In re Marriage of Cota

• Decision Date: 05 November 2013
• Docket Number: 43037–1–II.
• Citation: 177 Wash.App. 527,312 P.3d 695
• Parties: In the Matter of the Marriage of Regina Katherine COTA, Petitioner, and Anthony Francis Cota, Respondent.
• Court: Washington Court of Appeals

177 Wash.App. 527

312 P.3d 695

In the Matter of the Marriage of Regina Katherine COTA, Petitioner, and Anthony Francis Cota, Respondent.

No. 43037–1–II.

Court of Appeals of Washington, Division 2.

Nov. 5, 2013.

Mark Edward Hurdelbrink, Hurdelbrink Law Offices, Inc., Tacoma, WA, for Appellant.

Regina K. Cota (Appearing Pro Se), Puyallup, WA, for Respondent.

MAXA, J.

¶ 1 Anthony Cota appeals the trial court's child support order requiring him to pay for one-third of his daughter's college expenses. He argues that the trial court (1) did not have authority to order postsecondary educational support because his former wife did not request the support award until after his daughter turned 18, (2) abused its discretion when it determined that an award of postsecondary educational support was proper, and (3) violated RCW 26.19.065(1) because the award of postsecondary educational support increased his child support obligation to more than 45 percent of his net income.

¶ 2 We affirm on the first two issues. Because the 2010 child support order expressly provided that Anthony's¹ support obligation would terminate at the age of majority except for postsecondary educational support, the trial court had authority to order such support even though the request for postsecondary educational support was filed after the daughter turned 18. Further, the record supports the trial court's conclusion that a postsecondary educational award was appropriate under the factors outlined in RCW 26.19.090(2). However, we reverse and remand on the third issue. We are constrained to hold that postsecondary educational expenses constitute "child support" under RCW 26.19.065(1), and therefore the trial court's order improperly required Anthony to pay more than 45 percent of his net monthly income in child support without first finding good cause.

FACTS

¶ 3 Anthony and Regina Cota divorced in 2006. The trial court entered an order of child support providing for their two minor children,² ages 14 and 11. This initial child support order provided for postsecondary educational support and required the parties to pay their pro rata shares of any postsecondary educational expenses.

¶ 4 In 2010, Regina requested that the trial court award specific postsecondary educational support for their daughter Annamarie, who at that time was 17. The commissioner reserved ruling on the issue, reasoning that a ruling on postsecondary educational support was premature because Annamarie had not yet been accepted to college and the amount of her educational expenses was not yet clear. Consistent with that ruling, the commissioner modified the applicable sections of the original support order to read as follows:

3.13 Termination of Support

Support shall be paid until the children turn 18 or until the children graduate from high school, whichever occurs last, except as set forth in Paragraph 3.14 below.

3.14 Post Secondary Educational Support

Post-secondary support determination is premature and is reserved for future determination.

Clerk's Papers (CP) at 130.

¶ 5 In 2011, Anthony moved to modify his child support obligation. Regina opposed the motion and again requested that the commissioner award postsecondary educational support for Annamarie. At the time of the motion Annamarie had turned 18, graduated from high school, and enrolled at Pacific Lutheran University. The total cost for the 2011–12 school year was $22,282 after financial aid and scholarships. This amount was less than the cost to attend Washington State University. Annamarie took out loans in her own name for $5,474 and Regina paid the remaining $16,808. Regina requested that the commissioner order Anthony to reimburse her for his pro rata share.

¶ 6 Anthony opposed Regina's request for postsecondary educational support. He argued that Regina failed to adequately document Annamarie's educational expenses and that the commissioner did not have authority to award postsecondary educational support because Annamarie was over 18 when the petition was filed. The commissioner rejected these arguments and ordered Anthony to pay his pro rata share of the postsecondary educational expenses "pursuant to the statutory criteria and the 2006 order of child support." CP at 306.

¶ 7 Anthony moved for revision of the commissioner's ruling. The parties presented evidence and argument regarding application of the factors in RCW 26.19.090(2) for evaluating postsecondary educational support. The trial court denied the motion. In its oral ruling, the trial court stated that it had evaluated the statutory factors and had determined that a postsecondary educational support award was appropriate. The trial court also stated that it evaluated the parents' "current and future capacity to pay." Report of Proceedings (Dec. 2, 2011) at 34. Based on these factors, the trial court ordered Anthony to pay his pro rata share of Annamarie's 2011–12 college tuition and one-third of her future tuition.

¶ 8 Anthony moved for reconsideration of the trial court's ruling. He argued that the payment of postsecondary educational expenses would increase his child support obligation to more than 45 percent of his net monthly income, in violation of RCW 26.19.065(1). The trial court concluded that postsecondary educational expenses were not included in the statutory cap. ¶ 9 Anthony appeals the trial court's order regarding postsecondary educational expenses and denial of the subsequent motion for reconsideration.

ANALYSIS

A. POST–MAJORITY MOTION FOR POSTSECONDARY EDUCATIONAL SUPPORT

¶ 10 Anthony argues that the trial court did not have jurisdiction to award postsecondary educational support because at the time Regina made the request, Annamarie had reached age 18. However, the trial court clearly had jurisdiction to address postsecondary educational support. In re Marriage of Major, 71 Wash.App. 531, 533–36, 859 P.2d 1262 (1993). At issue here is whether the trial court had authority to order postsecondary educational support in light of RCW 26.09.170(3). See Major, 71 Wash.App. at 536, 859 P.2d 1262.

¶ 11 RCW 26.09.170(3) provides: "Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child." For purposes of this statute, "emancipation" refers to the age of majority—18. In re Marriage of Gimlett, 95 Wash.2d 699, 702–04, 629 P.2d 450 (1981). If a decree does not provide for post-majority support, a party must file a motion to modify to add such support before the child turns 18. Balch v. Balch, 75 Wash.App. 776, 779, 880 P.2d 78 (1994). Conversely, if a decree expressly provides for post-majority support, a court may modify such support as long as the movant files a motion to modify before the "termination of support". Balch, 75 Wash.App. at 779, 880 P.2d 78.

¶ 12 Here, it is undisputed that the trial court entered its order requiring postmajority support after Annamarie turned 18. Therefore, the question is whether, under the child support order in effect when Annamarie turned 18, Anthony's support obligation had terminated when Regina filed her motion to modify. If such support had not terminated, the motion was timely.

¶ 13 "Interpretation of a child support order is a question of law that we review de novo." In re Marriage of Sagner, 159 Wash.App. 741, 749, 247 P.3d 444, review denied, 171 Wash.2d 1026, 257 P.3d 664 (2011). In determining whether the child support order authorizes an award of postsecondary educational support, we look to whether "the support-paying parent has notice that the support obligation will extend past the age of majority." Rains v. Dep't of Soc. & Health Servs., 98 Wash.App. 127, 137, 989 P.2d 558 (1999) (citing Balch, 75 Wash.App. at 780, 880 P.2d 78). The rationale for requiring postmajority support to be expressly provided in a decree is that the support-paying parent must be "given advance notice of the termination date or event, rather than being forced to wait for some elusive or fortuitous date of the dependency cessation." Gimlett, 95 Wash.2d at 703, 629 P.2d 450.

¶ 14 Where the terms of a dissolution decree clearly state that support terminates upon the occurrence of specific events, courts have held that the trial court lacked authority to consider a postsecondary educational support award. In re Marriage of Gillespie, 77 Wash.App. 342, 347–48, 890 P.2d 1083 (1995). In Gillespie, the dissolution decree provided that support would continue until the child "shall reach the age of eighteen (18) years, shall marry, shall become self-supporting or shall no longer be dependent upon the wife." 77 Wash.App. at 344, 890 P.2d 1083 (emphasis omitted). After the child turned 18, the mother filed a petition to modify the decree to provide for postsecondary educational support. Gillespie, 77 Wash.App. at 344, 890 P.2d 1083. Division Three of this court held that the trial court did not have authority to modify the decree because the support obligation had terminated when the child turned 18 under the conditions in the decree. Gillespie, 77 Wash.App. at 347–48, 890 P.2d 1083.

¶ 15 However, the result is different if an order expressly extends support beyond the age of majority. In Balch, the dissolution decree provided that "the children shall be supported until they are no longer in need of support." 75 Wash.App. at 780, 880 P.2d 78. The trial court declined to consider an award for postsecondary educational support because the child had reached the age of majority at the time the modification petition was filed. Balch, 75 Wash.App. at 778, 880 P.2d 78. This court reversed, holding:

Although this stipulated language lacks precision as to the duration and nature of child support, it clearly expresses an intention to continue child support beyond majority if [the child] remained dependent in fact. See RCW 26.09.170(3). Further, the language is sufficient to put the payor parent on notice that the child support obligation may continue after

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