No. 65194-3-I.The Court of Appeals of Washington, Division One.
Filed: February 28, 2011.
Appeal from a judgment of the Superior Court for King County, No. 04-3-01667-7, John Curry, J. Pro Tem., entered March 5, 2010.
Reversed and remanded by unpublished opinion per Schindler, J., concurred in by Grosse and Cox, JJ.
SCHINDLER, J.
Nathan Vetter challenges the child support order entered by the trial court. Vetter contends the court abused its discretion when it imputed income to him to set the amount of support, and violated due process by being biased against him. While we reject Vetter’s claims of judicial bias, we conclude that the trial court’s limited oral findings do not support the decision imputing income. We remand for reconsideration of the child support order and the entry of findings and conclusions based on the proper statutory factors.
FACTS
Nathan Vetter and Jaimee Steele dissolved their marriage in 2004. The parties agreed to an equally shared parenting schedule for their child. Steele, who worked in public relations, had a net monthly income of $3,459. Vetter, a musician and music lesson teacher, earned $2,677. Steele made a monthly transfer payment to Vetter of $442 based on a deviation from the standard support calculation.
In 2008, Steele filed a petition to modify the parenting plan and child support order. In June 2009, the parties agreed to a parenting plan maintaining the shared residential schedule. The parties transferred their dispute regarding child support to the family law calendar reserved for trials on affidavits.
The parties appeared before a court commissioner for trial on December 11, 2009. Although he had previously been represented by counsel, Vetter represented himself. Each party filed pleadings and affidavits contending that the court should impute more income to the other party than they were claiming.
Steele provided documentation showing she was laid off from her public relations job in June 2009, at which she had earned a gross monthly income of $9,400. Since that time, she had earned a gross monthly income of $2,648 operating her own public relations business. She asserted that Vetter’s monthly income had risen to $5,135 based on his 2008 bank deposits and his interrogatory answers, in which he said that he charged $60 per hour for private music lessons. In addition, Steele asserted that Vetter did not report all of his earnings in his income tax returns, and further contended that Vetter’s monthly expenditures suggested he was earning more income than he claimed.
Vetter, on the other hand, claimed that Steele was voluntarily underemployed and should be imputed to have an annual income of $120,600. He challenged the evidence that she had been laid off, notwithstanding that she had received unemployment compensation. He also denied that he could earn $60 per hour full-time since he taught school age students who were only available during limited hours after school and on weekends, and because he received no compensation for his travel time.
The commissioner declined to enter a final order and continued the trial to March 2010, commenting that neither party had provided sufficient evidence to determine their incomes to calculate child support. Apparently anticipating that he would personally preside over the continued trial, the commissioner told Vetter that he would not impute income to him at $60 per hour full-time because of the nature of his music lesson business, but also said Vetter needed to be prepared to show what a reasonable full-time income would be for him. The court’s written order instructed both parties to provide complete financial information, directed Steele to provide proof of job searches, and reminded Vetter that his income would be determined based on full-time employment.
Before the next trial date, Steele filed further declarations. In them, she revised her monthly net income calculation to $4,506 based on the average of her income from her new business from July 2009 to January 2010. She also provided tax returns, bank statements and other documents she had not provided before. In addition, she noted Vetter had recently moved from his long-term girlfriend’s house, even though he maintained his relationship with her, with the result that he did not have to disclose her income under the support statute.
Vetter also filed further materials. He contended that Steele should have income imputed to her based on her single highest monthly earnings at her new business. He also documented a second part-time job earning $10 per hour he had recently taken at a car dealership owned by the leader of a band with which he performed, which brought him to a total of 40 hours work per week. As a result of his music lessons, job at the dealership, and irregular income performing professionally, he calculated his net monthly full-time income as $2,462.
Trial took place on March 5, 2010 before a pro tem commissioner not previously involved in the matter. After initially commenting that the parties had provided an unnecessary amount of written materials, the court heard argument. The court then orally ruled that it would impute income to each party based on the highest amount the opposing party had argued. As a result, in completing the written findings on the support worksheet, the court assigned Vetter a gross monthly income of $10,400 based on an imputed full-time income of $60 per hour. The court assigned Steele an imputed monthly income of $10,050 but ruled that Vetter would not be required to make a transfer payment by granting a slight downward deviation. Although the worksheet provides space for stating why income was imputed, the court left that section blank.
Vetter appeals.
