IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In re the Marriage of:

KENNETH B. KAPLAN,

Respondent/Cross-Appellant,

v.

SHEILA KOHLS, f/k/a

SHEILA KOHLS-KAPLAN,

Appellant/Cross-Respondent.

DIVISION ONE

No. 73119-0-1

(consol. with No. 73492-0-1)

UNPUBLISHED OPINION

FILED: June 13, 2016

u~-

Dwyer, J. — The disharmony between Kenneth Kaplan and Sheila Kohls

continues. No strangers to this—or the superior—court, the former spouses

bring to us the latest iteration of their seemingly continuous, acrimonious

litigation. Each party asserts numerous claims for relief from the trial court's

orders. None have merit. We affirm.

I

Kohls and Kaplan married in 1992. They have two children together, a

daughter, I.K., age 17, and a son, Z.K., age 20.1 Throughouttheir marriage,

Kaplan was employed as an attorney and Kohls was a stay-at-home mother.

These were the ages of the children at the time of the 2015 court proceedings.
No. 73119-0-1 (consol. with No. 73492-0-l)/2

In March 2005, the superior court dissolved their marriage. As part of the

dissolution, Kohls and Kaplan entered into an agreed child support order. They

also agreed that the children's postsecondary education would be funded

through a trust established by the children's paternal grandparents.

In June 2013, Kohls—initially appearing pro se and later represented by

counsel—filed a petition seeking modification of the child support order, which

had been previously modified in 2010.2 Therein, Kohls contended that the child

support ordershould be modified because, among other reasons, "[a] parties'

[sic] income may have changed substantially," and because "[t]he previous order

work[ed] a severe economic hardship" on both her and I.K.

Kaplan contested Kohls' petition. Both parties submitted documentation in

support oftheir arguments, including affidavits and financial worksheets.

Discovery was also conducted.

On November 22, the parties appeared before a court commissioner, the

Honorable Jacqueline Jeske, for trial by affidavit. After hearing from counsel,

Commissioner Jeske set forth a detailed oral ruling. Therein, Commissioner

Jeske ordered, among otherthings, (1) that Kaplan be granted a deduction in his

income for the cost of certain insurance premiums, (2) that both Kohls and

Kaplan were entitled to be reimbursed for the cost ofcertain unpaid health care

2At the time of the 2010 modification, Kohls had returned to work as an elementary

school nurse and Kaplan had resigned from theWashington State Bar to work full-time in his own

company, Kaplan Real Estate Services (KRES).
No. 73119-0-1 (consol. with No. 73492-0-l)/3

expenses for I.K. and Z.K,3 and (3) that Kohls was entitled to an award of

attorney fees and costs.4 She denied Kohls' request to be reimbursed for paying

more than her share of health insurance premiums for I.K. and Z.K.

On January 8, 2014, Commissioner Jeske entered a written "Order on

Modification of Child Support," a written "Order on Presentation," a written "Order

ofChild Support," and written "Findings/Conclusions on Petition for Modification

ofChild Support". In these documents, the commissioner granted Kohls' petition

for modification. In doing so, she imputed to Kaplan a monthly net income of

$34,871.85. She also ordered that, during the summer months, Kaplan would

pay an additional $300 monthly transfer payment to cover postsecondary support

for Z.K.5 Finally, she awarded attorney fees and costs to Kohls in the amount of

$29,500 in fees and $5,360.31 in costs. Kaplan was required to pay this amount

on her behalf.

Thereafter, Kohls moved for revision of Commissioner Jeske's ruling.

Kaplan moved for reconsideration and also later moved for revision. Kohls'

motion for revision was stayed pending a decision on Kaplan's motion for

reconsideration.

On May 13, Commissioner Jeske set forth a detailed written "Order on

Reconsideration." Therein, the commissioner made several changes to her initial

3Commissioner Jeske ordered that the amount of unpaid health care expenses would be

set at a later date, after Kohls and Kaplan provided the superior court with receipts setting forth

the amount that was claimed to be owed.

4Commissioner Jeske ordered that the amount of the award would be set at a later date,

after Kohls' counsel provided the courtwith an accounting of the fees and costs.

5Commissioner Jeske ordered that this amount would be prorated ifZ.K. resided with

Kohls for more than half but less than a full month.
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order. First, she granted Kaplan a deduction in his income for the depreciation of

certain equipment and furnishings. Second, she corrected an error in the

imputation of Kaplan's income by removing the double inclusion of his rental

income.

Following reconsideration, CommissionerJeske ordered Kohls' counsel to

prepare a revised order for later entry. Kohls' counsel thereafter drafted a

revised order that was inconsistent with Commissioner Jeske's ruling and more

favorable to his client.

After reviewing the proposed order, Kaplan moved for CR 11 sanctions to

be imposed on both Kohls and her counsel. Commissioner Jeske granted the

request.

On June 16, Commissioner Jeske entered a written "Final Order of Child

Support Following Reconsideration." Therein, she confirmed herwritten "Order

on Reconsideration." She imputed to Kaplan a monthly net income of

$31,713.72.

On August 8, the Honorable Sean O'Donnell heard argument on the

competing motions for revision. After hearing argument, he deferred ruling.

On August 11, Kohls filed a "Post-Hearing Memorandum Regarding

Motions for Revision." The next day, Kaplan moved for the court to strike Kohls'

posthearing memorandum and impose CR 11 sanctions on both Kohls and her

counsel. Judge O'Donnell granted each request.

On September 19, Judge O'Donnell filed a written "Order on Revision."

Therein, Judge O'Donnell concluded that modification ofthe child support order

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was not warranted because Kohls had not met her burden of demonstrating

either a sufficient change in circumstances or a severe economic hardship.

Instead, the judge converted Kohls' petition for modification to a motion for

adjustment. Judge O'Donnell then adjusted the child support order. In doing so,

he adopted Commissioner Jeske's calculation of both Kohls' and Kaplan's

incomes,6 her "ruling and analysis with respectto attorneys' fees and costs," and

her "ruling and analysis with respect to sanctions imposed against" Kohls and her

attorney.

Thereafter, Kohls moved for Judge O'Donnell to revise or clarify his "Order

on Revision." Judge O'Donnell granted Kohls' request, both revising and

clarifying the order. Judge O'Donnell clarified his order by correcting a

scrivener's error pertaining to the imputation of Kaplan's income. He revised his

order by granting Kohls an additional $8,750 in attorney fees, payable by Kaplan.

On January 20, 2015, Judge O'Donnell entered a written "Order re

Adjustment of Child Support." Therein, the judge denied Kohls' petition for

modification, instead ruling that an adjustment was warranted. That same day,

he entered a written "Adjusted Order of Child Support on Revision." Therein,

Judge O'Donnell ordered, among other things, that Kaplan was granted a 22.2

percent downward deviation from the standard support schedule in his monthly

child support obligation for I.K.

6Judge O'Donnell's calculation of Kohls' income departed from Commissioner Jeske's

calculation in one respect. He permitted Kohls to include what he deemed to be"deductions for

her mandatory pension plan payments and her voluntary retirement contributions," which were

previously not included.

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On February 19, after Kaplan paid the amount of the attorney fee award,

Kohls' counsel filed a partial satisfaction of judgment with regard to the award.

On April 3, Kaplan moved for the superior court to strike the February 19

partial satisfaction of judgment, enter a full satisfaction of judgment, and impose

CR 11 sanctions on both Kohls and her counsel. Judge O'Donnell struck the

partial satisfaction ofjudgment, ordered the entry of a full satisfaction of

judgment, but denied Kaplan's request for CR 11 sanctions.

Kohls and Kaplan both now appeal.

II

Kohls first contends that the superior court erred by denying her petition

for modification of the child support order. This is so, she asserts, both because

she met her burden of demonstrating that a substantial change in circumstances

had occurred since the 2010 order was entered and because she met her burden

ofdemonstrating that the 2010 orderworks a severe economic hardship on both

her and I.K. We disagree.

"We review child support modifications and adjustments for abuse of

discretion." In re Marriage of Avvad, 110 Wn. App. 462, 467, 38 P.3d 1033

(2002). In doing so, "[generally, we review the superior court's ruling, not the

commissioner's.'' State ex rel. J.V.G. v. Van Guilder, 137 Wn. App. 417, 423, 154

P.3d 243 (2007). But, "[t]he superior court may adopt the commissioner's

findings of fact as its own." In re Dependency of B.S.S., 56 Wn. App. 169, 171,

782 P.2d 1100 (1989). We will notsubstitute ourjudgment for that ofthe trial

court unless the trial court's decision rests on unreasonable or untenable
No. 73119-0-1 (consol. with No. 73492-0-l)/7

grounds. In re Marriage of Leslie. 90 Wn. App. 796, 802-03, 954 P.2d 330

(1998). "A trial court does not abuse its discretion where the record shows that it

considered all the relevant factors and the child support award is not

unreasonable under the circumstances." Van Guilder, 137 Wn. App. at 423.

"Findings of fact supported by substantial evidence, i.e., evidence sufficient to

persuade a rational person of the truth ofthe premise, will not be disturbed on

appeal." Van Guilder. 137Wn. App. at 423.

RCW 26.09.170 sets forth two methods for requesting a change in a child

support order from the superior court: a petition for modification or a motion for

adjustment. RCW 26.09.170(5)(a), (6)(a), (7)(a).

Apetition for modification commences with filing a petition and worksheets

and serving those documents on the parties. RCW 26.09.175(1), (2)(a). After

responsive pleadings have been filed, any party may schedule the matter for a

hearing. RCW 26.09.175(5). Unless otherwise agreed or permitted by the court,

the court confines its review to the affidavits, petition, answer, and worksheets.

RCW 26.09.175(6).

Upon reviewing these documents, the court may order modification of the

child support order "based upon a showing ofsubstantially changed

circumstances at any time." RCW 26.09.170(5)(a). Asubstantial change of

circumstances must be something that was not contemplated at the time that the

last child support order was entered. In re Marriage ofMoore, 49Wn. App. 863,

865, 746 P.2d 844 (1987). This is so because the court views a petition as

"'significant in nature and anticipates making substantial changes and/or

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additions to the original order of support.'" In re Marriage of Morris, 176 Wn.

App. 893, 901, 309 P.3d 767 (2013) (Quoting In re Marriage of Scanlon, 109 Wn.

App. 167, 173, 34 P.3d 877 (2001)). In the absence ofa substantial change in

circumstances, a modification may be ordered if one or more years has passed

since the last child support order was entered and "the order in practice works a

severe economic hardship on either party or the child." RCW 26.09.170(6)(a).

An adjustment, in contrast, "is a streamlined process that is commenced

by filing a motion for a hearing and is used to conform the existing provisions of a

child support order to the parties' current circumstances." Morris, 176 Wn. App.

at 901 (citing Scanlon, 109 Wn. App. at 173). It may be ordered in certain, listed

situations, which do not require demonstrating a substantial change in

circumstances, RCW 26.09.170(7)(a), such as "[c]hanges in the income ofthe

parents" if 24 months have passed since the date of entry of the last order,

adjustment, or modification, whichever is later. RCW 26.09.170(7)(a)(i).

A

Kohls first argues that the "near quadrupling" of Kaplan's income between

2010 and 2013 constituted a substantial change in circumstances. In doing so,

she challenges the superior court's finding that "the disparity between Mr.

Kaplan's and Ms. Kohls' earnings has remained constant and was predicted to

do so at the time the 2010 order was entered," contending that thisfinding is not

supported by substantial evidence. The record indicates otherwise.

"[W]hether a change in circumstances is substantial depends on its effect

on a parent's monthly net income." In re Marriage of Bucklin, 70 Wn. App. 837,

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No. 73119-0-1 (consol. with No. 73492-0-l)/9

840, 855 P.2d 1197 (1993). This is "a decision that rests almost exclusively with

the trial court." Hume v. Hume, 74 Wn.2d 319, 320, 444 P.2d 804 (1968). A

change in income constitutes a substantial change in circumstances if the

change was one that was not contemplated at the time that the last child support

order was entered. Scanlon, 109 Wn. App. at 173. But mere passage of time or

routine changes in income are insufficient to warrant relief. Scanlon, 109Wn.

App. at 173-74 (a substantial change of circumstances may existwhere a

mother's income unexpectedly increased to more than $270,000 per year, her

assets exceeded $5 million, her gross annual household income was more than

$800,000, and she had remarried since the last child support order was entered);

cf. In re Marriage ofArvev, 77 Wn. App. 817, 821-22, 894 P.2d 1346 (1995)

($962 decrease in monthly net income insufficient to warrant relief).

Judge O'Donnell concluded that Kohls did not meet her burden of

demonstrating that a substantial change in circumstances had occurred since the

2010 order had been entered.

[T]he Court has compared Ms. Kohls' financial declarations from

2010 and 2014 as well as the child support worksheetsfrom both of

those years.w As identified by the parties, a number of things have

remained consistent. The first is that Ms. [Kohls]' income has

remained largely the same (her net monthly income is slightly less

in 2014 compared to 2010).[8] Her expenses have been significantly

reduced, based in part on her refinancing her home.[9] But other

7The record reflects that the financial declarations are actually comparisonsfor the years

2010 and 2013. We find this variance of no significance. 8In anAugust 2010 financial declaration, Kohls attested that her net monthly income was

$2,523. In September 2010, she attested that her net monthly income was $2,021. In June

2013 she attested that her net monthly income was $2,293. 9In the August 2010 financial declaration, Kohls attested that her total monthly expenses

were $6,335. She stated that they were $7,832 in September 2010, and that they were $5,356 in

June 2013.
No. 73119-0-1 (consol. with No. 73492-0-l)/10

expenses have been reduced as well, including costs for the

children ($700 in 2014 vs. $800 in 2010), transportation ($415 in

2010 vs. $390 in 2014) and personal expenses ($500 in 2010 vs.

$205 in 2014). Some expense[s] have increased marginally, e.g.,

health care and utilities.[10] Food expenses have, perhaps, jumped

the most significantly ($900 in 2010 to $1200 in 2014), but in 2014

Ms. [Kohls] has accounted for three people in the residence when,

in fact, her oldest son is at college for most of the year.

The Court cannot find that an increase in expenses for [I.K.]

is a sufficient basis to support a modification. Neither can the Court

find that a substantial change in circumstances results from Mr.

Kaplan now not paying for his son's private school tuition, given

that the parties and the Court which entered the order would surely

had contemplated [Z.K.] graduating from high school. While this

may free additional funds for Mr. Kaplan, that would have been

apparent back in 2010.

With respect to the credit for health care premiums, the

parties currently agree that the premiums are $118.00 per child.

However, this change in and of itself is not a substantial one as

contemplated either under the statute or case law.

The final basis for this modification would be Mr. Kaplan's

increased income since 2010. In 2005, Mr. Kaplan's gross monthly

income was $29,370.00. In 2010, the Court imputed his gross

monthly income at $21,779.00. Commissioner Jeske found that Mr.

Kaplan's current gross monthly income is $32,129.72J11] Setting

aside momentarily [ ] how the Courts arrived at these income

calculations, the disparity between Mr. Kaplan's and Ms. Kohls'

earnings has remained constant and was predicted to do so at the

time the 2010 order was entered.1121 The increase, however, is not

akin to the changes found, for example, in the Scanloncase, noted

by both parties in their briefing. It does not rise to a substantial

change in circumstances.

10 The financial declarations indicate that Kohls attested that her health care expenses

were $200 in August 2010, $250 in September 2010, and $220 in June 2013. The financial

declarations also indicate that Kohls attested that her utility expenses were $600 in August 2010,

$612 in September 2010, and $630 in June 2013.

11 The record indicates that this number was later corrected to reflect that "Mr. Kaplan's

net monthly income was $31,713.72." Accordingly, we consider it nothing more than a

scrivener's error.

12 In 2010, the courtfound Kohls' actual monthly net income was $2,444and imputed

Kaplan's monthly net income at $8,137. In 2015, the court found that Kohls' actual monthly net

income was $1,812.53and imputed Kaplan's monthly net incomeat $31,713.72.

