IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of No. 69430-8-1 KELLY S. MORRIS, AKA KELLY KUNIYUKI-HIRAHARA REYES, DIVISION ONE
Respondent, PUBLISHED OPINION
GREGORY CHARLES MORRIS,
Appellant. FILED: September 23, 2013
Appelwick, J. — When postsecondary educational support has been reserved in
a child support order, it is properly requested in a petition for modification without the
necessity to show a substantial change in circumstances has occurred. The day before
child support was to terminate, Reyes filed a motion for adjustment to establish
previously reserved postsecondary support for the older of two daughters. However,
but for the choice of form, the proceeding below was the procedural and substantive
equivalent of a modification proceeding. Therefore, the superior court did not lack
authority to order postsecondary support and did not abuse its discretion in doing so.
Because the factual record is not in dispute, the lack of findings of fact does not require
remand. We affirm. No. 69430-8-1/2
FACTS
Kelly Reyes and Gregory Morris dissolved their marriage in December 1996.
Their two daughters, born December 4, 1993 and April 21, 1995, resided a majority of
the time with their mother. Morris was ordered to pay child support.
The child support order was modified in November 2001 and August 2008. The
original order and the 2001 modification are not in the record. Paragraph 3.13 of the
2008 order provides, "Support shall be paid . . . until the children reach the age of 18 or
as long as the children remain enrolled in high school, whichever occurs last, except as
otherwise provided below in Paragraph 3.14." Paragraph 3.14 expressly reserves the
right to petition for postsecondary educational support:
The right to petition for post secondary support is reserved, provided that the right is exercised before support terminates as set forth in Paragraph 3.13.
The oldest daughter turned 18 in December 2011, and graduated from high
school on June 9, 2012. The day before graduation, Reyes filed a motion for
adjustment of child support. In addition to requesting a periodic adjustment of support
for the younger daughter, she requested postsecondary educational support for both
children.
In a declaration filed in support of her motion, Reyes explained that the older
daughter was an "A" student and had been accepted to the University of Washington.
She included a copy of the daughter's transcript and admission letter. Reyes also
explained the necessary support. She detailed the cost of tuition, the possibility of a
tuition increase, and that the daughter applied for, but did not receive, several
scholarships. Reyes stated that the daughter had about $12,000 in her bank account No. 69430-8-1/3
that she received from her great grandfather, and that she worked part-time at Taco
Time earning minimum wage. Reyes further explained that Morris knew the daughter
had been accepted and was pleased, but had not offered financial support and did not
respond to a text message asking if he was going to help. Reyes proposed that they
evenly split the cost of education, including tuition and fees, room and board, books and
supplies, transportation, and any uncovered medical expenses. The girls would pay
their own personal expenses.
In a response declaration, Morris requested a deviation in support for the
younger daughter based on another child he had with his new wife. He argued that the
postsecondary educational support request was too large and that it was unreasonable
to expect him to pay more than his child support obligation would be if both children
were still minors. He stated that he would have owed only $550 per month for each
child under the standard calculation, and Kelly had requested over $1,300 a month for
each child once they were both in college. He claimed it was in the girls' best interest
for him and Reyes not to pay for all of the girls' college expenses:
I believe our daughters should have a personal investment in their college education by working, as well as seeking grants, scholarships, and loans, as other young adults would have to do. I believe they would derive far more benefit and satisfaction from their college education and appreciate its value if they have this type of investment in its cost.
Morris also filed a memorandum of points and authority, in which he argued that
the court did not have jurisdiction to set postsecondary support for the older daughter,
because Reyes erroneously filed a motion for adjustment instead of a petition for
modification. He claimed that it was too late to remedy the mistake, because the older
daughter had already turned 18 and graduated from high school. He asserted that he No. 69430-8-1/4
intended to support the older daughter, but did not believe the court had authority to
order him to do so:
[Morris] does want to affirmatively state that he intends to assist her. He values education and is proud of his daughter and her academic achievements thus far. [Morris] intends to continue supporting his daughter, but without the court's involvement, like the vast majority of parents who support their children in college.
He made no argument as to postsecondary support for the younger daughter.
In reply, Reyes argued that a petition establishing a substantial change in
circumstances would have been appropriate only if there was no previous request or a
previous request had been denied. She relied on the mandatory modification forms for
her argument. The mandatory form for a motion for adjustment contemplates that it can
be used when the right to request postsecondary educational support is reserved, while
the form for a petition for modification does not. Reyes also argued that when their
spouses' salaries were removed, their salaries were comparable and that it was
irrelevant what his obligations would have been if both children were still minors.
The commissioner granted the request for a periodic adjustment, and awarded
postsecondary educational support for the younger daughter. But, she determined that
the court did not have jurisdiction to order postsecondary educational support for the
older daughter because the request was made as a motion instead of a petition.
Reyes filed a motion for revision, asserting that the commissioner erred in finding
that the court lacked jurisdiction. The trial court held a hearing after reviewing the
parties' declarations and financial documents, and listening to the audio recording the
hearing before the commissioner. No. 69430-8-1/5
At the hearing, the trial court noted that the issue presented was whether the
commissioner erred in concluding that the court lacked jurisdiction. The parties argued
about whether there was any significant difference in procedure between a petition for
modification and a motion for adjustment. Morris argued that a petition is more like an
original action than a motion because there is a trial by affidavit, documents are
submitted, there is more argument, and discovery is allowed. He argued that, in
contrast, an adjustment merely conforms the existing provisions of a child support order
to the parents' current circumstances. Reyes argued that the pleadings are virtually
identical, the financial documents submitted are virtually identical, and the requirements
for service are the same. Thus, she claimed that denying her request would be
elevating form over substance.
The trial court ruled that the commissioner should have considered Reyes's
request:
I think that the fine distinction between a motion and a petition is over-thinking [the] problem. ...
. . . [T]he broad principles are that the court sits in family law matters as a court of equity and with broad statutory and constitutional powers. And I think this defense, while it's creative, is really in the nature of kind of [a] gotcha sort of a defense. ...
. . . [G]iven the broad grant of equitable powers in family law matters in the absence of any on point case law that affirms [Morris's] theory, I am going to grant the motion for revision. Postsecondary support for the older child should have been considered.
The court went on to grant the request for support:
I don't know whether - - since there's no dispute over the numbers, whether the parties need more time. Because part of the argument was, well, you know, it's a shorter time frame, or whatever. But it doesn't sound like there was really any argument over it. So, you know, I'm willing to entertain a motion to continue actually setting the thing if you want to do No. 69430-8-1/6
that. But otherwise, it strike[s] me that the tuition assistance should be set at - - well, not just the tuition, but general educational expense support from the father should be set at his proportionate share under the same schedule as for the younger child. Unless there's something else that the Court needs to consider in actually setting the postsecondary support as opposed to making a determination that it's appropriate.
And it clearly is appropriate. It's clear to me that [the] Commissioner . . . felt it was appropriate as well. And she's a great student and she's doing well and so on. She just -- she, the commissioner, just reached the conclusion that jurisdiction had gone away.
Morris appeals.
DISCUSSION
Morris claims that Reyes erred by filing a motion for adjustment instead of a
petition for modification, that her error deprived the superior court of authority to award
the support, and that reversal is the only appropriate remedy. He also argues that the
superior court erred by not entering findings of fact and that he does not have the ability
to pay.
I. Support for the Younger Daughter
Although Morris challenges the award as to both children, he did not ask the
commissioner to deny postsecondary support for the younger child. In fact, he made a
self-described "strategic decision" not to challenge the award as to the younger
daughter, because Reyes could have simply filed a timely petition for modification.
Consequently, the commissioner granted the requested postsecondary support for the
younger child. In response to Reyes's motion for revision, Morris requested that the
commissioner's ruling, which included postsecondary support for the younger daughter,
"be upheld and not revised in any way." The invited error doctrine prohibits a party from
setting up an error below and then complaining of it on appeal. Nania v. Pac. Nw. Bell No. 69430-8-1/7
Tel. Co., 60 Wn. App. 706, 709, 806 P.2d 787 (1991). Morris made a strategic decision
not to challenge the request as to the younger daughter, and he explicitly asked the
superior court to affirm the ruling. He has not offered any explanation of why he is
entitled to now challenge that award.
And, Reyes agreed to the deviation in the basic support for the younger
daughter. She does not cross appeal. Neither the downward deviation nor the award of
postsecondary support for the younger child is before us.
II. Proper Procedure is Petition to Modify
RCW 26.09.170 explains how and when a child support order can be modified. It
contemplates only two methods of altering an existing order: a petition for modification
or a motion for adjustment. ]d. A petition is "significant in nature and anticipates
making substantial changes and/or additions to the original order of support." In re
Marriage of Scanlon. 109 Wn. App. 167, 173, 34 P.3d 877 (2001). The action begins by
filing a petition, along with financial worksheets, and serving the other party. RCW
26.09.175(1), (2). Once the other party responds, any party may schedule the matter
for hearing. RCW 26.09.175(5). Unless otherwise requested, the petition is heard on
affidavits, the petition, the answer, and the financial worksheets only. RCW
26.09.175(6). In contrast, an adjustment under RCW 26.09.170(7) is a streamlined
process that is commenced by filing a motion for a hearing and is used to conform the
existing provisions of a child support order to the parties' current circumstances.
Scanlon. 109 Wn. App. at 173.
Generally, a child support order can be altered only following a petition for
modification and upon a showing of a substantial change of circumstances. RCW No. 69430-8-1/8
26.09.170(1). However, the statute also provides specifically enumerated exceptions.
For instance, a parent can request a modification without showing a substantial change
in circumstances when there are changes in income or when a child is no longer in an
age category on which the current support is based. RCW 26.09.170(6). Likewise,
either parent can file a motion for adjustment, without a showing of substantial change
of circumstances, when two years have passed since entry of the last adjustment or
modification and the parents' income has changed. RCW 26.09.170(7). A request for
postsecondary educational support is not among the enumerated exceptions which can
be accomplished by a motion for adjustment. A petition for modification is required.
The 2008 order itself recognizes this fact, by reserving "[t]he right to petition for post
secondary support." (Emphasis added.)
Reyes argues it was not necessary to establish a substantial change in
circumstances in this case. We agree. The decree did not order or deny
postsecondary support. It reserved the initial decision on that issue to a later date, if
and when a petition to address it was filed. Under these circumstances, when the
petition is filed, the superior court should consider the issue as it would have in the initial
proceeding. The substantial change in circumstances requirement limits modification of
an existing order only to issues that were not contemplated at the time the original order
was entered. Scanlon, 109 Wn. App. 173. If the substantial change in circumstances
requirement was applied, it would never be possible to say that postsecondary support
was not contemplated when the order expressly reserved "[t]he right to petition for post
secondary support." No. 69430-8-1/9
When postsecondary support has been reserved, the issue should be raised by a
petition for modification. The decision should be made as if it were being decided in an
initial dissolution proceeding. No substantial change of circumstances threshold
applies.
III. Use of the Motion Pleading was Harmless Error
The superior court commissioner determined that she did not have jurisdiction to
order postsecondary support, because Reyes failed to file a petition for modification
rather than a motion for adjustment. On revision, the trial court disagreed that the court
lacked jurisdiction. Morris argues on appeal that the superior court lacked authority
under the statute and that the only remedy for Reyes's mistake is reversal. Reyes
argues she relied on the mandatory forms and that Morris was not prejudiced by the
error.
Although Morris steadfastly asserts the general differences between petitions for
modification and motions for adjustment, he does not identify what specific procedures
he was deprived of or how he was harmed by any procedural deficiencies. It is
undisputed that he had actual notice of the motion. Though the motion procedure
generally requires less advance notice than the petition procedure, the superior court
offered to give Morris more time to respond. He declined to request more time. A
petition is heard on the petition itself, the answer, affidavits, and financial worksheets.
RCW 26.09.175(6). Morris submitted financial documents, a declaration, and a
memorandum of points and authority. Morris has not argued that he was denied a
necessary opportunity for discovery or that he would have submitted any evidence
concerning his ability to pay in a petition proceeding that he was unable to submit in this No. 69430-8-1/10
proceeding. A petition normally results in a trial by affidavit, while a motion generally
results in a hearing without live testimony. ]d.; CR 43(e)(1). Here, the trial court held a
hearing with oral argument on the motion for revision based on the parties' declarations,
financial documents, and legal arguments. Morris does not articulate any additional
substantive argument he would have made had he been afforded greater procedural
safeguards. In short, he has not established any specific procedural deficiencies nor
any prejudice.
Morris claims that the harmless error doctrine does not apply where a statute
provides that the court "shall" do something. However, he cites no authority supporting
that theory. Further, "[i]t is well established that errors in civil cases are rarely grounds
for relief without a showing of prejudice to the losing party." Saleemi v. Doctor's
Assocs., Inc., 176 Wn.2d 368, 380, 292 P.3d 108 (2013).
Moreover, the court has broad equitable powers in family law matters. See, e.g.,
Pippins v. Jankelson, 110 Wn.2d 475, 478, 754 P.2d 105 (1988). The practical
consequence of Morris's argument would be to foreclose Reyes from seeking
postsecondary educational support for their oldest daughter because she is older than
18, has graduated from high school, and support has terminated. The trial court
characterized Morris's argument as a "gotcha" defense. He did not dispute that his
daughter was an excellent student or that she should attend the University of
Washington. He disputed whether the court should be able to order him to pay for part
of her postsecondary education when Reyes filed the incorrect pleading. Morris did not
challenge the award of identical postsecondary support to the younger daughter.
Reversal would treat the daughters differently, which Morris indicated he did not intend
10 No. 69430-8-1/11
to do. Both parents earn over $100,000 a year. Morris has not identified any prejudice
that came as a result of the mistake in choice of forms. And, Reyes's failure to file a
petition for modification was based on legitimate confusion. A parent requesting an
alteration to an existing child support order must use mandatory forms approved by the
administrator for the courts. RCW 26.09.006. The mandatory form for a petition for
modification does not contemplate raising a reserved right to petition for postsecondary
support. The equities strongly favor affirming the trial court's disregard of the erroneous
choice of forms and its recognition and treatment of this case as a modification. The
filing of the motion for adjustment was harmless error.
IV. Abuse of Discretion: Whether to Order Postsecondary Support
When considering a request for postsecondary educational support, RCW
26.19.090(2) directs the superior court to determine whether child is in fact dependent
and relying upon the parents for the reasonable necessities of life. The superior court
may then exercise its discretion in determining whether and for how long to award
support. ]cL It is directed to consider factors including, but not limited to:
Age of the child; the child's needs; the expectations of the parties for their children when the parents were together; the child's prospects, desires, aptitudes, abilities or disabilities; the nature of the postsecondary education sought; and the parents' level of education, standard of living, and current and future resources. Also to be considered are the amount and type of support that the child would have been afforded if the parents had stayed together.
Id We review the decision for an abuse of discretion. In re Marriage of Shellenberger,
80 Wn. App. 71, 83, 906 P.2d 968 (1995).
The question on revision was whether the trial court had authority to order
postsecondary support. Once that issue was resolved, the parties were not disputing
11 No. 69430-8-1/12
whether RCW 26.09.090 considerations were satisfied for purposes of deciding if
support should be ordered. Morris told the superior court that he valued education and
intended to provide financial support to his daughter while she was in college. The
issue contested was the amount of support.
At the revision hearing, Morris made a general argument that the amount ordered
was too large, that he "doesn't have a way to make it work," and that it was
unreasonable to order him to pay more than he would have had to pay if both children
were still minors. He asked for a dollar limit on the parents' support and proposed
limiting his responsibility to $1,300 per month, the amount of basic support he would be
required to pay under the economic table for two children.1 When the trial court asked
whether the two girls should be treated differently, he responded, "I'm not suggesting it
should be different."2 Morris expressed concern that tuition and other costs would escalate over time and sought a dollar cap on the general obligation. The trial court
declined and said that tuition would be the cap and that future increases could be
addressed by motion or modification.
1 Postsecondary support may, but need not be, based on the economic table. RCW 26.19.090(1) states, "The child support schedule shall be advisory and not mandatory for postsecondary educational support." The term, "child support schedule" refers to the economic table in RCW 26.19.020. In re Marriage of Daubert, 124 Wn. App. 483, 505, 99 P.3d 401 (2004), abrogated on other grounds by In re Marriage of McCausland. 159 Wn.2d 607, 152 P.3d 1013 (2007). The specific exclusion of the economic table in RCW 26.19.020 suggests that the rest of chapter 26.19 RCW applies. Failure to base postsecondary support on this nonmandatory calculation is not an abuse of discretion. 2 The unchallenged provision for postsecondary support for the younger daughter provided for the costs of tuition, room and board, and books. It also made her responsible for her own personal expenses, from funds set aside from the children's great-grandfather and from part-time employment. The trial court applied the same language to postsecondary support for the older daughter.
12 No. 69430-8-1/13
Though the trial court discussed the factors to be considered, it made no express
findings under RCW 26.09.090. Morris argues this was error that requires reversal. His
argument relies on In re Marriage of McCausland, 159 Wn.2d 607, 620, 152 P.3d 1013
(2007). In that case the Supreme Court explained that even where cursory findings and
the record may justify the lower court's actions, "only the entry of written findings of fact
demonstrate that the trial court properly exercised its discretion in making the award."
Id. (emphasis omitted). But, that case addressed RCW 26.19.020, which expressly
states that the trial court "may exceed the [economic table] upon written findings of fact."
There is no such requirement for written findings in RCW 26.19.090. Rather, it requires
that the court "determine" whether the child is dependent upon the parents and exercise
its discretion "upon consideration" of relevant factors. ]d_. Generally, when specific
findings are not required by the statute we review the record to determine whether the
court engaged in the appropriate analysis. See, e.g.. In re Marriage of Kelly, 85 Wn.
App. 785, 793, 934 P.2d 1218 (1997). We "presume that the court considered all
evidence before it in" reaching its decision. Id. The record shows the only
consideration challenged was Morris's ability to pay the amount ordered. The other
factors were undisputed.
Morris maintains that specific findings are required concerning his ability to pay
under State ex rel. J.V.G. v. Van Guilder, 137 Wn. App. 417, 429-30, 154 P.3d 243
(2007). There we concluded:
Requiring the trial court to make findings about a parent's ability to pay for extraordinary expenses whenever the objecting parent raises the issue is consistent with the legislative intent of the child support statutes that support orders be "adequate to meet a child's basic needs" and that
13 No. 69430-8-1/14
additional support be ordered only when it is "commensurate with the parents' income, resources, and standard of living."
id (quoting RCW 26.19.001). But, that case addressed RCW 26.19.080(3) and
contemplated an award of private school tuition for a minor child, not an award of
postsecondary educational support for a child of majority pursuant to RCW 26.19.090.
jdL at 427-28.
Morris further relies on Shellenberger, which did concern RCW 26.19.090. 80
Wn. App. at 83-84. But, Shellenberger is distinguishable for a different reason. The
trial court there made findings of fact and conclusions of law. Jd. at 78-79. In doing so,
it ordered the father to make postsecondary educational support payments that, "when
combined with his debt service and living expenses, exceed his income, even the net
income amount imputed by the trial court." id, at 83. In that context, we noted that a
"postsecondary education support obligation that would force the obligor parent into
bankruptcy, or force that parent to liquidate the family home because he or she cannot
make both the support payment and the mortgage payment will, in most cases we can
presently envision, amount to a patent abuse of discretion." jd. at 84. We determined
that the trial court's conclusions of law were not supported by the findings of fact and
remanded for a new trial, id. at 74. We directed the trial court to make specific findings
of fact on remand as to a parent's ability to pay while still meeting his own reasonable
needs and obligations, id. at 84. Unlike the decision in this case, the order in
Shellenberger appeared on its face to be an abuse of discretion.
There is no need to remand for specific findings in this case. The record is clear
that Morris did not dispute the appropriateness of postsecondary support under the
statutory factors. Findings as to those factors are not required. The contested factual
14 No. 69430-8-1/15
issue was the amount of support. The factual record on that issue is not in dispute.
Morris filed financial declarations establishing his income and expenses. Reyes did not
challenge them. We treat them as verities on appeal. The amount of support ordered is
not disputed. Calculation of Morris's ability to pay is a matter of simple math.
Morris's gross income is $10,446 per month, and his net income is $7,668. He
claims $6,0683 in monthly household expenses and $509 in monthly debt service. Morris's argues that the award leaves him in a deficiency each month and places his
family in the position of going bankrupt or taking on further debt. He also argues that
his wife's income cannot be used in evaluating his ability to pay.4 Consideration of a
new spouse's income is expressly permitted when the parent who is married to the new
spouse asks for a deviation from the standard calculation based upon consideration of
other children from other relationships. RCW 26.19.075(2). Morris seeks a cap on his
postsecondary obligation here based on his need to support his child from his current
marriage. We see no reason the trial court should not consider the income of his
spouse when all of the expenses of the household are being considered. His wife's
monthly income is stated at $850 per month.
3 Morris's itemized expenses include all household expenses for him, his wife, and his child, and reflect a high standard of living. Those expenses include $161 for telephones, $144 for cable, $180 for cleaners, $200 for clothing, $180 for hair care and other personal care, $166 for gifts, and over $1,250 for transportation. 4 We note that these are not arguments he made below. Rather, he made general arguments that it is not "reasonable for my post secondary obligation to be almost double what the child support obligation would be," that the request is "unreasonable given my actual income," and that "[i]t would create a financial hardship." He did not attach any specific numbers, instead relying on a general assertion, without authority, that his postsecondary support should be commensurate with his child support obligation under the economic table.
15 No. 69430-8-1/16
Morris's net monthly cash flow, accounting for $7,668 in net income less $6,577
in expenses and debt service, is $1,091. Adding his wife's net income, the total
available is $1941 per month. The initial support for the two children was set at $1586,
leaving a net of $355. The postsecondary support for both daughters was initially
$1840,5 which would leave a net of $101 per month. They do not establish a monthly cash flow deficit, let alone that the order places his family in the position of going
bankrupt or taking on further debt.
Further, the statutory upper limit on child support is 45 percent of a parent's net
income, absent a showing of good cause. RCW 26.19.065. While the younger
daughter was still a minor and in high school, her support was set at $665 per month,
and he contends support for the older daughter was approximately $920 per month.
The combined support of $1586 is under 21 percent of his net income. When both
daughters are in college, based on the costs at the time of the order, the combined
support would be $1840 per month, which is under 24 percent of his net income. The
ordered support was well under the statutory cap.
Taking all of Morris's expenses as legitimate and reasonable, he still had the
ability to pay the support ordered. He has not established an abuse of discretion.
5 In his reply brief, Morris cites the University of Washington's current website and changes this number to $2,297 per month. Our inquiry concerns the validity of the superior court's order on the record before it. Any subsequent changes in costs or the parties' circumstances are an issue for a new proceeding. RCW 26.09.170(5)(a) permits modification at any time upon a showing of a substantial change of circumstances; RCW 26.09.170(6)(a) permits modification based on severe economic hardship without showing a substantial change in circumstances if the order has been in place for at least a year; and RCW 26.09.170(7)(a) permits a motion to adjust based upon the parents' income without a substantial change in circumstances if the order has been in place for two years.
16 No. 69430-8-1/17
V. Attorney Fees
Reyes requests attorney fees pursuant to RAP 18.1 and RCW 26.09.140.
Although we affirm the trial court's ruling, Reyes's mistake below was an impetus for
this appeal. We decline to award attorney fees on appeal.
We affirm.
WE CONCUR:
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