No. 21858-9-III.The Court of Appeals of Washington, Division Three. Panel Six.
Filed: January 20, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Chelan County. Docket No: 02-3-00376-0. Judgment or order under review. Date filed: 01/31/2002.
Counsel for Appellant(s), John Daniel Groseclose, Attorney at Law, 1950 Pottery Ave Ste 17, Port Orchard, WA 98366.
Counsel for Respondent(s), Nicholas Allen Yedinak, Kottkamp
Yedinak PLLC, 518 N Chelan Ave, PO Box 1667, Wenatchee, WA 98807-1667.
KURTZ, J.
Steve and Tammie Groseclose divorced after 14 years of marriage. In the decree of dissolution, the court ordered each party to pay a portion of the total attorney fees based on their proportionate share of income as set forth in the child support worksheets. Mr. Groseclose appeals, contending the court erred by awarding attorney fees without considering his financial resources or his inability to pay. We affirm the judgment of the trial court.
FACTS
Steve and Tammie Groseclose were married in October 1988 and divorced in January 2003 when their two sons were ages 2 and 11. Tyler, the older son, has special needs, including special education and care providers. Under the parenting plan, Ms. Groseclose was given primary custody of the children and Mr. Groseclose was granted visitation of three weekends a month, three weeks in the summer, and alternating holidays.
Ms. Groseclose completed one year of college and works part-time as a probation clerk. Her monthly gross income is $2,003 and her monthly net income is $1,643. Mr. Groseclose has several years of college and works as a detective for the Douglas County Sheriff’s Office. His yearly gross income is $41,874.56 and his monthly net income is $3,090, including some overtime.
At trial, evidence was presented indicating that none of the Douglas County detectives worked less than 200 hours of overtime in the 11 months preceding the dissolution. The court concluded that Mr. Groseclose would, on a more probable than not basis, work 180 hours of overtime in 2003. Ms. Groseclose was awarded the family home and a vehicle; Mr. Groseclose was awarded a boat and a vehicle. In his pretrial information, Mr. Groseclose requested the boat to offset the unequal distribution of property, but he acknowledged that the boat would probably be sold by the party receiving it to pay outstanding attorney fees and other debts. The court ordered Ms. Groseclose to pay community liabilities for the 1997 Ford Expedition, the mortgage on the family home, the VISA account, and personal loans. The monthly payment for the mortgage and vehicle total $1,504. There was $3,000 outstanding on the VISA account.
The court ordered Mr. Groseclose to pay a consolidation loan, a loan from his parents, a Les Schwab account, and lawsuit liability, if any. The monthly payment on the consolidated loan is $350. There was no evidence of the amount of the Les Schwab account or the loan to his parents. The court ordered Mr. Groseclose to pay child support to Ms. Groseclose in the amount of $711. The court also found that Ms. Groseclose had a financial need for maintenance of at least $450 per month. The court determined that Mr. Groseclose had the ability to pay maintenance of $250 per month and that Mr. Groseclose could change his W-4 and realize a tax benefit to pay $300 per month.
At issue here is the court’s award of attorney fees. The court concluded that:
Both parties have an equal inability to pay attorney fees. Each party shall submit a cost bill for reasonableness hearing and each party shall pay proportionate share of total (65.3% to 34.7%).
Clerk’s Papers (CP) at 35. Significantly, the court crossed out the word “equal” and added the word “an,” so that the phrase was changed from both parties having “equal inability to pay attorney fees” to both parties having “an inability to pay attorney fees.” CP at 35.
As a result, the court ordered the parties to pay their individual portion of the total cost of their legal representation based on their proportional share of income as set forth in the child support worksheets. In other words, the court totaled the attorney fees and required each party to be responsible for their proportionate share. This calculation resulted in the court ordering a transfer payment of attorney fees to Ms. Groseclose in the amount of $1,473.
Mr. Groseclose appeals, contending the court erred by ordering him to pay attorney fees absent a finding that he had the ability to pay these fees.
ANALYSIS
The award of attorney fees under RCW 26.09.140 is reviewed for an abuse of discretion. In re Marriage of Spreen, 107 Wn. App. 341, 351, 28 P.3d 769
(2001). An award of attorney fees will be reversed if the decision is untenable or manifestly unreasonable. Id.
RCW 26.09.140 allows the court, “from time to time after considering the financial resources of both parties,” to order one spouse to pay the reasonable costs of the other spouse’s defense or maintenance of the dissolution proceedings. “Generally, the needs of the requesting party must be balanced against the other party’s ability to pay.” In re Marriage of Williams, 84 Wn. App. 263, 272, 927 P.2d 679 (1996). In other words, the court must consider the parties’ relative need versus their ability to pay. In re Marriage of Shellenberger, 80 Wn. App. 71, 87, 906 P.2d 968 (1995).
Mr. Groseclose suggests the trial court had no authority to award attorney fees absent a finding that he had the ability to pay. To support this theory, Mr. Groseclose relies on In re Marriage of Edwards, 83 Wn. App. 715, 924 P.2d 44 (1996), and language in In re Marriage of Hoseth stating that a party relying on RCW 26.09.140 “`must make a showing of need and of the other’s ability to pay fees in order to prevail.'” In re Marriage of Hoseth, 115 Wn. App. 563, 575, 63 P.3d 164
(quoting Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 808, 929 P.2d 1204
(1997)), review denied, 150 Wn.2d 1011 (2003).
This argument is unpersuasive. The language in Hoseth requires a “showing” of need and ability to pay. Similarly, the language in RCW 26.09.140 requires the court to consider the financial resources of both parties. There is no requirement of a special finding that the party has the ability to pay. In contrast, Edwards examined an award of attorney fees under RCW 7.21.030(3) which permits a court to order a person found in contempt of court to pay attorney fees for losses suffered as the result of the contempt and the contempt proceeding. Edwards, 83 Wn. App. at 725. Given this statutory requirement, Edwards concluded that the trial court properly denied an award of attorney fees for a contempt proceeding that did not result in a finding of contempt. Id.
Mr. Groseclose next argues that the court abused its discretion in awarding fees in light of the finding that he had “an inability” to pay attorney fees. This argument is based on a misreading of the trial court’s decision. The court found that: “Both parties have an inability to pay attorney fees. Each party shall submit a cost bill for reasonableness hearing and each party shall pay proportionate share of total (65.3% to 34.7%).” CP at 35. In making this finding, the court crossed out the word “equal” and added the word “an.” CP at 35. Clearly the court’s statement that “[b]oth parties have an inability to pay” was only a part of the court’s examination of both parties’ financial resources. The court’s broader consideration of the parties’ resources led to the court’s conclusion that, balancing the parties’ relative need versus ability to pay, both parties should pay a proportionate share of the total amount of attorney fees.
Mr. Groseclose next argues that the court abused its discretion by assigning all of his resources to his basic needs, community debt, child support, and maintenance. In making this argument, Mr. Groseclose refers to a list of expenses set forth in his Pretrial Information Sheet — Financial Declaration of Appellant. This list shows expenses in the amount of $3,082.45. However, there is no evidence that the court adopted this list of expenses.
Finally, Mr. Groseclose contends the court’s award of fees constitutes an abuse of discretion because the court failed to consider his financial resources. The record before this court indicates that the trial court was well aware of the parties’ financial situation and that the court balanced the relative needs of the parties versus their ability to pay. Mr. Groseclose earns almost twice as much as Ms. Groseclose and has the ability to work overtime. Ms. Groseclose works part-time and was awarded the family home and more of the community debt. Ms. Groseclose was also granted primary custody of two children — one with special needs. The court found that Ms. Groseclose had a financial need for maintenance of at least $450 per month, but also concluded that Mr. Groseclose, with a change to his W-4 form, had the ability to pay $300 per month.
Simply stated, Mr. Groseclose believes that an award of attorney fees was manifestly unreasonable because he was already in debt. In In re Marriage of Casey, 88 Wn. App. 662, 668, 967 P.2d 982 (1997), the court upheld an award of attorney fees to the wife even though the evidence indicated that the husband was burdened with considerable debt and concluded:
We sympathize with Matthew. The dissolution left both parties in debt, albeit he more than she, and raising children is an expensive proposition. Nevertheless, the trial court found that Bevie has the need and he has the ability to pay her attorney’s fees, and the record supports the court’s discretionary determination.
Similarly here, both parties are left with some debt. Nevertheless, after carefully examining the financial resources of both parties, the court determined that each party should pay a share of the total attorney fees. Based on the record here, the court did not abuse its discretion when ordering the parties to pay a proportionate share of the total amount of the total attorney fees based on their proportional share of income as set forth in the child support worksheets.
Attorney Fees on Appeal. Both parties request attorney fees on appeal pursuant to RCW 26.09.140 and RAP 18.1. We deny those requests.
Affirmed.
The 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.
SWEENEY, J. and SCHULTHEIS, J., concur.