No. 26553-6-III.The Court of Appeals of Washington, Division Three.
October 16, 2008.
Appeal from a judgment of the Superior Court for Stevens County, No. 06-5-00016-1, Rebecca M. Baker, J., entered October 2, 2007.
Affirmed by unpublished opinion per Sweeney, J., concurred in by Kulik, A.C.J., and Brown, J.
SWEENEY, J.
The biological father of a child appeals a trial court decision that concluded that the mother’s husband was a de facto parent. And he appeals the trial judge’s failure to consider the de facto father’s contribution to the child’s support when setting his (the biological father’s) support obligation. We conclude that the court’s findings support its conclusion that the mother’s husband was a de facto parent. And we find no record that the biological father asked the court to consider the contributions or income of the de facto parent or that he objected to the court’s failure to do so. Accordingly, we refuse to review that assignment of error. We therefore affirm the decision of the trial court.
FACTS
Christine Streibeck gave birth to Nathan on March 23, 2004. She was married to (but separated from) Timothy Streibeck when she conceived Nathan. Mr. and Ms. Streibeck reconciled before Nathan was born. They lived together with Nathan until they separated and petitioned to dissolve their marriage in 2006.
Mr. Streibeck maintains regular contact with Nathan despite the separation. He pays child support pursuant to a temporary order. Nathan calls Mr. Streibeck “Daddy.”
Kevin Peterson sued to establish his paternity of Nathan on March 22, 2006. The court found that Mr. Peterson is Nathan’s biological father and ordered him to pay $444.43 per month in child support. This amount deviates from the standard calculation because Mr. Peterson pays child support for a child from another relationship. It also deviates because Ms. Streibeck receives child support from another relationship, according to the worksheets that are part of this record. Those same worksheets do not show that she receives child support from Mr. Streibeck.
The court found that Ms. Streibeck consented to and fostered a father-like relationship between Mr. Streibeck and Nathan; that Mr. and Ms. Streibeck lived together with Nathan in the same home; that Mr. Streibeck assumed parental obligations and did not expect payment; and that Mr. Streibeck assumed the role of Nathan’s father for a sufficient amount of time to establish a bonded and dependant relationship. The court then concluded from these findings that Mr. Streibeck is Nathan’s de facto parent.
Mr. Peterson appeals the amount of his child support obligation and the conclusion that Mr. Streibeck is Nathan’s de facto father.
DISCUSSION
De Facto Parent
Mr. Peterson contends that the court erred in concluding that Mr. Streibeck was Nathans’s de facto parent based on the criteria set out i In re Parentage of L.B., 155 Wn.2d 679, 122 P.3d 161 (2005). Mr. Peterson asserts that he neither consented to nor fostered Mr. Streibeck’s father-like relationship with Nathan. He argues that the Streibecks have been separated for more than a year and are getting divorced. He maintains that Mr. Streibeck has not spent a consistent amount of time with Nathan since the Streibecks separated. And he contends that Mr. Streibeck never fully assumed parenting obligations because he knew from the beginning that Nathan was not his biological child.
Ms. Streibeck responds that this appeal should be dismissed because Mr. Peterson did not file a verbatim transcript. She argues, in any event, that the court properly concluded that Mr. Streibeck is Nathan’s de facto father and that he should be allowed to visit Nathan.
We generally review a conclusion of law by determining whether the challenged findings of fact are supported by substantial evidence, and if so, whether those findings support the challenged conclusion. Am. Nursery Prods., Inc. v. Indian Wells Orchards, 115 Wn.2d 217, 222, 797 P.2d 477
(1990).
Here, Mr. Peterson asserts only that the evidence is not sufficient to support the court’s conclusion that Mr. Streibeck is Nathan’s de facto parent. He does not assign error to any of the court’s findings of fact. Unchallenged findings are verities on appeal. Zunino v. Rajewski, 140 Wn. App. 215, 220, 165 P.3d 57 (2007). And we could not review the findings, in any event, without a verbatim report of the proceedings. Mr. Peterson did not file one. Our review, then, is limited to whether the trial court’s findings support the challenged conclusion of law. The de novo standard of review applies. Id.
The court must find the following factors to conclude that a person is a de facto parent:
“(1) the natural or legal parent consented to and fostered the parent-like relationship, (2) the petitioner and the child lived together in the same household, (3) the petitioner assumed obligations of parenthood without expectation of financial compensation, and (4) the petitioner has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship, parental in nature.”
L.B., 155 Wn.2d at 708 (quoting In re Parentage of L.B., 121 Wn. App. 460, 487, 89 P.3d 271 (2004)). Only “`those adults who have fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role in the child’s life'” may be a de facto parent. Id. (quoting C.E.W. v. D.E.W., 2004 ME 43, 845 A.2d 1146, 1152).
Here, the trial court’s excellent findings of fact do just that:
(a) Ms. Streibeck, the child’s natural mother, consented to and fostered the father-like relationship [between Mr. Streibeck and the child];
(b) Mr. Streibeck and Ms. Streibeck lived together in the same household with the child;
(c) Mr. Streibeck assumed the obligations of fatherhood without expectation of financial compensation; and
(d) Mr. Streibeck has been in a parental role with the child for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Clerk’s Papers (CP) at 161 (Conclusion of Law 2). These findings address all four L.B. factors and support the conclusion that Mr. Streibeck is a de facto father.
The court also found that “Mr. Streibeck has regular contact with the child and regularly pays support pursuant to temporary orders entered in the Streibecks’ dissolution file.” CP at 157 (Finding of Fact 5). This finding shows that Mr. Streibeck has “fully and completely undertaken a permanent, unequivocal, committed, and responsible parental role” in Nathan’s life. L.B., 155 Wn.2d at 708 (quoting C.E.W., 845 A.2d at 1152).
Mr. Peterson also objects to the court’s conclusion that Mr. Streibeck is a de facto parent because it may entitle Mr. Streibeck to visitation with Nathan.
“A de facto parent is not entitled to any parental privileges, as a matter of right, but only as is determined to be in the best interests of the child at the center of any such dispute.” Id. at 708-09. Recognition of a person as a child’s de facto parent does, however, authorize a court to consider an award of parental rights and responsibilities based on its determination of the best interest of the child. Id. at 708.
The trial court, on this record, has not approved of a parenting plan or residential or visitation schedule for Mr. Streibeck. There is, then, nothing for us to review. Child Support
Mr. Peterson next contends that his child support obligation should be reduced by $300 until Mr. Streibeck’s child support obligation terminates. Mr. Peterson argues that the court (in a separate action) ordered Mr. Streibeck to pay child support for Nathan. And Mr. Peterson points out that he has also been ordered, in the present paternity action, to pay child support for Nathan. He asserts that the court determined his obligation without considering the amount Mr. Streibeck has contributed and currently pays. He argues that Ms. Streibeck will receive a windfall in child support if his obligation is not discounted by the amount that Mr. Streibeck pays.
Ms. Streibeck responds that the trial court did not err when it required Mr. Peterson to pay back and current child support even though Mr. Streibeck also pays child support.
We generally review a child support award, including a decision to deviate from the standard calculation, for abuse of discretion. In re Paternity of Hewitt, 98 Wn. App. 85, 87-88, 988 P.2d 496 (1999); In re Marriage of Casey, 88 Wn. App. 662, 666, 967 P.2d 982 (1997). But there is nothing in this record that shows that Mr. Peterson ever asked for a deviation on this ground. The trial court cannot be expected to exercise discretion if it is not asked to. And we will not review a claim of error which was not raised at the trial court. RAP 2.5(a). Attorney Fees
Ms. Streibeck requests fees on appeal. She argues that the appeal was without merit because Mr. Peterson did not support his assignments with any evidence from the record and because her attorney was never contacted to create an “agreed” record.
We have discretion to grant attorney fees on appeal. MacKenzie v. Barthol, 142 Wn. App. 235, 173 P.3d 980 (2007). Ms. Streibeck requests attorney fees under RAP 18.9 (frivolous appeal).
Mr. Peterson’s appeal was not completely without merit and he was not required to provide a verbatim transcript for all of his assignments of error. We, therefore, deny Ms. Streibeck’s request for attorney fees.
We affirm the trial court’s order of child support and judgment and order determining parentage and parent de facto.
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. Page 1004
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