                                                                                            Filed
                                                                                      Washington State
                                                                                      Court of Appeals
                                                                                       Division Two

                                                                                         May 29, 2019
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                        DIVISION II
 In re the Parenting and Support of:                              No. 50986-5-II

 Children:                                                  UNPUBLISHED OPINION

 P.C.

 Petitioner:

 CINDY CHOW

 And Respondent:

 JACOB COBUN


        GLASGOW, J. — Cindy Yen Chow and Jacob Christopher Cobun lived together for about

four years and they had one child together. After they broke up, the superior court awarded child

support and granted Cobun a $100 per month downward deviation, meaning that he would pay

$100 less per month than the standard child support calculation would have required. Chow

appeals.

        Chow argues the superior court abused its discretion when it allowed Cobun the

downward deviation because (1) neither the facts nor findings support a conclusion that ordering

Cobun to pay the full standard calculation amount would be inequitable, (2) the court relied on

an unapproved worksheet, and (3) the court’s findings of fact do not support a downward

deviation. Cobun argues the superior court did not err and requests attorney fees on appeal.

        We affirm the superior court’s child support order, but we deny Cobun’s request for

attorney fees.
No. 50986-5-II


                                              FACTS

        Chow and Cobun lived together for about four years and had a son together. When the

couple separated, both parties petitioned the superior court for a parenting plan, residential

schedule, and child support. The matter proceeded to trial to resolve disputes about the

appropriate residential schedule and child support.

        At the time of trial, Chow owned her own dental practice, specializing in endodontics,

and she earned about $8,000 per month. Chow had also recently secured a $1.2 million dollar

loan to fund her new private practice. Chow worked Monday through Thursday.

        Cobun worked as a full time firefighter and made $7,414.96 per month. Cobun had a

nontraditional work schedule, which consisted of a 9 day cycle where each fire crew worked one

24 hour shift, followed by 24 hours off duty, worked another 24 hour shift, followed by 24 hours

off duty, and then worked a final 24 hour shift (totaling 5 days), followed by 4 consecutive days

off duty. This schedule rotated consistently throughout the year. Because of his schedule,

Cobun sought visitation primarily on his consecutive days off duty, which varied from week to

week.

        Cobun also asked for deviation from the standard child support schedule based on his

proposed parenting plan and residential schedule. He testified that based on the number of days

his son would live with him, the expenses he would undertake for their son’s care would

increase. For example, Cobun would be transporting his son more and would have increased

expenses for food. He also believed that Chow’s expenses would reflect a corresponding

reduction. Based on his awareness of Chow’s historical income, and based on her projected

income at her new dental practice, Cobun also believed a deviation would not leave Chow with


                                                 2
No. 50986-5-II


insufficient funds. He sought a deviation from the standard child support calculation in the

amount of $244.69.

       Chow asked the court not to deviate from the standard calculation. She testified that she

did not believe that Cobun had undertaken any expenses in caring for their son that would reduce

her basic expenses.

       The superior court considered the Child Support Schedule Worksheet. It also considered

a “Residential Schedule Credit Using Formula,” generated by the court’s SupportCalc 2017

software. Clerk’s Papers (CP) at 209; see also Verbatim Report of Proceedings (VRP) (Nov. 17,

2017) at 5-9 (discussing the court’s use of SupportCalc). The computer program calculated a

recommended deviation from the standard child support calculation in the amount of $214.24.

       The superior court issued a memorandum opinion that established a parenting plan,

residential schedule, and child support. It designated Chow as the primary custodian. It granted

Cobun residential time during periods when he had four off-duty days in a row. The court found

that Chow’s gross income was $8,000 per month and Cobun’s was $7,577 per month. It found

Chow’s portion of the basic child support obligation to be 58 percent and Cobun’s 42 percent.

And it noted that the standard child support calculation resulted in a transfer payment from

Cobun to Chow in the amount of $500 per month. Regarding Cobun’s request for a downward

deviation, the court found:

               Based on RCW 26.09.035, the Court will allow a slight deviation of Father’s
       child support obligation, based on the following:

               - Parents’ relatively equal income;
               - The number of days the child spends with the Father (≈ 1/3 of each month)
               which the Court determines to be significant;
               - The circumstances of each hous[e]hold: 1 parent/1 child (when child is
               with that parent); and

                                                3
No. 50986-5-II


               - The fact that neither parent has insufficient income to support [themselves]
               while contributing to support of the child.

               The Court is allowing a residential credit to the Father of $141.96. The net
       monthly transfer payment, by Father to Mother, is $500.00, which shall be
       retroactive to September 1, 2017, and is due on the first day of each month
       thereafter. Worksheets are enclosed for attachment to the Final Child Support
       Order.

CP at 202. The amount of downward deviation was less than the deviation amount that

SupportCalc had recommended.

       The superior court entered orders consistent with its memorandum opinion, which recited

the same findings and reasons for deviation.

       Cobun moved for reconsideration and asked the court for clarification of his support

obligation specifically related to daycare expenses. At the hearing on reconsideration, the court

determined that it had made a mistake in calculating Cobun’s initial child support in light of

daycare expenses. The court discussed the fact that in making its original ruling, it used the

SupportCalc software to calculate a recommended deviation from the standard calculation. Then

the court determined, in its discretion, whether or not to grant a deviation, and, if so, how much,

based on the facts of the case.

       The superior court granted Cobun’s motion to correct its error in accounting for daycare

expenses, explaining that Cobun had to pay his proportionate share of daycare expenses. It then

recalculated Cobun’s child support obligation and recalculated the recommended deviation using

SupportCalc. The court exercised its discretion, providing Cobun a $100 downward deviation,

which was again less than the deviation SupportCalc recommended. And it entered an amended

final child support order, reciting the same reasons for the downward deviation provided in the

memorandum opinion and prior child support order.

                                                 4
No. 50986-5-II


       Chow appeals the superior court’s amended child support order granting Cobun a $100

per month deviation from the standard child support calculation.

                                           ANALYSIS

                  DEVIATION FROM THE STANDARD CHILD SUPPORT SCHEDULE

       Chow argues the superior court abused its discretion in granting a $100 deviation from

the standard child support calculation. We disagree.

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).

       Washington courts give considerable deference to a superior court’s decision setting child

support, reversing only where the court has manifestly abused its discretion. In re Marriage of

Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990); see also Choate v. Choate, 143 Wn. App. 235,

241, 177 P.3d 175 (2008). A superior court abuses its discretion if its decision is manifestly

unreasonable or based on untenable grounds or untenable reasons. In re Marriage of Horner,

151 Wn.2d 884, 893, 93 P.3d 124 (2004). A decision is manifestly unreasonable if it is outside

the range of acceptable choices, given the facts and the applicable legal standard; it is based on

untenable grounds if the factual findings are unsupported by the record; it is based on untenable




                                                 5
No. 50986-5-II


reasons if the court applied the incorrect legal standard or the facts do not meet the requirements

of the correct standard. Id. at 893-94.

B.     Basis for a Downward Deviation from the Standard Child Support Calculation

       Chow does not dispute how the superior court arrived at the standard calculation for child

support. She contests only the court’s decision to deviate from the standard calculation. Chow

first argues that the court abused its discretion because neither the facts nor the findings support a

conclusion that it would be inequitable to apply the standard calculation without deviation. We

disagree that this is the appropriate legal standard.

       Under RCW 26.19.075(1)(d), the superior court has discretion to deviate from the

standard calculation based on a variety of factors, including the children’s residential schedule

and the effect the child support obligation has on the parents’ income and expenses. In re

Marriage of Schnurman, 178 Wn. App. 634, 638, 316 P.3d 514 (2013). Under the plain

language of the statute, if the child spends a significant amount of time with the parent who is

obligated to make a support payment, the superior court may deviate from the standard

calculation. RCW 26.19.075(1)(d). However, the superior court may not deviate if doing so will

result in insufficient funds to meet the basic needs of the child in the household receiving the

support. Id.

       The superior court must also “consider evidence concerning the increased [and

decreased] expenses” of the parties resulting from “the significant amount of time the child

spends with the parent making the support transfer payment.” Id. The superior court must enter

written findings of fact supporting the reasons for any deviation or denial of a party’s request for

deviation. RCW 26.19.075(3); Schnurman, 178 Wn. App. at 640. Nothing in the plain language


                                                  6
No. 50986-5-II


of the statute requires a specific finding that it would be inequitable to impose child support

based only on the standard calculation, nor does the statute suggest that such a finding is a

prerequisite to ordering a deviation.

       Chow relies on statements in In re Marriage of Pollard and In re Marriage of Oakes for

the proposition that child support deviations should be granted only if it would be inequitable not

to deviate. In re Marriage of Pollard, 99 Wn. App. 48, 55, 991 P.2d 1201 (2000) (“Deviation

from the standard support obligation is appropriate when it would be inequitable not to do so.”);

In re Marriage of Oakes, 71 Wn. App. 646, 652 n.4, 861 P.2d 1065 (1993) (“[Deviations] remain

the exception to the rule and should be used only when it would be inequitable to do

otherwise.”). But in Pollard, the court was emphasizing the superior court’s discretion to deviate

when the court believed it would be inequitable not to do so based on the totality of

circumstances of both households. 99 Wn. App. at 54-55. In context, the cited language in

Pollard is not a limitation on the superior court’s broad discretion. Id.

