                                                               FILED 

                                                          SEPTEMBER 1, 2015 

                                                        In the Office of the Clerk of Court 

                                                      W A State Court of Appeals, Division III 





         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                            DIVISION THREE 


In re the Matter of the Marriage of:           )         No. 32057-0-III
                                               )
CYNTHIA SELLEY,                                )
                                               )
                     Appellant,                )
                                               )
              and                              )         PUBLISHED OPINION
                                               )
JASON SELLEY,                                  )
                                               )
                     Respondent.               )

       LA WRENCE-BERREY, J. - The trial court concluded that it lacked authority to

deviate Jason Selley's child support obligation from the standard calculation based on his

failure to exercise visitation with his children. We hold that a trial court has the authority

to deviate from the standard calculation when it would be inequitable not to do so. We

reverse and remand to the trial court for it to consider making an upward deviation in Mr.

Selley's child support obligation.

                                           FACTS

       Mr. Selley and Ms. Selley have two children, both over the age of 12. The parties

were divorced in 2004. In 2009, the parties modified their parenting plan. Mr. Selley's
No. 32057-0-III
In re Marriage ofSelley


modified residential time consisted of every Wednesday evening, every other weekend,

and one-half of the holidays, special occasions, and vacations from school.

       In 2013, the court found adequate cause for a second modification of the parenting

plan. Ms. Selley asked that the court deviate from the standard calculation of child

support because the children's basic needs and other expenses were not adequately

supported by the current child support payment. Ms. Selley maintained that she carried

an increased financial burden for the children's day-to-day needs because Mr. Selley

abdicated his right to parental time.

       A new parenting plan was entered on October 11,2013. The trial court found

undisputed evidence that Mr. Selley voluntarily had no contact with his children since

December 2010, and that Ms. Selley was solely responsible for her children's needs, other

than the child support that she received. The court also found that if Mr. Selley were to

engage in even minimal visitation, Ms. Selley would receive some respite from the

children's expenses. However, the court concluded that Mr. Selley's failure to exercise

any residential time did not authorize it to deviate from the economic table because the

parties' combined monthly income was less than $12,000.




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No. 32057-0-III
In re Marriage ofSelley


       Ms. Selley appeals. She challenges the trial court's conclusion that it had no

authority to deviate from the statutorily imposed child support schedule to address Mr.

Selley's noninvolvement with the children and his resulting improved financial status.

                                        ANALYSIS

       A trial court's order of child support is reviewed for a manifest abuse of discretion.

In re Marriage ofGriffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). "A trial court

abuses its discretion if the decision rests on unreasonable or untenable grounds, or ifit

bases its ruling on an erroneous view of the law or involves incorrect legal analysis." In

re Parentage ofA.L., 185 Wn. App. 225,238-39,340 P.3d 260 (2014).

       When entering an order of child support, the trial court begins by setting the basic

child support obligation. State ex rei. MMG. v. Graham, 159 Wn.2d 623,627, 152 P.3d

1005 (2007). Basic child support is determined by the economic table in RCW 26.19.020,

using the parents' combined monthly net income and the number and age of the children.

RCW 26.19.011(1). When the parents' monthly net income is $12,000 or less, the

economic table is presumptive. RCW 26.19.020. For a net monthly income that exceeds

$12,000, the economic table is advisory and the court may exceed the presumptive

amount of support on written findings of fact. RCW 26.19.020.




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No. 32057-0-II1
In re Marriage o/Selley


       Once the basic child support obligation is derived from the table, the court must

allocate the support obligation between the parents based on each parent's share of the

combined income. RCW 26.19 .080( 1). This standard calculation is the presumptive

amount of child support owed as determined by the child support schedule before the

court considers any deviation. RCW 26.19.011(8).

       Then, if requested, a court considers whether a deviation    fr~m   the standard

calculation is appropriate. RCW 26.19.075(1), (3). Reasons to deviate are listed in

RCW 26.19.075, although this list is not exclusive. RCW 26.19.075(1). A deviation

from the standard support obligation is appropriate when it would be inequitable not to do

so. In re Marriage o/Pollard, 99 Wn. App. 48, 55, 991 P.2d 1201 (2000). "When

reasons exist for a deviation, the trial court shall exercise discretion in considering the

extent to which the factors would affect the support obligation." RCW 26.19.075(4).

The trial court is required to enter findings that specify the reasons for any deviation or

denial of a parent's request for a deviation. RCW 26.19.075(3). "Unless specific reasons

for deviation are set forth in the written findings of fact and are supported by the

evidence, the court shall order each parent to pay the amount of support determined by

using the standard calculation." RCW 26.19.075(2).




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No. 32057-0-III
In re Marriage ofSelley


       "[T)he intent of the statute is to ensure that awards of child support meet the

child's or children's basic needs and to provide additional support 'commensurate with

the parents' income, resources, and standard of living.'" In re Marriage ofMcCausland,

159 Wn.2d 607,617, 152 P.3d 1013 (2007) (quoting RCW 26.19.001). Additionally, the

intent of the statute is to equitably apportion the child support obligation between the

parents. RCW 26.19.001.

       The question here is whether the trial court had the authority to deviate from the

standard calculation by apportioning a larger amount of the child support obligation to a

parent who lessens their financial responsibility for the children's basic needs by

abdicating visitation. The Washington Supreme Court confirmed that a trial court can

deviate from the standard calculation to address whether child support obligations are

properly allocated due to the residential schedule. The court in Graham decided that for

parents who equally bear the burden of the children's basic expenses, the proper method

for determining child support was to apply the standard calculation and statutory

deviations for transfer payments. Graham, 159 Wn.2d at 636. The court held that

RCW 26.19.075 explicitly gave the trial court discretion to deviate from the basic child

support obligation based on the facts of a particular case, so a specific formula was not




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No. 32057-0-III
In re Marriage ofSelley


necessary or statutorily required to ensure that the parents' child support obligation was

properly allocated. Graham, 159 Wn.2d at 636.

       Two cases address the question of whether a child support obligation can be

increased based on the parent's nonexercise of visitation rights. Division One in In re

Marriage ofScanlon, 109 Wn. App. 167, 178, 34 P Jd 877 (2001) held that no statutory

basis existed to increase an obligor parent's child support payment based on that parent's

number of overnight visits per year.

       Division One again addressed the question in In re Marriage ofKrieger, 147 Wn.

App. 952, 965, 199 PJd 450 (2008). There, Division One held that an obligor parent's

abdication of parental responsibility could provide a reasonable basis for an award above

the advisory child support amount. Id. The court found that Mr. Krieger's choice not to

spend time with his children improved his financial position because Marilyn Walker

bore the burden of all of the children's day-to-day expenses, including food, recreation,

entertainment, extracurricular activities, and other incidentals. Id. Consequently, Ms.

Walker necessarily carried an increased financial burden. Id. Because the parties'

financial circumstances was a necessary factor in the determination of whether to award

additional support above the advisory amount, the trial court could consider Mr. Krieger's

abdication in its calculation of the support award. Id.


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No. 32057-0-II1
In re Marriage ofSelley


       We are persuaded that Krieger is better reasoned than Scanlon. Because

RCW 26.l9.075(1)'s list of reasons to deviate is nonexclusive, because RCW 26.l9.001

states that one purpose of the child support calculation is to equitably apportion child

support between the parents, and because an obligee parent pays a higher portion of child

expenses when the obligor parent chooses to abdicate most or all visitation, we hold that

in such a situation, the trial court has the authority to deviate upward from the standard

calculation when an upward deviation would better achieve an equitable apportionment.

Here, the trial court abused its discretion when it concluded that it had no legal authority

to deviate from the child support schedule based on the obligor parent's noninvolvement

with the children.

       We reverse and remand for the trial court to consider an upward deviation in Mr.

Selley's child support obligation to be supported with appropriate findings of fact and

conclusions oflaw. RCW 26.19.075(3).                             ()

                                          In..~r'-~(...<:''' - \J~'
                                           Lawrence-Berrey, 1.
WE CONCUR:



                                                          rr)
Siddoway, C.l.                             Fearing, 1.    ~




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