Scott Mcgowan v. Yelena Kozlova Mcgowan ( 2015 )


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  •  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
    In the Matter of the Marriage of
    No. 72427-4-1
    SCOTT JAMES MCGOWAN,
    DIVISION ONE
    Appellant,
    UNPUBLISHED OPINION
    and
    YELENA MCGOWAN,
    Respondent.                    FILED: November 23, 2015
    Trickey, J. — Scott McGowan appeals the trial court's order of child
    support following the dissolution of his marriage to Yelena McGowan. Because
    Scott fails to demonstrate any reversible error or abuse of discretion, we affirm.
    FACTS
    Scott and Yelena1 married in July 1998 and separated on July 11, 2013.
    They have two sons, born in August 2000 and April 2005. In August 2013, the
    trial court entered a temporary order providing for the children to reside with Scott
    a majority of the time and spend every other weekend with Yelena. The court
    also imputed income to Yelena and ordered her to pay child support to Scott. In
    November 2013, a family court commissioner ordered Scott to pay monthly
    spousal maintenance in an amount to be reduced based on increases in
    Yelena's gross earnings. Before trial, the parties agreed to a parenting plan with
    an equally shared residential schedule. The remaining issues for trial included
    child support and the division of marital assets and debts.
    1We refer to the parties by their first names, no disrespect is intended.
    No. 72427-4-1 / 2
    On June 11, 2014, the first day of trial, the trial court signed the agreed
    parenting plan.      At trial, both Scott and Yelena offered testimony and
    documentary evidence to establish their respective incomes and expenses in
    their separate households. Yelena also testified that she expected her monthly
    expenses to increase significantly under the new permanent parenting plan. She
    intended to move to an apartment with a separate bedroom for the boys and in a
    location close to one of their schools.    Yelena testified to her estimation of
    increased expenses in rent, food, transportation, and other costs.
    Ultimately, the parties stipulated to their respective gross monthly income
    figures of $9,823.23 for Scott and $6,000.00 for Yelena.             During closing
    arguments, the parties clarified that they also stipulated to the monthly net
    income figures listed in Scott's proposed child support worksheet. Scott asked
    the court for a deviation from the standard calculation of child support based on
    the shared residential schedule under RCW 26.19.075(1 )(d).
    Based on the income figures in the worksheet as stipulated by the parties,
    the trial court determined the standard calculation for both children to be
    $1,533.82 from Scott and $1,071.18 from Yelena. The trial court determined
    Scott to be the obligor parent and ordered him to pay Yelena a monthly transfer
    payment of $1,533.82. The court denied Scott's request for a deviation from the
    standard calculation, stating the following reason: "A deviation would result in
    insufficient funds to support the basic needs of the children in the recipient
    household."2
    2 Clerk's Papers (CP) at 884.
    No. 72427-4-1 / 3
    Scott appeals.3
    ANALYSIS
    We review child support orders, including rulings on requests for deviation
    from the standard calculation, for abuse of discretion. In re Marriage of Bell, 
    101 Wash. App. 366
    , 370-72, 
    4 P.3d 849
    (2000). A trial court abuses its discretion by
    basing its decision on unreasonable or untenable grounds or by applying an
    erroneous view of the law or incorrect legal analysis.              In re Marriage of
    Schnurman, 
    178 Wash. App. 634
    , 638, 
    316 P.3d 514
    (2013). "This court will not
    substitute its own 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 Wash. App. 657
    , 664, 
    50 P.3d 298
    (2002).
    RCW 26.19.075(1)(d) permits trial courts to deviate from the standard
    statutorily-imposed child support schedules:
    Residential schedule. 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
    3A commissioner of this court referred to the panel Yelena's motion to strike and request
    for sanctions based on certain factual assertions in an appendix to Scott's opening brief.
    The panel has the ability to review the record designated on appeal and to determine the
    facts relevant to a fair resolution of the issues presented. Accordingly, we need not
    decide Yelena's motion to strike and we deny her request for sanctions.
    No. 72427-4-1/4
    the child spends with the parent making the support transfer
    payment.
    This deviation is discretionary, however, and deviation from the standard child
    support schedules "remains the exception to the rule," to "be used only where it
    would be inequitable not to do so." In re Marriage of Burch, 
    81 Wash. App. 756
    ,
    760, 
    916 P.2d 443
    (1996); see also, 
    Schnurman, 178 Wash. App. at 641
    (deviation
    under RCW 26.19.075(1 )(d) could be warranted when children share residential
    time equally between parents, but "would still be discretionary and should focus
    on the legislature's primary intent to maintain reasonable support for the children
    in each household"). "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." RCW 26.19.075(2).
    Scott first assigns error to the statement in the child support order that "the
    support obligation is based upon" Yelena's monthly net income of $4,173.99,
    when the parties stipulated to a monthly net income of $4,928.89.4 He claims
    that the trial court erred "[t]o the extent [it] relied on this erroneous income figure
    to conclude that a deviation would result in insufficient funds in the mother's
    household."5
    But Scott concedes that the trial court properly listed Yelena's monthly net
    income as $4,928.89 on the worksheet, which was attached and incorporated by
    reference to the support order, and used $4,928.89 as her net income for
    4 CP at 882-83, 892.
    5 Br. of Appellant at 9.
    No. 72427-4-1 / 5
    purposes of determining the standard child support calculation. We also note
    that the child support order lists Scott's monthly net income as $7,039.25, while
    the worksheet lists his monthly net income as $7,522.46. Similarly, the support
    order lists the standard calculation as $1,558.07 with a reference to "Worksheet
    line 17," which in turn lists the standard calculation as $1,533.82, consistent with
    the trial court's handwritten and initialed statement of the transfer payment on the
    order.6 The parties do not dispute that the trial court used the income numbers
    listed in the worksheet to determine the standard calculation of $1,533.82 as
    listed in the worksheet, rather than $1,558.07 as listed in the order.
    Because the trial court's handwritten statement of the transfer payment is
    consistent, as Scott concedes, with the standard calculation resulting from the
    higher monthly net incomes as listed on the worksheet, it appears that the order
    of child support contains scrivener's errors in its statements as to Yelena's
    monthly net income, Scott's monthly net income, and the standard calculation.
    Scott does not seek remand for correction of these errors.           And contrary to
    Scott's claim, it is also clear that the discrepancy in the numbers listed in the
    order does not implicate the court's decision regarding deviation.
    According to RCW 26.19.075(1 )(d), the court "may not deviate" based on
    the residential schedule "if the deviation will result in insufficient funds in the
    household receiving the support to meet the basic needs of the child." Scott
    challenges the trial court's finding here that "[a] deviation would result in
    insufficient funds to support the basic needs of the children in the recipient
    6 CP at 883, 894.
    No. 72427-4-1 / 6
    household."7   But Scott concedes that Yelena testified at trial to an estimated
    increase of $1,635.00 in monthly expenses based on her increased residential
    time with the children under the new parenting plan, for a total of $5,578.00 in
    monthly expenses. The trial court was entitled to rely on her testimony, and we
    do not weigh the evidence or credibility of witnesses. In re Marriage of Rich, 
    80 Wash. App. 252
    , 259, 
    907 P.2d 1234
    (1996).          Because, as Scott concedes,
    Yelena's expected monthly expenses of $5,578.00 exceeds her monthly net
    income of $4,928.89, the trial court did not err in denying his request for a
    deviation under RCW 26.19.075(1 )(d) for the reason stated.
    In essence, Scott argues that RCW 26.19.075(1 )(d) required the trial court
    to compare the impact of a deviation in some particular amount on the total
    financial circumstances of each household. We disagree. RCW 26.19.075(1)(d)
    expressly provides that the trial court is to consider evidence concerning
    increased expenses to the obligor parent and other such factors "[w]hen
    determining the amount ofthe deviation" after first determining whether deviation
    from the standard calculation is appropriate, not when determining whether to
    deviate in the first instance, which is what Scott seeks here.8 Cf. State ex rel.
    J.V.G.v. Van Guilder. 
    137 Wash. App. 417
    , 424, 
    154 P.3d 243
    (2007) (under RCW
    26.19.075(1 )(e), when parent seeks deviation based on support of children from
    another relationship, court must consider "total circumstances of both
    households" in deciding "whether a deviation is appropriate").
    7 CP at 884.
    8 (Emphasis added.)
    6
    No. 72427-4-1/7
    Given Scott's resources and his reduced residential time with the children
    under the new parenting plan compared with Yelena's increasing expenses
    under the new parenting plan, the trial court's decision to deny Scott's request for
    a deviation from the standard statutory calculation was not "inequitable." See
    
    Burch, 81 Wash. App. at 760
    .
    Scott also contends that the trial court erred by allocating to him 62
    percent of health care and special child rearing expenses, rather than 60.4
    percent as indicated on the child support worksheet and required by RCW
    26.19.080(2) and (3).     He further contends the trial court failed to properly
    apportion his support obligation between the two children. Because he fails to
    contend or demonstrate that he raised these issues in the trial court, we decline
    to consider them for the first time on appeal. RAP 2.5(a); see In re Marriage of
    Wallace. 
    111 Wash. App. 697
    , 705, 
    45 P.3d 1131
    (2002).
    Yelena requests an award of attorney fees based on her need and Scott's
    ability to pay, as well as the arguable lack of merit in his appeal. See RCW
    26.09.140; In re Marriage of Leslie. 
    90 Wash. App. 796
    , 807, 
    954 P.2d 330
    (1998).
    Exercising our discretion, we deny Yelena's request.
    Affirmed.                                                                   s=
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