Opinion
No. 26591-9-III
February 23, 2009 UNPUBLISHED OPINION
This is the second time this dissolution case has come before the court. We remanded earlier for additional findings — findings required by RCW 26.19.020, .065, and .080(4) to impose support obligations in excess of the statutory guidelines. The court has now entered the necessary findings. We conclude that they are supported by the record, and we affirm.
FACTS
Bruce Bernhardt and Marta Turksel have three children. They divorced in 1993. The court entered a final parenting plan and a final order for child support. In 2000, Mr. Bernhardt moved to modify the parenting plan and reduce his child support obligation. The court held a hearing and amended the parenting plan and child support order.
Ms. Turksel has remarried and has hyphenated her name to become Marta Turksel-Branch. For consistency and continuity of the case name, she remains Marta Turksel in this appeal.
The court ordered Mr. Bernhardt to pay $1,819.54 monthly for his two minor children. His previous obligation had been $1,080 for his three minor children. The court also ordered Mr. Bernhardt to pay: 79 percent of the parents' two-thirds share of their oldest son's postsecondary educational expenses; 79 percent of the children's extraordinary health care expenses; and long distance transportation expenses to transport the two minor children between Mr. Bernhardt's Idaho home and SeaTac airport.
Mr. Bernhardt appealed. We affirmed the award of Mr. Bernhardt's proportional share of postsecondary educational expenses and extraordinary health care expenses. We also affirmed the trial court's conclusion that Ms. Turksel was not voluntarily underemployed, its decision to enter wage assignment and contempt orders, its award of $8,000 in attorney fees on appeal, and its denial of Mr. Bernhardt's motion to recuse Judge Rebecca Baker. In re Marriage of Turksel, noted at 134 Wn. App. 1063, 2006 WL 2641376, at *12. But we were required to remand "for factual findings and/or a revision in the order for the court's deviation from the standard support guidelines for basic child support and the court's award of total child support in excess of 45 percent of Mr. Bernhardt's net income." Turksel, 2006 WL 2641376, at *12.
The trial court reviewed the exhibits, clerk's papers, and transcripts from the 2002 trial; the court heard additional argument from the parties but did not receive additional evidence. It then entered further findings of fact, conclusions of law, and an order on remand regarding child support. The court amended its 2002 order and ordered Mr. Bernhardt to pay $1,500 for his basic child support for the two youngest children. The court also amended Mr. Bernhardt's postsecondary support obligation to require him to pay 79 percent of two-thirds of the oldest son's college expenses based on the highest cost public institution of higher education in Washington state. Clerk's Papers (CP) at 197-98.
Mr. Bernhardt appeals.
DISCUSSION
Earlier Proceedings
We largely affirmed the decision of the trial court. Turksel, 2006 WL 2641376, at *2, *3, *7, *8, *10, *11, *12. We remanded only for entry of statutorily required findings on the court's award of child support in excess of the advisory tables set out in the statute — findings required by the statute. Id. at *4, *6; RCW 26.19.020, .065, .080(4). We remanded for further fact finding for one reason only — the failure of the trial court to enter these statutorily required findings of fact to support a basic child support award in excess of the standard support tables and a total child support obligation in excess of 45 percent of Mr. Bernhardt's net income. Turksel, 2006 WL 2641376, at *12.
So the only questions before us now are: (1) whether the court considered the appropriate factors, and (2) whether those considerations, in the form of findings of fact, are supported by the record. Mr. Bernhardt would have us conclude that the findings the court relied on are not supported by the record and that the court did not consider the appropriate statutory factors — that is, that the findings even if correct do not warrant the support award.
Necessity of New Hearing
Mr. Bernhardt first argues that our order required that the court hold a hearing and take more evidence. It did not. We remanded simply to require the court to do what the statute required — enter findings sufficient to support the award of support in excess of the schedule and, if necessary, in excess of 45 percent of Mr. Bernhardt's net income. Id.
We remanded "for factual findings and/or a revision in the order for the court's deviation from the standard support guidelines for basic child support and the court's award of total child support in excess of 45 percent of Mr. Bernhardt's net income." Id. The trial court satisfied the statute in setting Mr. Bernhardt's basic and total child support obligations. RCW 26.19.020, .065, .080(4).
Findings on the Necessary Factors
Mr. Bernhardt argues that the findings do not address the factors necessary to support the court's award of support in excess of that suggested by the statutory guidelines. Again, we review a trial court's decision to modify child support obligations for abuse of discretion. In re Parentage of Fairbanks, 142 Wn. App. 950, 955, 176 P.3d 611 (2008). But that discretion is not unfettered.
Indeed, in recent years the legislature has required consideration of specific factors by trial judges to support what had been traditionally discretionary decisions in domestic relations matters. See, e.g., RCW 26.09.405-.560 (requiring courts to consider 11 factors in deciding a relocation petition); RCW 26.09.090 (providing factors for courts to consider in granting a maintenance award). An important public policy question is whether this is a good thing or a bad thing. That important discussion should not, of course, be a topic in a judicial opinion. Our job here is to identify those statutorily required factors, see RCW 26.19.020, .065, and .080(4), then decide whether the court considered them; and finally decide whether those considerations (in the form of findings of fact) are supported by the record.
An award of child support first requires the trial court to set the basic child support obligation. RCW 26.19.020; In re Marriage of McCausland, 129 Wn. App. 390, 405, 118 P.3d 944 (2005), rev'd on other grounds, 159 Wn.2d 607, 152 P.3d 1013 (2007). The award is based on the parents' combined monthly net income and the number and age of their children. RCW 26.19.011(1). RCW 26.19.020 provides the economic table for determining the support obligation; the table is "presumptive for a combined monthly net income of $5,000 or less and advisory but not presumptive for a combined monthly net income of more than $5,000." McCausland, 159 Wn.2d at 611 (citing RCW 26.19.020, .065). The table provides support obligations only up to a combined monthly net income of $7,000. RCW 26.19.020.
A trial judge has the discretion to order a basic child support amount that exceeds the economic table when the parents' combined monthly net income is greater than $7,000. RCW 26.19.020, .065. However, to do so, the court must make written findings of fact to support the amount and, in making such findings, consider at minimum the factors set out in In re Marriage of Daubert and In re Marriage of Rusch. McCausland, 159 Wn.2d at 621. The Daubert/ Rusch factors include "(1) the parents' standard of living and (2) the children's special medical, education, or financial needs." McCausland, 159 Wn.2d at 620. These factors evolve out of the child support schedule's statement of intent. Id. at 621. The trial court may rely on additional factors in preparing its findings of fact to support a higher award. Id.
In re Marriage of Daubert, 124 Wn. App. 483, 99 P.3d 401 (2004), abrogated on other grounds by McCausland, 159 Wn.2d 607; In re Marriage of Rusch, 124 Wn. App. 226, 98 P.3d 1216 (2004), abrogated on other grounds by McCausland, 159 Wn.2d 607.
A parent's " total child support obligation" may not exceed 45 percent of his or her net income unless good cause is shown. RCW 26.19.065(1) (emphasis added). A parent's "total child support obligation" necessarily includes additional support payments made in excess of the "basic child support obligation." RCW 26.19.011(1), .065(1); McCausland, 129 Wn. App. at 412; Daubert, 124 Wn. App. at 502. Additional support payments include extraordinary health care expenses, long distance transportation costs, and postsecondary education support. RCW 26.19.080(2), (3), .090; Daubert, 124 Wn. App. at 502, 505. The record must include what those costs are generally when a court orders a parent to pay expenses in excess of the basic child support obligation. McCausland, 129 Wn. App. at 412. And the court "must consider each parent's ability to share those expenses in light of their economic circumstances and in light of their total child support obligation." Id. (citing RCW 26.19.001, .065(1)); see Daubert, 124 Wn. App. at 495.
The court's findings of fact include those that address the necessary statutory findings:
Finding of fact (2)(b): The parties' combined net monthly income exceeds $7,000. The father's portion of the total resources available from earnings is 78.6 percent while the mother's is 21.4 percent. CP at 190.
Finding of fact (2)(c): "Both parents at the time of the 2002 trial enjoyed a middle-to upper middle-class standard of living over the several years leading up to the . . . trial." The father earns considerably more than the mother. However, the children's stepfather, the mother's current husband, "was filling in the gaps caused by a combination of the mother's modest income and the father's resistance to increasing child support and, at times, even refusing to pay what was already ordered." CP at 190.
Finding of fact (2)(d): The parties' oldest son attends a private university that charges significantly more tuition than a state university. However, a Washington state institution cap applies to the father's obligation to support the children's postsecondary education. Applying that cap, Mr. Bernhardt must contribute 79 percent of two-thirds of the annual cost of attending the University of Washington toward the oldest son's private school costs. CP at 190-91.
Finding of fact (2)(e): Both parents have college educations as well as graduate training in their respective fields, and they share the expectation that their children also attend college. The father's objections to the oldest son's attendance at a private university conflict with most middle class parents' anticipation of "some debt or belt-tightening when facing the prospect of sending a successful child to a good college or university." CP at 191.
Finding of fact (2)(f): All three children are high achievers who are involved in a variety of activities and live on an island with higher living and transportation costs. Historically, the mother has been more likely to cover the children's periodic financial needs while the father has demonstrated a reluctance to pay for the children's increased expenses as they get older, such as orthodontia and higher education. The father's reluctance to volunteer additional financial support is also demonstrated by "his choice to retire early and thus present to the court at trial a substantially lesser income than he is capable of making." CP at 192.
Finding of fact (2)(g): Both older children needed orthodontic treatment. Following a motion for contempt after the 2002 trial, the court ordered the father to pay $1,475.48 to the daughter's orthodontist for treatment that took place over two years. "[T]he father's proportionate share of extraordinary health care expenses . . ., based on past expenses for [the daughter] would likely not exceed . . . $61.48 per month." CP at 192.
Finding of fact (2)(h): The parties presented scant evidence at trial regarding transportation expenses. Considering sample airfares in the record alongside 2002 per mile gasoline costs of which the court took judicial notice, the father should appropriately pay a total of $612.20 for his two younger children to visit. Given that the father receives the children approximately five times per year, the total annual transportation costs would be approximately $3,061. CP at 193.
The trial court's findings of fact address the Daubert/ Rusch factors. See RCW 26.19.001; McCausland, 159 Wn.2d at 620 (citing Daubert, 124 Wn. App. at 495-96; Rusch, 124 Wn. App. at 233). And the court's conclusions are consistent with the findings regarding the children's medical, educational, and financial needs and the parents' standards of living.
Necessary Findings Supported by the Evidence
Mr. Bernhardt argues nonetheless that the findings are not supported by the record. We, of course, need only address his challenge to those findings we conclude support the court's decision to impose a support obligation beyond the schedule.
As stated above, a court must consider the Daubert/ Rusch factors in making a decision to exceed the economic table. McCausland, 159 Wn.2d at 620. Those two factors are: "(1) the parents' standard of living and (2) the children's special medical, educational, or financial needs when entering its written findings of fact." Id. The findings that the trial court made regarding these two factors are supported by sufficient evidence in the record.
Mr. Bernhardt contests the trial court's finding in (2)(e) that both Mr. Bernhardt and Ms. Turksel expect to financially support their eldest son's postsecondary educational expenses "as they are able to." CP at 191. However, Mr. Bernhardt's own trial testimony indicates that he anticipated providing significant support. Report of Proceedings (Mar. 15, 2002) at 35 (stating that each parent bearing one third of their son's college expenses would be fair).
Mr. Bernhardt further disputes the trial court's method of calculating his monthly extraordinary health expenses contribution in finding (2)(g). However, Mr. Bernhardt cites no authority for his contention that "[t]he only accurate way to calculate the amount is to review past extraordinary expenses." Br. of Appellant at 17. Instead, the court's determination that the two older children's extraordinary health care expenses, in the form of orthodontic treatment over two years, is supported by the record. See, e.g., CP at 265-67. And the court's extensive discussion in the record of the two older children's orthodontic problems supports the trial court's finding that the youngest of the three children may also need treatment as an adolescent. See In re Marriage of Payne, 82 Wn. App. 147, 152, 916 P.2d 968 (1996) (holding that a trial court reasonably relied on future earnings to determine the present support obligation).
Mr. Bernhardt challenges the court's finding in (2)(h) that $255.08 is Mr. Bernhardt's average per month expense for his two younger children to travel from SeaTac airport to Grangeville, Idaho, to visit Mr. Bernhardt about five times per year. He asserts that this long-distance transportation figure is unrealistically low, does not account for hotel costs, and is unsupported by the record. But Exhibit 57 reflects even lower airfares than the trial court recorded in its finding. So, even building in Idaho hotel stays, the record substantially supports the trial court's finding regarding Mr. Bernhardt's monthly average cost for the two younger children's transportation from Seattle to Idaho. Exs. 17, 42, 57.
Attorney Fees
Ms. Turksel requests reasonable attorney fees and costs under RCW 26.09.140, RAP 18.1, and RAP 18.9.
Mr. Bernhardt did not file a frivolous appeal under RAP 18.9. However, this court also considers the parties' relative abilities to pay. RCW 26.09.140; see In re Marriage of Trichak, 72 Wn. App. 21, 26, 863 P.2d 585 (1993). Given Mr. Bernhardt's apparent ability to bear the costs of this appeal relative to Ms. Turksel's, we award reasonable costs and fees for this appeal to Ms. Turksel, provided she complies with RAP 18.1(d).
We affirm the trial court and award reasonable attorney fees and costs to Ms. Turksel on appeal.
A majority of the panel has determined that 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.
KULIK, A.C.J. and BROWN, J., concur.