IN THE COURT OFAPPEALS OF THE STATE OF WASHINGTON

In re the Parenting and Support of 

### ) No. 77961-3-I Q.J.M. and T.J.M. 

### ) ) DIVISION ONE Minor Children, 

### )

) SEAN C. MORRIS, 

### ) ) Appellant, 

### ) UNPUBLISHED OPINION and 

### ) FILED: March 25, 2019 TONYAA. MORRIS,Respondent. 

### )

SMITH, J.

—Sean Morris appeals an orderdirecting him to pay Ostler Smith spousal support1 undera 2010 California decree based on a payment he received in 2015 foraccrued vacation that his formeremployershould have paid to him in 2012. Because the 2010 decree expressly states that Ostler Smith support applies to deferred compensation and vacation time is aform ofdeferred compensation under California law, we affirm.

1 In California, “Ostler Smith” support refers to support payments calculated based on a percentage offuture income. See In re Marriage of Ostler, 223 Cal. App. 3d 33, 272 Cal. Rptr. 560 (1990).No. 77961-3-1/2 FACTS

Sean and Tonya Morriswere divorced in California in July201 Q~2 Atthe time, Sean worked forSun Life Financial (Sun Life). The parties had two sons who later relocated with Tonya to Washington. In its 2010 dissolution decree, the California court ordered Sean to pay monthly spousal support of$2,700, plus Ostler Smith spousal support equal to 25 percent ofany gross monthly income in excess of$16,666.67. Specifically, the 2010 decree provides: 20. Commencing June 1,2010, [Sean] shall payto [Tonya] base spousal support of$2,700 per month, payable one-halfon the first and one-halfon thefifteenth days ofeach month, and continuing thereafter until the death ofeither party, remarriage of [Tonya], furtherorderof Court or until the May 15, 2013, payment has been made by [Sean] to [Tonya], whicheverfirst occurs. Spousal support and the Court’sjurisdiction to order spousal supportshall absolutelyterminate with the payment on May 15, 2013, and may not be extended forany reason whatsoever. Spousal support shall terminate following the May 15, 2013, payment even ifapplication is made by [Tonya] to extend said date priorto the May 15, 2013, payment. 21. Except as provided fordifferently in this paragraph, as and for additional spousal support, there shall be a[n] Ostler [Smith] formula oftwenty-five [percent] (25%) as additional spousal support on any of [Sean]’s gross income from employment, including, but not limited to, the combined amount ofsalary, bonus, deferred compensation and RSU’s, in excess of $16,666.67 gross per month. Within forty-eight (48) hours of receiving any gross monthly income in excess of$16,666.67 the following events shall occur: [Sean] shall provide [Tonya] with written confirmation ofthe amount ofany such monthly income in excess of$16,666.67; [Sean] shall paythe required sum to [Tonya].

2 Because Sean and Tonya share a common last name, we referto them bytheirfirst names. 2No. 77961-3-1/3

The California court also ordered Sean to pay monthly child support of $2,780.00, plus Ostler Smith child support equal to 11 percent ofany gross monthly income in excess of$16,666.67. Like the 2010 decree’s spousal support provision, the child support provision requires Sean to give Tonya notice within 48 hours of receiving any gross monthly income in excess of$16,666.67. Sean was laid off by Sun Life in December2011. He received a severance package in which Sun Life agreed to pay him for his “Sun Days,” i.e., vacation days that he had accrued as of his last employmentday of record. Sun Life agreed to pay Sean for his Sun Days no laterthan the pay period following March 9, 2012, and in March 2012, Sean received a $24,554.24 Sun Days payment. After being laid off by Sun Life, Sean moved the California courtto modify his support obligations underthe 2010 decree. As part ofthat modification action, the parties litigated whether Sun Days were income for purposes ofOstler

N Smith support. For reasons that are unclearfrom the record, the California court did not entera final orderon Sean’s motion to modify until April 29, 2014. In April 2014, the California court ordered that effective January 15, 2013, (1) Sean’s fixed monthlyspousal support obligation would increase from $2,700.00 to $3,000.00, (2) no Ostler Smith spousal supportwould attach to this revised spousal support amount, (3) Sean’s fixed monthly child support obligation would be reduced from $2,780.00 to $2,584.00, and (4) Sean’s OstlerSmith child support obligation would be revised to 11 .66 percent ofany gross monthly income in excess of$12,500.00. The court ordered that although a “Cole bonus”

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that Sean received in November2012 would not be considered income, “[a]ll other income,” including Sun Days, would be considered income. The court ordered Sean to paysupport arrearages by October 1, 2013, and Sean paid Tonya Ostler Smith child support and spousal support based on the $24,554.24 Sun Days payment he received in March 2012. The amount ofthat Ostler Smith paymentwas calculated using the formulae setforth in the 201 0 decree. In 2015, Sean received a $94,372.43 checkfrom Sun Life. According to Sean, he attempted to find outwhatthe checkwas for butwas told by Sun Life that “there was no one that could help [him] since the business unit [he] worked forwas closed.” Sean deposited the check in April 2015 and did nottell Tonya about it. In April 2016, Sean filed a petition in Washington to modify child support. The petition wentto arbitration, and Tonya learned aboutthe 2015 Sun Life check during discovery. Tonya also learned that Sun Life had miscalculated and underpaid Sean’s Sun Days when it paid him $24,554.24 in March 2012 and that the 2015 checkwas issued to correctthe error. In April 2017, Sean made an Ostler Smith child support paymentto Tonya based on the 2015 Sun Days check. The amount oftheApril 2017 paymentwas calculated based on the OstlerSmith child supportformula in the California court’s April 2014 order. In November2017, Tonya filed a motion forcontempt, arguing that Sean (1) owed interest on theApril 2017 Ostler Smith child support payment, (2) failed to timely notifyTonya ofthe 2015 Sun Days check as required underthe 2014 order, and (3) should be required to pay Ostler Smith spousal support on the

4No. 77961-3-1/5

2015 Sun Days check underthe 2010 decree. A commissionerconcluded that Sean was in contemptforfailing to disclose the 2015 Sun Days check and failing to timely pay OstlerSmith child support based on that check. The commissioner ordered Sean to pay interest on the OstlerSmith child support payment. Butthe commissioneralso concluded that Sean was not in contemptwith regard to spousal support, stating: “Spousal maintenance terminated in 2013. There is no evidence [Sean] colluded to hold backthe Sun Life income.” Accordingly, the commissionerdid not order OstlerSmith spousal support. Tonya moved for revision ofthe commissioner’s order, arguing that Sean should be required to pay Ostler Smith spousal support based on the 2015 Sun Days check. The trial court agreed with Tonya and ordered thatthe commissioner’s order be revised to read asfollows: The Courtfinds Sun Life was contractually obligated to pay-out [Sean]’s Sun Life accrued but unused vacation pay (“Sun Days”) in March 2012. Had Sun Life paid out [Sean]’s “Sun Days”when it was due perthe contract in March 2012, [Sean] was obligated to pay25% on the gross amount received. The California court intended that spousal maintenance be paid on [Sean]’s “Sun Days” income. Sun Life made a delayed payment of [Sean]’s “Sun Days” in the amount of$162,127.03[~] in March 2015, afterthe spousal maintenance obligation terminated. The merefactthatthis paymentwas paid in March 2015 does not negate thatthe income was due and owing in March 2012 and does not avoid the spousal maintenance obligation on that sum. [Sean] owes [Tonya] spousal support in the amount of$40,531.75 (25% ofthe gross amount). A Judgment should enterforthis amount, plus interestfrom 4/1/2015

— 12/31/2017 at 10%.

~ The gross amount ofthe underpaymentwas $162,127.03. The net amountwas $94,372.43, the amountofthe check Sean received in 2015. 5No. 77961-3-1/6

The court stated that itviewed the Sun Days income as “involuntary deferred compensation” and that “whether [Sean] was aware or not is not dispositive.” The court reasoned that Sean’s rightto the Sun Days income accrued in March 2012, while Tonyawas entitled to OstlerSmith spousal support underthe 201 0 decree.In addition to ordering Sean to pay Ostler Smith spousal support underthe 2010 decree based on the 2015 Sun Days check, the court also concluded that Sean overpaid his Ostler Smith child support payment in April 2017. The court explained thatthe Ostler Smith child support payment should have been based
on the 11 percentformula from the 2010 decree, ratherthan the 11 .66 percent formulafrom the 2014 order. The court also ordered Sean to pay interest on the OstlerSmith child support payment, calculated from April 1, 2015. Sean appeals. DISCUSSION Orderon Revision Sean argues thatthetrial court erred by interpreting the California court’s 2010 decree as requiring him to pay Ostler Smith spousal support based on a check he received in 2015. He also argues that OstlerSmith child support should have been calculated underthe 2014 order, notthe 2010 decree. We disagree. Interpretation ofa dissolution decree is a question of lawthatthis court reviews de novo. In re Marriage ofThompson, 97 Wn. App. 873, 877, 988 P.2d 499 (1999). We apply California lawto interpretthe 2010 decree. See Shibleyv.

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Shibley, 181 Wash. 166, 168-70,42 P.2d 446 (1935) (looking to California lawto determinewhetheramounts claimed under California decree were accrued and due). The 2010 decree was based on Sean and Tonya’s written stipulation for judgment. Accordingly, under California law, the decree “represents an agreement, [and] thus must be analyzed and interpreted in light ofthe parties’ mutual intent and according to statutory requirements forthe interpretation of contracts.” In re Marriage of Gray, 155 Cal. App. 4th 504, 522, 66 Cal. Rptr. 3d 87 (2007). Those requirements are similarto Washington’s rules ofcontract interpretation and provide, among otherthings, that “[t]he language ofa contract is to govern its interpretation, ifthe language is clearand explicit, and does not involve an absurdity,” CAL. Civ. CODE 

### § 1638, and “[t]he whole ofa contract is to be taken together, so as to give effectto every part, if reasonably practicable, each clause helping to interpretthe other.” CAL. Civ. CODE 

### § 1641. Additionally, “[w]hen possible, courts should ‘avoid an interpretation which will make a contract extraordinary, harsh, unjust, or inequitable.” In re Marriage of Nassimi, 3 Cal. App. 5th 667, 688-89, 207 Cal. Rptr. 3d 764 (2016) (quoting ASP Props. Grp., L.P v. Fard, Inc., 133 Cal. App. 4th 1257, 1269, 35 Cal. Rptr. 3d 343 (2005)). These general rulesfor interpreting writings also applyto interpretation ofthe California court’s 2014 order. Verdierv. Verdier, 121 Cal. App. 2d 190, 193, 263 P.2d 57 (1953) (Provisions ofthe constitution, statutes, contracts, judicial orders, and decrees “are all ‘writings,’ to be construed in accordance with substantiallythe same canons of interpretation.”).

7No. 77961-3-1/8 We conclude that underthe plain language ofthe 2010 decree, Sean was required to pay OstlerSmith child support and spousal support on the 2015 Sun Days check. That decree plainly states that Ostler Smith support applies to “any of [Sean]’s gross monthly income from employment, including, butnotlimited to.

. . deferred compensation.”4 And under California law, accrued vacation benefits are a form ofdeferred compensation. In re Marriage of Moore, 226 Cal. App. 4th 92, 102, 171 Cal. Rptr. 3d 762 (2014). Indeed, the California court confirmed in its 2014 orderthat Sun Days are income for purposes ofsupport. Sean argues thatthis statementwas intended onlyto applyto arrearages, but the 2014 ordercontains no such limitation. Furthermore, taking the 2010 decree as a whole, other provisions ofthe decree reflectthe parties’ intentthat Ostler Smith support be paid based on earned income, regardless ofwhen itwas received. Forexample, paragraph 23 ofthe decree provides that Sean’s commissions earned during May 2013 (through the end ofthe maintenance period) would be included in the Ostler Smith calculation, even though those commissions would not be paid until after the end ofthe maintenance period. It also provides that Sean’s commissions earned through May 31, 2010 (before the beginning ofthe maintenance period) would not be subjectto Ostler Smith support, even though those commissions would be received during the maintenance term. These provisions demonstrate thatthe parties intended that OstlerSmith support applyto income earned during the maintenance term, regardless ofwhen itwas received.

~ (Emphasis added.) 8No. 77961-3-1/9 Finally, concluding that Sean is not required to pay OstlerSmith spousal support based on the 2015 checkwould lead to an absurd and inequitable result: Sean would be excused from paying spousal support on compensation he undisputedly earned during the maintenanceterm but, due to Sun Life’s error, did not receive until afterthe maintenanceterm. Sean argues thatto reach the same conclusion as the trial court, this court would need to retroactivelyqualifythe language in the 2010 decree providing that spousal support “shall absolutelyterminate with the payment on May 15, 2013, and may not be extended for any reason whatsoever.” He characterizes the trial court’s decision as an impermissible extension of his spousal support obligation by arguing thatthe income subjectto OstlerSmith support underthe 2010 decree is limited to income received before May 15, 2013. Sean also points to language in the 2010 decree stating that Sean is to pay Ostler Smith support within 48 hours after receiving gross income in excess of$16,666.67. But Sean cites no authorityforthe proposition that “income” is limited to income actually received and excludes income earned but notyet received. ~ DeHeerv. Seattle Post-Intelliqencer, 6OWn.2d 122, 126, 372 P.2d 193 (1962) (‘Where no authorities are cited in support ofa proposition, the court is not required to search out authorities, but may assume that counsel, afterdiligent search, has found none.”). And the language regarding receipt dictates only when Sean must pay Tonya Ostler Smith spousal support. It does not dictate what income is subject to OstlerSmith support. Sean’s arguments are unpersuasive. Sean next argues thatthe 2014 ordergoverns here and that it eliminated

9No. 77961-3-1/10

any obligation to pay OstlerSmith support as ofJanuary 15, 2013, its effective date. We disagree. As discussed, the obligation to pay Ostler Smith support on the 2015 Sun Days check arose underthe 2010 decree, which clearly states that OstlerSmith support applies to deferred compensation. Sean next relies on In re Marriage of Iberti, 55 Cal. App. 4th 1434, 64 Cal. Rptr. 2d 766 (1997), to argue thatthe trial court impermissibly qualified the 2010 decree to define “income” in terms ofwhen it is “due and owing” to Sean. But Iberti did not involve OstlerSmith support or inform the issue ofwhat a court should do if income subjectto an OstlerSmith support provision goes unpaid due to the errorofa third party. Rather, Iberti merely confirms that ifthe parties unambiguously agree that support cannot be extended, then the court may not extend support absent circumstances that implicate the court’s inherent powerto dojustice, such as mutual mistake offact or an unforeseen change in the law. Iberti, 55 Cal. App. 4th at 1441-42. But here, the trial court did not “extend” Sean’s spousal support obligation. Instead, it ordered him to pay an obligation that accrued underthe 2010 decree based on income that he undisputedly earned while that decree was in effect. Therefore, Sean’s reliance on Iberti is misplaced. Sean’s reliance on In re Marriage of Katz, 201 Cal. App. 3d 1029, 247 Cal. Rptr. 562 (1988), is similarly misplaced. In Katz, the courtdeclined to restore support payments seven years afterthe payments ended, finding it had no jurisdiction to award additional spousal supportwhere the original order provided that payments would terminate aftera specificdate. Katz, 247 Cal. Rptr. at

10No. 77961-3-I/Il

1032, 1035. Here, unlike in Katz, Tonya did not askthe trial courtto restore or, as Sean puts it, “revive” a spousal support obligation that had alreadyterminated. Rather, Tonya seeksto enforce Sean’s obligation to pay spousal support based
on income that he undisputedlyearned and thatwas payable to him during the maintenance term. Katz does not require reversal. Sean next asserts thatthe trial court’s interpretation ofthe 2010 decree is inconsistentwith the California court’s intent underlying the spousal support award. He argues thatthe trial court’s order leaves his spousal support obligation ‘open ended” and that nothing in the California court’s orders supports
a determination thatthe court intended forTonya to receive a “windfall.” Butthe trial court’s orderdoes not leave Sean’s spousal support obligation “open ended.” Indeed, Tonya does not claim OstlerSmith spousal support on any income Sean earned afterJanuary 15, 2013. And ifthe 2015 Sun Days checkwere exempt from Ostler Smith support simply because ofSun Life’s error, itwould be Sean, notTonya, whowould receive a “windfall.” These arguments are not persuasive. Sean also argues thatTonya should be estopped from arguing that Sun Days should be treated as 2012 income because during the arbitration on Sean’s most recent motion to modify, Tonya tookthe position that Sun Days were 2015 income to support an award of child support above the standard calculation. This argument is unpersuasive fortwo reasons. First, Sean relies on Urbickv. Spencer Law Firm, LLC, 192 Wn. App 483, 367 P.3d 1103 (2016), but does not address the three “fundamental factors” described in that case for analyzing
cases ofjudicial estoppel. See Urbick, 192 Wn. App. at489 (citing Arkinson v.

11No. 77961-3-1112

Ethan Allen, Inc., 160 Wn.2d 535, 538-59, 160 P.3d 13 (2007)). Second, the arbitrator’s decision to grant an upward deviation on child supportwas not based
on a position taken byTonya, but rather on the parties’ stipulation as to the amountofSean’s monthly income and other relevantfactors. These factors included Sean’s financial resources, wealth, and high standard of living; the geographical separation between Sean and Tonya; the children’s extracurricular activities and expenses; and the children’s special needs. Although the arbitrator did take note ofSean’s actual earnings, he did so in the portion of his decision analyzing whetherthere had been a substantial change in circumstances to support a modification, not in the portion of his decision in which he discussed the upward deviation. Sean’sjudicial estoppel argument is not persuasive. As afinal matter, Sean contends thatthe trial court erred because by treating 2015 income as income received in 2012, it deprived Sean of his ability to deductthe resulting spousal support paymentforfederal income tax purposes. But Sean cites no authority requiring this courtto considerdeductibility as a factor in interpreting the California court’s decree. See DeHeer, 60 Wn.2d at 126 (where party cites no authorityto support a proposition, the court may assume that counsel, afterdiligent search, hasfound none). Moreover, ‘[djeductions are matters of legislative grace;taxpayers have no inherent rightto them.” Montgomeryv. Comm’rof Internal Revenue, 64 T.C. 175, 182 (1975), affirmed, 532 F.2d 1008 (6th Cir. 1976). Sean’s contention is not persuasive.

12No. 77961-3-1113 Tonya‘.s RequestforFees on Appeal Tonya requests fees on appeal. We grant her request. In exercising ourdiscretion to award fees, we “balance the needs ofthe spouse requesting them with the ability ofthe otherspouse to pay.” In re Marriage ofStenshoel, 72 Wn. App. 800, 813, 866 P.2d 635 (1993). Here, Tonya timelyfiled a financial affidavit in accordance with the Rules ofAppellate Procedure. In heraffidavit, Tonya states that her actual income is less than whatthe arbitrator imputed to her in 2017. But even using the imputed amount and after child supporttransfer payments are taken into account, Tonya’s income after expenses is onlyslightly more than $1,300 per month. Meanwhile, Sean, who earned more than $45,000 net per month in 2017, does not dispute that his income significantlyexceeds Tonya’s. We conclude thatTonya has demonstrated need and that Sean hasthe abilityto pay. Therefore, we grant Tonya’s requestforfees subjectto her compliance with RAP 18.1(d). Sean argues thatwe should denyTonya’s request because she failed to cite applicable lawto advise the court ofthe basis foran award. Butthat is not the case: Tonya cited Stenshoel, which confirms that a court has discretion to award attorneyfees under RCW26.09.140 after considering the parties’ financial
resources. Stenshoel, 72 Wn. App. at 813. Sean also argues thatTonya has significant real estate holdings and suggests that she is required to sell them to pay her attorneyfees. ButWashington law does not supportthis argument. ~ In re Marriage of Freedman, 35 Wn. App. 49, 54, 665 P.2d 902 (1983) (holding thattrial courtdid not abuse discretion in awarding wife attorneyfees where

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wife’s affidavit stated she lacked liquid assets and there was considerable evidence of husband’s net earnings). Sean’s arguments are unpersuasive. Affirmed. 

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WE CONCUR:
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