State of Washington, ex rel. v. Eric Keith Lampkin

FILED
AUGUST 19,2014
In the Office of the Clerk of Cou rt
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Parentage of: 	)
X.T.L., Child. 	) 	No. 31335-2-III
)
STATE OF WASHINGTON, 	)
)
Petitioner, 	)
)
v. 	)
)
ERIC LAMPKIN, 	)
)
Appellant, 	) 	UNPUBLISHED OPINION
)
PAULINA CORONADO, 	)
)
Respondent. 	)
SIDDOWAY, C.J. - 	Eric Lampkin appeals decisions made by the superior court in
establishing terms on which he is required to contribute to the cost of his son's
postsecondary education. While the trial court erred in failing to strike portions of a
declaration submitted by Paulina Coronado, any consideration of the inadmissible
evidence was harmless. We affirm.

No. 3 1335-2-III
In re Parentage ofX T.L.
FACTS AND PROCEDURAL BACKGROUND
In January 2011, the Walla Walla County Superior Court entered a child support
order providing that Eric Lampkin and Paulina Coronado would be responsible for
contributing to their then almost-18-year-old son's college education, and that the terms
of the postsecondary education support would "be decided by agreement or by the
court." Clerk's Papers (CP) at 8. The order further stated that "[o]nce the presumptive
amount of support terminates in June 2011, college support shall be determined once the
college cost information is available." Id.
The parties' son turned 18 two months later, and graduated from high school in
June. 	On June 27, he enrolled in a three-year bachelor's degree program in recording arts
at Full Sail University, located in Winter Park, Florida. He took classes online over the
summer of 20 11 and moved to Florida to continue classes in the fall.
In February 2012, Ms. Coronado filed a petition to modify the existing child
support order to address the postsecondary education expense, asking that Mr. Lampkin's
obligation be set at one-third of the total. 	The total cost of attending Full Sail University,
including tuition and living expenses, was $153,291, with the largest expense incurred in
the first year. Ms. Coronado asked that the court order Mr. Lampkin to pay his support
obligation directly to her, since she had already obtained a parent loan to cover the
majority of the first year's cost. The parties' son had received a small grant and took out
a student loan to cover part of the remainder. Ms. Coronado's petition also asked that
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health insurance for the son, which Mr. Lampkin had been providing through his
employer as required by the prior support order, continue for as long as the son was
attending college and remained a dependent.
In a declaration supporting the petition to modify the child support order, Ms.
Coronado attached documents providing information about the bachelor's in recording
arts program at Full Sail University and documenting the loans she and her son had
obtained to finance the college costs. She also attached a pay stub showing her gross
earnings for the month of September 2011.
Mr. Lampkin's response to the petition stated that the "underlying facts and
procedure in this matter are neither complex nor disputed." CP at 82. Elsewhere, he
stated, "[T]here is no need to discuss whether [the son] is dependent or entitled to the
support. Rather, the only issues are how much support is required and how the support
will be paid." Id. at 83. He contested Ms. Coronado's request on only four grounds.
The first was his objection that the Full Sail program was too expensive, stating
that neither parent had substantial financial means. In a declaration accompanying his
memorandum, he stated that his current net income was approximately $2,500 per month,
depending on the number of hours he worked. He argued that his contribution should be
measured by an appropriate percentage of the cost of resident tuition at Washington State
University (WSU).
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Second, he pointed out the statutory requirements that parental support for
postsecondary education is payable only for a child who is enrolled in an accredited
school, is actively pursuing a course of study, and is in good academic standing, none of
which had been demonstrated by Ms. Coronado's submissions.
Third, he complained that the requirement that he make payments to Ms.
Coronado was not consistent with Washington statutes and pointed out that the loans she
had taken out were on "deferred" status, questioning why he should make current
payment when she might not be doing the same.
Finally, he complained about the lateness of Ms. Coronado's petition, claiming
that the first indication he received that his son had begun college was when he was
served with the petition, eight months into the three-year program. He argued that Ms.
Coronado's failure to provide him with more timely information should excuse him, on
equitable grounds, from having to contribute to the first-year cost.
Ms. Coronado did not file reply materials but, at the time of hearing, her lawyer
addressed Mr. Lampkin's objection to the cost of the out-of-state school, stating,
[I]t's a special university where a comparable degree could not be obtained
in state ....
. . . It's known for its entertainment degrees. And so we don't hear
entertainment degrees coming out of the University of Washington or
WSU.
This young man is very talented. He wants to get in the music
production type business. And in order to get that kind of degree, he needs
to go to a university like Full Sail, as opposed to WSU. And so if he is
going to pursue his dream in his chosen field, he needs to go out of state.
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Report of Proceedings (RP) at 2-3. Ms. Coronado's lawyer also stated, with respect to
Mr. Lampkin's desire to make payments directly to the school, that Mr. Lampkin could
try to arrange to pay Full Sail University directly, but in that case would have to complete
payments within the remaining two-plus years of the program, as contrasted with Ms.
Coronado's offer to take out loans and be repaid over five years.
Mr. Lampkin's lawyer prefaced his argument at the hearing by stating, "There are
no real factual disputes, I don't believe" and a bit later summarized his position, stating,
"As I see it, there are four issues here." RP at 6, 8. The first issue was Ms. Coronado's
failure to demonstrate "how [the son] is doing. 	We don't know ifhe is on pace to get
done with this accelerated program. 	We just don't have enough information. There's no
declaration from the child at all." RP at 9. He conceded that the parties' son was
apparently enrolled at Full Sail University.
The remaining issues identified by Mr. Lampkin's lawyer during the hearing were,
again, to whom Mr. Lampkin's payments should be made, the overall cost of the Full Sail
program, and Ms. Coronado's delay in requesting the modification.
At the conclusion of the hearing, the trial court rejected Mr. Lampkin's arguments
and orally ruled that Mr. Lampkin would be responsible for one-third of the cost of all
three academic years at Full Sail University, making his payments either directly to the
school or to Ms. Coronado.
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Following the hearing, Ms. Coronado's lawyer prepared a detailed proposed order
that he sent to Mr. Lampkin's lawyer for comment. Receiving no response, he mailed the
order to the court, under a cover letter reporting that he had transmitted the order to Mr.
Lampkin's lawyer more than 15 days earlier but received no response. A local court rule
permits submission of orders on that basis, and the court signed the order.
Mr. Lampkin filed a timely motion for reconsideration and to amend the findings
in the order. The motion for reconsideration raised the following objections to the order
entered:
The order stated that the child support worksheet was "not applicable," contrary to
Washington law requiring completion of a worksheet.
It stated that Mr. Lampkin's monthly net income is "'$3,000 (approximately),'"
contrary to the only evidence before the court, and stated that Ms. Coronado's
monthly net income is $2,200, which was unsupported by evidence before the
court.
It provided for payments directly to the mother and also through the Division of
Child Support, contrary to RCW 26.19.090(6) which requires that parents make
payments directly to the educational institution, if feasible.
It addressed income tax exemptions despite the court having taken no evidence
and made no findings concerning exemptions.
It included determinations as to the parties' responsibilities for health insurance
and unpaid medical expenses despite the absence of information before the court
on which those determinations could be made.
With respect to findings on the factors the court was required to consider in
ordering support for postsecondary education expenses under RCW 26.19.090,
Mr. Lampkin argued that Ms. Coronado's information was insufficient to support
a number of the findings. 	He also objected to the order's failure to include
limitations and conditions on the parent's obligations provided by RCW
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No. 31335-2-II1
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26.19.090, including the child's responsibility to be in good academic standing
and to make available all academic records and grades.
CP at 126-32.
The court called for a response from Ms. Coronado. She submitted a
memorandum and a declaration, to which she attached documents, including a
certification of Full Sail's accreditation and her son's good standing, and a September 17,
2012 transcript for her son, reflecting a 2.96 GP A (grade point average). The
attachments also included a letter from the son explaining why he had chosen Full Sail
University.
Ms. Coronado expressed no objection to some of the concerns raised by Mr.
Lampkin's motion for reconsideration, such as requiring in the order that the parties' son
continue to actively pursue the course of study, remain in good standing, and make his
academic record and grades available to both parents. She also prepared a child support
worksheet so that "if the court concludes the information [in the order] should be
repeated with an attached worksheet, one has been presently provided." CP at 137.
Mr. Lampkin moved to strike her declaration and its attachments on various
grounds.
On October 15, the court issued a letter ruling stating that Ms. Coronado had
"adequately and sufficiently responded to the father's memorandum" and indicating that
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No. 31335-2-111
In re Parentage ofX T.L.
it was denying Mr. Lampkin's motion to strike and motion for reconsideration and to
amend pleadings. CP at 182.·
A disagreement arose over Mr. Lampkin's proposed order unqualifiedly denying
his motions. Ms. Coronado--evidently recognizing shortcomings in the original order-
preferred that the court grant Mr. Lampkin relief to the extent she conceded it was
appropriate. Mr. Lampkin would not agree.
Mr. Lampkin submitted his proposed order that denied his motions without
qualification, which the court entered on November 8. Ms. Coronado submitted her own
proposed order "partially granting father's motion for reconsideration and to amend
findings and denying other relief," which the court also entered, on November 16, with a
notation to the file that "[t]he Court does not find [Ms. Coronado's] Order inconsistent
with [Mr. Lampkin's] Order signed and filed 11/8/12." CP at 190-91. Ms. Coronado's
order, to which a child support worksheet was attached, included three provisions to
which the "mother has no objection": (1) that the child remain enrolled in an accredited
school and in good academic standing, in accordance with RCW 26.19.090(3); (2) that
the child make available all academic records and grades to both parties, as provided in
RCW 26.19.090(4); and (3) ~~[t]hat while the child support schedule is advisory and not
mandatory for post secondary educational support as per RCW 26.19.090(1), the Court
adopts the attached Child Support Worksheet." CP at 192.
Mr. Lampkin appeals.
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No. 31335-2-III
In re Parentage ofXTL.
ANALYSIS
Mr. Lampkin argues that the court erred by (I) inadequately considering the
required factors set forth in RCW 26.19.090, (2) failing to complete a child support
worksheet before entering the support order, (3) refusing to order a pro rata
apportionment between the parties, (4) entering findings not supported by substantial
evidence, (5) ordering Mr. Lampkin to make payments directly to Ms. Coronado, (6)
holding that he was not prejudiced by Ms. Coronado's delay between the child support
order and her petition to modifY, and (7) denying his motion to strike Ms. Coronado's
declaration.
We address Mr. Lampkin's assignments of error in tum.
/. 	Consideration of the factors set forth in RCW 26.19. 090
Mr. Lampkin's first assignment of error is a two-pronged challenge: he claims that
the trial court failed to obtain the information needed to consider factors that RCW
26.19.090(2) provides "shall" be a part of the court's exercise of discretion in
determining postsecondary education support, and that the trial court failed to consider
each factor.
Where a child is dependent and a request for postsecondary education support is
properly before the court-neither of which is in dispute here-RCW 26.19.090(2) sets
forth seven nonexclusive factors to be considered in determining whether and for how
long to award postsecondary support. "As long as the court considers all the relevant
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No. 31335-2-111
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factors set forth in RCW 26.19.090 for determining postsecondary support, it does not
abuse its discretion." In re Parentage of Goude, 152 Wn. App. 784, 791, 219 P.3d 717
(2009).
Ms. Coronado contends that because Mr. Lampkin did not dispute that he should
pay postsecondary education support, the trial court was not required to consider the
statutory factors. According to Ms. Coronado, the factors require consideration only
when the court is deciding whether to order support at all.
We agree that the language of the January 2011 support order-which was entered
only months before the parties' son would graduate from high school and provided that
the parents would contribute to the cost of his college education on terms that would "be
decided by agreement or by the court"-makes clear that the court had already
considered and weighed the factors once. l 	But her argument fails to consider the
1 Because the factors had been considered once and the trial court had ordered that
support would be paid, we question whether the proceeding commenced by Ms.
Coronado's February 2012 summons and petition was properly characterized as a support
modification proceeding. A full modification action is significant in nature and
anticipates making substantial changes and/or additions to the original order of support.
In re Marriage of Scan lon, 109 Wn. App. 167, 173,34 P.3d 877 (2001). Here, by
contrast, much had already been decided. Other characterizations of what Ms. Coronado
was requesting appear more apt. The proceedings could be viewed as a continuation of
the earlier modification proceeding, with the court having deferred a decision on the
amount and duration of postsecondary education support until the parties' son selected a
school and it could be seen whether the parents might agree on their contribution to the
cost. Cf In re Marriage ofLittle, 96 Wn.2d 183, 190,634 P.2d 498 (1981) (discussing
long-standing recognition of an equitable power in the court to defer certain final
determinations in dissolution proceedings where the welfare of the child made deferment
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No. 31335-2-111
In re Parentage ofX T.L.
language in RCW 26.19.090(2) that the court "shall exercise its discretion when
determining whether and for how long to award postsecondary educational support based
upon consideration" of the factors, thereby providing that the factors are relevant to the
extent of the support. (Emphasis added.) And because several of the factors necessarily
relate to the college cost the parents can afford, a commonsense reading of the statute
requires the court to consider the factors not only in determining whether to award
support, but also in determining the amount and duration of the support.
The statute does not require that the court make explicit findings on each of the
statutory factors, however; it requires only that its consideration of those factors be
reflected in the record. In In re Marriage of Horner, 151 Wn.2d 884, 93 PJd 124
(2004), a case involving parental relocation under RCW 26.09.520, the Supreme Court
desirable); accord In re Marriage ofPossinger, 105 Wn. App. 326, 336, 19 PJd 1109
(2001) ("It would be strange indeed to construe an act designed to serve the best interests
of the children ... in such a manner as to require trial courts to rush to judgment on
insufficient evidence with respect to the children's best interests."). It might be fairly
characterized as a "court-ordered adjustment" under RCW 26.09 .170( 1), but for the fact
that the proceeding was brought within 13 months of the prior support order. It might
also be characterized as a clarification rather than a modification. See Rivard v. Rivard,
75 Wn.2d 415,418,451 P.2d 677 (1969) (recognizing a distinction between a
clarification, which "is merely a definition of the rights which have already been given
and those rights may be completely spelled out if necessary," and a modification, which
occurs where "rights given to one of the parties is either extended beyond the scope
originally intended or where those rights are reduced, giving the party less rights than
those he originally received").
Because it was styled as a petition for modification and the issues on appeal are
presented on that basis, we analyze it accordingly. 	RAP 12.1 (a); Wilkinson v. Chiwawa
Communities Ass 'n, 180 Wn.2d 241,245 nJ, 327 P.3d 614 (2014).
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No. 31335-2-111
In re Parentage of X T.L.
recognized that there are two ways a trial court can make a sufficient record that it has
complied with a legislative mandate to consider specific factors: either by entering
specific findings of fact on each factor, or-where substantial evidence has been
presented on each factor-by demonstrating in its findings and its oral decision that it
considered that evidence.
In In re Marriage of Kelly, 85 Wn. App. 785, 792-93, 934 P .2d 1218 (1997) the
court upheld a postsecondary education support determination absent clear findings on
the seven factors, emphasizing that consideration of a factor is presumed where relevant
evidence is before the court. 	While stating that "[i]deally, the court should have been
more explicit in its consideration ofRCW 26.19.090's factors," it concluded that
"because [the father] has not shown that the trial court failed to consider them, we affirm
the postsecondary support order." Id. at 793-94.
In the trial court, Mr. Lampkin's opposition to Ms. Coronado's petition was
limited to only some of the factors, with his lawyer assuring the court that "[t]here are no
real factual disputes, I don't believe." RP at 6. Where a parent opposing a request for
court ordered support essentially concedes that some factors do not weigh against
ordering the support-and here, Mr. Lampkin raised only four issues as weighing against
Ms. Coronado's request-the court is entitled to rely on the absence of an objection or
dispute. 	Cf In re Marriage of Morris, 176 Wn. App. 893,906,309 P.3d 767 (2013)
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No. 31335-2-III
In re Parentage ofXT.L.
(examining the record for adequate consideration of only those factors that were disputed
in the trial court).
In opposing the petition, Mr. Lampkin did not identify any of the following factors
as weighing against the postsecondary educ~tion support being requested: "[a]ge of the
child; the child's needs; the expectations of the parties for their children when the parents
were together; [or] the child's prospects, desires, aptitudes, abilities or disabilities."2
RCW 26.19.090(2). We will not review the record for consideration of factors that Mr.
Lampkin never suggested weighed against the support being requested by Ms. Coronado.
We tum, then, to the factors that Mr. Lampkin did identify below as weighing
against the order of support, which he contends were not adequately considered.
Nature of the Education Sought. 	In his declaration opposing the petition, Mr.
Lampkin claimed that "[a]ll I know about the University is what I reviewed in [Ms.
Coronado's] declaration." CP at 91. Ms. Coronado's declaration had included the
university's marketing materials describing Full Sail and its recording arts program,
along with the-son's enrollment agreement and financial aid award letter. Ms. Coronado
was not required to provide exhaustive information on the university and program of
2 At most (and arguably related to the parties' son's aptitudes) Mr. Lampkin
pointed out that Ms. Coronado failed to demonstrate that their son was actively pursuing
the recording arts program and was in good academic standing. But active pursuit and
good standing are conditions of continuing to receive support once it is ordered by the
court; they are not factors considered by the court in determining whether to order
support. Compare RCW 26.19.090(3) with RCW 26.19.090(2).
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No. 31335-2-III
In re Parentage ofXTL.
study. Given the infonnation she provided and the time Mr. Lampkin was pennitted to
respond, he had ample opportunity to further investigate the school if he so desired. His
only specific complaint was that the Full Sail program was expensive.
The trial court found that "the child is enrolled in an accredited college, Full Sail
University, located in Winter Park[,] Florida. Full Sail University is a well known
university in the entertainment industry." CP at 106. The documents submitted to the
court as attachments to Ms. Coronado's declaration are sufficient to support the court's
consideration of this factor.
Parents' Education, Standard of Living, and Resources. 	Whether the support
being requested from Mr. Lampkin was reasonable given the parents' education, standard
of living, and resources was the next factor that Mr. Lampkin argued weighed against
ordering the magnitude of support being requested by Ms. Coronado.
The court's findings as to the monthly net income of the parties in its August 2012
order were those proposed by Ms. Coronado's lawyer. Her lawyer later explained that he
arrived at the figures by reconciling the monthly net income figures from the January
2011 support order with the parties' representations in their most recent declarations.
The figures relied on and the lawyer's reconciliation were as follows:
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No. 31335-2-111
In re Parentage of X T.L.
Ms. Coronado 	Mr. Lampkin
January 2011 finding
regarding net
monthly income.
CP at 5.
$2,232 	$3,457
More recent
representati on
Gross monthly income
had decreased to $1,971
"because of county
budgetary restraints and
work furloughs." 	CP at
26. Ms. Coronado
submitted a September
2011 pay stub showing
$1,967 gross monthly
income. CP at 53.
Net monthly income "is
approximately $2,500
per month, depending on
the number of hours 1
work." CP at 92.
August 2012 finding
regarding net
monthly income.
CP at 99.
$2,200 	$3,000 (approximately)
Ms. Coronado's lawyer explained to the court that he relied for Ms. Coronado's
net monthly income figure largely on the January 2011 support order, because the county
cutbacks and furloughs that had caused her income to drop thereafter would not
necessarily continue. He averaged Mr. Lampkin's figure from the January 2011 order
with Mr. Lampkin's more recent representation because the recent representation was not
supported by any documentation. Cf In re Marriage of Sievers, 78 Wn. App. 287, 305
06, 897 P.2d 388 (1995) (where a parent fails to provide the trial court with credible
information as to net monthly income, the court is justified in relying on the last credible
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No. 31335-2-111
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information or "devis[ing] some other rational means" of determining income "based on
the records available to the court as of the time of trial").
The court had available both the figures in the January 2011 order and the more
recent declarations. We presume that it relied upon that information. Importantly, Ms.
Coronado's proposal was that the parents collectively contribute only two-thirds of the
total cost of their son's education, which she was willing to split evenly with the higher-
earning Mr. Lampkin-in other words, she was not asking that Mr. Lampkin's higher net
income figure increase the percentage he was required to pay. It was therefore less
important for the court to have documentation of an exact net monthly income figure for
the parties, since it had general information from which it could determine that the
support being requested from Mr. Lampkin was fair (or arguably more than fair) to him.
Mr. Lampkin's lawyer had agreed in responding to the petition that "[i]t does not appear
that either [party's] income has substantially changed since the child support order was
entered in January 2011." CP at 83. The court had sufficient information to weigh this
factor.
Support Likely Afforded Absent Dissolution. 	The trial court stated during the
hearing:
[I]f parents are together and their child wants to go to a school that the
parents simply can't afford, then often times that choice isn't made.
But when parents are no longer together and the Court has to get
involved in these types of cases, I think it has to give some credibility to the
young student's desires and talents and aptitude. And although this school
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obviously is more costly than another type of school, I don't think there is
anything repulsive about the choice he made or unreasonable about it.
RP at 15. This is substantially similar to the consideration given this factor in Kelly, 85
Wn. App. at 793-94, which the court found adequate.
Because the trial court's oral and written findings indicate that it considered all of
the factors that Mr. Lampkin argued weighed against the requested support, the trial court
did not abuse its discretion.
II. 	Child support worksheet and pro rata apportionment
Mr. Lampkin next claims that the trial court committed reversible error by failing
to complete and consider a child support worksheet before entering its order establishing
postsecondary education support. He also argues that the trial court erred by failing to
order a pro rata apportionment between the parties.
Addressing the second argument first, Ms. Coronado correctly points out in her
response brief in this court (to which Mr. Lampkin did not reply) that all of the evidence
in the record suggests that her decision not to ask for pro rata apportionment operated in
Mr. Lampkin's favor. 	Whichever set of income figures we look at, Mr. Lampkin had the
higher net monthly income.
Only an aggrieved party may seek review by the appellate court. RAP 3.1. For a
party to be aggrieved, the decision must adversely affect that party's property or
pecuniary rights, or a personal right, or impose on a party a burden or obligation. Sheets
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No. 31335-2-III
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v. Benevolent & Protective Order o/Keglers, 34 Wn.2d 851, 210 P.2d 690 (1949).
Generally, a party is not aggrieved by a decision in his favor, and cannot properly appeal
from such a decision. Paich v. N Pac. Ry. Co., 88 Wash. 163, 152 P. 719 (1915). 	Since
Mr. Lampkin was not aggrieved by Ms. Coronado's suggested 50-50 sharing of the
parties' contribution toward their son's education, we will not consider his argument that
the court was required to make a pro rata allocation.
The aggrieved party issue does not dispose of the need for the court to include a
support worksheet, however, because the net monthly income figures reflected on the
worksheet do more than provide the basis for a pro rata allocation-they inform the
superior court on the amount of the parties' resources in order to determine what amount
the parents can reasonably afford to pay toward a child's postsecondary education.
Child support worksheets, in the form developed by the administrative office of
the courts, are required to be filed "in every proceeding in which child support is
determined." RCW 26.19.035(3); see also Sievers, 78 Wn. App. at 305 (stating that
"[t]here are no exceptions" to the requirement to file worksheets in proceedings in which
child support is determined). A separate statute requires that "[a]ll 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," with "[t]ax returns for the
preceding two years and current paystubs" provided to verify income. RCW
26.19.071(1), (2).
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No. 31335-2-III
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When it comes to decisions on postsecondary support, however, RCW
26.19.090(1) provides that such schedules "shall be advisory and not mandatory." In In
re Marriage ofNewell, 117 Wn. App. 711, 720, 72 P.3d 1130 (2003), the court construed
the statute to reflect a legislative intent "that the standards of the child support schedule
... be used to accurately determine the parents' income and the presumptive
proportionate share of the combined income for each parent before the court determines,
based on the other factors listed in RCW 26.19.090(2), what the percentage allocation
should be." In other words, while not determinative of the superior court's ultimate
allocation, the worksheets provide the information needed for the court to be "properly
advised [and] informed under RCW 26.19.090(1)." Id.
In this case, the superior court did not file a child support worksheet with its
August 2012 order, although the order included findings as to the parties' net monthly
income. If nothing more had happened, then-given the clear requirements of the
statute-we would be constrained to remand for the trial court to file a worksheet unless
we determined it was harmless error.
Here, however, Mr. Lampkin's motion for reconsideration led Ms. Coronado to
prepare and submit a support worksheet that the trial court did enter. While Mr. Lampkin
has a right to attack the court's later-filed support worksheet as unsupported by the
evidence (which he does, as addressed hereafter), he can no longer complain that the trial
court did not file one.
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No.31335-2-III
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The court ultimately complied with the requirement to file a worksheet that
reflected the net monthly income figures for the parties on which it based its August 2012
order. No error is shown.
III. 	Direct payments to Ms. Coronado
Mr. Lampkin next argues the trial court erred in ordering him to make payments
directly to Ms. Coronado.
RCW 26.19.090(6) provides that "[t]he court shall direct that either or both
parents' payments for postsecondary educational expenses be made directly to the
educational institution if feasible." At the close of the hearing on the petition, the trial
court stated that Mr. Lampkin could make payments directly to Full Sail University. Its
final order, however, directed Mr. Lampkin to pay his share of the college cost directly to
Ms. Coronado. It provided the following rationale for its decision:
Mother has obtained loans for the majority of the college cost. Son has
received Pell Grants and some student loans. Mother has agreed that Father
may pay his proportionate share of college cost over 60 months to make it
more affordable to him. Mother's loan payment terms will allow her to
make monthly payments over a period of years. 	The college demands
payment each school term and that cost for school year 20 J J120J2 has
been paid already by mother and son. Father to date has contributed zero.
It is not practical to expect the Father to be able to pay directly to the
college his full share for three years in the remaining two years of school.
CP at 107 (emphasis added).
20

No.31335-2-III
In re Parentage of X TL.
Mr. Lampkin argues that even if we accept the trial court's concern about
feasibility, its order violates RCW 26.19.090 because the parties' son does not reside with
Ms. Coronado. The statute provides that ifdirect payments are not feasible then
the court in its discretion may order that either or both parents' payments be
made directly to the child if the child does not reside with either parent. If
the child resides with one of the parents the court may direct that the parent
making the support transfer payments make the payments to the child or to
the parent who has been receiving the support transfer payments.
RCW 26.19 .090(6). Evidently anticipating this issue, Ms. Coronado proposed an order,
entered by the court, that included the son's signed agreement that Mr. Lampkin should
make payments to Ms. Coronado.
Payment to Ms. Coronado is not the procedure contemplated by the statute but the
parties and the court were faced with an anomalous situation. Given Ms. Coronado's
action in advancing most of the cost of the first academic year, part of what needed to be
accomplished financially was not getting payment to the school, but getting
reimbursement to Ms. Coronado. The court adopted the only practical proposal with
which it was presented for getting Mr. Lampkin's contributions to Ms. Coronado. We
"will not reverse the trial court's decision absent a manifest abuse of discretion." State ex
rel. MMG. v. Graham, 159 Wn.2d 623,633, 152 P.3d 1005 (2007).
Mr. Lampkin protested in moving for reconsideration that Ms. Coronado's
argument that it was not practical for him to pay the college is "made entirely without
factual or evidentiary support." CP at 131. But Ms. Coronado explained why she
21

No. 31335-2-111
In re Parentage ofX TL.
believed there was no feasible alternative. At no point in the process has Mr. Lampkin
demonstrated a feasible option that Ms. Coronado failed to consider. Based on the
record, we believe the trial court would have gone along with any proposal for direct
payment to the university that Mr. Lampkin could demonstrate would work-after all, it
said as much in its oral ruling. Mr. Lampkin simply never presented the court with a
workable alternative.
Since the court's discretion included directing Mr. Lampkin to make payments to
the son, and the son-an adult- authorized payment to his mother, the court did not
abuse its discretion.
IV. 	Evidence sufficiency
Mr. Lampkin challenges several of the findings contained in the trial court's
August 2012 postsecondary education support order. He did not timely raise these
objections during the original presentment process and the trial court was under no
obligation to entertain the motion for reconsideration. 	The trial court's letter to counsel
denying the motion arguably implies that the court considered the arguments on the
merits, however, thereby preserving the issues for appeal.3
3 "CR 59 provides that on the motion of an aggrieved party the court 'may' vacate
an interlocutory order and grant reconsideration. The trial court's discretion extends to
refusing to consider an argument raised for the first time on reconsideration absent a good
excuse." River House Dev. Inc. v. Integrus Architecture, PS, 167 Wn. App. 221, 231,
272 P.3d 289 (2012) (citing Rosenfeld v. Us. Dep 't ofJustice, 57 F.3d 803, 811 (9th Cir.
1995) (applying parallel federal rule)). 	If it can persuade the trial court to consider a
22

No. 31335-2-111
In re Parentage of XTL.
We review a court's findings supporting an order modifying child support for
substantial evidence. 	Goude, 152 Wn. App. at 790. "'Substantial evidence' is that which
is sufficient to persuade a fair-minded person of the declared premise." Id.
Net Monthly Income Figures. 	Mr. Lampkin first claims that the net monthly
income figures reflected in the worksheet adopted and filed by the court were
inconsistent with the parties' declarations submitted in connection with the petition for
modification. As earlier discussed, however, Ms. Coronado's lawyer regarded the
parties' most recent testimony as to their income as relatively unreliable and therefore
averaged the recent figures with older but better documented figures from the superior
court's January 2011 order. This was a reasonable approach. Mr. Lampkin failed to
support his more recent representation of his income with a current pay record and prior
year's tax returns as required by statute, so he cannot be heard to complain. 	Cf Sievers,
78 Wn. App. at 305; RCW 26.19.071(2) (providing that "[t]ax returns for the preceding
two years and current paystubs shall be provided to verify income and deductions").
The net monthly income figures set forth in the trial court's worksheet are
supported by substantial evidence.
motion for reconsideration, a party may preserve an issue for appeal that is closely related
to a position previously asserted and that does not depend on new facts. 	Id. (citing
Newcomer v. Masini, 45 Wn. App. 284, 287, 724 P.2d 1122 (1986); Reitz v. Knight, 62
Wn. App. 575,581 nA, 814 P.2d 1212 (1991)).
23

No. 31335-2-111
In re Parentage of X T.L.
Term of Payment. 	Mr. Lampkin next argues that language that the court's order
"shall be in effect for the cost of college education for the accelerated three year degree
program" is inconsistent with its finding, elsewhere, that "Mother has agreed that Father
may pay his proportionate share of college cost over 60 months to make it more
affordable to him." CP at 102 (§ 3.16) (capitalization omitted), 107 (§ 3.23(5)).
Substantial evidence supports the finding at section 3.23(5); Ms. Coronado offered a five-
year repayment option by declaration, in her memorandum, and in her lawyer's
argument.
Section 3.16 is not a finding and cannot present a substantial evidence issue. Nor
is it inconsistent with the court's finding of a five-year repayment option. Section 3.16
simply recognizes that the support order will continue to dictate Mr. Lampkin's liability
for payment toward the cost of the three-year program (whether his payment toward that
cost takes place over three years, or more) absent a substantial change of circumstances.
Income Tax Exemptions. 	Mr. Lampkin complains that the support order makes
provision for income tax exemptions, yet "the trial qourt made no findings and took no
evidence concerning income tax exemptions." Br. of Appellant at 20.
Ms. Coronado's proposed August 2012 order, entered by the court, was prepared
using a standard court form, WPF PS 01.0500,4 that is used statewide in Washington
4 Available at https:llwww.courts.wa.gov/formsl?fa=forms.contribute&formID=8.
24

No. 31335-2-III
In re Parentage of X T.L.
courts. See RCW 26. 18.220( 1) (directing the administrative office of the courts to
develop standard court forms "for mandatory use by litigants in all actions commenced
under chapters 26.09, 26.10, and 26.26 RCW"). The form, used for support modification
orders, includes a section 3.17, captioned "Income Tax Exemptions," that can be
completed in four ways. Ms. Coronado's lawyer completed section 3.17 in the same way
it had been completed in the January 2011 order, since neither party asked that the
income tax exemption treatment be modified.
Section 3.17, like section 3.16, is not a finding and is not subject to a substantial
evidence challenge. We would also point out that while Ms. Coronado might have
completed section 3.17 to indicate that "no change is requested from the prior support
order," we see no error in simply carrying forward the tax exemption provision as it
existed in the prior support order.
Health Insurance. 	Mr. Lampkin similarly challenges the support order's findings
at section 3.18 that medical coverage for the parties' son was available and accessible to
him at no incremental cost, that he should provide medical coverage through his
employment, and that Ms. Coronado should be excused from providing medical
coverage. He again argues that no information or documentation was presented to
support the court's findings.
The January 2011 support order included substantially similar findings. 	The only
change to the health insurance provisions of the January 2011 order requested by Ms.
25

No. 31335-2-111
In re Parentage ofX T.L.
Coronado was "[t]hat the father be required to maintain the child's health insurance." CP
at 24. In responding to the petition, Mr. Lampkin neither responded to this request for
modification nor did he request any changes of his own to the medical insurance
provisions of the prior support order. Here again, since no modification was requested by
Mr. Lampkin, the order proposed by Ms. Coronado in August 2012 (un surprisingly)
carried forward the health insurance provisions of the prior order.
Uninsured Medical Expenses. 	Finally, Mr. Lampkin complains that there was no
basis for the allocation of uninsured medical expenses-58 percent to him, 42 percent to
Ms. Coronado-- reflected in the August 2012 order. Ms. Coronado's proposed August
2012 order, entered by the trial court, reflected that new 58 percent/42 percent allocation,
which was based on her proposed updated, averaged net monthly income figures for both
parties. The allocation of uninsured medical expenses under the January 2011 order had
been 61 percent to Mr. Lampkin and 39 percent to Ms. Coronado.
We have already found the averaging of the net monthly income figures was
reasonable and supported by substantial evidence. 	We have also already observed that
Mr. Lampkin benefits when these updated figures are used. He is not an aggrieved party.
Had the modification not been made, he would be paying more under the prior order.5
5 Mr. Lampkin devotes several paragraphs of his brief to the alleged insufficiency
of evidence to support the trial court's "additional findings" set forth in section 3.23 of
the August 2012 order. 	Our disagreement with these challenges has been explained in
addressing related issues. For that reason, and because Mr. Lampkin must show that an
26

No. 31335-2-II1
In re Parentage ofX T.L.
V. 	"Retrospective" child support for first academic year
Mr. Lampkin next argues that as a matter of equity he should not be required to
contribute toward the cost of his son's first year of college, since it was completed before
the August 2012 order establishing his support obligation. He relies on theories of
waiver, equitable estoppel, and laches.
Waiver is the voluntary and intentional relinquishment of a known right. River
House Dev., Inc. v. Integrus Architecture, PS, 167 Wn. App. 221, 237,272 P.3d 289
(2012). Mr. Lampkin presents no evidence that Ms. Coronado or the parties' son
intended to relinquish their right under the court's January 2011 support order to have
Mr. Lampkin contribute a fair share of the college cost. The order belies any such intent,
stating that both parents would be responsible for contributing and that this postsecondary
education support would "be decided by agreement or by the court." CP at 8. By Mr.
Lampkin's own admission, he had no communication with Ms. Coronado or his son
about the support issue between the time of the January 2011 order and the filing of the
petition to modify. Moreover,
[i]t is well settled that parents cannot agree to waive child support
obligations. Such agreements are against public policy and do not affect
subsequent requests for child support. Courts have found such agreements
unenforceable even if in a final order agreed upon by the parties and not
appealed. This is based on the principle that child support is held in trust
unsupported finding of fact resulted in an unsupported conclusion of law-something he
does not do-we will not address the "additional findings" further.
27

No. 31335-2-111
In re Parentage of X T.L.
by the parents for the children and, hence, parents have no right to waive
their children's right to that support.
In re Marriage of Hammack, 114 Wn. App. 805,808,60 P.3d 663 (2003) (citations
omitted).
Mr. Lampkin next argues that Ms. Coronado should be equitably estopped to
receive a contribution reimbursing the postsecondary education costs she advanced
before obtaining the August 2012 order. The doctrine of equitable estoppel may apply
"where one party makes an admission, statement, or act, which another party justifiably
relies on to its detriment." Schoonover v. State, 116 Wn. App. 171, 179, 64 P.3d 677
(2003). Equitable estoppel is not favored, and the party asserting it must establish by
clear, cogent, and convincing evidence (1) an admission, act, or statement inconsistent
with a later claim; (2) another party's reasonable reliance on the admission, act, or
statement; and (3) injury to the relying party if the court allows the first party to repudiate
the earlier admission, statement, or act. Howard v. Dimaggio, 70 Wn. App. 734, 739,
855 P.2d 335 (1993).
Mr. Lampkin fails to establish any of these elements. There was no admission,
statement, or act by Ms. Coronado that was inconsistent with her February 2012 petition
to establish the amount of Mr. Lampkin's support obligation. Mere silence will not give
rise to estoppel unless the silent party had a duty to speak; even then, it is necessary that
the party claiming to have relied either lacked knowledge ofthe true facts or could not
28

No. 31335-2-111
In re Parentage of X T.L.
acquire them. Id. at 741. Particularly in light of Ms. Coronado's clear communication
through the January 20 II order that she expected Mr. Lampkin to contribute toward their
son's college costs, she had no duty to speak further during the months she and her
lawyer prepared to file the petition. Under the circumstances, Mr. Lampkin could not
reasonably rely on silence alone.
Mr. Lampkin also fails to present evidence (let alone clear and convincing
evidence) of injury. He complains that he was not given an opportunity to provide input
into his son's selection of a college. But by his own admission, Mr. Lampkin never took
the initiative to reach out and share thoughts with his son about the son's impending
college choice. Mr. Lampkin does not explain why it was his son's or Ms. Coronado's
responsibility to consult him on an issue as to which he had demonstrated no interest.
Mr. Lampkin nonetheless relies on Hartman v. Smith, 100 Wn.2d 766, 768-69,
674 P.2d 176 (1984), which recognized that equitable principles can mitigate the
harshness of claims for retrospective support when they do not work an injustice to the
custodial parent or a child. The father in Hartman consented to his child being adopted
by the mother's new husband with the understanding that he was thereby relieved of any
support obligation. He also relinquished all parental rights save that of reasonable
visitation and for a significant period was denied even that. 	When, seven years later, the
adoption was vacated as void, the mother sought back child support for the seven-year
period. Hartman is clearly distinguishable from the present facts. Not only did Hartman
29

No. 31335-2-III
In re Parentage o/X TL.
involve affinnative representations on which the father relied, but a tangible personal
injury of having relinquished parental rights for seven years.
Finally, Mr. Lampkin argues that Ms. Coronado is barred from seeking
reimbursement for the first year by the doctrine of laches. 	On the proper facts, laches
applies to claims for past-due child support. In re Marriage o/Watkins, 42 Wn. App.
371, 710 P.2d 819 (1985) (laches applied where mother waited five and one-half years to
seek past-due child support, during which father did not seek visitation and incurred
financial obligations he would have forsaken had he anticipated enforcement ofthe child
support obligation). To establish laches, Mr. Lampkin must prove that "(1) the plaintiff
had knowledge of the facts constituting a cause of action or a reasonable opportunity to
discover such facts; (2) there was an unreasonable delay in commencing the action; and
(3) there is damage to the defendant resulting from the delay." Id. at 374. "Absent
unusual circumstances, the doctrine of laches should not be invoked to bar an action short
of the applicable statute of limitation." In re Marriage o/Hunter, 52 Wn. App. 265,270,
758 P.2d 1019 (1988).
Ms. Coronado filed her petition within eight months of the time her son graduated
from high school and commenced on-line courses at Full Sail University. And as
discussed earlier, Mr. Lampkin has demonstrated no injury from the eight-month delay.
Since the delay was not unreasonable nor was Mr. Lampkin damaged, laches is not a bar
30

No. 31335-2-II1
In re Parentage of X T.L.
to Ms. Coronado's request that the amount and duration of Mr. Lampkin's contribution
be set by the court.
VI. 	Motion to strike
Finally, Mr. Lampkin challenges the trial court's November 2012 order denying
his motion to strike the declaration that Ms. Coronado filed in response to his motion for
reconsideration. The declaration consisted of a one-page attestation from Ms. Coronado
that "the attached Declaration signed by me is true and correct," CP at 151; a single-
spaced, two-page attached letter from her to the trial judge; a two-page attached letter to
the judge with a signature block for her son but which was not signed; and additional
documentation from Full Sail University, including the academic transcript and
certificate of good standing. Mr. Lampkin argues, first, that because he had not raised
new evidence or material in moving for reconsideration, CR 59(a)(4) barred Ms.
Coronado from offering new information; second, that her declaration was filled with
hearsay and speculation and failed to adequately authenticate its attachments; and third,
that one attachment-the letter from the parties' son-was an unsworn letter that did not
comply with GR 13 and itself contained speCUlation and hearsay.
"A ruling on a motion to strike is within the trial court's discretion." Burmeister v.
State Farm Ins. Co., 92 Wn. App. 359, 365, 966 P.2d 921 (1998). "[A] trial judge is
presumed to know the rules of evidence and is presumed to have considered only
admissible evidence." In re Marriage of Morrison, 26 Wn. App. 571, 575 n.2, 613 P.2d
31

No. 31335-2-111
In re Parentage ofX T.L.
557 (1980). A trial court may nonetheless abuse its discretion if it denies a motion to
strike by applying the wrong legal standard and considers evidence for a purpose for
which the evidence is not admissible. See Orion Corp. v. State, 109 Wn.2d 621,638, 747
P.2d 1062 (1987) (court did not err in refusing to strike affidavit as long as it considered
it for a limited purpose).
Unless a motion under CR 59 is based on affidavits or declarations, the rule does
not contemplate the submission of opposing affidavits. See CR 59(c); Awana v. Port of
Seattle, 121 Wn. App. 429, 432, 89 P.3d 291 (2004) (holding response declarations
"improper under the rule governing submissions in connection with a motion for
reconsideration"). Mr. Lampkin correctly characterizes some portions of the letters from
Ms. Coronado and her son as containing inadmissible hearsay and speculation. He also
identifies shortcomings in Ms. Coronado's authentication of the declaration's attachments
and the unsworn, uncertified character of the son's letter.
There is some indication in the record that the trial court considered Ms.
Coronado's declaration and its attachments in denying the motion for reconsideration; its
letter informing the parties of its decision on the motion stated that "[t]he Respondent
mother ... has adequately and sufficiently responded to the father's memorandum." CP
at 182. Insofar as the court was referring to Ms. Coronado's submission of her son's
academic transcript and certificate of good standing, we find no error. We have already
observed that the failure to provide those earlier was not a shortcoming in Ms.
32

No. 31335-2-111
In re Parentage of X TL.
Coronado's petition for modification; Mr. Lampkin was simply entitled to have the
provision of that information included as a condition to his continuing payment, as it
ultimately was.
To the extent that the trial court might have erred in reviewing other information
provided by Ms. Coronado's September declaration, the error was harmless. We have
already concluded that the trial court's factual findings were supported by sufficient
evidence provided by Ms. Coronado's original submissions. 	We see no respect in which
any error by the trial court in considering inadmissible evidence could have changed the
result. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432,452, 191 P.3d 879 (2008).
("The error [of admitting improper hearsay] is harmless unless it was reasonably probable
that it changed the outcome of the trial.").
VII. 	Attorney fees
Ms. Coronado requests an award of attorney fees and costs under RCW 26.18.160,
RCW 26.09.140, RAP 18.1, and other applicable law.
RCW 26.18.160 applies to actions to enforce existing support obligations, not to
actions brought to establish, modify, adjust, or clarify a support obligation. In re
Marriage of Bell, 101 Wn. App. 366,379,4 P.3d 849 (2000); In re Marriage ofOblizalo,
54 Wn. App. 800, 805-06, 776 P.2d 166 (1989). Because this was not an enforcement
action, fees are not available under RCW 26.18.160.
33

No. 31335-2-111
In re Parentage ofX T.L.
We may award attorney fees under RCW 26.09.140, but only "after considering
the financial resources of both parties." RCW 26.09.140; In re Marriage ofLeslie, 90
Wn. App. 796, 807, 954 P.2d 330 (1998). RAP 18.1(c) requires that each party file an
affidavit of financial need "[i]n any action where applicable law mandates consideration
of the financial resources of one or more parties regarding an award of attorney fees and
expenses." Because Ms. Coronado did not file the affidavit required by RAP 18.1(c), we
will not consider her request for fees on a financial need basis.
Fees are denied; the trial court's August 21, November 8, and November 16,2012
orders are affirmed.
A majority of the panel has determined that this opinion will not be printed in the
Washington Appellate Reports but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
34