In Re The Marriage Of: Stephen A. Burns, App. And Hiromi F. Burns (n/k/a/ Fujiki), Res. ( 2020 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of: ) No. 80282-8-I
)
STEPHEN A. BURNS, ) DIVISION ONE
)
Appellant, ) UNPUBLISHED OPINION
)
v. )
)
HIROMI F. FUJIKI, formally known as )
HIROMI F. BURNS, )
)
Respondent. )
)
HAZELRIGG, J. — Stephen Burns seeks reversal of an order modifying child
support. He contends that the court was not permitted to modify the previously
ordered downward deviation based on the children’s residential schedule because
the amount of time that the children spent with each parent had not changed. He
also argues that the court failed to consider relevant factors when determining the
amount of the modified downward deviation and that the court erred in awarding
attorney fees and costs to the other parent, Hiromi Fujiki (formerly Hiromi Burns).
Because the court was permitted to modify the downward deviation and did not
abuse its discretion in doing so, we affirm. However, because the court did not
enter sufficient findings regarding the award of attorney fees and costs, we vacate
the award and remand for reconsideration of this issue.
Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 80282-8-I/2
FACTS
Stephen Burns and Hiromi Fujiki divorced on February 25, 2015. The court
reviewed and approved the agreed decree of divorce, order of child support, and
final parenting plan concerning the parties’ two children, who were six and four
years old at the time.
The 2015 child support order established Burns as the obligor parent and
set his total monthly transfer amount at $421.16. The child support schedule
worksheets adopted by the court showed Burns’ net income as $5,255.84 per
month and Fujiki’s monthly income as $2,736.68. The order noted that the
standard calculation was $1,072.48 per month but listed the following as its
reasons for deviation from the standard amount: “The children spend(s) a
significant amount of time with the parent who is obligated to make a support
transfer payment. The deviation does not result in insufficient funds in the
receiving parent’s household to meet the basic needs of the children. The children
does not [sic] receive public assistance.”
In October 2018, Fujiki filed a petition to modify the parenting plan and child
support order. In the petition, she requested a major change to the parenting
schedule because “[t]he children are living in my home now with the other parent’s
permission.” She argued that her requested change affected the amount of child
support because she was “asking for a substantial change in the amount of time
the children spend with the parent who pays child support.” Burns appeared pro
se and agreed to the modified schedule in the proposed parenting plan. However,
he objected to the request to modify child support and disagreed with the
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characterization of the modification as a “major change” because there was “no
change in the amount of time the children spend with the parent who pays child
support.” The court entered the parenting plan as requested on November 16,
2018. Under the 2018 parenting plan, the children were to reside with Burns from
Wednesday through Friday every week and every other weekend. Consequently,
the children resided with Burns for six out of every fourteen nights and with Fujiki
for eight out of every fourteen nights.
On December 12, 2018, Fujiki filed a motion for a temporary order
requesting that the court “[o]rder child support according to the Washington state
child support schedule” and asking “[f]or an award of reasonable attorney fees on
the basis of need and ability to pay.” Fujiki asserted that “[c]ontinuing the deviation
[from the standard calculation of child support] will perpetuate the hardship that
results from the present deviation and will not leave sufficient funds in my
household to meet the needs of our children.” Fujiki’s attorney filed a declaration
stating that his hourly rate was $300, he had spent 2.5 hours drafting the motion
and related documents, and he anticipated spending an additional 4.5 hours on
the matter. He requested an award of $2,100 in attorney fees and $44.98 in costs.
Because the parties had agreed to the entry of the modified parenting plan
and the only remaining issues were Fujiki’s request to modify child support and
request for attorney fees and costs, the parties agreed to a trial by affidavit to
dispose of the remaining issues. The parties filed their trial declarations on April
26, 2019. Fujiki asserted that the parties had utilized the “residential credit using
formula” to arrive at the downward deviation from the standard child support
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payment in the agreed 2015 order. She stated that her “agreement to accept a
reduced amount of child support ha[d] been a financial disaster” and resulted in
“insufficient funds in my household to meet the basic needs of our children.” She
asserted that the finding in the 2015 child support order that the downward
deviation left her sufficient funds to meet the needs of the children “ha[d] not been
true for years,” and she and the children “ha[d] not been able to maintain a
semblance of the standard of living that we enjoyed prior to the divorce.” She
stated that she and Burns had agreed that the children should attend school in the
Mercer Island district, so she had lived in a one-bedroom apartment on Mercer
Island with the two children since the divorce. However, as the children got older,
the apartment no longer provided enough space for Fujiki and the children. She
relocated to a two-bedroom apartment in Redmond while the petition to modify
child support was pending.
Fujiki stated that she had been laid off from her job as an interior designer
earlier that month and received $598 per week in unemployment compensation
while she searched for a new position. She requested that child support be
calculated based on her unemployment income and that the order be retroactive
to the date she filed the petition. She submitted two financial declarations, one
based on her wages from her prior employment and the other based on her
unemployment compensation.1 Both showed total monthly expenses of
$4,933.39. Relative to her net income, the declaration based on her prior wages
showed a monthly deficit of $1,068.55, and the declaration based on her
1 These financial declarations are not signed but were filed with Fujiki’s signed trial
declaration and referenced in the signed document.
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unemployment compensation showed a monthly deficit of $2,540.29. Burns
argued that the court should deny the request to modify the child support order
because Fujiki had not shown a substantial change in circumstances justifying the
modification.
The court entered findings that the child support order should be modified
because at least two years had passed since the entry of the initial child support
order, the parents’ income had changed, and the economic table or standards in
RCW 26.19 had changed. The court also found that there had been a substantial
change in circumstances since the 2015 order was signed because, although the
original deviation was not problematic, continued deviation would result in
insufficient funds in Fujiki’s household to meet the children’s needs.
The court found that Fujiki’s unemployment was a temporary situation and
listed her imputed income as $4,221.11 per month. It noted that Burns’ actual
income was $6,538.93 per month. The court adopted the child support schedule
worksheet that Fujiki had completed based on her wages from prior employment.
The worksheet listed the standard calculation of child support for Fujiki as $908.66
and for Burns as $1,409.34. The court found that the monthly child support amount
should deviate from the standard calculation because of the children’s residential
schedule. Burns was ordered to make a total monthly child support payment of
$1,159.34 beginning January 1, 2019. This resulted in Burns owing $3,690.90 in
back child support. The court ordered the parties to pay proportional shares of
expenses for day care, education, and agreed extracurricular activities. The court
also awarded Fujiki attorney fees in the amount of $2,415. The court found that
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Fujiki had a need for contribution to these fees and costs and Burns had the ability
to contribute.
Through counsel, Burns moved for revision of the commissioner’s order.
Fujiki’s counsel filed another declaration stating his hourly rate, estimating that he
would spend a total of four hours on the motion for revision issue, and requesting
that Fujiki be awarded $1,200 in attorney fees. After a hearing, the court denied
the motion for revision and Fujiki’s request for additional attorney fees. Burns
appealed.
ANALYSIS
A commissioner’s orders are subject to revision by a superior court judge.
RCW 2.24.050. Any appeal following resolution of a motion for revision is from the
superior court’s decision, not the commissioner’s. Maldonado v. Maldonado, 197
Wn. App. 779, 789, 391 P.3d 546 (2017). However, a denial of a motion for
revision constitutes an adoption of the commissioner’s decision, and the superior
court is not required to enter separate findings and conclusions. Id.I. Child Support Order
Burns contends that the superior court erred in entering the 2019 child
support order. We review an order modifying child support for an abuse of
discretion. In re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990).
The court abuses its discretion when its decision is based on unreasonable or
untenable grounds. In re Marriage of Schnurman, 178 Wn. App. 634, 638, 316
P.3d 514 (2013). A decision based on an erroneous view of the law or incorrect
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legal analysis necessarily constitutes an abuse of discretion. Id. “A trial court does
not abuse its discretion where the record shows that it considered all the relevant
factors and the child support award is not unreasonable under the circumstances.”
State ex rel. J.V.G. v. Van Guilder, 137 Wn. App. 417, 423, 154 P.3d 243 (2007).
Appellate courts will uphold findings of fact that are supported by substantial
evidence. In re Marriage of Stern, 57 Wn. App. 707, 717, 789 P.2d 807 (1990).
Substantial evidence exists where the record contains a sufficient quantum of
evidence to persuade a fair-minded, rational person of the truth of a declared
premise. Id. Substantial evidence may exist to support a finding even if there are
other reasonable interpretations of the evidence. Fred Hutchinson Cancer
Research Ctr. v. Holman, 107 Wn.2d 693, 713, 732, P.2d 974 (1987). On review,
“[w]e will not substitute our judgment for the trial court’s, weigh the evidence, or
adjudge witness credibility.” In re Marriage of Greene, 97 Wn. App. 708, 714, 986
P.2d 144 (1999).
