IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of No. 82894-1-I MONTEESHA REED, DIVISION ONE Respondent, UNPUBLISHED OPINION and
RICHARD REED, JR.,
Appellant.
BIRK, J. — Richard Reed challenges orders awarding maintenance to his
former spouse, Monteesha Howard.1 We hold the trial court had a tenable basis
to award maintenance for 24 months. However, its decision ordering Reed to pay
$1,860.20 per month does not evidence a fair consideration of the statutory
maintenance factors and, in particular, the parties’ respective financial resources
and abilities to meet their own needs. We affirm in part, reverse in part, and
remand to the trial court to reconsider the monthly maintenance amount and enter
findings with regard thereto. We also reverse the final maintenance order’s
provision allowing Howard to obtain a judgment for the entire amount remaining to
be paid if Reed fails to make a monthly payment in full. We do not reach Reed’s
1 The trial court’s final dissolution decree changed Monteesha Reed’s name
to Monteesha Howard. Accordingly, and for clarity, we refer to her hereinafter as Howard. No. 82894-1-I/2
challenges to the trial court’s temporary maintenance order or its decision not to
reconsider or vacate that order, as those challenges are moot.
I
Howard and Reed married in Maryland in 2015. At the time, Howard was
on active duty in the U.S. Army, working as a medic. She was honorably
discharged in August 2016, and the couple relocated to Washington in 2017.
On September 10, 2020, Reed received an offer of employment from
Shasta Beverages, Inc. (Shasta) for a position as “Production Manager” with an
annual salary of $90,000.00. Four days later, Howard petitioned to end the parties’
marriage.
In April 2021, Howard filed a motion for temporary maintenance. Howard
attested that after she and Reed moved to Washington, Reed was the family’s sole
provider while Howard was a full-time student, and her monthly net income was
zero. With regard to Reed’s income, Howard declared, “To my knowledge, [Reed]
most recently began working for Shasta . . . where I believe he made about
$90,000 per year.” Howard approximated Reed’s net monthly income as
$5,768.00, which she based on an annual salary of $90,000.00. Howard
requested maintenance, retroactive to the date of her petition, in the amount of
$3,567.00 per month. That amount was equivalent to the total of Howard’s monthly
expenses listed in her financial declaration, including housing, transportation,
utilities, personal, food, and household expenses.
The first commissioner who considered Howard’s motion, at a hearing
where Reed did not appear, indicated he was having “difficulty” in two respects.
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First, the commissioner “didn’t see any income information for [Reed] whatsoever.”
Second, “[t]here[ was] no explanation for why” Howard was unable to secure
employment. The commissioner continued the hearing and entered an order
directing Howard “to use best efforts to provide evidence of [Reed]’s
income/financial situation for [the] next hearing.”
Howard later filed a declaration “to provide the court with additional
information related to [her] request for a temporary order for maintenance.” She
attested that she had “struggled to obtain documentation of [Reed]’s current
income” and when she and Reed separated, she “had to leave the home suddenly”
and “was not able to bring [her] computer with [her] at that time, which contained
financial records documenting [Reed]’s income.” She also attested that Reed had
been unresponsive to her and her attorney’s efforts to reach him, and that he had
not responded to Howard’s discovery requests. Howard attested that she was
“working hard to obtain employment” but had “struggled due to an unpredictable
job market.” She stated, “I also need support as I pursue my degree, so that I can
finally get to a point where I can earn more stable income and support myself
independently.” Reed did not file a response to Howard’s motion for temporary
maintenance.
In June 2021, the continued hearing on Howard’s motion was held before a
different commissioner. Howard appeared through counsel; Reed again was not
present. The commissioner ruled, “So [Reed’s] failure to respond means he
agrees, so I’ll sign the proposed order.” The commissioner entered an order
(Temporary Order) granting Howard’s motion in full, i.e., directing Reed to pay
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maintenance of $3,567.00 per month, retroactive to September 14, 2020.
Accounting for a prorated amount for September 2020, the total back maintenance
due under the Temporary Order was $30,377.00.
On September 27, 2021, Reed, who had recently obtained counsel, filed a
motion for reconsideration of and to vacate the Temporary Order. Reed argued
that the Temporary Order was “factually unsupported about the couple’s finances.”
He also asserted that Howard’s motion for temporary maintenance and the
Temporary Order itself “were done without any actual notice to [Reed] and when
his new counsel found it[,] it was too late to do anything.”
Reed declared that the September 2020 offer he received from Shasta was
later rescinded, and he never worked there. He testified similarly at trial. Howard
testified in contrast she inquired of Shasta and was told Reed had worked there,
but no longer did. Reed declared that he had been a laborer “for it seems like
forever” and that “most of the time since the divorce was filed 9/14/20 [he] had
been completely unemployed in COVID.” He declared that he found a job at
Georgia Pacific in April 2021, but given his monthly expenses and debt payments,
“[t]here is no way on God’s green earth [he] could pay any maintenance and
certainly not $3567 per month and now face a new debt from it over $30,000.”
However, Reed testified at trial he did not have a recent pay stub to verify his
representations about his earnings. The trial court denied a posttrial effort by Reed
to introduce new documentary evidence concerning his earnings, a ruling Reed
does not challenge on appeal.
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In October 2021, the parties appeared for a bench trial. The sole disputed
issues for trial were (1) Reed’s pending motion to reconsider or vacate the
Temporary Order, (2) Howard’s request for ongoing maintenance, and (3) the
allocation of an approximately $4,000.00 debt associated with the parties’ tenancy
in their former rental home (move-out debt).
After trial, the court allocated the move-out debt to Reed and denied Reed’s
motion to reconsider or vacate the Temporary Order. With regard to maintenance,
the court observed that Howard “needs, based on the marriage and the time
needed for her to graduate . . . some resources to be able to complete her
education.” But it also observed that Reed then owed Howard $44,645.00 under
the Temporary Order, and taking that and the move-out debt into consideration, as
well as Reed’s “assets, his income, and all of those factors that sort of go towards
his income and cash flow” and “the ability of [Reed] to meet his needs,” “Reed is
going to have difficulty in paying . . . whatever maintenance the court would
order . . . for the next two years in addition to making payments on all [his] debt.”
Accordingly, the court treated the $44,645.00 owing under the Temporary Order
as “equivalent . . . to the amount of maintenance that is owing to [Howard] given
all the factors that are being considered,” and it ordered Reed to pay that amount
over the next two years, at $1,860.20 per month. The court also ordered that if
Reed missed a payment, Howard could at her option obtain a judgment for “the
total amount remaining to be paid” (acceleration clause). Reed appeals.2
2 It appears that Reed did not properly serve Howard with the notice of
appeal. According to the declaration of service filed with this court, Reed served only Howard’s former counsel, who had already withdrawn pursuant to CR 70.1(b).
5 No. 82894-1-I/6
II
Reed devotes his appellant’s brief almost entirely to challenging the
Temporary Order and the trial court’s refusal to reconsider or vacate that order.
Under RCW 26.09.060(10)(c), a temporary maintenance order generally
“[t]erminates when the final decree is entered.” Although “[d]elinquent support
payments accrued under an order for temporary support remain collectible and are
not extinguished when a final decree is entered,” that is not the case if “the decree
contains specific language to the contrary.” RCW 26.09.060(11).
Here, the trial court’s final maintenance order provided that “maintenance
[would] be satisfied” if Reed paid maintenance for 24 months. The court expressly
provided Reed’s obligation to pay maintenance on a prospective basis superseded
Reed’s delinquency under the Temporary Order.3 The Temporary Order was
superseded by the final order. Consequently, Reed’s challenges to the Temporary
Order, including the trial court’s refusal to reconsider or vacate it, are moot, and
we do not reach them. See In re Marriage of T, 68 Wn. App. 329, 336, 842 P.2d
1010 (1993) (“[a]n issue is moot if a court can no longer provide effective relief and
However, Howard has since filed a declaration in which she confirmed she is aware of this appeal and requested an extension of time to file a brief of respondent. Despite having been granted an extension, Howard did not file a respondent’s brief. “A respondent who elects not to file a brief allows his or her opponent to put unanswered arguments before the court, and the court is entitled to make its decision based on the argument and record before it.” Adams v. Dep’t of Lab. & Indus., 128 Wn.2d 224, 229, 905 P.2d 1220 (1995). 3 We disagree with Reed’s assertion that the trial court’s final order “denied
future maintenance to [Howard].” Cf. In re Marriage of Thompson, 97 Wn. App. 873, 877, 988 P.2d 499 (1999) (interpretation of a dissolution decree is a question of law).
6 No. 82894-1-I/7
if the issue presented is purely academic” and “appellate courts normally will not
decide a moot issue”).
III
Notwithstanding Reed’s focus on the temporary order, the thrust of Reed’s
argument on appeal is that “maintenance should never [have] be[en] ordered here
given the parties’ financial situations,” whether on a temporary or final basis. We
interpret Reed’s argument as further challenging the trial court’s final order.
A
“Maintenance is ‘a flexible tool’ for equalizing the parties’ standard of living
for an ‘appropriate period of time.’ ” In re Marriage of Wright, 179 Wn. App. 257,
269, 319 P.3d 45 (2013) (quoting In re Marriage of Washburn, 101 Wn.2d 168,
179, 677 P.2d 152 (1984)). RCW 26.09.090(1) governs maintenance and directs
the court to consider the following, nonexclusive factors in determining the amount
and duration of maintenance:
(a) The financial resources of the party seeking maintenance . . . and his or her ability to meet his or her needs independently . . . ; (b) The time necessary to acquire sufficient education or training to enable the party seeking maintenance to find employment appropriate to his or her skill, interests, style of life, and other attendant circumstances; (c) The standard of living established during the marriage . . . ; (d) The duration of the marriage . . . ; (e) The age, physical and emotional condition, and financial obligations of the spouse . . . seeking maintenance; and (f) The ability of the spouse . . . from whom maintenance is sought to meet his or her needs and financial obligations while meeting those of the spouse . . . seeking maintenance.
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“ ‘The only limitation on amount and duration of maintenance under RCW
26.09.090 is that, in light of the relevant factors, the award must be just.’ ” In re
Marriage of Valente, 179 Wn. App. 817, 821, 320 P.3d 115 (2014) (quoting In re
Marriage of Bulicek, 59 Wn. App. 630, 633, 800 P.2d 394 (1990)).
We review a spousal maintenance award for an abuse of discretion.
Valente, 179 Wn. App. at 822. In exercising its discretion, “the trial court must
consider the factors listed in RCW 26.09.090(1).” In re Marriage of Anthony, 9 Wn.
App. 2d 555, 564, 446 P.3d 635 (2019). “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, 46-47, 940 P.2d 1362 (1997).
“An award of maintenance that is not based upon a fair consideration of the
statutory factors constitutes an abuse of discretion.” In re Marriage of Crosetto, 82
Wn. App. 545, 558, 918 P.2d 954 (1996).
B
Reed contends the trial court erred inasmuch as it determined that
consideration of the statutory maintenance factors supported an award of
maintenance. We disagree.
At trial, Howard testified she was a full-time student with two years left in
school. According to her financial declaration admitted at trial, her sole income
was $2,607.00 per month in G.I. Bill benefits for the months she was in school.
Howard also attested that she had monthly expenses of $3,380.00, including
housing, transportation, utilities, personal, food, household, and children’s
expenses. In other words, there was evidence introduced at trial that Howard had
8 No. 82894-1-I/9
a monthly deficit of approximately $770.00. Additionally, Howard testified that she
had to pay for her text books out of pocket, and that in her most recent quarter of
school, her books cost about $700.00. She testified further that she was behind
on her electric bill by about $600.00 and her Xfinity bill by about $489.00; and that
she had an outstanding credit card balance of $581.00. Howard testified that
before she and Reed separated, she was a full-time student while Reed worked
full time. She also testified that Reed supported the couple for “basically the whole
marriage,” and that since their separation, she had been relying on public
assistance and charity to pay her rent and other bills.
Meanwhile, according to Reed’s available Georgia Pacific pay stub, his net
pay for the two-week period from August 30, 2021 through September 12, 2021
was $2,150.81.4 A reasonable inference from this pay stub was that Reed had
actual net income of twice that, or approximately $4,300.00 per month. With
regard to his expenses, Reed relied on his financial declaration,5 which listed
$1,370.00 for rent and certain utilities, $15.00 for rental insurance, $585.00 for
transportation expenses, $440.00 for utilities not already factored into his housing
expenses, and $380.00 for groceries—for a total of $2,790.00,6 exclusive of debt
payments.
4 Although the exhibit itself is not in the record, it is apparent from the record
that this pay stub, which is a part of the clerk’s papers, was admitted as an exhibit at trial. 5 Although the exhibit itself is not in the record, it is apparent from the record
that Reed’s financial declaration, which is a part of the clerk’s papers, was admitted as an exhibit at trial. 6 Reed’s financial declaration also includes a $410.00 expense for
“[i]nsurance premium,” but Reed testified that this was an error.
9 No. 82894-1-I/10
The evidence at trial supported a determination that Reed’s monthly income
exceeded his monthly expenses by as much as $1,510.00, depending on how
much he put toward certain outstanding debts. The evidence supported a
determination that Reed had the ability to pay some amount of maintenance while
meeting his own needs and financial obligations. It also supported a determination
that Howard did not have the financial resources to meet all of her needs
independently, would need two years to complete her education, and had relied
on Reed for financial support during the marriage. Under these circumstances,
Reed does not establish that the trial court abused its discretion by concluding that
maintenance was warranted for the two years Howard had left in school. Cf. In re
Marriage of Luckey, 73 Wn. App. 201, 209, 868 P.2d 189 (1994) (purpose of
maintenance is to support a spouse until she is able to earn her own living or
otherwise becomes self-supporting).
Reed asserts that Howard’s income was $4,902.00 (not $2,607.00) per
month. He counts, as income to Howard, benefits from Temporary Assistance for
Needy Families, assistance from King County Veterans, and assistance from
Catholic Community Services. In re Marriage of Zahm held that “social security
benefits were an appropriate element for the court to factor into its consideration
of [a] maintenance award.” 138 Wn.2d 213, 227, 978 P.2d 498 (1999). But Reed
points to no authority holding that the availability of charitable benefits bears on
the court’s assessment of the maintenance recipient’s ability to meet their needs
“independently.” RCW 26.09.090(1)(a); cf. Hammond v. Hammond, 26 Wn. App.
10 No. 82894-1-I/11
129, 132, 611 P.2d 1352 (1980) (distinguishing social security benefits from public
assistance).
Reed also asserts that Georgia Pacific “reduced his hours from 40/wk down
to only 29/wk netting only about $2,000 per month going into the trial.” Reed
testified his hours had been reduced, but he did not submit a pay stub to
corroborate that testimony, and we do review the weight the trial court assigned to
the evidence. In re Marriage of Bundy, 12 Wn. App. 2d 933, 938, 460 P.3d 1111
(2020) (appellate court does not reweigh evidence). The trial court did not abuse
its discretion by ordering Reed to pay maintenance and to do so for two years.
C
We reach a different conclusion, however, concerning the amount of
maintenance the court ordered. In Anthony, the court similarly held that an award
of maintenance was appropriate. 9 Wn. App. 2d at 568. But because the trial
court “did not make a finding on the actual income of the parties,” this court
remanded with instructions to the trial court to “determine the income of each party
and enter a specific finding on income before considering the statutory factors for
maintenance.” Id. at 563. With regard to the statutory factors, the court said,
“Maintenance not based on a fair consideration of the statutory factors constitutes
an abuse of discretion.” Id. at 564. Even though the trial court had indicated it had
considered the factors, including RCW 26.09.090(1)(f), in the absence of a clear
finding of the income of the spouse ordered to pay maintenance, this court said
the record did not adequately “address [the paying spouse’s] ability to pay
maintenance or [meet] his needs and financial obligations.” Id. at 567.
11 No. 82894-1-I/12
The record does not show that the trial court specifically addressed the
amount of Howard’s need or whether Reed could both pay $1,860.20 per month
in maintenance and meet his own needs and financial obligations. See RCW
26.09.090(1)(a), (f). The trial court orally ruled that Howard “need[ed] some
resources to be able to complete her education.” But nothing in its oral or written
findings reveals what amount of resources it found Howard needed, or how the
$1,860.20 figure was tethered to that need. Howard’s financial declaration
indicated a shortfall of approximately $770.00. Meanwhile, the trial court found
that Reed “is employed and has the ability to remain employed, and therefore has
the ability to pay maintenance.” Although the trial court stated it considered the
“resources available to [Reed] to meet his needs,” it did not make findings as to
the amount of those resources or whether they were sufficient to cover Reed’s
expenses while paying maintenance. The evidence was uncontroverted at least
that Reed was not working at Shasta. No evidence admitted at trial showed that
Reed’s actual, monthly net income was more than $4,300.00. Nor did the trial
court make a finding that Reed was voluntarily underemployed or impute income
to him for that reason. Cf. RCW 26.19.071(6) (imputing income due to voluntary
underemployment for purposes of child support). While the trial court stated it
relied on “loans [Reed] received,” the only loan described at trial was a $6,300.00
loan Reed received from his mother. It is undisputed that Reed used that loan to
buy a car and pay his first and last month’s rent and security for his apartment.
The record does not support a determination that the loan enabled Reed to pay
12 No. 82894-1-I/13
RCW 26.09.090(1)(f) required the trial court to consider Reed’s ability to
pay while meeting his own needs and financial obligations. The court was not
required to make specific factual findings on this factor. Anthony, 9 Wn. App. 2d
at 564. Nevertheless, a trial court’s findings should, as a general matter, “be
sufficient to suggest the factual basis for the ultimate conclusions.” In re Marriage
of Monaghan, 78 Wn. App. 918, 925, 899 P.2d 841 (1995). Assuming monthly net
income of $4,300.00 and deducting the expenses listed in Reed’s financial
declaration—which were not contradicted—it appears Reed had a monthly surplus
of at most $1,510.00. This is substantially less than $1,860.20 even before taking
into consideration Reed’s debts. Considering the parties’ respective financial
resources and abilities to meet their needs, the record does not show the basis for
maintenance in this amount. Cf. In re Marriage of Spreen, 107 Wn. App. 341, 348,
28 P.3d 769 (2001) (“Of primary importance in the maintenance award are the
parties’ economic positions following the dissolution.”).
It appears from the record that the trial court arrived at the maintenance
amount by taking the principal amount then owing under the Temporary Order and
dividing it by the two years—or 24 months—that Howard needed to complete her
education. The trial court’s reliance on the Temporary Order reflects the fact Reed
had not paid ordered maintenance at the time of trial. The trial court did not say
explicitly it intended the award of future maintenance to make up for Reed’s not
having paid maintenance in violation of the Temporary Order. But if this was the
court’s intent, the final order still needed to account for the statutory factor of
Reed’s ability to pay maintenance and meet his own needs. Yet here, the court
13 No. 82894-1-I/14
based its final order on a temporary order that was entered as a matter of default:
The commissioner who entered it did not consider any of the statutory
maintenance factors and instead granted Howard’s maintenance request in full
based solely on Reed’s failure to respond. The amount of maintenance ordered
in the Temporary Order therefore does not serve to ground the final order in the
statutory factors in the manner required by Anthony.
For the foregoing reasons, we reverse as to the monthly amount of
maintenance, and we remand to the trial court to reconsider that amount and enter
appropriate findings. We necessarily also reverse the acceleration clause
authorizing Howard to obtain a judgment for the “entire amount remaining to be
paid” if Reed fails to make a monthly payment in full.
IV
As a final matter, Reed requests attorney fees on appeal pursuant to RCW
26.09.140, which gives the court discretion to order a party to pay the other party’s
reasonable attorney fees “after considering the financial resources of both parties.”
In making an award of attorney fees under the statute, “ ‘the court must balance
the needs of the one party against the other party’s ability to pay.’ ” In re Marriage
of Nelson, 62 Wn. App. 515, 521, 814 P.2d 1208 (1991) (quoting In re Marriage of
Coons, 53 Wn. App. 721, 722, 770 P.2d 653 (1989)). Where, as here, applicable
law requires this court to consider the financial resources of the parties regarding
a request for attorney fees, “each party must . . . file [and serve] a financial affidavit
no later than 10 days prior to the date the case is set for . . . consideration on the
14 No. 82894-1-I/15
merits.” RAP 18.1(c). Reed did not timely file a financial affidavit. Accordingly,
we deny his request for fees on appeal.
We affirm in part, reverse in part, and remand to the trial court to reconsider
the monthly maintenance amount and enter findings with regard thereto.
WE CONCUR: