                                                                                                                                      FILED
                                                                                                                            QI#, ZT OF APPEALS
           IN THE COURT OF APPEALS OF THE STATE OF WASHINGT&                                                                                 I S IM Il

                                                                                                                         20Ili JAN           2 AM 9: 17
                                                                DIVISION II
In re the Marriage of:                                                                                                   STA S       Imo'.
                                                                                                                                                Sij( N   ON
                                                                                                   No. 42959 -4 -II
VERNON RUSSELL BLANK II,                                                                                                   Y
                                                                                                                                 I EP " Y

                                                  Respondent,
              V.
                                                                                                                                              J
AMANDA L. BLANK,                                                                             UNPUBLISHED OPINION \,




              PENOYAR,              J. —       Amanda Blank and Russell Blank both appeal the trial court' s


modification of the child support order and the order on postsecondary educational support

                                                         Amandal


relating           to       their   dissolution.                      contends the trial court rested its                 decisions on


unreasonable                 or untenable       grounds       when   it: ( 1)   failed to include all Russell' s income when


calculating his               child support obligation, ( 2)         determined their younger son Ryan was not enrolled


in high        school          during      certain periods, (   3) did not make Russell pay his full share of their elder

son        Adam'        s    postsecondary       educational     expenses        at   the   University    of   Idaho, ( 4) ordered that


Ryan' s postsecondary costs be shared by Ryan, Amanda, and Russell in equal one third shares,

    5) -   failed to - include - Adam' s Sylvan -Learning - Center- expense in Russell' s --postsecondary - -

educational                 support obligation, and (         6) failed to      award   her    reasonable      attorney fees.   On cross


appeal Russell argues the trial court rested its decisions on unreasonable or untenable grounds


when         it: ( 1)       calculated Russell' s net monthly income to include some income from his spouse,

    2) ordered that Russell pay child support for Ryan beyond June 2010, Ryan' s anticipated date of

graduation                  from high        school, (   3)   required Russell to contribute to Ryan' s                    and Adam' s


postsecondary education, and ( 4) failed to award him reasonable attorney fees.




1
     We     use    the      parties'   first   names   for clarity   and   intend     no    disrespect.
42959 -4 -II



         First, we hold that the trial court erred when it calculated Russell' s income and remand


for the trial court to include all personal expenses paid by Russell' s business in his income.

Second, we hold the trial court erred by finding Ryan not enrolled in high school for the months

of February, March, July, and August 2010 and remand for the trial court to revise Russell' s

child support obligation.            Third, because the trial court must base the postsecondary educational

support obligation on the relative income of the parties, we remand for the trial court to

apportion the two thirds share of Ryan' s postsecondary expenses allocated to Russell and

Amanda based on their respective incomes. Fourth, we hold the trial court erred when it failed to

find Russell intransigent and failed to award Amanda reasonable attorney fees and remand for an

entry   of reasonable           attorney fees for Amanda.           Finally, we award Amanda reasonable attorney

fees   on appeal.         Regarding the remaining issues, we hold the trial court reasonably exercised its

discretion when it ordered child support and postsecondary support.

                                                              FACTS


I.       INITIAL PROCEEDINGS


         Russell          and   Amanda divorced        on   December 29, 1993.            In re Marriage of Blank, No.

39483 -9, 2010 WL 4308204,                 at *   1 ( Wn.   App.   2010).     They have two children, Adam, who was

born    on   April 17, 1989,         and   Ryan,     who    was    born   on   November 11,       1991.   Blank, 2010 WL


4308204,      at *   1.   Russell owns his own photography business, Perler Photography, Inc., which his

wife,   Leann Blank, helps him                    manage.      On      July    31,    2008,   Russell filed a petition for


modification of child support,              requesting that the        court (   1)   enter a new order for child support


payments, (     2)- order repayment or credit for overpaid child support, and ( 3) award alternating

years   for tax      exemptions      between Russell         and   Amanda. Blank, 2010 WL 4308204,              at *   1.   On




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December 29, 2008, Russell filed a motion for an order setting child support for Ryan, a minor

child at the time. Blank, 2010 WL 4308204, at * 1.


         The superior court commissioner issued a letter ruling concluding that Amanda' s income

was $   4, 738   and   Russell'       s was $   7, 600, making Russell'             s support obligation        for Ryan. $750 per


month.     Blank, 2010 WL 4308204,                at *   1.        The superior court commissioner denied both parties'


requests   for attorney fees. Blank, 2010 WL 4308204,                         at *   1.


         After the trial court denied Amanda' s and Russell' s motions for revision, Amanda


appealed to this court, arguing that the trial court failed to conduct a de novo review of the record

before the     commissioner which resulted                    in   an   improper    calculation of     Russell'   s   income. Blank,


2010 WL 4308204,          at *   1.    Amanda further argued that the trial court erred when it did not award

her   reasonable   attorney fees. Blank, 2010 WL 4308204,                           at *   1.   We held that:


           T] he record of the trial court proceedings does not contain the trial court' s
         explanation of its basis for denying Amanda' s motion to revise the final order for
         child support and fails to demonstrate how it calculated [ Russell' s] child support
         obligation. Because the record does not adequately support the trial court' s ruling
         as to [ Russell' s] income, its rulings regarding tax exemptions and attorney fees
         are not supported by substantial evidence....       Accordingly, we vacate the trial
         court' s final order for child support and remand for further proceedings.

Blank, 2010 WL 4308204, at * 1.


II.      PROCEEDINGS ON REMAND


         On remand, the trial court undertook a complete review of all documents, pleadings,

transcripts, letter     rulings,       and sealed    financial           records.     The trial court also heard reargument


regarding the original motions for revision filed by each party as to the child support order. The

trial court reviewed the record before the trial court commissioner de novo and issued a letter


ruling on March 22, 2011.



                                                                         3
42959 -4 -II



          In the letter ruling, the trial        court     found that Russell'    s   monthly income         was $   7, 708. 12 and


provided     detailed findings supporting that               number.    The trial court started with Russell' s 2008

W - income
  2                 with a credit given          for $ 2, 000. 00 for his voluntary             pension payments.         The trial


court then allocated 25 percent of Leann' s net monthly income to Russell because Russell " has

discretion to set salary for himself and his spouse [ and] Leann Blank' s salary is higher than

 Russell'   s],    even    though    he   owns   the company."        Clerk' s Papers ( CP)         at    1273.   The trial court


also found that 50 percent of Perler' s 2008 business expenses, plus a $ 1, 835. 16 shareholder loan,


should be considered personal expenses of the marital community, less " the $ 250 per bi- weekly

paycheck reimbursed by Leann Blank to the corporation for personal expenses incurred for the

benefit   of      the   marital    community," totaling $ 38, 204. 55.                CP   at    1274.     The trial court then


designated 50           percent of   the $ 38, 204.55 to Russell, for         a   total    of $   19, 102. 28 for the year and


 1, 591. 86       per   month.     The trial court also found that 20 percent of Perler' s monthly vehicle

expense should be attributed as Russell' s personal expense, in the amount of $165. 24 per month.


Applying these calculations to the child support worksheet, the trial court found that Russell' s

net monthly income was $ 7, 708. 12.

          Based on his net monthly income and the child support guidelines in effect as of May

2009, Russell' s child support obligation for Ryan was $ 755. 16 per month, with an effective date

of   August 1,          2008.    The percentages set in the child support worksheet were 62 percent for

Russell     and    38    percent   for Amanda.       The trial court found that the parties were required to pay

for Ryan' s uninsured medical expenses or other extraordinary expenses at the stated percentages.

          The trial       court   did not   revise   the    commissioner' s   ruling       denying       attorney fees.   Looking

solely at Russell' s conduct in the current petition and related motions, the trial -court found that
Russell did        not engage       in fraud   or   intransigence, in   part,     because he had " disclosed over 2000

                                                                  M
42959 -4 -II



pages     of    financial. documents in             response   to   discovery     requests."     CP   at   1276.       The trial court


also found that each parry should bear their own fees under RCW 26.09. 140 because Russell did
                                                                                                                   2
not   have the ability to pay the fees                 requested, nor      did Amanda have the             need.       The trial court


reserved making a decision on medical insurance, postsecondary educational support, and for

over -
     payment and /or back support until further presentation.

          III.       MOTIONS FOR RECONSIDERATION


          Amanda moved for reconsideration of the trial court' s letter ruling, arguing that the trial

court (   1)    overlooked          certain    items   when    calculating Russell'       s   2008. income, ( 2)         erred by not

finding    that Amanda              is   entitled   to attorney fees,     and (   3)   erred by finding that Russell did not

engage         in fraud   or    intransigence.          The trial court held a hearing on Amanda' s motion for

reconsideration and            to    enter an order on child support.             The trial court granted Amanda' s motion


for reconsideration in part and modified Russell' s income slightly to correct a mistake in its letter

ruling that stated Leann made biweekly payments of $250 to Perler, when she actually made

semimonthly         payments             of $ 250    to Perler.     This modification, however, did not change the


monthly child support payment. The trial court denied the remainder of Amanda' s motion.

           Russell moved for reconsideration of (1) the court' s determination that income generated


by Leann be imputed to Russell in calculating his net monthly income, and ( 2) the orders that


2 The trial court also found that

               T]he Petition was prompted by and necessitated by the older child reaching the
           age of    majority            and changes    in the law affecting extrapolation. This court finds
           that the Petition             was   brought in   good faith[.]  Finally, this court is also mindful
           that Amanda Blank has made no showing that she actually paid any attorney' s
           fees to Mr. Berry and therefore, has not made the requisite showing of need.

CP at 1276.


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42959 -4 -II



require Russell to continue paying any form of child support for Ryan because he is beyond age

18    or   beyond      what would      have been his       normal graduation     date.    Amanda also moved for a


determination of postsecondary support for Adam and Ryan.

            At a hearing on the motions, the trial court determined it was appropriate and fair to

attribute some of        Leann'   s   income to Russell.         The trial court, however, revised the calculation


used to determine how much of Leann' s income to attribute to Russell and also modified the

shareholder loan figure considered as income, which resulted in a new child support payment

                          3
amount of $772. 21.


IV.         RULINGS ON CHILD SUPPORT AND POSTSECONDARY SUPPORT


            On June 15, 2011, the trial court orally ruled Russell was not required to pay child

support for Ryan for the months of February, March, July, and August 2010 because it found

Ryan       was   not   enrolled   in high   school      for those    months.   Ryan signed up for Running Start

classes at Pierce College in January 2010, but the trial court found he was not enrolled because

he received no credits for the classes and was not otherwise in high school.4 The trial court

found that Ryan was not enrolled in July and August 2010 because he was 18, he had not

graduated        from high    school,    and   he    was   not   earning any   credits.       With the exception of the


months of February, March, July, and August 2010, the trial court also found that Russell must

3
    To determine of the amount of Leann' s income that should be imputed to Russell, the trial court
took both Russell' s and Leann' s gross salaries and averaged them to come up with a difference
of $569. 75 a month. The trial court did not deduct the $ 250. 00 semimonthly payments with the
new calculation.         The trial court still attributed 25 percent of the business expenses as Russell' s
personal expenses and          factored in     a $   12, 000. 00 shareholder loan.

4
    Ryan turned 18       on   November 11, 2009,           which was   the fall term     of   his   senior year.   He would
have       graduated    in June   of   2010 if he had      graduated on    track.    The trial court noted that Ryan
struggled academically but that there was no question Amanda was entitled to child support for
Ryan through his 18th   birthday. So the trial court looked at what Ryan was doing at the end of
fall term 2009, going into 2010.
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42959 -4 -II



reimburse Amanda for Ryan' s medical expenses, except for chiropractic expenses, based on the

percentage rate specified on the child support worksheet.


