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    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                        DIVISION ONE

In the Matter of the Marriage of                 No. 68507-4-1

SARA STEPHENSON,

             Appellant,

      and


SHATA STEPHENSON,                                UNPUBLISHED OPINION


              Respondent.                        FILED: April 1,2013


      Verellen, J. — Sara Stephenson appeals the trial court's order of child support,

arguing the court did not follow the statutory scheme in chapter 26.19 RCW. Where

parents have a 50/50 shared residential schedule, the trial court is required to make the

standard child support calculation and then consider any requested deviation, expressly

analyzing whether a downward residential deviation would leave the household

receiving the reduced payment with insufficient funds to meet the needs of the children.

The trial court consulted the child support economic table as required by the statute,

and then reduced the transfer payment from Shata to Sara to account for Shata's equal

residential time. But the court recited that it was not applying the standard calculation,

and that the reduced transfer payment did not constitute a deviation. There is no

indication that the trial court considered whether the reduced transfer amount would

leave Sara's household with insufficient funds to meet the needs of the children.
No. 68507-4-1/2



Because the trial court failed to conduct the appropriate analysis under

RCW 26.19.075(1 )(d), we vacate the order of child support and remand for further

proceedings consistent with this opinion.

                                            FACTS

      Sara and Shata Stephenson divorced after nine years of marriage. Their two

children were eight and ten years old at the time of trial. The parties agreed to a shared

residential schedule, with the children spending equal amounts of time in each parent's

household.

       Because of the shared residential schedule, Shata argued the basic support

obligation should be shared between the parties, with the monthly transfer amount set

so that each party paid half of the basic support obligation. Because he and Sara have

equivalent residential burdens, Shata contended it was "not possible to identify an

obligor or obligee for child support purposes."1 Sara argued that the court should not
deviate from the basic support obligation, as it would leave her with insufficient funds to

meet the basic needs of the two children.

       For purposes of the child support transfer payment, the court imputed income of

$38,388 to Sara and income of $123,895 to Shata. Based on the child support

schedule in RCW 26.19.020, the court determined the basic child support obligation

was $1,866.00 ($933.00 for each of the two children). Based on the parties' income,

the court determined Shata's proportional share of the child support obligation was 75

percent, for a total of $1,399.50, and Sara's 25 percent, for a total of $466.50.



       1Clerk's Papers at 40.
No. 68507^-1/3



       The court identified Shata as the obligor on the monthly child support transfer

payments. Instead of ordering a monthly transfer payment by Shata to Sara of $933

(i.e., the standard calculation, which is the difference between his proportional share

and Sara's proportional share), the court determined Shata owed a total monthly

transfer payment of $500. The court explicitly stated its order was not a deviation from

the standard calculation. Rather, the court concluded the standard calculation did not

apply, so "the court's equal allocation of the [b]asic [s]upport [obligation between the

two households does not constitute a deviation."2 The court did not enter written

findings or conclusions. There is no indication in the record that the trial court

considered the impact of the reduced transfer payment on Sara's ability to meet the

needs of the two children.


       Sara appeals the trial court's order of child support, contending the court's

analysis amounted to an improper deviation from the standard support calculation.

                                       DISCUSSION

       We review a trial court's decision on an order of child support for an abuse of

discretion.3 A trial court abuses its discretion if it the decision rests on unreasonable or

untenable grounds.4 Atrial court necessarily abuses its discretion if its ruling is based
on an erroneous view of the law or involves application of an incorrect legal analysis.5




       2Clerk's Papers at 77.
       3State ex rel. M.M.G. v. Graham. 159Wn.2d 623, 632, 152 P.3d 1005 (2007).
       4]o\ at 633.
       5Dix v. ICT Group. Inc.. 160 Wn.2d 826, 833, 161 P.3d 1016 (2007).
No. 68507-4-1/4



                         Deviation from the Standard Calculation


       Chapter 26.19 RCW directs a specific process a trial court must follow before

entering an order of child support. The court must first apply the child support

schedule.6 The court begins by setting the basic child support obligation, which is the
"monthly child support obligation determined from the economic table based on the

parties' combined monthly net income and the number of children for whom support is

owed."7 The economic table is presumptive for combined monthly incomes of $12,000
or less.8

       The court must allocate the child support obligation between the parents based

on each parent's share ofthe combined monthly income.9 The court then determines
the "standard calculation," which is the presumptive amount of child support owed by

the obligor parent to the obligee parent under the child support schedule, before

consideration ofeither an upward or downward deviation.10
       The court next determines whether it is appropriate to deviate from the standard

calculation.11 The trial court may exercise its discretion and deviate from the standard
calculation based on a variety offactors, including the children's residential schedule.12


       6 RCW 26.19.035(1 )(c) ("The child support schedule shall be applied .... [i]n al
proceedings in which child support is determined.").
       7 RCW 26.19.011(1); see also RCW 26.19.020 (child support economic table);
Graham. 159 Wn.2d at 627.

       8 RCW 26.19.020, .065.
       9 RCW 26.19.080(1).
       10 RCW 26.19.011(8); Graham. 159 Wn.2d at 627.
       11 RCW 26.19.011(4), (8); Graham, 159 Wn.2d at 627.
       12 RCW 26.19.075(d).
No. 68507-4-1/5



       If the court considers a deviation based on the residential schedule, it must follow

a specific statutory analysis that takes into account whether and how a deviation will

affect both the parent receiving the support transfer payments and the parent making

the support transfer payment. The statute allowing for deviation provides:

      Residential schedule. The court may deviate from the standard
      calculation if the child spends a significant amount of time with the parent
      who is obligated to make a support transfer payment. The court may not
       deviate on that basis if the deviation will result in insufficient funds in the
      household receiving the support to meet the basic needs of the child or if
      the child is receiving temporary assistance for needy families. When
      determining the amount of the deviation, the court shall consider evidence
      concerning the increased expenses to a parent making support transfer
      payments resulting from the significant amount of time spent with that
      parent and shall consider the decreased expenses, if any, to the party
      receiving the support resulting from the significant amount of time the child
       spends with the parent making the support transfer payment.1133
       This same process applies to a 50/50 shared residential schedule. In Graham.

our Supreme Court explained, "[T]he plain text of RCW 26.19.075 gives the trial court

discretion to deviate from the basic child support obligation based on a variety of

factors, one of which is the amount of residential time the children spend with the

parents."14 It further held that, because ofthe ability to deviate 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."15 This court held that,
in a 50/50 shared residential context, "a trial court must calculate the basic child support

amount and may then deviate from that amount based on the amount of residential time

spent with the obligor parent, pursuant to RCW 26.19.075, so long as doing so will not

       13 Id
       14 Graham. 159 Wn.2d at 636.
       15 Id.
No. 68507^-1/6



result in insufficient funds in the household receiving the support to meet the needs of

the children while they are residing in that household".16 The Supreme Court affirmed.17
        Sara contends the trial court erred when it awarded her less than the standard

child support calculation. She contends the court failed to engage in the required

deviation analysis, resulting in a child support order that left her with insufficient funds to

meet the needs of her children. We agree.

        The trial court properly determined the standard support obligation as $1,866.00,

or $933.00 per child, and allocated 75 percent of the support obligation ($1,399.50) to

Shata, and the remaining 25 percent to Sara ($466.50). Even though the court correctly

identified the standard support obligation, the court concluded the standard calculation

did not apply in this case, "because there is no primary residential parent who is entitled

to support based upon the [standard [calculation."18 While the statute explicitly allows
the court to deviate from the standard calculation based on residential time spent with

the obligor parent, the court "may not deviate on that basis if the deviation will result in

insufficient funds in the household receiving the support to meet the basic needs of the

child."19

        Instead of engaging in the required statutory analysis to determine the propriety

of a downward residential deviation, the trial court simply ordered Shata to pay Sara