ANALYSIS
Child Support
Vetter contends the trial court abused its discretion in deciding the amount of child support because the court improperly imputed income to him. We agree that, in the absence of relevant written findings, the reasoning the court expressed in its oral decision constituted an abuse of discretion and cannot support the result the court reached.[1] Accordingly, we remand for a new trial and application of the appropriate statutory factors.
In Washington, child support obligations are calculated according to the statutory support schedule. See RCW 26.19.020. The schedule was enacted in order “to insure that child support orders are adequate to meet a child’s basic needs and to provide additional child support commensurate with the parents’ income, resources, and standard of living.” RCW 26.19.001; In re Marriage of Leslie, 90 Wn. App. 796, 803, 954 P.2d 330
(1998). In enacting the schedule, the legislature also “intended to equitably apportion the child support obligation between both parents.” In re Marriage of Ayyad, 110 Wn. App. 462, 467, 38 P.3d 1033 (2002). The schedule sets forth support obligations for each child based on the combined monthly net income of both parents, the number of children in the family, and the age of each child. See RCW 26.19.001.
“When assessing the income and resources of each household, the court must impute income to a parent when that parent is voluntarily unemployed or voluntarily underemployed.” In re Marriage of Pollard, 99 Wn. App. 48, 52, 991 P.2d 1201 (2000) (citing RCW 26.19.020, .035(1)(c), .071(1)). “The court shall determine whether the parent is . . . voluntarily unemployed based upon that parent’s work history, education, health, and age, or any other relevant factors.” Pollard, 99 Wn. App. at 52-53 (citing RCW 26.19.071(6)). If a parent is “`gainfully employed on a full-time basis'” the court may not impute income to that parent “unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent’s child support obligation.” RCW 26.19.071(6).
Under RCW 26.19.035(2), “[a]n order for child support shall be supported by written findings of fact upon which the support determination is based[.]” This requirement applies in support modification proceedings. In re Marriage of Wayt, 63 Wn. App. 510, 512-13, 820 P.2d 519 (1991). We consider whether the court’s findings are supported by substantial evidence, and whether the court made a correctable legal error. In re Marriage of Shellenberger, 80 Wn. App. 71, 80-81, 906 P.2d 968
(1995). In reviewing decisions setting child support, we defer to the sound discretion of the trial court unless that discretion is exercised in an untenable or unreasonable way. In re Marriage of Griffin [Booth], 114 Wn.2d 772, 776, 791 P.2d 519 (1990).
The parties here dispute whether the trial court entered adequate findings. The only written findings are contained in the child support worksheet that assigned income to each party, in which the court left blank the location specifically provided for explaining the reasons for imputing income. Steele nonetheless asserts that the trial court’s oral comments provide a sufficient basis for this court to uphold the trial court’s decision. We disagree.
At the conclusion of the trial, the pro tem commissioner explained that his basis for imputing income to each party was to adopt the highest amount each party had sought to attribute to the other:
What is amazing in this case, is each of you want me to do to the other what you don’t want to be done to yourself, put her at the highest she can be, put him at the highest he could be, but you’re telling me put her at the highest you could be but don’t do it to me. She’s saying put it at the highest he could, but don’t do it to me. I did it to both of you.
You guys have a 50/50 custody situation. You’re wasting a lot of effort and time over this. Both of you are quite capable of taking care of the child on your own. According to [the earlier commissioner’s] 12/11/2009 ruling, the mother was to provide proof of job search to avoid imputation if she chose to open her own business. She did choose to open her own business. What she provided was not job searches. She provided was information regarding jobs, but they were not job searches. I’m going to impute income based on the average of 2007 and 2008 earnings that averages out to $10,050 per month.
As to the father’s income, [the earlier commissioner] ruled the petitioner is on notice his income for support purposes shall be based on full-time employment. As such, I find that he earns $60 per hour at 40 hours per week. His gross income is $10,400 per month.
As Vetter contends, this reasoning does not reflect consideration of the statutory factors. Nor does it provide a justifiable basis for rejecting Vetter’s factual assertions that it was impossible for him to work full-time at his music lesson rate[2] and he thus had to fill out his work week with the only work available to him, the lower paying car dealership job.
Steele nonetheless points to two other excerpts from the brief record of the trial by affidavit, which she argues constitute sufficient findings.
During Vetter’s oral argument at trial, in referring to oral comments the first commissioner had made during the earlier proceeding, Vetter stated that he understood he needed to work full-time. The court responded by saying, “You don’t get to go from, all right, I make $60 an hour for 20 hours a week to $10 an hour at 40 hours a week. That — first of all, that doesn’t even make sense.”
