FILED

002T OF APPEALS

DIMS10M ii

2013 NOV - 5 AM 8: 51

STATE OF WASHINGT O1A

BYM 4UTY

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In the Matter of the Marriage 'of: 

REGINA KATHERINE COTA, 

Petitioner, 

and

ANTHONY FRANCIS COTA, 

No. 43037 -1 - II

PUBLISHED OPINION

MAXA, J. — Anthony Cota appeals the trial court' s child support order requiring him to

pay for one -third ofhis daughter' s college expenses. He argues that the trial court ( 1) did not

have authority to order postsecondary educational support because his former wife did not

request the support award until after his daughter turned 18, ( 2) abused its discretion when it

determined that an award of postsecondary educational support was proper, and ( 3) violated

RCW 26. 19. 065( 1) because the award of postsecondary educational support increased his child

support obligation to more than 45 percent of his net income. 

We affirm on the first two issues. Because the 2010 child support order expressly

provided that Anthony' s1 support obligation would terminate at the age of majority except for

postsecondary educational support, the trial court had authority to order such support even

1 Because the parties in this case share the same last name, we refer to them by their first names. 

We intend no disrespect. 
No. 43037 -1 - II

though the request for postsecondary educational support was filed after the daughter turned 18. 

Further, the record supports the trial court' s conclusion that a postsecondary educational award

was appropriate under the factors outlined in RCW 26. 19. 090(2). However, we reverse and

remand on the third issue. We are constrained to hold that postsecondary educational expenses

constitute " child support" under RCW 26. 19. 065( 1), and therefore the trial court' s order

improperly required Anthony to pay more than 45 percent of his net monthly income in child

support without first finding good cause. 

FACTS

Anthony and Regina Cota divorced in 2006. The trial court entered an order of child

support providing for their two minor children,

2

ages 14 and 11. This initial child support order

provided for postsecondary educational support and required the parties to pay their pro rata

shares of any postsecondary educational expenses. 

In 2010, Regina requested that the trial court award specific postsecondary educational

support for their daughter Annamarie, who at that time was 17. The commissioner reserved

ruling on the issue, reasoning thatz ruling on postsecondary educational support was premature

because Annamarie had not yet been accepted to college and the amount of her educational

expenses was not yet clear. Consistent with that ruling, the commissioner modified the

applicable sections of the original support order to read as follows: 

3. 13 Termination of Support

Support shall be paid until the children turn 18 or until the children

graduate from high school, whichever occurs last, except as set forth in

Paragraph 3. 14 below. 

3. 14 Post Secondary Educational Support

Post - secondary support determination is premature and is reserved for

future determination. 

2 The couple has a third daughter who was age 18 at the time the order was entered. 

2
No. 43037 -1 - II

Clerk' s Papers ( CP) at 130. 

In 2011, Anthony moved to modify his child support obligation. Regina opposed the

motion and again requested that the commissioner award postsecondary educational support for

Annamarie. At the time of the motion Annamarie had turned 18, graduated from high school, 

and enrolled at Pacific Lutheran University. The total cost for the 2011 -12 school year was

22,282 after financial aid and scholarships. This amount was less than the cost to attend

Washington State University. Annamarie took out loans in her own name for $5, 474 and Regina

paid the remaining $ 16, 808. Regina requested that the commissioner order Anthony to

reimburse her for his pro rata share. 

Anthony opposed Regina' s request for postsecondary educational support. He argued

that Regina failed to adequately document Annamarie' s educational expenses and that the

commissioner did not have authority to award postsecondary educational support because

Annamarie was over 18 when the petition was filed. The commissioner rejected these arguments

and ordered Anthony to pay his pro rata share of the postsecondary educational expenses

pursuant to the statutory criteria and the 2006 order of child support." CP at 306. 

Anthony moved for revision of the commissioner' s ruling. The parties presented

evidence and argument regarding application of the factors in RCW 26. 19. 090(2) for evaluating

postsecondary educational support. The trial court denied the motion. In its oral ruling, the trial

court stated that it had evaluated the statutory factors and had determined that a postsecondary

educational support award was appropriate. The trial court also stated that it evaluated the

parents' " current and future capacity to pay." Report of Proceedings ( Dec. 2, 2011) at 34. Based

on these factors, the trial court ordered Anthony to pay his pro rata share of Annamarie' s 2011- 

12 college tuition and one -third of her future tuition. 
No. 43037 -1 - II

Anthony moved for reconsideration of the trial court' s ruling. He argued that the

payment of postsecondary educational expenses would increase his child support obligation to

more than 45 percent of his net monthly income, in violation ofRCW 26. 19. 065( 1). The trial

court concluded that postsecondary educational expenses were not included in the statutory cap. 

Anthony appeals the trial court' s order regarding postsecondary educational expenses and

denial of the subsequent motion for reconsideration. 

ANALYSIS

A. POST - MAJORITY MOTION FOR POSTSECONDARY EDUCATIONAL SUPPORT

Anthony argues that the trial court did not have jurisdiction to award postsecondary

educational support because at the time Regina made the request, Annamarie had reached age 18. 

However, the trial court clearly hadjurisdiction to address postsecondary educational support. 

In re Marriage ofMajor, 71 Wn. App. 531, 533 -36, 859 P. 2d 1262 ( 1993). At issue here is

whether the trial court had authority to order postsecondary educational support in light of RCW

26.09. 170( 3). See Major, 71 Wn. App. at 536. 

RCW 26.09. 170( 3) provides: " Unless otherwise agreed in writing or expressly provided

in the decree, provisions for the support of a child are terminated by emancipation ofthe child." 

For purposes ofthis statute, " emancipation" refers to the age of majority — 18. In re Marriage of

Gimlett, 95 Wn.2d 699, 702 -04, 629 P.2d 450 ( 1981). If a decree does not provide for postmajority support, a party must file a motion to modify to add such support before the child turns

18. Balch v. Balch, 75 Wn. App. 776, 779, 880 P. 2d 78 ( 1994). Conversely, if a decree

expressly provides for post- majority support, a court may modify such support as long as the

movant files a motion to modify before the " termination of support". Balch, 75 Wn. App. at 779. 

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No. 43037 -1 - II

Here, it is undisputed that the trial court entered its order requiring postmajority support

after Annamarie turned 18. Therefore, the question is whether, under the child support order in

effect when Annamarie turned 18, Anthony' s support obligation had terminated when Regina

filed her motion to modify. If such support had not terminated, the motion was timely. 

Interpretation of a child support order is a question of law that we review de novo." In

re Marriage ofSagner, 159 Wn. App. 741, 749, 247 P. 3d 444, review denied, 171 Wn.2d 1026

2011). In determining whether the child support order authorizes an award of postsecondary

educational support, we look to whether "the support- paying parent has notice that the support

obligation will extend past the age of majority." Rains v. Dep' t ofSoc. & Health Servs., 98 Wn. 

App. 127, 137, 989 P. 2d 558 ( 1999) ( citing Balch, 75 Wn. App. at 780). The rationale for

requiring post- majority support to be expressly provided in a decree is that the support- paying

parent must be " given advance notice of the termination date or event, rather than being forced to

wait for some elusive or fortuitous date of the dependency cessation." Gimlett, 95 Wn.2d at 703. 

Where the terms of a dissolution decree clearly state that support terminates upon the

occurrence of specific events, courts have held that the trial court lacked authority to consider a

postsecondary educational support award. In re Marriage ofGillespie, 77 Wn. App. 342, 347- 

48, 890 P. 2d 1083 ( 1995). In Gillespie, the dissolution decree provided that support would

continue until the child " shall reach the age of eighteen ( 18) years, shall marry, shall become

self - supporting or shall no longer be dependent upon the wife." 77 Wn. App. at 344 ( emphasis

omitted) (internal quotation marks omitted). After the child turned 18, the mother filed a petition

to modify the decree to provide for postsecondary educational support. Gillespie, 77 Wn. App. 

at 344. Division Three of this court held that the trial court did not have authority to modify the

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No. 43037 -1 - II

decree because the support obligation had terminated when the child turned 18 under the

conditions in the decree. Gillespie, 77 Wn. App. at 347 -48. 

However, the result is different if an order expressly extends support beyond the age of

majority. In Balch, the dissolution decree provided that "the children shall be supported until

they are no longer in need of support." 75 Wn. App. at 780 ( internal quotation marks omitted). 

The trial court declined to consider an award for postsecondary educational support because the

child had reached the age of majority at the time the modification petition was filed. Balch, 75

Wn. App. at 778. This court reversed, holding: 

Although this stipulated language lacks precision as to the duration and nature of

child support, it clearly expresses an intention to continue child support beyond

majority if [the child] remained dependent in fact. See RCW 26. 09. 170( 3). 

Further, the language is sufficient to put the payor parent on notice that the child

support obligation may continue after majority. 

Balch, 75 Wn. App. at 780. The court concluded that the decree language was " ` sufficiently

explicit' " under RCW 26.09. 170( 3) to allow the imposition of postsecondary educational

support. Balch, 75 Wn. App. at 780 ( quoting In re Marriage ofNielsen, 52 Wn. App. 56, 60, 

757 P.2d 537 ( 1988)). 

Here, both the original decree and the 2010 modification order expressly provided that

support would terminate when the child turned 18 ( or graduated from high school if later) except

for postsecondary educational support. The 2010 order did not state the amount of

postsecondary educational support or when the support obligation would end, but it clearly did

contemplate that support would continue beyond the age of 18. The trial court reserved for the

future the determination of whether postsecondary support would be appropriate and, if so, the

specific amount. And by referencing postsecondary educational support and reserving ruling for

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No. 43 03 7 -1 - II

a future date, the order put the parents on notice that their support obligations could continue past

the age of majority. Gimlett, 95 Wn.2d at 703; Balch, 75 Wn. App. at 780. 

Because the modification order " otherwise ... expressly provided" as required in RCW

26. 09. 170( 3) that the postsecondary educational support obligation would not terminate when

Annamarie turned 18, Regina filed her motion to modify before support terminated as required in

Balch. 75 Wn. App. at 779. Accordingly, the trial court had authority under RCW 26. 09. 170( 3) 

to modify its previous order and award postsecondary educational support. 

Our holding would be the same even ifthe modification order had not expressly extended

postsecondary educational support beyond the age of majority. Regina filed a motion before

Annamarie turned 18 requesting that the trial court award postsecondary educational support. 

The trial court reserved ruling on the issue because it was premature. To preclude Regina from

requesting postsecondary educational support after Annamarie reached age 18 when the trial

court ruled that the issue was premature at age 17 would be inequitable. Accordingly, we hold

that the trial court' s pre - majority ruling that the issue of postsecondary educational support was

reserved for a later date did not foreclose the trial court from ruling on the issue after the child

reached the age of majority. 

B. POSTSECONDARY EDUCATIONAL SUPPORT AWARD

Anthony argues that even ifthe trial court had the authority to consider a postsecondary

educational support award, it abused its discretion in deciding to make the award. We disagree. 

The trial court has broad discretion to order support for postsecondary education. Childers v. 

Childers, 89 Wn.2d 592, 601, 575 P. 2d 201 ( 1978); see also In re Marriage ofNewell, 117 Wn. 

App. 711, 718, 72 P. 3d 1130 ( 2003); In re Marriage ofKelly, 85 Wn. App. 785, 795, 934 P. 2d

7
No. 43037 -1 - II

1218 ( 1997). A trial court abuses that discretion when its decision is based on untenable grounds

or reasons. Newell, 117 Wn. App. at 718. 

