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In re Wanta

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1045 (Wash. Ct. App. 2007)

Opinion

No. 58157-1-I.

March 19, 2007.

Appeal from judgments of the Superior Court for King County, No. 99-3-03457-4, Mary Yu, J., and David G. Kontos, J. Pro Tem., entered February 7, March 7, and April 21, 2006.

Counsel for Appellant(s), Kenneth Wendell Masters, Wiggins Masters PLLC, Bainbridge Island, WA, 98110-1811.

David Scott Law, Skellenger Bender PS, Seattle, WA, 98101-2630.

Counsel for Respondent(s), Neal Tully Feinerman, Attorney at Law, Bellevue, WA, 98004-5875.

Catherine Wright Smith, Edwards Sieh Smith Goodfriend PS, Seattle, WA, 98101-2988.


Remanded by unpublished per curiam opinion.


Bruce Wanta challenges the trial court's order modifying child support. He contends the findings do not justify the court's refusal to deviate below the support schedule amount because of the significant time his children reside with him and seeks reversal with the direction to grant him a specific credit. We agree with Wanta that the findings are insufficient and accordingly remand. But the evidence does not necessarily require the trial court to grant him his requested deviation. We accordingly remand for reconsideration and entry of complete findings, without directing the trial court to reach a particular result.

FACTS

Wanta and his former wife Susan Wilson dissolved their 14 year marriage in 1999. The parties agreed their two children would reside with each parent approximately 50 per cent of the time. Wanta, as owner of his own company, then earned a net monthly income of approximately $10,400, slightly more than twice Wilson's salary as an engineer. The parties agreed on a support transfer payment from Wanta to Wilson of $650 per month. To reach this amount, the parties first extrapolated a total support obligation of $3,151 because their total income exceeded $7,000 per month, then reduced the obligation based on a residential credit to Wanta for the time the children spent with him, and then agreed to an upward deviation to meet the children's needs.

In a modification proceeding in 2001, after the parties' incomes had increased, the trial court again granted Wanta a residential credit after extrapolating above the support schedule, with the result that the transfer payment slightly decreased because Wanta's income had increased less than Wilson's. Soon after that, the payment automatically increased as one of the children reached a new age bracket.

In 2005, Wilson sought a new modification, alleging her net monthly income had decreased from its 2001 level to less than $6,000 per month, while Wanta's monthly income had substantially increased to more than $25,000. Wilson asked the trial court to extrapolate beyond the range provided in the support schedule and to decline to employ a deviation based on a residential credit, thus seeking a monthly transfer payment of approximately $2,200. Wanta contended his income had not increased as Wilson alleged and asked the court to continue to grant him a residential credit while no longer extrapolating beyond the schedule amount. He sought a resulting decrease in his transfer payment to less than $340 per month.

The commissioner hearing the case found Wilson's expert financial witness more credible than Wanta's and ruled that a substantial change in circumstances warranted a change in support. The commissioner also rejected Wanta's claim that he was entitled to continue receiving a residential credit, but declined Wilson's request to extrapolate upward beyond the schedule. The result was a monthly transfer payment of $1,511.71. The court denied the parties' motions to reconsider. The parties filed cross motions for revision, but then withdrew the motions by agreement. Wanta now appeals.

DECISION

We review a trial court's decision setting child support for abuse of discretion. In re Marriage of Crosetto, 82 Wn. App. 545, 560, 918 P.2d 954 (1996). The particular decision to deviate from a standard calculation, including a deviation based on residential time, is likewise discretionary. In re Marriage of Rusch, 124 Wn. App. 226, 236, 98 P.3d 1216 (2004), overruled in part on other grounds by In re Marriage of McCausland, No. 77890-6 (Wash. Feb. 1, 2007). An abuse of discretion occurs when a judge exercises his or her discretion on a ground, or to an extent, that is clearly untenable or manifestly unreasonable. Curran v. Curran, 26 Wn. App. 108, 110, 611 P.2d 1350 (1980). When the trial court's factual findings are unchallenged, we treat them as verities on appeal. In re Marriage of Knight, 75 Wn. App. 721, 732, 880 P.2d 71 (1994), review denied, 126 Wn.2d 1011 (1995).

Parental child support obligations are generally determined by applying the uniform child support schedule in RCW 26.19.020 to the combined monthly net income of both parents to determine the presumptive support level. RCW 26.19.035(1). The economic table contained in RCW 26.19.020, however, provides the standard calculation only up to a combined monthly net income of $7,000. When the combined monthly net income exceeds $7,000, the court may (1) set the basic child support obligation at an advisory amount established for incomes between $5,000 and $7,000, or (2) exceed the highest advisory amount upon written findings of fact. RCW 26.19.020, .065(3). The advisory amount of support set by the schedule may also be exceeded or reduced by deviation. RCW 26.19.075.

One statutory basis for such a deviation is the children's residential schedule, addressed in RCW 26.19.075(d):

The court may deviate from the standard calculation if the child spends a significant amount of time with the parent who is obligated to make a support transfer payment. The court may not deviate on that basis if the deviation will result in insufficient funds in the household receiving the support to meet the basic needs of the child or if the child is receiving temporary assistance for needy families. When determining the amount of the deviation, the court shall consider evidence concerning the increased expenses to a parent making support transfer payments resulting from the significant amount of time spent with that parent and shall consider the decreased expenses, if any, to the party receiving the support resulting from the significant amount of time the child spends with the parent making the support transfer payment.

Wanta contends that the trial court abused its discretion by failing to enter findings expressly accepting or rejecting Wanta's proferred evidence that the residential arrangements resulted in substantially increased costs to him and a substantial financial benefit to Wilson. Absent such findings, Wanta maintains, the court violated its statutory mandate under RCW 26.19.075(d) to consider those factors in determining whether to grant a deviation. He therefore seeks a remand with direction to the trial court to reduce his support obligation by means of his requested residential credit.

While Wanta devotes a substantial amount of his briefing to disparaging the trial court's findings of his increased income, he acknowledges in his reply that he has not challenged that credibility-based factual finding, and it therefore is a verity.

As Wilson notes, however, the plain language of RCW 26.19.075(d) requires consideration of additional expenses to the obligated parent and additional savings to the parent receiving support in determining the amount of a deviation based on residential time, not in deciding whether to deviate in the first place. Though it will often be advisable for the trial court to consider these factors in making the initial determination whether to deviate from the schedule amount, the plain language of the statute does not require it in every case. See In re Marriage of McCausland, No. 77890-6, slip op. at 8 (Wash. Feb. 1, 2007) ("If the text is clear and unambiguous on its face, we do not resort to statutory construction principles, such as legislative history, `even if we believe the legislature intended something else but did not adequately express it.'") (quoting Am. Cont'l Ins. Co. v. Steen, 151 Wn.2d 512, 518, 91 P.3d 864 (2004)). Contrary to Wanta's contention, this plain language reading of the statute does not authorize trial courts to grant or deny a deviation on a whim. Rather, the court's obligation under the support statutes is to enter findings pursuant to RCW 26.19.035(2), which requires that the court state its "reasons for denial of a party's request for deviation from the standard calculation," which the court did here.

We note that it was not until Wanta's motion for reconsideration, after the trial court entered its findings, that Wanta specifically argued the factors of his extra expense and Wilson's savings because of the split residential time. During the trial, which included many issues not before us, Wanta's discussion of a deviation for a residential credit was very limited. Because Wanta's claim of reduced expenses to Wilson and increased expenses to him was his only argument on reconsideration, it appears the trial court did consider and implicitly reject those arguments by denying reconsideration.

We nonetheless conclude the trial court's findings are inadequate to support the result it reached. In Marriage of McCausland our Supreme Court recently held that cursory findings are insufficient to justify setting a support amount above the schedule for families whose incomes exceed $7,000 per month under RCW 26.19.065(3). We find no justification for any different rule for findings regarding a requested deviation under RCW 26.19.075(d). The trial court's only finding specifically addressing Wanta's request for a residential credit was that "the father's household will not be damaged if a downward deviation for a residential credit is not ordered." While this is a relevant consideration, by focusing only on the father's financial situation, the findings fall short of providing a sufficient basis to support the trial court's exercise of discretion.

McCausland held that trial court findings must evidence consideration of the core concerns of the support statute that children receive "support adequate to meet their basic needs and additional support `commensurate with the parents' income, resources, and standard of living.'" McCausland, slip op. at 14 (quoting RCW 26.19.001). Accordingly, the court required that in determining whether to exceed the schedule amount the trial court's findings must at a minimum address, "(1) the parents' standard of living, and (2) the children's special medical, educational, or financial needs, when entering its written findings of fact." McCausland, slip op. at 15 (citing In re Marriage of Daubert, 124 Wn. App. 483, 495-96, 99 P.3d 401 (2004), overruled in part on other grounds by In re Marriage of McCausland, No. 77890-6 (Wash. Feb. 1, 2007); Rusch, 124 Wn. App. at 233).

