporary order to

stay disbursement pending resolution of the motion to modify. The

commissioner's ruling on the motion to modify was effective and enforceable

unless otherwise provided by a court order. See KCLR 8(B)(iv). McCabe was

entitled to move to stay the enforcement of the commissioner's order, but did not

seek a stay until July 2018, more than five months after the commissioner issued

her ruling after the superior court denied the motion to revise.

       McCabe also appears to challenge the order on revision on the ground

that both the commissioner and the trial court were required to enter written

findings and failed to do so. See RCW 2.24.050 (superior court reviews the

"findings of fact and conclusions of law entered by the court commissioner.") But

although the commissioner failed to enter findings of fact and conclusions of law,

the trial court entered oral findings and expressly incorporated those findings in



                                            13
No. 78615-6-1/14

its written order. The record is sufficient to permit appellate review. See Just

Dirt, Inc., v. Knight Excavating, Inc., 138 Wn. App. 409, 416, 157 P.3d 431 (2007)

(when a trial court fails to enter required findings and conclusions, the court will

remand for entry of formal findings and conclusions unless the record is

adequate for review).

       The only finding McCabe appears to specifically challenge is the superior

court's finding that she failed to provide all available financial documents. She

claims this finding is unsupported because she had no bank accounts until she

began receiving disability benefits. But McCabe cites only to her attorney's

argument in support of the motion to revise, not to evidence in the record. And

we defer to the superior court's credibility determinations. Mitchell v. Wash.

State Inst. of Pub. Policy, 153 Wn. App. 803, 814, 225 P.3d 280(2009)

       McCabe also claims that Arras's counsel's "unprofessional conduct" below

warranted sanctions. It does not appear that McCabe requested sanctions.

Accordingly, she fails to demonstrate trial court error. In any event, while

McCabe draws different inferences from the record, she fails to identify an

instance when Arras's counsel misrepresented the evidentiary record.

       Finally, both parties request attorney fees on appeal. McCabe, as a pro

se litigant and non-practicing attorney, is not entitled to recover fees. See Price

v. Price, 174 Wn. App. 894, 905, 301 P.3d 486 (2013); In re Marriage of Brown,

159 Wn. App. 931, 938, 247 P.3d 466 (2011). And while we disagree with

McCabe's arguments, her appeal is not so devoid of merit as to be frivolous. We

decline Arras's request for attorney fees under RAP 18.9.



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No. 78615-6-1/15




                    7
                    7041et/   4C

WE CONCUR:



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