RCW 26. 19. 090( 2) gives the trial court discretion to order support for postsecondary

educational expenses and sets forth criteria the trial court should consider when making such an

award. The trial court initially must find that the child is dependent and " relying upon the

parents for the reasonable necessities of life." RCW 26. 19.090( 2). Once that threshold

requirement is satisfied, the trial court must also consider the following non - exhaustive list of

factors: 

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. 

RCW 26. 19. 090( 2). " Also to be considered are the amount and type of support that the child

would have been afforded ifthe parents had stayed together." RCW 26. 19. 090( 2). 

Anthony argues that the record does not show that the trial court had properly considered

the factors in RCW 26. 19. 090( 2). However, the parties presented evidence and argument

regarding the factors, and the trial court stated that it had reviewed the factors to determine that

an award was appropriate. Although the trial court did not make extensive findings on the record

as to each factor, RCW 26. 19. 090 sets forth no requirement that the trial court explicitly consider

the factors on the record. In re Marriage ofMorris, No. 69430 -8 -I, 2013 WL 5310206, at * 7

3
No. 43037 -1 - II

Wash. Ct. App. Sept. 23, 2013). 3

And we presume that the court considered all evidence before

it in fashioning an order on postsecondary educational expenses. Kelly, 85 Wn. App. at.793. 

Further, the record supports the trial court' s conclusion that the postsecondary

educational support award was appropriate. Initially, the trial court knew Annamarie was a

recent high school graduate enrolled in a full -time university program and there was no evidence

that she had or was capable of earning an income sufficient to meet her " reasonable necessities

of life." RCW 26. 19. 090( 2). Accordingly, there was evidence from which the trial court could

reasonably find that she was dependent under RCW 26. 19. 090(2). 

With regard to the statutory factors, the trial court was aware of Annamarie' s age and the

cost of attending college. The 2006 child support order' s provision for postsecondary

educational expenses showed that Anthony and Regina expected to contribute to their children' s

college education. Annamarie' s admission to a highly regarded university and her receipt of a

5, 500 academic achievement scholarship demonstrated her aptitude and her abilities. The trial

court knew the nature of the education sought — attendance at Pacific Lutheran University. The

trial court had both parents' tax returns and pay stubs for the preceding two years to assess

3 We note that in In re Marriage ofShellenberger, 80 Wn. App. 71, 85, 906 P. 2d 968 ( 1995), 

Division One ofthis court held that before a trial court can require a parent to pay for

postsecondary educational expenses at a private institution, it must " make specific findings as to

the cost and availability of college education in the child' s chosen field at publicly funded

institutions." The court reasoned, "A trial court should not require objecting parents of modest

means to pay for private college where the child can obtain a degree in his or her chosen field at

a publicly subsidized institution." Shellenberger, 80 Wn. App. at 85. We note that this rule may

draw an arbitrary distinction between private and public schooling when a more appropriate

analysis would be on the actual cost of the school as compared to other reasonable alternatives. 

However, because Anthony does not raise this issue on appeal, we need not address the propriety

of the rule or whether the trial court properly complied with it in this case. Moreover, although

the trial court did not make specific findings on the issue, our review of the record shows that

Regina presented evidence that the net cost of attending Pacific Lutheran University was less

than the cost at Washington State University. 

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No. 43037 -1 - II

standard of living and resources. And the parents' level of education — neither attended college — 

did not necessarily negate a finding that it was appropriate for Annamarie to seek postsecondary

education. We do not second guess the trial court' s discretionary evaluation of these factors. 

See In re Parentage ofGoude, 152 Wn. App. 784, 791, 219 P. 3d 717 ( 2009) ( trial court does not

abuse its discretion in determining postsecondary educational support if it considers all factors in

RCW 26. 19. 090(2)). 

