IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of ) No. 75675-3-1
)
STUART J. SINSHEIMER, )
)
Respondent/Cross-Appellant, )
) DIVISION ONE
and )
)
ELIZABETH L. KRUGER, ) UNPUBLISHED OPINION
)
Appellant/Cross-Respondent. ) FILED: January 16, 2018
.C"""
)
MANN, J. — Elizabeth Kruger and Stuart Sinsheimer divorced in 2005 and
entered into a property settlement agreement(PSA)that provided for
postsecondary support for their two children. Kruger sought to clarify and
enforce the PSA after Sinsheimer refused to make payments for their son's
college tuition and expenses. The trial court concluded that Sinsheimer was
required to pay the amount owed, but that future payments were conditioned on
their son providing Sinsheimer access to his online financial accounts. Both
parties appeal. Because the trial court did not abuse its discretion, we affirm.
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FACTS
Kruger and Sinsheimer divorced in 2005 and entered into a PSA. The
PSA provided for postsecondary support for their two children Nathan and Jared:
All post secondary college expenses, including tuition, are to
be split equally between the husband and wife for both Nathan and
Jared. It must be at a public state school but not necessarily in
Washington state. In order to be entitled to the parental obligation,
a child must make satisfactory progress toward a Baccalaureate
degree and be in attendance on a full-time basis.
The parental expenses in [sic] behalf of a child that will be
equally shared shall cover a child's room and board, tuition, travel
(4 round-trip tickets per school year), books and fees. The parents'
contribution to a child's college expenses shall continue until a
child's 23rd birthday, or the end of the academic year following their
23rd birthday, whichever is later.
Nathan's and Jared's accounts, plus the NetVest proceeds
allocated to the wife in Paragraph IV(b) above that remain after the
payment of each child's private school expenses and the GET
account proceeds are to be applied to the college expenses of each
child prior to a parent being required to contribute thereto. Each
parent's contribution after the exhaustion of all of each child's
accounts (set aside funds) shall be equal.
An agreed order of child support was entered on May 24, 2010, and incorporated
the FISA. Nathan and Jared's accounts and the NetVest proceeds were
exhausted before Jared began college)
When the oldest son, Nathan, received a significant academic scholarship
for college, Kruger and Sinsheimer agreed to deduct the amount of the
scholarship from the college tuition and expenses they were obligated to split
equally. But when the second son, Jared, received a smaller athletic scholarship
to attend The College of William and Mary, Kruger and Sinsheimer did not reach
*I NetVest is an investment portfolio.
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a similar agreement. Sinsheimer, however, unilaterally deducted the amount of
Jared's scholarship from his share of the college expenses. In response, Kruger
filed a motion to clarify the parties' postsecondary support obligations for Jared.
On July 28, 2015, a court commissioner issued an order of clarification,
finding that the PSA did "not authorize a parent to deduct scholarships or grants
from his or her share of post-secondary expenses." The commissioner ordered
Sinsheimer to repay the amount he deducted. Sinsheimer filed a motion for
revision. On October 2, 2015, the trial court issued its order on the motion for
revision. The trial court upheld the majority of the commissioner's decision, only
revising the commissioner's ruling to hold that the parties are not responsible for
Jared's unpaid medical expenses, and clarifying the requirement for
transportation costs.
With respect to Sinsheimer's access to financial records, the trial court
indicated that it had considered both the language of the PSA and the relevant
statutory requirements for access to educational records: '
the Property Settlement Agreement already includes prerequisites
for parents to provide post-secondary support as follows: "In order
to be entitled to the parental obligation, a child must make
satisfactory progress toward a Baccalaureate degree and be in
attendance on a full-time basis." The Court also considered RCW
26.19.090, which provides that "Each parent shall have full and
equal access to the postsecondary education records as provided
in RCW 26.09.225". RCW 26.09.225(3) defines educational
records as follows: "Educational records of postsecondary
educational institutions are limited to enrollment and academic
records necessary to determine, establish, or continue support
ordered pursuant to RCW 26.19.090."
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As a result, the trial court ordered that "both parents shall have access to Jared's
educational records as set forth in RCW 26.09.190 and as further defined in
RCW 26.09.225 as a prerequisite to being entitled to the parental obligation."
On December 11,2015, Jared e-mailed a copy of his 2016 spring
semester bill from The William and Mary College to Kruger and Sinsheimer.
After Sinsheimer failed to pay his share by the due date, Jared e-mailed a
second copy of the bill to both of his parents. After Sinsheimer again failed to
pay his share, Kruger filed a motion to clarify and enforce the PSA. Sinsheimer
argued in response that his obligation to pay was conditioned on his having direct
access to Jared's financial account.
On April 26, 2016, the court commissioner found that Sinsheimer was not
entitled to direct access to the financial account and that each party was
responsible for obtaining billing information from the school website or by
requesting the information from Jared. The commissioner concluded also that
the court did not have the authority to order Jared to grant Sinsheimer access to
his online account. The commissioner ordered Sinsheimer to pay the amount
owed and awarded partial attorney fees to Kruger.
Both parties moved for revision: Kruger seeking additional attorney fees,
and Sinsheimer arguing that he needed direct access to Jared's financial
account. On June 22, 2016, the trial court granted in part and reversed in part
the commissioner's order. The trial court confirmed that each party was
obligated to pay half of all postsecondary college expenses, including room,
board, and tuition. After finding that Jared had provided sufficient documentation
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to establish the amount owing for spring 2016 expenses and tuition, the trial court
ordered Sinsheimer to pay his outstanding balance of $4637.25 within 15 days.
While the trial court found that the bill provided by Jared was sufficient "for
establishing post-secondary support for Spring 2016," the court also concluded
that,
Sinsheimer's request for additional account access also falls within
the Court's October 2015 ruling and RCW 26.09.225(3). That is,
other, additional records may also be 'necessary to determine,
establish, or continue' post-secondary support. And as a matter of
common sense, a parent who is obligated to pay a child's college
tuition and expenses ought to have full, transparent information
about the child's financial account at the college.
As a result, the court ordered:
Going forward, as a condition of his parents' post-secondary
support obligations, Jared Sinsheimer shall make available to each
parent, and give each parent access to, Jared's financial account
information at his college. Without limitation, this includes full
online access to the financial account and all account statements
(hard and electronic copies) showing all charges, credits, debits,
and payments to the account.
The trial court then requested that The College of William and Mary make
available to each parent full access, including online access, to Jared's financia
account information. Finally, the court denied Kruger's request for attorney fees
and retained jurisdiction "in this case and all further motions,or petitions."
On July 26, 2016, the trial court granted Kruger's motion for
reconsideration and awarded Kruger attorney fees, finding her to be the
substantially prevailing party. Kruger appeals. Sinsheimer cross-appeals.
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ANALYSIS
Access to College Financial Account
Kruger argues first that the trial court erred in issuing its July 2016 order
because:(1)the earlier, October 2015 order was a "final judgment" that
Sinsheimer did not appeal,(2)the court's decision granting Sinsheimer online
access to Jared's financial account improperly modified the parties agreed
obligations under the PSA, and (3)the trial court erred in concluding that access
to Jared's online financial accounts was necessary to support Sinsheimer's
obligation. We disagree.
We review a trial court's rulings addressing the provisions of a parenting
plan for abuse of discretion. In re Marriage of Christel, 101 Wn. App. 13, 20-21,
1 P.3d 600 (2000). We defer to the sound discretion of the trial court and will
intrude upon that discretion only if it is exercised in an untenable or manifestly
unreasonable way. In re Marriage of Booth, 114 Wn.2d 772, 779, 791 P.2d 519
(1990). We do not review the trial court's determinations as to the credibility and
persuasiveness of the evidence. In re Marriage of Rich, 80 Wn. App, 252, 259,
907 P.2d 1234(1996).
A. Effect of the October 2015 Order
Kruger argues first that because Sinsheimer did not appeal the superior
court's October 2015 order, he was precluded from relitigating the issue of
whether he was allowed access to Jared's online financial account during
Kruger's 2016 motion to enforce or clarify the PSA. Where an order disposes of
the parties' claims and is not appealed "it directly precludes all further
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proceedings in the same case, except clarification and enforcement proceedings,
and it collaterally precludes other suits based on the same claim." Kemmer v.
Keiski, 116 Wn. App. 924, 932, 68 P.3d 1138(2003)(quotations omitted).
Contrary to Kruger's assertion, the October 2015 order did not address the
specific question of whether Sinsheimer was entitled to access Jared's online
financial accounts. While Sinsheimer requested online access during oral
argument, the superior court ordered only that "both parents shall have access to
Jared's educational records as set forth in RCW 26.09.190 and as further defined
in RCW 26.09.225 as a prerequisite to being entitled to the parental obligation."
