                                                                          FILED
                                                                      OCTOBER 27, 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 the Matter of the Parentage of: 	           )
                                               )          No. 32579-2-III
O.AJ.,                                         )

                     a minor.                  )

                                               )

STATE OF WASHINGTO~,                           )

                                               )          OPINION PUBLISHED IN PART
                     Respondent,               )
                                               )
       v.                                      )

                                               )

AMY KRISTIN JAMISESON BURNS,                   )

                                               )

                     Respondent,               )

                                               )

CHRISTOPHER FIDEL LABER,                       )

                                               )

                     Appellant.                )


       KORSMO, J.      The father appeals the child support order entered in this paternity

action, arguing that the trial court erred in failing to grant a deviation due to his support

of another child, erred in its calculation of the mother's income and in imputing income

to the mother, and should have explained its rejection of his other arguments. Both

parties also request attorney fees for this appeal. We agree in part with his arguments

concerning the mother's imputed income and reverse and remand this action for further

proceedings.
No. 32579-2-III
In re the Parentage ofo.AJ


                                          FACTS

       O.AJ. is the daughter of Amy Bums and Christopher Laber. The couple, who

were not married, separated in 2006 when their daughter was about two. The mother was

the primary custodian and moved to Spokane to be with her family, while the father

remained in Bellingham. O.AJ. would visit her father in the summers and Mr. Laber

made intermittent child support payments to Ms. Burns. l

       In 2012, the State brought an action to establish paternity and set past and future

child support obligations. The parents agreed that Mr. Laber was the father and also

agreed to a parenting schedule. However, the support aspect of the case was heavily

contested. The parties disputed their respective incomes and resources and also made

claims for deviations from the standard child support schedule.

       Mr. Laber has been employed since 2008 as a machinist in a plant that

manufactures airplane parts. His documented earnings were his only source of income.

He also argued that his future income would be less than his recent income because he

had worked some temporary overtime assignments that would not be continuing.

       In contrast, the mother's income calculation was much more complicated. She

owns at least eight residential properties, and has a history of rental income on six of

them. However, the rental income on the properties has never exceeded the sum of the


       IThe amount of visitation and the amount of child support previously paid were
disputed issues in the trial court, but are not issues in this appeal.


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No. 32579-2-III
In re the Parentage ojo.AJ


interest on the mortgages, depreciation, property tax, and maintenance expenses. She
                                                                                                  I
also operates a colon hydrotherapy business, but every year her business expenses                 I
exceeded her gross receipts, resulting in her receiving no income from the business.

Finally, she also has been employed part-time in a law office since at least 2007 working
                                                                                              I
for $13 per hour. When all of this is summed up, Ms. Bums reports negative income             i!
                                                                                              !
every year on her taxes despite gross income in the vicinity of $90,000. Aside from 	

these, the mother reported no other assets, investments, or sources of income. Her            I
                                                                                              ~


stepfather indicated that he helped her with living expenses.                                 !,
                                                                                              II
       Mr. Laber argued that Ms. Bums was hiding income, pointing to the facts that she 	     It
                                                                                              I
has no consumer debt, and had accumulated more than $150,000 in equity on her rental

properties. As evidence of additional income, he pointed to the mother's bank account
                                                                                              I
                                                                                              J
                                                                                              (

records documenting total annual deposits in excess of the gross receipts reported on her 	   i
                                                                                              {

taxes by an average of approximately $80,000. He then argued that the court should

consider the excess bank deposits as additional income and the value of her real estate
                                                                                              I
                                                                                              •f
                                                                                              f
                                                                                              ,.
assets as well. In her trial court briefing and declarations, the mother described her        ,
                                                                                              f




finances consistent with her tax returns, but never addressed the excess deposits.            f
                                                                                              I
       The trial court rejected Mr. Laber's arguments and determined that Ms. Burns had

no income. The court then imputed income to her at minimum wage. Mr. Laber
                                                                                              I
requested a deviation downward to account for child support payments he made for his

other child, but the court reasoned that his declaration alone provided insufficient proof


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No. 32579-2-III
In re the Parentage ofOA.J.


that he owed a duty of support to that child. The order of child support states:

"Deduction for another child was not supported by proof of paternity and a child support

order directed by a Court." Clerk's Papers (CP) at 1433. After his motion for

reconsideration was denied, Mr. Laber timely appealed to this court.

                                         ANALYSIS

       We first address Mr. Laber's request for a downward deviation due to his other

child, before turning to his arguments that the court erred by imputing income to the

mother at minimum wage and by ignoring the additional unexplained funds in her bank

account. We then briefly consider together his contentions that the trial court did not

explain its reasoning on other matters and the request by both parties that they be

awarded attorney fees for this appeal.

       Initially, we note that this court reviews child support orders for an abuse of

discretion. In re Marriage ofGriffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990).

Discretion is abused when it is exercised on untenable grounds or for untenable reasons.

In re Marriage ofLittlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). Discretion

also is abused when the court uses an incorrect legal standard. State v. Rundquist, 79 Wn.

App. 786,793,905 P.2d 922 (1995). Substantial evidence must support the trial court's

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

(2009). This court will not substitute its judgment for trial court judgments if the record




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No. 32579-2-III
In re the Parentage ofOAJ


shows the court considered all relevant factors and the award is not unreasonable under

the circumstances. Griffin, 114 Wn.2d at 776.

       Deviation for Additional Child

       Mr. Laber argues that he is entitled to a deviation from the support schedule

because he has another child and makes support payments for that child. Ms. Burns

argues that the deviation was not available because Mr. Laber could not produce a court

order to establish that he had a support obligation. Her argument requires us to construe

the meaning of the additional child deviation provision.

       Child support is set by statute with the support obligation divided proportionately

to the parents' respective income levels. RCW 26.19.001, .080(1). The statutes allow the

trial court to deviate from the standard schedule and provide a nonexclusive list of

reasons for deviation. RCW 26.19.075. Deviation is not allowed if it will leave

insufficient funds in the household receiving the support to provide for the basic needs of

the children. Id. Whenever asked to consider a deviation request, the trial court must

explain its rationale for ruling:

       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. The court shall not consider reasons for deviation until
       the court determines the standard calculation for each parent.

RCW 26.19.075(3).




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No. 32579-2-III
In re the Parentage ofo.A.J


       We review the court's deviation request ruling for abuse of discretion. RCW

26.19.075(4); In re Marriage ofRusch, 124 Wn. App. 226, 236,98 P.3d 1216 (2004),

overruled in part on other grounds by In re Marriage ofMcCausland, 159 Wn.2d 607,

152 P.3d 1013 (2007). Substantial evidence must support the trial court's factual

findings. Goude, 152 Wn. App. at 790. This court will not substitute its judgment for

trial court judgments if the record shows the court considered all relevant factors and the

award is not unreasonable under the circumstances. Griffin, 114 Wn.2d at 776.

       The specific deviation at issue here is found in RCW 26.19.075(1). It provides:

              (e) Children from other relationships. The court may deviate from
      the standard calculation when either or both of the parents before the court
      have children from other relationships to whom the parent owes a duty of
      support.
              (i) The child support schedule shall be applied to the mother, father,
      and children of the family before the court to determine the presumptive
      amount of support.
              (ii) Children from other relationships shall not be counted in the
      number of children for purposes of determining the basic support obligation
      and the standard calculation.
              (iii) When considering a deviation from the standard calculation for
      children from other relationships, the court may consider only other
      children to whom the parent owes a duty of support. The court may
      consider court-ordered payments of child support for children from other
      relationships only to the extent that the support is actually paid.
             (iv) When the court has determined that either or both parents have
      children from other relationships, deviations under this section shall be
      based on consideration of the total circumstances of both households. All




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No. 32579-2-III
In re the Parentage ofo.AJ


       child support obligations paid, received, and owed for all children shall be
       disclosed and considered.

(Emphasis added.) This legislation was created by Laws of 1991, 1st Spec. Sess., ch. 28,

§ 6.

       The concept of "duty of support" is not explained in chapter 26.19 RCW, but is

defined in chapter 26.18 RCW, the child support enforcement chapter.

              "Duty of support" means the duty to provide for the needs of a
       dependent child, which may include necessary food, clothing, shelter,
       education, and health care. The duty includes any obligation to make
       monetary payments, to pay expenses, including maintenance in cases in
       which there is a dependent child, or to reimburse another person or an
       agency for the cost of necessary support furnished a dependent child. The
       duty may be imposed by court order, by operation of law, or otherwise.

RCW 26.l8.020(3) (emphasis added). This definition was enacted in by Laws of 1984,

ch. 260, § 2. The statute sets forth a very broad duty of supporting dependent children,

while specifically referencing financial support within that definition. The final sentence

of the definition concerning enforceable financial support obligations is primarily at issue

in this action.

       The mother reads the sentence as precluding the father from receiving any

deviation because he has no duty to support his other child in the absence of a court

order. Noting that the "duty of support" obligation is not further defined in chapter

26.19, she argues that the plain language of RCW 26.19.07 5( 1)(e) requires that the




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No. 32579-2-III
In re the Parentage ofOAJ


obligation be court-ordered. The trial court agreed. We believe that position unduly

limits the statute's reach.

       Initially, we conclude that the definition of "duty of support" in RCW

26.18.020(3), the child support enforcement statute, does apply to chapter 26.19, the child

support statute. Both chapters address the general topic of child support in different

areas, with one chapter charged with setting support and the other charged with enforcing

it. In order to be effectual, the enforcement statute and the support statute would have to

use the same standard. As the enforcement statute predates the current support statute, it

also is understandable that the legislature would look to the existing (enforcement) statute

when directing courts on how to measure the support obligation. 2 The question then

presented by this case involves the meaning of the final sentence of the "duty of support"

definition.

       The phrase "duty of support" has a long history in our statutes. The first

codification of that phrase appears to have occurred when Washington adopted the

"Uniform Reciprocal Enforcement of Support Act" (URESA) former ch. 26.21 RCW

(1992). See Laws of 1951, ch. 196, §§ 2, 7. Those sections provided definitions of the

concept.



       2 Thereis ample history of using chapter 26.18 RCW to enforce orders entered
under chapter 26.19. E.g., In re Marriage ofBriscoe, 134 Wn.2d 344, 350, 949 P.2d
1388 (1998) (Talmadge, 1., dissenting).


                                             8

No. 32579-2-II1
In re the Parentage ofOA.J.


              "Duty of support" includes any duty of support imposed or
       imposable by law, or by any court order, decree or judgment, whether
       interlocutory or final, whether incidental to a proceeding for divorce,
       separate maintenance or otherwise.

Id. § 2 (formerly codified at RCW 26.21.010(6) (1992)).

       Similarly, § 7 ofURESA as adopted in Washington provided:

       Duties of support enforceable under this law are those imposed or
       imposable under the laws of any state where the alleged obligor was present
       during the period for which support is sought or where the obligee was
       present when the failure to support commenced, at the election of the
       obligee.

(formerly codified at RCW 26.21.060 (1992)).

       The meaning of these provisions was at issue in Yetter v. Commeau, 84 Wn.2d

155,524 P.2d 901 (1974). There a woman in Snohomish County sued a man from King

County for support of her child born when both individuals were married to other people.

Id. at 156. The question presented was whether URESA also could be used to determine

paternity as a prelude to a support order. Id. The court first noted that URESA left to the

states the question of defining the relationships that triggered a duty of support. Id. at

158. Washington long had a policy of requiring fathers to support "illegitimate children."

Id. at 159. Since the putative fathers could be required to provide support, it was a duty

"imposable by law" in Washington. Id. at 159-61. Therefore, URESA could be used to

determine paternity. Id. at 160-63.




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No. 32579-2-II1
In re the Parentage of OA.J.


       While the child support chapter does not use the flexible "imposable by law,,3

standard that was dispositive in Yetter, that case is still instructive here. Even though

URESA was interpreted to permit actions outside its express terms-determine paternity

instead of merely determine support-the mechanism employed was still a formal

process. A court would hear the evidence and make a paternity determination before

awarding support, if applicable. That formality is the key to reading the enforcement

statute definition "imposed by court order, by operation of law, or otherwise." RCW

26.18.020(3).

       The definition urged by Ms. Bums and accepted by the trial court ignores the

"operation of law, or otherwise" alternatives. There are several methods by which

paternity can be established-and thus give rise to a duty of support-other than by court

order. For instance, a man can acknowledge paternity, RCW 26.26.300 et seq., or

presumptively be a father by the fact of marriage at the time of the child's birth. RCW

26.26.116(1)(a). These are examples of "operation of law." Similarly, a support

obligation can be imposed in an administrative proceeding-another "operation of law."

WAC 388-14A-3100. The meaning of "or otherwise" is harder to discern. One potential

"otherwise" might consist of a written contract between an unmarried couple setting forth

their respective child support obligations.


       3 The
           phrase is still used in URESA's successor statute, the Uniform Interstate
Family Support Act. See RCW 26.21A.OIO(3).


