FILED
SEPTEMBER 25, 2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Marriage of: ) ) No. 31025-6-III BRANDON MUNN, ) ) Respondent, ) ) and ) ) AMANDA MUNN, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWA Y, C.J. - Amanda Munn appeals the findings, conclusions, and orders
entered at the conclusion of her marriage dissolution trial, arguing that the trial court
abused its discretion in failing to award her back child support and in entering inadequate
fmdings explaining why it withheld that award. The record reveals that Ms. Munn failed
to present a sufficient request, supporting evidence, and argument in support of such an
award at trial. Under the circumstances, the trial court's fmding that no back support was
owed was supported by the fact that Ms. Munn's requests for temporary support had all
been denied. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Brandon and Amanda Munn were divorced in June 2012, following 17 years of
marriage and a 2-year separation. At the time of trial, they had 5 children together,
ranging from ages 7 to 18. No. 31025-6-III In re Marriage ofMunn
Most of Mr. Munn's working life had been spent working on his parents' central
Washington farm. He moved to Idaho to attend college and on his return to Benton
County, Washington, began helping his parents with what was then their 3,000-acre
farming operation. Over the years, Mr. Munn and his brother assumed greater
responsibility for a vastly larger operation. By 2009, Mr. Munn was a partner in several
limited liability companies formed to carry on what had become the Munn family'S
farming, packing, and trucking operations.
In 2009, problems that Mr. and Ms. Munn were having in their marriage began to
affect the larger family's business operations and eventually Mr. Munn was told by his
father that other family members insisted on buying out Mr. and Ms. Munn's interests.
On terms that were agreed in the summer of 20 10, Mr. Munn received the semitrucks and
other equipment owned by Munn Ag Services LLC, the family's over-the-road trucking
operation, and the right to use the Munn Ag Services name. Ms. Munn received a
promise of a payment of $350,000 in installments, bearing interest, which, at the time of
the dissolution trial, she had been drawing on at the rate of $5,000 per month or more, as
needed.
Although Ms. Munn apparently raised the issue of temporary child support more
than once between the 2010 commencement of the dissolution action and the April 2012
trial, Mr. Munn was never ordered to pay temporary child support. Mr. Munn's own
lawyer raised that fact in his direct examination of his client at trial, without objection:
No. 31025-6-111 In re Marriage ofMunn
Q Were you in a position to pay child support in 2011? A No. Q That issued [sic] had been brought before the Court on several occasions by your wife; is that right? A That's correct. Q And in spite of those motions being filed, there was no court order entered either, one, obligating you to pay child support or, two, to pay spousal maintenance; is that correct? A That's correct.
Report of Proceedings (Apr. 23, 2012) (RP) at 42. Ms. Munn's lawyer made no effort
through cross-examination to contradict or clarify the testimony that his client had made
requests for temporary support that had been denied.
Mr. Munn testified at the dissolution trial that Munn Ag Services' financial
performance had changed "drastically" after he began operating the business as a stand
alone. RP at 19. He attributed the demise in its fortunes to two factors: first, he was no
longer hauling for the Munn family farms, which had formerly accounted for most of
Munn Ag Service's revenue; and second, neither Munn Ag Services nor he had ever
borrowed money directly for its operations, as a result of which the business had no credit
history and was unable to obtain needed financing. His personal tax returns were
admitted into evidence and showed an adjusted gross income of <$5,919> for 2010 and
<$266,362> for 2011.
Although he had paid no temporary child support during the two years the divorce
was pending, Mr. Munn testified that while the divorce was pending, he had covered the
cost of health insurance (medical, dental, and vision) for his wife and their children; that
No. 31025-6-111 In re Marriage ofMunn
he covered his wife's auto insurance; and that he made payments through March 20 lion
the mortgage to the marital home in which Ms. Munn and four of the children were
living. He also paid expenses for the parties' oldest daughter, who moved in with him in
October 20 I 0, and he paid the expenses associated with his younger children's visitation,
which was every other Thursday through Monday, and then Thursday evenings every
other week.
In late June 2012, the court entered findings, conclusions, and a decree, dividing
th~ parties' property and dissolving their marriage. In a final child support order entered
several months later, it ordered Mr. Munn to pay $932.56 a month in child support for the
parties' four youngest children, basing the support obligation on its finding that Mr.
