In Re The Marriage Of: Zeleke Kassahun v. Fanaye Ashagari

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Marriage of o. 75496-3-1 FANAYE ASHAGARI, IVISION ONE Respondent, NPUBL1SHED OPINION and

ZELEKE KASSAHUN,

Appellant. ILED: December 11,2017

TRICKEY, J. — This is Zeleke Kassah n's third appeal related to the dissolution of his marriage to Fanaye Ashagar. . This court decided Kassahun's

first appeal in March 2015. We subseque tly resolved his second appeal challenging the trial court's dissolution order a d findings on remand. Kassahun now appeals the trial court's denial of his moti n to modify his child support and maintenance obligations.¹ Finding no error, we affirm.

FACTS

This court previously,stated the relevant nderlying facts as follows:

[Kassahun and Ashagari were married in January 1998.] The parties have three children. Ashagari did not return to work outside the home after their first child was born . . .. . . ..

[The parties] purchased a taxicab lice se in 2000. In 2002, they acquired the Abyssinia Market . . .. Ov r the years they were able

1 For clarity, we refer to the trial court that presided ver the dissolution proceeding as the dissolution court, and to the trial court that preside over the modification proceeding as the modification court.

No. 75496-3-1/ 2

to save a large sum of money. In 201 , unbeknown to Ashagari, Kassahun withdrew $187,000 from th joint bank account and invested $180,000 in'another taxicab lic nse.

Kassahun paid himself a modest sal ry from his work at the Abyssinia Market. His tax returns reflect d the paychecks he wrote to himself from the business account as ell as his income from one of the taxicabs. He reported an income rom the taxicab licenses of less than $1,000 a year. But at trial, K ssahun claimed to receive $1,000 each month per taxicab, paid in cash. He provided no documented proof of this income and St ted that he does not keep records of the income.[21

In 2011, Kassahun and Ashagari separa ed. The trial court concluded that Kassahun's gross monthly income was $13,750. The dissolution court awarded Ashagari $1,347.72 per month in child su11port and $5,000 per month in maintenance.

Kassahun appealed, and this court f und that the dissolution court's explanation of its method for determining Kass hun's gross monthly income was unclear. This court remanded for further findin s on the calculation of Kassahun's gross monthly income and recalculation of Ka sahun's maintenance and support obligations, if necessary.

On remand, the dissolution court revi ed its calculation of Kassahun's monthly income to $12,750. The dissolution co rt also changed the method it used to compute Kassahun's taxes so that his tax Ii bility decreased by approximately $1,000. This increased his net monthly income o $5,399.52. The dissolution court did not change Kassahun's $5,000 per month aintenance obligation, but adjusted his child support obligation to $1,696 per mont

2In re Marriage of Ashagari and Kassahun, not-d at 186 Wn. App. 1033, 2015 WL 1307124, at *1-3, review denied, 184 Wn.2d 1012, 360 P.3d 818(2015).

No. 75496-3-1 /3

Following the dissolution trial, Kassahun filed a petition for modification of child support and maintenance, arguing that th order of child support worked a severe economic hardship on him and that there was a substantial change in circumstances meriting modification because his income had been significantly reduced.

The modification court heard evidence a out Kassahun's financial situation over four days in May 2016. Kassahun's 2011 income tax return showed that he reported $36,000 in W-2 wages and $755 of •usiness income from his taxicab licenses. After deductions and expenses, his r ported taxable income for the year was $4,479.

Kassahun's 2013 income tax return sho ed that he reported $33,000 in W-2 wages, $4,240 in ordinary dividends, and $ ,654 in business income from his taxicab licenses.3 After his claimed expenses a d deductions, his reported taxable income was $0.

Kassahun's 2014 income tax return sho ed that he reported $39,000 in W-2 wages, $3,357 in ordinary dividends, and $ ,047 of business income from his taxicabs for a total of $50,404. After his cl imed deductions and expenses, including alimony, Kassahun's claimed adjuste gross income was -$19,265.

Kassahun did not file his 2015 taxes. In August 2014, Kassahun filed a financial declaration, which'stated that his total onthly net income was -1,226.50. He declared that his total gross income, consis ing only of wages, was $3,824.50. He declared that his total monthly deductions were $5,051.00, including spousal

3 Kassahun describes his claimed dividend as 'moneys he had borrowed from his business which he could not repay." Br. of Appellant at 10.

No. 75496-3-1 /4 maintenance payments.

In a financial declaration filed on May 9, 016, Kassahun declared that his gross monthly income was $5,676.08. He d clared that he had $2,787.90 in monthly deductions, for a mOnthly net income o $2,888.18.

At the modification trial, Kassahun testifi d that he had been forced to take out a $50,000 loan from Taketu Truneh to meet his support obligations and to pay his personal expenses and attorney fees. Kas ahun said that he was able to pay his maintenance obligation until June 2015, when he was unable to borrow more money. But he also testified that he continue to borrow money from his cousin Aklilu Mekuria to pay his child support obligati°

After Kassahun stopped paying mai tenance, Ashagari had to stop attending classes to find a job. Ashagari atte pted to find full-time employment and was rejected. She eventually obtained work study position at Shoreline Community College that pays $584.85 per mon h. At one point, Ashagari received public assistance in the form of food stamps. This assistance stopped after the State garnished $2,000 from Kassahun's pers nal account for maintenance.

After the garnishment, Kassahun ope ed a new business account into which he deposits his wages and taxicab in me to avoid garnishment by the State. Kassahun paid his rent, taxicab insuran e, utilities, and other expenses out of this new business account.

Kassahun testified that his taxicab licen es did not have any value because of changes in the industry, his inability to reta n drivers, and his inability to lease the licenses. John Megow from the City of Seattle testified that the taxicab licenses *5 No. 75496-3-1/5 were still valuable and in high demand despite decreases in value over the prior two years.

Evidence presented at the modification t ial showed that Kassahun made a profit from the Abyssinia Market and invested t e earnings back into the business. Also, Kassahun wrote checks from his busines account that he either cashed or used to pay for personal expenses. He used usiness credit cards for personal expenses and legal fees. Kassahun did not re ort these expenditures as income on his personal income tax returns.4 Further, t trial Kassahun disclosed for the first time that he had a Visa credit card thro gh BMW. He used this card for personal expenses.

After filing his petition for modification, Kassahun moved for an order to show cause regarding language in the di solution decree that made his maintenance obligation "'non-modifiable.'"6 he dissolution court struck the language because it "was not part of the court' oral ruling and is not a ruling the court has discretion to make."6 Kassahun has ot appealed that order.

In its final order and findings, the odification court did not change Kassahun's monthly child support obligation.

Kassahun appeals.

4 See, e.o., Ex. 67(2012 personal income tax retu n); Ex. 69(2012 personal income tax return, listing an ordinary dividend); Ex.74(2013 pe sonal income tax return); Ex. 77(2014 personal income tax return, listing an ordinary divid nd). After the parties' dissolution trial, Kassahun filed amendments to his 2012 and 013 personal income tax returns to decrease the retained earnings listed in his corpor te tax returns. 5 Clerk's Papers(CP) at 160-61. 6 CP at 163.

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ANALYSIS

Striking of Non-Modificati n Language

Kassahun argues that the dissolution couIrt erred when it failed to reconsider the amount and duration of Ashagari's maintenance award after the "non-modification" language was stricken from the dissolution decree. Because the dissolution court reconsidered Ashagari's maintenance award on remand after it struck the non-modification language, we disagree.

Unless a separation contract so provide a maintenance or support decree may be modified only upon a showing of a su stantial change in circumstances. RCW 26.09.170(1)(b); RCVV 26.09.070(7).

In In re Marriage of Short, the trial court rdered the husband to pay the wife $750 per month in maintenance payments for 2 months. 71 Wn. App. 426, 433, 859 P.2d 636(1993), aff'd in part, rev'd in part, 125 Wn.2d 865, 876, 890 P.2d 12 (1995). The trial court gave the husband "lea e to pay this maintenance in one accelerated lump sum if he so chose," which e did. Short, 71 Wn. App. at 433. The trial court then "determined that the spo sal maintenance award had been fully, finally and completely satisfied and rovided in the decree that the maintenance award would be nonmodifiable by either party for any reason." Short, 71 Wn. App. at 433.

The Court of Appeals reversed, and the upreme Court affirmed in relevant part. In re Marriage of Short, 125 Wn.2d 865, 876, 890 P.2d 12 (1995). The Supreme Court held that"whenever a nonmodi iable maintenance award provision is stricken from a decree of dissolution, he amount and duration of the *7 No. 75496-3-1 /7 maintenance award must be reconsidered" a matter of law. Short, 125 Wn.2d at 876.

Here, the dissolution court entered the issolution decree, which included the "non-modifiable" language, on November 1 , 2013.7 Kassahun filed his notice of appeal on December 12, 2013. Kassahun flu d his motion for an order to show cause on November 14, 2014. On February 2015, the dissolution court ruled that the language should be stricken. A ye r later, following Kassahun's first appeal in this case, the dissolution court entere its order and findings on remand on March 17, 2016. It declined to alter its deter 'nation that Kassahun should pay $5,000 per month in maintenance.

The dissolution court's maintenance aw rd has been reconsidered since it struck the "non-modifiable", language. Followi g Kassahun's first appeal in this case, this court directed the dissolution court o recalculate Kassahun's income and revisit his child support and maintenan e obligations, if necessary. The dissolution court recalculated Kassahun's inco e, and explicitly declined to modify its maintenance award. Thus, the dissolution ourt reconsidered its maintenance award following its striking of the "non-modi !able" language in the dissolution decree.

Substantial Chan se in Circumstances

Kassahun argues that the modification ourt abused its discretion when it found that there had been no substantial hange in circumstances meriting modification of his support obligations. Specifi ally, he argues that the modification 7 Ex. 23. *8 No. 75496-3-1/ 8 court's findings of fact were not supported by su s stantial evidence and that it erred when it did not explicitly calculate his current gr ss monthly income.

Findings of Fact

Kassahun argues that several of the modification court's findings of fact were not supported by substantial evidence. We examine each of Kassahun's challenges in turn.

"Where the trial court has weighed the evidence, the reviewing court's role is simply to determine whether substantial evi ence supports the findings of fact and, if so, whether the findings in turn support t e trial court's conclusions of law." In re Marriage of Wilson, 165 Wn. App. 33, 340, 267 P.3d 485 (2011). "Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the declared premise." In re Marr a e of Hall, 103 Wn.2d 236, 246, 692 P.2d 175 (1984).

"An appellate court should 'not substitut [its] judgment for the trial court's, ; weigh the evidence, or adjudge witness credibi ity." Wilson, 165 Wn. App. at 340

(alteration in original) (quoting In re Marriage if Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999)).

First, Kassahun contends that evidei ce at the modification trial was insufficient to show that he,has continued to tae approximately $11,000 from his business to pay for personal expenses, a found by the dissolution court. Assuming that Kassahun is challenging the riodification court's finding that he *9 No. 75496-3-1 / 9 "routinely uses his business account for per onal expenses,"8 this finding is supported by substantial evidence.

At trial, Kassahun testified that he used usiness funds and business credit cards to pay for personal expenses.° Although e claimed that he disclosed these amounts when he claimed an ordinary dividen of $3,357 on his 2014 personal income tax return, he testified to payments fro his business account to pay for personal expenses that exceeded this claimed ividend in 2014.10

Kassahun stated that he stopped us ng business funds for personal expenses in late 2015 or early 2016, and that he paid personal expenses out of the new business account he opened to avoi garnishment. But his argument largely relies on his self-serving testimony. Fu her, he testified that he used cash from the business without keeping a ledger a d that his statements for his new business account did not itemize where the deposits into it originated. The modification court did not find Kassahun's testimony at trial credible, which this court will not disturb on appeal." Therefore, we conclude that the modification

8 CP at 456. 9 See, RP (May 18, 2016) at 422-423 (des ribing checks written from business account to pay for personal credit card); RP (Ma 17, 2016) at 279-80 (use of Costco American Express credit card to pay attorney fees) 10 See Ex. 77; cf. Ex. 76(corporate tax return lists v lue as cash distribution, not dividend); RP (May 18, 2016) at 422-23; see, e.q., Ex. 61 (c eck for $1,200 to himself in January, check for $1,200 to pay personal credit card in Jani. ary, check for $340 to pay refrigerator technician in February, check for $1,200 to pay p rsonal credit card in February, check for $1,200 to pay personal credit card in March). 11 Kassahun also challenges Ashagari's statem nts during closing argument at the modification trial that Kassahun used funds from hi business accounts to pay for personal expenses. Ashagari's statements during closing rgument were based on the evidence presented at trial, Kassahun did not object to the , and they are not a finding of fact by the modification court. We reject Kassahun's chall nge.

No. 75496-3-1/10 court's finding that Kassahun uses business a counts for personal expenses is supported by substantial evidence.

Second, Kassahun argues that substan !al evidence does not support the 1 modification court's finding that changes in the ar-for-hire industry were known at

the time of trial and evidence of those change could have been offered. At the modification trial, Emanuel Jonjanel, a taxicab river, testified that he was aware of ride-sharing services such as Uber and Lyft t least three years prior, and had been solicited to drive for them. Jonjanel's test mony is sufficient to establish that it was foreseeable in 2013, the year of the dissolution trial, that ride-sharing services could have an impact on the taxicab in ustry. Thus, we conclude that the trial court's finding that the Parties could have ffered evidence about how market forces could impact the taxicab industry at the dissolution trial was supported by substantial evidence.

Third, Kassahun argues that the trial co It's finding in its order and findings on remand that he did not require "'additional 1 ans to meet his child support and maintenance obligations" was not supported y substantial evidence.12 The trial court's order and findings on remand is not at issue in the present appea1.13 We decline to address this argument. RAP 10.3(a (4).

12Br. of Appellant's at 19(quoting CP at 1326). 13 See Notice of Appeal (appealing final order a d findings on petition to modify child support and maintenance order, entered on M y 26, 2016, and the order denying respondent's motion for reconsideration, entered o June 7, 2016); see also In re Marriage of Ashagari and Kassahun, noted at 199 Wn. App. 1034, 2017 WL 2634197.

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Substantial Change in Circumstances

Kassahun argues that the trial court ab sed its discretion when it did not calculate his current gross , monthly income t determine whether a substantial change in circumstances had occurred. ecause the trial court properly determined that Kassahun' did not demonstr te that a substantial change of circumstances had occurred based on the evidence presented at trial, we disagree.

Generally,"the provisions of any decree especting maintenance or support may be modified . . . only upon a sho ing of a substantial change in circumstances." RCW 26.09.170(1)(b).

In a petition to modify a maintenance a ard or child support obligation, the moving party must show a substantial change I circumstances that the parties did not contemplate at the time of the dissolution ecree. In re Marriage of Spreen, 107 Wn. App. 341, 346, 28 P.3d 769 (2001); I re Marria e of Scanlon, 109 Wn. App. 167, 173, 34 P.3d 877(2001). "The phra e 'change in circumstances' refers to the financial ability of the obligor spouse to ay vis-a-vis the necessities of the other spouse." In re Marriage of Ochsner, 47 Wn. App. 520, 524, 736 P.2d 292 (1987).

A party's support obligation must be ba ed on the current circumstances of the parties. Scanlon, 109 Wn. App. at 178. But generally a party may not argue that a material change of circumstances has ccurred if the underlying condition or situation could have been brought to the aft ntion of the court at a prior hearing. Heuchan v. Heuchan, 38 Wn.2d 207, 214-15, 28 P.2d 470 (1951). *12 No. 75496-3-1 / 12

"All income and resources of each parent's household shall be disclosed and considered by the court when the court determines the child support obligation of each parent." RCW 26.19.071(1). Offered income and deductions must be verified by tax returns for the prior two years nd current paystubs, and "[o]ther sufficient verification" is required to verify "inc me and deductions which do not appear on tax returns or paystubs." RCW 26.19.071(2). A court may not "essentially guess[]" a party's income if does nthi have either "statutorily mandated verification. ..[or] adequate independent recorlds to determine it." In re Marriage of Bucklin, 70 Wn. App. 837, 841, 855 P.2d 11 7(1993).

Absent an abuse of discretion, this co rt will not reverse a trial court's decision regarding whether a change in circ mstances justifies a modification. Spreen, 107 Wn. App. at 346. A trial court abuses its discretion if its decision "is manifestly unreasonable, based on untenable grounds, or granted for untenable reasons." In re Marriage of Schumacher, 100 Wn. App. 208, 211, 997 P.2d 399 (2000).

Here, Kassahun bore the burden at the modification trial of proving that a substantial change in circumstances had occurred. He has not carried this burden.

