                                                                         FILED 

                                                                    SEPTEMBER 25, 2014 

                                                                   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 re the Marriage of:                         )
                                               )         No. 31025-6-III
BRANDON MUNN,                                  )
                                               )
                     Respondent,               )
                                               )
       and                                     )
                                               )
AMANDA MUNN,                                   )         UNPUBLISHED OPINION
                                               )
                     Appellant.                )

       SIDDOWA Y, C.J. - Amanda Munn appeals the findings, conclusions, and orders

entered at the conclusion of her marriage dissolution trial, arguing that the trial court

abused its discretion in failing to award her back child support and in entering inadequate

fmdings explaining why it withheld that award. The record reveals that Ms. Munn failed

to present a sufficient request, supporting evidence, and argument in support of such an

award at trial. Under the circumstances, the trial court's fmding that no back support was

owed was supported by the fact that Ms. Munn's requests for temporary support had all

been denied. We affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       Brandon and Amanda Munn were divorced in June 2012, following 17 years of

marriage and a 2-year separation. At the time of trial, they had 5 children together,

ranging from ages 7 to 18.
No. 31025-6-III
In re Marriage ofMunn


       Most of Mr. Munn's working life had been spent working on his parents' central

Washington farm. He moved to Idaho to attend college and on his return to Benton

County, Washington, began helping his parents with what was then their 3,000-acre

farming operation. Over the years, Mr. Munn and his brother assumed greater

responsibility for a vastly larger operation. By 2009, Mr. Munn was a partner in several

limited liability companies formed to carry on what had become the Munn family'S

farming, packing, and trucking operations.

       In 2009, problems that Mr. and Ms. Munn were having in their marriage began to

affect the larger family's business operations and eventually Mr. Munn was told by his

father that other family members insisted on buying out Mr. and Ms. Munn's interests.

On terms that were agreed in the summer of 20 10, Mr. Munn received the semitrucks and

other equipment owned by Munn Ag Services LLC, the family's over-the-road trucking

operation, and the right to use the Munn Ag Services name. Ms. Munn received a

promise of a payment of $350,000 in installments, bearing interest, which, at the time of

the dissolution trial, she had been drawing on at the rate of $5,000 per month or more, as

needed.

       Although Ms. Munn apparently raised the issue of temporary child support more

than once between the 2010 commencement of the dissolution action and the April 2012

trial, Mr. Munn was never ordered to pay temporary child support. Mr. Munn's own

lawyer raised that fact in his direct examination of his client at trial, without objection:

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No. 31025-6-111
In re Marriage ofMunn


       Q      Were you in a position to pay child support in 2011?
       A      No.
       Q      That issued [sic] had been brought before the Court on several
              occasions by your wife; is that right?
       A      That's correct.
       Q      And in spite of those motions being filed, there was no court order
              entered either, one, obligating you to pay child support or, two, to
              pay spousal maintenance; is that correct?
       A      That's correct.

Report of Proceedings (Apr. 23, 2012) (RP) at 42. Ms. Munn's lawyer made no effort

through cross-examination to contradict or clarify the testimony that his client had made

requests for temporary support that had been denied.

       Mr. Munn testified at the dissolution trial that Munn Ag Services' financial

performance had changed "drastically" after he began operating the business as a stand­

alone. RP at 19. He attributed the demise in its fortunes to two factors: first, he was no

longer hauling for the Munn family farms, which had formerly accounted for most of

Munn Ag Service's revenue; and second, neither Munn Ag Services nor he had ever

borrowed money directly for its operations, as a result of which the business had no credit

history and was unable to obtain needed financing. His personal tax returns were

admitted into evidence and showed an adjusted gross income of <$5,919> for 2010 and

<$266,362> for 2011.

       Although he had paid no temporary child support during the two years the divorce

was pending, Mr. Munn testified that while the divorce was pending, he had covered the

cost of health insurance (medical, dental, and vision) for his wife and their children; that

                                              3

No. 31025-6-111
In re Marriage ofMunn


he covered his wife's auto insurance; and that he made payments through March 20 lion

the mortgage to the marital home in which Ms. Munn and four of the children were

living. He also paid expenses for the parties' oldest daughter, who moved in with him in

October 20 I 0, and he paid the expenses associated with his younger children's visitation,

which was every other Thursday through Monday, and then Thursday evenings every

other week.

         In late June 2012, the court entered findings, conclusions, and a decree, dividing

th~   parties' property and dissolving their marriage. In a final child support order entered

several months later, it ordered Mr. Munn to pay $932.56 a month in child support for the

parties' four youngest children, basing the support obligation on its finding that Mr.

Munn's actual monthly net income was $4,716 and that a reasonable imputed monthly

net income for Ms. Munn, who it found was voluntarily unemployed, was $1,567. The

trial court awarded no back child support, stating in section 3.20 of the standard order of

child support form, "No back child support is owed at this time." Clerk's Papers at 41.

         Ms. Munn timely appealed from the trial court's findings, conclusions, and decree.

                                         ANALYSIS

         Ms. Munn raises only one issue on appeal: she argues that the trial court abused its

discretion in denying her request for back child support. She points out that it was

uncontested in the trial court that no order for temporary child support was ever entered

and that at no time before trial had Mr. Munn ever made any child support payment

                                               4

No. 31025-6·III
In re Marriage ofMunn


directly to her. She also argues that the trial court's one sentence finding-that "[n]o

back child support is owed at this time"-was insufficient and insufficiently supported by

the record.

       "A trial court's setting of child support will not be disturbed on appeal unless the

spouse challenging the decision demonstrates a manifest abuse of discretion." In re

Marriage ofCrose tto , 82 Wn. App. 545, 560, 918 P.2d 954 (1996). A court abuses its

discretion if its decision is "manifestly unreasonable or based on untenable grounds." In

re Marriage ofScanlon, 109 Wn. App. 167, 174,34 P.3d 877 (2001).

       An award of temporary child support is not automatic; a parent who believes there

is a factual basis for being awarded such support "may move for ... temporary support of

children." RCW 26.09.060(1)(b) (emphasis added). By comparison, chapter 26.09 RCW

provides that as part of a court's ultimate disposition of a proceeding to dissolve a

marriage, the court "shall order either or both parents owing a duty of support to any

child of the marriage ... to pay an amount determined under chapter 26.19." RCW

26.09.100(1) (emphasis added). Significantly, whether the issue of child support is

addressed pendente lite or in connection with the decree, the court is required to apply the

child support schedule provided by chapter 26.19 RCW. See RCW 26.19.035(1)(d)

(providing that the child support schedule is to be applied "[i]n setting temporary and

permanent support").




                                             5

No.31025-6-II1
In re Marriage ofMunn


       The record presents more questions for Ms. Munn's appeal than it provides

answers-and since she bears the burden of demonstrating an abuse of discretion by the

trial court, this proves fatal to her appeal. Although the uncontested testimony was that

Ms. Munn had raised the issue of temporary child support with the court "on several

occasions," Mr. Munn was never ordered to pay it. We have not been provided on appeal

with any record of these requests, their disposition, or the reason for their disposition.

Ms. Munn has not appealed any order that denied her temporary child support nor does

she argue whether, or why, the trial court abused its discretion in denying temporary

support.

       Even more puzzling is the absence from the pretrial and trial record before us of

any request to the trial court that as part of the court's final orders Ms. Munn be awarded

child support for the period from March 2010 through June 2012. Opening statements

and closing arguments were not transcribed, so we have been presented with no argument

by Ms. Munn during trial that she was entitled to child support for those two years. The

clerk's papers contain no response to the petition, no trial management report, and no

other pleading indicating that Ms. Munn was asking the court to award child support for

the pretrial period. The trial testimony was transcribed and includes undisputed

testimony that Mr. Munn paid no child support directly and that his wife requested such

support but it was not ordered-yet this testimony was elicited in the first instance by Mr.

Munn, who evidently believed that it advanced his position. There is no trial testimony

                                              6

No. 31025-6-III
In re Marriage ofMunn


suggesting why, although temporary support was denied, it should be ordered after-the­

fact as back support. The record includes no evidence, testimonial or otherwise, as to the

parties' relevant net monthly earnings or an amount that Ms. Munn sought to have

awarded for the two-year period.

       Several legal obstacles to Ms. Munn's request for back support were not addressed

by her in the trial court or on appeal. Unlike the Uniform Parentage Act of2002 (chapter

26.26 RCW) the dissolution of marriage act (chapter 26.09 RCW) does not authorize an

award of back child support. 1 WASH. STATE BAR Ass 'N, WASHINGTON FAMILY LA W

DESKBOOK § 28.2(2)(a), at 28-8 (2d ed. & 2012 Supp.); cf RCW 26.26.130(3) (under the

parentage act (unlike the marriage dissolution act) the judgment and order shall contain

"the extent of any liability for past support furnished to the child"). In the case of

marriage dissolution, the superior court may use its equitable powers to create a child

support obligation after the need for support arises, but such a result has been allowed

rarely and only in cases where the decree is silent as to support. In re Marriage of

Shoemaker, 128 Wn.2d 116, 123,904 P.2d 1150 (1995). When it does exist, the right of

equitable contribution is limited to an amount equal to one-half of actual expenditures on

behalf ofthe child. Id.

       Moreover, if the superior court did deny Ms. Munn's request for temporary child

support as the undisputed testimony at trial suggests, then that order (or those orders)

were subject to appeal but not to retroactive modification. RCW 26.09 .170( 1) establishes

                                              7

No. 31025-6-111
In re Marriage ofMunn


the conditions for modifying a child support order and states, in relevant part, that

"[e]xcept as otherwise provided ... the provisions of any decree respecting maintenance

or support may be modified: (a) Only as to installments accruing subsequent to the

petition for modification." In Shoemaker, 128 Wn.2d 116, the Washington Supreme

Court held that if an order has previously been entered that excuses a parent from paying

child support, then RCW 26.09 .170( 1) bars a superior court from imposing a child

support obligation retroactively, even if the facts would have supported imposing that

obligation prospectively at an earlier time. Since the trial court is required by chapter

26.19 RCW to apply the same standards in its temporary and final orders for support,

denial of temporary support forecloses retroactive modification.

       Ms. Munn contends the trial court entered insufficient findings in support of its

decision not to award back child support. Under RCW 26.19.035(2), a child support

order must "be supported by written findings of fact upon which the support

determination is based" and must "include reasons for any deviation from the standard

calculation and reasons for denial of a party's request for deviation from the standard

calculation." The trial court entered extensive and sufficient findings on the basis for the

parties' prospective child support obligations. While the court entered only one finding

with respect to back child support, we conclude that, while spare, it was sufficient.

       We do not know why temporary support was not ordered-whether it was because

the trial court concluded that Mr. Munn was temporarily in a negative earning situation,

                                              8

r

     No. 31025-6-111
     In re Marriage ofMunn


     whether it concluded that the amounts he was paying toward expenses of the children and

     Ms. Munn were a reasonable substitute for support, or whether it was for some other

     reason. What is clear is that temporary support was not ordered pendente lite when

     requested, and that at trial, Ms. Munn never presented any request, evidence, or argument

     as to why child support for that period should or could be revisited. On the record before

     the court, its finding that "[nJo back child support is owed at this time" was supported by

     the only evidence in the record that was relevant: child support for the period prior to trial

     had been requested and denied. There is nothing more the court could have been

     expected to say.

            Affirmed.

            A majority of the panel has determined that 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.


                                                      dt
                                                    SiddOWay,~'               I



     WE CONCUR:


      ~
     Fearin~
             s·         I




     Lawrence-Berrey, J.

                                                   9

