                                                                           FILED
                                                                         MAY 21, 2019
                                                                 In the Office of the Clerk of Court
                                                                WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

In the Matter of the Marriage of,             )
                                              )           No. 35795-3-III
ALICIA ANNE MARROQUIN,                        )
                                              )
                     Appellant,               )
                                              )
       v.                                     )           UNPUBLISHED OPINION
                                              )
RAUL MARROQUIN, JR.,                          )
                                              )
                     Respondent.              )

       KORSMO, J. — Raul Marroquin Jr. appeals from a decree of marital dissolution,

arguing on procedural and substantive grounds that the trial court erred in failing to grant

a deviation in his child support obligation. We affirm.

                                          FACTS

       Raul and Alicia Marroquin dissolved their marriage after three years. They had

one child. Mediation resolved most of the issues arising from the dissolution. The

mediation settlement, however, reserved the issue of whether Raul was entitled to a

deviation from the standard support obligation due to residential schedule, stating that it
No. 35795-3-III
In re Marriage of Marroquin


“shall be litigated.” Clerk’s Papers (CP) at 205. The parenting plan assigned Raul 39

percent of the child’s residential time.

       At the court’s request, both counsel met with the trial judge at an ex parte docket.

Raul requested a trial on the deviation issue. The judge informed the parties that he

would not take testimony on the deviation issue, but would consider any declarations

submitted with briefing. Alicia then noted a motion to enter the final child support order,

without Raul’s requested deviation, on a motion docket. Raul responded by filing a

proposed pretrial order. His counsel sent a letter with the pretrial order and objected to

the matter being heard on the motion docket.

       The following day the court entered a pretrial order that concluded live testimony

was not necessary. The court directed Raul to brief his request for a downward deviation

and authorized Alicia to respond to it. The next day Raul’s counsel submitted a revised

order recognizing that his request to “litigate” the deviation had been denied and would

be decided on the motion docket. Alicia’s counsel objected to the proposed order,

arguing that any dispute about the meaning of “litigate” had to be heard at arbitration.

Raul responded by letter saying he would attend arbitration if required to do so. He also

continued to object to having the deviation request heard on the motion docket.

       Both parties filed affidavits along with memoranda in support of their position.

The court heard oral argument on the issue. The court then entered an order dissolving



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In re Marriage of Marroquin


the marriage and applying the settlement agreement. The court then entered a child

support order that denied the deviation request and required Raul to pay standard child

support in accordance with the support calculation worksheets. The basis for denying the

request was the impact on Alicia.

       Raul appealed to this court. A panel considered his appeal without hearing

argument.

                                       ANALYSIS

       Raul presents two procedural and one substantive challenge to the court’s order.1

We consider first his claims that he was denied due process and his public trial rights

before turning to his argument that the court erred in denying his deviation request.

       Procedural Due Process

       Mr. Marroquin first argues that he had a due process right to “litigate” his

deviation request by presenting live testimony. He fails to establish a due process right in

this context.

       Child support is set by a statutory scheme that divides the support obligation

proportionately to the parents’ respective income levels. RCW 26.19.001, .080(1). The


       1
          Respondent contends that the due process claim is foreclosed by the failure to
arbitrate the meaning of “litigate.” She did not cross-appeal on this issue, nor assign
error to any ruling by the trial court, but apparently is presenting this argument as an
alternative basis for affirmance. See RAP 2.5(a). Since the issue was not developed in
the trial court, we are not in a position to further consider this argument. Id.


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In re Marriage of Marroquin


statutes allow the trial court to deviate from the standard schedule and provide a

nonexclusive list of reasons for deviation. RCW 26.19.075. One of those reasons, relied

on by Mr. Marroquin, is that the residential schedule leaves the child with the obligor

parent for “a significant amount of time.” RCW 26.19.075(1)(d). The statute provides

that this factor can justify a deviation if it drives up the costs of the obligor parent or

reduces the costs of the parent receiving support. Id. The court must enter findings

explaining its reason for granting or denying a deviation. RCW 26.19.075(3).

       Mr. Marroquin claims a due process right to enforce this statute by live testimony.

He relies on the familiar Mathews three-part balancing test:

       [F]irst, the private interest that will be affected by the official action;
       second, the risk of an erroneous deprivation of such interest through the
       procedures used, and the probable value, if any, of additional or substitute
       procedural safeguards; and finally, the Government’s interest, including the
       function involved and the fiscal and administrative burdens that the
       additional or substitute procedural requirement would entail.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976).

       The first factor—the private interest affected by government action—is the obligor

parent’s ability to seek a reduction in child support payments. Mr. Marroquin wrongly

references his right to raise his child as the interest at stake. It is not. The question

presented is whether he should be allowed to reduce his support payment for his child.

Since it is his statutory right, as obligor parent, to seek a reduction in support, this factor




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In re Marriage of Marroquin


may slightly favor Mr. Marroquin. However, the statute does not specifically provide for

live testimony, although neither does it prohibit the practice.

       The second factor, which involves an assessment of the risk of erroneous

deprivation of the right to seek a reduction, does not favor the appellant. He was

permitted to present his evidence and argument and respond to the other side’s argument.

He does not explain what evidence he would have been able to present via live testimony

that he was not able to present in writing.2 In short, he has not demonstrated that live

testimony would prevent a wrongful denial of his deviation request.

       The final factor, the cost of the change to the government, slightly weighs against

Mr. Marroquin. Presumably live testimony would have added to the time needed to

conduct the hearing, but we have no information on how much additional time the court

would have needed to hear the evidence since there was no proffer concerning that

matter. The court did not have a blanket policy in all cases against hearing testimony, so

it does not appear that the cost was likely to be significant in any particular case. Still,

this factor weighs against the appellant.




       2
        There is some indication in our record that he desired to cross-examine Alicia
about her expenses. However, any such testimony appears to be irrelevant to the question
of whether or not the child’s time with Raul reduced her expenses in any significant
degree. Her financial information was already before the trial court, as was his, and
could be argued from that standpoint if there was any relevancy to the topic.


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No. 35795-3-III
In re Marriage of Marroquin


       On balance, Mr. Marroquin has not established a due process right to present live

testimony in support of his request to deviate from the support guidelines.3 He did not

demonstrate that his statutory right was unduly limited by the process of providing written

evidence. He was not denied due process of law.

       Public Trial

       He next argues, in a rather cursory fashion, that his right to a public trial was

erroneously limited by the court. This argument fails for multiple4 reasons, but we need

only address one of them. Appellant failed to establish that he was harmed.

       Article I, § 10, adopted during our 1889 constitutional convention, reads now as it

did then:

       ADMINISTRATION OF JUSTICE. Justice in all cases shall be
       administered openly, and without unnecessary delay.

“All cases” means all cases. This provision applies equally to civil and criminal cases.

In re Det. of Reyes, 184 Wn.2d 340, 344, 358 P.3d 394 (2015). Unlike criminal cases,

violation of this provision in a civil case does not constitute structural error entitling a


       3
          Although not a factor in our analysis, we also note that our civil rules leave the
conduct of trial to the judge. CR 43(a)(1) (providing for live testimony in the courtroom
“unless otherwise directed by the court”).
        4
          We strongly caution against reading this opinion as an endorsement of the view
that the public trial right attached to what appears to be a calendaring ruling, let alone that
the court’s action amounted to a hearing that needed to be held in the courtroom. See
generally Wash. Const. art. IV, § 23; In re Det. of Reyes, 176 Wn. App. 821, 830-834,
315 P.3d 532 (2013), aff’d, 184 Wn.2d 340, 358 P.3d 394 (2015).


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In re Marriage of Marroquin


party to a new trial. Id. at 345-348. Instead, a public trial error in a civil case requires a

demonstration of harm in order to establish a remedy for that harm. Id. at 348.

       As noted in the previous section, Mr. Marroquin did not establish a due process

right to present live testimony in support of his request for a deviation. Thus, even if the

decision to not hear testimony should have been announced in a courtroom, appellant

cannot demonstrate any harm from that error since he had no right to present the

testimony. There was no substantive harm from the ruling.

       Our state right to a public trial does not require reversal of the trial court’s ruling

on the deviation request.

       Deviation Request

       Mr. Marroquin also argues that the trial court erred in denying his request. The

trial court did not abuse its discretion.

       We review the court’s deviation ruling for abuse of discretion. RCW

26.19.075(4); In re Marriage of Rusch, 124 Wn. App. 226, 236, 98 P.3d 1216 (2004),

overruled in part on other grounds by In re Marriage of McCausland, 159 Wn.2d 607,

152 P.3d 1013 (2007). Discretion is abused when exercised on untenable grounds or for

untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       As noted earlier, a deviation from standard support due to child custody is only

justified when the amount of shared custody results in additional expenses to one parent



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In re Marriage of Marroquin


or reduced expenses to the other. RCW 26.19.075(1)(d). Even when justified, a

deviation can be denied for various reasons, including the fact that the deviation would

leave the primary custodial spouse with insufficient income to support the child. Id.

That was the basis for the trial court’s ruling here.

       The record supports that ruling. The financial worksheets indicate that respondent

has less income and less surplus from that income than appellant. Her obligation to meet

their child’s needs would be impacted if the deviation was granted. That determination

was a tenable reason to reject the deviation.

       Nor was it a surprising decision. Many expenses of child raising are fixed costs

that are not reduced by time spent away from the child’s home. In the absence of

evidence of inordinate additional expense to the obligor parent, or of significant savings

to the primary custodian, deviations based solely on shared custody typically will fail.

       The trial court did not abuse its discretion in denying the request.

       Attorney Fees

       Both sides request attorney fees. Since Alicia has demonstrated need and is the

prevailing party, we award her attorney fees on appeal conditioned upon timely proof of

her expenses to our commissioner.




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In re Marriage of Marroquin


       RCW 26.09.140 permits both the trial and appellate courts, in their discretion, to

award fees largely in accordance with need and the other side’s ability to pay, which

provides in relevant part:

              The 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
       chapter and for reasonable attorneys’ fees or other professional fees in
       connection therewith, including sums for legal services rendered and costs
       incurred prior to the commencement of the proceeding or enforcement or
       modification proceedings after entry of judgment.
              Upon any appeal, the appellate court may, in its discretion, order a
       party to pay for the cost to the other party of maintaining the appeal and
       attorneys’ fees in addition to statutory costs.

       The key word in the statute for the purposes of this appeal is may. Parties are not

entitled to fees as a matter of right. In re Marriage of Harrington, 85 Wn. App. 613,

635-636, 935 P.2d 1357 (1997). Decisions whether to award fees under this statute are

reviewed for abuse of discretion. See In re Marriage of Nelson, 62 Wn. App. 515, 521,

814 P.2d 1208 (1991).

       We believe the equities favor Alicia here and exercise our discretion in her favor.

She has demonstrated a need and is here on appeal solely as a respondent defending

against an effort to reduce child support. Accordingly, we grant her request, conditioned

upon her timely filing of a cost bill demonstrating her attorney fee costs on appeal. Our

commissioner will resolve any dispute concerning the reasonableness of the fees.




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No. 35795-3-III
In re Marriage of Marroquin


      Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:



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      Lawrence-Berrey, J




      Pennell, J.




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