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reviewing trial court's modification of a sole physical care arrangement to joint physical care
Summary of this case from In re BrownOpinion
No. 23551-0-II.
Filed: November 12, 1999.
Donald N. Powell of Tuell, Couture, Powell, Tuell, P.S., for appellant.
David B. Ladenburg of Harrison, Ladenburg Schwartz, P.L.L.C., for respondent.
Brian Drury appeals the modification of a parenting plan and order of child support. He contends the trial court erred in: (1) adopting a parenting plan different from that agreed to by the parties and that purports to give the parties an equal number of overnights with the children but then gives the mother one night more a week; (2) failing to allow Drury a credit for child support because of the amount of time he has the children; (3) refusing to grant Drury a judgment for past due child support; and (4) awarding attorney's fees to the mother. Because of the inconsistent provisions of the parenting plan, we vacate those portions of the plan and remand for the trial court to adopt the plan agreed upon by the parties and to reconsider whether Drury should be allowed a credit for child support.
FACTS
Brian Drury and Isis Tabares were divorced, without representation of counsel, on August 13, 1992. They had three children: Ariel, born December 14, 1986; Ian, born July 20, 1988; and Kellen, born September 5, 1990. The parenting plan made Drury the custodial parent. Tabares was ordered to pay Drury child support of $221 per month based on her net monthly income of $536.
In 1995, the parties adopted an agreed residential schedule giving each parent an equal number of overnights with the children, although Tabares spent more time during the day with the children. The parties and the parenting investigator agreed that this arrangement was beneficial to the children. Tabares never paid any child support to Drury.
In April 1996, Tabares petitioned to modify the parenting plan and child support order, alleging that she had custody and care of the children. Drury countered by requesting a judgment for the child support arrearage.
The trial court found a change of circumstances in the parties agreed upon 1995 schedule. The trial court modified the parenting plan, placing the children with the mother three nights a week and with the father two nights a week. The children were also placed with the father from Friday evening until Sunday evening on the second and fourth weekends of each month. The court designated the mother custodian of the children "even tho (sic) the actual number of overnights for each parent is the same." The plan actually gives the mother at least one more night each week. In addition, the trial court imputed income of $1,523.00 to the mother and ordered the father to pay child support in the amount of $771.94 per month. The court denied the father any credit for child support because of the time the children spend with him, ruling that "such would reduce the amount of income available to the mother below acceptable legislative directives."
Although Tabares had never paid child support as ordered by the original child support order, the trial court offset the $6,188 Tabares owed under the original order because of her daily caretaking of the children since the original order. And finally, the trial court ordered Drury to pay $3,000 in attorney's fees to Tabares.
ANALYSIS A. Parenting Plan
A trial court's rulings on parenting plans are reviewed for abuse of discretion. In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997) (citations omitted). "A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons." Littlefield, 133 Wn.2d at 46-47 (citations omitted).
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.
Littlefield, 133 Wn.2d at 47 (citation omitted).
A parenting plan or custody decree may be modified if the court finds a substantial change of circumstances based upon facts that have arisen since the decree or that were unknown at the time of decree. RCW 26.09.260. The trial court found a substantial change of circumstances existed and granted modification. In the Order Re Modification of Custody Decree or Parenting Plan, entered June 26, 1998, the court said the "parties have agreed to have the children an equal number of overnights. The court's plan preserves that arrangement."
But the actual schedule for a four-week period gives the mother 16 days and the father 12 days. In addition, unlike the parties' agreed schedule, the parenting plan gives the father the second and fourth weekends. And because some months have five weekends, the father loses additional time, i.e., the mother in such months will have the children two weekends in a row. Yet the parties agree that the schedule adopted by them in 1995 divided the overnights equally. And one of the reasons found by the trial court to modify the original decree was the agreed schedule.
For example, 1999 has four months with five weekends.
"Custodial changes are viewed as highly disruptive to children, and there is a strong presumption in favor of custodial continuity and against modification." In re the Marriage of McDole, 122 Wn.2d 604, 610, 859 P.2d 1239 (1993). The Legislature has expressed the same public policy. RCW 26.09.260. Furthermore, the Legislature broadly granted authority to the trial courts to protect the best interests of the children in entering a parenting plan. RCW 26.09.002. Washington recognizes the importance of both parents' involvement in the children's lives. "The state recognizes the fundamental importance of the parent-child relationship to the welfare of the child, and that the relationship between the child and each parent should be fostered unless inconsistent with the child's best interests." RCW 26.09.002. Here, although the trial court said its plan preserved the parties' agreement to share overnights equally, the specific schedule does not. We hold that where, as here, the modification is based upon an agreement of the parties, the court must adopt the agreed schedule without significant change. And, given the strong policy in favor of custodial continuity, the changes here, amounting to one night a week, are significant.
We do not suggest that the trial court lacks authority to modify an agreed plan of the parents where supported by other grounds in the statute.
We vacate those provisions of the parenting plan setting forth the specific overnight residential schedule and remand for the trial court to enter a schedule substantially in accord with the parties' agreed schedule.
A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
B. Child Support Order
The original child support order required the mother to pay $221 per month for the children. The new child support order imputes income of $1,523 per month to Tabares because she is voluntarily underemployed. The order also requires Drury to pay $771.94 per month.
$1,523 is the approximate median net monthly income for a female between ages 35 and 44. Chapter 26.19 RCW app. at 556.
Drury contends that the trial court should have allowed him a credit for at least part of his child support obligation because he has the children for as many overnights as Tabares. Drury argues that applying the In re Marriage of Arvey formula, he should pay $166.02 per month. Furthermore, according to Drury, the current child support essentially awards Tabares spousal maintenance and is a "windfall." We review the trial court's child support decision for a manifest abuse of discretion. In re Marriage of Stenshoel, 72 Wn. App. 800, 803, 866 P.2d 635 (1993). "`A manifest abuse of discretion is a decision manifestly unreasonable or exercised on untenable grounds or for untenable reasons.'" Stenshoel, 72 Wn. App. at 803 (quoting In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991)).
In re Marriage of Arvey is a "split custody" case involving two children with one spending the majority of her time with the mother and the other child spending the majority of his time with the father, which is not the case here. In re Marriage of Arvey, 77 Wn. App. 817, 894 P.2d 1346 (1995).
The court must impute income to parents who are voluntarily unemployed or underemployed. RCW 26.19.071(6); In re Marriage of Brockopp, 78 Wn. App. 441, 445, 898 P.2d 849 (1995). A parent cannot avoid a child support obligation by voluntary underemployment. In re Marriage of Wright, 78 Wn. App. 230, 234, 896 P.2d 735 (1995) (citing In re Marriage of Jonas, 57 Wn. App. 339, 788 P.2d 12 (1990)).
Drury contends that although the trial court properly imputed income to Tabares, the court then nullified the effect of that by refusing to allow him a credit on his child support payment for the substantial time the children are with him. But Drury did receive some benefit from the income imputed to Tabares. The trial court commented that if she had not imputed income to the mother, or took actual income, the amount owed by Drury would be significantly higher ($1,053 and $936, respectively). Drury does not contest the court's calculations.
But the court apparently disregarded the income imputed to Tabares in deciding that Drury should not have a credit because that "would reduce the amount of income available to the mother below the acceptable legislative directives." It is not clear what the court meant by "acceptable legislative directives." RCW 26.19.075 sets forth standards for deviation from the support table. One of the reasons is based on the residential schedule. RCW 26.19.075(1)(d). If the child spends a significant amount of time with the parent who is obligated to make a support transfer payment, then the court may deviate from the standard calculation. The court may not, however, deviate if, considering the household income of the custodial parent, the deviation would result in insufficient funds to meet the needs of the children. But, here, the court did not adopt the language of RCW 26.19.075(1)(d) in denying Drury a credit. Rather, the court measured Tabares' income status against "acceptable legislative directives." And in doing so, the court apparently disregarded the income it had imputed to Tabares. This was error. Having imputed income to Tabares, the court should have applied the income consistently to all aspects of the parents' child support obligations. On remand, the court must reconsider whether Drury should be allowed a residential credit on his child support obligation. And this must be considered both in light of the time spent with Drury, and Tabares' household income, including income imputed to her.
It is also unclear precisely how the trial court determined that the residential credit would "reduce the amount of income available to the mother below the acceptable legislative directives." Under RCW 26.19.065(2), a "parent's support obligation shall not reduce his or her net income below the need standard for one person established pursuant to RCW 74.04.770." And the Federal Poverty Level is $671 for a family size of one person. WAC 388-478-0075.
C. Child Support Arrearages
Drury sought a judgment for past-due child support of $6,188 plus interest. Relying upon In re Marriage of Capetillo, 85 Wn. App. 311, 932 P.2d 691, review denied, 132 Wn.2d 1011 (1997), Drury contends that his claim is not barred by either laches or equitable estoppel. But the trial court denied the claim, not because of laches or equitable estoppel, but because of Tabares' caretaking of the children since the original decree. Generally, when a parent receives certain benefits such as social security disability, retirement, or survivors' benefits, payment of those benefits to a child will offset the support obligation. RCW 26.18.190. In re Marriage of Hughes, 69 Wn. App. 778, 782, 850 P.2d 555 (1993). In certain circumstances, "the oblig[ated] parent may be entitled to an equitable offset where there is no unfairness to the custodial parent." Hughes, 69 Wn. App. at 781 (citations omitted). In Hughes, the obligor father was allowed a credit for social security payments made directly to the mother on behalf of the child. Here, however, the trial court allowed Tabares an offset for services and undocumented expenditures.
The trial court found that "[f]rom 1992 until 1995 Mrs. Drury took care of children each day, pursuant to the terms of the original parenting plan." In addition, the court found that Tabares spent more time with the children and provided care for them during their non-school time in addition to her overnights. These findings are unchallenged. And Drury conceded that during this time Tabares bought groceries and clothes for the children. Drury also conceded that during this time, he occasionally reimbursed Tabares for some of her expenses incurred for the children. Further, Suzanne Dircks, the parent investigator, reported that Tabares had "an unfair financial burden." In light of this evidence, we find no abuse of discretion in allowing an offset for the back child support. In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990).
D. Evidence Ruling
Drury challenges the admission of Exhibit 11, a letter from Sue Stevens of Normandy Park Counseling, concerning the parties' financial understanding regarding childcare. This understanding was the result of mediation. At trial, Drury objected to its admission based on ER 408 and ER 801. The trial court admitted Exhibit 11. But we need not decide whether the letter was properly admitted because the error, if any, was harmless. Error from a violation of an evidentiary rule is harmless unless "`within reasonable probabilities, the outcome of the trial would have been materially affected had the error not occurred.'" State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d 1120 (1997) (citations omitted). There is no plausible argument that the letter materially affected the outcome of the trial.
E. Attorney's Fees
The trial court awarded $3,000 in fees to Tabares from Drury. This award was based on disparity of incomes. Drury argues that the income imputed to Tabares for purposes of child support calculations should be imputed to her for the determination of attorney's fees. Furthermore, Drury argues that because he is entitled to a judgment for support arrearages, he should be relieved of paying her fees and be awarded fees. RCW 26.09.140 authorizes an award of attorney's fees in a modification. The trial court must balance the needs of Tabares against the ability of Drury to pay. In re Marriage of Williams, 84 Wn. App. 263, 272, 927 P.2d 679 (1996). We review such an award for abuse of discretion. Williams, 84 Wn. App. at 272 (citation omitted). Here, there is a large disparity in the parties' incomes. As the trial court stated: "Mr. Drury has $3,700 a month gross, $43,000 annually. Ms. Drury is receiving loans for school and being supported by Mr. Kling." Thus, if the imputed income is not considered, the disparity in actual income between the parties supports the award of attorney's fees.
Drury asserts that the trial court awarded $4,000 in attorney fees. The trial court actually ordered Drury to pay $3,000 in new money for Tabares' attorney's fees. Drury had already paid $1,000.
We have held that the court properly allowed Tabares an offset for the back child support. Accordingly, we reject Drury's argument on this ground. And Drury has not cited any authority for the proposition that the income imputed to Tabares should be considered in awarding attorney's fees. Although we have held that the trial court must consider imputed income consistently in deciding all aspects of the parties' child support obligations, we decline to hold that imputed income must be considered in deciding an award of attorney's fees.
Both Drury and Tabares request attorney's fees on appeal. But any further award of attorney's fees on the basis of need and ability of the parties to pay is more appropriately decided by the trial court on remand.
Vacated in part and remanded for further proceedings consistent with this opinion.