Opinion
68052-8-I
01-07-2013
In the Matter of the Marriage of MELISSA E. SADETTANH nka MELISSA E. COOLEY, Appellant, and ARMANI B. SADETTANH, Respondent.
UNPUBLISHED OPINION
Schindler, J.
Melissa E. Cooley challenges the court's finding that Armani B. Sadettanh was not in contempt of the child support order when he claimed the dependent child tax exemption in 2010. We affirm.
Formerly known as Melissa E. Sadettanh.
FACTS
On June 3, 2008, the court entered a decree of dissolution of the marriage of Melissa E. Cooley and Armani B. Sadettanh. The child support order for their seven-year-old child K.S. requires each parent to pay child support based on the "proportional share of income from the Child Support Schedule Worksheet." According to the child support order, Cooley is responsible for 40.9 percent of child support and Sadettanh is responsible for 59.1 percent, resulting in a transfer payment of $476.32 per month with one-half due on the 1st of each month and the other half on the 15th. Under the order, Cooley is entitled to claim the child as an exemption for income tax purposes in odd years, and Sadettanh "shall claim the child in even years so long as he is current in his child support obligation in that year."
The child support order provides that because Cooley applied "for full support enforcement, " Sadettanh shall make child support payments to the Washington State Department of Social and Health Services Division of Child Support (DCS). The order states, in pertinent part:
Enforcement and collection: The Division of Child Support (DCS) provides support enforcement services for this case because: a parent has signed the application for services from DCS on the last page of this support order. Support payments shall be made to: . . . Washington State Support Registry.
On August 24, 2011, Cooley filed a motion for an order to show cause why Sadettanh should not be held in contempt for violating the tax exemption provision of the child support order in 2008, 2009, and 2010. In support of her motion, Cooley submitted two DCS documents—a "Case Payment History" and "Debt Calculation" table. The DCS Debt Calculation table lists the amount of child support paid, the monthly debt, and the running balance for February 2010 to August 2011. The entry for the month of December 2010 showed a $128.24 balance. The January 2011 entry showed a balance of zero. The Case Payment History also shows that DCS received payments the employer withheld from Sadettanh's pay two to three times a month.
The Case Payment History shows DCS received a payment of $219.84 on December 6, and payments on December 17, January 3, and January 14.
Cooley argued that Sadettanh violated the child support order by claiming the tax exemption in 2009, resulting in an additional payment of $2,125.00 and interest of $403.75 (a total of $2,528.75). Cooley also argued that because Sadettanh was not current in his child support obligation in either 2008 or 2010, he violated the child support order by claiming the tax exemption in those years. Cooley asked the court to find Sadettanh in contempt and enter a judgment in her favor. In the alternative, Cooley requested the court award her the tax exemption for the next three years. The court ordered Sadettanh to appear and show cause why he should not be held in contempt.
Before the hearing, Sadettanh submitted a declaration and memorandum in response to the motion for contempt. Sadettanh concedes he should not have claimed the tax exemption in 2009, but explains why he did so.
After our divorce, Melissa and I reconciled and began living together again. We became engaged to be married. We lived together the entire year of 2009. I paid the majority of our household expenses and I provided the majority of the support for our [child], and Melissa's two other children who lived with us, that year. I assumed that because we lived together for 2009, that it would be okay if I claimed our [child] for 2009.
Sadettanh denied Cooley's claim that he was not current on his child support obligation in 2008 and 2010. Sadettanh states that DCS collects child support from his employer, and he "understood that they collected enough money from my pay so that my payments would be kept current. At the end of 2010, I thought that I was current in my support obligation and I still believe that I was."
At the beginning of the hearing on the motion for contempt, Cooley withdrew her claim that Sadettanh violated the child support order in 2008. Cooley argued the commissioner should find Sadettanh in contempt for 2009 and 2010, and award her the value of the tax exemption or order the parties to amend their tax returns.
"[W]e're waiving that today. We don't think the Court should address 2008."
Sadettanh argued that claiming the tax deduction in 2009 was not done in bad faith and Cooley could claim the tax exemption in 2012. Pointing to the DCS records, Sadettanh's attorney also argued that "the father has been paying his support through the state support registry, " and the records show "that the account was paid in full sometime in January of 2011." His attorney also noted that the December payment made at the end of December would have "shown up as a credit for January of 2011."
The commissioner found Sadettanh violated the child support order by claiming the tax exemption in 2009 and ordered Sadettanh to pay Cooley $3,391.38 for the 2009 tax exemption, attorney fees, and interest. The order states: "Armani B. Sadettanh intentionally failed to comply with a lawful order of the court (Order of Child Support) dated on June 3, 2008 for the 2009 tax year." The order states that Sadettanh "can purge his contempt by paying the damages stated in this order."
The commissioner did not find Sadettanh in contempt for violating the terms of the child support order by claiming the tax exemption in 2008 and 2010 because he "may or may not have been behind for 2010 and was not behind for 2008." As to 2010, the commissioner ruled, in pertinent part:
I -- first of all, contempt is the strongest possible motion that could be brought. You know, it needs to be in proportion to the events that are occurring. As far as 2010 goes, first of all, the amount that the father may have been behind was very small in relation to the total support for that year, so I'm not sure that contempt would have been the right way to go to enforce.
And, secondly, there is some question as to whether or not he paid and was timely or he didn't pay and had an arrearage, because there is a delay from when payments are received to when they show up on the log for the Division of Child Support. So I am going to deny the request for a finding of contempt in regards to 2010. I'm not going to enter any relief in that -- in regards to the year 2010.
The father's on notice, however, after this hearing. He has the responsibility to assure that he is fully paid as of the end of the year, and the mother's going to be watching this closely. Now, he knows he can't just rely on the records of DCS. He needs to proactively be on top of this or he will not be entitled to the exception in future years.
Cooley filed a motion to revise the decision, arguing the commissioner erred by finding Sadettanh was not in contempt for violating the child support order by claiming the tax exemption in 2010, and not awarding her damages or attorney fees. The court denied the motion for revision.
ANALYSIS
Cooley appeals denial of the motion to revise and the commissioner's decision. Because the superior court denied Cooley's motion for revision, we review the commissioner's findings, conclusions, and order. In re Dependency of B.S.S., 56 Wn.App. 169, 170-71, 782 P.2d 1100 (1989) (where the superior court denies a motion to revise, the commissioner's findings, conclusions, and order remain unchanged).
Cooley makes several irrelevant arguments that focus on statements that the commissioner and the court made in the oral rulings. For example, Cooley argues that the court erred by describing any arrearage as "de minimis." A court's oral decision is "no more than a verbal expression of his informal opinion at that time" and has "no final or binding effect, unless formally incorporated into the findings, conclusions, and judgment." Ferree v. Doric Co., 62 Wn.2d 561, 566-67, 383 P.2d 900 (1963). See also Grieco v. Wilson, 144 Wn.App. 865, 872, 184 P.3d 668 (2008).
Cooley contends the court abused its discretion by refusing to find Sadettanh in contempt for violating the child support order by claiming the 2010 tax exemption.
We grant Sadettanh's motion to strike section 4.6 and pages 21-23 of section 5.2 of Cooley's brief that address the 2009 tax exemption. This court does not consider arguments not supported by an assignment of error. Escude v. King County Pub. Hosp. Dist. No. 2, 117 Wn.App. 183, 190-91 n.4, 69 P.3d 895 (2003). Further, pages 21-23 of section 5.2 lack citations to the record, RAP 10.3(a)(5), are not supported by any evidence in the record, and raise an argument for the first time on appeal. RAP 2.5(a).
Contempt is defined as intentional disobedience of a lawful court order. RCW 7.21.010(1)(b). "[A] finding that a violation of a previous court order was intentional is required for a finding of contempt." Holiday v. City of Moses Lake, 157 Wn.App. 347, 355, 236 P.3d 981 (2010), review denied, 170 Wn.2d 1023, 245 P.3d 774 (2011) (concluding court did not abuse its discretion in deciding not to find City in contempt even though City violated writ of prohibition). We review the commissioner's finding for abuse of discretion. In re Marriage of James, 79 Wn.App. 436, 439-40, 903 P.2d 470 (1995). A court abuses its discretion by basing its decision on untenable grounds or untenable reasons. James, 79 Wn.App. at 440. Unless there is an abuse of the court's exercise of its discretion, we will not disturb the court's finding on appeal. Schuster v. Schuster, 90 Wn.2d 626, 630, 585 P.2d 130 (1978).
"In determining whether the facts support a finding of contempt, " we strictly construe the order alleged to have been violated, and the facts must constitute a plain violation of the order. In re Marriage of Humphreys, 79 Wn.App. 596, 599, 903 P.2d 1012 (1995). Where there is substantial evidence to support the court's finding, we do not substitute our judgment for that of the trial court "even though we might have resolved a factual dispute differently." Korst v. McMahon, 136 Wn.App. 202, 206, 148 P.3d 1081 (2006). "Evidence is substantial if it exists in a sufficient quantum to persuade a fair-minded person of the truth of the declared premise." In re Marriage of Burrill, 113 Wn.App. 863, 868, 56 P.3d 993 (2002). The moving party bears the burden of establishing contempt by a preponderance of the evidence. James, 79 Wn.App. at 442.
Cooley argues the record shows that Sadettanh intentionally violated the child support order because he "willfully refused to make any effort to determine whether he was entitled to the 2010 tax exemption." The record does not support Cooley's argument.
(Emphasis in original.)
The record shows that because DCS is responsible for collecting the support directly from Sadettanh's employer, Sadettanh believed he was current on his child support obligation. Sadettanh testified, in pertinent part:
I understood that [DCS] collected enough money from my pay so that my payments would be kept current. . . . I believed, and I still believe, that I was current in my child support by the end of 2010 based upon my understanding of the DCS collection.
At Cooley's request, the court ordered DCS to collect child support. By statute, DCS provides support enforcement services where, as here, a support order contains language directing a responsible parent to make support payments to the Washington State Support Registry. RCW 26.23.045(1)(b). DCS is authorized to withhold wages where "a support order that contains a notice clearly stating that child support may be collected by withholding from earnings, wages, or benefits without further notice to the obligated parent." RCW 26.23.060(1)(a).
Where child support is collected directly from an obligor's pay, DCS serves a notice of payroll deduction on an employer, who is required to "immediately make a mandatory payroll deduction from the responsible parent's unpaid disposable earnings." RCW 26.23.060(3). Each pay period, the employer deducts "the amount stated in the notice divided by the number of pay periods per month." RCW 26.23.060(3). The employer must make immediate deductions and "remit proper amounts to the Washington state support registry within seven working days of the date the earnings are payable to the responsible parent." RCW 26.23.060(7). As a general rule, "DCS distributes support collections within two days of the date DCS receives the collection." WAC 388-14A-5001(2). But under the regulations, the date of receipt is not the date the money is withheld from the noncustodial parent: "DCS considers the date of collection to be the date that DCS receives the support collection, no matter when the money was withheld from the noncustodial parent." WAC 388-14A-5001(3). Consequently, there may be a nine-day delay between the date the employer withholds wages and the date DCS distributes the support.
Here, the DCS records establish Sadettanh's employer withheld the child support payment in December and DCS received payment of $238.16 from Sadettanh's employer on the first work day in January, January 3, 2011. Accordingly, any delay is due solely to the statutorily-governed DCS process that Cooley herself requested.
The case Cooley relies on, In re Marriage of Maccarone, 54 Wn.App. 502, 774 P.2d 53 (1989), is distinguishable. The issue in Maccarone was whether approximately $5,000 in past due child support payments were barred by the 10-year statute of limitations. Maccarone, 54 Wn.App. at 504-05. In determining which payments were barred by the statute of limitations, the court states that child support payments are allocated first to current obligations, then to any arrears and interest. Maccarone, 54 Wn.App. at 505.
Because the court did not abuse its discretion in denying the motion for contempt, we affirm.
We decline to award Sadettanh attorney fees on appeal under RAP 18.9(a).
WE CONCUR.