No. 58412-0-I.The Court of Appeals of Washington, Division One.
May 7, 2007.
Appeal from a judgment of the Superior Court for King County, No. 01-3-02588-4, Theresa B. Doyle, J., entered January 30 and May 19, 2006.
Reversed and remanded by unpublished per curiam opinion.
PER CURIAM.
Bryan Krieger challenges the trial court’s order adjusting child support. He contends the findings entered by the court do not support its decision to use extrapolation as the basis for increasing his child support obligation in excess of the economic table provided in RCW 26.19.020. We agree with Krieger that the court’s findings are inadequate in light of the Washington Supreme Court’s recent decision in In re Marriage of McCausland, 159 Wn.2d 607, 152 P.3d 1013
(2007), which held that the trial court may not use extrapolation when it exceeds the economic table in the child support schedule. We therefore reverse and remand for further proceedings. We deny the request by Krieger’s former wife, Marilyn Walker, for attorney fees on appeal.
FACTS
Krieger and Walker were divorced in 2002. At the time of the dissolution, the parties had two children, ages five and one. Under the provisions of the 2002 dissolution decree and parenting plan, Walker was designated as the decision-maker with regard to major decisions regarding the children. The parties’ monthly net income exceeded $ 7,000, and they agreed to extrapolate child support. The court ordered Krieger to pay Walker $ 4,500 monthly, including $ 2,500 in spousal maintenance and a transfer payment of $ 2,000 with $ 1,000 being allocated for child support and $ 1,000 being allocated for work-related childcare expenses. The order also provided that child support would be adjusted every two years.
Walker obtained a court-ordered adjustment in 2003. Although the order reduced Krieger’s transfer payment to $ 1,341.74 per month, it also required him to pay 54.2 percent of the children’s day care and extraordinary health care expenses.
Over the next year or so, the parties disagreed over whether their children needed counseling and whether they should participate in certain activities.
Walker again moved for adjustment in 2005 because her income had decreased.[1] Walker argued for extrapolation of the child support obligation because Krieger’s monthly income alone was in excess of $ 7,000.
The matter was originally scheduled for a hearing on December 12, 2005. The parties agreed to continue the proceedings to January 24, 2006. The parties also specifically agreed to a briefing schedule that required Krieger to file his “response documents” on January 12, 2006. Krieger did not file his response until January 24, 2006. Krieger argued that the amount of support should be set according to the child support guidelines. Alternatively, Krieger argued that he should not be obligated to pay both an extrapolated award and certain other expenses including day care.
The court commissioner hearing the case rejected Krieger’s arguments. The commissioner extrapolated an increased net support obligation and ordered Krieger to pay $ 2,182.88 per month to Walker. Walker was also awarded $ 5,000 in attorney fees.
Krieger filed a motion for reconsideration, objecting to the commissioner’s use of extrapolation and calculation of his net monthly income. The motion was effectively denied. The trial court denied Krieger’s motion to revise the commissioner’s ruling, and ordered Krieger to pay an additional $ 2,000 in attorney fees. This appeal followed.
DECISION
Krieger contends that the trial court committed error when it adjusted his child support obligation above the guidelines contained in the child support statutes. He argues the court failed to enter sufficient findings to support such an award.
Our courts have traditionally deferred to the trial court in the area of family law. In re Marriage of Maughan, 113 Wn. App. 301, 305, 53 P.3d 535 (2002). Generally, a parent may seek an adjustment to child support obligations once every 24 months based on changes in income. RCW 26.09.170(9)(a). A child support order may also provide for automatic periodic adjustments. RCW 26.09.100(2). We review child support modifications and adjustments for a manifest abuse of discretion. In re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990); In re Marriage of Crosetto, 82 Wn. App. 545, 560, 918 P.2d 954 (1996). “A court necessarily abuses its discretion if its decision is based on an erroneous view of the law.” In re Marriage of Scanlon, 109 Wn. App. 167, 174-75, 34 P.3d 877 (2001), review denied, 147 Wn.2d 1026 (2002).
