IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ) " 2, 1 0 1 rrl In the Matter of the Marriage of ) c--) ro— ) No. 77900-1-1 -I MELINDA RICHARDSON, ) — ti .:.— ) DIVISION ONE Respondent, ) : — ) and ) ) MARK RICHARDSON, ) UNPUBLISHED OPINION ) Appellant. ) FILED. December 24, 2018 )
SMITH, J. — Mark Richardson appeals the trial court's November 2017
order vacating its June 2017 child support order. Because the court abused its
discretion by vacating its June 2017 order, we reverse and remand to the trial
court to reinstate that order. We also hold that because Mark's entitlement to a
downward deviation is derived from the 50/50 residential schedule set forth in the
parenting plan, a modification of the parenting plan is required before that
deviation can be eliminated if a change in the residential schedule is the basis
stated for eliminating the deviation.
FACTS
Ongmal Child Support Order
The marriage of Mark and Melinda Richardson was dissolved in March
2012, following a trial before Judge Richard Eadie. At the time of dissolution, the No. 77900-1-1/2
Richardsons had five children, four of whom were then minors, aged 8, 10, 12,
and 17. In conjunction with the dissolution, the court entered a parenting plan
and ordered that the three youngest children reside equally with each parent on a
week-on, week-off basis beginning June 25, 2012. The court also ordered Mark
to pay maintenance to Melinda in a monthly amount that would decrease
incrementally each year, from $3,300 in the first year to $500 in the sixth
For purposes of child support, the trial court found that Mark's actual
monthly net income was $8,657. The court found that Melinda's monthly net
income was $8,340, including $3,500 per month of imputed income based on
Melinda's history of employment and $3,300 based on Mark's first-year
maintenance obligation. The court calculated Mark's presumptive amount of
child support owed (the standard calculation) to be $1,440 per month. But the
court granted a downward deviation to Mark that resulted in a zero-dollar transfer
payment, finding "[t]he children spend a significant amount of time with the
father" and "[t]he deviation does not result in insufficient funds in [Melinda's]
household to meet the basic needs of the children." The court also stated in its
written findings and conclusions entered in connection with the dissolution
decree:
Husband should be given a residential credit on child support once the 50/50 residential schedule is put in place and child support and the percentage allocation of direct costs deviated downwards so that there is no transfer payment and each parent pays 50% of direct expenses of children as listed in the Child Support Order.
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Additionally, the trial court's order of child support dated March 28, 2012
(Original Child Support Order) orders each parent to contribute equally to the
following expenses not included in the transfer payment (collectively Direct
Expenses), with agreement not to be unreasonably withheld:
1) Prescription costs, and co pays not covered by insurance; 2) Agreed counseling and agreed therapy costs, and co pays not covered by insurance; 3) Agreed medical cost and agreed dental costs, and co pays not covered by insurance; 4) Agreed orthodontic cost; 5) Agreed educational expenses including agreed tutoring, agreed college counseling, agreed SAT Prep etc. 6) Agreed organized sports and agreed extracurricular activities, including agreed gear and agreed materials 7) Agreed cell phone and agreed cell phone plan.
The Original Child Support Order contemplates periodic adjustment as follows:
Per RCW 26.09.100, EXCEPT that the first adjustment may be initiated by either party as early as April 1, 2013 based on a full review of the wife's actual and/or imputed income. Parties shall exchange all information required by LFLR 10 by May 1 of each review year
Any adjustment shall include adjusting the ratios ... for payment of [D]irect [E]xpenses.
Melinda's 2014 Request To Adjust Child Support
On April 22, 2014, Melinda moved for an adjustment of child support
based on a change of income. She argued that due in part to the planned
incremental decrease in Mark's maintenance obligation, Mark's income had
increased and her income had decreased. Melinda's adjustment motion was
heard before a commissioner, who found that Mark's actual monthly net income
was then $8,903.39, that Melinda's actual monthly net income was $7,982.40,
and that the standard calculation for child support owed by Mark was $1,623.60.
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The commissioner adjusted the ratio for each parent's share of Direct Expenses
so that Melinda would pay 47.3 percent and Mark would pay 52.7 percent.
However, the commissioner declined to adjust the zero-dollar transfer payment,
concluding that this "issue would be more appropriate for a Petition for
Modification."
Melinda filed a motion for revision of the commissioner's ruling. This
motion was heard before Judge Eadie on August 1,2014. At the close of the
hearing, Judge Eadie orally granted the revision by vacating the commissioner's
ruling without prejudice to Melinda to bring a modification action. He invited the
parties to submit a proposed order to that effect but also suggested to the
parties: "You might even discuss—maybe you've got some way of resolving this."
The parties ultimately did resolve the issue via an agreed order, which the
court entered in August 2014 (Agreed Order). The Agreed Order provided for a
$500 transfer payment from Mark to Melinda and an allocation of Direct
Expenses such that Melinda would pay 47 percent and Mark would pay 53
percent.
Melinda's 2016 Request To Adjust Child Support
In August 2016, Melinda again moved to adjust child support on the basis
of changed income. She again argued that due in part to the planned
incremental reduction in Mark's maintenance obligation, Mark's income had
increased and hers had decreased. Melinda also claimed that the parties' then
15-year-old daughter had been living with her full time since August 2015.
Mark opposed the motion. He also requested that the 53/47 allocation of
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Direct Expenses under the Agreed Order be revised to an equal allocation and
that the $500 transfer payment under the Agreed Order be reduced to zero.
On September 22, 2016, a commissioner pro tern entered a new child
support order (September 2016 Order) that eliminated the downward deviation
and ordered Mark to make a transfer payment equal to the standard calculation
of $2,270. In the September 2016 Order, the commissioner pro tem indicated
that she had denied Mark's request for a downward deviation because Mark had
a new spouse or domestic partner with an "unknown" income, the parties' 15-
year-old daughter was living with Melinda 100 percent of the time, and the "father
has a high income and does not have a need for a support reduction and a
reduction of support would leave insufficient income in the mother's household."
The commissioner pro tern also ordered that Mark pay a 67-percent share of
Direct Expenses and that Melinda pay a 33-percent share.1 The September
2016 Order was based on child support worksheets reflecting that Melinda's
monthly net income was $6,105, and that Mark's monthly net income was
$12,290(September 2016 Worksheets).
Mark moved for revision of the September 2016 Order, arguing, among
other things, that "Mlle Commissioner erred in failing to grant a residential credit
to Respondent Father for a 50/50 schedule when the downward deviation is the
law of the case." On November 2, 2016, the trial court granted Mark's revision
motion, vacated the September 2016 Order, and reinstated the Agreed Order
1 Another part of the same order provides that the allocation is 34/66, rather than 33/67. 5 No. 77900-1-1/6
"without prejudice for either party to file a modification of support."
Melinda's Petition To Modify
On November 28, 2016, Melinda filed a petition to modify the Agreed
Order that had been reinstated by the trial court on November 2 She argued
that the monthly child support amount should be changed because the Agreed
Order "causes severe financial hardship" for her and because two or more years
had passed since the Agreed Order was signed and the parents' income had
changed. Melinda's petition also included a request that the court revise the
Agreed Order's allocation for postsecondary support, authorize the liquidation of
bonds held for use in paying postsecondary costs, and provide an arbitration
requirement for resolution of disputes related to postsecondary costs
A hearing on Melinda's petition was held before Judge Elizabeth Berns on
March 17, 2017. At the hearing, Judge Berns found that with respect to the
parties' income, there had not been a substantial change in circumstances that
was not known or contemplated at the time of dissolution. Judge Berns
acknowledged that she could adjust child support without finding that there had
been a substantial change in circumstances but found that Melinda had not
satisfied the burden for an adjustment. Judge Berns also indicated that there
was no basis for any change to the transfer payment based on where the
children were actually spending their time because there had been no change to
the parenting plan and the Original Child Support Order contemplated that Mark
would receive a downward deviation based on the 50/50 residential schedule.
On June 9, 2017, Judge Berns entered a final order and findings on
6 No. 77900-1-1/7
petition to modify child support order (Order on Petition) incorporating her oral
findings from the March hearing. Judge Berns also entered a modified order of
child support (June 2017 Order). The June 2017 Order modified the Agreed
Order's provisions related to postsecondary support and reinstated a zero-dollar
transfer payment by granting a downward deviation from the standard calculation
of $1,658.62. Judge Berns' reasons for granting the downward deviation were
stated as follows:
1) The final parenting plan entered in this case provides for 50/50 residential time. Father receives a residential credit based on the parenting plan The mother has costs she has had to cover because she's had some children more than 50% of the time for other reasons, but not because of the parenting plan 2) Father makes payments on other expenses for the children separate and apart from what's set forth in this child support order, and the mother has as well. 3) The monthly child support amount should not be changed from the court's order at trial as there has not been a substantial change in circumstances in the parties' incomes that was not known or contemplated at the time of trial. The worksheets from 2014 are being used for this order. 4) The deviation does not result in insufficient funds in [Melinda's] household to meet the basic needs of the children. The children do not receive public assistance.
Melinda's Appeal and CR 60(b) Motion for Relief
On July 7, 2017, Melinda filed a notice of appeal of the June 2017 Order
and the Order on Petition. That appeal was later dismissed after Melinda failed
to timely perfect the record. In the meantime, Melinda moved the trial court
under CR 60(b) for relief from the June 2017 Order. She argued that there had
been an "irregularity" within the meaning of CR 60(b)(1) because the court's
order was inconsistent with Judge Eadie's intent when he entered the Original
Child Support Order. Melinda also argued that there was "newly discovered
7 No. 77900-1-1/8
evidence" within the meaning of CR 60(b)(3) related to drug and alcohol abuse
by the parties' then 18-year-old son, W.R.
The trial court granted Melinda's CR 60(b) motion, reasoning, among
other things, that "[t]here has been irregularity in the Court proceedings because
the Court has not followed Judge Eadie's intent regarding adjustment of a zero
transfer payment, 50-50 parenting plan." On November 8, 2017, the court
entered a final order and findings on petitioner's CR 60(b) motion and a modified
order of child support (Final Child Support Order). These orders adopted the
September 2016 Worksheets, allocated 33 percent of Direct Expenses to
Melinda and 67 percent of Direct Expenses to Mark, ordered Mark to pay a
transfer payment equal to the standard calculation of $2,270, and made the
transfer payment effective as of January 1, 2017 The court also ordered Mark to
pay back support calculated from January 1, 2017. The court later amended and
clarified the Final Child Support Order on Mark's subsequent motions, but the
substance of that order remained unchanged
Mark appeals
DISCUSSION
Melinda's CR 60(b) Motion
Mark argues that the trial court erred by granting relief to Melinda under
CR 60(b). We agree.
CR 60(b) provides in relevant part.
On motion and upon such terms as are just, the court may relieve a ... from a final ... order.... for the following reasons' party.
(1) Mistakes, inadvertence, surprise, excusable neglect or
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irregularity in obtaining a judgment or order;
(3) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b)
The standard of review for a decision granting a motion to vacate under CR 60(b)
is abuse of discretion. Luckett v. Boeing Co 98 Wn. App. 307, 309, 989 P.2d
1144 (1999). The trial court abuses its discretion when its decision is based on
untenable grounds or reasoning. Luckett 98 Wn. App. at 309-10 An abuse of
discretion also occurs when the trial court applies the wrong legal standard or
bases its ruling on an erroneous view of the law. State v. Cawyer, 182 Wn. App.
610, 616, 330 P.3d 219 (2014); see also In re Marriage of Shortwav 4 Wn. App.
2d 409, 418, 423 P.3d 270 (2018).
a CR 60(b)(1) Analysis
Mark first argues that the trial court erred by vacating its June 2017 Order
under CR 60(b)(1) because the court's purported misunderstanding of Judge
Eadie's intent in 2012 did not constitute a mistake, inadvertence, surprise,
excusable neglect, or irregularity. We agree.
It is a "long recognized" principle that an error of law will not support
vacating a judgment under CR 60(b). Port of Port Angeles v. CMC Real Estate
Corp 114 Wn.2d 670, 673, 790 P.2d 145 (1990). Errors of law must, instead,
be corrected by appeal. In re Marriage of Tang 57 Wn. App. 648, 654, 789 P 2d
118 (1990).
The interpretation of a child support order (here, the Original Child Support
Order) is a question of law. In re Marriage of Sagner 159 Wn. App. 741, 749,
9 No. 77900-1-1/10
247 P.3d 444 (2011) Moreover, whether the parties may adjust child support,
and under what circumstances, is also a question of law—and, specifically, a
question of application and interpretation of the statutory scheme for child
support adjustments and modifications. See Sagner 159 Wn. App. at 749
(language used in child support order, the interpretation of which is a question of
law, is presumed to incorporate existing relevant statutory provisions); cf.
RCW 26.09.100 (limiting the extent to which child support orders may vary from
the statutory provisions governing periodic adjustments and modifications).
Indeed, even Judge Eadie recognized this issue as a question of law during the
hearings that took place in March 2012 and August 2014, acknowledging on both
occasions that whether the parties may adjust child support without a
modification is an issue of statutory interpretation
Here, following a hearing in March 2017, the trial court initially concluded
that a zero-dollar transfer payment was warranted because Judge Eadie's intent
in 2012 was that Mark would be entitled to a residential credit under the
parenting plan, which had not been modified. The court also concluded that
there had not been a substantial change in circumstances in the parties' income
that was not contemplated at the time of trial. Then, on Melinda's CR 60(b)
motion, the court changed course, concluding instead that even though the
parenting plan had not been modified, the court could take into consideration the
fact that two of the three youngest children were living exclusively with Melinda.
The court also revised its conclusion regarding the parties' income, ultimately
stating that the "father's income from all sources significantly exceeds the
10 No. 77900-1-1/11
mother's." The court concluded that relief was warranted under CR 60(b)
because it had originally misconstrued Judge Eadie's intent, and that his intent in
2012(when he entered the Original Child Support Order) was that the parties
"could adjust child support, based on income, of an initial zero payment, 50-50
parenting plan."
In short, the trial court used CR 60(b) to reconsider its interpretation of the
Original Child Support Order and to review and revise its order with respect to
issues that had already been briefed, argued, and decided This was an abuse
of discretion because as discussed above, a perceived misinterpretation of the
Original Child Support Order was an error of law to be corrected on appeal and
not under CR 60(b), the purpose of which is not for the court to reverse itself on
issues that the parties have previously briefed and argued State v. Keller 32
Wn. App. 135, 141, 647 P.2d 35 (1982).
b. CR 60(b)(3) Analysis
Mark argues next that the trial court erred by vacating the June 2017
Order under CR 60(b)(3) because evolving circumstances related to the parties'
son, W.R., were not "newly discovered evidence." Again, we agree.
"Newly discovered evidence" within the meaning of CR 60(b)(3) must be
evidence that could not have been discovered by due diligence in time to move
for a new trial under CR 59(b). CR 60(b)(3). Here, the last day to move for a
new trial was June 19, 2017.2 Nonetheless, it is apparent that in vacating the
2 CR 59(b) provides: "A motion for a new trial or for reconsideration shall be filed not later than 10 days after the entry of the judgment, order, or other decision." The June 2017 Order was entered on June 9,2017. 11 No. 77900-1-1/12
June 2017 Order, the trial court relied on evidence that was known or could have
been discovered by due diligence before June 19, 2017.
Specifically, the trial court wrote that a "significant factor" in its decision to
vacate the June 2017 order was newly discovered evidence provided in
Melinda's CR 60(b) motion. In that motion, Melinda alleged that W.R. began
living with her full time in December 2016, that W.R turned 18 in May 2017 but
did not graduate from high school, and that she incurred substantial expenses to
assist W.R. with legal problems resulting from W R.'s drug and alcohol abuse.
But both Melinda and the court were aware as early as March 10, 2017, that
W.R. was living with Melinda full time, that W.R. had stopped attending classes,
and that W.R. was involved with substance abuse—including narcotics.3
Accordingly, this information was not "newly discovered evidence"
In her response brief, Melinda argues that the parties and the court were
not "fully aware of the extent of[W.R.'s] struggles." She then argues without
citation to any authority that W.R.'s "unfolding situation" constituted newly
discovered evidence, listing events that occurred since the entry of the June
2017 Order. But"CR 60 relief will not be granted when the new evidence is a
change in the facts that had not yet occurred at the time judgment was entered."
Tamosaitis v. Bechtel Nat'l, Inc., 182 Wn. App. 241, 255, 327 P.3d 1309(2014)
(emphasis added). For example, in In re Marriage of Knutson, 114 Wn App.
866, 60 P.3d 681 (2003), the trial court vacated an earlier dissolution decree and
revised the distribution of certain investment plans. Knutson, 114 Wn. App. at
3 Melinda filed a declaration on March 10, 2017, setting forth these facts. 12 No 77900-1-1/13
870. The court did so based on the husband's argument that one of the plans
had lost significant value since the decree was entered. Knutson 114 Wn. App.
at 868. When the wife appealed, the Court of Appeals reversed, observing that
"the transitory nature of. ..'evidence does not lend itself to application of CR
60(b)(3)." Knutson 114 Wn. App. at 872. The court also observed that if it were
to accept the husband's argument that a change in the plan's value was newly
discovered evidence, "newly discovered evidence' would occur with every
change in the plan's value, or any other asset previously valued " Knutson, 114
Wn. App. at 872(emphasis added). Here, as in Knutson the fact that W.R.'s
situation changed—by worsening over time—does not justify relief under
CR 60(b)(3), particularly where the underlying circumstances were well known
both to Melinda and to the trial court prior to entry of the June 2017 Order. Cf
Tamosaitis 182 Wn App. at 255 ("[N]ewly occurring evidence is not the same as
newly discovered evidence for purposes of CR 60 ").
c. CR 60(b)(11) Analysis
Melinda argues for the first time on appeal that even if W.R.'s "unfolding
situation" does not justify relief under CR 60(b)(3), CR 60(b)(11) serves as an
alternate ground for affirming the trial court's decision to vacate the June 2017
Order. We disagree.
CR 60(b)(11) permits the vacation of a judgment due to "[a]ny other
reason justifying relief from the operation of the judgment." "The use of CR
60(b)(11)'should be confined to situations involving extraordinary circumstances
not covered by any other section of[CR 60(b)1." In re Marriage of Yearout, 41
13 No. 77900-1-1/14
Wn. App. 897, 902, 707 P.2d 1367(1985)(quoting Keller, 32 Wn. App. at 140).
"Such circumstances must relate to irregularities extraneous to the action of the
court or questions concerning the regularity of the court's proceedings." Yearout
41 Wn. App. at 902. Because broad use of CR 60(b)(11) could provide "a
springboard for attacks on .. . final judgments[,]" courts have stressed that CR
60(b)(11) is limited in nature and will not be applied absent unusual
circumstances. See In re Marriage of Flannagan 42 Wn. App. 214, 222, 709
P.2d 1247 (1985); Yearout 41 Wn. App. at 902.
Here, Melinda does not allege any extraordinary or unusual
circumstances—nor does she allege any irregularity. Rather, the thrust of her
argument is that she is entitled to child support because W.R.'s situation
continues to worsen. In other words, Melinda alleges that relief is warranted
because the facts have changed since the trial court entered its June 2017
Order. But we have previously held that"CR 60(b)(11) is not applicable to cases
. in which facts are alleged to have changed after entry of judgment" State v
Dorosky 28 Wn. App. 128, 132, 622 P.2d 402, review granted and dismissed 96
Wn 2d 1011 (1981) Therefore, Melinda's argument is unpersuasive.
Changes to Downward Deviation
Because we hold that the trial court erred by vacating its June 2017 Order,
we need not reach Mark's arguments regarding the substance of the Final Child
Support Order. But because Mark's argument that a modification is required to
eliminate the Original Child Support Order's downward deviation almost certainly
will arise again in this case, we take this opportunity to address it. Cf. In re
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Marriage of Trichak 72 Wn App. 21, 24, 863 P.2d 585(1993)(addressing issue
that was not necessary for disposition of case but was likely to arise again in the
future).
Mark argues that because the Original Child Support Order contemplates
that the standard calculation would be deviated downward to zero based on the
children's 50/50 residential schedule, that deviation is the law of the case. Mark
argues further that because the deviation to zero is the law of the case, a
modification, together with a showing of a substantial change in circumstances, is
required to eliminate it or to impose any nonzero transfer payment on him. He
mainly relies on Trichak in support of his argument In Trichak the court granted
the father a pro rata deviation based on Social Security disability income
received by the parties' daughter. Trichak 72 Wn App at 22. Neither party
appealed the decree, but two years later, the mother petitioned to modify child
support. Trichak 72 Wn. App at 22. The trial court increased the father's
support obligation based on a substantial change in circumstances in the income
of the parties but continued to allow the pro rata deviation as the law of the case.
Trichak 72 Wn. App. at 22
On appeal, we observed that the mother "does not contend that the court
failed to reconsider the deviation provision in light of [the daughter's] needs
Rather, she simply contends that the offset for [the daughter's] Social Security
income is not a proper deviation under the child support statute" Trichak 72
Wn. App. at 24 (emphasis added). Because the mother never appealed the
propriety of the deviation below, the trial court correctly concluded that the
15 No. 77900-1-1/16
propriety of the deviation was the law of the case Trichak 72 Wn App. at 24.
Here, Mark's entitlement to a downward deviation is derived from the
50/50 residential schedule. We agree that Mark's entitlement to this deviation is,
like the propriety of the offset in Trichak the law of the case. Furthermore, RCW
26.10.075(1)(d) provides that the residential schedule may serve as a basis for a
deviation, and RCW 26.09.185(6) explains that the residential schedule is set
forth in the parenting plan. In other words, Mark's entitlement to a deviation flows
from the parenting plan, which is the source of the residential schedule.
Accordingly, the parenting plan must be modified before the deviation can be
eliminated if the reason for eliminating the deviation is a change in the residential
schedule for the children still subject to the parenting plan. See In re Marnaqe of
Coy 160 Wn. App. 797, 248 P 3d 1101 (2011)(Any increases or reductions to
the rights of a party under a parenting plan, no matter how slight, require a
modification to the parenting plan so that the trial court may, as required by RCW
26.09.260, consider the best interests of the child.).
Melinda argues that a modification of the parenting plan is not required to
eliminate the downward deviation because it is undisputed that two of the
children are living with Melinda full time. She argues that this fact either (a)
constitutes a substantial change in circumstances sufficient to justify modifying
child support or (b) results in insufficient funds in Melinda's household, making a
deviation statutorily impermissible. These arguments are unpersuasive. As
explained above, the deviation awarded to Mark flows from the parenting plan,
and because that award was not challenged at the time it was entered, it is the
16 No. 77900-1-1/17
law of the case. See Trichak 72 Wn. App. at 23(Where propriety of deviation is
unchallenged, it is the law of the case and parties are precluded from relitigating
it.). Melinda's attempt to decouple that deviation award from the parenting plan
is inconsistent with RCW 26 09 260, which requires that the parenting plan be
modified to change the children's residential schedule. Cf. In re Marriage of
Mattson 95 Wn. App. 592, 601 n.6, 976 P.2d 157(1999)(rejecting father's
argument that he should not be required to contribute to summer camp expenses
because he could supervise the children while former wife was at work and
observing that this argument was inconsistent with RCW 26.09.260). In short,
where the trial court has determined that it is in the best interests of the children
to reside equally with each parent, Melinda may not circumvent that
determination by urging the court to eliminate the deviation based on the parties'
actions in contravention of that determination. To the extent that Melinda argues
those actions were justified, the proper forum for that argument is a parenting
plan modification proceeding, not a child support modification proceeding
We hold that where a downward deviation has been granted based on the
residential schedule included in the parenting plan, a trial court may not eliminate
that deviation based on where the children subject to the residential schedule are
actually spending their time, without modifying the parenting plan. We do not
reach the issue of whether the trial court may, absent a modification to the
parenting plan, change the amount of the deviation (without eliminating it) and
order a nonzero transfer payment on a motion to modify or adjust child support
17 No. 77900-1-1/18
Melinda's Request for Fees on Appeal
Melinda requests fees on appeal. Under RAP 18.1, this court may award
attorney fees if authorized by applicable law. RCW 26.09.140 provides for
attorney fees on appeal in dissolution proceedings. In deciding whether to award
attorney fees on appeal, we consider "the arguable merit of the issues on appeal
and the parties' financial resources." In re Marriage of Raskob 183 Wn App.
503, 520, 334 P.3d 30(2014) Having considered Melinda's timely filed financial
affidavit and Mark's answer thereto, and because the issues raised by Mark on
appeal have considerable merit, we decline to award Melinda attorney fees on
appeal.
We reverse and remand to the trial court to reinstate the June 2017 Order
WE CONCUR. 04w4 iqc