In Re The Marriage Of Monique Powell, V Wyatt Powell ( 2019 )

Filed
Washington State
Court of Appeals
Division Two
July 2, 2019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Marriage of No. 50989-0-II
WYATT POWELL,
Respondent,
and UNPUBLISHED OPINION
MONIQUE POWELL,
Appellant.
CRUSER, J. — Monique Powell appeals from an order of child support. Monique1 argues
that (1) the trial court improperly computed Wyatt Powell’s income because it did not include his
overtime income in his income calculation under RCW 26.19.071(3)(e),2 (2) his overtime income
fails to meet the exception under RCW 26.19.071(4)(i),3 and (3) the trial court abused its discretion
by awarding less than reasonable attorney fees. We hold that Monique failed to provide us with a
1
Because the parties share the same last name, we use first names to avoid any confusion.
2
RCW 26.19.071(3)(e) provides monthly gross income shall include, inter alia, overtime, except
as excluded for income in subsection (4)(i) of this section.
3
RCW 26.19.071(4)(i) provides that overtime income from second jobs beyond 40 hours per week
averaged over a 12-month period worked to provide for a current family’s needs, to retire past
relationship debts, or to retire child support debt, when the court finds the income will cease when
the party has paid off his or her debts.
No. 50989-0-II
sufficient record to establish that the trial court abused its discretion when computing Wyatt’s
income and awarding attorney fees. Thus, we affirm.
FACTS
Wyatt and Monique married in 2013 and divorced in 2017. They had one child together.
During their marriage, Wyatt worked full time and Monique stayed home with their child and her
child from a previous relationship.
Wyatt submitted his 2015 and 2016 W-2s to the trial court as income information to be
used to calculate his support obligation. Monique requested the trial court to also consider Wyatt’s
2017 pay stubs when calculating his support obligation. Wyatt’s 2017 pay stubs reflected a
significantly higher gross monthly income due to overtime income payments. The trial court
denied Monique’s motion to consider the 2017 pay stubs.
Wyatt submitted a proposed child support worksheet that based his child support obligation
on his 2016 W-2, which provided a gross monthly income of $7,117. In response to Wyatt’s gross
monthly income of $7,117, Monique all but conceded that Wyatt’s 2016 W-2 included overtime
income:
The court indicated at trial that it would be unlikely to include overtime and
this may be a non-issue since the worksheets provided by Mr. Powell start with [a]
gross income of $7,117, and that’s his total 2016 earnings divided by 12 as shown
on W-2’s provided. It’s not clear where Mr. Powell’s worksheet numbers come
from, but it seems he’s just divided all 2016 income by 12 months, so maybe
overtime isn’t an issue.
....
Mr. Powell’s worksheets start with an income of $7,117, and again, that
seems to be 1/12th of the gross income for 2016 as shown on the W-2’s Mr. Powell
presented (the W-2 presumably includes 2016 overtime).
Clerk’s Papers (CP) at 98, 105 (emphasis added).
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No. 50989-0-II
To the extent that Monique expressed confusion, it was because in her view, “it’s not clear
what part of [Wyatt’s] 2016 income was overtime and what part regular earnings.” CP at 98-99.
At trial, the court had reserved the child support issue for a later hearing. At the post-
decree child support hearing, the trial court found Wyatt to be the obligor parent and set Wyatt’s
gross income at $7,117 per month.
Monique requested that the trial court award attorney fees based on her financial need and
Wyatt’s ability to pay. The trial court awarded a portion of the attorney fees that Monique
requested.
Monique appeals from the order of child support and attorney fees award. Monique
requests that this court remand to recalculate the parties’ child support obligations and Monique’s
attorney fee award.
ANALYSIS
Monique argues that the trial court abused its discretion by excluding Wyatt’s overtime
income from his income calculation as required by RCW 26.19.071(3)(e). Wyatt argues that
Monique did not provide this court with an adequate record to consider her appeal because she did
not provide the record of the verbatim report of proceedings. Because the limited record provided
by Monique fails to support her assignments of error, we affirm.
As a party seeking review, the appellant has the burden to perfect the record so that the
reviewing court has all evidence relevant to the issues presented. RAP 9.2(b). An “insufficient
record on appeal precludes review of the alleged errors.” Bulzomi v. Dep’t of Labor & Indus., 72
Wn. App. 522, 525, 864 P.2d 996 (1994). If an incomplete record fails to affirmatively establish
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No. 50989-0-II
an abuse of discretion, we may affirm the challenged decision if the incomplete record is sufficient
to support the decision. State v. Sisouvanh, 175 Wn.2d 607, 619, 290 P.3d 942 (2012).
I. COMPUTING INCOME
Monique argues that the trial court abused its discretion by excluding Wyatt’s overtime
income from his income calculation. Wyatt argues that this court should decline to review
Monique’s alleged error because Monique failed to provide a verbatim report of proceedings for
the hearing where the trial court ruled that it was not including his overtime in Wyatt’s income
calculation, which leaves this court with no means for reviewing the trial court’s findings and
conclusions supporting its ruling regarding Wyatt’s income calculation. Alternatively, Wyatt
argues that the trial court did not abuse its discretion by refusing to consider Wyatt’s overtime
income when calculating his income for child support purposes.
