In Re Marriage Of: Julie Davis, Resp. V. Paul Davis, App.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of 	]
No. 69806-1-1
JULIE DAVIS, 	; 	f*0 	•r
DIVISION ONE G3 	co cr>
Respondent, 	;
and 	]
PAUL DAVIS, 	I
UNPUBLISHED OPINION
•JC*
CO
2S»
^2m 	'
Appellant. 	] 	FILED: March 31, 2014
V?
Grosse, J. — When, as here, the trial court used the Internet to verify
state licensing requirements for public accountants as codified in the Washington
Administrative Code and did so at trial such that the parties had an opportunity to
be heard, the court properly took judicial notice of such state requirements.
Accordingly, we affirm.
FACTS
Julie and Paul Davis1 were married on May 30, 1992, and separated on
September 12, 2009. 	They have two children, A.D. and S.D., ages 17 and 11 at
the time of trial. The petition for separation was later converted to a petition for
dissolution.
Julie 	has 	a 	dual 	degree 	in accounting 	and 	business 	from Western
Washington 	University. 	When the 	parties 	first married, she worked for the
Municipality of Metropolitan Seattle doing accounting work, but she has never
1The parties will be referred to by their first names to avoid confusion.

No. 69806-1-1/2
been certified as a public accountant (CPA). 	After their first child was born in
1996, Julie stopped working outside of the home.
After filing the petition for legal separation, Julie began to look for work
after being a stay at home mother for more than 13 years. 	When she tried to
pursue employment in the accounting field, she found that she was no longer
qualified to 	perform the 	type 	of work that was 	required 	in that field. 	After
determining 	her accounting skills were no longer marketable she decided to
make a career change and obtain a degree in special education. 	This decision
was in part the result of her experience with her daughter's disabilities. 	By the
time of trial, Julie 	had started classes and 	planned to graduate in 2014, 	this
spring. 	She anticipated that she could earn $35,000.00 her first year as a full-
time teacher.
Paul has worked for Hubbell Power Systems since 2001 or 2002. 	By
2011, he earned $190,839.00 serving as regional vice president for eight years.
While the dissolution action was pending, he resigned from this position, deciding
it was more beneficial to his health and well being to change positions. 	He then
became 	a 	territory 	manager 	and 	took a 	pay 	cut, 	reducing 	his salary 	to
approximately $165,000.00.
The 	parties 	proceeded 	to 	trial 	on 	the 	financial 	issues 	of 	property
distribution and family support. 	Paul contended that by pursuing a career in
special education rather than accounting, Julie was unfairly burdening him with
support she could provide as a CPA. 	Julie testified that it was not practical for
her to 	pursue 	a 	CPA 	certification 	because 	it 	would 	require 	more recent

No. 69806-1-1/3
supervised experience in the field, which she did not have. 	She testified that she
checked on the requirements with the agency that administers the certifications
but could not recall whether the amount of experience required was a year, a
year and a half, or two years. 	Paul countered that there was no such experience
requirement.
The court then stated that it was taking judicial notice of the experience
required by the Washington State 	Board of Accountancy to apply for a CPA
license. 	The trial court obtained this information from a web site maintained by
the Washington State Board of Accountancy and noted that an applicant for a
CPA 	must 	have 	12 	months 	or 	a 	total 	minimum 	of 	2,000 	hours 	of 	public
accounting experience in a work environment no more than eight years before
applying 	for 	certification. 	The court 	rejected 	Paul's 	claim 	that Julie 	could
promptly 	acquire 	a 	CPA 	license 	in 	the 	near 	future, 	finding 	that 	it 	was
unreasonable for her to pursue her CPA license given her lack of employment
history and the other state requirements for the license.
The trial court ordered Paul to pay Julie monthly spousal maintenance of
\
$3,500.00 until September 2014, which would be when she could pursue full-time
employment as a special education teacher. 	The court further ordered that if
Julie had not found full-time employment by that date, 	Paul was to pay her
reduced maintenance of $1,750.00 per month for an additional year or until she
obtains a full-time job, whichever came first.
The trial court also ordered Paul to pay monthly child support of $1,502.14
for both children. 	Child support was calculated using a monthly net income for

No. 69806-1-1/4
Paul of $7,052.00 (the amount after the maintenance payment), and a monthly
net income for Julie of $3,864.08, which 	includes maintenance and 	imputed
income of $784.00. 	The imputed income amount represented minimum wage
earnings at half time, since Julie was a full-time student.
The 	trial court 	largely 	adopted 	Julie's 	proposed 	property 	distribution,
awarding 	her 	55 	percent of the 	marital estate, 	including 70 	percent of the
proceeds from the sale of the family home. 	The trial court ordered that the house
be sold at the end of spring 2015 to allow Julie and the younger son to remain in
the family home until he graduated from middle school. 	Until the house was sold,
Paul was ordered to pay $500.00 of the $1,458.00 monthly mortgage payment,
plus the real property taxes, for which he would be reimbursed at closing. 	Julie
was ordered to pay all other expenses for the house. 	Paul appeals.
ANALYSIS
Paul contends that by searching the Internet for information about state
requirements for 	CPA 	certification 	to support Julie's position, 	the trial 	court
independently investigated and testified to facts in violation 	of ER 605, due
process, and the appearance of fairness doctrine. 	Julie contends that the trial
court did not investigate or testify as a fact witness, but properly took judicial
notice of the CPA requirements as set forth in the Washington Administrative
Code (WAC). We agree.

No. 69806-1-1/5
"It is the general rule that public statutes of Washington State will be
judicially noticed by all courts of this state."2 	RCW 34.05.210(9) provides that
judicial notice shall be taken of rules filed and published by agencies as provided
by 	chapter 	34.05 	RCW, 	the 	Administrative 	Procedure 	Act 	(APA). 	RCW
18.04.055 authorizes the Washington State Board of Accountancy to adopt rules
under the APA, including "[rjules specifying the experience requirements in order
to qualify for a license."3 The regulations addressing CPA licensure requirements
are set forth in WAC 4-30-070, which provides in relevant part:
(2) Employment experience should demonstrate that it occurred in
a work environment and included tasks sufficient to have provided
an opportunity to obtain the competencies defined by subsection
(3) of this section and:
(a) 	Covered 	a 	minimum 	twelve-month 	period 	(this time
period does not need to be consecutive);
(b) Consisted of a minimum of two thousand hours;
(c) Provided the opportunity to utilize the skills generally
used in business and accounting and auditing including, but
not limited to, accounting for transactions, budgeting, data
analysis, internal auditing, preparation of reports to taxing
authorities, 	controllership 	functions, 	financial 	analysis,
performance auditing and similar skills;
(d) Be verified by a licensed CPA as meeting the requirements
identified in subsection (5) of this section; and
(e) Be obtained no more than eight years prior to the date the
board receives your complete license application.
Here, to counter Julie's claim that she lacked the necessary experience to
obtain a CPA license, Paul provided a document that was a print out from a web
2 Gross v. City of Lvnnwood, 90Wn.2d 395, 397, 583 P.2d 1197 (1978).
3 RCW 18.04.055(11).

No. 69806-1-1/6
site that listed the requirements for a CPA license and did not mention having a
certain amount of experience. 	When Julie's lawyer proceeded to voir dire Paul
about the document, 	he could not determine whether it came from the state
licensing board web site. 	At this point, the trial court interjected as follows:
THE COURT: 	Let me interject. I have gone to the website and I
can take judicial notice without admitting of that which contained
[sic] on the website. 	It says accounting EDU dot org. 	That's a
general website. You can click on State of Washington and then it
says steps to become an accountant in Washington. 	But there is a
separate website for which I can also take judicial notice that is
maintained by the Washington State Board of Accountancy that has
a 	Washington 	dot 	gov 	address 	and 	it states 	the 	experience
requirements for a 	CPA in Washington and those 	requirements
differ somewhat from this general site that is not maintained by the
State of Washington.
The court then asked Paul if he looked at the web site for the Washington State
Board of Accountancy, and when he could not provide a definitive answer, the
following exchange occurred:
THE 	COURT: 	Well, 	the 	Washington 	Board 	of 	Accountancy
website, and I can print this out if anyone wants to see it, but it does
say that among the requirements for CPA there is experience that
must be 	obtained 	through 	the 	practice of public accounting, 	et
cetera. 	Employment experience must be demonstrated occurred
[sic] in a work environment. 	Included tasks sufficient to provide an
opportunity to obtain the competency and total at a minimum of 12
months, total minimum of 2,000 hours, urn, and there is [sic] other
requirements here. Urn, and all of this has to have been obtained
no more than eight years 	prior to that the board receiving the
application. Is any of that listed on here?
THE WITNESS [PAUL]: No, sir.
The trial court's description of the experience requirements for a CPA
license 	was 	consistent 	with 	the 	regulations 	setting 	forth 	the 	experience
requirements for a CPA license. 	Accordingly, the trial court properly took judicial

No. 69806-1-1/7
notice of these requirements as published regulations. 	Indeed, as Julie points
out, the court had 	a duty to take judicial notice of these 	regulations.4 	The
information provided by Paul was not obtained from the official Washington State
Board 	of Accountancy 	web site and the 	court sought to 	verify 	the 	legal
requirements by checking the official board web site. 	This would be no different
than a party providing a summary of a statute and the court looking up the actual
statute to determine what the statute actually provided. 	The court did not, as
Paul suggests, search for additional evidence, but simply verified certification
requirements of which it had authority to take judicial notice.
Nor was Paul deprived of an opportunity to be heard on the issue, as he
contends. 	Indeed as quoted above, the court identified the web site, asked Paul
if he had looked at the web site, and even offered to print out the relevant
provisions. 	The 	court 	again 	gave 	Paul 	an 	opportunity 	to 	contest 	the
requirements.
Paul's further contention that the court's actions were a result of bias is
without basis. 	The parties both acknowledge that the trial court disclosed early
on that he was acquainted with Julie's lawyer, having played in a band together.
At that time, Paul agreed that the trial court could impartially preside over the
case. 	Paul may not now complain of bias after obtaining an unfavorable ruling at
trial.5
4 See Cresap v. Pacific Inland Nav. Co.. 78 Wn.2d 563, 565-66, 478 P.2d 223
(1970) (error for court to decline to take judicial notice of safety and 	health
regulations for longshoring).
s s^ Buckley v. Snapper Power Equip. Co.. 61 Wn. App. 932, 939, 813 P.2d
125 	rev 	denied, 	118 Wn.2d 1002 (1991) (a litigant "'may not, after learning

No. 69806-1-1/8
Paul also challenges the court's calculation of Julie's income for purposes
of setting child support. 	"An award of child support is reviewed for an abuse of
discretion."6 	Under RCW 26.19.071(6), the trial court must impute income to a
parent who is voluntarily unemployed.
Here, Paul proposed that Julie's income be calculated as follows:
Child 	support 	should 	be 	set 	with 	father's 	gross 	income 	at
$13,718.62 per month, and the mother should be imputed part time
at minimum wage. 	Minimum wage is currently $9.04 per hour.
Testimony at trial supported this calculation. Julie testified that she would not be
able to hold down a job while going to school full time because of the hourly time
commitment required to complete the program, which includes practicum time in
a school classroom in addition to the program coursework. 	Paul also testified
that he agreed with the imputed income calculation. 	The court accepted this
calculation as stated in the order of child support:
The net income of the obligee [Julie] is imputed at $784 because:
the obligee is voluntarily unemployed.
The 	amount 	of 	imputed 	income 	is 	based 	on 	the 	following
information in order of priority. 	The court has used the first option
for which there is information:
Other:
minimum wage at half time earnings as the obligee is a full time
student.
grounds for disqualification, proceed with the trial until the court rules adversely
to him and then claim the judge is disqualified'") (quoting Williams &Mauseth Ins.
Brokers. Inc. v. Chappie. 11 Wn. App. 623, 626, 524 P.2d 431 (1974)).
6 DewBerrv v. George. 115 Wn. App. 351, 367, 62 P.3d 525 (2003).
8

No. 69806-1-1/9
Paul 	now 	contends 	that 	imputing 	Julie's 	income 	as 	such 	was 	error
because she does not satisfy any of the statutory criteria for imputing income at
minimum wage and income must be imputed based on full-time employment.
Julie argues that Paul invited the error and may not now challenge it.
The record is undisputed that Paul proposed and agreed to this calculation
and both parties were represented by counsel. 	Indeed, the trial court's findings
of fact and conclusions of law specifically refer to this agreement.8 	Thus, Paul
did invite the error of which he now complains and is now barred from raising it
on appeal.9
Finally, Paul contends that the property distribution and support awards
were not equitable because they unfairly burden him with support obligations.
He focuses primarily on the fact that the maintenance award supported Julie's
choice to make a complete career change that would not be as lucrative as
continuing her career in accounting. 	He notes that the purpose of maintenance
is to support a spouse until he or she becomes self supporting and asserts that
Julie could have become self supporting by a much quicker route by returning to
the profession for which she was already qualified. 	He also contends that this
allowed Julie to evade her obligation to support the children and pursue her
7See RCW 26.19.071 (6)(d) (income imputed at minimum wage "if the parent has
a 	recent 	history 	of 	minimum 	wage 	earnings, 	is 	recently 	coming 	off 	public
assistance, 	aged, 	blind, 	or disabled 	assistance 	benefits, 	pregnant 	women
assistance benefits, essential needs and housing support, supplemental security
income, or disability, has recently been released from incarceration, or is a high
school student").
8 "For purposes of child support, and as agreed to by the parties, . . . [t]he mother
shall have income imputed to her at minimum wage, half-time, in the amount of
$783.50 mo. gross 	"
9 See State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990).

No. 69806-1-1/10
"passion" while he carried the full burden of family support. 	He further contends
that this choice to reduce her future earnings potential resulted in an inequitable
property distribution.
The 	trial 	court 	has 	broad 	discretion 	to 	divide 	property 	and 	award
maintenance 	in a 	dissolution 	action 	"because 	it is 	in the 	best 	position 	to
determine what is fair, just, and equitable."10 	The trial court's awards will not be
disturbed on appeal absent an abuse of discretion.11 	"'[T]he standard of living of
the 	parties 	during 	the 	marriage 	and 	the 	parties' 	post 	dissolution 	economic
condition are paramount concerns when considering maintenance and property
awards in dissolution actions.'"12
Here, 	the 	trial 	court 	made 	the following 	findings 	in 	support 	of its
maintenance order:
The husband has far greater earning capacity than the wife, which
will not change even with the passage of time and the completion of
the wife's career path. 	The husband is paid numerous perquisites
for many day to day items that most other people in the work force
have to pay for. 	The husband is thus able to maintain a higher
lifestyle than most persons with an equivalent income.
The wife's decision to further her education in a different
discipline to 	become a special education teacher is 	reasonable
under 	the 	circumstances 	and 	the 	suggestion 	that 	she 	find 	a
minimum wage job at this time is unreasonable, especially when
considered in light of the fact that the husband voluntarily gave up
in annual salary an amount nearly as much as the wife hopes to
make when she finishes her career path. The wife is not able to sit
for a CPA license given her lack of employment history and the
Washington State requirements.
10 In re Marriage of Wallace, 111 Wn. App. 697, 707, 45 P.3d 1131 (2002), rev,
denied. 148Wn.2d 1011 (2003).
11 Wallace. 111 Wn. App. at 707.
12 In re Marriage of Estes. 84 Wn. App. 586, 593, 929 P.2d 500 (1997) (\nje
Marriage of Sheffer. 60 Wn. App. 51, 57, 802 P.2d 817 (1990)).
10

No. 69806-1-1/11
. . . The husband 	is virtually debt-free and the wife has
incurred significant post separation debt both by way of consumer
credit, attorney's fees and student loans.
. 	. 	. 	The 	husband 	has 	the 	ability 	to 	pay 	the 	spousal
maintenance 	as 	ordered 	without 	significant 	impairment 	of 	his
lifestyle.
The trial court's findings are supported by the record. 	Paul fails to show
that 	the 	trial 	court's 	maintenance 	and 	property 	awards 	were 	an 	abuse 	of
discretion.
We affirm and award Julie her attorney fees.
r\Wv^J
WE CONCUR:
11