Opinion
No. 52221-3-I.
Filed: March 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 88-3-08870-9. Judgment or order under review. Date filed: 03/26/2003. Judge signing: Hon. Douglass a North.
Counsel for Appellant(s), Mark Douglas Kimball, Skyline Tower, 10900 NE 4th St. Ste 950, Bellevue, WA 98004-5888.
Counsel for Respondent(s), Elizabeth Turner Smith, Attorney at Law, PO Box 1237, Lynnwood, WA 98046-1237.
When monthly parental income exceeds $7,000, a court has discretion to set child support at one of the advisory amounts in the child support schedule for incomes between $5,000 and $7,000. In this appeal from a child support adjustment, Joyce Trichak contends the superior court abused its discretion in setting support at the lowest advisory amount for incomes over $7,000, and in granting a downward deviation based on the child's extraordinary income. She also challenges several of the court's income findings. Because several income findings are not supported by substantial evidence, we remand for further proceedings.
FACTS
The history of the parties' child support litigation is set forth in our unpublished decision in Trichak v. Trichak, and will not be repeated here. For purposes of this decision, it will suffice to summarize the proceedings that are the subject of this appeal.
86 Wn. App. 1106 (No. 37629-2-I, 1997).
In 2001, Joyce filed a petition to modify child support. The petition alleged changes in the parties' incomes and the needs of their adult, mentally disabled daughter, Cassandra. At the time of the petition, George Trichak was obligated to pay $497 in monthly child support for Cassandra. Following a hearing on affidavits, a superior court commissioner entered an order adjusting child support. The commissioner found that while there were no grounds for modification, a statutory adjustment was warranted because more than two years had passed since the last support order and the parties' incomes had changed. Although George had been granted a deviation in prior orders based on Cassandra's social security income, the commissioner declined a deviation, stating: `[T]here is a progressive worsening [of] Cassandra's condition which will make her care increasingly burdensome [.]' The commissioner ordered George to pay a standard support calculation of $791 per month. George moved for revision.
George's transfer payment was actually only $355 per month because the court deducted $142 per month for amounts Joyce owed George for support of another child.
CP 408.
The superior court, following a videotaped hearing, revised the commissioner's income calculations, granted a deviation, and adjusted George's support obligation downward to $317 per month. The court found a deviation was warranted due to Cassandra's social security and employment income. Joyce appeals.
DECISION
We review child support adjustments for abuse of discretion. The challenging party must demonstrate that the trial court's decision is manifestly unreasonable, based on untenable grounds, or granted for untenable reasons. We review the court's findings for substantial evidence.
In re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990).
In re Marriage of Peterson, 80 Wn. App. 148, 152, 906 P.2d 1009 (1995).
In re Marriage of Stern, 68 Wn. App. 922, 929, 846 P.2d 1387 (1993).
Income Figures. Joyce contends several income figures used by the superior court on revision are not supported by the record. She argues that her monthly employment income was $1,910.51, not $2,898 as found by the court, and that her monthly net income is $2,506, not $3,309. George correctly points out that the court's figures are consistent with Joyce's own worksheet below, which listed her monthly employment income as $2,898 and her monthly net income as $3,896. But notwithstanding what the worksheets show, our review of the record indicates that the income figures for Joyce are based on a double counting of one income source. Accordingly, for the reasons stated below, we conclude a remand is required for correction of the court's income and support calculations.
Joyce's employment income is listed as `wages and salaries' in the worksheet incorporated by reference in the court's support order and findings of fact. The net monthly income figure is located in the same worksheet and in Finding of Fact 3.3 of the support order.
CP 383, 479.
The worksheets adopted by the superior court expressly state that Joyce's income is taken from her 2001 tax return. That return and Joyce's 2001 W-2 forms list two sources of income for 2001: $22,009.15 in wages from Joyce's employment with the Seattle School District, and $12,767.04 in wages from the Department of Social and Health Services. The latter are funds Joyce receives from a Medicaid Community Alternative Program (CAP) that compensates family members for the care of a disabled child. Added together, these wages support the monthly wages figure in the court's worksheet. But it appears that the court counted the CAP income a second time under `other income.' The court's worksheet lists $1,450 in `other income' for Joyce. George states that this amount was based on $450 Cassandra paid to Joyce in room and board, and $1,000 in CAP payments. Thus, it appears the CAP income was counted twice and the court's income figure is not supported by the record. We must, therefore, remand for correction of the court's calculations.
CP 833.
The total for the two W-2s is $34,776.19. That figure divided by twelve equals $2,898 the figure on the court's worksheet for wages and salaries.
CP 830.
Respondent's Brief at 4.
In a footnote, Joyce states that the $450 Cassandra pays her for room and board is not income to her, but rather `substituted cash.' Arguments set forth in footnotes are ambiguously raised and need not be considered. State v. N.E., 70 Wn. App. 602, 606 n. 3, 854 P.2d 672 (1993). Furthermore, George alleges that Joyce's counsel conceded at the revision hearing that the $450 was income. Joyce chose not to provide a transcript of that hearing despite this court's warning that she took `the risk that a panel of judges may find the record to be inadequate for review [.]' It is the appellant's burden to provide an adequate record for review. Story v. Shelter Bay Co., 52 Wn. App. 334, 345, 760 P.2d 368 (1988). In the absence of a transcript, we are unable to determine whether this issue was preserved for review. We decline to address it further.
Next, Joyce assigns error to the court's finding regarding George's net monthly income. No meaningful argument is devoted to this assignment of error in either of her briefs. Assignments of error unsupported by argument need not be considered. In any event, the court's figure is within the range of the evidence and is supported by the record. The court's net income figure for George is roughly $500 lower than the amount Joyce attributed to him in her worksheet. That difference is explained by the parties' differing tax calculations. Joyce has not demonstrated that George's tax estimates are unreliable or that the court abused its discretion in adopting them.
Finding of Fact 3.2.
Watson v. Maier, 64 Wn. App. 889, 899, 827 P.2d 311 (1992).
Finally, Joyce contends the court's finding that Cassandra earns approximately $125 a month is not supported by the record. She is correct. In the first three months of 2002, Cassandra received gross wages of $215, or approximately $70 per month before taxes. In 2001, she earned $1,082, or roughly $90 per month. Cassandra's income figure should be corrected on remand
CP 236.
CP 804.
Standard Calculation/Deviation. Joyce contends the court abused its discretion in determining the amount of George's support obligation. Specifically, she contends the court failed to set the standard calculation consistent with the parties' circumstances, and abused its discretion in continuing the downward deviation from the standard calculation. Because the errors in Joyce's and Cassandra's incomes could conceivably alter the superior court's discretionary decisions regarding the standard calculation and the deviation, we need not address these contentions. Nevertheless, we have considered them in order to provide guidance for the parties and the court on remand
Although the court's decision to deviate was based primarily on Cassandra's Social Security income, the court also considered her employment income and Joyce's monthly $1,000 in CAP income. Accordingly, a reduction in both Cassandra's and Joyce's income could conceivably affect the court's decision to deviate downward. Likewise, Joyce's income was presumably one of the circumstances the court considered in selecting the advisory support amount.
In setting a parent's child support obligation, courts first determine the applicable support obligation set forth in the child support schedule and then consider discretionary departures from that amount. When, as in this case, the parties' combined monthly net incomes exceed $7,000, the court has discretion to either set child support at one of the advisory amounts for incomes between $5,000 and $7,000, or exceed the highest advisory amount upon written findings of fact. In this case, Joyce requested the highest advisory amount i.e. $1,218 for combined incomes of $7,000. The court commissioner, in exercising her discretion, imposed that amount and discontinued the prior court's deviation down. On revision, the superior court imposed the lowest advisory amount i.e. $912 for combined incomes of $5,000 — and restored the deviation. Joyce contends the superior court abused its discretion given the parties' circumstances.
See RCW 26.19.011(4),(8).
The superior court found that the parties' combined income totaled $8,761. Subtracting $1,000 for the double counted CAP funds, the combined income still exceeds $7,000.
CP 417.
CP 830.
The superior court was within its discretion in imposing a downward deviation. The court based its deviation on the fact that Cassandra receives $560 a month in Social Security Income and $125 per month from her job. We have twice held that, contrary to Joyce's assertions, this income constitutes `extraordinary income' under RCW 26.19.075(1)(a)(vii) and supports a downward deviation in this case. Continuing the downward deviation is particularly appropriate because the courts below found there had been no substantial change of circumstances.
In re Marriage of Trichak, 72 Wn. App. 21, 25, 863 P.2d 585 (1993); Trichak v. Trichak, No. 37629-2-I, at 12-13 (1997).
We question whether, in the absence of a substantial change of circumstances, a court has authority in an adjustment proceeding to modify a prior court's deviation decision. See In re Marriage of Trichak, 72 Wn. App. at 24 (holding that prior court's deviation may be modified where substantial change in circumstances is shown). RCW 26.09.170(9)(a) allows an adjustment `based upon changes in the income of the parents.' The court's authority under this statute is arguably limited to simply conforming existing calculations in a child support order to the parties' current circumstances. See In re Marriage of Scanlon, 109 Wn. App. 167, 173, 34 P.3d 877 (2001).
Joyce also argues that the combination of a downward deviation and the use of the lowest advisory support amount for incomes between $5,000 and $7,000 results in an untenable level of support given the parties' circumstances. In general, Joyce argues that George should pay more support because the amount ordered by the court is a small percentage of his income. George responds that the focus should be on the child, not the parents, and that an abuse of discretion occurs only when the support amount does not meet the child's needs.
The Legislature has made it quite clear, however, that the child support schedule is not merely intended to ensure that a child's basic needs are met:
The legislature intends, in establishing a child support schedule, to ensure that child support orders are adequate to meet a child's basic needs and to provide additional child support commensurate with the parents' income, resources, and standard of living. The legislature also intends that the child support obligation should be equitably apportioned between the parents.
(Emphasis added); RCW 26.19.001.
We have held that when combined income exceeds $7,000, this language requires courts to `consider what additional amounts should be paid `commensurate with the parents' income, resources, and standard of living[,]'' and to enter findings demonstrating such consideration. The court's written findings in this case suggest that it fulfilled this obligation. They do not, however, reveal the court's reasoning or shed light on how it exercised its discretion. In such circumstances, we would normally consult the court's oral opinion, but it has not been provided. Accordingly, we are unable to determine whether the court properly exercised its discretion. On remand, the court should enter findings demonstrating that it considered whether additional support beyond that required for Cassandra's basic needs is appropriate under the circumstances of this case. In directing this consideration, we do not suggest how the court should ultimately exercise its discretion.
In re Marriage of Leslie, 90 Wn. App. 796, 804, 954 P.2d 330 (1998) (quoting RCW 26.19.001); In re Marriage of Fiorito, 112 Wn. App. 657, 665-666, 50 P.3d 298 (2002).
The written findings state that `[u]nder the circumstances of this case, the court further finds it appropriate to apply the presumptive transfer payment amount, rather than the advisory amount requested by the mother.' CP 829.
In re Marriage of Clarke, 112 Wn. App. 370, 382, 48 P.3d 1032 (2002).
See In re Marriage of Leslie, 90 Wn. App. at 804; In re Marriage of Clarke, 112 Wn. App. at 379-80.
Both parties request attorney's fees and costs on appeal. We decline to award fees to either party.
We remand this case for proceedings consistent with this opinion.
GROSSE and KENNEDY, JJ., concur.