In re Parenting and Support of Q.J.M.

• Decision Date: 28 May 2019
• Docket Number: 77961-3-I
• Court: Washington Court of Appeals
• Parties: In re the Parenting and Support of Q.J.M. and T.J.M. Minor Children, SEAN C. MORRIS, Appellant, and TONYA A. MORRIS, Respondent.

In re the Parenting and Support of Q.J.M. and T.J.M. Minor Children, SEAN C. MORRIS, Appellant, and TONYA A. MORRIS, Respondent.

No. 77961-3-I

Court of Appeals of Washington, Division 1

May 28, 2019

UNPUBLISHED OPINION

ORDER DENYING APPELLANT'S MOTION FOR RECONSIDERATION, DENYING RESPONDENT'S REQUEST FOR ATTORNEY FEES, WITHDRAWING OPINION, AND SUBSTITUTING OPINION

Appellant Sean Morris, has filed a motion for reconsideration of the opinion filed on March 25, 2019. Respondent, Tonya Morris has filed an answer to appellant's motion for reconsideration and has requested attorney fees. The court has determined that appellant's motion for reconsideration should be denied, respondent's request for attorney fees should be denied, the opinion should be withdrawn, and a substitute opinion be filed. Now, therefore it is hereby

ORDERED that appellant's motion for reconsideration is denied and respondent's request for attorney fees is denied. It is further

ORDERED that the opinion filed on March 25, 2019, is withdrawn and a substitute opinion be filed.

Smith J.

Sean Morris appeals an order directing him to pay Ostler Smith spousal support^[1] under a 2010 California decree based on a payment he received in 2015 for accrued vacation that his former employer should have paid to him in 2012. Because the 2010 decree expressly states that Ostler Smith support applies to deferred compensation and vacation time is a form of deferred compensation under California law, we affirm.

FACTS

Sean and Tonya Morris were divorced in California in July 2010.^[2] At the time, Sean worked for Sun 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 of any gross monthly income in excess of $16, 666.67. Specifically, the 2010 decree provides:

20. Commencing June 1, 2010, [Sean] shall pay to [Tonya] base spousal support of $2, 700 per month, payable one-half on the first and one-half on the fifteenth days of each month, and continuing thereafter until the death of either party remarriage of [Tonya], further order of Court or until the May 15, 2013, payment has been made by [Sean] to [Tonya], whichever first occurs. Spousal support and the Court's jurisdiction to order spousal support shall absolutely terminate with the payment on May 15, 2013, and may not be extended for any reason whatsoever. Spousal support shall terminate following the May 15, 2013, payment even if application is made by [Tonya] to extend said date prior to the May 15, 2013, payment.

21. Except as provided for differently in this paragraph, as and for additional spousal support, there shall be a[n] Ostler [Smith] formula of twenty-five [percent] (25%) as additional spousal support on any of [Sean]'s gross income from employment, including, but not limited to, the combined amount of salary, 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 of the amount of any such monthly income in excess of $16, 666.67; [Sean] shall pay the required sum to [Tonya].

The California court also ordered Sean to pay monthly child support of $2, 780.00, plus Ostler Smith child support equal to 11 percent of any 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 December 2011. 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 employment day of record. Sun Life agreed to pay Sean for his Sun Days no later than 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 court to modify his support obligations under the 2010 decree. As part of that modification action, the parties litigated whether Sun Days were income for purposes of Ostler Smith support. For reasons that are unclear from the record, the California court did not enter a final order on 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 monthly spousal support obligation would increase from $2, 700.00 to $3, 000.00, (2) no Ostler Smith spousal support would 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 Ostler Smith child support obligation would be revised to 11.66 percent of any gross monthly income in excess of $12, 500.00. The court ordered that although a "Cole bonus" that Sean received in November 2012 would not be considered income, "[a]ll other income," including Sun Days, would be considered income. The court ordered Sean to pay support 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 of that Ostler Smith payment was calculated using the formulae set forth in the 2010 decree.

] In 2015, Sean received a $94, 372.43 check from Sun Life. According to Sean, he attempted to find out what the check was for but was told by Sun Life that "there was no one that could help [him] since the business unit [he] worked for was closed." Sean deposited the check in April 2015 and did not tell Tonya about it.

In April 2016, Sean filed a petition in Washington to modify child support. The petition went to arbitration, and Tonya learned about the 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 check was issued to correct the error. In April 2017, Sean made an Ostler Smith child support payment to Tonya based on the 2015 Sun Days check. The amount of the April 2017 payment was calculated based on the Ostler Smith child support formula in the California court's April 2014 order.

In November 2017, Tonya filed a motion for contempt, arguing that Sean (1) owed interest on the April 2017 Ostler Smith child support payment, (2) failed to timely notify Tonya of the 2015 Sun Days check as required under the 2014 order, and (3) should be required to pay Ostler Smith spousal support on the 2015 Sun Days check under the 2010 decree. A commissioner concluded that Sean was in contempt for failing to disclose the 2015 Sun Days check and failing to timely pay Ostler Smith child support based on that check. The commissioner ordered Sean to pay interest on the Ostler Smith child support payment. But the commissioner also concluded that Sean was not in contempt with regard to spousal support, stating: "Spousal maintenance terminated in 2013. There is no evidence [Sean] colluded to hold back the Sun Life income." Accordingly, the commissioner did not order Ostler Smith spousal support.

Tonya moved for revision of the 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 that the commissioner's order be revised to read as follows:

The Court finds 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 per the contract in March 2012, [Sean] was obligated to pay 25% 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^[3] in March 2015, after the spousal maintenance obligation terminated. The mere fact that this payment was paid in March 2015 does not negate that the 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% of the gross amount). A Judgment should enter for this amount, plus interest from 4/1/2015 -12/31/2017 at 10%.

The court stated that it viewed 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 right to the Sun Days income accrued in March 2012, while Tonya was entitled to Ostler Smith spousal support under the 2010 decree.

In addition to ordering Sean to pay Ostler Smith spousal support under the 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 that the Ostler Smith child support payment should have been based on the 11 percent formula from the 2010 decree, rather than the 11.66 percent formula from the 2014 order. The court also ordered Sean to pay interest on the Ostler Smith child support payment, calculated from April 1, 2015. Sean appeals.

DISCUSSION

Order on Revision

Sean argues that the trial 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 Ostler Smith child support should have been calculated under the 2014 order, not the 2010 decree. We disagree.

Interpretation of a dissolution decree is a...