                                                                          FILED
                                                                        APRIL 2, 2019
                                                                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 the Matter of the Marriage of              )
                                               )         No. 35200-5-III
 BARBARA DANNENBRING,                          )
                                               )
                      Respondent,              )
                                               )
        and                                    )         UNPUBLISHED OPINION
                                               )
 SCOTT D. DANNENBRING,                         )
                                               )
                      Appellant.               )

       SIDDOWAY, J. — The Stevens County Superior Court entered an order modifying

Scott Dannenbring’s obligation to pay spousal maintenance, reducing its amount but

extending its duration. He appeals, challenging the trial court’s denial of his motion to

dismiss the modification request as time barred, and the modification order, which he

argues was an abuse of discretion. After harmonizing conflicting time frames for the

maintenance obligation appearing in the decree and a later order, we find the request for
No. 35200-5-III
In re Marriage of Dannenbring


modification to be timely. For that reason, and because we find no abuse of discretion by

the trial court in ordering the modification, we affirm.

                     FACTS AND PROCEDURAL BACKGROUND

       Barbara and Scott Dannenbring were divorced in January 2011 following a 29-

year marriage. Each received approximately 50 percent of the community property.

       After considering the factors provided by RCW 26.09.090, the trial court, Stevens

County Superior Court Judge Allen Nielson, ordered Scott1 to pay maintenance to

Barbara. Scott was employed as a certified registered nurse anesthetist, while Barbara

had been a stay-at-home mother. Barbara proposed to return to school to obtain her

master’s degree in English as a second language. Judge Nielson ordered maintenance to

begin at $3,500 a month, later decreasing to $1,000 a month. He explained that the two-

tiered maintenance award was just, because the higher initial amount “allowed [Barbara]

to finish her master’s degree and the next lower amount would assist her in her transition

from displaced homemaker to working professional.” In re Marriage of Dannenbring,

No. 32074-0-III, slip op. at 2 (Wash. Ct. App. Feb. 19, 2015) (unpublished), https://www

.courts.wa.gov/opinions/pdf/320740.unp.pdf.

       The time frame for the maintenance obligation was addressed in the decree of

dissolution, which stated in relevant part:


       1
       Because the parties share a common last name, we refer to them by their first
names. We intend no disrespect.

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      The husband shall pay $3,500.00 maintenance. Maintenance shall be paid
      semi monthly on the 1st and 15th of the month.
      Maintenance shall be at $3,500.00 per month for thirty (30) months,
      through April 30th, 2013, and then on May 1, 2013 the maintenance shall
      reduce to $1,000.00 per month for an additional thirty (30) months, through
      November 30, 2015.
      The first maintenance payment shall be due October 1, 2010.

Clerk’s Papers (CP) at 21. No one questioned at the time why the outside dates for

payment (October 1, 2010, through November 30, 2015) demarked a 62-month period,

while the provision otherwise referred to only two 30-month periods.

      In May 2013, around the time that maintenance payments to Barbara dropped to

$1,000 a month, she petitioned for modification. Her motion was heard and decided by

Judge Nielson. At the hearing on the motion, Barbara’s lawyer argued that Barbara had

completed her master’s degree early and made her best efforts to find permanent

employment, but things had not turned out as hoped. Report of Proceedings (RP) at 5.

She continued:

      [M]y client is not asking right now that she be awarded lifetime
      maintenance. She’s asking that the maintenance be reinstated at $3,500 –
      which is probably 25% of Mr. Dannenbring’s true net income – for two
      years to see if she can become employed. At that point she’s going to be
      58. So whether or not she’s able to find employment, who knows. But we
      do know she hasn’t been able to find employment now.

RP at 7.

      Scott’s lawyer argued that because Barbara identified “no new facts or

circumstances,” the court could not modify its previous ruling. RP at 11. Projecting that


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Barbara would be back to court in a few years if not fully employed, the lawyer argued

that Scott “[will] never have a [full] sleeping night knowing that his divorce will never be

final.” RP at 11.

       After hearing from both lawyers, Judge Nielson announced:

       I don’t agree that the $3,500 should continue for the remaining 30 months,
       but I do believe that it should be at $2,500. In other words, a $1,500
       increase over the $1,000 that I had ordered. And I think with that
       additional $1,500 per month with the $1,000, that’s $2,500 in effect, that
       would then allow her to continue to live at the same level and continue in
       her efforts.

RP at 16. The judge expressed his reliance on Ovens v. Ovens, 61 Wn.2d 6, 376 P.2d 839

(1962) and Bowman v. Bowman, 77 Wn.2d 174, 459 P.2d 787 (1969). He characterized

Bowman as “close, very close to what I have here” in that Barbara, like respondent

Marjorie Bowman, had failed to become fully employed as expected “through no

substantial fault of [her own].” RP at 15; and see Bowman, 77 Wn.2d at 175-76 (where

“the anticipated situation of being fully self-supporting had not materialized, through no

substantial fault of respondent,” “[t]he court found that this was a material change of

conditions and that she was, therefore, entitled to the continuation of alimony”).

       In announcing his oral ruling, Judge Nielson stated, “[T]he $3,500 would stop as I

had scheduled and then it would not revert to $1,000 but rather to $2,500.” RP at 17. He

added that Scott need not worry about returning to court in a couple of years, because the




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court would “put language in [the] order that there will be no further increases in the

spousal support.” RP at 16-17.

       When it was brought to Judge Nielson’s attention that the maintenance obligation

had already dropped to $1,000 and his ruling would require Scott to make up shortfalls in

prior months (the hearing took place on July 30, 2013), the judge modified his ruling,

stating, “I’ll back date it to June 1st, then . . . [t]hat would be midway between the

petition and today.” RP at 18.

       The written order entered following the hearing included the following findings

about the timing of the modified maintenance:

       9.     The way the Decree reads, Barbara[‘s] spousal maintenance was at
              $3500.00 for thirty (30) months (2.5 years) and then $1000.00 for an
              additional thirty (30) months (2.5 years).
       10.    Therefore while the Court does not agree that the spousal
              maintenance should remain at $3500.00 per month for the second
              thirty (30) month period, it should also not be at $1000.00 for the
              second thirty (30) month period.
       11.    The court will order that the spousal maintenance will be increased
              from $1000.00 to $2500.00 per month for this second thirty (30)
              month period.
       12.    The Court also finds good cause to order that there will be no further
              increases in spousal support and the Court forecloses that possibility.
              When [Barbara’s] spousal maintenance ends at the end of the second
              thirty (30) month period, it will end finally without ability for [her]
              to seek another modification.
       ....
       14.    The spousal support increase to $2500.00 from $1000.00 per month
              will take effect June 1, 2013.


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CP at 30. The order was presented by Barbara’s lawyer and was signed by Scott’s

lawyer, indicating, “Approved for entry: Notice of presentation waived.” CP at 31.

       Both parties appealed. In an unpublished decision, this court rejected Scott’s

argument that the trial court erred in modifying maintenance and rejected Barbara’s

argument that the trial court erred in denying her an award of attorney fees.

Dannenbring, No. 32074-0-III, slip op. at 7, 10. Barbara also challenged the provision of

the order barring her from bringing future modification petitions, which Scott conceded

was error. This court’s unpublished decision observed that “[Barbara] argues a good

chance exists she will not become self-supporting given her age and lack of work

history,” and responded:

       If Ms. Dannenbring finds she still needs maintenance after the fixed term
       ends, she can petition for further modification. See Ovens[, 61 Wn.2d at 9],
       (stating continuance of maintenance can be reviewed at the end of the fixed
       period if there is a showing of need and “the evidentiary expectation upon
       which the trial judge premised his finding on has not, in fact,
       materialized”).

Dannenbring, No. 32074-0-III, slip op. at 7, 8-9.

       On October 30, 2015, eight months after this court’s unpublished decision was

filed and a month before the November 30, 2015 maintenance termination date identified

in the decree, Barbara petitioned for another modification of maintenance. She asserted a

continuing need for maintenance through the time she would be able to retire. Scott

responded with a motion to dismiss her petition, arguing that the court lacked jurisdiction


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to consider it because the last maintenance payment he owed Barbara was paid on

September 15, 2015. He argued that “[a] modification proceeding must be commenced

before the termination of the original maintenance award or the court loses jurisdiction

over the maintenance issue.” CP at 43 (citing Brown v. Brown, 8 Wn. App. 528, 507

P.2d 157 (1973)). His declaration filed in support of the motion characterized the

decree’s November 30, 2015 termination date as a “scrivener’s error[ ].” CP at 56.

       Barbara’s petition and Scott’s motion were again heard by Judge Nielson. In

refusing to dismiss Barbara’s petition, he attached importance to several findings made

when modifying maintenance in 2013. Referring to those prior findings as “the

Findings,” he made the following further findings:

              D.     The Petition for Modification of Spousal Maintenance and
       Post-secondary Child Support was filed on October 30, 2015. The Petition
       was filed within the fixed term set in both the Decree and later in the
       Findings. The Decree had maintenance payments run “through November
       30, 2015.”
               E.    In the Findings, which modified the Decree, the fixed term
       was put at 30 months which “took effect June 1, 2013” and thus terminated
       at the end of November, 2015. This is consistent with the best reading of
       the Decree, and again the result of the modification. The Court of Appeals
       invited possible modification “at the end of the fixed period,” namely at the
       end of November, 2015. The Petition was, in fact, filed on October 30,
       2015. This reading serves the Court’s intent of allowing the Petitioner to
       determine if she is able to be financially independent.

CP at 154-55 (footnote omitted).




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       Judge Nielson later heard and granted Barbara’s petition to modify the

maintenance obligation. He ordered Scott to pay maintenance reduced to $2,000 a

month, but continuing until Barbara reaches age 68 and is eligible for social security.

       Scott appeals.

                                        ANALYSIS

       Scott appeals the trial court’s order denying his motion to dismiss Barbara’s

modification petition and its subsequent order modifying the maintenance obligation. We

address his assignments of error in that order.

I.     A REASONABLE HARMONIZATION OF THE CONFLICTING PROVISIONS OF THE
       DECREE SUPPORTS AN OBLIGATION THAT CONTINUED THROUGH NOVEMBER 30,
       2015. THE MODIFICATION PETITION WAS THEREFORE TIMELY.

       In Washington, “[o]nce final payment has been made pursuant to an

alimony/maintenance provision from which no appeal is taken, the court may not

reinstate that alimony obligation under the auspices that it amounts to a modification of

the decree based upon changed circumstances.” In re Marriage of Mason, 40 Wn. App.

450, 457, 698 P.2d 1104 (1985). The court’s lack of authority has sometimes been

characterized as a lack of jurisdiction to modify the maintenance award. See id.; Brown,

8 Wn. App. at 529. The issue presented by Scott’s motion to dismiss Barbara’s petition

was whether his liability to pay maintenance existed at the time she filed the petition.




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Whether it existed at that time turns on the meaning of the trial court’s decree, as

modified by its 2013 order.2

       In ruling on Scott’s motion to dismiss, the trial court had the authority to clarify,

but not to modify, its decree and 2013 order. “A trial court does not have the authority to

modify even its own decree in the absence of conditions justifying the reopening of the

judgment.” In re Marriage of Thompson, 97 Wn. App. 873, 878, 988 P.2d 499 (1999).

Absent authority to modify, an ambiguous decree may only be clarified. Id. “A decree is

modified when rights given to one party are extended beyond the scope originally

intended, or reduced. A clarification, on the other hand, is merely a definition of rights

already given, spelling them out more completely if necessary.” Id. (citing Rivard v.

Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969)).

       The construction of a dissolution decree or other order is a question of law, which

we review de novo. Id. at 877. In construing a trial court decree or order, we seek to

ascertain the intention of the court that entered it by using the rules of construction

applicable to statutes and contracts. In re Marriage of Gimlett, 95 Wn.2d 699, 704-05,

629 P.2d 450 (1981). In the contract realm, where provisions of writings are not merely




       2
         Judge Nielson found the liability could have existed at that time for an alternative
reason: that as a result of earlier shortfalls, an additional $3,000 remained owing after
what Scott believed was his final, September 15, 2015 payment. This is disputed,
however, and the record on review does not provide clear support for the finding.

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ambiguous but actually conflict, we construe them so as to harmonize them with one

another. Farmers Ins. Co. of Wash. v. USF&G Co., 13 Wn. App. 836, 840, 537 P.2d 839

(1975). Accordingly, “provisions in a judgment that are seemingly inconsistent will be

harmonized if possible.” Callan v. Callan, 2 Wn. App. 446, 449, 468 P.2d 456 (1970).

“It is not to be assumed that a court intended to enter a judgment with contradictory

provisions and thus impair the legal operation and effect of so formal a document.” Id.

In resolving conflicting provisions, a more recent order that was within the court’s

authority to enter takes priority over an earlier order. Cf. City of Spokane v. Rothwell,

166 Wn.2d 872, 877, 215 P.3d 162 (2009) (in construing irreconcilably conflicting

statutes, a more recent statute takes priority over an older statute).

       The decree entered in 2011 is internally inconsistent in referring to two 30-month

periods for payment but identifying starting and ending dates that demark a 62-month

period. The 2013 modification order tips the balance in favor of finding a 62-month

obligation ending on November 30, 2015, as the trial court concluded. It tips the balance

by providing that “spousal maintenance will be increased from $1000.00 to $2500.00 per

month for this second thirty (30) month period” and that “the spousal support increase to

$2500.00 from $1000.00 per month will take effect June 1, 2013.” CP at 30. Reading

those express provisions together, an increase to a $2,500.00 monthly maintenance

obligation that “take[s] effect June 1, 2013,” and lasts for the “second thirty (30) month



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period” will only be satisfied if $2,500.00 is paid each month through November 30,

2015.

        Thus read, the 2013 modification order cures the decree’s inconsistency by

effectively taking the two months in which Scott paid only $1,000 (April and May 2013)

out of the second 30-month period. It was the trial court’s prerogative in considering the

modification motion to ignore those relatively inconsequential payments and create a 30-

month period of $2,500 payments that would begin on June 1, 2013. Ignoring the April

and May 2013 payments does not offend any provision of the 2013 order. It is not

irreconcilable with anything the court said during the modification hearing or with what

the court was seeking to accomplish. It is a reasonable harmonization of conflicting

provisions in the decree and 2013 modification order.

        Scott makes no attempt to harmonize the conflicting provisions. He baldly asserts

that the reference to “November 30, 2015,” in the decree was a “scrivener’s error”

without considering that the “30 month” references might themselves have been the error.

He simply insists that we resolve the inconsistency in his favor. Because the trial court’s

construction provides a basis for harmonizing the conflicting provisions and Scott does

not, we affirm the trial court.




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II.    THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY MODIFYING THE
       MAINTENANCE OBLIGATION.

       Scott contends the trial court abused its discretion in modifying the maintenance

obligation by failing to apply the general statutory requirement that the party seeking

modification show “a substantial change of circumstances.” RCW 26.09.170(1)(b). He

asks us to limit the application of Ovens and Bowman to cases in which the decree or

maintenance order being modified explicitly stated the expectation that has not come to

pass. He additionally argues that the modification is unjust because it leaves Barbara

with a monthly surplus while he will face a monthly shortfall.

                     “Substantial change of circumstances” finding

       This court’s unpublished decision in the prior appeal summarizes the requirement

that a party seeking modification show a substantial change of circumstances, and how

the showing can be satisfied by the party’s inability to become self-supporting through no

fault of her own:

               Maintenance awards can only be modified upon a showing of a
       substantial change in circumstances not within the parties’ contemplation
       at the time of the dissolution decree. [In re Marriage of Spreen, 107 Wn.
       App. 341,] 347[, 28 P.3d 769 (2001)]; see also RCW 26.09.170(1). “The
       phrase ‘change in circumstances’ refers to the financial ability of the
       obligor spouse to pay vis-à-vis the necessities of the other spouse.” In re
       Marriage of Ochsner, 47 Wn. App. 520, 524, 736 P.2d 292 (1987).
       Regarding the financial ability of the obligor spouse, “a former wife may
       not obtain additional alimony on the theory that such is in keeping with her
       former husband’s present station in life.” Gordon v. Gordon, 44 Wn.2d
       222, 228, 266 P.2d 786 (1954). We review a trial court’s change in
       circumstances determination in a maintenance modification for an abuse of

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       discretion. Ochsner, 47 Wn. App. at 524-25. A trial court abuses its
       discretion when its decision is entered on manifestly unreasonable grounds
       or for untenable reasons. Id. at 525.
               In Bowman v. Bowman, 77 Wn.2d 174, 459 P.2d 787 (1969), the
       court upheld a substantial change in circumstances determination. The trial
       court believed the wife would eventually become self-supporting and
       awarded her maintenance for two years. Id. at 175. During these two
       years, the wife received the equivalent of a high school diploma and
       enrolled in vocational school. Id. However, the wife was not in good
       health and was limited to part-time work. Id. Before the two-year period
       ended, the wife petitioned to modify her maintenance. Id. The trial court
       granted the wife’s petition, finding “the anticipated situation of [the wife]
       being fully self-supporting had not materialized, through no substantial
       fault of [the wife].” Id. The Bowman court upheld the modification
       because “[t]he primary purpose of the payment of support . . . for a period
       of 2 years was to enable [the wife] to become self-supporting by the end of
       that period through additional training and work experience.” Id. at 176.

Dannenbring, No. 32074-0-III, slip op. at 4-5 (most alterations in original).

       At oral argument of the present appeal, Scott argued that Oven and Bowman, both

decisions from the 1960s, were abrogated by adoption of the 1973 “Dissolution of

Marriage Act,” LAWS OF 1973, SUBSTITUTE H.B. 392, 43rd Leg., 1st Ex. Sess., ch. 157.

Wash. Court of Appeals oral argument, In re Marriage of Dannenbring, No. 35200-5-III

(Oct. 23, 2018) at 8 min., 19 sec. through 8 min., 24 sec. (on file with court). He pointed

out that before the 1973 legislation, Washington statutes provided that an “alimony”

award “‘may be modified, altered and revised by the Court from time to time as

circumstances may require.’” Berry v. Berry, 50 Wn.2d 158, 164, 310 P.2d 223 (1957)

(emphasis added) (citing LAWS OF 1949, ch. 215, § 11, codified at former RCW

26.08.110). He argued that because Ovens and Bowman were decided under this earlier,

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more lenient standard, courts have erred by continuing to rely on the two decisions as

authority after the legislature enacted the “substantial change in circumstances” standard

beginning in 1973.

       The Supreme Court’s 1980 decision in Wagner v. Wagner, 95 Wn.2d 94, 621 P.2d

1279, gives the lie to his argument. As explained in Wagner, a requirement that alimony

may ordinarily be modified “only upon the showing of a substantial change of

circumstances that was not within the contemplation of the parties at the time the decree

was entered” was added to former RCW 26.08.110 by “judicial overlay,” citing Lambert

v. Lambert, 66 Wn.2d 503, 508-10, 403 P.2d 664 (1965) and Crosetto v. Crosetto, 65

Wn.2d 366, 397 P.2d 418 (1964). Wagner, 95 Wn.2d at 98. In a footnote, the Wagner

court observed that the 1973 legislation did not add a new requirement; rather, it

“incorporated the judicial overlay.” Id.at n.1. While Ovens predated Lambert and

Crosetto, Bowman followed adoption of the judicial overlay. It even speaks of Marjorie

Bowman’s “material change of conditions.” Bowman, 77 Wn.2d at 175.

       Scott’s second argument—that modification should not be available because Judge

Nielson’s 2013 order did not explicitly set forth his expectations—is also unpersuasive.

To begin with, when the modification request is presented to the same judge who entered

the existing maintenance obligation, the judge may be able to recall his or her earlier

expectations, as Judge Nielson did here. We trust a trial court to be an honest reporter of



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those expectations even if they were not spelled out in the prior order—a “spelling out”

Washington statutes do not require.

       Moreover, matters Judge Nielson was required to consider in setting maintenance

in 2013 make it likely that he expected professional advancement for Barbara by

November 30, 2015, and a corresponding improvement in her financial self-sufficiency.

The purpose of maintenance is to support a spouse until he or she is able to become self-

supporting, In re Marriage of Luckey, 73 Wn. App. 201, 209, 868 P.2d 189 (1994).3

This court recognized in its earlier unpublished opinion that affording Barbara more time

to become fully self-supporting was the goal of the trial court’s 2013 modification order,4

and accordingly, that “[i]f Ms. Dannenbring finds she still needs maintenance after the



       3
        If one spouse will need support for an extended period of time, a trial court
may instead “choose[ ] a disproportionate division of the property in lieu” of ordering
maintenance. In re Marriage of Estes, 84 Wn. App. 586, 593, 929 P.2d 500 (1997).
“The trial court may properly consider the property division when determining
maintenance, and may consider maintenance in making an equitable division of the
property.” Id. (citing In re Marriage of Rink, 18 Wn. App. 549, 552-53, 571 P.2d 210
(1977). Here, the property was evenly divided.
       4
           This court said the following about the 2013 modification hearing:
                The trial court continued to reason Ms. Dannenbring can work and
       support herself independently in the modification proceeding. While Ms.
       Dannenbring is in her mid-50s and has limited work experience, she now
       has a master’s degree in English as a second language. She was awarded
       50 percent of the community assets in the dissolution and virtually no
       liabilities. The court modified her maintenance to suit Ms. Dannenbring’s
       current needs while giving her additional time to become self-supporting.
Dannenbring, No. 32074-0-III, slip op. at 8 (emphasis added).

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fixed term ends, she can petition for further modification.” Dannenbring, No. 32074-0-

III, slip op. at 8. It is law of the case. The fact that she did not achieve the goal is a

substantial change in circumstances authorizing a further modification of maintenance.

       For someone in their 50s who has been out of the workplace for decades,

predicting when they are likely (if at all) to become self-supporting is fraught with

uncertainty. As long as the party needing maintenance has acted in good faith and failed

to become self-supporting through no fault of her own, it does not matter whether, at the

time of the earlier maintenance award, the parties and the court felt sure about the

recipient’s prospect for success, or recognized a real possibility of failure. What matters

is that the duration of the prior maintenance award was in fact predicated (confidently or

with caution) on the ability of the party to become self-supporting during the period of

that award.

              No abuse of discretion in fixing the maintenance amount is shown

       This court’s unpublished decision in the prior appeal summarizes the matters to be

considered by the trial court in setting the amount of maintenance:

              Once a court finds modification is needed, the nonexclusive list of
       factors seen in RCW 26.09.090 must be considered in determining the
       amount of maintenance. These factors include the financial resources of
       the spouse seeking maintenance, the standard of living established during
       the marriage, the length of the marriage, the physical condition of the
       spouse seeking maintenance, the time needed for the spouse seeking
       maintenance to find employment, and the ability of the spouse from whom
       maintenance is sought to meet the needs of both spouses. RCW 26.09.090.
       “[T]he only limitation placed upon the trial court’s ability to award

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      maintenance is that the amount and duration, considering all relevant
      factors, be just.” In re Marriage of Washburn, 101 Wn.2d 168, 178, 677
      P.2d 152 (1984); see also RCW 26.09.090. Calculation of what is
      reasonable in terms of amount and length of time before maintenance
      terminates depends on the facts and circumstances of each particular case.
      See Spreen, 107 Wn. App. at 348.

Dannenbring, No. 32074-0-III, slip op. at 5 (alteration in original). We review the award

of maintenance for abuse of discretion. Washburn, 101 Wn.2d at 179.

      Among matters found by Judge Nielson in modifying maintenance to a reduced

amount but a longer duration were the following:

    Since the original maintenance award and more particularly since the 2013
     modification, Barbara’s monthly income “has seen only a modest recent increase”
     and she has more monthly expenses than monthly income; CP at 409;

    Barbara has $116,561 in available assets, mostly bank deposits, and she uses the
     bank deposits to make ends meet;

    In July, 2015 she underwent a total knee replacement and for 4-5 months was
     unable to work and, again, used her bank deposits;

    She rents a modest apartment in Seattle and drives the car she purchased from
     Scott in 2011 that was rear-ended and has yet to be fully repaired;

    She is 59 years old, looks ahead to only a small state teacher’s pension and little
     social security, making the dwindling bank deposits all the more important;

    By contrast, Scott—although also reporting monthly expenses that exceed
     income—had steadily increasing income that at the time of the court’s decision
     was $13,992 a month as compared to Barbara’s income of $2,800 a month;




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    Scott owns two homes: one in Enterprise, Oregon, his equity in which was not
     disclosed; and the former family home in Colville, Washington, now a “‘second
     home rental,’” with an estimated equity of $230,715;5 CP at 410; and

    While Scott is paying substantial debt service on what he characterizes as
     educational costs for the couple’s children, “the Total Loan Balance, without more
     documentation, is disproportionate to the students’ education costs.” CP at 411.

       Scott argues that the court’s order is manifestly unreasonable because after taking

the required payments into consideration, Barbara will be left with positive cash flow,

while he faces monthly deficits. Yet at the time of the 2015 modification request, Scott

took home $13,992.00 in earnings a month while Barbara’s monthly take-home was

$2,800.00. She lived in Seattle on monthly expenses of $3,359.75, while he lived in

Enterprise, Oregon, on monthly expenses of $14,647.96. Even after subtracting the debt

service he attributes to his children’s postsecondary education expenses (the amount of

which Judge Nielson questioned), Scott’s monthly expenses are more than three times the

amount of Barbara’s monthly expenses. In applying the factors to be considered in

setting maintenance, what is relevant is how parties could handle their money, not how

they do handle their money. See RCW 26.09.090(1)(a), (f) (identifying, as relevant, the

parties’ “ability” to meet their needs).




       5
           Based on a mortgage balance of $220,285 and a listing showing $450,000. CP at
410.



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       Judge Nielson’s conclusions of law B, C, and D support the maintenance award.

Scott challenges each of them. Conclusion B provides:

       The goal was for Barbara . . . to become fully self-supporting—that goal
       has yet to be realized. And, Scott . . . has the financial ability to help pay
       for the necessities of his former spouse.

CP at 411 (internal citations omitted). Scott contests the first statement. He argues it

does not follow from the earlier hearing. As observed above, however, it is law of the

case, recognized in this court’s 2015 opinion, that the goal was for Barbara to become

self-supporting. That “the goal has yet to be realized” is supported by the trial court’s

findings that Barbara has $4,068 in monthly expenses and $2,800 in monthly income, that

she uses her bank deposits to make ends meet, and that she looks ahead to only a small

state teacher’s pension and little social security, making the dwindling bank deposits all

the more important.6

       Scott argues that evidence does not support his ability to pay, since his expenses

exceed his income. But again, ability to pay is determined with reference to how a party

could be using his money, not how he is using it.

       Conclusion C provides:



       6
        Scott assigns error to some of these findings, but only on the basis that the
evidence in support was Barbara’s testimony rather than bank records showing how
deposits were used. Br. of Appellant at 28. Barbara’s testimony was admissible
evidence. We do not redetermine credibility or reweigh evidence on review. E.g., City of
Sunnyside v. Gonzalez, 188 Wn.2d 600, 612, 398 P.3d 1078 (2017).

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No. 35200-5-III
In re Marriage of Dannenbring


       The Court did not contemplate that Barbara . . . , in 2016-2017, would have
       to use her retirement, namely her bank deposits, in order to meet monthly
       expenses. And, it was not contemplated that Scott . . . would continue to
       have increased income and substantial property holdings. These make for a
       substantial change in circumstances.

CP at 411-12. Scott argues that the first statement (which we deem a finding, not a

conclusion) does not follow from the earlier hearing. Here again, it is law of the case that

in entering the 2013 modification order, Judge Nielson expected that it would give

Barbara time to become self-supporting. The second statement is not necessary to

support the maintenance award.

       Conclusion D provides:

       Barbara . . . has limited financial resources. She is only now verging on
       full-time employment as an English Second Language teacher. The
       standard of living of Barbara . . . , since her separation and then dissolution,
       has gradually deteriorated. She was married for 29 years, a long-term
       marriage. She finds herself eight years short of Social Security. [Scott] has
       the net income to not only meet his needs, but also to provide a reasonable
       maintenance. Barbara . . . is $1,200 or $1,300 [short] of meeting [her]
       monthly expenses and other bills. Further, she needs a reliable car. And,
       she needs this help to avoid depleting her retirement funds. This need will
       continue even when she is able to work full-time. The reasonable amount
       of $2,000 a month starting May 5, 2016, and the 5th of each following
       month. The obligation shall continue until Barbara . . . turns 68 years old
       and is eligible for Social Security.

CP at 412 (footnote omitted) (internal citations omitted). Scott disputes the statement

that Barbara’s standard of living has gradually deteriorated, arguing that her income has

increased over time. He disputes the identification of Barbara as having a monthly

shortfall, arguing that she has cash assets she could use to pay off debts.

                                             20
No. 35200-5-III
In re Marriage of Dannenbring


       Deterioration in Barbara's standard of living is supported by the finding that she is

required to use dwindling bank deposits to make ends meet and has a car that she has yet

to fully repair. That she has a $1,200 to $1,300 monthly shortfall is supported by the

court's finding that she has $4,068 in monthly expenses and $2,800 in monthly income.

       Since the trial court's conclusions support the maintenance modification and the

findings of fact support the conclusions, the modification is affirmed. 7

       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.


                                                   1-;~~r 6}-
                                                  Siddoway, J.

WE CONCUR:




Pennell, A.CJ.



       7 A motion to extend the time to file an attorney fee statement for Barbara was
referred to the panel for decision. We grant the motion to extend time but note that the
materials submitted do not meet the requirements of RCW 26.09 .140 and RAP 18.1 (c ).
We deny the request for an award of fees on appeal.

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