       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Marriage of:               )         No. 80282-8-I
                                                 )
 STEPHEN A. BURNS,                               )         DIVISION ONE
                                                 )
                        Appellant,               )         UNPUBLISHED OPINION
                                                 )
                v.                               )
                                                 )
 HIROMI F. FUJIKI, formally known as             )
 HIROMI F. BURNS,                                )
                                                 )
                        Respondent.              )
                                                 )

       HAZELRIGG, J. — Stephen Burns seeks reversal of an order modifying child

support. He contends that the court was not permitted to modify the previously

ordered downward deviation based on the children’s residential schedule because

the amount of time that the children spent with each parent had not changed. He

also argues that the court failed to consider relevant factors when determining the

amount of the modified downward deviation and that the court erred in awarding

attorney fees and costs to the other parent, Hiromi Fujiki (formerly Hiromi Burns).

Because the court was permitted to modify the downward deviation and did not

abuse its discretion in doing so, we affirm. However, because the court did not

enter sufficient findings regarding the award of attorney fees and costs, we vacate

the award and remand for reconsideration of this issue.




 Citations and pinpoint citations are based on the Westlaw online version of the cited material.
No. 80282-8-I/2


                                      FACTS

       Stephen Burns and Hiromi Fujiki divorced on February 25, 2015. The court

reviewed and approved the agreed decree of divorce, order of child support, and

final parenting plan concerning the parties’ two children, who were six and four

years old at the time.

       The 2015 child support order established Burns as the obligor parent and

set his total monthly transfer amount at $421.16. The child support schedule

worksheets adopted by the court showed Burns’ net income as $5,255.84 per

month and Fujiki’s monthly income as $2,736.68.          The order noted that the

standard calculation was $1,072.48 per month but listed the following as its

reasons for deviation from the standard amount: “The children spend(s) a

significant amount of time with the parent who is obligated to make a support

transfer payment.    The deviation does not result in insufficient funds in the

receiving parent’s household to meet the basic needs of the children. The children

does not [sic] receive public assistance.”

       In October 2018, Fujiki filed a petition to modify the parenting plan and child

support order. In the petition, she requested a major change to the parenting

schedule because “[t]he children are living in my home now with the other parent’s

permission.” She argued that her requested change affected the amount of child

support because she was “asking for a substantial change in the amount of time

the children spend with the parent who pays child support.” Burns appeared pro

se and agreed to the modified schedule in the proposed parenting plan. However,

he objected to the request to modify child support and disagreed with the




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characterization of the modification as a “major change” because there was “no

change in the amount of time the children spend with the parent who pays child

support.” The court entered the parenting plan as requested on November 16,

2018. Under the 2018 parenting plan, the children were to reside with Burns from

Wednesday through Friday every week and every other weekend. Consequently,

the children resided with Burns for six out of every fourteen nights and with Fujiki

for eight out of every fourteen nights.

       On December 12, 2018, Fujiki filed a motion for a temporary order

requesting that the court “[o]rder child support according to the Washington state

child support schedule” and asking “[f]or an award of reasonable attorney fees on

the basis of need and ability to pay.” Fujiki asserted that “[c]ontinuing the deviation

[from the standard calculation of child support] will perpetuate the hardship that

results from the present deviation and will not leave sufficient funds in my

household to meet the needs of our children.” Fujiki’s attorney filed a declaration

stating that his hourly rate was $300, he had spent 2.5 hours drafting the motion

and related documents, and he anticipated spending an additional 4.5 hours on

the matter. He requested an award of $2,100 in attorney fees and $44.98 in costs.

       Because the parties had agreed to the entry of the modified parenting plan

and the only remaining issues were Fujiki’s request to modify child support and

request for attorney fees and costs, the parties agreed to a trial by affidavit to

dispose of the remaining issues. The parties filed their trial declarations on April

26, 2019. Fujiki asserted that the parties had utilized the “residential credit using

formula” to arrive at the downward deviation from the standard child support




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payment in the agreed 2015 order. She stated that her “agreement to accept a

reduced amount of child support ha[d] been a financial disaster” and resulted in

“insufficient funds in my household to meet the basic needs of our children.” She

asserted that the finding in the 2015 child support order that the downward

deviation left her sufficient funds to meet the needs of the children “ha[d] not been

true for years,” and she and the children “ha[d] not been able to maintain a

semblance of the standard of living that we enjoyed prior to the divorce.” She

stated that she and Burns had agreed that the children should attend school in the

Mercer Island district, so she had lived in a one-bedroom apartment on Mercer

Island with the two children since the divorce. However, as the children got older,

the apartment no longer provided enough space for Fujiki and the children. She

relocated to a two-bedroom apartment in Redmond while the petition to modify

child support was pending.

       Fujiki stated that she had been laid off from her job as an interior designer

earlier that month and received $598 per week in unemployment compensation

while she searched for a new position. She requested that child support be

calculated based on her unemployment income and that the order be retroactive

to the date she filed the petition. She submitted two financial declarations, one

based on her wages from her prior employment and the other based on her

unemployment compensation.1              Both showed total monthly expenses of

$4,933.39. Relative to her net income, the declaration based on her prior wages

showed a monthly deficit of $1,068.55, and the declaration based on her


       1  These financial declarations are not signed but were filed with Fujiki’s signed trial
declaration and referenced in the signed document.


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unemployment compensation showed a monthly deficit of $2,540.29.             Burns

argued that the court should deny the request to modify the child support order

because Fujiki had not shown a substantial change in circumstances justifying the

modification.

       The court entered findings that the child support order should be modified

because at least two years had passed since the entry of the initial child support

order, the parents’ income had changed, and the economic table or standards in

RCW 26.19 had changed. The court also found that there had been a substantial

change in circumstances since the 2015 order was signed because, although the

original deviation was not problematic, continued deviation would result in

insufficient funds in Fujiki’s household to meet the children’s needs.

       The court found that Fujiki’s unemployment was a temporary situation and

listed her imputed income as $4,221.11 per month. It noted that Burns’ actual

income was $6,538.93 per month. The court adopted the child support schedule

worksheet that Fujiki had completed based on her wages from prior employment.

The worksheet listed the standard calculation of child support for Fujiki as $908.66

and for Burns as $1,409.34. The court found that the monthly child support amount

should deviate from the standard calculation because of the children’s residential

schedule. Burns was ordered to make a total monthly child support payment of

$1,159.34 beginning January 1, 2019. This resulted in Burns owing $3,690.90 in

back child support. The court ordered the parties to pay proportional shares of

expenses for day care, education, and agreed extracurricular activities. The court

also awarded Fujiki attorney fees in the amount of $2,415. The court found that




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Fujiki had a need for contribution to these fees and costs and Burns had the ability

to contribute.

       Through counsel, Burns moved for revision of the commissioner’s order.

Fujiki’s counsel filed another declaration stating his hourly rate, estimating that he

would spend a total of four hours on the motion for revision issue, and requesting

that Fujiki be awarded $1,200 in attorney fees. After a hearing, the court denied

the motion for revision and Fujiki’s request for additional attorney fees. Burns

appealed.


                                     ANALYSIS

       A commissioner’s orders are subject to revision by a superior court judge.

RCW 2.24.050. Any appeal following resolution of a motion for revision is from the

superior court’s decision, not the commissioner’s. Maldonado v. Maldonado, 197

Wn. App. 779, 789, 391 P.3d 546 (2017). However, a denial of a motion for

revision constitutes an adoption of the commissioner’s decision, and the superior

court is not required to enter separate findings and conclusions. Id.


I.     Child Support Order

       Burns contends that the superior court erred in entering the 2019 child

support order.    We review an order modifying child support for an abuse of

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

The court abuses its discretion when its decision is based on unreasonable or

untenable grounds. In re Marriage of Schnurman, 178 Wn. App. 634, 638, 316

P.3d 514 (2013). A decision based on an erroneous view of the law or incorrect




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legal analysis necessarily constitutes an abuse of discretion. Id. “A trial court does

not abuse its discretion where the record shows that it considered all the relevant

factors and the child support award is not unreasonable under the circumstances.”

State ex rel. J.V.G. v. Van Guilder, 137 Wn. App. 417, 423, 154 P.3d 243 (2007).

       Appellate courts will uphold findings of fact that are supported by substantial

evidence. In re Marriage of Stern, 57 Wn. App. 707, 717, 789 P.2d 807 (1990).