       Similarly, the Oakes court explained that it was proper for the superior court to consider a

deviation based not on a recited statutory factor, but instead on a conclusion that the legislature

had not contemplated the factual circumstances that arose in that case. 71 Wn. App. at 650-52.

Thus, Oakes recognized the superior court’s broad discretion to deviate from the standard child

support calculation when the facts support it, even if doing so required consideration of

circumstances outside of the statutory factors.

       Contrary to Chow’s argument, neither of these cases dictates that the court must conclude

it would be inequitable to decline to impose a deviation. The superior court did not err when it




                                                  7
No. 50986-5-II


followed the statutory analysis without an added finding that applying the standard calculation

without deviation would be inequitable.

C.     Use of Computer Software to Calculate Recommended Deviation

       Chow argues the superior court abused its discretion because it relied on what she

characterizes as an unapproved worksheet to determine whether to grant a downward deviation.

We disagree.

       RCW 26.19.035(3) provides:

       Worksheets in the form developed by the administrative office of the courts shall
       be completed under penalty of perjury and filed in every proceeding in which child
       support is determined. The court shall not accept incomplete worksheets or
       worksheets that vary from the worksheets developed by the administrative office of
       the courts.

(Emphasis added.)

       Nevertheless, our Supreme Court has recognized, in a case specifically addressing

residential deviation, that

       “[b]ecause the [current] statute explicitly gives the trial court discretion to deviate
       from the basic child support obligation based on the facts of a particular case, a
       specific formula is neither necessary nor statutorily required to ensure the parents’
       child support obligation is properly allocated.”

Schnurman, 178 Wn. App at 642 (quoting State ex. rel. M.M.G. v. Graham, 159 Wn.2d 623, 636,

152 P.3d 1005 (2007)).1




1
 We note that the administrative office of the courts has an appendix worksheet for a “residential
split adjustment” to be used as part of the standard calculation only where at least one of the
children from this relationship is living with one parent most of the time. See
http://www.courts.wa.gov/forms/documents/WSCSS-Attachment%20for%20RSA.pdf. But this
worksheet does not indicate that it was intended to address deviations from the standard
calculations to account for residential time. See id.

                                                 8
No. 50986-5-II


       Chow relies on Choate, 143 Wn. App. at 241-44, to argue that the court erred in relying

on SupportCalc’s residential credit. In Choate, the child support order stated only that the reason

for deviation was “Whole Family Formula applied,” and the superior court attached a document

entitled “Whole Family Formula Deviation,” without entering other findings of fact applying the

statutory considerations to support its deviation. Id. at 242-43. The Choate court noted that the

appendix to chapter 26.19 RCW does not list a worksheet entitled “Whole Family Formula

Deviation.” Id. at 242. It held that the superior court’s reliance on that document—without

written findings of fact outlining the court’s specific reasons for deviation—constituted error. Id.

The court emphasized the lack of adequate independent findings and did not hold that

consideration of a worksheet, computer-generated calculation, or formula, by itself, would have

been error.

       We do not read RCW 26.19.035(3) to require reversal where the superior court has

considered a worksheet, formula, or SupportCalc-generated calculation when determining

whether it should deviate from the standard calculation. Indeed, such a holding could have

sweeping impact because superior courts and family law practitioners commonly use

SupportCalc. Instead, we read the two sentences in RCW 26.19.035(3) together to mean that the

administrative office of the courts has established certain required child support worksheets that

must be submitted in every case, and those required worksheets must not deviate from the

versions that the administrative office has approved.

       But that does not mean that a superior court cannot use other formulas or calculations to

inform a deviation decision, so long as the court considers the factors that the deviation statute

requires and enters findings adequately supporting its ultimate determination. This reasoning is


                                                 9
No. 50986-5-II


consistent with Choate, which reversed for a failure to enter adequate findings, and with the

significant deference that we give to superior courts in making child support determinations,

especially deviation determinations. See Goodell v. Goodell, 130 Wn. App. 381, 391, 122 P.3d

929 (2005).

        In this case, the superior court accepted the Child Support Schedule Worksheet

developed by the administrative office of the courts when it determined the parties’ basic child

support obligation. When addressing the request for deviation, the court advised the parties that

it did not do calculations by hand, but instead, used SupportCalc to do the math. The attachment

of the SupportCalc document merely provided a record of one item the court considered when it

applied the statutory factors. Notably, the court did not blindly adopt the SupportCalc’s

deviation calculation, but instead, adopted a different deviation based on its own application of

all of the relevant factors.

