In re the Marriage of: Joshua Pezzullo and Rebecca Pezzullo ( 2016 )

FILED
April 19, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division Ill
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re the Matter of the Marriage of ) No. 32787-6-111
)
JOSHUA PEZZULLO, )
)
Petitioner, )
)
and ) UNPUBLISHED OPINION
)
REBECCA PEZZULLO, )
)
Respondent. )
)
PENNELL, J. - This appeal involves whether the superior court has authority to
award back child support when an individual files for a parenting plan under the Uniform
Parentage Act of 2002, chapter 26.26 RCW, while conceding paternity. We agree that
the superior court has this authority and therefore affirm the award of back child support.
However, we deny respondent's request for attorney fees.
1
l
II No. 32787-6-III
! In re Marriage ofPezzullo
I FACTS
Joshua Pezzullo and Rebecca Pezzullo were previously married. They had a son,
G .P ., born during the marriage. A Louisiana court granted the Pezzullos a divorce in
2004. The judgment of divorce did not acknowledge G.P. as a child of the marriage,
provide for a parenting plan, or order child support.
Since the divorce, G.P. has lived with Ms. Pezzullo in Benton County,
Washington, while Mr. Pezzullo served in the United States military and then worked as
a military contractor until approximately 2013. Mr. Pezzullo visited his son sporadically
by agreement with Ms. Pezzullo between 2004 and 2013. During that time, he paid
$1,750 total in child support to Ms. Pezzullo, an amount that equates to less than $20 per
month. Mr. Pezzullo remarried and lives in Michigan with his wife and two children
from that marriage.
In 2013, Mr. Pezzullo commenced the present action by filing a petition for a
parenting plan and child support pursuant to RCW 26.26.130(7)(b) and RCW 26.26.375.
The petition acknowledged paternity on grounds that G.P. was born during the marriage.
The parties agreed to a final parenting plan but disagreed as to child support. A superior
court commissioner entered an order of child support, which included back support in the
amount of $93,796.32 for the five years preceding Mr. Pezzullo's petition. The order of
support included the following statement:
2
No. 32787-6-111
In re Marriage of Pezzullo
The Court ordered back child support pursuant to RCW 26.26.134 because
the parties were divorced in another state in 2004 without addressing the
parties' minor child in any respect. This action was brought by the father
correctly under RCW 26.26 ....
Clerk's Papers (CP) at 55-56. Mr. Pezzullo requested revision of the child support order
by a superior court judge. The judge affirmed the commissioner's order. Mr. Pezzullo
filed a notice of discretionary review in Benton County Superior Court on September 8,
2014, and it was received by this court on September 22, 2014. A commissioner of this
court determined the matter was appealable as a matter of right and struck the motion for
discretionary review. Mr. Pezzullo appeals.
ANALYSIS
The Order Granting Back Child Support
Mr. Pezzullo contends the superior court should have revised the commissioner's
ruling because the commissioner erroneously applied RCW 26.26.134 in ordering back
child support. When ruling on a motion for revision, the superior court reviews the
commissioner's decision de novo based on the evidence and issues before the
commissioner. In re Marriage of Moody, 137 Wash. 2d 979, 992-93, 976 P.2d 1240 (1999).
On appeal, this court reviews the trial court's ruling, not the commissioner's. In re
Marriage of Fairchild, 148 Wash. App. 828, 831, 207 P.3d 449 (2009).
Mr. Pezzullo argues that because the parties were previously married and paternity
3
No. 32787-6-III
In re Marriage of Pezzullo
1
t was not at issue, the commissioner should have applied the provisions of chapter 26.09
·1·
.•
RCW when determining child support instead of the provisions of the Uniform Parentage
Act. The significance of Mr. Pezzullo's argument is that while the Uniform Parentage
Act authorizes awards of back child support, chapter 26.09 RCW does not. Compare
RCW 26.26.130(3) (stating the judgment and order shall contain "the extent of any
liability for past support furnished to the child") with RCW 26.09 .170( 1) (generally
requiring that modifications for child support occur only prospectively). Because
resolution of this matter turns on statutory interpretation, our review is de novo. In re
Marriage of Dodd, 120 Wash. App. 638, 645, 86 P.3d 801 (2004). "Absent ambiguity,
I
]
l
[this court] interpret[s] the plain language of the face of the statute and closely related
statutes in light of the underlying legislative purpose." Id.
I
l
It is undisputed that Mr. Pezzullo brought this action under the Uniform Parentage
Act. Furthermore, he concedes that he was required to do so. The Uniform Parentage
Act specifically contemplates creating a parenting plan for an individual, such as Mr.
Pezzullo, who has established parentage through an unrebutted presumption of parentage
due to marriage. RCW 26.26.011(21), .101(5), .116, .130(7)(a). Given these statutory
provisions and Mr. Pezzullo's concessions, the argument that the request for back support
should have been addressed under chapter 26.09 RCW instead of the Uniform Parentage
Act must fail.
4
No. 32787-6-111
In re Marriage of Pezzullo
There is no particular inequity in this result. Even in the context of a dissolution
action, there is common law authority to impose some limited back child support or
"equitable contribution" when the original dissolution decree is silent as to support. See
In re Marriage of Shoemaker, 128 Wash. 2d 116, 123, 904 P.2d 1150 (1995); Scott v.
Holcomb, 49 Wash. 2d 387, 389-90, 301 P.2d 1068 (1956); Henry v. Russell, 19 Wash. App.
409, 412, 576 P.2d 908 (1978).
The only authority Mr. Pezzullo cites in support of his arguments against back
child support is In re Doe, 38 Wash. App. 251, 684 P.2d 1368 (1984). However, Doe is
inapposite. There the putative father denied paternity and the court ultimately dismissed
the case for lack of personal jurisdiction. 38 Wash. App. at 253-54. In contrast, here, Mr.
Pezzullo acknowledged paternity, and none of the policy concerns raised when an
unknowing father is held liable for back support are applicable. See In re Parentage of
IA.D., 131 Wash. App. 207, 218-19, 126 P.3d 79 (2006). Thus, Mr. Pezzullo fails to cite
any relevant supporting authority that would justify relieving him from paying the back
child support ordered by the commissioner and affirmed by the superior court on a
motion for revision.
Attorney Fees
Ms. Pezzullo requests attorney fees on appeal pursuant to RCW 26.26.140. While
we have discretion to award attorney fees, we decline to do so. Furthermore, we decline
5
No. 32787-6-III
In re Marriage of Pezzullo
to impose fees as sanctions under RAP 18.9(a).
A majority of the panel has determined 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.
Pennell, J.
WE CONCUR:
JjCUUJtd41•·~
Siddoway, J.
6