In Re The Marriage Of: Amber Schubert, Res. And Victor Schubert, App.

• Court: Court of Appeals of Washington
• Decided: August 3, 2015
• Docket: 72592-1
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

In the Matter of the Marriage of No. 71119-9-1 No. 72592-1-1 CJ'I AMBER SCHUBERT, consolidated with No. 72593-9-I i Respondent, CO

and

VICTOR SCHUBERT, UNPUBLISHED OPINION

Appellant. FILED: August 3, 2015

Verellen, J. — Victor Schubert appeals the amended decree of dissolution and

the order on modification of maintenance and child support. He contends that because

he was unemployed at the time of trial and modification, the trial court abused its

discretion in awarding maintenance and imputing income to him for purposes of the

child support award. Because Victor did not provide us with an adequate record on

appeal, we affirm the trial court's fact-based discretionary rulings.

Victor further contends that the trial court erred in not including Amber Schubert's

imputed income in the child support worksheets. Because he raised this issue for the

first time on appeal, his argument fails. Victor also argues that the trial court erred in an

upward deviation of child support. But he does not establish that this rounding up was a

deviation as contemplated by RCW 26.19.035(4). Lastly, he contends that the trial

court must use the lodestar method in determining appropriate attorney fees. But

because the primary considerations for an award of attorney fees in dissolution actions No. 71119-9-1 & No. 72592-1-1/2

are equitable, trial courts are not always required to apply the lodestar method.

Accordingly, we affirm.

FACTS

Victor Schubert married Amber Schubert in California on April 1, 2000.1 Victor

worked as a patent attorney there from 1992 until January 2009, when the parties

relocated to Washington so that Victor could pursue an attorney position at Intellectual

Ventures, where he earned more than $500,000 per year. Amber has been out of the

work force for almost all of their marriage to raise their two children.

The Schuberts separated on December 1, 2011, and Amber petitioned for

dissolution on March 28, 2012. On April 30, 2013, Victor was laid off from his position

at Intellectual Ventures. He received 16 weeks of severance pay, plus payment of

medical insurance benefits for the family through August 2013.

Victor had not yet found employment at the time of trial from June 3, 2013

through June 10, 2013. The main issues at trial were property distribution,

maintenance, child support, and attorney fees. The Schuberts agreed to the terms of a

parenting plan, which designated Amber as the primary residential parent of the

children.

The trial court awarded Amber $648,936 of community property (54.24 percent of

the community assets) and $26,644 of separate property. It awarded Victor $547,413 of

community property (45.76 percent of the community assets) and $434,724 of separate

property.

1 To avoid confusion, we refer to the Schuberts by first name. No. 71119-9-1 & No. 72592-1-1/3

The parties disagreed as to spousal maintenance. The trial court awarded

Amber $5,500 in monthly maintenance for a period of 48 months commencing

September 1, 2013, plus an additional 25 percent of any annual income in excess of

$225,000 for a period of eight years. The trial court found that:

[Victor] has historically had very significant income and there is no reason to expect that he will not continue to earn at a significant level. Upon finalization of this matter, [Victor's income will allow him [to] support himself in a manner similar to that enjoyed during the marriage while continuing to maximize his retirement accounts and increase his assets.

[Amber], on the other hand, will not, even after obtaining a degree in the healthcare field, have earnings approaching those of [Victor]. [Amber], and the children who are primarily with her, will live a far more modest life given the limits of [Amberj's income.[2] The trial court acknowledged that Victor's "niche as a patent attorney [was] very

narrow" due to changes in the industry making his prospects not as plentiful as they

were in the past.3 The court found he was diligently searching for employment and that

"[Victor] has an earning ability of $225,000 per year, which is much less than he earned

at [Intellectual Ventures]."4

Regarding child support, the trial court found Amber underemployed in a

healthcare position. Because she lacked sufficient work history on which to base her

income, the trial court imputed income to her under RCW 26.19.071 (6)(e) at a median

level based on census data. The trial court found Victor unemployed and imputed

monthly income to him under RCW26.19.171(6)(b) based on his historical income

averaging over $500,000 annually for the past five years and having been in excess of

2 Clerk's Papers (CP) at 569. (No. 71119-9-1). 3 Id, at 571. 4 Id. No. 71119-9-1 & No. 72592-1-1/4

$250,000 since the parties married in 2000. The trial court ordered him to pay $2,000 in

monthly child support. In doing so, the court increased the child support award above

the standard calculation of $1,703 per month based on its finding that Victor "has the

ability to pay this amount and the children are in need of this level of support."5 Finally,

the court awarded Amber attorney fees in the amount of $50,000, finding that Victor had

the ability to pay a portion of her fees.

