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In re Alwin

The Court of Appeals of Washington, Division One
Oct 12, 2009
152 Wn. App. 1038 (Wash. Ct. App. 2009)

Opinion

No. 63832-7-I.

October 12, 2009.

Appeal from the Superior Court, Pierce County, No. 06-3-01133-2, Linda CJ Lee, J., entered May 9, 2008.


Remanded with instructions by unpublished opinion per Ellington, J., concurred in by Becker and Cox, JJ.


Heming (Ming) and John Alwin divorced in 2008 after six years of marriage. After trial, the court entered parenting plan and child support orders. John challenges the parenting plan as not supported by adequate factual findings or substantial evidence. He also challenges certain child support determinations. The court's findings are insufficient to permit review of the parenting plan. Substantial evidence supports certain of the child support determinations, but the threshold question is the parenting plan decision. Accordingly, we remand for entry of adequate findings for review.

BACKGROUND

John Alwin, a geography professor at Central Washington University, met Ming when she served as his translator while he was doing some work in China. After a long distance courtship, she came to the United States and they married in 2000. There is a considerable difference in their ages.

Ming enrolled in a graduate engineering program at Washington State University. While Ming was in school, John commuted between Ellensburg and Pullman. Ming completed her degree in civil engineering and found a job in Tacoma. The couple bought a house there and John began commuting between Tacoma and Ellensburg. Their daughter, Danni, was born in July 2005. Ming's mother came from China to help with Danni.

Serious difficulties developed. Among other disputes, Ming proposed sending Danni to live with her grandparents for a year, as is the custom in China. John strenuously opposed the idea. Fearful that Ming and her mother would take Danni to China permanently, John filed a petition for legal separation in March 2006 and sought a restraining order to prevent Ming from removing Danni from the state. Ming cross-petitioned for dissolution.

The court entered an agreed temporary parenting plan providing for Danni to live with Ming during the week while John was teaching and to visit John Tuesday overnight and Friday through Saturday or Sunday, depending on the week. During the summer when John usually did not teach, the schedule was reversed. The temporary plan included a "right of first refusal" to care for Danni if the residential parent was to be away from for more than three hours.

Court appointed guardian ad litem (GAL) Dolores Sarandos filed her report with the court in August 2007. She found that Danni was well bonded to both parents and that both parents were capable, but that that Ming "has taken greater responsibility for performing parenting functions relating to the daily needs of the child." Additionally, the GAL found that because of the poor relationship between John and Ming, joint decision-making and a shared schedule were unworkable. She recommended that Danni reside primarily with Ming and that John have "very liberal visitation." Given John's employment schedule, the GAL recommended Danni reside with John every other weekend plus one mid-week overnight "if geographically feasible," all of spring break and half of winter break, and vacation time of at least one month during the summer. The GAL also recommended that Ming be given sole decision-making authority.

Report of Guardian Ad Litem at 25.

Id.

Id.

Meanwhile, John decided to retire. He submitted an irrevocable letter of resignation to Central Washington University in the spring of 2007, effective August of 2008. He elected to teach summer quarter 2007 to defray the costs of the divorce and increase his income before retirement, thereby increasing the odds of benefiting from a state retirement supplementation program.

Because John was working in Ellensburg during the summer of 2007, he was unable to act as Danni's residential parent as provided in the temporary parenting plan. And because his teaching schedule changed in the fall, he could no longer care for Danni on the days provided in the plan. In November, he moved to modify the temporary plan. Apparently the parties privately agreed to modify the schedule to accommodate John's teaching duties. The court entered a further modification allowing Danni equal time with each parent while John was home during winter break.

The dissolution trial commenced in February 2008 and lasted five days. John proposed a parenting plan providing for equal time with Danni by alternating residential weeks following his retirement. He also sought spousal maintenance and a child support deviation based on significant time with Danni. Ming appeared pro se. She opposed John's plan and urged the court to accept the GAL's recommendations.

At trial, the court heard testimony from John, Ming, the GAL, John's expert witness Heidi Halsey, and two of John's colleagues. The focus of inquiry for both Halsey and the GAL was the appropriateness of an equally shared residential schedule. The GAL opposed such an arrangement on principle, but acknowledged it would be acceptable until Danni starts school. Halsey supported an equal schedule and testified that limiting Danni's time with her father to alternate weekends plus one midweek visit would be detrimental to a child Danni's age and would promote conflict between the parents.

The court gave its oral ruling in March 2008. John's attorney prepared the final documents, including proposed findings, which the court modified and filed in April 2008. The parenting plan provides that Danni will reside with her mother except for alternate weekends and generous visits with John.

The court found John to be voluntarily unemployed as of the date of his retirement, and imputed income for child support purposes. The court denied John's request for spousal maintenance and attorney fees.

DISCUSSION Parenting Plan

The plan provides for Danni to reside with her mother except for every other weekend (Thursday through Sunday), when she resides with John. In the intervening weeks, Danni spends two weekdays with John (7 a.m. to 6 p.m.). When Danni starts school, she will reside every other weekend (Saturday morning to Wednesday evening) with John, and will also spend Monday, Tuesday and Wednesday afternoons with him. The court declined John's request for a right of first refusal and refused to prohibit international travel for Danni. John contends the court abused its discretion by adopting this plan, by rejecting his proposed plan, and by refusing to incorporate a right of first refusal.

We review decisions concerning parenting plans for abuse of discretion. We will not reverse unless the decision is manifestly unreasonable or based on untenable grounds or untenable reasons. A 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; and 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.

In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997).

Id. at 46-47.

Id. at 47.

The legislature has established certain factors to be considered in establishing parenting plans. Principal among these is that parenting arrangements should serve the best interests of the child. Residential provisions should "encourage each parent to maintain a loving, stable, and nurturing relationship with the child, consistent with the child's developmental level and the family's social and economic circumstances." Where, as here, there are no statutorily required restrictions in the parenting plan, the court must consider the following:

See RCW 26.09.002 (policy), .184 (objectives of a permanent parenting plan), .187 (criteria for establishing a permanent parenting plan).

(i) The relative strength, nature, and stability of the child's relationship with each parent;

(ii) The agreements of the parties, provided they were entered into knowingly and voluntarily;

(iii) Each parent's past and potential for future performance of parenting functions as defined in RCW 26.09.004(3), including whether a parent has taken greater responsibility for performing parenting functions relating to the daily needs of the child;

(iv) The emotional needs and developmental level of the child;

(v) The child's relationship with siblings and with other significant adults, as well as the child's involvement with his or her physical surroundings, school, or other significant activities;

(vi) The wishes of the parents and the wishes of a child who is sufficiently mature to express reasoned and independent preferences as to his or her residential schedule; and

(vii) Each parent's employment schedule, and shall make accommodations consistent with those schedules.

Factor (i) shall be given the greatest weight. The trial court has discretion to establish a schedule that requires the child to alternate households for brief and substantially equal periods of time if it is in the best interests of the child.

Id.

Here, the evidence relating to the statutory factors was disputed. In its oral ruling, the court recited the factors themselves, stating that it was "[k]eeping these factors in mind." But the court gave no indication of its findings on the disputed facts. For example, the court made no findings as to whether an equally shared residential schedule would be in Danni's best interests or how John's retirement would affect his future ability to perform parenting functions. Neither the written findings nor the parenting plan order resolves the facts on these (or any) parenting issues.

Report of Proceedings (RP) (Mar. 17, 2008) at 825.

Specific findings are not required on each factor, and the court is presumed to have considered the statutory elements so long as it reviews evidence on each factor. Here, the court recited the factors and stated it considered them, and we presume this is so. But we do not know what the court decided. Certain inferences may be derived from the final result. Obviously the court rejected certain options. But it is not clear upon what factual basis the court did so. The decisions to adopt this particular plan, to reject John's plan, and to reject a right of first refusal provision are therefore impossible to review.

In re Marriage of Murray, 28 Wn. App. 187, 189, 622 P.2d 1288 (1981).

In re Marriage of Croley, 91 Wn.2d 288, 291, 588 P.2d 738 (1978).

See In re Marriage of Horner, 151 Wn.2d 884, 896-97, 93 P.3d 124 (2004) (in child relocation case, where trial court failed to make specific findings on each statutory factor, the record does not reflect that substantial evidence was presented on each factor, and the trial court's written findings and oral ruling do not reflect that it considered each factor, "we cannot review the trial court decision because its basis is unclear").

Further, the findings serve as the record of current circumstances. Their complete absence will necessarily frustrate a future court's ability to evaluate the propriety of any proposed modification, because there will be no basis for determining whether circumstances have substantially changed.

A court may modify a parenting plan upon a showing that a "substantial change has occurred in the circumstances of the child or the nonmoving party and that the modification is in the best interest of the child and is necessary to serve the best interests of the child." RCW 26.09.260(1).

Accordingly, we have no choice but to remand for entry of factual findings on the existing trial record.

Child Support

John next contends the court abused its discretion either by imputing income to him at all, or by imputing too much income. We review child support orders for abuse of discretion. In anticipation of findings adequate to support the parenting plan, we address this contention because on this subject, the record is adequate for review.

In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990).

In setting child support, the court must consider all factors bearing upon the needs of the children and the parents' ability to pay. The court applies the uniform child support schedule, basing the support obligation on the combined monthly incomes of both parents. "When assessing the income and resources of each household, the court must impute income to a parent when that parent is voluntarily unemployed or voluntarily underemployed." "The court shall determine whether the parent is . . . voluntarily unemployed based upon that parent's work history, education, health, and age, or any other relevant factors."

