                                                                            FILED
                                                                          JUNE 9,2015
                                                                  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 Parenting and Support of:                )
                                               )         No. 31303-4-111
R.T.L.,                                        )
                                               )
                      child.                   )        UNPUBLISHED OPINION


       SIDDOWAY, C.J. - Nicholette Liedkie claims the trial court erred when it treated

Emilio Lopez's petition to establish a parenting plan for their child as an initial custody

proceeding rather than as a modification. An Idaho court had previously ordered Mr.

Lopez to pay child support; however, no custody order was ever entered. We conclude

that because the Idaho child support order was not a custody decree, the trial court did not

err in treating Mr. Lopez's petition as an initial custody proceeding. We further hold that

it was not error to impute income to Ms. Liedkie for a full 40-hour workweek. For these

reasons, we affirm.

                      FACTSANDPROCEDURALBACKGROlmD

       R.T.L. was born to Ms. Liedkie and Mr. Lopez on March 22,2001, in Lewiston,

Idaho. Even though they were not married, Mr. Lopez filed an acknowledgment of
No. 31303-4-II1
In re Parenting & Support ofR. T.L.


paternity. In November 2002, the district court for Nez Perce County, Idaho, entered an

order requiring Mr. Lopez to make child support payments in the amount of $251.99 a

month and to obtain health insurance for R.T.L. The order did not discuss custody or

residential placement.

       Initially Mr. Lopez made very few of these payments-the parties agree that Mr.

Lopez was not present early on in R.T.L's life.

       In 2008, Mr. Lopez received treatment for drug and alcohol addiction. Ms.

Liedkie admits that after receiving treatment, Mr. Lopez began consistently making back

payments on his child support obligation. Although Ms. Liedkie retained physical

custody ofR.T.L., Mr. Lopez became actively involved in R.T.L.'s life.

       One year later, the State of Idaho arrested and charged Ms. Liedkie with a drug

offense. She was bailed out ofjail within a day and the charges were dropped about three

months later. However, in February 2010 the federal government charged Ms. Liedkie

with possession of methamphetamine with intent to distribute. In March 2010, a federal

judge sentenced Ms. Liedkie to 30 months in prison. Upon her incarceration, Ms.

Liedkie's family began caring for R.T.L.

       Promptly after learning of Ms. Liedkie's incarceration, Mr. Lopez filed a pro se

petition in the Superior Court for Asotin County asking the court to create a residential




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No. 31303-4-III
In re Parenting & Support ofR. T.L.


schedule placing R.T.L. with him. I Along with the petition, Mr. Lopez filed a summons,

a proposed parenting plan, a proposed child support order, a copy of the Idaho child

support order, and a copy of Ms. Liedkie's federal indictment. While in prison, Ms.

Liedkie filed a response contesting the proposed plan.

       On August 9,2010, the superior court conducted a hearing on the petition for

residential placement ofR.T.L. The court inquired whether Ms. Liedkie was ever

granted legal custody. Mr. Lopez informed the court that there was a child support order,

but not a custody order. At a proceeding in September 2010, the court again asked

whether there was a custody order. For a second time, Mr. Lopez informed the court that

there was never a formal custody determination. The court reviewed the child support

order and confirmed that the order did not grant legal custody to anyone.

      A temporary order establishing residential placement ofR.T.L. with Mr. Lopez

while Ms. Liedkie was incarcerated was entered two weeks later.

       The trial to address a permanent parenting plan and residential schedule was set

for February 2011. Three continuances were granted, and finally, on September 7,2012,

the case was heard. In its oral ruling, the court granted primary residential placement of




       IWashington has jurisdiction over this case because R.T.L. had been residing in
Clarkston, Washington at his mother's apartment. Upon her incarceration, R.T.L.
continued to reside in Clarkston with his maternal grandfather.

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No.31303-4-III
In re Parenting & Support ofR. T.L.


R.T.L. to Mr. Lopez. Ms. Liedkie was granted visitation rights every other weekend

during the school year and every other week during the summer.

       The trial court also asked each party to submit financial information in order to

determine their respective child support obligations. Ms. Liedkie provided the court with

pay stubs showing she worked anywhere between 14 to 40 hours a week at a rate of nine

dollars an hour. In ordering child support, the court imputed income to her at a rate of

nine dollars an hour for forty hours a week, resulting in her obligation to pay Mr. Lopez

$184.46 a month in child support.

       Ms. Liedkie timely appealed the court's rulings.

                                           ANALYSIS

       Ms. Liedkie challenges the trial court's determination to treat Mr. Lopez's petition

as an initial custody determination rather than a custody modification. She further

assigns error to the trial court's imputation of income to her for a fu1l40-hour workweek.

We address these arguments in tum.

                              Initial petition for a parenting plan

       Ms. Liedkie argues the court erred in allowing Mr. Lopez's petition to proceed as

a petition for an initial parenting plan rather than requiring the petition to meet the

heightened requirements for a modification. Mr. Lopez argues that no court had ever

entered a parenting plan or residential schedule, and as a result, the court did not err in

treating his petition as an initial petition.

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No. 31303-4-111
In re Parenting & Support 0/R. T.L.


       A parent who has acknowledged paternity may file a petition to establish a

parenting plan or residential schedule. RCW 26.26.375(1)(a). If a custody decree or

parenting plan has previously been entered by a court, the petitioning party must observe

additional formalities in order to obtain a modification of the existing order. RCW

26.09.260, .270. "[I]n order to secure a hearing, a party moving to modifY a custody

decree or parenting plan must submit with its motion, 'an affidavit setting forth facts

supporting the ... modification.'" Link v. Link, 165 Wn. App. 268, 275, 268 P.3d 963,

(2011) (alteration in original) (quoting RCW 26.09.270). "A court is required to deny the

motion unless it finds that' adequate cause for hearing the motion is established by the

affidavits.'" In re Parentage o/C.MF., 179 Wn.2d 411,419,314 P.3d 1109 (2013)

(quoting RCW 26.09.270). Even if a petitioning party demonstrates adequate cause

entitling the party to a hearing,

       the court shall not modifY a prior custody decree or a parenting plan unless
       it finds, upon the basis of facts that have arisen since the prior decree or
       plan or that were unknown to the court at the time of the prior decree or
       plan, that a substantial change has occurred in the circumstances of the
       child or the nonmoving party and that the modification is in the best interest
       of the child and is necessary to serve the best interests of the child.

RCW 26.09 .260( 1). "These procedures protect stability by making it more difficult to

challenge the status quo." C.MF., 179 Wn.2d at 419-20 (footnote omitted).

       In C.MF. our Supreme Court was asked to determine whether an adjudicated

father was required to follow the procedure for modifYing an existing custody order


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No. 31303-4-111
In re Parenting & Support ofR. T.L.


where no parenting plan had ever been entered, but the court order establishing parentage

listed the mother as the "custodian ... solely for purposes of all other state and federal

statutes.,,2 179 Wn.2d at 416-17. The court defined "custody decree" for purposes of

RCW 26.09.260 as "an order that designates one parent a custodian." CMF 179 Wn.2d.

at 422. As a result, it held that the trial court erred by not following the statutory

requirements for modifying a decree. Id. at 432.

       Here, the parties conceded at a pretrial hearing that no court had ever entered a

custody order-the same conclusion the court had reached in earlier hearings:

              JUDGE: ... Has there ever been an official custody order in the past
       with regards to R TL ?
              LOPEZ: No.
              [LIEDKIE'S COUNSEL]: No, Your Honor.
              JUDGE: Okay. So we're starting from scratch.
              [LIEDKIE'S COUNSEL]: Correct, Your Honor.

Report of Proceedings (RP) at 58. Unlike the parentage order in CMF., which made the

mother custodian solely for purposes of federal and other state statutes, the 2002 Idaho

child support order is entirely silent as to custody. Ms. Liedkie's earlier physical custody

ofR.T.L. as a practical matter, but not a legal matter, was not enough to require that Mr.

Lopez follow the procedure for modification. The trial court did not err in treating Mr.

Lopez's petition as an initial petition to establish a parenting plan.


       2 In Washington, this is required by statute. The parent with whom the child
resides the majority of the time shall be designated in the parenting plan as the custodian
for purposes of state and federal statutes. RCW 26.09.285.

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No. 31303-4-III
In re Parenting & Support ofR. TL


                                   Imputation ofincome

       Next, Ms. Liedkie contends the court abused its discretion in imputing income to

her for purposes of calculating child support. RCW 26.19.071(6) provides that "[t]he

court shall impute income to a parent when the parent is voluntarily unemployed or

voluntarily underemployed." But if a parent is gainfully employed on a full-time basis, a

court shall not impute income "unless the court finds that the parent is voluntarily

underemployed and finds that the parent is purposely underemployed to reduce the

parent's child support obligation." Id. Ms. Liedkie contends that no evidence was

presented that she was voluntarily underemployed and purposely underemployed to

reduce her child support obligation.

       We review an award of child support for abuse of discretion. In re Marriage of

Curran, 26 Wn. App. 108, 110,611 P.2d 1350 (1980). "An abuse of discretion occurs

when a judge exercises his discretion on 'a ground, or to an extent, [that is] clearly

untenable or manifestly unreasonable.'" Id. (alteration in original) (quoting In re

Marriage ofNicholson , 17 Wn. App. 110, 114,561 P.2d 1116 (1977».

       Here, the court determined from reviewing Ms. Liedkie's pay stubs that she was

working less than full-time. It was only because she was working less than full-time that

the court concluded she was underemployed, and it merely imputed income for a 40-hour

workweek at her existing rate of pay. Accordingly, it was not necessary that the court

find that she was voluntarily underemployed and purposely underemployed to reduce her

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No. 31303-4-III
In re Parenting & Support ofR. T.L.


child support obligation. The court did not abuse its discretion in imputing full-time

income to Ms. Liedkie.

                                       Attorney fees

       Mr. Lopez requests fees and expenses under RAP 18.9(a). Because the appeal is

not frivolous, his request is denied. Mr. Lopez also asks that we exercise our discretion

to award fees under RAP 18.1 and RCW 26.09.140. We decline to do so.

       Affirmed.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




Korsmo, J.     ?l 

  ~~\{1.

Fearing, .J.




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