On February 28, 2014, Victor petitioned for modification of maintenance and child

support. On September 11, 2014, the trial court entered an order granting Victor's

petition for modification of the amended decree of dissolution. It found that Victor was

making a diligent job search, but had not found employment. It acknowledged that

Victor's employment future was being affected by a shift toward filling patent attorney

jobs with less experienced attorneys and persons with master of business

administration degrees. The trial court reduced maintenance to $2,500 per month

commencing March 2014, noting Amber's need versus Victor's ability to pay, as well as

Amber's irresponsible use of the maintenance she had received. It did not grant Victor's

petition for modification of child support.

Victor appeals both the initial decree and the order on modification.

ANALYSIS

The premise of Victor's primary argument on appeal is that the trial court

abused its discretion in its initial and modified award of maintenance. He contends

that because he was unemployed and diligently searching for employment, Amber

should not have been awarded maintenance. But Victor provided us with only three

5 Id. at 615. No. 71119-9-1 & No. 72592-1-1/5

and one-half hours of the record from a five-day trial. The record is inadequate to

review the merits of Victor's contentions.6

"The party seeking review has the burden of perfecting the record so that this

court has before it all of the evidence relevant to the issue[s]."7 Although Victor claims

that "[t]he verbatim transcript regarding employment for both parties was provided for

review on appeal,"8 the only verbatim reports of proceedings provided to this court

concern the testimony of Amber and expert witnesses regarding her employment

prospects. It is undisputed that Victor testified at trial regarding his past employment

and future prospects, but the record before us contains none of this testimony.9

Although Victor contends that the missing record is related to rulings he has not

challenged on appeal, the issues he has raised require a full record regarding his

economic circumstances, including his past earnings and prospects for future income.

The fact-based trial court decisions challenged by Victor on appeal reveal how the

inadequate record hampers our review.

First, as to his challenge to the initial and modified maintenance awards, both are

reviewed for an abuse of the trial court's broad discretion.10 "The only limitation on [the]

amount and duration of maintenance under RCW 26.09.090 is that, in light of the

6 Story v. Shelter Bay Co.. 52 Wn. App. 334, 345, 760 P.2d 368 (1988). 7 Olmsted v. Mulder, 72 Wn. App. 169, 183, 863 P.2d 1355 (1993); RAP 9.2(b). 8 Appellant's Reply Br. at 5. 9 Victor's declaration includes minimal information about his earnings and no details about his prospects. 10 In re Marriage of Luckev, 73 Wn. App. 201, 209, 868 P.2d 189 (1994); In re Marriage of Spreen, 107 Wn. App. 341, 346, 28 P.3d 769 (2001). No. 71119-9-1 & No. 72592-1-1/6

relevant factors, the award must be just.'"11 "Those factors include, but are not limited

to: (1) the financial resources of the party seeking maintenance; (2) the time needed to

acquire education necessary to obtain employment; (3) the standard of living during the

marriage; (4) the duration of the marriage; (5) the age, physical and emotional condition,

and financial obligations of the spouse seeking maintenance; (6) and the ability of the

spouse from whom maintenance is sought to meet his or her needs and financial

obligations while providing the other spouse with maintenance.12

Victor specifically criticizes the trial court for its "speculation" as to his future

income.13 He also contends that the trial court failed to adequately consider his ability

to meet his own financial needs and obligations as required by RCW 26.09.090(f).

