In re of Davis

Not overruled or negatively treated on appealinfoCoverage
The Court of Appeals of Washington, Division OneSep 17, 2007
140 Wn. App. 1031 (Wash. Ct. App. 2007)

No. 59338-2-I.

September 17, 2007.

Appeal from a judgment of the Superior Court for King County, No. 90-3-01104-0, James A. Doerty, J., entered November 13, 2006.

Reversed in part and remanded by unpublished per curiam opinion.

A motion to dismiss under CR 12(b)(6) should be granted sparingly and only when it appears beyond doubt that the claimant can prove no set of facts justifying relief. Because the petition to modify child support in this case gave rise to a conceivable set of facts supporting relief, the superior court erred in dismissing one of the grounds for modification under CR 12(b)(6) and awarding attorney fees pursuant to CR 11. We reverse in part and remand for further proceedings.


The parties divorced in 1990 and the court ordered child support for their children, Ryan and Lauren. The order did not address postsecondary education and provided that support for Ryan would terminate when he turned 18.

On September 7, 2006, Shelly, appearing pro se, filed a motion to adjust child support. The motion cited an increase in Richard's income, Ryan's different age category, and the need for a periodic adjustment under the terms of the original support order. Shelly asked that Richard pay $1,000 per month in child support, all of Ryan's dental expenses, 70 percent of Ryan's senior year expenses (cap, gown, yearbook etc.), his car insurance during his senior year, and monthly support for roughly seven months between his 18th birthday and his graduation from high school. Richard responded that extending support past Ryan's 18th birthday would modify the support provision terminating support at 18 and would therefore exceed the limited scope of an adjustment proceeding.

At argument on the adjustment motion, the court stated it lacked authority to address the insurance request, but pointed out that the parties had reached an agreement on that issue. Shelly then told the court that "as far as the continuation [of support] past Ryan's 18th birthday, if there's . . . no negotiation there, then obviously my next step will be to file a motion for a petition for modification so I can have that extended."

On September 28, 2006, the court entered an order adjusting support. The order increased the support amount and required the parents to pay pro rata shares of certain senior year expenses, including Ryan's cap, gown, yearbook, and SAT/ACT tests. The order did not extend support beyond Ryan's birthday and specifically noted that because Ryan would turn 18 on November 14, Richard would be responsible for only one half of the transfer payment for that month. Four days later, Shelly filed a pro se petition to modify child support. The petition alleged that Ryan turned 18 in November 2006, but would not graduate from high school until the summer of 2007. It further alleged that he was still dependent and had expressed a desire to pursue a career as an automotive technician. The petition requested an extension of child support until Ryan completed high school and postsecondary educational support.

Richard moved to dismiss the petition under CR 12(b)(6), arguing that it failed to demonstrate a substantial change in circumstances occurring since the September 28, 2006 support order. He also requested attorney fees under CR 11. Shelly countered that her petition "clearly states Substantial Changes in Circumstances occurring after the previous Order of Child Support was entered on September 28, 2006." She pointed to the petition's allegations that Ryan would turn 18 early in his senior year and would need support beyond that time, and Ryan's expressed desire for postsecondary education. Shelly argued that these were "substantial changes in circumstances occurring after the prior order of support was entered."

Clerk's Papers at 194.

Clerk's Papers at 194.

On November 13, 2006, the court granted Richard's motion to dismiss and request for attorney fees without findings or comment.

Shelly then retained counsel and moved for reconsideration. Counsel raised new arguments, including that Ryan had a right to child support until he completed high school and that any waiver of the right by Shelly was void as against public policy. He also argued that the court erred in awarding attorney fees without the benefit of any time records or other evidence and without findings of fact concerning the parties' need and/or ability to pay. The court summarily denied the motion and awarded Richard additional attorney fees.


A trial court's ruling on a motion to dismiss under CR 12(b)(6) involves a question of law that this court reviews de novo. It is the moving party's burden to prove that no conceivable set of facts supports the claim for relief, and any hypothetical scenario raised by the complaint defeats a CR 12(b)(6) motion if it is legally sufficient to support the claim for relief. Motions based on this rule should be granted "`sparingly and with care,'" and only in the unusual case in which the plaintiff's allegations show on the face of the complaint "`some insuperable bar to relief.'"

State ex rel. Evergreen Freedom Found. v. Washington Educ. Ass'n, 140 Wn.2d 615, 629, 999 P.2d 602 (2000); Cutler v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994).

Bravo v. Dolsen Companies, 125 Wn.2d 745, 750, 888 P.2d 147 (1995).

Tenore v. AT T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998) (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d 781 (1988)).

Richard's motion to dismiss relied exclusively on RCW 26.09.170. Under that statute and related case law, a support provision may be modified only upon a showing of a substantial change in circumstances occurring since the most recent support order. No such showing is necessary, however, if more than a year has passed since entry of the order and the court finds "there is a need to extend support beyond the eighteenth birthday to complete high school." Richard argued below that since Shelly filed her petition after the support order in the adjustment proceeding and less than a year had passed since entry of the adjustment order, she had to demonstrate a substantial change of circumstances occurring since the entry of that order. He asserted that Shelly's petition did not make that showing and should be dismissed under CR 12(b)(6). In her response, Shelly did not dispute that she was required to show a substantial change occurring since the order adjusting support, but argued that she had met that burden. On appeal, she offers no principled basis for concluding that she did not have to demonstrate a change in circumstances occurring after entry of the order adjusting support. In the absence of such argument, we limit our inquiry to whether, given Shelly's burden under the statute, the court properly dismissed her claims under CR 12(b)(6).

RCW 26.09.170(1), (5); see In re Marriage of Moore, 49 Wn. App. 863, 865, 746 P.2d 844 (1987).

Shelly focuses her arguments on the doctrine of res judicata. She contends her grounds for modifying support were not litigated in the adjustment proceeding and therefore were not barred by the doctrine of res judicata. To the extent Richard makes that argument, we agree with Shelly that the doctrine is inapplicable here and does not support the dismissal of her petition for modification. But this does not dispose of Richard's primary argument that Shelly failed to satisfy the statutory requirement of showing a substantial change in circumstances occurring between the adjustment order and the modification petition. Also, contrary to Shelly's assertions, Ryan has no right to support during his senior year. By statute, child support normally ends at the age of majority. RCW 26.09.170(3); In re Marriage of Gillespie, 77 Wn. App. 342, 346, 890 P.2d 1083 (1995). While support "may" be extended under RCW 26.09.170(5), the extension is not mandatory.

As for Shelly's request to extend support past Ryan's 18th birthday, we conclude the petition failed to show a substantial change in circumstances. The "change" relied upon must have occurred since the former decree or the last order fixing support.

In re Moore, 49 Wn. App. at 865.

Nothing changed between the entry of the adjustment order and the filing of the modification petition. The court therefore did not err in dismissing this basis for modification.

We reach a different conclusion as to Shelly's claim for postsecondary support. It is well settled that "[w]here child support is originally established for young children, the child's subsequent showing of ability to attend college may be considered a substantial change of circumstances justifying a modification to provide postsecondary support." Under RCW 26.19.090(3), postsecondary education may include vocational school. Here, Ryan was only nine years old at the time of the original decree, and the decree did not address postsecondary education. Shelly's petition and response to the motion to dismiss alleged that, following entry of the adjustment order, Ryan expressed his intent to attend automotive technician school. While Shelly would have to show Ryan's eligibility for such a program before a court could find a substantial change in circumstances warranting modification, the petition gave rise to a conceivable set of facts entitling her to relief. Under these circumstances, the court erred in dismissing this basis for modification under CR 12(b)(6). Given the foregoing, we conclude that the trial court also erred in awarding attorney fees to Richard under CR 11. We deny both parties' requests for fees on appeal. Although we would be inclined to award Shelly attorney fees and costs on appeal, she has not complied with RAP 18.1(c).

In re Marriage of Kelly, 85 Wn. App. 785, 793, 934 P.2d 1218 (1997) (citing In re Studebaker, 36 Wn. App. 815, 817, 677 P.2d 789 (1984); Wimmer v. Wimmer, 44 Wn. App. 842, 845, 723 P.2d 531 (1986)).

Because the allegations in Shelly's petition for modification involve matters of child support, we view them "very liberally." McClelland v. McClelland, 163 Wash. 59, 62, 299 P. 984 (1931) ("This being a matter of inquiry as to the duty of support owing by Mr. McClelland to his infant child, we are not inclined to view the allegations of Mrs. McClelland's petition as to her changed situation following the rendering of the decree, other than very liberally.").

We note that a modification regarding postsecondary support may only be made upon a showing of "compelling" circumstances, In re Marriage of Gimlett, 95 Wn.2d 699, 704, 629 P.2d 450 (1981), and consideration of statutory factors. RCW 26.19.090; In re Marriage of Scanlon, 109 Wn. App. 167, 180-181, 34 P.3d 877 (2001).

Although the court's order does not state the basis on which it granted fees, Richard's request for fees below relied exclusively on CR 11.

Reversed in part and remanded for further proceedings consistent with this opinion.