Parental child support obligations are generally determined by applying the uniform child support schedule in RCW 26.19.020 to the combined monthly net income of both parents to determine the presumptive support level. RCW 26.19.035(1). In enacting the child support schedule statute, the legislature intended to ensure “that child support orders are adequate to meet a child’s basic needs and to provide additional support commensurate with the parents’ income, resources, and standard of living.” RCW 26.19.001. The economic table in RCW 26.19.020, however, provides the standard calculation only up to the combined monthly net income of $ 7,000. When the combined monthly net income exceeds $ 7,000, the court may (1) set the basic child support obligation at the advisory amount established for incomes between $ 5,000 and $ 7,000, or (2) exceed the highest advisory amount upon written findings of fact. RCW 26.19.020, .065(3). The court may also exceed or reduce the advisory amount of support set by the schedule by deviation. RCW 26.19.075.
Krieger argues that the trial court erroneously adjusted his child support obligation by extrapolating from the economic table. We agree.
In McCausland, our Supreme Court recently held that the extrapolation formula is merely a mechanical extension of the economic table and may not be used to exceed the economic table in the child support schedule. The court also agreed with this court’s holdings in In re Marriage of Daubert, 124 Wn. App. 483, 99 P.3d 401 (2004), overruled in part on other grounds by In re Marriage of McCausland, 159 Wn.2d 607, and In re Marriage of Rusch, 124 Wn. App. 226, 98 P.3d 1216 (2004), overruled in part on other grounds by In re Marriage of McCausland, 159 Wn.2d 607, that cursory findings are not sufficient to justify setting a support amount above the schedule for families whose incomes exceed $ 7,000 per month under RCW 26.19.065(3). The court concluded that the trial court’s findings must evidence consideration of the core concerns of the support statute that children receive “support adequate to meet their basic needs and additional support `commensurate with the parents’ income, resources, and standard of living.'” McCausland, 159 Wn.2d at 619-20.
Here the trial court made the following written findings in support of its extrapolated award:
The Court finds there is sufficient evidence to support [extrapolation] as set forth as follows:
1) Father takes the position: If he does not agree — he does not pay.
2) Father take[s] the position that because mother receives 55% of the property distribution agreement, she can handle all costs/expenses related to the children.
3) Father redacted his pension contribution to his employer because according to him the information was not relevant, when in fact, it is relevant due to the cap of $ 167 he is allowed to deduct.
4) Father made a choice. If he does not agree with the activities or believes there are too many activities, he unilaterally changes the parenting plan by not taking his Tuesday nights.
5) Father has not contacted the counselor. Father
responds that the child does not need counseling.
6) Extrapolated amount does not include standard and predictable work related daycare or medical expenses or counseling, or dental or ortho.
7) The extrapolated amount does include the daycare cost when father is unwilling to comply w/parenting plan, except as provided for in parenting plan.
8) There is persuasive evidence that mother has virtually 100% of the burden for the children’s activities, travel and arrangements for dental appt, counseling, and school activities.
9) Regarding the grandparents, the court finds grandparents have a right to be compensated when they provide daycare.
10) The court finds there has been intransigence by the father. The parties entered into a stipulation as to deadlines for submission of papers and documentation for this hearing, it was not up to the father unilaterally to decide not to comply with the stipulation.
Here, as in McCausland, the commissioner improperly used extrapolation as a basis for setting child support. Nor do we agree with Walker that extrapolation is necessarily the “law of the case” here simply because the court previously used it to calculate the amount of child support. Though the parties had previously agreed to use extrapolation as a means of calculating their child support obligations, the trial court is not bound by parties’ agreements with regard to child support. Pippins v. Jankelson, 110 Wn.2d 475, 478, 754 P.2d 105 (1988). Moreover, the court makes a “new” determination of income whenever it decides a motion for adjustment. In re Marriage of Ayyad, 110 Wn. App. 462, 469, 38 P.3d 1033, review denied, 147 Wn.2d 1016 (2002). As previously noted, the law no longer allows extrapolation to be used in determining child support obligations.
