Opinion
No. 38414-1-II.
October 20, 2009.
Appeal from the Superior Court, Pierce County, No. 00-3-02565-2, Stephanie A. Arend, J., entered September 5, 2008.
Affirmed by unpublished opinion per Penoyar, A.C.J., concurred in by Houghton and Lau, JJ.
Matthew Young appeals from a decision denying his motion to modify his child support obligation. Specifically, he argues that (1) because Carolyn has abundant financial resources, the superior court erred by denying his motion for a deviation from the standard calculation and based on In re Marriage of Casey, 88 Wn. App. 662, 967 P.2d 982 (1997), she should pay him the transfer payment; (2) the superior court failed to make findings to support its decision denying his request for a deviation; and (3) he is entitled to attorney fees under RCW 26.09.140. Carolyn asks for attorney fees for having to respond to a frivolous appeal. We affirm the superior court and deny both parties' request for attorney fees.
Facts
Matthew and Carolyn divorced in 2001. At that time, both were living in Washington and the parenting plan provided for the two children to "reside with both parents on an equal basis." Clerk's Papers (CP) at 6. Since that time, Matthew has served in Iraq, returned to the United States as a disabled veteran, and lives in Maine.
We use the parties' first names for ease of reading, intending no disrespect.
On September 6, 2007, Matthew filed a petition to modify the parenting plan, seeking to modify the residential schedule because he no longer lives in Washington. On May 15, 2008, the superior court entered an agreed new final parenting plan, making Carolyn the primary residential parent and giving Matthew alternating Thanksgiving holiday time and up to 3 weeks with their two children during the summer (totaling five weeks per year). On June 12, 2008, Matthew moved to modify his support obligation, asking Carolyn to pay him a $500 per month transfer payment beginning October 1, 2007, and pay his attorney fees under RCW 26.09.140. He based his motion on what he deemed "the gross disparity in wealth and income." CP at 30.
A superior court commissioner found that Matthew's monthly net income was $3,234.36 and Carolyn's was $2,749.37. It ordered Matthew to make a transfer payment to Carolyn of $803.38 per month. It denied Matthew's request for a deviation. Matthew then filed a motion to revise, renewing his request based on disparate resources and asking for Carolyn to make monthly $500 transfer payments to him. He described the disparity in income from the children's perspective as "faced with a situation where they live a lavish lifestyle while in their mother's care but are subjected to relative poverty when living with their father." CP at 97. On September 5, 2008, the superior court denied Matthew's motion to revise. Matthew appeals.
Analysis
I. Transfer Payment
Relying on this court's decision in In re Marriage of Casey, 88 Wn. App. 662, Matthew argues that the transfer payment must go to the parent with the lower income and that since Carolyn has a wealthy husband, a steady income, and few expenses, she should pay him $500 per month so the children are not "subjected to relative poverty when living with their father." Appellant's Br. at 5.
In Casey, the trial court awarded child custody to the husband yet ordered him to pay child support, transportation costs and extraordinary health care expenses, and $6,000 toward the mother's attorney fees. 88 Wn. App. at 664-65. The trial court relieved the mother of her support obligation because her learning disability restricted her earning capacity and a support obligation would reduce her income below the poverty level, causing her substantial hardship. 88 Wn. App. at 665. This court affirmed, finding that the huge disparity of income ($5,848 per month for the father compared to $500 per month for the mother) justified an order requiring the father to pay $1,500 to the mother for the children's six-week summer visitation with the mother. We said:
Matthew first argues that the trial court erred in not setting at least a minimal child support obligation for Bevie, the noncustodial parent, and in requiring him to pay $1,500 each summer to coincide with visitation. RCW 26.09.100(1) requires the trial court, after considering "all relevant factors," to order either or both parents to pay child support in an amount determined under RCW 26.19. The trial court calculates the total amount of child support, allocates the basic support obligation between the parents "based on each parent's share of the combined monthly net income," RCW 26.19.080(1), then orders the parent with the greater obligation to pay the other a "support transfer payment." RCW 26.19.011(9).
In re Marriage of Casey, 88 Wn. App. at 665 (emphasis added). RCW 26.19.011(9) defines "support transfer payment" as:
the amount of money the court orders one parent to pay to another parent or custodian for child support after determination of the standard calculation and deviations. If certain expenses or credits are expected to fluctuate and the order states a formula or percentage to determine the additional amount or credit on an ongoing basis, the term "support transfer payment" does not mean the additional amount or credit.
RCW 26.19.075 allows the trial court to deviate from the standard child support calculation. It provides, in part:
(1) Reasons for deviation from the standard calculation include but are not limited to the following:
(a) Sources of income and tax planning. The court may deviate from the standard calculation after consideration of the following:
. . . .
(vi) Possession of wealth, including but not limited to savings, investments, real estate holdings and business interests, vehicles, boats, pensions, bank accounts, insurance plans, or other assets[.]
Matthew argued below that Carolyn's true income was not her earnings because she married a wealthy man, worked in his business for the benefit of the community, paid him "rent" so she could claim that their financial matters were wholly separate and in order to facilitate an argument against him regarding child support, and essentially has her income to spend as she wishes without significant deductions. CP at 99. On the other hand, he describes his own financial situation as a subsistence-level disabled veteran and that requiring him to make a transfer payment further diminishes his limited ability to provide for his children.
Carolyn responds that she worked at the funeral home for her now-husband before their marriage, that her salary reflects industry levels, that she and her husband keep their finances separate, and that she has monthly expenses of $4,446. Further, she notes that the home she lives in is her husband's separate property. While acknowledging that her husband earns $54,000 per year and has income from investments of $165,560, she notes that he also has extraordinary expenses, paying his former wife $4,898 per month to buy out her share of the funeral home, $3,831 per month in back taxes on a $500,000 debt, approximately $1,200 per month in child support, and colleges expenses for his children. She argues that Matthew owns his own home (with $200,000 in equity), has proceeds from selling the family home, and over $20,000 in IRA accounts as well as other financial assets. Finally, she argues that Matthew has failed to disclose many of his assets, including multiple vehicles and motorcycles and income from his motorcycle repair business.
In its findings of fact, the court commissioner used both parties' wage income as the basis for calculating child support. Doing so, the commissioner concluded that Matthew had 54 percent of the income and Carolyn 46 percent. Matthew does not assign error to these findings, which the trial court noted when it stated:
Well, I think there is a number of very interesting issues with respect to the actual income of the parties, specifically Mom and all that. I would agree with counsel that that wasn't part of the motion to revise.
The question presented to the Court on the motion to revise is who is supposed to basically make the transfer payment and receive the transfer payment when the parent with whom the children primarily reside may have greater assets or income available to them. I don't think that's the factual situation in this case, quite frankly.
The law in this state, as I understand it, is the parent with whom the child resides the majority of the time is the obligee and the parent with whom the child does not reside the majority of the time is the obligor, and Division II can disagree with me and decide this is the case to upset that balance, and I'm not going to change that.
I believe Mr. Young, albeit by only about $500, does have greater income on the child support income — on the worksheet that was signed by the commissioner than the mother of these children, so I'm going to deny the motion to revise.
Report of Proceedings (RP) (Sept. 5, 2008) at 21-22 (emphasis added).
Strictly speaking, Marriage of Casey has no bearing on this case if we rely solely on the income figures from the child support worksheets because Matthew has greater income than Carolyn. Further, Matthew does not claim that either the commissioner or the superior court erred in deriving these income figures. For purposes of appeal, we assume these figures are correct. The real question before us is whether the superior court manifestly abused its discretion in denying Matthew's request for a deviation. In re Marriage of Griffin, 114 Wn.2d 772, 791 P.2d 519 (1990).
A court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on untenable grounds if the factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard.
In re Marriage of Littlefield, 133 Wn.2d 39, 47, 940 P.2d 136 (1997).
Matthew fails to show that the decision denying deviation was manifestly unreasonable. While Carolyn's living arrangements may appear more extravagant than Matthew's, that is mostly attributable to Carolyn's husband's separate property. Further, Carolyn's husband appears to have considerable debts and Carolyn's income primarily supports her children. Further, there is evidence in the record that Matthew did not disclose all his financial resources. Under these circumstances, the trial court acted reasonably, based the child support on the parties' verifiable income, and denied Matthew's request for a deviation.
Matthew's strained interpretation of our decision in Marriage of Casey and attempt to paint himself as financially comparable to the mother there is incredulous based on the record before us. See In re Marriage of Holmes, 128 Wn. App. 727, 737-39, 117 P.3d 370 (2005) (disagreeing with Casey because RCW 26.19.011(9) does not direct which parent is to make the support transfer payment and relying on historical presumption that non-custodial parent would make support transfer payment); State ex rel. M.M.G. v. Graham, 123 Wn. App. 931, 939, 99 P.3d 1248 (2004) ("[T]he obligor parent is the one with whom the children do not reside a majority of the time ant that parent makes a transfer payment to the parent with whom the children primarily reside."). The record supports the trial court's decision to deny a deviation and reject Matthew's request for a transfer payment.
II. Lack of Findings Regarding Deviation
RCW 26.19.075 provides:
(3) The 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. The court shall not consider reasons for deviation until the court determines the standard calculation for each parent.
Matthew complains that neither the commissioner nor the trial court made findings to support the decision to deny his requested deviation from the standard support calculation. He argues that in face of the undisputed evidence showing wealth disparity, he is, at least, entitled to findings supporting a decision denying his motion.
Orally, the commissioner denied Carolyn's request to impute $2,610 in monthly income to Matthew for his unreported motorcycle repair business and because he has the ability to work, explaining:
I'm not imputing income to him, but the transfer payment should be based on that and the transfer payment should be paid to mom. I think the primary responsibility for these children rests with mom and dad and not with the new stepfather.
I think there are sufficient funds in both households that I don't need to get into this complicated issue of deviation and I don't think funds should be sent to dad.
RP (July 17, 2008) at 17. The commissioner's child support order reflects this decision. He made findings on each parent's monthly net income and Matthew's obligation for each child. The commissioner also noted: "The deviation sought by the obligor was denied because no good reason exists to justify deviation. See oral decision of Commissioner Johnson for further explanation." CP at 83.
The record is adequate for review and remand is unnecessary. In re Parentage of J.M.K., 155 Wn.2d 374, 395, 119 P.3d 840 (2005) (superior court's failure to enterer findings of fact and conclusions of law on revision does not constitute reversible error or preclude appellate review); In re Dependency of B.S.S., 56 Wn. App. 169, 171, 782 P.2d 1100 (1989) (denial of revision constitutes an adoption of the commissioner's decision and superior court is not required to enter separate findings and conclusions).
III. Attorney Fees and Costs
Both parties request fees on appeal. Matthew argues based on RCW 26.09.140 because of Carolyn's greater financial resources. Carolyn argues based on Matthew raising a frivolous appeal, citing Olson v. City of Bellevue, 93 Wn. App. 154, 165, 968 P.2d 894 (1998). We deny both requests. Each party will be responsible for his/her own fees and expenses.
We affirm the superior court and deny both parties' request for attorney fees.
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, J. and LAU, J., concur