In re Marriage of Pollard, 99 Wn. App. 48, 52, 991 P.2d 1201 (2000).

Id. (citing RCW 26.19.020, .035(1)(c), .071(1)).

Id. at 52-53 (citing RCW 26.19.071(6)).

RCW 26.19.071(6).

The court found John voluntarily unemployed because there was no requirement that he surrender his employment as a tenured professor at age 62, no evidence that age or health or any other circumstance prevents his continued employment, and therefore his retirement constituted "unemployment . . . brought about by one's own free choice and . . . is intentional rather than accidental."

RP (Mar. 17, 2008) at 831.

John first contends he is not voluntarily unemployed because he is entitled to retire at age 62 and because it was always his intention to do so. John emphasizes that the parties had contemplated he would be a stay-at-home father. He argues the court should have considered his motive and lack of bad faith in determining whether he was voluntarily unemployed.

We reject this argument, which is unsupported by authority or by the circumstances. Neither the statute nor any case law cited by John suggests that a party's motive is relevant to the determination of voluntary unemployment. And the parties' contemplation of John's role included an intact marriage and one household to support. John's decision to retire came after he left the marriage.

Nor do we accept John's argument that imputation of income to him denies him any eventual retirement. When age or health justifies it, John can seek a modification of his support obligation.

Imputation of income is statutorily mandated under such circumstances, regardless of the party's intention. The court did not abuse its discretion by imputing income.

RCW 26.19.071(6) ("The court shall impute income to a parent when the parent is voluntarily unemployed." (Emphasis added.)).

The amount imputed, however, is without support in the record. The court calculated John's income as a total of his regular nine-month university teaching contract and his one-time contract for teaching in the summer of 2007. It was undisputed, however, that John usually did not teach summer quarter and that summer contracts were not within his control. He did not teach in summer 2006. Nevertheless, the court found he "has been employed for the last two summers," and is "capable and able and available" to continue to teach in summer. The evidence does not support this finding and therefore does not support including summer income at a professor's salary in the amount imputed to John.

RP (Mar. 17, 2008) at 843.

Id. at 844; see also In re Marriage of Sacco, 114 Wn.2d 1, 4, 784 P.2d 1266 (1990) (income is imputed at the level "at which the parent is capable and qualified").

John also suggests the court should have deviated from the standard calculation because the 2007 summer contract included in the imputed income was nonrecurring. See RCW 26.19.075 (1)(b) ("court may deviate from the standard calculation based on a finding that a particular source of income included in the calculation of the basic support obligation is not a recurring source of income"). John did not request a deviation on this basis.

John next contends the court should have deviated from the standard child support calculation based upon the significant amount of time Danni spends with him.

A court may deviate from the standard child support calculation if the child spends a significant amount of time with the parent who is obligated to pay support and the deviation will not result in insufficient funds in the household receiving support. Whether to grant a deviation on this basis is discretionary.

RCW 26.19.075.

State ex rel. M.M.G. v. Graham, 159 Wn.2d 623, 636, 152 P.3d 1005 (2007).

John first argues the court abused its discretion by refusing to grant a deviation based upon the 50 percent shared residential schedule he had proposed. We reject the argument because the court did not adopt John's proposed parenting plan.

John also argues the court should have granted a deviation based upon the residential schedule it actually ordered because of his increased costs for clothes, food, toys, and travel, which he estimated at trial amounted to hundreds of dollars a month.

The court denied this request "because given the property distribution and the debt ratio ordered by the Court, as well as this Court's interest to insure support is adequate to meet the child's basic needs, the Court finds no good reason exists to justify a deviation." This finding is supported by substantial evidence. The court awarded John 69 percent of the community assets (or 76 percent of all assets) but assigned to Ming 97 percent of the community debt (or 87 percent of all debt).

Clerk's Papers at 301. John's argument the court abused its discretion by failing to make any findings on the request for a deviation is plainly mistaken.

In any event, John presented no evidence, aside from his own opinion, to show that a deviation would not result in insufficient funds to meet Danni's needs in Ming's household, and he provides no argument on that point on appeal. There was no error in the court's denial of a deviation.

For the reasons set forth above, we remand for factual findings pertaining to the final parenting plan and for reconsideration of the amount of income imputed to John.

Remanded with instructions.

WE CONCUR:


Summaries of

In re Alwin

The Court of Appeals of Washington, Division One
Oct 12, 2009
152 Wn. App. 1038 (Wash. Ct. App. 2009)
Case details for

In re Alwin

Case Details

Full title:In the Matter of the Marriage of JOHN ARNOLD ALWIN, Appellant, and HEMING…

Court:The Court of Appeals of Washington, Division One

Date published: Oct 12, 2009

Citations

152 Wn. App. 1038 (Wash. Ct. App. 2009)
152 Wash. App. 1038