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No. 32579-2-III
In re the Parentage of o.A.J.


       Because RCW 26.18 is a mechanism by which courts can enforce the support

obligation, there must be sufficient formality to the obligation that a court has something

to enforce. That is the essence of the statutory provision. And it is the reason that we

agree with the trial court's decision to deny the deviation request. We hold that to obtain

a deviation from the child support guidelines due to paying for the support of children

from other relationships, the parent must establish the existence of a judicially

enforceable support obligation concerning those children.

       Mr. Laber failed to identifY any enforceable support obligation for his other child.

The trial court, therefore, correctly denied his request to deviate from the standard

support obligation.

       Mother's Imputed Income

       Mr. Laber next argues that the trial court erred by imputing income to the mother

at minimum wage. We agree. The statute sets forth a hierarchy for imputing wages.

Because Ms. Bums earned more than minimum wage when she worked, the trial court

erred in imputing income at that level.

       RCW 26.19.071 states in relevant part:

             (6) Imputation of income. The court shall impute income to a
      parent when the parent is voluntarily unemployed or voluntarily
      underemployed.... In the absence of records of a parent's actual earnings,
      the court shall impute a parent's income in the following order of priority:
             (a) Full-time earnings at the current rate of pay;
             (b) Full-time earnings at the historical rate of pay based on reliable
      information, such as employment security department data;


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No. 32579-2-II1
In re the Parentage of OAJ


              (c) Full-time earnings at a past rate of pay where information is
       incomplete or sporadic;
              (d) Full-time earnings at minimum wage in the jurisdiction where
       the parent resides if the parent has a recent history of minimum wage
       earnings, is recently coming off public assistance, aged, blind, or disabled
       assistance benefits, pregnant women assistance benefits, essential needs and
       housing support, supplemental security income, or disability, has recently
       been released from incarceration, or is a high school student;
              (e) Median net monthly income of year-round full-time workers.

(Emphasis added.) A court's decision on imputation of income due to voluntary

underemployment is reviewed for abuse of discretion. In re Marriage of Wright, 78 Wn.

App. 230, 234, 896 P.2d 735 (1995).

       The statute expressly sets a priority order for the court to apply when imputing

income to a parent: current rate of pay, historic rate of pay based on reliable information,

historic rate based on incomplete information, minimum wage, and median monthly

income. The evidence in the record established that the mother was currently receiving

$13 per hour for her part time work at the law office and had received that wage since

2007. As "current rate of pay" is the first priority in the statutory hierarchy, $13 should

have been the figure used when imputing the mother's income.

       By failing to follow the statutory priority order, the trial court abused its discretion

in using the fourth option. Rundquist, 79 Wn. App. at 793. Accordingly, we reverse the

order of support and remand for recalculation of the mother's income applying the correct

current rate of pay.




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No. 32579-2-III
In re the Parentage of OA.J.


       A majority of the panel having determined that only the foregoing portion of this

opinion will be printed in the Washington Appellate Reports and that the remainder

having no precedential value shall be filed for public record pursuant to RCW 2.06.040, it

is so ordered.

       Other Income

       The father strenuously argues that the trial court erred in failing to account for the

unexplained additional monies found annually in the checking accounts. We are not in a

position to resolve the claim due to the status of the record, but we leave the matter to the

discretion of the trial court in the remand required by the imputed income ruling.

       When calculating the child support obligation, the court begins by considering all

"income and resources of each parent's household." RCW 26.19.071 (1). "Income" is not

defined in the statute, but the statute does explain various sources of gross income that

either must be considered (RCW 26.19.071(3)) or not considered (RCW 26.19.071(4)).

Important in this action is the requirement that gross income include:

              Income from self-employment, rent, royalties, contracts,
       proprietorship of a business, or joint ownership of a partnership or closely
       held corporation.

RCW 26.l9.071(3)(u). The self-employed are permitted to deduct their normal business

expenses from the gross income. 4 RCW 26.19.071(5)(h).


       Although this issue was contested in the trial court, the father does not renew those
       4
arguments here.


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No. 32579-2-III
In re the Parentage ofo.A.J.


