Opinion
No. 36068-3-II.
May 6, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 02-3-01770-1, Edwin L. Poyfair, J., entered March 1, 2007.
Reversed and remanded by unpublished opinion per Hunt, J., concurred in by Houghton, C.J., and Penoyar, J.
Hassan Siddiqi appeals the trial court's corrected order of child support following his CR 60 motion. He argues that the trial court erred when it (1) set his monthly transfer payment at $264 a month, asserting that this amount did not adequately account for the shared residential time; and (2) refused to credit all of his excess payments against his child support transfer payment amounts. We hold that (1) the trial court's findings do not support the court-ordered $264 transfer payment, which imposed over 80 percent of the basic cost of the child's care on Hassan even though the parents had equal residential time with the child; and (2) the trial court erred when it refused to consider whether Hassan was entitled to credit for past child support overpayments. Accordingly, we vacate the February 2, 2007 corrected child support order and remand for further proceedings.
We use the parties' first names for clarity. We intend no disrespect.
Hassan also argues that the trial court erred when it "modified" the October 2005 child support order rather than vacating it. The record suggests that Hassan's CR 60 motion was a CR 60(a) motion to correct the October 2005 order to reflect the trial court's original intentions rather than a CR 60(b) motion to vacate the order; but, because we vacate the corrected child support order on other grounds, we do not address this issue.
FACTS I. Original Child Support Order
Hassan and Zohra Siddiqi married on July 3, 1998. Their daughter Z.S. was born November 2, 1999. The couple separated in August 2001. Following a hearing on July 27, 2005, the trial court orally ruled that each parent would have equal residential time with Z.S. on a rotating bi-weekly schedule. The trial court also stated that Zohra or Zohra's parents could care for Z.S. on the days she was in Hassan's physical custody when Hassan was working.
Addressing child support, Zohra's counsel mentioned "residential credit." The trial court responded:
Oh, well, certainly. That's the transfer payment. Oh, that's going to be taken into consideration on a 50/50. It's going to be 50/50 and it's going to be whatever the overage is when you do the calculations.
. . . .
I'm not going to deduct any — it's going to be — excuse me — you have both incomes, you each have the child 50 percent of the time, and there is where it's going to lie. I'm not going to take any additional off.
Report of Proceedings (RP) at 181-82.
On October 7, 2005, the trial court entered the final child support order, incorporating the child support worksheet presented by Zohra's counsel. Neither Hassan nor his counsel was present at the October 7, 2005 hearing, and neither signed the October 2005 child support order.
The worksheet incorporated into the October 2005 child support order showed that (1) the parents' total combined monthly income, including income imputed to Zohra, was $5,757.98; (2) based on this combined income, the total basic child support obligation was $825; and (3) based on their respective incomes, Hassan was responsible for 66 percent, or $544.50, and Zohra was responsible for 34 percent, or $280.50, of the total basic child support obligation. Although the trial court had discussed adjusting the child support obligations based on the 50/50 shared residential custody, the worksheet and the October 2005 order did not adjust either party's child support obligation based on either 50/50 or actual shared residential time; nor did it reflect that Hassan was paying Z.S.'s health insurance premiums.
Because Zohra was voluntarily unemployed, the trial court imputed her income.
The trial court's October 2005 order required Hassan to pay Zohra the full amount of his proportional child support obligation, $544.50 monthly, retroactive to August 1, 2005. This order also required Hassan to provide health insurance coverage for the child but it did not credit his payments against his $544.50 transfer payments. Hassan did not question this child support order until almost a year later.
II. "Corrected" Child Support Order
On September 29, 2006, represented by different counsel, Hassan filed a CR 60 motion challenging the October 2005 child support order. Hassan did not specify whether he was bringing his motion under CR 60(a) or (b).
A. CR 60 Motion
The trial court heard the motion on January 5, 2007. In his motion and at the hearing, Hassan asserted that (1) there had been a significant delay between the time the child support order should have been entered in August 2005, and the date it was finally entered on October 7; (2) consequently, he was out of town when the trial court entered the October 2005 order; (3) he had since reviewed the proceedings and found that "several provisions as ordered at the trial that were either omitted or addressed incorrectly in our final orders"; and (4) the final orders should be corrected to reflect the oral ruling. Hassan proposed a variety of "corrections" to the parenting plan, order of child support, decree of dissolution, and property division, which he asserted reflected the trial court's previous oral ruling.
The corrected orders filed in response to Hassan's other challenges, unrelated to child support, are not at issue in this appeal.
Hassan stated that he had overpaid child support during the preceding 15 months and that the transfer payment in the October 2005 order was excessive because it did not reflect the 50/50 shared custody arrangement. In support of his CR 60 motion, Hassan submitted a worksheet similar to the one the trial court had used to support its final order, with the following exceptions: It (1) contained some minor rounding differences; (2) stated that the total basic child support obligation for both parents was $837 rather than $825; (3) calculated Hassan's share of the basic child support at 66 percent; (4) credited him with $22 for health insurance premiums; (5) calculated Hassan's total monthly basic child support obligation to be $531; and (6) calculated Zohra's share of the basic child support at 34 percent for a total monthly obligation of $284.
Hassan's worksheet also attempted to determine the "shared custody adjustment" to the child support payments by applying what it referred to as the "Sum of Days Squared Formula." This formula determined the percentage of time Z.S. spent at each household based on the respective number of "overnights." The resulting calculation showed that Z.S. resided with Hassan 49.7 percent and with Zohra 50.3 percent of the year. The formula then multiplied each party's total proportional monthly obligation by the percent of time Z.S. resided in each household to determine each party's "Net Support Obligation." Using this approach, the worksheet showed that Hassan's "Net Support Obligation" was $264 a month and that Zohra's was $143; it then subtracted $143 from $264 to determine Hassan's monthly transfer obligation of $121 per month.
Zohra did not object to most of Hassan's proposed changes. But she (1) objected to any change in his child support payments; (2) claimed Hassan's assertion that he had custody of Z.S. 50 percent of the time was "highly misleading" because she or her parents cared for Z.S. on the days Hassan worked; (3) asserted that she paid most of Z.S.'s "school extras"; and (4) stated that Hassan consistently refused to pay child care expenses.
During the hearing, Hassan suggested that he was also entitled to credit for overpaying child support from August 1, 2005, on. The trial court immediately stated that it would not credit Hassan for any past over payment and that it intended to address only the corrections Hassan had proposed; it did not explain why it would not consider giving Hassan any credit for overpayment.
B. Presentment Hearing
On February 2, 2007, Hassan presented a "corrected order of child support," proposing that the trial court order him to make a monthly $121 transfer payment to Zohra. Although Zohra agreed to most of the corrected child support order, her counsel objected that Hassan's proposed transfer payment should be $264 rather than $121:
Hassan's proposed order and incorporated worksheet also stated that (1) the basic support obligation was $837; (2) Hassan was responsible for $553, or 66 percent, of the basic support obligation with credit for $22 per month health insurance payments; and (3) Zohra was responsible for $284, or 34 percent, of this obligation. The trial court adopted these portions of the proposed order; Hassan does not challenge these calculations.
My analysis of the instructions for calculating this when you get to residential credit it should be 264, which is one-half, of essentially, or 49.7 percent of his present transfer payment. Why it would be any lower we have no theory except to say their computer spits out that lower number.
In essence, Zohra's counsel was explaining that (1) to adjust for the supposed 49.7/50.3 shared custody, multiply Hassan's 66 percent obligation by 49.7 percent (or roughly 50 percent); and (2) the lower amount stated in Hassan's worksheet was not based on any formula that Zohra's counsel could articulate. The computer program that Hassan's counsel had used to calculate his transfer payment took into account that the child was with each parent for approximately 50 percent of the time, which Zohra's proposed transfer $284 payment did not take into account.
The trial court stated it intended to split the basic child support "50/50." It then asked the parties whether, when the residential schedule is 50/50, "[I]sn't that 50 percent of whatever the transfer payment would have been?" RP at 222. A short time later, the trial court asked what Hassan had paid under the October 2005 order. After Zohra's counsel responded that Hassan paid $531 per month, the court stated, "[W]hat I'm asking is, if I say there should be a deviation of 50 percent on it, isn't it 50 percent of the total that he would have been paying . . . on the transfer?" RP at 223-24. Hassan's counsel attempted to explain that in order to arrive at a 50 percent transfer payment, the trial court also had to subtract half of Zohra's proportional share to account for the time the child was in Hassan's custody.
After a confusing discussion of how a transfer payment is calculated, the trial court stated:
I'm going to leave it at 264. I think that's appropriate. He's cut back 50 percent of what he would normally have paid, and I'm going to leave it at 264. Granted, it says transfer is 121. That's probably correct based on the computer. I — my intent was half of what he was paying.
RP at 230. After the parties signed various documents, Hassan's counsel started to discuss the transfer payment. The trial court interrupted him, stating:
The computer program is correct, all right. The 121 probably in the computer program is accurate. What I'm saying is, my intent was one-half of what he was paying, that was my intent, that's the reason I've left it there.
RP at 233.
At the conclusion of the hearing, the trial court entered the "Corrected order of Child Support," ordering Hassan to pay $264 per month in child support. Paragraph 3.7 of the order provided:
The child support ordered in paragraph 3.5 deviates from the standard calculation for the following reasons:
The child spends a significant amount of time with the parent who is obligated to make a support transfer payment. The deviation does not result in insufficient funds in the receiving parent's household to meet the basic needs of the child. The child does not receive public assistance.
The factual basis for these reasons . . . [t]he child resides 50 [percent] of the time with the father.
Clerk's Papers (CP) at 67. The order further stated that the reduced transfer payment was effective January 1, 2007, and it credited Hassan for any overpayment from January 1, 2007, on.
Hassan and Zohra both filed motions for reconsideration. The trial court denied these motions.
Neither Zohra's motion nor the order denying both motions is in the record before us on appeal.
Hassan appeals the corrected child support order.
ANALYSIS
Hassan argues that the trial court erred when it (1) set his child support transfer payment at $264 rather than $121, and (2) refused to credit him with any overpayment before January 1, 2007. We agree with Hassan that the trial court erred when it set the transfer payment at $264 and conclude that the trial court should have allowed Hassan the opportunity to establish whether it would be equitable to credit him for his past overpayments before January 1, 2007.
I. Transfer Payment Amount
Hassan argues that the trial court abused its discretion in setting his transfer payment at $264 per month rather than $121 per month because (1) the transfer payment did not account for the time Z.S. spent in his custody, which would have reduced the transfer payment amount if properly calculated; and (2) the trial court's findings do not support its deviation from the presumptive child support calculation.
A. Standard of Review
We review a trial court's child support calculation and its grounds for a deviation from the presumptive child support schedule for abuse of discretion. In re Marriage of Bell, 101 Wn. App. 366, 371 n. 8, 4 P.3d 849 (2000) (citing Fernando v. Nieswandt, 87 Wn. App. 103, 111, 940 P.2d 1380, review denied, 133 Wn.2d 1014 (1997)). The trial court abuses its discretion if it exercises its discretion on a ground, or to an extent, that is clearly untenable or manifestly unreasonable. Curran v. Curran, 26 Wn. App. 108, 110, 611 P.2d 1350 (1980) (citing In reMarriage of Nicholson, 17 Wn. App. 110, 114, 561 P.2d 1116 (1977)).
B. Apportionment of Child Support
One purpose of the child support schedule is to apportion the child support obligation equitably between the two parents. RCW 26.19.001.
