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In re Pederson

The Court of Appeals of Washington, Division Three
Aug 9, 2007
140 Wn. App. 1006 (Wash. Ct. App. 2007)

Opinion

No. 24682-5-III.

August 9, 2007.

Appeal from a judgment of the Superior Court for Spokane County, No. 99-3-00702-4, Michael P. Price, J., entered October 20, 2005.


Reversed and remanded by unpublished opinion per Schultheis, A.C.J., concurred in by Brown, J., and Kato, J. Pro Tem.


Tod C. Rainey appeals the superior court's revision of a child support modification order. He contends that the superior court erred by imputing income to him upon its erroneous finding that he was voluntarily underemployed. We agree. We therefore reverse and remand for recalculation of his support obligation.

Mr. Rainey, through the State, sought modification of his child support obligation as he was required to do as a result of his participation in a King County contempt diversion program. The State sought a reduction of Mr. Rainey's monthly child support obligation due Carol Pederson to $50 per child based on proof of his income from his full-time job as a music teacher for a children's theater company. At a hearing before a court commissioner, Ms. Pederson asserted that Mr. Rainey was voluntarily underemployed. After hearing testimony from Mr. Rainey, the commissioner disagreed and ordered the requested modification. Ms. Pederson moved for revision of the court commissioner's order.

A superior court judge granted revision after hearing Mr. Rainey's testimony and considering the record, including the commissioner's findings of fact and conclusions of law. The superior court imputed net income to Mr. Rainey at $2,300 per month.

We review orders modifying child support for abuse of discretion and "'annot substitute [our] judgment for that of the trial court unless the trial court's decision rests on unreasonable or untenable grounds.'" In re Marriage of Dodd, 120 Wn. App. 638, 644, 86 P.3d 801 (2004) (quoting In re Marriage of Leslie, 90 Wn. App. 796, 802-03, 954 P.2d 330 (1998)). A court also necessarily abuses its discretion if its decision is based on an erroneous view of the law. Wash. State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 339, 858 P.2d 1054 (1993).

Mr. Rainey urges this court to adopt the commissioner's ruling and argues that the superior court should have done so. When reviewing a commissioner's ruling on revision, the superior court examines all of the evidence and issues presented to the commissioner. RCW 2.24.050; Wash. Const. art. IV, § 23. It then applies a de novo review standard to the commissioner's findings of fact and conclusions of law. State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004). After the superior court rules on revision, any further appeal is from the superior court's decision, not the commissioner's ruling. Id.

The superior court in this case took additional evidence on the revision issue. Specifically, it examined Mr. Rainey under oath. This is error. In re Marriage of Moody, 137 Wn.2d 979, 992, 976 P.2d 1240 (1999); In re Marriage of Balcom, 101 Wn. App. 56, 59-60, 1 P.3d 1174 (2000). The superior court's review is limited to the evidence in the record. RCW 2.24.050.

The superior court ultimately concluded that Mr. Rainey was voluntarily underemployed, yet it also determined that he was gainfully employed in a full-time position and not purposely underemployed to reduce his child support payment. If a parent is "gainfully employed on a full-time basis" the court may not impute income to that parent "unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent's child support obligation." RCW 26.19.071(6). Given the court's finding that Mr. Rainey was gainfully employed full-time and no finding that he was purposely underemployed to reduce his child support obligation, there is no lawful basis to impute income to him. In re Marriage of Peterson, 80 Wn. App. 148, 155, 906 P.2d 1009 (1995); In re Marriage of Didier, 134 Wn. App. 490, 496-97, 140 P.3d 607 (2006), review denied, 160 Wn.2d 1012 (2007).

Ms. Pederson asserts that the trial court's findings that Mr. Rainey was gainfully employed full-time and that he was not purposely underemployed to reduce his child support obligation were typographical errors. Instead, she claims, the trial court meant to state just the opposite — that Mr. Rainey was not gainfully employed, and intentionally so, in order to reduce his child support obligation. The record does not support her claim.

After the entry of the findings of fact and conclusions of law on revision, counsel for Ms. Pederson forwarded a letter to the revision judge's chambers about the alleged typographical errors. The State objected to Ms. Pederson's ex parte communication. But Ms. Pederson did not pursue the claimed typographical errors below. Significantly, she did not bring a motion to correct the claimed errors even though Mr. Rainey had not yet appealed. See CR 60(a) (providing for relief from judgment or order for clerical mistakes before review).

Ms. Pederson also asserts that the trial court's findings are inconsistent with its oral remarks in which it commented that Mr. Rainey was "acting in bad faith." Report of Proceedings at 41. A trial court's oral opinion is only a verbal expression of its informal opinion at the time, and "'ay be altered, modified, or completely abandoned.'" In re Dependency of C.M., 118 Wn. App. 643, 650, 78 P.3d 191 (2003) (quoting State v. Hescock, 98 Wn. App. 600, 605-06, 989 P.2d 1251 (1999)). Further, as a practical matter, it is not clear from the record what act the revision court was referencing when making the remark. It is clear that the superior court did not say that Mr. Rainey was making employment decisions as a way to reduce his child support obligation.

We reverse and remand for calculation of child support based on Mr. Rainey's income in the record, rather than on imputed income.

A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.

Brown, J., Kato and J. Pro Tem. CONCUR.


Summaries of

In re Pederson

The Court of Appeals of Washington, Division Three
Aug 9, 2007
140 Wn. App. 1006 (Wash. Ct. App. 2007)
Case details for

In re Pederson

Case Details

Full title:In the Matter of the Marriage of CAROL ELIZABETH PEDERSON, Respondent, and…

Court:The Court of Appeals of Washington, Division Three

Date published: Aug 9, 2007

Citations

140 Wn. App. 1006 (Wash. Ct. App. 2007)
140 Wash. App. 1006