Opinion
No. 58642-4-I.
October 22, 2007.
Appeal from a judgment of the Superior Court for King County, No. 02-3-06969-3, Julie A. Spector, J., entered June 20, 2006.
Affirmed by unpublished opinion per Grosse, J., concurred in by Appelwick, C.J., and Cox, J.
In child support modification proceedings, a trial court does not abuse its discretion by limiting its decision to support installments accruing subsequent to the modification petition and reserving disputes regarding past support and expenses for other proceedings. Because Terezia Horvath fails to identify any unsupported findings or demonstrate any abuse of discretion or error of law in the superior court commissioner's order granting her petition for modification of child support or the trial court's decision denying her motion for revision, we affirm.
FACTS
In October 2003, the King County Superior Court entered orders dissolving the marriage of Peter and Terezia Horvath and providing for parenting and support of their two children, J.H. and B.H. The Parenting Plan provides that the children will reside a majority of the time with Terezia and orders "that [B.H.] shall continue to attend the Creative Montessori school at the Father's expense (unless the parents shall agree upon a less expensive facility) until he begins first grade." The Order of Child Support designates Peter as the obligor parent and directs him to pay $342 per month to Terezia, the obligee parent, through the Washington State Support Registry. The order also provides, "Father shall pay the daycare expense directly to the daycare provider. Each party shall provide [and] pay for any daycare necessary during that parent's residential time." Regarding medical insurance, the order states:
The father shall maintain or provide health insurance coverage if:
(a) Coverage that can be extended to cover the children is or becomes available to that parent through employment or is union-related; and
(b) The cost of such coverage for the father does not exceed 25 percent of father's basic child support obligation on Worksheet Line 7[.]
The Child Support Schedule Worksheet lists Peter's gross child support obligation as $1,241.89 per month and his combined credits for healthcare and daycare expenses as $900 per month.
In November 2005, Terezia filed a Petition for Modification of Child Support. She also alleged that Peter had failed to maintain health coverage for the children and failed to pay for certain daycare during summer and holidays, despite the fact that he had received credit for those amounts against his monthly support payment, resulting in an arrearage of $4,890 plus interest. On December 6, 2005, a court commissioner entered a temporary child support order directing Peter to pay $952 per month to Terezia.
At trial, Terezia acknowledged that Peter fulfilled his monthly support obligation of $342 as directed in the 2003 order but argued that Peter owed an arrearage amount of $6,655.12 based on his alleged failure to pay for healthcare and daycare expenses. She offered the following calculation:
What father's child support obligation should have been $25,883.12 What father actually paid to mother and daycare providers LESS $20,284.00
Mother's share of labor for trade credited back to her PLUS $1,056 ARREARAGE AMOUNT DUE FROM FATHER: = $6,655.12
Terezia also requested that Peter's support obligation be increased based on his increased income and his various assets. She included alternative child support worksheets reflecting different computations of Peter's income, an accountant's analysis of Peter's financial documents, and numerous financial documents to establish values of particular assets. Additionally, Terezia requested reimbursement for certain daycare expenses as well as attorney fees.
The commissioner rejected Terezia's arrearage claim, declining "to grant judgment on the theory that the father underpaid support by allegedly failing to pay insurance premiums and childcare that were treated as credits as this would be a retroactive modification barred by statute." The commissioner increased Peter's child support payment to $1,152.00, ordered Peter to pay Terezia $2,500 in attorney fees, and reserved without prejudice the issue of disputes regarding specific daycare expenses. In response to Terezia's motion for revision of the commissioner's ruling, the trial court ordered Peter to pay a pro rata share of daycare expense while Terezia attends school but otherwise denied revision. Terezia appeals.
ANALYSIS
We review modification proceedings to determine whether the findings are supported by substantial evidence and whether the trial court has made an error of law that may be corrected upon appeal. In reviewing decisions setting child support, we defer to the sound discretion of the trial court unless that discretion is exercised in an untenable or unreasonable way.
In re Marriage of Stern, 68 Wn. App. 922, 929, 846 P.2d 1387 (1993); In re Marriage of Shellenberger, 80 Wn. App. 71, 80-81, 906 P.2d 968 (1995).
In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990).
Terezia first contends that she is entitled to reimbursement for the credits Peter received against his monthly support payments for healthcare and daycare under RCW 26.19.080(3) or equitable principles of restitution, unjust enrichment, and parent as trustee for child support payments. Terezia contends that she overpaid for daycare and healthcare expenses by way of credits reducing Peter's support obligation because Peter did not actually pay for any healthcare or for summer daycare expenses and that the trial court erred by failing to provide an equitable remedy.
RCW 26.19.080(3) provides in pertinent part:
If an obligor pays court or administratively ordered day care or special child rearing expenses that are not actually incurred, the obligee must reimburse the obligor for the overpayment if the overpayment amounts to at least twenty percent of the obligor's annual day care or special child rearing expenses.