              Regarding Ryan' s high school education expenses, the trial court determined Russell did

not have to reimburse any of the Pierce College Running Start fees because Ryan did not pass

any     class or receive     any    credit at    Pierce College.           The trial court determined that Russell must


reimburse Amanda for bookstore and other charges for Ryan' s Running Start classes at Clover

Park     at   the   percentage rate       specified on       the   child   support worksheet.    The trial court required


Ryan to share in the cost of the tools Amanda purchased for his Clover Park classes at a one-


third share, with the remaining two -thirds being shared between Russell and Amanda at the

percentage rate.          Regarding Ryan' s postsecondary support, the trial court held that Ryan should

contribute to the cost of his postsecondary education and allocated one -third of the expense of

his AA degree to Ryan, one -third to Russell, and one -third to Amanda based on the standards set

in RCW 26. 19. 090. The trial court further noted that Russell' s postsecondary support obligation


was contingent on Ryan maintaining good academic standing according to the institution.

              The trial court then addressed medical expenses and postsecondary support for Adam.

The trial court ruled the amount Russell already paid toward Adam' s semester at the University

of   Idaho in the fall      of   2008, for   which      he   received no credits, was adequate.        The trial court also


did not order support for the 2009 winter and spring quarters at Pierce College because Adam

was not in good academic standing because his cumulative grade point average was less than a

2. 0.    Adam had improved by fall of 2009 and, although ordered retrospectively, the trial court

ordered postsecondary support beginning in the fall of 2009 with Adam, Russell, and Amanda

each contributing one -third. Absent extraordinary circumstances, the trial court held this support

was     to    end   in the spring   of   2012,   when   Adam       would    turn 23.   The trial court also ordered Russell

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42959 -4 -II




to pay one -third of the past unreimbursed medical expenses, except chiropractic and massage

expenses,      for the     months   Russell    must   pay postsecondary          support.    Going forward, however,

Russell had no obligation to pay unreimbursed medical expenses unless it was an extraordinary

expense.



V.          FURTHER MOTIONS FOR RECONSIDERATION


            Amanda moved for reconsideration of the trial court' s June 15, 2011 oral ruling arguing

that ( 1)   Ryan had been continuously           enrolled      in high   school since   he   was   18, ( 2) the trial court


erred   in excluding        chiropractic    and massage        treatment   as   a reimbursable     expense, (   3) the trial


court erred when it looked at postsecondary support from the vantage point of the June 2011

evidentiary hearing, rather than from August 1, 2008, and ( 4) the trial court erred when it ruled

that postsecondary education and healthcare expenses would not be based on each party' s share

of their combined monthly incomes.

            The trial    court   held   a   hearing    on   August 5,      2011 regarding Amanda' s motion for

reconsideration and entered an amended                 final   order of child support on      September 8, 2011.        The


trial court did not reconsider the four months ( February, March, July, and August 2010) it did not

allow child support          for Ryan because "       enrollment is something more than just simply signing

up."    CP    at   2120.    The trial court, however, allowed unreimbursed medical expenses for those

months,       including     chiropractic      expenses.        Going forward, the trial court believed it was

appropriate to allocate some postsecondary support to Ryan and thus did not reconsider its

decision to allocate one -third to Ryan, one -third to Russell, and one -third to Amanda.

            The trial court did not reconsider its decision that Russell was not obligated - make any
                                                                                           to


further payment for Adam' s semester at the University of Idaho or his first two quarters at Pierce

College. However, because the               order on   Adam' s postsecondary         support was retroactive,      the trial
42959 -4 -II



court did reconsider its decision and ordered that only Russell and Amanda share in Adam' s

postsecondary      expenses     based     on   the   proportionate rate.     Going forward, until Adam turned 23,

the trial   court ordered      that the   share remain proportionate             between Russell         and   Amanda.   The


trial court also allowed Russell to get a credit for any class that he paid for that Adam withdrew

from or had to retake.


          Russell moved for reconsideration of the September 9, 2011 order arguing that the June

15, 2011      order required     him to pay approximately $ 9, 000 to Amanda and the amended order


required      him to pay      an additional $        20, 000,   which   he did    not   have.    Russell also argued that


Amanda included         a $   4, 300 Sylvan Learning Center expense in the judgment, which the trial

court   did   not approve.      The trial court denied Russell' s motion for reconsideration except that it

held Russell      was   not    responsible      for the Sylvan          Learning      Center    expense.    Amanda timely

appealed and Russell timely cross appealed.

                                                          ANALYSIS


I.        STANDARD OF REVIEW


          We review a trial court' s modification of child support to determine if the trial court' s


decision rests on unreasonable or untenable grounds. In re Marriage ofMcCausland, 159 Wn.2d

607, 615 -16, 152 P. 3d 1013 ( 2007) (           quoting In re Marriage ofLeslie, 90 Wn. App. 796, 802 -03,

954 P. 2d 330 ( 1998)).        We also review the trial court' s modification to determine if it is based on

an erroneous view of the law. In re Marriage of Choate, 143 Wn. App. 235, 240, 177 P. 3d 175

 2008) ( quoting Wash. State Physicians Ins. Exch. & Ass' n                      v.   Fisons   Corp.,   122 Wn.2d 299, 339,


858 P. 2d       1054 ( 1993)).      Further, the trial court' s findings of fact must be supported by

substantial     evidence.      In re Marriage of Schumacher, 100 Wn. App. 208, 211, 997 P.2d 399

 2000).       Substantial evidence is that which is sufficient to persuade a fair -
                                                                                  minded person of the

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42959 -4 -II



truth of the declared        promise.     In re Marriage of Hall, 103 Wn.2d 236, 246, 692 P. 2d 175

 1984).    We may not disturb findings of fact supported by substantial evidence even if there is

conflicting      evidence.    In   re   Marriage of Lutz, 74 Wn.             App.    356, 370, 873 P. 2d 566 ( 1994)


 quoting Henery v. Robinson, 67 Wn. App. 277, 289, 834 P.2d 1091 ( 1992)).

II.       RUSSELL' S 2008 INCOME


          Amanda argues the trial court erred when it failed to include all Russell' s income when


calculating his share of the child support obligation. Specifically, she argues the trial court erred

 1)   by treating    only 25    percent    of   Perler'   s   business    expenses    as   Russell'   s   income, ( 2) when


calculating the amount of shareholder loans from Perler that should be included in Russell' s

income, and ( 3) by disregarding Russell' s unreported cash. Russell does not directly respond to

these arguments and instead contends the trial court erred by imputing Leann' s income to him

and by attributing Perler' s business expenses as his personal expenses in violation of RCW

26. 19. 071.


