                                                                                                                     F11 ED
                                                                                                             COURT
                                                                                                                     A
                                                                                                                     OF -Pi ALS
                                                                                                        2013 JUL 16
                                                                                                                         All 8.4 4
      IN THE COURT OF APPEALS OF THE STATE OF WASHIN ,
                                                    DIVISION II                                         BY.
                                                                                                                 C1 pU
In re the Marriage of:                                                                No. 42705 2 II
                                                                                                - -


MARK WILLIAM STOHR,

                                        Appellant,



HEIDI RIE STOHR,                                                                UNPUBLISHED OPINION




           PENOYAR, J. — Mark Stohr appeals the trial court's order modifying his maintenance

obligation     to Heidi Stohr.        He argues that the trial court erred by modifying the maintenance

formula in a manner that ultimately increased his maintenance obligation despite the trial court's

finding     that he had shown           a   substantial change in circumstances.             Because the trial court


modified the payments to account for fluctuations in Mark's'income, the increase resulted from
Mark's own suggestion that the parties split his commissions, and the amounts:: 'are just in
                                                                              set
                                                       and                      financial situations,        affirm.   We
light of the parties' long term marriage
                            -                                      respective                           we




remand only for the trial court to clarify that the modification ordered only affects payments

subsequent to Mark's motion to modify.

                                                            FACTS


           On December 31, 2008, the trial court entered a decree dissolving Heidi and Mark's 16-

year      marriage. At the time of dissolution, Heidi had been out of the work force and was

homeschooling        one   of their children.       The initial decree provided that Mark would pay Heidi

maintenance through June 2012 and that he would pay child support for their two teenage


1
    For   clarity, we refer   to   the Stohrs   by their   first   names.
42705 2 II
      - -



children. The decree set Mark's yearly gross income at $
                                                       200, 00, or $ 667 per month, and
                                                          0        16,

imputed $ , in net monthly income to Heidi starting July 1, 2009. The decree fixed payment
        2619

amounts for each year that payments were required and decreased maintenance payments over

time.


        In April and May 2009, Mark paid only part of the $6, he owed Heidi for
                                                            000

maintenance and child support. In May 2009, Mark moved to modify his maintenance obligation

and Heidi filed a contempt motion against Mark for the delinquent payments.

        The trial court held a hearing on the motion to modify and the contempt motion on July 1,

2009.   Mark appeared pro se and argued that his maintenance payments should be reduced

because his income was partly based on commission and his sales were down because of the

economy. He asked that the court reduce his maintenance payments to $
                                                                    500 per month, and he

offered to equally split his commissions with Heidi. The trial court agreed that Mark had shown

adequate cause to modify his maintenance payments.

        On June 17, 2011, the trial court entered an order modifying maintenance and child

support. The trial   court entered the order   nunc   pro tunc to June   5, 2009. The order reduced

Mark's imputed gross yearly income from $ 00, 00 to $ 000. This new amount was based on
                                        2 0         90,

Mark's guaranteed annual salary of 82, 00. Mark initially agreed that the $ 000 figure was
                                   $ 5                                    90,
fair. The order also reduced Heidi's imputed gross monthly income to $ 200. The order then
                                                                     2,

prescribed a new formula for calculating base maintenance payments. The formula required the

parties to equally split their monthly incomes after subtracting taxes, which the trial court


2
  There was a two year delay between the initial hearing and the date the trial court entered the
                   -
final order. Although the trial court issued a letter ruling modifying the maintenance formula on
September 25, 2009, the parties argued over the application and interpretation of the ruling, and
the trial court subsequently held multiple hearings before entering the final order.
                                                  2
42705 2 II
      - -




estimated at 15 percent for federal taxes and 9 percent for Oregon state taxes, and child support.

The order stated that this amount   was   nontaxable —meaning   Mark could not deduct it and Heidi

would not have to claim it    as    income —because   the trial court wanted to keep the parties'

incomes "equalized"and it had deducted taxes earlier in the calculation. Clerk's Papers (CP)at

146.


       The order also equally divided Mark's gross commissions and provided that these

payments were taxable—
                     meaning that Mark could deduct them and Heidi had to claim them as

income.' Additionally, the order extended maintenance payments through September 2012 to

make up for the reduction in the base maintenance payments.

       The modified maintenance formula resulted in base maintenance payments that were

lower than the payments ordered in the       original decree. However, in months where Mark

earned large commissions, the modified formula resulted in payments that were greater than the

payments ordered in the original decree.

       Mark filed a motion for reconsideration, asking the trial court to reconsider its

determination that the base payments were nontaxable, to limit maintenance to the amount

specified in the original decree, and to reconsider its "determination to equalize income between

the parties."CP at 205. The trial court denied his motion for reconsideration, reasoning that the




3
  Under the original decree, Mark's maintenance payments were set at $ 725 per month for the
                                                                     4,
first year; 4, for the second year; 4, for the third year; and $ 200 for the fourth year.
            $ 900                     $ 300                        3,
Under the order modifying maintenance, Mark's base maintenance payments those based on
                                                                           —
his $ 000 imputed incomewere set at $ 313 per month through June 2009; 1, from
     90,                      —            2,                                   $ 800
July through September 2009; 1734 from October 2009 through May 2010; 1472 for June
                              $ ,                                               $ ,
2010; and $ 666 from July 2010 through September 2012. The fluctuations in payments under
           1,
the order modifying maintenance are due to changes in child support and taxes after Mark moved
to Oregon.
                                                  3
42705 2 II
      - -



modifications were based on his previous request to accommodate the fluctuations in his income. .

Mark appeals.

                                          ANALYSIS


I.     STANDARD OF REVIEW


       We review a trial court's order on a motion to modify to determine if the decision is

manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of Ochsner,

47 Wn.   App. 520,    524 25, 736 P. d 292 ( 1987).
                          -        2                       The trial court may modify spousal

maintenance when a party shows a substantial change in circumstances not within the parties'

contemplation   when the dissolution decree was entered.    Ochsner; 47 Wn. App. at 524; RCW

170(
26. 9.The phrase `change in circumstances' refers to the financial ability of the obligor
   1
   0 ). "

spouse to pay vis avis the necessities of the other spouse."Ochsner, 47 Wn. App. at 524. Once
                  - -

the trial court finds adequate cause to modify, the issues of amount and duration are the same as

for the original decree.   In re Marriage of Spreen, 107 Wn. App. 341, 347 n. , 28 P. d 769
                                                                            4       3

2001).

       RCW 26. 9.
           090(
              1 provides a nonexhaustive list of factors for the trial court to consider
              0 )

when awarding maintenance:

       a)The financial resources of the party seeking maintenance ... ;

       b)The time necessary to acquire sufficient education or training to enable the
       party seeking maintenance to find employment appropriate to his or her skill,
       interests, style of life,and other attendant circumstances;

       c)
        The standard of living established during the marriage ... ;

       d)The duration of the marriage ... ;

       e)The age, physical and emotional condition, and financial obligations of the
       spouse ...   seeking maintenance; and


                                                rd
42705 2 II
      - -



         The
       f) ability      of the spouse ...    from whom maintenance is sought to meet his or
       her needs and financial    obligations while meeting those of the spouse ... seeking
       maintenance.


RCW 26. 9.
    090(
       1 requires only that the amount and duration of the maintenance award be just
       0 )

in light of the relevant factors. Maintenance is not merely a means of providing bare necessities;

rather, it is a flexible tool by which the parties' standards of living may be equalized for an

appropriate period of time. In re Marriage of Washburn, 101 Wn. d 168, 179, 677 P. d 152
                                                              2                  2

1984)citing RCW 26. 9.
      (         c),
                090(
                   1)(
                   0 d)).                                               (

