Opinion
No. 30353-1-II.
Filed: March 16, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 98-5-01438-1. Judgment or order under review. Date filed: 04/11/2003. Judge signing: Hon. Frederick Fleming.
Counsel for Appellant(s), Gary Alan Preble, Attorney at Law, 2120 State Ave NE, Olympia, WA 98506-6514.
Counsel for Respondent(s), Jeffrey Robert Pollock, Law Office of Jeffrey R Pollock, 711 Court a Ste 114, Tacoma, WA 98402.
Stephanie F. Carberry appeals an award of back child support arguing (1) the court commissioner incorrectly determined the amount of the award and (2) the commissioner erred by not awarding prejudgment interest on the back child support award. We find the commissioner's findings insufficient to support the back child support award. Thus, we remand for recalculation of the award but we affirm the commissioner's decision not to award prejudgment interest.
Facts
Sara Nicole Carberry Stotts was born on April 22, 1993, from a relationship between Stephanie F. Carberry and Kenneth P. Stotts. Stotts petitioned the Pierce County Superior Court for a formal determination of Sara's parentage. When the court entered its order determining Stotts to be Sara's father, it also issued a final order of child support. The final order set Stotts's support obligation at $345.88 per month.
In April 2002, Carberry filed a "Motion and Declaration for Order and Judgment re Back Child Support." Clerk's Papers (CP) at 1. Carberry sought the entrance of a judgment in the amount of $58,425.68 for back child support allegedly owed by Stotts between April 22, 1993 and December 31, 1999, together with accrued interest in the amount of $30,289.62, for a total judgment of $88,715.30. Due to some errors in calculation made by Carberry, the amount of back support was later reduced to $16,082.82.
A court commissioner heard oral argument on the issue of child support on October 29, 2002. In November, the commissioner filed his opinion letter with the court. The commissioner found that Stotts owed back child support in the amount of $9,054.20 for the period of December 1995 through June 1999. The commissioner also decided that under the circumstances of the case, it would be inequitable to assess any prejudgment interest against Stotts. But, his letter did not cite the circumstances he considered nor show his calculations for the child support award.
In January 2003, prior to the presentation hearing on the order on back support, Carberry wrote a letter to the commissioner. In the letter, Carberry reiterated her claimed amount of principal back child support as $9,363.70 and she stated she was "unable to determine how the judgment amount was determined" by the commissioner. CP at 256. The letter also addressed the issue of prejudgment interest, citing the case of Dautel v. Heritage Home Ctr., Inc., 89 Wn. App. 148, 153-54, 948 P.2d 397 (1997), review denied, 135 Wn.2d 1003 (1998), as support.
The commissioner presided over the presentation hearing on March 10, 2003. The hearing resulted in the entry of the Order of Back Child Support and Judgment. The commissioner ordered principal judgment for back child support in the amount of $9,054.20, making no finding as to how he calculated the amount and declining to order prejudgment interest.
Both parties filed a Motion to Revise on March 20. The superior court entered an Order on Parties' Motions for Revision on April 11, denying both motions.
I. No Support for Calculations
We review an award of child support under an abuse of discretion standard. In re Marriage of Wayt, 63 Wn. App. 510, 513, 820 P.2d 519 (1991). We will overturn an award of child support only when the party challenging the award demonstrates that the trial court's decision is manifestly unreasonable, based on untenable grounds, or granted for untenable reasons. In re Marriage of Stenshoel, 72 Wn. App. 800, 803, 866 P.2d 635 (1993). We must therefore determine whether the trial court made an error of law and whether the findings of fact are supported by substantial evidence. In re Marriage of Stern, 68 Wn. App. 922, 929, 846 P.2d 1387 (1993). Substantial evidence is "evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise." Fred Hutchinson Cancer Research Ctr. v. Holman, 107 Wn.2d 693, 712, 732 P.2d 974 (1987).
Carberry argues the commissioner erred when determining the amount of back support owed. We agree.
The record contains no evidence of the commissioner's decision making process in determining the award of back support. The order of back child support and judgment signed by the commissioner has no notations of how he calculated the back child support amount. The commissioner crossed through the calculations made by Carberry, writing a note to see Finding of Fact (FOF) 3.11. Turning to FOF 3.11, the standard calculation section, reveals the following language: "See Worksheet line 15 for 1995-1999, set forth in 3.5 above, as calculated by the commissioner as 9,054.20." CP at 311. Besides the above language, there is no other information in the record to show how the commissioner reached his decision. Nor is there any mention in the record that the commissioner chose to deviate from the standard Washington State Child Support Schedules. Both parties provided tax returns from 1995 through 1999 to the court for use in determining child support. Because substantial evidence does not exist to support the commissioner's findings of fact, we reverse the order and remand for proper calculation of the back support owed.
II. Prejudgment Interest
Carberry asserts the commissioner erred by failing to award prejudgment interest on the award of back child support. We disagree.
Historically, prejudgment interest is awarded as a matter of right when a claim is liquidated. Colonial Imps. v. Carlton N.W., Inc., 83 Wn. App. 229, 245, 921 P.2d 575 (1996). A claim is liquidated if the evidence furnishes data which allows for computation with exactness without relying on opinion or discretion. King County v. Puget Sound Power Light Co., 70 Wn. App. 58, 61, 852 P.2d 313, review denied, 122 Wn.2d 1017 (1993). Where the factfinder must exercise discretion in order to determine the amount of damages, the claim is unliquidated. Aker Verdal A/S v. Neil F. Lampson, Inc., 65 Wn. App. 177, 191, 828 P.2d 610 (1992). No authority exists to award prejudgment interest in this type of case.
The record contains the tax returns and Washington State Child Support Schedules for the years 1995-1999. Carberry was able to take this information and compute the amount of back support she claimed.
A court must award full statutory interest on a judgment for overdue child support. In re Marriage of Glass, 67 Wn. App. 378, 389, 835 P.2d 1054 (1992). No case or statutory law requires prejudgment interest for back support which has not been previously ordered. Nor does Carberry cite to analogous authority to bolster her argument. The public policy for mandating interest in this case is not as strong here as in the case of past due child support, where the obligor parent fails to make ordered payments and each installment of unpaid child support becomes a separate judgment. See Roberts v. Roberts, 69 Wn.2d 863, 866, 420 P.2d 864 (1966). Such was the obligation that existed in the cases cited by Carberry. These cases are not on point with the case at bar. It was not until Stotts sought a determination of Sara's parentage that he became aware he owed child support in any certain amount. Prior to this, no court order existed which ordered Stotts to pay child support. Thus, the claimed child support was not a liquidated amount, and the commissioner used discretion in setting the amount of child support.
III. Costs
Stotts requests costs in accordance with RAP 14.2. But this court will not award costs where there is no substantially prevailing party. RAP 14.2. Sardam v. Morford, 51 Wn. App. 908, 911, 756 P.2d 174 (1988) (when both parties prevail on major issues, there may be no substantially prevailing party). Thus, we deny Stott's request for costs.
We reverse and remand for recalculation of the back child support award. We affirm the decision not to award prejudgment interest.
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, P.J. and ARMSTRONG, J., concur.