IN RE MARRIAGE OF OTANI LOFLAND, 21126-6-III (Wash.App. 10-9-2003)

No. 21126-6-III, 21367-6-IIIThe Court of Appeals of Washington, Division Three.
Filed: October 9, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Yakima County Docket No: 91-3-00769-4 Judgment or order under review Date filed: 04/15/2002

Counsel for Appellant(s), Gary Edward Lofland, Attorney at Law, 9 N 11th Ave, Yakima, WA 98902-3016.

Counsel for Respondent/Cross-Appellant, Bruce Hanify, Attorney at Law, P.O. Box 325, Olympia, WA 98507-0325.

SWEENEY, J.

We will defer to the sound discretion of the trial court and will intrude upon that discretion only if it is exercised in an untenable or manifestly unreasonable way. In re Marriage of Booth, 114 Wn.2d 772, 779, 791 P.2d 519 (1990). That was not done here and so we will not disturb the trial court’s support order.

FACTS
Lori Otani sought modification of the child support obligation paid by her former husband Gary Lofland. At issue was the postsecondary support for their daughter Kristin and an increase in support for their teenage son Samuel due to his graduation to a higher age bracket in the support guidelines. The matter was heard on December 3, 2001, when the court also delivered its oral ruling granting Ms. Otani’s petition. Both parties moved for reconsideration. The court heard argument and entered findings of fact and conclusions of law on April 15, 2002. The modification was granted and effective as of the date of the hearing. On June 6, 2002, Mr. Lofland filed a motion for relief from order pursuant to CR 60(b)(6) and (11). On June 17, the court ruled that the child support calculation would not be corrected.

Mr. Lofland appeals the order of support. He claims that the court improperly calculated the amount of support insofar as the trial judge ignored his proof that Ms. Otani underreported and/or misrepresented her income. Mr. Lofland also challenges the court’s failure to find that Ms. Otani was voluntarily underemployed. He also assigns error to the court’s failure to `credit’ him for support he voluntarily paid during the pendency of the action. Mr. Lofland appeals the denial of his CR 60(b) motion and his motion to reconsider and/or clarify. Ms. Otani cross-appeals the amount of her contribution to her daughter’s postsecondary support.

DISCUSSION
Modification Basis

Mr. Lofland initially asserted that the court’s failure to enter findings of fact and conclusions of law to support a modification of child support constituted reversible error. Ms. Otani argued otherwise. Because Mr. Lofland properly conceded that Ms. Otani was correct, we will not address that issue. Income Calculation

When reviewing child support matters, the `reviewing court must defer to the sound discretion of the trial court unless that discretion has been exercised in an untenable or manifestly unreasonable way.’ Booth, 114 Wn.2d at 779. While child support modifications are tried by affidavit, appellate courts do not review the trial court’s decision de novo. Rather, the appellate court determines whether the findings of the trial court are supported by substantial evidence and whether the trial court made an error of law. In re Marriage of Stern, 68 Wn. App. 922, 928-29, 846 P.2d 1387 (1993). Substantial evidence is that which is sufficient to persuade a fair-minded person of the declared premise. In re Marriage of Hall, 103 Wn.2d 236, 246, 692 P.2d 175 (1984). Mr. Lofland challenges the finding that Ms. Otani’s net monthly income is $1,036. Mr. Lofland does not properly present the findings he challenges. See RAP 10.3(g) (requiring reference to each challenged finding by number in assignments of error); RAP 10.4(c) (requiring party to set forth the material portions of the finding verbatim). And the court explained the basis for this finding in any event. Her gross income is as reported on her income tax returns for the year 2000, minus her expenses and self — employment tax. Report of Proceedings (RP) at 2-3. The court was aware that Mr. Lofland disputed the figure. This finding is supported by substantial evidence. Mr. Lofland also complains that the court ignored clear evidence that Ms. Otani was underreporting her income. The judge did express some doubt about Ms. Otani’s income:

I don’t know how Miss Otani is making it on the little over $1,000 a month either. But I would have to speculate otherwise as to how much she is making if she’s making more than that, so I just had to consider the best evidence that I had, which was her tax returns.

RP at 3.

Mr. Lofland asserts that ‘[t]he court must conclude that a person who deliberately provides false information in part of the proceedings is likely to be untruthful in all testimony.’ Appellant’s Br. at 17. However, that is no more than a permissible inference for a trier of fact. See Maytown Lumber Co. v. Maytown Mill Co., 136 Wn. 534, 537, 240 P. 902 (1925) (holding that if the trier of fact is satisfied that a witness had testified falsely in one respect to a material fact, it may infer that the witness testified falsely in all respects and disregard all of that witness’s testimony except that which was corroborated by other evidence).

While the trial judge found Ms. Otani’s income information somewhat suspicious, he was not persuaded that it was false. We defer to the trial court’s views regarding the credibility of witnesses and the weight to be given competing inferences from circumstantial evidence. In re Welfare of Aschauer, 93 Wn.2d 689, 695, 611 P.2d 1245 (1980); Maytown Lumber, 136 Wash. at 537. The court found that Ms. Otani’s income tax returns were the most reliable basis for calculating her income without speculating. RP at 3. And the court correctly avoided guessing about Ms. Otani’s income. See State ex rel. Stout v. Stout, 89 Wn. App. 118, 125, 948 P.2d 851 (1997) (`A court exercises its discretion in an untenable and manifestly unreasonable way when it essentially guesses at an income amount’) (citing In re Marriage of Bucklin, 70 Wn. App. 837, 841, 855 P.2d 1197 (1993)). The court had actual income figures before it when determining the parties’ income for the worksheet.

The court did not abuse its discretion in calculating the income in the manner that it did. Nor was the method or manner incorrect as a matter of law. Voluntary Underemployment

Mr. Lofland claims that the court abused its discretion by not imputing income to Ms. Otani on the basis of underemployment. He asserts that there was no evidence that the vending machine route which is Ms. Otani’s sole source of income constituted full-time, gainful employment. A court’s finding regarding voluntary underemployment and imputed income is reviewed for substantial evidence. Stern, 68 Wn. App. at 929. Substantial evidence is that which is sufficient to persuade a fair-minded person of the declared premise. Hall, 103 Wn.2d at 246.

The court is required to impute income to a parent if it finds the parent is voluntarily underemployed. 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). Mr. Lofland claims that Ms. Otani could be earning more in her route if she was operating the route on more than a part-time basis. But he also offers evidence that the concession business is meant to be only a part-time endeavor. The determination of what constitutes `full time’ employment takes into consideration that which is customary for the occupation. In re Marriage of Schumacher, 100 Wn. App. 208, 215, 997 P.2d 399 (2000). In this case, Mr. Lofland did not present any evidence as to the number of hours Ms. Otani actually worked. Even so, that is not dispositive. The number of hours worked is not dispositive; one need not work 40 hours per week in order to be `gainfully employed full time.’ Id. at 214-15.

The court noted:

The rule is if it’s full time I can’t impute income no matter how small the income is. And I didn’t have anything other than speculation that it wasn’t full time . . . .
. . . .
. . . Nor can I impute income, because I didn’t have any evidence to show that she was not employed full time in this business.

RP at 2-3. This may be considered a `finding’ concerning the full-time nature of Ms. Otani’s employment for voluntary underemployment purposes.

In re Marriage of Booth, 114 Wn.2d 772, 777, 791 P.2d 519 (1990). It is supported by substantial evidence in that there is a lack of evidence to find otherwise.

Further, generally speaking, a party asserting a fact has the burden of proving it. In re Marriage of Gainey, 89 Wn. App. 269, 274, 948 P.2d 865
(1997) (citing Baldwin v. Sisters of Providence, 112 Wn.2d 127, 134, 769 P.2d 298 (1989) (wrongful termination); Whalen v. Lanier, 29 Wn.2d 299, 310, 186 P.2d 919 (1947) (gift); In re Marriage of Ferree, 71 Wn. App. 35, 41, 856 P.2d 706 (1993) (existence of a contract); Baughn v. Malone, 33 Wn. App. 592, 596, 656 P.2d 1118 (1983) (excuse for violating a statute)). Mr. Lofland did not persuade the judge with the evidence he presented. Mr. Lofland did not show that Ms. Otani chose to decline more profitable work in favor of operating the concession route. He does not address Ms. Otani’s work history, education, health, or age. See RCW 26.19.071(6) (setting forth factors to determine full employment). Nor does Mr. Lofland provide any information with which to determine the level of employment at which Ms. Otani is capable and qualified. See In re Marriage of Sacco, 114 Wn.2d 1, 4, 784 P.2d 1266
(1990). As such, Mr. Lofland cannot show that Ms. Otani has voluntarily made her income decline at all. And there is no evidence that any underemployment is calculated to reduce her support obligation. Credit for Voluntary Payments

Mr. Lofland claims that the court erred by failing to give him Scredit’ for future support payments based on payments he voluntarily made during the pendency of the action.

But a trial court is not required to credit a party for voluntarily paying support the party is not obligated to pay by court order. Schafer v. Schafer, 95 Wn.2d 78, 81, 621 P.2d 721 (1980). Again, we review such a decision for an abuse of discretion; the challenging party must demonstrate that the decision of the trial court is manifestly unreasonable, based on untenable grounds, or granted for untenable reasons. Booth, 114 Wn.2d at 779; In re Marriage of Shellenberger, 80 Wn. App. 71, 80, 906 P.2d 968 (1995); In re Marriage of Peterson, 80 Wn. App. 148, 152, 906 P.2d 1009 (1995). Here, the trial court determined a credit was not appropriate because the offset for monies Mr. Lofland paid for Kristin’s postsecondary support would have negatively impacted support available for Samuel. RP at 7-8.

The trial judge did not abuse his discretion in declining to order a credit on that basis. Further, the trial court has the discretion to set the effective date of the modification: it can be the date the modification petition was filed, the date of the modification order, or any time in between. In re Marriage of Pollard, 99 Wn. App. 48, 55, 991 P.2d 1201 (2000) (citing Chase v. Chase, 74 Wn.2d 253, 259, 444 P.2d 145 (1968)). Here, the judge initially ruled that the effective date would be the date the modification was filed. RP at 6-7. The judge considered offsetting the judgment Ms. Otani would be awarded (for the increase in Samuel’s support) and the judgment Mr. Lofland would be awarded (for his voluntary overpayment of his share of Kristin’s college expenses during the pendency of the action). But the judge elected to make each judgment effective as of the date the findings were entered specifically to prevent an offset problem. RP at 8-9. The judge did not abuse his discretion in setting the effective date of the modification.

Postsecondary Support

Recalcitrant Child. Mr. Lofland claims that the judge should not have ordered him to pay postsecondary support because Kristin refused to provide Mr. Lofland with her academic records and reports as she is required to do. See RCW 26.19.090(4) (`The child shall also make available all academic records and grades to both parents as a condition of receiving postsecondary educational support’).

The court has discretion to order what is necessary and fair regarding postsecondary education. Childers v. Childers, 89 Wn.2d 592, 601-02, 575 P.2d 201 (1978); In re Marriage of Kelly, 85 Wn. App. 785, 934 P.2d 1218 (1997). At the time postsecondary support was first ordered, Mr. Lofland informed the judge of Kristin’s recalcitrant attitude. The court held that such was an inappropriate basis for deciding postsecondary support. RP at 14. The court is correct. RCW 26.19.090 sets forth the proper considerations for postsecondary child support.[1] While RCW 26.19.090(4) may affect enforcement of a parent’s postsecondary support obligation, nothing in the statute authorizes the court to take the child’s attitude into account in fixing or calculating support. Thus, the court did not abuse its discretion or violate established law by finding that Kristin’s attitude was an inappropriate basis for deciding postsecondary support.

Motion to Vacate. Mr. Lofland also moved for an order vacating the judgment because Kristin did not provide the academic reports required by RCW 26.19.090(4). Instead of vacating the support order, the judge ordered that Kristin provide both parents with her grades and class schedules and remain in good standing. Clerk’s Papers at 193.

A trial court’s decision on a motion to vacate a judgment under CR 60(b) is reviewed for an abuse of discretion. In re Marriage of Tang, 57 Wn. App. 648, 653, 789 P.2d 118 (1990). Discretion is abused when it is exercised on untenable grounds or for untenable reasons. Id. It was not an abuse of discretion to give Kristin another opportunity to come into compliance.

Further, RCW 26.19.090(4) provides that:

The child shall also make available all academic records and grades to both parents as a condition of receiving postsecondary educational support. Each parent shall have full and equal access to the postsecondary education records as provided in RCW 26.09.225.

It is not known whether Mr. Lofland had made a direct request for the records under RCW 26.09.225 — which he is entitled to do. And there is no showing that Kristin somehow circumvented his access to the material under RCW 26.09.225 or otherwise acted to make the records unavailable to Mr. Lofland.

Amount of Support. Ms. Otani cross-appeals the amount of postsecondary support ordered. She claims that the trial judge abused his discretion when he ordered Ms. Otani to pay one-third of Kristin’s college expenses, the same amount Mr. Lofland was ordered to pay. Ms. Otani claims that since the judge found that her net monthly income was approximately one-eighth of Mr. Lofland’s, so should her contribution be set for Kristin’s postsecondary college expenses.

The trial court has broad discretion to set the amount of postsecondary support with reference to the child’s needs, and we will not overturn the award absent abuse of discretion. Kelly, 85 Wn. App. at 788.

The child support schedule is advisory, not mandatory, for postsecondary educational support. RCW 26.19.090(1). Thus, it need not mirror the basic obligation in apportionment or amount. Further, a court acts within its discretion in ordering postsecondary support as a percentage of educational costs even if it does not impose a `ceiling’ for the amount. Kelly, 85 Wn. App. at 791-92. And that is what the court did in this case.

The judge did not abuse his discretion in making the award. Motion for Reconsideration

Mr. Lofland claims that the court erred by failing to reconsider its oral decision prior to the entry of findings, conclusions, and a support order. A denial of a motion for reconsideration is reviewed for manifest abuse of discretion. Lund v. Benham, 109 Wn. App. 263, 266, 34 P.3d 902
(2001), review denied, 146 Wn.2d 1018 (2002). “A trial court abuses its discretion when it exercises it in a manifestly unreasonable manner or bases it upon untenable grounds or reasons.” Id. (quoting Wagner Dev., Inc. v. Fid. Deposit Co. of Md., 95 Wn. App. 896, 906, 977 P.2d 639
(1999)).

Mr. Lofland claims that the court did not even address the motion for reconsideration. He is mistaken. The court addressed all of the issues presented in Mr. Lofland’s motion at the time the findings of fact and conclusions of law were presented on April 15, 2002. The court specifically addressed Mr. Lofland’s concerns regarding underreporting or misrepresenting of income, voluntary underemployment, and credit for voluntary overpayment. The court did not then abuse its discretion, as Mr. Lofland claims, by disregarding his motion to reconsider.

CONCLUSION
The trial court did not abuse its discretion. We therefore affirm.

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.

KATO, A.C.J. and BAKER, J.P.T., concur.