We reject, however, Wanta's request that we direct the trial court to grant him his requested 50 percent credit on remand.

First, the plain language of RCW 26.19.075(d) provides that a trial court's decision to deviate from the schedule amount because children spend significant time living with the obligor parent is discretionary, not mandatory. Though it appears here that the residential schedule makes some amount of deviation appropriate unless the trial court articulates a tenable basis for denying it, the record does not leave us in a position to constrain the trial court's broad discretion in this regard at this time.

This is not to say a downward deviation is necessarily required just because the court previously ordered one. Though the parties initially agreed to a deviation based on a residential credit, the trial court is not bound by parties' agreements with regard to child support. Pippins v. Jankelson, 110 Wn.2d 475, 478, 754 P.2d 105 (1988). Moreover, the previous decisions granting a deviation came in orders extrapolating above the schedule amount, which the law no longer allows, and were based on calculations reflecting Wanta's earlier, substantially lower income level. We also note that under RCW 26.19.075(1)(a)(ii), because Wanta is seeking a downward deviation, the trial court is entitled to consider the additional annual income of approximately $104,000 brought into Wanta's household by his new wife.

Although we note that on remand, the trial court should expressly address Wanta's claims of increased expenses and Wilson's savings resulting from the residential schedule, we do not imply that the court should either accept or reject his arguments in this regard. Similarly, we do not imply that the court should either accept or reject Wilson's arguments that an increasing disparity in the standard of living between the two households justifies an increase in support or complete denial of a downward deviation. Under McCausland, to exercise its discretion properly, the trial court must articulate a rational basis for its decision that reflects the support statute's core considerations.

Second, even if some deviation because of residential time is in order, the amount of the reduction Wanta has requested may or may not be appropriate. Just as, under McCausland, a mechanical extrapolation above the schedule amount cannot be substituted for express consideration of the purposes of the support statute, a mechanical computation of the amount of time spent with each parent does not necessarily mean a mathematically proportionate decrease in support is required. Here, even if a downward deviation is necessary to fulfill the purposes of the support statute, the extent of that deviation still represents a factual dispute for the trial court to resolve.

In McCausland's companion case, State v. Graham, No. 77858-2, slip op. at 15 (Wash. Feb. 1, 2007), the Supreme Court similarly rejected extension of the mechanical rule of In re Arvey, 77 Wn. App. 817, 894 P.2d 1346 (1995), dealing with split custody circumstances, to circumstances like the present one, observing that "[b]ecause the statute explicitly gives the trial court discretion to deviate from the basic child support obligation based on the facts of a particular case, a specific formula is neither necessary nor statutorily required to ensure the parents' child support obligation is properly allocated."

Third, we reject Wanta's contention that because the trial court declined to extrapolate upwards in calculating the schedule amount, the court therefore should be foreclosed from considering on remand whether the totality of the circumstances justifies exceeding the advisory guidelines under RCW 26.19.020 and .065(3) before applying any deviation based on residential time. The trial court's conclusory statement that upward deviation was not necessary must be viewed in the context of the court's conclusion that a downward deviation for residential credit also was not appropriate. Moreover, McCausland has now established that no possible findings can support extrapolation, so we regard the lack of a finding justifying extrapolation as legally insignificant in any event.

We remand to the trial court for entry of adequate findings and reconsideration in light of those findings. We deny Wilson's request for attorney fees for this appeal.

Given our denial of Wilson's request for fees on appeal, it is not necessary for us to resolve the parties' motions and objections concerning the financial affidavit Wilson filed in this court.


Summaries of

In re Wanta

The Court of Appeals of Washington, Division One
Mar 19, 2007
137 Wn. App. 1045 (Wash. Ct. App. 2007)
Case details for

In re Wanta

Case Details

Full title:In the Matter of the Marriage of BRUCE M. WANTA, Appellant, and SUSAN LYN…

Court:The Court of Appeals of Washington, Division One

Date published: Mar 19, 2007

Citations

137 Wn. App. 1045 (Wash. Ct. App. 2007)
137 Wash. App. 1045