Sandy Ou, Apps. v. Hong Cheung, Resp. ( 2014 )

-•UUrn up Ar'.-'-1 '-'/•> c i^:-
WSfPlS AM JO: 3o
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of )
) DIVISION ONE
SANDY S. OU, )
) No. 70790-6-1
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
HUNG K.CHEUNG, )
)
Respondent. ) FILED: September 15,2014
)
Dwyer, J. — Sandy Ou appeals from the denial of her petition to modify a
child support order. Ou sought to obtain for her son substantial educational
postsecondary support from Hung Cheung—her former husband and the
biological father of her son. Finding that the trial court, in denying Ou's petition,
did not abuse the ample discretion conferred by RCW 26.19.090(2), or otherwise
err, we affirm.
I
In 1994, Ou and Cheung were married. The following year, the couple
had a son—Henry Cheung.1 By 1998, however, Ou and Cheung had divorced.
In 1999, Henry resided a majority of the time with Ou, and Cheung was ordered
to make child support payments, which he did until Henry turned 18.
1We refer to Henry by hisfirst name in order to differentiate between father and son. No
disrespect is intended.
No. 70790-6-1/2
Before marrying Cheung, Ou obtained a postsecondary degree. She then
worked as an interpreter for a number of years before becoming a self-employed
real estate agent in Florida. In 2013, she estimated that her income for the year
was $18,000.00 and listed her monthly net income as $1,671.
Cheung does not have a postsecondary degree. He worked as a cook in
the bakery of a grocery store where his annual income is around $28,000. He
also remarried. His current wife's dependent child and her two parents live with
Cheung.
Henry excelled in school. During his final year of high school, he earned
college credits at the local community college and was granted admission by the
University of Florida, Virginia Technical Institute, Penn State University, and
Embry-Riddle Aeronautical University. His first choice was to attend Embry-
Riddle and study aerospace engineering. The annual cost of attending Embry-
Riddle is over $46,000. However, through various scholarships and financial aid
awards, Henry was capable of paying for about half of the annual cost.
Several months before Henry's 18th birthday,2 Ou filed a petition to modify
the child support order in order to obtain postsecondary support for Henry. After
Cheung failed to respond, a default order was entered in which Cheung was
ordered to pay postsecondary support for Henry. Nevertheless, on July 18,
2013, a hearing was held in King County Superior Court, which resulted in a
2 Henry turned 18 on January 6, 2013.
-2
No. 70790-6-1/3
denial of Ou's petition.3 Additionally, a written order was entered on the same
day memorializing the denial of Ou's petition.
Ou appeals.4
II
Ou contends that the trial court abused its discretion in denying her
petition. This is so, she asserts, because the trial court failed to consider the
statutory factors in RCW 26.19.090(2). We disagree.
"When considering a request for postsecondary educational support, RCW
26.19.090(2) directs the superior court to determine whether the child is in fact
dependent and relying upon the parents for the reasonable necessities of life." in
re Marriage of Morris. 176 Wash. App. 893, 904, 309 P.3d 767 (2013). Once the
superior court has made this determination, it "may then exercise its discretion in
determining whether and for how long to award support." Morris, 176 Wash. App.
at 904. Factors it may consider include, but are not limited to, the following:
Age of the child; the child's needs; the expectations of the parties
for their children when the parents were together; the child's
prospects, desires, aptitudes, abilities or disabilities; the nature of
the postsecondary education sought; and the parents' level of
education, standard of living, and current and future resources.
Also to be considered are the amount and type of support that the
child would have been afforded if the parents had stayed together.
RCW 26.19.090(2). However, because the trial court is not obligated to enter
written findings of fact, "we review the record to determine whether the court
3 Ou states that Cheung successfully moved to vacate the adverse default order.
However, there is no evidence in the record supporting Ou's explication of the procedural history
between the entry of the default order against Cheung and the denial of her petition.
4 Respondent's brief was untimely filed. Appellant's motion to strike respondent's brief is
granted.
-3-
No. 70790-6-1/4
engaged in the appropriate analysis," which includes a presumption "'that the
court considered all evidence before it in' reaching its decision." Morris, 176 Wn.
App. at 906 (quoting In re Marriage of Kelly, 85 Wash. App. 785, 793, 934 P.2d
1218 (1997)). Our review of the trial court's determination is for an abuse of
discretion. Morris, 176 Wash. App. at 905.
Ou contends that the record does not show that the trial court properly
considered all of the factors in RCW 26.19.090(2). However, the parties
presented both evidence and argument with regard to all of the factors, and the
trial court explicitly considered and made specific findings with regard to certain
factors on the record. Several of these specific findings were memorialized in the
trial court's written order. In the absence of evidence to the contrary, we
presume that the trial court in this case considered all of the evidence that was
before it in fashioning its order.
Moreover, the record reveals that the trial court considered the particular
factors that Ou avers were not considered.5 The trial court was aware of Henry's
age6 and his needs.7 Itwas further aware of Henry's prospects, desires,
5Ou also argues that the trial court erred by calculating Cheung's income in disregard of
the evidence. However, Ou failed to designate as part of the record any evidence of Cheung's
income. Pro se litigants are held to the same standard as attorneys and must comply with all
procedural rules on appeal. In re Marriage of Olson. 69 Wash. App. 621, 626, 850 P.2d 527 (1993).
"The appellant has the burden of perfecting the record so that the court has before it all the
evidence relevant to the issue." In re Marriage of Haugh, 58 Wash. App. 1, 6, 790 P.2d 1266
(1990). Due to Ou's failure to include all the evidence relevant to resolving this issue, we decline
to consider her argument.
6 The Court: When does Henry turn 18? Has he already turned 18?
Ms. Ou: He already turned 18 in January 6th.
71 think the amount that was indicated was for the tuition or the costs of Embry-
Riddle was about $46,000 a year. The total net income of both parents together
is $35,000 a year, and even—even with the—what Ms. Ou indicated that the—
No. 70790-6-1/5
aptitudes, abilities, or disabilities,8 as well as the nature of the postsecondary
education that he sought.9 Finally, the trial court was aware of the amount and
type of support that Henry would have been afforded if his parents had stayed
together.10
Nevertheless, Ou contends that it was incumbent upon the trial court to
make specific findings as to the cost and availability of a postsecondary
education at a publicly-funded institution before denying her petition. In support
of her contention, she cites to In re Marriage of Shellenberger, 80 Wash. App. 71,
906 P.2d 968 (1995), in which we held that a trial court must "make specific
findings as to the cost and availability of college education in the child's chosen
field at publicly funded institutions before ordering an objecting parent to support
a more expensive private college education." 80 Wash. App. at 85. We reasoned
that an objecting parent of "modest means" should not be required "to pay for
private college where the child can obtain a degree in his or her chosen field at a
publicly subsidized institution." Shellenberger, 80 Wash. App. at 85. Given that the
trial court did not order Cheung to pay postsecondary support, both the rule and
the rationale set forth in Shellenberger are inapposite.
Our review of the record reveals that the trial court did not abuse its
that the amount after grants and scholarships is about $26,000 a year, that's still
two-thirds of the parents' net income.
8 "And—and we have to be realistic about what our means are, unfortunately, because
this may be a very [good] school and a very good opportunity for a good student."
9"[T]he other [question] is whether or not [the parents] can afford to provide the
Mercedes of education and pay for a university such as Embry-Riddle."
10 "The total net income of both parents together is $35,000 a year, and even—even with
the—what Ms. Ou indicated that the—that the amount after grants and scholarship is about
$26,000 a year, that's still two-thirds of the parents' net income."
No. 70790-6-1/6
discretion pursuant to RCW 26.19.090(2) and did not otherwise err.11
Affirmed.
We concur:
Tr\M ^
11 Ou cites to our decision in State ex rel. Stout v. Stout, 89 Wash. App. 118, 948 P.2d 851
(1997), in support of her argument that a minimum need standard is imposed by RCW
26.19.065(2), unless a court deviates for reasons specified in RCW 26.19.075. Neither the
statutory provisions cited by Ou nor our decision in Stout relate to the issue ofwhether the trial
court complied with RCW 26.19.090(2). Thus, they provide Ou no basis for the relief that she
requests.