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Based on Judge O'Donnell's explanation of his ruling, it is evident that he

concluded that the relatively small variances in both Kohls' income and expenses

between 2010 and 2013, when coupled with the fact that Kohls' and Kaplan's

income had historically been disparate, evidenced that a substantial change in

circumstances had not occurred. Judge O'Donnell was in the best position to

make this determination. He did so thoroughly, thoughtfully, and based on the

substantial evidence in the record before him. There was no error.

B

Kohls next challenges Judge O'Donnell's factual finding (and his ultimate

conclusion) that the 2010 order of child support did not work a severe economic

hardship on either Kohls or I.K. because Kohls' economic situation was

contemplated atthe time that the 2010 order was entered. Kohls contends that

this finding is not supported by substantial evidence. Again, the record indicates

otherwise.

The existence of a severe economic hardship is a factual determination

that is within the discretion ofthe trial judge. See In re Marriage of Schumacher,

100 Wn. App. 208, 211, 997 P.2d 399 (2000). When making this determination,

the court recognizes that there is no formal legal testfor a severe economic

hardship because none could adequately encompass the wide range of factual

situations that might arise. Rather, the court looks to the actual effect of a child

support order. Schumacher, 100 Wn. App. at 212 (finding that an "unwieldy and

unpredictable" method for calculating a parent's child support obligation created

a severe economic hardship where it "denied [the parent] an opportunity to

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budget their child's financial needs"). The party seeking the modification bears

the burden of proving that a severe economic hardship exists. See, e.g.. Arvev.

77 Wn. App. at 820-22; see also RCW 26.09.170(6)(a).

On revision, Judge O'Donnell concluded that the 2010 child support order

did not work a severe economic hardship on either Kohls or I.K.

With respect to the current order working a "severe

economic hardship," Ms. Kohls provides limited information on this

topic. Her overall expenses have actually decreased since the

2010 order. She alleges that because her son has moved out of

the house and support payments for him have stopped, her

economic situation is bleak. But that surely was contemplated at

the time the 2010 order was entered. Moreover, since he is at

college (paid for by a scholarship/trust put into place by his

grandparents) her expenses for [Z.K.] are reduced.

Ms. Kohls similarly states in her responsive pleadings that

[I.K.'s] increased residential time with her increases her expenses.

Her financial declarations from 2010 and 2014 contradict this

assertion as her overall expenses have decreased.

Ms. [Kohls] finally claims that the current order is "cheating

our daughter out ofthe opportunities she would have otherwise

enjoyed and can still enjoy, including the opportunities to take the

guitar and voice lessons she so desires and to participate in ski bus

trips at herschool and attend summercamps."

Here, Ms. Kohls points to the disparity in her income versus

her monthly obligations. But these circumstances were more acute

in 2010 than it is in 2014. The assertions regarding an inability for

their daughterto attend things like voice lessons and summercamp

do not rise to a severe economic hardship. On this ground, the

evidence does not support her claim of economic hardship.

Based on Judge O'Donnell's explanation of his ruling, there are three

identifiable bases for his conclusion that the 2010 child support order did not

work a severe economic hardship on either Kohls or I.K. First, Judge O'Donnell

found that Kohls' economic situation in 2015 was contemplated at the time that

the 2010 order was entered given that, at thattime, child support payments for

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Z.K. were envisioned to end as a natural and probable consequence of his

reaching the age of majority. Second, Judge O'Donnell found that Kohls'

assertions regarding the disparity in her monthly income and expenses (when the

record reflected the contrary), the ending of the child support payments for Z.K.,

and the fact that I.K. was hampered in participating in various extra-curricular

activities were all insufficient grounds upon which to find a severe economic

hardship. (Indeed, Kohls' assertion ofa severe economic hardship is based on

her mistaken beliefthat the child support payments are intended for her benefit,

not the benefit of her children). Third, it is evident that Judge O'Donnell

concluded that it was not proved that I.K.'s basic needs were not being met by

the 2010 order. Thus, he found that a severe economic hardship did not exist.

Judge O'Donnell was in the best position to make this determination. He did so

thoroughly, thoughtfully, and based on the substantial evidence in the record

before him. There was no error.13

Ill

Kohls next contends that the superior court erred by declining to address

whether child support should be set above the maximum advisory level. We

disagree.

First, Kohls asserted to the superior court that it should utilize

"extrapolation" to set Kaplan's child support obligation above the maximum

13 In her appellate brief, Kohls also contends that the superior court abused its discretion

by converting her petition for modification to a motion for adjustment. We disagree. RCW

26.09.170(7)(a)(i) permitted the trial court to make an adjustment based on "[cjhanges in the

income of the parents." Thus, there was no error.

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No. 73119-0-1 (consol. with No. 73492-0-l)/14

advisory level. The superior court was not permitted to do so. See In re

Marriage of McCausland. 159 Wn.2d 607, 617, 152 P.3d 1013 (2007). Second,

Kohls asserted to the superior court, and persists in asserting on appeal, that the

child support should be set above the maximum advisory level given the disparity

between Kohls' and Kaplan's financial resources. In such a circumstance, Kohls

does not establish a claim for appellate relief. See Scanlon. 109 Wn. App. at 180

("Child support is designed to meet the needs of the children at issue; its

sufficiency is notmeasured by whether it financially strains the obligor parent.").

IV

Kohls next contends that the superior court erred by not adopting

Commissioner Jeske's ruling regarding Z.K.'s postsecondary support. Given that

Judge O'Donnell properly converted Kohls' petition for modification to a motion

for adjustment, Kohls does not establish a claim for appellate relief. See In re

Marriage of Sprute, 186 Wn. App. 342, 349, 344 P.3d 730 (2015); see also

Morris, 176 Wn. App. at 902.14

V

Kohls next contends that the superior court erred in calculating Kaplan's

income. This is so, she asserts, both because the superior court improperly

permitted Kaplan to take a deduction for the depreciation of certain equipment

and furniture and because the superior court improperly permitted Kaplan to take

14 Kohls also contends that the superior court's ruling should have addressed

postsecondary support for I.K. The request for postsecondary support for I.K., however, is

precluded for the same reasons.

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a deduction for the cost of certain insurance premiums. Each contention is

unavailing.

In Washington, child support obligations are calculated according to the

statutory support schedule. See RCW 26.19.020. The schedule was enacted in

order "to insure that child support orders are adequate to meet a child's basic

needs and to provide additional child support commensurate with the parents'

income, resources, and standard of living." RCW 26.19.001; Leslie. 90 Wn. App.

at 803. In enacting the schedule, the legislature also "intended to equitably

apportion the child support obligation between both parents." Avvad. 110 Wn.

App. at 467; RCW 26.19.001. The schedule setsforth support obligations for

each child based on the combined monthly net income of both parents, the

number of children in the family, and the age ofeach child. See RCW 26.19.020.

"When assessing the income and resources ofeach household, the court

must impute income to a parent when that parent is voluntarily unemployed or

voluntarily underemployed The court determines whether to impute income

by evaluating the parent's work history, education, health, age and any other

relevant factor." In re Marriage of Pollard, 99 Wn. App. 48, 52-53, 991 P.2d 1201

(2000); see also RCW 26.19.071(6). In doing so, the court makes an equitable

determination. See Marian F. Dobbs, Determining Child &Spousal Support,

§ 4.37, at 884-91 (2015) ("[S]tates recognize that proceedings governing the

dissolution ofmarriage, support, and custody are equitable in nature and thus

governed by basic rules of fairness When a court determines that a parent

is voluntarily impoverished, it may consider any admissible evidence to ascertain

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potential income. Potential income is not the type of fact that is capable of being

verified through documentation or otherwise." (footnote omitted)); see also In re

Marriage of Gainev. 89 Wn. App. 269, 275, 948 P.2d 865 (1997) (no abuse of

discretion where the trial court estimated a father's income "using a reasonable

method not dependent on the information [the father] wasfailing to produce");

see also, e.g.. In re Marriage of Clark. 13 Wn. App. 805, 810, 538 P.2d 145

(1975) ("The key to an equitable distribution of property is not mathematical

preciseness, but fairness.").

In the "Order on Reconsideration," Commissioner Jeske set forth how she

imputed Kaplan's income.

Several errors are claimed in the request for reconsideration. The

Court denies the request on reconsideration to alter the

depreciation figures and credit as tothe credit related to loan

payments. . . . However[,] the Court will grant the request asto the

depreciation related to equipment and furnishings ($10,397). While

the record is less than specific as to this disputed deduction

resulting in an out of pocket loss, there is sufficient evidence in the

record that this smaller amount relates to an actual expenditure! ]

associated with Mr. Kaplan's interest in the LLC's Mr. Kaplan's

submissions and presentation at trial did not clearly trace,

document and explain his actual out of pocket expenses in the form

of depreciation rather than his paper losses. It is unclear which

amounts (depreciation) were attributable to his share of each

individual property and by what amount it reduced his personal

income (e.g. from his proportionate share of each LLC). While the

court did not doubt at trial that some portion of these expenses

were legitimate, he did not clearly demonstrate and adequately

separate these out from other losses. He did not meet his burden

of proof as to the other depreciation expenditures. .. . TheCourt grants the request to correct an error as to the

double inclusion of his rental income calculation. The income figure

is a net figure, imputed for purposes of support. Clearly it is not

consistent with his reported income for purposes of his income tax

return. Nor does the Court have confidence in Mr. Kaplan's

personal tax returns as a basis for determination of income for

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purposes of child support. The Court imputed income as a net

amount and substantial evidence supports this amount.

. . .Despite providing copious financial records, neither party

presented a clear, credible and accurate presentation of Mr.

Kaplan's income (gross or net), legitimate deductions for child

support purposes vs. business or tax purposes (from KRES or any

other business interest), or a financial declaration that comported

with LR 10t15i and offered a complete understanding of his income,

assets and debts (personal vs. business). Mr. Kaplan's real income

is unknown to this Court both at trial and on reconsideration due to

the complexity of his business interests and his own lack of

adequate explanation and financial documentation to this Court.

Despite his regular employment of both a certified public

accountant and a bookkeeper, his presentation at trial appeared to

be focused more on the lack of credibility of [Kohls] than on a

credible explanation of his income, supported by financial evidence.

His significant and consistent use of legitimate business deductions

from a variety of sources to reduce personal expenses orfund

significant personal expenses (private school tuition, use ofa

vehicle, travel, entertainment and the like) through his business is

amply supported in the record. The Court thus elected to impute

income to him absent his presenting the Court with adequate

explanation supported by financial evidence.

