Opinion
No. 30586-1-II
Filed: August 24, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 98-3-01350-7. Judgment or order under review. Date filed: 06/06/2003. Judge signing: Hon. Thomas P Larkin.
Counsel for Appellant(s), Geoffrey Colburn Cross, Attorney at Law, 252 Broadway, Tacoma, WA 98402-4005.
Counsel for Respondent/Cross-Appellant, Herbert Gelman, Attorney at Law, 1101 Fawcett Ave Ste 300, Tacoma, WA 98402-2015.
Teresa Asplund appeals, arguing that the trial court erred in denying her motion to modify a child support order based on an escalator clause. Grant Asplund cross-appeals, arguing that the trial court erred in deviating from the child support schedule and in not awarding him day care expense reimbursement. We affirm.
FACTS
When the Asplunds dissolved their 11 year marriage, the parties agreed to distribute Grant's future bonuses for child support computation. In its findings, the trial court listed Grant's monthly income as $4,873.14, but it noted that this income was calculated based only on his $85,000.00 annual gross salary without including bonuses, etc. It is expected that the father will receive bonuses or additional income. The amount of said bonuses or additional income is unknown to the parties at this time. The husband shall provide to the wife verification of his year to date earnings to include base salary, bonuses and any additional income on April 1, August 1 and December 1 of each year. In addition, the parties shall exchange their complete tax returns on or before April 1 of each year. The father's additional child support obligation for the bonuses and/or additional income he may receive is provided for in Paragraph 3.16.
We use the parties' first names for clarity.
Clerk's Papers (CP) at 2-3. Paragraph 3.16 included an escalator clause: Child support shall be adjusted periodically as follows: The father shall pay 17% of the gross amount of any bonuses or additional income he receives within ten (10) days of receipt of the same as more specifically discussed in Paragraph 3.2 herein. $1,232.00 basic child support obligation not including father's daycare [sic] contribution [divided by] $7,083.34 (father's gross monthly income) = 17%. CP at 5. Finally, in ordering child support, the trial court noted that Grant had `another child, Kyle, age 12 [at the time of the dissolution], for whom [he had] a duty to pay support,' and reduced Grant's schedule-based child support from $2,035.76 per month to $1,810 per month. CP at 3.
More than two years later, Teresa petitioned for a child support modification based on the escalator clause. Grant responded and sought reimbursement for his $579 per month day care expense payments made to Teresa, arguing that Teresa's fianc`, not she, paid for child care. Respondent's Brief at 29.
The trial court found that Teresa's fianc` paid $500 per week for nannies and that the children were `in daycare [sic] and/or with [Teresa's] parents from the entry of the Decree until June of 1990, without costs to [Teresa].' CP at 124. But it declined to order reimbursement to Grant for child care expenses.
The trial court also declined to enforce the escalator clause, but it did award Teresa $17,100 in back child support and $5,337 in attorney fees. In declining to follow the escalator clause, the court found:
At the time of the dissolution, [Grant's] prospective income was uncertain as he had changed jobs.
[Grant], during the time that he was married and prior to the separation of the parties, had jobs from which he received bonuses. His income with bonuses averaged between $85,000 and $115,000 per year. [He] obtained employment with Meta-Info approximately one year after separating from his wife. He obtained employment with the company from whom he received stock options subsequent thereto. The options that he obtained were earned and became vested after the dissolution of the parties. The sums that he obtained were reinvested to diversify his holdings.
In 1999, [Grant's] income, with bonuses and stock options, was $286,194. In 2000, with bonuses and stock options, it was $2,809,948. In 2001, with bonuses and stock options, it was $2,793,732. In 2002, [Grant] received approximately $600,000 in bonuses and stock options, in addition to his regular salary of $82,000. He no longer will receive stock options.
[Grant] now manages his own company and estimates that his income, including year-end bonuses, may be $250,000. He is paid a salary of $85,000 per year from his corporation. The extra income is dependent upon the success of the company.
[Grant] never paid any additional money to [Teresa] pursuant to the bonus provision in the Order of Child Support.
That [Grant] has been paying support for a child that was not born of the marriage to [Teresa]. That the amount of support he was ordered to pay was $1800 per month, which included three children, one of whom was not his child, and included expenses for day care.
CP at 122-23.
In its oral ruling, the trial court explained:
[S]upport is not meant to create estates for children. It's not meant and Courts shouldn't dictate how dads or parents distribute huge amounts of money. I agree with that, but the stock options and there was an expectation in this support agreement that was signed by the parties that there would be some money coming back to Mom and the kids if Dad got more money. That's part of the agreement. But it can't be interpreted that it's some unlimited amount up to infinity.
What does it have to be based on? . . . It has to be based on the needs of the child and the parents' ability to pay, and the Court has . . . some discretion in that. And so is there a big windfall for Mom out of all of this? Unfortunately no. . . .
But are the kids entitled to something more? Yeah, his ability to pay is more and their lifestyle in a reasonable way [is] based on what their needs are, and they have a need to a decent place to live, they have a need to get a good education, to participate in soccer and ballet and music lessons and all of these extracurricular things that they can do.
. . . .
There was an escalator [clause], and if it would have been brought about and if we would have communicated fully on what was going on both sides, any judge who would have seen this would have escalated child support for 2000, 2001, and 2002 as I'm going to do. . . .
. . . .
. . . So I'm escalating support for the year 1999 or $900 a month. For 2000 the same amount and up to this date. So that's roughly 1999, the year 2000, and the year 2001.
And now I'm setting support based on what I think are the basic and reasonable needs of the kids concerning the situation of the two parties and where they've been as a husband and wife and what their standard of living was and what their expectations for these kids are and where they were going together in their journey through life that was interrupted after ten years of marriage.
I'm going to set support in the amount of $1,500 per child. That's $3,000 a month. Now, that's a significant increase in the amount of support. . . . And it's a significant deviation from the standards that I take a look at, but as I said, Courts don't get a lot of help so we're looking at cost of housing, of good education, of a decent car and transportation for which they get the benefit of it, and certainly, it's an insignificant amount in consideration of Dad's total income in all of this.
I think that also as a parent raising kids and understanding what the cost of this is and as they get older, it covers not a high standard of living, but it covers an above average standard of living, and I think that's what the expectation of these parties have been throughout their lives, what it is and what it should be for these kids so that they have an opportunity to do all of these extra things.
Report of Proceedings (4/1/03) (RP) at 130-32.
Grant moved for reconsideration, arguing that the trial court did not define the parties' income in order to set child support; did not select the correct child support modification start date; and did not properly set child support and award attorney fees. On reconsideration, the trial court changed the modification start date. It otherwise denied the motion for reconsideration.
Both parties appeal.
ANALYSIS Teresa's Appeal
Teresa first contends that the trial court erred in not ordering Grant to pay `17% of the gross amount of any bonuses or additional income he receive[d] within ten (10) days of receipt of the same.' CP at 5.
We review a trial court support order for abuse of discretion. In the Matter of the Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). A trial court abuses its discretion when it bases its decision on untenable grounds or untenable reasons. Booth, 114 Wn.2d at 776. We review whether substantial evidence supports a trial court's findings and whether the findings, in turn, support its conclusions of law. Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999).
Here, the trial court determined that the Asplunds' escalator clause was unenforceable because support `can't be interpreted that it's some unlimited amount up to infinity.' RP at 130. We agree.
A valid escalator clause must relate to the child's needs and the noncustodial parent's ability to pay and must set a maximum support `ceiling above which support payments cannot rise.' In the Matter of the Marriage of Edwards, 99 Wn.2d 913, 919, 665 P.2d 883 (1983); In the Matter of the Marriage of Stoltzfus, 69 Wn. App. 558, 559, 849 P.2d 685, review denied, 122 Wn.2d 1011 (1993). The escalator clause here did not provide for a ceiling and, under Edwards, it cannot be enforced. Stoltzfus, 69 Wn. App. at 560.
Nevertheless, Teresa attempts to distinguish Edwards, arguing that in that case the trial court, and not the parties, imposed the escalator clause. In support of her argument, Teresa also cites Untersteiner v. Untersteiner, 32 Wn. App. 859, 650 P.2d 256 (1982). In Untersteiner, the court upheld a maintenance order where the parties had voluntarily entered into an Austrian alimony plan that contravened Washington law and, as the court explained:
The case before us involves . . . the enforcement of an independent contract voluntarily proposed by the former husband, executed after the finalization of an Austrian decree of divorce and never incorporated into that decree by a court. . . . `[A]n agreement of a husband to pay a designated amount of support is an undertaking which is favored by the courts.' Nothing in law, public policy or reason prohibits a former spouse from voluntarily and formally obligating himself or herself to do more than the law requires in providing support for a former spouse.
32 Wn. App. at 864 (quoting Kinne v. Kinne, 82 Wn.2d 360, 363, 510 P.2d 814 (1973)).
The Untersteiner case clearly does not apply here because it involved an alimony plan that was `proper, binding and fully enforceable under the laws of Austria.' 32 Wn. App. at 863. Because Austrian law applied and the agreement was valid under that law, the court properly recognized it. Untersteiner, 32 Wn. App. at 862. We are not similarly constrained here, Edwards applies, and the trial court did not abuse its discretion in declining to enforce the parties' escalator clause.
Teresa also argues, without authority, that the escalator clause must be enforced because Grant never sought relief from it. We decline to review this argument. RAP 10.3(a)(5); City of Bremerton v. Sesko, 100 Wn. App. 158, 162, 995 P.2d 1257, review denied, 141 Wn.2d 1031 (2000) (holding that where an appellant fails to support argument with relevant authority, court may decline to address it).
Teresa further contends that the trial court abused its discretion in declining to provide equitable relief consistent with the parties' original agreement. She argues that `The [trial] Court should have . . . felt compelled to give the retrospective benefit for the reason that [Grant] never disclosed to [Teresa] and the Decree did not reflect the existence of the stock options that he sold.' Appellant's Brief at 18. Teresa cites In the Matter of the Marriage of Ortiz, 108 Wn.2d 643, 740 P.2d 843 (1987), in support of her argument. The Ortiz court held that `where a court, has jurisdiction over the person and the subject matter, no error in exercise of such jurisdiction can make the judgment void. . . . This is true even if there is a fundamental error of law appearing upon the face of the record. Such a judgment is, under proper circumstances, voidable, but until avoided is regarded as valid.'
108 Wn.2d at 649-50 (quoting Dike v. Dike, 75 Wn.2d 1, 8, 448 P.2d 490 (1968)).
Here, the trial court reviewed the facts, including taking Grant's stock options into consideration when it modified the child support order in Teresa's favor, raising it from $1,810 per month to $3,000 per month. The trial court also raised the child support payments `an additional $900 per month' from September 1, 2001, through March 1, 2003. CP at 127.
RCW 26.09.170 prohibits the type of retrospective modification of child support orders that Teresa urges us to adopt. Ortiz, 108 Wn.2d at 650. The trial court raised the support obligation as it felt appropriate within its discretion based on the facts before it. The trial court could not have ordered retrospective modification and, therefore, it did not abuse its discretion.
Grant's Appeal Day Care Expense Reimbursement
Grant also assigned error to several of the trial court's conclusions of law, its support order, and its denial of his motion for reconsideration. He fails to provide either argument or support for these assignments of error, and we do not consider them. RAP 10.3(a)(5); Sesko, 100 Wn. App. at 162.
Grant cross-appeals, arguing that Teresa should reimburse him for the $23,160 he paid her for day care expenses. He asserts that Teresa did not have to pay for care because her fianc` provided a live-in nanny. Grant cites RCW 26.19.080(3) in support. That statute provides in part: If an obligor pays court or administratively ordered day care or special child rearing expenses that are not actually incurred, the obligee must reimburse the obligor for the overpayment if the overpayment amounts to at least twenty percent of the obligor's annual day care or special child rearing expenses.
The trial court entered findings of fact that Teresa `allegedly had nannies for the children at the cost of approximately $500 per week, paid for by her fianc`. The children were also in daycare [sic] and/or with her parents from the entry of the Decree until June of 1999, without costs to her.' CP at 124. It then exercised its discretion and denied Grant's request for reimbursement.
We accord the trial court discretion `to determine the necessity for and the reasonableness of all amounts ordered in excess of the basic child support obligation.' RCW 26.19.080(4). Here, because Grant paid Teresa $579 per month in child care expenses and the child care expenses varied between no cost and $500 per week, the trial court did not abuse its discretion in denying Grant's request for reimbursement, regardless of who provided or who paid for child care. RCW 26.19.080(3), (4). Deviation from the Support Schedule.
Grant also contends that, although RCW 26.19.075 gives the trial court the authority to deviate from the statutory support schedule, no deviation was justified because `there was no evidence of any exceptional needs of the children.' Respondent's Br. at 27-28 (citing In the Matter of the Marriage of Ayyad, 110 Wn. App. 462, 38 P.3d 1033, review denied, 147 Wn.2d 1016 (2002)).
RCW 26.19.075 reads, in relevant part:
(1) Reasons for deviation from the standard calculation include but are not limited to the following:
(a) Sources of income and tax planning. The court may deviate from the standard calculation after consideration of the following:
. . . .
(vi) Possession of wealth, including but not limited to savings, investments, real estate holdings and business interests, vehicles, boats, pensions, bank accounts, insurance plans, or other assets.
The trial court entered findings of fact, including: In 1999, [Grant]'s income, with bonuses and stock options, was $286,194. In 2000 . . . it was $2,809,948. In 2001 . . . it was $2,793,732. In 2002, [Grant] received approximately $600,000 in bonuses and stock options, in addition to his regular salary of $82,000. He no longer will receive stock options.
CP at 123. Further, in its oral ruling, the trial court explained that it was awarding `a significant deviation from the standards' but that `it's an insignificant amount in consideration of Dad's total income in all of this.' RP at 132. Because possession of wealth is a recognized reason to deviate from the standard calculation of child support under RCW 26.19.075 and because Grant does not dispute that he possesses the wealth to support the deviation, the trial court did not abuse its discretion in deviating from the support schedule.
Attorney Fees
Both parties seek attorney fees on appeal. RCW 26.09.140 provides: `Upon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney's fees in addition to statutory costs.'
A party requesting fees under RCW 26.09.140 `must make a showing of need and of the other's ability to pay fees in order to prevail.' Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 808, 929 P.2d 1204 (1997) (citing Konzen v. Konzen, 103 Wn.2d 470, 693 P.2d 97 (1985)). Based on his financial declaration, Grant has the ability to pay fees. But because Teresa did not provide an affidavit of need as RAP 18.1(c) requires, we deny her request for fees. Because Grant cannot make a showing of need, we likewise deny his request for fees.
Affirmed.
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 pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER and ARMSTRONG, JJ., concur.