       Ms. Burns appears to have run both her business and personal finances through the

same accounts. That fact complicates the analytical challenge facing the trial court and

the father. However, he argues, and the record supports the contention, that

approximately $80,000 more each year passed through the checking accounts than is

accounted for in the gross business income reflected in the tax returns. Money in a

checking account is not necessarily "income," but it may reflect income or an existing

asset. 5 All assets must be reported to the court. RCW 26.19.071(1). Although assets are

not used in calculating support obligations, they can be a basis for deviating from the

support schedule. RCW 26.l9.075(l)(vi). Accordingly, the trial court's characterization

of this money was important to the father.

       Unfortunately, the record of this appeal does not reflect the trial court's resolution

of this contention. It is the burden of the party presenting an issue to ensure that the

record is adequate for review. State v. Rienks, 46 Wn. App. 537, 544-45, 731 P.2d 1116

(1987). Here that failure falls on the appellant's shoulders. Based on the reconsideration

documents, it appears that the trial court provided some answers to the question, but this

court has not been provided that reasoning. Accordingly, we are not in a position to

review the claim of trial court error.



       5It might also reflect simple cash flow patterns between existing accounts in which
the same money returns again and again to the account, or some similar innocent concern.
We do not suggest there is anything untoward occurring.


                                             14
No. 32579-2-111
In re the Parentage ofOAJ


       Nonetheless, this is a potentially significant issue that was properly raised6 to the

trial court. Since the matter is being returned to the trial court due to the imputed income

problem, we leave to the discretion of the trial judge, or her successor, whether to

reconsider the matter during its next effort at computing income. If the court was able to

successfully characterize this anomaly in the original action, it need not revisit the issue.

If the court did not answer the question previously, it should undertake to do so on

remand.

       Remaining Matters

       The father also argues that the trial court erred in not explaining its apparent

rejection of his "equitable" arguments such as a request for an offset against back support

obligations for the time the child spent with him each summer. However, he has

presented insufficient argument for us to consider the claims. Both parties also ask for

attorney fees. We decline the respective requests.

       With respect to the "equitable" arguments contention, the father argues that since

he put the issues properly before the trial court, it was therefore required to make findings

of fact and conclusions of law concerning his arguments. The failure to do so, he




        6 The father met his burden of identifying the discrepancy and putting it before the
court, requiring the court to characterize the funds. At that point the mother also was free
to explain the matter to the judge.



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                                                                                                I
No. 32579~2~III
In re the Parentage ojOA.J.


reasons, leaves this court unable to consider the issues and we should remand for the trial

court to address his arguments. This argument fails on several grounds.

       First, the father has not established that the trial court failed to enter any findings
                                                                                                 f
of fact or conclusions of law that it was required to enter. Findings typically need only be     i
entered when a court rule or statute requires them. For instance, a request for a deviation      f
                                                                                                 I'


                                                                                                 f
from the support schedule triggers a statutory duty for the trial court to explain why it did
                                                                                                 t
or did not grant the deviation. RCW 26.19.075(3). While there are many instances in

which findings would facilitate appellate review, they are only required in specified

instances. The father has not demonstrated that any of his arguments were subject to

mandatory findings.

       Second, the father was free to present his arguments to this court on the merits

since he presented them to the trial court. Having preserved the issues by presenting

supporting evidence and arguing them, he was then free to assign error to the court's

rejection of his claims (or any refusal to act) and argue the merits of those claims here.

RAP 10.3(a)(4), (6). In the event the trial court failed to perform some action required of

it, this court could remand for consideration of the claim. In most instances, however,

this court would be able to address the merits of the claim and order relief when

significant error was established.

       However, the father did not assign error to any of the issues that he argues the trial

judge should have more fully addressed. We therefore are not in a position to assess the


                                              16 

No. 32579-2-111
In re the Parentage ofOAJ


merits of his claims. "The appellate court will only review a claimed error which is

included in an assignment of error or clearly disclosed in the associated issue pertaining

thereto." RAP 10.3(g). The "equitable" arguments contention is simply unreviewable

here.

        The mother argues that she should receive attorney fees for responding to a

frivolous appeal. In view of the fact that the father prevailed on the imputed income

argument, we cannot say that his appeal was frivolous. The father, in tum, seeks attorney

fees under both RCW 26.09.140 and RCW 26.26.140. Both statutes permit a court to

exercise discretion to award attorney fees in, respectively, dissolution or paternity

actions. Without deciding whether the dissolution attorney fees statute could be applied

in a paternity action, we decline to award attorney fees under either statute.

        The support award is reversed and the matter remanded for further proceedings

consistent with this opinion.




WE CONCUR: 




        Brown, A . .1.



        Fearing, J.



                                             17 