We review child support orders for an abuse of discretion. In re Marriage of Schnurman,
178 Wn. App. 634, 638, 316 P.3d 514 (2013). The party challenging the trial court’s decision has
the burden of demonstrating that the trial court manifestly abused its discretion. In re Marriage of
Wilson, 165 Wn. App. 333, 340, 267 P.3d 485 (2011).
Because Monique is presenting this issue for review, she has the burden of providing an
adequate record. In re Marriage of Stenshoel, 72 Wn. App. 800, 803, 866 P.2d 635 (1993); RAP
9.2(b). In her statement of arrangements, Monique represents that “no transcript is necessary”
because the “issues raised in this appeal are legal questions decided by the trial court on a motions
calendar at which no testimony was taken.” Statement of Arrangements, In re Marriage of Powell,
No. 50989-0-II, at 1 (Wash. Ct. App. December 7, 2017). In effect, Monique asks us to rely almost
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No. 50989-0-II
entirely on the parties’ trial court briefs to glean information that she presents as settled fact to this
court.
The limited record provided by Monique does not, however, establish that the trial court
abused its discretion. As noted above, Monique complains that the trial court abused its discretion
by declining to include Wyatt’s overtime income in its basic income calculation. Monique’s
argument fails because Monique admits that the trial court’s income calculation in the final support
order—$7,117 per month—includes the overtime Wyatt earned in 2016. Monique’s memorandum
regarding child support states that the monthly income amount derived from Wyatt’s 2016 W-2,
$7,117, represents Wyatt’s “total 2016 earnings divided by 12” and further states that Wyatt’s
2016 W-2 presumably includes 2016 overtime, so it may be a nonissue. CP at 98. Monique
reiterates later in her memorandum that the $7,117 per month “presumably includes 2016
overtime.” CP at 105. A review of Monique’s memorandum regarding child support suggests that
her true complaint to the trial court was its decision to base Wyatt’s income calculation on his total
2016 earnings rather than his earnings from the first half of 2017—an issue to which she does not
assign error in this appeal.
The trial court determined child support obligations after trial in a separate hearing.
However, Monique did not submit the verbatim report of proceedings of the child support hearing.
Without the verbatim report of proceedings, the record on appeal does not contain the trial court’s
reasoning or basis for calculating Wyatt’s income, which would include a discussion of the
purported overtime issue as well as the court’s oral ruling. And based on the record that has been
submitted to us, the trial court did not exclude Wyatt’s overtime income from his income
calculation. Therefore, the record fails to establish that the trial court abused its discretion.
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No. 50989-0-II
Having failed to demonstrate error based on the limited record she provided, Monique’s
claim fails. Therefore, we affirm the trial court.
II. ATTORNEY FEES
Monique argues that the trial court abused its discretion when awarding her attorney fees
because the trial court based the award amount on an incorrect calculation of Wyatt’s income.
Monique also requests an award for attorney fees on appeal. We affirm the trial court’s attorney
fees award and deny Monique’s request for fees on appeal.
We review an award of attorney fees for an abuse of discretion. In re Marriage of Laidlaw,
2 Wn. App. 2d 381, 392, 409 P.3d 1184, review denied, 190 Wn.2d 1022 (2018). RCW 26.09.140
gives courts discretion to award attorney fees based on the financial need of the requesting party
and the opposing party’s ability to pay. Laidlaw, 2 Wn. App. 2d at 392. In awarding fees on
appeal, we examine the merit of the issues on appeal in addition to the financial resources of each
party. In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990).
The trial court granted in part Monique’s request for attorney fees based on her financial
need and Wyatt’s ability to pay. Monique’s declaration established her financial need due to her
modest income. The child support order shows that Wyatt earns a significantly higher income.
However, Monique did not submit a verbatim report of proceedings, and we have no written
findings on the issue of attorney fees in the record. Therefore, we do not have an adequate record
to determine whether the trial court abused its discretion. We affirm the trial court’s attorney fees
award.
Regarding attorney fees on appeal, RAP 18.1(c) requires a party requesting attorney fees
to serve and file a financial affidavit of financial need 10 days prior to the date the case is set for
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No. 50989-0-II
consideration on the merits. Because Monique did not file a financial affidavit of financial need,
we deny Monique’s request for award of attorney fees on appeal.
We affirm the trial court’s attorney fees award and deny Monique’s request for attorney
fees on appeal under RAP 18.1.
CONCLUSION
Monique fails to establish that the trial court abused its discretion when calculating Wyatt’s
income for purposes of child support and awarding attorney fees. Accordingly, we affirm the trial
court’s order of child support and attorney fees award and deny Monique’s request for 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 in accordance with RCW 2.06.040,
it is so ordered.
CRUSER, J.
We concur:
WORSWICK, J.
LEE, A.C.J.
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