In Re Marriage Of: Julie Davis, Resp/cross-app. v. Paul Davis, App/cross-resp. ( 2014 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
No. 70900-3-1
JULIE DAVIS,
DIVISION ONE
Respondent/Cross-Appellant, CD '*'»*
UNPUBLISHED OPINION
CD
and
PAUL DAVIS,
CO
Appellant/Cross-Respondent. FILED: November 10, 2014
Trickey, J. — Paul Davis appeals a child support order, challenging the
trial court's adjustment of child support for his son based on the economic table
for a one child family when he also pays postsecondary educational support to
his daughter. Julie Davis has filed a conditional cross-appeal, contending that
the trial court should determine afresh Paul's income if this court remands for
recalculation of child support. Because the trial court erred by applying the one
child family amount when Paul pays support for two children, we reverse. We
also reject Julie's cross-appeal and deny her request for attorney fees.
FACTS
Paul and Julie married in May 1992, and separated in September 2009.1
In May 2011, the parties agreed to terms of a parenting plan for their two children,
A.D. and S.D. In December 2012, after a trial, the court entered orders
dissolving their marriage and requiring Paul to pay child support. The court also
ordered Paul to pay spousal maintenance of $3,500.00 per month to Julie until
1For clarity, this opinion refers to both parties by their first names. No disrespect is
intended.
No. 70900-3-1 / 2
September 30, 2014, after which he will pay $1,750.00 per month for up to an
additional year depending on Julie's employment. The child support order
provides, "The parents shall pay for the post secondary educational support of
the children. Post secondary support provisions will be decided by agreement or
by the court."2
The December 2012 order of child support states S.D.'s age as 11 and
A.D.'s age as 17. Referring to the attached "WORKSHEET #1," the order lists
Paul's monthly net income and an imputed monthly net income for Julie and
directs Paul to pay a total standard calculation amount of $1,502.00 per month.3
Worksheet #1 lists basic child support obligations of $1,088.00 for S.D. and
$1,345.00 for A.D. The order states, "[S.D.] turns 12 in May of 2013. The
father's support obligation shall be adjusted beginning June 1, 2013 to $1,668.00,
as set forth on the attached WORKSHEET #2."4 Worksheet #2 lists the basic
child support obligation as $1,345.00 for S.D. and $1,345.00 for A.D. Thus, both
worksheets incorporated in the original child support order entered in December
2012 list a basic support obligation for S.D. according to the economic table for a
two children family. RCW 26.19.020.
Paul appealed the dissolution decree and the child support order. We
affirmed those orders in March 2014. In re Marriage of Davis, noted at 180 Wn.
App. 1015, 2014 WL 1289445. In July 2013, while the first appeal was pending,
Julie filed a motion in the trial court seeking an order establishing postsecondary
2 Clerk's Papers (CP) at 16.
3 CP at 13-15.
4CPat17.
No. 70900-3-1 / 3
educational support for A.D. and adjusting the child support for S.D. "according to
the one child family standard."5 In response, Paul argued that because he will be
supporting A.D. "as part of a post-secondary education obligation," "the child
support for [S.D.] should not be modified, as is suggested in [Julie's] motion for a
new calculation of child support."6 Paul contended that his monthly support for
S.D. should remain as set by Worksheet #2 attached to the December 2012 child
support order, or, in the alternative, be set according to his proposed worksheet
listing a reduced monthly net income for him, an increased imputed monthly
gross income for Julie, and basic child support obligations as $1,389.00 for S.D.
and $1,389.00 for A.D.
At a hearing on August 14, 2013, Paul argued it would be error to use the
economic table for a one child family to determine support for S.D., citing In re
Marriage of Daubert. 124 Wn. App. 483, 99 P.3d 401 (2004) (overruled on other
grounds by In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013(2007)). Following argument, the commissioner set the amount of postsecondary
educational support for A.D., used the same income figures and percentages as
found by the trial court in the December 2012 orders in a new worksheet, and
determined:
With respect [to S.D.], again, ... I have read Daubert, and it does
say you have to consider that there is another child that's being
supported. But, it doesn't say that that's the only consideration.
We're talking, in this case, about a huge income. And, it is
available to him. I don't think the six-extra $600 a month is going to
continue because a lot of those expenses were for the one child
that's going to be off at college. So, I am going to use the single-
5 CP at 38.
6 CP at 49.
No. 70900-3-1/4
child table for that because these are-l think it's more fair to-to the
younger child to have that amount of support. Also, the father
doesn't see the children so there's not any offset there for any of
those expenses. And, I think it's just a reasonable amount.[7]
On August 30, 2013, the trial court entered an order of child support
including an "Adjustment of Child Support obligation for [S.D.]."8 The order
incorporates a worksheet listing only S.D. and the basic support obligation from
the economic table for a one child family. The order states:
Child support for [S.D.] should be based on the one child schedule.
And Father's request to use the two child schedule based upon the
court's order for post secondary support for the parties' other
dependent child, [A.D.], is DENIED. The parents' incomes shall be
as determined at trial by Judge Uhrig, for the same reasons, as set
forth in the Order of Child Support entered herein December 13,
2012.P]
Paul appeals the adjustment of his child support obligation for S.D.,
arguing that the trial court erred as a matter of law by using the basic support
obligation for a one child family. Julie has filed a conditional cross-appeal,
arguing that if this court remands the matter to the trial court, it should also order
the trial court to recalculate child support based on Paul's then current income
based on a loan application he completed shortly before the hearing.
ANALYSIS
Child Support Adjustment
Paul contends the trial court erred in adjusting his child support for S.D. by
changing his basic child support obligation from the amount listed in the
economic table for a two children family to that of a one child family. He does not
7 Verbatim Report of Proceedings (Aug. 14, 2013) at 31.
8 CP at 104-05.
9 CP at 105.
No. 70900-3-1 / 5
challenge the provisions of the order regarding postsecondary educational
support for A.D.
We review child support adjustments for a manifest abuse of discretion, jn
re Marriage of Booth. 114 Wn.2d 772, 776, 791 P.2d 519 (1990). "A court
necessarily abuses its discretion if its decision is based on an erroneous view of
the law." In re Marriage of Scanlon, 109 Wn. App. 167, 174-75, 34 P.3d 877(2001).
Chapter 26.19 RCW directs the trial court to set the basic child support
obligation based on the parents' combined monthly net income and the number
and ages of the children "for whom support is owed." RCW 26.19.011(1), .020;
In re Marriage of McCausland. 159 Wn.2d 607, 611, 152 P.3d 1013 (2007). The
obligation amount is determined from an economic table. RCW 26.19.020. The
amount per child is reduced with multiple children in the family. RCW 26.19.020.
When calculating the amount of postsecondary educational support, the
trial court has discretion to utilize or ignore the economic table, depending on the
practicalities of the situation. In re Goude, 152 Wn. App. 784, 793, 219 P.3d 717(2009). But when, as here, a family is providing postsecondary educational
support to one child as well as basic child support to another child under 18, use
of the economic table is still presumptive when calculating the basic child support
obligation for the younger child. Daubert, 124 Wn. App. at 503. In Daubert, the
parties appealed an order modifying the amount of support for their two children
and requiring each party to pay postsecondary educational support. 124 Wn. App.
at 489. Observing that "[p]ostsecondary educational support is child support," we
No. 70900-3-1/6
held, "when calculating support for the younger minor children, the schedule
applies and requires consideration of the postsecondary child, because this child
is still a child receiving support." Daubert, 124 Wn. App. at 502-03. Although the
parties had not appealed the trial court's use of the one child family column of the
economic table for the calculation of basic support for the younger child, we
reversed the award of support for the younger child and remanded "for
recalculation based on two children receiving support." Daubert, 124 Wn. App. at
503 n.3, 506; see also, In re Marriage of Cota. 177 Wn. App. 527, 542, 312 P.3d
695 (2013) ("postsecondary educational support is part of a parent's 'child
support obligation' for the purposes of the 45 percent limitation in RCW
26.19.065(1)").
Chapter 26.09 RCW provides for modification or adjustment of a child
support order. RCW 26.09.170. A full modification action is "significant in nature
and anticipates making substantial changes and/or additions to the original order
of support." Scanlon. 109 Wn. App. at 173. An adjustment is a form of
modification but more limited in scope as to qualifying circumstances and
procedural requirements. Scanlon, 109 Wn. App. at 173. An adjustment action
"simply conforms existing provisions of a child support order to the parties'
current circumstances." Scanlon, 109 Wn. App. at 173. For example, a party
may request an adjustment one year or more after entry of an order when the
child is no longer in the age category on which the current support amount was
based. RCW 26.09.170(6)(b). Similarly, when two years have passed since
entry of an order or the last adjustment or modification, either party may request
No. 70900-3-1 / 7
an adjustment based on changes in the income of the parents. RCW
26.09.170(7)(a)(i).
Here, Julie did not identify statutory grounds to adjust Paul's support
amount for S.D. The trial court's order characterizes the proceeding with regard
to S.D. as an adjustment, but does not cite RCW 26.09.170. And the
commissioner did not refer to RCW 26.09.170 at the hearing. Moreover, in
August 2013, Julie was not entitled to an adjustment under RCW
26.09.170(7)(a)(i) based on changes in the parties' incomes because two years
had not yet passed since the June 1, 2013 adjustment based on S.D.'s change to
the greater age category. Julie fails to identify any other authority allowing or
requiring an adjustment to Paul's support for S.D. in August 2013.
Even assuming grounds existed for an adjustment, the commissioner
suggested that Daubert merely requires practical "consideration" of Paul's
obligation to pay postsecondary educational support for A.D. as a step in
calculating Paul's basic support obligation for S.D., rather than the direct
application of the economic table. This was error. Because use of the economic
table is presumptive for calculation of Paul's support for S.D. and because Paul
supports two children, the trial court should have relied on the two children family
column in the economic table to determine the basic support obligation for S.D.
As set forth in Daubert, the proper recourse is to reverse the award of support for
S.D. and remand for recalculation based on two children receiving support. 124
Wn. App. at 506.
No. 70900-3-1 / 8
Conditional Cross-Appeal
Julie contends that the trial court erred by relying on the December 2012
determinations of Paul's income following trial, rather than making findings as to
Paul's current income at the August 2013 hearing regarding the adjustment of
Paul's support for S.D. But she fails to identify any relevant authority supporting
her claim of error or requiring the trial court to recalculate income as a part of the
order setting the level of postsecondary educational support for A.D.
Because Julie fails to demonstrate error, we reject her cross-appeal. We
also decline her invitation to limit the trial court's discretion on remand beyond
directing a recalculation based on a two children family.
Attorney Fees
Julie requests attorney fees on appeal based on her need and Paul's
ability to pay under RCW 26.09.140. Because Julie's request below for the
improper adjustment to child support was the impetus for this appeal, we decline
to award fees on appeal.
Reversed and remanded.
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WE CONCUR:
8