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IN RE THE MARRIAGE OF: PAMELA F. SEARLE, N/K/A PAMELA F. HECKEL, RESPONDENT, GARY G. SEARLE, APPELLANT. |
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No. 17598-7-III
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Washington Court of Appeals
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Source of Appeal: Appeal from Superior Court of Chelan County Docket No: 97-3-00025-2 Judgement or order under review Date filed: 05/19/1998 Judge signing: Hon. Ted W. Small Jr.
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May 27, 1999
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Judges: Authored by Stephen M. Brown Concurring: John A. Schultheis Dennis J. Sweeney |
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Counsel: Counsel for Appellant(s) Douglas J. Takasugi Jeffers Danielson Sonn & Aylward P.o. Box 1688 Wenatchee, WA 98807 Counsel for Respondent(s) Kathleen E. Schmidt 1556 N Wenatchee Ave #a Wenatchee, WA 98801-1157 |
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The opinion of the court was delivered by: Brown, J. |
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Panel Three |
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UNPUBLISHED OPINION |
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In this dispute over delinquent child support the trial court granted Judgement against Gary G. Searle in favor of Pamela F. Heckel, formerly Searle. Mr. Searle argues (1) Ms. Heckel's claim was barred by the doctrines of equitable estoppel and laches, (2) her claim was assigned to the parties' daughter, (3) unemployment benefits are not part of his net income, and (4) Ms. Heckel was not entitled to attorney fees. We affirm. |
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FACTS |
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Mr. Searle and Ms. Heckel's marriage was dissolved in May 1982. The decree required Mr. Searle to pay 20% of his net monthly wage each month in child support with a minimum of $100 and a maximum of $400 to be increased $25 per year thereafter for Senja Searle, their two year old daughter. Mr. Searle was required to submit income documentation supporting his percentage payment. Net income was defined as: |
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"{A}ctual wages from employment received by Gary Searle from his employer after taxes, Social Security, deductions and mandatory deductions, excluding any reimbursement for per diem, travel expenses and other such items and monies from the sale of assets." |
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In 1985, the parties informally agreed by letter to modify the support order to $175 per month.*fn1 Subsequently, Mr. Searle alleged a further undocumented reduction to $153 per month. Mr. Searle paid $153 per month from 1989 forward, missing some months. Income documentation was never supplied to Ms. Heckel. |
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Senja moved from Ohio to Washington to live with her father in October 1996. The parties soon after joined a petition to modify the parenting plan granting primary custody to Mr. Searle. Ms. Heckel placed a letter in Senja's suitcase when Senja came to live with her father. The letter primarily discussed the change in residential placement; however, it also stated: |
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"I release Gary Gay Searle from all future child support payment obligations. However, unpaid child support which has accrued to the present date shall be calculated and placed in a 5 year CD payable to Senja Searle prior to December 31, 1996." |
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The court entered an order in January 1997 modifying Senja's primary residential placement, but it did not address child support. |
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Ms. Heckel started an administrate proceeding to collect back child support from Mr. Searle and also instituted contempt proceedings in the trial court. The administrative process was stayed pending the court's determination of the back support due. Mr. Searle requested and was granted an evidentiary hearing at the show cause hearing. In turn, he agreed to toll the statute of limitations from August 1987 to December 1987 (ten years from the evidentiary hearing date). |
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At the evidentiary hearing, Mr. Searle argued estoppel, laches, and claim assignment. The assignment claim was based upon the letter sent with his daughter in October 1996 that required past due support to be calculated and placed in a Certificate of Deposit (CD) payable to Senja prior to the end of 1996. Regarding the letter, Ms. Heckel testified she did not see the agreement again and was unaware if Mr. Searle signed it. Mr. Searle testified that he had signed it but he was not sure if it was before or after the commencement of the proceedings to collect past-due child support. |
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The court rejected Mr. Searle's arguments. Mr. Searle was held in contempt and ordered to pay $31,536 back support for August 1, 1987 to October 26, 1996, $14,854.53 interest, and $4,300 in attorney fees. The delinquent support was based on a reconstruction of Mr. Searle's income for the years in question based mainly on tax return information. Ms. Heckel originally requested approximately $55,744. A portion of this request was barred by the statute of limitations. Mr. Searle appealed. |
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ANALYSIS |
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A. Estoppel and Laches |
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The issue is whether the trial court erred refusing to apply equitable estoppel or laches to prevent Ms. Heckel's recovery of back support under these facts. |
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A trial court's findings of fact will not be disturbed on appeal if they are supported by substantial evidence. In re Marriage of Stern, 57 Wn. App. 707, 717, 789 P.2d 807, review denied, 115 Wn.2d 1013 (1990). Substantial evidence is that which would persuade a fair-minded and rational person of the truth of a stated premise. In re Marriage of Vander Veen, 62 Wn. App. 861, 865, 815 P.2d 843 (1991). In a dissolution proceeding, the court has the authority to enforce its decree and orders in a contempt proceeding. See In re Marriage of Mathews, 70 Wn. App. 116, 126, 853 P.2d 462, review denied, 122 Wn.2d 1021
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