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UNPUBLISHED OPINION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 forrelieffrom 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
InMarch 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 contestedKohls' petition. Both parties submitted documentation in 

### support oftheir arguments, including affidavits andfinancial worksheets. Discovery was also conducted. On November 22, the parties appeared before a courtcommissioner, 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 andKaplan had resigned from theWashington StateBartowork full-time in his own company, Kaplan Real Estate Services (KRES).No. 73119-0-1 (consol. with No. 73492-0-l)/3
expenses forI.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 forpaying

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 ofChild Support," a written "Order on Presentation," a written "Order ofChild Support," and written "Findings/Conclusions on Petition forModification 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 tocover postsecondary support for Z.K.5 Finally, she awarded attorney fees and costs to Kohls in the amount of $29,500in fees and $5,360.31 in costs. Kaplan was required to pay this amount

on her behalf. Thereafter, Kohls moved forrevision 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, CommissionerJeske set forth a detailed written "Order on Reconsideration." Therein, the commissioner made several changes to her initial

3CommissionerJeske ordered that the amount of unpaid health care expenses would be set at a later date, after Kohls andKaplan provided thesuperior courtwith receipts setting forth the amount that was claimed to be owed. 4CommissionerJeske ordered that the amount of the award would be set at a later date, afterKohls' counselprovided the courtwith an accounting of the fees and costs. 5CommissionerJeske ordered that this amount would be prorated ifZ.K. resided with Kohls for more than half but less than a full month.No. 73119-0-1 (consol. with No. 73492-0-l)/4 order. First, she granted Kaplan a deduction in his income for the depreciation of certain equipment and furnishings. Second, she corrected an error inthe imputation of Kaplan's income by removing the double inclusion of his rental
income. Following reconsideration, CommissionerJeske ordered Kohls' counsel to prepare a revised orderfor laterentry. 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 onboth Kohls and hercounsel. Commissioner Jeske granted the request. On June 16, Commissioner Jeske entered a written "Final Order ofChild 

### 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 forRevision." The next day, Kaplan moved for the court to strike Kohls' 

### posthearing memorandum andimpose CR 11 sanctions onboth 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 thatmodification ofthechild support order

-4-No. 73119-0-1 (consol. with No. 73492-0-l)/5

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 judgeconverted Kohls' petition for modification to a motion for 

### adjustment. JudgeO'Donnell then adjusted thechild support order. In doing so, he adopted Commissioner Jeske's calculation ofboth Kohls' and Kaplan's incomes,6 her"ruling andanalysis with respectto attorneys' fees andcosts," and 

### her "ruling and analysis with respecttosanctions imposed against" Kohls and her attorney. 

### Thereafter, Kohls moved for Judge O'Donnell to revise orclarify his "Order


### onRevision." Judge O'Donnell granted Kohls' request, both revising and 

### clarifying theorder. 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, JudgeO'Donnell entered a written "Order re 

### Adjustment ofChild Support." Therein, thejudge denied Kohls' petition for modification, instead ruling that an adjustment was warranted. That same day, 

### heentered a written "Adjusted Order ofChild Support on Revision." Therein, 

### Judge O'Donnell ordered, among otherthings, that Kaplan was granted a22.2 percentdownward deviation from the standard support schedule in his monthly child support obligation for I.K.


### 6Judge O'Donnell's calculation ofKohls' income departed from CommissionerJeske's calculation in one respect. He permitted Kohls to include what he deemed to be"deductions for her mandatory pension plan payments and hervoluntary retirementcontributions," which were previously not included.
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On February 19, after Kaplan paid the amount ofthe attorney fee award, Kohls' counsel filed a partial satisfaction ofjudgment with regard to the award. On April 3, Kaplan moved for the superior court to strike the February 19 partial satisfaction ofjudgment, enter a full satisfaction ofjudgment, 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 firstcontends 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 ofdemonstrating that a substantial change incircumstances had occurred since the 2010 order was entered and because she met her burden 

### ofdemonstrating that the 2010 orderworks a severe economic hardship onboth 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 thesuperior court's ruling, notthe 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 offact as its own." In reDependency ofB.S.S., 56 Wn. App. 169, 171, 782P.2d 1100 (1989). Wewill notsubstitute ourjudgmentfor that ofthetrial court unless the trial court's decision rests on unreasonable or untenableNo. 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 orderfrom thesuperior 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 thosedocuments on theparties. RCW 26.09.175(1), (2)(a). After 

### responsive pleadings have been filed, any party may schedule the matterfor a hearing. RCW 26.09.175(5). Unless otherwise agreed orpermitted by thecourt, the court confines its review to the affidavits, petition, answer, and worksheets. RCW 26.09.175(6). 

### Upon reviewing thesedocuments, the court may order modification ofthe child support order "based upon a showing ofsubstantially changed 

### circumstances atany 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 orderwasentered. In reMarriage 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 ofMorris, 176 Wn. App. 893, 901, 309 P.3d 767 (2013) (Quoting In re Marriage of Scanlon, 109Wn. 

### App. 167, 173, 34 P.3d 877 (2001)). In the absence ofa substantial change in circumstances, a modification may be ordered ifone 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 thatis commenced 

### by filing a motion for ahearing and is used to conform the existing provisions ofa child support orderto theparties' current circumstances." Morris, 176 Wn. App. 

### at901 (citing Scanlon, 109 Wn. App. at 173). It may beordered in certain, listed situations, which do notrequire demonstrating a substantial change in 

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

### parents" if24 months have passed since the date ofentry ofthe lastorder, adjustment, or modification, whichever is later. RCW 26.09.170(7)(a)(i).
A 

### Kohls first argues that the"nearquadrupling" ofKaplan's income between 2010 and 2013 constituted a substantial change in circumstances. In doing so, 

### shechallenges 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 achange in circumstances is substantial depends on its effect on aparent's monthly net income." In re Marriage ofBucklin, 70 Wn. App. 837,

-8-No. 73119-0-1 (consol. with No. 73492-0-l)/9 840, 855 P.2d 1197 (1993). This is "a decision that rests almost exclusivelywith 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 ifthe change was one that was notcontemplated at the time that the lastchild support order was entered. Scanlon, 109 Wn. App. at 173. But mere passage of time or 

### routine changes in income are insufficient towarrant relief. Scanlon, 109Wn. App. at 173-74 (a substantial change ofcircumstances may existwhere a mother's income unexpectedly increased to more than $270,000 per year, her assets exceeded $5 million, her gross annual householdincome was more than 

### $800,000, and she had remarried since thelast child support orderwasentered); cf. In re Marriage ofArvev, 77 Wn. App. 817, 821-22, 894 P.2d 1346(1995) 

### ($962 decrease in monthly net income insufficientto 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 hascompared Ms. Kohls' financial declarations from 2010 and 2014 as well as the child support worksheets from both of 

### those years.w As identified by theparties, a number ofthings 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 to2010).[8] Her expenses have been significantly reduced, based in part on herrefinancing herhome.[9] But other 7The recordreflects 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 September2010, 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 hertotal monthly expenses were $6,335. She stated thatthey were $7,832 in September2010, and thatthey 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 perchild. 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 thatMr. 

### 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 September2010, and $220 in June2013. The financial declarations also indicate that Kohls attested that her utility expenses were $600 in August2010, $612 in September 2010, and $630 inJune 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, weconsider it nothing more than a scrivener's error. 12 In 2010, the courtfound Kohls' actualmonthly netincome was $2,444and imputed Kaplan's monthly net income at$8,137. In 2015, the courtfound that Kohls' actual monthly net income was $1,812.53and imputed Kaplan's monthly net incomeat $31,713.72.
-10-No. 73119-0-1 (consol. with No. 73492-0-l)/11
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 hisultimate 

### conclusion) that the 2010 order ofchild support did not work a severe economic hardship oneither Kohls orI.K. because Kohls' economic situation was 

### contemplated atthe time thatthe 2010 orderwas 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 iswithin the discretion ofthe trialjudge. See In re Marriage ofSchumacher, 

### 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 offactual situations that might arise. Rather, the court looks to the actual effect ofachild 

### support order. Schumacher, 100Wn. App. at 212 (finding that an "unwieldy and unpredictable" method for calculating aparent's child support obligation created
a severe economic hardship whereit "denied [theparent] an opportunity to
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-No. 73119-0-1 (consol. with No. 73492-0-l)/12 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 forhim have stopped, her economic situation is bleak. Butthat 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 placeby 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 oftheopportunities she would have otherwise 

### enjoyed and can still enjoy, including the opportunities to take the guitar and voice lessons she sodesires and to participate in ski bus trips at herschool and attend summercamps." Here, Ms. Kohls points to the disparityin her income versus 

### hermonthly obligations. But these circumstances were more acute in2010 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 herclaim ofeconomic hardship. 

### Based on JudgeO'Donnell's explanation ofhis ruling, there arethree identifiable bases for his conclusion that the 2010 child support order did not 

### work a severe economic hardship on eitherKohls orI.K. First, Judge O'Donnell found that Kohls' economicsituation in 2015 was contemplated at the time that 

### the2010 orderwasentered 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 ofmajority. Second, Judge O'Donnell found that Kohls' assertions regarding the disparityin her monthly income and expenses (when the record reflected the contrary), the ending of the child support payments forZ.K., and the fact that I.K. was hampered in participating in various extra-curricular activities were allinsufficient grounds upon which to find a severe economic 

### hardship. (Indeed, Kohls' assertion ofa severeeconomic hardship is based on her mistaken beliefthat the child support payments are intended forherbenefit, not the benefit of her children). Third, it is evident that Judge O'Donnell 

### concluded thatit was notproved that I.K.'s basic needs were notbeing metby the 2010order. Thus, he found that a severe economic hardshipdid notexist. 

### 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 bydeclining to address 

### whether child support should be setabove the maximum advisory level. We disagree. First, Kohls asserted to the superior court that it shouldutilize 

### "extrapolation" to set Kaplan's child support obligation above the maximum
13 In her appellate brief, Kohls also contends thatthe superiorcourtabused its discretion 

### by converting her petition for modification to amotion for adjustment. We disagree. RCW 26.09.170(7)(a)(i) permitted the trial courtto make an adjustment based on "[cjhanges in the income of the parents." Thus, there was no error. -13-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 advisorylevel 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 itfinancially strains the obligor parent.").
IV Kohls next contends that the superior court erred by not adopting 

### CommissionerJeske'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, 186Wn. 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, bothbecause the superior courtimproperly 

### permitted Kaplan to take a deduction for thedepreciation ofcertain equipment and furniture and because the superior courtimproperly permitted Kaplan to take

14 Kohls also contends that the superior court's ruling should have addressed postsecondary supportfor I.K. The requestfor postsecondary supportfor I.K., however, is precluded for the same reasons. -14-No. 73119-0-1 (consol. with No. 73492-0-l)/15

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 commensuratewith the parents' income, resources, and standard ofliving." RCW 26.19.001; Leslie. 90Wn. App. 

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

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

### App. at467; RCW 26.19.001. The schedule setsforth support obligations for each child based on the combinedmonthly net income of both parents, the 

### number ofchildren in thefamily, and the age ofeach child. See RCW 26.19.020. 

### "When assessing theincome and resources ofeach household, thecourt 

### must impute income to aparentwhen that parent is voluntarily unemployed or voluntarily underemployed The courtdetermines whetherto impute income 

### by evaluating the parent's work history, education, health, age and any other relevant factor." In re Marriage ofPollard, 99Wn. App. 48, 52-53, 991 P.2d 1201 

### (2000); seealso RCW 26.19.071(6). In doing so, the court makes an equitable determination. See Marian F. Dobbs, Determining Child &Spousal Support, 

### §4.37, at884-91 (2015) ("[S]tates recognize that proceedings governing the dissolution ofmarriage, support, and custody areequitable in nature and thus 

### governed by basic rules offairness When acourt determines that aparent is voluntarily impoverished, it may considerany admissible evidence to ascertain

-15-No. 73119-0-1 (consol. with No. 73492-0-l)/16 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] was failing to produce");

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

### (1975) ("The key to anequitable distribution ofproperty 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 toloan 

### payments.
. . . However[,] the Courtwill grantthe 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 anout ofpocket loss, there is sufficient evidence in the record that this smaller amount relates to an actual expenditure! ] 

### associatedwith Mr. Kaplan's interest in the LLC's Mr. Kaplan's submissions and presentation at trial did notclearly trace, 

### document and explain his actual out ofpocket expenses in theform 

### ofdepreciation rather than his paper losses. It is unclearwhich amounts (depreciation) were attributable tohis share ofeach individual property and by what amount it reduced his personal 

### income (e.g. from his proportionate share ofeach LLC). While the court did not doubt at trial that some portion ofthese expenses 

### were legitimate, hedid not clearly demonstrate and adequately 

### separate theseoutfrom other losses. He did not meet his burden ofproofas to the otherdepreciation expenditures.

.. . 

### TheCourt grants the request tocorrect an error as to the double inclusion of his rental income calculation. The income figure 

### is a netfigure, imputed for purposes ofsupport. Clearly it is not consistent with his reported income for purposes of his income tax return. Nordoes the Court have confidence in Mr. Kaplan's 

### personal tax returns as a basis for determination ofincome 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 ofMr. Kaplan's income (gross or net), legitimate deductions forchild 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 regularemployment ofboth 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 byfinancial evidence. 

### His significant and consistent use oflegitimate 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 therecord. The Courtthus elected toimpute income to him absent his presenting the Courtwith adequate explanation supported byfinancial 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 atexpensive 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 orwithout his children, reflect recent trips to New York, SouthAmerica, Palm Springs, and the like. His more recent annual 

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

### reflect a wealthy lifestyle [T]his courtwasnot able todetermine his actual real income so it imputed it on the basis of his expenses, 

### lifestyle and standard ofliving. Apriordeclaration by Mr. Kaplan self-reported atotal monthly net income of$7[,]112 and listed total monthly expenses of$12,176. How hepaid theprivate 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 ofsupporting documentation that may be filed with afinancial declaration, and thetype ofdocuments thatare to befiled under seal.
17No. 73119-0-1 (consol. with No. 73492-0-1)718 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 ofbusiness 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 Courtwith 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 ofdifficulty 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 ofclarity and level of obfuscation. Commissioner Jeske found itreasonable to assume that "if a party controls an LLC, has a CPA, has a 

### bookkeeper, and has ajuris doctorate and the level ofhistory of 

### expertise in this area ofmanagement ofproperties, he should be able to explain to ajudicial officer his legitimate business income 

### and his legitimate expenses and parse those outin a clearrecord 

### from personal [expenses]. . ." Oral Ruling ofCommissionerJeske 15.15-22 This Court agrees.

18No. 73119-0-1 (consol. with No. 73492-0-l)/19
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 ofMr. 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 voluntarilyunder-employed. Indeed, Mr. Kaplan's claimed income is divorcedfrom the reality of monies (or personal benefits) he is actually receiving each month, however he maywish 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 ofliving, his lack of debt, and the expendituresfrom which he 

### personally benefitted as a result ofpayments by KRES andwhich are difficult, if notimpossible, to untanglefrom hiswholly 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 orderto assistin calculating his income. Pangallo attested thatKaplan's income should include deductions for the cost ofcertain 

### insurance premiums and for thedepreciation ofvarious equipment and 

### furnishings. When imputing Kaplan's income, CommissionerJeskechose to 

### credit Pangallo's testimony by granting Kaplan both ofthesedeductions. On revision, Judge O'Donnell agreed with CommissionerJeske's calculation and, thus, adopted her imputation ofKaplan's income. On appeal, given that 

### imputation ofincome is anequitable determination, not anarithmetically exact
16Again, the record indicates thatthe trial court subsequently corrected this to reflectthat "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 ofthe 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 ofthe 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 "achild support amount that differs from the standard 

### calculation." RCW 26.19.011(4). Thetrial court "has discretion to decide the 

### extent ofany deviation." In re Marriage ofTrichak, 72 Wn. App. 21, 23, 863 P.2d 585 (1993). 

### In the "Adjusted Order ofChild Support On Revision," JudgeO'Donnell set forth thereasons for granting Kaplan a downward deviation from thestandard child support schedule. Per the Order ofChild Support entered herein on December 17, 2010, the father was required to pay 100% of bothchildren's tuition 

### atUniversity Prep and accordingly wasgranted 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
-20-No. 73119-0-1 (consol. with No. 73492-0-l)/21
difference of $428 or 22%). As the law ofthe 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). Atransfer 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 iftuition 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 ofthe deviation. Thus, Judge O'Donnell misspoke 

### by stating thatthe 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 courtwasfree toadjust it ornot, as it sawequitable. No prejudicial error isestablished. No appellate reliefis warranted.
VII Kohls next contends that the superior court erred by notordering Kaplan 

### to reimburse Kohls for paying more than her share ofthe cost ofhealth insurance 

### premiums for I.K. and Z.K. Kohls cites no authority to support herposition that

21No. 73119-0-1 (consol. with No. 73492-0-l)/22 Judge O'Donnellwas 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 presentingfor entry an order thatdid notfully conform to the commissioner's oralruling and byfiling an unpermitted memorandum. We disagree. 

