                                                                                                                   FILED
                                                                                                             COURT OF
                                                                                                                      APPEALS
                                                                                                                DIVISION II
                                                                                                        2015? 1AR 10
                                                                                                                     MI 6: 36
                                                                                                        STATM       fs S
                                                                                                                              TON
                                                                                                        BY
    IN THE COURT OF APPEALS OF THE STATE OF WASHING

                                                 DIVISION II

 ANNE SPRUTE,                                                                            No. 456.08 -7 -II


                                       Respondent,


          v.

                                                                               PART PUBLISHED OPINION
 ERIC BRADLEY,


                                       Appellant.




          MAXA, J. —   Eric Bradley appeals the trial court' s orders in a dissolution action relating

to his obligations to pay his son' s college expenses and his daughter' s child support. Bradley

argues that the trial court erred by ( 1) ordering postsecondary educational support for his son

even though his former wife Ann Sprute did not file her child support worksheets until after the


deadline for filing the request for such support, (2) concluding that Sprute' s Post 9/ 11 GI Bill

benefits did not   reduce   his   portion of   postsecondary        educational support, (       3) failing to cap the

total amount of postsecondary educational support at the amount charged by the University of

Washington, Seattle ( UW),         and ( 4) using the one -child column rather than the two -child column

of the child support schedule to determine the support for his minor daughter.


          We hold that ( 1) Sprute was not required to file her child support worksheets with her


request   for postsecondary       educational support   in       order   to   timely   request such support, ( 2)




Sprute' s GI Bill benefits could only be applied to reduce her own postsecondary educational

support obligations under         38 U. S. C. § 3319( f)(3), ( 3) the trial court did not abuse its discretion


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by failing to cap postsecondary educational support at the amount charged by UW, and ( 4) the

trial court erred by using the one -child column to calculate child support for the parties' minor

child because the parties were supporting two children. We consider and reject Bradley' s

additional arguments in the unpublished portion of this opinion. Accordingly, we affirm the trial

court' s order except for the child support •provision. We reverse on that issue and remand for re-

calculation of child support for the daughter consistent with this opinion.


                                                    FACTS


          When Sprute and Bradley divorced in 2003, the trial court entered an order of child

support   providing for their   children   Joshua ( then   age   8)   and   SB ( then   age   5).   Sprute was an


active member of the United States Army and remained so until she retired in 2010 after 23 years

in the military.

          In 2011, the parties agreed to amend their previous child support order to read:


          3. 13 Termination of Support
          Support shall be paid until the children reach the age of 18, or as long as the children
          remain( s)   enrolled in high school, whichever occurs last, except as otherwise
          provided below in Paragraph 3. 14.


          3. 14 Post Secondary Educational Support
          The right to request post secondary support is reserved, provided that the right is
          exercised before support terminates as set forth in paragraph 3. 13.


Clerk' s Papers ( CP) at 168.


          In May 2013, Sprute filed a petition to modify the parties' 2011 amended child support

agreement, requesting that the trial court award postsecondary educational support for Joshua.

The petition was filed before Joshua graduated from high school. However, Sprute did not file




                                                       2
45608 -741




child support worksheets with the petition. Sprute eventually filed her child support worksheets, .

financial declaration, and sealed financial documents on August 19, after Joshua had graduated.


       In his response to the petition to modify, Bradley argued that ( 1) the court did not have

authority to rule on the petition based on the parties' 2011 amended child support agreement

                                                                                petition, ( 2)   Sprute' s Post 9/ 11
because Sprute had     not   timely filed   the   worksheets   supporting the


GI Bill benefits should be applied to reduce Sprute and Bradley' s joint obligation for Joshua' s

educational support, and ( 3) the court should cap Joshua' s award of educational support at the

amount charged by UW.

       The commissioner ( 1) found that Sprute had timely filed her petition to modify the child

support order; (   2) ordered Bradley to pay 46 percent of Joshua' s tuition, room, and board at

Colorado State University up to the amount annually paid at UW; and ( 3) ordered that both
parents receive a pro rata deduction in their payments toward Joshua' s educational expenses if


Sprute chose to use her GI bill benefits for those expenses. The commissioner also ordered


Bradley   to pay $ 1, 501. 44 per month in child support for SB based on the one -child column of the


economic table of the child support schedule.


