### FILED 

## QI#,ZT OFAPPEALS IN THE COURT OF APPEALS OF THE STATE OF WASHINGT& 

### ISIM Il 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 Y IEP " Y 

# J UNPUBLISHED OPINION \,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 oftheir 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) orderedthat Russell paychild supportforRyan 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) failedto award him reasonable attorneyfees.

1 We use the parties' first names for clarity and intend no disrespect.42959 - 4 -II 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 forthe 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 intransigentand failedto award Amandareasonable attorney fees and remand foran entry of reasonable attorney fees for Amanda. 

### Finally, we award Amanda reasonable attorney fees on appeal. 

### Regarding the remaining issues, we hold thetrial 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 ownphotographybusiness, 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

242959 - 4 -II 

### 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 thatAmanda'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 tothis court,arguing thatthe trial courtfailed to conduct ade novo reviewofthe record before the commissioner which resulted in an improper calculation of Russell' s income. Blank, 2010 WL 4308204, at * 1. Amanda further argued thatthe 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 ofits basis for denying Amanda's motion to revise the final orderfor child support and fails to demonstrate how it calculated [ Russell' s] child support 

### obligation. Because the record does not adequately supportthetrial 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 forrevision filed by each party astothe 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.
342959 - 4 -II
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 ofLeann'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 ofthe marital community, less " the $250 per bi-weekly 

### paycheck reimbursed by Leann Blankto the corporation for personal expenses incurred forthe 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 incomewas $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 atthe 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 - courtfound that Russell did not engage in fraud or intransigence, in part, because he had " disclosed over 2000 M42959 - 4 -II

pages of financial.documents in response to 

### discovery requests." CP at 1276. The trial court 

### also found that each parry should beartheir 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 ofthe trial court's letter ruling, arguing thatthe 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 

### forreconsideration in partand modified Russell's income slightlyto correctamistake 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. Thetrial courtdeniedthe remainderofAmanda'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 Thetrial court also foundthat 

### 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 andtherefore, has not madetherequisite showing ofneed. CP at 1276. 542959 - 4 -II 

### require Russell to continue paying anyform ofchild 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 ofpostsecondary supportforAdam 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 SUPPORTAND 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 ofFebruary, March, July, and August 2010, the trial court also found that Russell must
3 To determine ofthe amount ofLeann' 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 deductthe $250.00 semimonthly payments with the new calculation. The trial court still attributed 25 percent ofthe 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 butthat there was no question Amandawas entitled to child support for Ryan through his 18th 

### birthday. So the trial court looked at what Ryan was doing atthe end of fall term 2009, going into 2010. 642959 - 4 -II 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 ofthe 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 one

### third 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 ofthe 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 accordingto 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 of2009 and, although ordered retrospectively, the trial court 

### ordered postsecondary support beginning in the fall of2009 with Adam, Russell, and Amanda 

### each contributing one -

third. Absentextraordinarycircumstances,thetrial courtheldthis support

was to end in the spring of2012, when Adam would turn 23. The trial court also ordered Russell 742959 - 4 -II 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 ofthe 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 ofthe June 2011 

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

### that postsecondary education and healthcare expenseswould not be based on each party's share oftheircombined 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 notreconsiderthefourmonths (February,March,July,andAugust2010) itdid 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 

### furtherpayment forAdam's semesteratthe University ofIdaho orhis firsttwo quarters at Pierce College. However, because the order on Adam' s postsecondary support was retroactive, the trial42959 - 4 -II 

### 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 forthatAdam withdrew from or had to retake. 

### Russell moved for reconsideration ofthe September 9, 2011 order arguing thatthe 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 oruntenable 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 reviewthe trial court' s modification to determine ifit is based on 

### an erroneous view ofthe law. In re Marriage ofChoate, 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 ofSchumacher, 100 Wn. App. 208, 211, 997 P.2d 399 2000). Substantial evidence is that which is sufficient to persuade a fair - minded person ofthe 742959 - 4 -II
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 offact supported by substantial evidence even ifthere is conflicting evidence. In re Marriage of Lutz, 74 Wn. 

### App. 356, 370, 873 P.2d 566 ( 1994) 

### quoting Heneryv.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 ofthe child support obligation. Specifically, she argues thetrial 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 halfofRussell's and Leann's personal expenses that Perlerpaid should be attributedto 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 onlythatthe trial court erred by failing to state which
expenses it deemed personal expenses. Because Perler. is Russell' s separate property, 100 

### percentofthe personal expenses paid bythisbusiness should betreated as his income.
1042959 - 4 -II 

### 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 onlythe income ofthe parents ofthe 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 agreeingthat 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] ofthe 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-weeklypayments. 1142959 - 4 -II
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 ofWhite, 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 'oflawby attributing 50 percent ofthe personal expenses to Leann. Thus we remand forthe trial court to attribute 100 percent ofthe 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 ofthe available documents and determined it was appropriate to designate 50 percent of the business expenses as personal. 

### Becausethetrial courtproperlyexercised its discretion,wedo notdisturbthatdecision.

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 notedthat 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 1242959 - 4 -II

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 afair method ofcalculation.

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 holdthetrial court did noterrwhen allocating aportion ofLeann's incometo 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, permonth 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). 1342959 - 4 -II
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 ofthis 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 thanjust simply 1442959 - 4 -II 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 ahigh 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. 

### Julyand August 2010 

### Thetrial court also found that Ryanwas not enrolled in July and August 2010 because he was 18, had notyet graduated from high school,was not earning anycredits, 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 ofJarvis, 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,asuccessful,eventual outcome is not requiredforastudentto be "enrolled" under the ordinary meaning ofthe term. 1542959 - 4 -II

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

### remand for the trial court to modifythe child support orderto reflect that Ryan was enrolled in high school during February, March,July,andAugust2010.

C. Child Support Payments after Ryan' s expected date ofgraduation 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 extendtheir 

### 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 ofa 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 Krugerv. 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 

### noterrbycalculating child supportarrearageto includethetimebetweenthe children's 18th and 21st birthdays in which they were enrolled in full - time programs of higher education, whereas 

### heretheparties are arguing about Russell's obligation ofchild supportwhile Ryan is still in high school between his 18th and 21 st birthday. 1642959 - 4 -II 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 extraordinaryhealthcare expenses afterNovember2009 (when Ryanturned 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 Weholdthetrial courtproperlyexercised its discretion when ordering Russellto 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 ofthe reasonableness or necessity ofthe 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 ofdependency,therefore, is irrelevant to a determination ofRussell's child support obligation for Ryan beyond the date ofRyan'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 healthcare expense. However,he devoted no portion ofhis briefing and offered no legal support for this argument. Thus, we need not consider it under RAP 10.3( a)( 6). 1742959 - 4 - II
provides that "[ 

### t]he court may exercise its discretion to determine the necessity for and the
reasonableness of all amounts ordered in excess ofthe 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, ifmonthly 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 previouslydiscussed,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 payforthe post secondary educational support ofthe 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 paypostsecondarysupport forbothAdam and Ryan,butthe amount ofthe payments 1842959 - 4 -II 

### 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 . 

### longto award postsecondary educational support and provides a non - exhaustive list offactors 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 ofthe postsecondary education sought; and the 

### parents' level ofeducation, standard ofliving,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 mustbe in good academic standing as defined bythe institution. RCW 26. 19.090(3). 

### Ifthe child fails to complywith these conditions, the parent's postsecondary 

### educational support obligation is automatically suspended forthe 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 1942959 - 4 -II 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 ofCota, _ 

### 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,thetrial court did not errby not explicitly entering findings as to eachfactor 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 aplan and was at Clover Park. The trial court further stated Ryan "has avocation 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 throughthe entry ofthetrial court'sfinal order in December2011 because Adam "was never in good academic standing as defined bythe institution and was never

a full time student." 

### Resp' t' s Br. at 31. We disagree because Adam was in good academic

Pill42959 - 4 -II 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 a4.0 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 of2009 through spring of2012 (when Adam would turn 23),

as 

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

### would getacreditforany class forwhich hepaid thatAdamwithdrewfrom orhadto retake.

Pierce College defines good academic standing as: " 

### Any student who earns 5 or more 

### credits foreachquarterinwhichthey are enrolled,andmaintains a2.0 or bettercumulative grade point average will be considered in good academic standing at Pierce College." CP at 1784. On 

### July6, 2011, the directorofstudentsuccess atPierce College authored aletternotingthat "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 supportforAdam.

B. 

### Amount ofPostsecondary Educational Support Ordered Amanda arguesthe trial court erred (1) byholdingthatthe costs ofpostsecondary support 

### for Ryan be shared byAmanda, 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 2142959 - 4 -II 

### postsecondary educational expenses to Ryan was a proper exercise ofits discretion, but remand forthe 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 

### requiredto pay anymore onAdam's fall 2008 semesterwas aproperexercise ofits 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, applyforfinancial aid, and seekpart-time employment. We holdthatthetrial 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 ofthe 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 ofRyan's AA degree expenses to Amanda and Russell based on their respective incomes.

2242959 - 4 -II
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 forthat semester. Amanda argues thetrial court's decision is contraryto RCW26.19.090(3) because generally aparentpays forcollege and its related costs at the beginning ofthe quarter or semester and no one knows atthat time ifthe 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 ofIdaho. Adam did not succeed atthe UniversityofIdaho 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 notrespondtothis 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, 2342959 - 4 -II
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 ahearing on December 9, 2011, the trial court ordered that Russell was not required to contribute to the Sylvan Learning Centerexpense and stated, 

### I realizethat it reallyis relatedto his education,butthefact 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 orderhimto contribute toward it. Report of Proceedings (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 expensethatAmandaincurred withoutseeking inputfrom 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 adetermination ofreasonable attorney fees forAmanda. 

### The decision to award attorney fees is within the trial court's discretion. In re Marriage of Knight, 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 RCW26.09.140 ifone spouse's intransigence caused the spouse seeking a fee award to require additional legal services. In re 2442959 - 4 -II 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 ofthe spouse seekingthe 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 overvoluminous financial records requiring Amanda and the court to incur additional costs and time to determine Russell' s true income. 

### Specifically, in 2004thetrial court stated,

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

### two banker'sboxesofdocuments being produced, but I was struckbythe factthat 

### manyofthethings I was interested intherewasjustno documentation for. There was even difficulty answering simple questions as to what Mr. Blank' s salary was. I just thinkthat the production ofvoluminous material is not persuasive. 

### Having practiced insurance defense for anumber ofyears, I certainly am not swayed 

### by volumes of materials. 

### It's the quality that's given that matters and relevance that matters. 2542959 - 4 -II 

### CP at442. Russell's behavior inthe current proceedingwas substantially similartothe 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 offinancial documents did notcure 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 ofmisreporting 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 aparentprovides 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 forthe trial courtto enter afinding 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 apartyto payforthe cost ofmaintaining the appeal and attorneyfees 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 ofGriffin, 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). 

### ioThetrial courtshouldaward onlysuchfees as are reasonable. The amountofAmanda's claim forattorneyfees appears on its faceto be unreasonable inthese circumstances. 2642959 - 4 -II 

### 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 granther reasonable attorneyfees on appeal.

We remand to the trial court forfurther 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. ,

27