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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
No. 75958-2-1
KATHY L. GOODWIN,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
and
KEVIN M. GOODWIN,
FILED: January 16, 2018
Appellant.
TRICKEY, A.C.J. — Kevin Goodwin and Kathy Goodwin engaged in a series
of hearings to determine postsecondary educational support for their daughter K.1 '
The trial court clarified the support obligations during a motion for revision of a
commissioner's order. Kevin argues that the trial court deprived him of necessary
process and failed to consider the best interests of K when it set the postsecondary
support obligations during the revision hearing. Because Kevin had adequate
opportunity to request additional process, and the trial court considered the best
interests of K, we affirm.
FACTS
In 2006, Kevin and Kathy dissolved their nine-year marriage. Their,
daughter K was 8 years old. They agreed in the original child support order that
1 For clarity, this opinion will refer to the parties by their given names, Kevin and Kathy,
and to their daughter as K. No disrespect toward the parties is intended.
No. 75958-2-1 /2
Kevin would pay monthly child support to Kathy. The child support order also
contained a provision for postsecondary educational support that stated, "The
parents shall pay for the post secondary educational support of the child. Post
secondary support provisions will be decided by agreement or by the court."2 The
parties modified the child support order in 2009 to lower Kevin's monthly payments
but did not alter the postsecondary support provision.
K primarily resided with Kathy and attended private school in Kirkland,
Washington for her freshman year of high school. Kevin paid all of K's educational
expenses and made the support payments to Kathy. After her freshman year, K
transferred to a private boarding school in Vancouver, British Columbia. Kevin
paid the entirety of K's tuition, fees, room, and board, totaling $61,189.23 per year.
Kevin ceased making any monthly payments to Kathy when K started
boarding school. Kathy had agreed to forego the transfer payments during the
months that K resided at the boarding school. The parties disagree as to whether
Kathy also waived the transfer payments for the months that K was on vacation
and living with either parent.
In June 2016, when K was going to graduate from high school, Kathy filed
a motion to adjust and clarify the child support order. She requested definition of
postsecondary educational support and determination of the parties' respective
obligations. Kathy claimed that the parties could not agree on their respective
postsecondary support obligations without court intervention because Kevin had
refused to share his financial information or work toward a mutually acceptable
2 Clerk's Papers(CP) at 51.
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No. 75958-2-1 / 3
solution.
Kathy requested that the trial court order Kevin to pay 87.64 percent of
projected future college costs. She requested back child support payments with
accrued interest for the seven months that K lived at home on various school
breaks during which Kevin did not pay monthly child support. She also sought
attorney fees from Kevin.
Kathy's motion was noted to be heard by a commissioner on the King
County Superior Court's family law motions calendar on June 29, 2016. The
evening before the hearing, Kathy's counsel received a telephone call from
attorney Lori Guevara. Guevara had not yet been retained in the case but informed
Kathy's counsel that Kevin had not received adequate service. Neither Kevin nor
his counsel appeared at the hearing. The commissioner awarded Kathy a default
judgment.
Kevin subsequently filed a motion for reconsideration and a motion to
vacate the default judgment. On August 1, 2016, a superior court commissioner
vacated the default judgment against Kevin in the interests of justice so that the
matter could be heard on the merits.3 The commissioner was not persuaded byl
Kevin's argument that service was defective and awarded Kathy $1,000 in attorney
fees.4
On August 23, 2016, another hearing took place on the family law motions
calendar. The parties disputed whether the action was properly filed as a motion
to adjust or a petition to modify. The commissioner concluded that the parties
3 The motion to reconsider was denied on July 12, 2016.
4 Kevin does not appeal this fee award.
No. 75958-2-1 /4
should have brought a motion to set postsecondary support.
Regardless of the form, the commissioner declined to decide the motion
because the materials submitted by the parties were too voluminous to be heard
on the streamlined motions calendar.5 The commissioner ordered Kathy to either
re-note the matter and reduce the materials to a size appropriate for the motions
calendar or file a petition to modify and move to the trial by affidavit(TBA)calendar.
The commissioner denied the parties' requests for attorney fees because both
parties submitted excessive materials.
Kathy filed a motion for revision and requested a hearing on the motion to
adjust and clarify the child support order before a King County Superior Court
judge. At the hearing on Kathy's motion, Kevin argued that the case should be
transferred to the TBA calendar so that he could request discovery and cross-
examination of experts. In the alternative, he requested a postsecondary support
plan under which Kevin, Kathy, and K would each pay one-third of the associated
costs. Kevin expressed concern about K's behavior and contended that she
needed to take personal responsibility for her college education.
Despite Kevin's request, the judge refused to transfer or delay a decision
on the case and determined _Kevin's and Kathy's postsecondary support
obligations at the hearing on the revision motion. Instead, the trial court ordered
Kevin to pay 89 percent of K's postsecondary educational support, including
tuition, books, fees, housing, food, cell phone, health insurance, transportation,
5Together the parties submitted approximately 5,000 pages of supporting documents, the
majority of which were financial disclosures required under King County Local Family Law
Rule (KCLFLR) 10.
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No. 75958-2-1/ 5
and personal expenses. The court did not limit tuition and costs, so Kevin's and
Kathy's support obligations would not change if K transferred to any school of her
choice. The court also awarded Kathy her requested back child support and
$5,000 in attorney fees.
Kevin appeals.
ANALYSIS
Revision Hearing and Postsecondary Support Order
Kevin contends that the trial court erred by failing to transfer the case to the
TBA calendar. Specifically, he argues that the trial court improperly determined
his support obligations on revision, depriving him of due process that he would
have had on the TBA calendar through discovery and cross-examination.6
Because Kevin had ample opportunity to request additional process, he was not
prejudiced by the trial court's decision on revision.
The revision court has full jurisdiction over the case. In re Marriage of Dodd,
120 Wn. App. 638, 644, 86 P.3d 801 (2004). On revision, the trial court may re-
determine both the facts and legal conclusions after independent review. Dodd
120 Wn. App. at 645. The trial court has broad authority to modify child support
provisions. Dodd, 120 Wn. App. 644. We apply an abuse of discretion standard
and do not substitute our judgment for that of the trial court unless the trial court's
decision rests on unreasonable or untenable grounds. Dodd, 120 Wn. App. 644.
6 While the parties devote significant argument to whether Kathy should have brought a
motion to adjust or a petition to modify the child support order, Kevin acknowledges that
this court need not resolve the proper procedure.
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No. 75958-2-1 /6
Here, the substance — not the form of the procedure — is at issue. Any error
in the form of the motion is harmless if, "but for the choice of form, the proceeding
below was the procedural and substantive equivalent of a modification
proceeding." In re Marriage of Morris, 176 Wn. App. 893, 895, 309 P.3d 767
(2013). To show prejudice, a party must demonstrate specific procedural
deficiencies or harm, such as a need for discovery, an opportunity to introduce
more evidence, or additional substantive arguments he or she would have made if
afforded greater process. See Morris, 176 Wn. App. at 903.
In Morris, the mother erroneously brought a motion for adjustment to
request postsecondary educational support that had been expressly reserved in
the original support order. 176 Wn. App. at 896. Despite the procedural error, the
trial court held a hearing with oral arguments on the motion for revision,
considering declarations, financial documents, and legal arguments. Morris, 176
Wn. App. at 903. The father did not argue that he was denied an opportunity to
conduct discovery or submit additional evidence, or that he could have raised
additional substantive arguments with additional process. Morris, 176 Wn.App. at
903. Because the father did not point to specific procedural deficiencies or
demonstrate prejudice, the Court of Appeals held that the error was harmless.
Morris, 176 Wn. App. at 903.
Kevin attempts to distinguish his situation from Morris by raising specific
procedural deficiencies and resulting prejudice. For example, he argues that he
advised the trial court that he needed to cross-examine Kathy's financial expert
and conduct discovery to obtain past e-mail and text messages in support of his
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argument against back child support. But in this case, these claims are insufficient
to show sufficient procedural deficiencies or prejudice.
Prior to his oral request at the revision hearing, Kevin had not made a
motion or provided legal argument in support of additional process. He had
previously mentioned the opportunity for discovery on the TBA calendar only when
discussing the proper form of the case. Moreover, Kevin had three months
between the initial and revision hearings to request additional process, transfer to
the TBA calendar, or file his own motion to modify the child support order.7 See
RCW 26.09.170; KCLFLR 14(a); KCLFLR 6(g)(2). But he made no effort to pursue
further process until the revision hearing.
While this case differs from Morris in that Kevin noted a need for discovery
and testimony, the result is the same. There was no prejudice and any error was
harmless. Kevin had ample opportunity to present evidence and request additional
process to address deficiencies. Therefore, the trial court did not abuse its
discretion by setting postsecondary support and back child support without further
proceedings.
K's Best Interests
Kevin argues that the trial court erred by failing to consider K's best interests
when it ordered Kevin and Kathy to pay for the entirety of K's postsecondary
educational support. Because the record demonstrates that the trial court weighed
K's best interests along with the other required factors for determining the support
obligation, we disagree.
7The initial hearing date was June 29, 2016, and the revision hearing was held on
September 27, 2016.
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In setting postsecondary education support, the trial court has the discretion
to consider relevant factors, including:
Age of the child; the child's needs; the expectations of the parties for
their children when the parents were together; the child's prospects,
desires, aptitudes, abilities or disabilities; the nature of the
postsecondary education sought; and the parents' level of education,
standard of living, and current and future resources. Also to be
considered are the amount and type of support that the child would
have been afforded if the parents had stayed together.
RCW 26.19.090(2). There is no requirement of written findings under the statute.
Morris, 176 Wn. App. at 906.
