In re Leaver

499 P.3d 222

In the MATTER OF the MARRIAGE OF: Cynthia LEAVER, Respondent, and Brian Leaver, Appellant.

No. 37743-1-III

Court of Appeals of Washington, Division 3.

FILED NOVEMBER 30, 2021

Jenna McKay Hatch, Attorney at Law, 430 W Indiana Ave., Spokane, WA, 99205-4719, for Appellant.

Douglas Robert Hughes, Hughes & Nelson, PLLC, 505 W Riverside Ave. Ste. 650, Spokane, WA, 99201-0511, for Respondent.

OPINION PUBLISHED IN PART

Pennell, C.J.

¶ 1 Divorce is expensive. When the parties to divorce have disparate earning capacities, post-dissolution maintenance provides a method for softening the economic blow. Maintenance is generally limited in time and tailored to the period necessary for the requesting spouse to get back on their feet. But in rare cases, the requesting spouse has little prospect of reaching financial independence. In such circumstances, long-term or even lifetime maintenance may be warranted.

¶ 2 Brian Leaver's¹ case is one where long-term maintenance may be warranted. For over 20 years, Brian was a stay-at-home father with minimal exposure to outside employment. At the parties’ dissolution trial, Brian presented uncontested expert testimony that his longstanding mental health conditions, including depression and anxiety, significantly impaired his ability to join the workforce and gain financial independence. Yet the trial court rejected this testimony, instead agreeing with Cynthia Leaver's personal opinion that Brian could do more if he would just put his mind to it. Although the Leavers had a long-term marriage with a high standard of living, and Cynthia had the capacity to pay maintenance, the trial court agreed with Cynthia that Brian's maintenance should be tapered off over the course of just two years. The trial court's adoption of Cynthia's untrained lay opinion over that of the qualified experts was an abuse of discretion, not supported by substantial evidence. We therefore reverse and remand.

BACKGROUND

The parties’ marriage

¶ 3 Cynthia and Brian Leaver married in November 1994. Throughout the majority of their marriage, Cynthia was the primary wage earner and Brian was the primary homemaker. The Leavers had four children and shared equally in parenting responsibilities. While both Cynthia and Brian worked outside the home at the beginning of their marriage, Brian began staying home in 1998, just before the birth of their first child. In 2011, Brian began sporadic part-time work for his brother, earning $20 per hour. Meanwhile, Cynthia became the chief financial officer (CFO) and strategy officer for Numerica Credit Union.

¶ 4 Cynthia's income "steadily increased" and did so "dramatically" during the last 10 years of the marriage. 2 Report of Proceedings (RP) (Jan. 15, 2020) at 619. As Numerica's CFO, Cynthia was one of company's seven "C-level" employees. 1 RP (Jan. 14, 2020) at 410-11. She consistently received an annual raise anywhere between 3 percent and 15 percent of her salary. She also received an annual bonus and recalled only one year, 2009, in which she did not receive any bonus. The size of the bonuses varied, but Cynthia's 2019 net bonus for work performed in 2018 was just shy of $40,000. At the time of the August 2020 final divorce order, Cynthia's monthly net income was $18,118.00. Her 2018 gross annual pay from Numerica was $421,605.00, with net annual pay after taxes and deductions totaling $241,350.05.

¶ 5 The Leavers "bought what [they] needed" to buy and fixed what they needed to fix. 2 RP (Jan. 15, 2020) at 619. They dined outside the home for roughly half of their meals. They purchased tickets to Gonzaga University's basketball games annually, beginning when Gonzaga first opened the McCarthey Athletic Center. At the time the Leavers separated, they lived in a home valued at $485,000.

¶ 6 While the Leavers enjoyed a very comfortable standard of living, they also carried significant debt. The Leavers often carried high credit card balances that were paid off with Cynthia's annual bonuses. The Leavers accrued some debt purchasing dental braces and a personal computer for the children. They had two mortgages on their home and loans on two of their vehicles. When the final divorce order was entered in August 2020, the Leavers had a community debt of over $500,000. The family had almost no liquid assets.

Pretrial dissolution proceedings

¶ 7 Cynthia petitioned for divorce on May 25, 2018, after roughly 24 years of marriage. The parties stipulated that they separated on the same date the petition was filed, although Brian did not physically move out of the family home until a later date. The parties came to an agreement on a parenting plan in September, and in October a court commissioner entered a temporary maintenance order pending final dissolution. The initial monthly maintenance award totaled $3,494 with an increase to $3,846 starting in January 2019. Under the terms of the order, Cynthia was required to pay certain monthly expenses for Brian, such as rent, as well as make separate payment directly to Brian.

¶ 8 From reviewing the parties’ financial declarations, the commissioner observed Cynthia and Brian had significant discretionary spending, including prepetition expenditures for online shopping, personal care, and meals out. The commissioner noted in her order that Cynthia and Brian would need to reduce their monthly expenses so as to accommodate the needs of two separate households. With this in mind, the commissioner reduced the amounts allocated for various categories of budgeted expenses in determining the temporary maintenance award.

¶ 9 Despite the commissioner's temporary maintenance order, Cynthia was unable to reduce her expenses. In fact, her post-separation expenses increased. The increased expenditures were partly due to the fact Brian was no longer around to cook and perform household tasks. But in addition, Cynthia cited her professional position, noting a lot was expected of her in terms of the way she dressed and philanthropic donations. Cynthia continued to live in the family home, which she described as a "big house" that was "expensive to maintain." 1 RP (Jan. 13, 2020) at 196.² Cynthia testified it was challenging to limit her children's spending. During the summer of 2019 the children wanted to erect an above-ground pool in the family's back yard. Cynthia spent approximately $4,700 in alterations to the yard to make way for the pool. Cynthia also took the children on trips to places like Banff, Canada; Portland, Oregon; and Missoula, Montana. The main area in which Cynthia was able to reduce expenses was to eliminate voluntary contributions to her retirement account.

¶ 10 While Cynthia stayed in the family home, Brian moved to a nearby apartment with rent of approximately $1,700 per month. Brian spent little money during the separation period because he was uncertain of his finances or what his obligations might be post-dissolution. He calculated his total monthly expenses as at least $4,346. The primary assets retained by Brian during the separation period were some home furnishings, a 2013 Toyota Sienna, and a laptop computer. Brian did not have any separate property. He accumulated $2,200 in debt to his siblings due to medical expenses.

The dissolution trial

¶ 11 The parties disputed the financial terms of their dissolution and took their case to trial in January 2020. Brian requested, pursuant to RCW 26.09.090, lifetime maintenance in the amount of $5,500 per month. Brian asserted he suffers from mental and emotional disabilities that preclude his re-entry into the workforce. Cynthia disagreed with Brian's position. She believed Brian capable of working and being financially independent. She requested the court impose a "sink-or-swim type of an order" that would phase out maintenance over the course of two years. 2 RP (Jan. 16, 2020) at 827.

Brian's position regarding mental health and work capacity

¶ 12 Brian's trial evidence demonstrated a longstanding history of mental and physical health struggles. Brian was 49 years old at the time of trial. He attempted suicide at age 18.³ He carries several mental health diagnoses, including major depression and anxiety. Brian presented testimony from his longtime psychiatrist⁴ and a neuropsychological evaluator. The professional testimony indicated Brian's mental health conditions are "severe" and "treatment resistant." 1 RP (Jan. 13, 2020) at 231, 291; 2 RP (Jan. 15, 2020) at 710. Brian has occasional suicidal ideation, is at an elevated risk for suicide, and was hospitalized three times during the course of the divorce proceedings.

¶ 13 Brian's depression is "cyclical." Ex. R-117 at 1; see also 2 RP (Jan. 15, 2020) at 710-11. At times, Brian has shown signs of improvement. However, he then goes through "cycles of shutting down and not doing well with longer episodes of depression and anxiety." Ex. R-117 at 1. Brian's depression does not necessarily prevent him from "running small errands" or "getting his children to and from school," but it does make it more difficult for him to "leave the house." 2 RP (Jan. 15, 2020) at 713. Exercise is therapeutic for Brian's condition.

¶ 14 Unlike his depression, Brian's anxiety is "constant." Id . at 714. Brian regularly struggles with fear of leaving the house or interacting with others. At times it is difficult for him to get out of bed and he will need hours or days to collect himself.

¶ 15 According to his psychiatrist and the neuropsychological evaluator, Brian's mental health conditions negatively impact his ability to work. Both professionals consider Brian "disabled." 1 RP (Jan. 13, 2020) at 248; 2 RP (Jan. 15, 2020) at 711. Brian's psychiatrist testified he was "skeptical" Brian would ever be able to find an appropriate work setting. 2 RP (Jan. 15, 2020) at 721. According to the psychiatrist, Brian's anxiety would be escalated by a return to the workforce and he would "probably need a lot of support, encouragement, probably repeated tries." Id . at 727.

¶ 16 While...