FILED 


SEPTEMBER 25, 2014 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


In re the Marriage of: ) 

) No. 31025-6-III 

BRANDON MUNN, ) 

) 

Respondent, ) 

) 

and ) 

) 

AMANDA MUNN, ) UNPUBLISHED OPINION 

) 

Appellant. ) 

SIDDOWAY, C.J. - Amanda Munn appeals the findings, conclusions, and orders 

entered at the conclusion ofher marriage dissolution trial, arguing that the trial court 

abused its discretion in failing to award her back child support and in entering inadequate 

fmdings explaining why it withheld that award. The record reveals that Ms. Munn failed 

to present a sufficient request, supporting evidence, and argument in support ofsuch an 

award at trial. Under the circumstances, the trial court's fmding that no back support was 

owed was supported by the fact that Ms. Munn's requests for temporary support had all 

been denied. We affirm. 

FACTS AND PROCEDURAL BACKGROUND 

Brandon and Amanda Munn were divorced in June 2012, following 17 years of 

marriage and a 2-year separation. At the time oftrial, they had 5 children together, 

ranging from ages 7 to 18. 
No. 31025-6-III 

In re Marriage ofMunn 

Most ofMr. Munn's working life had been spent working on his parents' central 

Washington farm. He moved to Idaho to attend college and on his return to Benton 

County, Washington, began helping his parents with what was then their 3,000-acre 

farming operation. Over the years, Mr. Munn and his brother assumed greater 

responsibility for a vastly larger operation. By 2009, Mr. Munn was a partner in several 

limited liability companies formed to carry on what had become the Munn family'S 

farming, packing, and trucking operations. 

In 2009, problems that Mr. and Ms. Munn were having in their marriage began to 

affect the larger family's business operations and eventually Mr. Munn was told by his 

father that other family members insisted on buying out Mr. and Ms. Munn's interests. 

On terms that were agreed in the summer of 20 10, Mr. Munn received the semitrucks and 

other equipment owned by Munn Ag Services LLC, the family's over-the-road trucking 

operation, and the right to use the Munn Ag Services name. Ms. Munn received a 

promise of a payment of $350,000 in installments, bearing interest, which, at the time of 

the dissolution trial, she had been drawing on at the rate of $5,000 per month or more, as 

needed. 

Although Ms. Munn apparently raised the issue of temporary child support more 

than once between the 2010 commencement ofthe dissolution action and the April 2012 

trial, Mr. Munn was never ordered to pay temporary child support. Mr. Munn's own 

lawyer raised that fact in his direct examination of his client at trial, without objection: 

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No. 31025-6-111 

In re Marriage ofMunn 

Q Were you in a position to pay child support in 2011? 

A No. 

Q That issued [sic] had been brought before the Court on several 

occasions by your wife; is that right? 

A That's correct. 

Q And in spite of those motions being filed, there was no court order 

entered either, one, obligating you to pay child support or, two, to 

pay spousal maintenance; is that correct? 

A That's correct. 

Report ofProceedings (Apr. 23, 2012) (RP) at 42. Ms. Munn's lawyer made no effort 

through cross-examination to contradict or clarify the testimony that his client had made 

requests for temporary support that had been denied. 

Mr. Munn testified at the dissolution trial that Munn Ag Services' financial 

performance had changed "drastically" after he began operating the business as a standalone. RP at 19. He attributed the demise in its fortunes to two factors: first, he was no 

longer hauling for the Munn family farms, which had formerly accounted for most of 

Munn Ag Service's revenue; and second, neither Munn Ag Services nor he had ever 

borrowed money directly for its operations, as a result ofwhich the business had no credit 

history and was unable to obtain needed financing. His personal tax returns were 

admitted into evidence and showed an adjusted gross income of <$5,919> for 2010 and 

<$266,362> for 2011. 

Although he had paid no temporary child support during the two years the divorce 

was pending, Mr. Munn testified that while the divorce was pending, he had covered the 

cost of health insurance (medical, dental, and vision) for his wife and their children; that 

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No. 31025-6-111 

In re Marriage ofMunn 

he covered his wife's auto insurance; and that he made payments through March 20 lion 

the mortgage to the marital home in which Ms. Munn and four of the children were 

living. He also paid expenses for the parties' oldest daughter, who moved in with him in 

October 20 I 0, and he paid the expenses associated with his younger children's visitation, 

which was every other Thursday through Monday, and then Thursday evenings every 

other week. 

In late June 2012, the court entered findings, conclusions, and a decree, dividing 

th~ parties' property and dissolving their marriage. In a final child support order entered 

several months later, it ordered Mr. Munn to pay $932.56 a month in child support for the 

parties' four youngest children, basing the support obligation on its finding that Mr. 

Munn's actual monthly net income was $4,716 and that a reasonable imputed monthly 

net income for Ms. Munn, who it found was voluntarily unemployed, was $1,567. The 

trial court awarded no back child support, stating in section 3.20 of the standard order of 

child support form, "No back child support is owed at this time." Clerk's Papers at 41. 

Ms. Munn timely appealed from the trial court's findings, conclusions, and decree. 

ANALYSIS 

Ms. Munn raises only one issue on appeal: she argues that the trial court abused its 

discretion in denying her request for back child support. She points out that it was 

uncontested in the trial court that no order for temporary child support was ever entered 

and that at no time before trial had Mr. Munn ever made any child support payment 

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No. 31025-6·III 

In re Marriage ofMunn 

directly to her. She also argues that the trial court's one sentence finding-that "[n]o 

back child support is owed at this time"-was insufficient and insufficiently supported by 

the record. 

"A trial court's setting of child support will not be disturbed on appeal unless the 

spouse challenging the decision demonstrates a manifest abuse ofdiscretion." In re 

Marriage ofCrose tto , 82 Wn. App. 545, 560, 918 P.2d 954 (1996). A court abuses its 

discretion ifits decision is "manifestly unreasonable or based on untenable grounds." In 

re Marriage ofScanlon, 109 Wn. App. 167, 174,34 P.3d 877 (2001). 

An award oftemporary child support is not automatic; a parent who believes there 

is a factual basis for being awarded such support "may move for ... temporary support of 

children." RCW 26.09.060(1)(b) (emphasis added). By comparison, chapter 26.09 RCW 

provides that as part of a court's ultimate disposition of a proceeding to dissolve a 

marriage, the court "shall order either or both parents owing a duty ofsupport to any 

child ofthe marriage ... to pay an amount determined under chapter 26.19." RCW 

26.09.100(1) (emphasis added). Significantly, whether the issue of child support is 

addressed pendente lite or in connection with the decree, the court is required to apply the 

child support schedule provided by chapter 26.19 RCW. See RCW 26.19.035(1)(d) 

(providing that the child support schedule is to be applied "[i]n setting temporary and 

permanent support"). 

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No.31025-6-II1 

In re Marriage ofMunn 

The record presents more questions for Ms. Munn's appeal than it provides 

answers-and since she bears the burden ofdemonstrating an abuse of discretion by the 

trial court, this proves fatal to her appeal. Although the uncontested testimony was that 

Ms. Munn had raised the issue oftemporary child support with the court "on several 

occasions," Mr. Munn was never ordered to pay it. We have not been provided on appeal 

with any record ofthese requests, their disposition, or the reason for their disposition. 

Ms. Munn has not appealed any order that denied her temporary child support nor does 

she argue whether, or why, the trial court abused its discretion in denying temporary 

support. 

Even more puzzling is the absence from the pretrial and trial record before us of 

any request to the trial court that as part ofthe court's final orders Ms. Munn be awarded 

child support for the period from March 2010 through June 2012. Opening statements 

and closing arguments were not transcribed, so we have been presented with no argument 

by Ms. Munn during trial that she was entitled to child support for those two years. The 

clerk's papers contain no response to the petition, no trial management report, and no 

other pleading indicating that Ms. Munn was asking the court to award child support for 

the pretrial period. The trial testimony was transcribed and includes undisputed 

testimony that Mr. Munn paid no child support directly and that his wife requested such 

support but it was not ordered-yet this testimony was elicited in the first instance by Mr. 

Munn, who evidently believed that it advanced his position. There is no trial testimony 

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No. 31025-6-III 

In re Marriage ofMunn 

suggesting why, although temporary support was denied, it should be ordered after-thefact as back support. The record includes no evidence, testimonial or otherwise, as to the 

parties' relevant net monthly earnings or an amount that Ms. Munn sought to have 

awarded for the two-year period. 

Several legal obstacles to Ms. Munn's request for back support were not addressed 

by her in the trial court or on appeal. Unlike the Uniform Parentage Act of2002 (chapter 

26.26 RCW) the dissolution ofmarriage act (chapter 26.09 RCW) does not authorize an 

award of back child support. 1 WASH. STATE BAR Ass'N, WASHINGTON FAMILY LAW 

DESKBOOK § 28.2(2)(a), at 28-8 (2d ed. & 2012 Supp.); cf RCW 26.26.130(3) (under the 

parentage act (unlike the marriage dissolution act) the judgment and order shall contain 

"the extent of any liability for past support furnished to the child"). In the case of 

marriage dissolution, the superior court may use its equitable powers to create a child 

support obligation after the need for support arises, but such a result has been allowed 

rarely and only in cases where the decree is silent as to support. In re Marriage of 

Shoemaker, 128 Wn.2d 116, 123,904 P.2d 1150 (1995). When it does exist, the right of 

equitable contribution is limited to an amount equal to one-half of actual expenditures on 

behalf ofthe child. Id. 

Moreover, ifthe superior court did deny Ms. Munn's request for temporary child 

support as the undisputed testimony at trial suggests, then that order (or those orders) 

were subject to appeal but not to retroactive modification. RCW 26.09 .170( 1) establishes 

7 

No. 31025-6-111 

In re Marriage ofMunn 

the conditions for modifying a child support order and states, in relevant part, that 

"[e ]xcept as otherwise provided ... the provisions of any decree respecting maintenance 

or support may be modified: (a) Only as to installments accruing subsequent to the 

petition for modification." In Shoemaker, 128 Wn.2d 116, the Washington Supreme 

Court held that if an order has previously been entered that excuses a parent from paying 

child support, then RCW 26.09 .170( 1) bars a superior court from imposing a child 

support obligation retroactively, even if the facts would have supported imposing that 

obligation prospectively at an earlier time. Since the trial court is required by chapter 

26.19 RCW to apply the same standards in its temporary and final orders for support, 

denial of temporary support forecloses retroactive modification. 

Ms. Munn contends the trial court entered insufficient findings in support of its 

decision not to award back child support. Under RCW 26.19.035(2), a child support 

order must "be supported by written findings of fact upon which the support 

determination is based" and must "include reasons for any deviation from the standard 

calculation and reasons for denial of a party's request for deviation from the standard 

calculation." The trial court entered extensive and sufficient findings on the basis for the 

parties' prospective child support obligations. While the court entered only one finding 

with respect to back child support, we conclude that, while spare, it was sufficient. 

We do not know why temporary support was not ordered-whether it was because 

the trial court concluded that Mr. Munn was temporarily in a negative earning situation, 

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r 


No. 31025-6-111 

In re Marriage ofMunn 

whether it concluded that the amounts he was paying toward expenses of the children and 

Ms. Munn were a reasonable substitute for support, or whether it was for some other 

reason. What is clear is that temporary support was not ordered pendente lite when 

requested, and that at trial, Ms. Munn never presented any request, evidence, or argument 

as to why child support for that period should or could be revisited. On the record before 

the court, its finding that "[nJo back child support is owed at this time" was supported by 

the only evidence in the record that was relevant: child support for the period prior to trial 

had been requested and denied. There is nothing more the court could have been 

expected to say. 

Affirmed. 

A majority ofthe panel has determined that this opinion will not be printed in the 

Washington Appellate Reports but it will be filed for public record pursuant to RCW 

2.06.040. 

SiddOWay,~' dt I 

WE CONCUR: 

~ I

s· Fearin~ 

Lawrence-Berrey, J. 

9