### "The purpose of[CR 11 ] isto deter baseless filings andcurb 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 thatthetrial court may impose sanctions against a party orhis attorney ifa 

### pleading, motion, or legal memorandum is submitted that is (1) notwell grounded in fact, (2) notwell grounded in law, (3) filed for animproper purpose, and (4) when viewed objectively, the culpable party orattorney failed tomake 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 anobjective standard to determine whether a reasonable person in like circumstancescould believe his 

### actions to befactually and legallyjustified. Brvantv. JosephTree. Inc., 119

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

### order Kaplan to reimburse herforthe costofcertain unpaid health care expenses for I.K. and Z.K. The parties agree that asettlement has been reached on this issue. Thus, the issue is
moot. -22-No. 73119-0-1 (consol. with No. 73492-0-l)/23 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 courtwith an order that did notfully conform with the commissioner's ruling was improper. Specifically, she avers that the onlychange on the proposed order which varied from the commissioner's ruling was the inclusion ofKohls' monthly pension plan payments 

### (which she claims the commissionerwas statutorily mandated to include when calculating herincome) andvoluntary retirement contributions. Her argument does not persuade us. 

### Theproposed ordercontained two crucial modifications thatdid 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 ofcollege preparatory fees for I.K. when the commissioner had, in fact, ordered thatKaplan and Kohls would each pay a pro rata share ofthese fees. Thus, CommissionerJeske found that these revisions were improper 

### insofar as they "exceeded thescope ofpresentation." Her ruling wascorrect. No
abuse of discretion is established.
B Kohls nextasserts that the imposition of CR 11 sanctions on both her and 

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

-23-No. 73119-0-1 (consol. with No. 73492-0-l)/24
she avers both that the trialjudge 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 inlaw, filed 

### for an improper purpose, or that herattorney 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 priorto imposing sanctions. In fact, anexamination ofhis 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 thememorandum wasimproper insofar as it was "late-filed and not permitted by 

### any court rule or statutory authority." Second, the contents ofthe memorandum amounted to a reiteration by Kohls ofthe same arguments that she had asserted 

### atthe initial trial by affidavit and throughoutthe 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 torelitigate Commissioner Jeske's prior ruling on 

### separate sanctions." In this regard, the memorandum did not appropriately respond to the court's request orprovide the courtwith any new information. 

### Judge O'Donnell's ruling was correct. No abuse ofdiscretion is established.

IX Kohls next contends that the superior court abused its discretion by 

### ordering interestto run on CommissionerJeske's award ofsanctions, but not on
-24-No. 73119-0-1 (consol. with No. 73492-0-l)/25
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, ifbelieved, makes it possible to compute the amount with exactness, without reliance on opinion or discretion.'" Ifthe fact finder must exercise discretion to determine the amount ofdamages, 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 ofprejudgment 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 plaintiffuntil the court has exercised its discretion in determining that amount. The amount owed must be ascertainable without the aid of a discretionary courtruling 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 ofCommissionerJeske's ruling, Kohls nullified the commissioner's award of attorney fees and costs. In this regard, the award was 

### neitherfinal nor liquidated. There was noamount upon which interest could

accrue until an amount offees 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 anaward ofprejudgment 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 thesanction. Consistentwith theprinciples underlying CR

25No. 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 thefact thatmuch ofthe research andbriefing had previously been conducted," contending thatthis finding is not supported bysubstantial evidence. We disagree. 

### Here, Kohls' argumentthatthe superior court's award ofattorney fees and costswas improper is basedon herassertion that"the factual and legal 

### questions involved were difficult and complex," that "[t]he time necessary for preparation and presentation ofthe case was substantial," and that "[t]he amount andcharacter ofthe property involved was substantial." Contrary to herpresent intimation, however, the issues in this case amounted to simple mathematical 

### adjustments in the child supportorder. The issue on reconsideration was the
same issue thatwaspresented to thetrial court during theinitial trial by affidavit. Thus, both thesuperior court's finding and its award ofattorney fees and costsis 

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

18 In total, Kohls' award of attorneyfees and costs was $43,610.31.
-26-No. 73119-0-1 (consol. with No. 73492-0-l)/27
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 ofhis requestfor CR 11 sanctions, Kaplan argued thatby filing


### a partial satisfaction ofjudgment on the award ofattorney fees and costs, Kohls and herattorney "put [him] in the position ofhaving toeither payinterest that 

### without question was not owed, orpay afar greater sum in attorney's fees and costs necessitated by having tofile a motion todefeat their claims. Such conduct is pure blackmail and bad faith. It violates Civil Rule 11." Both the commissioner and the superior courtjudge werewell acquainted 

### with thejurisprudence ofCR 11 by the time thatthey finishing dealing with the 

### parties herein. We are confidentthatthejudge was informed on the law when he denied the request atissue. No abuse ofdiscretion hasbeen established.

XII 

### Each party requests an award ofattorney fees and costs (payable by the opposing party) on appeal. 

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

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

-27No. 73119-0-1 (consol. with No. 73492-0-1)728
decision can be guided by our view of "the merit ofthe 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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