FILED JAN. 30, 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. 31426-0-111 ) ELIZABETH KIM, ) ) Respondent, ) ) PUBLISHED OPINION and ) ) ANATOLE KIM, ) ) Appellant. )
KULIK, J. - This is a bitterly contested dissolution and custody case following a
marriage of25 years. The father, Anatole Kim, appeals the trial court's order granting the
mother's, Elizabeth Kim's, petition to relocate their children to California. Mr. Kim
contends the trial court abused its discretion by failing to follow the correct legal standard
and erred by disregarding cultural factors in evaluating relocation. He also maintains that
the 60 percentJ40 percent property division was inequitable and that the trial court erred
by failing to include maintenance in the child support worksheets.
We conclude that the trial court did not err and did not abuse its considerable
discretion. Finally, the findings made by the court are supported by substantial evidence. No. 31426-0-III In re Marriage ofKim
Accordingly, we affinn the trial court.
FACTS
Anatole Kim and Elizabeth Shizuoko Kim are both physicians. Mr. Kim is a
cardiologist and Ms. Kim is a pathologist who, at the time of separation, had not practiced
medicine for 14 years. The Kims met as students at Brown University during the 1982-83
school year and were married on August 3, 1985, in Los Angeles, California. After
numerous moves around the country for residency programs and Mr. Kim's work, the
family settled in Yakima in 2002.
The Kims have three children: E.K. (date of birth April 19, 1995), L.K. (date of
birth June 26, 1998), and C.K. (date of birth December II, 2000). The parties played
different roles in raising the children. When E.K. turned two years old, Ms. Kim, who
had been reducing her part time hours as a pathologist, resigned from her job and became
a full-time, stay-at-home mother. Mr. Kim was the primary wage earner and worked long
hours, while Ms. Kim perfonned the majority of parenting duties, including supervising
the children's extensive activities and social networks.
Ms. Kim filed a petition for dissolution in July 2010. Upon separation, Ms. Kim
was awarded temporary primary residential placement of the children. In April 2011, Ms.
Kim filed a notice of intent to relocate to Los Angeles in order to update her skills in
No. 3 I 426-0-III In re Marriage ofKim
pathology. The University of California at Los Angeles (UCLA) had offered her a
surgical pathology fellowship beginning July 1,20 II. Because Ms. Kim had been out of
the work force for well over two years, she was not eligible for a medical license in
Washington State. In May 2011, a Yakima County court commissioner denied Ms. Kim's
motion to relocate.
The parties' dissolution trial took place over several days in June 2012 and
resumed in September 2012. The trial was bifurcated due to the guardian ad litem's
(GAL's) failure to complete his report for the June trial. The court heard testimony from
a number of witnesses on Ms. Kim's relocation request. At the conclusion of the trial, the
court acknowledged that while it had considered the testimony of all the witnesses, it
found the testimony of the parents the most significant.
Ms. Kim testified that she was working part time for a pathology group in San
Antonio, Texas, when E.K. was born in 1995. She stated that she did 98 percent of the
hands-on work of parenting and that when E.K. turned two, she resigned from her job.
During that time, Mr. Kim was working about 80 to 100 hours per week, and Ms. Kim
performed the majority of the childcare. This pattern continued after L.K. was born. She
recalled that Mr. Kim could not remember holding L.K. because he was working well
over 100 hours per week. When asked to describe her early caretaking of C.K., she
No. 3 1426-0-IIl In re Marriage ofKim
answered that she did "[p]retty much everything. [C.K.] nursed for two years and he was
not home." Report of Proceedings (RP) (Sept. 4, 2012) at 35.
Ms. Kim continued to have primary responsibility for the day-to-day care of the
children as they grew older. Ms. Kim described a typical preseparation school day as
follows:
1 would wake up first. 1 would prepare breakfast and 1 always make their lunch, so 1 would get that out because 1 make it the night before. 1 would make sure the children got out of bed. 1 would make sure Anatole got was awake. I'd prepare him what he usually had in the mornings. The children and 1 would have breakfast together. Anatole would usually walk through the kitchen.
RP (Sept. 4, 2012) at 46. Ms. Kim could not recall Mr. Kim ever taking the children to
school or picking them up. Ms. Kim also testified that she volunteered in the children's
school, drove them to their extracurricular activities, prepared dinner, and helped with
homework.
Mr. Kim's testimony centered on the differences in the parents' respective
parenting styles. He testified that he was more direct and that Ms. Kim tended to be more
indulgent. He testified, "1 do tend to suggest to the children and try and explain if 1 have
a suggestion or advice. 1 think if [Ms. Kim] wants the children to do something, she
mentions it in kind of an oblique way and then that's about it." RP (Sept. 5,2012) at 206.
He testified that Ms. Kim designated him the disciplinarian and deferred to him when the
No. 31426-0-III In re Marriage ofKim
children misbehaved.
Mr. Kim testified that the parties had conflict over some of the children's
extracurricular activities and that Ms. Kim would disallow some activities if she found
them "inconvenient." RP (Sept. 5,2012) at 207. For example, Mr. Kim believed it was
important to get the boys involved in Boy Scouts, but that Ms. Kim refused to
meaningfully participate. Mr. Kim also testified that he thought the children should be
given more responsibility, but that Ms. Kim found it easier to do household chores
herself.
Mr. Kim asked for primary residential placement, stating that he alone was
concerned about the children's best interests. Mr. Kim described his preseparation
relationship with E.K. as "[v]ery close," and his current relationship with L.K. and C.K.
as "stable" and "very warm," but noted that both were exhibiting some teenage rebellion.
RP (Sept. 6, 2012) at 321-22. He also expressed his concern that Ms. Kim's move to
California would effectively eliminate him as a parent.
The court appointed a GAL to evaluate residential placement provisions. The
GAL recommended that the mother be awarded primary residential placement. However,
as to relocation, the GAL concluded:
No. 31426-0-111 In re Marriage ofKim
[A] move by the mother is not best for the children. The mother would have to demonstrate an overwhelming need for her to do so. The issue here is the mother's occupational benefit of a move versus the needs of the children. The children need the involvement and balance of both parents, the benefit of both attachment and limits.
Clerk's Papers (CP) at 340.
The court also appointed Dr. Richard Adler, a child and adolescent psychiatrist, to
conduct a forensic evaluation of E.K., who had experienced some serious psychiatric
problems in December 2010. Dr. Adler concluded that relocation was "ill-advised" as it
related to E.K. 's best interest, noting, "[t]his has been high-conflict divorce, marked by
contested custody issues and prominent father-son alienation. [A] disposition that would
only further hamper the likelihood of repairing the father-son relationship seems
contraindicated." CP at 363.
After considering the appropriate statutorily mandated relocation factors and
entering detailed findings of fact for each, the court granted Ms. Kim's petition to
relocate. The court's findings of fact will be discussed in detail below as they relate to
Mr. Kim's assignments of error.
ANALYSIS
Relocation. Mr. Kim appeals the trial court's grant of Ms. Kim's petition to
relocate the children to California. He contends the trial court abused its discretion
No.31426-0-III In re Marriage a/Kim
because it applied an incorrect legal standard in analyzing the relocation issue.
We review the trial court's decision to grant or deny a petition for relocation for an
abuse of discretion. In re Marriage a/Horner, 151 Wn.2d 884,893,93 P.3d 124 (2004);
Bay v. Jensen, 147 Wn. App. 641, 651, 196 P.3d 753 (2008). A court abuses its
discretion where the court applies an incorrect standard, the record does not support the
court's findings, or the facts do not meet the requirements of the correct standard.
Horner, 151 Wn.2d at 894 (quoting In re Marriage a/Littlefield, 133 Wn.2d 39, 47, 940
P.2d 1362 (1997)). We emphasize that trial court decisions in dissolution actions will be
affirmed unless no reasonable judge would have reached the same conclusion. In re
Marriage a/Landry, 103 Wn.2d 807,809-10,699 P.2d 214 (1985). "The emotional and
financial interests affected by such decisions are best served by finality. The spouse who
challenges such decisions bears the heavy burden of showing a manifest abuse of
. discretion on the part of the trial court." Id. at 809.
In 2000, the legislature passed the child relocation act, RCW 26.09.405-.560
("relocation act" or "the act"), which shifts the analysis away from the best interests of
the child to an analysis focusing on the best interests of the child and the relocating
person. LAWS OF 2000, ch. 21, §§ 1, 14; Horner, 151 Wn.2d at 886-87. RCW 26.09.520
provides the legal standard for determining a relocation issue. Horner, 151 Wn.2d at 895.
No. 3 1426-0-II1 In re Marriage ofKim
The trial court must consider the 11 factors listed in the relocation statute on the record to
determine whether the detrimental effect of the proposed relocation outweighs its
benefits. Id. at 894-95. The act creates a rebuttable presumption that the relocation will
be allowed, which may be rebutted when the objecting party proves that "the detrimental
effect of the relocation outweighs the benefit of the change to the child and the relocating
person, based upon the [11 child relocation] factors." RCW 26.09.520. The factors are:
(1) The relative strength, nature, quality, extent of involvement, and stability of the child's relationship with each parent, siblings, and other significant persons in the child's life; (2) Prior agreements of the parties; (3) Whether disrupting the contact between the child and the person with whom the child resides a majority of the time would be more detrimental to the child than disrupting contact between the child and the person objecting to the relocation; (4) Whether either parent or a person entitled to residential time with the child is subject to limitations under RCW 26.09.191; (5) The reasons of each person for seeking or opposing the
relocation and the good faith of each of the parties in requesting or
opposing the relocation;
(6) The age, developmental stage, and needs of the child, and the likely impact the relocation or its prevention will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child; (7) The quality of life, resources, and opportunities available to the child and to the relocating party in the current and proposed geographic locations; (8) The availability of alternative arrangements to foster and
continue the child's relationship with and access to the other parent;
(9) The alternatives to relocation and whether it is feasible and desirable for the other party to relocate also;
No. 3 1426-0-III In re Marriage ofKim
(10) The financial impact and logistics of the relocation or its prevention; and (11) For a temporary order, the amount of time before a final decision can be made at trial.
RCW 26.09.520.
These factors are not listed or weighted in any particular order. RCW 26.09.520;
Horner, 151 Wn.2d at 887. The trial court must find by a preponderance of the evidence
that they show that relocation would be more detrimental than beneficial, and it must
make findings on the record regarding each of the factors. Horner, 151 Wn.2d at 895-97.
Mr. Kim contends the trial court "created a novel legal standard" by analyzing the
relocation issue in terms of the mother's "entitlement" and whether relocation was
"appropriate." Appellant's Br. at 28. Pointing to RCW 26.09.002, which states that "the
best interests of the child shall be the standard by which the court determines and
allocates the parties' parental responsibilities," and In re Marriage ofCombs, 105 Wn.
App. 168, 19 P.3d 469 (2001), he contends a relocation analysis should focus on the best
interests of the children and that "the relocating parent's individual interests must be
subordinated to those of the children." Appellant's Br. at 27.
Mr. Kim's argument fails. First, his reliance on Combs is misplaced. Combs was
decided in the trial court before the effective date of the relocation act. In that case, we
held that a mother's statement that she might move out of state was relevant to at least
three of the factors considered under RCW 26.09.187(3) in establishing a parenting plan.
We stated:
Relocation of a child to a different state certainly will affect his or her physical surroundings and thus would be directly relevant to factor (v). Depending on the circumstances, such a move also may be relevant to other factors, particularly (iii) and (iv). A plan to relocate a child to another state thus would be directly relevant to a determination of the child's best interests.
Combs, 105 Wn. App. at 175-76.
The three parenting plan factors identified by Combs to which relocation is, or
might be, relevant are:
(iii) Each parent's past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child; (iv) The emotional needs and deve10pmentallevel of the child; [and] (v) The child's relationship with siblings and with other significant adults.
RCW 26.09.187(3)(a).
Because Combs involved a dissolution trial conducted prior to the effective date of
the relocation act, it applied the parenting plan criteria under RCW 26.09.187 rather than
the more specific relocation factors later enacted under RCW 26.09.520. To the
extent the three factors pointed to in Combs do not correspond to those reflected in
RCW 26.09.520 or must be weighed against countervailing considerations, Combs has
been abrogated by RCW 26.09.520.
Moreover, the language of the relocation statute undennines Mr. Kim's argument.
Rather than articulating a general "best interests of the child" standard, the statute
identifies 11 factors that must be considered in a relocation analysis. The Washington
Supreme Court has emphasized the importance of the interests of the relocating person,
noting that most of the 11 factors refer to the interests and/or circumstances of the
relocating parent and that'" the [relocation act] both incorporates and gives substantial
weight to the traditional presumption that a fit parent will act in the best interests of ...
the child and the relocating person.'" Horner, 151 Wn.2d at 895 (quoting In re Custody
ofOsborne, 119 Wn. App. 133, 144-45, 79 P.3d 465 (2003)). The Horner court
emphasized that the interests and circumstances of the relocating parent are "[p ]articularly
important" and that, "[c]ontrary to the trial court's repeated references to the best interests
of the child, the standard for relocation decisions is not only the best interests of the
child." Id. at 894. Instead, "trial courts consider the interests of the child and the
relocating person within the context of the competing interests and circumstances
required by the [relocation act]." Id. at 895.
No. 3 I 426-0-II1 In re Marriage ofKim
Here, the trial court evaluated the 11 factors and concluded the detrimental effect
of the proposed relocation did not outweigh its benefits. Accordingly, it applied the
correct legal standard to the relocation issue.
Relocation-Best Interests ofChildren. Applying the best interests of the child
standard, Mr. Kim next argues that "the evidence does not support that it is in the
children's best interests to lose both parents' participation during their critical middle and
high school years." Appellant's Br. at 32. He contends that the trial court's decision
permitting relocation disregarded the harm caused by severing the children from their
father and extended family support system, their school programs, friends, and
extracurricular activities. He also points out that Ms. Kim's work schedule will preclude
her from giving the children full-time attention and keeping them engaged in their
extracurricular activities.
Mr. Kim's argument underscores his misunderstanding of the relocation act. He
overlooks the statutory presumption that a proposed relocation will benefit the child and,
therefore, will be granted. Horner, 151 Wn.2d at 895. By focusing on the best interests
of the children, Mr. Kim ignores the importance of the relocating parent's interests and
circumstances in the balance. Id. Thus, he limits his analysis to evidence of how the
children may be harmed by a move, but ignores the benefits to Ms. Kim and the children.
No. 31426-0-III In re Marriage a/Kim
A trial court's decision to permit relocation is necessarily subjective. In re
Marriage o/Grisgby, 112 Wn. App. 1, 14,57 P.3d 1166 (2002). Our task on review is
limited to determining whether the court's findings are supported by the record and
whether they, in tum, reflect consideration of the appropriate factors. Horner, 151 Wn.2d
at 896. We do not reweigh the evidence. In re Marriage a/Kovacs, 121 Wn.2d 795, 810,
854 P.2d 629 (1993).
We uphold trial court findings if they are supported by substantial evidence. In re
Marriage a/McDole, 122 Wn.2d 604,610,859 P.2d 1239 (1993). '" Substantial
evidence' exists if the record contains evidence of a sufficient quantity to persuade a fair-
minded, rational person of the truth of the declared premise." In re Marriage 0/ Fahey, 164 Wn. App. 42, 55, 262 P.3d 128 (2011).
The trial court here entered findings of fact for each of the 11 factors listed in the
relocation statute. Mr. Kim assigns error to all of the court's findings of fact in the
court's oral decision "to the extent they provided for relocation and denied shared
parenting." Appellant's Br. at 4. However, Mr. Kim does not offer argument on all the
assignments of error. We will not review assignments of error not supported by legal
argument. Herring v. Dep't a/Soc. & Health Servs., 81 Wn. App. 1, 13,914 P.2d 67
(1996).
The first relocation factor requires the court to consider "[t]he relative strength,
nature, quality, extent of involvement, and stability of the child's relationship with each
parent, siblings, and other significant persons in the child's life." RCW 26.09.520(1).
Here, the court found that Ms. Kim "clearly has the stronger relationship with the
children." CP at 188.
Mr. Kim assigns error to related findings of fact 11 through 15, and 18 and 20, but
does not seriously dispute them. These findings stated that the mother tended to the daily
needs of the children in their day-to-day care, the mother did not neglect E.K.'s mental
health issues, the mother provided the bulk of the parenting functions in the past, the
father's past exercise of parenting functions was more limited due to his career, the
mother was more involved in the emotional needs of her children, the father's work
schedule would have made it difficult for him to have been the primary residential parent,
and the mother had the stronger relationship with the children.
Mr. Kim does not explain how these findings are deficient. In fact, in his brief he
admits that he worked long hours while Ms. Kim was "home-based" and "more
emotionally supportive." Appellant's Br. at 10. Ms. Kim's testimony, detailed above,
sufficiently supports these findings. Moreover, the unchallenged findings of fact relating
to the initial residential placement issue, state that the mother was the primary caretaker
No. 31426-0-II1 In re Marriage ofKim
for the children and attended to all their physical and emotional needs; the father was the
primary wage earner; the mother managed the day-to-day affairs of the children; the
children demonstrated a stronger attachment to the mother; that E.K. is estranged from his
father; and that the father works many hours, but does focus on the academic
achievements of the children. The court's findings are easily supported by the record, and
the court's unchallenged findings are verities on appeal.
Mr. Kim next challenges the court's finding regarding the third relocation factor.
This factor requires that the court consider "[w ]hether disrupting the contact between the
child and the person with whom the child resides a majority of the time would be more
detrimental to the child than disrupting contact between the child and the person objecting
to the relocation." RCW 26.09.520(3). The court found that "disrupting contact between
the children and their mother would be more detrimental than disrupting contact between
the children and their father." CP at 178.
Mr. Kim contends the court improperly gave preference to Ms. Kim because of her
position as the primary residential parent. He argues the trial court may not draw a
presumption from a temporary parenting plan when entering a permanent parenting plan,
and that the court effectively zeroed out Mr. Kim's role based on what it deemed the
mother's success in being more comforting to the children during the stressful time of
separation. However, Mr. Kim fails to show us how the court's ruling favored one parent
over another.
The fifth relocation factor requires that the court consider "[t]he reasons of each
person for seeking or opposing the relocation and the good faith of each of the parties in I requesting or opposing the relocation." RCW 26.09.520(5). In its oral ruling, the court
found that Ms. Kim was going to need retraining after being out of her profession for 16
to 17 years. It also noted that the UCLA job offer "provides financial resources for the
family and for herself and a career for her." CP at 196. Additionally, the court observed
that relocation was consistent with the family's history of relocating many times for Mr.
Kim's employment related issues: "In the past it was relocating for-to accommodate
husband's career, father's career, and it is now an effort by her to get her career back on
track. The alternative would be to require her to [stay] in Yakima where she has no
employment opportunities." CP at 197.
Mr. Kim assigns error to the court's following findings of fact related to this issue:
27. The court finds that as mother is not licensed to practice medicine in Washington, and is in need of retraining and has ajob offer in southern California, where she is licensed that will provide for her financially that the relocation is not in bad faith. 28. The court further finds that there is no certainty of the mother finding employment in Washington. 29. The court finds that the father's opposition to relocation is made in good faith.
30. The court finds that the best place for mother to pursue
employment is in southern California.
CP at 178.
Mr. Kim contends that Ms. Kim did not make sufficient efforts to pursue her
career in Washington and points out that she never attempted to obtain a Washington
license, even though a California medical license has reciprocity in Washington.
The record undermines Mr. Kim's contention. In her affidavit to support her
motion to relocate, Ms. Kim explained that UCLA had unexpectedly offered her a
surgical pathology fellowship after one of the chosen residents chose to withdraw. She
explained that because she had been out of the work force for 14 years, she needed to
update her skills. She also stated that she had no option to resume her practice in Yakima
or Washington State:
I am not eligible for a medical license here because I have not worked for over two years. I would need to spend one year in an accredited training program; the only one in Washington is at the University of Washington.... [T]he U.W. Pathology Department's Academic Programs Manager informed me that only one or two surgical pathology fellowship positions are available to non-U.W. residents per year. About thirty applicants are considered. They are currently filled for July 2011 and July 2012. Furthermore, the likelihood that I would be accepted at a pathology department ofU.W.'s caliber, I would say, is nil.
CP at 63.
No.31426-0-II1 In re Marriage ofKim
This evidence provides ample support for the court's finding that Ms. Kim had
valid reasons for moving and was not seeking to relocate in bad faith. The trial court was
entitled to accept Ms. Kim's testimony as more credible than Mr. Kim's.
The sixth relocation factor requires the court to consider "[t ]he age, developmental
stage, and needs of the child, and the likely impact the relocation or its prevention will
have on the child's physical, educational, and emotional development, taking into
consideration any special needs of the child." RCW 26.09.520(6). The court found the
children were "very well adapted, very mature." CP at 197. It stated, "I think any
damage created by relocating, any uncertainties they're going to have are going to be
easily resolved by their various-their respective personalities. I think ... all three of the
kids are going to be able to handle it." CP at 197.
Mr. Kim challenges the following findings of fact related to this factor:
22. The court further finds that the children will adapt to the
relocation.
31. The court finds that given the age of the children and their developmental stage, relocation would be tolerated by the children and will not have any negative impact on the children. 32. The court does not find that the physical, educational, and emotional development of the children will be impaired by relocation.
CP at 178-79.
Mr. Kim contends these findings are contradicted by the GAL's and forensic
psychiatrist's opinions that relocation would be detrimental to the children. He also
contends that under relocation, the children lose the benefit of a full-time mother, a
meaningful relationship with their father and paternal grandparents, their friends, and
school programs.
The court addressed the children's attachment to their friends and school and
acknowledged that Dr. Adler and the GAL opined that relocation would be potentially
detrimental. Nevertheless, the court concluded that the children were adaptable and
mature and would be able to adjust to a move. Nothing in the record suggests the
children will not be able to adapt to relocation. By all accounts, they are well adjusted
and socially engaged. A family friend who testified for Mr. Kim characterized the
children as wonderful and the GAL noted the children are "well liked by peers and excel
academically." CP at 333. L.K. 's 8th grade teacher reported to the GAL that '" even in
the midst of great turmoil, this young man is one who is thought of highly by his peers.'"
CP at 334. C.K.'s teacher reported that outwardly she was handling the divorce well and
described her as an '" amazing child'" who has "high expectations of herself and works
hard to meet them." CP at 334.
No. 3 I 426-0-II1 In re Marriage 0/Kim
Moreover, a trial court is not bound by a GAL's recommendation. In re Marriage
o/Magnuson, 141 Wn. App. 347,351,170 P.3d 65 (2007). As noted, the trial court
acknowledged the GAL's and psychiatrist's concerns, but believed the children would be
able to adapt. Moreover, the court likely found the GAL's opinion of limited usefulness.
The GAL concluded that relocation was "not best for the children" and then stated, "[t]he
mother would have to demonstrate an overwhelming need" to move. CP at 340. The
GAL's opinion ignores the relocation statute's presumption that a proposed relocation
will benefit the child and, therefore, the parent proposing relocation need only offer her
reasons for relocating. RCW 26.09.520. Ms. Kim was under no obligation to prove an
"overwhelming" basis for the move. And finally, Dr. Adler's opinion is limited in that
his forensic evaluation was focused on E.K.'s issues and offered no analysis of the issues
potentially facing the younger children.
The court addressed the appropriate factors required by the relocation statute. The
challenged findings are supported by sufficient evidence and those findings in tum
support the court's decision to allow relocation.
Cultural Factors. Mr. Kim next asserts that the trial court erred in disregarding
cultural factors. He maintains that his strict parenting style and emphasis on the
children's education is explained by his Korean heritage and that the differences between
the parenting styles of each parent are explained by the differences between the Korean
and Japanese approaches to child raising and education.
RCW 26.09.184(3) provides: "In establishing a permanent parenting plan, the
court may consider the cultural heritage and religious beliefs of a child." Here, the
court's finding of fact 1 provided, "The court considered testimony regarding the Asian
culture as it applied to the parenting of the parties['] minor children and ha[s] determined
that cultural considerations are inapplicable in deciding residential provisions for these
children." CP at 177.
In its oral decision, the court stated:
I think what we have here is a husband from New Jersey and a wife from Southern California, and I can no more balance these two states than I can Korea and Japan. What I think we're left with is, frankly, Washington residents and Washington children, and that's the way I've analyzed it.
CP at 184.
The word "may" in a statute denotes discretion and is distinct from the word
"shall," which indicates a mandatory action. Pierce v. Yakima County, 161 Wn. App.
791, 800-01,251 PJd 270 (2011). Because the legislature used the word, "may" in
RCW 26.09.184(3), the court was not required to take the parties' cultural heritages into
consideration. Mr. Kim contends that the court failed to realize the importance of the role
of an Asian father and "how the children needed regular, daily contact for the purposes of
discipline, accountability, role-modeling, and character development." Appellant's Br. at
37. Both the GAL and Dr. Adler talked about the importance of the cultural and family
factors in this case, but did not really explain how these observations were relevant to the
relocation decision. For example, the GAL noted that the dominant value of Korean
culture is to go as high as possible in education. Dr. Adler reported that E.K.' s problems
needed to be understood in the context of having a first generation Korean father and a
third generation Japanese mother, explaining that children of immigrants are inherently at
risk of feeling alienated from their parents. However, Mr. Kim fails to explain how this
information relates to the relocation issue. While it may have been helpful in E.K. 's
treatment plan, it had little relevance to the relocation decision before the court.
Nevertheless, the court considered the information before making a decision to disregard
it for purposes of the relocation decision. The court did not abuse its discretion in doing
so.
PropertY Division. Next, Mr. Kim contends the property division was unfair
because the trial court failed to compensate him for supporting Ms. Kim through medical
school. Relying on In re Marriage of Washburn, 101 Wn.2d 168,677 P.2d 152 (1984),
he contends that our Supreme Court "established a clear rule that requires compensation
in the property division for a spouse who supports the other spouse in obtaining a
lucrative professional degree where the marriage ends before that degree contributes to
that community." Appellant's Br. at 41-42.
The court addressed Mr. Kim's request for compensation based on his support of
Ms. Kim through medical school as follows:
[Ms. Kim's] decision, her desire not to pursue a career is a reason why you may have wanted to get a divorce 17 years ago, but the fact is ... that both of you followed, the fact that she ... chose motherhood over career is not something that is entitled to compensation and I think that's a very critical part of this. The fact that you have a substantial income and she doesn't is important. . . . You have a greater financial ability and you would not be entitled to compensation and I can't imagine any judge ever granting that kind of compensation that you asked.
CP at 203.
Washburn does not help Mr. Kim. In that case, the court addressed the situation
where one spouse supports the other through professional school, but the marriage is
dissolved before any financial benefit from that investment is realized. Washburn, 101
Wn.2d at 170. The court noted that "the supporting spouse may be called upon to
postpone his or her own education or forego promotions and other valuable career
opportunities in order to find ajob near the student spouse's school." Id. at 173. The
court further noted that at divorce, the parties often have little or no assets to divide, so
maintenance is appropriate, especially if the marriage ended soon after the student spouse
finished school. Id. at 181.
Our facts bear little resemblance to Washburn. In that case, the marriage ended
about two years after the student spouse finished an internship. There were almost no
assets at the time of divorce. In contrast, this case involves a long-term marriage of
almost 25 years and the accumulation of significant assets during those years.
Additionally, Ms. Kim's parents, not Mr. Kim, paid for her medical school education.
Moreover, Mr. Kim fails to acknowledge that Ms. Kim's labor as a full-time parent to the
children and as a homemaker allowed Mr. Kim to vigorously pursue his career at the
expense of hers. Unlike the situation in Washburn, Mr. Kim did not forego career
opportunities to support Ms. Kim. In fact, the record establishes the opposite. The family
frequently moved to accommodate Mr. Kim's career and it was Ms. Kim's sacrifices that
enabled Mr. Kim to put in long work hours and achieve success in his career. Under
these facts, the trial court did not abuse its discretion in disregarding Mr. Kim's request
for compensation for supporting Ms. Kim through medical school.
Mr. Kim further argues that the 60 percentl40 percent property division is unjust in
view of the facts that (1) Mr. Kim supported Ms. Kim through medical school, (2) Ms.
Kim is six years younger than Mr. Kim and therefore has more years to work, and (3) Ms.
Kim unilaterally chose not to work over Mr. Kim's objections.
In reaching a "just and equitable" property division, the trial court must consider
four statutory factors: (1) the nature and extent of the community property, (2) the nature
and extent of the separate property, (3) the duration of the marriage, and (4) the economic
circumstances of each spouse at the time the property division is to become effective.
RCW 26.09.080; In re Marriage ofRockwell, 141 Wn. App. 235,242, 170 P.3d 572
(2007). The trial court has broad discretion in distributing marital property, and its
decision will be reversed only if there is a manifest abuse of discretion. Rockwell, 141
Wn. App. at 242-43. If the decree results in a patent disparity in the parties' economic
circumstances, a manifest abuse of discretion has occurred. Id. at 243.
"In a long term marriage of25 years or more, the trial court's objective is to place
the parties in roughly equal financial positions for the rest of their lives." Id. In view of
the length of the marriage, Ms. Kim's absence from the work force for 16 to 17 years, the
uncertainties of relocation, and the substantial difference in the parties' relative earning
capacities, the court's property division was equitable. The record reflects that Mr. Kim
earns between $250,000 and $322,000 per year, while Ms. Kim will be earning $60,000
to $70,000 per year in her fellowship. Mr. Kim's argument ignores the fact that Ms. Kim
will be in her late 40s by the time she has finished her training and will have significantly
fewer years in the paid work force than Mr. Kim. Under these facts, the court did not
abuse its discretion in awarding Ms. Kim a larger percentage of the community's
property.
Finally, Mr. Kim contends that the trial court erred in treating the $100,000 from
his parents as a gift, rather than a loan. He argues that a gift requires donative intent and
that both his parents testified that the money was a loan, not a gift. In characterizing the
sum as a gift, the court noted, "There are no terms regarding repayment. . .. [T]here is a
clear and definitive statement that it is a gift." CP at 205.
The record undermines Mr. Kim's claim. Exhibit 14 is a written document entitled
"GIFT LETTER" and provides: "This letter will certify that [Mr. Kim's parents] are
making a gift in the amount of$100,000 to assist our ... son and daughter-in-law to
purchase the property located at 3170 Naches Heights Rd., Yakima, WA." The letter also
provided that "[t]here is no obligation that this gift be repaid in any form either by cash or
by work performed." Ex. 14. In view of this evidence, the trial court did not abuse its
discretion in characterizing the $100,000 as a gift.
The court's property division was equitable.
Child Support. Child support orders are reviewed for an abuse of discretion. In re
Marriage ofGriffin, 114 Wn.2d 772, 776, 791 P .2d 519 (1990).
No. 31426-0-1II In re Marriage 0/Kim
Child support is determined by state-determined support schedules calculated on
worksheets developed by the administrative office for the courts. RCW 26.19.035; see In
re Marriage o/Sievers, 78 Wn. App. 287, 305, 897 P.2d 388 (1995). The purpose of the
schedule is to ensure support orders that meet children's basic needs and provide
additional support commensurate with the parents' incomes and resources, and that
equitably apportion the support among the parents. RCW 26.19.001.
Mr. Kim contends that the child support order should be vacated because the trial
court failed to include maintenance as income to the mother and a deduction to the father
in the child support worksheet. He contends the difference in his child support obligation
of 65.8 percent versus 77.6 percent results in an inequitable apportionment of child
expenses.
During presentment of the final documents on January 25, 2013, Mr. Kim
suggested that the child support worksheets include maintenance as a deduction for Mr.
Kim and an increase in income for Ms. Kim. The trial court responded:
I don't think it's appropriate to deduct [maintenance] because what I'm going to end up doing is if it changes the numbers, 1 am going to increase the maintenance to make it come out. So, you either go with the numbers I've got or we kind of get into this circular argument with no particular end. [1]fl deduct maintenance, child support will go down, then that will change the total amount, so I'm going to increase it again. It being the maintenance, so I think it's appropriate just to leave it off.
RP (Jan. 25, 2013) at 40-41.
During the September 13,2012 hearing, the trial court imputed Ms. Kim's income
at the level she would be earning in California, $5,700, noting the difference between her
child support and need would be made up in spousal maintenance. The trial court did not
abuse its discretion in doing so. The court considered both maintenance and child
support, and considered the needs of Ms. Kim and the family before and after moving to
California. Mr. Kim fails to show how the court's calculation resulted in an inequitable
apportionment of child support to him.
The trial court did not abuse its discretion in calculating child support.
Attorney Fees. Ms. Kim requests attorney fees on appeal under RCW 26.09.140
and RAP 18.1(a) and (b). She points out that her income is substantially less than Mr.
Kim's and that she should not be required to deplete the assets she was awarded in this
dissolution to defend an appeal without merit.
RCW 26.09.140 gives this court discretion to "order a party to pay for the
cost to the other party of maintaining the appeal and attorneys' fees in addition to
statutory costs." In exercising our discretion, we consider the issues' arguable
merit on appeal and the parties' financial resources, balancing the financial need of
the requesting party against the other party's ability to pay. In re Marriage of
28 No. 31426-0-111 In re Marriage ofKim
CMC, 87 Wn. App. 84, 89,940 P.2d 669 (1997).
CONCLUSION
We affirm the trial court, and we award attorney fees on appeal to Ms. Kim.
Kulik, J.
WE CONCUR:
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