        16 State ex rel. M.M.G. v. Graham. 123Wn. App. 931, 941, 99 P.3d 1248 (2004),
aff'd. 159Wn.2dat636.

        17 Graham. 159 Wn.2d at 636.
        18
             Clerk's Papers at 77.
        19 RCW 26.19.075(d).
No. 68507-4-1/7



$500 per month. The court stated the $500 transfer payment did not constitute a

deviation, because of the equal residential care each parent provided:

      The [standard [calculation does not apply to this case[ ] because the
      parties have a 50/50 shared residential schedule where each parent
      provides an equal amount of residential care for the children. Therefore,
      the court's equal allocation of the [b]asic [s]upport [obligation between the
      two households does not constitute a deviation.[20]

There is no indication in the record on appeal that the trial court gave any consideration

to whether the reduction in transfer payment resulted in insufficient funds to meet the

children's needs.


       The trial court erred in concluding the standard calculation did not apply to a

shared residential schedule. The trial court also failed to consider whether its support

order, which amounted to a downward deviation, would leave Sara's household with

insufficient funds. The court's failure to apply the standard calculation, as well as its

failure to conduct the analysis required under RCW 26.19.075(d),21 amounted to a
misapprehension ofthe law.22




       20 Clerk's Papers at 77.
        21 We need not address Sara's additional argument that the court also erred by
failing to justifywith written findings what amounted to a downward deviation from the
standard support calculation as required by RCW 26.19.075(3). On remand, the trial
court will give due consideration to any requirements of RCW 26.19.075(3).
       22 We recognized in Graham that the shared residential arrangement requires the
parents to each provide a household to not just one, but to two or more children.
Dividing the basic child support by the number of children and splitting it between the
parents would qualitatively reduce the amount of funds available to the children in the
household that is less financially well off. Graham. 123 Wn. App. at 941. "This would
often result in not meeting the legislature's intent to satisfy the basic needs of the
children and to provide additional financial support commensurate with the parents'
income, resources and standard of living." Ja\ at 940 (citing RCW 26.19.001).
No. 68507^-1/8



       Shata responds the trial court did not err, as chapter 26.19 RCW is silent

regarding the process for determining child support where each parent has the children

exactly half the time. As noted above, the Supreme Court rejected a similar argument

in Graham, where the obligor parent shared the residential schedule equally with the

obligee parent.23
      Accepting Shata's argument would require us to ignore the holding of Graham,

as well as the clear statutory language requiring courts to follow the same process for

all determinations of child support. To the extent Shata advocates for equitable relief

from the statute, he cites no persuasive legal authority to support his argument.

      We vacate the order of child support and remand for further proceedings

consistent with this opinion. During oral argument, Sara argued that Shata should be

precluded from pursuing a deviation on remand. Shata conceded that he had not

sought a deviation at trial, although Sara had advanced the argument that he was

required to request a downward deviation. The parties have not briefed the scope of

the remedy available after vacation of an order of child support. The trial court on

remand will be in the best position to consider any arguments on this issue.




       23159 Wn.2d at 628. In Graham, the obligor parent asked the court to reduce his
support obligation to account for his shared residential burden, and urged the court to
follow the Arvev formula in the absence of specific direction from the legislature
regarding shared residential schedules. ]d at 633-36 (citing In re Marriage of Arvev, 77
Wn. App. 817, 825-26, 894 P.2d 1346 (1995)). The Arvev formula takes each parent's
support obligation and divides it in half to account for a split residence schedule (i.e.,
where each parent has full residential time with only one of the two children, rather than
split residential time with both children). Jd. at 626, 633-36; Arvev. 77 Wn. App. at 825-
26.



                                             8
No. 68507-4-1/9



                                     Attorney Fees

      Sara requests attorney fees under RAP 18.1(a) and RCW 26.09.140. Sara

argues her disparate earning capacity entitles her to attorney fees. To support her

argument, she points to Shata's maintenance obligation, as well as to the fact that she

has not had time to get her real estate business off the ground. Sara submitted a

financial affidavit to support her request, as required under RAP 18.1(c). Her

declaration documents her need and inability to pay, and therefore, we grant Sara's

request for attorney fees on appeal, upon her timely compliance with RAP 18.1 (d).




WE CONCUR:




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