In Re The Marriage Of: Patricia Almond, Resp/cross-app. V Eric Almond, App./cross-resp. (Majority)
Annotate this Case
Download PDF
FILED UE APPEIk S DIV1SI0 N" " i ' G301. 11 ( 29 13 DEC 31 IN THE COURT OF APPEALS OF THE STATE O. DIVISION II W, AN 9: 16 51Q y BY EYUTY No. 43543 -8 -II In re the Marriage of: PATRICIA ALMOND, Respondent /Cross Appellant, UNPUBLISHED OPINION V. ERIC ALMOND, A PENOYAR, J. Patricial judgment a Eric and Patricia Almond challenge the trial court'.s 2012 order granting of $59, 757. 20 in unpaid child support and maintenance. Included in that judgment is a 2008 judgment from which the trial court subtracted unincurred daycare and preschool expenses and related interest. Eric argues that the trial court was required to reduce the 2008 judgment further to include only the interest on unpaid support dating from 2007 and that the prospective interest on the judgment must be similarly recalculated. Eric also argues that the trial court did not give him proper credit for the Thrift Savings Plan ( TSP) funds he paid, and he requests an award of attorney fees in his reply brief based on Patricia' s intransigence. Patricia judgment by cross the appeals, arguing that the trial amount of unincurred expenses, ( court erred by ( 1) reducing the 2008 2) failing to award her interest on the unpaid maintenance, and ( 3) denying her attorney fees based on Eric' s intransigence. Patricia also 1 We refer to the parties by their first names for clarity. 43543 -8 -II fees requests on appeal based on either her financial Eric' need or s intransigence. We hold that the trial court properly recalculated the 2008 judgment and the interest due on that judgment as well as the unpaid maintenance. We affirm the trial court' s decision to deny Patricia attorney fees, deny her request for fees on appeal, and decline to consider Eric' s request for attorney fees because it was made for the first time in his reply brief. FACTS When the parties entered a decree ending their eight - ear marriage on April 30, 2007, the y trial court entered judgments judgments, the trial required court gave Eric to pay against Eric maintenance Eric totaling credit of $ 1, for more than $ 17, 000. a portion of 000 for two his TSP years and In calculating those account. child The 2007 decree support of $ 967. 66 per month, plus daycare and preschool expenses of $429. 55 per month, for a monthly child support obligation of $1, 397.21. A few months later, Eric filed a pro se petition for modification of child support, seeking reimbursement for his payment to Patricia for daycare expenses that she had not actually incurred and additional relief. Patricia responded with a motion for contempt, arguing that Eric had failed to pay the court- ordered child support and maintenance. On January 8, 2008, the trial court dismissed Eric' s petition due to his failure to show a substantial change in circumstances and awarded Patricia attorney fees. The trial court continued the contempt hearing to January 30 so that Eric could obtain counsel. When he failed to appear on January 30, the trial court issued a bench warrant for his arrest and reserved the issue of contempt for his appearance. 2 43543 -8 -II At the January 30 hearing, the court entered additional judgments for unpaid child those from the decree judgments awarded was of dissolution for as calculated Patricia The new judgments were consolidated with that totaled $ 14, 213. 37. support and maintenance additional of a principal December 31, attorney fees of $1, balance 31, owed of $ 2007, in the 000. sum 911. 50. of $ 1, Interest on the 825. 52, and the court The court also awarded her a judgment for 4, 038. 98, which represented the unpaid portion of Eric' s TSP funds. In 2010, Eric filed again to have Eric held in a motion for contempt. adjustment of child In 2011, Patricia moved support. She also sought consolidation of the judgments against Eric, an update of the interest due on those judgments, and attorney fees. The court declined to hold Eric in contempt and ordered the parties to complete mediation. After mediation failed, Eric requested attorney fees based on Patricia' s intransigence as well as a judgment for unincurred expenses from April 2007 to the present. The court issued an order stating that the trial issues would include Eric' s motion to adjust child support, his right to reimbursement of daycare and preschool expenses, and Patricia' s issues regarding back child support/maintenance, costs and attorney fees, update of the interest calculation of the past judgments, and consolidation of all judgments. Following a two -day trial in March 2012, the court issued an oral ruling acknowledging that the 2008 judgment however, the court reduced expenses of $429. 55 the law was it a month of the case. To make that judgment a " just resolution," by $ 3, 463. 40 to account for unincurred daycare and preschool from May through December 2007. Clerk' s Papers ( CP) at 122. The court then added the prior awards for attorney fees and TSP funds, finding that Eric had not proven that the TSP award in the 2008 judgment was erroneous, and recalculated the 2008 judgment at $ 33, 483. 08. The court ordered that the $ 3 1, 825. 52 in interest awarded in 2008 should 43543 -8 -II be adjusted to reflect the removal of the unincurred expenses, but that the interest owing on the recalculated judgment since 2008 should then be added to it. The trial court determined that Eric had not paid maintenance from January 2008 to April 2009, for a deficit of $ 16, The court also observed that child support for the 51 months 000. between January 2008 and the present totaled $ 71, 257.71, from which $21, 907.05 in unincurred Eric had should be subtracted. which amounted to 8, an overpayment of $ expenses paid more than $ 58, 000 in child support since 2008, The trial court applied that overpayment to 249. 55. the maintenance owed and declined to award interest for the unpaid maintenance because it was being collected along with the child support, though the court added that interest on the remaining balance would be collected prospectively. The trial court denied each party' s request for fees and costs, observing that Patricia had already been awarded $ 6, 650 in fees and costs and that Eric was facing another substantial judgment. The court added the calculations remaining disagreement, you can bring that Patricia and has limited income. The court directed the parties to do with return it back to me." orders, proposed adding that " if there' s any CP at 125. At a subsequent hearing, Patricia submitted a proposed " Order and Judgment on Motion for Adjustment of Child Support, Reimbursement of Unincurred Day Care Expenses /Judgment for Maintenance /Clarification that a potential issue might and Update be the of January calculation of 30, 2008 Order." interest on the CP original at 34. Patricia noted 2008 judgment. She explained that she had not included in her calculation the amount of interest on the unpaid child support covered by the 2008 judgment. judgment to $ 1, 775. 84, listed the total accrued interest on that judgment from Her proposed order reduced the interest in the 2008 principal January judgment 1, 2008, as $ through 33, 483. 08, and calculated the March 31, 2012, at $ 17, 076. 37. 43543 -8 - II Patricia reached the accrued interest figure by calculating the amount of annual interest due and multiplying that amount by the number of years since the judgment. Patricia' s order added that Eric also owed maintenance of over $ 7, 000. Eric argued that Patricia had improperly calculated the interest due on the unpaid support from 2007 to the present and that the total judgment against him totaled approximately $ 29,000, which was about $ 35, 000 less than Patricia had calculated. Eric reached his figures by calculating the interest due on a monthly rather than annual basis, and he argued that Patricia' s approach did not account for the payments he had actually made. Patricia responded that she had calculated the interest based on the court' s findings regarding the judgments due. After agreeing to take another look at the interest figures, the trial court found that Patricia' s proposed order reflected its oral ruling, but the court reduced the amount of maintenance owed to give Eric credit for mediation costs. Eric appealed, and Patricia filed a cross appeal. ANALYSIS CALCULATION OF 2012 JUDGMENT I. Eric argues that the trial court did not go far enough in revising the 2008 judgment that was included in the 2012 judgment. He challenges the validity of the 2008 judgment and asserts that it incorrectly included judgment for the unpaid interest on child support TSP funds is incorrect. he had paid. Eric also argues that the 2008 Patricia argues that the trial court should not have revised the 2008 judgment at all and that the court also erred in failing to award her interest on the unpaid maintenance from 2008 and 2009. 5 43543 -8 -II We begin our review by observing that trial court decisions in dissolution proceedings will seldom be changed on appeal. In re Marriage ofBooth, 114 Wn.2d 772, 776, 791 P. 2d 519 Such decisions will be upheld unless they are manifestly unreasonable or based on 1990). untenable grounds. In re Marriage ofLandry, 103 Wn.2d 807, 809, 699 P.2d 214 ( 1985). The trial court reduced the 2008 judgment by $3, 463. 40 to account for Eric' s payment of unincurred daycare and preschool expenses in 2007. The provisions of any decree regarding child support generally may be modified only as to installments accruing subsequent to a petition for modification or motion Wn. App. modified 378, 388, for adjustment. RCW 26. 09. 170( 1); See In re Marriage of Glass, 67 835 P. 2d 1054 ( 1992) ( neither child support nor maintenance can be retroactively). Money paid for past -due support serves to reimburse the custodian for monies actually expended, and accumulated child support judgments generally may not be retroactively modified. Hartman v. Smith, 100 Wn.2d 766, 768, 627 P. 2d 176 ( 1984); In re Marriage of Capetillo, 85 Wn. App. 311, 316, 932 P. 2d 691 ( 1997). Patricia argues that the finality of the 2008 judgment is reinforced by the principle of res judicata, which precludes a party from bringing a claim that has been litigated or could have been litigated in a prior action. Marino Prop. Co. v. Port Comm' rs ofPort ofSeattle, 97 Wn.2d 307, 312, 644 P. 2d 1181 ( 1982) ( 1949)). quoting Walsh v. Wolff, 32 Wn.2d 285, 287, 201 P.2d 215 She points out that Eric did not appear at the hearing that resulted in the 2008 judgment and did not appeal that judgment or seek its clarification or modification under CR 59 or CR 60. Eric responds that both equity and statutory law entitle him to the relief the trial court granted. In special circumstances, Washington courts will apply equitable principles to mitigate the harshness of claims for retrospective support if mitigation will not work an injustice to the custodian or the child. Hartman, 100 Wn.2d at 768 -69; Capetillo, 85 Wn. App. at 316 -17. In 43543 -8 -II addition, RCW 26. 19. 080( 3) mandates that unincurred daycare expenses must be reimbursed if the overpayment amounts to at least 20 percent of the obligor' s annual day care expenses. In re Marriage of Barber, reimbursement Wn. 106 App. 390, properly brought claims and 23 393 -94, proved P. 3d under 1106 ( 2001). RCW 26. 19. 080( 3) Overpayment are mandatory unless the claim itself is barred by equity. Barber, 106 Wn. App. at 395 -96. The trial court did not cite RCW 26. 19. 080( 3) in reducing the 2008 judgment by the amount of unincurred expenses, but it stated that recalculation was required to make the 2008 judgment " a just resolution." CP at 122. Because this overpayment did not reimburse Patricia for sums actually paid, which is the point of payments for past -due support, we see no error in the trial court' s corresponding reduction of the 2008 judgment. Had the trial court indicated that it was acting under RCW 26. 19. 080( 3), the record would be clearer but in any case the result is the same and the result is appropriate. Eric' s assertion that the 2008 judgment must be completely recalculated, however, goes too at far and comes the 2008 too late. hearing and Eric waived the right to challenge the judgment by failing to appear by failing to appeal the resulting judgment. While he claims that judgment failed to account for payments he made before the judgment was entered, this claim should have been presented to the court at the January 2008 hearing. Consequently, we reject Eric' s related argument that the trial court erred by calculating the interest due on the 2008 . judgment. The trial court appropriately calculated the amount of the judgment and then appropriately calculated the interest due at the rate of 12 percent per year. See RCW 4. 56. 110( 4) judgments bear interest from date of entry at maximum rate permitted under RCW 19. 52.020); RCW 19. 52. 020( 1) ( 12 percent per annum is maximum rate). 7 43543 -8 - II Eric also contends that the judgment for TSP funds included in the 2008 judgment was erroneous. We reject this is final in this amount support his claim for several reasons. First, we note that the 2008 judgment Second, we observe that the trial court found that Eric did not prove at respect. trial that this contention was of error, incorrect. On appeal, Eric' s brief refers to his trial testimony to but that testimony is not part of the appellate record. The record before us does not show that the trial court' s decision rejecting. Eric' s challenge to the 2008 TSP judgment was manifestly unreasonable. Finally, Patricia contends that the trial court erred by declining to award her interest on the unpaid maintenance from 2008 and 2009 up to the date of the court' s decision in 2012. As the trial court recognized, interest was being collected on child support from 2008 even though Eric had overpaid that support, so the court declined to award Patricia interest on the unpaid maintenance. We do not see this decision as manifestly unreasonable. II. ATTORNEY FEES Patricia argues that the trial. court erred by denying her attorney fees based on Eric' s intransigence, as demonstrated by his failure to abide by previous court- imposed judgments and payments. We review a trial court' s decision regarding attorney fees to determine whether it was manifestly unreasonable or 563, 918 P. 2d 954 ( 1996). clearly untenable. In re Marriage of Crosetto, 82 Wn. App. 545, When determining whether to award attorney fees, the trial court generally must balance the needs of the spouse requesting them against the ability of the other spouse to pay. Crosetto, 82 Wn. App. at 563. The court also may consider the extent to which one spouse' s intransigence caused the spouse seeking a fee award to require additional legal services. In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P. 2d 197 ( 1989). If 43543 -8 -II intransigence is established, the financial resources of the spouse seeking fees are irrelevant. Morrow, 53 Wn. App. at 590. Before trial, Patricia sought an award of attorney fees based on her contempt allegations Eric. against The trial court noted that Patricia had already received attorney fees in prior proceedings based on Eric' s failure to adhere to court orders regarding his child support and maintenance obligations, and it declined to award Patricia additional fees. It appears that Patricia bears some responsibility for the failed mediation, and we do not view the trial court' s refusal to award her fees for Eric' s intransigence as manifestly unreasonable. Patricia also requests attorney fees on appeal based on either RCW 26. 09. 140 or Eric' s intransigence. RCW 26. 09. 140 provides that t]he court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this [ marital dissolution] chapter.... Fees under RCW 26.09. 140 are awarded, however, only when the requesting party files an affidavit of financial no need later than 10 days before a case is considered. RAP 18. 1( c). Because Patricia has not filed any such affidavit, we decline to award her attorney fees under RCW 26. 09. 140. We also decline to award fees based on Eric' s intransigence, as Patricia' s cross appeal is the result of the trial court' s calculations rather than any misconduct on Eric' s part. Eric request App. 1, also requests because it is 13 n. 2, fees raised on appeal because of Patricia' s intransigence. We deny this for the first time in his reply brief. See Hawkins v. Diel, 166 Wn. 269 P. 3d 1049 ( 2011) ( fee request must be raised in opening brief under RAP 18. 1). GS 43543 -8 - II Affirmed. 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. YPenoya.,., We concur: Hunt, J. 10 l
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
