In Re Parentage Of L.p.: Tiffany Palpong v. Tyler Meas ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
90:6 WV 61 NIT L1OZ
In re the Parentage of: )
) DIVISION ONE
L.P., )
) No. 73509-8-1
Minor child. )
)
TIFFANI PALPONG, ) UNPUBLISHED OPINION
)
Respondent, )
)
v. )
)
TYLER SOKUNTHOEUN MEAS, )
)
Appellant. ) FILED: June 19, 2017
)
DWYER, J. — Tyler Meas appeals from a child support order regarding his
son, L.P., as well as the award of attorney fees to L.P.'s mother, Tiffani Palpong.
Meas contends that the trial court erred in calculating his monthly net income and
in setting his back child support obligation to the date of L.P.'s birth. Because the
trial court imposed back child support beyond the period allowed by statute, we
remand for further proceedings. In all other respects, we affirm.
Meas and Palpong married in 1996 and divorced in 2002. They briefly
rekindled their relationship and L.P. was born in 2004. Meas subsequently
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remarried and has two younger children. L.P. has resided with Palpong his
entire life.
In 2012, Palpong filed a petition to establish paternity and enter a
parenting plan and child support order. The parties ultimately reached a
settlement on the parenting plan and agreed to a trial by affidavit regarding child
support.
Palpong works as an electrician for Boeing and owns a home. Her tax
returns for the previous five years reflect an average monthly net income of
$4,644.80. For the purposes of this appeal, this figure is undisputed by the
parties.
Meas owns and operates his own business, a donut shop. He also owns
a home that he purchased in 2003 and a rental property that he purchased in
2008. Meas claimed that his average monthly net income averaged $2,447 over
the past five years. However, every month, Meas's personal expenses far
exceeded his income.1 Meas's personal bank statements also showed large and
frequent cash deposits and withdrawals from his personal account, including tens
of thousands of dollars sent to family members overseas.
On May 8, 2015, the trial court issued a memorandum decision, in the
form of a letter to the parties, and an order of child support. The trial court found
that Meas had significantly underreported his net income:
'Bank statements submitted by Meas show that Meas habitually paid for
personal family expenses, such as groceries, utilities, and dining out, out of his business
account.
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!chose to impute net income of $7,000 per month for respondent.
It was impossible to accurately determine the respondent's monthly
income. He reports less than $3,000 per month, gross, from Tyler's
Donuts which he claims is his only source of income. That
representation is preposterous. It is a figure which is clearly
inadequate to support his standard of living, even if I accept that he
has been maintaining a debt equivalent to his original mortgage
loan in excess of $200,000. He could not possibly afford to meet
monthly car payments of nearly $1,000, the expenses to maintain
his household, his travel to Cambodia and the substantial transfer
of funds to his parents on his stated income. The fact that his
annual tax returns are prepared by a CPA does not authenticate his
monthly income. It only authenticates what he has disclosed to his
accountant. While he asks that the court accept the truth of his
representations, I could not overlook the fact that he consistently
failed to provide complete financial records in response to
discovery requests. While bank account records were provided, 1
found no credit card statements, canceled checks or documentation
for his claimed business expenses, or documentation for payment
of household expenses from some source other than his business
account (contrary to his representations). He failed to disclose any
rental income on his financial declaration. And . . . respondent
offered at best a superficial explanation for all of the financial
transfers of funds reflected in his monthly bank account statements.
And if his monthly income has only averaged less than $3,000 per
month, how could he pay down a mortgage loan by some $20,000
from September of 2012 to July of 2013? And how does he accrue
bank balances of $70,000 or $90,000 as reported on his mortgage
loan applications on such meager earnings, while remitting funds to
his parents on a regular basis?
The payments from his business account coupled with his monthly
"draws" from the business begin to provide a more realistic sense
of his monthly income. And how am Ito account for his own self-
reported income from his mortgage loan applications of 2003 and
2008, in which he declares monthly income of $8,646 and $8,425
respectively. Because respondent has so grossly understated his
monthly income, it would be easy to impute a substantially greater
net income figure to him. I have tried to be fair notwithstanding what
I believe to be a deliberate effort to deceive the court.
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On the basis of Meas's income, the trial court set Meas's total child
support obligation at $876.26 per month. Applying the "whole family" formula,
the trial court reduced Meas's monthly transfer payment to $572.15.2
The trial court also awarded Palpong back child support for the 11 years
since the date of L.P.'s birth. The trial court reasoned:
I could find no legal reason why a child support obligation should
not date back to the date of [L.P.]'s birth. It's impossible to
accurately compute what that obligation should have been in 2004
or 2005. I have no reason to believe that respondent's monthly
income was any less than it is today. There is evidence that
petitioner's income was substantially less and has increased
annually at least since she was hired on at Boeing. Looking back, it
would likely mean that respondent should have been obligated to
pay a disproportionately greater share of a somewhat reduced total
child support obligation. And the whole family deviation formula
which reduces his support obligation for [L.P.] would not have
applied prior to the birth of his other children. For those reasons, I
simply chose to calculate today's transfer payment obligation back
to [L.P.]'s date of birth.
Both Meas and Palpong requested an award of attorney fees. The trial
court awarded Palpong $25,000 in fees for Meas's intransigence. Meas appeals.
II
Meas contends that the trial court erred in calculating his back child
support obligation to the date of L.P.'s birth because it was beyond the
2 The whole family approach is a discretionary method for calculating deviations
that the trial court may use for guidance when parents owe support obligations for more
than one household. RCW 26.19.075(e); In re Marriage of Bell, 101 Wash. App. 366, 374,
4 P.3d 849(2000). Though Palpong does not cross appeal the trial court's decision to
grant a deviation, she contends that the trial court did not make adequate findings to
support the deviation, as required by RCW 26.19.075(3). Palpong may raise this issue
on remand.
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period allowed by statute. A trial court "may not order payment for support
provided or expenses incurred more than five years prior" to the
commencement of the child support action.3 RCW 26.26.134. Palpong
acknowledges that the trial court only had authority to order back child
support for five years. Accordingly, we vacate this portion of the child
support order and remand for the trial court to recalculate back child
support within the statutory limits.
III
Meas argues that the trial court erred in finding that his monthly net
income was $7,000 for the purposes of calculating child support.4 We
disagree.
In Washington, child support obligations are calculated according to
the statutory support schedule. See RCW 26.19.020. The overriding
purpose of the child support schedule is to ensure that children are
protected with adequate, equitable, and predictable child support
commensurate with the parents' income, resources, and standard of living.
RCW 26.19.001. In enacting the schedule, the legislature also intended to
3 An exception exists for "[a]ny period of time in which the responsible party has
concealed himself or herself or avoided the jurisdiction of the court." RCW 26.26.134.
There is no evidence in the record that this exception applies here.
4 Although the trial court used the term "impute," it is clear that this was the trial
court's shorthand for determining Meas's income based on circumstantial evidence, not
as this term is used in RCW 29.19.071(6).
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equitably apportion the child support obligation between both parents.
RCW 26.19.001.
We review a trial court's findings of fact following a trial by affidavit
to determine whether they are supported by substantial evidence. In re
Marriage of Shellenberger, 80 Wash. App. 71, 80-81, 906 P.2d 968 (1995).
We do not review the trial court's credibility determinations, nor do we
weigh conflicting evidence. In re Marriage of Rich, 80 Wash. App. 252, 259,
907 P.2d 1234 (1996). When a party fails to provide credible evidence of
income, the trial court may determine income by any rational means based
upon evidence in the record. See In re Marriage of Sievers, 78 Wash. App.
287, 305-06, 897 P.2d 388 (1995).
We review a child support order for abuse of discretion. In re
Marriage of Bell, 101 Wash. App. 366, 370-71, 4 P.3d 849 (2000). A trial
court abuses its discretion if its decision is manifestly unreasonable or
based on untenable grounds. In re Marriage of Littlefield, 133 Wash. 2d 39,
46-47, 940 P.2d 1362(1997).
Here, the trial court's finding that Meas had understated his income
was supported by the record. It is clear that Meas's expenses far exceed
his claimed monthly earnings of $2,447. For example, Meas's June 2012
bank statement for his personal account shows that Meas made a monthly
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No. 73509-8-1/7
mortgage payment on his home of $2,711.08.5 As Palpong noted, this
alone would exceed Meas's claimed monthly earnings. And Meas's June
2012 bank statement for his business account shows approximately $2,800
in additional personal expenses, including groceries, clothing, utilities,
Meas's Lexus payment, and payments made on Meas's personal credit
cards.6 While Meas contended that he was able to maintain this standard
of living by drawing on a home equity line of credit, the trial court expressly
found that claim not credible. Credibility determinations are not reviewable
on appeal. In re Marriage of Rideout, 150 Wash. 2d 337, 352, 77 P.3d 1174
(2003).
Moreover, the trial court's determination of Meas's monthly net
income was within the range of the evidence presented. For example,
bank statements for Meas's personal account show cash deposits totaling
approximately $9,419.14 in June 2012 and $10,900 in July 2012. And the
trial court found that, in 2008, Meas reported monthly net income of $8,425
on a mortgage loan application, despite the fact that Meas has been in the
5 We use June 2012 as an example because it was the only whole month for
which Meas provided statements from both his business and personal accounts.
6 These calculations are made difficult by the confusing nature of Meas's
finances. Some payments made from his business account are clearly personal
expenses, such as Meas's Lexus, cell phone, restaurants, and personal credit cards.
Some payments are clearly business expenses, such as baking and food supplies.
Some payments, such as those for Internet services or to Costco and Fred Meyer, could
be either personal or business expenses. In making this calculation, we include
expenses that could only be characterized as personal.
7
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donut business since 2006.7 "If a trial court's finding is within the range of
the credible evidence, we defer." In re Marriage of Rockwell, 141 Wash. App.
235, 248, 170 P.3d 572 (2007).
IV
Meas contends that the trial court erred in denying his request for an
award of attorney fees. He argues that he was entitled to fees because he
was the prevailing party regarding the parenting plan. But "except in the
event of an award of attorney fees against the State, RCW 26.26.140 does
not require that attorney fees be awarded only to a prevailing party." State
v. Weston, 66 Wash. App. 140, 148, 831 P.2d 771 (1992).
Meas also challenges the trial court's award of attorney fees for
intransigence.8 He contends there was insufficient evidence to support a
finding of intransigence and the court entered inadequate findings to
support the award.
A trial court may award reasonable attorney fees if one party's
intransigence increased the other party's legal fees. In re MarriacLe of
Burrill, 113 Wash. App. 863, 873, 56 P.3d 993(2002). The determination of
intransigence rests on the specific facts of each case, but may involve
"foot-dragging," obstruction, the filing of unnecessary or frivolous motions,
7 Meas does not expressly challenge this finding. It is a verity on appeal. Morris
v. Woodside, 101 Wash. 2d 812, 815, 682 P.2d 905(1984).
8 Meas does not challenge the amount of attorney fees awarded and we do not
address it.
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a refusal to cooperate with the opposing party, refusal to comply with
discovery requests, and any other conduct that makes the proceeding
unduly difficult or costly. In re Marriage of Greenlee, 65 Wash. App. 703,
708, 829 P.2d 1120 (1992). We review an award of attorney fees based on
intransigence for an abuse of discretion. In re Marriage of Bobbitt, 135 Wn.
App. 8, 29-30, 144 P.3d 306 (2006).
Here, the trial court's order provided:
Both parties have incurred substantial attorney fees, and both
requested an award for attorney fees. I chose to award petitioner
$25,000 in attorney fees, which is reflected in the judgment
summary on the first page of the child support order. While both
parties have the ability to pay their own attorney fees, and arguably
both could afford to also pay the opposing party's fees as well, I
intended by this award to address the respondent's
intransigence in consistently failing to provide complete and
accurate financial records which were clearly requested in
discovery and in deliberately misrepresenting both his income and
contributions toward the support of [L.P.].
The trial court's finding of intransigence is supported by the record.
Meas did not provide financial records in response to discovery, requiring
Palpong to schedule a discovery conference. And the financial records
that Meas ultimately did provide were incomplete. For example, Meas only
provided bank statements for his business account from February to
December 2012 and July to September 2013. The only full month for
which Meas provided a bank statement for his personal account was June
2012. He also provided statements for parts of May, July, August and
September 2012 and for parts of April, May, June and July 2013. Meas did
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not provide any credit card statements or evidence of a credit line, nor did
he disclose the amount of rental income he received.
Moreover, the trial court found that Meas misrepresented the
amount of child support he had paid. Though Meas contends that he was
simply unable to obtain copies of old checks from his bank, the trial court
specifically found this claim not credible. Under the circumstances, Meas
fails to demonstrate that the trial court abused its discretion in awarding
attorney fees for intransigence.
Meas argues that the trial court erred in failing to segregate the fee
amounts due to intransigence. When awarding fees for intransigence, the
court should segregate the fees caused by the intransigence from those
incurred for other reasons. In re Marriage of Crosetto, 82 Wash. App. 545,
565, 918 P.2d 954 (1996). Segregation is not required, however, if
intransigence permeates the entire proceedings. Burrill, 113 Wash. App. at
873.
Here, the trial court found that Meas was intransigent for
"consistently failing to provide complete and accurate financial records."
This is equivalent to a finding characterizing Meas's intransigence as
pervasive. Moreover, the sole issue addressed in the trial by affidavit was
child support. Meas's failure to provide complete and accurate financial
records fundamentally affected the trial court's ability to determine his net
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income. Because Meas's intransigence permeated the entire proceedings,
the trial court was not required to segregate the fees.
V
Both parties request attorney fees on appeal. Meas requests fees
based on RCW 26.26.140 and Palpong requests fees based on Meas's
intransigence during the appeal. We exercise our discretion and decline to
award either party attorney fees on appeal.
We remand for the trial court to recalculate the award of back child
support. In all other respects, we affirm.
WE CONCUR:
cj.-
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