IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
In the Matter of the Marriage of: ) DIVISION ONE
)
MICHELLE ROHTER, ) No. 75105-1-1
)
Respondent, ) UNPUBLISHED OPINION
)
and )
)
MICHAEL ROHTER, ) 0.)
CZ)
)
Appellant. ) FILED: March 6, 2017
)
DWYER, J. — Michael Rohter appeals from the trial court's child support
order and its order awarding maintenance for a period of five years to Michelle
Rohter. Because the trial court adequately considered both the parties' relative
financial circumstances and the appropriate statutory factors, he does not
demonstrate that the trial court abused its discretion. We affirm.
Michael and Michelle' married in 2001 and separated in 2014. Together
they have two children, ages 8 and 9 as of the filing of the petition for dissolution.
At the time of their separation, Michael worked as a private pilot earning
1 For ease of reference, we refer to the parties by their first names.
No. 75105-1-1/2
approximately $75,000 per year. Shortly following the separation, Michael
changed jobs and began to earn $50,000 per year. He testified that he did so in
order to have a more flexible work schedule and a better growth opportunity.
Michelle also worked as a pilot until she was injured and underwent rotator
cuff surgery in 2014. Prior to their separation, the parties agreed that Michelle
would began training to become a Montessori school teacher. She currently
earns approximately $20,000 per year and expects to earn between $35,000 and
$40,000 upon completion of her internship and securing a full-time position. As a
result of her injury, the Department of Labor and Industries has determined her to
be permanently partially disabled. Nevertheless, she plans to continue flying
part-time during the summer, earning an expected $5,376 during those three
months.
Both parties testified at trial as to their employment status, current and
expected salaries, and financial conditions. Michelle also testified regarding her
disability and how it prevents her from continuing to fly full-time. The trial court
found Michael liable for child support in the amount of $656.11 per month, and
awarded Michelle $1,000 per month in maintenance for five years. Additionally,
the trial court awarded Michelle $10,000 in attorney fees after finding that
Michael "was intransigent in his dealings in this matter." In making this
determination, the trial court noted that Michael cashed out his 401(k) account in
violation of the court's order, failed to account for the withdrawn proceeds, broke
into the family garage to take items in violation of the court's order, and took
other actions to delay and drive up the cost of litigation.
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II
A
Michael contends that the trial court erred by ordering him to make child
support payments to Michelle. This is so, he asserts, because the trial court
failed to consider whether Michelle was voluntarily underemployed and could
work more during the summer. He is wrong.
We review a trial court's order awarding child support for an abuse of
discretion. In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990).
A trial court abuses its discretion if its decision is manifestly unreasonable or
based on untenable grounds or untenable reasons. In re Marriage of Littlefield,
133 Wn.2d 39, 46-47, 940 P.2d 1362(1997).
In calculating child support payments, the trial court must determine
whether a parent is voluntarily unemployed or underemployed based on that
parent's "work history, education, health, and age, or any other relevant factors."
RCW 26.19.071(6). A parent who is "purposely underemployed to reduce the
parent's child support obligation," will have income imputed to them. In re
Marriage of Peterson, 80 Wn. App. 148, 153, 906 P.2d 1009(1995)(quoting
RCW 26.19.071(6)).
Here, the trial court concluded that neither parent was voluntarily
underemployed. In so concluding, the trial court found that both parties agreed
prior to their separation that Michelle would work as a Montessori school teacher
and fly part-time during the summer. The trial court also took into consideration
Michelle's permanent partial disability and found—based on testimony at trial by
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No. 75105-1-1/4
Michelle and her employer—that she was reasonably able to fly four times per
month for the three summer months that she was not working as a teacher.
Contrary to Michael's contentions, the trial court entertained evidence
regarding how often Michelle was able to fly during the summer and considered
that evidence in determining that she was not voluntarily underemployed.2
Michael's appellate contention involves nothing more than disagreeing with the
evidence that the trial court chose to credit. But we will not substitute our opinion
for that of the trial court in such matters. Quinn v. Cherry Lane Auto Plaza, Inc.,
153 Wn. App. 710, 717, 225 P.3d 266 (2009). Although Michael disagrees with
the trial court's factual findings, the court's determination was tenable. There
was no error.
B
Michael also contends that the trial court erred by awarding Michelle
maintenance payments of $1,000 per month for a period of five years. This is so,
he asserts, because the trial court failed to adequately consider all relevant
factors. Again, he is wrong.
We review a trial court's award of maintenance for abuse of discretion. In
re Marriage of Valente, 179 Wn. App. 817, 822, 320 P.3d 115 (2014).
Maintenance is a "flexible tool by which the parties' standard of living may be
equalized for an appropriate period of time." In re Marriage of Washburn, 101
2 The evidence before the trial court consisted of Michelle's testimony regarding her injury
and how flying more than periodically could aggravate the injury, as well as documentation from
the Department of Labor and Industries setting forth its finding that she was permanently partially
disabled and could no longer fly full-time as a result of the injury.
-4-
No. 75105-1-1/5
Wn.2d 168, 179, 677 P.2d 152(1984). The relevant factors to be considered by
a court awarding maintenance include, but are not limited to:
(1) the financial resources of the party seeking maintenance,(2)the
time needed to acquire education necessary to obtain employment,
(3) the standard of living during the marriage,(4) the duration of the
marriage,(5) the age, physical and emotional condition, and
financial obligations of the spouse seeking maintenance,(6) and
the ability of the spouse from whom maintenance is sought to meet
his or her needs and obligations while providing the other spouse
with maintenance.
Valente, 179 Wn. App. at 821-22 (citing RCW 26.09.090). "The only limitation on
amount and duration of maintenance under RCW 26.09.090 is that, in light of the
relevant factors, the award must be just." In re Marriage of Bulicek, 59 Wn. App.
630, 633, 800 P.2d 394 (1990).
Here, the trial court heard testimony from both Michelle and Michael as to
all of the relevant factors and considered those factors when awarding
maintenance. The trial court found that the parties were married for 13 years and
that Michelle was pursuing a teaching certificate after both parties agreed that
she should become a teacher. The trial court found that Michelle was
permanently partially disabled as a result of a work-related injury and that her
injury prevented her from working full-time as a pilot. Finally, the trial court found
that Michelle had a need for maintenance as her monthly income was insufficient
to meet her needs. As for Michael's financial condition, the trial court found that
he had earning potential of at least $75,000 annually and concluded that his
income was sufficient to pay maintenance.
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The record establishes that the trial court heard testimony from both
parties and considered the relevant factors pursuant to RCW 26.09.090. Thus,
there was no abuse of discretion. Accordingly, the trial court did not err.
III
Finally, Michelle requests attorney fees on appeal. The trial court
awarded costs and attorney fees to Michelle based on Michael's intransigence,
noting that he had liquidated and hidden assets in violation of a court order and
otherwise attempted to delay and drive up the cost of litigation.
"As an independent ground we may award attorney fees and costs based
on intransigence of a party, demonstrated by litigious behavior, bringing
excessive motions, or discovery abuses. If intransigence is established, we need
not consider the parties' resources." In re Marriage of Wallace, 111 Wn. App.
697, 710, 45 P.3d 1131(2002)(citations omitted). As the trial court awarded
attorney fees based on Michael's intransigence, it would be inconsistent and
would undercut the remedial effect of the original fee award were Michelle forced
to use the sums awarded to defend this appeal. Accordingly, in order to keep
Michelle in approximately the same financial position as the trial court's remedial
order intended, we award Michelle fees and costs incurred for responding to this
appeal. Upon compliance with RAP 18.1, a commissioner of our court will enter
an appropriate order.
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Affirmed.
We concur:
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