We harmonize the provisions of an act to ensure its proper construction.
How later courts described this case
- We harmonize the provisions of an act to ensure its proper construction.
- parents hold child support payments as trustees for the children
- The court must avoid constructions that yield unlikely, absurd, or strained consequences.
Written by the judges who cited it.
The opinion
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of ) No. 80221-6-I
)
STEPHEN PAUL CONDIE, )
)
Appellant, )
)
and )
)
AMY RENEE CONDIE, n/k/a ) PUBLISHED OPINION
AMY RENEE BATEMAN, )
)
Respondent. )
)
VERELLEN, J. — The child support statute broadly includes income and
resources from any source when calculating child support. We conclude that
income and net income for purposes of child support include
contemporaneously ordered spousal maintenance. We disagree with In re
Marriage of Wilson,1 where the court held conflicts between the child support
and maintenance statutes should be harmonized to allow the trial court to
ignore contemporaneously ordered maintenance when computing income and
net income. The trial court should have included the maintenance it
1 165 Wn. App. 333, 267 P.3d 485 (2011).
No. 80221-6-I/2
contemporaneously ordered Stephen Condie to pay Amy Bateman when
computing child support under the child support schedule.
Stephen Condie otherwise fails to establish any abuse of discretion
regarding the parenting plan, division of property, and standard calculation of
child support.
Therefore, we reverse the trial court’s failure to include
contemporaneously ordered maintenance when computing child support, affirm
as to all other issues, and remand for further proceedings consistent with this
opinion.
FACTS
Stephen Condie and Amy Bateman were married in 2009 and separated
in 2018. Condie and Bateman have one daughter, E.C.
The dissolution trial occurred over four days in April 2019. In the final
parenting plan, the court ordered that “neither parent shall take the child out of
the country, except to Canada and Mexico, until she reaches the age of 13
years unless otherwise agreed by the parties in writing.”2 The court explained
the limitation was based on E.C.’s “sensory impairment and limited food
tolerance.”3
2 Clerk’s Papers (CP) at 223.
3 Id.
2
No. 80221-6-I/3
In the dissolution decree, the court entered a 60/40 property distribution
in favor of Bateman. The court ordered Condie to pay maintenance in the
amount of $6,500 a month for a little over three years. The court also ordered
Condie to pay child support in the amount of $1,404.15 a month. Condie
moved for reconsideration on various issues. The court denied Condie’s
motion.
Condie appeals.
ANALYSIS
I. Contemporaneously Ordered Spousal Maintenance and Child Support
Allocation.
Relying on Wilson, the trial court did not include the maintenance it
contemporaneously ordered Condie to pay Bateman when determining income
and net income to compute child support on the child support schedule.
The Wilson court interpreted the maintenance statute,
RCW 26.09.090(1)(a), as requiring computation of child support before spousal
maintenance.4 And the court determined a gap existed between the child
support and maintenance statutes:
Although former RCW 26.19.071’s plain language requires a trial
court to consider spousal maintenance “actually paid” and
“actually received” in calculating a parent’s income for purposes of
determining child support obligations, the statute is silent as to
whether a trial court must consider spousal maintenance that has
been ordered but has not yet been paid or received. [5]
4 Wilson, 165 Wn. App. at 342-43.
5 Id. at 342.
3
No. 80221-6-I/4
Reasoning this silence required it to harmonize the maintenance and child
support statutes, the Wilson court concluded the trial court had discretion to
ignore contemporaneously awarded maintenance when computing child
support:
Reading former RCW 26.19.071 in harmony with the spousal
maintenance statute, RCW 26.09.090, we hold that the trial court
did not abuse its discretion by calculating [the father’s] child
support obligation without first deducting his ordered spousal
maintenance obligation.[6]
The court also concluded there was an ambiguity in the child support statute:
The conflict between RCW 26.09.090(1)(a)’s direction and
RCW 26.19.001, the purpose of the child support statute, create
an ambiguity that confronts the trial court in complying with
worksheet directions when setting child support.[7]
And the Wilson court resolved that ambiguity by again concluding the trial court
had discretion to ignore contemporaneously awarded maintenance when
computing child support:
In this instance, we resolve the ambiguity to hold that the trial
court did not abuse its discretion in not including the maintenance
in the child support worksheets.[8]
We disagree.
First, the core question is the meaning of “income” and “net income” for
purposes of child support calculations. The child support statute does not
6 Id.
7 Id. at 343.
8 Id.
4
No. 80221-6-I/5
define “income” or “net income.”9 Because no statute defines “income” for
purposes of child support calculations, we look to dictionary definitions:10 (1) “a
gain or recurrent benefit that is usually measured in money” or (2) the “value of
goods and services received.”11 These definitions accord with the expansive
view of “income” used in RCW 26.19.071. RCW 26.19.071(1) broadly directs
that “[a]ll income and resources of each parent’s household shall be disclosed
and considered by the court”12 when determining a parent’s income.
RCW 26.19.071(3) then directs that “monthly gross income shall include income
from any source, including: . . . (q) [m]aintenance actually received.”13
RCW 26.19.071(5) provides that “[t]he following expenses shall be disclosed
and deducted from gross monthly income to calculate net monthly income: . . .
(f) [c]ourt-ordered maintenance to the extent actually paid.”
When interpreting a statute, “[t]he court's fundamental objective is to
ascertain and carry out the [l]egislature's intent, and if the statute’s meaning is
plain on its face, then the court must give effect to that plain meaning as an
9 RCW 26.19.011.
Samish Indian Nation v. Dep’t of Licensing, No. 79733-6-I, slip. op. at
10
5 (Wash. Ct. App. Aug. 31, 2020), http://www.courts.wa.gov/opinions/
pdf/797336.pdf.
11 Webster's Third New International Dictionary 1143 (2002).
12 (Emphasis added.)
13 (Emphasis added.)
5
No. 80221-6-I/6
expression of legislative intent.”14 “‘[T]he plain meaning is . . . derived from
what the [l]egislature has said in its enactments, but that meaning is discerned
from all that the [l]egislature has said in the statute and related statutes which
disclose legislative intent about the provision in question.’”15
The child support statutes are expressly intended to divide the child
support obligation between parents in proportion to their income.16 As noted,
the child support statute directs the trial court to consider “[a]ll income and
resources” of the parents when determining child support.17 And maintenance
is a “recurrent benefit.” Consistent with the broad directive of the statute and
the dictionary definition of income, we conclude contemporaneously ordered
maintenance is income to the recipient and an expense to the payor for
purposes of the child support statute.
Contrary to Wilson, we do not read the child support statutes to promote
a presumption that parents contemporaneously ordered to pay maintenance are
likely to default. The statutory references to “maintenance paid” and
“maintenance received” logically apply to maintenance obligations from a prior
marriage or maintenance award where there is a history of payments actually
14State, Dep’t of Ecology v. Campbell & Gwinn, L.L.C., 146 Wn.2d 1, 9-
10, 43 P.3d 4 (2002) (citing State v. J.M., 144 Wn.2d 480, 28 P.3d 720 (2001)).
15 Magney v. Truc Pham, 195 Wn..2d 795, 803, 466 P.3d 1077 (2020)
(first and second alterations in original) (quoting id. at 11)).
16 RCW 26.19.001.
17 RCW 26.19.071(1).
6
No. 80221-6-I/7
made or missed. When the court makes a contemporaneous award of
maintenance between the parents in a pending dissolution, there is no such
payment history as to that contemporaneous award. Contemporaneously
ordered maintenance must be considered when determining income and net
income for purposes of the child support schedule.
Second, much of the parties’ argument on appeal, like the analysis in
Wilson,18 focuses upon perceived conflicts in the mechanics and timing of
determining maintenance and child support. The focus on mechanics is not
compelling.
The Wilson court concluded there was a conflict between the
maintenance and child support statutes requiring that the court first determine
child support. The maintenance statute, RCW 26.09.090(1)(a), recites that the
court is to consider “the financial resources of the party seeking
maintenance . . . including the extent to which a provision for support of a child
living with the party includes a sum for that party.” But contemporary child
support awards are for the benefit of the child.19 For purposes of the child
18 165 Wn. App. at 342.
19 See 20 SCOTT J. HORENSTEIN, W ASHINGTON PRACTICE: FAMILY AND
COMMUNITY PROPERTY LAW § 34:4, at 402 (2nd ed. 2015) (“[T]he amounts
established by the child support schedule are not intended as including support
for the child’s custodian.”) (citing ch. 26.19 RCW); see also Hammack v.
Hammack, 114 Wn. App. 805, 808, 60 P.3d 663 (2003) (parents hold child
support payments as trustees for the children) (citing In re Marriage of Pippins,
46 Wn. App. 805, 808, 732 P.2d 1005 (1987)).
7
No. 80221-6-I/8
support schedule, there is no portion of a child support award that includes a
sum for the parent. There is no need to consider child support awards under
the child support schedule as part of the calculus for determining the amount of
a maintenance award.
Further, the maintenance statute and the child support worksheets do
not present an insoluble accounting conundrum. Because contemporaneously
awarded maintenance must be included in the calculation of child support under
the child support schedule, the court must first determine any maintenance
award and then incorporate that amount into the child support calculation. In
practice, neither RCW 26.09.090(1)(a) nor RCW 26.19.071 preclude a trial
court from simultaneously looking at various scenarios for maintenance and
child support and running various worksheet alternatives before arriving at a
final decision.20 The trial judge is not beset with an endless loop of mechanical
computations.
Third, the approach taken in Wilson invites an inefficient use of judicial
resources. If a court ignores its contemporaneous maintenance order when
calculating initial child support payments, a party could seek a modification after
the first maintenance payment because the payment will have created a history
of maintenance “actually paid” and “actually received.” Income and net income
will necessarily have changed in the amount of the maintenance paid and
20 Consistent with this observation, the trial court on remand has the
discretion to determine whether to revisit the amount of the maintenance award.
8
No. 80221-6-I/9
received and, arguably, such a change may qualify for a child support
modification. Such an approach is not consistent with an efficient use of judicial
resources.
Finally, Bateman argues we should apply the rules of statutory
construction, including the legislature’s acquiescence in Wilson’s holding,
because the legislature has not amended RCW 26.19.071(3) or .071(5) since
that case was decided. But we apply the rules of statutory construction only
after determining there is an ambiguity in the statute,21 and we do not find
ambiguity here.
We disagree with the decision in Wilson. Contemporaneously awarded
maintenance must be considered when determining the income and net income
of parents for purposes of calculating child support under the child support
schedule.
II. Motion to Strike
Bateman’s brief includes her motion to strike Condie’s supplemental
clerk’s papers, consisting of Condie’s declaration filed in the superior court on
21In re Marriage of Ruff & Worthley, 198 Wn. App. 419, 425, 393 P.3d
859 (2017) (quoting Lake v. Woodcreek Homeowners Ass’n, 169 Wn.2d 516,
526, 243 P.3d 1283 (2010)). Even if we concluded the statutes were
ambiguous, acquiescence by legislative inaction is “‘not conclusive, but is
merely one factor to consider.’” Fast v. Kennewick Pub. Hosp. Dist. 187 Wn.2d
27, 39, 384 P.3d 232 (2016) (quoting Safeco Ins. Cos. v. Meyering, 102 Wn.2d
385, 392, 687 P.2d 195 (1984)).
9
No. 80221-6-I/10
January 8, 2020 and a declaration from Bateman filed on January 10, 2020,
both regarding a posttrial motion for contempt.
The only motions permitted in briefs are those which, if granted, would
preclude hearing the case on the merits.22 But because there is no indication
the trial court considered the materials on the motion for reconsideration and
they are of no significance to the issues on appeal, they merit no consideration.
III. Travel Limitation
Condie contends the trial court abused its discretion when it imposed a
travel limitation in the parenting plan. He argues this limitation was “not
statutorily authorized or reasonable on this record.”23
We review a trial court’s parenting plan for abuse of discretion.24 “The
trial court’s findings of fact are treated as verities on appeal, so long as they are
supported by substantial evidence.”25 “‘Substantial’ evidence is evidence
sufficient to persuade a fair-minded person of the truth of the matter asserted.”26
In the parenting plan, the court ordered that “neither parent shall take the
child out of the country, except to Canada and Mexico, until she reaches the
22 RAP 10.4(d).
23 Appellant’s Br. at 15.
24 In re Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014)
(citing In re Marriage of Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012)).
25 Id. (citing Katare, 175 Wn.2d at 35).
26 Id. (citing Katare, 175 Wn.2d at 35).
10
No. 80221-6-I/11
age of 13 years unless otherwise agreed by the parties in writing.” 27 Condie
contends this type of limitation “is permitted only upon a finding of harm to the
child under RCW 26.09.191.”28 But in the parenting plan, the court explained
the limitation was based on E.C.’s “sensory impairment and limited food
tolerance.”29 In the order denying reconsideration, the court further found “that
the child needs routine, stability, and structure due to her sensory
impairment.”30 Additionally, the court clarified it was “not imposing a travel
restriction based on [Condie’s] conduct. Rather, the court was imposing a
travel limitation because the child has special needs and the restriction was in
the best interest of the child.”31
In In re Marriage of Littlefield, our Supreme Court acknowledged the trial
court’s broad discretion when “developing and ordering a permanent parenting
plan.”32 Generally, the objectives of a parenting plan are to:
(a) Provide for the child’s physical care;
(b) Maintain the child’s emotional stability;
(c) Provide for the child’s changing needs as the child grows and
matures, in a way that minimizes the need for future modifications
to the permanent parenting plan;
27 CP at 223.
28 Appellant’s Br. at 15.
29 CP at 223.
30 CP at 346.
31 CP at 347.
32 133 Wn.2d 39, 51-52, 940 P.2d 1362 (1997).
11
No. 80221-6-I/12
(d) Set forth the authority and responsibilities of each parent with
respect to the child, consistent with the criteria in RCW 26.09.187
and 26.09.191;
(e) Minimize the child’s exposure to harmful parental conflict;
(f) Encourage the parents, where appropriate under
RCW 26.09.187 and 26.09.191, to meet their responsibilities to
their minor children through agreements in the permanent
parenting plan, rather than by relying on judicial intervention; and
(g) To otherwise protect the best interests of the child consistent
with RCW 26.09.002.[33]
The trial court’s discretion must be exercised in accordance with the
above objectives, the guidelines stated in RCW 26.09.187(3), the policy stated
in RCW 26.09.002, and the “limiting factors which require or permit restrictions
upon a parent’s actions or involvement with the child” stated in
RCW 26.09.191.34
Under RCW 26.09.191(1), the parenting plan must restrict mutual
decision making if a parent has engaged in willful abandonment, certain types
of abuse, or a history of domestic violence. Under RCW 26.09.191(2), a
parent’s residential time must be limited if the parent has engaged in conduct
listed in section (1) or has been convicted of a sex offense. Here, in the
parenting plan, the trial court determined neither parent had engaged in
“abandonment, neglect, child abuse, domestic violence, assault, or [a] sex
33 RCW 26.09.184.
34 Littlefield, 133 Wn.2d at 52.
12
No. 80221-6-I/13
offense,” and neither had any “[o]ther problems that may harm the child’s best
interests.”35 As a result, the court did not impose any restrictions on either
parent’s decision making.
The court may impose limitations under RCW 26.09.191(3) if:
A parent’s involvement or conduct may have an adverse effect on
the child's best interests, and the court may preclude or limit any
provisions of the parenting plan, if any of the following factors
exist: . . . Such other factors or conduct as the court expressly
finds adverse to the best interests of the child.[36]
In In re Marriage of Chandola, our Supreme Court acknowledged “[t]here
is some overlap between the trial court’s authority under RCW 26.09.187, to
establish the terms of the parenting plan, and its authority under
RCW 26.09.191(3), to ‘preclude or limit any provisions of the parenting plan.’”37
In Chandola, our Supreme Court expressly determined that “a court can
substantially restrict a parent’s contact with his or her child simply by
establishing a residential schedule pursuant to its discretion under
RCW 26.09.187.”38 But the court concluded the residential restrictions at issue
were not covered under the general provisions of section .187. Rather, the
court determined certain restrictions were available only under section .191.
Chandola did not involve a travel limitation like the one at issue in this case, but
35 CP at 216.
36 RCW 26.09.191(3)(g).
37 180 Wn.2d 632, 644, 327 P.3d 644 (2014).
38 Id.
13
No. 80221-6-I/14
Condie relies upon the court’s statement in Chandola that “restrictions on a
parent’s travel or conduct can be imposed only under RCW 26.09.191—not as
features of the parenting plan under RCW 26.09.187.”39 To support this
statement regarding travel limitations, the Chandola opinion cites In re Marriage
of Katare.40
In Katare, our Supreme Court considered a challenge to a parenting plan
provision that prohibited the father from taking the children out of the country.41
The trial court imposed the restriction but determined RCW 26.09.191(3) did not
apply. The restriction was based on evidence that the father had threatened to
abduct the children to India.
As to the parenting plan, the court stated:
Relevant to this case, RCW 26.09.191(3)(g) allows the trial court
to limit the terms of the parenting plan if it finds a parent’s conduct
is “adverse to the best interests of the child.” Imposing such
restrictions “require[s] more than the normal . . . hardships which
predictably result from a dissolution of marriage.”[42]
In Katare, the main issue was whether the restriction may be based on
evidence of the risk of abduction by the father. “[T]he trial court need not wait
for actual harm to accrue before imposing restrictions on visitation. ‘Rather, the
39 Id. at 645.
40 175 Wn.2d 23, 283 P.3d 546 (2012).
41 Id. at 31.
42 Id. at 36 (alteration in original) (quoting Littlefield, 133 Wn.2d at 55).
14
No. 80221-6-I/15
required showing is that a danger of . . . damage exists.’”43
Although in Chandola, our Supreme Court cited Katare for the broad
principle that restrictions on a parent’s travel may be imposed only under
RCW 26.09.191(3), this statement was dicta because Chandola did not involve
any travel restriction. And here, the limitation and surrounding circumstances
are different than Katare. First, the travel limitation in this case applies to both
parents; “neither parent shall take the child out of the country.” 44 In Katare, the
restriction applied only to the father. Second, the limitation in this case is based
on E.C.’s “sensory impairment and limited food tolerance.”45 In Katare, the
restriction was based on the risk of the father abducting the children to India.
Here, in the order denying Condie’s motion for reconsideration, the court stated
it was “not imposing a travel restriction based on [Condie’s] conduct.”46
Finally, RCW 26.09.184 lays out the required provisions of a parenting
plan. Specifically, RCW 26.09.184(6) provides the plan “shall include a
residential schedule which designates in which parent’s home each minor child
shall reside on given days of the year, including provision for holidays, birthdays
of family members, vacations, and other special occasions, consistent with the
43
Id. (second alteration in original) (quoting In re Marriage of Burrill, 113
Wn. App. 863, 872, 56 P.3d 993 (2002)).
44 CP at 223.
45 CP at 223.
46 CP at 347.
15
No. 80221-6-I/16
criteria in RCW 26.09.187 and 26.09.191.”47 Section .187(3)(a) provides, with
regard to residential provisions, “[t]he court shall make residential provisions for
each child which encourage each parent to maintain a loving, stable, and
nurturing relationship with the child, consistent with the child’s developmental
level and the family’s social and economic circumstances.” The statute further
provides the schedule must be consistent with RCW 26.09.191, but “[w]here the
limitations of RCW 26.09.191 are not dispositive, the court shall consider”
several factors, including “[t]he emotional needs and development level of the
child.”48
Unlike Katare, the travel limitation in this case was based on the general
objectives of a parenting plan identified in RCW 26.09.187. The limitation was
not based on issues concerning parental conduct identified in RCW 26.09.191.
The court did not abuse its discretion because it did not apply section .191. The
court had authority to impose such a limitation under section .187.
Condie argues that “[w]hile substantial evidence might support the trial
court’s findings that E.C. had ‘limited food tolerance’ and some ‘sensory
impairment,’ the trial court’s findings do not support any conclusion that the
travel restriction was reasonably calculated to prevent harm to E.C., or even in
her best interests.”49
47 (Emphasis added.)
48 RCW 26.09.187(3)(a)(iv).
49 Appellant’s Br. at 22.
16
No. 80221-6-I/17
Substantial evidence does support the court’s findings that E.C. had
sensory impairment and limited food tolerance. Bateman testified, around two
years old, E.C. stopped eating and started throwing tantrums. E.C. had six or
seven tantrums a day, lasting 20 minutes to one hour. Bateman testified E.C.
had a limited food repertoire and often refused meals. E.C. was in occupational
therapy to help with feeding and emotional regulation. Given this undisputed
evidence, the court did not abuse its discretion when it determined E.C.’s
sensory impairment and limited food tolerance rendered international travel
inappropriate until E.C. was older. The court found E.C. required “routine,
stability, and structure.”50 Condie challenges the logic of allowing travel to
Mexico and Canada but no other countries. But it was within the court’s
discretion to consider the extent that routine, stability, and structure may not be
as significantly impacted by travel to neighboring countries.
We conclude the court did not abuse its discretion when it limited both
parents from taking the child out of the country.
IV. Community Property Division
Condie argues the trial court abused its discretion when it awarded 60
percent of the community property to Bateman. Specifically, Condie contends
the trial court “failed to consider all the relevant factors under RCW 26.09.080”
50 CP at 346.
17
No. 80221-6-I/18
and “placed singular weight on Bateman’s economic circumstances.”51
As a general rule, trial courts have broad discretion to divide property
during a dissolution.52 When making a property disposition, the court must
consider “all relevant factors including, but not limited to (1) [t]he nature and
extent of the community property; (2) [t]he nature and extent of the separate
property; (3) [t]he duration of the marriage or domestic partnership; and (4) [t]he
economic circumstances of each spouse.”53 The court’s discretion is limited by
the requirement that any division must be “‘just and equitable after considering
all relevant factors.’”54
Here, the court ordered the parties to sell the home, valued at $975,000:
“The wife shall receive 75% of the net sales proceeds, and the husband shall
receive 25% of the net sales proceeds. The rest of the property shall be divided
so that the overall division of community property is 60% to the wife and 40% to
the husband.”55 To achieve the overall division of community property, the
court ordered the parties to use a brokerage account and, if necessary, a
transfer of ownership of Condie’s vested Google stock.
51 Appellant’s Br. at 15.
52 In re Marriage of Muhammad, 153 Wn.2d 795, 803, 108 P.3d 779
(2005).
53 RCW 26.09.080.
54 Muhammad, 153 Wn.2d at 803 (quoting RCW 26.09.080).
55 CP at 228.
18
No. 80221-6-I/19
Condie argues the trial court failed to consider the duration of the
marriage when distributing the community property. But in the court’s oral
ruling, the court stated it considered the duration of the marriage and
acknowledged Condie and Bateman were married for eight-and-one-half
years.56 Condie contends this recitation was inadequate, but he does not
provide any compelling authority or argument supporting his position.
Additionally, other than a general observation that disproportionate property
divisions tend to occur in longer term marriages, Condie does not address how
the duration of the marriage weighed against the court’s property division.
Condie also challenges the trial court’s failure to consider Condie’s
responsibility for creating martial assets. Condie cites In re Marriage of
Williams for the principle “that consideration of each party’s responsibility for
creating or dissipating marital assets is relevant to the just and equitable
distribution of property.”57 Condie asks this court to remand for the trial court to
consider this factor. But Condie fails to cite any authority requiring express
findings regarding which party created a particular martial asset.
Condie also argues the trial court misapplied the fourth factor from
RCW 26.09.080, “[t]he economic circumstances of each spouse.” Condie
claims the court’s emphasis on this factor was an abuse of discretion. In the
56 RP (Apr. 12, 2019) at 738.
57 84 Wn. App. 263, 270, 927 P.2d 679 (1996).
19
No. 80221-6-I/20
findings, the court determined “the driving factor in dividing the property is that
the husband is in a much better economic position than the wife.”58
The husband is a high-wage earner, making more than
$390,000 per year, and his ability to earn money will increase
going forward. The husband has the ability to save for retirement
and accumulate wealth over the course of his career. The
evidence is that he will either remain at Google or make a career
move that is more economically advantageous to him in the
future.
The wife has been a stay-at-home mother since 2010 in
order to raise the parties’ daughter. She currently attends school
at Bellevue College and plans to apply to the radiology program.
When she completes the radiology program, she will earn
approximately $65,000 per year. Her projected graduation date is
June 2022.[59]
Condie does not challenge the court’s findings concerning each party’s
income, but he argues “[n]either Condie nor the marriage bears any fault for
Bateman’s choice to get a college degree in journalism, but then to later pursue
work in a lower-wage field.”60 In other words, Condie argues it was an abuse of
discretion for the court to award Condie 60 percent of the community property
partially based on Bateman’s testimony about pursuing a professional degree
because she already had a college degree. Condie concedes this evidence,
along with evidence of his earning potential, supported an uneven distribution in
favor of Bateman, but he argues not to the extent of 60 percent of the
58 CP at 229.
59 Id.
60 Appellant’s Br. at 33.
20
No. 80221-6-I/21
community property. He argues 55 percent was the limit, but he fails to show
60 percent was an abuse of the court’s broad discretion.
The court’s award of 60 percent of the community property to Bateman
was an “equitable and just” distribution based on the court’s adequate
consideration of the relevant factors under RCW 26.09.080.61
V. Stock Award
Condie also contends the trial court effectively distributed Condie’s
unvested stock awards three times. Condie argues the court erred in
considering the stock “as property to be distributed to Bateman, as income
when considering maintenance, and as income when calculating child
support.”62 He argues the “court had to pick one or the other—the unvested
stock awards were either property to be distributed or income to support awards
of maintenance and child support transfer payments.”63
Condie cites In re Marriage of Barnett, but Barnett does not support
Condie’s argument.64 In Barnett, the major asset subject to distribution was a
salvage business. The business was valued at $200,000. In the decree, the
court awarded the wife a $100,000 lien against the business. The court also
awarded the wife maintenance of $500 per month. Division Three of this court
61 Williams, 84 Wn. App. at 270.
62 Appellant’s Br. at 15.
63 Id. at 37.
64 63 Wn. App. 385, 818 P.2d 1382 (1991).
21
No. 80221-6-I/22
determined the court erred because “the same property was distributed twice.” 65
This determination was based on the court’s review of the record, which
indicated the “maintenance award was an attempt to distribute Mrs. Barnett’s
share of the business.”66 “That distribution had, however, already been effected
by the $100,000 lien to Mrs. Barnett for one half of the value of the salvage
business.”67
Condie argues the trial court considered his unvested Google stock in
the first instance when it addressed child support and determined Condie’s
income was $397,000, “which includes his stock award from this past year.”68
As to the second instance, Condie points to the findings and conclusions and
the court’s categorization of Condie’s “unvested Class C Google stocks” as
separate property.69 At the same time, the court noted the unvested stocks
“have been considered in the overall division of assets.”70 As to maintenance,
Condie cites the court’s finding that he “has the resources to pay spousal
support” to argue the court improperly considered the unvested stock a third
time.71
65 Id. at 388.
66 Id.
67 Id.
68 RP (Apr. 12, 2019) at 748.
69 CP at 230.
70 Id.
71 CP at 231.
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No. 80221-6-I/23
In Barnett, the trial court explicitly distributed the $200,000 salvage
business, twice. The record indicated the court intended the property
distribution and maintenance award to compensate the wife for her share of the
business. Here, the trial court did not award any part of the unvested stocks to
Bateman. Rather, the court properly considered Condie’s unvested stocks
when analyzing the overall fairness of the property distribution and when
determining Condie’s ability to pay maintenance and child support.72 The court
did not repeatedly distribute the unvested stocks.
VI. Spousal Support
Condie argues the trial court abused its discretion when it awarded
maintenance because it “did not consider all the relevant factors.”73
We review a trial court’s award of maintenance for abuse of discretion.74
Under RCW 26.09.090, the amount and duration of maintenance is limited by
the requirement that the award be just, in light of the relevant factors. Those
72 See RCW 26.09.080(4) (“[T]he court shall, without regard to
misconduct, make such disposition of the property . . .as shall appear just and
equitable after considering all relevant factors including, but not limited to . . .
[t]he economic circumstances of each spouse.”); RCW 26.09.090(1)(f) (“The
maintenance order shall be in such amounts and for such periods of time as the
court deems just, without regard to misconduct, after considering all relevant
factors including but not limited to . . . [t]he ability of the spouse or domestic
partner from whom maintenance is sought to meet his or her needs and
financial obligations while meeting those of the spouse or domestic partner
seeking maintenance.”).
73 Appellant’s Br. at 15.
74 In re Marriage of Mueller, 140 Wn. App. 498, 510, 167 P.3d 568
(2007).
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No. 80221-6-I/24
factors include, but are not limited to (1) the financial resources of the party
seeking maintenance; (2) the time needed to acquire education necessary to
obtain employment; (3) the standard of living during the marriage; (4) the
duration of the marriage; (5) the age, physical and emotional condition, and
financial obligations of the spouse seeking maintenance; (6) and the ability of
the spouse from whom maintenance is sought to meet his or her needs and
obligations while providing the other spouse with maintenance.75 “Nothing in
RCW 26.09.060 requires the trial court to make specific factual findings on each
of the factors listed in RCW 26.09.090(1). The statute merely requires the court
to consider the listed factors.”76
Here, in findings and conclusions, the trial court stated it considered the
factors in RCW 26.09.090. The court ordered Condie to pay maintenance in
the amount of $6,500 a month, beginning April 1, 2019 and ending August
2022:
The court finds it is unlikely that the wife could secure employment
at this time that would provide sufficient compensation to support
her and her child. The court finds it appropriate that the wife is
advancing her education and looking for a career that will be
financially beneficial long-term. While the wife could be doing this
at a faster pace, she has been contending with a number of
stressors arising from the divorce such as single-parenting and
returning to school. The court finds it reasonable for the wife to
complete her education and graduate by June 2022.[77]
75 RCW 26.09.090.
76 Mansour v. Mansour, 126 Wn. App. 1, 16, 106 P.3d 768 (2004).
77 CP at 231.
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No. 80221-6-I/25
Condie acknowledges the court is not required to make specific factual
findings on each of the RCW 26.09.090 factors, but he argues the court failed to
conduct a fair consideration of the required factors. Specifically, Condie
contends the court failed to take into consideration “the property distribution to
Bateman, . . . that Bateman had no debt, or the relatively short duration of the
marriage.”78
However, Condie’s argument ignores the general rule “that maintenance
is not just a means of providing bare necessities, but rather a flexible tool by
which the parties’ standard of living may be equalized for an appropriate period
of time.”79 And the record shows the court adequately considered the relevant
factors. The findings and conclusions included several paragraphs of findings
addressing the property distribution. Although the court did not repeat these
facts in the subsequent spousal support section, we can infer the property
distribution was one of the factors that the court considered when it looked at
“the financial resources of the party seeking maintenance.”80 Similarly, without
repeating the finding in the maintenance section, the court separately found
Bateman had no debt. As to the duration of the marriage, in the court’s oral
ruling, the court acknowledged Condie and Bateman were married for eight-
and-one-half years.
78 Appellant’s Br. at 15.
79 Washburn v. Washburn, 101 Wn.2d 168, 179, 677 P.2d 152 (1984).
80 CP at 231.
25
No. 80221-6-I/26
Condie also contends that even if the court did consider the relevant
factors, “the record did not support such a high award.”81 In his motion for
reconsideration, Condie proposed $4,500 a month. Condie argues substantial
evidence does not support the court’s finding that Bateman was unlikely to
“‘secure employment at this time that would provide sufficient compensation to
support her and her child.’”82
At trial, evidence was presented Bateman had a degree in
communications. Bateman testified she previously worked as a preschool
instructor, earning $15 an hour. Starting in 2010, Bateman stayed home with
E.C. Bateman testified she planned to enroll in a radiology program. At the
time of trial, Bateman was completing her prerequisites before applying to the
program. She was expected to graduate in June 2022.
Condie focuses on Bateman’s communications degree and previous
work experience and argues Bateman failed to offer “expert testimony that a
person with her education and work experience was unqualified for any job but
minimum wage positions.”83 But he presents no compelling authority supporting
this proposition. He fails to show the court abused its discretion when it
accepted Bateman’s testimony. The court’s maintenance award did not
constitute an abuse of discretion.
81 Appellant’s Br. at 15.
82 Id. at 43 (quoting CP at 231).
83 Id.
26
No. 80221-6-I/27
VII. Child Support
Condie also challenges the court’s child support order.
We review the court’s child support decision for abuse of discretion.84
“The amount of child support rests in the sound discretion of the trial
court. This court will not substitute its own judgment for that of the trial court
where the record shows that the trial court considered all relevant factors and
the award is not unreasonable under the circumstances.”85
RCW 26.09.100(1) provides, “[A]fter considering all relevant factors . . .
the court shall order either or both parents owing a duty of support to any child
of the marriage or the domestic partnership dependent upon either or both
spouses or domestic partners to pay an amount determined under chapter
26.19 RCW.” Under RCW 26.19.075(1)(d), “[t]he court may deviate from the
standard calculation if the child spends a significant amount of time with the
parent who is obligated to make a support transfer payment.” If a party
requests a deviation, “[t]he court shall enter findings that specify reasons for
any deviation or any denial of a party’s request.”86 Even if reasons exist for
deviation, “the court shall exercise discretion in considering the extent to which
the factors would affect the support obligation.”87 Generally, deviations are the
84 In re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298 (2002).
85 Id.
86 RCW 26.19.075(3).
87 RCW 26.19.075(4).
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No. 80221-6-I/28
exception to the rule “and should be used only where it would be inequitable not
to do so.”88
Here, in the child support order, the court imputed Bateman’s monthly
income at $2,401.10. The court determined Condie’s monthly income was
$22,070.10. Based on the standard calculation, the court ordered Condie to
pay $1,404.15 a month in child support.89
Condie contends the court abused its discretion because it did not
consider the 50/50 residential schedule. Condie did not request a deviation
from the standard calculation until he moved for reconsideration. The court
denied his request.90 Although the court entered a 50/50 residential schedule,
Condie does not establish the court abused its discretion when it denied his
request for a deviation. Condie earned around ten times more than Bateman.
And under the circumstances, the standard award was not unreasonable.
VII. Fees on Appeal
Bateman requests fees on appeal under RCW 26.09.140 and RAP 18.1.
RCW 26.09.140 extends to attorney fees on appeal. RCW 26.09.140
88 Burch v. Burch, 81 Wn. App. 756, 761, 916 P.2d 443 (1996).
89 Of course, on remand, the amount of the child support award under
the child support schedule will be impacted by the consideration of the
contemporaneous maintenance award.
90 “[B]ecause (1) Petitioner did not sufficiently raise this issue at trial, and
(2) the court finds that Petitioner’s income far surpasses that of the
Respondent, the Respondent has limited financial resources, and the
Respondent needs the child support to adequately support her household.”
CP at 346.
28
No. 80221-6-I/29
authorizes an award of attorney fees on appeal based upon the parties’
financial resources.91 Bateman’s financial declaration establishes the dramatic
disparity in the parties’ financial resources. Condie has the ability to pay, and
Bateman has need. We grant Bateman’s request, in an amount to be
determined by a commissioner of this court upon compliance with RAP 18.1(d).
Therefore, we reverse the trial court’s failure to include
contemporaneously ordered maintenance when computing child support, affirm
as to all other issues, and remand for further proceedings consistent with this
opinion.
WE CONCUR:
91 In re Marriage of Raskob, 183 Wn. App. 503, 520, 334 P.3d 30 (2014).
29
No. 80221-6-I/30
In re Marriage of Condie, No. 80221-6-I
APPELWICK, J. (concurring) — I respectfully concur in the opinion. The
opinion correctly concludes the trial court erred by relying on In re Marriage of
Wilson, 165 Wn. App. 333, 267 P.3d 485 (2011) when it ordered Mr. Condie to
pay maintenance, but did not include that maintenance in Ms. Condie’s income
nor deduct it from his income when allocating the child support. I write
separately to elaborate on why Wilson was wrongly decided.
The relevant discussion from Wilson focuses on interpreting the
requirements of the child support statute and harmonizing it with the
maintenance statute:92
Walter also argues that the trial court erred by not
deducting the spousal maintenance payments that the court
ordered him to pay Pamela from his income and by not including it
as her income. Under former RCW 26.19.071(3)(q) (2008),
spousal “[m]aintenance actually received” is included in gross
income and, under former RCW 26.19.071(5)(f), “[c]ourt-ordered
[spousal] maintenance to the extent actually paid” is deducted
from a parent’s gross income. Chapter 26.19 RCW requires that
only maintenance “actually received” or “actually paid” be included
in or deducted from a parent’s gross income. Former RCW
26.19.071(3)(q), (5)(f).
Although former RCW 26.19.071’s plain language requires
a trial court to consider spousal maintenance “actually paid” and
“actually received” in calculating a parent’s income for purposes of
determining child support obligations, the statute is silent as to
whether a trial court must consider spousal maintenance that has
been ordered but has not yet been paid or received. Reading
92The references to the language of former statutes is of no consequence
to the analysis. The pertinent provisions were the same then and now.
30
No. 80221-6-I/31
former RCW 26.19.071 in harmony with the spousal maintenance
statute, RCW 26.09.090, we hold that the trial court did not abuse
its discretion by calculating Walter’s child support obligation
without first deducting his ordered spousal maintenance
obligation. See Alpine Lakes Prot. Soc’y v. Dep’t of Ecology, 135
Wn. App. 376, 390, 144 P.3d 385 (2006) (We harmonize the
provisions of an act to ensure its proper construction.).
