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          IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


In re the Marriage of                   )       NO. 69436-7-

SHELLY P. ALDRIDGE,                     )       DIVISION ONE

                    Respondent,         )

                    v.                  )

R. DEAN ALDRIDGE,                       )       UNPUBLISHED OPINION

                    Appellant.          )       FILED: June 10, 2013




      Lau, J. — Dean Aldridge appeals an order modifying and increasing his child

support obligation. Because undisputed accounting errors underlie the court's

calculation of Dean's income and the court's calculation of Dean's income and its

deviation from the standard obligation for extraordinary expenses are not supported by

adequate findings, we remand for further proceedings.

                                        FACTS


      Dean and Shelly Aldridge divorced in 2007. The dissolution decree required

Dean to pay maintenance through January 2012 and $712 in monthly child support for
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the Aldridge's child, Brianna. The support order provided that there would be no

modification until maintenance ended in 2012.

      In July, 2007, Dean married Dr. Brenda Sides, a naturopath. The couple

executed prenuptial and separate property agreements providing that all assets

acquired before or after marriage by either spouse would be that spouse's separate

property. After his divorce, Dean started or participated in several business ventures,

including D & B Aldridge Enterprises, which he operated with Dr. Sides.

       In August 2011, shortly before the five-year restriction on support modification

ended, Dean transferred his interest in D & B Enterprises to Dr. Sides.

       In March 2012, Shelly petitioned the court to modify the parenting plan and child

support. A court commissioner determined that Shelly had monthly income of $3,750,

that Dean was voluntarily underemployed, and that his income should be imputed at

$5,153 per month based on his gross income for 2011. These findings resulted in a

basic child support obligation of $800. The commissioner then granted Dean a

downward deviation based on his residential time with Brianna and ordered a transfer

payment of $537. The commissioner allocated educational expenses pro rata and

ordered Dean to continue paying all of Brianna's extracurricular expenses.

       The superior court revised the commissioner's ruling. The court adopted Shelly's
worksheets, which calculated Dean's gross monthly income as $11,049 and Shelly's as

$3,750. Dean's monthly income was comprised of $5,153 in personal income and
$5,896 in business income. The business income figure was based in part on prior
earnings of the business Dean originally owned with Dr. Sides. It is undisputed that


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Dean continued to assist Dr. Sides with the business after he transferred his interest in

it to her. He claimed, however, that he currently receives no salary.

       The court's income calculations resulted in a basic support obligation of $1,336.

The child support order described this amount as a "Standard Calculation."

       In its memorandum decision, the court expressly did not impute income to Dean

but noted that he could be underemployed and that imputation might be necessary in

the future. The court also found a basis to deviate upward from the standard

calculation:

       [T]he father has a wealthy lifestyle, living in a home of significant value, with
       expensive vehicles and sporting equipment, etc. and household expenses
       exceeding $31,000 per month, leading to the inference of substantial resources
       and/or income in his household.

               As stated above, both the resources and the income of a spouse,
       regardless of a prenuptial agreement, must be considered by the court when
       considering a deviation. The father requested a deviation downward and the
       commissioner granted it based on the residential schedule, even though the
       residential schedule has not changed or not changed very much from what was
       originally set. Because of that request, I am able to consider the income of Dr.
       Sides as well; this effectively almost doubles the income in the father's household
       as a part of the consideration for deviation. RCW 26.19.075(1 )(a)(l). The father
       also has a far greater earning capacity, should he choose to exercise it and
       continue to develop it than the mother does. See, e.g., In re Marriage of Crosetto,
       82 Wn. App. 545 [,918 P.2d 954] (1996); In re Marriage of Glass, 67 Wn. App.
       378 [, 835 P.2d 1054] (1992).
             Because of the disparity in earnings, the income and wealth in the father's
       household, the modest standard of living the mother is able to afford for the child
       based on her earnings plus the basic child support contribution from the father,
       and the father's greater earning capacity that he is currently not utilizing, an
       upward deviation is appropriate in this case.

Memorandum of Decision at 4-7.

       The court ordered Dean to pay 100 percent of Brianna's extracurricular expenses

as an upward deviation. In its "Reasons for Deviation From Standard Calculation," the

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court stated, "Based on the disparity in earnings, the income and possession of wealth

in the father's household, the father shall continue to be responsible for Brianna's

extracurricular activities as an upward deviation."

       The court also ordered Dean to pay $5,000 of Shelly's attorney fees. Dean

appeals.

                                        DECISION


       In setting child support, courts must compute the parents' total income, determine

the standard support obligation from the economic table, decide whether to deviate from

the standard calculation, and allocate the child support obligation to each parent based

on his or her share of the combined net income. In re Marriage of Maples. 78 Wn. App.

696, 700, 899 P.2d 1 (1995). We review this process, whether it occurs in the initial

action or in a modification proceeding, for abuse of discretion. In re Marriage of Griffin.

114Wn.2d772, 776, 791 P 2d 519 (1990V In re Marriage of Scanlon. 109 Wn. App.

167, 174, 34 P.3d 877 (2001). When a superior court revises a commissioner's ruling,

we review the superior court's decision, notthe commissioner's. In re Marriage of
Stewart. 133 Wn. App. 545, 550, 137 P.3d 25 (2006). We review findings offact for

substantial evidence. State ex rel. J.V.G. v. Van Guilder 137 Wn. App. 417, 421-423,

154 P.3d 243, 245(2007).

       Dean first contends the court miscalculated his income. The court adopted

worksheets attributing $5,153 in monthly personal income and $5,896 in monthly
business income to Dean based on previous earnings of D & B Alrdidge Enterprises.

He contends, and Shelly does not dispute, that these figures are partly based on an
accounting error that resulted in Dean's personal income in 2011 ($51,122) being
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included, and therefore double counted, as income for D & B Enterprises. The record

appears to support this contention. Accordingly, we remand for the court to address the

accounting errors and, if necessary, recalculate Dean's income and support obligation.

       Next, Dean contends the court abused its discretion in ordering him to pay

Brianna's extracurricular activity expenses without first finding that such expenses were

reasonable and necessary as required by RCW 26.19.080.1 Shelly also does not
dispute this contention, and a review of the record does not disclose the requisite

findings. We therefore direct the court on remand to either enter the requisite findings

or strike the provision ordering support for extracurricular activities.

       Dean argues that even if the expenses were reasonable and necessary, the

superiorcourt abused its discretion in deviating upward with respect to extracurricular

expenses. Under RCW 26.19.080(3), such expenses "shall be shared by the parents in
the same proportion as the basic child support obligation.. . ." Thus, as Dean correctly
points out, a court cannot deviate upward for such expenses unless it also deviates
upward for the basic support obligation. In re Marriage ofYeamans. 117 Wn. App. 593,

       1 RCW 26.19.080 provides in part:
              (3) Day care and special child rearing expenses, such as tuition and long
       distance transportation costs to and from the parents for visitation purposes, are
       not included in the economic table. These expenses shall be shared bv the
       parents in the same proportion as the basic child support obligation. . . .
              (4) The court may exercise its discretion to determine the necessity for
       and the reasonableness of all amounts ordered in excess of the basic child
       support obligation.
(Emphasis added). In Yeamans. 117 Wn. App. at 600 (trial court must determine that
extraordinary expenses are reasonable and necessary and then allocate them
proportionally absent findings supporting a deviation); In re Marriage of McCausland,
129 Wn. App. 390, 411, 118 P.3d 944 (2005) ("[fjindings must support any requirement
that a parent bear the full cost of any extraordinary expenses") reversed on other
grounds. 159 Wn.2d 607 (2007).
69436-7-1/6



601, 72 P.3d 775 (2003) ("It follows that if a court does not deviate from the basic

support obligation, then it cannot deviate from the extraordinary expenses."); In re

Paternity of Hewitt. 98 Wn. App. 85, 90, 988 P.2d 496 (1999) (court abused its

discretion requiring payment of more than a proportionate share of travel expenses

where the court did not deviate from the standard calculation of basic support); In re

Marriage of Casey. 88 Wn. App. 662, 668, 967 P.2d 982 (1997) (no abuse of discretion

apportioning all travel costs to father after deviation in basic support calculation making

father responsible for 100 percent of basic support obligation). Although the superior

court found a basis to deviate from the standard calculation, it deviated only with

respect to support for extraordinary expenses. Unless the court on remand deviates

from the basic child support obligation, it must assign extraordinary or extracurricular

expenses in the same proportion as the basic support obligation and may not deviate

therefrom.2

       Dean next asserts that the superior court abused its discretion by including

income from a business now owned by Dr. Sides in its calculation of his gross monthly

income. He argues that inclusion of that income violated RCW 26.19.071 (4)(a), which

bars consideration of a new spouse's income in determining the basic support




       2We note Shelly's argument that "[t]he conclusion Judge Fleck reached is that
even ifthe child support worksheets may include income of his wife and somewhat
imputed income to him, when she considered all of the factors, she deviated upward in
her award of basic child support to the sum of $1,336." Resp't's Br. at 14. While the
court's memorandum of decision suggests that the court might have had alternative
bases for its inclusion of business income for Dean, i.e., actual projected business
income and, alternatively, a deviation upward, the fact remains that the court never
mentioned such a deviation and the support order only imposed a deviation with respect
to extracurricular activities.
69436-7-1/7



obligation, and RCW 26.16.010, which defines separate property. We decline to review

this argument for two reasons.

       First, the court's findings are insufficient for review. While the court found that

Dean continues to have business income, there are no findings demonstrating its basis

for attributing that income to him. The court made it clear that it was not imputing

income to Dean and mentioned deviation only with respect to Brianna's extracurricular

expenses. Given that Dean transferred his interest in the business to Dr. Sides,

asserted the business income was now Dr. Sides' separate property, and claimed that

he currently receives no salary for his contributions to the business, it was incumbent on

the court to enter findings and conclusions supporting its attribution of business income

to Dean.

       In any event, review of this issue is premature since the court on remand may

elect to deviate upward on the basic support obligation and may not attribute any

business income to Dean. Likewise, given the potential outcomes on remand, review of

Dean's arguments regarding the court's bases for deviating are premature.3


       3A deviation in this case appears to be consistent with In Matter of the Marriage
of Glass. 67 Wn. App. 378, 388, 835 P.2d 1054 (1992) (in upholding trial court's
consideration of parent's business relationship with his new wife in ordering a deviation
from the standard schedule, this court stated, "It was appropriate for the court to
consider the income and other financial benefits which [the father] enjoys by virtue of his
co-ownership and comanagement of this business [with his wife], in determining
whether to deviate from the schedule in imposing [his] child support obligation.") and
Brandli v. Tallev. 98 Wn. App. 521, 524-27, 991 P.2d 94 (1999) (in deciding whether to
deviate from the basic support obligation, trial court could consider new spouse's
"income, as well as wealth that income allowed the Brandli's to accumulate"). To the
extent Dean claims these cases contravene the legislature's intent, he overlooks the
presumption that decisions are consonant with legislative intent when, as here, the
legislature has had ample opportunity to amend the statutes and has not done so. City
of Federal Way v. Koenig, 167 Wn.2d 341, 348, 217 P.3d 1172 (2009) ("This court
69436-7-1/8



       Last, Dean contends this matter must be remanded to a different judge because

the original judge granted an affidavit of prejudice as to Dean's petition to modify the

parties' parenting plan. But the affidavit of prejudice was filed after the decision at issue

here. Dean cites no authority, nor are we aware of any, indicating that the judge's

recusal from Dean's modification action prohibits her from presiding over a remand of

her earlier decision in Shelly's modification action. We decline to so hold.

       Remanded for further proceedings consistent with this opinion.




WE CONCUR:




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presumes that the legislature is aware of judicial interpretations of its enactments and
takes its failure to amend a statute following a judicial decision interpreting that statute
to indicate legislative acquiescence in that decision.").
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