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Seattle Family Law Blog

Appeals

Written by H. Michael Finesilver (f/k/a Fields)

Attorney at Law

Anderson, Fields, Dermody & McIlwain

Appeals

This blog provides explanations of things anyone who wants to appeal or defend against an appeal should know in any marital dissolution or parenting dispute. It is the result of over forty years of professional experience pursuing and defending against appeals in those kinds of cases. Appeal means filing a case in the State Court of Appeals or State Supreme Court.

Temporary Orders Cannot Be Appealed

There is no right to appeal any temporary order. Review of temporary orders decided by Court Commissioners can only be by a motion for revision to be heard by a superior court judge, and only if the motion is filed and served within 10 days of the entry of the Commissioner's order. A judge's order on a motion for revision of a temporary order cannot be appealed.

Appeals to the state Court of Appeals must be filed and served on the other party within thirty days of either the date of entry of the superior court judge's final orders, findings of fact and conclusions of law, or the date an order on a motion for reconsideration of any aspect of the judge's final orders, whichever date is later. Any appeal filed later than that thirty day window will not be heard.

Why Appeals Are Difficult To Win

Appeals are decided by a panel of three judges. Appeals are difficult to win because of what they do not involve.

The Court of Appeals will not review credibility disputes. This is a great source of frustration for a lot of people. The panel might will not review whether the trial judge got it wrong when it believed the other party or witness or found that the appealing party was a liar. Deciding who was lying and who was telling the truth is known as a "credibility determination". Courts of appeals do not make credibility determinations. Credibility determinations are not legal errors. They are NOT appealable. A lot of lawyers who handle an 

Parenting Plan Modifications

Changing your final parenting plan or parenting plan decree requires leaping a few hurdles. These are designed to dissuade a party from easily disrupting the lives and routines of the children involved. The process of modifying a parenting plan can be difficult for the non-attorney. The legal bases for modification can overlap with other statutory provisions addressing relocation of a parent, or changing a custodial parent. You should get good legal advice if you want to alter your existing plan.

What do you need to show in order to change a parenting plan?

RCW 26.09.260 is Washington's statutory guide to modifying parenting plans or custody decrees. The statute does not encourage modification of parenting plans. Under the statute, a major hurdle to overcome is a showing of "substantial change in circumstances." The existing parenting plan stays in place unless one can demonstrate a substantial change based on facts that have arisen since the time of the prior decree, final parenting plan or custody order. These facts must be new events - a new set of circumstances - so as to justify the modification.

In very limited situations, however, you do not need to show a substantial change in circumstances. Specifically, if the parties agree to the changes to the parenting plan, or if a child has been integrated into the home of a noncustodial parent (in contradiction to the parenting plan), then a party can modify a parenting plan without having to jump over that initial hurdle. In addition, if the child's current living situation is so harmful (that it would be better to change it), or if a parent has been held in contempt of a parenting plan/custody order (2 times in the last 3 years), or if a parent has been convicted of custodial interference - no showing of a substantial change in circumstances is needed.

What kind of changes are to be made to the plan?

If a major modification of the plan is being sought, the court looks at the changed circumstances of the either the child or the parent who is not seeking to modify the parenting plan. This makes it more difficult to justify significant changes to a parenting plan. A change in custodial parent would be considered a major modification.

If a minor modification or adjustment to the residential time is sought, then the court will look at the circumstances of either the child, or the mother or father, and whether it has changed substantially since the entry of the last. The court can make a minor adjustment of the parenting plan based upon a change in the residence of a parent (whom the child spends less time with), or upon an involuntary change in a parent's work schedule (which makes it very difficult to follow the existing parenting plan).

This may sound a less scrutinizing, but in a minor modification, the court can only adjust the residential schedule in the plan by no more than 24 full days. If a court provides for an adjustment that is more than 24 full days, the change in residential schedule cannot exceed 90 overnights per year - and this is only if a parent (whom the child spends less than a majority of residential time) does not have "reasonable time" with the child under the existing residential arrangement, and the increased overnights are in the best interest of the child.

What else must be considered?

Spousal Maintenance-Making Sure it gets Paid

Making Sure it gets Paid.  An order to pay maintenance typically requires an obligor spouse to make monthly payments to the other spouse (or domestic partner). Payments are often made directly to the spouse, i.e. by check or money order (one should never pay by cash), or by automatic withdrawal and deposit into a spouse's account. Alternatively, maintenance may be paid, or collected by, the Washington State Support Registry.

Spousal Maintenance-The Basics

Spousal maintenance (or alimony as it is known in other states) is awarded to the economically disadvantaged spouse, during and after dissolution of a marriage or domestic partnership, or a legal separation. Payments are meant to help a spouse with monthly needs like food, housing, clothing, car payments, and insurance.

Maintenance is awarded without regard to fault or marital misconduct of a spouse. A spouse's obligation to pay maintenance ends at the death or remarriage of the spouse receiving maintenance. Its duration and amount is based upon fairness and equity factors. The courts disfavor a permanent award of maintenance

Maintenance is not an entitlement; it is in the discretion of the court to award it or not. The court considers what is fair and just when deciding to award spousal maintenance and it looks to the statute, RCW 26.09.090, for guidance. The court must examine the circumstances of the spouse seeking maintenance and basically ask "is there need? Is the spouse dependent?"

Specifically, under the statute, asks:

1. What are the financial resources of the party seeking maintenance and the ability to meet their needs?

2. What kind of time is needed to acquire training and education to enable the spouse to find work?

3. How old is the spouse? Is he/she young and beginning a career? A family? Or Close to retirement or to drawing social security?

4. What is the spouse's physical and emotional condition?

5. What are their financial obligations?

The court looks at the payer's circumstances and asks can he/she pay? How will the spouse meet his/her financial obligations while meeting those of the spouse seeking maintenance?

Furthermore, under RCW 26.09.090, the court also considers the length of the marriage, and the standard of living of the parties established during the marriage.

How is Child Support Calculated?

Children are not cheap. Married or unmarried, parents alike understand this shortly after their child (or children) come into the world. The new parents' world suddenly turns from budgeting for themselves, to themselves plus one-often, followed by another, sometimes another, and so on.

As this occurs, families, in their own unique design and ways, usually curb costs and remap their household's division of labor and time: often, one parent dials back their work hours and prior income and the other parent dials up theirs to compensate. Families, in their ordinary senses, don't consider "child support" as a specific monthly total, other than spending however much it costs working and raising a family together and their unique budgets.

But when families separate-as more than half of them do in King County-one necessary question arises: how do the parents (or if they can't, then the court) determine a fair amount for parents to contribute towards their children in light of this new living arrangement?

Child support in Washington is determined by the parents' combined net incomes and the age and number of children they have together. Using that information, the amount a parent pays is determined by application of an "economic table." The economic table, similar to tax brackets, indicates how much child support a family making a certain combined amount should pay, considering the age and number of children they have together to support.

The Court of Appeals

Trial courts are entitled to broad discretion in dissolution proceedings. In re Marriage of Wright, 179 Wn. App. 257, 261, 319 P.3d 45 (2013). Because the trial court is in the best position to determine what is fair, its decisions will be reversed only if there has been a manifest abuse of discretion. In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779 (2005). A trial court abuses its discretion if its decisions are based on untenable grounds or untenable reasons. Id. This discretion applies to determinations regarding division of property, maintenance, and child support. Wright, 179 Wn. App. at 261 (property division); In re Marriage of Valente, 179 Wn. App. 817, 822, 320 P.3d 115 (2014) (maintenance); In re Marriage of Krieger, 147 Wn. App. 952, 959, 199 P.3d 450 (2008) (child support).

Temporary Support

On a spousal support basis, a homemaker is not required to seek employment, pawn jewelry, or exhaust credit before they are entitled to spousal support as long as need is shown. Further, an unemployed individual need not pauperize themselves by selling assets to make a cash outlay for litigation, nor are they put to the election of spending their money for living expenses or the preparation of their case. It is not so, however, if an individual has ample funds for both.

When Is A Professional Education Valued?

In order to have value, a professional degree must have been procured. It is more than a simple Bachelor of Arts or Science degree. For ease of identification, let's say it is a doctor, lawyer or a Master's Degree. The question then becomes: has the community received fair compensation? It has been held by our Court that the Court must treat the education as an asset and place a value thereon. The value must consist of the cost of the education and the increased income potential. In re The Marriage of Washburn, 101 Wn. 2d 168, 677 P.2d 152 (1984).

Authored by Wolfgang R. Anderson, Attorney at Law

Allocating credit card debt is part of the process of ending a marriage

A divorce can become contentious over the issue of how to properly allocate debts acquired by the spouses during their marriage.

Credit Card Insider observes that divorce is sometimes messy not just because of the emotional aspect but because of the fact that a divorce has the potential to "wreak havoc on both parties' finances." Nevertheless, "divvying up the financial liabilities" of an ending marriage is part and parcel of the property division process. Debt division can be as contentious-if not more so-than a division of a Washington couple's community property assets. This should not be surprising since divorcing couples ready for a fresh start are not especially eager to shoulder any more of the marital debt than they need to.

4 signs that your spouse may be hiding assets in a divorce

People going through a divorce should know how to look for the signs that a spouse is attempting to hide assets.

Washington is a community property state, which essentially declares any property that a couple acquires during the marriage will be subject to division. As the Washington Courts note, community property law can be complicated and require professional assistance to navigate.

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