                                                                                                   Filed
                                                                                             Washington State
                                                                                             Court of Appeals
                                                                                              Division Two

                                                                                              April 12, 2016



       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                           DIVISION II
    In re the Marriage of:                                              No. 47512-0-II

    CHRISTINA M. RODERICK,

                                 Respondent,

              and                                                UNPUBLISHED OPINION

    BRIAN P. RODERICK,

                                 Appellant.

          MELNICK, J. — Brian P. Roderick appeals the trial court’s parenting plan, limiting his

visitation with the parties’ oldest daughter, and the dissolution orders awarding his former wife,

Christina M. Roderick, child support and maintenance. Brian1 contends substantial evidence does

not support the trial court’s findings of fact which led to visitation restrictions in the parenting plan

and the trial court abused its discretion in calculating the parties’ net incomes and assessing

Christina’s need for maintenance. We disagree and affirm the trial court.

                                                FACTS

          The parties were married on November 21, 1998 and separated on June 13, 2013. They

have four children. Temporary orders granted primary custody to Christina and every other

weekend plus two mid-week visits to Brian. The parties were self-represented at the dissolution

trial.



1
    We use first names to avoid confusion; no disrespect is intended.
47512-0-II


       At trial, Christina testified that she was a stay-at-home parent for most of the marriage.

However, she had an associate’s degree and post-separation worked as a para-educator for a local

school district, working 23 hours per week at $14.66 per hour. Christina planned to return to

college to earn her teaching certificate and anticipated she would need two years.

       Brian worked primarily for mortgage companies and insurance agencies during the

marriage. At the time of trial, Colonial Life employed Brian as a district manager and paid him

solely on commission. When asked about his net monthly income, Brian agreed it was $2,600.

The court asked, “Do you have any reason to dispute that amount?” Report of Proceedings (RP)

(Feb. 19, 2015) at 77. Brian replied, “I don’t.” RP (Feb. 19, 2015) at 77.

       Christina testified Brian had a history of emotionally and physically abusing the children.

When asked to clarify, Christina testified that Brian subjected the children to “really bad name

calling, putdowns.” RP (Feb. 19, 2015) at 17. She further described an incident where Brian

pushed their oldest daughter who scraped her foot on an ironing board leg. Christina testified that

Child Protective Services (CPS) began an investigation after the parties separated, but closed the

investigation because Brian was no longer living in the home. Soon after the pushing incident, the

parties’ oldest daughter refused to visit Brian except on Christmas and Father’s Day. The daughter

began seeing a counselor. Christina testified that Brian declined to participate in counseling with

their daughter. During trial, Brian objected to being required to attend counseling but ultimately

agreed to participate.

       Based on a finding that Brian’s net monthly income was $2,600 and Christina’s net

monthly income was $650, the trial court ordered Brian to make a monthly transfer payment of

$1,123.20 to Christina for child support. The trial court further ordered Brian to pay $850 per

month in spousal maintenance for two years based on Christina’s need for education and the



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marriage’s length. In the parenting plan, the trial court ordered the children to reside primarily

with Christina except every other weekend and on Tuesday evenings when they would reside with

Brian. The trial court limited Brian’s residential time by not including their oldest daughter in the

visitations “until [Brian] engages in counseling as defined in 3.13[2], unless she so chooses.”

Clerk’s Papers (CP) at 85. This limitation was based on the trial court’s finding of “Physical,

sexual or a pattern of emotional abuse of a child.” CP at 81.

       Brian moved for reconsideration, asking the trial court to lift the residential restriction

based on a letter he provided from the children’s counselor and asking the court to impute income

to Christina and recalculate his child support obligation. The trial court denied his motion. Brian

appeals.

                                            ANALYSIS

I.     STANDARD OF REVIEW

       In matters affecting the welfare of children, such as parenting plans, the trial court has

broad discretion, and we review its decisions only for abuse of discretion. In re Marriage of

Kovacs, 121 Wn.2d 795, 801, 854 P.2d 629 (1993). “[D]iscretion is abused when it is exercised

on untenable grounds or for untenable reasons.” In re Marriage of Neumiller, 183 Wn. App. 914,

920, 335 P.3d 1019 (2014).




2
  Section 3.13 of the Parenting Plan states, “[Brian] is ordered to engage in counseling with [their
oldest daughter]. The scope of the counseling is to be determined by the counselor. The respondent
is responsible for the payment of counseling when not covered by insurance.” CP at 86.


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II.    RESTRICTION IN PARENTING PLAN

       Brian challenges the final parenting plan on the ground the trial court erred when it

restricted his residential time with his oldest daughter based on RCW 26.09.191(1)(b) after finding

he had engaged in physical, sexual, or a pattern of emotional abuse. He contends substantial

evidence does not support the trial court’s abuse finding.

       We will uphold the trial court’s findings if substantial evidence supports them. In re the

Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). Specifically, a finding under

RCW 26.09.191(1)(b) must be supported by substantial evidence that there has been physical,

sexual, or a pattern of emotional abuse. See In re Marriage of Watson, 132 Wn. App. 222, 233,

130 P.3d 915 (2006) (referring to RCW 26.09.191(3)). Substantial evidence is evidence sufficient

to persuade a fair-minded rational person of the truth of the declared premise. Bering v. SHARE,

106 Wn.2d 212, 220, 721 P.2d 918 (1986). We review the record in the light most favorable to

the party in whose favor the findings were entered when determining whether substantial evidence

supports the trial court’s finding of fact on the value of an asset. In re Marriage of Gillespie, 89

Wn. App. 390, 404, 948 P.2d 1338 (1997).

       As an initial matter, Brian alleges the trial court was required to enter specific findings of

fact before imposing restrictions. Here, in the parenting plan, the trial court specifically found

there was “[p]hysical, sexual or a pattern of emotional abuse of a child” to warrant limiting Brian’s

residential time. CP at 81. Brian fails to cite legal authority to support his argument that this

finding alone is insufficient. Moreover, the statute governing residential restrictions does not

require additional findings. RCW 26.09.191. Therefore, the trial court’s finding is sufficient to

warrant a restriction. The issue, then, is whether substantial evidence supports the finding.




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       Here, Christina testified that Brian had a history of emotionally and physically abusing the

children. She specified that Brian subjected the children to “really bad name calling, putdowns.”

RP (Feb. 19, 2015) at 17. She further described an incident where Brian pushed their oldest

daughter and she scraped her foot on an ironing board leg. CPS was contacted. Christina notified

the trial court that the same daughter refused to go for visits with her father except on Christmas

and Father’s Day.

       Based on the above, substantial evidence supported the trial court’s finding of physical

abuse or a pattern of emotional abuse to support the restriction. In his motion for reconsideration,

Brian submitted a counselor’s letter who, after reviewing the notes of the children’s counselor,

indicated allegations of abuse were not present. However, we leave credibility determinations and

the weighing of evidence to the trial court. In re Marriage of Zier, 136 Wn. App. 40, 48, 147 P.3d

624 (2006); In re Marriage of Rostrom, 184 Wn. App. 744, 750, 339 P.3d 185 (2014). “So long

as substantial evidence supports the finding, it does not matter that other evidence may contradict

it.” In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).

II.    INCOME CALCULATIONS

       Brian next argues the trial court erred in calculating both his and Christina’s net incomes.

Specifically, he alleges the court failed to impute income for Christina and calculated his income

too high.

       We review an order of child support, including the decision whether to impute income, for

an abuse of discretion. In re Marriage of Pollard, 99 Wn. App. 48, 52, 991 P.2d 1201 (2000).




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The party challenging a child support order must establish that the decision was based on untenable

or manifestly unreasonable grounds. In re Marriage of Curran, 26 Wn. App. 108, 110, 611 P.2d

1350 (1980). Child support obligations are based on the combined monthly income of both

parents. Pollard, 99 Wn. App. at 52.

       A.      Christina’s Income

       Under RCW 26.19.071(6), the court must impute income to a parent who is voluntarily

underemployed to prevent the parent from avoiding child support obligations. In re Marriage of

Didier, 134 Wn. App. 490, 496, 140 P.3d 607 (2006). The court determines whether a parent is

voluntarily underemployed based upon the parent’s “work history, education, health, and age, or

any other relevant factors.” RCW 26.19.071(6).

       As a threshold matter, Christina argues this issue was not raised below and, therefore, may

not be addressed on appeal. Brian, however, raised the issue in his motion for reconsideration

which is sufficient to preserve the issue for our consideration. See Schreiner Farms, Inc. v. Am.

Tower, Inc., 173 Wn. App. 154, 158, 293 P.3d 407 (2013) (“‘new issues may be raised for the first

time in a motion for reconsideration, thereby preserving them for review’” (quoting Nail v. Consol.

Res. Health Care Fund I, 155 Wn. App. 227, 232, 229 P.3d 885 (2010)).

       Christina was primarily a stay-at-home parent during the parties’ 15-year marriage. At the

time of trial, she worked part time for a school district and wanted to work full time but needed

another 2 years of school to obtain a teaching certificate. Our record does not demonstrate that

Christina has foregone any employment opportunities or sought to limit her hours of work.

       The trial court is required to impute income under RCW 26.19.071(6) only when a parent

is voluntarily underemployed to prevent the parent from avoiding child support obligations. Based

on Christina’s work history, education, and desire to work full time, the record is devoid of



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evidence she was underemployed. Moreover, her anticipated return to college is an “other relevant

factor” under RCW 26.19.071(6). Thus, the court did not abuse its discretion when it declined to

impute income to Christina.

       B.      Brian’s Income

       Brian next argues the trial court erred in calculating his income for child support purposes.

RCW 26.19.071 sets forth the standards for determining income for purposes of calculating child

support. It includes what is to be included in calculating a party’s gross income (such as salary

and commissions) and what is to be deducted in calculating a party’s net income (such as federal

income tax and pension contributions).

       The trial court took into consideration that Brian’s income is solely based on commission.

The trial court looked at his tax returns, showing his income and deductions. The trial court also

looked at the income used on the parties’ temporary orders and calculated his net monthly income

at $2,600. The trial court then asked Brian, “Do you have any reason to dispute that amount?” RP

(Feb. 19, 2015) at 77. Brian replied, “I don’t.” RP (Feb. 19, 2015) at 77. Given the financial

documents in the record and Brian’s acquiescence to his net income, the trial court did not abuse

its discretion in calculating his net monthly income at $2,600.

III.   SPOUSAL MAINTENANCE

       Brian lastly argues the trial court abused its discretion in awarding Christina spousal

maintenance. The trial court has broad discretionary powers in awarding maintenance, and its

decision “will not be overturned on appeal absent a showing of manifest abuse of discretion.” In

re Marriage of Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984).




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        Spousal support is governed by RCW 26.09.090, which provides that a court “may” grant

a maintenance order for either spouse “in such amounts and for such periods of time as the court

deems just, without regard to misconduct, after considering all relevant factors.” The statute

identifies a non-exclusive list of factors that includes,“[t]he financial resources of the party seeking

maintenance, including separate or community property apportioned to him or her,” the time it

would take to acquire education or training to enable that party to find appropriate employment,

the standard of living established during the marriage, the duration of the marriage, the age,

physical and emotional condition, and financial obligations of the spouse seeking maintenance,

and the ability of the other spouse to meet his or her needs while meeting those of the spouse

seeking maintenance. RCW 26.09.090.

        In this case, the parties were married for over 15 years. Christina was a stay-at-home parent

who primarily cared for the parties’ four children. She has an associate’s degree but needs two

more years of education to obtain a teaching certificate to advance her career and increase her

earning potential. Brian has a history of being the financial provider for the family and continued

to have the means to pay maintenance. In looking at the parties’ economic situations post

dissolution, $850 per month for two years is just. See In re Marriage of Bulicek, 59 Wn. App. 630,

633, 800 P.2d 394 (1990) (in light of relevant factors, a maintenance award must be just).

Accordingly, the trial court did not manifestly abuse its discretion in awarding spousal

maintenance to Christina in the amount of $850 per month for two years.

        Based on the above, the trial court did not abuse its discretion in imposing a residential

restriction, calculating the child support amount, or awarding spousal maintenance to Christina.




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        We affirm.

        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.




                                                            Melnick, J.

We concur:




        Worswick, P.J.




        Lee, J.




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