The trial court did not explain whether this included direct access to Jared's
online financial account.
The commissioner's April 2016 order on Kruger's motion to enforce or
clarify was the first decision that directly addressed and rejected Sinsheimer's
request for access to Jared's online financial account. This was the first final
ruling on this issue and Sinsheimer filed a timely motion for revision with the
superior court. Thus, Sinsheimer was not precluded from arguing at the superior
court that he was entitled to access to Jared's online financial accounts.
B. The June 2016 Order Clarified the PSA
Kruger next contends that the trial court's June 2016 order constituted an
improper modification of the PSA. A modification occurs when the effect of the
court's ruling causes a party's rights to be "either extended beyond or reduced
from those originally intended in the decree," and requires a specific modification
procedure to be followed. Christel, 101 Wn. App. at 22 (citing Rivard v. Rivard,
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75 Wn.2d 415, 418, 451 P.2d 677 (1969)). In contrast, a clarification "is merely a
definition of the rights which have already been given and those rights may be
completely spelled out if necessary." Rivard, 75 Wn.2d at 418; Kemmer, 116
Win. App. at 933. "A court may clarify a decree by defining the parties' respective
rights and obligations, if the parties cannot agree on the meaning of a particular
provision." Christel, 101 Wn. App. at 22.
Here, the PSA is silent on the issue of whether college support is
contingent on Kruger and Sinsheimer receiving access to Jared's financial
records. In response to Kruger's motion for clarification, and Sinsheimer's
subsequent motion for revision, the trial court's October 2015 order clarified that
Sinsheimer is entitled to access to records under RCW 26.19.090 and RCW
26.09.225. After Sinsheimer withheld payments claiming he needed access to
financial records, Kruger again sought clarification. As a result, the trial court
was asked to address the parties' disagreement on what constitutes "education
records," and "necessary to determine, establish, or continue support" under
RCW 26.09.225. The trial court's July 2016 order did not add'new conditions, it
instead clarified the intent of the PSA and the October 2015 order. The trial
court's order was a clarification and not a modification.
C. Access to Online Financial Account
Kruger asserts next that the trial court erred in ruling that online user
access to Jared's college financial account was a necessary condition for
Sinsheimer's payment of his share of Jared's college expenses and tuition. As
the trial court noted in the October 2015 order, RCW 26.19.090 and RCW
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26.09.225 are applicable to child support for college expenses. RCW 26.19.090
states i n pertinent part:
(4) The child shall also make available all academic records and
grades to both parents as a condition of receiving postsecondary
educational support. Each parent shall have full and equal access
to the postsecondary education records as provided in RCW
26.09.225.
RCW 26.09.225 states in pertinent part:
(1) Each parent shall have full and equal access to the education
and health care records of the child absent a court order to the
contrary. Neither parent may veto the access requested by the
other parent.
(3) Educational records of postsecondary educational institutions
are limited to enrollment and academic records necessary to
determine, establish, or continue support ordered pursuant to RCW
26.19.090.
The question before the trial court was whether Jared's college financial
accounts are "education records" that were "necessary" to determine, establish
or continue support. The terms "academic records," and "necessary" are not
defined in chapter 26.19 RCW or chapter 26.09 RCW. "In the absence of a
specific statutory definition, words in a statute are given their common law or
ordinary meaning." State v. Chester, 133 Wn.2d 15, 22, 940 P.2d 1374 (1997).
"We may discern the plain meaning of nontechnical statutory terms from their
dictionary definitions." State v. Kintz, 169 Wn.2d 537, 547, 238 P.3d 470 (2010).
The term "academic records" is broadly defined to include, "of, belong to,
or associated with an academy or school." This definition is,certainly broad
enough to include school financial records. WEBSTER'S THIRD NEW INTERNATIONAL
DICTIONARY 9(2002). It is more instructive therefore to focus, as the trial court
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did, on the term "necessary." The dictionary defines "necessary" as "that cannot
be done without," "that must be done or had," "absolutely required," "essential,"
or "indispensable." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1510, 1511
(2002). Here, the trial court focused on the phrase "necessary" to determine,
establish, or continue support, and held,"as a matter of common sense, a parent
who is obligated to pay a child's college tuition and expenses ought to have full,
transparent information about the child's financial account at the college."
Unfortunately, the record before the trial court supports that Sinsheimer
does not trust either his son, Jared, or Kruger, to provide complete and accurate
financial information. While it is unclear why the parties could not have worked
out a better solution without repeatedly returning to the court, it is not our role to
require they work it out between themselves. Kruger and Sinsheimer asked for
assistance from the trial court, and it was within the trial court's sound discretion
to determine the appropriate remedy to ensure continued postsecondary support
without further judicial intervention. The trial court is in the best position to
determine what remedy was "necessary" in this case, and the trial court's
decision to allow online access was likely due to the substantial amount of
conflict that preceded its final determination. Based on the facts in this case, we
cannot say that the trial court's decision was manifestly unreasonable, or based
on untenable grounds or untenable reasons. Christel, 101 Wn. App. at 21.
Jurisdiction
Kruger next argues, and Sinsheimer concedes, that the trial court did not
have personal jurisdiction over Jared or The College of William and Mary, as they
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are not parties to this case. Thus, the portions of the June 2016 order requiring
Jared to provide access to his financial accounts and requesting the College of
William and Mary to provide financial account access both parents, are
unenforceable. City of Seattle v. Fontanilla, 128 Wn.2d 492, 909 P.2d 1294
(1996). When the trial court lacks personal jurisdiction, the order is void. Marley
v. Dep't of Labor & Indus., 125 Wn.2d 533, 541, 886 P.2d 189 (1994). However,
one portion of an order being rendered void does not affect the entirety of the
order, and in this case, it is easy to differentiate between the void provisions and
those that remain enforceable. See Shreeder v. Davis, 43 Wash. 129, 136, 86 P.
198 (1906).
Here, while the court cannot enforce the requirement that Jared provide
access to his financial accounts, such as by holding him in contempt, the
payment of support can be conditioned on Jared's action. The PSA itself
includes a requirement that the "child must make satisfactory progress toward a
Baccalaureate degree and be in attendance on a full-time basis," presuming that
Jared will be providing this verification. Similarly, RCW 26.19.090(4) requires
"the child" to make accessible to both parents his education records. A condition
that neither parent contests. It is common for a court to include requirements
and conditions that are within the control of the adult child. See In re Marriage of
Kelly, 85 Wn. App. 785, 795, 934 P.2d 1218(1997). Thus, under the trial court's
order, Jared has a choice, he can provide access in which case his parents must
pay their equal share of his postsecondary tuition and expenses, or he can elect
to withhold access and perhaps lose his financial support.
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Retained Jurisdiction
Kruger argues finally that the trial court erred by retaining jurisdiction and
requiring that all "further motions or petitions shall be brought before him." We
disagree. As this court has previously held, "a trial court may retain jurisdiction
over [a] matter for a limited period of time in order to review the efficacy of its
decision and to maintain judicial economy following its order." In re Marriage of
True, 104 Wn. App. 291, 298, 16 P.3d 646 (2000). Retained jurisdiction may be
particularly necessary where,"the finality of the plan by its own terms is open to
review and review is likely to be sought and likely to occur." True, 104 Wn. App.
at 298; see also In re Marriage of Adler, 131 Wn. App. 717, 726, 129 P.3d 293
(2006).
The facts in True are substantially similar to the facts in this case. In True
the parties had been through a contentious parenting plan hearing, had been
back and forth from mediation, and had both filed cross motions for modification.
True, 104 Wn. App. at 298. The trial court determined, afters modifying the order,
that there remained a high likelihood that further review would be sought. Here,
the parties' disputes over providing postsecondary support for Jared have been
contentious for over two years. Based on this history, the court expected further
review will be necessary. Retaining jurisdiction regarding this order was
reasonably necessary to review whether the order effectively clarifies the
requirements of the parties and to maintain judicial economy.
In True, as in this case, one of the parties argued that the retention of
jurisdiction would conflict with the statutory right to disqualify the judge in a
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modification proceeding, citing to State ex rel. Mauerman v. Superior Court for
Thurston County, 44 Wn.2d 828, 271 P.2d 435(1954).2 True, 104 Wn. App. at
298. This court disagreed, holding,
a later possible attempt to seek review of the terms of the agreed
to, and modified, parenting plan is not the same as seeking
modification on new facts or changed conditions since entry of the
original decree. Here the trial court maintained jurisdiction for a
limited period of time regarding the modified parenting plan and
custody provisions entered. The trial court has not prevented
Penelope from filing a new modification action if the situation and
facts so merit.
True, 104 Wn. App. at 298. Similarly, we hold this retention of jurisdiction is
limited to "review of the terms" of the parenting plan and this order, and does not
act to hinder Kruger from seeking to disqualify a judge in a new modification
action as guaranteed by Mauerman. See Mauerman,44 Wn.2d at 830.
Kruger also argues the trial court abused its discretion in retaining
jurisdiction because the order was not provisionary or temporary, and the order
did not include a specific time limitation. Again, we disagree. "The
characterization of a plan as temporary or permanent with review built in is
irrelevant, given the trial court's authority to fashion an appropriate remedy." In
re Marriage of Adler, 131 Wn. App. 717, 726, 129 P.3d 293(2006)(citing In re
Marriage of Possinger, 105 Wn. App. 326, 337, 19 P.3d 1109 (2001)). Although
most of the previous cases where the judge retained jurisdiction included a
2 Mauerman held, "a proceeding to modify the child custody provisions of a divorce
decree, upon allegations of changed conditions since the entry of that decree, is a new
proceeding. It presents new issues arising out of new facts occurring since the entry of the
decree. It is not ancillary to or in aid of the enforcement of the divorce decree. It is a 'proceeding'
within the meaning of the cited statutes, and the petitioner is entitled to a change ofjudges as a
matter of right." Mauerman, 44 Wn.2d at 830.
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specific period of time when the jurisdiction would end, in this case, the time limit
is implied. There is only a little more than a year remaining of postsecondary
support under the parenting plan. This is not an unreasonable amount of time to
retain jurisdiction.
June 2016 Order to Pay Outstanding Balance
Sinsheimer argues on cross appeal that the trial court's June 2016 order
erroneously ordered that he pay the outstanding balance of $4,537.25 for the
spring 2016 tuition and expenses because he did not yet have access to the
online financial accounts. We disagree.
The trial court's June 2016 order specifically found that "Jared provided a
bill sufficient—at a basic level—for establishing postsecondary support for Spring
2016." Because substantial evidence was submitted to the trial court to
demonstrate the amount owed, and Sinsheimer had been previously ordered to
make these payments, the trial court did not abuse its discretion in requiring
Sinsheimer to make the overdue payment. While the trial court agreed with
Sinsheimer that additional financial account access may be necessary, the
court's order was specifically limited to future payment obligation: "[g]oing
forward, as a condition of his parents' postsecondary support obligations, Jared
shall make available to each parent, and give each parent access to, Jared's
financial account information at his college." The trial court did not err in
requiring Sinsheimer to pay for the spring 2016 tuition and expenses.
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Attorney Fees
Sinsheimer also argues that the trial court abused its discretion in
awarding attorney fees as a result of the June 2016 order and that he is owed
fees on appeal. We disagree. The decision to award fees is within the trial
court's discretion. Christel, 101 Wn. App. at 24.
Under RCW 26.18.160, "[i]n any action to enforce a support or
maintenance order under this chapter, the prevailing party is entitled to a
recovery of costs, including an award for reasonable attorney fees. An obligor
may not be considered a prevailing party under this section unless the obligee
has acted in bad faith in connection with the proceeding in question." Generally,
"a prevailing party is one who receives an affirmative judgment in its favor."
Cornish College of the Arts v. 1000 Virginia Ltd. P'ship, 158 yVn. App. 203, 231,
242 P.3d 1 (2010). In its June 2016 order, the trial court enforced the PSA by
ordering Sinsheimer to pay Kruger the amount he had withheld. While the court
agreed with Sinsheimer that he must be granted access to Jared's financial
account in the future, this was not a "major issue" as it was not relevant to the
present enforcement action. The trial court did not abuse its discretion in
awarding Kruger fees under RCW 26.18.160.
Sinsheimer next claims Kruger brought this appeal in bad faith,
maintaining Kruger's only motive is to "avoid transparency and keep control over
Sinsheimer's right to information." This claim is unfounded. Kruger's appeal
raised legitimate legal questions. However, as both parties prevail on major
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issues on appeal, neither is a "prevailing party" entitled to attorney fees. In re
Marriage of Nelson, 62 Wn. App. 515, 519, 814 P.2d 1208 (1991).
We hold that the portions of the trial court's June 2016 order requiring
Jared to provide access to his financial accounts and requesting The College of
William and Mary to provide financial account access to Sinsheimer and Kruger
are void. Otherwise, we affirm.
WE CONCUR:
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