No. 19492-2-III.The Court of Appeals of Washington, Division Three. Panel Six.
Filed: March 12, 2002. UNPUBLISHED OPINION.
Appeal from Superior Court of Walla Walla County, No. 99-3-00051-4, Hon. Robert L. Zagelow, July 14, 2000, Judgment or order under review.
Counsel for Appellant(s), Ronald K. McAdams, Mcadams, ponti Wernette, 103 E Poplar St, Walla Walla, WA 99362-3028.
Counsel for Respondent(s), William S. Lowry, 102 West Main St., Ste 200, Walla Walla, WA 99362-2856.
SWEENEY, J.
This is a dissolution case. Both husband and wife are physicians in their late forties. She is a board-certified anesthesiologist. He is a board-certified surgeon. They were married for 20 years and have four minor children. The trial judge listened to testimony over the course of six days on the usual dissolution issues, including the husband’s goodwill, separate and community property, and division of property. The primary sticking point on appeal arises out of the trial judge’s attempt to accommodate the desire of both physician-parents to work less at their professions and spend more time with their children.
The court awarded the father custody of the children for approximately 40 percent of the time. The mother will have them during the balance of the time. The court awarded the mother modest child support ($1,000 per month) on the assumption that both parties would be working at their respective medical professions. The court also awarded each party over $600,000 in property.
The wife contends that the award does not take into account her full-time care of the children for the nine years preceding the dissolution action, while the husband was advancing his career as a surgeon.
As is customary in dissolution cases, we first ask whether the nature of the dispute is such that we must defer to the trial judge responsible in the first instance for dividing property, awarding support, and making arrangements for custody and visitation. See In re Marriage of Landry, 103 Wn.2d 807, 809-10, 699 P.2d 214 (1985). That deference is required if the trial judge has exercised his or her broad discretion in a principled way consistent with appropriate legislative and judicial mandates. See
RCW 26.09.080 (property distribution); RCW 26.09.090 (maintenance); RCW 26.09.184, .187, .191 (parenting plan); chapter 26.19 RCW (child support); In re Marriage of Foley, 84 Wn. App. 839, 845, 930 P.2d 929
(1997) (trial court abuses its discretion by basing a decision on untenable grounds or untenable reasons).
The question ultimately, though, is not whether we would have viewed the evidence differently — as we may well have here — but rather, whether this judge made a principled decision. Our careful review of this record suggests that he did. We therefore affirm the decree of dissolution, but reverse and remand for further consideration of child support based on errors in the worksheet.
FACTS
Sue Allison Field and Frederick Ian Fieldz[1] divorced after 20 years of marriage. Fred is a surgeon. Allison is an anesthesiologist; although she stayed at home to care for the children for the nine years before the trial of this case. The children were, at the time of trial, 12, 9, 7 and 4 years old. Both Fred and Allison have taught in their respective special areas of practice. The Fields separated on January 23, 1998.
Allison asked the court to award long term and substantial spousal maintenance and child support ($9,662.89 per month). She also asked the court to value the effect of the nine-year interruption to her medical career and award her a lump sum. The term used by scholars is “career opportunity foregone.” See Margaret F. Brinig June Carbone, The Reliance Interest in Marriage and Divorce, 62 Tul. L. Rev. 855, 877 (1988). The court refused.
Following the separation, Fred cut back on his practice and wanted to spend more time with his children and less time practicing medicine.
The court awarded custody and visitation which accommodates the desire: Fred and Allison split the week during the school year with one parent having the children from Friday afternoon to Tuesday morning, and the other parent from Tuesday morning until Friday afternoon. The portion of the week spent with each parent varies by school quarter. Each parent received the same amount of visitation during the school year, with the exception that Allison has more time with the youngest child.
Winter vacations are divided equally between the parents. Each parent receives all four children during alternate spring vacations. And summers are divided equally between Allison and Fred.
In sum, Fred and Allison intended to be “equal parents.” As a reflection of this belief, both parents are designated as co-parents with Allison being designated as the primary residential parent if such designation is required by law. Parenting Plan Final Order (Walla Walla County Superior Court No. 99-3-00051-4, filed July 14, 2000) at 6.
The court awarded $640,358 in community property to Allison and $614,357 in community property to Fred. It also awarded separate property to each. The community property included the goodwill of Fred’s practice.
There was conflicting testimony as to the value of the goodwill. The court calculated the goodwill by multiplying the excess of Fred’s actual earnings over those of a hypothetical employee surgeon and then multiplying that sum by a “capitalization rate” of 4.5 to arrive at goodwill of $173,250. Allison and her experts took issue with the court’s calculation. She argued that, because Fred had cut back on his practice the past two years, his earnings were greatly reduced. And therefore this resulted in too low of a figure for professional goodwill.
The court also rejected the application of the notion of career opportunity foregone, based upon Allison’s professional experience and testimony that she could easily retrain and become a productive anesthesiologist within one year.
The trial court ordered spousal maintenance of $5,500 a month for 21 months. The court also established a re-education trust fund for Allison of $40,000. Allison appeals the judge’s decision.
STANDARD OF REVIEW
We review a trial judge’s decision in a dissolution case for abuse of discretion, and abuse of discretion only. It is not our prerogative to substitute our judgment on difficult social and economic questions for that of a locally elected trial judge sitting as a finder of fact. See 21 Kenneth W. Weber, Washington Practice: Family and Community Property Law sec. 51.27, at 242-48 (1997).
Justice Brachtenbacht’s admonition to appellate courts on this subject is as applicable today as when he penned it in 1985:
We once again repeat the rule that trial court decisions in a dissolution action will seldom be changed upon appeal. Such decisions are difficult at best. Appellate courts should not encourage appeals by tinkering with them. The emotional and financial interests affected by such decisions are best served by finality. The spouse who challenges such decisions bears the heavy burden of showing a manifest abuse of discretion on the part of the trial court.
Landry, 103 Wn.2d at 809 (emphasis added).
And while we take issue with Justice Brachtenbacht’s pronouncement of the standard of review (“[t]he trial court’s decision will be affirmed unless no reasonable judge would have reached the same conclusion”), we nonetheless find that so long as the trial judge’s decision is principled, based upon tenable grounds or tenable reasons, it should be affirmed. Id. at 809-10; In re Marriage of Knies, 96 Wn. App. 243, 253, 979 P.2d 482 (1999) (trial court’s discretionary decision based on tenable grounds will be affirmed).
There is no way to have an ironclad list of rules to govern all decisions in a dissolution case. The best that can be done is to establish a set of guidelines to structure the trial judge’s decision-making process in these matters. And both the Legislature and the courts have done that. So long as the judge’s decisions are based upon tenable grounds or tenable reasons, they should be affirmed. Knies, 96 Wn. App. at 253.
OVERVIEW
The court’s division of property and its award of spousal maintenance and child support are based upon a number of fundamental assumptions. The first is that both Fred and Allison are professional physicians capable of earning substantial incomes, even if they work on a part-time basis. This assumption is amply supported by the record. Second, the court assumed that both Fred and Allison want to work less and spend more time with their children. That assumption affected not only the custody, child support, and spousal maintenance award, but also influenced the court’s goodwill calculation. The evidence and reasonable inferences to be drawn from that evidence was both conflicting and substantial. But both the weight to be given to the evidence and the inferences to be drawn from that evidence are for the trial court — not for us. In re Marriage of Rich, 80 Wn. App. 252, 259, 907 P.2d 1234 (1996).
GOODWILL
First and foremost, the value of professional goodwill is a question of fact. In re Marriage of Hall, 103 Wn.2d 236, 246, 692 P.2d 175 (1984). The preferred accounting method for estimating the value will, therefore, depend on the nature of the proof offered. In re Marriage of Luckey, 73 Wn. App. 201, 206, 868 P.2d 189 (1994). The goal with any division of property is to make an award that is just and fair. Id. Experts at trial valued Fred’s goodwill at anywhere from $150,000 to $475,000 based upon well-accepted accounting procedures. The court ultimately found Fred’s goodwill to be $173,250. The testimony on goodwill was conflicting. Suffice it to say that the court’s determination of goodwill was well within the range of the evidence. In re Marriage of Mathews, 70 Wn. App. 116, 122, 853 P.2d 462 (1993) (valuation within scope of evidence will not be disturbed on appeal).
The primary point of contention on goodwill was the court’s use of the two years immediately preceding the trial to establish Fred’s income. Allison argues that under the Hall case, the average net income should be for the previous five years. Hall, 103 Wn.2d at 244. During the two years selected by the court, Fred had voluntarily reduced his work. And that necessarily affected the goodwill determination because the amount of “excess earnings” to be capitalized was substantially less than it would have been during Fred’s peak earning years. Allison argues that he should not be allowed to voluntarily reduce his work schedule. But as with child support, and ultimately the court’s refusal to award anything for career opportunity foregone, the judge explained his rationale for that decision in a lengthy colloquy with the lawyers following trial:
A more serious concern that I had, that Ms. Thompson [Allison’s expert] and Mr. McAdams [Allison’s attorney] brought out was that I have calculated it on the basis that he is not working as hard as he used to. And again, Ms. Thompson cites the case, I think it’s the Hall case, that says that’s why you use multiple years. You don’t want the person in question to be able to cut back and limit the income. And arguably, that’s what I’ve allowed to happen.
Here again, I think it’s fair what I’ve done that he isn’t working the same kind of hours, and I do feel it was in good faith. Now, Ms. Thompson said that’s irrelevant. If he is able to work more he ought to work more and you should give him credit for it, and I disagree with her at that point. It is really, it gets to be almost a philosophical question. How hard should you have to work as a professional? And with professionals, it’s particularly difficult, including the lawyers in this room. Professionals tend to be hard workers, driven people. It’s real easy to be a workaholic as a professional whether you are a lawyer or doctor, or anything else. And you are used to working hard in school and you get out and you work hard. And you can build a big practice and you can make a lot of money. But you can, it takes a tremendous toll on you. It’s hard on your health. It’s hard on your marriage, hard on your family life. And I’m sure everyone in this room has been there. And at what point in time is it reasonable to say I’m not going to do that anymore? I’m not going to try to earn 250, $300,000 a year. I know I can do it, but I don’t want to. I want to spend some time with my kids. It’s — you can over do that, too. And but it just seems to me that there has to be some sort of good faith reasonableness there.
I find that Dr. Fred Field falls in that category. He is still working reasonable hours, given the rather substantial responsibilities he has with his children. I understand he could work more. But I don’t think that he has to comply with the Hall case. I want the Court of Appeals to be aware that I am aware that I could be criticized, but I think it’s fair to all concerned.
Report of Proceedings (RP) (Vol. 8) at 43-44 (emphasis added).
Again, the question is not whether we may disagree with that rationale. The question is whether it is both a tenable ground and a tenable reason for doing what the judge did. See In re Marriage of Ieronimakis, 66 Wn. App. 83, 118, 831 P.2d 172 (1992) (Kennedy, J., dissenting) (“So long as the trial court exercised its discretion based on tenable grounds and for tenable reasons, this appellate court has no business substituting its judgment for that of the trial court, even if we, on the same evidence, may have decided the issue differently.”).
Here, the court found on the basis of Fred’s 1998 and 1999 earnings that his compensation was $214,500. The court, again on disputed testimony, used an “average employee salary” of $170,000. The capitalization rates again ranged from a low of 3 to a high of 5. The court used 4.5 as the capitalization rate. The court’s award of goodwill was well within the evidence.
CAREER OPPORTUNITY FOREGONE
“Career opportunity foregone” is a legal concept designed to compensate a spouse (usually the wife) for foregoing career opportunities, that is, sacrificing her own professional development (and opportunities for increased professional compensation) for the sake of the family. Most commonly, it is the wife who delays her education and entry into the job market to stay home with children. See Clapp v. Clapp, 163 Vt. 15, 653 A.2d 72 (1994).
In Washington, a close, but not perfect, parallel is In re Marriage of Washburn.[2] There, the court awarded maintenance to a spouse who supported the other spouse through a professional school but was then forced into the job market after the marriage dissolved. The court directed that one of the factors the trial judge could consider in determining the amount of compensation was the opportunities given up. In re Marriage of Washburn, 101 Wn.2d 168, 181, 677 P.2d 152 (1984).
The judge here rejected not the concept of career opportunity foregone, but rather its application to the particular facts presented by Allison and Fred:
And I think I said in my decision, and I still feel, that there may well be such a concept, but again, I just don’t think it’s applicable in this case. That concept, whether it’s considered to be a contingent liability, is one theory, or there are other theories. It comes down to someone having been short-changed. That someone gets a benefit and someone gets a corresponding loss. And it’s usually the professional who is on his way and the spouse that either stayed home with the children or was out working gets left behind. And it’s true. That can be unfair. But in this case, I really don’t see it as applicable because in this case both of the parties have their medical degrees.
Now, I realize to the extent Mrs. Allison Field gets back into practice, she starts out at somewhat of a disadvantage because she doesn’t have the established practice that Dr. Fred Field has. But as I said in my decision, the problem with that analysis is that it is not a limiting factor. The limiting factor is that she wants to practice only part-time, certainly not full-time, because of the children. So to the extent she doesn’t earn what an anesthesiologist would have been earning had she worked straight through, it’s because she doesn’t want to work full-time. So it just seemed to me that the analysis really wasn’t applicable.
RP (Vol. 8) at 45-46 (emphasis added). Another factor supported by the evidence that militates against an award for career opportunity foregone here is evidence from the wife’s expert that she can retrain to be an anesthesiologist within one year. RP (Vol. 1) at 163-64. And the court set aside a $40,000 trust fund for Allison’s re-education. Again, while the denial of any award for the time Allison spent raising children might strike some as unreasonable, the question is whether there are principled grounds for the court’s decision. There are.
SPOUSAL MAINTENANCE
Allison argues that the court set her 21-month spousal maintenance too low for two reasons. First, the court underestimated Fred’s income at $200,000 per year. And second, it improperly subtracted taxes from the gross income before calculating the maintenance. Fred’s response is that the award here, 32 months of maintenance at $5,500 per month, is more than adequate for a 44-year-old board-certified anesthesiologist with $640,000 in assets and substantial earning potential.
The testimony on Fred’s income ranged from $160,000 to $249,000 per year. The court’s figure, $200,000, was again well within the range of testimony. There was then by definition no abuse of discretion. In re Marriage of Sedlock, 69 Wn. App. 484, 491, 849 P.2d 1243 (1993).
The court estimated taxes at $45,000 per year. It then subtracted taxes from Fred’s annual income and divided the remainder in half to arrive at Allison’s maintenance award. At first blush, it appears that Allison will be paying the taxes twice. Once because the maintenance award is based upon a sum reduced by the amount of taxes. And again because she will be required to pay taxes on the maintenance she receives. The court recognized this, however, and nonetheless set the maintenance at $5,500. Again, the decision is subject to the abuse of discretion standard and there is no abuse of discretion here.
FINDING OF SEPARATE PROPERTY
The court found that Fred’s payment on his current home and payment to his retirement account was his separate property. Allison argues that both payments were made in May of 1999 and represented a return of goodwill on capital assets, accounts receivable, and work in progress and as such are presumed to be community funds. And that property purchased shortly after separation is presumed to have been purchased with community funds. Sedlock, 69 Wn. App. at 509. Fred responds that both payments were paid from a personal account 14 months after separation. And therefore he argues that the court correctly concluded, based on the evidence, that the funds for both his home and retirement account were not community property.
The court at first found that Fred’s $24,000 payment to his Vanguard retirement account was his separate property, but that his $35,000 payment to purchase his home was community property. Fred moved for reconsideration arguing that the house purchase payment was made with his separate funds and therefore should have been characterized as his separate property. In addition, Fred pointed out that the court characterized the retirement payment as his separate property, but had mistakenly included it in a retirement account characterized as community funds and awarded to him. Fred asked the court to equalize the community property based on these corrected numbers. The court agreed with Fred and changed the findings and conclusions of law to reflect that both the $24,000 retirement payment and the house purchase payment are Fred’s separate property and that his community property retirement account contained $24,000 less. The court refused, however, to change the community property division based on these changes.
Allison contends that the court mischaracterized the house purchase payment and the retirement payment as Fred’s separate property when they were both community property. Even if this was a mischaracterization, it is clear to us that the court would have made the same division of the property. A remand would not change anything and is not then required. In re Marriage of Stachofsky, 90 Wn. App. 135, 147, 951 P.2d 346 (1998).
COURT’S DIVISION OF PROPERTY
Allison contends that the property division was inequitable. A trial court’s division of marital property will not be reversed absent a showing of manifest abuse of discretion. In re Marriage of Wright, 78 Wn. App. 230, 234, 896 P.2d 735 (1995). Appellate review is limited to whether the trial court’s distribution of property was fair and equitable. Id. The parties’ relative health, ages, education, and employability are considered in property divisions, and the ultimate concern is the economic condition of the parties upon the dissolution decree. Mathews, 70 Wn. App. at 121.
RCW 26.09.080 requires the trial court to make a disposition of the property which is “just and equitable.” The court is directed to consider “all relevant factors,” including but not limited to: (1) the nature and extent of community property; (2) the nature and extent of separate property; (3) the duration of the marriage; and (4) the economic circumstances of the spouses at the time the division of property is to become effective. RCW 26.09.080.
Allison is a relatively young, board-certified anesthesiologist with teaching experience in a medical school and an earning potential of approximately $220,000 per year. She received $640,358 in community assets and Fred received $614,357 in community assets. The property division tracks the statutory factors. RCW 26.09.080. There was no abuse of discretion and the property division is, therefore, affirmed.
CHILD SUPPORT
Allison contends that the court erred by setting the child support at $1,000 per month because the court failed to calculate Fred’s income as if he were working full time, failed to include Fred’s income from his separate property, and failed to set support beyond the advisory level even though Fred’s income exceeds the economic table.
A trial court’s setting of child support will not be disturbed on appeal unless the spouse challenging the decision demonstrates a manifest abuse of discretion. In re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). When setting child support, the trial court must first compute the total income of the parents (RCW 26.19.071); determine the standard child support level from the economic table (RCW 26.19.020); decide whether to deviate from the standard calculation, based upon consideration of statutory factors (RCW 26.19.075); and allocate each parent’s support obligation (RCW 26.19.080). In re Marriage of Maples, 78 Wn. App. 696, 700, 899 P.2d 1 (1995).
The child support worksheet shows the Fields’ combined monthly net income to be $12,696.92. This amount is substantially higher than the $7,000 maximum on the economic table. But the court chose to use the $7,000 child support level in its calculations. It is within the court’s discretion to decide not to deviate. RCW 26.19.020. The court did, however, make a couple of errors on the child support worksheet. Allison’s income from spousal maintenance is listed at $6,500, but maintenance was actually reduced to $5,500. Also, in calculating Fred’s support obligation the court first subtracted $700 for school tuition, then stated that Fred would pay the $700 tuition in addition to the child support. If the school tuition was to be solely Fred’s responsibility, the court should have used Fred’s basic child support obligation from line 7 of the worksheet as Fred’s transfer payment. We remand for recalculation of child support to correct these two worksheet errors.
ATTORNEY FEES
Allison contends that the court abused its discretion by failing to award her attorney fees at trial. The court’s award of attorney fees is reviewed for an abuse of discretion. State ex rel. Stout v. Stout, 89 Wn. App. 118, 126, 948 P.2d 851 (1997). Attorney fees are recoverable under RCW 26.09.140 in a dissolution action. In awarding fees, the court must balance the needs of the spouse requesting fees with the ability of the other spouse to pay. In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989).
Here, the court found that the award of substantial property and maintenance enabled Allison to pay her own attorney fees and costs. Allison received $640,000 in community property, most of it in cash. Fred received $614,000 in community property and $280,000 in separate property. Although Fred is in a better position to pay attorney fees, Allison has sufficient funds to pay her own fees. Therefore, we cannot say that the court abused its discretion by denying her request for attorney fees.
Allison also requests attorney fees on appeal, having submitted a declaration showing expenses well in excess of her monthly income. In determining whether to award attorney fees on appeal, the court examines the arguable merits of the issues on appeal and the financial resources of the respective parties. In re Marriage of Vander Veen, 62 Wn. App. 861, 869, 815 P.2d 843 (1991). Having done so, we agree with the trial court that the award of property and maintenance should be sufficient for her to pay her attorney fees on appeal.
CONCLUSION
We affirm the court’s substantive decree, and remand for recalculation of child support.
A majority of the panel has determined that 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.
KURTZ, C.J. and SCHULTHEIS, J., concur.