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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of

KATHY L. GOODWIN,

Respondent,

and

KEVIN M. GOODWIN,

Appellant.

No. 75958-2-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: January 16, 2018

TRICKEY, A.C.J. — Kevin Goodwin and Kathy Goodwin engaged in a series

of hearings to determine postsecondary educational support for their daughter K.1 '

The trial court clarified the support obligations during a motion for revision of a

commissioner's order. Kevin argues that the trial court deprived him of necessary

process and failed to consider the best interests of K when it set the postsecondary

support obligations during the revision hearing. Because Kevin had adequate

opportunity to request additional process, and the trial court considered the best

interests of K, we affirm.

FACTS

In 2006, Kevin and Kathy dissolved their nine-year marriage. Their,

daughter K was 8 years old. They agreed in the original child support order that

1 For clarity, this opinion will refer to the parties by their given names, Kevin and Kathy,

and to their daughter as K. No disrespect toward the parties is intended.
No. 75958-2-1 /2

Kevin would pay monthly child support to Kathy. The child support order also

contained a provision for postsecondary educational support that stated, "The

parents shall pay for the post secondary educational support of the child. Post

secondary support provisions will be decided by agreement or by the court."2 The

parties modified the child support order in 2009 to lower Kevin's monthly payments

but did not alter the postsecondary support provision.

K primarily resided with Kathy and attended private school in Kirkland,

Washington for her freshman year of high school. Kevin paid all of K's educational

expenses and made the support payments to Kathy. After her freshman year, K

transferred to a private boarding school in Vancouver, British Columbia. Kevin

paid the entirety of K's tuition, fees, room, and board, totaling $61,189.23 per year.

Kevin ceased making any monthly payments to Kathy when K started

boarding school. Kathy had agreed to forego the transfer payments during the

months that K resided at the boarding school. The parties disagree as to whether

Kathy also waived the transfer payments for the months that K was on vacation

and living with either parent.

In June 2016, when K was going to graduate from high school, Kathy filed

a motion to adjust and clarify the child support order. She requested definition of

postsecondary educational support and determination of the parties' respective

obligations. Kathy claimed that the parties could not agree on their respective

postsecondary support obligations without court intervention because Kevin had

refused to share his financial information or work toward a mutually acceptable

2 Clerk's Papers (CP) at 51.

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solution.

Kathy requested that the trial court order Kevin to pay 87.64 percent of

projected future college costs. She requested back child support payments with

accrued interest for the seven months that K lived at home on various school

breaks during which Kevin did not pay monthly child support. She also sought

attorney fees from Kevin.

Kathy's motion was noted to be heard by a commissioner on the King

County Superior Court's family law motions calendar on June 29, 2016. The

evening before the hearing, Kathy's counsel received a telephone call from

attorney Lori Guevara. Guevara had not yet been retained in the case but informed

Kathy's counsel that Kevin had not received adequate service. Neither Kevin nor

his counsel appeared at the hearing. The commissioner awarded Kathy a default

judgment.

Kevin subsequently filed a motion for reconsideration and a motion to

vacate the default judgment. On August 1, 2016, a superior court commissioner

vacated the default judgment against Kevin in the interests of justice so that the

matter could be heard on the merits.3 The commissioner was not persuaded byl

Kevin's argument that service was defective and awarded Kathy $1,000 in attorney

fees.4

On August 23, 2016, another hearing took place on the family law motions

calendar. The parties disputed whether the action was properly filed as a motion

to adjust or a petition to modify. The commissioner concluded that the parties

3 The motion to reconsider was denied on July 12, 2016.

4 Kevin does not appeal this fee award.
No. 75958-2-1 /4

should have brought a motion to set postsecondary support.

Regardless of the form, the commissioner declined to decide the motion

because the materials submitted by the parties were too voluminous to be heard

on the streamlined motions calendar.5 The commissioner ordered Kathy to either

re-note the matter and reduce the materials to a size appropriate for the motions

calendar or file a petition to modify and move to the trial by affidavit (TBA) calendar.

The commissioner denied the parties' requests for attorney fees because both

parties submitted excessive materials.

Kathy filed a motion for revision and requested a hearing on the motion to

adjust and clarify the child support order before a King County Superior Court

judge. At the hearing on Kathy's motion, Kevin argued that the case should be

transferred to the TBA calendar so that he could request discovery and crossexamination of experts. In the alternative, he requested a postsecondary support

plan under which Kevin, Kathy, and K would each pay one-third of the associated

costs. Kevin expressed concern about K's behavior and contended that she

needed to take personal responsibility for her college education.

Despite Kevin's request, the judge refused to transfer or delay a decision

on the case and determined _Kevin's and Kathy's postsecondary support

obligations at the hearing on the revision motion. Instead, the trial court ordered

Kevin to pay 89 percent of K's postsecondary educational support, including

tuition, books, fees, housing, food, cell phone, health insurance, transportation,

5 Together the parties submitted approximately 5,000 pages of supporting documents, the

majority of which were financial disclosures required under King County Local Family Law

Rule (KCLFLR) 10.

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and personal expenses. The court did not limit tuition and costs, so Kevin's and

Kathy's support obligations would not change if K transferred to any school of her

choice. The court also awarded Kathy her requested back child support and

$5,000 in attorney fees.

Kevin appeals.

ANALYSIS

Revision Hearing and Postsecondary Support Order

Kevin contends that the trial court erred by failing to transfer the case to the

TBA calendar. Specifically, he argues that the trial court improperly determined

his support obligations on revision, depriving him of due process that he would

have had on the TBA calendar through discovery and cross-examination.6

Because Kevin had ample opportunity to request additional process, he was not

prejudiced by the trial court's decision on revision.

The revision court has full jurisdiction over the case. In re Marriage of Dodd,

120 Wn. App. 638, 644, 86 P.3d 801 (2004). On revision, the trial court may redetermine both the facts and legal conclusions after independent review. Dodd

120 Wn. App. at 645. The trial court has broad authority to modify child support

provisions. Dodd,120 Wn. App. 644. We apply an abuse of discretion standard

and do not substitute our judgment for that of the trial court unless the trial court's

decision rests on unreasonable or untenable grounds. Dodd,120 Wn. App. 644.

6 While the parties devote significant argument to whether Kathy should have brought a

motion to adjust or a petition to modify the child support order, Kevin acknowledges that

this court need not resolve the proper procedure.

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Here, the substance — not the form of the procedure — is at issue. Any error

in the form of the motion is harmless if, "but for the choice of form, the proceeding

below was the procedural and substantive equivalent of a modification

proceeding." In re Marriage of Morris, 176 Wn. App. 893, 895, 309 P.3d 767

(2013). To show prejudice, a party must demonstrate specific procedural

deficiencies or harm, such as a need for discovery, an opportunity to introduce

more evidence, or additional substantive arguments he or she would have made if

afforded greater process. See Morris, 176 Wn. App. at 903.

In Morris, the mother erroneously brought a motion for adjustment to

request postsecondary educational support that had been expressly reserved in

the original support order. 176 Wn. App. at 896. Despite the procedural error, the

trial court held a hearing with oral arguments on the motion for revision,

considering declarations, financial documents, and legal arguments. Morris, 176

Wn. App. at 903. The father did not argue that he was denied an opportunity to

conduct discovery or submit additional evidence, or that he could have raised

additional substantive arguments with additional process. Morris, 176 Wn. App. at

903. Because the father did not point to specific procedural deficiencies or

demonstrate prejudice, the Court of Appeals held that the error was harmless.

Morris, 176 Wn. App. at 903.

Kevin attempts to distinguish his situation from Morris by raising specific

procedural deficiencies and resulting prejudice. For example, he argues that he

advised the trial court that he needed to cross-examine Kathy's financial expert

and conduct discovery to obtain past e-mail and text messages in support of his

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argument against back child support. But in this case, these claims are insufficient

to show sufficient procedural deficiencies or prejudice.

Prior to his oral request at the revision hearing, Kevin had not made a

motion or provided legal argument in support of additional process. He had

previously mentioned the opportunity for discovery on the TBA calendar only when

discussing the proper form of the case. Moreover, Kevin had three months

between the initial and revision hearings to request additional process, transfer to

the TBA calendar, or file his own motion to modify the child support order.7 See

RCW 26.09.170; KCLFLR 14(a); KCLFLR 6(g)(2). But he made no effort to pursue

further process until the revision hearing.

While this case differs from Morris in that Kevin noted a need for discovery

and testimony, the result is the same. There was no prejudice and any error was

harmless. Kevin had ample opportunity to present evidence and request additional

process to address deficiencies. Therefore, the trial court did not abuse its

discretion by setting postsecondary support and back child support without further

proceedings.

K's Best Interests 

Kevin argues that the trial court erred by failing to consider K's best interests

when it ordered Kevin and Kathy to pay for the entirety of K's postsecondary

educational support. Because the record demonstrates that the trial court weighed

K's best interests along with the other required factors for determining the support

obligation, we disagree.

7 The initial hearing date was June 29, 2016, and the revision hearing was held on

September 27, 2016.

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In setting postsecondary education support, the trial court has the discretion

to consider relevant factors, including:

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. Also to be

considered are the amount and type of support that the child would

have been afforded if the parents had stayed together.

RCW 26.19.090(2). There is no requirement of written findings under the statute.

Morris, 176 Wn. App. at 906.

We review a trial court's award of postsecondary support for abuse of

discretion. Morris, 176 Wn. App. at 905. "As long as the court considers all the

relevant factors set forth in RCW 26.19.090 for determining postsecondary

support, it does not abuse its discretion." In re Goude, 152 Wn. App. 784, 791,

219 P.3d 717 (2009).

Here, the trial court weighed the RCW 26.12.090(2) factors at the revision

hearing, including Kevin's and Kathy's resources, ability to pay, educational

background, and expectations for K's education. For example, the trial court

considered Kevin's and Kathy's willingness to support K's high school education

and the parties' financial documents to evaluate their ability to pay. Additionally,

the trial court remarked about the difficulties of student debt, which suggested a

belief that unnecessary loan obligations were not in K's best interests when her

parents had well documented ability to pay.8 Thus, the trial court's statements

indicate evaluation of the factors prior to making a final determination on the

8 The trial court noted that school debt "turns into her first house. . . except [school debt

is) not dischargeable and she can't sell it." Report of Proceedings (Sept. 27, 2016) at 22.

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parties' support obligations.

Kevin argues that the trial court was not equipped to evaluate the thousands

of pages of record on reconsideration. A trial court is presumed to have considered

all evidence before reaching its decision. Morris, 176 Wn. App. at 906 (citing In re

Marriage of Kelly, 85 Wn. App. 785, 793, 934 P.2d 1218 (1997)). Kevin has not

provided evidence to overcome this presumption, and the trial court's decision

demonstrates consideration of the statutory factors, including K's best interests.

Attorney Fee Award 

Kevin argues that the trial court abused its discretion when it awarded

$5,000 in attorney fees to Kathy without finding that he was intransigent in the

proceedings or that she had demonstrated financial need. We disagree because

the trial court clearly intended to award fees based on Kevin's intransigence.

A trial court may award a party its costs and fees incurred during dissolution.

RCW 26.09.140. Generally, in determining the amount of a fee award, the trial

court must balance the requesting party's need against the other party's ability to

pay. In re Marriage of Crosetto,82 Wn. App. 545, 563, 918 P.2d 954 (1996). But

if the requesting party establishes that the other party's intransigence necessitated

additional legal services, the financial resources of the spouse seeking the fee

award are irrelevant. Crosetto, 82 Wn. App. at 563-64. Intransigence may be

shown "simply when one party made the trial unduly difficult and increased legal

costs by his or her actions." In re Marriage of Greenlee,65 Wn. App. 703, 708,

829 P.2d 1120 (1992). The trial court is not required make an express finding of

intransigence. See Crosetto,82 Wn. App. at 564.

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We review the trial court's decision to award fees for abuse of discretion.

See In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994). "The

party challenging the award bears the burden of proving that the trial court

exercised this discretion in a way that was clearly untenable or manifestly,

unreasonable." Knight,75 Wn. App. at 729.

Here, the trial court awarded $5,000 to Kathy because "all her fees and

costs could have been avoided had [Kevin] been willing to meet with [Kathy] and

exchange financial documents as she requested."9 This statement establishes

intransigence. The record shows that Kevin made no effort to constructively

participate in a determination of postsecondary support obligations. Furthermore,

Kevin waited until the revision hearing to request a transfer to the TBA calendar,

despite having several months during which he could have moved for additional

process.

The trial court's determination of intransigence obviates Kathy's obligation

to make a showing of financial need. Therefore, we conclude that the trial court

did not abuse its discretion by awarding her attorney fees based on Kevin's

intransigence.

Attorney Fees on Appeal 

Kathy requests attorney fees on appeal because Kevin's income and assets

vastly exceed hers and his litigations tactics unduly increased her fees. Kevin

responds that Kathy is not entitled to fees because she has significant financial

resources and pursued the improper motion to adjust.

9 CP at 958.

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This court has discretion to order a party to pay fees and costs on appeal

from a dissolution proceeding. RCW 26.09.140. This court considers the parties'

relative ability to pay and the arguable merit of the issues raised on appeal. In re

Marriage of Leslie, 90 Wn. App. 796, 807, 954 P.2d 330 (1998). Additionally,

intransigence in the trial court can also support an award of attorney fees on

appeal. In re Marriage of Mattson,95 Wn. App. 592, 606, 976 P.2d 157 (1999).

While the trial court did not abuse its discretion by awarding attorney fees

based on Kevin's intransigence, his behavior on appeal does not merit additional

fees. As to need, both parties have significant wealth.1° While Kevin's income and

assets exceed Kathy's, she undoubtedly has the financial resources to pay her

own fees on appeal. We exercise our discretion to decline Kathy's request for

attorney fees on appeal.

Affirmed.

WE CONCUR:

1° Kathy has a gross monthly income of over $5,286 with over $2.5 million in liquid assets.

Kevin estimates that his gross monthly income is over $42,000 and that he has over $12

million in liquid assets.

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