Here the findings made by the court do not establish that the extrapolated award of child support is necessary to meet the needs of the parties’ children. Most of the court’s findings have nothing to do with the children’s needs or other valid considerations under McCausland. And, while an award of child support may be equivalent to an extrapolated amount, the trial court “cannot arrive at that amount by extrapolation.”McCausland, 159 Wn.2d at 620 n. 6. We cannot tell from the record before us whether the court would have imposed the same level of support without use of extrapolation. “The mere ability of either or both parents to pay more, whether based on consideration of income, resources or standard of living, is not enough to justify ordering more support.”Daubert, 124 Wn. App. at 498 (citin Scanlon, 109 Wn. App. at 179-80). In this case the monthly transfer payment is almost double the advisory amount listed in the support order ($1,100). However, there were only modest changes in the net monthly incomes of the parents since 2003. The record shows that Walker earned a net income of $5,298.78 per month in 2005, which is about $ 360 less than what she was receiving in 2003. Yet the 2005 order requires Krieger to make monthly transfer payments of $2,182.88, nearly $ 900 more than he was paying under the 2003 order. In addition to the support transfer payment, the 2005 order requires Krieger to pay 67 percent of the children’s day care and related expenses, and 67 percent of the children’s extraordinary health care expenses. The court’s findings simply do not support such an award.
Under McCausland, the trial court did not have authority to exceed by extrapolation the amount calculated in the child support schedule. While remand for recalculation of child support is necessary because the trial court erroneously used that rote formula to increase the parents’ child support obligations, we emphasize that the trial court retains discretion to set child support above the advisory amounts upon entry of sufficient findings.
Krieger also contends that the trial court abused its discretion when it applied a rate of income tax that was less than the rate he actually paid. “Failure to properly calculate income normally results in remand for recalculation.”Ayyad, 110 Wn. App. at 472 (citing In re Marriage of Briscoe, 134 Wn.2d 344, 349, 949 P.2d 1388, 971 P.2d 500 (1998)).
In determining a particular child support obligation, the trial court first determines each parent’s gross monthly income. RCW 26.19.071(3). From each parent’s monthly gross income, the court then deducts federal income taxes, among other items, to arrive at each parent’s monthly net income. RCW 26.19.071(5).
Krieger complains that the child support worksheets adopted by the commissioner “contain a computer generated `guesstimate’ of what [his] taxes might be if he filed a federal income tax return claiming `single’ status.” The record shows that Krieger in 2003 filed his federal income tax return as “married filing separately,” and he had not yet filed his 2005 federal income tax return by the hearing date. On remand, the commissioner will have the actual 2005 tax return to use in determining Krieger’s net income.
Krieger also contends that the $ 5,000 in attorney fees awarded to Walker should be reversed because the court failed to segregate the fees actually incurred due to his intransigence. To begin with, this issue was never presented to the trial court and therefore, cannot be raised for the first time on appeal. RAP 2.5(a); In re Marriage of Studebaker, 36 Wn. App. 815, 818, 677 P.2d 789 (1984). Even if we were inclined to hold that the issue has been properly preserved, a trial court may properly award attorney fees if one spouse’s intransigence increased the legal fees of the other party. In re Marriage of Burrill, 113 Wn. App. 863, 873, 56 P.3d 993
(2002), review denied, 149 Wn.2d 1007 (2003). The record in the case indicates that Krieger’s late filings caused difficulty for both the court and Walker. While it is not a model for clarity, the commissioner did specifically find that Krieger had been intransigent. The award was half of the fees incurred as a result of the adjustment proceedings. We find no abuse of discretion.
Finally, Walker has requested attorney fees on appeal under RCW 26.09.140, which provides that upon “any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney’s fees in addition to statutory costs.” An award under this statute is discretionary, and neither party is entitled to attorney fees as a matter of right. In re Marriage of Leslie, 90 Wn. App. 796, 805, 954 P.2d 330 (1998), review denied, 137 Wn.2d 1003 (1999). In determining whether to make such an award, we consider Walker’s need, Krieger’s ability to pay, and the arguable merits of the issues on appeal. See In re Marriage of Booth, 114 Wn.2d 772, 791 P.2d 519 (1990). Based on these considerations, we decline to award Walker fees in this instance. Nor is there any other basis for awarding Walker attorney fees.
Reversed and remanded for further proceedings consistent with this opinion.
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