Opinion
No. 28918-4-III.
March 22, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Spokane County, No. 07-3-00801-1, Gregory D. Sypolt, J., entered April 1, 2010.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Korsmo, A.C.J., concurred in by Sweeney and Siddoway, JJ.
Thomas Bro challenges the trial court's decision on his partially successful motion to modify his child support obligations. Because the record does not adequately explain why the trial court needed to reduce Mr. Bro's income below the federal poverty line, we affirm in part, reverse in part and remand.
FACTS
The marriage of Thomas Bro and Maria Ricciardelli (formerly Bro) was dissolved in 2007. She was designated as the custodian of the couple's two sons, aged three and one at the time of the dissolution. Clerk's Papers (CP) at 149, 153. The parenting plan left each parent equally splitting the children's residential time on alternating weeks. CP at 150-153. Mr. Bro was ordered to pay $532.84 in monthly support for the children. CP at 158.
Mr. Bro remarried. After losing his job, Mr. Bro moved to modify his support obligation in June 2009. He sought to have the obligation waived on the basis that he was not an obligor because each parent had equal residential time with the children.
The matter was heard by a superior court commissioner. The commissioner found that Mr. Bro was voluntarily underemployed and imputed a monthly income to him of $1,450. The commissioner determined that Ms. Ricciardelli had a monthly income of $1,367. The commissioner declined to waive the payment because the basic needs of the children while living with their mother could not be met, but did reduce the monthly support obligation to $439.
Mr. Bro sought to revise the commissioner's ruling. In addition to his argument that he was not an obligor spouse, he also argued that the support award reduced his income below the statutory self-support limit. The superior court affirmed and adopted the commissioner's findings. Mr. Bro then timely appealed to this court.
ANALYSIS
Mr. Bro renews his two contentions in this appeal — he should not be an obligor in light of the equal residential time and the support payment improperly drops him below the statutory levels. We will address each claim in turn.
Support Obligation. Mr. Bro first contends that the court erred in treating him as an obligor due to the fact that each parent has equal residential time with the children and their incomes are similar. While perhaps those facts could have justified a decision to reduce or eliminate the support obligation, they did not require the trial court to do so.
An order modifying a child support obligation is reviewed for abuse of discretion. In re Marriage of Holmes, 128 Wn. App. 727, 736, 117 P.3d 370 (2005). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Child support is set by statute. The purpose of support is to ensure the child's basic needs are provided for consistent with the parents' income, resources, and standards of living. RCW 26.19.001. The schedules result in a presumptive support amount that is calculated by considering the combined income of the parents, with support allocated according to the proportional shares earned by the parents. RCW 26.19.080(1). Typically, this results in a situation where the custodial parent receives child support from the noncustodial (or obligor) parent. In re Marriage of Oakes, 71 Wn. App. 646, 649, 861 P.2d 1065 (1993). Trial courts have authority to deviate from the schedule, but must enter written findings explaining a decision whether or not to deviate. RCW 26.19.035(2); RCW 26.19.075(1).
One basis for deviating from the guidelines is the children's residential schedule. RCW 26.19.075(d). Deviation is not allowed if it will leave insufficient funds in the household receiving the support to provide for the basic needs of the children. Id. Mr. Bro argues that the trial court erred when it declined to deviate for this reason, relying upon the decision in Holmes.
There the original parenting plan left the child primarily residing with the mother. The father, who was considerably wealthier than the mother, was required to make support payments. Holmes, 128 Wn. App. at 731, 733-734. The parenting plan was later modified to provide that the child would primarily reside with the father. Id. Subsequently, the trial court relieved the father of his support payment, but required him to pay the child's private school, medical, and post-secondary school expenses. The court also ruled that each parent would be responsible for the child's expenses during the period when he lived with them. Id. at 734. The ruling was upheld on appeal because the record indicated that each parent had sufficient income to provide for the child's basic needs when he resided with them. Id. at 741.
Mr. Bro is not situated the same as Mr. Holmes. There, unlike here, the trial court granted the deviation. More importantly, there the trial court found that the mother had sufficient income without a support payment to provide for the child's basic needs. Here, the trial court found to the contrary. CP at 57, 110. That finding was also inherent in the original 2007 decision to order support payments.
Mr. Bro has failed to establish that the trial court abused its discretion under these circumstances. The focus was properly on whether the mother could meet the children's needs if the deviation was granted, rather than whether the parents were being treated equally. The equally shared residential time was set in the original parenting plan. It did not constitute a change of circumstances justifying a deviation from the guidelines.
The court did not err in obligating Mr. Bro to make a transfer payment.
Poverty Level. At argument on the motion for revision, Mr. Bro presented the alternative argument that if he was obligated to make a transfer payment, it should be limited to the statutory minimum of $50 per child because anything else would drop him below the statutory self-support limits. The trial court did not expressly address this argument in denying the motion for revision.
RCW 26.19.065(2) provides:
(2) Presumptive minimum support obligation. (a) When a parent's monthly net income is below one hundred twenty-five percent of the federal poverty guideline, a support order of not less than fifty dollars per child per month shall be entered unless the obligor parent establishes that it would be unjust to do so in that particular case. The decision whether there is a sufficient basis to deviate below the presumptive minimum payment must take into consideration the best interests of the child and the circumstances of each parent. Such circumstances can include leaving insufficient funds in the custodial parent's household to meet the basic needs of the child, comparative hardship to the affected households, assets or liabilities, and earning capacity.
(b) The basic support obligation of the parent making the transfer payment, excluding health care, day care, and special child-rearing expenses, shall not reduce his or her net income below the self-support reserve of one hundred twenty-five percent of the federal poverty level, except for the presumptive minimum payment of fifty dollars per child per month or when it would be unjust to apply the self-support reserve limitation after considering the best interests of the child and the circumstances of each parent. Such circumstances include, but are not limited to, leaving insufficient funds in the custodial parent's household to meet the basic needs of the child, comparative hardship to the affected households, assets or liabilities, and earning capacity. This section shall not be construed to require monthly substantiation of income.
(Emphasis added.)
Mr. Bro is remarried, so he has a household of (at least) two people. At the time of trial court proceedings, the federal poverty level for a family of two was $14,570. One hundred twenty-five percent of that figure is $18,212.50. Subtracting the $439 transfer payment from the imputed monthly income of $1,450, as required by the statute, leaves Mr. Bro with an imputed monthly income of just $1,011, or $12,132 annually. That figure is roughly two-thirds of the statutory minimum.
Mr. Bro argues that as a half-time residential parent of two children, his household should be treated as three people rather than two. Since the correct household size is not relevant to our disposition, and we have not been supplied specific briefing on the issue, we do not address whether or not that is a correct accounting, but leave the issue to the trial court at rehearing.
RCW 26.19.065(2)(b) appears to prohibit that result; at a minimum, it requires the trial court to explain why "it would be unjust to apply the self-support reserve limitation after considering the best interests of the child and the circumstances of each parent." The trial court did not do that here. In fairness to the trial judge hearing the revision, the issue was raised at oral argument rather than in the briefing supplied to the commissioner on the original motion to reduce the support obligation.
Vague reference to the "needs of the children" is insufficient justification. State ex rel. Stout v. Stout, 89 Wn. App. 118, 124, 948 P.2d 851 (1997).
We do not fault Mr. Bro for raising the issue during revision. Until the commissioner ruled on the motion, there was no basis for knowing what the imputed income level and new support level would be, let alone whether they would be in compliance with the self-support limit. It appears that Mr. Bro raised the issue at an appropriate time, although written notice to the trial judge at revision would undoubtedly have been helpful.
The effective result is that the trial court deviated from the self-support limits without explaining why it was appropriate to do so. We therefore reverse the $439 support figure and remand for consideration of the appropriate support payment in light of the self-support limits and the standard for varying from those figures. The court is free to consider appropriate evidence bearing on the "best interests of the child and the circumstances of each parent," including current income levels.
Finally, we deny Ms. Ricciardelli's requests for attorney fees. RAP 18.1(b), (c); Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998); Holmes, 128 Wn. App. at 742.
Affirmed in part, reversed in part and remanded.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, J. and SIDDOWAY, J., concur.