In Re The Marriage Of: Suzanne Kay Paulsen & Timothy Alvin Paulsen (Majority)
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F= 1L. E COURT O1=` APPEALS DIVA -'_^. , X 201 MAR 19 S All 8: 4 7 ON Ofd L\ SH WON DEPOU- IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II No. 42953 -5 -II In re the Marriage of SUZANNE PAULSEN, Respondent, V. UNPUBLISHED OPINION TIMOTHY PAULSEN, 0 Timothy Paulsen appeals several provisions of the trial court' s JOHANSON, J. parenting plan, order of child support, spousal maintenance and attorney -fees awards, and its finding of contempt in his dissolution proceeding against Suzanne Paulsen. Timothy' argues that the trial court abused its discretion when it (1) imposed restrictions on Timothy' s residential time with his children, ( upbringing, ( 3) dividing the purposes, ( We refer 6) granted Suzanne sole decision making for the children' s religious 2) relied on couple' s ordered to the the debts guardian ad and Timothy parties by their litem' s ( GAL) assets, ( to pay first 5) calculated maintenance name recommendations, ( for clarity, the parties' to Suzanne, ( 7) intending no 4) considered fault in income for child support ordered Timothy to pay disrespect. No. 42953 -5 -II Suzanne' s attorney fees, and ( 8) found Timothy in contempt for failure to pay court- ordered child support. We hold that the trial court did not abuse its discretion when it imposed restrictions on Timothy' s residential time with his children and gave Suzanne sole decision making authority for the children' s religious upbringing. There is substantial evidence that Timothy' s use of religion to manipulate children and his past sexual abuse of minors posed a serious risk of actual or potential harm to the children. Additionally, because there is no evidence that the trial court considered anything improper and because there is substantial evidence to support the trial court' s ruling, we conclude that the trial court did not abuse its discretion when it divided the parties' debts and assets, calculated their income for child support, ordered Timothy to pay spousal maintenance, and ordered him to pay Suzanne' s attorney fees. Finally, the trial court did not abuse its discretion when it found Timothy in contempt for failing to pay previously ordered child support because inability to pay is not, in itself, a sufficient argument against disobeying a lawful court order. Accordingly, we affirm. FACTS _ Timothy filed time a petition of and Suzanne were married in 1992 and separated in 2009. In 2010, Suzanne for dissolution. Their marriage produced three children, ages 11, 9, and 6 at the filing. Before trial, the court appointed a GAL to investigate allegations of physical /sexual abuse of the children by Timothy and the parenting abilities of both parents. Among other things, the GAL investigated allegations that Timothy had several inappropriate relationships with teenagers during the marriage. In her report, the GAL explained her belief that Timothy had a history of severely abusing his position of trust as a teacher to manipulate impressionable teenagers, failed to respect boundaries, and engaged in sexually deviant behavior. 2 No. 42953 -5 - II Ultimately, the GAL recommended that Suzanne have primary custody of the children and that Timothy' s a residential parenting time child plan, consist support, the of solely professionally division couple' s At the time of trial, supervised visits. of debts and assets, and spousal maintenance were all at issue. The trial court heard testimony from several witnesses about Timothy' s prior relationships with several of Timothy was overnighters" second his students. One witness, R.B., testified that he met Timothy when education physical grade invited Timothy teacher. R.B. to at his home, wanted to become his mentor, and wanted to make his home a home for R.B. because R.B.' spent significant them. seventh his 2 Report s parents were time together, regularly of Proceedings ( RP) going through wrestled, and divorce. Timothy and R.B. had "[ a] lot of physical touch" between Starting when R.B. was in ninth grade, R.B. 154. at a believed there was a " crossing of boundaries" with respect to nudity, and Timothy engaged in several more " overt sexual contact[ s]" including touching R.B.' s genitals. 2 RP at 168, 171. Timothy' s sexual touching of R.B. continued until R.B. was 16 or 17 years old. Another witness, A.D., testified that she met Timothy when she was 13 on a junior high - field trip; Timothy was of one the teacher supervisors on the trip. Timothy started his relationship with A.D. talking to her about the trouble she was having with her parents, and she began spending regular basis a lot during of time alone with junior high and him. high A.D. spent the night at the Paulsen home on a school. She and Timothy often wrestled. She also testified about " encouragement letters" that Timothy wrote to her, similar to the letters that he had written changed, to R.B. After she graduated from high school, her relationship with Timothy progressing to sexual intercourse. A.D. testified that beginning when she was 13, she 3 No. 42953 -5 - II felt that Timothy sexually groomed and manipulated her. She also testified that she had seen Timothy wrestle with his children in the same way he wrestled with her. Jennifer Knight, a therapist who met with Suzanne, Timothy, and their children, testified that she believed that Timothy engaged in classic sexual abuse grooming behaviors of children and religion used as a grooming technique citing scripture, telling children how much he thanked the Lord that the children were in his life, and praying to God on their behalf. Knight explained that grooming communication, such as on the person. was saying, " the of practice suffocating a child with overbearing I love you" over and over, making the child become dependent 1 RP at 130. Knight believed Timothy posed a threat to the safety and well being of his own children, and his use of religion was a major concern because Timothy used religion to weaken the defenses of children, and his own children expressed that they were uncomfortable praying with him. Dr. Allen Traywick, a psychologist who evaluated Timothy to determine whether Timothy was sexually deviant and a risk to his children, testified that Timothy admitted to sexually abusing R.B. teaching job because Dr. Traywick also testified that Timothy told him he resigned from his a student' s parents accused him of " grooming" children. Timothy told Dr. Traywick that he used religion as a grooming technique, that someone reported him to the police, and that the school district investigated him after a third boy' s parents found letters Timothy had written to him. Ultimately, Dr. Traywick did not believe that Timothy was sexually dangerous to his own children because he had shown remorse for his actions and had undergone counseling. The GAL testified about her investigation and her concern with Timothy' s parenting. One of her major concerns was Timothy' s use of religion and that his religious grooming EI No. 42953 -5 -II practices had been the subject of several disciplinary actions by the school district. She also believed that Timothy' s use of religion was emotionally damaging to his own children. Suzanne testified that she had been a full -ime school teacher, but stopped working after t their second child was born to raise their children and home school them. When she did so, her public school teacher certification lapsed. Suzanne and Timothy separated in 2009 after he admitted to having a past sexual relationship with A.D. After the separation, Suzanne could no longer home school their children. She enrolled them at Heritage Christian School so she could begin working again. At the time of trial, Suzanne was a physical education teacher and athletic director at Heritage Christian School, was the advanced director of her own Pampered Chef business, was a part-time substitute teacher at Bates Technical College, and worked at NBC sports camps in the summers. In order to renew her public school teaching certificate, Suzanne needed to complete recertification training. Suzanne was uncomfortable allowing Timothy to see the children after learning about his relationships with R.B. and A.D. and, as a result, Timothy rarely saw the children. Suzanne also testified about Timothy' s relationships with several other students that she felt were inappropriate. push[ ed] When Suzanne allowed Timothy to see their children, she believed that he boundaries," and she was uncomfortable with his manipulative use of religion around them. 3 PR at 401. Suzanne asked the court to award maintenance of $500 a month for a year so that she could complete recertification declaration expenses, stated her net that her income training for her public school teaching nearly $ 3, certificate. Her financial 000 a month; but after business gross monthly income was $ 1, 915 a month and her monthly household expenses were over 5, 600 a month. 5 was No. 42953 -5 - II She also testified about Timothy' s income. After Timothy resigned his teaching position, he became a real estate agent, worked for a business leadership camp, and also worked odd jobs such as remodeling and painting houses. Suzanne submitted documentation that Timothy made around $ 6, 000 a month from his real estate business alone; but at the time of trial, Timothy was approximately $ 22, 000 behind on court- ordered child support. Suzanne asked the court to find Timothy in contempt of that order because he failed to pay the required child support and maintenance. At trial, Timothy admitted to sexually abusing R.B. and gave the court details of how and when the sexual later] that it was addiction classes costs, Timothy income was was only $ 1, abuse occurred. wrong to- do." he had often did Timothy 4 RP at 568. undergone since not stated exercise his it was " He also testified about the counseling and sexual victimizing R.B. right substantially lower than Suzanne inappropriate and [ he] recogniz[ ed] to see alleged it his Partially because of the supervision children. was. Timothy testified that his He testified that his gross income 500 a month, and that the court ordered him to pay $3, 400 a month in child support. He testified- about inconsistency in the real estate business, -about how he was struggling financially because his business had taken a hit from the economy, and about expenses necessary to maintain his business. He objected to Suzanne' s request for a contempt ruling because he did not have the money to pay the amount of ordered child support or maintenance. He also testified about his proposal for the division of property. 2 No. 42953 -5 - II The in court submitted our record. its oral ruling on November 4, 2011. 2 The court' s written orders are The court ordered that the children would reside with Suzanne except for every Wednesday evening and Sunday afternoon when Timothy would have professionally supervised three hour visits. The court also gave Timothy professionally supervised three -hour visits on certain holidays and three 15- minute phone calls with the children each week, finding that Timothy' s residential time with the children must be limited because he engaged in physical, sexual, or a abuse pattern of emotional of children under RCW 26. 09. 191( 2). The court also found that Timothy' s conduct or parental involvement may not be in the children' s best interests due to the existence of a long -term emotional or physical impairment which interferes with the performance of a parenting function inappropriate being sexual an abuse of under fondling trust, RCW 26. 09. 191( 3). of minor boys The court found that " the whole litany of who are later abuse of power and position." now grown men ... is indicative of Clerk' s Papers ( CP) at 208. The court' s distribution of property resulted in a 50/ 50 split between Suzanne and Timothy. The court also -awarded Suzanne spousal maintenance of $500 a-month for 12 months, and restrained Timothy from disturbing the peace of Suzanne and being present at any of the children' s school or extracurricular activities unless another adult was present. The court awarded judgment against Timothy for back child support and ordered that Timothy continue to pay $ 1, 544 a month in child support calculated by the standard calculation on the child support worksheets, plus 65 percent of the children' s private school tuition and sports and activity fees. 2 We do not have a verbatim report of the November 4 hearing. ( RAP 9. 5( c) puts a burden on the respondent to supplement, or move to compel appellant to supplement the record on appeal.) 7 No. 42953 -5 -II The court also awarded Suzanne attorney fees, finding Timothy in contempt for his failure to pay over $22, 000 in child support. Timothy appeals. ANALYSIS STANDARD OF REVIEW The issues in this case relate to the trial court' s final dissolution decree, parenting plan, and child support order and we review them 136 Wn.2d 800, 806, 966 P. 2d 1247 ( 1998); abuse of discretion. In re Marriage of Caven, In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 A trial court abuses its discretion if its decision is manifestly unreasonable or P. 2d 519 ( 1990). based for on untenable grounds or untenable reasons. 795, 803, 108 P. 3d 779 ( 2005). In re Marriage of Muhammad, 153 Wn.2d A trial court' s decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard. In re Marriage of Bowen, 168 Wn. App. 581, 586 -87, 279 P.3d 885, review denied, 176 Wn.2d 1009 ( 2012). The decision rests on untenable grounds if the factual findings are unsupported by the record; and it is based on untenable reasons if it relies on an incorrect standard or the facts do not meet the requirements trial court' s of the correct standard. - Bowen, 168 Wn. findings of fact if substantial evidence supports App. at them. 586 -87. We will uphold a - In re Marriage of Bernard, 165 Wn.2d 895, 903, 204 P. 3d 907 ( 2009). Evidence is substantial if it is sufficient to persuade a minded fair - person of the truth of the declared premise. Bernard, 165 Wn.2d at 903. We defer to the trial court on witness credibility and the persuasiveness of the evidence. In re Marriage of Akon, 160 Wn. findings Wn. of App. fact App. 48, 57, 248 P. 3d 94 ( 2011). support the trial We then determine whether the trial court' s court' s conclusions 235, 242, 170 P. 3d 572 ( 2007), review of law. In re Marriage of Rockwell, 141 denied, 163 Wn.2d 1055 ( 2008). No. 42953 -5 -II PARENTING PLAN Timothy time residential argues his with the trial court erred when it imposed restrictions on his that ( 1) children pursuant to RCW 26. 09. 191, ( 2) the trial court erred When it granted Suzanne sole decision making for the children' s religious upbringing because there was no affirmative evidence that his religion would pose any actual or potential harm to the children, 3) the GAL' and ( s recommendations were supported not by substantial evidence. Suzanne responds that ( 1) the statute required the trial court to restrict Timothy' s residential time under RCW 26. 09. 191, ( using religion to 2) the court' s religious restriction was necessary to prevent Timothy from manipulate the children, and ( 3) the court properly relied on the GAL' s recommendations. We agree with Suzanne. We review a parenting plan for abuse of discretion. Caven, 136 Wn.2d at 806. In fashioning a parenting plan, the court' s discretion must be guided by several provisions of the Parenting Act of 1987 ( ch. 26. 09 RCW), including 175 Wn.2d 23, 35 -36, 283 P. 3d 546 ( 2012),. cent. RCW 26. 09. 191. In re Marriage of Katare, denied, 133 S. Ct. 889 ( 2013). This statute requires that a court limit" a parent' s residential time if that parent has engaged in physical, sexual, or a pattern of emotional abuse of a child. 35 -36. RCW 26. 09. 191( 2)( x); Katare, 175 Wn.2d at If a court limits a parent' s residential time for this reason, the limitation must be reasonably calculated to protect the child from physical, sexual, or emotional abuse or harm by that parent. RCW 26. 09. 191( 2)( m)( i); supervised visits. Katare, 175 Wn.2d at 36. Appropriate limitations include RCW 26. 09. 191( 2)( m)( i). Also, a court can limit any provision of a parenting plan based on factors the court expressly finds adverse to the best interests of the children. RCW 26. 09. 191( 3)( g); Katare, 175 Wn.2d at 36. 9 No. 42953 -5 - II A. RESIDENTIAL RESTRICTIONS The court found that Timothy' s residential time with the children should be limited because he engaged in physical, sexual, or a pattern of emotional abuse of children under RCW 26. 09. 191( 2). The court also found that Timothy' s parental involvement or conduct may not be in the children' s best interests because of the existence of a long term emotional or physical impairment which interferes with the performance of a parenting function under RCW 26.09. 191( 3). 3 Substantial R.B., giving details inappropriate and [ of he] these findings. supports evidence how and when recogniz[ ed] that the it sexual was 4 Timothy admitted to sexually abusing abuse occurred. wrong to do." 4 RP Timothy testified it was at 568. R.B. also testified, in detail, about his relationship with Timothy, including the sexual abuse. Dr. Traywick testified Timothy that admitted to sexually abusing R.B. during Dr. Traywick' s evaluation. Timothy admitted that he used religion to manipulate R.B. and others. A.D. testified that although she did not engage in sexual intercourse with Timothy until after she turned 18; she felt sexually groomed and manipulated by Timothy from age 13. Knight testified that she believed Timothy engaged in classic sexual abuse grooming behaviors and posed. a threat to the safety being and well - of his own children. She also testified that Timothy 3 The court also found that " the whole litany of inappropriate sexual fondling of minor boys who are later now grown men . . . is indicative of being an abuse of trust, abuse of power and Although the record does not wholly support this finding, because there is direct evidence of sexual fondling of a single minor boy, the record supports the other findings position." CP at 208. and these findings are sufficient to support the conclusion that Timothy' s residential time should be limited. 4 In his appellate brief, Timothy admits that he sexually abused R.B. and that he had a sexual relationship with A.D. ce No. 42953 -5 -II used religion to weaken the defenses of children, and his children expressed that they were uncomfortable praying with him. The GAL testified about her investigation and expressed concern with Timothy' s parenting. A major concern was Timothy' s use of religion and his religious grooming practices, the which were subject of several school district disciplinary actions. She also believed that Timothy' s use of religion caused emotional damage to his children. Finally, the court considered several letters written to his minor -aged victims demonstrating his grooming technique and use of religion court' s to gain the children' s emotional findings that Timothy sexually and / or dependency. emotionally Substantial evidence supports the abused children. Because the court found that Timothy had a history of engaging in sexual and/ or emotional abuse of children and that his inappropriate relationships with minors may have an adverse affect on the children, it was required to limit Timothy' s residential time under RCW 26. 09. 191( 2)( a). The court ordered that the children reside with Suzanne except for every Wednesday evening and Sunday afternoon when Timothy would have professionally supervised visits. The court also gave Timothy professionally supervised three -hour visits on certain holidays and three 15- minute phone calls with the children each week. RCW 26. 09. 191( 2)( m)( i) specifically provides for supervised visitation as an appropriate limitation when the parent has engaged in sexual abuse of children under RCW 26. 09. 191( 2)( a). Therefore, we cannot say that the court abused its discretion in ordering supervised visits when the statute specifically provides for supervised visits under these circumstances. Bowen, 168 Wn. App. at 586 -87. Nonetheless, Timothy argues that the court did not reasonably calculate its restrictions to protect his children because his last incident of sexual abuse of a child occurred 13 years prior to trial and he had undergone therapy since then. 11 But Timothy does not cite any authority to No. 42953 -5 -II support his argument that a time lapse or completion of treatment since admitting to sexual abuse requires the court to disregard the requirements RCW 26. 09. 191( 2)( of a). Without such authority, he fails to show that the trial court abused its discretion when there is substantial evidence of his history of sexually and emotionally abusing children and there is evidence he engaged in inappropriate grooming of his own children. We find no abuse of discretion or error of law. B. RELIGIOUS UPBRINGING A trial court has wide latitude of discretion in ordering parenting restrictions based on the best interests and welfare of 1133 ( 1971). the children. Munoz v. Munoz, 79 Wn.2d 810, 813 -14, 489 P. 2d Under this wide latitude of discretion, a court may restrict a parent' s religious decision making when there is an affirmative showing of compelling reasons to do so. Munoz, 79 Wn.2d at 813 -14. Timothy argues that the trial court erred when it granted Suzanne sole decision making for the children' s religious upbringing because the trial court did not make a finding that Timothy' s that religious beliefs Timothy' s decision posed a potential making in harm to the education, children. nonemergency The court' s order provided health care, and religious upbringing must be limited because of (1) the existence of a limitation under RCW 26.09. 191, 2) the history of participation of each parent in decision making, ( 3) the parents' demonstrated ability to cooperate with one another in these areas, and ( 4) the parents' geographic proximity to one another. The matters shall not be also provided court' s order allowed between the father that "[ and the p] rayer or the discussions of religious children." CP at 207. There is substantial evidence that because Timothy used religion as a tool to manipulate and groom children, restricting Timothy' s religious .decision making was in the best interests of 12 No. 42953 -5 -II the children. scripture and safety Knight testified that Timothy used religion as a grooming technique, citing to them talking being and well - of his about God and praying. Knight believed Timothy threatened the children, and she expressed a concern about his use of religion. She also testified that Timothy had used religion to weaken the defenses of children in the past and that his own children expressed that they were uncomfortable praying with him. Dr. Traywick also testified that Timothy admitted he was accused of using religion to groom children, and admitted his religious grooming conduct eventually led him to resign from his teaching children. position. As part of his grooming practice, he wrote " encouragement letters" to Included in the court' s records were several of these letters, and the court considered them in its ruling. The GAL also testified about Timothy' s use of religion being the subject of several school district disciplinary actions and Timothy' s use of religion was emotionally damaging to the children. The trial court neither abused its discretion nor infringed upon Timothy' s free exercise of religion when ( 1) it ruled that Timothy' s religious decision making should be limited and ( 2) it ruled he should not discuss religion with his children because there was substantial evidence that Timothy' s use of religion posed an actual or potential harm to the children. C. GAL' S RECOMMENDATIONS Third, Timothy argues that there was no substantial evidence supporting the GAL' s recommendation that his residential time should be limited and supervised because Dr. Traywick also testified that witness credibility Timothy and the was not a danger to his persuasiveness of the children. evidence. We defer to the trial court on Akon, 160 Wn. App. at 57. After hearing all the evidence presented, the trial court was free to find Dr. Traywick' s testimony less persuasive than the GAL' s testimony. Although 13 Timothy argues that the GAL' s No. 42953 -5 -II recommendations were unsupported by the substantial evidence, this is a misplaced argument because we do not review whether substantial evidence supports the GAL' s recommendation; rather, we review whether substantial evidence supports the trial court' s findings and whether those findings support to limit required its conclusions. Timothy' s residential Because we already determined that the trial court was time with the children under RCW 26. 