In re Marriage of McRae

4 Wn.App.2d 1041

In the Matter of the Marriage of: KATHRYN McRAE, Petitioner, v. DANIEL McRAE, Respondent.

No. 50178-3-II

Court of Appeals of Washington, Division 2

July 10, 2018

UNPUBLISHED OPINION

Bjorgen, J.

Daniel and Kathryn McRae^[1] resolved all of the terms of their divorce through mediation except those covering child support. Kathryn subsequently filed a motion requesting child support with the superior court, which alleged Daniel was voluntarily underemployed. The court agreed. The superior court then entered a child support order and calculated Daniel's obligation by imputing his income based on his past earnings. Daniel appeals.

Daniel argues that the superior court erred when it (1) found him voluntarily underemployed, (2) imputed his income, (3) found their children spend most of their time with Kathryn under the 50/50 parenting plan, and (4) refused to deviate downward from the standard child support calculation. Kathryn requests an award of attorney fees and costs on appeal.

Concluding the superior court strayed from governing legal principles when it found Daniel was voluntarily underemployed, we reverse and remand.

FACTS

After roughly six years of marriage, Daniel and Kathryn separated. They have two children. On March 10, 2016, Kathryn filed a petition for dissolution of marriage. On April 27, the superior court approved a temporary parenting plan, and on December 21 Daniel and Kathryn settled the majority of their issues through mediation. They agreed to split their assets equally, to follow a 50/50 parenting plan, and that spousal maintenance would terminate. A final divorce order and dissolution decree was filed on February 7, 2017. The only issue left unresolved was child support.

Daniel owns and operates a commercial harvest diving operation. In the past, Daniel owned and operated up to four commercial dive boats, conducted managerial duties, and was employed as a boat captain and diver until approximately six months before he and Kathryn separated. Daniel declared:

When our relationship ended I found myself unable to care for my children and return to being out on the water for 12-hours a day plus working out of town for weeks at a time as I had done in the past for work. In the past with managing the business and working as a diver I would work more than 80-hours a week. I have averaged 40-50 hours a week since that time in order to care for our children and be there for them on our shared schedule.

Clerk's Papers (CP) at 378. Daniel continued:

I already work over 40-hours a week managing my business and diving would add another 40-hour a week job to that time. I could do this when I was with Kathryn as a stay-at-home mother and homemaker, but having my two children 50% of the time and taking on all the household duties makes such overtime impossible. I was forced to decide between 50/50 custody of my children and being employed as a diver. If I chose diving I would only be able to see my children 2 days a month if that because I would be out on the water all day doing office work at night and working on my boats during the weekends. I made the choice to reduce the hours I worked and while it had impacted the time I have been able to work it does not constitute a reduction in my hours of labor below a standard work week.

CP at 379-80.

In 2014, Daniel earned $157, 900. In 2015, he earned $146, 884. In 2016, he earned $93, 094. Apparently, the decrease in salary reflects Daniel's choice to forego working as a boat captain and diver in his commercial harvest diving operation.

Daniel provided declarations of two other commercial fishermen who are engaged in similar work. They describe the usual or customary hours of work and duties of workers in his field. The declaration of Corey Elkins provides a list of duties he performs as the owner and operator of a commercial fishing boat; he declares he works roughly 38 hours per week. The declaration of Curtiss Bakker provides a list of duties he performs as the owner and operator of multiple commercial geoduck dive boats; he declares he works approximately 50-60 hours per week.

Kathryn has an associate's degree and training and certification in medical coding. She is employed full-time and earning a salary of $56, 500 per year.

Kathryn filed a motion requesting child support. In that motion, she argued that Daniel was voluntarily underemployed and requested the court to impute his income based on his past earnings. The motion cited RCW 26.19.071(6), but did not provide a full quotation of the relevant authority.

At a hearing on the motion, the superior court stated it was "[n]ot persuaded by Mr. McRae's argument in regards to his employment situation, so I am finding that he is voluntarily underemployed, which requires that his income be imputed by the use of the historical data that is available." Verbatim Report of Proceedings (VRP) (Mar 3, 2017) at 25-26. The superior court did not make any credibility findings. The child support order likewise discloses the court concluded Daniel was voluntarily underemployed. The court did not make a finding-oral or written-that Daniel was purposely underemployed to reduce his child support obligation as required by RCW 26.19.071(6). The court also did not check the box on the child support order that Daniel was purposely underemployed to reduce his child support obligation.

The superior court imputed Daniel's income. It calculated his full-time pay using his historical income averaged from 2014 2015, and 2016. Under the standard calculation section of the order, the court made the following finding:

All children living together - All of the children are living with . . .: Kathryn McRae most of the time. The other parent must pay child support. The standard calculation from the Child Support Schedule Worksheets line 17 for the parent paying support is . . . $1, 631.

CP at 413 (emphasis added).

In its oral ruling regarding Daniel's requested deviation from the standard calculation, the court found:

In looking at the factors under RCW 26.19.075, I don't believe a deviation is needed or appropriate in this case and will not be ordered. There is a large disparity in the income and would result-a deviation would result in leaving Ms McRae, the petitioner, with insufficient funds.

VRP (Mar. 3, 2017) at 26. The child support order related to Daniel's request for deviation found that "a deviation would leave insufficient funds in the mother's household." CP at 414.

Daniel appeals.

ANALYSIS

I. Determination of Child Support

A. Standard of Review

The legislature adopted the uniform child support schedule as a means to equitably apportion the child support obligation between parents, insure child support is adequate to meet a child's basic needs, and provide additional child support commensurate with the parents' income, resources, and standard of living. RCW 26.19.001. A child support order must be supported by written findings of fact and must be accompanied by a completed child support worksheet. RCW 26.19.035(2), (4). On appeal, we defer to the sound discretion of the superior court unless it has manifestly abused its discretion. In re Marriage of Booth, 114 Wn.2d 772, 776, 779, 791 P.2d 519 (1990).

A superior court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). A superior court's decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard. Id. at 47. It is based on untenable grounds if the factual findings are unsupported by the record, and it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard. Id.

We review findings of fact for substantial evidence. In re Marriage of Wilson, 165 Wn.App. 333, 340, 267 P.3d 485 (2011). Substantial evidence exists when there is sufficient evidence to persuade a fair-minded, rational person of the finding's truth. Id. We treat unchallenged findings of fact as verities on appeal. In re Marriage of Fiorito, 112 Wn.App. 657, 665, 50 P.3d 298 (2002).

We do not substitute our judgment for the superior court's judgment, weigh the evidence, or evaluate witness credibility. Wilson, 165 Wn.App. at 340. When the superior court has weighed the evidence, we determine only whether substantial evidence supports the findings of fact, and if so, whether the findings support the superior court's conclusions of law. Id. We review the superior court's conclusions of law de novo. In re Marriage of Wehr, 165 Wn.App. 610, 613, 267 P.3d 1045 (2011).

B. Voluntarily Underemployed

Daniel argues the superior court erred, as a matter of law, when it found him voluntarily underemployed. We agree.

RCW 26.19.071(6) states, in part, "The court shall determine whether the parent is voluntarily underemployed . . . based upon that parent's work history, education, health, and age, or any other relevant factors." The statute also provides that "[a] court shall not impute income to a parent who is gainfully employed on a full-time basis." Id. (emphasis added).

Daniel points us to In re Marriage of Peterson, 80 Wn.App 148, 906 P.2d 1009 (1995), to illustrate he was gainfully employed. In that case, the superior court found Peterson voluntarily underemployed because he had a law degree and was a member of the Washington State Bar Association, but earned only $1, 500 per month (or $18, 000 per year) working full-time for a bail bond company as in-house legal counsel and bail bond agent. Id. at 154. The superior court reasoned Peterson earned less than one-half the median net income for a...