Anthony also argues that the trial court abused its discretion in ordering him to pay

postsecondary educational support because it would cause him an " undue hardship ". Br. of

Appellant at 9. In support of his contention, he cites In re Marriage ofShellenberger, 80 Wn. 

App. 71, 84, 906 P.2d 968 ( 1995), in which Division One of this court held that a trial court

abuses its discretion if it awards a postsecondary educational support obligation that would force

the obligor parent into bankruptcy or would require selling the family home. The court stated

that "[ t]his is especially true where the parent also supports a minor child, and the postsecondary

support obligation prevents the parent from meeting that obligation to the minor child." 

Shellenberger, 80 Wn. App. at 84. However, other than showing that his expenses exceeded his

income, Anthony did not demonstrate sufficient financial hardship to trump the trial court' s

discretionary ruling that postsecondary educational support was appropriate for Annamarie. 

We hold that the trial court did not abuse its discretion in awarding postsecondary

educational support because the record supports the conclusion that such support was appropriate

under RCW 26. 19. 090( 2). 

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No. 43037 -1 - II

C. 45 PERCENT CAP ON CHILD SUPPORT

Anthony argues that even if an award for postsecondary educational expenses was

appropriate, the trial court' s order violated RCW 26. 19. 065( 1) because it increased his child

support obligation to more than 45 percent ofhis net income.' RCW 26. 19. 065( 1) provides: 

Neither parent' s child support obligation owed for all his or her biological or legal children may

exceed forty -five percent of net income except for good cause shown." The statute defines

good cause" as " possession of substantial wealth, children with day care expenses, special

medical need, educational need, psychological need, and larger families." RCW

26. 19. 065( 1)( c).

5

The issue is whether the term " child support obligation" in the statute includes

postsecondary educational support. 

The interpretation of statutory language is a question of law that we review de novo. 

Advanced Silicon Materials, LLC v. Grant County, 156 Wn.2d 84, 89, 124 P. 3d 294 (2005). The

primary goal of statutory interpretation is to ascertain and give effect to the legislature' s intent. 

Dept ofEcology v. Campbell & Gwinn, LLC, 146 Wn.2d 1, 9, 43 P. 3d 4 ( 2002). "[ I]fthe

4

Anthony' s net monthly income at the time the trial court ordered him to pay postsecondary

support was $2, 169. 88. The trial court ordered him to pay $433. 66 per month in support for his

younger daughter and $ 8, 135. 07 for Annamarie' s college expenses. The college expense

reimbursement amounts to approximately $677. 92 per month if divided over a full year. 

Therefore, under the trial court' s order Anthony' s child support obligation totaled $1, 111. 58 per

month, or 51 percent of his net monthly income. 

5

RCW 26. 19. 065 was amended in 2009. LAWS OF 2009, ch. 84, § 2 ( eff. Oct 1, 2009). Former

RCW 26. 19. 065 ( 1998) provided: 

Limit at forty -five percent of a parent' s net income. Neither parent' s total

child support obligation may exceed forty -five percent of net income except for

good cause shown. Good cause includes but is not limited to possession of

substantial wealth, children with day care expenses, special medical need, 

educational need, psychological need, and larger families. 

Former RCW 26. 19. 065( 1). The changes do not affect our analysis. And because the

modification order increasing the child support award above 45 percent of Anthony' s net income

took place in 2011, we cite the current version of the statute. 

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No. 43037 -1 - II

statute' s meaning is plain on its face, then the court must give effect to that plain meaning as an

expression of legislative intent." Campbell & Gwinn, 146 Wn.2d at 9 -10. The plain meaning of

a statute is derived from all the legislature has said in the statute and related statutes that disclose

legislative intent about the provision in question. Campbell & Gwinn, 146 Wn.2d at 11. 

The child support statutes do not address the parameters of the term " child support". 

RCW 26. 19. 090 does not state whether " postsecondary educational support" constitutes " child

support". Similarly, RCW 26. 19. 011 — the definitions section of chapter 26. 19 RCW — does not

define " child support" or " child support obligation ". RCW 26. 19. 011( 1) does define "[ b] asic

child support obligation" as the " monthly child support obligation determined from the economic

table" set out in RCW 26. 19. 020. ( Emphasis added.) But use of the term " child support

obligation" in RCW 26. 19. 065( 1) contemplates a broader concept. There are no other statutes

that provide insight into whether the legislature intended to include postsecondary educational

support in the definition of child support obligation. 

We are guided by two cases tangentially discussing this issue. In In re Marriage of

Daubert, Division One of this court addressed the allocation of postsecondary educational

support in light ofRCW 26. 19.090( 1), which provides that the " child support schedule" is

advisory and not mandatory for postsecondary educational support. 124 Wn. App. 483, 499 -500, 

99 P. 3d 401( 2004), overruled in part on other grounds by McCausland v. McCausland, 129 Wn. 

App. 390, 118 P.3d 944 (2007). The issue was whether all of chapter 26. 19 RCW (entitled

Child Support Schedule ") was advisory or just the economic table set out in RCW 26. 19. 020. 

Daubert, 124 Wn. App. at 500 -01. In this context, the court stated (without analysis or citation

to authority) that "[ p] ostsecondary educational support is child support." Daubert, 124 Wn. 

App. at 502. Later in the opinion, the court used an example indicating that postsecondary

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No. 43037 -1 - II

educational support would count against the 45 percent cap in RCW 26. 19. 065( 1) when a

younger sibling is involved. 6 Daubert, 124 Wn. App. at 503. 

More significantly, our Supreme Court addressed the meaning of "child support" in In re

Marriage ofSchneider, 173 Wn.2d 353, 367 -68, 268 P. 3d 215 ( 2011). In Schneider, the court

addressed whether postsecondary educational support constituted " support" within the meaning

of the Uniform Interstate Family Support Act, chapter 26. 21 RCW. 173 Wn.2d at 367. The

court explained that postsecondary educational support " fits within the structure ofthe child

support statute in general" and in some situations " can function just like ordinary child support." 

Schneider, 173 Wn.2d at 368. Accordingly, the court concluded that postsecondary educational

support " is money paid to support a dependent child, therefore it is child support." Schneider, 

17' ) Wn.2d at 368. 

Although Schneider did not involve RCW 26. 19. 065( 1), we believe that our Supreme

Court' s statement that postsecondary educational support is child support controls here. 

Therefore, we hold that postsecondary educational support is part of a parent' s " child support

obligation" for the purposes of the 45 percent limitation in RCW 26. 19. 065( 1). The trial court

violated RCW 26. 19. 065( 1) when it set Anthony' s child support obligation, including

postsecondary educational support, at an amount greater than 45 percent. of his net monthly

income. 

We are aware that capping the child support obligation at 45 percent — including

postsecondary educational expenses — may in certain circumstances mean that a parent cannot be

required to pay such expenses, even when the RCW 26. 19. 090( 2) factors support payment. 

6

Similarly, in Morris, Division One assumed without discussion that postsecondary educational

support would be included in the 45 percent cap. 2013 WL 5310206, at * 9. 

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No. 43037- 1- 11

However, RCW 26. 19. 065( 1) allows the trial court to exceed the 45 percent cap " for good cause

shown ", which includes " educational need ". 

We affirm the trial court' s authority to award postsecondary educational support and its

determination that an award of postsecondary educational support was proper. But we reverse the

trial court' s postsecondary educational support order and remand to the trial court with directions

to comply with RCW 26. 19. 065( 1) by either reducing Anthony' s child support obligation to 45

percent of his net monthly income or determining that good cause exists for exceeding the 45

percent cap. 

Maxa, T

We concur: 

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