Opinion
No. 36109-4-II.
April 22, 2008.
Appeal from a judgment of the Superior Court for Pacific County, No. 02-3-00084-9, Douglas E. Goelz, J. Pro Tem., entered February 22, 2007.
Reversed and remanded by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Armstrong, JJ.
Andrew Flemetis sought to substantially reduce his child support payments for his minor son, BCF. The trial court reduced his monthly child support by only $30.00. He appeals, arguing, among other things, that the trial court erred in (1) signing and entering the order of child support because his former wife failed to give him notice of presentment of the order, (2) failing to enter written findings of fact and conclusions of law, and (3) failing to sign a child support worksheet. We agree, vacate the child support order, and remand for further proceedings consistent with this opinion.
FACTS
Gina and Andrew Flemetis had one child, BCF, during their marriage. Before Gina and Andrew married, Andrew had another child and was responsible for her support. Prior to Andrew's motion for modification of support, Andrew had paid Gina $350.00 per month for BCF's support. After Gina and Andrew divorced, Andrew remarried and adopted his new wife's two children.
Gina Flemetis is also known as Gina Wilson. Nonetheless, we refer to Gina and Andrew by their first names to avoid confusion.
Andrew asked the trial court to reduce his support obligation for BCF because (1) the trial court modified the parenting plan allowing Andrew to have an additional night per week with BCF, for a total of 157 nights per year; (2) Andrew adopted his new wife's two children, (3) Gina's income increased; and (4) Andrew's income decreased.
The trial court refused to deviate from the child support schedule because Andrew had adopted two children, but it did deviate by $30.00 per month because of the additional nights BCF spends with Andrew. Thus, the trial court ordered Andrew to pay Gina $320.00 per month for BCF's support.
The trial court agreed to reduce Andrew's income based on a reduction in his overtime pay. The final child support order shows Andrew's monthly income as $3,037.00 and Gina's as $1,640.00. But our limited appellate record does not permit us to deduce whether the trial court decreased or increased Andrew's or Gina's income figure when it calculated BCF's standard child support based on the child support schedule.
On February 23, 2007, Gina submitted her proposed child support order to the trial court. Four days later, on February 27, she served Andrew's counsel with copies of the proposed order, but did not include a notice of presentment. Without notice to Andrew, the trial court modified Gina's proposed orders and entered them on March 12, 2007. In doing so, the trial court failed to sign written findings of fact, conclusions of law, or a child support worksheet.
Andrew appeals.
ANALYSIS
I. Presentation of Final Child Support Orders
Andrew argues that Gina failed to give him proper notice that she was presenting the final orders to the trial court and, therefore, we should vacate the final child support order. We agree.
"Failure to comply with the notice requirement in CR 54(f)(2) generally renders the trial court's entry of judgment void." Burton v. Ascol, 105 Wn.2d 344, 352, 715 P.2d 110 (1986); see also Tacoma Recycling, Inc. v. Capitol Material Handling Co., 34 Wn. App. 392, 396, 661 P.2d 609 (1983). "A judgment entered without the notice required by CR 54(f)(2) is not invalid, however, where the complaining party shows no resulting prejudice." Burton, 105 Wn.2d at 352.
Generally, the trial court must wait to sign final findings of fact, conclusions of law, and orders until the prevailing party serves the other party with a copy of the proposed judgment and provides that party with five days' notice. CR 52(c); CR 54(f).
Under CR 52(c), "the court shall not sign findings of fact or conclusions of law until the defeated party or parties have received 5 days' notice of the time and place of the submission, and have been served with copies of the proposed findings and conclusions." And under CR 54(f)(2), "[n]o order or judgment shall be signed or entered until opposing counsel have been given 5 days' notice of presentation and served with a copy of the proposed order or judgment."
Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address. . . . Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof.
CR 5(b). The purpose of serving the opposing party with the proposed final findings, conclusions and orders is to permit the party "to evaluate them and prepare all relevant arguments against their adoption." Tacoma Recycling, 34 Wn. App. at 396.
Here, the parties appeared on February 22, for what the trial court believed would be arguments on Andrew's motion to reconsider. But Gina had "noted [the hearing] for final orders." Report of Proceedings (RP) (Feb. 22, 2007) at 2. After discussion of the proper calculation of wages, the trial court informed the parties that it was prepared to sign final orders. But neither party had prepared them for the trial court's signature. Andrew's counsel concluded the hearing by stating that he would "mail our proposed orders out today." RP (Feb. 22, 2007) at 7.
As evidenced by our appellate record, Andrew never prepared final orders, but Gina prepared a final child support order one day after the hearing and left it for the trial court to sign. She thus submitted the proposed final order of child support to the trial court before she served copies on Andrew's counsel on February 27. Andrew admits that his "counsel received copies of an Order of Child Support with an attached Child Support Worksheet and a copy of the Findings of Fact and Conclusions of Law." Br. of Appellant at 5. But he argues that Gina "failed to give [him] and his counsel notice that those documents were going to be entered five days prior to presentment." Br. of Appellant at 13. And although Andrew did not waive presentation of the order, the trial court modified Gina's proposed order and signed it on March 12, 2007, without Andrew's or his counsel's signature.
Andrew argues that he was prejudiced because "the final orders that were entered allotted things that were not ruled on nor stated in court, such as awarding [Gina] tax exemptions on [BCF]." Br. of Appellant at 13. The final child support order states that "MOTHER WILL CLAIM DEDUCTION FOR [BCF]." Clerk's Papers (CP) at 50. Andrew and Gina disagreed about which parent should be able to claim a tax deduction for BCF, but the trial court did not resolve this issue at the hearing. We agree that Andrew was prejudiced by Gina's failure to give him notice of presentment and that the trial court erred when it signed the final child support order without Gina notifying Andrew of presentment of the final order. Therefore, the final order is void. See Burton, 105 Wn.2d at 352; Tacoma Recycling, 34 Wn. App. at 396.
II. Trial Court's Failure to Sign Findings of Fact, Conclusions of Law, and Child Support Worksheet
Although our holding that the order is void is dispositive, we address Andrew's argument that the trial court erred in not entering findings of fact and conclusions of law articulating the reasons why it deviated from the standard child support obligation to avoid repetition of the trial court's error on remand.
Andrew contends that if a trial court fails to enter written findings of facts and conclusions of law, we may consider the trial court's oral opinion to determine the basis of the court's decision not to deviate, citing In re Marriage of Griffin, 114 Wn.2d 772, 777, 791 P.2d 519 (1990). We disagree and do not consider the trial court's oral opinion. See In re Marriage of Choate, No. 35940-5-II, slip op. at 8-9 (Wash.Ct.App. Feb. 26, 2008).
Recently, our Supreme Court held that under RCW 26.19.020, which permits the trial court to exceed the amount of child support in the economic table if it supports its decision with written findings of fact, the trial court erred when it did not support its judgment with written findings and conclusions. In re Marriage of McCausland, 159 Wn.2d 607, 622, 152 P.3d 1013 (2007). The child support statutes give the trial court the discretion to deviate from the economic table, but that discretion is limited because the trial court must support its decision to deviate from the economic table with written findings of fact. "Although cursory findings of fact and the trial record might appear to justify awarding a child support amount that exceeds the economic table, only the entry of written findings of fact demonstrate that the trial court properly exercised its discretion in making the award." McCausland, 159 Wn.2d at 620 (alteration in original).
Noting that the child support deviation statute, RCW 26.19.075, "also unequivocally requires written findings of fact to support any deviation," we recently held that "[a]n unsupported deviation is also an abuse of discretion." In re Marriage of Choate, No. 35940-5-II, slip. op. at 7, 8 (Wash.Ct.App. Feb. 26, 2008). We cannot rely on the trial court's memorandum decisions or oral statements to support the final child support order. See McCausland, 159 Wn.2d at 620; Choate, No. 35940-5-II, slip. op. at 7-8. The trial court abused its discretion when it failed to enter written findings and conclusions to support its child support deviation order.
RCW 26.19.075(3) provides in relevant part that "[t]he court shall enter findings that specify reasons for any deviation or any denial of a party's request for any deviation from the standard calculation made by the court."
Furthermore, the trial court did not sign a child support worksheet, as required by RCW 26.19.035(4) or RCW 26.19.075(3). Therefore, we cannot determine whether the trial court properly calculated the parties' incomes or properly calculated a deviation in Andrew's support.
RCW 26.19.035(4) provides in relevant part that "[t]he court shall review the worksheets and the order setting support for the adequacy of the reasons set forth for any deviation. . . . Worksheets shall be attached to the decree or order or if filed separately shall be initialed or signed by the judge and filed with the order."
The trial court abused its discretion when it failed to sign written findings, conclusions, and a child support worksheet. As stated by our Supreme Court:
Lacking a worksheet in the form required by the statute and specific reasons for deviation from that worksheet, it would serve no purpose to address these issues and others raised by [Andrew]. On remand, the evidence will be considered anew, the statutory procedures followed, and calculations made from these procedures which will enable the issues addressed by the parties to be more clearly resolved in the form required by the Legislature.[]
Although the trial court did not sign a final child support worksheet, it appears Andrew's counsel used unapproved child support calculation worksheets. Andrew's proposed child support worksheets used the whole family formula deviation and his counsel discussed with the trial court how his "software" calculated child support. RP (Jan. 8, 2007) at 3. The trial court may not accept "worksheets that vary from the worksheets developed by the administrative office of the courts." RCW 26.19.035(3). The Administrative Office of the Courts has not approved a worksheet entitled "Whole Family Formula Deviation" in the appendix to chapter 26.19 RCW. Choate, No. 39540-5-II, slip op. at 7. The trial court erred if it accepted or relied on "these worksheets without findings showing consideration of all household circumstances." Choate, 177 P.3d at 178. On remand, when considering whether to deviate from the economic tables, the trial court should consider "the total circumstances of both households." RCW 26.19.075(1)(e)(iv); see also Choate, No. 39540-5-II, slip op. at 7-9. Furthermore, "[a]ll income and resources of the parties before the court, new spouses, and other adults in the households shall be disclosed [by the parties] and considered" by the trial court. RCW 26.19.075(2).
In re Marriage of Sacco, 114 Wn.2d 1, 5, 784 P.2d 1266 (1990).
Here, the trial court erred in signing the final child support order, without ensuring that Andrew received notice of presentation of Gina's final orders, by failing to enter written findings of fact and conclusions of law supporting its support deviation, and by failing to sign a final authorized child support worksheet. Thus, we vacate and reverse the trial court's child support order modifying Andrew's support obligation and remand for further proceedings consistent with this opinion.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J., and ARMSTRONG, J., concur.