Flax v. Ding

1

In the Matter of the Marriage of: MATTHEW FLAX, Respondent, v. HAO DING, Appellant.

No. 83180-1-I

Court of Appeals of Washington, Division 1

August 1, 2022

UNPUBLISHED OPINION

HAZELRIGG, J.

Hao Ding appeals from a denial of his "Petition to Modify Child Support Order," arguing the court abused its discretion. Because Ding fails to demonstrate that the trial court based its decision on untenable grounds or for untenable reasons, we affirm.

FACTS

Matthew Flax and Hao Ding^[1] were married in 2014 and separated in January, 2019. They have two dependent children, I.D.-F. and E.D.-F. Their divorce was finalized in March 2020; the court entered several orders, including "Findings and Conclusions about a Marriage," a "Child Support Order," a "Parenting Plan,"^[2] and "Child Support Worksheets" calculating the income of both parents. Ding's income was imputed after the court found he was voluntarily unemployed. The court further found that Ding receives support from his "very wealthy parents" who "pay for his housing and living expenses," and therefore "he does not work because he does not have to work: his parents support him."^[3] The child support order required that Ding pay Flax each month, setting Ding as the obligor and Flax as the obligee. However, the monthly transfer payment was deviated to zero dollars because the children "spend significant time with the parent who owes support" and Flax's household was still able to meet the children's basic needs without a monthly support payment from Ding.

A flurry of litigation followed. At issue here is Ding's "Petition to Modify Child Support Order," which he filed on April 14, 2021. Therein, he asserted that a substantial change of circumstances entitled him to a revision, citing a "[c]hange in employment after extreme difficulty finding work and severe financial circumstances." At the hearing on this petition, Flax was represented by counsel while Ding appeared pro se. The commissioner dismissed Ding's petition and awarded attorney fees to Flax. Ding obtained counsel and timely appealed.

ANALYSIS

I. Substantial Change in Circumstances

Ding first argues the court erred in denying his request for a modification of the support order based on his failure to establish a substantial change of circumstances. He specifically sought an award of child support from Flax and to modify the proportional allocation of day care educational, and "other" expenses for the children as well as tax issues. "A trial court's decision whether there has been a substantial change in circumstances must not be reversed by the reviewing court absent a manifest abuse of discretion." Leslie v. Verhey, 90 Wn.App. 796, 802, 954 P.2d 330 (1998). If the court's decision is manifestly unreasonable or based on untenable grounds or reasons, it abuses its discretion. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). We review findings of fact "'under a substantial evidence standard, defined as a quantum of evidence sufficient to persuade a rational fair-minded person the premise is true.'" DeVogel v. Padilla, 22 Wn.App. 2d 39, 48, 509 P.3d 832 (2022) (quoting Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)). We do not weigh evidence or determine witness credibility. Id. (quoting Greene v. Greene, 97 Wn.App. 708, 714, 986 P.2d 114 (1999)).

The party seeking modification of a child support order "bears the burden of showing a substantial change in circumstances since the entry of the dissolution decree." Leslie, 90 Wn.App. at 802. "The change of circumstances must have been uncontemplated at the time the decree was entered" because the superior court's "[c]ontinuing jurisdiction" over the parties "is not a license to relitigate settled matters without the requisite showing of changed circumstances." In re Marriage of Arvey, 77 Wn.App. 817, 820, 894 P.2d 1346 (1995); Burch v. Burch, 81 Wn.App. 756, 762, 916 P.2d 443 (1996). A fluctuation in income alone is not necessarily sufficient to find a substantial change in circumstances: "[w]here the obligor has other means of paying [their] child support obligation, the trial court has the discretion to enforce the obligation even in the face of a total lack of income." In re Marriage of Blickenstaff, 71 Wn.App. 489, 498, 859 P.2d 646 (1993).