RCW 26.19.100(1) directs that in a proceeding for dissolution of marriage,
“after considering all relevant factors but without regard to misconduct, the court
shall order either or both parents owing a duty of support to any child of the
marriage . . . dependent upon either or both spouses . . . to pay an amount
determined under chapter 26.19 RCW.” Chapter 26.19 RCW establishes a child
support schedule intended to “insure that child support orders are adequate to
meet a child’s basic needs[,] to provide additional child support commensurate with
the parents’ income, resources, and standard of living,” and to apportion the
obligation equitably between the parents. RCW 26.19.001.
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The court must determine the presumptive amount of support according to
the child support schedule and shall order this standard amount “[u]nless specific
reasons for deviation are set forth in the written findings of fact and are supported
by the evidence.” RCW 26.19.075(2). The governing statute contains a
nonexclusive list of considerations justifying deviation from the standard
calculation including the children’s residential schedule, provided the deviation
does not result in insufficient funds to meet the basic needs of the children in the
household receiving support; the income of a new spouse, if the remarried parent
has requested a deviation for another reason; and children from other relationships
to whom the parent owes a duty of support. RCW 26.19.075(1)(a)(i), (d), (e).
“Agreement of the parties is not by itself adequate reason for any deviations from
the standard calculation.” RCW 26.19.075(5).
A party to a child support order may petition for a modification based on a
showing of substantially changed circumstances at any time. RCW
26.09.170(5)(a). If two years have passed from the order’s entry or last
modification, the order may be adjusted without a showing of substantially changed
circumstances based on changes in the parents’ income or changes in the
economic table or standards in chapter 26.19 RCW. RCW 26.09.170(7)(a).
A. Findings of Fact
Burns argues that the findings of fact are not supported by substantial
evidence, but does not assign error to any specific findings. The rules of appellate
procedure require that parties include a separate assignment of error for each
finding of fact that they contend was improperly made, including a reference to the
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finding by number. RAP 10.3(g). “The appellate court will only review a claimed
error which is included in an assignment of error or clearly disclosed in the
associated issue pertaining thereto.” Id. In appropriate cases, we may waive
technical violations of this rule when the opening brief makes the nature of the
challenge clear. Harris v. Urell, 133 Wn. App. 130, 137, 135 P.3d 530 (2006).
In the argument section of his brief, Burns quotes portions of the following
finding under the heading “Change of Circumstances” in the court’s order on the
petition to modify child support:
At the time deviation was granted in the original Order of Child
Support, the deviation did not result in insufficient funds in the
mother’s household to meet the needs of the children. Due to rising
costs of living and the need for the mother to move from her artificially
low cost of housing while living in a one bedroom apartment,
continued deviation does result in insufficient funds in the mother’s
household to meet the needs of the children.
Although he fails to expressly assign error to this finding, the nature of his
challenge is sufficiently clear from his argument to allow our review. Burns’ brief
does not demonstrate a challenge to any of the court’s other findings of fact.
When entering the 2015 child support order, the court found that the
downward deviation did not result in insufficient funds in Fujiki’s household to meet
the needs of the children. This finding was never challenged on appeal. Fujiki
repeatedly asserted in declarations that her monthly expenses outpaced her
income, even after she relocated from Mercer Island to Redmond. We will not
substitute our judgment for the trial court’s in deciding to credit this evidence.
Substantial evidence supports the finding that the deviation did not result in
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insufficient funds at the time it was entered but continued deviation would result in
insufficient funds in Fujiki’s household.
Burns also argues briefly that the findings of fact entered by the court were
insufficient because they do not explain how the court calculated the amount of the
downward deviation. The court is required by statute to enter written findings of
fact with specific reasons for any deviation from the standard calculation of child
support. RCW 26.19.075(2), (3). As noted above, the statute provides a
nonexclusive list of “[r]easons for deviation from the standard calculation” including
sources of income and tax planning, nonrecurring income, debt and high
expenses, residential schedule, and children from other relationships. RCW
26.19.075(1). When such reasons are present, “the court shall exercise discretion
in considering the extent to which the factors would affect the support obligation.”
RCW 26.19.075(4).
This statute “gives the trial court discretion to deviate from the basic child
support obligation based on the facts of a particular case,” and therefore, “a
specific formula is neither necessary nor statutorily required to ensure the parents’
child support obligation is properly allocated.” State ex. rel. M.M.G. v. Graham,
159 Wn.2d 623, 636, 152 P.3d 1005 (2007). A deviation based on the residential
schedule remains discretionary and “should focus on the legislature’s primary
intent to maintain reasonable support for the children in each household.”
Schnurman, 178 Wn. App. at 641.
Here, the court entered written findings that the residential schedule justified
deviation from the standard calculation but continuing the deviation in the
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previously ordered amount would result in insufficient funds in Fujiki’s household.
Once these findings were made, the court made a discretionary determination as
to the extent to which those considerations affected the support obligation based
on the facts of this case.
In support of his argument, Burns cites State ex rel. Sigler v. Sigler, in which
Division Three of this court, after finding that the father should not have been
granted a downward deviation, also found that the deviation failed because the
court’s findings gave no indication of how the decrease was calculated. 85 Wn.
App. 329, 338, 932 P.2d 710 (1997). However, in Sigler, there was no indication
that the deviation would result in insufficient funds in the obligee parent’s
household. The calculus here was based on more than simply the children’s
proportional time with each parent, and the trial court’s findings were sufficient to
support the deviation.
B. Child Support Modification
1. Modification of Downward Deviation
Burns contends that the trial court was not permitted to modify the
downward deviation in child support because his entitlement to the deviation
flowed from the residential schedule outlined in the parenting plan and his
residential time with the children had not changed. He bases this argument
primarily on In re Marriage of Trichak, 72 Wn. App. 21, 863 P.2d 585 (1993). In
Trichak, the trial court found in the decree of dissolution that the father was entitled
to a pro rata offset in his child support obligation for the Social Security benefits
received by the parties’ developmentally disabled child. Id. at 22. Neither party
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appealed the decree, and the mother brought a petition for modification of child
support two years later. Id. Although the court increased the father’s child support
obligation based on a substantial change of circumstances, it found that the pro
rata offset was “the law of the case” and not subject to modification. Id.
On appeal, the mother argued that the offset was not a proper deviation
under the child support statute. Id. at 24. We found that she was precluded, under
the doctrine of collateral estoppel, from relitigating whether a deviation from the
standard calculation for the child’s Social Security income was proper. Id. at 23.
We noted that “the trial court clearly had the ability to modify the deviation
provision” on the basis of a substantial change of circumstances, but a petition for
modification of child support was “not the proper forum for relitigating previously
decided legal issues that are unrelated to” the needs of children. Id. at 24.
Trichak does not compel the conclusion that the court in this case was
prohibited from modifying the amount of the downward deviation based on the
children’s residential schedule. Unlike Trichak, Fujiki did not argue that the
deviation was ordered on an improper basis. She requested a modification based
on a substantial change of circumstances that resulted in insufficient funds to meet
the children’s needs. Even if some downward deviation is the “law of the case”
here because the children’s residential time with each parent has not changed, the
court maintained a downward deviation based on the residential schedule.2
2 Burns also cites an unpublished decision of this court in support of his argument that the
trial court was not permitted to modify the downward deviation. In re Marriage of Richardson, No.
77900-1-I (Wash. Ct. App. Dec. 24, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/.
However, in that case, we explicitly declined to reach the issue of “whether the trial court may,
absent a modification to the parenting plan, change the amount of the deviation (without eliminating
it) and order a nonzero transfer payment on a motion to modify or adjust child support.” Id. at 17.
(alteration in original). Richardson does not constrain our analysis here.
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Burns also argues that the trial court abused its discretion in ordering “relief
that was not explicitly requested by the parties.” However, “the court has broad
equitable powers in family law matters.” In re Marriage of Morris, 176 Wn. App.
893, 903, 309 P.3d 767 (2013). Once a basis for modification of a child support
order has been established, the court may modify the original order in any respect.
In re Marriage of Scanlon and Witrak, 109 Wn. App. 167, 171, 34 P.3d 877 (2001).
The court did not abuse its discretion in modifying the amount of the downward
deviation instead of maintaining or eliminating it.
2. Amount of Deviation
Burns contends that the trial court failed to consider evidence of increased
expenses in his own household and decreased expenses in Fujiki’s household
stemming from the amount of time the children spend with each parent when
setting the amount of the deviation. When determining the amount of a deviation
based on the residential schedule,
the court shall consider evidence concerning the increased
expenses to a parent making support transfer payments resulting
from the significant amount of time spent with that parent and shall
consider the decreased expenses, if any, to the party receiving the
support resulting from the significant amount of time the child spends
with the parent making the support transfer payment.
RCW 26.19.075(1)(d).
Although the court’s order does not include specific findings about the
change in expenses to each household based on the residential schedule, the
parties’ financial obligations were included in the declarations submitted to the
court. We presume that the court considered all evidence before it when
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fashioning an order. In re Marriage of Kelly, 85 Wn. App. 785, 793, 934 P.2d 1218(1997). Burns has not shown that the court abused its discretion in setting the
amount of the downward deviation in child support.
II. Award of Attorney Fees and Costs
Burns contends that the court erred in awarding Fujiki attorney fees and
costs on the modification action. The court may award reasonable attorney fees
and costs to a party for maintaining or defending a proceeding under chapter 26.09
RCW after considering the financial resources of both parties. RCW 26.09.140.
The decision to award fees under this statute is within the trial court’s discretion,
so “[t]he party challenging the award bears the burden of proving that the trial court
exercised this discretion in a way that was clearly untenable or manifestly
unreasonable.” In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71(1994).
The court must balance the needs of the party seeking the fees against the
ability of the other party to pay. Id. “In calculating a reasonable amount of fees,
the court should consider the following three factors: (1) the factual and legal
questions involved; (2) the amount of time necessary for preparation and
presentation of the case; and (3) the value and character of the property involved.”
In re Marriage of Ayyad, 110 Wn. App. 462, 473, 38 P.3d 1033 (2002). The trial
court must indicate on the record the method it used to calculate the award. Knight,
75 Wn. App. at 729.
In its final order and findings, the court indicated that Burns should pay
$2,415 toward Fujiki’s court costs and attorney fees because Fujiki had “the need
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for contribution to her attorney fees and costs” and Burns had “the ability to
contribute to the same.” Although the court appears to have properly exercised its
discretion in weighing Fujiki’s need for contribution against Burns’ ability to pay,
the court did not indicate the method used to calculate the award in its written
order. Where the court does not indicate how it reached the amount of the attorney
fee award on the record, the remedy is vacation of the award and remand to the
trial court for reconsideration. See In re Marriage of Sanborn, 55 Wn. App. 124,
130, 777 P.2d 4 (1989). Accordingly, we vacate the award of attorney fees to Fujiki
and remand for the trial court to reconsider her request for fees and costs.
III. Attorney Fees on Appeal
Fujiki requests an award of attorney fees on appeal under RAP 18.1 “on the
basis of need and ability to pay.” A party may request an award of attorney fees
and costs if applicable law provides the right to recover fees and costs on appeal.
RAP 18.1(a). The party requesting fees and expenses must do so in the manner
specified in the appellate rules. Id. The party must set out its request in a separate
section of its opening brief and, “[i]n any action where applicable law mandates
consideration of the financial resources of one or more parties regarding an award
of attorney fees and expenses, each party must serve upon the other and file a
financial affidavit no later than 10 days prior to the date the case is set for oral
argument or consideration on the merits.” RAP 18.1(b), (c).
On appeal of any proceeding under chapter 26.09 RCW, “the appellate
court may, in its discretion, order a party to pay for the cost to the other party of
maintaining the appeal and attorneys’ fees in addition to statutory costs.” RCW
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26.09.140. In making this determination, we consider the financial resources of
both parties, balancing the needs of one party against the other’s ability to pay.
Stern, 57 Wn. App. at 720–21. We may also consider the merits of the appeal. Id.Fujiki set out her request for attorney fees and costs in a separate section
of her opening brief to this court. Her brief also stated that she would file a financial
affidavit no later than 10 days before the date of consideration of this case. Her
financial affidavit does not appear to have been timely filed. “An appellate court
will not consider an award of attorney fees on appeal under RAP 18.1 and RCW
26.09.140 when a party seeking fees fails to comply with RAP 18.1(c).” In re
Marriage of Crosetto, 82 Wn. App. 545, 565–66, 918 P.2d 954 (1996).
Accordingly, Fujiki’s request for attorney fees on appeal is denied.
Remanded for reconsideration of the trial court’s award of attorney fees and
costs to Fujiki. Otherwise affirmed.
WE CONCUR:
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