Opinion
No. 30648-4-II
Filed: November 9, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Grays Harbor County. Docket No. 94-3-00109-4. Judgment or order under review. Date filed: 06/09/2003. Judge signing: Hon. F Mark McCauley.
Counsel for Appellant(s), Jack Lee Burtch, Attorney at Law, 218 N Broadway St, PO Box a, Aberdeen, WA 98520-0247.
Counsel for Respondent(s), Jon Charles Parker, Attorney at Law, 813 Levee St, PO Box 700, Hoquiam, WA 98550-0700.
Rebecca Lynne Bernard, Grays Harbor Co Pros Office, 102 W Broadway Rm 102, Montesano, WA 98563-3616.
Richard McKinney, Sr. appeals modification of child support. He argues the State lacked standing to file a petition for modification, the hearing was inadequate, the evidence does not support the findings and conclusions, and the modification should not have been retroactive. We disagree and affirm.
FACTS
On February 22, 1994, Kelly Day (mother) and Richard McKinney, Sr. (father) petitioned the trial court to adopt a parenting plan and a child support order for their two children. McKinney had previously acknowledged paternity. On July 11, 1994, the court entered the order of child support. On September 1, 1998, and again on June 21, 1999, the court entered modified orders of child support. At times throughout this period, the children were on public assistance, for which McKinney owed the State back support.
In May 1998, at Day's request, the State filed a petition for modification of child support. The court entered an order modifying child support in September 1998. In October 2002, the State again petitioned for child support modification. McKinney's attorney filed a notice of appearance. The trial court continued the matter so the parties could gather and present all their pay stubs, all 2003 pay stubs for other adults living in the respective households, their 2002 tax returns with all W-2 wage statements and 1099 forms, and financial declarations. Day, also represented by counsel, joined the State's motion for modification.
Day submitted the requested financial information from her and her new husband, Tony Cooper. The State submitted the updated employment security records for Day and McKinney, together with a child support worksheet. McKinney filed a response brief, including the financial paperwork for himself and Janet Bucy, the woman with whom he was living. Based upon the supplemental information, the State requested revision of the motion for modification. Neither party requested permission for oral testimony.
The trial court heard arguments from both parents and the State about the proposed support modifications. The court ruled, `I have reviewed the law and the materials submitted by all parties. The State had the authority to file the petition for support modification, and Ms. Cooper [the mother] properly joined in this action. I am going to adopt the calculations prepared by Ms. Bernard [the prosecuting attorney].' Clerk's Papers (CP) at 288.
On June 9, 2003, the court entered the order on modification of child support (findings and conclusions) and the order of child support. Because McKinney's income had increased and the children were older, the trial court increased McKinney's support obligation from $634 per month to $991 per month, effective October 31, 2002.
McKinney appeals this latest order of child support.
ANALYSIS I. Standing
McKinney argues that the trial court erred in modifying child support because the Grays Harbor Prosecuting Attorney's Office lacks standing to petition for child support modification for children, such as these, who are not receiving public assistance. We disagree. McKinney attempts to defeat the State's standing by relying on RCW 26.26.505, which addresses standing in a proceeding to adjudicate parentage. His reliance is misplaced because the court is not adjudicating parentage here; rather, it is modifying a child support order. Chapter 74.20 RCW contains the statutes that govern establishing, enforcing, and modifying child support orders.
Chapter 74.20 RCW provides generally for the support of dependent children. RCW 74.20.220 provides in pertinent part:
In order to carry out its responsibilities . . . the state department of social and health services, through the attorney general or prosecuting attorney, is hereby authorized to:
. . . .
(3) Petition the court for modification of a superior court order when the office of support enforcement is providing support enforcement services under RCW 74.20.040.
RCW 74.20.040(2) provides, `The secretary [of DSHS or the secretary's designee] may accept a request for support enforcement services on behalf of persons who are not recipients of public assistance and may take appropriate action to establish or enforce support obligations against the parent or other persons owing a duty to pay moneys.' In addition, RCW 74.20.220(7) specifically provides, `Nothing in this section limits the authority of the attorney general or prosecuting attorney to use any and all civil and criminal remedies to enforce, establish, or modify child support obligations whether or not the custodial parent receives public assistance.' Read together, these statutes unambiguously allow a prosecutor to petition the court for modification of a support order, even when the family is not receiving public assistance.
These requests are conditioned on payment of an established fee. RCW 74.20.040(2).
McKinney further argues that it is unconstitutional to use the State's services for families who do not receive public assistance. He cites (1) Wash. Const. art. 7, sec. 1 amend. 14, which states that taxes must be collected for public purpose; (2) art. 8, sec. 5, which prohibits giving State credit to an individual; and (3) the dissenting opinion in Johnson v. Johnson, 96 Wn.2d 255, 268-74, 634 P.2d 877 (1981). The majority in Johnson resolved this issue contrary to McKinney's position, holding that RCW 74.20.040 does not violate Wash. Const. art. 7, sec. 1, or art. 8, sec. 5 and it is constitutional for the State to enforce a child support order, even on behalf of children who are not on public assistance. Johnson, 96 Wn.2d at 268. Thus, a prosecutor's authority to petition for modification of a support order is constitutional, even where, as here, the children are not on public assistance.
