§ 28.05 JUDICIAL ESTABLISHMENT OF CHILD SUPPORT
In Washington, child support can be established by the superior court or through an administrative process. This section addresses the judicial establishment of support.
[1] Jurisdiction
For a child support order to be valid, the court that enters it must have in personam jurisdiction over the obligor. See Chapter 15 (Divisible Divorce—Jurisdiction, Venue, Commencement) of this deskbook. Personal service is required to obtain in personam jurisdiction. Kennedy v. Korth, 35 Wn. App. 622, 668 P.2d 614, review denied, 100 Wn.2d 1026 (1983). Personal service of process within the state is sufficient to give the court in personam jurisdiction, even if the parent is in the state only temporarily. Burnham v. Superior Court of Cal., 495 U.S. 604, 110 S. Ct. 2105, 109 L. Ed. 2d 631 (1990); In re Marriage of Peterson, 68 Wn. App. 702, 843 P.2d 1107 (1993) (declining to follow Bershaw v. Sarbacher, 40 Wn. App. 653, 700 P.2d 347 (1985)). Notice without proper service does not confer jurisdiction. In re Marriage of Logg, 74 Wn. App. 781, 875 P.2d 647 (1994).
Service of process by publication is insufficient to support a default judgment for child support against a nonresident defendant. In re Marriage of Johnston, 33 Wn. App. 178, 653 P.2d 1329 (1982). Court-authorized service of process by certified mail with a signed return receipt is sufficient to obtain in personam jurisdiction in cases involving indigent petitioners. When service by mail is done as an alternative to publication because the spouse's whereabouts are unknown, there is no in personam jurisdiction. Ashley v. Superior Court, 83 Wn.2d 630, 521 P.2d 711 (1974) (Brachtenbach, J.). Service of process by publication against a defendant who leaves the state with intent to avoid service is sufficient for in personam jurisdiction. RCW 4.28.100(2); Dobbins v. Beal, 4 Wn. App. 616, 483 P.2d 874, review denied, 79 Wn.2d 1007 (1971). But see In re Marriage of Himes, 136 Wn.2d 707, 965 P.2d 1087 (1998) (false affidavit submitted in support of publication renders judgment void for lack of in personam jurisdiction); Logg, 74 Wn. App. 781 (affidavit in support of publication must recite all elements required by statute).
In personam jurisdiction may be obtained over a respondent residing out of state if the requirements of RCW 4.28.185 are met. For dissolution cases, the long-arm statute requires that the parties resided within the state and one of them remained in the state continuously from separation until filing. RCW 4.28.185(1)(f). In personam jurisdiction is granted with regard to any child conceived within the state. RCW 4.28.185(1)(e). Attenuated contacts with this state by a parent residing out of state do not give rise to in personam jurisdiction. In re Marriage of Tsarbopoulos, 125 Wn. App. 273, 104 P.3d 692 (2004). The failure of a person residing out of state to pay support for children residing in state does not, by itself, give rise to in personam jurisdiction. In re Marriage of Yocum, 73 Wn. App. 699, 870 P.2d 1033 (1994). In personam jurisdiction can also be asserted if the parent resided in this state with the child or the child resides in this state as a result of the acts or directives of the parent residing outside of the state. RCW 26.21A.100(1)(e). This statute extends personal jurisdiction to "any other basis consistent with the constitutions of this state and the United States." RCW 26.21A.100(1)(h).
Caveat: Failure to file an affidavit of out-of-state service prior to the entry of the final decree is jurisdictional and results in a void support order. RCW 4.28.185(4); Barr v. Interbay Citizens Bank, 96 Wn.2d 692, 696, 635 P.2d 441 (1981); Schell v. Tri-State Irrig., 22 Wn. App. 788, 591 P.2d 1222 (1979).
A respondent who is not otherwise subject to in personam jurisdiction may consent to the court's exercise of personal jurisdiction expressly or by implication. Consent by implication may occur if the party appears in the action and fails to raise a claim of lack of personal jurisdiction by answer or by motion. In re Marriage of Steele, 90 Wn. App. 992, 957 P.2d 247, review denied, 136 Wn.2d 1031 (1998). A respondent may appear with regard to the custody action and still assert lack of personal jurisdiction with regard to child support. In re Marriage of Peck, 82 Wn. App. 809, 920 P.2d 236 (1996).
Subject matter jurisdiction is broadly vested in the superior courts and a lack of jurisdiction exists only when explicitly limited by statute or Congress. In re Marriage of Major, 71 Wn. App. 531, 859 P.2d 1262 (1993) (court had jurisdiction to award postsecondary support even after child turned 18).
[2] Procedure
Most superior court actions will be initiated by a summons and petition. The petition must be verified, CR 11, and the summons should comply with CR 4.1. The Dissolution of Marriage Act designates the proper form for the caption, RCW 26.09.010, and the contents of the petition, RCW 26.09.020. A dissolution action may be filed in the county where the petitioner resides or where the respondent resides. RCW 26.09.010(2). If the case is not filed where the petitioner resides, the respondent has the right to have the case moved to the respondent's county of residence. RCW 4.12.025; In re Marriage of Strohmaier, 34 Wn. App. 14, 659 P.2d 534 (1983). A proceeding to enforce a duty of support when filed as an original action may be filed in the county where the dependent child resides or is present or where the obligor or obligee resides. RCW 26.18.040. For actions under the family expense statute or to enforce a contractual obligation of support, any appropriate pleading should suffice, and the general rules of venue will apply. RCW 2.28.150; RCW 4.12.025. Use of a summons and verified petition are recommended.
In an action to establish current and future support, interim relief is available by seeking entry of a temporary order of support (TMORS). RCW 26.09.060(1); RCW 26.26A.470. A worksheet must be filed in every case pursuant to the support schedule. RCW 26.19.035(3). A standard financial declaration form has been adopted by the administrator for the courts to be used in child support cases. RCW 26.18.220(1). The local rules should be checked when seeking a temporary order. Those rules usually prescribe the procedures to follow and the forms and format to be used for the county where the case is being filed.
[3] Prayer for Relief and Entry of Order
The prayer for relief in the mandatory form petition requests that support be set based on the support schedule, which includes the economic table and other statutory provisions. The economic table and worksheets, effective January 1, 2019 [Definitions, Standards and Instructions effective June 11, 2020], are based on an income shares, which combines the net monthly income of the two parents and sets support based on the number of children for whom a duty of support is owed. The statutory scheme allows for consideration of the parents' income, resources, and standard of living. RCW 26.19.001.
In default cases, the defaulting party's income can be based on actual earnings, or, in the absence of records of the parent's actual earnings, except regarding high school students, the court can impute income in the following order of priority:
(i) Full-time earnings at the current rate of pay;
(ii) Full-time earnings at the historical rate of pay based on reliable information, such as employment security department data;
(iii) Full-time earnings at a past rate of pay where information is incomplete or sporadic;
(iv) Earnings of thirty-two hours per week at minimum wage in the jurisdiction where the parent resides if the parent is on or recently coming off temporary assistance for needy families or recently coming off aged, blind, or disabled assistance benefits, pregnant women assistance benefits, essential needs and housing support, supplemental security income, or disability, has recently been released from incarceration, or is a recent high school graduate. Imputation of earnings at thirty-two hours per week under this subsection is a rebuttable presumption;
(v) Full-time earnings at minimum wage in the jurisdiction where the parent resides if the parent has a recent history of minimum wage earnings, has never been employed and has no earnings history, or has no significant earnings history;
(vi) Median net monthly income of year-round full-time workers as derived from the United States bureau of census, current population reports, or such replacement report as published by the bureau of census. [See Approximate Median Net Monthly Income Table, in Wash. Courts, Admin. Off. of the Courts, WASHINGTON STATE CHILD SUPPORT SCHEDULE at 7 (Jan. 2019), https://www.dshs.wa.gov/sites/default/files/ESA/dcs/documents/WSCSS-PAMPHLET.pdf. ]
RCW 26.19.071(6)(a)(i)-(vi).
When a parent is currently enrolled in high school full-time, the court shall consider the totality of the circumstances of both parents when determining whether each parent is voluntarily unemployed or voluntarily underemployed. If a parent who is currently enrolled in high school is determined to be voluntarily unemployed or voluntarily underemployed, the court shall impute income at earnings of twenty hours per week at minimum wage in the jurisdiction where that parent resides. Imputation of earnings at twenty hours per week under this subsection is a rebuttable presumption.
RCW 26.19.071(6)(b).
If an order is entered by default, the support order must be consistent with the prayer for relief contained in the petition. Any support ordered in excess of the amount prayed for is void.
"Due process mandates that a defendant be given 'sufficient notice to make an intelligent decision to appear or default." In re Marriage of Johnson, 107 Wn. App. 500, 504, 27 P.3d 654 (2001) (quoting Conner v. Universal Utils., 105 Wn.2d 168, 172, 712 P.2d 849 (1986)). "To the extent a default judgment exceeds the relief...
