Opinion
No. 33564-6-II.
June 14, 2006.
Appeal from a judgment of the Superior Court for Clark County, No. 04-1-00315-1, Edwin L. Poyfair, J., entered July 8, 2005.
Counsel for Appellant(s), David Daniel Chandler, Attorney at Law, 15418 NW 16th Ave, Vancouver, WA 98685-1855.
Counsel for Respondent(s), Gregory Powell Gilkeson (Appearing Pro Se), 6306 NE 196th St., Kenmore, WA 98028.
Reversed by unpublished opinion per Van Deren, A.C.J., concurred in by Bridgewater and Hunt, JJ.
Shell McKedy appeals a child support modification order in which the trial court granted the father a downward deviation from the child support schedule. Because the record does not contain the statutorily required child support worksheet information and the trial court did not make findings supporting its calculations, we are unable to determine whether it properly determined the parties' support obligation and we therefore reverse and remand for proper calculation of the parties' child support obligations.
FACTS
The trial court entered an initial parenting plan and child support order in 2001 between McKedy and the child's father, Gregory Gilkeson. The parenting schedule provided that their son spend every other weekend and certain holidays and birthdays with his father and the remainder of his time with his mother, McKedy. When the son turned six years old, Gilkeson was to have him one weekend per month in Seattle and one weekend in Vancouver. According to the parenting plan, McKedy, who lived in Clark County, was responsible for her son's transportation to Seattle one trip per month. Gilkeson was responsible for all other transportation. At the time the initial child support order was entered Gilkeson made $6,500 per month. McKedy made $2,300 per month, but the court imputed her income at $1,957 per month, thus the parties' combined income was $8,547. The trial court deviated downward from the scheduled child support after considering the parties' respective transportation expenses and the fact that Gilkeson supported 10 children in his home in addition to McKedy's son. It set Gilkeson's monthly child support obligation at $350, plus day care expenses of $438. The court also ordered Gilkeson to pay $3,500 of McKedy's attorney fees.
Although Gilkeson states that he is supporting 10 other children, the exact number of children that Gilkeson claims to support differs from document to document. But it appears that he may support 10 children, two of them age 18 or older.
The court ordered Gilkeson to pay 73 percent of the daycare expenses. Although McKedy wished to place their son in an expensive daycare program, the court limited the monthly expense for day care to $600 and ordered Gilkeson to pay $438 per month for day care.
In July 2004, McKedy moved to modify child support because more than two years had passed since the initial order and there had been a change in the parents' incomes. McKedy's net income was now $1,305 per month and her total monthly expenses were $5,505. She alleged that Gilkeson was now netting $9,406 per month. She also moved for a temporary order to (1) increase Gilkeson's child support and day care obligations to $1184 per month; (2) require Gilkeson to pay $3,000 of her attorney fees; and (3) limit transportation of their son to only people over the age of 21 who both parents know.
McKedy argued that not only had Gilkeson's income more than doubled since the 2001 order but that two of the children he supported had turned 18, thereby eliminating his financial responsibility for them. And she stated that the parties now equally shared the transportation expenses.
She also argued that Gilkeson did not provide safe transportation for their son because he (1) sent their son on the bus and the train with their son's half-brother, a methamphetamine addict who was arrested in front of their son; (2) sent their son to Vancouver in a car without a car seat and with a woman that McKedy did not know; and (3) allowed his daughter's boyfriend to drive their son to the drop-off location and that the boyfriend did not appear to be over age 18.
Gilkeson responded that both his income and is expenses had increased since 2001. He admitted that he made $9,406 per month but argued that he now supported eleven children, plus McKedy's son. Gilkeson asked the court for a day care credit for payments he had made to McKedy when their son had not been in day care. See RCW 26.19.080(3). He also requested future copies of day care payments McKedy made.
Gilkeson stated that he continued to support his two children who were 18 and 19.
Gilkeson disputed McKedy's statements about transportation arrangements, stating that their son had always been in the company of an adult who Gilkeson knew personally.
In June 2005, the court modified the child support. It found Gilkeson's monthly income was $12,970 and imputed income of $1,920 a month to McKedy. See RCW 26.19.071(6). The worksheets did not show, and the court did not state, its basis for imputing income to McKedy, nor did it indicate how it determined that Gilkeson's net income was $12,970. Furthermore, despite the order of child support stating that Gilkeson's net monthly income was $12,970, the child support worksheet shows Gilkeson's net monthly income as $5,080, which, with McKedy's imputed income, equaled a combined monthly income of only $7,000.
The trial court ordered Gilkeson to pay $442 per month basic child support, plus $75 per month for transportation. It is unclear whether it also ordered Gilkeson to pay $438 or $650 for their child's daycare expenses. It ordered him to provide health care insurance for the child as well as 93.7 percent of extraordinary health care expenses. The worksheets did not show the cost of health care insurance or identify what, if any, extraordinary health care expenses were anticipated.
The court granted Gilkeson a downward deviation because Gilkeson supported seven other children under the age of 18, stating:
The child support amount ordered . . . deviates from the standard calculation because the court finds that the obligator [sic] father is supporting seven (7) additional children in his home and that the obligor father is burdened with the bulk of the visitation transportation (300 miles roundtrip from Seattle), plus he is obligated to pay up to $438 per month in daycare expenses, therefore it would be an abuse of discretion not to consider these factors in setting support.
Clerk's Papers at 78-79.
The record does not reveal the trial court's basis for Gilkeson's transfer payment and the parents' proportional obligations for expenses not included in the transfer payment.
McKedy appeals.
ANALYSIS
A. Standard of Review
The trial court has broad jurisdiction to modify child support provisions. In re Marriage of Dodd, 120 Wn. App. 638, 644, 86 P.3d 801 (2004) (citations omitted). We apply an abuse of discretion standard and will not reverse a trial court's decision unless it rests on unreasonable or untenable grounds. Dodd, 120 Wn. App. at 644 (citations omitted). We will not substitute our judgment for that of the trial court where the record shows that the trial court considered all relevant factors and the award is not unreasonable under the circumstances. In re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298 (2002).
B. Presumptive and Advisory Child Support Calculations
In calculating child support, the trial court must first determine the standard child support calculation from the economic table set out in RCW 26.19.020. In re Marriage of Rusch, 124 Wn. App. 226, 231, 98 P.3d 1216 (2004). The economic table provides the basic support obligations for dependant children. Rusch, 124 Wn. App. at 231. The support amount is based on the combined net income of the parents and each parent's obligation is determined by their proportionate share of the combined monthly income. Rusch, 124 Wn. App. at 231.
When the parents' combined income is $5,000 or less, the economic table is presumptive. If their combined monthly income exceeds $5,000, the economic table is advisory and not presumptive. Rusch, 124 Wn. App. at 232 (quoting RCW 26.19.020); see also RCW 26.19.065(3). The table outlines support obligations only for parents whose combined monthly income totals $7,000 or less. RCW 26.19.020; Rusch, 124 Wn. App. at 231. When the combined monthly income exceeds $7,000, the trial court may set support at the advisory amount for income between $5,000 and $7,000 or it may exceed the advisory amount, provided the court enters written findings of fact. RCW 26.19.065(3); Rusch, 124 Wn. App. at 231-32. The findings must explain why additional support is necessary. Rusch, 124 Wn. App. at 233. If the trial court's child support order exceeds the advisory for a combined income that exceeds $7,000, the court must consider the totality of the parents' financial circumstances in determining the support obligation. Fiorito, 112 Wn. App. at 665 (quoting In re Marriage of Leslie, 90 Wn. App. 796, 804, 954 P.2d 330 (1998)). Although the court is required to consider the parties' financial circumstances, it still retains its discretion to decide an appropriate support amount. Fiorito, 112 Wn. App. at 665. And it is not required to deviate upward simply because the income exceeds $7,000. Fiorito, 112 Wn. App. at 665.
C. Child Support Deviations
RCW 26.19.075(1)(e) instructs the court:
(i) The child support schedule shall be applied to the mother, father, and children of the family before the court to determine the presumptive amount of support.
(ii) Children from other relationships shall not be counted in the number of children for purposes of determining the basic support obligation and the standard calculation.
(iii) When considering a deviation from the standard calculation for children from other relationships, the court may consider only other children 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.
(iv) When the court has determined that either or both parents have children from other relationships, deviations under this section shall be based on consideration of the total circumstances of both households. All child support obligations paid, received, and owed for all children shall be disclosed and considered.
