In Re: Jennifer A. Crane Fka Brown v. Terry L. Brown ( 2015 )

Filed
Washington State
Court of Appeals
Division Two
December 22, 2015
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
TERRY L. BROWN, SR., No. 46600-7-II
Appellant,
v.
JENNIFER A. CRANE, FKA JENNIFER A. UNPUBLISHED OPINION
BROWN,
Respondent.
MAXA, J. ― Terry Brown appeals the final child support order from child support
modification proceedings initiated by his former spouse, Jennifer Crane. Brown argues, and
Crane concedes, that the child support order (1) fails to provide statutorily required deductions to
his income for mandatory pension plan payments, mandatory union dues, and state industrial
insurance; and (2) fails to include Crane’s bonus income as required by statute. Brown also
argues that the trial court erred by not providing him with either a whole family deviation or
residential credit.
We accept Crane’s concessions, and decline to consider whether Brown is entitled to a
whole family deviation and residential credit because that determination cannot be made until
after the incomes are properly recalculated. Accordingly, we reverse and remand to the trial
court with directions to modify the child support order to provide Brown with deductions to his
income for mandatory pension plan payments, mandatory union dues, and state industrial
insurance; include Crane’s bonus income in her gross monthly income; and consider whether
No. 46600-7-II
Brown is entitled to a whole family deviation or residential credit after the incomes are properly
recalculated. Finally, we decline to award reasonable attorney fees to Crane.
FACTS
Brown and Crane were married in 1997, had two children, and dissolved their marriage in
October 2004.
2012 Support Order
The trial court entered a judgment and order of child support in January 2012. The order
calculated Brown’s net monthly income as $6,456.94. Brown’s total income included income
from VA disability benefits, base pay from his job as a firefighter, and overtime pay. Brown
received income deductions for mandatory pension plan payments, mandatory union dues, and
state industrial insurance. Crane’s net monthly income was $2,897.52.
Based on those incomes, the 2012 order calculated Brown’s standard monthly obligation
as $1,502.13, increasing to $1,660.14 on September 1, 2012 when one of the children changed
age brackets. But Brown also received a whole family deviation in the amount of $237.36. This
deviation lowered his actual monthly obligation to $1,264.77, increasing to $1,386.90 on
September 1, 2012.
2014 Support Adjustment
Crane filed a motion to adjust child support in May 2014, arguing that Brown’s income
had increased since he took a second job as his union’s vice president for public relations. The
court commissioner calculated Brown’s net monthly income as $7,586 based on his VA benefits,
base firefighter pay, overtime firefighter pay, and union job pay. However, the commissioner
2
No. 46600-7-II
did not apply the deductions to Brown’s income for mandatory pension plan payments,
mandatory union dues, and state industrial insurance.
Using the increased incomes, the commissioner calculated Brown’s standard obligation
to be $1,847. However, the commissioner gave Brown a deviation of $347, making his actual
monthly obligation $1,500.
The commissioner calculated Crane’s net monthly income as $3,966. Crane admitted
that she had received an employment bonus in each of the previous two years. However, the
commissioner declined to include Crane’s bonus in the income calculation.
Brown’s Motion for Revision
Brown filed a motion to revise the adjusted child support. Brown argued that the
adjusted child support should be revised to include deductions to his gross monthly income for
mandatory pension plan payments, mandatory union dues, and state industrial insurance and that
Crane’s gross monthly income should include the bonus she had received for the previous two
years. Brown also argued that he should receive a whole family deviation or residential credit.
The trial court reviewed the commissioner’s order de novo, and denied Brown’s motion
to revise. The trial court did not award attorney fees to either party.
Brown appeals.
ANALYSIS
A. STANDARD OF REVIEW
We review a trial court's order of child support for abuse of discretion. In re Parentage
of A.L., 185 Wash. App. 225, 238, 340 P.3d 260 (2014). A trial court abuses its discretion when its
decision rests on unreasonable or untenable grounds or when its ruling relies on an erroneous
3
No. 46600-7-II
view of the law or incorrect legal analysis. Id. at 238-39. We defer to the sound discretion of the
trial court unless the trial court abused its discretion. Id. at 239.
B. BROWN MANDATORY DEDUCTIONS
Brown argues, and Crane concedes, that the trial court erred by failing to provide Brown
with deductions as required by statute. We accept Crane’s concession.
RCW 26.19.071 states the standards for determining income for purposes of calculating
child support obligations. RCW 26.19.071(5) specifically deals with deductions and provides in
relevant part:
The following expenses shall be disclosed and deducted from gross monthly
income to calculate net monthly income:
(a) Federal and state income taxes;
(b) Federal insurance contributions act deductions;
(c) Mandatory pension plan payments;
(d) Mandatory union or professional dues;
(e) State industrial insurance premiums.
(Emphasis added.)
As a general rule, we interpret statutory directives using the word “shall” as mandatory or
imperative in character. In re Parentage of K.R.P., 160 Wash. App. 215, 223, 247 P.3d 491
(2011). The word “shall,” indicates a mandatory action. In re Marriage of Kim, 179 Wash. App.
232, 250-51, 317 P.3d 555, review denied, 180 Wash. 2d 1012 (2014).
Here, RCW 26.19.071(5) states that the listed expenses “shall be disclosed and deducted”
from gross monthly income. Because shall indicates a mandatory action, the listed items must be
deducted from gross monthly income when calculating net income.
Brown provided the commissioner and the trial court with paystubs showing that he pays
mandatory retirement contributions under the LEOFF-II program, mandatory union dues to
4
No. 46600-7-II
Firefighters IAFF Local 726, and state industrial insurance premiums. However, the
commissioner improperly failed to deduct those amounts from Brown’s gross monthly income,
and the trial court improperly failed to revise the commissioner’s order. Accordingly, we hold
that the trial court erred by failing to deduct the expenses as required by RCW 26.19.071(5).
C. CRANE BONUS INCOME
Brown argues, and Crane concedes, that the trial court erred by failing to add Crane’s
bonus income to her gross income as required by statute. We accept Crane’s concession.
RCW 26.19.071(3) sets out standards for calculation of income. RCW 26.19.071(3)(r)
provides that “monthly gross income shall include income from any source, including . . .
[b]onuses.” As noted above, the word “shall,” indicates a mandatory action. Kim, 179 Wn.
App. at 250-51. Under RCW 26.19.075(b), the trial court can deviate from the standard income
calculation if income is nonrecurring.
Here, Crane admitted that she had received an employment bonus in each of the previous
two years. And the commissioner did not find that Crane’s bonus income was nonrecurring.
Therefore, the trial court improperly failed to revise the commissioner’s order. Accordingly, we
hold that the trial court erred by failing to include Crane’s bonus into her gross monthly income.
D. BROWN WHOLE FAMILY DEVIATION
Brown argues that the trial court erred when it failed to provide him with a whole family
deviation. Crane argues that the trial court did provide Brown with a whole family deviation.
We need not address this issue.
RCW 26.19.075(3) provides that the trial court shall enter findings that specify any
deviation or any denial of request for deviation from the standard income calculation. However,
5
No. 46600-7-II
the statute also states that “[t]he court shall not consider reasons for deviation until the court
determines the standard calculation for each parent.”
Here, the parties’ standard income must be recalculated to include Brown’s deductions
and Crane’s bonus income. Therefore, we cannot determine whether or not any deviation would
be appropriate until the incomes are properly recalculated.
E. ATTORNEY FEES
Crane requests that we award her attorney fees pursuant to RCW 26.09.140 because she
has a need and Brown has the ability to pay. Brown argues that this court should not award
Crane attorney fees because Brown is the prevailing party due to Crane’s concession, and Crane
has the ability to pay without hardship.
RAP 18.1 permits an award of attorney fees on appeal if applicable law permits such
award. RCW 26.09.140 grants this court discretion to award attorney fees on appeal after
considering the financial resources of both parties. In re Marriage of Kile & Kendall, 186 Wn.
App. 864, 888, 347 P.3d 894 (2015). In exercising our discretion, we also may consider the
arguable merit of the issues on appeal. In re Marriage of Raskob, 183 Wash. App. 503, 520, 334
P.3d 30 (2014).
Here, Crane essentially concedes all the issues on appeal. However, in the superior court
she advocated for the determinations she now concedes. The result was a meaningless appeal.
Under these circumstances, we decline to award reasonable attorney fees to Crane.
We reverse and remand to the trial court with directions to modify the child
support order to provide Brown with deductions to his income for mandatory pension
plan payments, mandatory union dues, and state industrial insurance; include Crane’s
6
No. 46600-7-II
bonus income in her gross monthly income; and consider whether Brown is entitled to a
whole family deviation or residential credit after the incomes are properly recalculated.
And we decline to award reasonable attorney fees to Crane.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
MAXA, J.
We concur:
JOHANSON, C.J.
BJORGEN, J.
7