Substantial evidence exists where the record contains a sufficient quantum of

evidence to persuade a fair-minded, rational person of the truth of a declared

premise. Id. Substantial evidence may exist to support a finding even if there are

other reasonable interpretations of the evidence.         Fred Hutchinson Cancer

Research Ctr. v. Holman, 107 Wn.2d 693, 713, 732, P.2d 974 (1987). On review,

“[w]e will not substitute our judgment for the trial court’s, weigh the evidence, or

adjudge witness credibility.” In re Marriage of Greene, 97 Wn. App. 708, 714, 986

P.2d 144 (1999).

       RCW 26.19.100(1) directs that in a proceeding for dissolution of marriage,

“after considering all relevant factors but without regard to misconduct, the court

shall order either or both parents owing a duty of support to any child of the

marriage . . . dependent upon either or both spouses . . . to pay an amount

determined under chapter 26.19 RCW.” Chapter 26.19 RCW establishes a child

support schedule intended to “insure that child support orders are adequate to

meet a child’s basic needs[,] to provide additional child support commensurate with

the parents’ income, resources, and standard of living,” and to apportion the

obligation equitably between the parents. RCW 26.19.001.




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       The court must determine the presumptive amount of support according to

the child support schedule and shall order this standard amount “[u]nless specific

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

by the evidence.”     RCW 26.19.075(2).        The governing statute contains a

nonexclusive list of considerations justifying deviation from the standard

calculation including the children’s residential schedule, provided the deviation

does not result in insufficient funds to meet the basic needs of the children in the

household receiving support; the income of a new spouse, if the remarried parent

has requested a deviation for another reason; and children from other relationships

to whom the parent owes a duty of support. RCW 26.19.075(1)(a)(i), (d), (e).

“Agreement of the parties is not by itself adequate reason for any deviations from

the standard calculation.” RCW 26.19.075(5).

       A party to a child support order may petition for a modification based on a

showing of substantially changed circumstances at any time.                    RCW

26.09.170(5)(a).    If two years have passed from the order’s entry or last

modification, the order may be adjusted without a showing of substantially changed

circumstances based on changes in the parents’ income or changes in the

economic table or standards in chapter 26.19 RCW. RCW 26.09.170(7)(a).


       A.     Findings of Fact

       Burns argues that the findings of fact are not supported by substantial

evidence, but does not assign error to any specific findings. The rules of appellate

procedure require that parties include a separate assignment of error for each

finding of fact that they contend was improperly made, including a reference to the



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finding by number. RAP 10.3(g). “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.” Id. In appropriate cases, we may waive

technical violations of this rule when the opening brief makes the nature of the

challenge clear. Harris v. Urell, 133 Wn. App. 130, 137, 135 P.3d 530 (2006).

       In the argument section of his brief, Burns quotes portions of the following

finding under the heading “Change of Circumstances” in the court’s order on the

petition to modify child support:

       At the time deviation was granted in the original Order of Child
       Support, the deviation did not result in insufficient funds in the
       mother’s household to meet the needs of the children. Due to rising
       costs of living and the need for the mother to move from her artificially
       low cost of housing while living in a one bedroom apartment,
       continued deviation does result in insufficient funds in the mother’s
       household to meet the needs of the children.

Although he fails to expressly assign error to this finding, the nature of his

challenge is sufficiently clear from his argument to allow our review. Burns’ brief

does not demonstrate a challenge to any of the court’s other findings of fact.

       When entering the 2015 child support order, the court found that the

downward deviation did not result in insufficient funds in Fujiki’s household to meet

the needs of the children. This finding was never challenged on appeal. Fujiki

repeatedly asserted in declarations that her monthly expenses outpaced her

income, even after she relocated from Mercer Island to Redmond. We will not

substitute our judgment for the trial court’s in deciding to credit this evidence.

Substantial evidence supports the finding that the deviation did not result in




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insufficient funds at the time it was entered but continued deviation would result in

insufficient funds in Fujiki’s household.

       Burns also argues briefly that the findings of fact entered by the court were

insufficient because they do not explain how the court calculated the amount of the

downward deviation. The court is required by statute to enter written findings of

fact with specific reasons for any deviation from the standard calculation of child

support.   RCW 26.19.075(2), (3).           As noted above, the statute provides a

nonexclusive list of “[r]easons for deviation from the standard calculation” including

sources of income and tax planning, nonrecurring income, debt and high

expenses, residential schedule, and children from other relationships.           RCW

26.19.075(1). When such reasons are present, “the court shall exercise discretion

in considering the extent to which the factors would affect the support obligation.”

RCW 26.19.075(4).

       This statute “gives the trial court discretion to deviate from the basic child

support obligation based on the facts of a particular case,” and therefore, “a

specific formula is neither necessary nor statutorily required to ensure the parents’

child support obligation is properly allocated.” State ex. rel. M.M.G. v. Graham,

159 Wn.2d 623, 636, 152 P.3d 1005 (2007). A deviation based on the residential

schedule remains discretionary and “should focus on the legislature’s primary

intent to maintain reasonable support for the children in each household.”

Schnurman, 178 Wn. App. at 641.

       Here, the court entered written findings that the residential schedule justified

deviation from the standard calculation but continuing the deviation in the




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previously ordered amount would result in insufficient funds in Fujiki’s household.

Once these findings were made, the court made a discretionary determination as

to the extent to which those considerations affected the support obligation based

on the facts of this case.

       In support of his argument, Burns cites State ex rel. Sigler v. Sigler, in which

Division Three of this court, after finding that the father should not have been

granted a downward deviation, also found that the deviation failed because the

court’s findings gave no indication of how the decrease was calculated. 85 Wn.

App. 329, 338, 932 P.2d 710 (1997). However, in Sigler, there was no indication

that the deviation would result in insufficient funds in the obligee parent’s

household. The calculus here was based on more than simply the children’s

proportional time with each parent, and the trial court’s findings were sufficient to

support the deviation.


       B.     Child Support Modification

              1.      Modification of Downward Deviation

       Burns contends that the trial court was not permitted to modify the

downward deviation in child support because his entitlement to the deviation

flowed from the residential schedule outlined in the parenting plan and his

residential time with the children had not changed.         He bases this argument

primarily on In re Marriage of Trichak, 72 Wn. App. 21, 863 P.2d 585 (1993). In

Trichak, the trial court found in the decree of dissolution that the father was entitled

to a pro rata offset in his child support obligation for the Social Security benefits

received by the parties’ developmentally disabled child. Id. at 22. Neither party



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appealed the decree, and the mother brought a petition for modification of child

support two years later. Id. Although the court increased the father’s child support

obligation based on a substantial change of circumstances, it found that the pro

rata offset was “the law of the case” and not subject to modification. Id.

        On appeal, the mother argued that the offset was not a proper deviation

under the child support statute. Id. at 24. We found that she was precluded, under

the doctrine of collateral estoppel, from relitigating whether a deviation from the

standard calculation for the child’s Social Security income was proper. Id. at 23.

We noted that “the trial court clearly had the ability to modify the deviation

provision” on the basis of a substantial change of circumstances, but a petition for

modification of child support was “not the proper forum for relitigating previously

decided legal issues that are unrelated to” the needs of children. Id. at 24.

        Trichak does not compel the conclusion that the court in this case was

prohibited from modifying the amount of the downward deviation based on the

children’s residential schedule.          Unlike Trichak, Fujiki did not argue that the

deviation was ordered on an improper basis. She requested a modification based

on a substantial change of circumstances that resulted in insufficient funds to meet

the children’s needs. Even if some downward deviation is the “law of the case”

here because the children’s residential time with each parent has not changed, the

court maintained a downward deviation based on the residential schedule.2


        2  Burns also cites an unpublished decision of this court in support of his argument that the
trial court was not permitted to modify the downward deviation. In re Marriage of Richardson, No.
77900-1-I (Wash. Ct. App. Dec. 24, 2018) (unpublished), http://www.courts.wa.gov/opinions/pdf/.
However, in that case, we explicitly declined to reach the issue of “whether the trial court may,
absent a modification to the parenting plan, change the amount of the deviation (without eliminating
it) and order a nonzero transfer payment on a motion to modify or adjust child support.” Id. at 17.
(alteration in original). Richardson does not constrain our analysis here.


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         Burns also argues that the trial court abused its discretion in ordering “relief

that was not explicitly requested by the parties.” However, “the court has broad

equitable powers in family law matters.” In re Marriage of Morris, 176 Wn. App.

893, 903, 309 P.3d 767 (2013). Once a basis for modification of a child support

order has been established, the court may modify the original order in any respect.

In re Marriage of Scanlon and Witrak, 109 Wn. App. 167, 171, 34 P.3d 877 (2001).

The court did not abuse its discretion in modifying the amount of the downward

deviation instead of maintaining or eliminating it.


                2.     Amount of Deviation

         Burns contends that the trial court failed to consider evidence of increased

expenses in his own household and decreased expenses in Fujiki’s household

stemming from the amount of time the children spend with each parent when

setting the amount of the deviation. When determining the amount of a deviation

based on the residential schedule,

         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.

RCW 26.19.075(1)(d).

         Although the court’s order does not include specific findings about the

change in expenses to each household based on the residential schedule, the

parties’ financial obligations were included in the declarations submitted to the

court.    We presume that the court considered all evidence before it when




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fashioning an order. In re Marriage of Kelly, 85 Wn. App. 785, 793, 934 P.2d 1218

(1997). Burns has not shown that the court abused its discretion in setting the

amount of the downward deviation in child support.


II.    Award of Attorney Fees and Costs

       Burns contends that the court erred in awarding Fujiki attorney fees and

costs on the modification action. The court may award reasonable attorney fees

and costs to a party for maintaining or defending a proceeding under chapter 26.09

RCW after considering the financial resources of both parties. RCW 26.09.140.

The decision to award fees under this statute is within the trial court’s discretion,

so “[t]he party challenging the award bears the burden of proving that the trial court

exercised this discretion in a way that was clearly untenable or manifestly

unreasonable.” In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71

(1994).

       The court must balance the needs of the party seeking the fees against the

ability of the other party to pay. Id. “In calculating a reasonable amount of fees,

the court should consider the following three factors: (1) the factual and legal

questions involved; (2) the amount of time necessary for preparation and

presentation of the case; and (3) the value and character of the property involved.”

In re Marriage of Ayyad, 110 Wn. App. 462, 473, 38 P.3d 1033 (2002). The trial

court must indicate on the record the method it used to calculate the award. Knight,

75 Wn. App. at 729.

       In its final order and findings, the court indicated that Burns should pay

$2,415 toward Fujiki’s court costs and attorney fees because Fujiki had “the need



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for contribution to her attorney fees and costs” and Burns had “the ability to

contribute to the same.” Although the court appears to have properly exercised its

discretion in weighing Fujiki’s need for contribution against Burns’ ability to pay,

the court did not indicate the method used to calculate the award in its written

order. Where the court does not indicate how it reached the amount of the attorney

fee award on the record, the remedy is vacation of the award and remand to the

trial court for reconsideration. See In re Marriage of Sanborn, 55 Wn. App. 124,

130, 777 P.2d 4 (1989). Accordingly, we vacate the award of attorney fees to Fujiki

and remand for the trial court to reconsider her request for fees and costs.


III.   Attorney Fees on Appeal

       Fujiki requests an award of attorney fees on appeal under RAP 18.1 “on the

basis of need and ability to pay.” A party may request an award of attorney fees

and costs if applicable law provides the right to recover fees and costs on appeal.

RAP 18.1(a). The party requesting fees and expenses must do so in the manner

specified in the appellate rules. Id. The party must set out its request in a separate

section of its opening brief and, “[i]n any action where applicable law mandates

consideration of the financial resources of one or more parties regarding an award

of attorney fees and expenses, each party must serve upon the other and file a

financial affidavit no later than 10 days prior to the date the case is set for oral

argument or consideration on the merits.” RAP 18.1(b), (c).

       On appeal of any proceeding under chapter 26.09 RCW, “the appellate

court may, in its discretion, order a party to pay for the cost to the other party of

maintaining the appeal and attorneys’ fees in addition to statutory costs.” RCW



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26.09.140. In making this determination, we consider the financial resources of

both parties, balancing the needs of one party against the other’s ability to pay.

Stern, 57 Wn. App. at 720–21. We may also consider the merits of the appeal. Id.

       Fujiki set out her request for attorney fees and costs in a separate section

of her opening brief to this court. Her brief also stated that she would file a financial

affidavit no later than 10 days before the date of consideration of this case. Her

financial affidavit does not appear to have been timely filed. “An appellate court

will not consider an award of attorney fees on appeal under RAP 18.1 and RCW

26.09.140 when a party seeking fees fails to comply with RAP 18.1(c).” In re

Marriage of Crosetto, 82 Wn. App. 545, 565–66, 918 P.2d 954 (1996).

Accordingly, Fujiki’s request for attorney fees on appeal is denied.

       Remanded for reconsideration of the trial court’s award of attorney fees and

costs to Fujiki. Otherwise affirmed.




WE CONCUR:




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