RCW 26.19.075(1) also provides a non-exclusive list of reasons that the court may consider when deviating from the standard calculation. 'The court may deviate from the standard calculation when either or both of the parents before the court have children from other relationships to whom the parent owes a duty of support.' RCW 26.19.075(1)(e). But RCW 26.19.075(2) explicitly requires that:
All income and resources of the parties before the court, new spouses, and other adults in the households shall be disclosed and considered as provided in this section. The presumptive amount of support shall be determined according to the child support schedule. Unless 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.
A deviation from the standard amount is an exception and should only be used if it would be inequitable not to do so. In re Marriage of Goodell, 130 Wn. App. 381, 391, 122 P.3d 929 (2005). The trial court is required to 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.' RCW 26.19.075(3). (Emphasis added.) It is within the trial court's discretion to grant a deviation and generally we will not reverse such a decision. Goodell, 130 Wn. App. at 391.
D. The Trial Court's Calculations
McKedy argues that the trial court abused its discretion when it deviated downward from the standard calculation with '[i]ncomplete [a]nd [i]naccurate [f]indings and [n]o [c]hild [s]upport [w]orksheet.' Br. of Appellant at 4.
1. The Child Support Worksheet
McKedy argues that the court erred when it did not complete the child support worksheets and used different figures for Gilkeson's income in its order and in the worksheet.
The court is required to complete the child support worksheets, but we may look to the entire record to determine whether the record supports the trial court's decision. Rusch, 124 Wn. App. at 234. In Rusch, the trial court failed to completely fill out the worksheets, but Division One of this court held that the court's specific findings and other evidence supported the child support calculation and thus, in Rusch, the failure to complete the worksheets was not reversible error. 124 Wn. App. at 234.
Here, the court's order of child support shows Gilkeson's monthly net income as $12,970 and imputed $1,920 monthly income to McKedy. Its order required that Gilkeson pay child support at the advisory amount for a combined income of $7,000, which according to the court was $442 per month. The court adopted $472 as the standard monthly child support amount. The court then articulated that Gilkeson's seven additional children, day care expenses, and transportation costs caused it to deviate from the standard calculation.
The standard calculation for a five-child family (ages 0-11) with a combined monthly income of $7,000 is $472. RCW 26.19.020. The calculation, if the court adopted the advisory amount for a single-child family with combined income of $7,000, is $986. RCW 26.19.020.
The court attached the child support worksheet to its order. But the worksheet showed Gilkson's monthly net income as $5,080 (not $12,970) and McKedy's imputed net income as $1,920. The court also entered an inaccurate calculation of each parent's respective percentage of the monthly income. The trial court did not complete any other portion of the worksheet.
The total income recited in the order of child support is $14,890. Gilkeson's income of $12,970 is 87.1 percent of $14,890; the income imputed to McKedy of $1,920 is 12.9 percent of $14,890. Instead, the trial court used $7,000 as the total income, and calculated Gilkeson's net income as $5,080, which is 72.6 percent of $7,000. The $1,920 imputed to McKedy is 27.4 percent of $7,000. Instead of using either set of figures, the trial court allocated 93.7 percent to Gilkeson and 6.3 percent to McKedy.
On this record we cannot determine why the trial court chose to ignore 61 percent of Gilkeson's net income for purposes of child support or why income was imputed to McKedy. We are also not told what Gilkeson's gross income is. Nor can we determine how the percentage allocation of day care and transportation costs was determined. Because the worksheet does not contain the mandated information we cannot ascertain whether the support amount, including health insurance, is proper. See RCW 26.19.035.
RCW 26.19.035(3) requires that the court not accept incomplete worksheets and RCW 26.19.035(4) requires that each child support order state the amount of child support calculated using the standard calculation and the amount of child support actually ordered. RCW 26.19.035(2) requires that in all cases the court must enter written findings of fact showing what it based its determination for the child support order on.
Here, the trial court did not enter findings or a worksheet resolving the issues of Gilkeson's gross income, deductions from income, or net income calculation, nor is there resolution of issues raised about other household income and support for the children in his household. The worksheets also fail to show how the trial court resolved the dispute over day care costs and the transportation expenses. Moreover, the percentages on the worksheets are inaccurate. It appears that the trial court's goal was to generate numbers to show the parents' combined income as $7,000 in order to base child support on that amount. The result is a misleading and false worksheet, which, given the age of the parties' child, will serve as an erroneous basis for future support modification proceedings.
See footnote 5 herein.
For example, it reduces Gilkeson's net income to 39 percent of his actual net income and does not show his gross income or his deductions, including whether he pays income tax at all given the number of deductions he apparently can claim.
The trial court's failure to accurately complete the worksheets was error. See In re Marriage of Sacco, 114 Wn.2d 1, 2, 784 P.2d 1266 (1990); In re Marriage of Sievers, 78 Wn. App. 287, 306, 897 P.2d 388 (1995); In re Marriage of Irwin, 64 Wn. App. 38, 55-56, 822 P.2d 797 (1992); In re Marriage of Simpson, 57 Wn. App. 677, 680, 790 P.2d 177 (1990). Thus, the trial court's calculations are not supported by sufficient evidence and the trial court abused its discretion. See, e.g., Rusch, 124 Wn. App. at 234.
We reverse and remand for recalculation of actual income, net income, expenses, and for findings stating how child support is calculated, including any expenses allocated between the parents.
2. The Court's Finding Supporting a Downward Deviation
McKedy argues that the court erred when it issued a one-sentence finding as its reason to deviate downward. She also argues that because the parties' monthly income is greatly in excess of $7,000, the court erred when it set the support obligation based on the advisory amount in the statute.
McKedy asserts that the statute does not allow downward deviations when the parents' income exceeds $7,000. RCW 26.19.075(2) states in pertinent part: 'Unless 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.' Further, the court's findings of fact and conclusions of law should be sufficient to suggest the factual basis for its ultimate conclusions. In re Marriage of Monaghan, 78 Wn. App. 918, 925, 899 P.2d 841 (1995). Inadequate findings may be supplemented by the trial court's oral rulings or by statements in the record. Monaghan, 78 Wn. App. at 925.
Here, the court found that Gilkeson's other children and his higher share of day care and transportation expenses were sufficient reasons justifying a downward deviation of child support. Gilkeson disclosed that his wife received support for one child. He also stated that he did not receive any support for his other children. But, nothing in the record indicates that the trial court considered the totality of the parents' financial circumstances. The court's findings do not address the standard of living of either parent or the other children Gilkeson supports. While it did consider Gilkeson's other children, the record is insufficient to ascertain pertinent facts about Gilkeson's financial circumstances related to those children, for example, their ages, whether they go to public or private school, whether they have health insurance coverage, or whether other parents also support them. See RCW 26.19.075(1)(e)(iv).
McKedy contends that Gilkeson and his wife do not have custody of two of her children because of a court order placing the children with their father. And she argues that Gilkeson does not have a duty of support for stepchildren not in his custody. But Gilkeson stated that the two children did live full time with him and his wife and the court adopted that in its findings of fact. We do not review credibility determinations, therefore, we find that Gilkeson's stepchildren did live with him and he had a duty of support for those under age 18. In re Marriage of Fiorito, 112 Wn. App. 657, 667, 50 P.3d 298 (2002); In re Marriage of Farrell, 67 Wn. App. 361, 365, 835 P.2d 267 (1992) ('those stepparents standing in loco parentis to a stepchild are legally obligated to support and educate the child.')
Because both the findings and the worksheet are inadequate, we cannot determine how the court resolved the parties' evidentiary submissions on day care costs, transportation, support for other children, health care costs, or even how the court determined the parties' income and the percentage of total income for each parent. We thus hold that the trial court did not issue adequate findings to support its downward deviation. We reverse and remand for further proceedings consistent with this opinion.
3. Day Care and Transportation Expenses
McKedy argues that the court violated RCW 26.19.075 and .080 when it did not proportionately allocate day care and transportation expenses. She argues that the statute required that Gillkeson pay 93 percent of the day care and transportation expenses and thus, the court erred when it considered those factors in deviating downward. She also asserts that Gilkeson does not provide greater transportation and that the court's award of $75 per month in transportation expenses is inconsistent with the downward deviation.
