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I FILED
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MAY 9, 2017
! In the Office of the Clerk of Court
i WA State Court of Appeals, Division Ill
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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of ) No. 34564-5-111
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ROGER L. ALDRICH, )
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I Appellant, )
) UNPUBLISHED OPINION
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MARY BETH ALDRICH,
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1 Respondent. )
ll PENNELL, J. - Roger Aldrich appeals the denial of a petition to modify a decree of
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l spousal maintenance. Because Mr. Aldrich has submitted sufficient evidence of a change
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in circumstances, we reverse the superior court's order and remand for reconsideration.
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In Re Marriage ofAldrich
l FACTS
1 Roger and Mary Beth Aldrich were married in April 1981 and separated in
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I March 2008. A decree of dissolution was entered in June 2010.
The 2010 dissolution decree awarded Ms. Aldrich $2,500 per month as lifetime
spousal maintenance, an amount that constituted one-half of Mr. Aldrich's then gross
salary. The court noted Mr. Aldrich was underemployed. To account for this
circumstance, the court found that should Mr. Aldrich's income increase, he would be
required to pay 3 5 percent of his additional gross earnings in maintenance, 1 less
deductions for social security. The court's 2010 decree did not account for the possibility
of a decrease in income. Neither party appealed the 2010 order.
In February 2015, Mr. Aldrich's employer, the Center for Personal Protection and
Safety (CPPS), notified him his annual salary would be decreased from $140,000 to
$105,000. In May 2015, CPPS informed Mr. Aldrich his position had been eliminated
and offered Mr. Aldrich a new position with an annual salary of $70,000. Mr. Aldrich
accepted the new position, but CPPS also eliminated that position on August 1, 2015. At
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the time CPPS eliminated his position, CPPS owed Mr. Aldrich approximately $90,000 in
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The 2010 decree excluded various benefits which were separately apportioned to
l Ms. Aldrich.
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No. 34564-5-111
In Re Marriage ofAldrich
back pay. Throughout this time, Mr. Aldrich continued to make the required payments to
Ms. Aldrich.
On September 1, 2015, Mr. Aldrich filed a petition for support modification. In an
accompanying declaration he alleged: "I am no longer able to earn the income I once
earned nor am I able to comply with the maintenance provisions of the decree, as a
substantial change in circumstances has occurred since issuance of the decree." Clerk's
Papers (CP) at 41. Mr. Aldrich reached 68 years of age in December 2015. Throughout
several declarations filed in support of his petition, Mr. Aldrich stated: (1) he had sought
vocational assistance and discovered he was only capable of working as a security guard
for $10 per hour, (2) he had attended seminars and applied for jobs through WorkSource
Washington as well as at area schools and state agencies, (3) he had applied for
unemployment compensation, (4) the only employer who had need of his skills was the
United States Department of Defense, for whom he could not work unless he forfeited the
military and federal civil service retirement benefits he shares with Ms. Aldrich, and
(5) because of a lack of response to his job applications, he worked as an independent
contractor for CPPS in an attempt to preserve his remaining unemployment benefits and
to reduce the amount of money he had been withdrawing from savings to meet his
maintenance obligation. According to Mr. Aldrich's independent contractor agreement,
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No. 34564-5-111
In Re Marriage ofAldrich
CPPS would pay him $1,000 per day per event on an "as Needed Basis" from
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January 2016 through June 2016. CP at 168. Since CPPS eliminated his position, Mr.
,, Aldrich averred he earned $20,500 in gross income but had only been paid $15,000.
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In her own declaration filed on March 23, 2016, Ms. Aldrich alleged that Mr.
Aldrich began making substantially more money after the decree was entered. She
questioned Mr. Aldrich's motives for filing the petition, arguing he used the month after
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I he lost his job at CPPS to build a case to modify maintenance instead of obtaining
additional employment. She also claimed CPPS had Mr. Aldrich listed as a senior advisor
on its website since August 2015.
The financial information before the superior court commissioner at the time the
petition for modification was heard included Mr. Aldrich's monthly after tax, after
spousal maintenance payment income of $4,840.97, from which he was subtracting
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$3,977.55 for his monthly living expenses. The sources of Mr. Aldrich's income included
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his share of the monthly United States Air Force retirement pay and federal civil service
annuity, social security benefits, and unemployment compensation. Ms. Aldrich's
financial statement showed a total monthly net income of $6,618.34, from which she
deducted her total monthly expenses of $6,512.11. Her sources of income included
spousal maintenance, her share of Mr. Aldrich's Air Force retirement pay and federal
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civil service annuity, and her own social security benefits.
The commissioner denied the petition for modification. Basing her findings
principally on the 2010 findings accompanying the decree of dissolution, the
commissioner found no substantial change in circumstances. Provided the need and
ability to pay standard was met, the commissioner awarded attorney fees and costs to Ms.
Aldrich. Mr. Aldrich appeals.
ANALYSIS
Modification of lifetime spousal maintenance
At the time of the parties' 2010 dissolution, the court awarded Ms. Aldrich lifetime
maintenance. This type of award is disfavored in Washington. In re Marriage of Coyle,
61 Wn. App. 653,657, 811 P.2d 244 (1991). In order to provide relief from unintended
hardships caused by lifetime maintenance, our laws allow for modification. See id. The
fact that a party chose not to appeal an initial maintenance award has no bearing on the
ability to seek modification.
The statute permitting modification of a maintenance award is RCW 26.09.170(1).
This provision allows a court to "modify a maintenance award when the moving party
shows a substantial change in circumstances that the parties did not contemplate at the
time of the dissolution decree." In re Marriage ofSpreen, 107 Wn. App. 341, 346,
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28 P.3d 769 (2001). "The phrase 'change in circumstances' refers to the financial ability
of the obligor spouse to pay vis-a-vis the necessities of the other spouse." Id. (internal
quotation marks omitted) (quoting In re Marriage of Ochsner, 47 Wn. App. 520, 524,
736 P.2d 292 (1987)).
We review a court's modification decision for abuse of discretion. In re Marriage
ofDrlik, 121 Wn. App. 269,274, 87 P.3d 1192 (2004). We will affirm the superior
court's decision so long as it rests on tenable grounds that are not manifestly
unreasonable. Oschner, 47 Wn. App. at 525. A decision is untenable if it is unsupported
by the record. State v. Rohrich, 149 Wn.2d 647, 654, 71 P.3d 638 (2003).
The uncontroverted evidence before the superior court indicates Mr. Aldrich's
income has decreased significantly since the 2010 maintenance award. Mr. Aldrich
verified his change in circumstances and submitted financial information documenting his
current income and expenses. On its face, the information submitted by Mr. Aldrich
would appear sufficient to establish a change in circumstances. However, the superior
court commissioner appears to have rejected Mr. Aldrich's claims on the basis that his
reduction of income was not suffered in good faith. See, e.g., Lambert v. Lambert,
66 Wn.2d 503,510,403 P.2d 664 (1965).
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j We find no basis in the record for rejecting the veracity of Mr. Aldrich's claim of
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changed circumstances. No evidence suggests Mr. Aldrich chose to quit his job or
I engage in an underpaid professional venture. The evidence is that Mr. Aldrich's
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j circumstances were forced on him by his employer and, since that time, Mr. Aldrich has
attempted to maximize his economic prospects by seeking vocational assistance and
obtaining contract work. Mr. Aldrich's efforts to continue in the workforce and remain
current on his maintenance obligations are a strong indicator of good faith, especially
given that he has reached the age where he can and should be permitted to consider
retirement.
Ms. Aldrich nevertheless contends that Mr. Aldrich's reduction in income is due to
bad faith. She claims the witnesses Mr. Aldrich has relied on to support his modification
petition were found not credible back in 2010 at the time of the original maintenance
award. She also points out that Mr. Aldrich's name has appeared on the CPPS website,
despite his claim that he was laid off. Neither contention is persuasive. Nothing in the
record before this court suggests Mr. Aldrich's witnesses were previously found not
credible. 2 Nor is there any information undercutting their current credibility. The
2In support of her allegation, Ms. Aldrich cites only to her own declaration. Ms.
I Aldrich's statement does not constitute evidence of the 2010 court findings.
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existence of Mr. Aldrich's name on the company's website says nothing about Mr.
Aldrich's present financial circumstances. The insinuation is that Mr. Aldrich and his
lt former employer have engaged in some sort of fraud to hide his employment and income
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so he will not have to pay maintenance. 3 The court will not jump to this type of
I conclusion without significant nonspeculative evidence.
Because Mr. Aldrich has submitted sufficient evidence of an unforeseen change in
economic circumstances, we remand this matter to the superior court for modification
proceedings. On remand, the superior court shall consider Mr. Aldrich's financial
l resources in terms of his actual income, unless substantial evidence supports a finding
I that he is voluntarily underemployed. In assessing this issue, the court may consider the
I credibility of the parties' witnesses and other evidence. However, the fact that Mr.
Aldrich was deemed underemployed in 2010 does not control whether he is in similar
circumstances today.
3 The commissioner noted it was "highly suspicious" that Mr. Aldrich was laid off
instead of fired because, by being laid off, he retained the ability to collect unemployment
benefits. CP at 218,242. We do not share this view. There is no indication Mr. Aldrich
was fired for cause. The uncontroverted evidence before the court was that he was laid
off due to economic cutbacks by his employer. This circumstance would appear to be
fairly ordinary, not suspicious.
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I Attorney fees and costs
Mr. Aldrich next argues the commissioner erred in allowing Ms. Aldrich to note a
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hearing to determine her award of attorney fees and costs following a need and ability to
pay analysis. RCW 26.09.140 is the applicable statute. In light of the conclusion reached
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CONCLUSION
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We remand this case to the superior court for reconsideration of Mr. Aldrich's
petition. Each party shall bear its own appellate fees and costs.
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A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Pennell, J.
WE CONCUR:
Fearing, C.J.
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