Clark v. Clark (In re Marriage of Clark)

In re the Marriage of JAMES ALAN CLARK, Appellant, v. WENDY KRISTINE CLARK, Respondent.

No. 79424-8-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

January 13, 2020

UNPUBLISHED OPINION

ANDRUS, J. — The trial court denied James Clark's petition to modify his child support obligation based on a reduction of employment hours and income. His appeal is largely focused on arguments that he failed to preserve for appeal. To the extent he challenges the merits of the court's decision on his petition to modify, we conclude that the trial court did not abuse its discretion and affirm.

FACTS

James and Wendy Clark dissolved their marriage in 2011.¹ They have two children, who were 6 and 8 years old at the time of the dissolution. The trial court entered agreed orders that equally allocated residential time with the children and apportioned the child support obligation according to the standardchild support calculation based on each parent's proportionate share of the combined income.²

Approximately one year after the final orders were entered, James began multiple attempts to reduce his child support obligation, seeking to deviate from the standard child support calculation based on the substantial amount of time the children reside in his household. See RCW 26.19.075(1)(d).³ The court rejected these requests.

In 2014, after the court had denied two petitions to reduce support and awarded attorney fees to Wendy in connection with one of those requests, James filed a petition to modify support. He again requested a deviation based on the shared residential schedule. A court commissioner denied the motion, observing that a deviation for residential credit is discretionary and generally not warranted where there is a significant disparity in the parents' income. At the hearing on James's motion, the commissioner explained:

The bigger the differential in income, the less likely you are to get a residential credit, and the reason for that is because the household that has 50 percent of the time with the lower income is at an economic disadvantage in maintaining the life that these kids have . . .

The commissioner denied Wendy's fee request, but cautioned James that she would "absolutely" award fees if he filed another motion raising the same argument.

In 2017, James filed a petition to modify the parenting plan. This time, he proposed a slight increase in his residential time with the children, along with a reduction of child support. James described his proposal as a "college savings plan," which would allow him to set aside over $1,000 per month for future postsecondary education expenses. While urging the court to dismiss James's petition, Wendy also sought an adjustment of child support, because it had been two years since entry of the previous order of support and one of the children had moved into a new age bracket. See RCW 26.09.170(6)(b) (allowing for adjustment after one year if a child is no longer in the age category upon which the support obligation is based).

A commissioner denied James's petition, describing it as a "cynical" and transparent attempt to further his own financial interests. The commissioner granted Wendy's requested adjustment and awarded her attorney fees. The superior court denied James's motion for revision and awarded additional attorney fees to Wendy. This court upheld the superior court's order on appeal. See Clark v. Clark, No. 77253-8-I (Wash. Ct. App. June 11, 2018) (unpublished) http://www.courts.wa.gov/opinions/pdf/772538.pdf.

The 2017 child support order required James to make a transfer payment of $2,054 to Wendy based on his 72 percent proportional share of the combined income. The order states:

Father has requested [a] residential deviation which has been denied multiple times by the court due to disparity in income between the parties. Downward deviation for post-secondary support is untimely due to [the] age of the children.

While James's appeal was pending, he refused to pay the full amount of child support. As a result, on June 26, 2018, a court commissioner found James in contempt for failing to comply with the July 2017 support order. The court ordered him to pay the child support arrearage as well as attorney fees and costs of more than $2,500 to Wendy.

On August 1, 2018, James filed the petition at issue in this appeal, seeking to modify child support based on an alleged substantial change of circumstances with respect to his employment and income. See RCW 26.09.170(5)(a) ("[a] party to an order of child support may petition for a modification based upon a showing of substantially changed circumstances at any time"). James also asserted that the current support order had been in place for at least a year and created a "severe economic hardship." See RCW 26.09.170(6)(a) (support order may be modified if it has been in place for at least a year without a showing of substantially changed circumstances if the order creates a "severe economic hardship.").

James explained that he had been involuntarily laid off by his employer, Northrop Grumman Corporation (Northrop), on July 26, 2018, and hired by a different company, Engineering Services Network (ESN), the following day. However, James stated that while he was reemployed at approximately the same hourly rate of pay, his new position at ESN was part-time. Consequently, he claimed his annual salary was reduced to approximately half of his 2017 income.

James stated that his part-time schedule would allow him to restart a consulting business he had operated in the past. While he predicted that it would take approximately a year for the new business to become profitable, James opined that developing his own business would ultimately increase his earning potential and said he could "picture roles in the company" for his children in the future. James argued that, as a result of his reduced income, there was no longer a substantial disparity between his income and Wendy's. He believed that it was "long past time" for the court to award a residential credit under RCW 26.19.075(1)(d) in light of the parties' equal residential time. Based on his projected new income, James claimed that his monthly child support obligation should be reduced to $1,059.

Two months later, James sought a temporary order eliminating his child support transfer payment. He also reiterated his challenges to the 2017 child support order that had been recently affirmed on appeal, including his claims that the existing child support order was detrimental to the children because it prevented him from saving for their future educational expenses and that he was entitled to a residential credit deviation.

Wendy opposed modification, arguing that James's decision to accept part-time employment was not a basis to modify the 2017 order. Wendy explained that Northrop, James's employer for the preceding 13 years, historically issued layoff notices before its defense contract was renewed and then promptly rehired its employees after renewal. Wendy pointed out that James did not say whether he had been offered full-time employment andobserved that his latest motion represented his sixth attempt since 2011 to reduce child support.

James denied that he was voluntarily underemployed. He argued Wendy had no personal knowledge of the negotiations surrounding his 2018 layoff and rehiring, but at the same time, he provided no information to verify that he was not offered reemployment with Northrop or that he was not offered full-time employment at any rate of pay.

At the October 2018 hearing on his motion, James argued that the transfer payment required by the 2017 support order was neither sustainable nor equitable in light of his reduced income. But instead of elaborating on his employment options, James focused on the previously-litigated issue of a deviation based on residential credit. James said that his purpose, "[f]irst and foremost," was to obtain a residential credit deviation. James claimed that any payment above $1,440, which represented fifty percent of the total child support obligation, was "backdoor[]" maintenance. James also informed the commissioner that he had obtained all the credentials to become a "digital forensics expert witness," and that he expected to substantially increase his income "within the next year."

The commissioner denied the motion to modify, concluding there was no substantial change in circumstances to warrant modification of child support. The commissioner noted that James's requests for a discretionary deviation based on residential credit had been previously denied based on a significant disparity in the parties' incomes and that, since he planned to work full-time andto expand his salary base in the near future, the disparity was not eliminated. The commissioner denied reconsideration and ordered James to pay Wendy approximately $8,000 in attorney fees.

James filed a motion to revise the commissioner's ruling. Wendy then filed a motion seeking to declare James a vexatious litigant and to require that he post a bond before filing further pleadings seeking affirmative relief. She also requested attorney fees incurred in responding to James's motion to revise.

Following a hearing on both motions, the trial court denied James's motion to revise, based on a de novo review of the record before the commissioner, but granted Wendy's motion to declare James to be a vexatious litigant. The court entered an order placing limitations on James's ability, for a year, to file petitions or motions pertaining to child support. The court denied Wendy's request for attorney fees.

James appeals from the order denying revision and the order granting Wendy's motion to prevent vexatious litigation.

ANALYSIS

A. Constitutional Arguments

James primarily argues on appeal that he is entitled to a deviation from the standard calculation child support obligation. He claims that the failure to apply a deviation in a case of equally allocated residential time...