McKedy appears to argue that the court erred when it found that Gilkeson incurred more transportation expenses when she stated to the contrary. But we do not review credibility determinations. Fiorito, 112 Wn. App. at 667.
Day care and transportation expenses are not included in the nonexclusive list of reasons the court can deviate from the standard support calculation. RCW 26.19.075. And RCW 26.19.080(3) states in pertinent part:
Day care and special child rearing expenses, such as tuition and long-distance transportation costs to and from the parents for visitation purposes, are not included in the economic table. These expenses shall be shared by the parents in the same proportion as the basic child support obligation .
(Emphasis added.)
The trial court has the discretion to grant deviations. See, e.g., In re Marriage of Casey, 88 Wn. App. 662, 666, 967 P.2d 982 (1997). And the statute explicitly states that the list of deviating factors is not exclusive. RCW 26.19.075(1); Casey, 88 Wn. App. at 666. But here, the court ordered Gilkeson to pay up to $438 per month for day care and he provided a significant portion of the transportation costs from Seattle to Clark County. We cannot tell from this record how those obligations were determined because we do not know what income figures the trial court used to derive the percentage allocation.
Or maybe up to $650 per month.
RCW 26.19.080(3) requires that these expenses be paid proportionately. McKedy is correct that a deviation was granted without regard for the statutory imperative. Thus, the trial court abused its discretion in failing to first determine the actual proportionate income of the parents, and then allocate day care and transportation expenses consistently with that determination. We remand for recalculation of the parties' day care and transportation obligations.
E. Gilkeson's Failure to Submit a Worksheet and Financial Declaration
McKedy argues that the court failed to adhere to RCW 26.19.035(3) when it did not require Gilkeson to submit a signed child support worksheet and financial declaration form. We agree.
RCW 26.19.035(3) states:
Worksheets in the form developed by the office of the administrator for the courts shall be completed under penalty of perjury and filed in every proceeding in which child support is determined. The court shall not accept incomplete worksheets or worksheets that vary from the worksheets developed by the office of the administrator for the courts.
(Emphasis added.)
The legislature's use of the term shall, indicates that the court must require the parents to file the mandatory worksheets. See, e.g., Parkland Light Water Co. v. Tacoma Pierce-County Bd. of Health, 151 Wn.2d 428, 437, 90 P.3d 37 (2004) ('the use of 'shall' indicates a mandatory obligation.') This requirement buttresses RCW 26.19.075(2), which states: 'All income and resources of the parties before the court, new spouses, and other adults in the households shall be disclosed and considered as provided in this section.'
The court failed to demonstrate how it resolved the different income figures as well as the number of children Gilkeson supported. A financial declaration would have created a clearer picture of Gilkeson's financial situation because it would have listed his monthly expenses. We expect on remand that the court will have all necessary information provided by the parties and that its order and child support worksheets will show resolution of contested issues.
F. Attorney Fees on Appeal
McKedy argues that we should award her attorney fees on appeal. Gilkeson counters that McKedy and her attorney are long-standing friends and her attorney has not charged her anything for the appeal, thus any award would be unjust.
Gilkeson argues that McKedy and her attorney have a romantic relationship. Her attorney vehemently denies any such relationship. And there is no evidence of a relationship or any indication that McKedy's attorney is not charging her for the appeal.
RAP 18.1 allows this court to award fees and costs where it is statutorily allowed. Under RCW 26.09.140 the court may award fees based on the financial need of the requesting party and the other party's ability to pay.
The court has discretion to award attorney fees based on a balancing of the needs of the spouse seeking fees against the ability of the other spouse to pay. RCW 26.09.140; In re Marriage of Moody, 137 Wn.2d 979, 994, 976 P.2d 1240 (1999). 'The 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.' RCW 26.09.140. We also consider the arguable merit of the issues raised on appeal. Leslie, 90 Wn. App. at 807.
McKedy submitted a financial declaration to this court indicating that her monthly net income is $3,724. We do not have a financial declaration from Gilkeson. The trial court found that his net monthly income was $12,970, indicating that he has a substantially greater ability to pay. Because McKedy prevails in this appeal we award her reasonable attorney fees.
We reverse the court's order of support and remand for recalculation in accord with this opinion and we grant McKedy attorney fees on appeal.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, and HUNT, JJ., concur.