Cynthia L. Selley v. Jason S. Selley ( 2015 )

FILED
SEPTEMBER 1, 2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Matter of the Marriage of: ) No. 32057-0-III
)
CYNTHIA SELLEY, )
)
Appellant, )
)
and ) PUBLISHED OPINION
)
JASON SELLEY, )
)
Respondent. )
LA WRENCE-BERREY, J. - The trial court concluded that it lacked authority to
deviate Jason Selley's child support obligation from the standard calculation based on his
failure to exercise visitation with his children. We hold that a trial court has the authority
to deviate from the standard calculation when it would be inequitable not to do so. We
reverse and remand to the trial court for it to consider making an upward deviation in Mr.
Selley's child support obligation.
FACTS
Mr. Selley and Ms. Selley have two children, both over the age of 12. The parties
were divorced in 2004. In 2009, the parties modified their parenting plan. Mr. Selley's
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In re Marriage ofSelley
modified residential time consisted of every Wednesday evening, every other weekend,
and one-half of the holidays, special occasions, and vacations from school.
In 2013, the court found adequate cause for a second modification of the parenting
plan. Ms. Selley asked that the court deviate from the standard calculation of child
support because the children's basic needs and other expenses were not adequately
supported by the current child support payment. Ms. Selley maintained that she carried
an increased financial burden for the children's day-to-day needs because Mr. Selley
abdicated his right to parental time.
A new parenting plan was entered on October 11,2013. The trial court found
undisputed evidence that Mr. Selley voluntarily had no contact with his children since
December 2010, and that Ms. Selley was solely responsible for her children's needs, other
than the child support that she received. The court also found that if Mr. Selley were to
engage in even minimal visitation, Ms. Selley would receive some respite from the
children's expenses. However, the court concluded that Mr. Selley's failure to exercise
any residential time did not authorize it to deviate from the economic table because the
parties' combined monthly income was less than $12,000.
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Ms. Selley appeals. She challenges the trial court's conclusion that it had no
authority to deviate from the statutorily imposed child support schedule to address Mr.
Selley's noninvolvement with the children and his resulting improved financial status.
ANALYSIS
A trial court's order of child support is reviewed for a manifest abuse of discretion.
In re Marriage ofGriffin, 114 Wash. 2d 772, 776, 791 P.2d 519 (1990). "A trial court
abuses its discretion if the decision rests on unreasonable or untenable grounds, or ifit
bases its ruling on an erroneous view of the law or involves incorrect legal analysis." In
re Parentage ofA.L., 185 Wn. App. 225,238-39,340 P.3d 260 (2014).
When entering an order of child support, the trial court begins by setting the basic
child support obligation. State ex rei. MMG. v. Graham, 159 Wn.2d 623,627, 152 P.3d
1005 (2007). Basic child support is determined by the economic table in RCW 26.19.020,
using the parents' combined monthly net income and the number and age of the children.
RCW 26.19.011(1). When the parents' monthly net income is $12,000 or less, the
economic table is presumptive. RCW 26.19.020. For a net monthly income that exceeds
$12,000, the economic table is advisory and the court may exceed the presumptive
amount of support on written findings of fact. RCW 26.19.020.
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Once the basic child support obligation is derived from the table, the court must
allocate the support obligation between the parents based on each parent's share of the
combined income. RCW 26.19 .080( 1). This standard calculation is the presumptive
amount of child support owed as determined by the child support schedule before the
court considers any deviation. RCW 26.19.011(8).
Then, if requested, a court considers whether a deviation fr~m the standard
calculation is appropriate. RCW 26.19.075(1), (3). Reasons to deviate are listed in
RCW 26.19.075, although this list is not exclusive. RCW 26.19.075(1). A deviation
from the standard support obligation is appropriate when it would be inequitable not to do
so. In re Marriage o/Pollard, 99 Wash. App. 48, 55, 991 P.2d 1201 (2000). "When
reasons exist for a deviation, the trial court shall exercise discretion in considering the
extent to which the factors would affect the support obligation." RCW 26.19.075(4).
The trial court is required to enter findings that specify the reasons for any deviation or
denial of a parent's request for a deviation. RCW 26.19.075(3). "Unless specific reasons
for deviation are set forth in the written findings of fact and are supported by the
evidence, the court shall order each parent to pay the amount of support determined by
using the standard calculation." RCW 26.19.075(2).
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"[T)he intent of the statute is to ensure that awards of child support meet the
child's or children's basic needs and to provide additional support 'commensurate with
the parents' income, resources, and standard of living.'" In re Marriage ofMcCausland,
159 Wn.2d 607,617, 152 P.3d 1013 (2007) (quoting RCW 26.19.001). Additionally, the
intent of the statute is to equitably apportion the child support obligation between the
parents. RCW 26.19.001.
The question here is whether the trial court had the authority to deviate from the
standard calculation by apportioning a larger amount of the child support obligation to a
parent who lessens their financial responsibility for the children's basic needs by
abdicating visitation. The Washington Supreme Court confirmed that a trial court can
deviate from the standard calculation to address whether child support obligations are
properly allocated due to the residential schedule. The court in Graham decided that for
parents who equally bear the burden of the children's basic expenses, the proper method
for determining child support was to apply the standard calculation and statutory
deviations for transfer payments. Graham, 159 Wash. 2d at 636. The court held that
RCW 26.19.075 explicitly gave the trial court discretion to deviate from the basic child
support obligation based on the facts of a particular case, so a specific formula was not
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necessary or statutorily required to ensure that the parents' child support obligation was
properly allocated. Graham, 159 Wash. 2d at 636.
Two cases address the question of whether a child support obligation can be
increased based on the parent's nonexercise of visitation rights. Division One in In re
Marriage ofScanlon, 109 Wash. App. 167, 178, 34 P Jd 877 (2001) held that no statutory
basis existed to increase an obligor parent's child support payment based on that parent's
number of overnight visits per year.
Division One again addressed the question in In re Marriage ofKrieger, 147 Wn.
App. 952, 965, 199 PJd 450 (2008). There, Division One held that an obligor parent's
abdication of parental responsibility could provide a reasonable basis for an award above
the advisory child support amount. Id. The court found that Mr. Krieger's choice not to
spend time with his children improved his financial position because Marilyn Walker
bore the burden of all of the children's day-to-day expenses, including food, recreation,
entertainment, extracurricular activities, and other incidentals. Id. Consequently, Ms.
Walker necessarily carried an increased financial burden. Id. Because the parties'
financial circumstances was a necessary factor in the determination of whether to award
additional support above the advisory amount, the trial court could consider Mr. Krieger's
abdication in its calculation of the support award. Id.
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We are persuaded that Krieger is better reasoned than Scanlon. Because
RCW 26.l9.075(1)'s list of reasons to deviate is nonexclusive, because RCW 26.l9.001
states that one purpose of the child support calculation is to equitably apportion child
support between the parents, and because an obligee parent pays a higher portion of child
expenses when the obligor parent chooses to abdicate most or all visitation, we hold that
in such a situation, the trial court has the authority to deviate upward from the standard
calculation when an upward deviation would better achieve an equitable apportionment.
Here, the trial court abused its discretion when it concluded that it had no legal authority
to deviate from the child support schedule based on the obligor parent's noninvolvement
with the children.
We reverse and remand for the trial court to consider an upward deviation in Mr.
Selley's child support obligation to be supported with appropriate findings of fact and
conclusions oflaw. RCW 26.19.075(3). ()
In..~r'-~(...<:''' - \J~'
Lawrence-Berrey, 1.
WE CONCUR:
rr)
Siddoway, C.l. Fearing, 1. ~
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