The trial court clearly found that Victor had the present ability to pay

maintenance. The evidence before the court included his severance package, the

disproportionate award of assets,14 and potential employment income the court was

confident he would soon earn. On the current record, Victor cannot demonstrate an

abuse of discretion as to the amount of the initial or modified maintenance awards.1516

11 In re Marriage of Valente. 179 Wn. App. 817, 821, 320 P.3d 115 (2014) (quoting In re Marriage of Bulicek. 59 Wn. App. 630, 633, 800 P.2d 394 (1990)). 12 id at 821-22. 13 Appellant's Reply Br. at 9. 14 Victor received $306,557 more in total assets than Amber. See In re Marriage of Crosetto, 82 Wn. App. 545, 559, 918 P.2d 954 (1996) (trial court was entitled to consider property division in its determination of maintenance and to consider maintenance in its property division). 15 Relying on In re Marriage of Drlik, 121 Wn. App. 269, 87 P.3d 1192 (2004), Victor further argues that "[t]he trial court should have at least suspended the maintenance obligation pending review/modification upon the earlier of his employment or nine months, whichever was sooner." Appellant's Br. at 14 (No. 72592-I). But in Drlik, the court held merely that the trial court had authority to temporarily, but not indefinitely, suspend the husband's maintenance obligation because he was stricken with brain No. 71119-9-1 & No. 72592-1-1/7

Second, Victor also challenges the use of "a formulaic escalation clause [in the

maintenance award] that did not relate to the need of [Amber],17 as well as the duration

of the maintenance award. Use of an uncapped escalation clause can be troublesome,

but we need a more complete record to evaluate this issue in the entire economic and

employment context. Moreover, Victor fails to cite any relevant authority pertaining to

escalation clauses in maintenance awards and instead relies entirely on authority

involving child support orders. As to the duration of the maintenance award, we need a

record which includes all the testimony regarding the full economic background of both

spouses.

Third, Victor challenges the imputation of income for purposes of the child

support award. Specifically, he argues that the child support order was an abuse of

discretion based upon Victor's involuntary unemployment. Without citing any precise

authority, Victor relies on his conclusory statement that "[i]t is contradictory for the court

to find that [he] is laid off and diligently searching for work, thus involuntarily

unemployed, and then apply RCW 26.19.071 (6)(b) and impute income."18 And without

an adequate record on appeal to analyze the trial court's findings, Victor does not

demonstrate any abuse of discretion or error of law in imputing income to him.

cancer and currently lacked the ability to pay and might regain the ability to pay. Drlik does not suggest that a trial court is compelled to make such a temporary adjustment. 16 Rekhi v. Olason. 28 Wn. App. 751, 753, 626 P.2d 513 (1981) (when an appeal is brought on a short record without a complete verbatim report of the proceedings, the trial court's findings of fact are accepted as verities). 17 Appellant's Br. at 1 (No. 71119-9-1). 18 Appellant's Br. at 26 (No. 72592-1-1); see Cowiche Canyon Conservancy v. Boslev. 118 Wn.2d 801. 809. 828 P.2d 549 (1992); State v. Elliott, 114Wn.2d6, 15,785 P.2d440 (1990); Saunders v. Lloyd's of London. 113 Wn.2d 330, 345, 779 P.2d 249 (1989). No. 71119-9-1 & No. 72592-1-1/8

Fourth, Victor further contends that "[t]he trial court imputed income to Amber in

the Findings of Fact, and it is an error of law to not include that imputed income in the

child support worksheets."19 But based on the record before us, it appears he is raising

this issue for the first time on appeal.20 Thus, Victor's argument fails.

Fifth, Victor argues that "[t]he upward deviation of the child support obligation

above the standard calculation without written findings when the father is involuntarily

unemployed is error."21 But under RCW 26.19.020, "[w]hen combined monthly net

income exceeds twelve thousand dollars, the court may exceed the presumptive

amount of support set for combined monthly net incomes of twelve thousand dollars

upon written findings of fact." Victor does not establish that the upward rounding off of

child support was a "deviation" as contemplated by RCW 26.19.035(4).22

Sixth, Victor argues that "[t]he trial court erred in failing to deduct the costs of

sale from the parties' Newcastle, Washington home."23 He contends that "[bjased on

the court's orders of maintenance and child support. .. when he had no income, [he]

had no choice to but [sic] sell the Newcastle home immediately."24 A trial court may

only deduct the costs of sale if a sale is imminent and necessary.25 In his trial brief,

Victor stated that "[w]hen the market recovery is sufficient for him to recover his

19 Appellant's Reply Br. at 21. 20 RAP 2.5(a). 21 Appellant's Br. at 28 (No. 72592-1-1). 22 Leslie v. Verhev. 90 Wn. App. 796, 803-04, 954 P.2d 330 (1998). 23 Appellant's Br. at 2 (No. 71119-9-1). 24 ]cL at 30-31. 25 In re Marriage of Stenshoel. 72 Wn. App. 800, 810, 866 P.2d 635 (1993).

8 No. 71119-9-1 & No. 72592-1-1/9

separate property investments, he will sell the residence."26 Absent a more complete

record of the trial, we do not know if Victor's testimony was consistent with this

statement. Accordingly, Victor does not establish that it was an abuse of discretion to

deny a deduction for the costs of sale.

Finally, Victor challenges the attorney fees award, asserting that "[t]he court

made no finding of the reasonableness of [Amber's] fees."27 This court reviews an

award of attorney fees for abuse of discretion.28 "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.'"29

Victor contends that the trial court "must use the lodestar method of determining

an appropriate award of attorney fees."30 However, in dissolution actions, the primary

considerations for an award of attorney fees "are equitable," and thus, trial courts are

not required to apply the lodestar method.31

"The overriding considerations are the need of the party requesting the fees, the

ability to pay of the party against whom the fee is being requested, and the general

equity of the fee given the disposition of the marital property."32 Under RCW 26.09.140,

26 Clerk's Papers at 82-83. 27 Appellant's Br. at 36 (No. 71119-9-1). 28 Estrada v. McNultv, 98 Wn. App. 717, 723, 988 P.2d 492 (1999). 29 Crosetto. 82 Wn. App. at 563 (quoting In re Marriage of Knight. 75 Wn. App. 721,729, 880 P.2d 71 (1994)). 30 Appellant's Br. at 33 (No. 71119-9-1). 31 Knight, 75 Wn. App. at 730. 32 In re Marriage of Van Camp. 82 Wn. App. 339, 342, 918 P.2d 509 (1996). No. 71119-9-1 & No. 72592-1-1/10

[t]he court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorneys' fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry of judgment.

"In considering the financial resources of both parties, the court balances the needs of

the requesting party against the other party's ability to pay."33

Here, the trial court found that Amber "testified and presented evidence that she

was in need of attorney's fees, having incurred $93,213 . . . and having only been able

to pay $21,073 of those fees."34 It also found that Victor's "attorney fees had been paid

in full since [the] inception of the case and those fees totaled more than $48,000."35

Thus, the court concluded that Victor "has the ability to pay a portion of [Amber]'s

attorney's fees" and that an award "in the amount of $50,000 is appropriate under the

circumstances."36 Victor fails to satisfy his burden of establishing that the court

exercised its discretion in a way that was "clearly untenable or manifestly

unreasonable." Accordingly, it was within the trial court's discretion to award Amber

attorney fees.

Amber also requests attorney fees on appeal "based on her need and [Victor's

ability to pay under RCW 26.09.140."37 This court has the discretion to order a party to

33 Leslie. 90 Wn. App. at 805. 34 Clerk's Papers at 572 (No. 71119-9-I). 3514 36 jd, 37 Respondent's Br. at 35 (No. 71119-9-1).

10 No. 71119-9-1 & No. 72592-1-1/11

pay the other party's attorney fees associated with the appeal of a dissolution action.38

"In exercising our discretion, we consider the arguable merit of the issues on appeal and

the parties' financial resources."39 Amber provided a declaration of financial need

demonstrating her need for attorney fees, but Victor failed to timely file his own financial

affidavit as required by RAP 18.1(c).40 Accordingly, we award reasonable attorney fees

for this appeal to Amber, provided she complies with RAP 18.1(d).

WE CONCUR:

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38 RCW 26.09.140.

39 In re Marriage of C.M.C.. 87 Wn. App. 84, 89, 940 P.2d 669 (1997). 40 RAP 18.1(c) ([E]ach party must serve upon the other and file a financial affidavit no later than 10 days prior to the date the case is set for oral argument or consideration on the merits .... Any answer to an affidavit of financial need must be filed and served within 7 days after service of the affidavit.").