Opinion
No. 60583-6-I.
May 5, 2008.
Appeal from a judgment of the Superior Court for King County, No. 97-3-08052-9, Joan B. Allison, J., entered June 28, 2007.
Affirmed by unpublished per curiam opinion.
In determining whether a parent is voluntarily unemployed and imputing income for purposes of setting child support, the trial court considers all relevant factors, including the parent's work history, education, health and age, and the level of income that the parent is capable of earning. The record in this case establishes that the trial court applied the proper legal standards to the evidence before it. Accordingly, the trial court did not abuse its discretion in denying Susan Rubstello's motion for an adjustment of child support. Because Rubstello's remaining contentions are without merit, we affirm.
FACTS
Susan Rubstello and Brian Smith dissolved their marriage in February 1999; the couple have two children. On August 24, 2006, the trial court entered an order adjusting child support, based in part on a hearing that was held in November 2005. The court found that Rubstello was voluntarily unemployed and imputed a monthly income of $6,890.66. The order provided that child support was subject to adjustment every second year, beginning on January 1, 2007, or when either parent became employed, and that either parent could move for a court determination of the transfer amount.
The 2006 child support order expressly noted that it was subject to further adjustment as part of Rubstello's separate petition for modification of the parenting plan, which was scheduled for a later trial. In December 2006, the trial court denied Rubstello's petition for modification and declined to address her arguments regarding an adjustment of the transfer payment. Rubstello did not seek further review of the child support determinations in either the August 2006 or the December 2006 decisions.
On April 16, 2007, Rubstello moved for an adjustment of her child support obligation. Among other grounds, Rubstello maintained that the use of her pre-2004 earnings as the basis for imputed income was unfair because she has no current ability to earn a comparable wage and is hampered in current job searches by the lack of a college degree.
The trial court rejected this argument, noting that Rubstello had not submitted any evidence of income and observing that it was therefore bound by "res judicata" to use the amount of imputed income calculated in 2006. The trial court denied Page 3 Rubstello's motion for reconsideration, noting that she had failed to meet her burden of "establishing a change of circumstances since the November 2005 hearing that would justify revisiting the issue of how much income should be imputed to her." Clerk's Papers at 146.
DECISION
Rubstello contends the trial court erred in determining that she was voluntarily unemployed and imputing income based on her pre-2004 employment. She argues that her two year job managing a shipyard was based on "unique and unrepeatable circumstances," and that the trial court should therefore have imputed income based on the median income of year-round full-time workers derived from the United States Bureau of Census, current population reports. Appellant's Br. at 11; see RCW 26.19.071(6). Rubstello further maintains that the trial court applied incorrect legal standards when it relied on res judicata and Rubstello's failure to establish "a substantial change of circumstances" to support her motion for adjustment.
We review the trial court's decision regarding adjustments of child support for an abuse of discretion. In re Marriage of Ayyad, 110 Wn. App. 462, 467, 38 P.3d 1033 (2002). RCW 26.19.071(6) directs the trial court to determine whether a parent is voluntarily unemployed or underemployed based upon that parent's "work history, education, health, and age, or any other relevant factors." Income is imputed at the level "at which the parent is capable and qualified." In re Marriage of Sacco, 114 Wn.2d 1, 4, 784 P.2d 1266 (1990). Absent information to the contrary, the trial court shall impute income "based on the median income of year-round full-time workers as derived from the United States bureau of census, current population reports." RCW 26.19.071(6).
Rubstello's petition for adjustment was based on paragraph 3.16 of the 2006 child support order, which specified that child support "shall be adjusted periodically . . . [e]very other year, beginning January 1, 2007, or when either parent becomes employed." Clerk's Papers at 109. RCW 26.09.170(9)(a) also authorizes the adjustment of child support decrees every 24 months "based upon changes in the income of the parents without a showing of substantially changed circumstances." An adjustment action is limited in scope and "simply conforms existing provisions of a child support order to the parties' current circumstances." In re Marriage of Scanlon, 109 Wn. App. 167, 173, 34 P.3d 877 (2001).
Rubstello contends the trial court erred as a matter of law when it failed to make a new determination of her income. See Marriage of Ayyad, 110 Wn. App. at 469 (generally, the court makes a "new determination of income" when ruling on a motion for adjustment). She relies on the trial court's statements that it was bound by res judicata to use the imputed income amount determined in the 2006 support order and that Rubstello failed to satisfy her burden "of establishing a change of circumstances since the November 2005 hearing that would justify revisiting the issue of how much income should be imputed to her." Clerk's Papers at 175. Rubstello is correct that she had no burden to establish a change in circumstances. But the trial court's statements must be viewed in context and in light of the evidence before the court.
Rubstello submitted declarations in which she stated that she lost her job at the Northlake Shipyard in December 2003, and has not worked since. She worked at the shipyard for five years, and during the final two years, she ran the shipyard while the owner was in Europe. When the owner returned, he took over her position. In 2004, Rubstello obtained a real estate license, but decided she did not have the financial resources to become successful. She had previously worked as a legal secretary, but had "lost a lot of the skills" required to resume that employment, and her lack of a college degree was a detriment to finding a preferred "management/executive" position. Appellant's Br. at 7. Rubstello stated that she unsuccessfully applied for several positions at law firms and businesses.
Rubstello maintains that it is unfair to impute income based on her shipyard job because that employment was based on "unique and unrepeatable circumstances." Appellant's Br. at 10. But Rubstello has not identified what those circumstances might be. Nor has Rubstello indicated what skills and experience qualified her for what she describes as a "well paying job running a local shipyard and an ancillary marine industry company" for two years. The trial court thus had no basis to assess her conclusory assertions that she has no current ability to earn a comparable amount and that there are no comparable positions available.
The trial court's reference to the doctrine of res judicata was incorrect, but the court's meaning is clear. The 2006 order contained a finding, which was evidence of Rubstello's earning capacity at that time. The court explained its reference to res judicata as follows: "In that mother has not produced any evidence that her current earning capacity is different than it was under the prior order." Clerk's Papers at 77.
Viewed in context, the record does not indicate the trial court applied an erroneous legal standard. Rather, the court considered the meager evidence before it, including the previous finding of earning capacity, and determined the same income should continue to be imputed. The record supports this determination, and the trial court did not did not abuse its discretion in denying Rubstello's motion to adjust child support.
Rubstello next contends the trial court erred in adjusting support effective January 1, 2007, as provided in paragraph 3.16 of the prior child support order, even though she did not file her motion for adjustment until April 16, 2007. She argues the provision is contrary to law and invalid in light of RCW 26.09.170(1), which authorizes support modification "[o]nly as to installments accruing subsequent to the petition for modification or motion for adjustment."
But Rubstello's reliance on In re Marriage of Kahle, 134 Wn. App. 155, 138 P.3d 1129 (2006), is misplaced. In Kahle, the court held that provisions requiring the automatic periodic adjustment of child support are not self-executing and are enforceable only by court order. Kahle, 134 Wn. App. at 161. Kahle provides no support for Rubstello's claim that paragraph 3.16 of the support order is invalid. Moreover, Rubstello's arguments also fail to address the exception in RCW 26.09.170(1)(a) for motions compelling an automatic adjustment clause and decisions addressing that exception. See Marriage of Ayyad, 110 Wn. App. at 471. Accordingly, Rubstello's challenge fails.
Rubstello next contends the child support order is manifestly unreasonable because it is based on imputed income at a level she clearly cannot meet. But for the reasons set forth above, the trial court did not abuse its discretion in setting child support.
Rubstello also challenges the trial court's determination of Smith's income and argues that the provisions of the child support order are unreasonable because they include no clear incentive for Smith to seek employment. But Rubstello fails to address the evidence and arguments presented to the trial court on these issues. Nor has she cited any relevant legal authority. Accordingly, we decline to address these claims. See In the Matter of the Marriage of Arvey, 77 Wn. App. 817, 819 n. 1, 894 P.2d 1346 (1995) (appellate court will generally decline to consider assignments of error unsupported by citation to authority or meaningful legal analysis).
Smith has requested an award of attorney fees under RCW 26.09.140 and submitted a financial declaration in support of the request. RCW 26.09.140 provides that upon "any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney's fees in addition to statutory costs." An award under this statute is discretionary. In re Marriage of Leslie, 90 Wn. App. 796, 805, 954 P.2d 330 (1998). In determining whether to make such an award, we consider the parties' needs and ability to pay and the arguable merits of the issues on appeal. See In re Marriage of Booth, 114 Wn.2d 772, 791 P.2d 519 (1990). Based on these considerations, we decline to award Smith fees on appeal.
Affirmed.