The Court considered both parents' total household

resources, incomes and ability to maximize deductions along with

their reported assets and liabilities. Mr. Kaplan's lifestyle includes

frequent dining at expensive establishments including Wild Ginger,

El Gaucho, Palominos, Daniel's Broiler and Dukes. His household

expenses include a gardener, maid and massages. His travel

habits, with or without his children, reflect recent trips to New York,

South America, Palm Springs, and the like. His more recent annual

credit card expenditures for personal expenses ($80,000 + . . .) all

reflect a wealthy lifestyle [T]his court was not able to determine

his actual real income so it imputed it on the basis of his expenses,

lifestyle and standard of living. Aprior declaration by Mr. Kaplan

self-reported a total monthly net income of $7[,]112 and listed total

monthly expenses of $12,176. How he paid the private school

expenses, credit card personal expenses, child support and his

household expenses and lifestyle on this amount was never

15 Commissioner Jeske was referencing Local Family Law Rule (LFLR) 10. LFLR 10

governs "Financial Provisions." This rule sets forth the circumstances in which financial

information is required, the type of supporting documentation that may be filed with a financial

declaration, and the type ofdocuments thatare to be filed under seal.

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explained. Little to no explanation was provided as to the

separation or inclusion of business expenses paid by KRES which

operated to minimize his personal expenses or how he managed to

fund his lifestyle solely based on the net income he reported on

either his financial declaration or his tax return. . . .

The cumulative record here reflects that Mr. Kaplan's

expenditures, lifestyle, payment of business and personal

expenses, legitimate tax deductions and capital accretion are

simply not reflective of his income as reported on his LR 10, bank

statements or past personal tax returns. There is no doubt that the

evidence he adduced at trial through his CPA and bookkeeper

presented the Court with his legitimate tax deductions and some

personal expenses taken as distributions. But he nevertheless

failed to explain that where his tax returns, bank statements and

self-reported income are largely and dramatically inconsistentwith

his actual lifestyle, RCW 26.09 et seq. does not require the Court to

find this evidence controlling as to an imputation of his income and

determination of his resources.

On revision, Judge O'Donnell adopted Commissioner Jeske's imputation

of Kaplan's income.

As a threshold matter, the Court notes that Commissioner

Jeske[ ] conducted a careful analysis, both oral and written,

concerning the degree of difficulty in ascertaining Mr. Kaplan's true

income. Having read Mr. Kaplan's responses to questions posed to

him during his deposition, it is difficult to reach a different

conclusion.

In her oral ruling on November 22, 2013, Commissioner

Jeske noted that each party had an obligation to provide a holistic

picture oftheir respective assets. Given this statutory obligation,

the Commissioner was mystified by Kaplan's lack of clarity and

level of obfuscation. Commissioner Jeske found it reasonable to

assume that "if a party controls an LLC, has a CPA, has a

bookkeeper, and has a juris doctorate and the level of history of

expertise in this area ofmanagement of properties, he should be

able to explain to a judicial officer his legitimate business income

and his legitimate expenses and parse those out in a clear record

from personal [expenses]. . ." Oral Ruling ofCommissioner Jeske

15.15-22

This Court agrees.

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The Commissioner also found it obvious that Mr. Kaplan's

business and personal expenses were comingled and that Mr.

Kaplan's self-reported income was inaccurate, as shown by his

high standard of living and lack of debt.

Accordingly, to calculate Mr. Kaplan's monthly child support

transfer payment, the Commissioner added several of Mr. Kaplan's

untraceable expenditures to his reported income. This resulted in

an imputed monthly income of $31,713.72, and a $1,712.84

monthly transfer payment for [I.K.].

For purposes of determining his gross monthly income, this

Court finds that Mr. Kaplan is voluntarily under-employed. Indeed,

Mr. Kaplan's claimed income is divorced from the reality of monies

(or personal benefits) he is actually receiving each month, however

he may wish to characterize these expended funds. The Court

therefore imputes gross monthly income to him in the amount of

$32,129.72J16]

This amount takes into consideration Mr. Kaplan's standard

of living, his lack of debt, and the expendituresfrom which he

personally benefitted as a result of payments by KRES and which

are difficult, if not impossible, to untangle from his wholly owned

business.

Here, Commissioner Jeske was provided with declarations from both

Marianne Pangallo, Kaplan's Certified Public Accountant, and Richard Sobie,

Kaplan's bookkeeper, in order to assist in calculating his income. Pangallo

attested that Kaplan's income should include deductions for the cost ofcertain

insurance premiums and for the depreciation ofvarious equipment and

furnishings. When imputing Kaplan's income, Commissioner Jeske chose to

credit Pangallo's testimony by granting Kaplan both of these deductions. On

revision, Judge O'Donnell agreed with Commissioner Jeske's calculation and,

thus, adopted her imputation ofKaplan's income. On appeal, given that

imputation of income is an equitable determination, not an arithmetically exact

16 Again, the record indicates that the trial court subsequently corrected this to reflect that

"Mr. Kaplan's netmonthly incomewas $31,713.72."

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determination, we look to the final imputed figure, instead of its component parts,

to determine ifthe imputed amount is within the range of the evidence presented.

It is. The trial court did not abuse its discretion in making this equitable

determination.

VI

Kohls next contends that the superior court erred by granting Kaplan a

deviation from the standard child support obligation. This is so, she asserts, both

because Judge O'Donnell erred by stating that the 22.2 percent downward

deviation ordered in 2010 was the "the law of the case" in 2015, and because the

22.2 percent downward deviation was not supported by substantial evidence.

While Kohls is correct that Judge O'Donnell misspoke by stating that such

deviation was the "lawof the case," there is no error because the deviation is

supported by substantial evidence.

Adeviation is "a child support amount that differs from the standard

calculation." RCW 26.19.011(4). The trial court "has discretion to decide the

extent of any deviation." In re Marriage of Trichak, 72 Wn. App. 21, 23, 863 P.2d

585 (1993).

In the "Adjusted Order ofChild Support On Revision," Judge O'Donnell set

forth the reasons for granting Kaplan a downward deviation from the standard

child support schedule.

Per the Order of Child Support entered herein on December 17,

2010, the father was required to pay 100% of both children's tuition

at University Prep and accordingly was granted a 22.2% downward

deviation from the standard transfer payment. (The standard

calculation of $1,928 for two children was reduced to $1,500, a

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difference of $428 or 22%). As the law of the case, this 22.2%

downward deviation is required to be applied to the present

standard calculation of $1,738.05 for one child. The present child

support transfer payment should therefore be $1,352. ($1,738.05 X

22.2% = $386; $1,738 minus $386 = $1,352).

A transfer payment of $1,352 per month, along with a payment of

100% of the child's private school tuition, provides for the child's

needs.

The father is ordered to pay the full school tuition for the child. This

provision may be reviewed if tuition increases by $1,250 or more

over the 2010 tuition of $26,000 per child.

Here, Judge O'Donnell granted an adjustment. The propriety of a

deviation was a legal issue previously decided. Thus, it was so that a deviation

in some amount might be considered to be required by the law of the case

doctrine. However, because an adjustment took place, the judge retained the

authority to adjust the amount of the deviation. Thus, Judge O'Donnell misspoke

by stating that the 22.2 percent downward deviation ordered in 2010 was the "law

of the case." However, the 22.2 percent deviation is within the range of the

evidence presented. The court wasfree to adjust it or not, as it sawequitable.

No prejudicial error is established. No appellate relief is warranted.

VII

Kohls next contends that the superior court erred by not ordering Kaplan

to reimburse Kohls for paying more than her share ofthe cost of health insurance

premiums for I.K. and Z.K. Kohls cites no authority to support her position that

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No. 73119-0-1 (consol. with No. 73492-0-l)/22

Judge O'Donnell was required to address this issue in an adjustment proceeding.

He declined to do so. We will not disturb this decision on appeal.17

VIII

Kohls next contends that the superior court erred by imposing CR 11

sanctions on both her and her counsel based on findings that Kohls acted

improperly by presenting for entry an order that did notfully conform to the

commissioner's oral ruling and byfiling an unpermitted memorandum. We

disagree.

"The purpose of[CR 11 ] isto deter baseless filings and curb abuses ofthe

judicial system." Skimming v. Boxer, 119 Wn. App. 748, 754, 82 P.3d 707 (2004)

(citing Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994)). CR 11 provides

thatthe trial court may impose sanctions against a party or his attorney if a

pleading, motion, or legal memorandum is submitted that is (1) not well grounded

in fact, (2) not well grounded in law, (3) filed for an improper purpose, and (4)

when viewed objectively, the culpable party or attorney failed to make a

reasonable inquiry into the factual orlegal basis for the action. Madden v. Foley,

83 Wn. App. 385, 389, 922 P.2d 1364 (1996). We apply an objective standard to

determine whether a reasonable person in like circumstances could believe his

actions to be factually and legally justified. Brvant v. Joseph Tree. Inc., 119

17 In her appellate brief, Kohls also contends that the superior court erred by refusing to

order Kaplan to reimburse her for the cost of certain unpaid health care expenses for I.K. and

Z.K. The parties agree that a settlement has been reached on this issue. Thus, the issue is

moot.

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Wn.2d 210, 220, 829 P.2d 1099 (1992). "The burden is on the movant to justify

the request for sanctions." Biggs, 124 Wn.2d at 202.

A

Kohls first asserts that the imposition of CR 11 sanctions on both her and

her attorney for presenting the superior court with an order that did not fully

conform with the commissioner's ruling was improper. Specifically, she avers

that the only change on the proposed order which varied from the

commissioner's ruling was the inclusion of Kohls' monthly pension plan payments

(which she claims the commissioner wasstatutorily mandated to include when

calculating her income) and voluntary retirement contributions. Her argument

does not persuade us.

The proposed order contained two crucial modifications that did not

conform to the commissioner's ruling. First, Kohls' attorney included an

additional $900 in child support to be paid by Kaplan that the commissioner did

not order. Second, Kohls' attorney drafted a provision to state that Kaplan would

pay 100 percent of college preparatory fees for I.K. when the commissioner had,

in fact, ordered that Kaplan and Kohls would each pay a pro rata share ofthese

fees. Thus, CommissionerJeske found that these revisions were improper

insofar as they "exceeded the scope of presentation." Her ruling was correct. No

abuse of discretion is established.

B

Kohls next asserts that the imposition of CR 11 sanctions on both her and

her attorney for filing an unpermitted memorandum was improper. Specifically,

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she avers both that the trial judge applied the wrong subsection of a local civil

rule when he ruled on the request and that he did not make the required finding

that her memorandum was either not grounded in fact, not grounded in law, filed

for an improper purpose, or that her attorney failed to make a reasonable inquiry

into the factual or legal basis of the action. Each contention is unavailing.

The record indicates that Judge O'Donnell applied the appropriate

subsection ofthe applicable local civil rule and that he made the required factual

finding prior to imposing sanctions. In fact, an examination of his ruling indicates

that he concluded that Kohls' memorandum was improper for two reasons. First,

even had the pleading addressed permissible issues, Judge O'Donnell found that

the memorandum wasimproper insofar as it was "late-filed and not permitted by

any court rule or statutory authority." Second, the contents of the memorandum

amounted to a reiteration by Kohls of the same arguments that she had asserted

atthe initial trial by affidavit and throughout the hearing on revision. Thus, Judge

O'Donnell found that the memorandum was improper because "despite this

court's admonishmentto counsel to address only this motion for CR 11

sanctions, counsel decided to relitigate Commissioner Jeske's prior ruling on

separate sanctions." In this regard, the memorandum did not appropriately

respond to the court's request or provide the court with any new information.

Judge O'Donnell's ruling was correct. No abuse of discretion is established.

IX

Kohls next contends that the superior court abused its discretion by

ordering interest to run on Commissioner Jeske's award of sanctions, but not on

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Kohls' award of attorney fees and costs, from the dates of those orders. We

disagree.

Washington law has historically treated prejudgment interest

as a matter of right when a claim is liquidated. A liquidated claim is

one "'where the evidence furnishes data which, if believed, makes it

possible to compute the amount with exactness, without reliance on

opinion or discretion.'" If the fact finder must exercise discretion to

determine the amount of damages, the claim is unliquidated. The

fact that a dispute exists over all or part of a claim does not make

the claim unliquidated.

An award of prejudgment interest is based on the principle

that when a defendant retains money that is owed to another, he

should be charged interest upon it. Nevertheless, a defendant is

not required to pay prejudgment interest in cases where it is not

possible to ascertain the amount owed to the plaintiff until the court

has exercised its discretion in determining that amount. The

amount owed must be ascertainable without the aid of a

discretionary court ruling concerning the amount due before the

obligor can be liable for prejudgment interest.

Dautel v. Heritage Home Ctr., Inc., 89 Wn. App. 148, 153-54, 948 P.2d 397

(1997) (footnotes omitted).

By seeking revision ofCommissioner Jeske's ruling, Kohls nullified the

commissioner's award of attorney fees and costs. In this regard, the award was

neither final nor liquidated. There was no amount upon which interest could

accrue until an amount of fees and costs was awarded on revision.

The CR 11 sanctions, on the other hand, were awarded as a penalty. The

at-fault party should not be rewarded for resisting the imposition ofthe penalty.

Not granting an award of prejudgment interest on the CR 11 sanctions would

wrongly reward the at-fault party for seeking revision. An at-fault party should not

benefit by delaying the sanction. Consistent with the principles underlying CR

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No. 73119-0-1 (consol. with No. 73492-0-l)/26

11, the superior court acted within its discretion by imposing prejudgment interest

on the sanction amount, retroactive to the date of the commissioner's order.

There was no error.

X

Kohls next contends that the superior court erred by not awarding her the

full amount of the attorney fees and costs that she requested pursuant to RCW

26.09.140.18 In doing so, she challenges Judge O'Donnell's finding on

reconsideration that "a 25 hour investment of attorney time is reasonable

considering the fact that much ofthe research and briefing had previously been

conducted," contending that this finding is not supported bysubstantial evidence.

We disagree.

Here, Kohls' argument thatthe superior court's award of attorney fees and

costswas improper is based on her assertion that "the factual and legal

questions involved were difficult and complex," that "[t]he time necessary for

preparation and presentation of the case was substantial," and that "[t]he amount

and character ofthe property involved wassubstantial." Contrary to her present

intimation, however, the issues in this case amounted to simple mathematical

adjustments in the child support order. The issue on reconsideration was the

same issue thatwas presented to the trial court during the initial trial by affidavit.

Thus, both the superior court's finding and its award ofattorney fees and costsis

supported by substantial evidence. See Dillev v. Dillev, 4Wn. App. 270, 272,

18 In total, Kohls' award of attorneyfees and costs was $43,610.31.

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481 P.2d 584 (1971) (award of attorney fees affirmed when supported by

substantial evidence). There was no error.

XI

In a cross appeal, Kaplan contends that the superior court erred by not

imposing CR 11 sanctions on both Kohls and her counsel forfiling a partial

satisfaction ofjudgment once Kaplan paid the amount of attorneyfees and costs

awarded. We disagree.

In support of his request for CR 11 sanctions, Kaplan argued that by filing

a partial satisfaction of judgment on the award of attorney fees and costs, Kohls

and her attorney "put [him] in the position of having to either pay interest that

without question was not owed, orpay a far greater sum in attorney's fees and

costs necessitated by having tofile a motion to defeat their claims. Such conduct

is pure blackmail and bad faith. It violates Civil Rule 11."

Both the commissioner and the superior courtjudge were well acquainted

with the jurisprudence of CR 11 by the time that they finishing dealing with the

parties herein. We are confident that the judge was informed on the law when he

denied the request at issue. No abuse of discretion has been established.

XII

Each party requests an award of attorney fees and costs (payable by the

opposing party) on appeal.

"A party to a dissolution is not entitled to attorney fees as a matter of

right." In re Marriage of Terry, 79 Wn. App. 866, 871, 905 P.2d 935 (1995). Our

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decision can be guided by our view of "the merit of the issues raised on appeal."

In re Marriage of Davison, 112 Wn. App. 251, 260, 48 P.3d 358 (2002).

Kohls seeks fees based on the law of "need and ability to pay." Kaplan

seeks fees based on the law of frivolous appeals.

We exercise our discretion and deny both requests. The parties shall bear

their own fees and costs on appeal.

Affirmed.

^^ -/

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