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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Marriage of ) ) No. 75343-6-1 FANAYE ZEWDIE ASHAGARI, ) ) DIVISION ONE Respondent, ) ) UNPUBLISHED OPINION and ) ) ZELEKE KASSAHUN, ) ) Appellant. ) FILED: June 19, 2017 )
TRICKEY, A.C.J. — Zeleke Kassahun appealed the decree, the parenting
plan, and the child support order resulting from the dissolution of his marriage to
Fanaye Ashagari. This court decided that case in March 2015. We remanded for
further findings on the issue of Kassahun's gross monthly income for purposes of
establishing child support and maintenance awards. We otherwise affirmed the
various orders the trial court entered.
Kassahun now appeals the trial court's order and findings on remand. He
argues that the trial court's findings are not supported by substantial evidence, that
the trial court used incorrect values and methods to calculate his income, that
Ashagari's financial declarations were not verified by "[o]ther sufficient verification"
under RCW 26.19.071(2), that the trial court misapplied the statutory factors under No. 75343-6-1/2
RCW 26.09.090 in calculating its maintenance award, and that the trial court erred
when it declined to impute income to Ashagari. Finding no error, we affirm.
FACTS
This court previously stated the relevant underlying facts as follows:
In 1986,[Kassahun] moved to Seattle .. . . He found work driving a taxicab until he purchased a Texaco gas station in 1991.
. . . Kassahun hired [Fanaye Ashagari] to work at his gas i station as a cashier. They began a romantic relationship and, in January 1998, they were married. The parties have three children. Ashagari did not return to work outside the home after their first child was born in 2001.
The parties bought a home together in 1999. They purchased a taxicab license in 2000. In 2002, they acquired the Abyssinia Market. . . . Over the years they were able to save a large sum of money. In 2011, unbeknown to Ashagari, Kassahun withdrew $187,000 from the joint bank account and invested $180,000 in another taxicab license.
Kassahun paid himself a modest salary from his work at the Abyssinia Market. His tax returns reflected the paychecks he wrote to himself from the business account as well as his income from one of the taxicabs. He reported an income from the taxicab licenses of less than $1,000 a year. But at trial, Kassahun claimed to receive $1,000 each month per taxicab, paid in cash. He provided no documented proof of this income and stated that he does not keep records of the income.
Kassahun and Ashagari separated on September 16, 2011.
In re Marriage of Ashagari and Kassahun, No. 71295-1-1, slip op. at 1-3(Wash.
Ct. App. March 23, 2015)(unpublished),
http://www.courts.wasioviopinions/pdf/712951.pdf, review denied, 184 Wn.2d
1012(2015).
2 No. 75343-6-1/3
In July 2012, Ashagari petitioned for dissolution of the parties' marriage.
Ashagari submitted a financial declaration that showed that she had total
household monthly expenses of $6,485.54.1 This included payments on the
parties' home equity loan and monthly expenses for the parties' children. She
estimated that Kassahun earned between $10,000 and $12,000 per month in
income from the Abyssinia Market (the Market) and taxicab licenses.
In August 2012, Kassahun filed a financial declaration that stated that his
net monthly income was $4,015.56 and his total monthly expenses were
$3,110.00. In June 2013, Kassahun submitted an amended financial declaration
that stated his gross monthly income consisted of $3,000 in wages, $2,000 in
business income from his taxicab' licenses, and $1,500 in other income. He
declared that his total monthly expenses were $3,682.
The trial court issued a temporary order of child support requiring Kassahun
to pay a monthly transfer amount of $2,111.26. The court imputed $11,000 in net
monthly income to Kassahun, based on its finding that his income was unknown.
The trial court imputed $1,500 of income per month to Ashagari. It also issued a
temporary restraining order and an order of temporary relief requiring Kassahun to
pay $1,000 per month in maintenance and pay the household bills.
Kassahun testified that these obligations made him destitute:2 Prior to trial,
Kassahun obtained $50,000 from Taketu Truneh, allegedly to help pay his support
'Ashagari filed a new financial declaration in June 2013 that listed her household monthly expenses at $6,667.54. 2 There are conflicting accounts as to whether Kassahun was destitute in 2012. For example, Kassahun voluntarily paid the family's household expenses after moving out in September 2011. He stopped making payments and claimed he was destitute after Ashagari filed for divorce. Further, he leased a new Mercedes-Benz automobile in 3 No. 75343-6-1/4
obligations; $9,000 remained at the time of trial. The trial court found these claims
to be not credible. For example, Kassahun used part of these funds for personal
expenses and attorney fees.
At trial, Kassahun testified that he had a gross monthly income of $3,000,
income from two taxicab licenses of $2,000 per month,3 and an additional $1,200
to $1,500 per month taken from the Market to pay personal expenses and a
shareholder loan. He testified that his net monthly income was $4,714 and his
monthly expenses were $3,682. His testimony was corroborated by Steven
Kessler, a certified public accountant who had reviewed Kassahun's financial
records.
The trial court found that Kassahun's total gross monthly income was
$13,750. In re Ashagari, No. 71295-1-1, slip op. at 13. The trial court found that
the tax returns presented by the parties were unreliable due to Kassahun's low
reported gross monthly income relative to his monthly expenses. In re Ashagari,
No. 71295-1-1, slip op. at 13. Also, Kassahun's testimony indicated that he realized
untaxed income from several sources.4 Based on its calculation of his gross
monthly income, the trial court ordered Kassahun to pay $1,347.72 per month in
child support and $5,000 per month in maintenance to Ashagari.
February 2013 and incurred numerous personal expenses between when the divorce was filed and trial. 3 Kassahun did not report his income from at least one of the taxicabs to the IRS. 4 At trial, Kassahun testified that he paid several Abyssinia Market employees in cash obtained from sales, which was unreported and untaxed. He also testified that he received cash payments from his two taxicab drivers but did not keep records, and only reported income from one of the taxicabs on his personal income taxes. 4 No. 75343-6-1/5
On appeal, this court concluded that the trial court's findings for its
calculation of Kassahun's gross monthly income were insufficient to permit review.
In re Ashagari, No. 71295-1-1, slip op. at 13. This court remanded for further
findings on the calculation of Kassahun's gross monthly income, and recalculation
of Kassahun's maintenance and support obligations if necessary. In re Ashaciari,
No. 71295-1-1, slip op. at 15.
On remand, the trial court determined that it had erred when it calculated
Kassahun's income, and found instead that his gross monthly income was
$12,750. It based its determination on its previous findings, its oral ruling in July
2013, and additional findings on remand. Also, the trial court changed the method
it used to compute Kassahun's taxes so that his tax liability decreased by
approximately $1,000. This increased his net monthly income from $4,814.34 to
$5,399.52. The trial court adjusted Kassahun's child support obligation to $1,696
per month but did not change his $5,000 per month maintenance obligation.
Although the order of child support on remand was effective as of November 13,
2013, the trial court used the current ages of the children, rather than the ages of
the children when the original order of child support was entered, to calculate
Kassahun's support obligation. This increased his monthly transfer amount to
$1,592.73.
Kassahun appeals.
ANALYSIS
Trial court decisions in dissolution proceedings are reviewed for manifest
abuse of discretion, and are rarely changed on appeal. In re Marriage of Griffin,
5 No. 75343-6-1/6
114 Wn.2d 772, 776, 791 P.2d 519(1990) (citing In re Marriage of Landry, 103
Wn.2d 807, 809, 699 P.2d 214 (1985)). The party challenging a decision by the
trial court in a dissolution proceeding bears the burden of showing that the court
manifestly abused its discretion. Griffin, 114 Wn.2d at 776.
"A trial court abuses its discretion if its decision is manifestly unreasonable
or based on untenable grounds or untenable reasons." In re Marriage of Littlefield,
133 Wn.2d 39, 46, 940 P.2d 1362(1997).
A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard.
Littlefield, 133 Wn.2d at 47.
Kassahun Gross Monthly Income
Kassahun argues that the trial court abused its discretion in determining his
child support obligation because it was based on an erroneous calculation of his
gross monthly income. He assigns error to a number of the trial court's findings
on remand and also argues that the trial court improperly relied on the financial
declarations submitted by the parties to calculate his gross monthly income.
Findings on Remand
Kassahun assigns error to a number of the trial court's findings on remand
related to its calculation of his gross monthly income. He argues that these findings
were not supported by substantial evidence in the record. We conclude that
substantial evidence does support these findings.
6 No. 75343-6-1/7
"[F]indings of fact supported by substantial evidence will not be disturbed
on appeal." Bering v. Share, 106 Wn.2d 212, 220, 721 P.2d 918 (1986).
"'Substantial evidence' is evidence sufficient to persuade a fair-minded, rational
person of the truth of the declared premise." In re Parental Rights of E.D., 195
Wn. App. 673, 688, 381 P.3d 1230 (2016)(quoting Bering, 106 Wn.2d at 220),
review denied, 187 Wn.2d 1018 (2017). Both circumstantial and direct evidence
may be considered. State v. Gosbv, 85 Wn.2d 758, 766-67, 539 P.2d 680(1975).
"Questions of credibility are uniquely and exclusively within the province of
the trial court," and this court will not disturb such determinations on appeal. Miller
v. McCamish, 78 Wn.2d 821, 831,479 P.2d 919 (1971).
Unchallenged findings of fact are verities on appeal. State v. Stenson, 132
Wn.2d 668, 697, 940 P.2d 1239(1997).
a. Reliability of Tax Returns
Kassahun first assigns error to the trial court's finding that his tax returns
were not reliable and that he admitted as much. The record contains several
indications that Kassahun's tax returns would not be reliable measures of his
income. For example, Kassahun testified that he received $1,000 a month in cash
from each of his two taxicab licenses. But he stated that he only reported income
for one of the taxicabs and did not keep records of the income he received.
Further, Kassahun testified that he used funds from his business to pay for
personal expenses,5 and did not keep records separating personal expenses from
5For example, a payment to Vern Fonk Insurance because of a DUI and paying off various personal credit cards. 7 No. 75343-6-1/8
business expenses. Therefore, the record contains substantial evidence
supporting the trial court's finding that Kassahun's tax returns were not reliable
measures of his income. The trial court's statement that Kassahun admitted to this
is reasonably interpreted as a reference to his own admissions that he did not
report income on his tax returns and used business funds to pay personal
expenses.
Kassahun, relying on In re Marriage of Mansour, argues that the trial court
had to find an error in the tax return itself before finding it was unreliable. 126 Wn.
App. 1, 106 P.3d 768(2004). In Mansour, the trial court found that Mr. Mansour's
tax returns were not an accurate measure of his income because he took tax
deductions that he was not entitled to. 126 Wn. App. at 13. But the reviewing
court did not hold that errors in the tax return itself are the only appropriate basis
for deciding that a tax return is unreliable. Kassahun's own testimony showing that
his tax returns were unreliable constituted substantial evidence supporting the trial
court's finding.
b. Reliability of Wage Statements
Kassahun next assigns error to the trial court's finding that Kassahun's
wage statements were not a reliable measure of his income because he paid
himself a "very small wage."6 Kassahun argues that the record does not show that
his wage was "very small," or that the wage statements are unreliable. Kassahun
does not elaborate on his challenge to the trial court's finding that he paid himself
a "small wage."
6 Br. of Appellant at 2. 8 No. 75343-6-1/9
The trial court's finding reads,"The Respondent's wage statements are not
a reliable indicator of his income due to the fact that he pays himself a very small
wage and used the same credit cards to purchase the inventory for his grocery
store and to pay the family's expense."7 Kassahun reported that he paid himself a
pretax wage of $3,000 per month from the Market. But he also wrote checks to
himself out of the Market's funds to pay personal expenses, used business credit
cards for personal expenses, and took cash from the Market in addition to his
reported wages. Further, the record shows that Kassahun had significant personal
expenses, many of which he paid using cash, which exceeded the reported
expenditures from his personal bank account. Taken together, the record
demonstrates that Kassahun's spending behaviors did not match the $3,000 per
month wage he paid himself from the Market. The trial court's finding that
Kassahun's wage statements were unreliable was supported by substantial
evidence.
c. Failure to Segregate Business and Personal Expenses
Kassahun assigns error to the trial court's finding that he used the same
credit cards for business and personal expenses, and that he did not segregate
his personal expenses and report them as income. This finding is supported by
substantial evidence. Kassahun concedes that he testified at trial that he used
business credit cards to pay for personal expenses. Furthermore, Kassahun took
thousands of dollars from the Market, in addition to his wages, in 2012 alone.8
7 Clerk's Papers(CP) at 394. 8 Ex. 55.
9 No. 75343-6-1/10
Kassahun argues that he "did try to segregate those items and report them
as income," but does not support this argument with citations to the record.9 He
also argues that these expenses were included in the $1,200 to $1,500 per month
he and Kessler testified that he took from the Market to cover personal expenses.
Kessler did not review Kassahun's credit card statements for any year. Kessler
did not review Kassahun's personal bank statements from 2011 to 2013 in-depth.
The testimony offered by Kassahun and Kessler is insufficient to overcome the
substantial evidence in the record that Kassahun used business credit cards to
pay personal expenses and failed to segregate these charges or declare them as
income.
d. Use of Business Cash
Kassahun assigns error to the trial court's finding that he had access to
large amounts of cash through his business, which he used to pay his employees
and for other personal expenses. Kassahun testified that he paid his employees
in cash "out of the till."1° He used funds from his business to pay for personal
expenses. He testified that he used his Macy's credit card and cash to pay for his
supervised visitation with his children. He also used cash to pay for a number of
personal expenses, including gas, recreational activities with his children, and a
domestic violence treatment program, in amounts that exceeded his reported
expenditures from his personal bank account. In sum, Kassahun testified to a
pattern of using business funds to pay for personal expenses, and his cash
9 Br. of Appellant at 26. 1° Br. of Appellant at 26; see Report of Proceedings (July 15, 2013) at 562-63. 10 No. 75343-6-1/11
expenditures did not match his reported payments from his personal bank account.
Accordingly, substantial evidence supports this finding of fact."
e. Credit Card Debt
Kassahun assigns error to the trial court's finding that the parties did not
have credit card debt, and that they paid for expenses from the cash flow of the
Market and taxicab licenses and managed to save enough to purchase a second
taxicab license. Substantial evidence supports this finding as well. The financial
declarations submitted by the parties in 2012 did not list credit card debt. In 2011,
the family had savings of $187,000, and Kassahun used $180,000 to invest in a
second taxicab license.
Kassahun argues that at the time of trial he did have credit card debt. He
testified that he incurred $5,000 of debt on his AAA Visa card in March 2013to pay
for attorney fees, and that AAA Visa sent him a check for a $6,000 cash advance
to put toward the debt. Other than the AAA Visa statement showing the deposit of
$6,000, Kassahun did not offer documentary evidence to support his claim. The
trial court was free to disregard Kassahun's self-serving statement if it did not find
him credible. His argument is insufficient to show that the trial court's finding was
not supported by substantial evidence.
f. TaxiCab License Undocumented Income
Kassahun assigns error to the trial court's finding that he had
undocumented income from the two cab licenses. He argues that his income from
" Kassahun also argues that there was no evidence that this cash was unreported or came from an unverified source. The challenged finding does not say that the cash from the Market was unreported or unverified. 11 No. 75343-6-1/12
the taxi licenses was in fact documented on his tax returns, bank records, and
quarterly reports to the Department of Labor and Industries and the Department of
Revenue. But, while the record shows the income that Kassahun reported,
Kassahun did not provide any documentation of the actual income he received.
And evidence suggests there was unreported income. For example, Kassahun's
tax returns for 2011 show that he reported only $755 of profit from the taxicab
licenses.12 He testified that he was paid $1,000 in cash per month from each of
his taxicab licenses, but almost all of his profits went toward paying the taxicabs'
expenses. He does not cite any documentary evidence showing that he was in
fact paid $1,000 per month per taxicab, or evidence supporting his argument that
essentially all of these profits went toward maintaining the taxicabs. In fact, he
testified that he did not keep a ledger or other record of the money he received.
The trial court's finding that Kassahun did not document his income from the
taxicab licenses was supported by substantial evidence.
g. Parties' Total Monthly Expenditures
Kassahun argues that the trial court's finding that the parties' total monthly
expenditures were $8,700 was not supported by substantial evidence. Kassahun
alleges that the trial court did not sufficiently explain which expenses it considered
or what duplications it eliminated. The trial court stated that it "looked at the
expenditures that the parties submitted in these financial declarations under
12As discussed above, Kassahun only reported income for one of his taxicab licenses on his tax returns. At trial, he testified that he received $1,000 in cash per month from each of his two taxicabs. The total listed income of $23,752 appears to possibly include the alleged income from both taxicabs. Neither party addresses this discrepancy in depth. 12 No. 75343-6-1/13
penalty of perjury and eliminated duplications. The Court added up the expenses,
minus Mr. Kassahun's housing and utilities, and reached a figure of about
$8,700."13 Each party's financial declaration lists monthly expense information.
The trial court set forth its methodology for reaching its final figure. The record
contains substantial evidence showing the basis for the trial court's decision.
h. Kassahun Saving Ability
Kassahun argues that the trial court's finding that Kassahun was able to
save approximately $1,500 per month during the parties' marriage was not
supported by substantial evidence. The parties were married in January 1996. In
re Ashaqari, No. 71295-1-1, slip op. at 2. In 2011, Kassahun withdrew $187,000
from the parties' joint bank account. In re Ashagari, No. 71295-1-1, slip op. at 2.
The trial court's finding that this figure represented savings the parties had accrued
over 10 years was supported by substantial evidence in the record.
i. Credibility of Witnesses
Kassahun assigns error to the trial court's finding that Kessler, Kassahun's
expert, was not credible because he did not have access to sufficient records and
did not provide a reliable estimate of the amount of cash available to Kassahun.
Kessler's testimony demonstrates that the trial court had reason to question
Kessler's credibility. Kessler stated that he based his valuation on the wages
Kassahun paid himself from the Market, Kassahun's income from the taxicab
licenses, income from his shareholder loan, and normalization for Kassahun's use
of business funds for personal expenses. But Kessler also testified that he did not
13 CP at 396. 13 No. 75343-6-1/14
review Kassahun's personal bank statements extensively, and did not review
Kassahun's credit card statements at all. The court's finding that Kessler was not
credible is supported by substantial evidence in the record.
Kassahun also assigns error to the trial court's finding that Kassahun was
not credible when he testified he was forced to borrow money for his maintenance
and child support obligations because he used the money for personal expenses
and attorney fees. This court does not review credibility determinations.
Calculation of Kassahun's Gross Monthly Income
Kassahun argues that this court should vacate the trial court's maintenance
and child support orders. He contends that the trial court abused its discretion by
calculating his income based on the expenditures alleged in the parties' financial
declarations. Because courts may look to financial declarations to calculate the
gross income of parties and the trial court's underlying findings of fact were
supported by substantial evidence, we disagree.
When the court determines the child support obligation of each parent, it
should consider lap income and resources of each parent's household." RCW
26.19.071(1). When calculating a parent's gross monthly income, the court
includes income from many different sources, including salaries, wages, income
from second jobs, maintenance actually received, and income from self-
employment or proprietorship of a business. RCW 26.19.071(3).
Offered income and deductions must be verified by tax returns for the past
two years or current paystubs, and "[o]ther sufficient verification" is required to
14 No. 75343-6-1/15
verify "income and deductions which do not appear on tax returns or paystubs."
RCW 26.19.071(2).
"RCW 26.19.071(1) does not require that the court make a precise
determination of income. Instead, the court is required to consider all income and
resources of each parent's household." In re Marriage of Marzetta, 129 Wn. App.
607, 623, 120 P.3d 75 (2005). An appellate court "must presume that the [trial]
court considered all evidence before it in fashioning [an order of child support]." In
re Marriage of Kelly, 85 Wn. App. 785, 793, 934 P.2d 1218(1997).
A trial court's determination of child support is reviewed for abuse of
discretion. In re Marriage of Fiorito, 112 Wn. App. 657, 663, 50 P.3d 298(2002).
A trial court abuses its discretion if its decision is manifestly unreasonable or based
on untenable grounds, including an erroneous view of the law. Fiorito, 112 Wn.
App. at 663-64.
Use of Financial Statements
Kassahun first argues that the trial court erroneously relied on the financial
declarations of the parties to calculate his gross monthly income. Because courts
may look to the parties' financial declarations when calculating income, we
disagree.
A trial court may consider the financial declarations submitted by parties
throughout dissolution proceedings. See, e.g., In re Marriage of Zacapu, 192 Wn.
App. 700, 709, 368 P.3d 242(2016)(trial court did not abuse its discretion when it
considered the parties' financial declarations to calculate a deviation from the
obligor's standard calculation); In re Marriage of Avvad, 110 Wn. App. 462, 474,
15 No. 75343-6-1/16
38 P.3d 1033(2002)(consideration of stock options listed in financial declaration
when determining financial status of the parties when evaluating attorney fee
award); Brandli v. Talley, 98 Wn. App. 521, 527, 991 P.2d 94 (1999) (trial court
erred when it denied party's request for deviation when it failed to consider
substantial assets listed in opposing party's financial declaration). These cases
demonstrate that Washington trial courts have frequently looked to the financial
declarations submitted by the parties during a dissolution proceeding.
Here, the trial court found that the parties' monthly expenses totaled
approximately $8,700 by adding up the expenses in their financial declarations and
subtracting Kassahun's housing and utilities. It used this value and the parties'
saving ability to reach a net monthly income, adjusted for taxes, and found that
Kassahun's gross monthly income was $12,750. The trial court did not abuse its
discretion when it used the financial declarations of the parties to calculate
Kassahun's income for purposes of determining its final order of child support.
Kassahun cites In re Marriage of Trichak to argue that this court has
rejected the use of financial declarations to verify income, and instead requires the
use of tax returns. 72 Wn. App. 21, 26-27, 863 P.2d 585 (1993). Kassahun
misconstrues the holding of Trichak. There, Mr. Trichak contended that the trial
court erred in using the $1,255 figure listed on Ms. Trichak's support schedule
worksheet as her gross monthly income instead of the $2,000 figure provided on
her financial affidavit. 72 Wn. App. at 23. The Court of Appeals disagreed,
because the value listed on the financial affidavit was marked as an estimate and
16 No. 75343-6-1/17
the support schedule figure was supported by Ms. Trichak's reliable tax returns.
Trichak, 72 Wn. App. at 26-27.
Kassahun next argues that the expenditures listed in the financial
declarations of the parties are inherently less reliable than the incomes listed in the
financial declarations. He does not cite to legal authority in support of this
argument. He has not otherwise shown that the use of the expenditures listed in
financial declarations is in and of itself an abuse of discretion by the trial court.
Kassahun argues that the only calculation of income that the record
supports is approximately $6,500, consisting of the $3,000 in W-2 wages from the
Market, $2,000 per month in income from the taxicab licenses, and $1,500 per
month of business expenses to cover personal expenses listed in his financial
declaration. He also relies on his testimony that he was compelled to borrow
$50,000 to meet his child support and maintenance obligations in 2012.
The figures Kassahun offered necessarily rely on the accuracy of his tax
returns and the credibility of his testimony at trial. But as discussed above, the trial
court's findings that Kassahun's documents and testimony were unreliable were
supported by substantial evidence. Further, Kassahun does not challenge the trial
court's finding that Kassahun's claims that he was destitute and was forced to
borrow money to meet his obligations were not credible because he used the funds
for personal expenses and attorney fees. Therefore, it was within the trial court's
discretion to look to the sworn financial declarations of the parties, rather than the
17 No. 75343-6-1/18
financial documents and testimony submitted by Kassahun, to calculate
Kassahun's gross monthly income.14
Use of Saving Ability to Calculate Kassahun's Gross Monthly Income
Kassahun argues that the trial court erred when it considered his ability to
save during the parties' marriage in its calculation of his gross monthly income.
Specifically, he argues that there was no evidence that he had any ability to save
money at the time the trial court entered its order of child support in November
2013. Because he has not offered persuasive legal authority or citations to the
record in support of this argument, we disagree.
Kassahun cites In re Marriage of Scanlon, 109 Wn. App. 167, 34 P.3d 877
(2001) and In re Marriage of Payne, 82 Wn. App. 147, 916 P.2d 968(1996). The
Scanlon court involved a former husband's request for downward modification of
his child support obligation, as well as reallocation of visitation-related travel
expenses and federal income tax credits. 109 Wn. App. at 171. The Payne court
held that past earnings were not a relevant measure of gross monthly income
where a party's income had changed. 82 Wn. App. at 152.
Neither case supports Kassahun's position. Scanlon involved a motion to
modify an existing child support obligation in light of an alleged reduction in
income. Similarly, Payne, involved a reduction in a party's income that rendered
past earnings irrelevant. Here, the record does not show that Kassahun's income
14 The trial court provided an alternate method of calculating Kassahun's gross monthly income based on Kassahun's monthly expenditures. Because the trial court did not abuse its discretion when it looked to the parties' financial declarations to calculate Kassahun's gross monthly income, we need not review its alternate calculation method. 18 No. 75343-6-1/19
or ability to save changed from the time the parties were married until the trial court
entered its order of child support.
Kassahun also argues that his being forced to take out a loan to meet his
support obligations demonstrates that he had no ability to save at the time the trial
court entered its order of child support. But the trial court found that Kassahun's
claim that he was forced to borrow money was not credible, a finding that
Kassahun does not challenge on appeal. Moreover, Kassahun leased a new
Mercedes in February 2013 despite his claims of poverty beginning in October
2012. Kassahun's citation to the purported loan does not support his claim that
his ability to save had changed.
In sum, Kassahun has not demonstrated that his income or ability to save
changed significantly in the time between the parties' filing of financial documents
and the trial court's final order.
Total Gross Monthly Income
Kassahun assigns error to the trial court's finding that his gross monthly
income was $12,750. Because the trial court did not abuse its discretion when it
looked to the parties' financial declarations to calculate Kassahun's gross monthly
income and its underlying findings of fact were supported by substantial evidence,
we find no error.15
15 Ashagari attached the trial court's "Final Order and Findings on Petition to Modify Child Support and Maintenance Order, Corrected to add debtor and creditor names to ¶1" to her appellate brief. She refers to the final order several times in support of her arguments regarding Kassahun's gross monthly income and the trial court's decision to not impute maintenance to her. The order and findings on remand at issue in the present appeal was entered March 17, 2016, while the final order was entered May 26, 2016. The final order is subject to a separate appeal. Court of Appeals No. 75496-3-1. Kassahun filed a motion to strike the final order and all references thereto on February 23, 2017. The final order 19 No. 75343-6-1/20
Verification of Expenditures by Other Sufficient Verification
Kassahun argues that the trial court's maintenance and child support orders
are erroneous because they relied on the expenditures alleged in the parties'
financial declarations, which were not sufficiently supported by "[o]ther sufficient
verification," as required by RCW 26.19.071(2). Because Ashagari submitted
substantial financial documentation in support of her claimed expenses and
testified to them at trial, we conclude that they were supported by other sufficient
verification.
"Tax returns for the preceding two years and current paystubs shall be
provided to verify income and deductions. Other sufficient verification shall be
required for income and deductions which do not appear on tax returns or
paystubs." RCW 26.19.071(2). This verification may be through adequate
independent records documenting actual income. In re Marriage of Bucklin, 70
Wn. App. 837, 841, 855 P.2d 1197 (1993).
Trial court decisions in dissolution proceedings are reviewed for manifest
abuse of discretion. Landry, 103 Wn.2d at 809.
Kassahun argues that Ashagari did not provide independent records
supporting her claimed expenses.16 But Ashagari submitted large numbers of
financial documents for the trial court's consideration. These included income tax
records, credit card statements, bank statements, checks, home mortgage
is not properly before this court and has been offered for an improper purpose. Thus, we grant Kassahun's motion to strike the final order. 16 In his reply brief, Kassahun argues for the first time that these documents are hearsay because they were not sufficiently authenticated or verified. ER 802. We need not address this argument. RAP 10.3(c). 20 No. 75343-6-1/21
records, business records, and records of household expenses. Ashagari also
testified at trial about her claimed. expenses. The trial court did not abuse its
discretion when it looked to these documents and Ashagari's testimony at trial as
"[o]ther sufficient verification" of her claimed expenses. RCW 26.19.071(2).
Among his general challenges to Ashagari's claimed expenses as lacking
verification, Kassahun argues that she erroneously claimed an expense for
installment payments for the home equity loan. Kassahun argues that the Market
itself made these payments, not Ashagari.
This court will not disturb a trial court's credibility determinations. Currier v.
Northland Servs., Inc., 182 Wn. App. 733, 741, 332 P.3d 1006 (2014), review
denied, 182 Wn.2d 1006 (2015).
Kassahun did not submit documentary evidence supporting his claim that
the Market paid for the home equity loan, rather than the family. The Chase home
equity statements submitted by Ashagari shows that the home equity loan listed
both her and Kassahun, and installment payments of $730.28 were made in
October 2011 and April 2012. The trial court's findings show that it did not find
Kassahun's self-serving and unsupported testimony credible, and we will not
disturb that determination on appeal.
Maintenance Award
Kassahun argues that the trial court abused its discretion because its
maintenance award did not show that it had fairly considered the relevant statutory
factors. Because the trial court referred to the statutory factors in its initial findings
21 No. 75343-6-1/22
and reiterated that it found that Kassahun could meet his obligations on remand,
we disagree.
In a dissolution proceeding, the court may grant a maintenance award for
either spouse or domestic partner. RCW 26.09.090(1). The court may enter a
maintenance order for an amount and length of time the court deems just, without
regard to misconduct. RCW 26.09.090(1). The statute includes a nonexclusive
list of factors a court may consider, including the financial resources of the party
seeking maintenance, the standard of living established during the marriage, and
the ability of the obligor spouse to pay maintenance while meeting his or her own
needs. RCW 26.09.090(1)(a)-(f).
An award of maintenance is within the trial court's discretion. In re Marriage
of Matthews, 70 Wn. App. 116, 123, 853 P.2d 462(1993). A trial court abuses its
discretion if its award of spousal maintenance does not evidence a fair
consideration of the statutory factors used in determining its award. Spreen v.
Spreen, 107 Wn. App. 341, 349, 28 P.3d 769(2001).
In its initial findings, the trial court explicitly referred to the factors listed in
RCW 26.09.090. It found that Kassahun had significant earning capacity and
financial resources, including those he did not disclose. It also considered that
Ashagari had few job skills, and found that maintenance was necessary to allow
her to attend school and obtain additional training. On remand, the trial court
stated that its previous maintenance award would remain unchanged. The trial
court properly considered the factors contained in RCW 26.09.090, and thus did
not abuse its discretion.
22 No. 75343-6-1/23
Kassahun argues that the trial court abused its discretion by finding that he
had an earning capacity and financial resources that exceeded what he claimed.
As discussed above, the trial court's findings that Kassahun did not report all of his
income on his tax returns, used business funds for personal expenses, and was
not credible when testifying to his financial status were supported by substantial
evidence. He does not offer new arguments for why the trial court's finding was
Kassahun also argues that the trial court abused its discretion when it found
that he could pay $5,000 per month in maintenance while still meeting his financial
obligations. He does not offer citation to the record or further argument
establishing that he is unable to pay. This is insufficient to show that the trial court
abused its discretion.
Trial Court Bias
Kassahun argues that the trial court's rulings were the result of bias against
him or based on a consideration of his fault or misconduct.17 Because Kassahun
has not offered any evidence or supporting authority for his arguments, we
conclude that Kassahun has not shown that the trial court was biased against him.
A court may not consider a party's misconduct when determining a
maintenance award. RCW 26.09.090(1); In re Marriage of Muhammad,153 Wn.2d
795, 803-04, 108 P.3d 779(2005).
17In his reply brief, Kassahun cites to the court's finding that he engaged in marital misconduct. In the trial court's original findings in support of its parenting plan, the court noted that Kassahun's history of domestic violence necessitated restrictions under RCW 26.09.191. The trial court's decision regarding the parenting plan is not at issue in this appeal, and there is nothing to indicate that this finding impacted its decisions regarding Kassahun's gross monthly income. 23 No. 75343-6-1/24
We presume that a trial judge properly discharged her official duties without
bias or prejudice. Jones v. Halvorson-Berg, 69 Wn. App. 117, 127, 847 P.2d 945
(1993)(citing Kay Corp. v. Anderson, 72 Wn.2d 879, 885, 436 P.2d 459 (1967)).
The party seeking to overcome that presumption must provide specific facts
establishing bias. State v. Post, 118 Wn.2d 596,619 n.9, 826 P.2d 172, 837 P.2d
599 (1992).
The only grounds Kassahun relies on to demonstrate bias are allegedly
erroneous legal decisions made by the trial court. He first argues that the trial
court's methods of calculating his income on remand were "patently flawed" and
constituted an abuse of discretion because the trial court decreased its calculation
of his gross monthly income but changed the way it calculated his taxes so that his
net monthly income increased by $1,000.18 Kassahun does not cite to legal
authority in support of this argument. He has also not demonstrated that the trial
court is restricted to its original method of calculating his gross monthly income on
remand. This is insufficient to overcome the presumption that the trial court did
not act with bias or prejudice towards Kassahun.
Kassahun next argues that the trial court abused its discretion when it used
the current ages of the children when it entered its order of child support on remand
in November 2013, rather than the ages of the children when the original order of
child support was entered.19 Again, he does not cite to legal authority in support
18 Br. of Appellant at 45-46. 18 In his reply brief, Kassahun argues for the first time that the trial court erroneously divided the parties' property in favor of Ashagari. RCW 26.09.080. We decline to reach this issue. RAP 10.3(c). 24 No. 75343-6-1/25
of his argument that this constituted an abuse of discretion. He has not shown that
the trial court had to use the children's ages when it entered its original order as
opposed to its new order created on remand. This is insufficient to overcome the
presumption that the trial court did not act with bias or prejudice towards Kassahun.
Kassahun's unsupported allegations of bias or improper consideration of
misconduct or fault are insufficient to show that the trial court abused its discretion
when it recalculated his gross monthly income or when it used the current ages of
the children when constructing its award of child support on remand.
Imputation of Income to Ashaqari
Kassahun argues for the first time on appeal that the trial court abused its
discretion by declining to impute income to Ashagari. "The appellate court may
refuse to review any claim of error which was not raised in the trial court." RAP
2.5(a). Kassahun did not challenge the trial court's refusal to impute income to
Ashagari in his first appeal, and the case was remanded for the specific purpose
of the trial court making specific findings to support its determination of Kassahun's
income. In re Ashagari, No. 71295-1-1, slip op. at 14. Because Kassahun raises
this argument for the first time in his second appeal in the case, we decline to reach
the merits of the issue.
Attorney Fees and Costs
Ashagari requests that this court order Kassahun to pay her reasonable
attorney fees and costs.
In a dissolution proceeding, the court may order a party to pay the
reasonable attorney fees and costs of the other party after considering the financial
25 No. 75343-6-1/26
resources of both parties. RCW 26.09.140. Upon an appeal, the appellate court
has the discretion to order a party to pay the other party's reasonable attorney fees
and appellate costs. RCW 26.09.140. In exercising its discretion, the reviewing
court "consider[s] the arguable merit of the issues on appeal and the parties'
financial resources." In re Marriage of C.M.C., 87 Wn. App. 84, 89, 940 P.2d 669
(1997), aff'd, 136 Wn.2d 800, 966 P.2d 1247 (1998).
Ashagari has no ability to pay because her income goes toward the
payment of household expenses. In contrast, on remand Kassahun was found to
have a monthly income of $12,750. In light of the relative financial resources of
the parties, we award Ashagari her reasonable attorney fees and costs under RCW
26.09.140.
Ashagari was represented on appeal free of charge by the Northwest
Justice Project, a publicly-funded organization that bears the costs of representing
its clients. Whether a litigant is represented by a nonprofit legal aid program or a
private practitioner is irrelevant to the issue of whether a successful litigant is
entitled to reasonable attorney fees. See Tofte v. Dep't of Social & Health Servs.,
85 Wn.2d 161, 165, 531 P.2d 808 (1975).
Affirmed.
ukt Cd6--‘ WE CONCUR: