      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 SEKOU WIGGS SR.,
                                               No. 80003-5-I
                              Appellant,
                                               DIVISION ONE
                    v.
                                               UNPUBLISHED OPINION
 TAMIKYA ST. CLAIR,

                           Respondent.


       DWYER, J. — Sekou Wiggs Sr. appeals from the superior court’s order

revising a commissioner’s order denying Tamikya St. Clair’s petition to modify an

order of child support. He asserts that the superior court erred in finding that St.

Clair met the statutory predicates for modifications. He further asserts that the

judge erred by imputing income to him, ordering postsecondary education

support, and awarding attorney fees and costs to St. Clair. Because the trial

court failed to enter findings of fact and conclusions of law to support its fee

award, we remand for further proceedings on that request for relief. We

otherwise affirm.

                                           I

       Sekou Wiggs Sr. and Tamikya St. Clair were involved in a lengthy intimate

relationship but they never married. At the time the superior court entered the

order at issue in this appeal, the children were 25, 19, and 8 years old. Wiggs is
No. 80003-5-I/2


also the father of a minor child with Phala Sir. Wiggs has worked as a real estate

agent and St. Clair is a teacher for the Seattle School District.

       In March 2013, Wiggs filed a petition to dissolve the committed intimate

relationship with St. Clair. Final agreed orders and a decree of dissolution were

entered on July 18, 2014. The final order of child support required Wiggs to

make monthly $500 child support payments to St. Clair based on Wiggs’s

monthly net income of $2,311.1 This amount represented a downward deviation

from the standard child support calculation of $567 because of Wiggs’s

responsibility to support his other minor child with Sir. The order also required

Wiggs to pay support until the children reach age 18 or graduate from high

school, whichever is later. The order reserved the matter of postsecondary

education support.

       On April 23, 2015, Wiggs filed a petition for modification of child support,

claiming that he had lost his job as an apartment manager. That petition was

dismissed based on a procedural error. On July 24, 2015, Wiggs filed another

petition for modification. On November 13, 2015, after a trial by affidavit, the

superior court entered an order denying and dismissing Wiggs’s petition, finding

that he failed to satisfy his burden under RCW 26.09.170 to prove a significant

change in circumstances. The court found that the existing child support order

was predicated on Wiggs earning approximately $15 per hour and that any

subsequent modification would support imputation of income at the same level.




       1   At that time, the parties’ middle child was age 14 and the youngest was age 8.

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The court further found that Wiggs had not shown any “medical, psychological, or

physical reasons why he is unable to work.”

       On September 1, 2016, Wiggs filed a petition to vacate the July 2014

decree. The parties resolved the dispute by agreement, and the court entered

amended orders on September 21, 2017. The agreed amended child support

order was in most respects unchanged from the 2014 order. The order still

identified Wiggs’s actual monthly income to be $2,311, required him to pay $500

per month to support the two minor children, required support to be paid until the

children turn 18 or complete high school, and reserved the issue of

postsecondary support.

       On May 24, 2018, St. Clair filed a pro se petition to modify child support.

Referring to the original 2014 child support order, St. Clair alleged that the court

should modify the child support amount because the current order was signed at

least two full years previously and the parents’ income had changed. She further

alleged that there had been a substantial change in circumstances since the

current order was signed. Specifically, St. Clair alleged that her financial

situation had worsened, that Wiggs was earning unreported income, and that

their eldest daughter’s needs had changed because she would still be in high

school past age 18 and was preparing to enter college in September 2018.

       In a declaration in support of her petition, St. Clair asserted that Wiggs

had been concealing income to avoid his child support obligations. She

presented evidence that Wiggs had a significant presence in the community as a

successful real estate agent. St. Clair alleged that Wiggs was funneling his real


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estate commissions through Sir, who had become a real estate agent and joined

Wiggs’s real estate team. On this basis, St. Clair asked the court to impute

income to Wiggs.

       Wiggs admitted that he was working as a real estate agent and earning

income on a commission basis. But he asserted that he was existing day to day

on a very limited income, relying substantially on public assistance, and living in

a small rented room with his minor child from his relationship with Sir. Wiggs

also claimed that he suffers from depression, anxiety, and severe uncontrolled

hypertension.

       In response, St. Clair submitted another declaration, which called to

attention issues regarding Wiggs’s credibility. Wiggs responded by defending his

credibility and continuing to assert that he is destitute. Sir filed a declaration

asserting that Wiggs is struggling financially and that she sometimes allows him

to assist her with real estate transactions.

       On December 21, 2018, following a hearing, a commissioner denied St.

Clair’s petition. The commissioner found that, at the time of St. Clair’s petition,

two years had not passed since the September 21, 2017 child support order was

issued and that St. Clair had not pled that the prior order worked a severe

economic hardship. The commissioner, citing Wiggs’s receipt of food stamp

benefits, further found that Wiggs had no ability to pay postsecondary support

and that he was not voluntarily unemployed.

       On December 31, 2018, St. Clair filed motions to revise and reconsider

the commissioner’s ruling regarding modification of child support. In the revision


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No. 80003-5-I/5


motion, St. Clair asserted that the agreed 2017 child support order was not a

modification of the original 2014 child support order.

       On revision, the superior court granted St. Clair’s petition, modified the

child support amount based on imputed income, and ordered postsecondary

support. The judge found that St. Clair sufficiently pleaded the requirements for

modification under RCW 26.09.170(6) due to “severe economic hardship” and

because there was a child in high school after age 18. The court similarly found

that St. Clair met the requirements for modification under RCW 26.19.090 based

on the need for postsecondary support on the older child’s entrance into college.

       Having found that St. Clair met the statutory predicates for modification,

the judge further found that St. Clair provided sufficient evidence that Wiggs was

voluntarily unemployed or underemployed. The judge rejected Wiggs’s account

of his current financial status and found that Wiggs “lacks any credibility that he

cannot continue to work as a real estate agent, earning similar income as

before.”

       Next, pursuant to RCW 26.19.071(6)(b), the court used historical data

from 2011 and 2012 to impute Wiggs’s annual income at $76,616.50. The court

also ordered support for the older child to continue until postsecondary education

commenced, and postsecondary support for her education. The court denied a

requested deviation from the standard calculation and ordered Wiggs to pay

support of $654.31 per month for the younger minor child. The court further

awarded attorney fees and costs to St. Clair. Wiggs appeals.




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No. 80003-5-I/6


                                          II

       Wiggs asserts that the superior court committed multiple procedural and

factual errors in revising the commissioner’s ruling by granting St. Clair’s petition

to modify the existing child support order. We disagree.

                                          A

       “‘The actions of a superior court commissioner are subject to revision by a

superior court judge.’” In re Marriage of Dodd, 120 Wn. App. 638, 643, 86 P.3d

801 (2004) (quoting State v. Lown, 116 Wn. App. 402, 407, 66 P.3d 660 (2003)).

“‘In cases such as this one, where the evidence before the commissioner did not

include live testimony, then the superior court judge’s review of the record is de

novo.’” Dodd, 120 Wn. App. at 643 (quoting In re Marriage of Moody, 137 Wn.2d

979, 993, 976 P.2d 1240 (1999)). “[T]he revision court has full jurisdiction over

the case and is authorized to determine its own facts based on the record before

the commissioner.” Dodd, 120 Wn. App. at 644 (citing In re Dependency of

B.S.S., 56 Wn. App. 169, 171, 782 P.2d 1100 (1989)). So long as new evidence

is not relied on, the superior court “may conduct whatever proceedings it deems

necessary to resolve the matter.” In re Welfare of McGee, 36 Wn. App. 660, 662,

679 P.2d 933 (1984) (citing In re Welfare of Smith, 8 Wn. App. 285, 505 P.2d

1295 (1973)); accord, B.S.S., 56 Wn. App. at 171.

       We review a trial court’s modification of an order for child support for an

abuse of discretion. In re Marriage of Schumacher, 100 Wn. App. 208, 211, 997

P.2d 399 (2000). “Discretion is abused where it is exercised on untenable

grounds for untenable reasons.” In re Marriage of Tang, 57 Wn. App. 648, 653,


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No. 80003-5-I/7


789 P.2d 118 (1990). Substantial evidence must support the trial court’s factual

findings. In re Parentage of Goude, 152 Wn. App. 784, 790, 219 P.3d 717

(2009). “[C]redibility determinations are left to the trier of fact and are not subject

to review.” In re Marriage of Burrill, 113 Wn. App. 863, 868, 56 P.3d 993 (2002).

                                           B

       RCW 26.09.170 governs a parent’s ability to modify a child support order.

Modifications are generally limited to situations in which there has been a

“substantial change of circumstances.” RCW 26.09.170(1). A petition may be

filed on this basis at any time. RCW 26.09.170(5)(a). As an exception to this

general rule, a parent may request a modification one year or more after it has

been entered without showing a substantial change in circumstances if the

original order “works a severe economic hardship on either party or the child” or if

“there is a need to extend support beyond the eighteenth birthday to complete

high school.” RCW 26.09.170(6)(a), (b). Likewise, a parent can file a motion for

adjustment without showing a substantial change of circumstances when two

years have passed since entry of the last adjustment or modification and the

parents’ income has changed. RCW 26.09.170(7)(a).

                                          C

       Wiggs first argues that the superior court erred in determining sua sponte

that St. Clair’s petition qualified to modify the child support order on the basis of

“severe economic hardship.” He points out that St. Clair actually petitioned on

the basis that more than two years had passed since entry of the 2014 child

support order and that the parties’ income had changed, not on the basis of


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No. 80003-5-I/8


severe economic hardship. Wiggs further contends that principles of finality and

res judicata bar St. Clair from relitigating the 2014 and 2017 child support orders,

and that the mechanism for overturning these prior orders is a CR 60(b)(4)

motion to vacate. Wiggs is mistaken.

       The 2014 and 2017 child support orders were both entered by agreement.

“Washington courts have general and equitable powers to modify any order

pertaining to child support payments when the child’s needs and parents’

financial ability so require.” Schumacher, 100 Wn. App. at 213. When the

parties arrived at their own agreement, we presume that the trial court did not

examine the evidence, and the party arguing against the modified order must

overcome this presumption with clear evidence. Schumacher, 100 Wn. App. at

213. Although the superior court ruled on a different basis, we may affirm on any

basis the record supports. Truck Ins. Exch. v. Vanport Homes, Inc., 147 Wn.2d

751, 766, 58 P.3d 276 (2002). There is nothing in the record before us to rebut

the presumption that the trial court never independently examined the evidence

underlying the agreed orders. Contrary to Wiggs’s assertions, principles of

finality and res judicata have no applicability in this context. The trial court was

well within its discretion and equitable powers to independently review the

evidence and modify the child support order as the needs of the children and the

finances of the parties required.

       Moreover, as Wiggs properly concedes, modification was proper on the

basis of postsecondary support because the 2014 and 2017 orders both

reserved that issue and St. Clair invoked it in her petition to modify. When the


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No. 80003-5-I/9


issue of postsecondary support has been reserved, the trial court may modify the

order and award postsecondary support as if the issue were being decided in an

initial dissolution proceeding. In re Marriage of Morris, 176 Wn. App. 893, 902,

309 P.3d 767 (2013).

                                         D

       Wiggs next argues that the trial court’s method of calculating his imputed

income was based on an incorrect interpretation of RCW 26.19.071. The

interpretation and applicability of a statute presents questions of law that we

review de novo. Grey v. Leach, 158 Wn. App. 837, 844, 244 P.3d 970 (2010).

When interpreting a statute, we seek to ascertain the legislature’s intent. State v.

Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). Where a statute’s meaning

is plain on its face, we must give effect to that meaning as expressing the

legislature’s intent. Jacobs, 154 Wn.2d at 600.

       RCW 26.19.071 governs the standards for determining income when

calculating child support obligations. RCW 26.19.071(1) through (5) specify

methods and processes for the precise calculation of actual net and gross

monthly income based on documentary evidence. However, when the trial court

finds that a parent is voluntarily unemployed or underemployed, no precise

calculation of actual income is possible. In that case, the court must impute a

parent’s income using the best information available in accordance with a

specified order of priority. RCW 26.19.071(6).

       Here, after finding that Wiggs was voluntarily unemployed or

underemployed, the judge found that imputation of income was appropriate


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No. 80003-5-I/10


under RCW 26.19.071(6)(b) based on historical income data from tax years 2011

and 2012, the two years immediately preceding the original petition for

dissolution. Based on the average of those two years, the judge imputed

Wiggs’s income at $76,616.50. Wiggs asserts that this amount is too high

because the judge chose only the figures from Wiggs’s gross profits without

subtracting expenses to arrive at a calculation of net monthly income, as required

by RCW 26.19.071(5). We disagree.

       In enacting the child support schedule statute, the legislature intended to

ensure that child support orders were adequate to meet a child’s basic needs

and to provide additional child support commensurate with the parents’ income,

resources, and standard of living. In re Marriage of Fiorito, 112 Wn. App. 657,

664, 50 P.3d 298 (2002). RCW 26.19.071(1) through (5) provide for a precise

calculation of income based on the existence of reliable documentary evidence.

When a parent is voluntarily unemployed or underemployed, no such information

exists, and the court must impute income based on the best information

available. RCW 26.19.071(6) does not specify or require particular exclusions or

deductions in the process of imputing income. Nor does it make reference to

RCW 26.19.071(1) through (5). Wiggs’s interpretation of RCW 26.19.071 finds

no support in the statute’s plain meaning or in legislative intent. The trial court’s

calculation of imputed income was supported by substantial evidence and was

proper as a matter of law.




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No. 80003-5-I/11


                                         E

       Wiggs next challenges the amount of the award of postsecondary support.

He acknowledges that the modification was proper on this basis and that the

judge considered the required statutory factors pursuant to RCW 26.19.090(2).

However, he contends that the award was nevertheless improper because it was

based on the judge’s erroneous determination of his imputed income. He claims

that, in reality, he cannot afford to provide the ordered support because he has

little income.

       Wiggs cites to In re Marriage of Shellenberger, 80 Wn. App. 71, 906 P.2d

968 (1995), in support of his contention that he cannot afford to pay the amount

awarded. In Shellenberger, the trial court ordered the father to make

postsecondary educational support payments that, “when combined with his debt

service and living expenses, exceed his income, even the net income amount

imputed by the trial court.” 80 Wn. App. at 83. In this context, the Shellenberger

opinion noted that a postsecondary support obligation that would force the

obligor parent into bankruptcy or prevent the parent from meeting their obligation

to another minor child would in most cases amount to an abuse of discretion. 80

Wn. App. at 84. The appellate court directed the trial court to make findings of

fact on remand as to the parent’s ability to pay while still meeting his own

reasonable needs and obligations. Shellenberger, 80 Wn. App. at 84.

       Here, in contrast, there is no need for remand based on ability to pay. The

court found Wiggs not credible regarding his financial status and properly

imputed his income based on the evidence in the record that it did credit.


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No. 80003-5-I/12


                                          F

       Wiggs similarly challenges the judge’s decision to decline a discretionary

step increase pursuant to RCW 26.09.170(7)(c). That statute provides that “[i]f

the court adjusts or modifies a child support obligation pursuant to this

subsection by more than thirty percent and the change would cause significant

hardship, the court may implement the change in two equal increments, one at

the time of the entry of the order and the second six months from the entry of the

order.” The superior court based its decision on Wiggs’s lack of credibility

regarding his financial situation. This decision was not an abuse of discretion.

                                          G

       Wiggs next asserts that the superior court abused its discretion in

modifying child support pursuant to RCW 26.09.170(6) for the middle child for the

time period between high school and college. RCW 26.09.170(6)(b) provides

that an order of child support may be modified without a showing of substantially

changed circumstances “[i]f a child is still in high school, upon a finding that there

is a need to extend support beyond the eighteenth birthday to complete high

school.” Wiggs contends that, to the extent the court extended support beyond

high school, it cannot do so under this provision.

