Opinion
No. 46364-1-I.
Filed: June 11, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 94-3-09866-1, Hon. Patricia H. Clark, February 8, 2000, Judgment or order under review.
Counsel for Appellant(s), Andrew L. Benjamin, Benjamin Johansen, Ste 1400, 720 3rd Ave, Seattle, WA 98104.
Counsel for Respondent(s), Catherine W. Smith, Edwards Sieh Smith Goodfriend, 701 5th Ave Ste 7170, Seattle, WA 98104.
Lisa A. Dufour, King Co Prosc Atty Ofc, 900 4th Ave Ste 900, Seattle, WA 98164.
Brendan P. Finucane, Edwards Sieh Smith Goodfriend, 701 5th Ave Ste 7170, Suite 7170, Seattle, WA 98104.
Scott Hanebuth appeals an increase in his child support obligation, arguing that the trial court erred in finding he was voluntarily underemployed to reduce child support, imputing his income to the median, and refusing to grant a deviation for support of his son from a previous marriage. Lilas Asher, Hanebuth's former wife and mother of three of his children, cross-appeals the trial court's refusal to enter judgment against Hanebuth on unpaid child support and interest. We hold that the trial court erred in failing to enter findings of fact or conclusions of law in support of its rulings, and in failing to enter judgment against Hanebuth for unpaid support. Accordingly, we reverse and remand to the trial court for further proceedings.
I
Lilas Asher and Scott Hanebuth divorced in 1995. They had three children, who are currently between the ages of eight and ten. The decree's parenting plan made Asher the primary residential parent and directed Hanebuth to pay child support and 54 percent of basic child care and day care expenses, for a total obligation of $922 per month. In doing so, the court imputed monthly net income of $1,717 to Hanebuth because he was unemployed and his income was unknown. Hanebuth requested modification, and the court eliminated daycare expenses as a fixed item from the standard calculation, instead requiring Hanebuth to reimburse Asher for 50 percent of daycare expenses. This reduced Hanebuth's child support payment to $598 per month.
During the next four years, Hanebuth paid little of his support obligation.
In 1998 he brought a support modification action, but failed to prosecute it. By the time of trial, Hanebuth was in arrears $27,427 plus interest. Of this amount, $5,960 was assigned to the State in compensation for public assistance paid to Asher. Hanebuth also failed to pay his share of daycare expenses.
The State filed a petition to modify the support order, requesting a downward deviation from the standard amount because Hanebuth is responsible for supporting an additional child from a previous marriage and because the standard support amount would reduce Hanebuth's net monthly income below the statutory need standard.
Hanebuth, proceeding pro se, filed his answer and financial declarations. Asher did not file her response to the petition and furnish a declaration identifying the relief requested until the day they were due. Because Asher mailed the documents to Hanebuth at his home in Idaho, he did not receive them until three days before trial. Accordingly, Hanebuth did not file his trial affidavit responding to Asher's position until the day before trial.
In her response to the petition, Asher requested that the court impute income to Hanebuth, and sought a judgment for back child support, interest, daycare, and medical bills. Asher noted that Hanebuth had previously earned $6.50 per hour working as a production manager at BPH Industries, a family business, but that he now reported making only $5.20 per hour at the same job. She also questioned the veracity of Hanebuth's alleged current income. Therefore, Asher requested that the court impute income to Hanebuth at $6.50 per hour. Asher also noted that imputing income to Hanebuth would not cause him financial hardship because Hanebuth's community income was over $49,000 in 1998. Asher's proposed child support worksheets calculated net income to Hanebuth of $1,040, resulting in a standard basic child support obligation of $375. However, Asher requested that the court set child support at $243 per month. This figure was generated by subtracting the $797 need standard from $1,040. The State also noted that the standard calculation would reduce Hanebuth below the need standard, and requested a support order of 'at least $75 per month.'
