### FILED SEPTEMBER25, 2014 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE Inrethe Marriage of: ) ) No. 31025-6-III BRANDONMUNN, ) ) Respondent, ) ) and ) ) AMANDA MUNN, ) UNPUBLISHED OPINION ) Appellant. ) SIDDOWAY, C.J.

- Amanda Munn appeals the findings, conclusions, and orders entered at the conclusion ofhermarriage dissolution trial, arguingthat thetrial court abused its discretion in failing to awardher backchild support and in entering inadequate fmdings explaining why it withheldthat award. Therecord reveals that Ms. Munn failed to present a sufficient request, supporting evidence, and argument in support ofsuch an award attrial. Underthe circumstances, the trial court's fmding that no back supportwas owed was supported by the fact that Ms. Munn'srequests for temporary support had all been denied. We affirm. FACTS AND PROCEDURAL BACKGROUND Brandon and AmandaMunn were divorced in June 2012, following 17 years of marriage and a 2-year separation. Atthetime oftrial, they had 5 childrentogether, ranging from ages 7 to 18.No. 31025-6-III In re Marriage of Munn

Most ofMr. Munn's working life had been spentworking on his parents' central Washington farm. He movedto Idaho to attend college and on his return to Benton County, Washington, beganhelping his parents with what was thentheir 3,000-acre farming operation. Overthe 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, andtrucking operations. In 2009, problems that Mr. and Ms. Munn were having in their marriage beganto affect the larger family's business operations and eventually Mr. Munn was told by his father that other family members insisted onbuying outMr. and Ms. Munn's interests. Onterms that were agreed in the summer of20 10, Mr. Munn received the semitrucks and other equipment owned by MunnAg 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 ofa payment of$350,000 in installments, bearing interest, which, at the time of the dissolution trial, she hadbeen drawing on at the rate of$5,000 per month ormore, as needed. Although Ms. Munn apparently raisedthe issue oftemporary child supportmore than once betweenthe 2010 commencement ofthe dissolution action andthe April 2012 trial, Mr. Munn was never orderedto pay temporary child support. Mr. Munn's own lawyer raised that fact inhis direct examination ofhis client at trial, without objection: 2No. 31025-6-111 In re Marriage of Munn Q Were you in a positionto pay child support in 2011? A No. Q That issued [sic] hadbeenbroughtbefore the Court on several occasions by your wife; is that right? A That's correct. Q And in spite ofthose motions being filed, there was no court order entered either, one, obligatingyou 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 thathis clienthadmade requests for temporary supportthathadbeen denied. Mr. Munntestified at the dissolution trial that Munn Ag Services' financial performance had changed "drastically" after he began operatingthe business as a standalone. RP at 19. He attributed the demise in its fortunes to two factors: first, he was no longerhauling for the Munn family farms, whichhad formerly accounted for most of MunnAg Service'srevenue; and second, neitherMunnAg Services norhe had ever borrowed money directly for its operations, as a result ofwhichthe business had no credit history and was unable to obtain needed financing. Hispersonal taxreturns were admitted into evidence and showed an adjusted gross income of<$5,919> for 2010 and <$266,362> for 2011. Although he hadpaidnotemporary child support during the two years the divorce

was pending, Mr. Munn testifiedthatwhile the divorce was pending, he hadcoveredthe cost ofhealth insurance (medical, dental, and vision) for his wife and their children; that 

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### No. 31025-6-111 In re Marriage of Munn



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

### the mortgage to the marital home in which Ms. Munn and four ofthe childrenwere living. He also paid expenses for the parties' oldest daughter, who moved in withhim in October 20I0, 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 ofthe 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 thetrial 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 courtthat no order for temporary child support was ever entered andthat at notime before trial had Mr. Munn ever made any child supportpayment 4No. 31025-6·III In re Marriage of Munn 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. "Atrial court's setting ofchild supportwill notbe disturbed on appeal unless the spouse challenging the decision demonstrates a manifest abuse ofdiscretion." In re Marriage of Crosetto, 82 Wn. App. 545, 560, 918 P.2d 954 (1996). A court abuses its discretion ifits decision is "manifestlyunreasonable orbased on untenable grounds." In

re Marriage of Scanlon, 109 Wn. App. 167, 174,34P.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 ofa court'sultimate disposition ofa proceedingto dissolve a marriage, the court "shall order either or both parents owing a duty ofsupportto any child ofthe marriage

...to pay an amount determined under chapter 26.19." RCW 26.09.100(1) (emphasis added). Significantly, whether the issue ofchild support is addressedpendente lite or in connectionwith 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) (providingthat the child support schedule is to be applied "[i]n setting temporary and permanent support").

5No.31025-6-II1 In reMarriage of Munn

Therecord presents more questions for Ms. Munn's appeal than it provides answers-and since she bears the burden ofdemonstrating an abuse ofdiscretion 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 orderedto 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 orderthat 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 nottranscribed, 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 managementreport, and no other pleading indicatingthat 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-yetthis testimony was elicited in the first instance by Mr. Munn, who evidently believed that it advanced his position. There is no trial testimony 

### 6No. 31025-6-III In re Marriage of Munn 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 ofback child support. 1WASH. STATEBARAss'N, WASHINGTON FAMILY LAW DESKBOOK 

### § 28.2(2)(a), at 28-8 (2d ed. & 2012 Supp.); 

### cfRCW 26.26.130(3) (underthe parentage act (unlike the marriage dissolution act) thejudgment and order shall contain "the extent ofany liability for past support furnished to the child"). In the case of marriage dissolution, the superior court may use its equitablepowers to create a child support obligation afterthe 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 reMarriage of Shoemaker, 128 Wn.2d 116, 123,904P.2d 1150 (1995). When it does exist, the right of equitable contribution is limited to an amount equal to one-halfofactual expenditures on behalfofthe child. Id. Moreover, ifthe superior court diddeny Ms. Munn's request for temporary child support as the undisputedtestimony at trial suggests, then that order (or those orders)

were subject to appeal but not to retroactive modification. RCW 26.09.170(1) establishes 

### 7No. 31025-6-111 In re Marriage of Munn

the conditions for modifying a child support order and states, in relevantpart, that "[e]xcept as otherwise provided

... the provisions ofany decree respecting maintenance

or support may be modified: (a) Only as to installments accruing subsequenttothe petition for modification." In Shoemaker, 128 Wn.2d 116, the Washington Supreme Court held that ifan orderhas previously been enteredthat 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 ifthe facts wouldhave supported imposingthat obligationprospectively 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 oftemporary support forecloses retroactive modification. Ms. Munn contends the trial court entered insufficient findings in support ofits decisionnotto award back child support. Under RCW 26.19.035(2), a child support order must "be supported by written findings offact upon whichthe support determination is based" and must "include reasons for any deviation from the standard calculation andreasons for denial ofa 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 concludethat, 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, 8

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No. 31025-6-111 In re Marriage of Munn

whether it concluded that the amounts he was paying toward expenses ofthe children and Ms. Munnwere a reasonable substitute for support, or whether it was for some other

reason. What 

### is clear is thattemporary supportwas not ordered pendente lite when requested, and that at trial, Ms. Munn neverpresented any request, evidence, or argument

as to why child support for that period should or couldbe revisited. Onthe record before the court, its finding that "[nJo back child support is owed at this time" was supportedby the only evidence in the record that was relevant: child support for the periodpriorto trial had beenrequested and denied. There is nothing more the court couldhave been expected to say. Affirmed. A majority ofthe panel has determined that this opinion will not beprinted in the Washington Appellate Reports but it will be filed for public record pursuantto RCW 2.06.040. 

# dt**SiddOWay,~'** I
WE CONCUR:

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# s· I

# Fearin~ Lawrence-Berrey, J. 9