                                                                            FILED 

                                                                         JUNE 12,2014 

                                                                  In the Office of the Clerk of Court 

                                                                W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Marriage of:                         )
                                               )        No. 31835-4-III
BARRY CRAIG EGGERT,                            )
                                               )
                        Appellant,             )
                                               )
       and                                     )        UNPUBLISHED OPINION
                                               )
KRISTY KAY EGGERT,                             )
                                               )
                        Respondent.            )

       SIDDOWAY, C,J. -      Barry Eggert petitioned the superior court to modify his

spousal maintenance obligation to his ex-wife, Kristy Eggert. His petition was denied by

a court commissioner and, after he moved for revision, the denial was affirmed by a

superior court judge.

       He argues on appeal that the superior court erroneously viewed the spousal

maintenance to which he agreed at the time of dissolution as nonmodifiable. We do not

construe that as the basis for the court's decision, however. Instead, the court recognized

that it was too late for Mr. Eggert to challenge the decree as unfair or as allegedly not

representing the parties' understanding. Accordingly, while he can move to modify its

provision for spousal maintenance, the issue of whether there has been a substantial
No. 3 1835-4-III
In re Marriage ofEggert


change of circumstances is measured with respect to the decree. The superior court

agreed with the court commissioner's analysis that Mr. Eggert did not show a substantial

change of circumstances.

      Having concluded that the trial court did not abuse its discretion, we affirm. We

deny Ms. Eggert's request for attorney fees.

                    FACTS AND PROCEDURAL BACKGROUND

      Barry and Kristy Eggert were married in June 1980 and separated in June 2005. A

decree of dissolution was entered by a court commissioner only two months later, in

August 2005, based on findings of fact and conclusions of law that were mutually agreed

by the parties. At the time the decree was entered, Mr. Eggert was not represented by a

lawyer; Ms. Eggert was.

      Addressing spousal maintenance, the decree provided:

      The husband shall pay $1000.00 maintenance per month for the first year
      after the Decree of Dissolution is filed. After one year, maintenance shall
      increase to $1,500.00 per month. Maintenance shall be paid semi-monthly.
      The first maintenance payment shall be due on September 1, 2005 or the
      first month after the last mortgage payment is made.
             The obligation to pay future maintenance is terminated upon the
             death of either party or the remarriage of the party receiving
             maintenance unless otherwise specified below:
             Payments shall be made directly to the other spouse.

Clerk's Papers (CP) at 10. No other triggers terminating spousal maintenance were

identified. The findings, conclusions, and decree were signed by both parties, by Ms.



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In re Marriage ofEggert


Eggert's lawyer, and by the court commissioner.

       Mr. Eggert made the required payments to his ex-wife for seven years, until

September 2012, when, having engaged a lawyer, he filed a petition for support

modification. He identified the bases for modification as follows:

       The previous order was entered more than five years ago. The Respondent
       has since had the opportunity to obtain employment and has in fact turned
       down employment opportunities. She has also received some income.
       Furthermore, the current order does not specifY the termination date, and as
       such, the order needs to be clarified. Furthermore, the order works a severe
       economic hardship on me as 1 am unable to afford to continue to pay said
       maintenance obligation. The changes in circumstances require a
       modification of the maintenance obligation.

CP at 17.

       His declaration in support of modification included additional facts and reasoning

suggesting that the original decree failed to reflect his and Ms. Eggert's entire

understanding and that it was unfair. He testified that at the time the parties divorced he

was unrepresented, and that his agreement to pay spousal maintenance was based on the

understanding that Ms. Eggert would get a job soon, and that when she did, his obligation

would be reduced or terminated altogether.

       As to changed circumstances, his declaration stated that he had recently been

diagnosed with rheumatoid arthritis and was placed on medication that had caused him to

lose a considerable amount of his vision, leading him to believe that the end of his

working career was fast approaching. He"also disclosed that while he continued to have a



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In re Marriage ofEggert


well paying job, he had a negative net worth, could not meet his monthly expenses, and

had incurred significant credit card debt as a result.

       Ms. Eggert's declaration in opposition to the petition stated that at the time of the

parties' separation her father had a heart condition, her mother was disabled with

Parkinson's disease and had recently had back surgery, and Ms. Eggert had resigned her

longtime position with a school district to care for her parents with Mr. Eggert's

encouragement and agreement. She reported that in the February following her and Mr.

Eggert's divorce, her father accidentally shot and killed her mother, leading to a long

process of proving his innocence. She testified that while she had sought employment,

she had been under too much mental stress to be successful. Her only income had been

from cleaning friends' homes.

       Current financial information before the commissioner at the time the petition was

heard included Mr. Eggert's monthly after-tax, after-payroll deduction and after spousal

maintenance-payment income of$5,037.95, which he was applying to even higher

claimed living expenses that included substantial debt. Ms. Eggert's financial statement

reported receipt of only the $1,500.00 a month spousal maintenance income, but Mr.

Eggert argued that she had admitted receiving as much as $563.00 a month ($6,760.00 a

year) from cleaning homes when she was deposed.

       The commissioner denied the petition for modification. In orally ruling, the

commissioner found no substantial change in circumstances: he found that Mr. Eggert

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No. 3 I 835-4-III
In re Marriage ofEggert


had not lost his eyesight to a degree that prevented him from working and Ms. Eggert

was not employed in circumstances substantially different from those existing at the time

the decree was entered.

       Mr. Eggert moved the superior court for revision, providing the court with a

verbatim transcript of the commissioner's oral ruling. The superior court denied the

motion to revise, while acknowledging that a perpetual support obligation was highly

unusual. In orally ruling, the court suggested that Mr. Eggert might well be saddled with

an obligation more onerous than he would have been had he been represented by a lawyer

at the time of the decree. The court nonetheless observed that "it's not fraud," that Mr.

Eggert "could have [but did not bring] a CR 60 motion to vacate," and "didn't at,tempt in

any fashion to take the matter up to the appellate court." Report of Proceedings (RP) at

6. He characterized Mr. Eggert as, in essence, "attempting ... to retroactively modifY the

decree." Id. at 10. Concluding that "the Commissioner's analysis, I'm satisfied, was

completely appropriate [so] [t]here's no reason to revise," he denied the motion to revise.

Id. at 11. Mr. Eggert appeals.

                                       ANALYSIS

       Mr. Eggert assigns error to each oral ruling and written order entered below by

both the commissioner and the superior court. Once the superior court makes a decision

on revision, however, the appeal is from the superior court's decision, not the

commissioner's. State v. Hoffman, 115 Wn. App. 91, 101,60 P.3d 1261, rev'd on other

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No. 31835-4-111
In re Marriage ofEggert


grounds, 150 Wn.2d 536, 78 P.3d 1289 (2003). Accordingly, we review the superior

court's decision although in this case, as discussed hereafter, the court adopted the

analysis of the court commissioner in denying the motion for revision.

       The standard for modifying a spousal maintenance award is provided by RCW

26.09.170( I), which allows the trial court to "modify a maintenance award when the

moving party shows a substantial change in circumstances that the parties did not

contemplate at the time of the dissolution decree." In re Marriage ofSpreen, 107 Wn.

App. 341, 346,28 P.3d 769 (2001). We review a modification order for abuse of

discretion. In re Marriage ofDrlik, 121 Wn. App. 269, 274, 87 P.3d 1192 (2004). In

determining whether the trial court abused its discretion, we review the order '''for

substantial supporting evidence and for legal error.'" Id. (quoting Spreen, 107 Wn. App.

at 346).

       Mr. Eggert raises what amounts to only one issue on review, although he frames it

as two. He argues, first, that the trial court erred in treating the Eggerts' decree as a

nonmodifiable agreement to spousal maintenance and, second, that we should remand so

that the court can consider whether there has been a substantial change of circumstances.

We reject his premise. The superior court's decision ultimately turned on Mr. Eggert's

failure to demonstrate a substantial change of circumstances. If this was not entirely

clear, it is because Mr. Eggert's petition and Ms. Eggert's response raised three issues

that the parties, the commissioner, and the court sometimes addressed in an overlapping

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No. 31835-4-II1
In re Marriage ofEggert


manner: (1) the modifiable or nonmodifiable character of the original maintenance award,

(2) whether Mr. Eggert was attempting to retroactively modifY the 2005 decree, and (3)

the core issue of whether substantially changed circumstances warranted a modification

of the maintenance award.

       The first issue presented was whether the maintenance award was even subject to

modification, an issue raised when Ms. Eggert responded to the petition by alleging that

"it was agreed that maintenance would not terminate with the exception of upon death or

remarriage of the respondent. The parties had a long-term marriage. The wife gave up

her career for the marriage and is a displaced homemaker." CP at 40. Mr. Eggert

contends that the spousal maintenance provision set forth in the parties' decree is subject

to modification by the superior court. We agree with Mr. Eggert.

       RCW 26.09.170(1) provides that, except as otherwise allowed by RCW

26.09.070(7), a maintenance award shall be prospectively modifiable upon a showing of

substantial change of circumstances. The exception created by RCW 26.09.070(7) is for

separation contracts under which the parties agree that "the decree may expressly

preclude or limit modification of any provision for maintenance set forth in the decree."

The parties' written agreement that maintenance is not modifiable need not be

denominated a "separation contract," and can be reflected in the decree itself. But it must

provide that the maintenance provision is nonmodifiable. See, e.g., In re Marriage of

Glass, 67 Wn. App. 378, 382, 390 n.13, 835 P.2d 1054 (1992) (decree, signed by both

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No. 31835-4-111
In re Marriage ofEggert


parties and their lawyers, provided that the maintenance obligation "'shall be non-

modifiable by either party in duration or amount, except in the event of the premature

death of [the wife]"); In re Marriage ofHulscher, 143 Wn. App. 708, 711, 180 PJd 199

(2008) (decree, which described itself as the parties' agreement and was signed by both,

provided that spousal maintenance would terminate upon the death of either spouse or

remarriage of the wife and, '''Otherwise, the spousal maintenance is not modifiable."').

       In this case, the decree provided for an award of permanent maintenance (subject

to remarriage or death) but includes no language stating that the award is nonmodifiable.

As a result, Mr. Eggert may petition the superior court for modification under RCW

26.09.170(1). The court commissioner recognized this, observing that because there was

"nothing that limits modification[,] I should say[,] or defines when modification should

be had then we look to the statute" and the statutory standard of "substantial change of

circumstances." CP at 251. The superior court concluded that the commissioner's

analysis was appropriate and found no reason to revise.

      The second issue raised below was whether Mr. Eggert's arguments about his pro

se status at the time of the decree, the disfavored character of permanent spousal

maintenance, and a claimed understanding that Ms. Eggert would get a job at which point·

spousal maintenance would end, were attempts to retroactively modify the 2005 decree.

We agree with the superior court that they were a belated challenge to the decree and

irrelevant to the statutory standard of substantially changed circumstances. Mr. Eggert's

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No. 31835-4-111
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opportunity to challenge those matters was years ago; it was too late by the time he

petitioned the court for modification. Pro se litigants are held to the same standards as an

attorney. Kelsey v. Kelsey, 179 Wn. App. 360, 368, 317 P.3d 1096, review denied, No.

90006-0 (Wash. June 4,2014).

       The superior court's discussion in its oral ruling of why it was too late for Mr.

Eggert to raise these challenges to the original decree was lengthy. Mr. Eggert sought to

interject those irrelevant matters into the superior court's consideration of his petition and

the court properly took time to explain why it would not. The discussion of those issues

appears to contribute to Mr. Eggert's confusion about the basis for the trial court's

decision.

       Finally, the third issue-the core, relevant issue presented by the petition-was

whether the parties' circumstances had substantially changed from those existing at the

time of the decree, thereby warranting a modification of the maintenance award. The

relevant evidence and argument presented by Mr. Eggert on the issue of substantial

change of circumstances was addressed to his health and to his and Ms. Eggert's

respective financial circumstances.

       The court commissioner clearly considered whether a substantial change of

circumstances had occurred; as he explained in his oral ruling:

       The substantial change in circumstances that the petitioner in the case
       wants the court to focus on is the employment status or lack of employment
       status on the part of the respondent. [N]o pun intended, there is a

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No. 31835-4-111
In re Marriage ofEggert


        substantial difference between a change in circumstances and a substantial
        change in circumstances. The court could certainly understand that if for
        example the petitioner here in fact was unemployed or had in fact lost his
      . eyesight, which prevented him from working or something such as this. In
        addition to that, if the respondent was not just employed, but if the
        respondent was substantially employed substantially in a substantially
        different circumstance than what she was at the time that the decree was
        entered .

             . . . It does not appear that there is a substantial change in
       circumstances. Not at this time.

CP at 252-53.

       During the hearing on the motion for revision, the superior court announced that it

had reviewed the revision file including the transcript of the commissioner's ruling. The

superior court's oral ruling revealed a thorough familiarity with the file. It spoke at

length about the fact that Mr. Eggert's real complaint appeared to be about the terms of

the decree to which he had agreed without the benefit of counsel and how it was too late

to attack those terms. It also speculated about the issue of modifiability, stating that it

was "not necessarily sure" or "not necessarily convinced" about the modifiability of the

termination triggers in the decree and that "it would seem" the obligation would continue

in perpetuity. RP at 9. On that score it was mistaken, but it only pointed out its

uncertainty on that score; it did not deny the revision motion on that basis. Instead,

having agreed that there was an inadequate showing of change of circumstances, it

concluded that "the Commissioner's analysis, I'm satisfied, was completely appropriate";




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No. 31835-4-111
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that there was "no reason to revise"; and that it would leave the   commissioner~ s   order "in

full force and effect." RP at 11.

       Mr. Eggert has not demonstrated that the superior court abused its discretion in

agreeing with the commissioner that an insufficient change in circumstances had been

shown to justifY modification.

                                       Attorney Fees

       Ms. Eggert requests costs and reasonable attorney fees on appeal pursuant to RAP

18.l(a) and RCW 26.09.140. We may exercise discretion to award attorney fees on

appeal after considering the financial need of the requesting party~ the other party's

ability to pay~ and the arguable merits of the issues raised on appeal. In re Marriage of

Pennamen, 135 Wn. App. 790, 807-08, 146 P.3d 466 (2006).

       Both parties filed timely financial declarations. While Mr. Eggert's income is

some three times' Ms. Eggert's income, his financial statement also reflects substantial

debt, including student loans. His petition and appeal were not without merit. We

decline to award attorney fees or costs.

       Affirmed.

       A majority of the panel has determined that this opinion will not be printed in the




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Washington Appellate Reports but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR: 




Brown, J.



Lawrence-Berrey, J.




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