                                                                                                 Filed
                                                                                           Washington State
                                                                                           Court of Appeals
                                                                                            Division Two

                                                                                             April 21, 2020
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                            DIVISION II
    In re Matter of the Marriage of:                                   No. 52756-1-II

    LILA F. SCHOLL,

                               Appellant,

           v.

    LEE W. SCHOLL,                                              UNPUBLISHED OPINION

                                Respondent.



          GLASGOW, J.—In July 2018, the superior court modified Lee W. Scholl’s spousal

maintenance obligation to his ex-wife Lila F. Scholl, finding that Lee1 had experienced a

substantial change in circumstances affecting his ability to pay spousal maintenance.

          Lila appeals from the superior court’s modification, arguing that the court erred by finding

a substantial change in circumstances and abused its discretion by reducing Lee’s maintenance

obligation. Lila also argues that the superior court erred by declining to award her attorney fees.

          We hold that substantial evidence supports the superior court’s finding that Lee’s income

substantially decreased, constituting a substantial change in circumstances. The superior court did

not abuse its discretion by adjusting Lee’s maintenance obligation and did not err by denying

Lila’s request for attorney fees. We affirm.




1
    Because the parties have the same last name, we refer to them by their first names for clarity.
No. 52756-1-II


                                           FACTS

       In September 2017, the Pierce County Superior Court entered a dissolution decree ending

Lila and Lee’s marriage. The couple had no dependent children.

       Lila requested spousal maintenance from Lee. At that time, Lee worked as a chief engineer

with Blue North Fisheries. The superior court found that Lee’s net monthly income was $10,658.

The superior court found that Lila was retired after 40 years working for the armed forces,

involuntarily unemployed due to serious health issues, and unlikely to obtain future work. The

court found that her net monthly income was $4,397.

       The superior court ordered Lee to pay Lila maintenance of $3,000 per month. The court

explained that it intended to equalize the parties’ standards of living, and the dissolution decree

provided for an overall equal distribution of debts and assets.

       In December 2017, Lee lost his job with Blue North Fisheries. By February 2018, Lee was

still unemployed, and his only source of income was weekly unemployment benefits. Lee filed a

motion to suspend his spousal maintenance obligation.

       In March 2018, a superior court commissioner granted Lee’s motion. The commissioner’s

order required Lee to notify Lila of any subsequent reemployment.

       In April 2018, Lee obtained a job as a chief engineer with a maritime freight handling

company called Young Brothers Ltd., based in Hawaii. Lee began receiving income from this job

in April 2018, but he did not report it until July 2018.

       At a review hearing in July 2018, the commissioner found that Lee failed to timely notify

Lila of his new employment. The commissioner ordered Lee to pay Lila $3,000 in maintenance

for the month of April 2018. The commissioner also ordered Lee to pay Lila 40 percent of his


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No. 52756-1-II


gross monthly overtime wages (up to $3,000 per month) from any overtime he earned between

May and September 2018. The commissioner set a review hearing for the fall to review Lee’s

actual income for May through September.

         Lee’s contract with Young Brothers provided for a base pay rate of $33.61 per hour. Lee

was paid an overtime rate of $50.42 per hour for any additional hours above full time that he

worked. Under the contract, Lee earned one day of paid accrued time off for each day he worked

at sea. Lee’s contract required him to work a rotating schedule, which meant he worked and was

paid for six weeks at a time, and then had six weeks off, during which he could use any accrued

time off.

         Lee’s net monthly take home pay was approximately $4,300. Lee had no guarantee that he

would be able to work overtime.

         At a review hearing in October 2018, the commissioner concluded that there had been no

significant change in circumstances regarding Lee’s income and reinstated Lee’s $3,000 per month

spousal maintenance obligation, retroactive to May 1, 2018.

         Lee filed a motion for superior court revision of the commissioner’s October 2018 ruling,

requesting that the court find that his employment with Young Brothers was a “‘significant change

of circumstances’” affecting his ability to pay spousal maintenance. Clerk’s Papers (CP) at 197-

98. Lee asked the superior court to eliminate his monthly $3,000 maintenance obligation and

replace it with a requirement that he pay Lila 40 percent of any gross overtime earnings each

month.

         The superior court granted Lee’s motion for revision and required Lee to pay Lila “40

[percent] of his overtime pay” on a monthly basis, effective back to May 1, 2018. CP at 214-15.


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No. 52756-1-II


       Lila appeals the superior court’s orders granting revision and denying reconsideration.

                                            ANALYSIS

A.     Modification of Spousal Maintenance and Standard of Review

       RCW 26.09.170(1)(b) provides that a spousal maintenance order may be modified “except

as otherwise provided in this section, only upon a showing of a substantial change of

circumstances.” Although the statute does not define “substantial change of circumstances,” that

term has been defined by case law. See, e.g., Spreen v. Spreen, 107 Wn. App. 341, 346, 28 P.3d

769 (2001).

        “‘[T]he phrase “change in circumstances” refers to the financial ability of the obligor

spouse to pay vis-à-vis the necessities of the other spouse.’” Id. (quoting In re Marriage of

Ochsner, 47 Wn. App. 520, 524, 736 P.2d 292 (1987)). A substantial change in circumstances is

a change that was “not contemplated at the time the original order [of support] was entered.” In re

Marriage of Morris, 176 Wn. App. 893, 902, 309 P.3d 767 (2013). The moving party has the

burden of showing that a substantial change has occurred. Spreen, 107 Wn. App. at 346.

       We review spousal support modifications for abuse of discretion. Id. The spouse

challenging the modification has the burden of showing abuse of discretion. See id. Abuse of

discretion “‘occurs when a decision is manifestly unreasonable or based on untenable grounds or

untenable reasons.’” In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014)

(quoting In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012)). A trial court’s

decision is unreasonable or untenable “‘if it rests on facts unsupported in the record or was reached

by applying the wrong legal standard.’” Hoffman v. Kittitas County, 194 Wn.2d 217, 229, 449 P.3d

277 (2019) (quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003)). We treat the trial


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No. 52756-1-II


court’s findings of fact “as verities on appeal” so long as those findings are “supported by

substantial evidence.” Chandola, 180 Wn.2d at 642.

       “‘Substantial evidence’ is evidence sufficient to persuade a fair-minded person of the truth

of the matter asserted.” Id. We “defer[] to the trier of fact for purposes of resolving conflicting

testimony and evaluating the persuasiveness of the evidence and credibility of the witnesses.”

Thompson v. Hanson, 142 Wn. App. 53, 60, 174 P.3d 120 (2007). We cannot “reweigh or rebalance

competing testimony and inferences even if we may have resolved the factual dispute differently.”

Bale v. Allison, 173 Wn. App. 435, 458, 294 P.3d 789 (2013). If evidence is disputed, it will

nonetheless be substantial if the evidence is sufficient to persuade a reasonable person of its truth.

See McCleary v. State, 173 Wn.2d 477, 514, 269 P.3d 227 (2012).

       When the superior court has revised a commissioner’s maintenance modification ruling,

“the superior court revision order supersedes the commissioner’s ruling[,] [and] our focus is

whether the superior court abused its discretionary authority.” In re Marriage of Dodd, 120 Wn.

App. 638, 644, 86 P.3d 801 (2004).

B.     Substantial Change in Circumstances

       Lila argues that the superior court abused its discretion by finding that Lee experienced a

substantial change in circumstances that affected his ability to pay spousal maintenance. We

disagree and hold that Lee offered substantial evidence sufficient to persuade a fair-minded person

that he experienced a substantial change in circumstances warranting modification under RCW

26.09.170(1)(b).




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No. 52756-1-II


       Lee presented evidence that his net take home base pay in November 2018—not including

any overtime he might end up working—was approximately $4,300 per month.2 Lee

acknowledged that he received an additional amount of approximately $227 per month from Lila’s

Federal Employee’s Retirement System annuity. If it counted the money he received from Lila’s

annuity, the superior court could rationally have found that Lee’s net monthly base income in

November 2018 did not exceed roughly $4,500, which was less than half of his net monthly income

in September 2017.

       Lee also presented evidence to the superior court explaining how his wages with Young

Brothers represented a substantial decrease in income when compared to his prior income with

Blue North Fisheries, even though his paystubs for that period did not at first glance appear to

reflect that decrease. Lee was able to take two additional voyages in the summer of 2018, which

“allowed [him] to get some extra hours without having the six weeks off that [he] normally would

have faced.” CP at 187. These additional voyages were exceptional opportunities rather than

regular occurrences, and Lee had no way of knowing whether he would be able to work overtime

hours in the future.

       Lee explained to the superior court that his “six weeks on, six weeks off” schedule with

Young Brothers also represented a change in the way he was paid. CP at 186. He emphasized, “I

have to save the . . . accrued time off earned only on sea voyage not while at dock and use that

money in lieu of [a] paycheck during the six weeks off.” CP at 186.



2
 The $4,300 per month approximation of Lee’s base pay appears to assume full time employment
at his new hourly rate of pay. Lee’s paystubs during this period also contained a number of clerical
and typographical errors, including an error that resulted in him being accidentally overpaid
$3,092.12. This amount was ultimately deducted from Lee’s later paychecks.

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No. 52756-1-II


       Lila presented contradictory evidence to support her argument that Lee’s income did not

substantially decrease from his roughly $10,000 net monthly income that the superior court found

in September 2017. Lila included in her calculation of Lee’s net monthly income both his

guaranteed full-time hourly wages and the extraordinary overtime wages he earned during that

six-month period.

       Lila’s contradictory evidence does not establish that the superior court abused its discretion

by adopting Lee’s arguments and calculations instead of Lila’s. We do not “‘disturb findings of

fact supported by substantial evidence even if there is conflicting evidence.’” McCleary, 173

Wn.2d at 514 (quoting Merriman v. Cokeley, 168 Wn.2d 627, 631, 230 P.3d 162 (2010) (per

curiam)). Even if we might resolve this factual dispute differently than the superior court, we are

not entitled to reweigh the evidence. Bale, 173 Wn. App. at 458.

       Under RCW 26.09.170(1)(b), Lee offered evidence sufficient for the superior court to

conclude that he experienced a substantial change in circumstances that justified modifying his

maintenance award. We hold that the superior court did not abuse its discretion in this regard.

C.     Scope of the Initial Maintenance Order

       Lila argues that Lee’s termination from Blue North Fisheries and reemployment with

Young Brothers was not a significant change in circumstances because the superior court’s initial

maintenance order contemplated this change. Lila argues that Lee experienced a “lateral change”

within the same industry at “comparable earnings.” Br. of Appellant at 12. We reject this argument

and hold that Lee’s change in employment was a substantial change in circumstances not

contemplated by the parties at the time of the initial dissolution decree.




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No. 52756-1-II


       Under RCW 26.09.170(1)(b), a change in circumstances affecting the obligor spouse’s

ability to pay maintenance must have been a change “that the parties did not contemplate at the

time of the dissolution decree.” Spreen, 107 Wn. App. at 346. We review for abuse of discretion

the superior court’s determination that a change in circumstances under RCW 26.09.170(1) was

not previously contemplated. See id.

       In its initial maintenance award in 2017, the superior court expressly stated that if Lee’s

“ability to work becomes substantially impaired at a future date,” it might modify the maintenance

award, “but that speculative action cannot be considered at this time.” CP at 37 (emphasis added).

       We hold that Lee’s change in employment and reduction in guaranteed base pay was not

contemplated when maintenance was originally ordered.

D.     Consideration of RCW 26.09.090(1)(f) and Abuse of Discretion

       Lila argues that the superior court did not adequately consider Lee’s ability to pay spousal

maintenance in relation to Lila’s financial need as required by RCW 26.09.090(1)(f). Lila also

contends that the superior court abused its discretion by failing to provide specific findings of fact

or present findings showing how its November 2018 order “equalize[d] the income of the parties.”

Br. of Appellant at 15. We disagree.

       To modify a maintenance obligation, the court considers the same nonexclusive factors in

RCW 26.09.090(1)(a)-(f) that apply to the determination of an initial maintenance obligation. See,

e.g., Spreen, 107 Wn. App. at 347 n.4. “An award that does not evidence a fair consideration of

the statutory factors” is an abuse of discretion. Id. at 349. However, “[n]othing in RCW 26.09.090

requires the trial court to make specific factual findings on each of the factors listed in RCW

26.09.090(1).” Mansour v. Mansour, 126 Wn. App. 1, 16, 106 P.3d 768 (2004). In Mansour, we


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No. 52756-1-II


held that a trial court’s “failure to list the influence of each factor in its ruling” did not warrant

“reversing the maintenance award for lack of consideration of the listed factors.” Id.

       Contrary to Lila’s assertion, the superior court was not required to make factual findings

showing how it balanced Lee’s ability to pay in relation to Lila’s need. See id. And the superior

court did address RCW 26.09.090(1)(f). At the court’s request, both parties discussed Lee’s ability

to pay relative to Lila’s need. After hearing evidence and arguments from both sides, the superior

court explicitly stated that it was ruling in Lee’s favor and adopting his calculations.

       With regard to both Lee’s net monthly income and Lila’s financial need, the parties

submitted contradictory evidence. Deferring to the superior court’s resolution of competing

evidence, we hold that the superior court did not err by finding that Lee’s and Lila’s base incomes

were roughly equal and that the best way to satisfy RCW 26.09.090(1)(f) was to award to Lila 40

percent of Lee’s overtime wages.

       With regard to Lila’s argument that the superior court never explained how its modification

equalized the parties’ income, the court’s division achieved a roughly equal split of Lee’s net

overtime income because it accounted for Lee’s payment of taxes on his income.3

       We hold that the superior court did not violate RCW 26.09.090(1)(f) or otherwise abuse its

discretion by modifying Lee’s spousal maintenance obligation.

E.     Superior Court’s Denial of Lila’s Request for Attorney Fees

       Lila argues that the superior court erred under RCW 26.09.140 when it denied her request

for attorney fees. We disagree.



3
 We note that in his July 30, 2018 order, the commissioner also awarded Lila 40 percent of Lee’s
gross overtime wages for the time period when Lee’s employment status was stabilizing.

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No. 52756-1-II


        Under RCW 26.09.140, a trial court may, “after considering the financial resources of both

parties,” award fees and costs to one party. We review “statutory attorney fee award decisions for

an abuse of discretion.” In re Marriage of Coy, 160 Wn. App. 797, 807, 248 P.3d 1101 (2011).

We defer to the trial court unless its decision was “based on untenable grounds or untenable

reasons.” Id. RCW 26.09.140 instructs the court to balance the parties’ financial need “‘to make

certain [no person] is . . . deprived of [their] day in court [due to] financial disadvantage.’” In re

Marriage of Burke, 96 Wn. App. 474, 479, 980 P.2d 265 (1999) (quoting 20 KENNETH W. WEBER,

WASHINGTON PRACTICE: FAMILY AND COMMUNITY PROPERTY LAW § 40.2, at 510 (1997)).

        Under RCW 26.09.140, the superior court could reasonably have concluded that neither

Lila’s nor Lee’s financial need substantially outweighed the other’s. The superior court’s final

dissolution decree, as well as its initial and modified maintenance award, contemplated an equal

division of debts, assets, and income, reinforcing that neither party had substantially greater

financial need than the other.

        We hold that the superior court did not err by denying Lila’s request for attorney fees.

F.      Attorney Fees on Appeal4

        On appeal, Lila requests attorney fees under RCW 26.09.140. We deny her request.

        Under RCW 26.09.140, we have discretion to award reasonable costs and attorney fees to

either party on appeal “after considering the financial resources of both parties.” We balance “the

financial need of the requesting party against the other party’s ability to pay.” In re Marriage of



4
  Lila filed a financial affidavit in support of her request for attorney fees that included a declaration
containing biographical information and additional argument. Lee responded with a motion to
strike the declaration under RAP 18.1(c) and 10.1(b) and a motion for sanctions. We grant Lee’s
motion to strike but we decline to award sanctions. We did not consider the stricken declaration.

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No. 52756-1-II


Kim, 179 Wn. App. 232, 256, 317 P.3d 555 (2014). For the same reasons the superior court did

not err by denying Lila’s request for attorney fees, we deny Lila’s request for attorney fees on

appeal.

                                          CONCLUSION

          We affirm the superior court’s modification of Lee’s spousal maintenance obligation and

its denial of attorney fees. We decline to award attorney fees to Lila on appeal.

          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.



                                                     Glasgow, J.
 We concur:



 Maxa, P.J.




 Sutton, J.




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