Opinion
No. 56421-8-I.
December 11, 2006.
Appeal from a judgment of the Superior Court for King County, No. 94-3-08691-3, Stephen Gaddis, J. Pro Tem., entered April 27, 2005.
Counsel for Appellant(s) Michael Patrick Crossan (Appearing Pro Se), Maple Valley, WA.
Counsel for Respondent(s) Jane Catherine Rhodes Attorney at Law, Kent, WA.
Affirmed by unpublished per curiam opinion.
Michael Crossan appeals a trial court's decision modifying an order of child support. Crossan had asked the trial court to modify the order, but he did not submit any proof of his financial situation. The trial court modified the order of support, but imputed income to Crossan and declined to apply the "whole family formula." Under the circumstances, the trial court did not err.
Michael Crossan and Rebecca Crossan, now known as Rebecca Powers, divorced in 1995. Under the parenting plan, the couple's three children were to reside with Powers. In 2003 their son moved in with Crossan, and in 2004 Crossan's business was declared bankrupt.
On April 30, 2004, Crossan petitioned to modify the order of support. The court agreed to modify the order, but it found Crossan to be voluntarily unemployed No. 56421-8-I and, therefore, imputed an income of $4,000 per month to him. Crossan asked the court to deviate from the basic support obligation because he has more children to support from his current marriage, but the court refused because Crossan failed to provide financial documents to verify his income. The court ordered Crossan to pay Powers $704 per month from May 1, 2004 until June 30, 2005, and $800 per month from July 1, 2005 until their twin daughters graduated from high school. The court also ordered Crossan to pay $2,000 of Powers' attorney fees.
Crossan appeals. Acting without counsel, Crossan asks this court to: (1) set child support based upon figures set forth in a child support worksheet he submitted to the trial court; (2) overturn the attorney fees award; (3) order child support to continue only until the twins turn 18, and (4) change the starting date of the modification to April 2004.
A trial court's decision concerning modification will not be reversed on appeal absent an abuse of discretion. A court abuses its discretion if its decision is based upon unreasonable or untenable grounds.
Lambert v. Lambert, 66 Wn.2d 503, 508, 403 P.2d 664 (1965).
In re Marriage of Dodd, 120 Wn. App. 638, 644, 86 P.3d 801 (2004).
Citing RCW 26.19.071 and King County Local Family Law Rule (LFLR) 10(b), Crossan argues that the trial court erred because it did not set child support based upon his income as reflected in his tax returns. The trial court did not err.
RCW 26.19.071 sets the standards for determining income in dissolution proceedings. The first section of the statute provides that "[a]ll income and resources of each parent's household shall be disclosed and considered by the court" when it determines each parent's child support obligation. Current pay stubs and tax returns for the previous two years are to be provided to verify income.
RCW 26.19.071(1).
RCW 26.19.071(2).
LFLR 10(a)(1) requires each party to submit a financial declaration whenever the court is asked to decide an issue relating to child support. A previously prepared financial declaration may be used only if the information within that declaration remains accurate. The local rule requires parties to support their financial declarations with documents, including pay stubs, personal tax returns, W-2s, and other relevant statements, to verify their incomes.
LFLR 10(a)(2).
LFLR 10(b).
Crossan did not submit a financial declaration, tax returns, personal bank statements, or any other documents to verify his income. He submitted two child support worksheets that included income figures, but the income figures on each worksheet were different and were described as "imputed," rather than being based upon actual earnings. Crossan cites pages in the trial court record that he claims show his actual income "for the last 3 years and is reflected in my tax returns." The citations, however, are to Crossan's declaration, which does not include any information establishing how much he earns. Crossan did not provide the trial court with his recent tax returns or any other proof of his actual income. Therefore, the court did not abuse its discretion by failing to order child support based upon the earnings reflected on his tax returns.
Crossan next argues that the trial court erred because it imputed income to him based upon what he earned in 1995 when he and Powers divorced. Crossan contends that imputing income based upon past earnings violates RCW 26.19.071(2), LFLR 10(b), LFLR 14(b), and In re Marriage of Payne.
82 Wn. App. 147, 916 P.2d 968 (1996).
As discussed previously, RCW 26.19.071 sets the standards for determining income in dissolution proceedings. Section (2) of that statute states that "[t]ax returns for the preceding two years and current paystubs shall be provided to verify income and deductions. Other sufficient verification shall be required for income and deductions which do not appear on tax returns or paystubs." Similarly, LFLR 10(b) requires parties to submit relevant documents to verify their incomes when the court is asked to decide an issue related to child support, and LFLR 14(b) requires parties to file a financial declaration and relevant supporting documents to verify their incomes in proceedings to modify child support.
Section (6) of RCW 26.19.071 authorizes a court to impute income to a party who is voluntarily unemployed or voluntarily underemployed:
The court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed. The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent's work history, education, health, and age, or any other relevant factors. . . . In the absence of information to the contrary, a parent's imputed income shall be based on the median income of year-round full-time workers as derived from the United States bureau of census, current populations reports, or such replacement report as published by the bureau of census.
RCW 26.19.071(6).
Crossan did not assign error to the trial court's finding that he was voluntarily unemployed. Therefore, that finding must be accepted as true on appeal.
In re Marriage of Rideout, 150 Wn.2d 337, 353, 77 P.3d 1174 (2003).
The court imputed income to Crossan of $4,000 per month after balancing Crossan's earnings history with factors limiting his earning potential:
The hardest problem is that I have no idea what the father is earning or could earn. The best I can do is make an educated guess about what someone with the father's education and experience could and should be earning. On the one hand, he has an 8th grade education, he's — from my review of his pleadings — he is not going to qualify for work involving drafting documents. On the other hand — and then he's also had a business which has gone bankrupt. On the other hand, the father does have experience running a very successful business for a number of years. A business where for a time at least, he was earning about $100,000 a year, and seems qualified to do work that — in this field. So we have problems on both sides — or arguments on both sides as to what his income should be.
Report of Proceedings (April 27, 2005) at 23.
Crossan seems to suggest that the court must somehow obtain copies of his tax returns and other financial documents to consider before setting child support. The burden to produce those documents, however, was Crossan's. Considering his failure to provide any proof relevant to his income or earning potential, the trial court did not violate RCW 26.19.071 or the local rules by imputing an income of $4,000 per month.
Crossan also cites the Payne case in support of his contention that trial courts may not consider past income to determine future income. That case, however, does not so hold.
In Payne, the father earned $1,800 per month before the original order of support was modified. He earned less than $1,200 a month after relocating to Seattle to be closer to his daughter when the mother, who was the primary residential parent, moved there from Bellingham. The mother argued that the trial court was required to consider the father's past income in establishing the support amount, citing RCW 26.19.071(2). This court disagreed:
The statute requires only that the parties provide tax returns and pay stubs so that the court may verify the amounts contained in the child support worksheets. . . . When calculating the initial support obligation, a court may consider all relevant factors, including current and future income. Because the father's income changed, his past earnings were no longer of primary relevance, and the court made no determination of voluntary underemployment. The decision to rely on future earnings in this case was not error.
Payne, 82 Wn. App. at 152.
Thus, Payne does not require a court to disregard a party's past earnings when setting child support. Rather, the court should consider all relevant factors. If past earnings are relevant, relying upon them when setting child support is not error.
In this case, the court had evidence that Crossan had earned approximately $100,000 per year in the past, despite a limited education. Crossan did not submit any evidence to show what he earned or was capable of earning in the present. Under these circumstances, the court properly imputed income to Crossan based in part upon his past earnings.
Crossan also complains that the court punished him for not providing a "current tax return" when it declined to use the "whole family formula" to determine child support. The court, however, indicated that its decision-making was affected by Crossan's failure to provide "recent" tax returns. Such returns are required by RCW 26.19.071 and the local rules. If a party fails to provide relevant financial information, it is not error for a court to deny that party's request for deviation from the basic support obligation.
See In re Marriage of Goodell, 130 Wn. App. 381, 391-92, 122 P.3d 929 (2005) (the trial court did not abuse its discretion in denying a deviation based upon its lack of pertinent asset and expense information).
Nor did the trial court abuse its discretion when it made the modification effective May 1, 2004, rather than April 1, 2004. Under RCW 26.09.170(1), an order of child support may be modified "[o]nly as to installments accruing subsequent to the petition for modification." Crossan petitioned for modification on April 30, 2004. Therefore, making the modification effective on May 1, 2004 was not error.
Crossan complains further that the order of support was modified to require him to pay support until his daughters graduated from high school, rather than terminating when they turned 18. He contends that the change was not approved by the court and was made by Powers' counsel after the court announced its ruling. But neither party addressed the support termination date during the hearing that Crossan attended, and the hearing was adjourned before the final orders were presented. Crossan left the courthouse without preparing the final orders, and he did not attend their presentation. Therefore, the court modified and signed the order that Powers' counsel filed before the hearing. Paragraph 3.13 of that order, titled "TERMINATION OF SUPPORT," stated that support would "be paid until the child(ren) reach(es) the age of 18 or as long as the child(ren) remain(s) enrolled in high school, whichever occurs last." Handwritten language was added to paragraphs 3.5 and 3.6 of the order to make clear that the transfer payment should continue until the daughters graduated from high school. Under these circumstances, Crossan has not shown that the order was not what the judge intended or that the court abused its discretion.
Finally, Crossan argues that the trial court improperly ordered him to pay $2,000 of Powers' attorney fees. He contends that the court awarded fees for a reason other than the one given by Powers when she requested the fees. His argument is not persuasive.
A court may award attorney fees in proceedings related to a dissolution action after considering the financial resources of both parties. A decision to award attorney fees is within the trial court's discretion. That decision will not be overturned on appeal unless the party challenging the trial court's decision proves that the trial court exercised its discretion in a way that was clearly untenable or manifestly unreasonable.
In re Marriage of Crosetto, 82 Wn. App. 545, 563, 918 P.2d 954 (1996).
Crosetto, 82 Wn. App. at 563.
The court awarded Powers attorney fees because the work of her attorney helped the court to administer justice and because Powers incurred additional fees as a result of Crossan's failure to provide even the most basic financial information. Those reasons are not untenable.
Furthermore, Crossan has not provided any authority in support of his assertion that a court may not award attorney fees for any reason other than the one given by the party requesting fees. Crossan, therefore, has not met his burden to show that the trial court abused its discretion. We affirm the court's award of attorney fees.
Powers asks for an award of attorney fees on appeal. RAP 18.1(c) requires that when fees are based upon need, the party requesting fees must file and serve an affidavit of financial need no later than 10 days before the case is set for hearing. Powers did not comply with RAP 18.1(c). Her request for fees is denied. Crossan has not met his burden to show that the trial court abused its discretion. The decision of the trial court is affirmed. Because Powers did not comply with RAP 18.1(c), her request for attorney fees on appeal is denied.
FOR THE COURT:
H Joseph Coleman, Susan Agid, Concurring.