Hanebuth replied that his hourly wage was reduced due to a 25 percent across-the-board reduction in salary to all BPH employees, necessitated by the loss of two major accounts to the business. Hanebuth said that he continues to work for BPH Industries despite the pay cut because he only has a tenth grade education and has had two recent back surgeries. The job allows him the flexibility to accommodate his back pain. Furthermore, because he and his current wife live in an apartment that is attached to his parents' home and located at his place of work, he has no commute. Hanebuth also explained that he paid so little child support during the past several years because his personal wages were insufficient to make payments, and 'Lilas and I were trying to work on getting the support reduced to the appropriate amount.'
Following a contested hearing on affidavits, the trial court found that Hanebuth was voluntarily underemployed for the purpose of avoiding child support. The court imputed Hanebuth's income to the median net monthly income for males age 35 to 44, which at that time was $2,118 per month. After imputing Hanebuth's income at $2,118 per month and finding Asher's net income to be $2,004 per month, the court calculated the parties' support obligations based on standard computations. Based on a proportional share of 51.4 percent, the court ordered Hanebuth to pay $623 per month in child support to Asher. The court rejected without explanation the State's request for a downward deviation in child support.
Asher notes that the Washington Child Support Schedule recently increased this figure from $2,118 to $2,610.
The court also awarded judgment on Asher's request for daycare expenses, but, again without explanation, denied her request for judgment for the back support and interest.
Hanebuth obtained counsel and moved for reconsideration. Hanebuth based his proposed order on Asher's proposal, but reduced it based upon the statutory need standard and his obligation to support another child. The court denied Hanebuth's motion for reconsideration. Hanebuth now appeals the child support modification order and the denial of his motion for reconsideration. Asher filed a cross-appeal of the court's denial of her request for judgment on unpaid support plus interest.
II
A child support award is reviewed for abuse of discretion. A court abuses its discretion if the decision is manifestly unreasonable, or is exercised on untenable grounds or for untenable reasons. The reviewing court must determine whether the trial court made an error of law and whether substantial evidence supports the findings of fact. Substantial evidence is that which would persuade a fair minded and rational person of the truth of a stated premise. The appellate court will not substitute its judgment for that of the trial court where the record shows that the trial court considered all relevant factors.
In re Marriage of Peterson, 80 Wn. App. 148, 152, 906 P.2d 1009 (1995).
State v. Michielli, 132 Wn.2d 229, 240, 937 P.2d 587 (1997).
In re Marriage of Stern, 68 Wn. App. 922, 929, 846 P.2d 1387 (1993).
In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527 (1993).
In re Marriage of Brockopp, 78 Wn. App. 441, 446, 898 P.2d 849 (1995).
Hanebuth first argues that the trial court abused its discretion in finding that he was voluntarily underemployed for the purpose of avoiding child support and imputing his income to the median, because there was no substantial supporting evidence in the record and because the court failed to enter findings of fact or conclusions of law which would have indicated whether the court had properly analyzed the statutory factors in reaching its conclusion. Asher contends that the court's finding that Hanebuth was voluntarily underemployed for the purpose of avoiding child support was supported by substantial evidence and reasonable inferences drawn from that evidence. Asher further contends that there was little reason to vary from the statutory presumption of imputing income to the median. Voluntary underemployment does not shield a parent from child support obligations. RCW 26.19.071(6) provides in pertinent part:
In re Marriage of Pollard, 99 Wn. App. 48, 52, 991 P.2d 1201 (2000); RCW 26.19.071(6).
The court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed. The court shall determine whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent's work history, education, health, and age, or any other relevant factors. A court shall not impute income to a parent who is gainfully employed on a full-time basis, 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.
The court first determines whether the parent is voluntarily underemployed by examining the parent's work history, education, health, age, and other relevant factors. If the court finds that a parent is 'gainfully employed on a full-time basis,' but is voluntarily underemployed, the court must further determine whether the parent is purposely underemployed to reduce his or her child support obligation. If the parent is not underemployed for that reason, the court may not impute income.
Peterson, 80 Wn. App. at 153.
RCW 26.19.071(6); Pollard, 99 Wn. App. at 53; Peterson, 80 Wn. App. at 153.
The trial court must enter written findings of fact supported by the evidence when it enters an amount for child support which deviates from the standard calculation. The failure to set forth adequate reasons for deviation is an abuse of discretion and requires reversal. A trial court's failure to enter findings of fact and conclusions of law in support of its holding that one of the parties was voluntarily unemployed renders the record inadequate for review and requires that the case be remanded for entry of findings.
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 and reasons for denial of a party's request for deviation from the standard calculation. The court shall enter written findings of fact in all cases whether or not the court: (a) Sets the support at the presumptive amount, for combined monthly net incomes below five thousand dollars; (b) sets the support at an advisory amount, for combined monthly net incomes between five thousand and seven thousand dollars; or (c) deviates from the presumptive or advisory amounts.' RCW 26.19.075(3) states that '[t]he court shall enter findings that specify reasons for any deviation or any denial of a party's request for any deviation from the standard calculation made by the court. The court shall not consider reasons for deviation until the court determines the standard calculation for each parent.' State v. Sigler, 85 Wn. App. 329, 338, 932 P.2d 710 (1997).
In re Marriage of Glass, 67 Wn. App. 378, 384, 835 P.2d 1054 (1992).
Brockopp, 78 Wn. App. at 446.
Here, the trial court did not enter any findings of fact or conclusions of law, other than simply stating that Hanebuth is voluntarily underemployed for the purpose of avoiding child support. Because there is nothing in the record to indicate the court's reasoning, we cannot determine whether the court considered all relevant factors in reaching its conclusion. The record is thus inadequate for review, and we remand for an entry of findings.
It is unclear on this record why the trial court found Hanebuth voluntarily underemployed for the purpose of avoiding child support and imputed his income to the median. In imputing income, the court should look at the level of employment at which the parent is capable and qualified. RCW 26.19.071(6) states that:
In re Marriage of Sacco, 114 Wn.2d 1,4, 784 P.2d 1266 (1990).
In the absence of information to the contrary, a parent's imputed income shall be based on the median income of year-round full-time workers as derived from the United States bureau of census, current populations reports, or such replacement report as published by the bureau of census.
Here, Hanebuth did provide 'information to the contrary.' He points to his bad back, tenth grade education, absence of job opportunities in northern Idaho, and his history of being a low wage earner as reasons not to impute his income to the median. Although it is not determinative, we note that Asher did not request that Hanebuth's income be imputed to the median, but only that his hourly wage be imputed to $6.50 per hour. Courts have declined to impute income to the median on facts far more egregious than those presented here.
In re Marriage of Foley, 84 Wn. App. 839, 843, 930 P.2d 929 (1997) (imputing father's income from $1,300 to $1,550 per month where he had worked without pay for a friend and spent a great deal of time during the week engaged in leisure activities.)
Hanebuth next argues that the trial court abused its discretion in failing to grant his request for a downward deviation, and in failing to enter written findings including its reasons for rejecting deviation. Hanebuth and the State requested a downward deviation on two grounds. First, the State alleged that Hanebuth has an obligation to pay support to another child in California. RCW 26.19.075(1)(e) mandates that the court may deviate from the standard calculation when either or both of the parents have children from other relationships to whom the parent owes a duty of support. The court may consider court-ordered payments of child support for children from other relationships only to the extent that the support is actually paid. Second, the State requested a downward deviation based on the minimum need standard. RCW 26.19.065(2) states that 'a parent's support obligation shall not reduce his or her net income below the need standard for one person established pursuant to RCW 74.04.770, except for the presumptive minimum payment of twenty-five dollars per child per month or in cases where the court finds reasons for deviation.'
Although Hanebuth did not initially raise this issue at trial, he did argue it upon his motion for reconsideration. Therefore, the issue may be raised on appeal.
