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In re Marriage of Morris

Court of Appeals of Washington, Division 1

September 23, 2013

In the Matter of the Marriage of Kelly S. Morris, Respondent, and Gregory Charles Morris, Appellant

Reconsideration denied October 22, 2013.

Page 768

Appeal fro Superior Court King County. Superior Court Cause No: 96-3-01066-2 KNT. Date filed in Superior Court: September 14, 2012. Superior Court Judge Signing: Hon. Andrea Darvas.

Patricia S. Novotny, for appellant.

Jennifer Papahronis (of Law Office of Jennifer Papahronis PLLC ); and Catherine Wright Smith and Valerie Villacin (of Smith & Goodfriend PS ), for respondent.

AUTHOR: Appelwick, J. WE CONCUR: Schindler, J., Cox, J.


Page 769

Appelwick, J.

[176 Wn.App. 895] ¶ 1 When postsecondary educational support has been reserved in a child support order, it is properly requested in a petition for modification without the necessity to show a substantial change in circumstances has occurred. The day before child support was to terminate, Reyes filed a motion for adjustment to establish previously reserved postsecondary support for the older of two daughters. However, but for the choice of form, the proceeding below was the procedural and substantive equivalent of a modification proceeding. Therefore, the superior court did not lack authority to order postsecondary support and did not abuse its discretion in doing so. Because the factual record is not in dispute, the lack of findings of fact does not require remand. We affirm.

[176 Wn.App. 896] FACTS

¶ 2 Kelly Reyes and Gregory Morris dissolved their marriage in December 1996. Their two daughters, born December 4, 1993 and April 21, 1995, resided a majority of the time with their mother. Morris was ordered to pay child support.

¶ 3 The child support order was modified in November 2001 and August 2008. The original order and the 2001 modification are not in the record. Paragraph 3.13 of the 2008 order provides, " Support shall be paid ... until the children reach the age of 18 or as long as the children remain enrolled in high school, whichever occurs last, except as otherwise provided below in Paragraph 3.14." Paragraph 3.14 expressly reserves the right to petition for postsecondary educational support:

The right to petition for post secondary support is reserved, provided that the right is exercised before support terminates as set forth in Paragraph 3.13.

¶ 4 The oldest daughter turned 18 in December 2011 and graduated from high school on June 9, 2012. The day before graduation, Reyes filed a motion for adjustment of child support. In addition to requesting a periodic adjustment of support for the younger daughter, she requested postsecondary educational support for both children.

¶ 5 In a declaration filed in support of her motion, Reyes explained that the older daughter was an " A" student and had been accepted to the University of Washington. She included a copy of the daughter's transcript and admission letter. Reyes also explained the necessary support. She detailed the cost of tuition, the possibility of a tuition increase, and that the daughter applied for, but did not receive, several scholarships. Reyes stated that the daughter had about $12,000 in her bank account that she received from her great grandfather, and that she worked part-time [176 Wn.App. 897] at Taco Time earning minimum wage. Reyes further explained that Morris knew the daughter had been accepted and was pleased, but had not offered financial support and did not respond to a text message asking if he was going to help. Reyes proposed that they evenly split the cost of education, including tuition and fees,

Page 770

room and board, books and supplies, transportation, and any uncovered medical expenses. The girls would pay their own personal expenses.

¶ 6 In a response declaration, Morris requested a deviation in support for the younger daughter based on another child he had with his new wife. He argued that the postsecondary educational support request was too large and that it was unreasonable to expect him to pay more than his child support obligation would be if both children were still minors. He stated that he would have owed only $550 per month for each child under the standard calculation, and Kelly had requested over $1,300 a month for each child once they were both in college. He claimed it was in the girls' best interest for him and Reyes not to pay for all of the girls' college expenses:

I believe our daughters should have a personal investment in their college education by working, as well as seeking grants, scholarships, and loans, as other young adults would have to do. I believe they would derive far more benefit and satisfaction from their college education and appreciate its value if they have this type of investment in its cost.

¶ 7 Morris also filed a memorandum of points and authority, in which he argued that the court did not have jurisdiction to set postsecondary support for the older daughter, because Reyes erroneously filed a motion for adjustment instead of a petition for modification. He claimed that it was too late to remedy the mistake, because the older daughter had already turned 18 and graduated from high school. He asserted that he intended to support the older daughter but did not believe the court had authority to order him to do so:

[176 Wn.App. 898] [Morris] does want to affirmatively state that he intends to assist her. He values education and is proud of his daughter and her academic achievements thus far. [Morris] intends to continue supporting his daughter, but without the court's involvement, like the vast majority of parents who support their children in college.

He made no argument as to postsecondary support for the younger daughter.

¶ 8 In reply, Reyes argued that a petition establishing a substantial change in circumstances would have been appropriate only if there was no previous request or a previous request had been denied. She relied on the mandatory modification forms for her argument. The mandatory form for a motion for adjustment contemplates that it can be used when the right to request postsecondary educational support is reserved, while the form for a petition for modification does not. Reyes also argued that when their spouses' salaries were removed, ...

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