Opinion
No. 37967-8-II.
March 31, 2009.
Appeal from a judgment of the Superior Court for Pierce County, No. 02-3-02607-8, Frank E. Cuthbertson, J., entered July 19, 2006.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton and Bridgewater, JJ.
UNPUBLISHED OPINION
Clayton Jacobson appeals from an order modifying his child support obligation and denying his request for a deviation from the standard support calculation based on spending a significant amount of time with his children. Because the trial court reasonably exercised its discretion in denying the request, we affirm.
FACTS
Clayton Jacobson and Celia Jacobson divorced in 2004. The trial court entered a final parenting plan regarding the couples' two children, ages nine and one. The plan scheduled the children to reside the majority of the time with Celia but gave Clayton considerable residential time. During the school year, the children would reside with Clayton every Wednesday night and every other Friday through Sunday. The parents evenly split vacations and holidays. During the summer, the children would spend four uninterrupted weeks with Clayton. Based on the total of each parent's income and each parent's relative share of that income, the trial court ordered Clayton to pay Celia a $758.41 per month transfer payment.
The record does not contain the 2004 child support order. We derived this figure from correspondence between Clayton and the Department of Social and Health Services. There is no dispute about the amounts owing or the trial court's calculation.
In 2006, Celia filed a motion to adjust the child support. Clayton argued in response that the transfer payment should be reduced because the children spent a significant amount of time residing with him. The trial court disagreed and set the new transfer payment at $731.90 per month, increasing to $818.04 per month on December 1, 2006. The superior court commissioner orally denied Clayton's request for a downward deviation and denied his motion for reconsideration. The trial court denied Clayton's motion for revision, incorporating its oral decision.
At oral argument before this court, the parties explained that the transfer payment had been reduced in 2005 because of a change in Clayton's income. Nothing in the record before us, however, shows this.
Clayton has not provided a verbatim report containing this decision or the decisions on his motion for revision and/or reconsideration.
ANALYSIS
This appeal presents a single question: Did the trial court abuse its discretion in refusing to deviate from the child support payment tables under RCW 26.19.075(1)(d)?
RCW 26.19.075(1)(d) provides that "[t]he court may deviate from the standard calculation if the child spends a significant amount of time with the parent who is obligated to make a support transfer payment" if the deviation does not result in insufficient funds to meet the child's basic needs while residing in the household receiving the transfer payment. When determining the amount of deviation, the trial court should consider evidence of increased expenses to the obligated parent and decreased expenses, if any, to the parent receiving the payment. RCW 26.19.075(1)(d). The statute plainly gives the trial court discretion to deviate from the basic child support obligation based on the amount of residential time the children spend with the obliged parent. State ex rel. M.M.G. v. Graham, 159 Wn.2d 623, 636, 152 P.3d 1005 (2007). If the trial court deviates from the scheduled calculation, it must enter appropriate findings and conclusions supported by sufficient evidence to establish how much time the child spends with the obligated parent and how much time the obligated parent spends caring for the child. RCW 26.19.035(2); State ex rel. Sigler v. Sigler, 85 Wn. App. 329, 338, 932 P.2d 710 (1997).
RCW 26.19.075(1)(d) provides:
(d) Residential schedule. The court may deviate from the standard calculation if the child spends a significant amount of time with the parent who is obligated to make a support transfer payment. The court may not deviate on that basis if the deviation will result in insufficient funds in the household receiving the support to meet the basic needs of the child or if the child is receiving temporary assistance for needy families. When determining the amount of the deviation, the court shall consider evidence concerning the increased expenses to a parent making support transfer payments resulting from the significant amount of time spent with that parent and shall consider the decreased expenses, if any, to the party receiving the support resulting from the significant amount of time the child spends with the parent making the support transfer payment.
Clayton claims that his residential time with the children is significant and thus the trial court should have granted a deviation. Clayton also argues that the trial court should have entered findings and conclusions supporting its decision to deny the deviation. The statute, however, only requires the trial court to enter findings and conclusions if it grants a deviation. RCW 26.19.075(3). The trial court's orders denying Clayton's request for a deviation and denying his motion to reconsider do not state the trial court's reasoning but, instead, refer to the trial court's oral statements for explanation. As Clayton did not provide these verbatim reports as our rules require, we cannot review the trial court's reasons for denying a deviation. State v. Tracy, 158 Wn.2d 683, 691, 147 P.3d 559 (2006) (citing Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988)).
Clayton argues that the child support schedules reflect what it costs to support each child and that it is fundamentally unfair that Celia gets 100 percent of that amount to support the children while he must incur additional expenses if he wants to spend time with his children. In his case, he argues that he spends a significant amount of time and money to be with his children and the support payment should compensate him for this. For this reason, he argues that there should be no transfer payment at all.
The statute plainly gives the trial court discretion to deviate based on the residential schedule. RCW 26.19.075(1)(d). Each case will turn on its facts. For example, here, Clayton claims that he spends an extra $500 per month on housing, $150 in utility bills, $150 in direct transportation, $50 in childcare expenses, and $75 in recreational expenses. He provides nothing other than his declaration to support these costs. He says that the children spend at least 122 nights per year with him. On the other hand, Celia provided a declaration stating that Clayton frequently does not exercise his residential time under the agreement. On this record, there is no evidence that the trial court abused its discretion by refusing to deviate from the schedule amount.
Celia requests attorney fees on appeal and states that she will file an affidavit of financial need. RAP 18.1(c) provides that the affidavit must be filed "no later than 10 days prior to the date the case is set for oral argument." She has failed to comply with this rule and thus her attorney fees request is denied.
Affirmed.
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.
HOUGHTON and BRIDGEWATER, JJ., concur.