But our review of the record reveals that at the modification hearing before the commissioner, Terezia framed her claim as an arrearage. Although she admitted that Peter fulfilled his obligation to make the ordered monthly transfer payment of $342, in her argument and exhibits she repeatedly referred to what Peter's transfer payment "should have been" in light of his failure to pay certain healthcare and daycare costs. The commissioner did not make any factual findings as to Peter's actual payment or failure to pay any daycare or healthcare expenses and refused to consider the claimed arrearage, stating:
The parties have the right to make contempt motions if a party is . . . willfully failing to abide by an Order of Support. You also have the right to come into court and adjust the support.
Looking at anything retroactively is barred by statute and barred by case law. And so the court cannot say well in retrospect, you should have been paying more because what . . . Judge North anticipated didn't happen. That would be retroactive modification and I can't do it.
Under RCW 26.09.170(1), child support may be modified only "as to installments accruing subsequent to the petition for modification." Accrued installments of child support are not subject to retroactive modification. Terezia fails to demonstrate any error of law in the commissioner's decision. Although she presented her additional arguments to the trial court in her motion for revision, she fails to establish that the trial court erred by limiting its consideration to the record before the commissioner. Nothing in the orders modifying child support prevents Terezia from seeking equitable relief by a separate motion in the same manner the commissioner suggested for resolving disputes about specific daycare expenses with a motion on the family court calendar. Terezia next contends that the commissioner erred in calculating Peter's income by failing to (1) complete the entire child support worksheet including assets; (2) consider and give substantial weight to her accountant's report and Peter's statements regarding his income; and (3) add various business deductions back into Peter's income. At the hearing, the commissioner stated:
Valley v. Selfridge, 30 Wn. App. 908, 913 n. 2, 639 P.2d 225 (1982).
The parties have submitted a substantial amount of documents that I've reviewed. The fact that your attorneys were allowed a limited time for argument does not mean the court is solely basing its decisions based upon the arguments presented. It's based upon its review of the documents presented, applying the laws which was responsible for it.
. . . .
As far as what the income levels are, both parties . . . although the[y] were voluminous in some respects, they didn't give the court a very clear picture. I . . . in looking at the tax returns and . . . I think one attorney made the comment and it's true, . . . what is appropriate for the IRS may not necessarily be appropriate for the calculation of support. . . . [T]he court is going to . . . for example when it comes to depreciation and those matters, . . . have discretion to see whether or not it's a deduction. . . . [F]or the purposes of income, I'm going to adopt the exhibit number six, that the mother compiled for the parties' incomes.
. . . .
I'm not making any findings . . . in regard to the assets of the parties. Part five is stricken.
At the hearing, Terezia submitted two alternative worksheets for Peter's income. Based on the first worksheet, she argued that his 2005 income tax returns established a monthly income of $5,576. To support a second worksheet with a $7,100 monthly income, Terezia contended that her accountant's analysis of Peter's imputed monthly income based on his spending was $8,000 to $13,000 and his anticipated 2006 monthly income would be over $10,000. Our review of the record reveals that Peter's 2005 tax return listed a total income of $59,161 and a pension contribution of $7,757, for a total of $66,918, or $5,576 per month. Additionally, the parties submitted numerous conflicting documents and arguments regarding Peter's actual or suspected assets and disputed the admissibility of certain evidence. In light of this record and Peter's objections to the evidence supporting Terezia's higher estimates of his income, as well as the commissioner's statement that he had considered all the documents presented, Terezia fails to establish any abuse of discretion.
Terezia contends that the commissioner abused his discretion by making the modification effective in May 2006 rather than the date of the November 2005 petition without considering the equities. The trial court has discretion to make the modification effective upon the filing of the petition, the date of the order, or any time in between. In light of the temporary order significantly increasing Peter's monthly payment from $342 to $952 in December 2005 through April 2006 while the modification proceedings were pending, Terezia fails to demonstrate any abuse of discretion.
In re Marriage of Pollard, 99 Wn. App. 48, 55, 991 P.2d 1201 (2000).
Terezia next claims that the commissioner erred in limiting an award of attorney fees to $2,500, rather than the $7,000 she requested, based on the finding that some of her arguments were unmeritorious. We review an award of attorney fees for abuse of discretion. The commissioner found that $2,500 was reasonable for the services provided by Terezia's attorney and that Terezia had the need and Peter had the ability to pay. Terezia claims that the trial court should have reviewed her attorney's cost bills to segregate time and expenses for the reimbursement issues. Given the voluminous record and the circumstances of this case, Terezia fails to establish any abuse of discretion.
In re Marriage of Moody, 137 Wn.2d 979, 994, 976 P.2d 1240 (1999).
Finally, both parties request attorney fees on appeal. Peter requests fees as the prevailing party under RAP 18.1. Terezia requests fees under RAP 18.1, RCW 26.09.140, and RCW 26.18.160. RCW 26.09.140 allows awards of costs and fees based on need and ability to pay and RCW 26.18.160 requires an award of costs and fees to the prevailing party in "any action to enforce a support . . . order" but "[a]n obligor may not be considered a prevailing party . . . unless the obligee has acted in bad faith." Although Peter is the prevailing party here, we cannot say that Terezia has acted in bad faith and thus decline to apply RCW 20.18.160. However, RCW 26.09.140 is applicable and it appears Peter has the superior ability to pay. We refer this issue to a commissioner under RAP 18.1(f).
Affirmed.