In re Marriage of Carrasco

Decision Date16 June 2015
Docket Number45767-9-II
CourtWashington Court of Appeals
PartiesIn the Matter of the Marriage of: ANTONIO JOSE CARRASCO, Appellant/Cross Respondent, and ANNA MARIE CARRASCO, Respondent/Cross Appellant.

UNPUBLISHED OPINION

WORSWICK, J.

Antonio Carrasco appeals the trial court's maintenance award and division of property in this marital dissolution case. He argues that the trial court abused its discretion by (1) failing to impute income to his ex-wife, Anna Tarantino, for purposes of calculating spousal maintenance and child support, (2) awarding Tarantino "supplemental" maintenance, (3) securing Tarantino's maintenance payments with a life insurance policy, (4) ordering Carrasco to pay all expenses for his adult daughter's treatment for an eating disorder, and (5) using the trial date to calculate Tarantino's share of Carrasco's retirement account. We affirm and we grant attorney fees to Tarantino.

FACTS

Antonio Carrasco and Anna Tarantino were married for 19 years. When the couple married in January of 1994, Tarantino was working as a secretary and Carrasco was an undergraduate student. After Carrasco's graduation in 1996, the couple moved from California to Minnesota, where Carrasco studied for a PhD and then a medical degree from 1996 until 2006. The couple then moved to Wisconsin, where Carrasco was a medical resident from 2006 until 2008. In 2008, the couple moved to Vancouver, Washington, where Carrasco completed another medical residency from 2008 until 2010. From 2010 to 2012 Carrasco remained as a fellow at the hospital where he had completed his residency. In 2012, Carrasco obtained full employment as a doctor at the same hospital. Carrasco was earning roughly $16, 210.10 in gross monthly income at the time of dissolution.

In 1994, shortly after the couple's marriage, Tarantino quit her job to raise the couple's first child. The couple had three children: Sarah, [1] born in 1994; and two teenaged boys born in 1999 and 2000. Tarantino took care of their children full-time. Thus, from 1994 until 2012 the couple and their children lived primarily on Carrasco's student loans grants, stipends, and financial aid. During the marriage, the couple acquired few assets: they had owned a house in Minnesota, but it was foreclosed upon. At the time of dissolution, they owned a house in Vancouver.

Carrasco moved out of the family home on August 18, 2012, and filed for divorce shortly thereafter. The parties proceeded to trial on October 28 and 29, 2013. Both Carrasco and Tarantino testified at trial.

During Carrasco's opening statement, his attorney spoke about the couple's adult daughter, Sarah, and her need for treatment for an eating disorder. The attorney said "[Y]ou will hear testimony that my client has had regular and on-going contact with [Sarah] and that he has provided for all of her medical needs, all of her billings and he is actually the one that's going to be paying for her in-patient treatments." Verbatim Report of Proceedings (VRP) at 4. During Tarantino's opening statement, the following colloquy took place:

[Tarantino's attorney]: I am thrilled this morning to hear for the first time that the husband is willing to pay for [Sarah] 's treatment program. That is the first that we've heard of that... .And I'm hearing that it is a stipulation that the husband will pay for the-
[Carrasco's attorney]: Yes.
[Tarantino's attorney]:-treatment program.
[Carrasco's attorney]: It's already-he's sent her money for her plane ticket and-
[Judge]: So your client is stipulating that he will pay for all treatment costs?
[Carrasco's attorney]:-yes.
[Tarantino's attorney]: Fabulous. Thank you.
[Judge]: Okay. So noted on the record then.

VRP at 12-13 (emphasis added). The topic of Carrasco paying for Sarah's treatment arose several times during trial, and each time, Carrasco affirmed that he would pay for it. On direct examination of Carrasco, his attorney engaged him in the following questioning:

Q: And who arranged to pay for the treatment that she's received?
A: For the treatment that she's received?
Q: Thus far?
A: I pay for that.

VRP at 21. Later, in the same direct examination, Carrasco's attorney reminded him that he hadn't added the cost of Sarah's treatment to the worksheet about each spouse's costs:

Q: But you didn't include the-the cost of sending [Sarah] to treatment, did you?
A: No I did not.
Q: Okay. So that would be in addition to these premiums, correct?
A: Correct. VRP at 78. His attorney also questioned him about the costs of Sarah's treatment:
Q: Do you-do you know how much you have spent on [Sarah] 's treatment to date?
A: No I do not.
Q: And you could-
A: It's in the thousands.
Q: -give an estimate for the court?
A: Approximately twenty to twenty-five thousand dollars.
Q: And do you know how much it's going to cost for her to go through the inpatient treatment program?
A: I imagine it will be a similar amount-fifteen to twenty thousand dollars.
Q: And you've already stipulated to the court that you're going to undertake this step?
A: Yes.

VRP at 24-25. Later, Tarantino testified that she believed the treatment would cost about $10, 000 per year.

On cross-examination, Tarantino's attorney discussed treatment costs with Carrasco:
Q: You've indicated that you will pay for [Sarah]'s treatment program?
A: Correct.
Q: Yeah.
A: I've been paying for [Sarah]'s medical care.

VRP at 106.

Tarantino testified that since the separation she had attempted to reenter the workforce: she had performed volunteer work after hearing that it was a good way to improve job prospects, and she had investigated job placement services. She had attempted secretarial work, but did not find it promising as a career, so she began volunteering to learn medical billing.

After trial, the court entered findings of fact and conclusions of law. The trial court found a disparity between the parties' educations and future earning prospects. Accordingly, the decree of dissolution provided for spousal maintenance to Tarantino of $5, 500 per month for a total of nine years, representing a five year base plus an additional four years to allow Tarantino the time to seek higher education. The trial court did not impute any income to Tarantino in calculating maintenance. The trial court ordered Carrasco to name Tarantino as a beneficiary on his life insurance policy in an amount at least equal to the remaining maintenance payments to secure these payments in the event of Carrasco's early death.

The trial court also divided the couple's property. It found that the couple had separate property listed on exhibits attached to the decree of dissolution. The trial court allocated half of Carrasco's retirement account accrued through October 29, 2013 (the date of trial) to each spouse as their separate property. The court awarded the Vancouver house to Carrasco and half of the house's equity to Tarantino.

The trial court entered a final parenting plan and child support order. The child support order did not mention the couple's adult daughter Sarah. The child support order established payments for their two sons based on an attached worksheet, which showed that Tarantino had no income apart from spousal maintenance.

About a month after the judgment, Carrasco moved to enforce certain terms of the decree. In response, Tarantino requested an addendum to the decree, claiming that, despite Carrasco's stipulation to pay the costs of Sarah's treatment, he had since told Sarah he would not pay for anything. After a hearing to resolve the dispute, the trial court entered an addendum to the decree of dissolution which included a supplemental finding of fact stating that "the parties entered a CR2A Stipulation and placed on the record that the husband has stipulated to paying all expenses related to the adult child Sarah's medical and mental health treatment related to her eating disorder. Thus, this Stipulation shall become a part of this Addendum to Decree and Final Order." Clerk's Papers (CP) at 169. Carrasco appeals.

ANALYSIS
I. Standard of Review

Carrasco bears a substantial burden in appealing the trial court's dissolution decree. We favor finality in dissolution actions. In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985). To prevail, Carrasco must show a manifest abuse of discretion by the trial court. 103 Wn.2d at 809.

Unchallenged findings are verities on appeal. In re Marriage of Kim, 179 Wn.App. 232, 246, 317 P.3d 555, review denied, 180 Wn.2d 1012 (2014). We review de novo whether the trial court's conclusions of law flow from its findings of fact. In re Marriage of McDermott, 175 Wn.App. 467, 483, 307 P.3d 717, review denied, 179 Wn.2d 1004 (2013). We defer to the trial court on issues of conflicting testimony and witness credibility. In re Marriage of Burrill, 113 Wn.App. 863, 868, 56 P.3d 993 (2002).

II. Findings of Fact

Carrasco assigns error to findings of fact 2.8, 2.12, and 2.20. Because Carrasco does not argue that these findings lack substantial evidence, we consider them verities. See RAP 10.3(a)(6); Hoskins v. Reich, 142 Wn.App. 557, 565 n. 5, 174 P.3d 1250 (2008).

Finding of fact 2.8 states that the couple has "real or personal property set forth in Exhibit 'FT and 'W.'" CP at 111. Carrasco does not argue that this finding lacks substantial evidence, because he does not contest that the couple has such property. Instead, he contests the trial court's division of his retirement account. We address that legal argument below, but consider finding of fact 2.8 a verity.

Finding of fact 2.12 says that Tarantino does not have outside resources, and Carrasco could afford to pay spousal maintenance and child support; that the marriage was of significant length but produced only nominal...

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