IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In re the Marriage of:
DIVISION ONE
KENNETH B. KAPLAN,
No. 73119-0-1
Respondent/Cross-Appellant, (consol. with No. 73492-0-1)
v. UNPUBLISHED OPINION
SHEILA KOHLS, f/k/a
SHEILA KOHLS-KAPLAN,
u~-
Appellant/Cross-Respondent. FILED: June 13, 2016
Dwyer, J. — The disharmony between Kenneth Kaplan and Sheila Kohls
continues. No strangers to this—or the superior—court, the former spouses
bring to us the latest iteration of their seemingly continuous, acrimonious
litigation. Each party asserts numerous claims for relief from the trial court's
orders. None have merit. We affirm.
I
Kohls and Kaplan married in 1992. They have two children together, a
daughter, I.K., age 17, and a son, Z.K., age 20.1 Throughout their marriage,
Kaplan was employed as an attorney and Kohls was a stay-at-home mother.
These were the ages of the children at the time of the 2015 court proceedings.
No. 73119-0-1 (consol. with No. 73492-0-l)/2
In March 2005, the superior court dissolved their marriage. As part of the
dissolution, Kohls and Kaplan entered into an agreed child support order. They
also agreed that the children's postsecondary education would be funded
through a trust established by the children's paternal grandparents.
In June 2013, Kohls—initially appearing pro se and later represented by
counsel—filed a petition seeking modification of the child support order, which
had been previously modified in 2010.2 Therein, Kohls contended that the child
support order should be modified because, among other reasons, "[a] parties'
[sic] income may have changed substantially," and because "[t]he previous order
work[ed] a severe economic hardship" on both her and I.K.
Kaplan contested Kohls' petition. Both parties submitted documentation in
support oftheir arguments, including affidavits and financial worksheets.
Discovery was also conducted.
On November 22, the parties appeared before a court commissioner, the
Honorable Jacqueline Jeske, for trial by affidavit. After hearing from counsel,
Commissioner Jeske set forth a detailed oral ruling. Therein, Commissioner
Jeske ordered, among other things, (1) that Kaplan be granted a deduction in his
income for the cost of certain insurance premiums, (2) that both Kohls and
Kaplan were entitled to be reimbursed for the cost of certain unpaid health care
2At the time of the 2010 modification, Kohls had returned to work as an elementary
school nurse and Kaplan had resigned from the Washington State Bar to work full-time in his own
company, Kaplan Real Estate Services (KRES).
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expenses for I.K. and Z.K,3 and (3) that Kohls was entitled to an award of
attorney fees and costs.4 She denied Kohls' request to be reimbursed for paying
more than her share of health insurance premiums for I.K. and Z.K.
On January 8, 2014, Commissioner Jeske entered a written "Order on
Modification of Child Support," a written "Order on Presentation," a written "Order
of Child Support," and written "Findings/Conclusions on Petition for Modification
of Child Support". In these documents, the commissioner granted Kohls' petition
for modification. In doing so, she imputed to Kaplan a monthly net income of
$34,871.85. She also ordered that, during the summer months, Kaplan would
pay an additional $300 monthly transfer payment to cover postsecondary support
for Z.K.5 Finally, she awarded attorney fees and costs to Kohls in the amount of
$29,500 in fees and $5,360.31 in costs. Kaplan was required to pay this amount
on her behalf.
Thereafter, Kohls moved for revision of Commissioner Jeske's ruling.
Kaplan moved for reconsideration and also later moved for revision. Kohls'
motion for revision was stayed pending a decision on Kaplan's motion for
reconsideration.
On May 13, Commissioner Jeske set forth a detailed written "Order on
Reconsideration." Therein, the commissioner made several changes to her initial
3Commissioner Jeske ordered that the amount of unpaid health care expenses would be
set at a later date, after Kohls and Kaplan provided the superior court with receipts setting forth
the amount that was claimed to be owed.
4 Commissioner Jeske ordered that the amount of the award would be set at a later date,
after Kohls' counsel provided the courtwith an accounting of the fees and costs.
5Commissioner Jeske ordered that this amount would be prorated ifZ.K. resided with
Kohls for more than half but less than a full month.
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order. First, she granted Kaplan a deduction in his income for the depreciation of
certain equipment and furnishings. Second, she corrected an error in the
imputation of Kaplan's income by removing the double inclusion of his rental
income.
Following reconsideration, Commissioner Jeske ordered Kohls' counsel to
prepare a revised order for later entry. Kohls' counsel thereafter drafted a
revised order that was inconsistent with Commissioner Jeske's ruling and more
favorable to his client.
After reviewing the proposed order, Kaplan moved for CR 11 sanctions to
be imposed on both Kohls and her counsel. Commissioner Jeske granted the
request.
On June 16, Commissioner Jeske entered a written "Final Order of Child
Support Following Reconsideration." Therein, she confirmed herwritten "Order
on Reconsideration." She imputed to Kaplan a monthly net income of
$31,713.72.
On August 8, the Honorable Sean O'Donnell heard argument on the
competing motions for revision. After hearing argument, he deferred ruling.
On August 11, Kohls filed a "Post-Hearing Memorandum Regarding
Motions for Revision." The next day, Kaplan moved for the court to strike Kohls'
posthearing memorandum and impose CR 11 sanctions on both Kohls and her
counsel. Judge O'Donnell granted each request.
On September 19, Judge O'Donnell filed a written "Order on Revision."
Therein, Judge O'Donnell concluded that modification ofthe child support order
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was not warranted because Kohls had not met her burden of demonstrating
either a sufficient change in circumstances or a severe economic hardship.
Instead, the judge converted Kohls' petition for modification to a motion for
adjustment. Judge O'Donnell then adjusted the child support order. In doing so,
he adopted Commissioner Jeske's calculation of both Kohls' and Kaplan's
incomes,6 her "ruling and analysis with respectto attorneys' fees and costs," and
her "ruling and analysis with respect to sanctions imposed against" Kohls and her
attorney.
Thereafter, Kohls moved for Judge O'Donnell to revise or clarify his "Order
on Revision." Judge O'Donnell granted Kohls' request, both revising and
clarifying the order. Judge O'Donnell clarified his order by correcting a
scrivener's error pertaining to the imputation of Kaplan's income. He revised his
order by granting Kohls an additional $8,750 in attorney fees, payable by Kaplan.
On January 20, 2015, Judge O'Donnell entered a written "Order re
Adjustment of Child Support." Therein, the judge denied Kohls' petition for
modification, instead ruling that an adjustment was warranted. That same day,
he entered a written "Adjusted Order of Child Support on Revision." Therein,
Judge O'Donnell ordered, among other things, that Kaplan was granted a 22.2
percent downward deviation from the standard support schedule in his monthly
child support obligation for I.K.
6Judge O'Donnell's calculation of Kohls' income departed from Commissioner Jeske's
calculation in one respect. He permitted Kohls to include what he deemed to be"deductions for
her mandatory pension plan payments and her voluntary retirement contributions," which were
previously not included.
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On February 19, after Kaplan paid the amount of the attorney fee award,
Kohls' counsel filed a partial satisfaction of judgment with regard to the award.
On April 3, Kaplan moved for the superior court to strike the February 19
partial satisfaction of judgment, enter a full satisfaction of judgment, and impose
CR 11 sanctions on both Kohls and her counsel. Judge O'Donnell struck the
partial satisfaction of judgment, ordered the entry of a full satisfaction of
judgment, but denied Kaplan's request for CR 11 sanctions.
Kohls and Kaplan both now appeal.
II
Kohls first contends that the superior court erred by denying her petition
for modification of the child support order. This is so, she asserts, both because
she met her burden of demonstrating that a substantial change in circumstances
had occurred since the 2010 order was entered and because she met her burden
of demonstrating that the 2010 orderworks a severe economic hardship on both
her and I.K. We disagree.
"We review child support modifications and adjustments for abuse of
discretion." In re Marriage of Avvad, 110 Wn. App. 462, 467, 38 P.3d 1033
(2002). In doing so, "[generally, we review the superior court's ruling, not the
commissioner's.'' State ex rel. J.V.G. v. Van Guilder, 137 Wn. App. 417, 423, 154
P.3d 243 (2007). But, "[t]he superior court may adopt the commissioner's
findings of fact as its own." In re Dependency of B.S.S., 56 Wn. App. 169, 171,
782 P.2d 1100 (1989). We will not substitute our judgment for that ofthe trial
court unless the trial court's decision rests on unreasonable or untenable
No. 73119-0-1 (consol. with No. 73492-0-l)/7
grounds. In re Marriage of Leslie. 90 Wn. App. 796, 802-03, 954 P.2d 330
(1998). "A trial court does not abuse its discretion where the record shows that it
considered all the relevant factors and the child support award is not
unreasonable under the circumstances." Van Guilder, 137 Wn. App. at 423.
"Findings of fact supported by substantial evidence, i.e., evidence sufficient to
persuade a rational person of the truth of the premise, will not be disturbed on
appeal." Van Guilder. 137Wn. App. at 423.
RCW 26.09.170 sets forth two methods for requesting a change in a child
support order from the superior court: a petition for modification or a motion for
adjustment. RCW 26.09.170(5)(a), (6)(a), (7)(a).
A petition for modification commences with filing a petition and worksheets
and serving those documents on the parties. RCW 26.09.175(1), (2)(a). After
responsive pleadings have been filed, any party may schedule the matter for a
hearing. RCW 26.09.175(5). Unless otherwise agreed or permitted by the court,
the court confines its review to the affidavits, petition, answer, and worksheets.
RCW 26.09.175(6).
Upon reviewing these documents, the court may order modification of the
child support order "based upon a showing ofsubstantially changed
circumstances at any time." RCW 26.09.170(5)(a). Asubstantial change of
circumstances must be something that was not contemplated at the time that the
last child support order was entered. In re Marriage of Moore, 49 Wn. App. 863,
865, 746 P.2d 844 (1987). This is so because the court views a petition as
"'significant in nature and anticipates making substantial changes and/or
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additions to the original order of support.'" In re Marriage of Morris, 176 Wn.
App. 893, 901, 309 P.3d 767 (2013) (Quoting In re Marriage of Scanlon, 109 Wn.
App. 167, 173, 34 P.3d 877 (2001)). In the absence of a substantial change in
circumstances, a modification may be ordered if one or more years has passed
since the last child support order was entered and "the order in practice works a
severe economic hardship on either party or the child." RCW 26.09.170(6)(a).
An adjustment, in contrast, "is a streamlined process that is commenced
by filing a motion for a hearing and is used to conform the existing provisions of a
child support order to the parties' current circumstances." Morris, 176 Wn. App.
at 901 (citing Scanlon, 109 Wn. App. at 173). It may be ordered in certain, listed
situations, which do not require demonstrating a substantial change in
circumstances, RCW 26.09.170(7)(a), such as "[c]hanges in the income ofthe
parents" if 24 months have passed since the date of entry of the last order,
adjustment, or modification, whichever is later. RCW 26.09.170(7)(a)(i).
A
Kohls first argues that the "near quadrupling" of Kaplan's income between
2010 and 2013 constituted a substantial change in circumstances. In doing so,
she challenges the superior court's finding that "the disparity between Mr.
Kaplan's and Ms. Kohls' earnings has remained constant and was predicted to
do so at the time the 2010 order was entered," contending that this finding is not
supported by substantial evidence. The record indicates otherwise.
"[W]hether a change in circumstances is substantial depends on its effect
on a parent's monthly net income." In re Marriage of Bucklin, 70 Wn. App. 837,
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840, 855 P.2d 1197 (1993). This is "a decision that rests almost exclusively with
the trial court." Hume v. Hume, 74 Wn.2d 319, 320, 444 P.2d 804 (1968). A
change in income constitutes a substantial change in circumstances if the
change was one that was not contemplated at the time that the last child support
order was entered. Scanlon, 109 Wn. App. at 173. But mere passage of time or
routine changes in income are insufficient to warrant relief. Scanlon, 109Wn.
App. at 173-74 (a substantial change of circumstances may existwhere a
mother's income unexpectedly increased to more than $270,000 per year, her
assets exceeded $5 million, her gross annual household income was more than
$800,000, and she had remarried since the last child support order was entered);
cf. In re Marriage of Arvev, 77 Wn. App. 817, 821-22, 894 P.2d 1346 (1995)
($962 decrease in monthly net income insufficient to warrant relief).
Judge O'Donnell concluded that Kohls did not meet her burden of
demonstrating that a substantial change in circumstances had occurred since the
2010 order had been entered.
[T]he Court has compared Ms. Kohls' financial declarations from
2010 and 2014 as well as the child support worksheets from both of
those years.w As identified by the parties, a number of things have
remained consistent. The first is that Ms. [Kohls]' income has
remained largely the same (her net monthly income is slightly less
in 2014 compared to 2010).[8] Her expenses have been significantly
reduced, based in part on her refinancing her home.[9] But other
7The record reflects that the financial declarations are actually comparisons for the years
2010 and 2013. We find this variance of no significance.
8In an August 2010 financial declaration, Kohls attested that her net monthly income was
$2,523. In September 2010, she attested that her net monthly income was $2,021. In June
2013 she attested that her net monthly income was $2,293.
9In the August 2010 financial declaration, Kohls attested that her total monthly expenses
were $6,335. She stated that they were $7,832 in September 2010, and that they were $5,356 in
June 2013.
No. 73119-0-1 (consol. with No. 73492-0-l)/10
expenses have been reduced as well, including costs for the
children ($700 in 2014 vs. $800 in 2010), transportation ($415 in
2010 vs. $390 in 2014) and personal expenses ($500 in 2010 vs.
$205 in 2014). Some expense[s] have increased marginally, e.g.,
health care and utilities.[10] Food expenses have, perhaps, jumped
the most significantly ($900 in 2010 to $1200 in 2014), but in 2014
Ms. [Kohls] has accounted for three people in the residence when,
in fact, her oldest son is at college for most of the year.
The Court cannot find that an increase in expenses for [I.K.]
is a sufficient basis to support a modification. Neither can the Court
find that a substantial change in circumstances results from Mr.
Kaplan now not paying for his son's private school tuition, given
that the parties and the Court which entered the order would surely
had contemplated [Z.K.] graduating from high school. While this
may free additional funds for Mr. Kaplan, that would have been
apparent back in 2010.
With respect to the credit for health care premiums, the
parties currently agree that the premiums are $118.00 per child.
However, this change in and of itself is not a substantial one as
contemplated either under the statute or case law.
The final basis for this modification would be Mr. Kaplan's
increased income since 2010. In 2005, Mr. Kaplan's gross monthly
income was $29,370.00. In 2010, the Court imputed his gross
monthly income at $21,779.00. Commissioner Jeske found that Mr.
Kaplan's current gross monthly income is $32,129.72J11] Setting
aside momentarily [ ] how the Courts arrived at these income
calculations, the disparity between Mr. Kaplan's and Ms. Kohls'
earnings has remained constant and was predicted to do so at the
time the 2010 order was entered.1121 The increase, however, is not
akin to the changes found, for example, in the Scanloncase, noted
by both parties in their briefing. It does not rise to a substantial
change in circumstances.
10 The financial declarations indicate that Kohls attested that her health care expenses
were $200 in August 2010, $250 in September 2010, and $220 in June 2013. The financial
declarations also indicate that Kohls attested that her utility expenses were $600 in August 2010,
$612 in September 2010, and $630 in June 2013.
11 The record indicates that this number was later corrected to reflect that "Mr. Kaplan's
net monthly income was $31,713.72." Accordingly, we consider it nothing more than a
scrivener's error.
12 In 2010, the courtfound Kohls' actual monthly net income was $2,444 and imputed
Kaplan's monthly net income at $8,137. In 2015, the court found that Kohls' actual monthly net
income was $1,812.53 and imputed Kaplan's monthly net income at $31,713.72.
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Based on Judge O'Donnell's explanation of his ruling, it is evident that he
concluded that the relatively small variances in both Kohls' income and expenses
between 2010 and 2013, when coupled with the fact that Kohls' and Kaplan's
income had historically been disparate, evidenced that a substantial change in
circumstances had not occurred. Judge O'Donnell was in the best position to
make this determination. He did so thoroughly, thoughtfully, and based on the
substantial evidence in the record before him. There was no error.
B
Kohls next challenges Judge O'Donnell's factual finding (and his ultimate
conclusion) that the 2010 order of child support did not work a severe economic
hardship on either Kohls or I.K. because Kohls' economic situation was
contemplated at the time that the 2010 order was entered. Kohls contends that
this finding is not supported by substantial evidence. Again, the record indicates
otherwise.
The existence of a severe economic hardship is a factual determination
that is within the discretion of the trial judge. See In re Marriage of Schumacher,
100 Wn. App. 208, 211, 997 P.2d 399 (2000). When making this determination,
the court recognizes that there is no formal legal test for a severe economic
hardship because none could adequately encompass the wide range of factual
situations that might arise. Rather, the court looks to the actual effect of a child
support order. Schumacher, 100 Wn. App. at 212 (finding that an "unwieldy and
unpredictable" method for calculating a parent's child support obligation created
a severe economic hardship where it "denied [the parent] an opportunity to
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budget their child's financial needs"). The party seeking the modification bears
the burden of proving that a severe economic hardship exists. See, e.g.. Arvev.
77 Wn. App. at 820-22; see also RCW 26.09.170(6)(a).
On revision, Judge O'Donnell concluded that the 2010 child support order
did not work a severe economic hardship on either Kohls or I.K.
With respect to the current order working a "severe
economic hardship," Ms. Kohls provides limited information on this
topic. Her overall expenses have actually decreased since the
2010 order. She alleges that because her son has moved out of
the house and support payments for him have stopped, her
economic situation is bleak. But that surely was contemplated at
the time the 2010 order was entered. Moreover, since he is at
college (paid for by a scholarship/trust put into place by his
grandparents) her expenses for [Z.K.] are reduced.
Ms. Kohls similarly states in her responsive pleadings that
[I.K.'s] increased residential time with her increases her expenses.
Her financial declarations from 2010 and 2014 contradict this
assertion as her overall expenses have decreased.
Ms. [Kohls] finally claims that the current order is "cheating
our daughter out ofthe opportunities she would have otherwise
enjoyed and can still enjoy, including the opportunities to take the
guitar and voice lessons she so desires and to participate in ski bus
trips at her school and attend summer camps."
Here, Ms. Kohls points to the disparity in her income versus
her monthly obligations. But these circumstances were more acute
in 2010 than it is in 2014. The assertions regarding an inability for
their daughter to attend things like voice lessons and summer camp
do not rise to a severe economic hardship. On this ground, the
evidence does not support her claim of economic hardship.
Based on Judge O'Donnell's explanation of his ruling, there are three
identifiable bases for his conclusion that the 2010 child support order did not
work a severe economic hardship on either Kohls or I.K. First, Judge O'Donnell
found that Kohls' economic situation in 2015 was contemplated at the time that
the 2010 order was entered given that, at that time, child support payments for
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Z.K. were envisioned to end as a natural and probable consequence of his
reaching the age of majority. Second, Judge O'Donnell found that Kohls'
assertions regarding the disparity in her monthly income and expenses (when the
record reflected the contrary), the ending of the child support payments for Z.K.,
and the fact that I.K. was hampered in participating in various extra-curricular
activities were all insufficient grounds upon which to find a severe economic
hardship. (Indeed, Kohls' assertion ofa severe economic hardship is based on
her mistaken beliefthat the child support payments are intended for her benefit,
not the benefit of her children). Third, it is evident that Judge O'Donnell
concluded that it was not proved that I.K.'s basic needs were not being met by
the 2010 order. Thus, he found that a severe economic hardship did not exist.
Judge O'Donnell was in the best position to make this determination. He did so
thoroughly, thoughtfully, and based on the substantial evidence in the record
before him. There was no error.13
Ill
Kohls next contends that the superior court erred by declining to address
whether child support should be set above the maximum advisory level. We
disagree.
First, Kohls asserted to the superior court that it should utilize
"extrapolation" to set Kaplan's child support obligation above the maximum
13 In her appellate brief, Kohls also contends that the superior court abused its discretion
by converting her petition for modification to a motion for adjustment. We disagree. RCW
26.09.170(7)(a)(i) permitted the trial court to make an adjustment based on "[cjhanges in the
income of the parents." Thus, there was no error.
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advisory level. The superior court was not permitted to do so. See In re
Marriage of McCausland. 159 Wn.2d 607, 617, 152 P.3d 1013 (2007). Second,
Kohls asserted to the superior court, and persists in asserting on appeal, that the
child support should be set above the maximum advisory level given the disparity
between Kohls' and Kaplan's financial resources. In such a circumstance, Kohls
does not establish a claim for appellate relief. See Scanlon. 109 Wn. App. at 180
("Child support is designed to meet the needs of the children at issue; its
sufficiency is not measured by whether it financially strains the obligor parent.").
IV
Kohls next contends that the superior court erred by not adopting
Commissioner Jeske's ruling regarding Z.K.'s postsecondary support. Given that
Judge O'Donnell properly converted Kohls' petition for modification to a motion
for adjustment, Kohls does not establish a claim for appellate relief. See In re
Marriage of Sprute, 186 Wn. App. 342, 349, 344 P.3d 730 (2015); see also
Morris, 176 Wn. App. at 902.14
V
Kohls next contends that the superior court erred in calculating Kaplan's
income. This is so, she asserts, both because the superior court improperly
permitted Kaplan to take a deduction for the depreciation of certain equipment
and furniture and because the superior court improperly permitted Kaplan to take
14 Kohls also contends that the superior court's ruling should have addressed
postsecondary support for I.K. The request for postsecondary support for I.K., however, is
precluded for the same reasons.
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a deduction for the cost of certain insurance premiums. Each contention is
unavailing.
In Washington, child support obligations are calculated according to the
statutory support schedule. See RCW 26.19.020. The schedule was enacted in
order "to insure that child support orders are adequate to meet a child's basic
needs and to provide additional child support commensurate with the parents'
income, resources, and standard of living." RCW 26.19.001; Leslie. 90 Wn. App.
at 803. In enacting the schedule, the legislature also "intended to equitably
apportion the child support obligation between both parents." Avvad. 110 Wn.
App. at 467; RCW 26.19.001. The schedule sets forth support obligations for
each child based on the combined monthly net income of both parents, the
number of children in the family, and the age ofeach child. See RCW 26.19.020.
"When assessing the income and resources ofeach household, the court
must impute income to a parent when that parent is voluntarily unemployed or
voluntarily underemployed The court determines whether to impute income
by evaluating the parent's work history, education, health, age and any other
relevant factor." In re Marriage of Pollard, 99 Wn. App. 48, 52-53, 991 P.2d 1201
(2000); see also RCW 26.19.071(6). In doing so, the court makes an equitable
determination. See Marian F. Dobbs, Determining Child &Spousal Support,
§ 4.37, at 884-91 (2015) ("[S]tates recognize that proceedings governing the
dissolution of marriage, support, and custody are equitable in nature and thus
governed by basic rules of fairness When a court determines that a parent
is voluntarily impoverished, it may consider any admissible evidence to ascertain
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potential income. Potential income is not the type of fact that is capable of being
verified through documentation or otherwise." (footnote omitted)); see also In re
Marriage of Gainev. 89 Wn. App. 269, 275, 948 P.2d 865 (1997) (no abuse of
discretion where the trial court estimated a father's income "using a reasonable
method not dependent on the information [the father] was failing to produce");
see also, e.g.. In re Marriage of Clark. 13 Wn. App. 805, 810, 538 P.2d 145
(1975) ("The key to an equitable distribution of property is not mathematical
preciseness, but fairness.").
In the "Order on Reconsideration," Commissioner Jeske set forth how she
imputed Kaplan's income.
Several errors are claimed in the request for reconsideration. The
Court denies the request on reconsideration to alter the
depreciation figures and credit as to the credit related to loan
payments. . . . However[,] the Court will grant the request as to the
depreciation related to equipment and furnishings ($10,397). While
the record is less than specific as to this disputed deduction
resulting in an out of pocket loss, there is sufficient evidence in the
record that this smaller amount relates to an actual expenditure! ]
associated with Mr. Kaplan's interest in the LLC's Mr. Kaplan's
submissions and presentation at trial did not clearly trace,
document and explain his actual out of pocket expenses in the form
of depreciation rather than his paper losses. It is unclear which
amounts (depreciation) were attributable to his share of each
individual property and by what amount it reduced his personal
income (e.g. from his proportionate share of each LLC). While the
court did not doubt at trial that some portion of these expenses
were legitimate, he did not clearly demonstrate and adequately
separate these out from other losses. He did not meet his burden
of proof as to the other depreciation expenditures. .. .
The Court grants the request to correct an error as to the
double inclusion of his rental income calculation. The income figure
is a net figure, imputed for purposes of support. Clearly it is not
consistent with his reported income for purposes of his income tax
return. Nor does the Court have confidence in Mr. Kaplan's
personal tax returns as a basis for determination of income for
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purposes of child support. The Court imputed income as a net
amount and substantial evidence supports this amount.
. . .Despite providing copious financial records, neither party
presented a clear, credible and accurate presentation of Mr.
Kaplan's income (gross or net), legitimate deductions for child
support purposes vs. business or tax purposes (from KRES or any
other business interest), or a financial declaration that comported
with LR 10t15i and offered a complete understanding of his income,
assets and debts (personal vs. business). Mr. Kaplan's real income
is unknown to this Court both at trial and on reconsideration due to
the complexity of his business interests and his own lack of
adequate explanation and financial documentation to this Court.
Despite his regular employment of both a certified public
accountant and a bookkeeper, his presentation at trial appeared to
be focused more on the lack of credibility of [Kohls] than on a
credible explanation of his income, supported by financial evidence.
His significant and consistent use of legitimate business deductions
from a variety of sources to reduce personal expenses or fund
significant personal expenses (private school tuition, use ofa
vehicle, travel, entertainment and the like) through his business is
amply supported in the record. The Court thus elected to impute
income to him absent his presenting the Court with adequate
explanation supported by financial evidence.
The Court considered both parents' total household
resources, incomes and ability to maximize deductions along with
their reported assets and liabilities. Mr. Kaplan's lifestyle includes
frequent dining at expensive establishments including Wild Ginger,
El Gaucho, Palominos, Daniel's Broiler and Dukes. His household
expenses include a gardener, maid and massages. His travel
habits, with or without his children, reflect recent trips to New York,
South America, Palm Springs, and the like. His more recent annual
credit card expenditures for personal expenses ($80,000 + . . .) all
reflect a wealthy lifestyle [T]his court was not able to determine
his actual real income so it imputed it on the basis of his expenses,
lifestyle and standard of living. Aprior declaration by Mr. Kaplan
self-reported a total monthly net income of $7[,]112 and listed total
monthly expenses of $12,176. How he paid the private school
expenses, credit card personal expenses, child support and his
household expenses and lifestyle on this amount was never
15 Commissioner Jeske was referencing Local Family Law Rule (LFLR) 10. LFLR 10
governs "Financial Provisions." This rule sets forth the circumstances in which financial
information is required, the type of supporting documentation that may be filed with a financial
declaration, and the type ofdocuments thatare to be filed under seal.
17
No. 73119-0-1 (consol. with No. 73492-0-1)718
explained. Little to no explanation was provided as to the
separation or inclusion of business expenses paid by KRES which
operated to minimize his personal expenses or how he managed to
fund his lifestyle solely based on the net income he reported on
either his financial declaration or his tax return. . . .
The cumulative record here reflects that Mr. Kaplan's
expenditures, lifestyle, payment of business and personal
expenses, legitimate tax deductions and capital accretion are
simply not reflective of his income as reported on his LR 10, bank
statements or past personal tax returns. There is no doubt that the
evidence he adduced at trial through his CPA and bookkeeper
presented the Court with his legitimate tax deductions and some
personal expenses taken as distributions. But he nevertheless
failed to explain that where his tax returns, bank statements and
self-reported income are largely and dramatically inconsistentwith
his actual lifestyle, RCW 26.09 et seq. does not require the Court to
find this evidence controlling as to an imputation of his income and
determination of his resources.
On revision, Judge O'Donnell adopted Commissioner Jeske's imputation
of Kaplan's income.
As a threshold matter, the Court notes that Commissioner
Jeske[ ] conducted a careful analysis, both oral and written,
concerning the degree of difficulty in ascertaining Mr. Kaplan's true
income. Having read Mr. Kaplan's responses to questions posed to
him during his deposition, it is difficult to reach a different
conclusion.
In her oral ruling on November 22, 2013, Commissioner
Jeske noted that each party had an obligation to provide a holistic
picture oftheir respective assets. Given this statutory obligation,
the Commissioner was mystified by Kaplan's lack of clarity and
level of obfuscation. Commissioner Jeske found it reasonable to
assume that "if a party controls an LLC, has a CPA, has a
bookkeeper, and has a juris doctorate and the level of history of
expertise in this area of management of properties, he should be
able to explain to a judicial officer his legitimate business income
and his legitimate expenses and parse those out in a clear record
from personal [expenses]. . ." Oral Ruling ofCommissioner Jeske
15.15-22
This Court agrees.
18
No. 73119-0-1 (consol. with No. 73492-0-l)/19
The Commissioner also found it obvious that Mr. Kaplan's
business and personal expenses were comingled and that Mr.
Kaplan's self-reported income was inaccurate, as shown by his
high standard of living and lack of debt.
Accordingly, to calculate Mr. Kaplan's monthly child support
transfer payment, the Commissioner added several of Mr. Kaplan's
untraceable expenditures to his reported income. This resulted in
an imputed monthly income of $31,713.72, and a $1,712.84
monthly transfer payment for [I.K.].
For purposes of determining his gross monthly income, this
Court finds that Mr. Kaplan is voluntarily under-employed. Indeed,
Mr. Kaplan's claimed income is divorced from the reality of monies
(or personal benefits) he is actually receiving each month, however
he may wish to characterize these expended funds. The Court
therefore imputes gross monthly income to him in the amount of
$32,129.72J16]
This amount takes into consideration Mr. Kaplan's standard
of living, his lack of debt, and the expenditures from which he
personally benefitted as a result of payments by KRES and which
are difficult, if not impossible, to untangle from his wholly owned
business.
Here, Commissioner Jeske was provided with declarations from both
Marianne Pangallo, Kaplan's Certified Public Accountant, and Richard Sobie,
Kaplan's bookkeeper, in order to assist in calculating his income. Pangallo
attested that Kaplan's income should include deductions for the cost of certain
insurance premiums and for the depreciation ofvarious equipment and
furnishings. When imputing Kaplan's income, Commissioner Jeske chose to
credit Pangallo's testimony by granting Kaplan both of these deductions. On
revision, Judge O'Donnell agreed with Commissioner Jeske's calculation and,
thus, adopted her imputation of Kaplan's income. On appeal, given that
imputation of income is an equitable determination, not an arithmetically exact
16 Again, the record indicates that the trial court subsequently corrected this to reflect that
"Mr. Kaplan's net monthly incomewas $31,713.72."
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determination, we look to the final imputed figure, instead of its component parts,
to determine ifthe imputed amount is within the range of the evidence presented.
It is. The trial court did not abuse its discretion in making this equitable
determination.
VI
Kohls next contends that the superior court erred by granting Kaplan a
deviation from the standard child support obligation. This is so, she asserts, both
because Judge O'Donnell erred by stating that the 22.2 percent downward
deviation ordered in 2010 was the "the law of the case" in 2015, and because the
22.2 percent downward deviation was not supported by substantial evidence.
While Kohls is correct that Judge O'Donnell misspoke by stating that such
deviation was the "law of the case," there is no error because the deviation is
supported by substantial evidence.
A deviation is "a child support amount that differs from the standard
calculation." RCW 26.19.011(4). The trial court "has discretion to decide the
extent of any deviation." In re Marriage of Trichak, 72 Wn. App. 21, 23, 863 P.2d
585 (1993).
In the "Adjusted Order of Child Support On Revision," Judge O'Donnell set
forth the reasons for granting Kaplan a downward deviation from the standard
child support schedule.
Per the Order of Child Support entered herein on December 17,
2010, the father was required to pay 100% of both children's tuition
at University Prep and accordingly was granted a 22.2% downward
deviation from the standard transfer payment. (The standard
calculation of $1,928 for two children was reduced to $1,500, a
-20-
No. 73119-0-1 (consol. with No. 73492-0-l)/21
difference of $428 or 22%). As the law of the case, this 22.2%
downward deviation is required to be applied to the present
standard calculation of $1,738.05 for one child. The present child
support transfer payment should therefore be $1,352. ($1,738.05 X
22.2% = $386; $1,738 minus $386 = $1,352).
A transfer payment of $1,352 per month, along with a payment of
100% of the child's private school tuition, provides for the child's
needs.
The father is ordered to pay the full school tuition for the child. This
provision may be reviewed if tuition increases by $1,250 or more
over the 2010 tuition of $26,000 per child.
Here, Judge O'Donnell granted an adjustment. The propriety of a
deviation was a legal issue previously decided. Thus, it was so that a deviation
in some amount might be considered to be required by the law of the case
doctrine. However, because an adjustment took place, the judge retained the
authority to adjust the amount of the deviation. Thus, Judge O'Donnell misspoke
by stating that the 22.2 percent downward deviation ordered in 2010 was the "law
of the case." However, the 22.2 percent deviation is within the range of the
evidence presented. The court was free to adjust it or not, as it saw equitable.
No prejudicial error is established. No appellate relief is warranted.
VII
Kohls next contends that the superior court erred by not ordering Kaplan
to reimburse Kohls for paying more than her share of the cost of health insurance
premiums for I.K. and Z.K. Kohls cites no authority to support her position that
21
No. 73119-0-1 (consol. with No. 73492-0-l)/22
Judge O'Donnell was required to address this issue in an adjustment proceeding.
He declined to do so. We will not disturb this decision on appeal.17
VIII
Kohls next contends that the superior court erred by imposing CR 11
sanctions on both her and her counsel based on findings that Kohls acted
improperly by presenting for entry an order that did not fully conform to the
commissioner's oral ruling and by filing an unpermitted memorandum. We
disagree.
"The purpose of [CR 11 ] is to deter baseless filings and curb abuses ofthe
judicial system." Skimming v. Boxer, 119 Wn. App. 748, 754, 82 P.3d 707 (2004)
(citing Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994)). CR 11 provides
that the trial court may impose sanctions against a party or his attorney if a
pleading, motion, or legal memorandum is submitted that is (1) not well grounded
in fact, (2) not well grounded in law, (3) filed for an improper purpose, and (4)
when viewed objectively, the culpable party or attorney failed to make a
reasonable inquiry into the factual or legal basis for the action. Madden v. Foley,
83 Wn. App. 385, 389, 922 P.2d 1364 (1996). We apply an objective standard to
determine whether a reasonable person in like circumstances could believe his
actions to be factually and legally justified. Brvant v. Joseph Tree. Inc., 119
17 In her appellate brief, Kohls also contends that the superior court erred by refusing to
order Kaplan to reimburse her for the cost of certain unpaid health care expenses for I.K. and
Z.K. The parties agree that a settlement has been reached on this issue. Thus, the issue is
moot.
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No. 73119-0-1 (consol. with No. 73492-0-l)/23
Wn.2d 210, 220, 829 P.2d 1099 (1992). "The burden is on the movant to justify
the request for sanctions." Biggs, 124 Wn.2d at 202.
A
Kohls first asserts that the imposition of CR 11 sanctions on both her and
her attorney for presenting the superior court with an order that did not fully
conform with the commissioner's ruling was improper. Specifically, she avers
that the only change on the proposed order which varied from the
commissioner's ruling was the inclusion of Kohls' monthly pension plan payments
(which she claims the commissioner was statutorily mandated to include when
calculating her income) and voluntary retirement contributions. Her argument
does not persuade us.
The proposed order contained two crucial modifications that did not
conform to the commissioner's ruling. First, Kohls' attorney included an
additional $900 in child support to be paid by Kaplan that the commissioner did
not order. Second, Kohls' attorney drafted a provision to state that Kaplan would
pay 100 percent of college preparatory fees for I.K. when the commissioner had,
in fact, ordered that Kaplan and Kohls would each pay a pro rata share ofthese
fees. Thus, Commissioner Jeske found that these revisions were improper
insofar as they "exceeded the scope of presentation." Her ruling was correct. No
abuse of discretion is established.
B
Kohls next asserts that the imposition of CR 11 sanctions on both her and
her attorney for filing an unpermitted memorandum was improper. Specifically,
-23-
No. 73119-0-1 (consol. with No. 73492-0-l)/24
she avers both that the trial judge applied the wrong subsection of a local civil
rule when he ruled on the request and that he did not make the required finding
that her memorandum was either not grounded in fact, not grounded in law, filed
for an improper purpose, or that her attorney failed to make a reasonable inquiry
into the factual or legal basis of the action. Each contention is unavailing.
The record indicates that Judge O'Donnell applied the appropriate
subsection ofthe applicable local civil rule and that he made the required factual
finding prior to imposing sanctions. In fact, an examination of his ruling indicates
that he concluded that Kohls' memorandum was improper for two reasons. First,
even had the pleading addressed permissible issues, Judge O'Donnell found that
the memorandum was improper insofar as it was "late-filed and not permitted by
any court rule or statutory authority." Second, the contents of the memorandum
amounted to a reiteration by Kohls of the same arguments that she had asserted
at the initial trial by affidavit and throughout the hearing on revision. Thus, Judge
O'Donnell found that the memorandum was improper because "despite this
court's admonishmentto counsel to address only this motion for CR 11
sanctions, counsel decided to relitigate Commissioner Jeske's prior ruling on
separate sanctions." In this regard, the memorandum did not appropriately
respond to the court's request or provide the court with any new information.
Judge O'Donnell's ruling was correct. No abuse of discretion is established.
IX
Kohls next contends that the superior court abused its discretion by
ordering interest to run on Commissioner Jeske's award of sanctions, but not on
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Kohls' award of attorney fees and costs, from the dates of those orders. We
disagree.
Washington law has historically treated prejudgment interest
as a matter of right when a claim is liquidated. A liquidated claim is
one "'where the evidence furnishes data which, if believed, makes it
possible to compute the amount with exactness, without reliance on
opinion or discretion.'" If the fact finder must exercise discretion to
determine the amount of damages, the claim is unliquidated. The
fact that a dispute exists over all or part of a claim does not make
the claim unliquidated.
An award of prejudgment interest is based on the principle
that when a defendant retains money that is owed to another, he
should be charged interest upon it. Nevertheless, a defendant is
not required to pay prejudgment interest in cases where it is not
possible to ascertain the amount owed to the plaintiff until the court
has exercised its discretion in determining that amount. The
amount owed must be ascertainable without the aid of a
discretionary court ruling concerning the amount due before the
obligor can be liable for prejudgment interest.
Dautel v. Heritage Home Ctr., Inc., 89 Wn. App. 148, 153-54, 948 P.2d 397
(1997) (footnotes omitted).
By seeking revision of Commissioner Jeske's ruling, Kohls nullified the
commissioner's award of attorney fees and costs. In this regard, the award was
neither final nor liquidated. There was no amount upon which interest could
accrue until an amount of fees and costs was awarded on revision.
The CR 11 sanctions, on the other hand, were awarded as a penalty. The
at-fault party should not be rewarded for resisting the imposition ofthe penalty.
Not granting an award of prejudgment interest on the CR 11 sanctions would
wrongly reward the at-fault party for seeking revision. An at-fault party should not
benefit by delaying the sanction. Consistent with the principles underlying CR
25
No. 73119-0-1 (consol. with No. 73492-0-l)/26
11, the superior court acted within its discretion by imposing prejudgment interest
on the sanction amount, retroactive to the date of the commissioner's order.
There was no error.
X
Kohls next contends that the superior court erred by not awarding her the
full amount of the attorney fees and costs that she requested pursuant to RCW
26.09.140.18 In doing so, she challenges Judge O'Donnell's finding on
reconsideration that "a 25 hour investment of attorney time is reasonable
considering the fact that much ofthe research and briefing had previously been
conducted," contending that this finding is not supported by substantial evidence.
We disagree.
Here, Kohls' argument that the superior court's award of attorney fees and
costs was improper is based on her assertion that "the factual and legal
questions involved were difficult and complex," that "[t]he time necessary for
preparation and presentation of the case was substantial," and that "[t]he amount
and character ofthe property involved was substantial." Contrary to her present
intimation, however, the issues in this case amounted to simple mathematical
adjustments in the child support order. The issue on reconsideration was the
same issue that was presented to the trial court during the initial trial by affidavit.
Thus, both the superior court's finding and its award of attorney fees and costs is
supported by substantial evidence. See Dillev v. Dillev, 4 Wn. App. 270, 272,
18 In total, Kohls' award of attorney fees and costs was $43,610.31.
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No. 73119-0-1 (consol. with No. 73492-0-l)/27
481 P.2d 584 (1971) (award of attorney fees affirmed when supported by
substantial evidence). There was no error.
XI
In a cross appeal, Kaplan contends that the superior court erred by not
imposing CR 11 sanctions on both Kohls and her counsel for filing a partial
satisfaction of judgment once Kaplan paid the amount of attorney fees and costs
awarded. We disagree.
In support of his request for CR 11 sanctions, Kaplan argued that by filing
a partial satisfaction of judgment on the award of attorney fees and costs, Kohls
and her attorney "put [him] in the position of having to either pay interest that
without question was not owed, or pay a far greater sum in attorney's fees and
costs necessitated by having to file a motion to defeat their claims. Such conduct
is pure blackmail and bad faith. It violates Civil Rule 11."
Both the commissioner and the superior court judge were well acquainted
with the jurisprudence of CR 11 by the time that they finishing dealing with the
parties herein. We are confident that the judge was informed on the law when he
denied the request at issue. No abuse of discretion has been established.
XII
Each party requests an award of attorney fees and costs (payable by the
opposing party) on appeal.
"A party to a dissolution is not entitled to attorney fees as a matter of
right." In re Marriage of Terry, 79 Wn. App. 866, 871, 905 P.2d 935 (1995). Our
-27
No. 73119-0-1 (consol. with No. 73492-0-1)728
decision can be guided by our view of "the merit of the issues raised on appeal."
In re Marriage of Davison, 112 Wn. App. 251, 260, 48 P.3d 358 (2002).
Kohls seeks fees based on the law of "need and ability to pay." Kaplan
seeks fees based on the law of frivolous appeals.
We exercise our discretion and deny both requests. The parties shall bear
their own fees and costs on appeal.
Affirmed.
^ ^ -/
28
In Re The Marriage Of: Kenneth B. Kaplan, Res/cross-app. And Sheila Kohls, App/cross-res.
Combined Opinion