No. 60658-1-I.The Court of Appeals of Washington, Division One.
September 29, 2008.
Appeal from a judgment of the Superior Court for King County, No. 01-3-04245-2, Suzanne M. Barnett, J., entered August 31, 2007.
UNPUBLISHED OPINION
PER CURIAM.
Generally, the trial court may modify spousal maintenance or child support only if the moving party demonstrates a substantial change of circumstances since the entry of the dissolution decree. Because Elisa Lake failed to satisfy this evidentiary burden, the trial court did not abuse its discretion in refusing to modify maintenance or child support.
The remaining contentions on appeal are also without merit. Accordingly, we affirm.
FACTS
Elisa Lake and Brian Lake were married in 1987. During the marriage, Brian[1] worked primarily for the National Oceanic and Atmospheric Administration (NOAA) in Massachusetts and was frequently away from home on lengthy sea voyages. The couple have four children, the oldest of whom was born in 1989. The youngest child, V.L., was born in April 1997 and suffers from birth defects and developmental disabilities. V.L. has been diagnosed with “profound hypotonia with musculo-skeletal abnormalities” and, according to Elisa, has received physical, occupational, and speech therapy since shortly after her birth.
Elisa and Brian separated by the end of 1999.[2] At about the same time, NOAA transferred Brian to Seattle, where he continues to live. Elisa and the children have remained in Massachusetts. Brian has had essentially no contact with his children since the separation.
On May 22, 2001, Brian petitioned for dissolution in King County Superior Court. Elisa was personally served on June 19, 2001, but never appeared. On September 25, 2001, the court entered an order of default, findings of fact and conclusions of law, and a dissolution decree. Among other things, the decree required Brian to pay spousal maintenance of $1,000 per month for five years and monthly child support of $1,590. The decree also awarded Elisa 50 per cent of Brian’s NOAA retirement payments.
On August 29, 2006, Elisa petitioned for modification of maintenance and child support, requesting a five-year extension of maintenance and child support in an amount greater than the economic table.[3] At the time of the petition, Elisa worked as a school crossing guard and as an untrained home care worker for the elderly. Brian informed the court that he would be forced to retire from NOAA in May 2007 as a consequence of disciplinary proceedings.
The commissioner granted Elisa’s petition, finding that V.L.’s disabilities were worse than anticipated at the time of the dissolution and imposed significantly greater burdens on Elisa. The court concluded that those burdens, coupled with Elisa’s obligation to fulfill all parenting responsibilities, constituted an unanticipated change of circumstances that warranted extending maintenance for another five years and setting Brian’s monthly child support obligation at $1,857, an amount in excess of the economic table.
In February 2007, the superior court granted Brian’s motion for revision, finding that Elisa had failed to demonstrate a substantial and unanticipated change of circumstances since the dissolution that would justify modifying maintenance or changing the method of calculating child support. The court declined to address Brian’s claim that his planned retirement would constitute a significant change of circumstances because those circumstances were not yet known. The court ordered that Brian’s monthly child support obligation be adjusted upward by the standard method.
Elisa appeals.
Standard of Review
On a motion for revision, the superior court reviews the commissioner’s findings of fact and conclusions of law de novo, examining only the evidence and issues before the commissioner State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). Once the superior court rules on the revision motion, “the appeal is from the superior court’s decision, not the commissioner’s.” State v. Hoffman, 115 Wn. App. 91, 101, 60 P.3d 1261, rev’d on other grounds, 150 Wn.2d 536, 78 P.3d 1289 (2003).
DECISION Child Support and Maintenance
Elisa’s primary contention on appeal is that the superior court erred by refusing to modify maintenance or child support. She argues that an unanticipated and substantial change in circumstances since the decree justified both extending maintenance and increasing child support to an amount that exceeds the economic table in RCW 26.19.020. We disagree.
Except in circumstances not at issue here, a court may modify maintenance or support provisions only if the moving party demonstrates a “substantial change of circumstances” since the entry of the dissolution decree. RCW 26.09.170(1); see In re Marriage of Leslie, 90 Wn. App. 796, 802, 954 P.2d 330 1998) (modification of child support); In re Marriage of Spreen, 107 Wn. App. 341, 346, 28 P.3d 769 (2001) (modification of maintenance requires substantial change in circumstances that the parties did not contemplate at the time of the dissolution decree). “The phrase `change in circumstances’ refers to the financial ability of the obligor spouse to pay vis-Á-vis the necessities of the other spouse.” Marriage of Spreen, 107 Wn. App. at 346. We will not reverse the trial court’s determination of whether a change in circumstances warrants modifying maintenance or child support absent an abuse of discretion. Spreen, 107 Wn. App. at 346 (maintenance); In re Marriage of McCausland, 159 Wn.2d 607, 616, 152 P.3d 1013 (2007) (child support).
Elisa contends that although Brian performed all his legal obligations under the terms of the decree, his failure to provide parental support or love, companionship, and guidance to his children since entry of the decree constituted a substantial change of circumstances. She maintains that Brian’s failure to provide any noneconomic parental support, coupled with V.L.’s disabilities, imposed heavy parental burdens and responsibilities on her that have severely limited her ability to pursue educational and professional opportunities. She argues that Brian’s “abandonment” of his children could not reasonably have been anticipated at the time of the dissolution decree and therefore warrants modifying maintenance and increasing the amount of child support.
Although the parties disagree on the underlying causes, the evidence is undisputed that Brian has had essentially no contact with his children since he moved permanently to Seattle. But Elisa does not indicate how, in light of these circumstances, Brian’s conduct after entry of the dissolution in 2001 was unanticipated. Nor did she submit any evidence of the circumstances surrounding the dissolution, her expectations of Brian’s participation in parenting the couple’s children, or how that participation would have affected her parental burdens and responsibilities.
Similarly, Elisa contends that V.L.’s developmental disabilities also placed additional and unanticipated burdens on her following the dissolution. But it is undisputed that V.L has suffered from significant disabilities since her birth in 1997. Although V.L.’s special needs were not mentioned in the decree, Elisa has not described the precise nature of V.L.’s disabilities at the time of the dissolution, how those disabilities affected Elisa’s parental responsibilities, and to what extent those responsibilities were unanticipated. Nor did Elisa submit any evidence detailing V.L.’s specific medical, educational, or financial needs, evidence necessary to support an award of child support that exceeds the economic table See Marriage of McCausland, 159 Wn.2d at 618.
We fully recognize, as did the superior court, Elisa’s obvious parenting skills, her dedication to her children, and the success she has enjoyed in the face of persistent challenges. But in order to show a significant and unanticipated change of circumstances, the party seeking modification must necessarily demonstrate the nature of the circumstances existing at the time of the dissolution. Elisa failed to submit any meaningful evidence to sustain this burden, relying instead on a few conclusory allegations in her supporting declarations. Because the evidence did not establish an unanticipated and substantial change of circumstances, the superior court did not abuse its discretion in refusing to modify maintenance and child support.[4]
Additional Evidence on Revision
Elisa alleges that the superior court improperly admitted new or additional evidence on revision. See State v. Ramer, 151 Wn.2d at 113 (on revision, superior court is limited to considering the evidence and issues before the commissioner). But this contention fails because she has not identified any specific evidence or issues that the superior court improperly considered.
Allegations of Fault
Elisa contends that the superior court erred in admitting evidence of fault into this modification proceeding. This contention rests on allegations in Brian’s pleadings that Elisa caused the disciplinary proceedings that led to Brian’s early retirement from NOAA. But Elisa makes no showing that the superior court accepted the allegations as true or even considered the allegations in making its decision.
Jurisdiction and Attorney Fees
Elisa repeatedly alleges that the trial court in the original dissolution proceeding lacked jurisdiction to enter the order of default and dissolution decree. She has also assigned error to the superior court’s refusal to award attorney fees. But she has not supported these contentions with any legal argument or citation to relevant authority. Accordingly, we decline to consider them. See Saunders v. Lloyd’s of London, 113 Wn.2d 330, 345, 779 P.2d 249 (1989).
Motion to Strike
In his response brief, Brian has moved to strike the overlength portion of Elisa’s opening brief and certain references to his current wife. The motion, which violates RAP 17.4(d), is denied.
Accepting counsel’s explanation that he overlooked this court’s denial of his motion to file an overlength brief, we consider the brief as filed. We note, however, that an overlength brief typically imposes an unnecessary burden on the court and opposing counsel and is frequently less effective than a well organized, succinct brief. Both counsel here would have been well advised to spend the time necessary to submit less rambling and more coherent briefs, and we trust that they will do so in the future.
Brian has also moved to strike defamatory references in Elisa’s brief to his “current wife.” But we cannot identify the allegedly offending passages from Brian’s vague descriptions and, in any event, the proper procedure under RAP 17.4(d) would have been to file a separate motion.
Attorney Fees on Appeal
Elisa requests an award of attorney fees on appeal under RCW 26.09.140. Brian argues that he is entitled to an award of attorney fees because Elisa’s appeal is frivolous and filed in bad faith. We deny both requests.
The superior court decision is affirmed; we deny Brian’s motion to strike and both parties’ requests for attorney fees on appeal.
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