1. Standard calculation
When calculating child support, the trial court must first determine the standard child support calculation from the economic table set out in RCW 26.19.020. In re Marriage of Rusch, 124 Wn. App. 226, 231, 98 P.3d 1216 (2004) (citing RCW 26.19.020; In re Marriage of Maples, 78 Wn. App. 696, 700, 899 P.2d 1 (1995)), overruled in part on othergrounds by In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013 (2007). This statutory economic table provides the basic support obligation, based on the parents' combined net monthly income. RCW 26.19.020; Rusch, 124 Wn. App. at 231. The trial court then determines each parent's individual support obligation by multiplying the basic support obligation times each parent's proportionate share of their combined monthly income. Id.
2. Deviation
Generally, the child support schedule contemplates that (1) one parent will pay his or her share of support by providing care to the child as the child's primary residential parent, and (2) the nonresidential parent will pay his or her obligation by paying child support to the primary residential parent. See e.g. In re Marriage of Oakes, 71 Wn. App. 646, 649, 861 P.2d 1065 (1993) (noting assumption that residential parent pays balance by housing and raising the child). RCW 26.19.075(1)(d) provides, however, that the trial court can deviate from the standard calculation "if the child spends a significant amount of time with the parent who is obligated to make a support transfer payment," to the extent the deviation will not "result in insufficient funds in the household receiving the support to meet the basic needs of the child or if the child is receiving temporary assistance for needy families." Deviations from the standard amount are Page 10 exceptions. And the trial court should use them only if it would be inequitable not to do so. In re Marriage of Goodell, 130 Wn. App. 381, 391, 122 P.3d 929 (2005) (citing In re Marriage of Burch, 81 Wn. App. 756, 760, 916 P.2d 443 (1996)).
In determining such deviation from the standard child support calculation,
the court shall consider evidence concerning the increased expenses to a parent making support transfer payments resulting from the significant amount of time spent with that parent and shall consider the decreased expenses, if any, to the party receiving the support from the significant amount of time the child spends with the parent making the support transfer payment.
RCW 26.19.075(1)(d). Accordingly, the trial court must enter "findings that specify reasons for any deviation . . . from the standard calculation made by the court." RCW 26.19.075(3); see also RCW 26.19.035(2).
3. Allocation of child support obligation
The trial court set Hassan's transfer payment in an amount that deviated from the standard calculation, intending to account for the parents' shared residential time with the child. But it did not make the required statutory findings to justify such a deviation.
In assessing whether the trial court abused its discretion in setting Hassan's transfer payment, we consider the trial court's actions against the backdrop of RCW 26.19.075(1)(d). First, there was no designated primary residential parent because the trial court found that the parents' care-giving responsibilities were equal, repeatedly articulating that the parenting would be "50/50." Second, the record shows that Hassan's greater income made him responsible for 66 percent of the total basic support obligation. Third, the trial court set Hassan's monthly transfer payment to Zora at $264, which resulted in Hassan's being responsible for more than 80 percent of the total basic child support obligation.
Zohra argued below that the care-giving responsibilities were not, in fact, equal because she or her parents cared for Z.S. on the days. Hassan was at work, even though Z.S. was legally in his care. The trial court's rulings did not recognize this argument. The record before us does not include any documentation from Zohra to support his argument. Nor does she raise this issue on appeal.
Hassan's responsibility for 66 percent of the total basic support obligation would have resulted in a transfer payment of $552.42 if Zohra provided all of the child's care and Hassan had provided none. But such was not the case.
Rather, Hassan's 66 percent of the $837 basic child support obligation would yield $552.42 as his share of the basic child support obligation. But because he has Z.S. approximately 50 percent of the time, he is credited with providing 50 percent of the basic child support obligation, or $418.50. To compute his transfer payment to Zohra, the trial court should have subtracted $418.50 from $552.42, which would have resulted in a transfer payment of $133.92, absent other justified deviations, credits, or adjustments.
But in ordering Hassan to make a monthly $264 transfer payment to Zohra, the trial court made him responsible for $682 per month, or 81 percent of the total financial obligation, significantly more than the 66 percent share attributable to Hassan's higher income.