Asher contends that the trial court did not need to enter any findings on its decision to deny the deviation request because deviation was impermissible as a matter of law. We disagree. 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 and reasons for denial of a party's request for deviation from the standard calculation.' It is not even clear from the court's order whether it considered or ruled on the State's reasons for requesting deviation. In the section of the order addressing 'reasons why request for deviation was denied,' it says 'does not apply.' Hanebuth claimed, and Asher did not deny, that $87.02 was being taken from Hanebuth's paycheck each month as court-ordered support for a child in California. It is possible that the court denied the deviation based upon Hanebuth's annual community income of $49,000, or because it imputed Hanebuth's income to the median. But if the court concluded that the deviations were impermissible as a matter of law, it should have said so, and explained its reasoning. Its failure to do so was an abuse of discretion. Accordingly, we remand for an entry of findings on the downward deviation request.
Hanebuth next challenges the trial court's refusal to strike Asher's late submissions. Asher did not file her financial information with the court until one week before trial, which was approximately six weeks late according to the summons and case schedule. Asher admits that she filed her answer and declarations on the day of the deadline, but that service by mail was not timely under CR 5(b)(2)(A) and KCLR 94.04(g)(7)(C)(v). However, she argues that the trial court's refusal to strike her late submissions or to grant a continuance sua sponte was not an abuse of discretion because Hanebuth failed to demonstrate prejudice.
Service by mail 'shall be deemed complete upon the third day following the day upon which they are placed in the mail, unless the third day falls on a Saturday, Sunday or legal holiday.' CR 5(b)(2)(A).
Because the court rules and orders establishing deadlines are not jurisdictional, reversal for failure to comply requires a showing of prejudice. Error is not prejudicial unless within reasonable probabilities the outcome of the trial would have been materially affected had the error not occurred. Hanebuth argues that he was prejudiced because Asher sought a large judgment for past support and daycare expenses for the first time in her answer and counterclaim. But Hanebuth was well aware that a substantial sum of past child support was due. Hanebuth also argues that he had no notice that the trial court would impute his wage level to the median, but he fails to explain how Asher's late submission caused this result. Asher did not request this relief.
Brown v. Safeway Stores, Inc., 94 Wn.2d 359, 364, 617 P.2d 704 (1980).
State v. Cunningham, 93 Wn.2d 823, 831, 613 P.2d 1139 (1980).
Hanebuth has not made the requisite showing of prejudice, and the trial court did not abuse its discretion in considering these materials. Asher contends that the trial court erred in failing to enter judgment for back child support plus interest. The trial court granted Asher's request for judgment on Hanebuth's unpaid share of daycare expenses, but the order was completely silent regarding back child support plus interest. The court did not explain its apparent inconsistency. Hanebuth argues that the trial court did not err in denying the judgment for back support and interest because he disputed the amount of interest and because it would be procedurally unfair to grant judgment on a claim raised 'on the eve of trial.' But the amount due was not disputed. Asher's request for back support included thorough documentation of Hanebuth's payment history. An installment of child support becomes a separate judgment when unpaid and bears interest from the due date. Judgment interest is calculated as a matter of law at the fixed rate of 12 percent.
Valley v. Selfridge, 30 Wn. App. 908, 913, 639 P.2d 225 (1982).
There is no discernible reason why the court refused to enter judgment on back support while simultaneously granting judgment for back daycare expenses. We reverse and remand for an entry of judgment on Asher's claim for back child support plus interest. Lastly, Asher requests an award of attorney fees under RCW 26.09.140 for expenses incurred on appeal. The court may grant fees after considering the parties' relative ability to pay and the arguable merit of the issues raised on appeal. As both parties presented generally meritorious arguments, and each prevailed on significant issues, we conclude that the parties should bear their own costs and fees.
RCW 26.09.140 states that '[t]he court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney's fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry of judgment.'
In re Marriage of Leslie, 90 Wn. App. 796, 805, 954 P.2d 330 (1998), review denied, 137 Wn.2d 1003 (1999); In re Marriage of Trichak, 72 Wn. App. 21, 26, 863 P.2d 585 (1993); State ex rel. Stout v. Stout, 89 Wn. App. 118, 127, 948 P.2d 851 (1997); RAP 18.1.
REVERSED.
WE CONCUR: COX, J., C. GROSSE, J.