Opinion
No. 62124-6-I.
May 4, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-3-03054-2, Harry J. McCarthy, J., entered July 18, 2008.
Affirmed by unpublished opinion per Becker, J., concurred in by Dwyer, A.C.J., and Agid, J.
UNPUBLISHED OPINION
At issue is a child support order requiring appellant Michael Bush to pay $250 per month as a transfer payment and 50 percent of extraordinary expenses for daycare, education and long distance transportation. Bush contends the amount of the order is excessive because it consumes all of his net income. Because Bush did not provide this court with the record of the trial at which the court determined the support order, and has not shown why he could not have submitted at trial the evidence supporting his motion for reconsideration, we find no grounds for reversal.
Bush and Nadgelin Cliffe met in May 2002. In July 2004, their daughter was born. The relationship ended in December 2005 or January 2006. In April 2007, Cliffe filed a petition to establish a parenting plan and child support. She submitted a child support schedule stating that she was an accountant with a monthly net income of $3,213.74 and total monthly expenses of $4,700. She estimated Bush's monthly net income at $2,154. Cliffe calculated Bush's presumptive transfer payment at $661.09. She proposed an allocation of $345.10 to Bush and $515.50 to herself for extraordinary health care, day care, and special expenses.
In May 2007, Bush responded to Cliffe's petition. He stated that he had been employed as a para-educator at Kirkland Junior High School since September 2006. According to the information he provided, Bush has completed five years of college. Bush stated that his total monthly expenses were $3,260 while his monthly net income was $1,054.58. He calculated his presumptive transfer payment at zero. He proposed a support schedule allocating the extraordinary expenses in the amount of $332.98 to himself and $1,013.77 to Cliffe.
A parenting plan was entered in February 2008. It is not at issue in this appeal. At Cliffe's request, the court set a trial date of May 27, 2008 to settle the matter of child support and past due child support. Bush and Cliffe appeared pro se for the trial. At the time, Bush lived in Mercer Island, and Cliffe in California.
After the trial, the court entered a child support order. The court determined Bush's monthly net income to be $881.92. Bush's total monthly transfer payment was set at $250 per month. The order recognized that this amount was a deviation from the standard calculation. The order stated, "The obligor has established that it is unjust or inappropriate to apply the presumptive minimum payment of $25.00 per child." Handwritten on the order under "factual basis" is the court's note, "Under the circumstances of this case, $25.00 per month is inappropriate. $250.00 per month is more appropriate for child support. The father agrees." The order provided that the extraordinary expenses would be shared on a 50-50 basis. The order also required Bush to pay $5,000 for back child support. In a separate order, the court outlined its reasoning:
THIS MATTER came before the court for a determination of monthly child support payments and back child support. The parties appeared pro se and presented evidence and argument to the court.
I. Monthly Child Support
The court considered actual income figures submitted by the parties for the years 2007-2008. Income was not imputed to either party because of the absence of evidence indicating that imputation would be appropriate. The attached Order of Child Support and Work Sheet indicate a presumptive transfer amount of $25.00. This amount is increased to $250.00 per month because a substantial underpayment and injustice would occur if the presumptive transfer of $25.00 per month was set. The respondent acknowledged that $25.00 per month would be inappropriate and agreed to a higher sum. Respondent had originally been paying $350.00 per month, which decreased to $200.00 per month when he became unemployed or underemployed during 2005-2006.
II. Back Child Support
The evidence has indicated that respondent has not paid child support for at least the last 16 months. Before that, he had sporadically made payments of $350.00 and $200.00 per month. Some of the payments were alleged to be in cash and the only check . . . admitted was a voided check. The evidence indicated a duty to make child support payments back to at least January 1, 2006 to the present, a total of $7,000.00. Credit is given in the amount of $2,000.00 for past payments made during 2006 and 2007.
The total amount of back child support is therefore calculated at $5,000.00 and Judgment is entered in petitioner's favor in that amount. The sum of $5,000.00 shall bear interest at the rate of 12% per annum.
We do not have a transcript of the trial proceedings. Our record shows there were three exhibits admitted, but the exhibits are not in the record.
In June 2008, Bush filed a motion for reconsideration of the child support order. He supported the motion with his own declaration claiming that his total child support obligation amounted to $843.75 when it included his 50 percent of the extraordinary expenses of daycare, educational expenses, and transportation. He asked the court to cap his monthly payment at $250 or limit it to 45 percent of his net income. He alleged that the parties agreed he had fully paid child support up to April 2007, and therefore the court erred by assessing back child support for any previous months. Cliffe responded, arguing that Bush was unfairly trying to get "a second bite at the apple." She also provided her own declaration disputing Bush's new figures and calculations.
The trial court denied the motion and entered an order explaining why:
At trial, the basic child support was calculated to be $25.00, based upon respondent's monthly net income of $881.92. However, respondent agreed to an upward deviation to $250.00 and the court ordered that such a deviation was in the interests of justice. . . . The deviation from the standard calculation of $25.00 to $250.00, as agreed to by respondent, is reaffirmed.
Respondent submits additional evidence relating to alleged transportation expenses. . . . However, there has been no showing why this evidence could not have been submitted at trial and cannot now be considered "newly discovered evidence" as a basis for reconsideration under CR 59(a).
While the court did not impute income to respondent, the evidence indicated that respondent was underemployed and, considering his past employment history and the likelihood that respondent will be fully employed in the future, his ability of contributing toward his child's day care, educational and transportation expenses appears to be excellent.
RCW 26.19.080 (3) provides that day care and other special child rearing expenses are to be shared by the parties in the same proportion as the basic child support obligation. In this case, however, the court finds that a 26% contribution to day care, education and long distance transportation by respondent is clearly inadequate to provide for sufficient overall financial support of the child.
RCW 26.19.080 (4) authorizes the court to exercise its discretion to determine the necessity for and the reasonableness of all amounts ordered in excess of the basic child support obligation. In In re Yeamans, 117 Wn. App. 593, 72 P.3d 775 (1993), the Court of Appeals noted that a deviation from extraordinary expenses is permissible when the court has deviated from the basic support obligation. Id. at 600, citing In re Marriage of Casey, 88 Wn. App. 662 (1997). In view of the agreed deviation by respondent, the court may exercise its discretion and increase the amount of respondent's share of the extraordinary expenses as well. Therefore, respondent's motion to reconsider the court's order that the parties each share 50% of the day care, education and long-distance transportation costs is denied.
Respondent also requests the court to reconsider the order requiring $5,000.00 in back child support. At trial, the court weighed the evidence offered by both parties and found petitioner's testimony more credible concerning the outstanding amount of back child support due. The court credited respondent $2,000.00 toward the total amount of child support outstanding. The order of $5,000.00 in back child support is based upon substantial, credible evidence and reaffirmed. Respondent shall have the option of paying the $5,000.00 in one lump sum or make monthly payments of $250.00 commencing on August 1, 2008.
Bush appeals.
We will not disturb a child support order unless the parent challenging the decision demonstrates a manifest abuse of discretion. In re Marriage of Crosetto, 82 Wn. App. 545, 560, 918 P.2d 954 (1996). A court abuses its discretion if the decision is manifestly unreasonable or is exercised on untenable grounds or for untenable reasons. Brandli v. Talley, 98 Wn. App. 521, 523-24, 991 P.2d 94 (1999). We employ the same standard when reviewing a trial court's denial of a motion for reconsideration. Rivers v. Wash. State Conference of Mason Contractors, 145 Wn.2d 674, 685, 41 P.3d 1175 (2002).
Bush first argues that the transfer payment of $250 was intended to include cost of additional expenses. He asserts that he did not agree to pay anything more than $250, that he did not understand that the court's order would require him to pay more, and that having to pay extra expenses on top of $250 will consume all of his income.
An appellant has the burden of providing the record necessary to support his assignment of error. RAP 9.2(b). Bush did not provide the trial record, so it is impossible for us to review his claims about what he agreed to and we do not know what, if any, evidence was presented about extraordinary expenses. In his proposed child support schedule, Bush allocated extraordinary expenses to himself in the amount of $332.98. This indicates he was aware that the obligation to pay extraordinary expenses is separate from the basic transfer payment.
Bush contends the trial court erred in failing to consider RCW 26.19.065. A parent's "total child support obligation" may not exceed 45 percent of his or her net income unless good cause is shown. RCW 26.19.065(1). The trial court found that Bush's net monthly income was $881.92. Bush claims that the court violated the statute because based on evidence and calculations he submitted in support of his motion for reconsideration, his total child support obligation is $843.75 per month. The trial court declined to reconsider its order because Bush did not explain why he could not have submitted at trial the new evidence he presented in support of his motion for reconsideration. We find no error in this ruling. To support a motion for reconsideration, "newly discovered evidence" must be evidence that the party "could not with reasonable diligence have discovered and produced at the trial." CR 59(a)(4). And in the absence of a record of trial proceedings, we cannot say that the trial court failed to consider the minimum need statutes cited by Bush.
Bush argues the trial court abused its discretion when it found his proportionate share of income to be 26 percent but nonetheless obliged him to pay 50 percent of daycare, educational costs, and transportation. He cites Murphy v. Miller, 85 Wn. App. 345, 349-50, 932 P.2d 772 (1997).
Trial courts have discretion to determine the "reasonableness" and "necessity" of extraordinary expenses not accounted for in the basic child support obligation. RCW 26.19.080(4). Normally, such expenses are to be shared by the parents in the same proportion as the basic child support obligation. RCW 26.19.080(3). But when the court has deviated from the basic support obligation, the court may also deviate from a proportionate allocation for extraordinary expenses. In re Yeamans, 117 Wn. App. 593, 600, 72 P.3d 775 (2003); In re Marriage of Casey, 88 Wn. App. 662, 667, 967 P.2d 982 (1997). Even though these cases were cited by the trial court in its order denying Bush's motion for reconsideration, Bush does not address them. Bush fails to recognize that his situation is governed by these cases, not by Murphy. The trial court did not abuse its discretion.
Bush next contends the trial court erred in assessing back child support for the months before April 2007. Bush says Cliffe agreed that he was current in his child support up to that month. He cites Cliffe's declaration submitted with her response to Bush's motion for reconsideration.
According to Cliffe's declaration, the parties agreed when they separated that Bush would pay child support of $350, and initially he did. She says that in April 2006, Bush requested a temporary reduction to $200 until he found employment: "I agreed to this temporary reduction, with the understanding that Mr. Bush would make up the difference of $150 in the near future." Cliffe stated that Bush continued to pay $200 per month until April 2007 and then stopped making payments altogether. Cliffe's declaration does not support Bush's claim that she agreed he was fully paid up through April 2007. Accordingly, we conclude that the trial court did not abuse its discretion by including the period predating April 2007 in assessing the amount of the back child support.
Cliffe requests attorney fees and costs on appeal under RCW 26.09.140. and RAP 14.1. This court has discretion to award fees on a child support appeal after considering the arguable merit of the issues raised on appeal and the parties' relative ability to pay. RCW 26.09.140; Leslie v. Verhey, 90 Wn. App. 796, 805, 807, 954 P.2d 330 (1998). Prevailing party is not the standard. In re Marriage of Rideout, 150 Wn.2d 337, 357, 77 P.3d 1174 (2003). Under RAP 14.1(d) and 14.2, an appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review.
Bush's appeal lacks merit and we agree with the trial court that his ability to contribute appears to be excellent. Fees and costs on appeal are awarded to Cliffe.
Affirmed.
WE CONCUR: