Opinion
No. 53763-6-I
Filed: May 2, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Whatcom County. Docket No: 98-3-00386-3. Judgment or order under review. Date filed: 01/09/2004. Judge signing: Hon. David a Nichols.
Counsel for Appellant/Cross-Respondent, Denise C. George, Attorney at Law, 1118 Finnegan Way # a, Bellingham, WA 98225-6622.
Counsel for Respondent/Cross-Appellant, David A. Elofson, Menke Jackson Beyer Elofson LLP, 807 N 39th Ave, Yakima, WA 98902-6389.
A contempt judgment against Larry Bond for failure to pay child support stated that interest would accrue on all amounts in the judgment except the amount awarded for interest. Years later, in response to Bond's motion for satisfaction of judgment, the trial court ordered Bond to pay interest on unpaid interest, contrary to the terms of the contempt judgment. We affirm, however, because the amount that Bond owed under the contempt judgment was not interest.
FACTS
Larry Bond and Margaret Rauch (formerly Margaret Bond) divorced in 1984. In 1993, the Yakima County Superior Court found Larry Bond in contempt for failing to pay child support and ordered him to pay the following amounts:
Principal judgment amount (Back support from April 16, 1984 to July 2, 1993) $17,828 Interest to the date of judgment 13,667 Attorney fees 300 Costs 55 Other recovery amount ($706 previous fees and $330.89 unpaid medical) 1,036
Figures are rounded to the nearest dollar.
The judgment specified that the principal judgment, attorney fees, costs, and other recovery amounts, would bear interest at 12 percent per annum. In other words, all but the amount awarded for interest would accrue interest.
In 2003, Bond filed a motion in Whatcom County Superior Court for satisfaction 'any and all judgments . . . for past due child support and/or interest thereon owing[.]' In support of his motion, Bond presented Department of Social and Health Services (DSHS) records showing his child support payment history from October 1991 to July 2003. Those records reflected a credit in September 1993 for $17,828, which was the principal amount of the contempt judgment. Bond claimed that other evidence showed that in 2001, DSHS agreed on Rauch's behalf to accept $100 per month to pay off the $13,667 in remaining interest he owed under the contempt judgment. According to Bond, as of September 2003, he owed Rauch $10,867, which he directed an escrow company to pay her.
Rauch knew nothing about Bond's agreement with DSHS and said she would not have agreed to relinquish her right to demand immediate payment by allowing Bond to make monthly payments. She acknowledged that Bond paid an amount in 1993 sufficient to satisfy the 'principal judgment' amount in the contempt judgment. But because of Bond's history of nonpayment, she applied that payment first to interest and then to Bond's back support debt.
The trial court did not specifically decide whether Bond's 1993 payment was for principal or interest under the contempt judgment. The court ruled only that Bond must pay '12 percent per annum' interest 'upon the interest judgment established in the Yakima County Order dated October 4, 1993.'
ANALYSIS Despite Error, Outcome Was Correct
Bond argues that the trial court erred when it held that he must pay interest on the interest judgment. While we agree, that does not determine the result in this case. The contempt judgment stated that interest would accrue on all amounts in the judgment except the amount for interest. Absent evidence that the 1993 judgment was not what that court intended, the court in this case could not disregard the contempt judgment and order Bond to pay interest on the interest.
But we may affirm the lower court on any basis established by the pleadings and supported by the record. In re Marriage of Rideout, 150 Wn.2d 337, 358, 77 P.3d 1174 (2003). The pleadings and record support the outcome requiring Bond to pay interest on the amounts owing on the judgment because Rauch was free to allocate Bond's payments as she saw fit, and she allocated the payments to interest before principal.
Generally, unless the debtor specifically instructed the creditor how to apply payments, the creditor may apply them to any part of the debt. Oakes Logging, Inc. v. Green Crow, Inc., 66 Wn. App. 598, 601, 832 P.2d 894 (1992). If neither party appropriated payments to a particular part of the debt, the court will apply them "according to its own notion of the intrinsic equity and justice of the case." Oakes Logging, 66 Wn. App. at 602, (quoting Post Intelligencer Publ'g Co. v. Harris, 11 Wash. 500, 502, 39 P. 965 (1895)).
Bond did not instruct Rauch how to apply his payments. She, therefore, could decide how to apply them. She allocated the payments first to current support obligations, then to interest, and finally to principal. By applying the payments to interest before applying them to back support, Rauch assured that Bond did not benefit from his nonpayment. Therefore, when Bond did not pay all that he owed under the contempt judgment, the unpaid amount of the judgment continued to accrue interest.
Bond claims that he relied upon his agreement with DSHS and its documentation to establish the amount that he owed. But Bond, who filed the motion for satisfaction of judgment, had the burden to show that the DSHS evidence entitled him to judgment. He did not establish that the DSHS records were proof of the amount he owed or that DSHS had the authority to determine how the debt would be paid. Nor did he show that he had a right to rely upon representations made by DSHS in relation to the debt he owed Rauch.
Bond failed to prove that he owed Rauch only the amount that DSHS said he owed. In contrast, Rauch showed that she allocated Bond's payments to interest before principal and that it was fair to make Bond pay for his late payments. Therefore, although the trial court could not disregard the clear language of the contempt judgment, the same result is reached by requiring Bond to pay interest on the unpaid amount under the judgment.
Cross-Appeal Is Dismissed
Rauch filed a cross-appeal, but she indicated that she would abandon it if this court affirmed the trial court. Because we affirm the trial court's decision, the cross-appeal is dismissed.
Rauch Is Awarded Attorney Fees On Appeal
Rauch asks for her attorney fees on appeal, citing RCW 26.18.160, which entitles the prevailing party costs, including attorney fees, in an action to enforce a support order. Rauch is the prevailing party and, therefore, is entitled to recover the costs, including attorney fees, of this appeal.
RCW 26.18.160 provides: 'In any action to enforce a support or maintenance order under this chapter, the prevailing party is entitled to a recovery of costs, including an award for reasonable attorney fees. An obligor may not be considered a prevailing party under this section unless the obligee has acted in bad faith in connection with the proceeding in question.'
CONCLUSION
By allocating Bond's payments as Rauch did, the interest amount of the contempt judgment was eliminated first. As such, the unpaid amounts accrued interest.
The decision of the trial court is affirmed. Rauch is awarded her attorney fees on appeal and is directed to comply with RAP 18.1.
COLEMAN, J., GROSSE, J. and COX, C.J.