But the trial court did not explain why it made Hassan responsible for more than 80 percent of the total basic child support obligation. For purposes of calculating a child support transfer payment, RCW 26.19.075(1)(d) requires the court to use a starting point as if the child spends 100 percent of her time with one parent and then make appropriate findings about increased and decreased expenses depending on the amount of time the child spend with each parent. But in setting the transfer payment, the trial court here made no specific finding that it considered "the increased expenses to [Hassan] resulting from the significant amount of time [Z.S.] spent with [him]" or "the decreased expenses, if any, to [Zohra] from the significant amount of time the child spends with" Hassan.
The trial court's ordering Hassan to make monthly $264 transfer payments ultimately gave Zohra access to more than 50 percent of the funds required to meet the $837 basic child support obligation, even after taking into account her significantly lower income. Zohra's proportional child support obligation was $284. When her $284 obligation combines with Hassan's $264 transfer payment, she has access to $548 in child support, well over 50 percent of the total basic child support obligation of $837. Thus, unless there was an articulated legitimate reason for providing Zohra with these extra funds, the trial court's allocation of child support obligations between the two parents was not equitable and the record does not support it.
Regardless of whether the trial court so intended, it deviated from the standard child support obligation without "provid[ing] `specific reasons for deviation' in written findings of fact," which the evidence must support. Bell, 101 Wn. App. at 371-72 (citing RCW 26.19.075(2)). Moreover, the findings trial court did enter do not explain why it made Hassan responsible for more than 80 percent of Z.S.'s basic support obligation. At best, its findings support a transfer payment of roughly $135, not $264.
Although the trial court could have intended this disparity to recognize that Zohra or her parents cared for Z.S. while Hassan was at work, the trial court's findings do not articulate or suggest such an intent or determination.
This amount does not include the credit Hassan should receive for providing health care insurance for Z.S.
Because the trial court's findings do not meet the requirements of RCW 26.19.075(2) and do not support the deviation from the standard child support calculation, we vacate the "corrected" child support order of February 2, 2007, and remand. On remand, the trial court should exercise its discretion and determine how to apportion the child support equitably between the parties in light of their disparate incomes, the shared residential arrangement, extra expenses born by each party, and any other pertinent factors. The trial court should then enter appropriate written findings in compliance with applicable statutes.
II. Credit for "Overpayment" Before January 1, 2007
Without citation to authority, Hassan also argues that the trial court erred when it failed to credit him for alleged overpayments he made under the October 2005 child support order before January 1, 2007. Although, the record shows that Hassan had overpaid child support since August 1, 2005, the effective date of the October 2005 order, the trial court flatly, and without explanation, refused to consider giving Hassan credit for any such overpayment before January 1, 2007, even though it did allow him credit for overpayments after that date.
Nevertheless, the record does not show that Hassan argued or proved to the trial court that any portion of his excess child support payments was not expended to support Z.S. or that reimbursement of his overpayments would not cause an "undue hardship upon the receiving parent or the child." See e.g., In re Marriage of Stern, 68 Wn. App. 922, 932-33, 846 P.2d 1387 (1993). Perhaps the record is silent on this point because the trial court summarily informed Hassan that it would not consider awarding any credits for overpayment before January 1, 2007. Thus, on remand, the trial court should give Hassan the opportunity to establish whether it would be equitable to credit him for some or all of his past overpayments before January 1, 2007.
III. Conclusion
We hold that the trial court abused its discretion in setting Hassan's transfer payment at $264 per month because (1) it either inadvertently miscalculated Hassan's child support transfer payment, or (2) it failed to enter finding sufficient to support its unarticulated reasons for deviating from the standard child support calculation.
Accordingly, we vacate the February 2, 2007 corrected child support order and remand to the trial court (1) to exercise its discretion in determining how to apportion the child support equitably between the parties in light of their disparate incomes, the shared residential arrangement, extra expenses born by each party, and any other pertinent factors; (2) to enter appropriate written findings in compliance with applicable statutes; and (3) to allow Hassan the opportunity to establish whether it would be equitable to credit him for some or all of his past overpayments.
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.
HOUGHTON, CJ., PENOYAR, J., concur.