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                                                                     MAY 9, 2017
!                                                            In the Office of the Clerk of Court
i                                                          WA State Court of Appeals, Division Ill
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              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                 DIVISION THREE

     In the Matter of the Marriage of               )         No. 34564-5-111
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     ROGER L. ALDRICH,                              )
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I                            Appellant,             )
                                                    )         UNPUBLISHED OPINION

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           and

     MARY BETH ALDRICH,
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1                            Respondent.            )
ll         PENNELL,   J. -    Roger Aldrich appeals the denial of a petition to modify a decree of
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l    spousal maintenance. Because Mr. Aldrich has submitted sufficient evidence of a change
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     in circumstances, we reverse the superior court's order and remand for reconsideration.



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l    No. 34564-5-III
     In Re Marriage ofAldrich

l                                              FACTS
1           Roger and Mary Beth Aldrich were married in April 1981 and separated in
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I    March 2008. A decree of dissolution was entered in June 2010.

            The 2010 dissolution decree awarded Ms. Aldrich $2,500 per month as lifetime

     spousal maintenance, an amount that constituted one-half of Mr. Aldrich's then gross

     salary. The court noted Mr. Aldrich was underemployed. To account for this

     circumstance, the court found that should Mr. Aldrich's income increase, he would be

     required to pay 3 5 percent of his additional gross earnings in maintenance, 1 less

     deductions for social security. The court's 2010 decree did not account for the possibility

     of a decrease in income. Neither party appealed the 2010 order.

            In February 2015, Mr. Aldrich's employer, the Center for Personal Protection and

     Safety (CPPS), notified him his annual salary would be decreased from $140,000 to

     $105,000. In May 2015, CPPS informed Mr. Aldrich his position had been eliminated

     and offered Mr. Aldrich a new position with an annual salary of $70,000. Mr. Aldrich

     accepted the new position, but CPPS also eliminated that position on August 1, 2015. At



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     the time CPPS eliminated his position, CPPS owed Mr. Aldrich approximately $90,000 in




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            The 2010 decree excluded various benefits which were separately apportioned to
l    Ms. Aldrich.

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No. 34564-5-111
In Re Marriage ofAldrich


back pay. Throughout this time, Mr. Aldrich continued to make the required payments to

Ms. Aldrich.

       On September 1, 2015, Mr. Aldrich filed a petition for support modification. In an

accompanying declaration he alleged: "I am no longer able to earn the income I once

earned nor am I able to comply with the maintenance provisions of the decree, as a

substantial change in circumstances has occurred since issuance of the decree." Clerk's

Papers (CP) at 41. Mr. Aldrich reached 68 years of age in December 2015. Throughout

several declarations filed in support of his petition, Mr. Aldrich stated: (1) he had sought

vocational assistance and discovered he was only capable of working as a security guard

for $10 per hour, (2) he had attended seminars and applied for jobs through WorkSource

Washington as well as at area schools and state agencies, (3) he had applied for

unemployment compensation, (4) the only employer who had need of his skills was the

United States Department of Defense, for whom he could not work unless he forfeited the

military and federal civil service retirement benefits he shares with Ms. Aldrich, and

(5) because of a lack of response to his job applications, he worked as an independent

contractor for CPPS in an attempt to preserve his remaining unemployment benefits and

to reduce the amount of money he had been withdrawing from savings to meet his

maintenance obligation. According to Mr. Aldrich's independent contractor agreement,



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     No. 34564-5-111
     In Re Marriage ofAldrich


     CPPS would pay him $1,000 per day per event on an "as Needed Basis" from




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     January 2016 through June 2016. CP at 168. Since CPPS eliminated his position, Mr.

,,   Aldrich averred he earned $20,500 in gross income but had only been paid $15,000.
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            In her own declaration filed on March 23, 2016, Ms. Aldrich alleged that Mr.

     Aldrich began making substantially more money after the decree was entered. She

     questioned Mr. Aldrich's motives for filing the petition, arguing he used the month after
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I    he lost his job at CPPS to build a case to modify maintenance instead of obtaining

     additional employment. She also claimed CPPS had Mr. Aldrich listed as a senior advisor

     on its website since August 2015.

            The financial information before the superior court commissioner at the time the

     petition for modification was heard included Mr. Aldrich's monthly after tax, after

     spousal maintenance payment income of $4,840.97, from which he was subtracting
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     $3,977.55 for his monthly living expenses. The sources of Mr. Aldrich's income included


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     his share of the monthly United States Air Force retirement pay and federal civil service

     annuity, social security benefits, and unemployment compensation. Ms. Aldrich's

     financial statement showed a total monthly net income of $6,618.34, from which she

     deducted her total monthly expenses of $6,512.11. Her sources of income included

     spousal maintenance, her share of Mr. Aldrich's Air Force retirement pay and federal
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No. 34564-5-111
In Re Marriage ofAldrich


civil service annuity, and her own social security benefits.

       The commissioner denied the petition for modification. Basing her findings

principally on the 2010 findings accompanying the decree of dissolution, the

commissioner found no substantial change in circumstances. Provided the need and

ability to pay standard was met, the commissioner awarded attorney fees and costs to Ms.

Aldrich. Mr. Aldrich appeals.

                                        ANALYSIS

Modification of lifetime spousal maintenance

       At the time of the parties' 2010 dissolution, the court awarded Ms. Aldrich lifetime

maintenance. This type of award is disfavored in Washington. In re Marriage of Coyle,

61 Wn. App. 653,657, 811 P.2d 244 (1991). In order to provide relief from unintended

hardships caused by lifetime maintenance, our laws allow for modification. See id. The

fact that a party chose not to appeal an initial maintenance award has no bearing on the

ability to seek modification.

       The statute permitting modification of a maintenance award is RCW 26.09.170(1).

This provision allows a court to "modify a maintenance award when the moving party

shows a substantial change in circumstances that the parties did not contemplate at the

time of the dissolution decree." In re Marriage ofSpreen, 107 Wn. App. 341, 346,


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No. 34564-5-III
In Re Marriage ofAldrich


28 P.3d 769 (2001). "The phrase 'change in circumstances' refers to the financial ability

of the obligor spouse to pay vis-a-vis the necessities of the other spouse." Id. (internal

quotation marks omitted) (quoting In re Marriage of Ochsner, 47 Wn. App. 520, 524,

736 P.2d 292 (1987)).

       We review a court's modification decision for abuse of discretion. In re Marriage

ofDrlik, 121 Wn. App. 269,274, 87 P.3d 1192 (2004). We will affirm the superior

court's decision so long as it rests on tenable grounds that are not manifestly

unreasonable. Oschner, 47 Wn. App. at 525. A decision is untenable if it is unsupported

by the record. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).

       The uncontroverted evidence before the superior court indicates Mr. Aldrich's

income has decreased significantly since the 2010 maintenance award. Mr. Aldrich

verified his change in circumstances and submitted financial information documenting his

current income and expenses. On its face, the information submitted by Mr. Aldrich

would appear sufficient to establish a change in circumstances. However, the superior

court commissioner appears to have rejected Mr. Aldrich's claims on the basis that his

reduction of income was not suffered in good faith. See, e.g., Lambert v. Lambert,

66 Wn.2d 503,510,403 P.2d 664 (1965).




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     In Re Marriage ofAldrich



j           We find no basis in the record for rejecting the veracity of Mr. Aldrich's claim of
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     changed circumstances. No evidence suggests Mr. Aldrich chose to quit his job or

I    engage in an underpaid professional venture. The evidence is that Mr. Aldrich's

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j    circumstances were forced on him by his employer and, since that time, Mr. Aldrich has

     attempted to maximize his economic prospects by seeking vocational assistance and

     obtaining contract work. Mr. Aldrich's efforts to continue in the workforce and remain

     current on his maintenance obligations are a strong indicator of good faith, especially

     given that he has reached the age where he can and should be permitted to consider

     retirement.

            Ms. Aldrich nevertheless contends that Mr. Aldrich's reduction in income is due to

     bad faith. She claims the witnesses Mr. Aldrich has relied on to support his modification

     petition were found not credible back in 2010 at the time of the original maintenance

     award. She also points out that Mr. Aldrich's name has appeared on the CPPS website,

     despite his claim that he was laid off. Neither contention is persuasive. Nothing in the

     record before this court suggests Mr. Aldrich's witnesses were previously found not

     credible. 2 Nor is there any information undercutting their current credibility. The




            2In support of her allegation, Ms. Aldrich cites only to her own declaration. Ms.
I    Aldrich's statement does not constitute evidence of the 2010 court findings.
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     No. 34564-5-III

I    In Re Marriage ofAldrich




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     existence of Mr. Aldrich's name on the company's website says nothing about Mr.

     Aldrich's present financial circumstances. The insinuation is that Mr. Aldrich and his

lt   former employer have engaged in some sort of fraud to hide his employment and income
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     so he will not have to pay maintenance. 3 The court will not jump to this type of
I    conclusion without significant nonspeculative evidence.

            Because Mr. Aldrich has submitted sufficient evidence of an unforeseen change in

     economic circumstances, we remand this matter to the superior court for modification

     proceedings. On remand, the superior court shall consider Mr. Aldrich's financial

l    resources in terms of his actual income, unless substantial evidence supports a finding


I    that he is voluntarily underemployed. In assessing this issue, the court may consider the


I    credibility of the parties' witnesses and other evidence. However, the fact that Mr.

     Aldrich was deemed underemployed in 2010 does not control whether he is in similar

     circumstances today.




            3 The commissioner noted it was "highly suspicious" that Mr. Aldrich was laid off
     instead of fired because, by being laid off, he retained the ability to collect unemployment
     benefits. CP at 218,242. We do not share this view. There is no indication Mr. Aldrich
     was fired for cause. The uncontroverted evidence before the court was that he was laid
     off due to economic cutbacks by his employer. This circumstance would appear to be
     fairly ordinary, not suspicious.

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I    Attorney fees and costs

            Mr. Aldrich next argues the commissioner erred in allowing Ms. Aldrich to note a
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     hearing to determine her award of attorney fees and costs following a need and ability to

     pay analysis. RCW 26.09.140 is the applicable statute. In light of the conclusion reached

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I    here, the commissioner will need to revisit this determination on remand.

                                          CONCLUSION



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            We remand this case to the superior court for reconsideration of Mr. Aldrich's

     petition. Each party shall bear its own appellate fees and costs.



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            A majority of the panel has determined 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.



                                               Pennell, J.
     WE CONCUR:




     Fearing, C.J.




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