Munn's actual monthly net income was $4,716 and that a reasonable imputed monthly
net income for Ms. Munn, who it found was voluntarily unemployed, was $1,567. The
trial court awarded no back child support, stating in section 3.20 of the standard order of
child support form, "No back child support is owed at this time." Clerk's Papers at 41.
Ms. Munn timely appealed from the trial court's findings, conclusions, and decree.
ANALYSIS
Ms. Munn raises only one issue on appeal: she argues that the trial court abused its
discretion in denying her request for back child support. She points out that it was
uncontested in the trial court that no order for temporary child support was ever entered
and that at no time before trial had Mr. Munn ever made any child support payment
No. 31025-6·III In re Marriage ofMunn
directly to her. She also argues that the trial court's one sentence finding-that "[n]o
back child support is owed at this time"-was insufficient and insufficiently supported by
the record.
"A trial court's setting of child support will not be disturbed on appeal unless the
spouse challenging the decision demonstrates a manifest abuse of discretion." In re
Marriage ofCrose tto , 82 Wn. App. 545, 560, 918 P.2d 954 (1996). A court abuses its
discretion if its decision is "manifestly unreasonable or based on untenable grounds." In
re Marriage ofScanlon, 109 Wn. App. 167, 174,34 P.3d 877 (2001).
An award of temporary child support is not automatic; a parent who believes there
is a factual basis for being awarded such support "may move for ... temporary support of
children." RCW 26.09.060(1)(b) (emphasis added). By comparison, chapter 26.09 RCW
provides that as part of a court's ultimate disposition of a proceeding to dissolve a
marriage, the court "shall order either or both parents owing a duty of support to any
child of the marriage ...
Free access — add to your briefcase to read the full text and ask questions with AI
FILED
SEPTEMBER 25, 2014
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Marriage of: ) ) No. 31025-6-III BRANDON MUNN, ) ) Respondent, ) ) and ) ) AMANDA MUNN, ) UNPUBLISHED OPINION ) Appellant. )
SIDDOWA Y, C.J. - Amanda Munn appeals the findings, conclusions, and orders
entered at the conclusion of her marriage dissolution trial, arguing that the trial court
abused its discretion in failing to award her back child support and in entering inadequate
fmdings explaining why it withheld that award. The record reveals that Ms. Munn failed
to present a sufficient request, supporting evidence, and argument in support of such an
award at trial. Under the circumstances, the trial court's fmding that no back support was
owed was supported by the fact that Ms. Munn's requests for temporary support had all
been denied. We affirm.
FACTS AND PROCEDURAL BACKGROUND
Brandon and Amanda Munn were divorced in June 2012, following 17 years of
marriage and a 2-year separation. At the time of trial, they had 5 children together,
ranging from ages 7 to 18. No. 31025-6-III In re Marriage ofMunn
Most of Mr. Munn's working life had been spent working on his parents' central
Washington farm. He moved to Idaho to attend college and on his return to Benton
County, Washington, began helping his parents with what was then their 3,000-acre
farming operation. Over the years, Mr. Munn and his brother assumed greater
responsibility for a vastly larger operation. By 2009, Mr. Munn was a partner in several
limited liability companies formed to carry on what had become the Munn family'S
farming, packing, and trucking operations.
In 2009, problems that Mr. and Ms. Munn were having in their marriage began to
affect the larger family's business operations and eventually Mr. Munn was told by his
father that other family members insisted on buying out Mr. and Ms. Munn's interests.
On terms that were agreed in the summer of 20 10, Mr. Munn received the semitrucks and
other equipment owned by Munn Ag Services LLC, the family's over-the-road trucking
operation, and the right to use the Munn Ag Services name. Ms. Munn received a
promise of a payment of $350,000 in installments, bearing interest, which, at the time of
the dissolution trial, she had been drawing on at the rate of $5,000 per month or more, as
needed.
Although Ms. Munn apparently raised the issue of temporary child support more
than once between the 2010 commencement of the dissolution action and the April 2012
trial, Mr. Munn was never ordered to pay temporary child support. Mr. Munn's own
lawyer raised that fact in his direct examination of his client at trial, without objection:
No. 31025-6-111 In re Marriage ofMunn
Q Were you in a position to pay child support in 2011? A No. Q That issued [sic] had been brought before the Court on several occasions by your wife; is that right? A That's correct. Q And in spite of those motions being filed, there was no court order entered either, one, obligating you to pay child support or, two, to pay spousal maintenance; is that correct? A That's correct.
Report of Proceedings (Apr. 23, 2012) (RP) at 42. Ms. Munn's lawyer made no effort
through cross-examination to contradict or clarify the testimony that his client had made
requests for temporary support that had been denied.
Mr. Munn testified at the dissolution trial that Munn Ag Services' financial
performance had changed "drastically" after he began operating the business as a stand
alone. RP at 19. He attributed the demise in its fortunes to two factors: first, he was no
longer hauling for the Munn family farms, which had formerly accounted for most of
Munn Ag Service's revenue; and second, neither Munn Ag Services nor he had ever
borrowed money directly for its operations, as a result of which the business had no credit
history and was unable to obtain needed financing. His personal tax returns were
admitted into evidence and showed an adjusted gross income of <$5,919> for 2010 and
<$266,362> for 2011.
Although he had paid no temporary child support during the two years the divorce
was pending, Mr. Munn testified that while the divorce was pending, he had covered the
cost of health insurance (medical, dental, and vision) for his wife and their children; that
No. 31025-6-111 In re Marriage ofMunn
he covered his wife's auto insurance; and that he made payments through March 20 lion
the mortgage to the marital home in which Ms. Munn and four of the children were
living. He also paid expenses for the parties' oldest daughter, who moved in with him in
October 20 I 0, and he paid the expenses associated with his younger children's visitation,
which was every other Thursday through Monday, and then Thursday evenings every
other week.
In late June 2012, the court entered findings, conclusions, and a decree, dividing
th~ parties' property and dissolving their marriage. In a final child support order entered
several months later, it ordered Mr. Munn to pay $932.56 a month in child support for the
parties' four youngest children, basing the support obligation on its finding that Mr.
Munn's actual monthly net income was $4,716 and that a reasonable imputed monthly
net income for Ms. Munn, who it found was voluntarily unemployed, was $1,567. The
trial court awarded no back child support, stating in section 3.20 of the standard order of
child support form, "No back child support is owed at this time." Clerk's Papers at 41.
Ms. Munn timely appealed from the trial court's findings, conclusions, and decree.
ANALYSIS
Ms. Munn raises only one issue on appeal: she argues that the trial court abused its
discretion in denying her request for back child support. She points out that it was
uncontested in the trial court that no order for temporary child support was ever entered
and that at no time before trial had Mr. Munn ever made any child support payment
No. 31025-6·III In re Marriage ofMunn
directly to her. She also argues that the trial court's one sentence finding-that "[n]o
back child support is owed at this time"-was insufficient and insufficiently supported by
the record.
"A trial court's setting of child support will not be disturbed on appeal unless the
spouse challenging the decision demonstrates a manifest abuse of discretion." In re
Marriage ofCrose tto , 82 Wn. App. 545, 560, 918 P.2d 954 (1996). A court abuses its
discretion if its decision is "manifestly unreasonable or based on untenable grounds." In
re Marriage ofScanlon, 109 Wn. App. 167, 174,34 P.3d 877 (2001).
An award of temporary child support is not automatic; a parent who believes there
is a factual basis for being awarded such support "may move for ... temporary support of
children." RCW 26.09.060(1)(b) (emphasis added). By comparison, chapter 26.09 RCW
provides that as part of a court's ultimate disposition of a proceeding to dissolve a
marriage, the court "shall order either or both parents owing a duty of support to any
child of the marriage ... to pay an amount determined under chapter 26.19." RCW
26.09.100(1) (emphasis added). Significantly, whether the issue of child support is
addressed pendente lite or in connection with the decree, the court is required to apply the
child support schedule provided by chapter 26.19 RCW. See RCW 26.19.035(1)(d)
(providing that the child support schedule is to be applied "[i]n setting temporary and
permanent support").
No.31025-6-II1 In re Marriage ofMunn
The record presents more questions for Ms. Munn's appeal than it provides
answers-and since she bears the burden of demonstrating an abuse of discretion by the
trial court, this proves fatal to her appeal. Although the uncontested testimony was that
Ms. Munn had raised the issue of temporary child support with the court "on several
occasions," Mr. Munn was never ordered to pay it. We have not been provided on appeal
with any record of these requests, their disposition, or the reason for their disposition.
Ms. Munn has not appealed any order that denied her temporary child support nor does
she argue whether, or why, the trial court abused its discretion in denying temporary
support.
Even more puzzling is the absence from the pretrial and trial record before us of
any request to the trial court that as part of the court's final orders Ms. Munn be awarded
child support for the period from March 2010 through June 2012. Opening statements
and closing arguments were not transcribed, so we have been presented with no argument
by Ms. Munn during trial that she was entitled to child support for those two years. The
clerk's papers contain no response to the petition, no trial management report, and no
other pleading indicating that Ms. Munn was asking the court to award child support for
the pretrial period. The trial testimony was transcribed and includes undisputed
testimony that Mr. Munn paid no child support directly and that his wife requested such
support but it was not ordered-yet this testimony was elicited in the first instance by Mr.
Munn, who evidently believed that it advanced his position. There is no trial testimony
No. 31025-6-III In re Marriage ofMunn
suggesting why, although temporary support was denied, it should be ordered after-the
fact as back support. The record includes no evidence, testimonial or otherwise, as to the
parties' relevant net monthly earnings or an amount that Ms. Munn sought to have
awarded for the two-year period.
Several legal obstacles to Ms. Munn's request for back support were not addressed
by her in the trial court or on appeal. Unlike the Uniform Parentage Act of2002 (chapter
26.26 RCW) the dissolution of marriage act (chapter 26.09 RCW) does not authorize an
award of back child support. 1 WASH. STATE BAR Ass 'N, WASHINGTON FAMILY LA W
DESKBOOK § 28.2(2)(a), at 28-8 (2d ed. & 2012 Supp.); cf RCW 26.26.130(3) (under the
parentage act (unlike the marriage dissolution act) the judgment and order shall contain
"the extent of any liability for past support furnished to the child"). In the case of
marriage dissolution, the superior court may use its equitable powers to create a child
support obligation after the need for support arises, but such a result has been allowed
rarely and only in cases where the decree is silent as to support. In re Marriage of
Shoemaker, 128 Wn.2d 116, 123,904 P.2d 1150 (1995). When it does exist, the right of
equitable contribution is limited to an amount equal to one-half of actual expenditures on
behalf ofthe child. Id.
Moreover, if the superior court did deny Ms. Munn's request for temporary child
support as the undisputed testimony at trial suggests, then that order (or those orders)
were subject to appeal but not to retroactive modification. RCW 26.09 .170( 1) establishes
No. 31025-6-111 In re Marriage ofMunn
the conditions for modifying a child support order and states, in relevant part, that
"[e]xcept as otherwise provided ... the provisions of any decree respecting maintenance
or support may be modified: (a) Only as to installments accruing subsequent to the
petition for modification." In Shoemaker, 128 Wn.2d 116, the Washington Supreme
Court held that if an order has previously been entered that excuses a parent from paying
child support, then RCW 26.09 .170( 1) bars a superior court from imposing a child
support obligation retroactively, even if the facts would have supported imposing that
obligation prospectively at an earlier time. Since the trial court is required by chapter
26.19 RCW to apply the same standards in its temporary and final orders for support,
denial of temporary support forecloses retroactive modification.
Ms. Munn contends the trial court entered insufficient findings in support of its
decision not to award back child support. Under RCW 26.19.035(2), a child support
order must "be supported by written findings of fact upon which the support
determination is based" and must "include reasons for any deviation from the standard
calculation and reasons for denial of a party's request for deviation from the standard
calculation." The trial court entered extensive and sufficient findings on the basis for the
parties' prospective child support obligations. While the court entered only one finding
with respect to back child support, we conclude that, while spare, it was sufficient.
We do not know why temporary support was not ordered-whether it was because
the trial court concluded that Mr. Munn was temporarily in a negative earning situation,
r
No. 31025-6-111 In re Marriage ofMunn
whether it concluded that the amounts he was paying toward expenses of the children and
Ms. Munn were a reasonable substitute for support, or whether it was for some other
reason. What is clear is that temporary support was not ordered pendente lite when
requested, and that at trial, Ms. Munn never presented any request, evidence, or argument
as to why child support for that period should or could be revisited. On the record before
the court, its finding that "[nJo back child support is owed at this time" was supported by
the only evidence in the record that was relevant: child support for the period prior to trial
had been requested and denied. There is nothing more the court could have been
expected to say.
Affirmed.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
dt SiddOWay,~' I
WE CONCUR:
~ Fearin~ s· I
Lawrence-Berrey, J.