09. 191( 2)( x), the trial court did not abuse its discretion by agreeing with the GAL that Timothy' s residential time should be limited. DIVISION OF DEBTS AND ASSETS Next, Timothy argues that the trial court improperly divided the couple' s debts and assets. He asserts that the trial court ( 1) considered his sexual abuse history when it divided the property, ( 2) property allowed Suzanne to inflate the property awarded to Timothy and deflate the awarded Timothy did her, ( 3) not make, from their home abuse to and ( and placed should not have awarded 4) failed to consider into funds. mutual Suzanne $ 11, 000 in mortgage payments the $ 125, 000 in equity the parties removed Suzanne responds that the trial court did not the record does not support the assertion -that the -trial court its discretion because ( l)- considered Timothy' s property, ( 3) the trial sexual abuse court history, ( 2) her testimony supported the value of the couple' s properly recognized Timothy' s liability of $ 11, 000 for mortgage payments he agreed to pay, and ( 4) the record shows that the court properly analyzed all the couple' s debts and assets. We agree with Suzanne. The trial court has broad discretion in distributing marital property, and we reverse only if it has manifestly and equitable" extent of abused its discretion. Rockwell, 141 Wn. property division, a trial court the community property, ( 2) the must nature 14 App. consider and at 242 -43. In reaching a " just four factors: ( extent of the separate 1) the nature and property, ( 3) the No. 42953 -5 -II duration of the marriage, and ( 4) the economic circumstances of each spouse at the time the property division will become effective. RCW 26. 09. 080; Rockwell, 141 Wn. App. at 242. All property, community and separate, is before the court for distribution. In re Marriage ofBrewer, 137 Wn.2d 756, 766, 976 P. 2d 102 ( 1999). trial court on disputed factual issue a We will not substitute our judgment for that of the such as the valuation of property. Worthington v. Worthington, 73 Wn.2d 759, 762, 440 P. 2d 478 ( 1968). Timothy' s assertions that the court improperly considered his sexual abuse history when it divided the property and his assertion that the trial court should not have awarded Suzanne 11, 000 in mortgage payments are unsupported by citation to the record or to any authority. Nor did we find any support in the record for his assertion that the trial court considered Timothy' s sexual abuse history when it divided the property. Timothy has shown no error. Next, Timothy argues that the court allowed Suzanne to inflate the value of his property while deflating the value of her property. We do not review Suzanne' s assertions; rather, we review the trial court' s decisions. As Timothy admits, the trial court based its determinations, in part, on credibility decisions and we do not review credibility on appeal. - Akon,- 160 Wn. App. at 57. We will not substitute our judgment for that of the trial court on a disputed factual issue such as the valuation of property. Worthington, 73 Wn.2d at 762. The decree of dissolution lists the property awarded to each spouse, lists the values that the court used, and shows that the trial court split the couple' s property 50/ 50. Timothy' s argument does not show that the trial court abused its discretion in its 50/ 50 split of the property. Both of both parties Timothy testified to the and Suzanne, valuation of made their assets. The trial court, taking the testimony credibility determinations. Because we will not substitute our judgment for that of the trial court and will not review its credibility determinations, we hold 15 No. 42953 -5 -II that the trial court did not abuse its discretion when it valued the debts and assets and divided the couple' s debts and assets equally. CHILD SUPPORT Timothy argues that the trial court erred when it calculated the parties' income for child support purposes because ( 1) the court should have found Suzanne underemployed and imputed a higher income for her, ( 2) the court did not accept Timothy' s actual income and instead relied on Suzanne' s assertion of what Timothy' s income was, and ( 3) the court should not have ordered Timothy to pay a share of the private school tuition when he had no say in the decision to incur the expense. We disagree. We review child support orders for an abuse of discretion. Griffin, 114 Wn.2d at 776. Each child support order must meet the children' s basic needs and provide additional financial support commensurate with the parents' income, resources, and standards of living. RCW 26. 19. 001; In re Marriage ofAyyad, 110 Wn. App. 462, 467, 38 P. 3d 1033, review denied, 147 Wn. 2d 1016 ( 2002). voluntarily RCW 26. 19. 071( 6) requires a court to impute income to a parent who is unemployed or underemployed. A court is ยข required to base its decision to impute income on the parent' s work history, education, health, age, and any other relevant factor. RCW 26. 19. 071( 6); In court decides the re Marriage of Pollard, 99 Wn. parent is ` gainfully App. employed on a 48, 52 -53, 991 P. 2d 1201 ( 2000). " If the t full -ime basis,' but also underemployed, the court makes a further determination whether the parent is purposely underemployed to reduce his or her support obligation." Pollard, 99 Wn. App. at 53 ( quoting RCW 26. 19. 071( 6)). First, Timothy argues that the court should have found Suzanne underemployed and imputed a higher income for her because she had let her teacher certification lapse and had not completed her certification since the couple separated. 10 Suzanne' s testimony supports that she No. 42953 -5 -II Although she had been a full -ime teacher before having children, t not underemployed. was Suzanne testified that her public school teaching certification lapsed after she had her second child because she and Timothy agreed that she would be a stay -at -home mom and raise the But children. at the time of trial, Suzanne was working several jobs. Because of Timothy' s and Suzanne' s conflicting testimony about how much money Suzanne could or should have been making, the trial court was free to determine whose testimony was more persuasive. We do not disturb those credibility determinations. Akon, 160 Wn. App. at 57. The trial court did not abuse its discretion in rejecting Timothy' s contention that Suzanne was underemployed. Next, Timothy argues that the court did not accept his actual income and instead relied on Suzanne' s assertion Timothy' s of what income Again, when faced with conflicting was. testimony, the trial court is free to determine whose testimony was more persuasive. Akon, 160 Wn. App. at 57. We do not disturb those findings. Finally, Timothy argues that the court should not have ordered him to pay a share of the private school tuition because he had no say in the decision to incur the expense and the court failed to consider his McCausland, 129 Wn. ability App, 607, 152 P. 3d 1013 ( 2007)). as tuition ... parents in the are not to pay. - Br. of Appellant 390, 412, 118 P. 3d 944 ( 2005), RCW 26. 19. 080( 3) included in the same proportion as economic the basic states, "[ table. at 2-1 ( citing In re - Marriage of rev' d on other grounds, 159 Wn.2d S] pecial child rearing expenses, such These expenses shall be shared by the child support obligation." RCW 26. 19. 080( 3). The trial court has discretion to determine the " necessity for and the reasonableness of payments in excess of the basic Guilder, 137 Wn. child support App. 417, obligation. RCW 26. 19. 080( 4); State ex rel. J.V.G. v. Van 427, 154 P. 3d 243 ( 2007). 17 A trial court is required to make findings No. 42953 -5 -II about a parent' s ability to pay for extraordinary expenses whenever the objecting parent raises the issue. J.V.G., 137 Wn. App. at 429. Because Timothy failed to object to the private school tuition, the court was not required to special make findings about his ability to pay. Timothy' s failure to object to the private school tuition as an extraordinary expense is fatal to his argument here because the court had to make special 429. findings about his ability to pay if he first raised the issue. J.V.G., 137 Wn. App. at Therefore, he cannot show that the trial court abused its discretion in ordering him to pay 65 percent of the private school tuition. MAINTENANCE Timothy argues that the trial court erred when it ordered him to pay maintenance to Suzanne because it found Timothy' s income was substantially higher than it was, he does not have the ability to pay, Suzanne is capable of supporting herself but is underemployed, and " this was not a family use[ d] to living high on the hog." Br. of Appellant at 23. Again, we disagree that the trial court erred. An award of spousal maintenance is within the trial court' s discretion. In re Marriage o Crosetto, 82 Wn. consideration of at 558. App. 545, 558, 918 P. 2d 954 ( 1996). the statutory factors constitutes an abuse of Maintenance not based on a fair discretion. Crosetto, 82 Wn. App. The nonexclusive list of statutory factors includes the parties' post -dissolution financial resources; the time needed for the party seeking maintenance to become self sufficient; the duration of financial obligations; 26. 09. 090. marriage; the and standard the ability of living during of one spouse marriage; to pay the parties' maintenance age, health, and to the other. RCW The only limitation on the amount and duration of maintenance is that the award must be just in light of the relevant factors under RCW 26.09. 090. In re Marriage of Washburn, 18 No. 42953 -5 -II 101 Wn.2d 168, 178, 677 P. 2d 152 ( 1984). "[ M] aintenance is not just a means of providing bare necessities, but rather a flexible tool by which the parties' standard of living may be equalized for an appropriate period of Washburn, 101 Wn.2d at 179. time." Other than a bare assertion that the trial court erred, Timothy fails to show how the trial abused court its discretion. Because we defer to the trial court' s determinations regarding credibility and the persuasiveness of the evidence, we cannot find on this record that the trial court abused its discretion in awarding maintenance. SUPERIOR COURT ATTORNEY FEES Timothy argues that the trial court erred and abused its discretion when it ordered him to pay Suzanne' s attorney fees because " Dr. Traywick evaluated [ Timothy] and determined he was not a danger to his Timothy' s] children, Suzanne' and [ s] real reason for filing for dissolution was Br. of Appellant at 23 -24. Timothy also argues that he does not affair with [ A.D.]." We conclude that the trial court properly exercised its have the ability to pay attorney fees. discretion in awarding attorney fees to Suzanne. When a party argues an issue without any reference to the record or citation to authority, we do not consider RAP 10. 3( the issue. Wn.2d 801, 809, 828 P. 2d 549 ( 1992). we uphold the trial award reasonable court' s decisions. attorney fees to a)( Cowiche Canyon Conservancy v. Bosley, 118 6); Because we do not consider inadequately argued issues, Cowiche, 118 Wn.2d at 809. A trial court has discretion to either party. Ayyad, 110 Wn. App. at 473. The court must consider the financial resources of both parties by balancing the requesting party' s need for a fee award against reasonable the other amount of party' s fees, the ability to pay. court must Ayyad, 110 Wn. consider ILI App. three factors: "( at 1) 473. In calculating a the factual and legal No. 42953 -5 -II questions involved; ( case; and ( 3) the 2) the amount of time necessary for preparation and presentation of the value and character of the property involved." Ayyad, 110 Wn. App. at 473. Neither the record nor any citation to legal authority supports Timothy' s short and conclusory Because Timothy failed to adequately argue the issue in his brief, we argument. uphold the trial court' s award of Suzanne' s attorney fees. CONTEMPT Last, Timothy argues that the trial court abused its discretion when it found him in contempt for failure to pay child support because he did not have the ability to pay. We hold that the trial court did not abuse its discretion. We review a trial court' s decision in a contempt proceeding for an abuse of discretion. In re Marriage of James, 79 Wn. App. 436, 439 -40, 903 P. 2d 470 ( 1995). Contempt of court is, in part, the intentional disobedience of a lawful court order. In re Marriage ofHumphreys, 79 Wn. App. 596, 599, 903 P. 2d 1012 ( 1995). 26. 18. 050( 1), Timothy states, " Here, Timothy' s argument as argued above, [ is very brief. After citing RCW Timothy] did not have the ability to pay, therefore cannot be held in contempt. The trial court' s finding of contempt-should be vacated." Br. of Appellant at 25. Again, neither the record nor citation to legal authority supports Timothy' s argument; thus, we do not consider the issue, and uphold the trial court' s finding that Timothy was in contempt. ATTORNEY FEES ON APPEAL Suzanne requests attorney fees on appeal under RAP 18. 1 and Thompson v. Lennox, 151 Wn. App. 479, 484, 212 P. 3d 597 ( 2009), arguing that, generally, if attorney fees are allowable at trial, the prevailing party may recover them on appeal as well. 20 No. 42953 -5 -II In dissolutions, RCW 26.09. 140 allows us to award appellate attorney fees to a party for the cost of maintaining an requesting party' s financial 474. appeal of a need and the dissolution other case. party' s In doing so, we must consider the ability to pay. Ayyad, 110 Wn. App. at A showing of financial need must be made by affidavit and filed no later than 10 days before this court is scheduled to consider the appeal. RAP 18. 1( c). Suzanne did not file an affidavit of need; therefore, she is not entitled to fees under RCW 26. 09. 140. We affirm. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. I ON, J. We concur: W6RSWICK, C. J. J/ 0 $, B RGYN, J. 21 T`
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