       Here, the court found that the middle child was a “dependent adult child”

after completing high school, and that support should continue for the three-

month period between high school and college. Regarding postsecondary

support, the court found that there has been a substantial change in

circumstances and that child support for the middle child should continue for the


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No. 80003-5-I/13


three-month period between high school and college. The order also specifies

that “[p]ost-secondary educational support may include support for the period

after high school and before college or vocational school begins.” The court did

not abuse its discretion in making this award of postsecondary support.

                                         H

       Wiggs next contends that the superior court exceeded the scope of review

under RCW 2.24.050 by considering the entire case file rather than limiting its

review to the documents the parties submitted to the commissioner. We

disagree. RCW 2.24.050 provides that a superior court’s revision of a

commissioner’s ruling “shall be upon the records of the case, and the findings of

fact and conclusions of law entered by the court commissioner.”

       Here, both the commissioner and the superior court judge had access to

the entire record of the dissolution case, including child support matters.

Because the commissioner did not find the imputation of income to be warranted,

the commissioner did not consider all of the contents of the court file. However,

the superior court judge was free to do so on determining that Wiggs’s testimony

was not credible and that such imputation was warranted. The judge made the

imputation calculation based solely on evidence submitted by the parties prior to

the commissioner’s ruling. This is not “new” evidence within the meaning of

RCW 2.24.050, which—by its terms—allows the judge to consider “the records of

the case.” This is especially so given the discretion afforded superior court

judges in resolving motions for revision. See B.S.S., 56 Wn. App. at 171;

McGee, 36 Wn. App. at 662; Smith, 8 Wn. App at 288-89. There was no error.


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No. 80003-5-I/14


                                               i

       Wiggs further contends that the superior court erred by considering new

evidence in connection with St. Clair’s motion for reconsideration, which St. Clair

improperly filed with the superior court rather than the commissioner. However,

the record does not show any action by the judge on the motion for

reconsideration. In the order granting St. Clair’s motion for revision, the judge

expressly stated that “[t]his Court has reviewed the current Motion, and the past

history of this case.” The order cites solely to evidence before the commissioner,

including the case file. There is no indication that the court considered,

reviewed, or relied on any of the documents submitted in connection with the

motion for reconsideration. No error is demonstrated.

                                         III

       Wiggs challenges the superior court’s award of attorney fees and costs to

St. Clair. He asserts that the award was improper and that reversal is required

because the order is not supported by findings of fact or conclusions of law. St.

Clair asserts that the basis and amount of the award was proper. But she

concedes that we must remand for entry of findings and conclusions to support

the award.

       The trial court must calculate the award of fees using the lodestar method,

and it must enter findings of fact and conclusions of law supporting its decision to

award fees. Mahler v. Szucs, 135 Wn.2d 398, 434-35, 957 P.2d 632, 966 P.2d

305 (1998). Such a record is necessary for an appellate court to review the

award. Deep Water Brewing, LLC v. Fairway Res., Ltd., 170 Wn. App. 1, 6, 282


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No. 80003-5-I/15


P.3d 146 (2012). Where a trial court fails to provide sufficient findings of fact and

conclusions of law to develop an adequate record for appellate review of the fee

award, we must vacate the award and remand for a new hearing and the entry of

findings of fact and conclusions of law regarding the fee request. In re Marriage

of Bobbitt, 135 Wn. App. 8, 30, 144 P.3d 306 (2006). On this basis, we reverse

the award of attorney fees and remand to the trial court.

       St. Clair requests an award of attorney fees on appeal, pursuant to RAP

18.9(a), which authorizes an award of attorney fees as a sanction for filing a

frivolous appeal. “An appeal is frivolous if ‘no debatable issues are presented

upon which reasonable minds might differ, i.e., it is [so] devoid of merit that no

reasonable possibility of reversal exists.’” Hartford Ins. Co. v. Ohio Cas. Ins. Co.,

145 Wn. App. 765, 780, 189 P.3d 195 (2008) (internal quotation marks omitted)

(quoting Olson v. City of Bellevue, 93 Wn. App. 154, 165, 968 P.2d 894 (1998)).

Because Wiggs raised a meritorious challenge to the attorney fee award, his

appeal was not frivolous. We decline to award fees to St. Clair on appeal.




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No. 80003-5-I/16


      Affirmed in part and reversed and remanded for further proceedings.




WE CONCUR:




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