In re Parenting and Support of J.A.M.

Full title: In the Matter of the Parenting and Support of J.A.M., Minor child. v…

Court: Court of Appeals of Washington

Date published: Nov 13, 2012

No. 68053-6-I (Wash. Ct. App. Nov. 13, 2012)

Opinion

68053-6-I

11-13-2012

In the Matter of the Parenting and Support of J.A.M., Minor child. v. DOUGLAS MACKENZIE, Appellant. ALEEN ADAMS, Respondent,

Grosse, J.

UNPUBLISHED OPINION

Grosse, J.

A trial court's decision setting the basic child support obligation and special child rearing expenses will be upheld on appeal absent an abuse of discretion. The evidence supported the trial court's calculation of the mother's income, and the trial court properly exercised its discretion in determining a reasonable and necessary amount of long-distance travel expenses. We affirm the trial court's order but remand for correction of a clerical error.

FACTS

Douglas MacKenzie and Aleen Adams are the parents of J.A.M., born in 2008. MacKenzie works as a movement therapist, and Adams develops and produces museum exhibits. Both parties have primarily been self-employed in their professions, with their income fluctuating based on the business climate.

Approximately six months after J.A.M.'s birth, MacKenzie relocated to New York City to pursue job opportunities. Adams and J.A.M. remained in Seattle. Adams filed a petition for a parenting plan after the parties were unable to come to an agreement about child support, residential time, and travel expenses incurred when MacKenzie visited with J.A.M. Shortly before trial, Adams accepted a part-time salaried position from one of her clients.

With the assistance of a mediator, MacKenzie and Adams agreed on a residential schedule in which J.A.M. would "reside primarily with the mother and . . . have with the father a seven day period of time on a monthly basis or more as mutually agreed upon." The agreed-upon schedule involved J.A.M. flying to visit MacKenzie on the East Coast at least four times in the first year. Because the mediator was unable to help Mackenzie and Adams address the costs of any such plan, the agreement was "contingent upon costs and the father's work schedule."

A short evidentiary hearing was held to apportion child support and travel costs. On November 17, 2011, the trial court entered findings of fact and conclusions of law, an order of child support, and a final parenting plan. The trial court determined that MacKenzie's monthly net income was $3,780 and Adams' was $4,586. The trial court apportioned the basic child support obligation in proportion to the parties' income, with MacKenzie responsible for 45.2 percent and Adams responsible for 54.8 percent. The trial court did not deviate from the standard calculation.

The trial court also ordered that the long-distance travel costs associated with MacKenzie's visitation with J.A.M. be capped, with Adams paying no more than $2,850 annually. Responsibility for travel costs was divided between the parents in proportion to the basic child support obligation, with MacKenzie paying $188 and Adams paying $238 per month.¹ J.A.M. was permitted to travel to the East Coast up to three times per year; otherwise MacKenzie could visit J.A.M. in Seattle.² The trial court denied MacKenzie's request to proportionately allocate all travel expenses, finding that, while monthly visitation with J.A.M. would be ideal, it was not financially feasible given the distance between the parents.³ If MacKenzie wanted visitation beyond what the parties were required to pay, it would be at his own expense. Each party was ordered to pay their own attorney fees.

1 MacKenzie's pro rata share of the travel costs made him responsible for $2,256 annually, out of a combined total obligation of $5,112.

2 For East Coast trips, Adams and MacKenzie were to split the cost of J.A.M.'s airfare and each pay their own airfare for the leg of the trip they would accompany her. Adams was to credit MacKenzie $50 per month from his child support transfer payment, up to the $2,850 cap, to be applied to the costs of his travel to Seattle.

3 2.6 Residential Schedule/Parenting Plan

The residential schedule/parenting plan signed by the court on this date is approved and incorporated as part of these findings. This residential schedule/parenting plan is the result of an agreement of the parties, but the parties expressly did not determine the costs of long distance travel and the reasonableness of the plan they devised based on their financial circumstances. Accordingly, the monthly residential schedule to which they agreed is aspirational, not mandatory, and is subject to transportation cost limitations imposed by the Court based on the parties' financial circumstances and the order of child support. The father may have residential time consistent with the residential schedule beyond that provided in ¶3.11 of the parenting plan for longdistance travel, but all costs in excess of the provisions of ¶3.11 shall be at his own expense. This residential schedule, as limited by transportation costs and the child support order, adequately provides for the needs of the child.

. . . .

2.10 Other

. . . .

Neither parent can afford the cost of monthly cross-country airline travel to facilitate the father's residential time with the child, and monthly residential time with the child is not necessary to maintain the father-child bond.

MacKenzie timely appeals. He claims the trial court erred in failing to impute a higher income to Adams, arguing that she became voluntarily underemployed by accepting a part-time position. He also claims the trial court improperly allocated most of the transportation expenses to him.

ANALYSIS

The amount of child support rests in the sound discretion of the trial court.⁴ "A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons."⁵ "A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard."⁶

4 In re Marriage of Crosetto, 82 Wn.App. 545, 560, 918 P.2d 954 (1996); In re Marriage of Stern, 57 Wn.App. 707, 717, 789 P.2d 807 (1990).

5 Katare v. Katare, 125 Wn.App. 813, 822, 105 P.3d 44 (2004).

6 Katare, 125 Wn.App. at 822-23.

1. Imputed Income

Under RCW 26.19.071(6), the trial court must impute income to a parent who is "voluntarily underemployed." Whether or not a parent is voluntarily underemployed is based upon the parent's work history, education, health, age, and other relevant factors.⁷

7 RCW 26.19.071(6); In re Marriage of Peterson, 80 Wn.App. 148, 153, 906 P.2d 1009 (1995).

Substantial evidence supports the finding that Adams' current employment was consistent with her work history. Adams has worked in the same field since 1995 and her income has historically been project-based and variable. She testified that she could make large sums of money in one month and then nothing the following month. Adams' net income in 2008 was $30,265; in 2009 it was $28,683; and in 2010 it was $107,046. Adams explained that her net income in 2010 was much higher than in previous years because during that year she had two contracts with Experience Music Project to work on large-scale, big-budget exhibits. However, the income ceased once those two exhibits closed.

In the three years prior to trial, Adams' net income averaged $55,331. The part-time salaried position Adams occupied at the time of trial paid $76,000 and included benefits. MacKenzie argues that, because Adams had such a high income in 2010, she was capable of earning at least that much every year. He further argues that she should be required to take on additional freelance work because her salaried position was only part-time. But the record does not show that Adams was capable of earning a six-figure salary in any given year. Her 2010 salary was an exception, not the rule. After her two big projects in 2010 finished, Adams was out of work except for the offer of the part-time position. And there is no evidence that she could perform freelance work within the confines of her current employment relationship.

MacKenzie's reliance on two cases in which a trial court has properly imputed income is misplaced. In In re Marriage of Pollard, ⁸ the parent took a part-time position paying only 20 percent of her former full-time salary. In In re Marriage of Jonas, ⁹ the parent quit employment entirely in order to care for her children. We find the facts of this case more similar to those in Clarke v. Clarke, ¹⁰ in which the trial court did not impute income to a parent who reduced her work hours because her overall salary did not decrease.

8 99 Wn.App. 48, 991 P.2d 1201 (2000).

9 57 Wn.App. 339, 788 P.2d 12 (1990).

10 112 Wn.App. 370, 48 P.3d 1032 (2002), abrogated on other grounds by McCausland v. McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007).

Based on Adams' work history and the nature of self-employment, the trial court properly found that "[n]o grounds exist to impute income to Petitioner."

2. Travel Costs

Long distance travel costs to and from the parents for visitation purposes are considered "special child rearing expenses" not accounted for in the basic child support obligation.¹¹ A trial court may exercise its discretion to determine the necessity for and the reasonableness of all amounts ordered in excess of the basic child support obligation.¹² Part of determining which expenses will be allowed must involve a determination of the parents' ability to pay.¹³ Once expenses are deemed reasonable and necessary, they must be apportioned in the same proportion as the basic child support obligation.¹⁴ MacKenzie claims that the trial court adopted an agreed-upon residential schedule in which he would spend at least a week with J.A.M. every month. Consequently, he argues, all travel expenses incurred in such visitation must be reasonable and necessary and the trial court was required to apportion them in the same proportion as the basic child support obligation.

11 RCW 26.19.080(3).

12 RCW 26.19.080(4).

13 State ex rel. J.V.G. v. Van Guilder, 137 Wn.App. 417, 430, 154 P.3d 243 (2007).

14 RCW 26.19.080(3); Murphy v. Miller, 85 Wn.App. 345, 349, 932 P.2d 722 (1999).

We disagree. The trial court appropriately exercised its discretion under RCW 26.19.080(4) in determining a reasonable amount of travel expenses, based on the parents' ability to pay and the needs of the child. The trial court's findings were supported by substantial evidence. Both parents submitted financial declarations as well as their representations about travel costs. Neither parent has the discretionary income to pay for monthly cross-country trips.¹⁵Moreover, Adams submitted a declaration from Dr. Naomi Oderberg, a clinical psychologist specializing in child development and divorce, stating that: (1) multi- day separations from the primary residential parent are difficult for children J.A.M.'s age to cope with; (2) the majority of visitation should occur in a child's home community; and (3) the quality, rather than the quantity, of time with the non-residential parent has the greatest impact on the parent-child bond. Based on the evidence, capping the parents' travel expenses was reasonable. The child support worksheets accurately reflect that MacKenzie's share of these expenses is proportional to his basic child support obligation.¹⁶ Because the trial court did not abuse its discretion, we will not disturb its ruling on appeal.

15 We agree with Adams that it would be difficult for MacKenzie to afford even a pro rata share of travel expenses beyond the capped amount given the information in his financial declaration.

16 MacKenzie points out that in the child support worksheets his share of the transportation expenses comes out to 44.2 percent, which is a fraction less than his proportionate share of the basic child support obligation. We presume this was done for the sake of a round number. Despite MacKenzie's urging, this de minimis error does not require reversal.

3. Attorney Fees at Trial and On Appeal

The trial court ordered that both parents pay their own attorney fees. However, as both parties concede, attorney fees were not stricken when the trial court adopted the mother's proposed child support order. We remand for correction of this clerical error.

Both MacKenzie and Adams have requested attorney fees on appeal. Although Adams has prevailed, MacKenzie's appeal presented debatable issues and was not frivolous. Exercising our discretion, we decline to award fees to either party.¹⁷

17 Because we deny both parties' request for attorney fees on appeal, we do not consider the parties' updated financial affidavits or responses thereto.

Affirmed.

WE CONCUR