Dawn Marie Walker v. Tommy Rae Walker

FILED
June 14, 2016
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of )
) No. 33301-9-111
DAWN MARIE WALKER, )
)
Appellant )
)
v. ) UNPUBLISHED OPINION
)
TOMMY RAE WALKER, )
)
Respondent. )
KORSMO, J. -Tommy Walker appeals from the denial ofhis petition to modify
child support, arguing that the court erred in not finding a change in circumstances. The
trial court did not err and we affirm.
FACTS
Tommy and Dawn Walker (now Kight) divorced in 2001 after 12 years of
marriage. Their three children primarily lived with their mother, although Mr. Walker
had regular visitation and custody. He was ordered to pay $850 per month in child
support.
In 2007, Mr. Walker won approximately $3,000,000 in the lottery and accepted his
winnings as an annuity paid out over 26 years. The court granted Ms. Kight's subsequent
motion to modify support and ordered Mr. Walker to pay nearly $2,000 per month.
No. 33301-9-III
In the Marriage of Walker
Facing financial difficulties, Mr. Walker sold nearly half of his future payments in
2009 for $450,000, and two years later sold nearly all of the rest for $550,000. He then
brought a motion to modify the child support on the basis that he no longer had the same
income level. Throughout this period Mr. Walker has continued to work full-time.
A commissioner granted the motion and Ms. Kight sought revision. The judge
granted revision and reversed the modification, concluding that Mr. Walker had a
continuing obligation to pay child support and that he dissipated his income stream in bad
faith. There was no evidence indicating where the money had been spent and the court
found Mr. Walker's explanation not credible.
Mr. Walker then appealed to this court.
ANALYSIS
Mr. Walker contends the trial court erred in reversing the modification, arguing
that his income had changed and the trial court had to improperly impute income to him
in order to deny his request. We do not agree.
This court reviews the ruling on a petition to modify child support for abuse of
discretion. In re Marriage of McCausland, 159 Wash. 2d 607, 615, 152 P.3d 1013 (2007).
Discretion is abused when it is exercised on untenable grounds or for untenable reasons.
In re Marriage of Littlefield, 133 Wash. 2d 39, 46-47, 940 P.2d 1362 (1997).
Child support is set by statute with the support obligation divided proportionately
to the parents' respective income levels. RCW 26.19.001, .080(1 ). When calculating the
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In the Marriage of Walker
child support obligation, the court begins by considering all "income and resources of
each parent's household." RCW 26.19.071(1). "Income" is not defined, but the statute
does explain various sources of gross income that either must be considered (RCW
26.19.071(3)) or not considered (RCW 26.19.071(4)). Generally, a trial court may
modify a child support order "only upon a showing of a substantial change of
circumstances." RCW 26.09.l 70(l)(b). Before modifying child support payments, the
trial court must consider "all factors bearing upon the needs of the children and the
parents' ability to pay." In re Marriage of Pollard, 99 Wash. App. 48, 52, 991 P.2d 1201
(2000). The trial court applies the uniform child support schedule, basing the support
obligation on the combined monthly incomes of both parents. RCW 26.19.020,
.035(l)(c), .071(1).
Also relevant to our discussion are the ideas of imputed income and voluntary
underemployment. RCW 26.19.071(6) states in relevant part:
Imputation of income. The court shall impute income to a parent when
the parent is voluntarily unemployed or voluntarily underemployed. The
court shall determine whether the parent is voluntarily underemployed or
voluntarily unemployed based upon that parent's work history, education,
health, and age, or any other relevant factors. A court shall not impute
income to a parent who is gainfully employed on a full-time basis.
"Voluntary underemployment" has not been defined in Washington, but we
believe that it should be treated similarly to "voluntary unemployment," a concept which
has been defined as "unemployment that is brought about by one's own free choice and is
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In the Marriage of Walker
intentional rather than accidental." In re Marriage ofBrockopp, 78 Wash. App. 441, 446
n.5, 898 P.2d 849 (1995). A court's decision on imputation of income due to voluntary
underemployment is reviewed for abuse of discretion. In re Marriage of Wright, 78 Wn.
App. 230, 234, 896 P.2d 735 (1995).
With these thoughts in mind, we turn now to the issue presented by this appeal.
The parties and the trial court have consistently treated the lottery annuity as income
since that approach was adopted by the trial court in Ms. Kight's motion to modify the
original support obligation. On revision, the trial judge also recognized the annuity as
income. Because the trial court treated this as an income case, Mr. Walker argues that he
was being treated as voluntarily underemployed for diminishing his income even though
the court made no findings to support that reasoning. If in fact that were the proper
characterization of this case, Mr. Walker would probably be correct. There were no
findings made to support a voluntary underemployment ruling.
There is, however, another way to view these transactions-and we believe it is
how the trial court viewed the matter. Each time Mr. Walker sold a portion of the
annuity he received present value in exchange. Mr. Walker received $1 million as
compensation for his now diminished income stream. This is not actually a decrease in
income, but rather an accelerated realization of that income. Consequently, Mr. Walker
simply failed to establish a change in income that would support a modification of the
child support order. He simply accepted that annual income in a different form-two
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In the Marriage of Walker
lump sum payments instead of monthly payments. He had no ability to convert his
income into merely an asset that he could then dissipate.
Accordingly, since the trial court concluded that Mr. Walker had not established
his income had changed (even if, perhaps, its form had changed), there was a very tenable
reason to deny the motion to modify. There was no abuse of the trial court's discretion.
Affirmed.
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.
WE CONCUR:
~ e l l , J. 9-Q ' 8
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