Steele contends that this comment means that the court determined as a matter of credibility that Vetter did not have the part-time car lot job at all. We disagree. It is not clear what the court meant by these remarks because they were not responsive to Vetter’s actual argument. Vetter never claimed to be working full-time at $10 per hour. Rather he argued that he was filling out his work week at the lower paying job because there was no way to teach private music lessons to school children full-time when they are not available during regular school hours. Moreover, Vetter had provided at least minimal proof of the new job in the form of an affidavit from his employer.
Steele also refers to an exchange that took place after the court had ruled, when Vetter expressed his disappointment and argued that it was impossible for him to make the amount of money the court imputed to him.
THE COURT: — sir, you wanted me to impute her at $120,000 a year.
MR. VETTER: Yes, sir.
THE COURT: And you wanted to sit back and say, well, but I only work 20 hours per week.
MR. VETTER: Well, sir, I’m working 40 hours per week.
THE COURT: Sir, again, if you want to revise this, you know how to revise it. Don’t sit there and argue in front of me you’re disappointed in my ruling. A lot of people have been disappointed in my ruling today. 50 percent of the people in this court room are disappointed with my rulings.
Steele contends that these remarks showed the court found Vetter’s car lot job was a ruse and should be taken to imply a finding under the statute that Vetter was not gainfully employed full-time, or alternatively, that the court found he was purposely underemployed to avoid his child support obligation. Given the context of the court’s earlier explanation for its ruling, however, and its continued focus on Vetter’s position regarding imputing income to Steele, this contention is not persuasive. Rather, it appears that the trial court simply continued to rely on a rough justice sense of equity instead of applying the required statutory factors.[3]
Because there are no relevant written findings regarding imputation of income and the trial court’s oral findings cannot support the result the court reached here, we must reverse and remand. We decline, however, to impose the remedy Vetter seeks, which is essentially for this court to remand with a direction to calculate support based on the income level Vetter claimed. There was substantial documentary and testimonial evidence before the trial court regarding the parties’ economic circumstances including income, assets, liabilities, standard of living, expenses, and expenditures. In its role as fact-finder, the trial court could conceivably have reached different results depending on how it evaluated credibility and what inferences it drew from the materials the parties either provided or failed to provide.
It is not this court’s role to substitute for the trial court in this setting. See In re Marriage of Rideout, 150 Wn.2d 337, 351-52, 77 P.3d 1174 (2003). We accordingly remand for a new trial followed by the entry of findings that reflect the required consideration of relevant statutory factors and are not simply based on the highest amount of income the opposing party alleges, which is not a valid basis on which to impute income. Shellenberger, 80 Wn.App. at 80-81.[4]
Judicial Bias
Analogizing to the criminal law, Vetter also contends that the trial court violated his right to due process by failing to act impartially during the trial on affidavits. In this setting, impartial means the absence of actual or apparent bias. State v. Moreno, 147 Wn.2d 500, 507, 58 P.3d 265 (2002). The law does not only require an impartial judge; it also requires that the judge appear to be impartial. State v. Post, 118 Wn.2d 596, 618, 826 P.2d 172, 837 P.2d 599 (1992). The reviewing court presumes that a judge acts without bias or prejudice. Jones v. Halvorson-Berg, 69 Wn. App. 117, 127, 847 P.2d 945 (1993).
Here, for the reasons stated above, we conclude that the trial court erred and remand is required. But our careful review of the record discloses no basis for Vetter’s claim that the trial judge was actually biased against him, or would appear to be biased to an objective observer. See State v. Dominguez, 81 Wn. App. 325, 330, 914 P.2d 141 (1996). We reject this assignment of error.
Attorney Fees
Vetter contends that the trial court should have awarded him attorney fees under RCW 26.09.140 and asks this court to award him attorney fees on appeal under the same statute. Steele, in turn, seeks fees for a frivolous appeal.
Vetter did not rely on RCW 26.09.140 in the trial court, however, and we reject his contention that the court was required to award him fees under a statute he did not cite. As for fees on appeal under RCW 26.09.140, we examine the merit of the issues on appeal and the parties’ financial resources. Griffin, 114 Wn.2d at 779. Here, we exercise our discretion to decline to award fees under the statute as the parties’ relative financial circumstances are yet to be determined.
Finally, with regard to Steele’s request for fees, we obviously do not find Vetter’s appeal to be frivolous and accordingly deny her request as well.
Reversed and remanded for further proceedings consistent with this opinion.
WE CONCUR: