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In re Marriage of Perez

January 22, 1991

IN THE MATTER OF THE MARRIAGE OF DIANE M. PEREZ, RESPONDENT, AND DAVID ENGDAHL, APPELLANT


Coleman, J. Grosse, C.j., and Baker, J., concur.

Author: Coleman

David Engdahl appeals from the trial court's decision to apply the 1988 Child Support Schedule (RCW 26.19) to increase his support payment rather than follow the Uniform Child Support Guidelines specified in the parties' 1986 dissolution decree. He also appeals from the court's decision to hear the case rather than require mediation pursuant to the dissolution agreement and its refusal to consider certain financial information in determining the support award. Finally, Engdahl appeals from the court's refusal to award him attorney fees from Perez's attorneys pursuant to CR 11. Perez cross-appeals from the trial court's revision of the superior court commissioner's award of attorney fees.

David Engdahl and Diane Perez were married in Colorado on October 26, 1980. Shortly thereafter, they moved to Washington where Engdahl had been offered employment at a substantially higher pay. Their only child, Nathan, was born in October 1984. In time, Engdahl and Perez separated and a dissolution decree was entered on December 31, 1986.

Incorporated into the decree was the parties' court-approved property settlement agreement, written pursuant to RCW 26.09.070, which defined the parties' child custody and support obligations. In section 2, entitled "Provision for Children," the decree obligated Engdahl to pay Perez a certain amount each month for child support. This amount was determined "according to the methods, procedures, formulas and schedules contained in the Washington State Association of Superior Court Judges Uniform Child Support Guidelines . . .". The decree further provided that beginning January 1988, an annual adjustment would be made to Engdahl's child support and child care obligations, again "according to the methods, procedures, formulas, and tables contained in the [Guidelines], as now written and hereafter amended." In addition, section 2(K) of the decree included express arrangements for dispute resolution

regarding "any issue, except those reserved to the Wife herein as physical custodian . . .".

In March and April 1989, Engdahl's attorney, J. Porter Kelley, and Perez's attorney, Mabry De Buys, exchanged their clients' 1988 income tax information for determining the annual child support adjustment. Kelley mailed De Buys his calculations of Engdahl's adjusted child support payments, which totaled $689 per month*fn1 -- an increase of $76 per month from the prior year, determined according to the Washington State Association of Superior Court Judges Uniform Child Support Guidelines which were specifically named in the parties' dissolution decree as the method of calculating annual support adjustments. Engdahl consequently paid Perez $380 as additional support for the months of January through May 1989.

In contrast, De Buys calculated Engdahl's adjusted monthly child support payments to be $1,189 per month,*fn2 determined according to the terms of the 1988 Child Support Schedule (RCW 26.19). De Buys believed that the Guidelines specified in the parties' decree had been amended by the 1988 act and, consequently, that the 1989 child support adjustments would be determined by the provisions of that act.

Engdahl disputed the application of the 1988 act as well as the financial figures De Buys used to calculate the adjusted child support amount. On May 15, 1989, De Buys filed a motion to set child support, including a request for attorney fees and costs for having to bring the motion. The hearing was set for May 23, 1989.

Engdahl, now acting pro se, responded to the motion with assertions that the parties' dissolution decree fully provided for child support determinations and that the 1988 act did not apply retroactively to their decree. He

further asserted that Perez was bound by subsection 2(K) of the decree to use mediation to resolve any dispute except those concerning issues reserved to Perez in subsection 2(D), which did not include child support.*fn3 In addition, Engdahl requested attorney fees on the ground that Perez violated their dissolution decree by failing to comply with the mediation provision.

During the hearing for the motion to set child support, Engdahl presented several financial documents, including an itemization of the debts and financial history of the prior marital community. The commissioner refused to consider those documents because they were untimely, despite Engdahl's assertions that he had received no notice that the commissioner would be making findings of fact. As Engdahl explained, the only notice he had received was that the hearing would address matters of law, which he presumed would be ...


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