RCW 26.09.090 states in part:
(1) In a proceeding for dissolution of marriage[,] . . .
the court may grant a maintenance order for either
spouse. . . . The maintenance order shall be in such
amounts and for such periods of time as the court
deems just, without regard to misconduct, after
considering all relevant factors including but not
limited to:
(a) The financial resources of the party
seeking maintenance, including separate or
community property apportioned to him or her, and
his or her ability to meet his or her needs
independently, including the extent to which a
provision for support of a child living with the party
includes a sum for that party.
(Emphasis added.)
RCW 26.09.090(1)(a) thus directs a trial court to calculate
the need for spousal maintenance only after it has determined the
parties’ child support obligations. This statutory directive requires
the trial court to consider the impact of child support on the ability
of the payor to pay maintenance, before ordering maintenance. It
does not require that the trial court, after already taking child
support into consideration, recalculate child support after a
maintenance amount is determined.
Walter provides no authority supporting his contention that
maintenance awarded contemporaneously with child support must
be included in each parent’s income calculation. We note that the
legislature articulates its intent to ensure that child support orders
“provide additional child support commensurate with the parents’
income.” RCW 26.19.001 (emphasis added). And the legislature
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No. 80221-6-I/32
also included the language “[m]aintenance actually received” and
“maintenance to the extent actually paid” in the calculation of the
parents’ income for purposes of child support. Former RCW
26.19.071(3)(q), (5)(f). The conflict between RCW
26.09.090(1)(a)’s direction and RCW 26.19.001, the purpose
statement of the child support statute, creates an ambiguity that
confronts the trial court in complying with worksheet directions
when setting child support. In this instance, we resolve the
ambiguity to hold that the trial court did not abuse its discretion in
not including the maintenance in the child support worksheets.
Id. at 341-44 (footnotes omitted) (alterations in original).
First, the Wilson court wrongly determined the two statutes needed to be
harmonized. It did so because it misapplied the language of RCW
26.09.090(1)(a) that resources be considered “including the extent to which a
provision for support of a child living with the party includes a sum for that party.”
This language implies that at some point child support awards in Washington
may have included some money to support the receiving parent. However, when
Wilson was decided, that language was an inoperative historical artifact.
Since 1988, child support is determined under chapter 26.19 RCW. It
requires the basic support amounts for each child be taken from the economic
table. RCW 26.19.020. That table is based on economic data on the costs of
raising children.93 It has no component or allowance for the support of a parent.
93
The economic table was recommended by the Washington State Child
Support Schedule Commission in its Report to the Legislature November 1987.
The report describes the basis for determining the amount of support:
Because the model used to construct the schedule in this report is
an Income Shares Model, the proportion of total parental income that is
to [be] used as the basis for a schedule is extremely important. An
estimate of how much families with similar incomes spend on their
children is required. This information would allow the computation of the
32
No. 80221-6-I/33
The language of RCW 26.09.090 that the Wilson court sought to harmonize
with the child support statute had no possible application in the initial ordering of
maintenance in 2011, because the child support ordered could not include an
amount for a parent. See RCW 26.19.020. That fact remains true today.
Ignoring that fact led the court to erroneously conclude that maintenance must
be determined before child support.
Second, the child support statute is an income shares model. That is, it
allocates the support obligation for the children of the parties between the
parents in proportion to their net incomes. That is true in this case. This issue
is not about the adequacy of support, rather it is about the correct allocation of
support between the parents.94
average proportion (percentage) of income spent on children by families
in different income classes. That figure becomes the basis for the child
support economic table.
Data on family expenditures is unavailable for the state of
Washington alone. Furthermore, it is prohibitively costly to collect a
reliable data set for the state. The federal government, however, has
updated and revised the 1972-73 Consumer Expenditures Survey (CES)
to 1986. This revision has included adjustments for cost of living
changes, real income changes and demographic change. It is regarded
as the most reliable survey of its type now available and has been used
by both the federal government and other states as the basis for child
support schedules.
Id. at 12.
94 The combined net income of the parents exceeded the economic
table’s top amount: Mother $2,401; Father $24,070. Yet, Ms. Condie did not
request the trial court to exercise the discretion authorized in RCW 26.19.020 to
set support in an amount above that in the economic table.
33
No. 80221-6-I/34
The Wilson court acknowledged the sections of the child support statute
it cited required that court-ordered maintenance is income to the receiving
spouse and a deduction from income for the paying spouse. Wilson, 165 Wn.
App. at 341. But, it observed that the language referenced maintenance “‘to the
extent actually paid’” and “‘actually received.’” Id. at 341-42. The court then
concluded that the statute was silent on whether the court must consider
maintenance which was ordered contemporaneously with child support, but had
not yet been paid. Id. at 342. This too was error.
The child support schedule is to be applied in “all proceedings in which
child support is determined or modified.” RCW 26.19.035(1)(c). The legislature
clearly stated its intent in enacting the child support schedule:
The legislature intends, in establishing a child support
schedule, to insure that child support orders are adequate to meet
a child’s basic needs and to provide additional child support
commensurate with the parents’ income, resources, and standard
of living. The legislature also intends that the child support
obligation should be equitably apportioned between the parents.
The legislature finds that these goals will be best achieved
by the adoption and use of a statewide child support schedule.
Use of a statewide schedule will benefit children and their parents
by:
(1) Increasing the adequacy of child support orders through
the use of economic data as the basis for establishing the child
support schedule;
(2) Increasing the equity of child support orders by
providing for comparable orders in cases with similar
circumstances; and
34
No. 80221-6-I/35
(3) Reducing the adversarial nature of the proceedings by
increasing voluntary settlements as a result of the greater
predictability achieved by a uniform statewide child support
schedule.
RCW 26.19.001.
The stated statutory intent is to apportion child support between parents
based on their income. The maintenance adjustment to income was not in the
original child support schedule proposed by the Washington Child Support
Commission.95 The change was made in 1991. LAWS OF 1991, 1st Spec.
Sess., ch. 28, § 5; RCW 26.19.071. The change treated maintenance for child
support purposes in the same manner it was treated for federal income tax
purposes.96 The maintenance adjustment was limited in two ways that were
95 Washington State Child Support Commission Report to the
Legislature, November 1987, at 15.
96 Alimony is deductible by the payer, and the recipient must include it in
income. Although this discussion generally is written for the payer of the
alimony, the recipient also can use the information to determine whether an
amount received is alimony.
The following rules for alimony apply to payments under divorce or
separation instruments executed after 1984:
A payment to or for a spouse under a divorce or separation
instrument is alimony if the spouses don’t file a joint return with each
other and all the following requirements are met.
