In re Marriage of Vercoe

• Decision Date: 12 May 2015
• Docket Number: 31724-2-III
• Citation: In re Marriage of Vercoe, 31724-2-III (Wash. App. May 12, 2015)
• Court: Washington Court of Appeals
• Parties: In re the Marriage of: RENE VERCOE (formerly MILLER), Appellant, and MICHAEL D. MILLER, Respondent.

In re the Marriage of: RENE VERCOE (formerly MILLER), Appellant, and MICHAEL D. MILLER, Respondent.

No. 31724-2-III

Court of Appeals of Washington, Division 3

May 12, 2015

UNPUBLISHED OPINION

SlDDOWAY, C.J.

Rene Vercoe appeals the denial of her petition to modify the spousal maintenance awarded her in the 2010 dissolution of her marriage to Michael Miller. She contends that a superior court commissioner, and a judge on a motion for revision subjected her petition to the wrong legal standard, deprived her of a right to discovery, and based the determination that no substantial change in circumstances warranted modification on unsupported findings.

The judge concluded after reviewing the record and the commissioner's decision that summary judgment dismissal of Ms. Vercoe's petition was appropriate, since she had failed to present evidence of any genuine issue of fact that there had been a substantial change of circumstances from those existing at the time of the decree. We agree. And like the judge, we find no error in the commissioner's refusal to continue the hearing and compel discovery from Mr Miller-the postdecree record was extensive, Ms. Vercoe did not make the showing required by CR 56(f), and there is no reason to believe that the evidence she sought would have changed the result. We affirm.

FACTS AND PROCEDURAL BACKGROUND

In 2008, Rene Vercoe and Michael Miller separated for the second time after 25 years of marriage. Following a lengthy trial, a decree of dissolution was entered in May 2010. Apart from the parties' home, household goods, and retirement plans, the decree's asset schedule and findings showed that the parties' remaining community assets were worth only $37 087 and that their current community liabilities-mostly credit card debt-were almost $60, 000.

The parties' home was subject to a mortgage liability of approximately $625, 000 at the time of the decree. It was already listed for sale and the decree required that it remain listed until sold. The decree further provided that either party could ask the court to review the asking price ($799, 000, according to the decree) every 60 days and that "any issues relating to the sale" were returnable to the family law docket on short notice. Clerk's Papers (CP) at 4. Other materials filed by Ms. Vercoe indicated that even before the entry of the decree, Mr. Miller believed a $799, 000 asking price was too high and had only agreed to sign a listing agreement if the price was lowered to $729 000. Those materials indicated that the realtor was "doing everything humanly possible to market [the] property appropriately, " but there is no evidence of any offers. CP at 149. The decree provided that upon the sale of the home, "[a]ny net proceeds" would be divided between the parties at closing. CP at 4. Until sold, Ms Vercoe would have the exclusive right to occupy the home. Id.

The decree ordered Mr. Miller to pay 60 percent of Ms. Vercoe's attorney fees and costs, in the amount of $16, 955.85; and, commencing March 1, 2012, that he make the monthly mortgage payments of $3, 458.23, pay $1, 360.56 a month in child support, and pay $3, 000 a month in spousal maintenance for a period of three years. Until the family home was sold, Ms. Vercoe was required to contribute $1, 000 a month toward the mortgage payment, which would be accounted for in the form of a discount from Mr. Miller's maintenance obligation to her, reducing his maintenance obligation to $2, 000 a month as long as he was paying the mortgage.

The court's findings and conclusions included 36 findings explaining the court's decision to order three more years' spousal maintenance. It found that the parties were in very different economic circumstances at the time of the dissolution as a result of their different employment histories. Mr. Miller had enjoyed a steady career as a pilot; first in the Air Force, then in the Washington Air National Guard, and ultimately at Alaska Airlines, where he was a captain at the time of the decree. By contrast, Ms. Vercoe, although a college graduate, had been employed in lower paying positions, peaking with annual earnings of $112, 000 when she worked for a company that designed professional exchange programs. Her success in that position led her to start her own business, but it proved unsuccessful.

The court found that Mr. Miller's income "was significantly progressive, " and that during the five years preceding the decree, his annual income averaged $140, 000, although he had earned $168, 456 in 2009. CPat418. Ms. Vercoe's earnings, by contrast, had peaked at $112, 000, but she had been unemployed in the three years before the marriage was dissolved. The court found that her only income in 2009 had been spousal maintenance paid by Mr. Miller under a temporary order, but that at the time of trial she had just become a licensed realtor.

Concluding that Mr. Miller was on "a good, solid track to continue his earnings" and that Ms. Vercoe "needs to have some assistance while she is in the training or developing stages of real estate or other marketing opportunities, " the court stated that three years' maintenance was "appropriate to give [Ms. Vercoe] the stability and an income level to be able to devote time to career-building activities." CP at 418-19. It cautioned that the maintenance "is meant to be a short-lived burst for a great launch." CP at 419.

Following entry of the decree, Mr. Miller failed to make the required mortgage and credit card payments. According to him, it was because the credit card debts assigned to him were in Ms, Vereoe's name, and creditors proved unwilling to accept a payment plan. He responded by making attempts to rent the couple's home for an amount that would cover the mortgage or to attempt to sell the home at a further reduced price-according to him, to avoid foreclosure. While he made the required child support payments, he paid Ms. Vercoe only $2, 000 a month toward the spousal maintenance obligation.

In June 2010, Ms. Vercoe sought an order holding Mr. Miller in contempt. A court commissioner entered an order to show cause setting a hearing for July 12. In response, Mr. Miller filed for protection under Chapter 13 of the bankruptcy code on June 30, 2012.

Ms. Vercoe filed six claims as a creditor in Mr. Miller's bankruptcy proceeding. Three were disallowed. The following two were reportedly resolved expeditiously, by stipulation or by court order:

Claim 5

Unpaid attorney fees awarded by the dissolution decree, plus interest

Allowed as an unsecured claim in the amount of $17, 217.85

Claim 6

Unpaid credit card debt as to which Mr. Miller was required by the dissolution decree to hold Ms Miller harmless

Allowed as an unsecured claim in the amount of $61, 713.30

Ms. Vercoe's last creditor's claim-her claim "7"-sought $125, 000 for damages allegedly suffered as a result of Mr. Miller's bankruptcy and the foreclosure of the family home, which she claimed damaged her credit rating and rendered her unable to find work. Mr. Miller deposed Ms. Vercoe in the bankruptcy proceeding to get a better understanding of the claim. She testified;

A. ... I've been turned down by the Gates Foundation, by U.S. Bank, by Bank of America.

Q. And did any of those three give you a letter or some written memo telling you why they turned you down?

A. They told me that a more qualified candidate had been chosen for the position; thank you for your application.

Q. Is that generally true of all three of those companies?

A. Yes. That's generally true of all companies.

Q. Okay.

A. That's the standard letter.

Q. (By Mr. Bury) I'll ask you the question again. Do you claim that Michael Miller was the cause of you not being hired by these entities?

A. I claim that having my credit damaged by Mike Miller caused me to not look as good as some other applicants.

Whether or not that was the reason I was not hired, I cannot tell you. However, there are a lot of businesses where I cannot even apply because I know that my credit will be checked.

Q. None of these employers to whom you gave applications ever told you that something Michael Miller did was the cause of them not hiring you; is that true?

A. They do not tell me why they did not hire me,

Q. I thought they told you-in every case they told you that someone was more qualified?

A. That there was someone more qualified. They did not tell me what was wrong with me. They told me what they hired.

Q. Didn't they tell you that you didn't have the same qualifications as the applicant they chose?

A. They told me I didn't have better qualifications. And I'm assuming that your credit is a part of your qualifications.

CP at 59-60. Concluding that claim 7 was in the nature of a tort claim, the parties stipulated to transferring the claim to state court.

Ms. Vercoe and Mr. Miller thereafter reached an agreement under which she would receive an additional $15, 500 for claim 7; the parties filed a stipulation that modified his earlier-proposed Chapter 13 Plan and settled all objections to the claims. Ms. Vercoe agreed to dismiss the state court complaint with prejudice, which she did. According to Mr. Miller, he settled the claim against his lawyer's advice but "figured the $15, 500 would give Ms. Vercoe the money to cover any [attorney expense] she had incurred in the bankruptcy." CP at 22. A financial declaration filed by Ms. Vercoe in February 2013 indicated that she owed $15, 000 to her bankruptcy lawyer.

Mr. Miller's final Chapter 13 Plan was a 100 percent repayment plan, which the bankruptcy court approved a few weeks later on April 25. Over the duration of the plan, Ms. Vercoe has received or will receive a total of $94, 431.15 on her three allowed claims.

In June 2012, two months after settling...