          A.        Russell' s Personal Expenses


          Russell admitted that Perler paid certain personal expenses for him and Leann. Amanda


argues that because Perler is Russell' s separate property, the trial court erred when it determined

that only half of Russell' s and Leann' s personal expenses that Perler paid should be attributed to

Russell    as   his income.     Thus, Amanda argues 100 percent of what the trial court stated were


personal    expenses     should     be   considered       Russell'   s   income.     Russell does not directly refute

Amanda' s argument and instead responds only that the trial court erred by failing to state which

expenses        it deemed    personal    expenses.        Because Perler. is Russell'         s   separate    property,   100


percent of the personal expenses paid by this business should be treated as his income.


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42959 - -II
      4




          When determining a parent' s child support obligation, the trial court must consider all

income      and resources of each parent' s                household.        RCW 26. 19. 071( 1).            The trial court should


consider only the income of the parents of the children whose support obligation is at issue and

should    not     include the income             of a     new     spouse    in its   calculation         of gross   income.        RCW


26. 19. 071( 1), (      4).    A parent' s separate property and the profits from that property remain that

parent' s   separate          property   so   long   as   it   can   be traced     and   identified.       RCW 26. 16. 010; In re


Marriage of Chumbley, 150 Wn.2d 1, 6, 74 P. 3d 129 ( 2003).                                   If the parent is a business owner


and   has    a    business "        expense    account[]       which     do[ es]   more than actually reimburse for true

business expenses" then the parent business owner has an increased ability " to pay maintenance

because the       owner        is   spared   from paying the[]        expenses on a personal             basis [ and]   ... [   t]here are


a number of such items buried in business financial statements that create factual and


discretionary          issues."     20 KENNETH W. WEBER, WASHINGTON PRACTICE: FAMILY & COMMUNITY


PROPERTY LAW § 34. 10, at 370 ( 1997).


          Here, the trial court reviewed Amanda' s declaration that identified which of Perler' s

expenses         she    determined       or    speculated       were     actually    personal       expenses,     Leann' s response


declaration agreeing that some expenses were personal but disputing others, and all the submitted ,

financial documents.                From the declarations and documents, the trial court found it " appropriate

to designate 50 [ percent] of the 2008 identified expenses as personal, after first subtracting the

    250 per bi- weekly paycheck reimbursed by Leann Blank to the corporation for personal
                                                                                          5
expenses      incurred for the benefit            of   the     marital   community. "          CP   at   1274.   After including an

annualized shareholder loan, the court found the amount of personal expenses charged to the



5
 The trial court later corrected it calculation to reflect $250. 00 semi -monthly payments instead
of $250. 00 bi- weekly payments.
                                                                       11
42959 -4 -II



business       for    2008    was $      38, 204. 55    and    that $      19, 102. 28 represented Russell' s one half


 community           share   of   these expenses,        for   a   value    of $    1, 591. 86 per month business income


imputable to Russell."            CP at 1274.


          But the character of property as separate or community is established at the point of

acquisition.         RCW 26. 16. 010; In re Marriage of White, 105 Wn. App. 545, 550, 20 P. 3d 481

 2001).       Russell owned Perler as his separate property before his marriage to Leann and thus

                                    it                               Russell'                                 The trial court
Perler    and    any income               generates     remains                 s    separate    property.


committed an error 'of law by attributing 50 percent of the personal expenses to Leann. Thus we

remand for the trial court to attribute 100 percent of the personal expenses to Russell' s income.

Additionally, although the trial court did not specifically identify each and every expense it
found to be a personal expense, it completed a thorough review of the available documents and

determined it was appropriate to designate 50 percent of the business expenses as personal.


Because the trial court properly exercised its discretion, we do not disturb that decision.

          B.          Leann' s Income Treated as Russell' s


          Russell argues the trial court erred by imputing some of Leann' s income to him in

violation of         RCW 26. 19. 071.        Russell incorrectly argues the trial court imputed 25 percent of

Leann'    s   income to him.             The trial court initially allocated 25 percent of Leann' s income to

Russell, but after Russell moved for reconsideration, the trial court modified its calculation and

instead averaged Russell' s and Leann' s gross salaries to come up with a difference of $569. 75 a

month which it allocated to Russell.


          Here, the trial court noted that Leann had no obligation to support Ryan, but also found

that Russell had " discretion to             set [   the] salary   for himself       and [   Leann]"   and Leann' s salary was

higher than his, "       even     though    he   own[ ed]   the company .... [           T] herefore, [ it was] appropriate to

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42959 -4 -II




consider     Leann'    s   salary in    determining the       amount of [Russell' s]          income." CP      at   1273. The trial


court   then      allocated $   569. 75    of   Leann'   s   salary   a month          to Russell.   The trial court found that


Leann should earn a salary because she performed services for Perler on a full -ime basis, but
                                                                               t

that it was appropriate to consider her income in calculating Russell' s child support obligation

because Russell set her salary higher than his,                   even          though he owned the company.             Allocating

 569. 75 to Russell' s income made his and Leann' s respective salaries equal, which the trial court

found to be a fair method of calculation.


          The trial        court   did    not    improperly      impute Leann' s income to Russell,                    but merely

allocated what was           realistically Russell'      s   income        as   the   owner of   Perler. Because the trial court


properly exercised it discretion and its decision is not manifestly unreasonable, we hold the trial

court did not err when allocating a portion of Leann' s income to Russell.

          C.          Shareholder Loan Calculation


          Amanda next argues the trial court erred by calculating the amount of the shareholder

loans from Perler that             should     have been included in Russell'                s net    monthly income.       Amanda



states that between July 14, 2068 and December 14, 2008, the balance of shareholder loans

Russell took increased $           12, 025. 90 and that the court divided this amount over 12 months when it

should      have divided it        over   5   months.        Thus, Amanda maintains the sum of $2, 405. 18, rather


than $ 1,   051. 00, per month should have been included in Russell' s net monthly income.

            Other than to state that the trial court must consider all income and that the trial court

made a " clerical error,"          Amanda provides no legal support for her contention that the shareholder


loan    should      be     calculated     over    5   months     versus          12.    Because Amanda failed to provide


meaningful          argument       or   legal    support     for this       argument,      we    need   not   consider    it.   RAP


 10. 3( a)( 6).

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42959 -4 -II



           D.         Unreported Cash


           Finally, Amanda argues the trial court erred by disregarding Russell' s unreported cash.

Again, other than to state the trial court must consider all income, Amanda provides no legal

support for her argument that the trial court should have included this alleged unreported cash in

Russell'   s    income.      The trial court undertook a careful and complete review of all documents,

pleadings, transcripts, letter rulings, and sealed financial records; heard re- argument from the

parties;   and reviewed        the   record   before the trial   court commissioner.       The trial court also heard


argument and reviewed            declarations regarding Russell'       s alleged unreported cash.        Because the


trial court had discretion to weigh the conflicting evidence presented and its decision does not

rest on unreasonable grounds, we hold the trial court did not err by not including the alleged

unreported cash in Russell' s income.


III.       RYAN' S ENROLLMENT IN HIGH SCHOOL


           The    relevant provision      in the    child   support order   states "[   s] upport shall be paid: until


Ryan reaches the age of 18 or as long as he remains enrolled in high school, whichever occurs

last."     CP   at   2027.   The parties dispute the application of this simple provision in two specific

time     periods.     Russell also maintains that Ryan refused to take affirmative steps to complete his

high school education on time, and thus at age 18, Ryan was no longer dependent and became

emancipated.




           A.         February and March 2010

           The trial court found that although Ryan had signed up for Running Start classes in

January 2010, he was not enrolled in high school in February and March 2010 because he

received no credits for his Running Start classes and was not otherwise in high school.

Specifically, the trial court stated " I believe that enrollment is something more than just simply
                                                              14
42959 -4 -II




signing up."      CP   at   2120. But a Bethel public schools student records employee authored a letter


on July 1, 2011 verifying that Ryan had been continuously enrolled in high school since January

27, 2009.       Although Ryan received no credit for one class and failed the other in the months of


February and March 2010, he was enrolled in high school classes and his status as a high school
                                                                   6
student     remained        the    same     for those    months.        Thus, the trial court' s decision to suspend


Russell' s child support payments for those months because Ryan received no credits for his high

school classes was based on unreasonable grounds.


           B.        July and August 2010

           The trial court also found that Ryan was not enrolled in July and August 2010 because he

was 18, had not yet graduated from high school, was not earning any credits, and was not making

any    significant progress          towards his high       school      degree.    If Ryan had graduated on track, he


would have graduated in June 2010. After the 2010 summer break, however, Ryan continued his


high school classes and the student records employee stated that Ryan was continuously enrolled

in high     school    since       January    27, 2009.    Further, the child support order requires that Russell


make payments          every      month and     does    not allow      for   abatement   during   the   summer months.    See


In   re   Marriage of Jarvis, 58 Wn.             App.    342, 347, 792 P. 2d 1259 ( 1990) (             holding that the trial

court erred when it modified the child support decree to eliminate child support payments during

the summer months).



           Because the record indicates that Ryan remained continuously enrolled in high school

beginning in January 2009 through December 2011, the trial court' s decision to suspend child

support payments in July and August 2010 because Ryan was not earning any credits during the


6
    Additionally, a successful, eventual outcome is not required for a student to be " enrolled" under
the ordinary meaning of the term.
                                                               15
42959 -4 -II



summer     break from         school      is based    on   unreasonable      grounds.      Accordingly, we reverse and

remand for the trial court to modify the child support order to reflect that Ryan was enrolled in

high school during February, March, July, and August 2010.

         C.           Child Support Payments after Ryan' s expected date of graduation


         Russell maintains that when Ryan turned 18 in November 2009, he was no longer

dependent and became emancipated, and thus the trial court erred when it ordered him to

continue child support payments for Ryan beyond Ryan' s anticipated date of graduation in June

2010.     Amanda responds that Russell was obligated to continue his child support payments


because Ryan was still a dependant and Russell' s obligation was conditioned on whether Ryan

was still enrolled      in high     school.       We affirm because the parties agreed in writing to extend their

child support obligations beyond Ryan' s 18th birthday, as long as he remained in high school.

         RCW 26. 09. 170( 3)             provides     that: "   Unless otherwise agreed in writing or expressly

provided in the decree, provisions for the support of a child are terminated by emancipation of

the   child or   by   the   death   of   the   parent obligated   to   support   the   child."   See also In re Marriage of

Gimlett, 95       Wn.2d 699, 703 -05,              629 P. 2d 450 ( 1981).              For the purposes of this statute,


emancipation refers          to the   child    reaching the     age of   majority - 18.     Gimlett, 95 Wn.2d at 702.


         The child support order here specifically provides for child support payments after

emancipation —         it requires Russell to continue payments until Ryan reaches 18 or graduates from

high    school, whichever           is later. The child support order does not require that Ryan graduate in




7 To support her argument, Amanda relies on Kruger v. Kruger, 37 Wn. App. 329, 332, 679 P. 2d
961 ( 1984).      Amanda' s citation to this case is misplaced because Kruger held the trial court did
not err by calculating child support arrearage to include the time between the children' s 18th and
21st birthdays in which they were enrolled in full -ime programs of higher education, whereas
                                                      t
here the parties are arguing about Russell' s obligation of child support while Ryan is still in high
school between his 18th and 21 st birthday.
                                                                  16
42959 -4 -II



four   years      or   on    time to   continue       receiving     child   support payments.          Nor does the order base


Russell'   s child support obligation on a                  determination      of   Ryan'   s   dependency.     Instead, the order


requires      that Russell          continue     making       child   support   payments "        as   long   as [   Ryan]   remains



                                       a
enrolled      in high       school."       CP   at   2027.    Thus, during the time Ryan remained enrolled in high

school,    Russell          was required    to continuing making            child support payments            for Ryan.      The trial


court properly exercised its discretion when it ordered Russell to continue making child support

payments for Ryan through December 2011.


          D.            Unreimbursed Extraordinary Health Care Expenses

          Russell also argues the trial court erred when it ordered him to contribute to Ryan' s


unreimbursed extraordinary health care expenses after November 2009 ( when Ryan turned 18) or

June 2010 ( when Ryan was supposed to graduate from high school) because ( 1) Ryan was no

longer    a   dependent, ( 2) the trial court never determined the reasonableness or necessity of the


costs, and ( 3) the trial court never addressed Russell' s ability to contribute to the health care

expenses.      9 We hold the trial court properly exercised its discretion when ordering Russell to pay

a portion of Ryan' s unreimbursed extraordinary health care expenses after June 2010 because

RCW 26. 19. 080 requires that parents share paying their child' s health care expenses and a

determination of the reasonableness or necessity of the expenses is discretionary.

           RCW 26. 19. 080( 2)             provides       that "[   m] onthly health care costs shall be shared by the

parents       in the        same    proportion       as   the basic    child   support      obligation."      RCW 26. 19. 080( 4)




8 The parties' discussion of dependency, therefore, is irrelevant to a determination of Russell' s
child support obligation for Ryan beyond the date of Ryan' s anticipated graduation in June 2010.
9 Russell also assigned error to the trial court' s order for him to pay a portion of Adam' s
unreimbursed extraordinary health care expense. However, he devoted no portion of his briefing
and    offered         no   legal   support     for this     argument.       Thus, we need not consider it under RAP
 10. 3( a)( 6).
                                                                      17
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provides     that "[   t] he court may exercise its discretion to determine the necessity for and the

reasonableness of all amounts ordered              in   excess of   the basic   child support obligation."        The child


support      order     at   issue    here   requires    that   Russell " pay      63. 4 [   percent]     of   unreimbursed




extraordinary health care expenses for Ryan, if monthly medical expenses exceed 5 [ percent] of

the basic support obligation from worksheet line 5 for Ryan, until he graduates from high

school."     CP   at   2029.    Thus, in    accordance with         RCW 26. 19. 080( 2), the trial court determined


that while Russell still had a child support obligation for Ryan, he would also have an obligation

to pay unreimbursed extraordinary health care expenses. As previously discussed, the trial court

properly ordered that Russell was required to pay child support for Ryan beyond his anticipated

date   of graduation.        Because Ryan was still in high school and the trial court' s order complies


with RCW 26. 19. 080, we hold the trial court properly exercised its discretion when ordering

Russell to pay his proportionate share of Ryan' s unreimbursed extraordinary health care

expenses.



IV.       POSTSECONDARY SUPPORT FOR RYAN AND ADAM


          Russell next argues that the trial court erred by ordering him to contribute to Ryan and

Adam'    s   postsecondary          educational   support.     The child support order in this case has always


provided     that "[   t] he parents shall pay for the post secondary educational support of the children.

Post secondary         support provisions will          be decided    by   agreement or      by   the   court."   CP at 456


 December 3, 2004            child support order).        Russell did not petition to modify the postsecondary

support provision.           Instead, he specifically noted that the child support order requires him and

Amanda to pay postsecondary support, but that he and Amanda were not able to reach an

agreement.        Accordingly, as the trial court noted and Russell acknowledged, Russell was

required to pay postsecondary support for both Adam and Ryan, but the amount of the payments
                                                               18
42959 -4 -II




and how long Russell was required to make the payments were to be decided by the court

because Russell and Amanda were not able to reach an agreement.


         A.        Postsecondary Educational Support Obligation

         The trial court has broad discretion to order support for postsecondary education.

Childers    v.   Childers, 89 Wn.2d 592, 601, 575 P. 2d 201 ( 1978);               see also In re Marriage of

Newell, 117 Wn.      App.   711, 718, 72 P. 3d 1130 ( 2003);       In re Marriage ofKelly, 85 Wn. App. 785,

795, 934 P. 2d 1218 ( 1997).          RCW 26. 19. 090( 2) gives the trial court discretion to determine how .


long to award postsecondary educational support and provides a non -exhaustive list of factors to

consider:



         Age of the child; the child' s needs; the expectations of the parties for their
         children when the parents were together; the child' s prospects, desires, aptitudes,
         abilities or disabilities; the nature of the postsecondary education sought; and the
         parents' level of education, standard of living, and current and future resources.

To continue receiving postsecondary educational support:

         The child must enroll in an accredited academic or vocational school, must be
         actively pursuing a course of study commensurate with the child's vocational
         goals, and must be in good academic standing as defined by the institution.

RCW 26. 19. 090( 3).      If the child fails to comply with these conditions, the parent' s postsecondary

educational support obligation is automatically suspended for the period or periods in which the

child   fails to comply. RCW 26. 19. 090( 3).. Additionally, the trial court should not order payment


of postsecondary educational support beyond a child' s 23rd birthday, except in exceptional

circumstances. RCW 26. 19. 090( 5).


         Russell contends the trial court failed to address all the factors listed in RCW 26. 19. 090

and   thus the postsecondary          educational   support     order   is improper.   The trial court, however,


specifically     noted   that   it   considered   the   factors from RCW 26. 19. 090( 2)      when making its


                                                           19
42959 -4 -II



postsecondary           educational support order.                 And although the trial court did not make extensive


findings on the record as to each factor, RCW 26. 19. 090 sets forth no requirement that the trial


court   explicitly           consider   the   factors   on   the   record.    In   re   Marriage of Cota, _         Wn. App. ,

312 P. 3d 695, 699 ( 2013).                Moreover, "[ w] e must presume that the court considered all evidence


before it in     fashioning          the   order [ on   postsecondary         education expenses]."          Kelly, 85 Wn. App. at

793.    Thus, the trial court did not err by not explicitly entering findings as to each factor listed in

RCW 26. 19. 090( 2).