        We hold that the use of computer software as a tool to inform a superior court’s decision

on deviation does not, by itself, constitute an abuse of discretion, so long as the court enters

adequate written findings supporting its deviation decision. Therefore, the superior court did not

abuse its discretion when it used SupportCalc because here, as discussed below, substantial

evidence supports its findings.

D.      Substantial Evidence Supports the Superior Court’s Findings, Which in Turn, Support a
        Deviation

        Chow argues the superior court abused its discretion because substantial evidence does

not support its findings of fact, and the findings of fact do not support a downward deviation.

We disagree.



                                                 10
No. 50986-5-II


       RCW 26.19.035(2) provides, “An order for child support shall be supported by written

findings of fact upon which the support determination is based and shall include reasons for any

deviation from the standard calculation.” The superior court must enter written findings of fact

in all cases. Id.; see also RCW 26.19.075(3) (“The court shall enter findings that specify reasons

for any deviation or any denial of a party’s request for any deviation from the standard

calculation made by the court.”).

       We review findings of fact for substantial evidence. Wilson v. 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 do not substitute our

judgment for the superior court’s judgment, weigh the evidence, or evaluate witness credibility.

Id. 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).

       The record shows that the superior court supported its child support order with written

findings of fact and included the reasons for its deviation from the standard calculation. It found

that under the parenting plan, the child would spend a significant amount of time with Cobun.

The record shows the court considered testimony concerning the increased and decreased

expenses of both parties resulting from the residential schedule. It also heard testimony

regarding the specific expenses that Cobun expected to increase, specifically those related to

transportation and food. Finally, the record reflects that the deviation would not leave Chow




                                                11
No. 50986-5-II


with insufficient funds. This is all that RCW 26.19.035(2) and RCW 26.19.075(1)(d), (3)

required.

       Chow testified that she did not believe that Cobun had any child care expenses that

would, in effect, reduce her basic child support obligation. But the mere existence of conflicting

testimony does not undermine the superior court’s decision. We do not substitute our judgment

for the superior court’s judgment, reweigh conflicting evidence, or evaluate witness credibility.

Wilson, 165 Wn. App. at 340.

       Chow argues that the court here “did not list any facts [that] indicate how much the father

spends on the child when she is in his care [that] would justify the reduction in support.” Reply

Br. of Appellant at 7. However, RCW 26.19.035(2) and RCW 26.19.075(3) require the superior

court to “include” and “specify [its] reasons” for any deviation from the standard calculation in

its written findings. RCW 26.19.075(1)(d) requires the superior court to “consider evidence

concerning the increased [and decreased] expenses” of the parties that may result from granting a

deviation. (Emphasis added.) The superior court specified its reasons for granting a deviation in

the child support order, and it considered testimony from both parties concerning increased and

decreased expenses.

       Chow also relies on State on Behalf of Sigler v. Sigler, 85 Wn. App. 329, 338, 932 P.2d

710 (1997), to contend that the superior court’s findings were insufficient to support deviation.

In Sigler, it appears the superior court relied only on the fact that the child resided with the father

a significant amount of time. See id. Here, the superior court also relied on the parents’ similar

incomes and the circumstances of each household, which included testimony about the specific

expenses Cobun anticipated would increase.


                                                  12
No. 50986-5-II


       The record reflects how the superior court calculated the amount of deviation in this case.

The court considered testimony of the parties, including specific evidence that established the

number of days per year the child would reside with Cobun and testimony that Cobun’s expenses

for food and transportation would increase as a result. The court then used the SupportCalc

program to calculate a recommended deviation based on various inputs, it determined

SupportCalc’s recommendation was too high based on the evidence, and the court ultimately

granted Cobun a lesser deviation.

       Again, we do not substitute our judgment for the superior court’s, weigh the evidence, or

evaluate witness credibility. Wilson, 165 Wn. App. at 340. The record substantially supports the

superior court’s grant of a $100 per month deviation. The superior court did not abuse its

discretion.

E.     Attorney Fees on Appeal

       Cobun requests attorney fees on appeal. However, after review of his affidavit of need,

we deny Cobun’s request for attorney fees.

                                         CONCLUSION

       We affirm the superior court’s child support order. We deny Cobun’s request for

attorney fees.

       A majority of the panel having determined that this opinion will not be printed in the




                                                13
No. 50986-5-II


Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.



                                                    Glasgow, J.
 We concur:



 Worswick, J.




 Maxa, C.J.




                                               14
