Scott Mcgowan v. Yelena Kozlova Mcgowan

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of
No. 72427-4-1
SCOTT JAMES MCGOWAN,
DIVISION ONE
Appellant,
UNPUBLISHED OPINION
and
YELENA MCGOWAN,
Respondent. FILED: November 23, 2015
Trickey, J. — Scott McGowan appeals the trial court's order of child
support following the dissolution of his marriage to Yelena McGowan. Because
Scott fails to demonstrate any reversible error or abuse of discretion, we affirm.
FACTS
Scott and Yelena1 married in July 1998 and separated on July 11, 2013.
They have two sons, born in August 2000 and April 2005. In August 2013, the
trial court entered a temporary order providing for the children to reside with Scott
a majority of the time and spend every other weekend with Yelena. The court
also imputed income to Yelena and ordered her to pay child support to Scott. In
November 2013, a family court commissioner ordered Scott to pay monthly
spousal maintenance in an amount to be reduced based on increases in
Yelena's gross earnings. Before trial, the parties agreed to a parenting plan with
an equally shared residential schedule. The remaining issues for trial included
child support and the division of marital assets and debts.
1We refer to the parties by their first names, no disrespect is intended.
No. 72427-4-1 / 2
On June 11, 2014, the first day of trial, the trial court signed the agreed
parenting plan. At trial, both Scott and Yelena offered testimony and
documentary evidence to establish their respective incomes and expenses in
their separate households. Yelena also testified that she expected her monthly
expenses to increase significantly under the new permanent parenting plan. She
intended to move to an apartment with a separate bedroom for the boys and in a
location close to one of their schools. Yelena testified to her estimation of
increased expenses in rent, food, transportation, and other costs.
Ultimately, the parties stipulated to their respective gross monthly income
figures of $9,823.23 for Scott and $6,000.00 for Yelena. During closing
arguments, the parties clarified that they also stipulated to the monthly net
income figures listed in Scott's proposed child support worksheet. Scott asked
the court for a deviation from the standard calculation of child support based on
the shared residential schedule under RCW 26.19.075(1 )(d).
Based on the income figures in the worksheet as stipulated by the parties,
the trial court determined the standard calculation for both children to be
$1,533.82 from Scott and $1,071.18 from Yelena. The trial court determined
Scott to be the obligor parent and ordered him to pay Yelena a monthly transfer
payment of $1,533.82. The court denied Scott's request for a deviation from the
standard calculation, stating the following reason: "A deviation would result in
insufficient funds to support the basic needs of the children in the recipient
household."2
2 Clerk's Papers (CP) at 884.
No. 72427-4-1 / 3
Scott appeals.3
ANALYSIS
We review child support orders, including rulings on requests for deviation
from the standard calculation, for abuse of discretion. In re Marriage of Bell, 101
Wash. App. 366, 370-72, 4 P.3d 849 (2000). A trial court abuses its discretion by
basing its decision on unreasonable or untenable grounds or by applying an
erroneous view of the law or incorrect legal analysis. In re Marriage of
Schnurman, 178 Wash. App. 634, 638, 316 P.3d 514 (2013). "This court will not
substitute its own judgment for that of the trial court where the record shows that
the trial court considered all relevant factors and the award is not unreasonable
under the circumstances." In re Marriage of Fiorito, 112 Wash. App. 657, 664, 50
P.3d 298 (2002).
RCW 26.19.075(1)(d) permits trial courts to deviate from the standard
statutorily-imposed child support schedules:
Residential schedule. The court may deviate from the standard
calculation if the child spends a significant amount of time with the
parent who is obligated to make a support transfer payment. The
court may not deviate on that basis if the deviation will result in
insufficient funds in the household receiving the support to meet the
basic needs of the child or if the child is receiving temporary
assistance for needy families. When determining the amount of the
deviation, 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
3A commissioner of this court referred to the panel Yelena's motion to strike and request
for sanctions based on certain factual assertions in an appendix to Scott's opening brief.
The panel has the ability to review the record designated on appeal and to determine the
facts relevant to a fair resolution of the issues presented. Accordingly, we need not
decide Yelena's motion to strike and we deny her request for sanctions.
No. 72427-4-1/4
the child spends with the parent making the support transfer
payment.
This deviation is discretionary, however, and deviation from the standard child
support schedules "remains the exception to the rule," to "be used only where it
would be inequitable not to do so." In re Marriage of Burch, 81 Wash. App. 756,
760, 916 P.2d 443 (1996); see also, Schnurman, 178 Wash. App. at 641 (deviation
under RCW 26.19.075(1 )(d) could be warranted when children share residential
time equally between parents, but "would still be discretionary and should focus
on the legislature's primary intent to maintain reasonable support for the children
in each household"). "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).
Scott first assigns error to the statement in the child support order that "the
support obligation is based upon" Yelena's monthly net income of $4,173.99,
when the parties stipulated to a monthly net income of $4,928.89.4 He claims
that the trial court erred "[t]o the extent [it] relied on this erroneous income figure
to conclude that a deviation would result in insufficient funds in the mother's
household."5
But Scott concedes that the trial court properly listed Yelena's monthly net
income as $4,928.89 on the worksheet, which was attached and incorporated by
reference to the support order, and used $4,928.89 as her net income for
4 CP at 882-83, 892.
5 Br. of Appellant at 9.
No. 72427-4-1 / 5
purposes of determining the standard child support calculation. We also note
that the child support order lists Scott's monthly net income as $7,039.25, while
the worksheet lists his monthly net income as $7,522.46. Similarly, the support
order lists the standard calculation as $1,558.07 with a reference to "Worksheet
line 17," which in turn lists the standard calculation as $1,533.82, consistent with
the trial court's handwritten and initialed statement of the transfer payment on the
order.6 The parties do not dispute that the trial court used the income numbers
listed in the worksheet to determine the standard calculation of $1,533.82 as
listed in the worksheet, rather than $1,558.07 as listed in the order.
Because the trial court's handwritten statement of the transfer payment is
consistent, as Scott concedes, with the standard calculation resulting from the
higher monthly net incomes as listed on the worksheet, it appears that the order
of child support contains scrivener's errors in its statements as to Yelena's
monthly net income, Scott's monthly net income, and the standard calculation.
Scott does not seek remand for correction of these errors. And contrary to
Scott's claim, it is also clear that the discrepancy in the numbers listed in the
order does not implicate the court's decision regarding deviation.
According to RCW 26.19.075(1 )(d), the court "may not deviate" based on
the residential schedule "if the deviation will result in insufficient funds in the
household receiving the support to meet the basic needs of the child." Scott
challenges the trial court's finding here that "[a] deviation would result in
insufficient funds to support the basic needs of the children in the recipient
6 CP at 883, 894.
No. 72427-4-1 / 6
household."7 But Scott concedes that Yelena testified at trial to an estimated
increase of $1,635.00 in monthly expenses based on her increased residential
time with the children under the new parenting plan, for a total of $5,578.00 in
monthly expenses. The trial court was entitled to rely on her testimony, and we
do not weigh the evidence or credibility of witnesses. In re Marriage of Rich, 80
Wash. App. 252, 259, 907 P.2d 1234 (1996). Because, as Scott concedes,
Yelena's expected monthly expenses of $5,578.00 exceeds her monthly net
income of $4,928.89, the trial court did not err in denying his request for a
deviation under RCW 26.19.075(1 )(d) for the reason stated.
In essence, Scott argues that RCW 26.19.075(1 )(d) required the trial court
to compare the impact of a deviation in some particular amount on the total
financial circumstances of each household. We disagree. RCW 26.19.075(1)(d)
expressly provides that the trial court is to consider evidence concerning
increased expenses to the obligor parent and other such factors "[w]hen
determining the amount ofthe deviation" after first determining whether deviation
from the standard calculation is appropriate, not when determining whether to
deviate in the first instance, which is what Scott seeks here.8 Cf. State ex rel.
J.V.G.v. Van Guilder. 137 Wash. App. 417, 424, 154 P.3d 243 (2007) (under RCW
26.19.075(1 )(e), when parent seeks deviation based on support of children from
another relationship, court must consider "total circumstances of both
households" in deciding "whether a deviation is appropriate").
7 CP at 884.
8 (Emphasis added.)
6
No. 72427-4-1/7
Given Scott's resources and his reduced residential time with the children
under the new parenting plan compared with Yelena's increasing expenses
under the new parenting plan, the trial court's decision to deny Scott's request for
a deviation from the standard statutory calculation was not "inequitable." See
Burch, 81 Wash. App. at 760.
Scott also contends that the trial court erred by allocating to him 62
percent of health care and special child rearing expenses, rather than 60.4
percent as indicated on the child support worksheet and required by RCW
26.19.080(2) and (3). He further contends the trial court failed to properly
apportion his support obligation between the two children. Because he fails to
contend or demonstrate that he raised these issues in the trial court, we decline
to consider them for the first time on appeal. RAP 2.5(a); see In re Marriage of
Wallace. 111 Wash. App. 697, 705, 45 P.3d 1131 (2002).
Yelena requests an award of attorney fees based on her need and Scott's
ability to pay, as well as the arguable lack of merit in his appeal. See RCW
26.09.140; In re Marriage of Leslie. 90 Wash. App. 796, 807, 954 P.2d 330 (1998).
Exercising our discretion, we deny Yelena's request.
Affirmed. s=
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