Opinion
No. 62053-3-I.
May 4, 2009.
Appeal from a judgment of the Superior Court for Whatcom County, No. 05-3-00352-9, Ira Uhrig, J., entered June 27, 2008.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Schindler, C.J., and Dwyer, J.
UNPUBLISHED OPINION
Katrina Demorest appeals the trial court's denial of her motion to revise a commissioner's order modifying child support. Because Katrina fails to demonstrate any abuse of discretion in the commissioner's finding that her ex-husband is not voluntarily underemployed or in the determination of her income, we affirm.
FACTS
In April 2006, the trial court signed orders dissolving the marriage of Jeff and Katrina Demorest and providing for the support of their two children, ages 6 and 4. The trial court ordered Katrina to make a monthly transfer payment of $1,345 based on gross monthly incomes of $2,598.07 for Jeff and $6,282.21 for Katrina. In June 2006, Katrina filed a motion for relief from judgment and to modify child support, in which she argued that her recent change to day shift work had reduced her income and increased her ability to have the children reside with her a majority of the time. The trial court denied the motion on August 11, 2006.
For clarity, we refer to the parties by their first names.
On June 12, 2007, Katrina filed a petition for modification of child support, contending that a decrease in her income and an agreed increase in her time with the children constituted a substantial change in circumstances. In her financial declaration, Katrina listed her gross monthly income as $5,773.75. The petition also states: "I do not know what Jeff's income is although I continue to maintain he is voluntarily underemployed. He has a master's degree in education and his principal's certificate. He chooses to work less than full-time and to avoid more responsibility for greater pay."
In his response, filed January 30, 2008, Jeff argued that Katrina had not demonstrated a substantial change in circumstances based on her income or time with the children, but agreed that the child support should be modified based on a change in the educational expenses for the children. Jeff filed a child support worksheet listing gross monthly incomes of $4,026.71 for himself and $5,773.75 for Katrina.
At a hearing on January 30, 2008, Katrina's attorney stated, "I don't think there's an argument as to the mother's gross, so I've got that at [$]5774." Katrina argued that Jeff was voluntarily underemployed based on his contract with the Ferndale School District for 83% of a full time, 10 month, position. Katrina asked the court to impute income to Jeff by considering his qualifications, experience, and past summer employment. Jeff argued that the trial court had previously determined that he was not voluntarily underemployed and that Katrina had deducted an unreasonable amount for tax withholding from her gross monthly income on her child support worksheet. The commissioner stated that he would take the matter under advisement and would review Katrina's written reply to Jeff's late filed response.
On February 19, 2008, Katrina filed a proposed order and worksheet listing her gross monthly income as $3,581, supported by her declaration and her W-2 for 2007.
In written findings of fact and conclusions of law on the petition for modification of child support, the commissioner states:
The order of child support should be modified because:
There has been the following substantial change of circumstances since the order was entered . . .: the incomes of the parties have changed, the need for educational expenses has abated. Other: . . .
The father is not voluntarily underemployed.
The commissioner completed child support worksheets based on gross monthly incomes of $4,026.71 for Jeff and $5,773.75 for Katrina and ordered Katrina to make a monthly transfer payment of $920.
The trial court denied Katrina's motion to revise. Katrina appeals.
DISCUSSION
We review the trial court's decisions in a child support modification proceeding for abuse of discretion. We will not substitute our judgment for that of the trial court, "unless the trial court's decision rests on unreasonable or untenable grounds."
In re Marriage of Schumacher, 100 Wn. App. 208, 211, 997 P.2d 399 (2000).
Leslie v. Verhey, 90 Wn. App. 796, 802-03, 954 P.2d 330 (1998).
Katrina challenges the commissioner's finding that Jeff is "not voluntarily underemployed," and argues that the court was required under RCW 26.19.071(6) to impute income to Jeff. RCW 26.19.071(6) provides in pertinent part:
Imputation of income. 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. A court shall not impute income to a parent who is gainfully employed on a full-time basis, unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent's child support obligation. . . .
Jeff contends that the question of whether to impute income to him was decided by the trial court in the original child support order such that res judicata and/or the law of the case doctrine prevent reexamination of the issue. But, the Page 5 trial court did not make an explicit finding regarding Jeff's employment status in the original child support order. Under these circumstances, the commissioner properly considered whether Jeff was voluntarily underemployed when determining the incomes of both parents.
See, e.g., In re Marriage of Burch, 81 Wn. App. 756, 761-62, 916 P.2d 443 (1996) (where original decree established that mother was not voluntarily unemployed and father did not allege any changed circumstances, trial court did not err in refusing to impute income to mother); In re Marriage of Trichak, 72 Wn. App. 21, 24, 863 P.2d 585 (1993) (law of the case doctrine prevented relitigation in modification proceeding of previously decided legal question regarding deviation from standard support calculation based on child's disability income); In re Marriage of Dicus, 110 Wn. App. 347, 40 P.3d 1185 (2002) (trial court properly relied on res judicata and laches to bar father's 2000 motion for child support credits for social security benefits paid in 1984 to 1990).
In re Marriage of Brockopp, 78 Wn. App. 441, 445, 898 P.2d 849 (1995).
Essentially, Katrina argues that the commissioner was required to find that Jeff was voluntarily unemployed based on the part-time status of his job. But, neither the law nor the facts compel such a result. Under RCW 26.19.071(6), the trial court in its discretion must determine whether a parent is voluntarily underemployed by considering that parent's work history, education, health, age, and other relevant factors.
In re Marriage of Peterson, 80 Wn. App. 148, 153, 906 P.2d 1009 (1995).
One of the statutory factors courts consider under RCW 26.19.071 is work history. The record indicates that during the marriage and at the time of the entry of the original child support order in April 2006, Jeff had been working "2/3 time" since 2004 as a high school math teacher and had a gross monthly income of $2,598.07. As of September 2007, Jeff was working as a "Math Coach" for the same school district for "0.833" of a full time position with a gross monthly income of $4,026.71. Jeff described the position as "currently being defined," funded by a one year grant of $73,000, and "renewable for an additional year." Given this slender record and the increase in both Jeff's work schedule and salary, it was not unreasonable for the commissioner to determine that Jeff was not voluntarily underemployed.
Katrina also claims that the trial court abused its discretion by ignoring her 2007 W-2 when determining her income for the purposes of calculating child support. RCW 26.19.071(2) requires verification of income and deductions by "[t]ax returns for the preceding two years and current paystubs." In her petition filed in June 2007, Katrina listed her gross income as $5,773.75, based on a pay stub dated June 7, 2007, and described as "the average of my year to date total `Pay Period Hours Gross Pay.' ($27,944.96 / 4.84 months)." At the January 30, 2008 hearing, Katrina's attorney stated that there was no dispute over her gross monthly income.
On February 19, 2008, Katrina claimed for the first time that her gross monthly income was $3,581.00, supported only by her 2007 W-2. Katrina did not file a current pay stub and did not claim that her monthly rate of pay had decreased in 2008, from the level reflected in the June 2007 pay stub she submitted with the earlier worksheet. Instead, she states in her attached declaration that she took a leave of absence in August which reduced her income. Given this record, the commissioner's determination of Katrina's gross monthly income was within the range of the evidence and was not an abuse of discretion.
ATTORNEY FEES
Jeff requests attorney fees on appeal under RAP 18.9(a), RAP 18.1, and RCW 26.09.140, claiming that Katrina's appeal is frivolous. An appeal is frivolous if "the court is convinced that the appeal presents no debatable issues upon which reasonable minds might differ, and that it is so devoid of merit that there is no possibility of reversal." Although Jeff has prevailed, because Katrina presented debatable issues, her appeal is not frivolous.
Ramirez v. Dimond, 70 Wn. App. 729, 734, 855 P.2d 338 (1993).
The decision to award fees under RCW 26.09.140 is discretionary and must be based upon a consideration that balances the needs of the party seeking fees against the ability of the other party to pay. In light of the trial court commissioner's finding that "each party can bear his or her own fees and costs," we exercise our discretion and deny Jeff's request for fees.
In re Marriage of Terry, 79 Wn. App. 866, 871, 905 P.2d 935 (1995).
Affirmed.
WE CONCUR: