                                                                                                          I I-. E;: D
                                                                                              C JUE T OF APPEALS
                                                                                                      DIVISION II
                                                                                            201 - -       8 ! iJ110: 09

                                                                                             STATE    OF V ASHINGTOP4
                                                                                             O¥
                                                                                                       OUTY

      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                                DIVISION II
In re Marriage of:


JOSEPH SCOTT CHAUSSEE,                                                                       No. 43948 -4 -II


                                                  Appellant,


           v.




BREE ANNE FEIL,                                                                       UNPUBLISHED OPINION


                                                  Respondent.


             HUNT, J. —            Joseph Scott Chaussee appeals the superior court' s ( 1) order requiring him to

pay postsecondary educational child support to Bree Ann Feil, the mother of their son, Tanner

Chaussee;            and (   2)    denial of his motion to deny or to dismiss Feil' s motion to adjust child

support.         Chaussee              argues   that ( 1)   Feil incorrectly filed a motion for adjustment, instead of a

proper petition              for modification,          and     failed to pay   filing fees; ( 2) Feil did not timely file her

motion         for   adjustment,             because Tanner already       reached   the   age of   majority; ( 3) Feil presented


speculative evidence of                      Tanner'   s educational expenses; (     4) the superior court incorrectly relied

on   the '      law    of    the   case'        doctrine in reaching its decision; and ( 5) Feil lacked authority under

the 2011        child support order              to   request   postsecondary    support   for Tanner. Chaussee also asks us


to reverse the superior court' s denial of his request for attorney fees below; and both parties

request attorney fees on appeal.
1
    Br.   of   Appellant          at   25.
No. 43948 -4 -
             II



           We affirm the superior court' s grant of Feil' s motion for adjustment for postsecondary

education and        the   superior    court' s   denial   of   Chaussee'    s request      for attorney fees below.         We


deny both parties' requests for attorney fees on appeal.


                                                            FACTS


           Joseph Scott Chaussee          and     Bree Ann Feil      are   the parents of Tanner Chaussee, 2           born on

May   4, 1994. 3     Chaussee and Feil separated when Tanner was very young; and Chaussee became

responsible for paying child support under a court order entered in' 2005.

                     I. PROVISIONS FOR POSTSECONDARY EDUCATION CHILD SUPPORT


           This 2005 child support order contained a postsecondary education support provision that

allowed a party to request postsecondary support before a child reached the age of majority or

graduated     from high      school.     Because Chaussee was later unemployed, on April 22, 2011, the


superior court entered another child support order modifying Chaussee' s payment obligations.

This April 2011 order reiterated the parties' 2005 support order rights to request post secondary

education support: "         The provisions for post secondary educational support in the Order of Child

Support     entered on [     April 22,    2005]    are   in full force     and   effect."    Suppl. Clerk' s Papers ( CP) at


197. Later that year, Chaussee became re- employed. On November 21, 2011, the superior court


modified the April 2011 child support order to reflect Chaussee' s new payment obligations based

on his new income.



2
    To prevent confusion, we refer to Tanner Chaussee as Tanner, we intend no disrespect.

3
    They   are also    the   parents    of   PC, for     whom child support          is   not at   issue in this   appeal.   It is
appropriate     to   provide some       confidentiality in this      case.       Accordingly initials will by used in the
body of the opinion to identify juveniles.



                                                                 2
No. 43948 -4 -II




       The superior court simultaneously modified the periodic postsecondary educational

support and periodic adjustment provisions to read:


       3. 13     TERMINATION OF SUPPORT


       Support shall be paid until the children reach the age of 18, or as long as the
       children    remain( s)     enrolled in high school, whichever occurs last, except as
       otherwise provided below in Paragraph 3. 14.

       3. 14     POST SECONDARY EDUCATIONAL SUPPORT


       The right to request post secondary support is reserved, provided that the right is
       exercised before support terminates as set forth in paragraph 3. 13.




        3. 16    PERIODIC ADJUSTMENT


                It is contemplated that in May 2012 there shall be a post- secondary [ sic]
        modification.    There shall be no adjustments due to any unemployment between
        this date [ and] May 2012.   Support for the minor child [ and] any request for post-
        secondary support may be made by motion before the commissioner.

Clerk' s Papers ( CP)   at   8.   Chaussee neither challenged nor appealed the November 2011 child


support order.



                II. MOTION REQUESTING POSTSECONDARY EDUCATION CHILD SUPPORT


        Tanner turned 18, the age of majority, on May 4, 2012, and graduated from Eastmont

High School in Wenatchee           on   June 8, 2012.   He planned to attend Wenatchee Valley College

while living at home with Feil and later transfer to Shoreline Community College for their

Toyota Certified Mechanic          certification program.   On May 21, 2012, before Tanner graduated

from high school, Feil filed a motion to adjust child support, asking the superior court to allocate

expenses for Tanner' s postsecondary education support.




                                                        3
No. 43948 -4 -II




           The superior court reviewed published information about the costs of attending

Wenatchee Valley College, Feil' s W -2 earning statements from 2009 through 2011, Feil' s tax

returns from 2009 through 2011, and Feil' s earning statements for the year 2012, and Chaussee' s

total monthly        income, household                expenses,    debt    expenses,     monthly    expenses,      and earning


statements       for the    years   2011        and    2012.     The superior court also held a hearing at which

Chaussee argued that ( 1) Feil had failed to file a proper petition to adjust child support and had

failed to pay the        relevant   filing     fees, ( 2)   Feil lacked authority to request postsecondary education

support under the court' s November 2011 order, and ( 3) Chaussee deserved an award of attorney

fees because        of   the   parties'    disparity in         income     and   his   need   for attorney fees.          Chaussee


conceded, however, that he had neither moved to revise nor appealed the November 2011 child

support order.



           The     superior    court     ruled    that ( 1)     because Chaussee had failed to appeal or to seek


revision of the November 2011 child support order, the doctrines of law of the case, waiver, and


estoppel applied; and ( 2) thus, it was not necessary to " go through some sort of a formal petition

process" because the November 2011 order provided that the motion process could be used for

                                                            4
an adjustment of          postsecondary          support.       Verbatim Report         of   Proceedings ( VRP)      at    27.   The




4
    The   superior court noted         that,   although      RCW 26. 09. 175( 1)       provides   that   a " petition" "   shall" be
used      for an   adjustment       of    postsecondary         support,   that the " AOC" ( Administrator of Courts)

mandatory forms say, "[ Motion." Verbatim Report of Proceedings ( VRP) at
                                                                                     28.                            The superior
court also stated that Feil' s failure to pay the "$ 20 filing fee" was an issue for the                          clerk' s office.
VRP at 27.



                                                                    4
No. 43948 -4 -II




superior court granted Feil' s motion for adjustment for postsecondary education child support.

       This adjusted child support order stated that based on the parents' individual incomes,


Chaussee would pay 38. 7 percent of the costs of Tanner' s postsecondary education costs, less

transportation     and    personal    costs;    Feil would pay 61. 3 percent of Tanner' s postsecondary

education costs; and      Tanner     would     pay his   own   transportation    and personal expenses.      Chaussee


appeals this order.


                                                     ANALYSIS


           I. MOTION FOR ADJUSTMENT OF CHILD SUPPORT FOR SECONDARY EDUCATION


                                     A. Procedure Used Was Harmless Error


       Chaussee first argues that the superior court erred in failing to dismiss Feil' s motion for

adjustment of child support because Feil did not properly petition to modify the child support

order and failed to pay the court' s filing fees, which failures warranted dismissal of her motion.

We disagree.


          Chausee is correct that under RCW 26. 09. 175, the proper procedure to modify a child

support    order   is a   petition   for   modification.       Nevertheless, we adopt the rationale of In re


Marriage of Morris, 176 Wn.             App.     893, 309 P. 3d 767 ( 2013), in which Division One of our


court held that filing a motion pleading, as Feil did here, instead of filing a petition for

modification,      is harmless   error.    In Morris, petitioner Reyes filed a motion for adjustment for


postsecondary educational support for their daughters, after the oldest had been accepted by the

University   of    Washington. Morris, 176 Wn.            App.     at   896.   Division One held that Reyes' use of


a motion for adjustment, instead of a petition for modification, was harmless error because ( 1)

Morris did    not    identify if     and   how he    was   harmed        by    any   procedural   deficiencies; ( 2) the




                                                               5
No. 43948 -4 -II




superior court considered the motion for revision based on the parties' declarations, financial

documents,     and    legal   arguments; and (      3) Morris failed to      establish   any   prejudice.   Morris, 176


Wn.   App.     at   903.      Division One further noted that equities strongly favored affirming the

superior court' s disregard of the erroneous choice of procedure and forms because Morris had


identified no resulting prejudice, the mandatory form for a petition for modification did not

contemplate "       raising   a reserved right      to    petition   for postsecondary    support[,   and t] he equities


strongly favor affirming the trial court' s disregard of the erroneous choice of forms and its
recognition and      treatment    of   this   case as a modification." .   Morris, 176 Wn. App. at 904.

         Here, like Reyes in the Morris case, Feil' s using a motion for adjustment was harmless

error because ( 1) Chaussee fails to identify how this procedural deficiency prejudiced his case;

and ( 2) the superior court thoroughly considered the parties' declarations, financial statements,

and   legal   arguments and       held   a    hearing    with oral arguments.    The superior court also reviewed


published     information       about    the    costs    of   attending Wenatchee        Valley; Feil' s W - earning
                                                                                                           2

statements from 2009 through 2011, tax returns from 2009 through 2011, and earning statements

from the year 2012; and Chaussee' s total monthly income, household expenses, debt expenses,

monthly expenses, and earning statements for the years 2011 and 2012.

         Chaussee having failed to show how the alleged procedural deficiency prejudiced his

case, we adopt and apply Morris here and hold that Feil' s use of the motion for adjustment was




                                                                6
No. 43948 -4 -II



                      5
harmless     error.       Accordingly, we affirm the superior court' s adjusted child support order that

Chaussee pay a share of Tanner' s postsecondary education costs.

                                                B. Motion Was Timely

         Chaussee also argues that the superior court erred in granting Feil' s motion for

adjustment of child support because she failed to exercise the right to postsecondary support

before Tanner         reached   the   age of   majority.    Feil responds that her motion for adjustment was


timely filed before Tanner graduated from high school on June 8, 2012, which, under the terms

of   the November 2011          child support order was      the controlling later     of   the two listed    events.   We


agree with Feil.


          Interpretation of a child support order presents a question of law, which we review de

novo.   In   re    Marriage of Sagner, 159 Wn.             App.   741, 749, 247 P. 3d 444 ( 2011).           If an order is


unambiguous,        there    is nothing for    us   to interpret.   In re Marriage of Bocanegra, 58 Wn. App.

271, 275, 792 P. 2d 1263 ( 1990).              We construe child support orders as a whole, giving meaning

and effect to each provision. See Stokes v. Polley, 145 Wn.2d 341, 346 -47, 37 P. 3d 121.1 ( 2001).




5 In light of this holding, we do not address Chaussee' s argument that the superior court erred in
              August 2012 .support                                         the " law        the           doctrine.   Br. of
basing its                                 modification      ruling   on               of         case"

Appellant     at   25.    Also, we do not address Chaussee' s argument that the superior court erred in
ruling that Feil had authority to file a motion to modify and to request postsecondary support
based   on    the language of the November 21,                2011 order, asserting that the language of the
November 2011 order was not clear. But Chaussee fails to support this argument with citation to
legal authority, in violation of RAP 10. 3( a)( 6).    We do not review issues that a party
inadequately briefs or treats in passing. State v. Thomas, 150 Wn.2d 821, 868 -69, 83 P. 3d 970
 2004);   State v. Cox, 109 Wn. App. 937, 943, 38 P. 3d 371 ( 2002).


                                                              7
No. 43948 -4 -II



         Here, the November 2011 child support order unambiguously provided that the parties

reserved the right to request postsecondary educational support, provided that they exercised

such right before the later ofthe child' s reaching the age of 18 or as long as the child remained in
                   6
high   school.         The   child    support order    unambiguously         states   that the parties have   a "   right to



request," 7 which Feil clearly exercised before termination of support by filing her motion for
adjustment:        Tanner turned 18 on May 4, 2012, and graduated from high school on June 8, 2012.

Feil filed the motion for adjustment for postsecondary educational support on May 21, 2012,

before Tanner          graduated     from high   school.     Because Feil filed her motion for adjustment before


Tanner graduated from high school, the later of the two dates specified in the November 2011


child support order, she timely exercised her right to request postsecondary support before the
                                                                                            8
termination        of support   from Chaussee. Chaussee'              s arguments   fail.




6 The specific terms read:
          3. 13.       TERMINATION OF SUPPORT
          Support shall be paid until the children reach the age of 18, or as long as the
          children       remain( s)    enrolled in high school, whichever occurs last, except as
          otherwise provided below in Paragraph 3. 14.
          3. 14        POST SECONDARY EDUCATIONAL SUPPORT
          The right to request post secondary support is reserved, provided that the right is
          exercised before support terminates as set forth in paragraph 3. 13.
CP at 8 ( emphasis added.)

7
    CP at 8.


8 Chaussee contends that the child support order did not specify the manner in which Feil could
 exercise" her right to request post secondary support and, accordingly, she failed to " exercise"
her statutory right to request postsecondary support before Chaussee' s obligation to support for
Tanner terminated.            Br.     of   Appellant   at   18.   Chaussee' s contention is contrary to the plain
language of the child support provisions and would lead to absurd result of the type that we are
bound to avoid. See Eurick v. Pemco Ins. Co., 108 Wn.2d 338, 341, 738 P. 2d 251 ( 1987).


                                                                  8
No. 43948 -4 -II




                         II. POSTSECONDARY SUPPORT AWARD NOT SPECULATIVE


           Chaussee next argues that the superior court erred in requiring him to pay a portion of

Tanner' s postsecondary educational support because the award was based on speculation that

Tanner     would attend college        and incur postsecondary       educational expenses.         We hold that the


superior court properly considered evidence relating to Tanner' s education expenses and the

parties' relative incomes; thus, Chaussee' s argument fails.

           We review child support modifications for abuse of discretion. In re Marriage ofFiorito,

112 Wn.      App. 657, 663,       50 P. 3d 298 ( 2002).       A court abuses its discretion if its decision is


manifestly    unreasonable or         based   on untenable grounds or reasons.         Fiorito, 112 Wn. App. at

663 -64.     The superior court has broad discretion to order child support for postsecondary

education.     See RCW 26. 19. 090( 2),        In re Marriage of Newell, 117 Wn. App. 711, 718, 72 P. 3d

1130 ( 2003).      Substantial evidence must also support a superior court' s findings. In re Marriage


of Schumacher, 100 Wn.        App.      208, 211, 997 P. 2d 399 ( 2000).       Substantial evidence is that which


is   sufficient   to   persuade   a   fair -
                                           minded   person    of   the truth   of   the declared   promise.   In re


Marriage of Hall, 103 Wn.2d 236, 246, 692 P. 2d 175 ( 1984).                    We may not disturb findings of

fact   supported   by   substantial evidence even      if there is conflicting       evidence.   In re Marriage of

Lutz, 74 Wn. App. 356, 370, 873 P. 2d 566 ( 1994).

           RCW 26. 19. 090( 2) gives the superior court discretion to determine how long to award

postsecondary education support, and it provides a non -exhaustive list of factors a superior court




                                                          9
No. 43948 -4 -II



                  9
can   consider.            To    receive   postsecondary       educational       support,   the   child "   must enroll in an


accredited      academic           or   vocational      school,    must be actively pursuing a course of study

commensurate with the child' s vocational goals, and must be in good academic standing as

defined    by   the        institution."      RCW 26. 19. 090( 3).            If the child fails to comply with such

conditions, the parent' s postsecondary educational support obligation is automatically suspended

for the period( s) during which the child fails to comply. RCW 26. 19. 090( 3).

          Chaussee asserts that ( 1) Feil' s documentation of Tanner' s postsecondary education was

based   on speculative           tuition   fees   and   housing   costs, (   2) Feil' s declaration of payment expenses is


not sufficient proof of actual payment, and ( 3) Feil failed to introduce any competent evidence

about   Tanner'       s   future   college    expenses.      Chaussee is incorrect.           At the time of the hearing,

Tanner had already been admitted to Wenatchee Valley College.

          The superior court reviewed evidence of Tanner' s plan to attend Wenatchee Valley

College in the fall of 2012 while living with Feil and later to transfer to Shoreline Community

College to      obtain a         Toyota Certified Mechanic           certification.    In its determination, the superior


court considered the cost of tuition and living expenses published by the Wenatchee Valley


9 RCW 26. 19. 090( 2) provides:
     When considering whether to order support for postsecondary educational
          expenses, the court shall determine whether the child is in fact dependent and is
          relying         upon   the    parents   for the   reasonable necessities       of   life.   The court shall

          exercise its discretion when determining whether and for how long to award
          postsecondary educational support based upon consideration of factors that
          include but are not limited to the following: Age of the child; the child' s needs;
          the expectations of the parties for their children when the parents were together;
          the child' s prospects, desires, aptitudes, abilities or disabilities; the nature of the
          postsecondary education sought; and the parents' level of education, standard of
          living, and current and future resources. Also to be considered are the amount
          and type of support that the child would have been afforded if the parents had
          stayed together.



                                                                    10
No. 43948 -4 -II



College.    Because the Wenatchee Valley College estimate did not cover living expenses for

students living with their parents, the superior court considered the cost of attendance based on a

Highline    Community        College        publication,     which has similar tuition costs but takes into


consideration     the   cost of    living   at   home.     Such evidence was not speculative and supports the


superior court' s   findings.      See In re Parentage of Goude, 152 Wn. App. 784, 792 -93, 219 P. 3d

717 ( 2009).


         We hold that the superior court did not abuse its discretion in ordering Chaussee to pay

his reasonably calculated share of Tanner' s postsecondary education expenses.

                                                    III. ATTORNEY FEES


                                                          A. Chaussee


         Chaussee argues that the superior court erred in failing to award him attorney' s fees
                                                                                            10
below; he   also requests    attorney fees         on appeal under     RCW 26. 18. 160.          Chaussee is not entitled


to attorney fees below      or on        appeal.   Under RCW 26. 18. 160, a superior court may order a party

to pay attorney fees       after    considering both        parties'   financial   resources.     An award of attorney

fees under this statute is within the sound discretion of the court and depends on the need of the


recipient and the other party's ability to pay. In re Marriage of Ochsner, 47 Wn. App. 520, 528,

736 P. 2d 292,    review    denied, 108 Wn.2d 1027 ( 1987).                  Chaussee' s reliance on RCW 26. 18. 160


is   misplaced:     RCW 26. 18. 160 provides that the prevailing party in an action is entitled to .

recovery    of costs,   including        an award   for   reasonable   attorney fees; but "[     a] n obligor may not be



to Chaussee asserts that because Feil requests attorney fees on appeal, he should be awarded fees
on appeal   because "[    w] hat    is   good sauce   for the   goose   is   good sauce   for the   gander."   Reply Br.
of Appellant at 13 ( internal quotation marks omitted).




                                                                11
No. 43948 -4 -II



considered         a
                       prevailing party     under      this [ statute] unless the obligee has acted in bad faith."


Because we affirm the superior court' s order of postsecondary education child support, Chaussee

is not the prevailing party; therefore, he is not entitled to attorney fees.

                                                             B. Feil


         Feil does not appeal the superior court' s denial of her request for attorney fees, but she

requests     attorney fees         on   appeal.    We affirm the superior court' s denial of Feil' s request for


attorney fees and deny both parties' requests for attorney fees on appeal.

         RAP           18. 1   authorizes   attorney fees     on    appeal     if   provided
                                                                                                by   applicable   law.   After


considering the financial resources of both parties, we have discretion to award attorney fees to

the prevailing party. RCW 26. 09. 140. To receive attorney fees under RCW 26. 09. 140, however,

the requesting party must show               her      need and    the   other' s   ability to pay fees.     In re Marriage of

Konzen, 103 Wn.2d 470, 478, 693 P. 2d 97 ( 1985).                        A party relying on a financial need theory for

recovery of attorney fees must submit an affidavit of need " no later than 10 days prior to the date

the   case   is    set   for   oral argument or consideration on             the    merits."   RAP 18. 1(   c).   Because Feil


relies on RCW 26. 09. 140, a financial need theory for an award of attorney fees on appeal, she

must provide an affidavit of need, as required                     by   RAP 18. 1(     c).   In re Marriage of Hoseth, 115

Wn.    App.       563, 575, 63 P. 3d 164,         review   denied, 150 Wn.2d 1011 ( 2003).             But because Feil has


not submitted such an affidavit, she cannot receive attorney fees on appeal. RAP 18. 1( c).

         Feil also asserts that she is entitled attorney fees on appeal under RCW 26. 09. 140 and

RAP 18. 9 because Chaussee filed                  a   frivolous   appeal.     We disagree: Chaussee' s appeal was not


frivolous.        On the contrary, Feil' s procedural mistake below was a prime reason for Chaussee' s




                                                                   12
No. 43948 -4 -I1




appeal. See Morris, 176 Wn. App. at 910. Accordingly, we deny Feil' s request for attorney fees

on appeal.




        We affirm the superior court' s grant of Feil' s motion for adjustment to provide


postsecondary     education     child   support.   We affirm the superior court' s denial of Chaussee' s


request for attorney fees below. And we deny both parties' requests for attorney fees 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.




We concur:




                                                        13
