No. 43629-5-I.The Court of Appeals of Washington, Division One.
Filed: January 29, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of Skagit County, No. 95-3-00249-4, Hon. Michael F. Moynihan, October 13, 1998, Judgment or order under review.
Counsel for Appellant(s), Marc R. Roecks, Roecks Law Firm Pc, 103 N. Locust Rd. Ste. B, Spokane, WA 99206.
Counsel for Respondent(s), Dianne E. Goddard, P.O. Box 1013, 302 Pine Street, Mount Vernon, WA 98273.
RONALD E. COX, J.
At issue is the amount of maintenance that the trial court ordered John Thayer to pay Dorothy Thayer. We conclude that the court did not abuse its discretion by basing its award on gross rather than net income. We also hold that John’s failure to appeal the Property Division Order of May 1999 renders moot the survivor benefits issue that he raised in his appeal of the Amended Decree of October 1998. Accordingly, we affirm the award of maintenance and dismiss as moot the remainder of the appeal.
John and Dorothy Thayer separated in April 1995, after nearly twenty-seven years of marriage. Within weeks of the separation, Dorothy commenced this dissolution action. At the time of trial in October 1996, Dorothy was fifty-four years old, and John was fifty-two. The court entered a decree of dissolution that ordered John to pay Dorothy $940 per month in maintenance until he retired. The court based the amount of maintenance on John’s gross income. The court also awarded Dorothy one-half of the community portion of John’s PERS I retirement benefits as a public employee that accrued during their marriage. The court expressly retained jurisdiction to decide the question of whether Dorothy was entitled to an award of the survivor’s annuity benefits under PERS I.
In October 1998, the court entered an Amended Decree of Dissolution Nunc Pro Tunc (Amended Decree). It amended the original decree to comply with the statutory requirements for the division of PERS I benefits, and awarded Dorothy survivor’s benefits under the plan. John filed his notice of appeal from the original dissolution decree and the Amended Decree.
In May 1999, the trial court entered its Property Division Order under RCW 41.50.670 (Property Division Order). This order replaced the Amended Decree regarding the retirement benefits and the award of the survivor’s annuity to Dorothy. Neither party appealed this order.
Scope of Review
Dorothy argues that John did not timely appeal either the award of maintenance in the original decree or the survivor benefits award in the amended decree. Her arguments are wholly unpersuasive.
RAP 5.2(a) requires that a notice of appeal must be filed within thirty days of entry of judgment. The trial court entered the original dissolution decree in February 1997. It set the amount of maintenance in that decree. But the court expressly retained jurisdiction to decide the question of whether Dorothy was entitled to an award of PERS I survivor’s benefits. Thus, the original decree was not a final order and could not have been the subject of an appeal when entered.[1] The court resolved the question of survivor’s benefits in the Amended Decree. In October 1998, John timely filed his notice of appeal from that decree and the original decree.
Without citation to authority, Dorothy argues that, because the court gave the Amended Decree nunc pro tunc effect, John failed to timely appeal the award of survivor benefits contained in that decree. Because she cites no authority for this proposition, we decline to consider this argument.[2] Prior to oral argument, we asked the parties to address whether the Property Division Order rendered the decrees designated in the notice of appeal moot because we may no longer provide effective relief.
A case is moot if the court can no longer provide effective relief and only abstract questions remain.[3] `A party seeking review of a trial court decision reviewable as a matter of right must file a notice of appeal.’[4] The notice of appeal must `designate the decision or part of decision which the party wants reviewed.’[5] John timely appealed the October 13, 1998, Amended Decree. His notice of appeal specifically seeks review of the spousal maintenance provision in the original dissolution decree and the Amended Decree. He also seeks review of the award to Dorothy of survivor’s benefits in the Amended Decree. But he did not appeal the Property Division Order entered in May 1999. That order is now a final order that binds the parties to its terms.
The order purports to replace the Amended Decree `in its entirety.’ But a fair reading of the document is that it supersedes only those portions of the Amended Decree addressing retirement benefits and the survivor’s annuity.[6] Thus, the maintenance award in the decree, as amended, remains unchanged.
We also note that the Property Division Order does not carve out any exceptions with respect to further appellate consideration of the survivor’s benefits award that was on appeal at the time the court entered the order. We see no reason to go beyond the language of that order to consider survivor benefits issues contained in a superseded Amended Decree.
Because the Property Division Order is final and superseded the Amended Decree, John’s appeal of the Amended Decree is now moot. We cannot now grant relief with respect to the Amended Decree.[7] Accordingly, we need not address whether the court abused its discretion by awarding the entire survivor benefit to Dorothy.
Maintenance
John argues the trial court abused its discretion by ordering him to pay Dorothy $940 per month in maintenance until he retires. We are wholly unpersuaded by this argument.
This court reviews a maintenance award for abuse of discretion.[8]
The trial court abuses its discretion if it bases the award on untenable grounds or for untenable reasons.[9] “The only limitation on amount and duration of maintenance under RCW 26.09.090 is that, in light of the relevant factors, the award must be just.”[10]
RCW 26.09.090 sets forth the factors the trial court must consider in awarding maintenance. They include the financial resources of each party; their age, physical and emotional condition, the financial obligations of the spouse seeking maintenance; the couple’s standard of living during the marriage; the duration of the marriage; and the time needed by the spouse seeking maintenance to acquire education necessary to obtain employment.[11] Here, the trial court considered the requisite statutory factors in awarding Dorothy maintenance. An unchallenged finding was that John `enjoys an earning potential much greater than that of the wife,’ and that Dorothy had `devoted much of her time and energy to raising the children and keeping the parties’ home.’ The court noted that the `parties enjoyed a comfortable, though not luxurious, standard of living during the marriage,’ and that they both enjoyed relatively good health.
The court determined that Dorothy’s `employment as a lab technician with DynaCare Labs does not provide good job security,’ and found that her average gross income was $24,000, while John’s was $48,000.
The court found that, given John’s earning history and job security, he had the ability to pay maintenance. John argues that the court erred by relying on his gross income, rather than his net income, in determining the amount of maintenance. He argues his net income is $2,700 per month, and Dorothy’s is $1,200. After maintenance, he asserts his net income is $1,860, and hers is $2,140. John does not explain how he has calculated the parties’ monthly net incomes, and does not cite to the record. Even assuming the figures are accurate, they are not unjustly disparate. John also argues that Dorothy had sufficient education and experience to maintain the modest standard of living to which she was accustomed, and that she was not entitled to maintenance. The court clearly considered Dorothy’s education and experience, and expressly found that she was in need of maintenance in light of her `earning history and job security.’ The record contains ample evidence supporting the trial court’s findings.
We hold that the trial court did not abuse its discretion by ordering John to pay Dorothy $940 in maintenance until he retires. Attorney Fees Dorothy seeks attorney fees on appeal under RCW 26.09.140. The decision to award fees under RCW 26.09.140 is discretionary and must be based upon a consideration that balances the needs of the spouse seeking fees against the ability of the other spouse to pay.[12] Because Dorothy has made no showing of need by timely filing a financial affidavit as required by RAP 18.1(c), we deny her request for attorney fees.
We affirm the award of maintenance and dismiss as moot the remainder of the appeal.
WE CONCUR: APPELWICK, COLEMAN
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