In Johnson, the father was ordered to pay child support. Johnson, 96 Wn.2d at 257. When the father failed to pay, the mother asked the Department of Social and Health Services to institute collection procedures. Johnson, 96 Wn.2d at 257. The father challenged the constitutionality of the State's authority to enforce the support order because the children were not receiving public assistance. Johnson, 96 Wn.2d at 258. In finding the State's authority under RCW 74.20.040 constitutional, the Court ruled:
Where minor children are involved, the state's interest is that, in so far as is possible, provision shall be made for their support, education, and training, to the end that they may grow up to be worthy and useful citizens.
To protect those interests, the State has been permitted to expend public monies even when the child is not receiving public assistance. Such expenditures are justified because, in many cases, delaying until the child goes on welfare would irrevocably harm the State's interest.
Johnson, 96 Wn.2d at 263 (citations omitted).
We hold, therefore, that the Grays Harbor Prosecuting Attorney's Office has authority under RCW 74.20.220 to petition for modification of a support order in response to a request for services under RCW 74.20.040(2), and .220, regardless of whether the family is receiving public assistance. Here, that Day joined in the State's action to modify child support confirms her collaboration.
The record contains no reference to such a request. But we infer that Day made such a request because the children are not receiving public assistance.
II. Hearing
McKinney next argues that the trial court should have held a hearing before modifying the support order because there had been a substantial change in the circumstances of the parties. Neither Day nor the State dispute that circumstances had changed. Moreover, the record shows that the trial court did hold a hearing before modifying the child support order. It appears that McKinney's complaint focuses on the lack of oral testimony at the hearing, rather than the lack of a hearing altogether.
RCW 26.09.175 provides in pertinent part:
(4) At any time after responsive pleadings are filed, either party may schedule the matter for hearing.
(5) Unless both parties stipulate to arbitration or the presiding judge authorizes oral testimony pursuant to subsection (6) of this section, a petition for modification of an order of child support shall be heard by the court on affidavits, the petition, answer, and worksheets only.
(6) A party seeking authority to present oral testimony on the petition to modify a support order shall file an appropriate motion not later than ten days after the time of notice of hearing. Affidavits and exhibits setting forth the reasons oral testimony is necessary to a just adjudication of the issues shall accompany the petition. The affidavits and exhibits must demonstrate the extraordinary features of the case.
Here, the trial court ordered extensive discovery of financial documentation from all parties, including documentation from other adults residing with the respective parents. On May 12, 2003, the court held a hearing that included argument from McKinney's attorney, Day's attorney, and the prosecutor. These procedures appear to comport with the requirements of RCW 26.09.175, which provides that the court should make its decision based on the petition, the answer, affidavits, and worksheets only, unless a party has requested and the court has given authority to present oral testimony. See RCW 26.09.175 (5) and (6).
The record does not show that McKinney requested a hearing with oral testimony as required by the statute. Nor does McKinney claim to have made such a request of the trial court. Moreover, the record shows no extraordinary features of the case warranting oral testimony. Accordingly, we do not review McKinney's argument that the trial court should have taken oral testimony at the child support modification hearing.
We do not review on appeal an alleged error not raised at trial unless it is a `manifest error affecting a constitutional right.' RAP 2.5(a)(3); State v. Scott, 110 Wn.2d 682, 686-87, 757 P.2d 492 (1988). An appellant must show actual prejudice in order to establish that the error is `manifest.' State v. Lynn, 67 Wn. App. 339, 346, 835 P.2d 251 (1992). McKinney has failed to show actual prejudice necessary to establish a manifest error.
Furthermore, in the absence of a timely, statutorily-compliant request for oral testimony, the trial court properly followed the procedures for modification of child support under RCW 26.09.175.
III. Deviation from Standard Support Calculations
McKinney next argues that in modifying child support, the trial court should have considered Day's spouse's income so it could deviate downward from the standard support obligation.
We review a modification of child support for an abuse of discretion, which occurs if the decision is manifestly unreasonable or based on untenable grounds. In re Marriage of Scanlon, 109 Wn. App. 167, 174, 34 P.3d 877 (2001), review denied, 147 Wn.2d 1026 (2002). A court necessarily abuses its discretion if its decision is based on an erroneous view of the law. Scanlon, 109 Wn. App. at 174-75. Such is not the case here.
RCW 26.19.075(1)(a) provides:
Reasons for deviation from the standard calculation include but are not limited to the following:
. . . .
(i) Income of a new spouse if the parent who is married to the new spouse is asking for a deviation based on any other reason. Income of a new spouse is not, by itself, a sufficient reason for deviation;
(ii) Income of other adults in the household if the parent who is living with the other adult is asking for a deviation based on any other reason. Income of the other adults in the household is not, by itself, a sufficient reason for deviation.
. . . .
When reasons exist for deviation, the court shall exercise discretion in considering the extent to which the factors would affect the support obligation.
(Emphases added.)
Here, Day requested child support modification upward, but she did not request deviation from the standard calculation. Although the trial court requested and considered documentation on the parents' new partners' respective incomes, it acted properly under the statute in disregarding Day's husband's income as a reason for deviation. It is a matter of trial discretion to determine when a deviation is warranted. We find no abuse of discretion by the trial court in disregarding Day's new husband's income and deciding not to deviate from the standard support obligation.
In Marriage of Brockopp, for example, the trial court considered the new spouse's income and assets, yet determined deviation was not appropriate. 78 Wn. App. 441, 447, 898 P.2d 849 (1995). On appeal, the court declined to disturb the trial court's decision not to deviate from the standard support schedule. Brockopp, 78 Wn. App. at 447.
McKinney cites Brandli v. Talley, in which the appellate court determined the non-custodial mother could contribute more than the standard support obligation to support her children. 98 Wn. App. 521, 991 P.2d 94 (1999). But Brandli is distinguishable. In Brandli, the custodial father requested an upward deviation in support from the non-custodial mother because the mother had remarried into exceptional affluence. Brandli, 98 Wn. App. at 527. Ms. Brandli had access to her new spouse's earnings and $3,500,000 in his investment account, as well as other liquid assets in bank accounts. Brandli, 98 Wn. App. at 527. In contrast, Day's new husband's gross annual income was $72,568, and there is no evidence of other significant wealth. CP 139. The trial court did not abuse its discretion in declining to take that income into account when determining child support modification.
IV. Findings and Conclusions
McKinney contends the evidence does not support findings 2.1-2.3. We disagree.
Findings of fact are required for all orders of child support, including support modification proceedings. RCW 26.19.035(2); In re Marriage of Wayt, 63 Wn. App. 510, 512-13, 820 P.2d 519 (1991). We review trial court orders to determine if substantial evidence supports the findings of fact or if the trial court made an error of law subject to correction on appeal. In re Marriage of Stern, 68 Wn. App. 922, 929, 846 P.2d 1387 (1993).
Finding 2.1 pertains to jurisdiction. This finding states, `The court has proper jurisdiction over the parties and subject matter of this action for the reasons that follow: There is a Washington Order of Child Support. The responding party presently resides in the State of Washington.' CP at 290. Substantial evidence in the record supports these facts. The original child support order is from Washington. Day, the mother, resides in Washington, at 409 West Baldwin in Aberdeen. McKinney, the father, lives in Washington, at 329 Sylvia Street North in Montesano. As noted above, the State has standing.
Finding 2.2 states, `The child support worksheet and the Order of Child Support which have been approved by the court are attached to these findings and are incorporated by reference.' CP at 290. This finding is supported by the order and worksheet, which are part of the record.
McKinney's real complaint appears to be that the trial court did not use the children's stepfather's income to affect the support modification order. As we discussed above, the trial court did consider the stepfather's income, but exercised its discretion in declining to factor it in to the child support calculation.
Finding 2.3 states:
REASONS FOR MODIFICATION.
The order of Child Support should be modified because:
RICHARD JOEL McKINNEY, the noncustodial parent, has greater income than reflected by the child support amount in the existing order. The children are now in a different age bracket under the Washington State Support Schedule and requires increased child support.
The existing support order needs to be modified to include the appropriate statutory medical insurance provisions and the statutory extraordinary health care costs provisions.
CP at 290-91. Substantial evidence also supports this finding. McKinney's income at the time of the pre-existing order was $3,213 per month; his monthly income at the time of the new order was $3,487. The children were nine and 12 at the time of the pre-existing order; they were 12 and 15 at the time of the new order.
Under RCW 26.19.020, children ages birth to 11 are in a different category than children ages 12 to 18 for purposes of calculating the basic monthly support obligation. RCW 26.09.105 and 26.23.050 require health care provisions for all support orders or modifications. The new order also needed to update the dollar figures under the extraordinary health care paragraph to reflect the adjustments in the parties' income and obligations.
We hold that substantial evidence supports the trial court's findings. We find no reason to disturb them.
V. Effective Date of Support Modification
McKinney asserts the trial court should have made the modification of support effective on June 1, 2003, instead of October 31, 2002. We disagree.
A trial court has discretion to make a child support modification effective upon the filing of the petition, upon the date of the order of modification, or at any time in between. In re Marriage of Pollard, 99 Wn. App. 48, 55, 991 P.2d 1201 (2000). Again, we review a trial court's child support decision for abuse of discretion, recognizing that such decisions are seldom disturbed on appeal. In re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990).
Here, the State filed the petition for modification on October 1, 2002. The State filed the supporting documents in April 2003. The trial court had the discretion to make the modification effective on October 1, 2002, the date the petition was filed, or any date thereafter, even though the supporting documents were not filed until six months later. See Pollard, 99 Wn. App. at 55-56 (trial court did not abuse discretion in setting date petition was filed as child support modification effective date, where worksheets were filed a year later). We hold, therefore, that the trial court in this case did not abuse its discretion in setting the modification date as October 31, 2002.
Affirmed.
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.
MORGAN, A.C.J., and HOUGHTON, J., Concur.