        Sprute filed a motion to revise the commissioner' s order. The trial court revised the

commissioner' s order in two respects. First, the trial court ordered that if Sprute chose to use her


Post 9/ 11 GI Bill benefits, those benefits would apply toward her share of Joshua' s educational

support only. Second, the trial court ordered that both parents pay their pro rata shares of

Joshua' s total annual expenses at Colorado State University, regardless of the cost of attending

UW.


        Bradley appeals.



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45608 -7 -I1



                                                ANALYSIS


A.      AUTHORITY TO AWARD POSTSECONDARY EDUCATIONAL SUPPORT


        Bradley argues that the trial court did not have authority to award postsecondary

educational support for Joshua because ( 1) in order for the request for postsecondary educational

support to be timely, Sprute had to file both the motion to modify and the child support

worksheets before support terminated, and ( 2) Sprute failed to file child support worksheets until

Joshua' s support had terminated. We disagree.


        The 2011 amended child support order reserved the right of a party to request

postsecondary educational support, provided that the right was exercised before the child' s

support terminated. Joshua' s child support obligation terminated when he graduated from high


school. Sprute filed her petition to modify child support, which included a request for

postsecondary educational support for Joshua, before Joshua' s support terminated at his

graduation. But she did not file child support worksheets supporting the motion until after

support had terminated.


        Bradley    relies   on RCW 26. 09. 175 ( 1), which states that a proceeding for the modification

of a child support order " shall commence with the filing of a petition and worksheets."

 Emphasis      added.)   He argues that under this statute, a party does not exercise a right to request

postsecondary educational support until both a petition to modify and child support worksheets

are filed. Therefore, the issue is whether " exercising the right" to request postsecondary

educational support requires a party only to file a petition to modify the child support order, or

requires a party to file both the petition and the child support worksheets as contemplated in

RCW 26. 09. 175.




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45608 -7 -II



         The interpretation of a child support order presents a question of law, which we review de

novo.   In   re   Marriage of Sagner, 159 Wn.          App.   741, 749, 247 P. 3d 444 ( 2011).     Similarly, the

interpretation of a statute presents a legal question that we review de novo. Anthis v. Copland,

173 Wn.2d 752, 755, 270 P. 3d 574 ( 2012).


         We hold that Sprute exercised her right to request postsecondary educational support by

filing her petition to modify for two reasons. First, the child support order did not state that a

party had to commence a child support modification " proceeding" before support terminated,

just that a party exercise the right to request postsecondary educational support before support

terminated. A party exercises the right to request postsecondary educational support by filing a

petition to modify the child support order. In re Marriage ofMorris, 176 Wn. App. 893, 902,

309 P. 3d 767 ( 2013).          Sprute filed such a petition. We hold that filing a petition to modify, even

without also filing child support worksheets, is sufficient to exercise the right to request

postsecondary educational support.'


         Second, Division Three of this court in In re Marriage ofPollard held that the effective

date of child support modification was the date the party filed a petition to modify, even when

the party did not file child support worksheets until a year later. 99 Wn. App. 48, 55 -56, 991

P. 2d 1201 ( 2000). While acknowledging the language                 of   RCW 26. 09. 175( 1),   the court stated,




1 In addition, the court in Morris did not require a party to strictly comply with statutory
procedures        for the trial   court   to have authority to   award   postsecondary   educational support.   176

Wn. App. at 902 -04. In Morris, a party requesting postsecondary child support filed a motion for
adjustment of the child support order instead of a petition for modification. Id. at 896. By the
time the party' s mistake was discovered, it was too late to correct because the child' s support had
terminated. Id. at 896 -97. The court ruled that the proper procedure was a motion to modify. Id.
at 901 -02. Nevertheless, the court held that filing the motion for adjustment was harmless error
and   that the trial    court     had authority to   award   postsecondary   educational support.    Id. at 902 -04.
45608 -7 -II




 We find no statutory mandate that all required documents must be attached before a motion for

modification       is deemed filed."         Pollard, 99 Wn. App. at 55 -56. We adopt the same rule in the

context of the exercise of the right to request postsecondary educational support.

         We hold that under the facts here, Sprute exercised her right to request postsecondary

educational support when she filed her petition to modify. This occurred before Joshua' s support

terminated. As a result, we hold that the trial court had authority to award postsecondary

educational support for Joshua.


B.       CREDIT FOR POST 9/ 11 GI BILL BENEFITS


         Bradley argues the trial court erred by failing to apply Sprute' s Post 9/ 11 GI Bill benefits

to reduce both parties' joint postsecondary educational obligation for Joshua. Sprute argues that

giving Bradley credit for GI Bill benefits would be an impermissible division of benefits under

38 U. S. 0 § 3319( f)(3).          As noted above, the interpretation of a statute is a legal issue we review


de   novo.      Anthis, 173 Wn.2d       at   755. We agree with Sprute.


           1.     GI Bill Educational Benefits


         The Post 9/ 11 Veterans Educational Assistance Act of 2008, also known as the Post 9/ 11


GI Bill,    went   into   effect   in August 2009. See 38 U. S. C. §        3001 et seq.; Neville v. Blitz, 122 So.

3d 70, 73 ( Miss. 2013).           Under this act, Sprute is entitled to tuition assistance, a stipend for each


semester' s books, and a monthly housing stipend if she chooses to pursue an education. 38

U. S. C. § 3313( c)( 1).     And the statute authorizes Sprute to transfer up to 36 months of her

benefits to her     eligible   dependent       children.   38 U. S. C. § 3319( c)( 2), ( d).   If Sprute chooses to


transfer    her benefits, the "[      e] ntitlement   transferred ...   may not be treated as marital property, or




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45608 -7 -II




the   asset of a marital estate, subject        to division in      a   divorce   or other civil   proceeding."   38 U.S. C.

  3319( f)(
          3).


          2.     Division of Post 9/ 11 GI Bill Benefits


          Bradley       admits   that 38 U. S. C. §   3319( f)(3) prohibits Sprute' s benefits from being divided

as property in any dissolution action. But he disputes the characterization of Sprute' s GI Bill

benefits as her property. Instead, Bradley argues that if and when Sprute elects to transfer her

benefits to Joshua, those benefits become a gift to Joshua in the form of a payment from a third


party or Joshua' s own contribution to his education. Bradley claims that gifts to the child or the

child' s own contribution to his educational expenses must reduce pro rata both parents'


obligation to pay the remaining expenses.

          No Washington case has addressed how a service member' s Post 9/ 11 GI Bill benefits


should be treated for purposes of awarding postsecondary educational support of a child in light

of   38 U.S. C. § 3319( f)(3).       However, the Mississippi Supreme Court addressed the issue in


Neville, 122 So. 3d 70.


          In Neville, the father transferred Post 9/ 11 GI Bill educational benefits to his daughter.

Id. at 71.     The trial court ordered the divorced parents to divide their daughter' s college expenses


equally after deducting the father' s GI Bill benefits. Id. at 72. On appeal, the father argued that

the trial    court' s   treatment   of   his GI Bill benefits   violated     38 U. S. C. § 3319( f)( 3).   Id. at 72 -73.


The Mississippi Supreme Court agreed, stating:

          While the chancellor did not label the benefits as marital property, his instruction
          to take the benefits off the top of [the daughter' s] expenses gave [ the mother] a
          credit that she otherwise would not have had and resulted in [the father] not getting
          full credit for all of the Post- 9/ 11 GI Bill benefits.




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45608 -7 -II



Id. at 74. The         court   held that   under   the language    of                         3), the trial
                                                                        38 U. S. C. § 3319( f)(


court' s order was effectively a " division" of the father' s GI Bill benefits. Id. at 74.

Moreover, even though the proceeding was not an original divorce proceeding, the

father' s petition to modify was a " civil proceeding" pertaining to modification of the

parent' s divorce decree. Id. Therefore, the court concluded that giving the mother credit

for the father'    s   GI Bill benefits     violated   38 U. S. C. § 3319( f)(3).     Id. at 74.


             The court in Neville also addressed the mother' s argument that the father' s GI Bill


benefits belonged to the daughter once they were transferred. The court reasoned that because

the   service member could revoke             the benefits    at   any time   under   38 U. S. C. § 3319( f)( 2), the


service member was still in control of the transferred benefits and the benefits still belonged to


him. Neville, 122 So. 3d at 74. Consequently, the court held that the father should be credited

for all of his benefits for the purposes of the parents' division of their daughter' s educational

support, and that none of the father' s benefits should be credited to' the mother. Id.


             We adopt the reasoning in Neville. Allowing Bradley to get credit for a portion of

Sprute' s GI Bill benefits would have the practical effect of dividing those benefits, in violation of

the   plain   language     of   38 U. S. C. § 3319( f)( 3).   As a result, we hold that if Sprute chooses to


transfer her benefits to Joshua, her benefits should be deducted only from her obligation to pay

Joshua' s college expenses.


             Bradley argues that we should not follow Neville, but instead should adopt the reasoning

in In   re   Marriage of Boisen, 87 Wn.            App.   912, 943 P. 2d 682 ( 1997).       In Boisen, a divorce decree


provided that each spouse would pay half of the children' s college expenses. Id. at 914. The

mother remarried.          Id. Although the         mother and     her   second   husband   separated and     later
45608 -7 -II



divorced, the second husband voluntarily paid in full two of the children' s college expenses with

his   separate   property. Id. at 914 -15.     The mother sued the father, claiming that he was obligated

to reimburse her for half of the college expenses that her second husband paid. Id. at 915.


          We held that although the father was required to pay half of the college expenses, a

 necessary corollary" was that he would get credit for half of any third -party payment of those

expenses.      Id. at 921.   Because the expenses had been paid in full, the one -half credit eliminated


the father' s obligation to pay educational expenses. Id.

          Boisen is distinguishable from this case. Here, there is no " third party" paying for

Joshua' s education because the GI Bill benefits belong to Sprute. Sprute currently possesses the

right to use her benefits, and should she choose to transfer them to Joshua, the transfer would be


from Sprute to Joshua. Moreover, any transfer in this case is unlike the gift in Boisen because

Sprute possesses the unqualified right to revoke the transfer at any time. 38 U.S. C. §

3319( f)(2)( A) ( "An    individual transferring entitlement under this section may modify or revoke

at   any time the transfer    of   any   unused portion of   the   entitlement so   transferred "). These



distinguishing features demonstrate that Boisen is inapplicable here.




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45608 -7 -II



         Based      on   38 U.S. C. § 3319( f)(3), we affirm the trial court' s conclusion that Sprute' s


benefits should only be deducted from her share of her obligation to pay Joshua' s education

expenses. 2

C.        CAPPING EDUCATION EXPENSES


         Bradley argues that in ordering payment of postsecondary educational expenses, the trial

court abused its discretion by failing to cap Joshua' s total expenses at the amount charged by

UW. He claims that he should not have to pay extra because of Joshua' s decision to attend an

expensive out -of s
                  -tate college. We disagree.


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

Marriage of Cota, 177 Wn.             App.   527, 536, 312 P. 3d 695 ( 2013).        A trial court abuses that


discretion when its decision is based on untenable grounds or reasons. Id. at 536.


         RCW 26. 19. 090( 2) sets forth the criteria that the trial court should consider when making

an award for postsecondary educational support. The trial court initially must find that the child

is dependent       and "   relying   upon   the   parents   for the   reasonable necessities of   life." RCW


26. 19. 090( 2).    Once that threshold requirement is satisfied, the trial court must also consider the


following non -exhaustive list of factors:

          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




2
    Bradley argues in the alternative that the trial court should have considered Sprute' s benefits as
income on the child support worksheets. In the trial court, Bradley failed to raise the issue of
whether the court should treat Sprute' s benefits as income for purposes of the calculation of the
parties' child support worksheets. Moreover, in Bradley' s own calculation of Sprute' s income at
the trial court, he failed to include Sprute' s benefits. Because Bradley failed to raise the issue of
applying Sprute' s benefits as income on the child support worksheets below, he may not raise the
issue on appeal, and under RAP 2. 5( a) we do not consider it.



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45608 -7 -II



          disabilities; the nature of the postsecondary education sought; and the parents' level
          of education, standard of living, and current and future resources.

RCW 26. 19. 090( 2). " Also to be considered are the amount and type of support that the child


would    have been     afforded   if the   parents   had   stayed   together."      RCW 26. 19. 090( 2).


         Bradley does not argue that the RCW 26. 19. 090( 2) factors do not support the trial court' s

postsecondary educational support award, and in fact he does not even cite to the statute.

Instead, he argues that it is not fair to make him pay for the most expensive college alternative,

and that he does not have sufficient income to pay the award. However, the parents' current and

future resources is only one of several factors the trial court can consider: In the absence of

specific arguments, we defer to the trial court's discretion on the amount of postsecondary

educational support.3

          Bradley cites to In re Marriage ofShellenberger, 80 Wn. App. 71, 906 P. 2d 968 ( 1995),

apparently in support of his argument that he cannot afford to pay the award. In Shellenberger,

Division One of this court held that a trial court abuses its discretion if it awards a postsecondary

educational support obligation that would force a parent into bankruptcy or would require

liquidating    the   family home.    Id. at 84. The        court stated   that "[   t]his is especially true where the

parent also supports a minor child, and the postsecondary support obligation prevents the parent

from meeting that       obligation   to the   minor child."        Id. at 84. However, Bradley produced no

evidence that paying Joshua' s postsecondary educational support would burden him to the point




3
    Bradley notes that the trial court did not make any specific findings. RCW 26. 19. 090 sets forth
no requirement that the trial court explicitly consider the factors on the record. Cota, 177 Wn.
App. at 537. And we presume that the court considered all evidence before it in fashioning an
order on postsecondary educational expenses. Id.


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45608 -7 -II




of filing for bankruptcy. See Cota, 177 Wn. App. at 539 ( holding that father failed to

demonstrate sufficient financial hardship to negate the trial court' s award of postsecondary

educational support when the father showed only that his expenses exceeded his income).

             Bradley' s other argument is that postsecondary educational support generally must be

limited to the cost of a public school, citing Shellenberger and In re Marriage ofStern, 57 Wn.

App.    707, 789 P. 2d 807 ( 1990). In Shellenberger, the court held that before a trial court can


require a parent to pay for postsecondary educational expenses at a private institution, it must

 make specific findings as to the cost and availability of college education in the child' s chosen

field   at   publicly funded institutions."            80 Wn.       App.     at   85. The      court reasoned, "    A trial court


should not require objecting parents of modest means to pay for private college where the child

can obtain a      degree in his      or   her   chosen      field   at a   publicly   subsidized     institution." Id.


             In Stern, Division One of this court held that a trial court abused its discretion when it


ordered a father to pay an income -proportionate share of his minor children' s private school

education expenses. 57 Wn. App. at 717. Because there was no evidence of the children' s need

for private school or a lack of an available public school, the court held that there was


insufficient     evidence      to   support     the trial   court' s award.        Id.   at   719 -20. However, the court


cautioned that its holding was not a " per se prohibition against the award of private school tuition

for   a minor child."     Id. at 720. The court further recognized that special circumstances " such as


family tradition, religion, and past attendance at a private school, among others, may present

legitimate      reasons   to   award private school           tuition      expenses      in favor   of   the   custodial parent."   Id.


             Neither Shellenberger nor Stern compels a cap on postsecondary educational support.

Here, the trial court made specific findings justifying Joshua' s selection of an out -of -state school



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45608 -7 -II




that had an outstanding program in his chosen field. Moreover, Bradley and Sprute had a history

of sending their children to private educational institutions and incurring tuition and fees far

above what parents would incur if they sent their child to a public school. The trial court here

recognized that this familial tradition, which was a special circumstance under Stern, reasonably

justified the court' s award of postsecondary educational support that was above the amount of

tuition at UW.


         We hold that the trial court did not abuse its discretion in awarding postsecondary

educational support or by refusing to cap the amount of such support based on the cost of

attending UW.

D.        CHILD SUPPORT WORKSHEETS


         Bradley argues the trial court erred in modifying his support obligation for SB by

applying the one -child column of the economic table of the child support schedule rather than the

two -child   column.`   We agree.


          We review child support modifications for a manifest abuse of discretion. In re


Parentage of Goude, 152 Wn.            App.   784, 790, 219 P. 3d 717 ( 2009).   A trial court necessarily

abuses its discretion if its decision is based on an erroneous view of the law. In re Marriage of

Choate, 143 Wn. App. 235, 240, 177 P. 3d 175 ( 2008).

          Chapter 26. 19 RCW directs the trial court to set or modify a basic child support

obligation based on the parents' combined monthly net income and the number and ages of the

children "   for   whom support   is   owed."   RCW 26. 19. 011( 1), .   020; In re Marriage ofMcCausland,



4
    Using the one -child column resulted in an increased child support obligation of $184 per
month.




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45608 -7 -II




159 Wn.2d 607, 611, 152 P. 3d 1013 ( 2007). A parent' s support obligation per child is reduced'


when there are multiple children in the family. RCW 26. 19. 020.

           Postsecondary educational expenses constitute child support. Cota, 177 Wn. App. at 542.

As a result, because of the trial court' s award, Joshua is a child for whom support is owed.

Therefore, the trial court should have used the two -child column of the economic table. See In re

Marriage of Daubert, 124 Wn.         App.   483, 502 -03, 99 P. 3d 401 ( 2004),   abrogated on other




grounds, In re Marriage ofMcCausland, 159 Wn.2d 607, 152 P. 3d 1013 (2007).

           Sprute argues that the trial court had discretion to use the one -child column of the


economic     table because the   parties'   combined   income   exceeded $   12, 000 per month. If the


parents'    combined   monthly income is     more   than $ 12, 000, RCW 26. 19. 020 gives the trial court


discretion to exceed the economic table based on written findings of fact justifying its decision.

McCausland, 159 Wn.2d at 620. However, the trial court here made no such written findings


justifying its decision to exceed the economic table. Therefore, Sprute' s argument has no merit.

           We hold the trial court should have used the two -child column of the economic table.


           We. consider and reject Bradley' s remaining arguments in the unpublished portion of this

opinion. We affirm the trial court' s order except for the child support provision relating to the

parties' daughter, and remand for recalculation of child support for the daughter consistent with


this opinion.



           A majority of the panel having determined that only the foregoing portion of this opinion

will be printed in the Washington Appellate Reports and that the remainder shall be filed for

public record in accordance with RCW 2. 06. 040, it is so ordered.




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45608 -7 -I1



          Bradley also argues that the trial court erred in ( 1) finding Sprute had substantially

complied with Bradley' s discovery requests and subsequently discontinuing discovery, and ( 2)

failing to make specific findings justifying its imposition of an award of postsecondary

educational support greater than 45 percent of Bradley' s monthly income. We disagree. We

also decline to award attorney fees to either party.

A.        DISCOVERY REQUESTS


          Bradley argues that the trial court abused its discretion when it held that Sprute had

substantially complied with his discovery requests and when it declared its ruling was a final

order cutting off subsequent discovery. We disagree.

          1.   Discovery Facts

          On June 24, 2013, Bradley sent his first set of interrogatories and requests for production

to Sprute. Sprute responded to the interrogatories and requests for production, but Bradley

claimed that some answers to the interrogatories were incomplete. On August 22, Bradley filed

a motion to compel Sprute to completely answer his first set of interrogatories and to produce

certain   documents.   Sprute' s counsel emailed her response to Bradley' s counsel addressing each

of Bradley' s discovery concerns. On August 30, the commissioner held that Sprute had

substantially answered the interrogatories, but ordered Sprute to provide additional bank

statements and to supplement her financial declaration to explain her extraordinary expense

calculation. The commissioner also ordered Sprute to provide Bradley with her dates of

employment and income at Microsoft Corporation.




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        2.     Analysis


        We review a trial court' s discovery order for an abuse of discretion. Clarke v. Office of

Att' y Gen., 133 Wn.     App.    767, 777, 138 P. 3d 144 ( 2006). A trial court abuses that discretion


when its decision is based on untenable grounds or reasons. In re Marriage ofNewell, 117 Wn.

App. 711, 718, 72 P. 3d 1130 ( 2003).

        First, Bradley argues the trial court abused its discretion because the court' s discovery

orders prevented him from determining whether Sprute was underemployed, whether Sprute had

accurately reported her military retirement pay, and the extent of Sprute' s military educational

benefits that she would use. But Sprute provided Bradley with her declaration outlining her

earnings for parts of 2010 and 2011, bank statements showing her monthly military retirement

payments, and    tax   returns   for 2008 , 2009, 2011   and   2012, , all of which should have given


Bradley a clear indication of Sprute' s past, current, and potential earning power.

        Second, Bradley argues he should have been allowed time to request additional discovery

on Sprute' s gross military retirement payments. He admits that he received information

regarding Sprute' s actual payments from her retirement, but he contends that he had a right to

know whether any allotments or other deductions were being removed from Sprute' s gross

retirement pay. But there is no clear indication that allotments or tax deductions from Sprute' s

gross retirement were relevant or could lead to the discovery of admissible evidence regarding

Sprute' s net income. CR 26( b).


        Third, Bradley argues that he should have been allowed to conduct additional discovery

to determine what type and how much of Sprute' s military benefits she would have to use to




                                                         16
45608 -7 -II




further Joshua' s education. Bradley fails to state what type of information additional discovery

could have uncovered that would have assisted him in arguing his theory of the case. And

Bradley   easily   could   have   accessed   38 U. S. C. §   3301 et seq., which governs the educational

benefits afforded to a qualifying military member or their child. Or he could have reviewed

Sprute' s military handbook explaining her educational benefits, which the record shows was also

provided to Bradley in the discovery process.

        Based on this record, Bradley already had multiple sources of information to pursue to

argue his theory of the case. The trial court could have reasonably concluded that based on

Bradley' s access to this information, any subsequent discovery requests following the final order

would have been to pursue irrelevant information for a child support modification or to collect


cumulative information on Sprute' s employment and military benefits. We hold that the trial

court did not abuse its discretion when it held that Sprute had substantially complied with

discovery requests or when it held that its ruling was a final order cutting off subsequent

discovery.

B.      45 PERCENT CAP ON CHILD SUPPORT


        Bradley argues that the trial court' s order of postsecondary educational support violated

RCW 26. 19. 065( 1) because it increased his child support obligation to more than 45 percent of


his net income. However, Bradley failed to preserve this argument for appeal because he never

made it before the commissioner or the trial court.




                                                             17
45608 -741




        Bradley admits that he failed to raise this argument at the trial court, but argues that we

should consider the issue because it involves a potential statutory violation. However, under

RAP 2. 5 we generally do not review issues raised for the first time on appeal unless the party

claims: (   1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be


granted, and ( 3) manifest error affecting a constitutional right. Bradley does not argue that any

one of these exceptions apply. Accordingly, we decline to address this argument on appeal.

C.      ATTORNEY FEES


        Both Sprute and Bradley request an award of reasonable attorney fees on appeal. We

decline to consider either request.


        Sprute     requested an award of            attorney fees     under   RAP 18. 1.   However, RAP 18. 1 does


not provide an independent basis for the award of fees. It allows for an award of fees only if the

requesting party has the           right   to   recover   attorney fees based    on " applicable   law." RAP 18. 1( a).


Sprute does not identify any grounds for the award of attorney fees under applicable law.

        Bradley did not reference attorney fees in his opening brief, and only requested an award

of attorney fees in his reply brief. A party requesting attorney fees must " devote a section of its

opening brief to the       request     for the fees       or expenses."   RAP 18. 1( b); see also Hawkins v. Diel,


166 Wn.     App.   1, 13   n. 2,   269 P. 3d 1049 ( 2011) (       fee request must be raised in opening brief under

RAP 18. 1).


        Accordingly, we decline to consider either parties' request for attorney fees on appeal.




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        We affirm the trial court' s order except for the child support provision relating to the

parties' daughter. We reverse on that issue and remand for recalculation of child support for the

daughter consistent with this opinion.




 We concur:




    HANSON, C. J.




 Li.,E, J.




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