II.    INCREASED MAINTENANCE OBLIGATION


       Mark first argues that the trial court erred by ordering a formula that increased his

maintenance obligation despite finding that his income was reduced. Because the modification

addressed Mark's concern about his fluctuating income and because any increases in the

maintenance payments resulted from Mark's own suggestion that he split commissions with

Heidi, we hold that the trial court did not err modifying his maintenance obligation.
       The trial court's modification addressed Mark's concern about decreasing sales

commissions.   Mark's salary was the same at the time he moved to modify the maintenance

payments as it was when the trial court entered the original decree. The change in his financial
circumstances was due to fluctuations in his sales commissions. The trial court accounted for

4
  Heidi argues that we should decline review because Mark has failed to either comply with or
stay the order that he challenges on appeal. She cites Pike v. Pike, 24 Wn. d 735, 167 P. d 401
                                                                          2             2
1946), support
     to             her contention.     This   case   is   inapposite. In Pike, the court dismissed the
mother's appeal when she failed to comply with the initial custody decree. Although the decree .
gave custody to the father, the mother fled the state with the children, making execution of the
custody portion   of the decreeimpossible. Pike, 24 Wn. d at 737. The court compared the
                                                          2
mother's actions to a defendant in a criminal case who fled the jurisdiction while his appeal was
pending and dismissed her appeal unless she complied with the order and returned the children to
their father. Pike, 24 Wn. d at 742 43. Dismissal is not appropriate here because unlike in Pike,.
                         2          -
Mark did not flee the jurisdiction or make execution of the order impossible; he merely
disobeyed the trial court's order.
                                                      5
42705 2 II
      - -




these fluctuations by separating Mark's commissions from his base salary and calculating the

amount of maintenance due for each. The amount of maintenance due under his base salary was

less than half the amount due under the original decree. Therefore, if Mark had a month where

he did not earn any commissions, he would owe less under the modification order than under the

original    decree.   However, if Mark .earned any commissions, he was required to split them

equally with Heidi. Although this resulted in maintenance payments for some months that were

greater than payments under the original decree, this modification directly resulted from the trial

court addressing Mark's concern about his fluctuating income.

        Further, as Heidi states in her brief, Mark invited the court to equally split his

commissions. The doctrine of invited error prohibits a party from setting up an error at trial and

then complaining of it on appeal. Nania v. Pac. Nw. Bell Tel. Co.,Inc., Wn. App. 706, 709,
                                                                      60

806 P. d 787 (1991).Mark cannot offer to split his commissions and then complain on appeal
     2

after the trial court acts on his offer.


           Even if Mark had not offered to split his commissions with Heidi, the trial court's

decision was not error. Mark and Heidi had a long term marriage, during which Heidi left the
                                                   -

work force while Mark continued to earn a substantial living. The trial court repeatedly stated

that it created the modified formula in an effort to make the payments equitable for both parties.

By splitting Mark's commissions, the trial court equalized the parties' standards of living for a

few years until Heidi could train and re enter the work force.
                                         -

           Mark additionally argues that the trial court could not increase maintenance to Heidi

absent her     proving   a   substantial   change of circumstances. Mark is correct that, under RC.
                                                                                                  W

b),
170(
26. 9. trial court can modify maintenance "only upon a showing of a substantial
   1)(
   0  the

change of circumstances." Here, there was a showing of a substantial change of circumstances.
                                                       Con
42705 2 II
      - -



The trial court found that Mark had shown adequate cause to modify maintenance. Nothing in

the statute requires the trial court to adjust maintenance in favor of the moving party, and Mark
fails to   provide   any   authority mandating   such   a   requirement.
III.       ADDITIONAL ERRORS


           Mark next argues that the trial court committed additional errors when it (1)counted

some commissions twice, 2)used a 15 percent income tax bracket for computing his net
                        (

income, 3)
        ( determined that some of the maintenance was taxable and some was nontaxable, 4)
                                                                                       (

decreased Heidi's imputed income, and (5)failed to provide for a decrease in maintenance

payments each year. All of these alleged errors relate to the trial court's method of calculating

maintenance. RCW 26. 9.emphasizes the justness of the result rather than the method of
                 090
                   0

calculating maintenance. Washburn, 101 Wn. d
                                         2                      at 182.   Here, the award   was   just.   The trial


court's comments and findings are important in that they reflect the factors the trial court

considered, but they are not to be read like an accountant's balance sheet. The trial court equally

divided the parties' incomes and provided a flexible formula that accounted for fluctuations in
Mark's sales commissions. Additionally, the award was limited in durationabout four years —
                                                                         —

balancing Heidi's need to train and her ability to eventually return to the work force.