Ding alleges the superior court failed to conduct "an independent inquiry or investigation" into Ding's current financial circumstances. He contends the shift in his employment history, income, and his parents' financial circumstances constituted a substantial change in circumstances since the final orders were entered pursuant to the dissolution. He states that his parents, who previously supported Ding financially, are now "fighting to save a failing business, desperately seeking repayment of my loans from them." He further argues that the court should not have considered his parents' financial resources, suggesting the court imposed an obligation on them to provide for Ding and Flax's children. This is not what occurred.

In its March 18, 2020 order awarding child support to Flax, the court specifically found "Ding has very wealthy parents who support him. They pay for his housing and living expenses" and therefore "Ding's home clearly has more resources than Flax's home." Further, the court found "Ding is not working" and "his testimony that he is unable to find a job because of his lack of English proficiency not credible. It appears that he does not work because he does not have to work: his parents support him." This order was not appealed within 30 days; therefore, these findings are now verities. See In re Custody of A.T., 11 Wn.App. 2d 156, 163, 451 P.3d 1132 (2019) (unchallenged findings of fact are verities on appeal); see also RAP 5.2(a) (notice of appeal must be filed in the trial court no later than "30 days after the entry of the decision of the trial court"). The court also deviated from the standard child support calculation because the children "spend significant time with the parent who owes support" and set Ding's child support obligation to zero dollars.

Following the dissolution proceedings, the court expressly found that Ding's parents were supporting him, specifically providing for housing and living expenses and that, as a result, Ding's home had more resources than Flax's.^[4] Under Blickenstaff, the court was able to consider these other resources available to Ding with regard to any support obligation. See 71 Wn.App. at 498. As the petitioner in the current action, it was Ding's burden to provide proof of substantial change in circumstances, including the unavailability of those other resources, such that he was no longer able to meet the current support obligation. While much of his briefing focuses on the court's failure to conduct proper review of the parties' respective finances, this was because Ding did not satisfy his initial burden to demonstrate a substantial change in circumstances to justify such an inquiry, particularly with regard to this additional resource the dissolution court expressly found was available to him.^[5]

In ruling on the modification petition, the court also found Ding "presents no authority" to support his request to shift his status from obligor to obligee parent as "the parenting plan has not been modified." The court further found there was "[n]o explanation" for Ding's change in circumstances from the imputed income in March 2020. While Ding submitted some proof of his earnings, he provided no evidence to demonstrate that his parents no longer supported him financially. Recently, Division III of this court affirmed a denial of a petition to modify child support because "given the holes in Mr. Saha's financial records, it was not possible to conclude that the entirety of his financial status had substantially changed," constituting "a sufficient reason to deny the petition." In re Marriage of Battista and Saha, No.37263-4-III, slip op. at 6 (Wash.Ct.App. Apr. 8, 2021), (unpublished) https://www.courts.wa.gov/opinions/pdf/372634_unp.pdf. ^[6] Likewise, Ding bore the burden to demonstrate a significant change in circumstances and failed to sufficiently support his petition. We adopt the reasoning in Battista and conclude that the court here did not abuse its discretion in finding there was no basis for modification.

II. Designation of Primary Residential Parent

Ding next argues the court abused its discretion by finding he is not the primary residential parent. The court refused to reverse the designations of the original child support order establishing Ding as obligor and Flax as obligee without any modification of the parenting plan in part because Ding is not the primary residential parent. However, the March 18, 2020 child support order does not designate Flax as primary residential parent and in fact states, "The Court is not ordering a specific periodic adjustment schedule, except if Ding moves to Seattle and Flax becomes the primary residential parent, then a new Child Support Order should be entered." (Emphasis added.) This suggests not only that is Flax not the primary residential parent, but that neither parent is designated as such. The record of the hearing on his petition to modify suggests that Ding seemed to agree with the court's mistaken understanding of that aspect of the child support order.^[7]

While Ding now correctly identifies the court's mistaken understanding, he did not make the argument that he should be the primary residential parent during the hearing. This "court may refuse to review any claim of error which was not raised in the trial court." RAP 2.5(a). Because Ding failed to present this challenge to the trial court, we decline to reach it on appeal.

III. ...