We review a trial court's award of postsecondary support for abuse of
discretion. Morris, 176 Wn. App. at 905. "As long as the court considers all the
relevant factors set forth in RCW 26.19.090 for determining postsecondary
support, it does not abuse its discretion." In re Goude, 152 Wn. App. 784, 791,
219 P.3d 717(2009).
Here, the trial court weighed the RCW 26.12.090(2) factors at the revision
hearing, including Kevin's and Kathy's resources, ability to pay, educational
background, and expectations for K's education. For example, the trial court
considered Kevin's and Kathy's willingness to support K's high school education
and the parties' financial documents to evaluate their ability to pay. Additionally,
the trial court remarked about the difficulties of student debt, which suggested a
belief that unnecessary loan obligations were not in K's best interests when her
parents had well documented ability to pay.8 Thus, the trial court's statements
indicate evaluation of the factors prior to making a final determination on the
8 The trial court noted that school debt "turns into her first house.. . except [school debt
is) not dischargeable and she can't sell it." Report of Proceedings (Sept. 27, 2016) at 22.
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No. 75958-2-1 / 9
parties' support obligations.
Kevin argues that the trial court was not equipped to evaluate the thousands
of pages of record on reconsideration. A trial court is presumed to have considered
all evidence before reaching its decision. Morris, 176 Wn. App. at 906 (citing In re
Marriage of Kelly, 85 Wn. App. 785, 793, 934 P.2d 1218 (1997)). Kevin has not
provided evidence to overcome this presumption, and the trial court's decision
demonstrates consideration of the statutory factors, including K's best interests.
Attorney Fee Award
Kevin argues that the trial court abused its discretion when it awarded
$5,000 in attorney fees to Kathy without finding that he was intransigent in the
proceedings or that she had demonstrated financial need. We disagree because
the trial court clearly intended to award fees based on Kevin's intransigence.
A trial court may award a party its costs and fees incurred during dissolution.
RCW 26.09.140. Generally, in determining the amount of a fee award, the trial
court must balance the requesting party's need against the other party's ability to
pay. In re Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954 (1996). But
if the requesting party establishes that the other party's intransigence necessitated
additional legal services, the financial resources of the spouse seeking the fee
award are irrelevant. Crosetto, 82 Wn. App. at 563-64. Intransigence may be
shown "simply when one party made the trial unduly difficult and increased legal
costs by his or her actions." In re Marriage of Greenlee, 65 Wn. App. 703, 708,
829 P.2d 1120 (1992). The trial court is not required make an express finding of
intransigence. See Crosetto, 82 Wn. App. at 564.
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No. 75958-2-1/ 10
We review the trial court's decision to award fees for abuse of discretion.
See In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994). "The
party challenging the award bears the burden of proving that the trial court
exercised this discretion in a way that was clearly untenable or manifestly,
unreasonable." Knight, 75 Wn. App. at 729.
Here, the trial court awarded $5,000 to Kathy because "all her fees and
costs could have been avoided had [Kevin] been willing to meet with [Kathy] and
exchange financial documents as she requested."9 This statement establishes
intransigence. The record shows that Kevin made no effort to constructively
participate in a determination of postsecondary support obligations. Furthermore,
Kevin waited until the revision hearing to request a transfer to the TBA calendar,
despite having several months during which he could have moved for additional
process.
The trial court's determination of intransigence obviates Kathy's obligation
to make a showing of financial need. Therefore, we conclude that the trial court
did not abuse its discretion by awarding her attorney fees based on Kevin's
intransigence.
Attorney Fees on Appeal
Kathy requests attorney fees on appeal because Kevin's income and assets
vastly exceed hers and his litigations tactics unduly increased her fees. Kevin
responds that Kathy is not entitled to fees because she has significant financial
resources and pursued the improper motion to adjust.
9 CP at 958.
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No. 75958-2-1/ 11
This court has discretion to order a party to pay fees and costs on appeal
from a dissolution proceeding. RCW 26.09.140. This court considers the parties'
relative ability to pay and the arguable merit of the issues raised on appeal. In re
Marriage of Leslie, 90 Wn. App. 796, 807, 954 P.2d 330 (1998). Additionally,
intransigence in the trial court can also support an award of attorney fees on
appeal. In re Marriage of Mattson, 95 Wn. App. 592, 606, 976 P.2d 157(1999).
While the trial court did not abuse its discretion by awarding attorney fees
based on Kevin's intransigence, his behavior on appeal does not merit additional
fees. As to need, both parties have significant wealth.1° While Kevin's income and
assets exceed Kathy's, she undoubtedly has the financial resources to pay her
own fees on appeal. We exercise our discretion to decline Kathy's request for
attorney fees on appeal.
Affirmed.
WE CONCUR:
1° Kathy has a gross monthly income of over $5,286 with over $2.5 million in liquid assets.
Kevin estimates that his gross monthly income is over $42,000 and that he has over $12
million in liquid assets.
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