5
    Mark ignores the fact that his modified maintenance obligation for 2009 is less than his
obligation under the original decree. Had commissions remained low, the modification could
have favored him throughout the maintenance period.
6
    Division One of this court has stated that, once a basis for modification has been established,
the trial court may modify the decree in any respect. In re Marriage of Scanlon and Witrack,
109 Wn. App. 167, 171, 34 P. d 877 (2001).
                           3

7 This     argument is based on the trial court imputing a base salary to Mark of 90, 00 when his
                                                                                  $ 0
actual     salary was $ 500..But the trial court was using Mark's imputed salary rather than his
                       82,
actual     salary to compute the base maintenance payments. Additionally, Mark agreed that this
figure     was fair, and the $ 500 difference, which was also subject to division as a commission,
                             7,
was a relatively small adjustment to the trial court's overall formula.
                                                            7
42705 2 II
      - -



            Mark also argues that the trial court erred when it entered the modification order nunc pro

tune to      May 2009, which is when he first moved              to   modify .maintenance. Under RCW

170(
26. 9. trial court may modify maintenance installments accruing subsequent to the
   1 the
   0 ),

petition for modification. "
                           The trial court has discretion to make the modification effective upon

the   filing   of the   petition, ... the date of the order of modification, or any time in between."In re

Marriage ofPollard, 99 Wn. App. 48, 55, 991 P. d 1201 (2000).Mark filed a petition to modify
                                             2
maintenance       on    May 8, 2009. The trial court dated the order nunc pro tune to June 5, 2009;

however, the order also states that the modification is effective starting May 1, 2009. The trial

court had discretion to modify maintenance payments subsequent to Mark filing his petition for

modification on May 8. Therefore, the trial court erred by ordering that the modification was

effective starting May 1. We remand for the trial court to order an effective date no earlier than

May 8,2009.

IV.         ATTORNEY FEES


            Heidi requests attorney fees under RCW 26. 9.and RAP 18. . We have discretion to
                                                   140
                                                     0             1

order a party to pay for the cost of maintaining the appeal and attorney fees in addition to

statutory costs. RCW 26. 9. When awarding attorney fees, we examine the arguable merit
                     140.
                       0

of the issues and the parties' financial resources. In re Marriage of Griffin, 114 Wn. d 772, 779,
                                                                                     2

791 P. d 519 (1990).In order to receive attorney fees, the parties must file financial affidavits
     2

with the court          no   later than 10   days   before oral argument.   RAP   18. ( Here, Heidi's
                                                                                  c).
                                                                                    1

arguments have merit, and she timely filed a financial affidavit stating that her average gross

monthly income is $ 310 not including support payments and her total monthly expenses are
                  2, —                                 —

6, Mark has not submitted an affidavit challenging Heidi's need or his ability to pay. See
 757.

In    re   Marriage of Fox, 58     Wn. App. 935, 940, 795 P. d 1170 (1990)awarding attorney fees
                                                           2               (                           on
42705 2 II ,
      - -




appeal where one party demonstrated a need and the other party fails to submit a contravening

affidavit).We therefore award Heidi attorney fees and costs under RCW 26. 9.
                                                                      140.
                                                                        0

       We affirm and remand only for the trial court to clarify that the modification ordered only

affects payments subsequent to Mark's motion to modify.

       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

040,
2.6.it is so ordered.
 0




We concur:




       Worswick, C.
                  J




      l        .




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