The payment is in cash.
The instrument doesn’t designate the payment as not
alimony.
The spouses aren’t members of the same household at the
time the payments are made. This requirement applies
only if the spouses are legally separated under a decree of
divorce or separate maintenance.
35
No. 80221-6-I/36
subjected to documentation. First, it had to be court-ordered.97 Second, it was
available only to the extent the order was followed and the maintenance paid.
RCW 26.19.071(5)(f), (3)(q). A maintenance obligation, if any, is determined at
the time of dissolution. RCW 26.09.090. It is later modifiable upon a
substantial change of circumstances. RCW 26.09.170. Failure to include the
maintenance transfers in the income calculation for determining child support is
contrary to the equitable apportionment and uniformity purposes expressly
stated in the statute.
There is a significant difference between failure to pay maintenance as
ordered, and not having a history of maintenance payments because the order
has not yet gone into effect. The Wilson court failed to recognize this
distinction. Because of that failure, it imputed to the legislature a silence as to
whether maintenance was an income adjustment in setting the initial orders.
Properly read, the statute is not silent as to whether the maintenance
There is no liability to make any payment (in cash or
property) after the death of the recipient spouse.
The payment isn’t treated as child support.
U.S. Internal Revenue Serv., Pub. 504, Divorced or Separated Individuals
(2019), (after table 4) https://www.irs.gov/publications/p504#en_US_2019_
publink1000175987 [https://perma.cc/8MZ5-HW68].
“Amounts paid as alimony or separate maintenance payments under a
divorce or separation instrument executed after 2018 won’t be deductible by the
payer.” Id. (“Reminders” section).
97The court obviously knows of the maintenance obligation it is
imposing, but some cases involve a claim of a maintenance obligations from a
prior marriage and will require proof of such an order.
36
No. 80221-6-I/37
adjustment must be made when the initial maintenance and child support
orders are entered. Properly read the maintenance adjustment must be
applied, absent evidence that the obligor has failed to pay according to the
court order under which they claim the right to the deduction from their income.
Necessarily, maintenance must be determined before child support.
When the legislature enacts a statute, it does so with the expectation that
it will be obeyed. When the trial court enters a decree, property division,
maintenance order, and order of child support, the court has an expectation that
the orders will be followed.
Neither the trial court nor the Court of Appeals expressed fear that Mr.
Wilson would not obey the property and debt divisions in the decree or would
not pay child support. Wilson, 165 Wn. App. 341-42. Yet, while both
maintenance and child support are enforceable under chapter 26.18 RCW,
Child Support Enforcement, and chapter 26.21A RCW, Uniform Interstate
Family Support Act, both courts presumed Mr. Wilson would not pay his
ordered maintenance. Wilson, 165 Wn. App. at 342. The orders in effect
required him to prove compliance with the maintenance order prior to receiving
the maintenance adjustment in the child support order. If that was the trial
court’s expectation, then when Mr. Wilson made one or more payments it
certainly would represent a substantial change in circumstances not anticipated
at the time of the child support order. This substantial change in circumstances
37
No. 80221-6-I/38
would allow Mr. Wilson to begin a child support modification, and hope the trial
court would apply the maintenance adjustment in recomputing child support.
But, child support cannot be modified retroactively, so Mr. Wilson could not
recoup the statutory benefits he lost under the initial order. RCW
26.09.170(1)(a). The Wilson interpretation of the statute creates an absurd
result, nonuniformity and unnecessary re-litigation of the issue. We will not
interpret a statute in an absurd manner. Kilian v. Atkinson, 147 Wn.2d 16, 21,
50 P.3d 638 (2002) (The court must avoid constructions that yield unlikely,
absurd, or strained consequences.).
This issue presents infrequently. If the maintenance is awarded for less
than three years, it is highly unlikely this issue would be heard before the
Supreme Court before it was moot. And, if this is the sole issue in a case, the
recoverable economic interests at stake diminish over time and would seldom
merit the expense of an appeal to the Supreme Court. But, the fact that review
of the issue and of the Wilson opinion is illusive does not diminish the
importance of correct application of the statute in the first place. It makes it
more important to be correct initially.
Ms. Condie suggests that we apply rules of construction such that the
failure of the legislature to amend the statute in light of the Wilson opinion
suggests legislative agreement.98 First, there was no error or ambiguity in the
See, e.g., Health Pros Nw., Inc. v. Dep’t of Corr., 10 Wn. App. 2d 605,
98
616, 449 P.3d 303 (2019) (court presumes legislature aware of judicial
38
No. 80221-6-I/39
statute that needed to be changed. The problems identified in Wilson are
confined to the reasoning errors of the opinion. Second, even if the particular
rule of construction was applicable, the invocation of that rule requires caution
and a sense of proportion. As observed by Justice Finley,
The essence of the matter is the fact that the rules or maxims of
statutory interpretation should be recognized and treated as
nothing more than aids or tools which may or may not be pertinent
or useful in determining the meaning of statutory language. There
is nothing mandatory about the applicability of a rule of statutory
interpretation, i.e., nothing compelling in an ultimate sense in
determining the meaning of statutory language. . . . Actually,
today it should be clear, without citation of authority and without
prolonged explanation, that every statutory maxim or rule of
interpretation has its countervailing or opposite maxim or rule.
Schneider v. Forcier, 67 Wn.2d 161, 167-68, 406 P.2d 935 (1965) (Finley, J.
dissenting). A few thousand bills are introduced each biennium. Typically, only
a few hundred ever become law. The volume of bills and the magnitude of
issues before the legislature makes the presumption, that “they” are aware of
every judicial pronouncement, a very thin fiction. Legislation advances because
of a sense of urgency. Bills require advocates in order to obtain legislative
attention and action. The infrequency of the erroneous application of Wilson
has not led to an urgent advocacy for change. The presumption of legislative
acquiescence is not appropriate on an issue of this relatively limited magnitude.
interpretations of statutes and assumes failure to amend indicates legislative
acquiescence in court’s interpretation) (citing City of Federal Way v. Koenig,
167 Wn.2d 341, 348, 217 P.3d 1172 (2009)), review denied, 194 Wn.2d 1025
(2020).
39
No. 80221-6-I/40
The issue is significant to the parties. But, typically the costs of appeal to
the Supreme Court, let alone the legislature, deter the parties from availing
themselves of a remedy.
With this opinion standing in conflict with Wilson, the Supreme Court has
an opportunity to correct the error.
40