                        1.           Ryan


             The trial       court ordered      Russell to     contribute     to Ryan'      s   AA degree.    The trial court found


that Ryan had a plan and was at Clover Park. The trial court further stated Ryan " has a vocation

in   mind, and     that is       a       year degree.
                                     two -                    It appears to be commensurate with the child' s abilities


and    the    child' s prospects.             He, so far, has had trouble with attendance and, therefore, trouble


getting      credits,    but academically he'           s    doing   well or at     least   appropriate,     appropriately."   CP at


2064.        Because Ryan had yet to begin his postsecondary education, the trial court properly

exercised its discretion when it ordered Russell to contribute to Ryan' s postsecondary education

subject to Ryan' s compliance with RCW 26. 19. 090 and maintaining good academic standing

according to the institution.

                        2.           Adam


             Russell contends that his postsecondary support obligation for Adam should have been

suspended from January 2009 through the entry of the trial court' s final order in December 2011

because Adam " was never in good academic standing as defined by the institution and was never

a    full time    student."          Resp' t' s   Br.   at   31.    We disagree because Adam was in good academic




                                                                       Pill
42959 -4 -II



standing     with      Pierce College,       as     required   by   RCW 26. 19. 090( 3),           beginning in spring quarter

2009.


            Here, the trial court did not order postsecondary support for the 2009 winter and spring

quarters at Pierce College because Adam was not in good academic standing with Pierce

College. But in fall 2009 Adam obtained a 4. 0 grade point average and increased his cumulative

grade point        average     above    a   2. 0.    Thus, the trial court ordered Russell to pay postsecondary

support for Ryan beginning in fall of 2009 through spring of 2012 ( when Adam would turn 23),

as   long    as   he   remained    in   good academic           standing.      The trial court also ordered that Russell


would get a credit for any class for which he paid that Adam withdrew from or had to retake.

            Pierce College defines           good academic            standing   as: "    Any student who earns 5 or more

credits for each quarter in which they are enrolled, and maintains a 2. 0 or better cumulative grade

point average will        be    considered      in   good academic          standing     at   Pierce College."   CP at 1784. On


July 6, 2011, the director of student success at Pierce College authored a letter noting that " Adam

has maintained a 2. 0 or better cumulative grade point average beginning Spring Quarter 2009

and   has been in        good academic            standing     with   the   college      since   Spring   Quarter 2009."   CP at


1879.       Because the trial court' s order complies with RCW 26. 19. 090 and Pierce College' s


definition of good academic standing, we determine the trial court properly exercised its

discretion when ordering postsecondary educational support for Adam.

            B.         Amount of Postsecondary Educational Support Ordered

            Amanda argues the trial court erred ( 1) by holding that the costs of postsecondary support

for Ryan be shared by Amanda, Russell, and Ryan in equal one -third shares, and ( 2) by refusing

to make Russell pay his full share of postsecondary support for Adam' s first semester at the

University        of   Idaho.     We hold the trial court' s decision to apportion one -third of Ryan' s

                                                                      21
42959 -4 -II




postsecondary educational expenses to Ryan was a proper exercise of its discretion, but remand

for the trial court to apportion the remaining two -
                                                   thirds between Russell and Amanda based on

their   respective net   incomes.    Additionally, we hold the trial court' s decision that Russell is not

required to pay any more on Adam' s fall 2008 semester was a proper exercise of its discretion.

                  1.        Ryan


          Regarding the order that Ryan contribute one -third to his postsecondary education,

Amanda provides no authority that the trial court erred when apportioning some of the

postsecondary educational expense to Ryan. When ruling on postsecondary educational support

for Ryan, the trial court stated that it is important for a child to be invested in his own education.

Further, because the order is prospective, the trial court noted that Ryan still has the opportunity

to get grants, apply for financial aid, and seek part-time employment. We hold that the trial court

properly exercised its discretion when apportioning some of the postsecondary education

expenses to Ryan.


          Regarding Russell and Amanda' s contribution, we hold that the trial court' s decision to

apportion one -third to Amanda and one -third to Russell is based on an erroneous view of the

law.     Although RCW 26. 10. 090( 1)          states the child support schedule is advisory and not

mandatory in postsecondary           educational     support,   Division I held that " postsecondary support


must    be   apportioned    according to the   net   income     of   the   parents as   determined   under []   chapter




 26. 19 RCW]."         In   re   Marriage of Daubert, 124 Wn.              App.   483, 505, 99 P. 3d 401 ( 2004),


abrogated on other grounds           by   McCausland, 159 Wn.2d 607.              Accordingly, we remand for the

trial court to apportion the remaining two -
                                           thirds of Ryan' s AA degree expenses to Amanda and

Russell based on their respective incomes.




                                                          22
42959 -4 -II



                   2.           Adam


            The trial   court   found that Russell'   s$   3, 275. 00 contribution to Adam' s fall 2008 semester


at    the   University    of    Idaho,   in   which   he   received     no    credits,    satisfied his obligation for


postsecondary educational support for that semester. Amanda argues the trial court' s decision is

contrary to RCW 26. 19. 090( 3) because generally a parent pays for college and its related costs at

the beginning of the quarter or semester and no one knows at that time if the student will meet

the   academic requirements of           RCW 26. 19. 090( 3).      Despite Russell' s request that Adam attend a


community college or in - tate university, Adam, with Amanda' s support, chose to attend the
                        s

University of Idaho. Adam did not succeed at the University of Idaho and received no credits for

the   classes   he took; thus, he decided to transfer to Pierce College.                   Because the trial court has


broad discretion to order what is fair and necessary for postsecondary education, we do not

disturb the trial court' s order regarding Russell' s obligation to contribute to Adam' s fall 2008

semester. See Childers, 89 Wn.2d at 601 -02.


V.          SYLVAN LEARNING CENTER EXPENSE


            Amanda argues the trial court erred by not including the cost of Adam' s tutoring at

Sylvan Learning Center in his postsecondary educational support. Russell did not respond to this

argument.




            The trial court has broad discretion to order what is fair and necessary regarding

postsecondary       support.      Childers, 89 Wn.2d        at   601 - 02;   Kelly,. 85   Wn.   App.   at   795.   The trial


court may include expenses that are sufficiently related to the child' s postsecondary education.

Kelly, 85 Wn. App. at 795.

            The trial court orally ordered that Russell contribute to Adam' s postsecondary support on

June 15, 2011; however, for reasons that are not clear, the paper order reflecting the June 15,
                                                             23
42959 -4 -II



2011   oral   ruling   was not signed until       August 5, 2011.           In between the oral ruling and the signing

of the order, Amanda added the Sylvan Learning Center expense to Adam' s post secondary

educational expenses, which neither Russell nor the trial court noticed until after signing the

order. After a hearing on December 9, 2011, the trial court ordered that Russell was not required

to contribute to the Sylvan Learning Center expense and stated,

         I realize that it really is related to his education, but the fact is he' s been in college
         for three     and a   half   years   already. The father has — I
                                                         ordered him to pay expenses
         going back to the beginning, and this is an extraordinary expense that was
         incurred unilaterally by the mother without any consultation, without any input,
         and I' m not going to order him to contribute toward it.

Report   of   Proceedings ( Dec. 9, 2011)          at   33.    Because the trial court has broad discretion to order


what support it finds fair and necessary, the trial court properly exercised its discretion when

deciding not to include the Sylvan Learning Center expense in Russell' s obligation because it

was an extraordinary expense that Amanda incurred without seeking input from Russell.

VI.      REASONABLE ATTORNEY FEES


         Amanda argues the trial court erred by failing to award her reasonable attorney fees and

expenses due to Russell' s intransigence. We hold the trial court erred by finding Russell did not

engage in intransigence and remand for a determination of reasonable attorney fees for Amanda.

         The decision to award attorney fees is within the trial court' s discretion. In re Marriage

of Knight, 75 Wn.         App.       721, 729, 800 P. 2d 71 ( 1994).             The party challenging the trial court' s

decision bears the burden of proving the trial court exercised its discretion in a way that was

 clearly   untenable or       manifestly      unreasonable."         Knight, 75 Wn. App. at 729.

         Amanda contends the trial court erred by refusing to look at past history and prior court

findings      of   intransigence.     The trial court may award fees under RCW 26. 09. 140 if one spouse's

intransigence        caused    the   spouse   seeking    a    fee   award   to   require additional   legal   services.   In re

                                                                    24
42959 -4 -II



Marriage of Crosetto, 82 Wn.              App.     545, 563, 918 P. 2d 954 ( 1996).            A parent is intransigent


where   he   produces "   conflicting information about his income and, by his actions, force[ s the

other parent]   to   conduct    intense     discovery,   which     increase[   s]   her legal bills."   In re Marriage of

Mattson, 95 Wn.        App.     592, 605, 976 P. 2d 157 ( 1999).                If intransigence is established, the


financial resources of the spouse seeking the fees are irrelevant. Crosetto, 82 Wn. App. at 564.

        The trial court found, based solely on Russell' s conduct in connection with the instant

petition for modification and its related motions, that Russell did not engage in intransigence.

The trial court based its decision, in part, on the fact that Russell disclosed over 2, 000 pages of

financial documents in        response      to   discovery   requests.   The trial court further noted that Russell


acknowledged that he paid some personal expenses through Perler, but that he fully disclosed all

his financial information; thus, even though he misstated his income, Russell was not attempting

to defraud the court because he provided all the information the court needed to determine his

income.


        The trial     court    erred   by    not   finding   Russell intransigent.          In two prior proceedings,


Russell engaged in behavior similar to the instant case by misreporting his income, paying his

personal expenses through his business, and turning over voluminous financial records requiring

Amanda and the court to incur additional costs and time to determine Russell' s true income.


Specifically, in 2004 the trial court stated,

                 Yes. I know that, Mr. Blank, there' s a lot of talk about the production of
        two banker' s boxes of documents being produced, but I was struck by the fact that
        many of the things I was interested in there was just no documentation for.

                 There was even difficulty answering simple questions as to what Mr.
        Blank'   s   salary   was.   I just think that the production of voluminous material is not
        persuasive.      Having practiced insurance defense for a number of years, I certainly
        am not swayed         by   volumes of materials.           It' s the quality that' s given that matters
        and relevance that matters.

                                                              25
42959 -4 -II




CP at 442. Russell' s behavior in the current proceeding was substantially similar to the behavior

the trial       court   twice previously found to be intransigent.                    In all three cases his behavior was


intransigent.           Russell' s disclosure to the trial court that he used his business to pay personal

expenses and providing 2000 pages of financial documents did not cure his intransigence.

         In the instant         case,_Russell      initially   reported   his   net   monthly income   as $   5, 500. 00.   After


an appeal to this court and multiple hearings and motions on remand, the trial court determined

Russell'    s   income     was     actually $ 8, 195. 08, and after this appeal his income will increase further.


Russell' s practice of misreporting his income and then providing substantial financial documents

for Amanda         and    the trial   court   to sort through to determine            his true income is intransigent. See


Mattson, 95 Wn. App. at 605 ( where a parent provides conflicting information about his income,

forcing his former spouse to incur increased legal fees to conduct intense discovery, is evidence

of   intransigence).         Accordingly, we remand for the trial court to enter a finding that Russell was

intransigent and award Amanda reasonable attorney fees for her increased legal fees due to

Russell' s intransigence. 10

VII.       ATTORNEY FEES ON APPEAL


           Amanda         and     Russell   request     attorney fees     under    RCW 26. 09. 140     and    RAP 18. 1.      We


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

addition        to statutory      costs.    RCW 26. 09. 140.          When awarding attorney fees, we examine the

arguable merit of           the   issues    and   the   parties'   financial   resources.   In re Marriage of Griffin, 114

Wn.2d 772, 779, 791 P. 2d 519 ( 1990).                       In order to receive attorney fees, the parties must file

financial        affidavits with      the   court no      later than 10 days before         oral   argument.     RAP 18. 1( c).



io The trial court should award only such fees as are reasonable. The amount of Amanda' s claim
for attorney fees appears on its face to be unreasonable in these circumstances.
                                                                     26
42959 -4 -II




Here, Russell failed to file a financial affidavit on time, which precludes an attorney fee award.

Amanda filed her financial affidavit and after careful review, we find she exhibited sufficient


financial need and grant her reasonable attorney fees on appeal.

        We remand to the trial court for further proceedings consistent with this opinion.


        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.




We concur:




        Maxa, J.




          pearman, J. ,




                                                 27
