FILED

QI#, ZT OF APPEALS

IN THE COURT OF APPEALS OF THE STATE OF WASHINGT& I S I M I l

DIVISION II

In re the Marriage of: 

VERNON RUSSELL BLANK II, 

Respondent, 

V. 

AMANDA L. BLANK, 

20Ili JAN 2 AM 9: 17

STA S

Imo'. Sij(N ON

No. 42959 -4 -II

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UNPUBLISHED OPINION \, 

PENOYAR, J. — Amanda Blank and Russell Blank both appeal the trial court' s

modification of the child support order and the order on postsecondary educational support

relating to their dissolution. Amandal contends the trial court rested its decisions on

unreasonable or untenable grounds when it: ( 1) failed to include all Russell' s income when

calculating his child support obligation, (2) determined their younger son Ryan was not enrolled

in high school during certain periods, ( 3) did not make Russell pay his full share of their elder

son Adam' s postsecondary educational expenses at the University of Idaho, ( 4) ordered that

Ryan' s postsecondary costs be shared by Ryan, Amanda, and Russell in equal one third shares, 

5) - failed to - include - Adam' s Sylvan -Learning - Center- expense in Russell' s -- postsecondary - - 

educational support obligation, and ( 6) failed to award her reasonable attorney fees. On cross

appeal Russell argues the trial court rested its decisions on unreasonable or untenable grounds

when it: ( 1) calculated Russell' s net monthly income to include some income from his spouse, 

2) ordered that Russell pay child support for Ryan beyond June 2010, Ryan' s anticipated date of

graduation from high school, ( 3) required Russell to contribute to Ryan' s and Adam' s

postsecondary education, and (4) failed to award him reasonable attorney fees. 

1 We use the parties' first names for clarity and intend no disrespect. 
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First, we hold that the trial court erred when it calculated Russell' s income and remand

for the trial court to include all personal expenses paid by Russell' s business in his income. 

Second, we hold the trial court erred by finding Ryan not enrolled in high school for the months

of February, March, July, and August 2010 and remand for the trial court to revise Russell' s

child support obligation. Third, because the trial court must base the postsecondary educational

support obligation on the relative income of the parties, we remand for the trial court to

apportion the two thirds share of Ryan' s postsecondary expenses allocated to Russell and

Amanda based on their respective incomes. Fourth, we hold the trial court erred when it failed to

find Russell intransigent and failed to award Amanda reasonable attorney fees and remand for an

entry of reasonable attorney fees for Amanda. Finally, we award Amanda reasonable attorney

fees on appeal. Regarding the remaining issues, we hold the trial court reasonably exercised its

discretion when it ordered child support and postsecondary support. 

FACTS

I. INITIAL PROCEEDINGS

Russell and Amanda divorced on December 29, 1993. In re Marriage of Blank, No. 

39483 -9, 2010 WL 4308204, at * 1 ( Wn. App. 2010). They have two children, Adam, who was

born on April 17, 1989, and Ryan, who was born on November 11, 1991. Blank, 2010 WL

4308204, at * 1. Russell owns his own photography business, Perler Photography, Inc., which his

wife, Leann Blank, helps him manage. On July 31, 2008, Russell filed a petition for

modification of child support, requesting that the court ( 1) enter a new order for child support

payments, ( 2)- order repayment or credit for overpaid child support, and ( 3) award alternating

years for tax exemptions between Russell and Amanda. Blank, 2010 WL 4308204, at * 1. On

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December 29, 2008, Russell filed a motion for an order setting child support for Ryan, a minor

child at the time. Blank, 2010 WL 4308204, at * 1. 

The superior court commissioner issued a letter ruling concluding that Amanda' s income

was $ 4, 738 and Russell' s was $ 7,600, making Russell' s support obligation for Ryan. $750 per

month. Blank, 2010 WL 4308204, at * 1. The superior court commissioner denied both parties' 

requests for attorney fees. Blank, 2010 WL 4308204, at * 1. 

After the trial court denied Amanda' s and Russell' s motions for revision, Amanda

appealed to this court, arguing that the trial court failed to conduct a de novo review of the record

before the commissioner which resulted in an improper calculation of Russell' s income. Blank, 

2010 WL 4308204, at * 1. Amanda further argued that the trial court erred when it did not award

her reasonable attorney fees. Blank, 2010 WL 4308204, at * 1. We held that: 

T]he record of the trial court proceedings does not contain the trial court' s

explanation of its basis for denying Amanda' s motion to revise the final order for

child support and fails to demonstrate how it calculated [ Russell' s] child support

obligation. Because the record does not adequately support the trial court' s ruling

as to [ Russell' s] income, its rulings regarding tax exemptions and attorney fees

are not supported by substantial evidence.... Accordingly, we vacate the trial

court' s final order for child support and remand for further proceedings. 

Blank, 2010 WL 4308204, at * 1. 

II. PROCEEDINGS ON REMAND

On remand, the trial court undertook a complete review of all documents, pleadings, 

transcripts, letter rulings, and sealed financial records. The trial court also heard reargument

regarding the original motions for revision filed by each party as to the child support order. The

trial court reviewed the record before the trial court commissioner de novo and issued a letter

ruling on March 22, 2011. 

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In the letter ruling, the trial court found that Russell' s monthly income was $ 7, 708. 12 and

provided detailed findings supporting that number. The trial court started with Russell' s 2008

W -2 income with a credit given for $2, 000. 00 for his voluntary pension payments. The trial

court then allocated 25 percent of Leann' s net monthly income to Russell because Russell " has

discretion to set salary for himself and his spouse [ and] Leann Blank' s salary is higher than

Russell' s], even though he owns the company." Clerk' s Papers ( CP) at 1273. The trial court

also found that 50 percent of Perler' s 2008 business expenses, plus a $ 1, 835. 16 shareholder loan, 

should be considered personal expenses of the marital community, less " the $250 per bi- weekly

paycheck reimbursed by Leann Blank to the corporation for personal expenses incurred for the

benefit of the marital community," totaling $ 38, 204.55. CP at 1274. The trial court then

designated 50 percent of the $ 38, 204.55 to Russell, for a total of $19, 102.28 for the year and

1, 591. 86 per month. The trial court also found that 20 percent of Perler' s monthly vehicle

expense should be attributed as Russell' s personal expense, in the amount of $165. 24 per month. 

Applying these calculations to the child support worksheet, the trial court found that Russell' s

net monthly income was $ 7,708. 12. 

Based on his net monthly income and the child support guidelines in effect as of May

2009, Russell' s child support obligation for Ryan was $755. 16 per month, with an effective date

of August 1, 2008. The percentages set in the child support worksheet were 62 percent for

Russell and 38 percent for Amanda. The trial court found that the parties were required to pay

for Ryan' s uninsured medical expenses or other extraordinary expenses at the stated percentages. 

The trial court did not revise the commissioner' s

ruling denying attorney fees. Looking

solely at Russell' s conduct in the current petition and related motions, the trial -court found that

Russell did not engage in fraud or intransigence, in part, because he had " disclosed over 2000

M
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pages of financial. documents in response to discovery requests." CP at 1276. The trial court

also found that each parry should bear their own fees under RCW 26.09. 140 because Russell did

not have the ability to pay the fees requested, nor did Amanda have the need.

2

The trial court

reserved making a decision on medical insurance, postsecondary educational support, and for

over - payment and /or back support until further presentation. 

III. MOTIONS FOR RECONSIDERATION

Amanda moved for reconsideration of the trial court' s letter ruling, arguing that the trial

court ( 1) overlooked certain items when calculating Russell' s 2008. income, ( 2) erred by not

finding that Amanda is entitled to attorney fees, and ( 3) erred by finding that Russell did not

engage in fraud or intransigence. The trial court held a hearing on Amanda' s motion for

reconsideration and to enter an order on child support. The trial court granted Amanda' s motion

for reconsideration in part and modified Russell' s income slightly to correct a mistake in its letter

ruling that stated Leann made biweekly payments of $250 to Perler, when she actually made

semimonthly payments of $250 to Perler. This modification, however, did not change the

monthly child support payment. The trial court denied the remainder of Amanda' s motion. 

Russell moved for reconsideration of (1) the court' s determination that income generated

by Leann be imputed to Russell in calculating his net monthly income, and ( 2) the orders that

2 The trial court also found that

T]he Petition was prompted by and necessitated by the older child reaching the

age of majority and changes in the law affecting extrapolation. This court finds

that the Petition was brought in good faith[.] Finally, this court is also mindful

that Amanda Blank has made no showing that she actually paid any attorney' s

fees to Mr. Berry and therefore, has not made the requisite showing ofneed. 

CP at 1276. 

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require Russell to continue paying any form of child support for Ryan because he is beyond age

18 or beyond what would have been his normal graduation date. Amanda also moved for a

determination of postsecondary support for Adam and Ryan. 

At a hearing on the motions, the trial court determined it was appropriate and fair to

attribute some of Leann' s income to Russell. The trial court, however, revised the calculation

used to determine how much of Leann' s income to attribute to Russell and also modified the

shareholder loan figure considered as income, which resulted in a new child support payment

amount of $772.21. 3

IV. RULINGS ON CHILD SUPPORT AND POSTSECONDARY SUPPORT

On June 15, 2011, the trial court orally ruled Russell was not required to pay child

support for Ryan for the months of February, March, July, and August 2010 because it found

Ryan was not enrolled in high school for those months. Ryan signed up for Running Start

classes at Pierce College in January 2010, but the trial court found he was not enrolled because

he received no credits for the classes and was not otherwise in high school.4 The trial court

found that Ryan was not enrolled in July and August 2010 because he was 18, he had not

graduated from high school, and he was not earning any credits. With the exception of the

months of February, March, July, and August 2010, the trial court also found that Russell must

3

To determine of the amount of Leann' s income that should be imputed to Russell, the trial court

took both Russell' s and Leann' s gross salaries and averaged them to come up with a difference

of $569.75 a month. The trial court did not deduct the $ 250.00 semimonthly payments with the

new calculation. The trial court still attributed 25 percent of the business expenses as Russell' s

personal expenses and factored in a $ 12, 000.00 shareholder loan. 

4

Ryan turned 18 on November 11, 2009, which was the fall term of his senior year. He would

have graduated in June of 2010 if he had graduated on track. The trial court noted that Ryan

struggled academically but that there was no question Amanda was entitled to child support for

Ryan through his 18th birthday. So the trial court looked at what Ryan was doing at the end of

fall term 2009, going into 2010. 

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reimburse Amanda for Ryan' s medical expenses, except for chiropractic expenses, based on the

percentage rate specified on the child support worksheet. 

Regarding Ryan' s high school education expenses, the trial court determined Russell did

not have to reimburse any of the Pierce College Running Start fees because Ryan did not pass

any class or receive any credit at Pierce College. The trial court determined that Russell must

reimburse Amanda for bookstore and other charges for Ryan' s Running Start classes at Clover

Park at the percentage rate specified on the child support worksheet. The trial court required

Ryan to share in the cost of the tools Amanda purchased for his Clover Park classes at a onethird share, with the remaining two - thirds being shared between Russell and Amanda at the

percentage rate. Regarding Ryan' s postsecondary support, the trial court held that Ryan should

contribute to the cost of his postsecondary education and allocated one -third of the expense of

his AA degree to Ryan, one -third to Russell, and one -third to Amanda based on the standards set

in RCW 26. 19. 090. The trial court further noted that Russell' s postsecondary support obligation

was contingent on Ryan maintaining good academic standing according to the institution. 

The trial court then addressed medical expenses and postsecondary support for Adam. 

The trial court ruled the amount Russell already paid toward Adam' s semester at the University

of Idaho in the fall of 2008, for which he received no credits, was adequate. The trial court also

did not order support for the 2009 winter and spring quarters at Pierce College because Adam

was not in good academic standing because his cumulative grade point average was less than a

2. 0. Adam had improved by fall of 2009 and, although ordered retrospectively, the trial court

ordered postsecondary support beginning in the fall of 2009 with Adam, Russell, and Amanda

each contributing one - third. Absent extraordinary circumstances, the trial court held this support

was to end in the spring of 2012, when Adam would turn 23. The trial court also ordered Russell

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to pay one -third of the past unreimbursed medical expenses, except chiropractic and massage

expenses, for the months Russell must pay postsecondary support. Going forward, however, 

Russell had no obligation to pay unreimbursed medical expenses unless it was an extraordinary

expense. 

V. FURTHER MOTIONS FOR RECONSIDERATION

Amanda moved for reconsideration of the trial court' s June 15, 2011 oral ruling arguing

that ( 1) Ryan had been continuously enrolled in high school since he was 18, ( 2) the trial court

erred in excluding chiropractic and massage treatment as a reimbursable expense, ( 3) the trial

court erred when it looked at postsecondary support from the vantage point of the June 2011

evidentiary hearing, rather than from August 1, 2008, and ( 4) the trial court erred when it ruled

that postsecondary education and healthcare expenses would not be based on each party' s share

of their combined monthly incomes. 

The trial court held a hearing on August 5, 2011 regarding Amanda' s motion for

reconsideration and entered an amended final order of child support on September 8, 2011. The

trial court did not reconsider the four months ( February, March, July, and August 2010) it did not

allow child support for Ryan because " enrollment is something more than just simply signing

up." CP at 2120. The trial court, however, allowed unreimbursed medical expenses for those

months, including chiropractic expenses. Going forward, the trial court believed it was

appropriate to allocate some postsecondary support to Ryan and thus did not reconsider its

decision to allocate one -third to Ryan, one -third to Russell, and one -third to Amanda. 

The trial court did not reconsider its decision that Russell was not obligated -to make any

further payment for Adam' s semester at the University of Idaho or his first two quarters at Pierce

College. However, because the order on Adam' s postsecondary support was retroactive, the trial
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court did reconsider its decision and ordered that only Russell and Amanda share in Adam' s

postsecondary expenses based on the proportionate rate. Going forward, until Adam turned 23, 

the trial court ordered that the share remain proportionate between Russell and Amanda. The

trial court also allowed Russell to get a credit for any class that he paid for that Adam withdrew

from or had to retake. 

Russell moved for reconsideration of the September 9, 2011 order arguing that the June

15, 2011 order required him to pay approximately $ 9, 000 to Amanda and the amended order

required him to pay an additional $ 20,000, which he did not have. Russell also argued that

Amanda included a $ 4,300 Sylvan Learning Center expense in the judgment, which the trial

court did not approve. The trial court denied Russell' s motion for reconsideration except that it

held Russell was not responsible for the Sylvan Learning Center expense. Amanda timely

appealed and Russell timely cross appealed. 

ANALYSIS

I. STANDARD OF REVIEW

We review a trial court' s modification of child support to determine if the trial court' s

decision rests on unreasonable or untenable grounds. In re Marriage ofMcCausland, 159 Wn.2d

607, 615 -16, 152 P. 3d 1013 ( 2007) ( quoting In re Marriage ofLeslie, 90 Wn. App. 796, 802 -03, 

954 P. 2d 330 ( 1998)). We also review the trial court' s modification to determine if it is based on

an erroneous view of the law. In re Marriage of Choate, 143 Wn. App. 235, 240, 177 P. 3d 175

2008) ( quoting Wash. State Physicians Ins. Exch. & Ass' n v. Fisons Corp., 122 Wn.2d 299, 339, 

858 P. 2d 1054 ( 1993)). Further, the trial court' s findings of fact must be supported by

substantial evidence. In re Marriage of Schumacher, 100 Wn. App. 208, 211, 997 P.2d 399

2000). Substantial evidence is that which is sufficient to persuade a fair - minded person of the

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truth of the declared promise. In re Marriage of Hall, 103 Wn.2d 236, 246, 692 P. 2d 175

1984). We may not disturb findings of fact supported by substantial evidence even if there is

conflicting evidence. In re Marriage of Lutz, 74 Wn. App. 356, 370, 873 P. 2d 566 ( 1994) 

quoting Henery v. Robinson, 67 Wn. App. 277, 289, 834 P.2d 1091 ( 1992)). 

II. RUSSELL' S 2008 INCOME

Amanda argues the trial court erred when it failed to include all Russell' s income when

calculating his share of the child support obligation. Specifically, she argues the trial court erred

1) by treating only 25 percent of Perler' s business expenses as Russell' s income, ( 2) when

calculating the amount of shareholder loans from Perler that should be included in Russell' s

income, and ( 3) by disregarding Russell' s unreported cash. Russell does not directly respond to

these arguments and instead contends the trial court erred by imputing Leann' s income to him

and by attributing Perler' s business expenses as his personal expenses in violation of RCW

26. 19. 071. 

A. Russell' s Personal Expenses

Russell admitted that Perler paid certain personal expenses for him and Leann. Amanda

argues that because Perler is Russell' s separate property, the trial court erred when it determined

that only half of Russell' s and Leann' s personal expenses that Perler paid should be attributed to

Russell as his income. Thus, Amanda argues 100 percent of what the trial court stated were

personal expenses should be considered Russell' s income. Russell does not directly refute

Amanda' s argument and instead responds only that the trial court erred by failing to state which

expenses it deemed personal expenses. Because Perler. is Russell' s separate property, 100

percent ofthe personal expenses paid by this business should be treated as his income. 

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When determining a parent' s child support obligation, the trial court must consider all

income and resources of each parent' s household. RCW 26. 19. 071( 1). The trial court should

consider only the income of the parents of the children whose support obligation is at issue and

should not include the income of a new spouse in its calculation of gross income. RCW

26. 19. 071( 1), ( 4). A parent' s separate property and the profits from that property remain that

parent' s separate property so long as it can be traced and identified. RCW 26. 16. 010; In re

Marriage of Chumbley, 150 Wn.2d 1, 6, 74 P. 3d 129 ( 2003). If the parent is a business owner

and has a business " expense account[] which do[ es] more than actually reimburse for true

business expenses" then the parent business owner has an increased ability "to pay maintenance

because the owner is spared from paying the[] expenses on a personal basis [ and] ... [ t]here are

a number of such items buried in business financial statements that create factual and

discretionary issues." 20 KENNETH W. WEBER, WASHINGTON PRACTICE: FAMILY & COMMUNITY

PROPERTY LAW § 34. 10, at 370 ( 1997). 

Here, the trial court reviewed Amanda' s declaration that identified which of Perler' s

expenses she determined or speculated were actually personal expenses, Leann' s response

declaration agreeing that some expenses were personal but disputing others, and all the submitted , 

financial documents. From the declarations and documents, the trial court found it "appropriate

to designate 50 [ percent] of the 2008 identified expenses as personal, after first subtracting the

250 per bi- weekly paycheck reimbursed by Leann Blank to the corporation for personal

expenses incurred for the benefit of the marital community. "

5

CP at 1274. After including an

annualized shareholder loan, the court found the amount of personal expenses charged to the

5

The trial court later corrected it calculation to reflect $250.00 semi - monthly payments instead

of $250. 00 bi- weekly payments. 

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business for 2008 was $ 38, 204.55 and that $ 19, 102.28 represented Russell' s one half

community share of these expenses, for a value of $1, 591. 86 per month business income

imputable to Russell." CP at 1274. 

But the character of property as separate or community is established at the point of

acquisition. RCW 26. 16. 010; In re Marriage of White, 105 Wn. App. 545, 550, 20 P. 3d 481

2001). Russell owned Perler as his separate property before his marriage to Leann and thus

Perler and any income it generates remains Russell' s separate property. The trial court

committed an error 'of law by attributing 50 percent of the personal expenses to Leann. Thus we

remand for the trial court to attribute 100 percent of the personal expenses to Russell' s income. 

Additionally, although the trial court did not specifically identify each and every expense it

found to be a personal expense, it completed a thorough review of the available documents and

determined it was appropriate to designate 50 percent of the business expenses as personal. 

Because the trial court properly exercised its discretion, we do not disturb that decision. 

B. Leann' s Income Treated as Russell' s

Russell argues the trial court erred by imputing some of Leann' s income to him in

violation of RCW 26. 19. 071. Russell incorrectly argues the trial court imputed 25 percent of

Leann' s income to him. The trial court initially allocated 25 percent of Leann' s income to

Russell, but after Russell moved for reconsideration, the trial court modified its calculation and

instead averaged Russell' s and Leann' s gross salaries to come up with a difference of $569. 75 a

month which it allocated to Russell. 

Here, the trial court noted that Leann had no obligation to support Ryan, but also found

that Russell had " discretion to set [ the] salary for himself and [ Leann]" and Leann' s salary was

higher than his, " even though he own[ed] the company .... [ T]herefore, [ it was] appropriate to

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consider Leann' s salary in determining the amount of [Russell' s] income." CP at 1273. The trial

court then allocated $ 569.75 of Leann' s salary a month to Russell. The trial court found that

Leann should earn a salary because she performed services for Perler on a full -time basis, but

that it was appropriate to consider her income in calculating Russell' s child support obligation

because Russell set her salary higher than his, even though he owned the company. Allocating

569. 75 to Russell' s income made his and Leann' s respective salaries equal, which the trial court

found to be a fair method of calculation. 

The trial court did not improperly impute Leann' s income to Russell, but merely

allocated what was realistically Russell' s income as the owner of Perler. Because the trial court

properly exercised it discretion and its decision is not manifestly unreasonable, we hold the trial

court did not err when allocating a portion of Leann' s income to Russell. 

C. Shareholder Loan Calculation

Amanda next argues the trial court erred by calculating the amount of the shareholder

loans from Perler that should have been included in Russell' s net monthly income. Amanda

states that between July 14, 2068 and December 14, 2008, the balance of shareholder loans

Russell took increased $ 12, 025. 90 and that the court divided this amount over 12 months when it

should have divided it over 5 months. Thus, Amanda maintains the sum of $2, 405. 18, rather

than $ 1, 051. 00, per month should have been included in Russell' s net monthly income. 

Other than to state that the trial court must consider all income and that the trial court

made a " clerical error," Amanda provides no legal support for her contention that the shareholder

loan should be calculated over 5 months versus 12. Because Amanda failed to provide

meaningful argument or legal support for this argument, we need not consider it. RAP

10. 3( a)( 6). 

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D. Unreported Cash

Finally, Amanda argues the trial court erred by disregarding Russell' s unreported cash. 

Again, other than to state the trial court must consider all income, Amanda provides no legal

support for her argument that the trial court should have included this alleged unreported cash in

Russell' s income. The trial court undertook a careful and complete review of all documents, 

pleadings, transcripts, letter rulings, and sealed financial records; heard re- argument from the

parties; and reviewed the record before the trial court commissioner. The trial court also heard

argument and reviewed declarations regarding Russell' s alleged unreported cash. Because the

trial court had discretion to weigh the conflicting evidence presented and its decision does not

rest on unreasonable grounds, we hold the trial court did not err by not including the alleged

unreported cash in Russell' s income. 

III. RYAN' S ENROLLMENT IN HIGH SCHOOL

The relevant provision in the child support order states "[ s] upport shall be paid: until

Ryan reaches the age of 18 or as long as he remains enrolled in high school, whichever occurs

last." CP at 2027. The parties dispute the application of this simple provision in two specific

time periods. Russell also maintains that Ryan refused to take affirmative steps to complete his

high school education on time, and thus at age 18, Ryan was no longer dependent and became

emancipated. 

A. February and March 2010

The trial court found that although Ryan had signed up for Running Start classes in

January 2010, he was not enrolled in high school in February and March 2010 because he

received no credits for his Running Start classes and was not otherwise in high school. 

Specifically, the trial court stated " I believe that enrollment is something more than just simply

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signing up." CP at 2120. But a Bethel public schools student records employee authored a letter

on July 1, 2011 verifying that Ryan had been continuously enrolled in high school since January

27, 2009. Although Ryan received no credit for one class and failed the other in the months of

February and March 2010, he was enrolled in high school classes and his status as a high school

student remained the same for those months.

6

Thus, the trial court' s decision to suspend

Russell' s child support payments for those months because Ryan received no credits for his high

school classes was based on unreasonable grounds. 

B. July and August 2010

The trial court also found that Ryan was not enrolled in July and August 2010 because he

was 18, had not yet graduated from high school, was not earning any credits, and was not making

any significant progress towards his high school degree. If Ryan had graduated on track, he

would have graduated in June 2010. After the 2010 summer break, however, Ryan continued his

high school classes and the student records employee stated that Ryan was continuously enrolled

in high school since January 27, 2009. Further, the child support order requires that Russell

make payments every month and does not allow for abatement during the summer months. See

In re Marriage of Jarvis, 58 Wn. App. 342, 347, 792 P. 2d 1259 ( 1990) ( holding that the trial

court erred when it modified the child support decree to eliminate child support payments during

the summer months). 

Because the record indicates that Ryan remained continuously enrolled in high school

beginning in January 2009 through December 2011, the trial court' s decision to suspend child

support payments in July and August 2010 because Ryan was not earning any credits during the

6

Additionally, a successful, eventual outcome is not required for a student to be " enrolled" under

the ordinary meaning of the term. 

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summer break from school is based on unreasonable grounds. Accordingly, we reverse and

remand for the trial court to modify the child support order to reflect that Ryan was enrolled in

high school during February, March, July, and August 2010. 

C. Child Support Payments after Ryan' s expected date of graduation

Russell maintains that when Ryan turned 18 in November 2009, he was no longer

dependent and became emancipated, and thus the trial court erred when it ordered him to

continue child support payments for Ryan beyond Ryan' s anticipated date of graduation in June

2010. Amanda responds that Russell was obligated to continue his child support payments

because Ryan was still a dependant and Russell' s obligation was conditioned on whether Ryan

was still enrolled in high school. We affirm because the parties agreed in writing to extend their

child support obligations beyond Ryan' s 18th birthday, as long as he remained in high school. 

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

provided in the decree, provisions for the support of a child are terminated by emancipation of

the child or by the death of the parent obligated to support the child." See also In re Marriage of

Gimlett, 95 Wn.2d 699, 703 -05, 629 P. 2d 450 ( 1981). For the purposes of this statute, 

emancipation refers to the child reaching the age of majority - 18. Gimlett, 95 Wn.2d at 702. 

The child support order here specifically provides for child support payments after

emancipation —it requires Russell to continue payments until Ryan reaches 18 or graduates from

high school, whichever is later. The child support order does not require that Ryan graduate in

7 To support her argument, Amanda relies on Kruger v. Kruger, 37 Wn. App. 329, 332, 679 P. 2d

961 ( 1984). Amanda' s citation to this case is misplaced because Kruger held the trial court did

not err by calculating child support arrearage to include the time between the children' s 18th and

21st birthdays in which they were enrolled in full -time programs of higher education, whereas

here the parties are arguing about Russell' s obligation of child support while Ryan is still in high

school between his 18th and 21 st birthday. 

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four years or on time to continue receiving child support payments. Nor does the order base

Russell' s child support obligation on a determination of Ryan' s dependency. Instead, the order

requires that Russell continue making child support payments " as long as [ Ryan] remains

enrolled in high school." 

a

CP at 2027. Thus, during the time Ryan remained enrolled in high

school, Russell was required to continuing making child support payments for Ryan. The trial

court properly exercised its discretion when it ordered Russell to continue making child support

payments for Ryan through December 2011. 

D. Unreimbursed Extraordinary Health Care Expenses

Russell also argues the trial court erred when it ordered him to contribute to Ryan' s

unreimbursed extraordinary health care expenses after November 2009 ( when Ryan turned 18) or

June 2010 ( when Ryan was supposed to graduate from high school) because ( 1) Ryan was no

longer a dependent, ( 2) the trial court never determined the reasonableness or necessity of the

costs, and ( 3) the trial court never addressed Russell' s ability to contribute to the health care

expenses.9 We hold the trial court properly exercised its discretion when ordering Russell to pay

a portion of Ryan' s unreimbursed extraordinary health care expenses after June 2010 because

RCW 26. 19.080 requires that parents share paying their child' s health care expenses and a

determination of the reasonableness or necessity of the expenses is discretionary. 

RCW 26. 19. 080( 2) provides that "[ m] onthly health care costs shall be shared by the

parents in the same proportion as the basic child support obligation." RCW 26. 19. 080( 4) 

8 The parties' discussion of dependency, therefore, is irrelevant to a determination of Russell' s

child support obligation for Ryan beyond the date of Ryan' s anticipated graduation in June 2010. 

9 Russell also assigned error to the trial court' s order for him to pay a portion of Adam' s

unreimbursed extraordinary health care expense. However, he devoted no portion of his briefing

and offered no legal support for this argument. Thus, we need not consider it under RAP

10. 3( a)( 6). 

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provides that "[ t]he court may exercise its discretion to determine the necessity for and the

reasonableness of all amounts ordered in excess of the basic child support obligation." The child

support order at issue here requires that Russell " pay 63. 4 [ percent] of unreimbursed

extraordinary health care expenses for Ryan, if monthly medical expenses exceed 5 [ percent] of

the basic support obligation from worksheet line 5 for Ryan, until he graduates from high

school." CP at 2029. Thus, in accordance with RCW 26. 19. 080(2), the trial court determined

that while Russell still had a child support obligation for Ryan, he would also have an obligation

to pay unreimbursed extraordinary health care expenses. As previously discussed, the trial court

properly ordered that Russell was required to pay child support for Ryan beyond his anticipated

date of graduation. Because Ryan was still in high school and the trial court' s order complies

with RCW 26. 19. 080, we hold the trial court properly exercised its discretion when ordering

Russell to pay his proportionate share of Ryan' s unreimbursed extraordinary health care

expenses. 

IV. POSTSECONDARY SUPPORT FOR RYAN AND ADAM

Russell next argues that the trial court erred by ordering him to contribute to Ryan and

Adam' s postsecondary educational support. The child support order in this case has always

provided that "[ t]he parents shall pay for the post secondary educational support of the children. 

Post secondary support provisions will be decided by agreement or by the court." CP at 456

December 3, 2004 child support order). Russell did not petition to modify the postsecondary

support provision. Instead, he specifically noted that the child support order requires him and

Amanda to pay postsecondary support, but that he and Amanda were not able to reach an

agreement. Accordingly, as the trial court noted and Russell acknowledged, Russell was

required to pay postsecondary support for both Adam and Ryan, but the amount of the payments

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and how long Russell was required to make the payments were to be decided by the court

because Russell and Amanda were not able to reach an agreement. 

A. Postsecondary Educational Support Obligation

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 of

Newell, 117 Wn. App. 711, 718, 72 P. 3d 1130 ( 2003); In re Marriage ofKelly, 85 Wn. App. 785, 

795, 934 P. 2d 1218 ( 1997). RCW 26. 19. 090(2) gives the trial court discretion to determine how . 

long to award postsecondary educational support and provides a non - exhaustive list of factors to

consider: 

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. 

To continue receiving postsecondary educational support: 

The child must enroll in an accredited academic or vocational school, must be

actively pursuing a course of study commensurate with the child's vocational

goals, and must be in good academic standing as defined by the institution. 

RCW 26. 19. 090( 3). Ifthe child fails to comply with these conditions, the parent' s postsecondary

educational support obligation is automatically suspended for the period or periods in which the

child fails to comply. RCW 26. 19. 090( 3).. Additionally, the trial court should not order payment

of postsecondary educational support beyond a child' s 23rd birthday, except in exceptional

circumstances. RCW 26. 19. 090( 5). 

Russell contends the trial court failed to address all the factors listed in RCW 26. 19. 090

and thus the postsecondary educational support order is improper. The trial court, however, 

specifically noted that it considered the factors from RCW 26. 19. 090( 2) when making its

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postsecondary educational support order. And 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 of Cota, _ Wn. App. , 

312 P. 3d 695, 699 ( 2013). Moreover, "[ w]e must presume that the court considered all evidence

before it in fashioning the order [ on postsecondary education expenses]." Kelly, 85 Wn. App. at

793. Thus, the trial court did not err by not explicitly entering findings as to each factor listed in

RCW 26. 19. 090(2). 

1. Ryan

The trial court ordered Russell to contribute to Ryan' s AA degree. The trial court found

that Ryan had a plan and was at Clover Park. The trial court further stated Ryan " has a vocation

in mind, and that is a two -year degree. It appears to be commensurate with the child' s abilities

and the child' s prospects. He, so far, has had trouble with attendance and, therefore, trouble

getting credits, but academically he' s doing well or at least appropriate, appropriately." CP at

2064. Because Ryan had yet to begin his postsecondary education, the trial court properly

exercised its discretion when it ordered Russell to contribute to Ryan' s postsecondary education

subject to Ryan' s compliance with RCW 26. 19. 090 and maintaining good academic standing

according to the institution. 

2. Adam

Russell contends that his postsecondary support obligation for Adam should have been

suspended from January 2009 through the entry of the trial court' s final order in December 2011

because Adam " was never in good academic standing as defined by the institution and was never

a full time student." Resp' t' s Br. at 31. We disagree because Adam was in good academic

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standing with Pierce College, as required by RCW 26. 19. 090( 3), beginning in spring quarter

2009. 

Here, the trial court did not order postsecondary support for the 2009 winter and spring

quarters at Pierce College because Adam was not in good academic standing with Pierce

College. But in fall 2009 Adam obtained a 4. 0 grade point average and increased his cumulative

grade point average above a 2.0. Thus, the trial court ordered Russell to pay postsecondary

support for Ryan beginning in fall of 2009 through spring of 2012 ( when Adam would turn 23), 

as long as he remained in good academic standing. The trial court also ordered that Russell

would get a credit for any class for which he paid that Adam withdrew from or had to retake. 

Pierce College defines good academic standing as: " Any student who earns 5 or more

credits for each quarter in which they are enrolled, and maintains a 2. 0 or better cumulative grade

point average will be considered in good academic standing at Pierce College." CP at 1784. On

July 6, 2011, the director of student success at Pierce College authored a letter noting that " Adam

has maintained a 2. 0 or better cumulative grade point average beginning Spring Quarter 2009

and has been in good academic standing with the college since Spring Quarter 2009." CP at

1879. Because the trial court' s order complies with RCW 26. 19. 090 and Pierce College' s

definition of good academic standing, we determine the trial court properly exercised its

discretion when ordering postsecondary educational support for Adam. 

B. Amount of Postsecondary Educational Support Ordered

Amanda argues the trial court erred ( 1) by holding that the costs of postsecondary support

for Ryan be shared by Amanda, Russell, and Ryan in equal one -third shares, and ( 2) by refusing

to make Russell pay his full share of postsecondary support for Adam' s first semester at the

University of Idaho. We hold the trial court' s decision to apportion one -third of Ryan' s

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postsecondary educational expenses to Ryan was a proper exercise of its discretion, but remand

for the trial court to apportion the remaining two - thirds between Russell and Amanda based on

their respective net incomes. Additionally, we hold the trial court' s decision that Russell is not

required to pay any more on Adam' s fall 2008 semester was a proper exercise of its discretion. 

1. Ryan

Regarding the order that Ryan contribute one -third to his postsecondary education, 

Amanda provides no authority that the trial court erred when apportioning some of the

postsecondary educational expense to Ryan. When ruling on postsecondary educational support

for Ryan, the trial court stated that it is important for a child to be invested in his own education. 

Further, because the order is prospective, the trial court noted that Ryan still has the opportunity

to get grants, apply for financial aid, and seek part-time employment. We hold that the trial court

properly exercised its discretion when apportioning some of the postsecondary education

expenses to Ryan. 

Regarding Russell and Amanda' s contribution, we hold that the trial court' s decision to

apportion one -third to Amanda and one -third to Russell is based on an erroneous view of the

law. Although RCW 26. 10. 090( 1) states the child support schedule is advisory and not

mandatory in postsecondary educational support, Division I held that " postsecondary support

must be apportioned according to the net income of the parents as determined under [] chapter

26. 19 RCW]." In re Marriage of Daubert, 124 Wn. App. 483, 505, 99 P. 3d 401 ( 2004), 

abrogated on other grounds by McCausland, 159 Wn.2d 607. Accordingly, we remand for the

trial court to apportion the remaining two - thirds of Ryan' s AA degree expenses to Amanda and

Russell based on their respective incomes. 

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2. Adam

The trial court found that Russell' s $ 3, 275. 00 contribution to Adam' s fall 2008 semester

at the University of Idaho, in which he received no credits, satisfied his obligation for

postsecondary educational support for that semester. Amanda argues the trial court' s decision is

contrary to RCW 26. 19. 090( 3) because generally a parent pays for college and its related costs at

the beginning of the quarter or semester and no one knows at that time if the student will meet

the academic requirements of RCW 26. 19. 090( 3). Despite Russell' s request that Adam attend a

community college or in -state university, Adam, with Amanda' s support, chose to attend the

University of Idaho. Adam did not succeed at the University of Idaho and received no credits for

the classes he took; thus, he decided to transfer to Pierce College. Because the trial court has

broad discretion to order what is fair and necessary for postsecondary education, we do not

disturb the trial court' s order regarding Russell' s obligation to contribute to Adam' s fall 2008

semester. See Childers, 89 Wn.2d at 601 -02. 

V. SYLVAN LEARNING CENTER EXPENSE

Amanda argues the trial court erred by not including the cost of Adam' s tutoring at

Sylvan Learning Center in his postsecondary educational support. Russell did not respond to this

argument. 

The trial court has broad discretion to order what is fair and necessary regarding

postsecondary support. Childers, 89 Wn.2d at 601 -02; Kelly,. 85 Wn. App. at 795. The trial

court may include expenses that are sufficiently related to the child' s postsecondary education. 

Kelly, 85 Wn. App. at 795. 

The trial court orally ordered that Russell contribute to Adam' s postsecondary support on

June 15, 2011; however, for reasons that are not clear, the paper order reflecting the June 15, 

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2011 oral ruling was not signed until August 5, 2011. In between the oral ruling and the signing

of the order, Amanda added the Sylvan Learning Center expense to Adam' s post secondary

educational expenses, which neither Russell nor the trial court noticed until after signing the

order. After a hearing on December 9, 2011, the trial court ordered that Russell was not required

to contribute to the Sylvan Learning Center expense and stated, 

I realize that it really is related to his education, but the fact is he' s been in college

for three and a half years already. The father has —I ordered him to pay expenses

going back to the beginning, and this is an extraordinary expense that was

incurred unilaterally by the mother without any consultation, without any input, 

and I' m not going to order him to contribute toward it. 

Report ofProceedings ( Dec. 9, 2011) at 33. Because the trial court has broad discretion to order

what support it finds fair and necessary, the trial court properly exercised its discretion when

deciding not to include the Sylvan Learning Center expense in Russell' s obligation because it

was an extraordinary expense that Amanda incurred without seeking input from Russell. 

VI. REASONABLE ATTORNEY FEES

Amanda argues the trial court erred by failing to award her reasonable attorney fees and

expenses due to Russell' s intransigence. We hold the trial court erred by finding Russell did not

engage in intransigence and remand for a determination of reasonable attorney fees for Amanda. 

The decision to award attorney fees is within the trial court' s discretion. In re Marriage

ofKnight, 75 Wn. App. 721, 729, 800 P. 2d 71 ( 1994). The party challenging the trial court' s

decision bears the burden of proving the trial court exercised its discretion in a way that was

clearly untenable or manifestly unreasonable." Knight, 75 Wn. App. at 729. 

Amanda contends the trial court erred by refusing to look at past history and prior court

findings of intransigence. The trial court may award fees under RCW 26.09. 140 if one spouse's

intransigence caused the spouse seeking a fee award to require additional legal services. In re

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Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P. 2d 954 ( 1996). A parent is intransigent

where he produces " conflicting information about his income and, by his actions, force[ s the

other parent] to conduct intense discovery, which increase[ s] her legal bills." In re Marriage of

Mattson, 95 Wn. App. 592, 605, 976 P. 2d 157 ( 1999). If intransigence is established, the

financial resources of the spouse seeking the fees are irrelevant. Crosetto, 82 Wn. App. at 564. 

The trial court found, based solely on Russell' s conduct in connection with the instant

petition for modification and its related motions, that Russell did not engage in intransigence. 

The trial court based its decision, in part, on the fact that Russell disclosed over 2, 000 pages of

financial documents in response to discovery requests. The trial court further noted that Russell

acknowledged that he paid some personal expenses through Perler, but that he fully disclosed all

his financial information; thus, even though he misstated his income, Russell was not attempting

to defraud the court because he provided all the information the court needed to determine his

income. 

The trial court erred by not finding Russell intransigent. In two prior proceedings, 

Russell engaged in behavior similar to the instant case by misreporting his income, paying his

personal expenses through his business, and turning over voluminous financial records requiring

Amanda and the court to incur additional costs and time to determine Russell' s true income. 

Specifically, in 2004 the trial court stated, 

Yes. I know that, Mr. Blank, there' s a lot of talk about the production of

two banker' s boxes of documents being produced, but I was struck by the fact that

many of the things I was interested in there was just no documentation for. 

There was even difficulty answering simple questions as to what Mr. 

Blank' s salary was. I just think that the production of voluminous material is not

persuasive. Having practiced insurance defense for a number of years, I certainly

am not swayed by volumes of materials. It' s the quality that' s given that matters

and relevance that matters. 

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CP at 442. Russell' s behavior in the current proceeding was substantially similar to the behavior

the trial court twice previously found to be intransigent. In all three cases his behavior was

intransigent. Russell' s disclosure to the trial court that he used his business to pay personal

expenses and providing 2000 pages of financial documents did not cure his intransigence. 

In the instant case,_ Russell initially reported his net monthly income as $ 5, 500.00. After

an appeal to this court and multiple hearings and motions on remand, the trial court determined

Russell' s income was actually $8, 195. 08, and after this appeal his income will increase further. 

Russell' s practice of misreporting his income and then providing substantial financial documents

for Amanda and the trial court to sort through to determine his true income is intransigent. See

Mattson, 95 Wn. App. at 605 ( where a parent provides conflicting information about his income, 

forcing his former spouse to incur increased legal fees to conduct intense discovery, is evidence

of intransigence). Accordingly, we remand for the trial court to enter a finding that Russell was

intransigent and award Amanda reasonable attorney fees for her increased legal fees due to

Russell' s intransigence. 10

VII. ATTORNEY FEES ON APPEAL

Amanda and Russell request attorney fees under RCW 26.09. 140 and RAP 18. 1. We

have discretion to order a party to pay for the cost of maintaining the appeal and attorney fees in

addition to statutory costs. RCW 26.09. 140. When awarding attorney fees, we examine the

arguable merit of the issues and the parties' financial resources. In re Marriage of Griffin, 114

Wn.2d 772, 779, 791 P. 2d 519 ( 1990). In order to receive attorney fees, the parties must file

financial affidavits with the court no later than 10 days before oral argument. RAP 18. 1( c). 

io The trial court should award only such fees as are reasonable. The amount of Amanda' s claim

for attorney fees appears on its face to be unreasonable in these circumstances. 

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Here, Russell failed to file a financial affidavit on time, which precludes an attorney fee award. 

Amanda filed her financial affidavit and after careful review, we find she exhibited sufficient

financial need and grant her reasonable attorney fees on appeal. 

We remand to the trial court for further proceedings consistent with this opinion. 

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered. 

We concur: 

Maxa, J. 

pearman, J. , 

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