Opinion
No. 32325-7-II.
October 9, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-3-02758-7, Bruce W. Cohoe, J., entered September 10, 2004.
Affirmed in part and reversed in part by unpublished opinion per Van Deren, A.C.J., concurred in by Armstrong and Hunt, JJ.
This matter was remanded by the Supreme Court on September 6, 2007, for reconsideration of our former opinion in light of In re the Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007) and State ex rel. M.M.G. v. Graham, 159 Wn.2d 623, 152 P.3d 1005 (2007). On reconsideration, we affirm our earlier decision in its entirety, including that the trial court did not abuse its discretion in ordering child support of $1,700.00 per month for each of the two minor children.
In the Marriage of House and Wiborg, noted at 130 Wn. App. 1020, 2005 WL 2981674.
Our Supreme Court resolved a split among the divisions of the Court of Appeals on the issue of whether trial courts are allowed to extrapolate the basic child support amount based solely on the parents' income when the parents' combined incomes exceed $7,000.00 per month.
The Court held that all prior Court of Appeals decisions had incorrectly decided the issue:
[T]he trial court may not use extrapolation when it exceeds the economic table in the child support schedule, none of the cases ruled correctly with regard to the trial court's authority to extrapolate. Clarke and McCausland erred in concluding that RCW 26.19.020 expressly authorizes or invites the trial court to extrapolate. Marzettza and Graham erred in concluding that the trial court has discretion to use extrapolation. Daubert and Rusch erred to the extent that they suggested that extrapolation is appropriate as long as the extrapolated amount is supported by written findings of fact. Because, by definition, extrapolation is merely a mechanical method of extending a known series of numbers and the legislature has not approved extrapolation, any amount that exceeds the economic table must be based on the legislative criteria. As noted earlier, RCW 26.19.001 requires that children receive support adequate to meet their basic needs and additional support "commensurate ? with the parents' income, resources, and standard of living."
In re Marriage of Clarke, 112 Wn. App. 370, 48 P.3d 1032 (2002).
In re Marriage of McCausland, 129 Wn. App. 390, 118 P.3d 994 (2005).
In re Marriage of Marzetta, 129 Wn. App. 607, 120 P.3d 75 (2005).
State ex rel. M.M.G. v. Graham, 123 Wn. App. 931, 99 P.3d 1248 (2004).
In re Marriage of Daubert, 124 Wn. App. 483, 99 P.3d 401 (2004).
In re Marriage of Rusch, 124 Wn. App. 226, 98 P.3d 1216 (2004).
McCausland, 159 Wn.2d at 619. Accord, Graham, 159 Wn.2d at 637.
Having determined that a trial court may not merely extrapolate from the child support schedule for parents whose combined income exceeds $7,000.00 per month, the Court determined that:
[T]he trial court should consider the Daubert/Rusch factors, which include (1) the parents' standard of living and (2) the children's special medical, educational, or financial needs when entering its written findings of fact. Daubert, 124 Wn. App. at 495-96; Rusch, 124 Wn. App. at 233. ?The Daubert/Rusch factors derive from the child support schedule statute's statement of intent and are therefore appropriate for the trial court to consider when determining whether to exceed the economic table in determining the basic child support obligation.
See RCW 26.19.001. However, the trial court is not limited to consideration of those factors alone.
McCausland, 159 Wn.2d at 620. Furthermore, the Court held: "The trial court has discretion to set the basic child support obligation at an amount that exceeds the economic table but it must support that amount with written findings of fact." McCausland, 159 Wn.2d at 621.
Here, the trial court did not use extrapolation of the child support schedule to set the Wiborgs' child support obligations. Clerk's Papers (CP) at 112-13. Instead, the trial court carefully and thoroughly considered Daubert/Rusch along with other factors and entered findings of fact relating to the children's needs commensurate with the parents' income, resources, and standard of living. Paragraph 3.22 of the "Order of Child Support On Revision" recites:
We refer to Ms. House and Mr. Wiborg together as the "Wiborgs."
CP at 116. (Emphasis in original.)
1. There has been no modification of the 1994 Order of Child Support.
2. The parties have negotiated child support amounts and have reached agreements in the past.
3. Mr. Wiborg has paid support in excess of the transfer [payment] as the result of these agreements.
4. The amount of income of the parties exceeds the presumptive and advisory amounts of the Child Support Schedules.
5. The mother has relied on the amounts of child support previously paid by the father, and the children have been exposed to an expanded lifestyle by both parents.
6. The children are the beneficiaries of the father's expanded wealth and have enjoyed activities such as the following:
A. Horses
B. Tacoma Lawn Tennis Club
C. Private school education
D. Automobiles
E. Snowboarding
F. R/C cars
G. Allowances
H. High end clothing
I. Generous food allowances
J. Cell phones
K. Voice Lessons
7. The mother's monthly net income is $3,668.00.
8. The father's monthly net income is $45,000.00.
9. The father's net income is derived by his employment income, which results in a net income of $9,189.00 a month. This figure puts the child support well beyond the range of the Child Support Guidelines.
10. Mr. Wiborg has additional income. For the last two years his average income has been $54,000.00 a month, and for the last three years it has been $64,353.00.
11. Mr. Wiborg shows family living expenses of approximately $35,000.00 a month.
12. Based on the income of the parties, the Court determines the transfer payment for each of the two remaining children to be $1,700.00 per month per child.
CP 125-26 (emphasis added). These findings sufficiently support the trial court's determination of the increased support amount.
Thus, applying the Supreme Court's decisions in McCausland and Graham to the case before us, we hold that the trial court did not abuse its discretion in setting the Wiborgs' relative support obligations. Furthermore, the support calculation allows both parents to provide for the children's needs, including those based on the parents' standard of living; i.e., Mr. Wiborg and the children's trusts are not responsible for payment of all their special needs and enhanced standard of living, including the items enumerated by the trial court in paragraph 3.22 of the child support order on revision.
Wiborg argues that the trial court erred by awarding House $1,800 in reasonable attorney fees. Under RCW 26.09.140, such an award is proper only if the payee-parent has a need and the payor-parent has the ability to pay. Nothing in this record shows that House has a need. Hence, we reverse the trial court's award of reasonable attorney fees.
The judgment is affirmed, except that the award of reasonable attorney fees is reversed. Neither party is granted reasonable attorney fees on appeal. House has substantially prevailed, so she may recover her costs and statutory attorney fees so long as she complies with RAP 14.4.
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.
ARMSTRONG, J., and HUNT, J., concur.