Opinion
No. 60707-3-I.
December 29, 2008.
Appeal from a judgment of the Superior Court for King County, No. 99-3-03484-1, Douglass A. North, J., entered September 13, 2007.
Reversed by unpublished opinion per Leach, J., concurred in by Becker and Lau, JJ.
Christine Whalen appeals the trial court's order modifying child support. She argues that the court did not make findings, and the evidence would not support findings, necessary to support an increase in a downward deviation established in an earlier child support order. Alternatively, she argues that the court abused its discretion in granting this deviation. Andrew Sachs cross-appeals, assigning error to the court's finding regarding his share of the children's residential time and its decision to grant him residential credit for only half of his submitted expenses. We hold that the trial court abused its discretion because its factual basis for deviation is not supported by the evidence and its findings are not sufficient to justify the amount of the deviation. Therefore, we reverse.
Because of this disposition, we do not reach any of the remaining issues raised by the parties.
Background
Whalen and Sachs divorced on November 4, 1999. They had two children, ages six and three. The original child support order required Sachs to pay $766.17 per month to Whalen, the primary residential parent, and did not grant any residential credit to Sachs. Sachs later filed a request for residential credit, which was denied on June 30, 2000.
In 2004, Whalen petitioned to modify the parenting plan. While this modification action was pending, Sachs filed another request for residential credit. A commissioner granted this request on grounds that the children spent "a significant amount of time" with Sachs and decreased his transfer payment from $700 to $277 per month. On revision, the court reinstated the $700 amount and ruled that "[t]he father's request for a deviation for residential credit is reserved for trial."
The parties agreed to a modified parenting plan in March 2005. According to Whalen, the modified parenting plan slightly reduced the number of Sachs' overnights during the school year, but Sachs continued to have the children for six weeks during the summer. The parties also agreed on a new support order entered on March 7, 2005, which was amended on June 13, 2005. The June 13, 2005, order contained a $100 downward deviation, reducing Sachs' transfer obligation at that time from $750 to $650. The 2005 support order stated the following reasons for the deviation:
[T]he children spend a significant amount of time with the parent who is obligated to make a support transfer payment. The deviation does not result in insufficient funds in the receiving parent's household to meet the basic needs of the children. The children do not receive public assistance. The parties have agreed to this amount to avoid the expense and uncertainty of trial.
On March 20, 2007, Sachs filed a petition to modify the 2005 support order, alleging that "[t]he previous order was entered more than two . . . years ago and there has been a change in the income of the parties." He also explained:
The prior order contains only a small deviation for the father's residential time. The Father has 37% of the residential time with the children on an annual basis. Since entry of the prior order the father's expenses for the children during his residential time have averaged over $850.00 per month. This is in addition to the transfer payment of $717.00 per month.
To support his claim of increased expenses, Sachs produced over 50 pages of receipts accumulated since the 2005 support order for items such as restaurant and fast-food meals, recreational vehicle rentals, clothing, video games, DVDs, movie tickets, sports activities, and vacation room rentals. Based on these receipts, he requested a downward deviation "of at least $753 per month for [his] residential time." Sachs did not present any evidence that these expenses affected Whalen's household expenses.
On June 28, 2007, a commissioner denied Sachs' requested deviation. The commissioner reasoned, "What we've got [sic] are two people who are . . . doing pretty well for these kids. . . . [T]he bottom line is . . . there's no way to quantify this. So I'm going to leave it at the [sic] $100."
On revision, the trial court granted Sachs' request for a downward deviation on September 13, 2007. The court stated that a deviation was "appropriate" because Sachs had "approximately 1/3 of the residential time with the children and additional expenses related to that time." In determining the amount of the deviation, the court decided that although some of the expenses produced by Sachs were "incidental," Sachs was entitled to receive credit for half of the amount submitted, or $425 per month. The court made no findings as to which expenses were being credited. As the combined monthly income of Whalen and Sachs exceeded $7,000, the court set an advisory amount of support at $1,713. The $425 residential credit decreased Sachs' monthly obligation to $417.
Standard of Review
We review the trial court's decisions on child support modifications for abuse of discretion. Under the abuse of discretion standard, we "`cannot 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 Schumacher, 100 Wn. App. 208, 211, 997 P.2d 399 (2000).
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)).
Discussion
A. Deviation Based on Residential Schedule
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 establish the presumptive support level. The economic table contained in RCW 26.19.020 provides the presumptive support amount 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. The advisory amount of support set by the schedule may also be exceeded or reduced by deviation.
One statutory basis for deviation from the uniform schedule is the children's residential schedule. RCW 26.19.075(1)(d) provides:
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.
While a deviation under this provision is discretionary, our courts recognize that "deviation from the standard support obligation remains the exception to the rule and should be used only where it would be inequitable not to do so." Accordingly, a deviation generally should "be based upon circumstances not existing or contemplated at the time of the prior order."
In re Marriage of Burch, 81 Wn. App. 756, 760, 916 P.2d 443 (1996).
Burch, 81 Wn. App. at 761.
In situations where the court decides that a deviation is appropriate, it must provide the "`specific reasons for deviation' in written findings of fact and the evidence must support those findings." RCW 26.19.075(2) provides that "[u]nless specific reasons for deviation are set forth in the written findings of fact and are supported by the evidence, the court shall order each parent to pay the amount of support determined by using the standard calculation." In addition, RCW 26.19.035(2) states that "[a]n order for child support shall be supported by written findings of fact upon which the support determination is based and shall include reasons for any deviation from the standard calculation."
In re Marriage of Bell, 101 Wn. App. 366, 371-72, 4 P.3d 849 (2000) (quoting RCW 26.19.075(2)).
Whalen argues that the trial court abused its discretion when it increased Sachs' deviation because Sachs failed to "prove increased expenses in his home . . . [and] any savings in the mother's home that could justify a deviation." We note that the plain language of RCW 26.19.075(1)(d) requires the court to consider increased expenses to the non-primary parent and any savings to the primary parent in determining the amount of a deviation, not in deciding the propriety of a deviation.
Where the court decides that a deviation is appropriate, it must state its reasons for deviation, which the court did here. In the portion of the child support order titled "Reasons for Deviation from Standard Calculation," the court stated in preprinted language: "The child spends a significant amount of time with the parent who is obligated to make a support transfer payment." As the factual basis for this reason, the court determined that the "father has approximately 1/3 of the residential time with the children and additional expenses related to that time."
However, while the court states its reason for deviation, evidence in the record does not support the court's factual basis for this reason. As conceded by counsel for Sachs at oral argument, the receipts produced by Sachs only reflect expenses accumulated since the 2005 support order. Nothing in the record shows that Sachs experienced an increase in expenses following entry of the 2005 support order or that these expenses were not anticipated at that time. There simply is no evidence of Sachs' expenses before the 2005 support order or of any subsequent unanticipated expenses. Standing alone, documentation of the expenses incurred after entry of the 2005 support order cannot provide a sufficient factual basis to support deviation.
In addition, the findings in this case are inadequate to justify the amount of this deviation. The written findings consist of conclusory statements setting its amount at $425. The oral opinion also fails to provide an adequate explanation, as it states:
[A] lot of the expenses that Mr. Sachs is including are the kind of expenses that any parent who has a child for any period of time at all is going to have to spend. You're going to buy the incidental articles of clothing, the money you spend on recreation and so on.
So, what I would do is give him a credit for half of the total that he's come up with. I think he said it's about 850 some odd dollars a month is what his documented expenses. I'll give him half of that, so it comes out to be about 425 something per month as credit.
These comments do not indicate how the court determined which documented items were "incidental" — such as whether the items were unnecessary or duplicative — or how these "incidental" items resulted in a $425 residential credit.
In sum, because the court's factual basis for deviation is not supported by the evidence and its findings are not sufficient to justify the amount of the deviation, we reverse.
B. Attorney Fees
Both parties seek attorney fees on appeal. Whalen requests fees under RCW 26.09.140, which allows our courts to award fees after considering the parties' relative ability to pay and the merit of the issues raised on appeal. We decline to award attorney fees to Whalen since the parties' incomes are relatively equal and Whalen has failed to demonstrate Sachs' ability to pay. We also conclude that there is no basis for Sachs' request for attorney fees under RAP 18.9, which is inapplicable because Whalen's appeal is not frivolous.
Leslie, 90 Wn. App. at 807.
Conclusion
Although the court stated its reason for deviation was based on the residential schedule, the court's factual basis for deviation is not supported by evidence in the record. In addition, the court's findings are insufficient to justify the amount of the deviation. Therefore, we reverse.