The modification court considered the tax returns Kassahun submitted, which showed that he reported taxable incom of $4,479 in 2011 and $0 in 2013, and an adjusted gross income of -$19,265 ith $0 of taxable income in 2014. Kassahun declared that he had a net monthly i come of -$1,226.50 in August 2014 and of $2,888.18 in May 2016. Kassahun tes ified about his income, reliance on loans, and the value of his taxicab licenses. *13 No. 75496-3-1/ 13

The modification court noted that mu h of Kassahun's testimony and

argument focused on his allegation that the "t !al court wrongly attributed to him i more income than he actually has."14 T e modification court found that

Kassahun's testimony and, evidence was not credible, and its findings closely paralleled those of the dissolution court in its rder and findings on remand. In light of its consideration of Kassahun's testi ony and documentary evidence regarding the alleged substantial change in cir1umstances, the modification court did not abuse its discretion when it determined that Kassahun had not carried his burden of demonstrating a substantial change. 5

Kassahun relies on In re Marria e of Bucklin to argue that the modification court was required to calculate his present inc me in order to determine whether a substantial change in circumstances had oc urred. 70 Wn. App. 837, 855 P.2d 1197 (1993). In Bucklin, Russell Bucklin ar ued that a substantial change in circumstances had occurred because one of is real estate holdings had been destroyed by a hurricane. 70 Wn. App. at 839. Bucklin's evidence of his current income was based on his Own testimony and andwritten notes. Bucklin, 70 Wn. App. at 839. The trial court explicitly found tha Bucklin had neither complied with the statutory requirements for verifying his income nor presented adequate independent records to determine it, but still gr nted his motion to modify his child

14CP at 456. 15 Kassahun also argues that his claimed loss of income from his taxicab licenses constituted a substantial change in circumstances Br. of Appellant at 26-27. Because we have concluded that the modification court's finding that the changes in the taxicab industry were known at the time of trial, this aIlege3J substantial change in circumstances was not unforeseen at the , time of the original award and is not a valid basis for modification. See Spreen, 107 Wn. App. at 346; Scanlon, 109 Wn. App. at 173.

No. 75496-3-1/ 14 support obligation. Bucklin, 70 Wn. App. at 39, 841. The Court of Appeals reversed the trial court's order reducing Bucklin s child support obligation, holding that the trial court abused its discretion by granting his motion to modify after "essentially guessing" at his income. Bucklin, 70 Wn. App. at 841-42.

Kassahun's reliance On Bucklin is mispl ced. Bucklin held that a trial court abuses its discretion when it grants a party's motion to modify its child support obligation without having any valid evidentiary asis for doing so. Bucklin did not hold that a modification court had to provide n explicit calculation of a party's current gross monthly income before denying a motion to modify. Moreover, here, the modification court was not obligated to atte pt to calculate Kassahun's income because he did not submit credible evidenc of his current income or of any substantial change in circumstances.

Challenges to Dissolution Court's Findin

Kassahun argues that there has een a substantial change in circumstances because the record ofthe modifi ation trial does not support several of the dissolution court's findings. Specificall , he argues that the record of the modification trial does not show that he was a le to continue to save money, had access to substantial amounts of cash, or that he had expenses of approximately $8,700, as found by the dissolution court.

The moving party in a modification proc eding bears the burden of proving a substantial change in circumstances that as unforeseen at the time of the original award. Spreen, 107 Wn. App. at 346; canlon, 109 Wn. App. at 173. *15 No. 75496-3-1/ 15

Here, Kassahun is arguing that he no longer has the saving ability, access to cash, or expenses that the dissolution court f und. Thus, he bore the burden of proving a substantial chat-6e in circumstances in each of these categories at the modification trial. He has not offered doc irnentary evidence of any such changes.16 His argument that the modificatioi trial record does not support the dissolution court's findings is unpersuasive, an we conclude that he has failed to carry his burden.

Severe Economic Hardship

Kassahun argues that, even if no subst ntial change in circumstances has occurred, his child support obligation works a evere economic hardship on him and must be modified. Because the record does not show that Kassahun's child support obligation works a severe economic hardship on him, we disagree.

"An order of child support may be mod fied one year or more after it has been entered without a showing of substantiall changed circumstances:(a) If the order in practice works a severe economic ha dship on either party or the child." RCW 26.09.170(6)(a).

This court "reviews a modification of ch Id support for abuse of discretion." Schumacher, 100 Wn. App. at 211.

Here, Kassahun relies on his argumen s that the modification court could not determine whether a substantial chang in circumstances had occurred because it did not explicitly calculate his gros monthly income and that he was

16Kassahun cites his current financial declaration, iled on May 10, 2016, to argue that the modification court could not have reached a figur of $8,700. But the modification court did not make a specific finding regarding Kassah n's expenses or income. Kassahun's argument is insufficient to demonstrate a substanti I change in circumstances.

No. 75496-3-1/ 16 reliant on loans from third parties to meet his ob igations. As discussed above, the modification court did not abuse its discretion hen it did not explicitly calculate Kassahun's gross monthly 'income. Also, the modification court concluded that Kassahun's testimony about his reliance on lo ns to meet his support obligations was not credible, and the documentary eviden e he submitted did not support his claims.17

Moreover, Kassahun stopped paying ma ntenance in July 2015. He opened a separate business account to shelter his p rsonal savings from garnishment, both of which substantially reduced the burde on his finances. Therefore, the modification court did not abuse its discretion vhen it determined that the record does not show that Kassahun's child support obligation works a severe economic hardship on him.

Inclusion of Asha ari's A tual Income

Kassahun argues that a substantial cha ge in circumstances has occurred because Ashagari now has actual income.18 :ecause Ashagari's current actual income does not constitute'a substantial chan e in circumstances, we disagree.

A trial court's failure to "include all sources of income not excluded by statute" when calculating a parent's monthly gross income is reversible error. Bucklin, 70 Wn. App. at 840. In a modification trial, the court may modify an award

17 See, e.g., Ex. 59(Bank of America checking account showing Kassahun's purchases at Museum of Flight, Lithia BMW of Seattle, and Nordstrom's after he stopped paying maintenance). 18 It is unclear if Kassahun is challenging the original dissolution court's decision to calculate Ashagari's income based on her receipt of $5,000 per month in maintenance, rather than her actual income. As discussed ab ve, the dissolution court's order and findings on remand are not at issue in the curre t appeal. We disregard Kassahun's challenge to the dissolution court's calculation of tile child support obligation.

No. 75496-3-1/17 of maintenance or child support if the moving p rty proves that there has been an unforeseen substantial change in circumstanc s. Spreen, 107 Wn. App. at 346; Scanlon, 109 Wn. App. at 173-74.

This court will not reverse a trial cou 's decision whether a change in circumstances justifies a modification absent a abuse of discretion. Spreen, 107 Wn. App. at 346; Schumacher, 100 Wn. App. It 211.

Here, the dissolution court awarded A hagari maintenance so that she could obtain training that would allow her to ecure a job that paid more than minimum wage, and included her maintenance ward as income when it calculated its child support award. Kassahun stopped aying maintenance in July 2015. Since then, Ashagari has 'held a work study position at Shoreline Community College that pays $584.85 per month.

Kassahun has not established that A hagari's new income stream is a substantial change in circumstances that erits modification of his support obligation. Although there has been a change in that she has actual income, it is by no means significant. Moreover, Ashagari ound a job because of Kassahun's failure to meet his maintenance obligation. Th s, we reject Kassahun's argument and conclude that the trial court did not err wh n it declined to modify Kassahun's support obligation based on Ashagari's new a tual income.

Volunta Underem lo ment and 1m utation of Income

Kassahun argues that the trial court erred by not imputing income to Ashagari based on its finding that she was not voluntarily underemployed. *18 No. 75496-3-1 / 18

First, Kassahun argues that the modific tion court's findings that Ashagari was unable to afford classes after he stopped paying maintenance and that his cessation of maintenance payments has del yed Ashagari's progress toward financial independence were not supported by ubstantial evidence. We disagree.

"Substantial evidence is evidence su licient to persuade a fair-minded person of the truth of the declared premise." FILRII, 103 Wn.2d at 246.

As discussed above, Ashagari testified hat she had to leave school after Kassahun stopped paying maintenance becau e she had to find a job to support their children. Even with her part-time job nd child support payments from Kassahun, Ashagari's income was so low that he had to rely on public assistance in the form offood stamps. Moreover, she stop ed receiving food stamps because the State was able to collect $2,000 from Kassahun for his maintenance obligation, not because she was able to find gainful employment. Thus, evidence at the modification trial showed that Ashagari was forced to abandon her education because of Kassahun's actions, and that her need for support reached the point where she was reliant on food stamps. Theref re, both of the modification court's findings of fact are supported by substantial evidence.

Second, Kassahun argues that the trial court abused its discretion when it determined that Ashagari is not voluntarily und remployed and declined to impute income to her.

"The court shall impute income to a p rent when the parent is voluntarily unemployed or voluntarily underemployed. Th court shall determine whether the parent is voluntarily underemployed or volun arily unemployed based upon that *19 No. 75496-3-1/ 19 parent's work history, education, health, and ge, or any other relevant factors." RCW 26.19.071(6). "A parent may not avoid his or her child support obligation by remaining voluntarily unemployed or underem loyed." In re Marriage of Goodell, 130 Wn. App. 381, 389, 122 P.3d 929(2005)( iting RCW 26.19.071(6)).

A court's decision on whether to mpute income to a voluntarily underemployed spouse is reviewed for abus of discretion. In re Marriage of Wright, 78 Wn. App. 230, 234, 896 P.2d 735(1995).

As discussed above, after Kassahun stopped paying his maintenance obligation, Ashagari had to stop attending cla ses to find a job and at one point was reliant on public assistance. Taken toge her, this evidence amply supports the modification court's ' conclusion that Ashagari was not voluntarily underemployed. Therefore, we conclude that t e modification court did not abuse its discretion by finding that Ashagari is not vol ntarily underemployed.

Kassahun, relying primarily on Ashagar's testimony, argues that Ashagari was voluntarily underemployed because she ould have obtained financial aid or looked for more employment, is proficient in English, had other relevant work history, and could have applied herself morel her English as a second language classes. Kassahun's arguments are challeng s to the trial court's weighing of the evidence that this court will not review on ap eal. See Wilson, 165 Wn. App. at 340. We reject this line of argument. *20 No. 75496-3-1/ 20

Modification Court Bias

Kassahun argues that the modification c urt's decision is improperly based on bias or consideration of, his marital miscon uct. Because Kassahun has not cited evidence demonstrating that the modificat on court was biased, we disagree.

There is a presumption that a trial jud e properly discharged his or her official duties without bias or prejudice. Jone v. Halvorson-Berq, 69 Wn. App. 117, 127, 847 P.2d 945 (1993). The party see ing to overcome that presumption must provide specific facts establishing bias. ee State v. Post, 118 Wn.2d 596, 619,619 n.9, 826 P.2d 172, as amended by 87 P.2d 599 (1992).

Kassahun argues that the modificatior court improperly considered the dissolution court's determination that he had e gaged in domestic violence. This would have been improper because a court ma not consider a party's misconduct when constructing a maintenance award. RC 26.09.090(1); In re Marriage of Muhammad, 153 Wn.2d 795, 108 P.3d 779 (2005). But Kassahun does not cite any statement of the modification court that ind cated that it improperly considered his marital fault. Accordingly, we reject this arc ument.

Kassahun challenges various decisions of the modification court, asserting that "[n]o impartial trier of fact could reach the e same conclusions based on the evidence presented in this proceeding."19 Firs , he repeats his argument that the modification court abused its discretion by n t explicitly calculating his current gross monthly income. This argument is unp rsuasive for the reasons described above. 19 Br. of Appellant at 34. *21 No. 75496-3-1/21

Second, he argues that the modifica ion court exhibited bias when it criticized him for placing "a higher priority on m intaining his comfortable life style [sic] than fulfilling his obligations" and not mod rating his discretionary spending. Kassahun has not cited legal authority in s pport of his contention that the evaluation of the evidence presented at trial d monstrates bias, and relies on his self-serving testimony that his spending decis ons were necessary. Further, the facts cited by Kassahun support the modific tion court's conclusions and are insufficient to overcome the presumption that t e court did not act with bias toward him. We reject his challenges.

Third, Kassahun argues that the modifi ation court exhibited bias when it examined his expenditures and the sources o his funds while it did not question Ashagari's undocumented withdrawals of c sh from her child support and maintenance payments. He does not cite leg -I authority to support his argument that this demonstrates bias or that Ashagari w s required to provide an accounting of her spending of support payments as the re ipient. Further, the present appeal concerns a modification trial initiated by Kass hun. His own financial status is at issue in this proceeding, not Ashagari's use of child support and maintenance funds. We reject his argument.

Fourth, Kassahun argues that the modification court exhibited bias when it determined that his testimony and the testimoriiy of his Certified Public Accountant (CPA)regarding his use of cash from the busirtess without documentation was not credible. In support of his argument, he cite his own testimony and that of his CPA, and the tax returns that they prepar d. Kassahun's challenges are in *22 No. 75496-3-1 /22 essence a challenge to the modification court's factual and credibility

determinations based on his testimony and th t of his CPA. This court does not 1 reweigh the evidence or judge witness credibilit on appeal. Wilson, 165 Wn.App. , at 340. We reject his argument.

In his reply brief, Kassahun argues that the modification court's judge was inherently biased in favor of women, citing the j dge's statement that she had been a "lifelong advocate for women [and] chili ren" in her online biographical information.20 He also argues that Ashagari's counsel improperly alerted the court that their client was victim of domestic viLlence because they introduced themselves as attorneys for the Northwest Ju tice Project (NJP). Both of these arguments are raised for the first time in Kassauhn's reply brief, and we decline to address them. RAP 10.3(c).

Kassahun also requested that on reman this court direct the superior court to assign this case to a new judge. Because n remand is necessary in this case, we do not reach this issue.;

Attorne Fees on As seal

Ashagari requests that this court orde Kassahun to pay her reasonable attorney fees and costs. After considering th relative financial positions of the parties, we conclude that Ashagari is entitled o recover her reasonable attorney fees.

20 Kassahun analogizes the judge's statement t a situation of "representing a black person before a white judge" who stated that he or she was a "lifelong advocate for White Citizens' Councils and traditional Southern value ." Reply Br. of Appellant at 21; see http://www.kingcounty.gov/—/media/courts/superio -court/docs/judges/ramseyer- bio.ashx?la=en.

No. 75496-3-1/ 23

In a dissolution proceeding, the cou may order a party to pay the reasonable attorney fees and costs of the other party after considering the financial resources of both parties. RCW 26.09.140. Upon an appeal, the appellate court has the discretion to order a party to pay the ot er party's reasonable attorney fees and appellate costs. RCW 26.09.140.

Reasonable attorney fees are not necessarily based on the amount of fees actually incurred by a litigant. See Scott Fetir Co. v. Weeks, 122 Wn.2d 141, 148-49, 859 P.2d 1210 (1993). Usually, Wa hington courts will use a lodestar, which is calculated by multiplying the numbe of hours reasonably expended to obtain the result by a reasonable hourly rate. B wers v. TransAmerica, 100 Wn.2d 581, 594, 675 P.2d 193 (1983). Whether a lit gant is represented by a nonprofit legal aid program or a private practitioner is i relevant to the issue of whether a successful litigant is entitled to reasonable a orney fees. See Tofte v. Dep't of Soc. & Health Servs., 85 Wn.2d 161, 165, 531 P.2d 808(1975).

Prior to the present ,appeal, Ashagari a d Kassahun have gone through a trial, one full appeal, a trial on remand, a modif cation trial, and a second appeal of the dissolution court's order and findings on r mand. Kassahun has initiated the majority of these proceedings. On remand, th dissolution court concluded that its calculation that Kassahun has a gross onthly income of $12,750 is a conservative estimate.21 In this appeal, he has not demonstrated that a substantial change in circumstances has occurred that arrants modification. By contrast,

21This court has affirmed the dissolution court's ca culation in Kassahun's other appeal to this court. See In re Marria e of Asha ari and K ssahun, noted at 199 Wn. App. 1034, 2017 WL 2634197.

No. 75496-3-1/ 24

Ashagari has not received maintenance payments from Kassahun since July 2015, 1 has a current gross monthly income of $584.85, and at one point was reliant on

food stamps.

Ashagari has been represented by NJP nd received legal services free of charge. NJP is publicly funded and bears the c sts of representing its clients. NJP is permitted by the Legal Services Corporation and the Office of Civil Legal Aid to pursue attorney fees in cases where they are uthorized by statute or case law. Ashagari has agreed to assign any attorney fe s recovered to NJP.

In light of the relative financial resourc s of the parties, we exercise our discretion to award reasonable attorney fees nd costs to Ashagari under RCW 26.09.140.

Kassahun argues that this court is b und by the modification court's conclusion that he should not be required to ay attorney fees so that he could focus on fulfilling his support obligations. He ha not cited legal authority in support of his assertion that this court is bound by the trial court's decision to not award fees when deciding whether to award attorney f es and costs on appeal. We reject his argument.

Affirmed.

Footnotes

[1] Ut< WE CONCUR: