   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON




                                                                                   90:6 WV 61 NIT L1OZ
In re the Parentage of:                  )
                                         )       DIVISION ONE
L.P.,                                    )
                                         )       No. 73509-8-1
                     Minor child.        )
                                         )
TIFFANI PALPONG,                         )       UNPUBLISHED OPINION
                                         )
                     Respondent,         )
                                         )
              v.                         )
                                         )
TYLER SOKUNTHOEUN MEAS,                  )
                                         )
                     Appellant.          )       FILED: June 19, 2017
                                         )

        DWYER, J. — Tyler Meas appeals from a child support order regarding his

son, L.P., as well as the award of attorney fees to L.P.'s mother, Tiffani Palpong.

Meas contends that the trial court erred in calculating his monthly net income and

in setting his back child support obligation to the date of L.P.'s birth. Because the

trial court imposed back child support beyond the period allowed by statute, we

remand for further proceedings. In all other respects, we affirm.



        Meas and Palpong married in 1996 and divorced in 2002. They briefly

rekindled their relationship and L.P. was born in 2004. Meas subsequently
No. 73509-8-1/2


remarried and has two younger children. L.P. has resided with Palpong his

entire life.

        In 2012, Palpong filed a petition to establish paternity and enter a

parenting plan and child support order. The parties ultimately reached a

settlement on the parenting plan and agreed to a trial by affidavit regarding child

support.

        Palpong works as an electrician for Boeing and owns a home. Her tax

returns for the previous five years reflect an average monthly net income of

$4,644.80. For the purposes of this appeal, this figure is undisputed by the

parties.

        Meas owns and operates his own business, a donut shop. He also owns

a home that he purchased in 2003 and a rental property that he purchased in

2008. Meas claimed that his average monthly net income averaged $2,447 over

the past five years. However, every month, Meas's personal expenses far

exceeded his income.1 Meas's personal bank statements also showed large and

frequent cash deposits and withdrawals from his personal account, including tens

of thousands of dollars sent to family members overseas.

        On May 8, 2015, the trial court issued a memorandum decision, in the

form of a letter to the parties, and an order of child support. The trial court found

that Meas had significantly underreported his net income:

      'Bank statements submitted by Meas show that Meas habitually paid for
personal family expenses, such as groceries, utilities, and dining out, out of his business
account.


                                            2
No. 73509-8-1/3


     !chose to impute net income of $7,000 per month for respondent.

      It was impossible to accurately determine the respondent's monthly
      income. He reports less than $3,000 per month, gross, from Tyler's
      Donuts which he claims is his only source of income. That
      representation is preposterous. It is a figure which is clearly
      inadequate to support his standard of living, even if I accept that he
      has been maintaining a debt equivalent to his original mortgage
      loan in excess of $200,000. He could not possibly afford to meet
      monthly car payments of nearly $1,000, the expenses to maintain
      his household, his travel to Cambodia and the substantial transfer
      of funds to his parents on his stated income. The fact that his
      annual tax returns are prepared by a CPA does not authenticate his
      monthly income. It only authenticates what he has disclosed to his
      accountant. While he asks that the court accept the truth of his
      representations, I could not overlook the fact that he consistently
      failed to provide complete financial records in response to
      discovery requests. While bank account records were provided, 1
      found no credit card statements, canceled checks or documentation
      for his claimed business expenses, or documentation for payment
      of household expenses from some source other than his business
      account (contrary to his representations). He failed to disclose any
      rental income on his financial declaration. And . . . respondent
      offered at best a superficial explanation for all of the financial
      transfers of funds reflected in his monthly bank account statements.
      And if his monthly income has only averaged less than $3,000 per
      month, how could he pay down a mortgage loan by some $20,000
      from September of 2012 to July of 2013? And how does he accrue
      bank balances of $70,000 or $90,000 as reported on his mortgage
      loan applications on such meager earnings, while remitting funds to
      his parents on a regular basis?

     The payments from his business account coupled with his monthly
     "draws" from the business begin to provide a more realistic sense
     of his monthly income. And how am Ito account for his own self-
     reported income from his mortgage loan applications of 2003 and
     2008, in which he declares monthly income of $8,646 and $8,425
     respectively. Because respondent has so grossly understated his
     monthly income, it would be easy to impute a substantially greater
     net income figure to him. I have tried to be fair notwithstanding what
     I believe to be a deliberate effort to deceive the court.




                                        3
No. 73509-8-1/4


       On the basis of Meas's income, the trial court set Meas's total child

support obligation at $876.26 per month. Applying the "whole family" formula,

the trial court reduced Meas's monthly transfer payment to $572.15.2

       The trial court also awarded Palpong back child support for the 11 years

since the date of L.P.'s birth. The trial court reasoned:

       I could find no legal reason why a child support obligation should
       not date back to the date of [L.P.]'s birth. It's impossible to
       accurately compute what that obligation should have been in 2004
       or 2005. I have no reason to believe that respondent's monthly
       income was any less than it is today. There is evidence that
       petitioner's income was substantially less and has increased
       annually at least since she was hired on at Boeing. Looking back, it
       would likely mean that respondent should have been obligated to
       pay a disproportionately greater share of a somewhat reduced total
       child support obligation. And the whole family deviation formula
       which reduces his support obligation for [L.P.] would not have
       applied prior to the birth of his other children. For those reasons, I
       simply chose to calculate today's transfer payment obligation back
       to [L.P.]'s date of birth.

       Both Meas and Palpong requested an award of attorney fees. The trial

court awarded Palpong $25,000 in fees for Meas's intransigence. Meas appeals.

                                        II

       Meas contends that the trial court erred in calculating his back child

support obligation to the date of L.P.'s birth because it was beyond the



        2 The whole family approach is a discretionary method for calculating deviations
that the trial court may use for guidance when parents owe support obligations for more
than one household. RCW 26.19.075(e); In re Marriage of Bell, 101 Wn. App. 366, 374,
4 P.3d 849(2000). Though Palpong does not cross appeal the trial court's decision to
grant a deviation, she contends that the trial court did not make adequate findings to
support the deviation, as required by RCW 26.19.075(3). Palpong may raise this issue
on remand.


                                             4
No. 73509-8-1/5


period allowed by statute. A trial court "may not order payment for support

provided or expenses incurred more than five years prior" to the

commencement of the child support action.3 RCW 26.26.134. Palpong

acknowledges that the trial court only had authority to order back child

support for five years. Accordingly, we vacate this portion of the child

support order and remand for the trial court to recalculate back child

support within the statutory limits.

                                           III

        Meas argues that the trial court erred in finding that his monthly net

income was $7,000 for the purposes of calculating child support.4 We

disagree.

        In Washington, child support obligations are calculated according to

the statutory support schedule. See RCW 26.19.020. The overriding

purpose of the child support schedule is to ensure that children are

protected with adequate, equitable, and predictable child support

commensurate with the parents' income, resources, and standard of living.

RCW 26.19.001. In enacting the schedule, the legislature also intended to




        3 An exception exists for "[a]ny period of time in which the responsible party has
concealed himself or herself or avoided the jurisdiction of the court." RCW 26.26.134.
There is no evidence in the record that this exception applies here.
        4 Although the trial court used the term "impute," it is clear that this was the trial
court's shorthand for determining Meas's income based on circumstantial evidence, not
as this term is used in RCW 29.19.071(6).


                                                 5
No. 73509-8-1/6


equitably apportion the child support obligation between both parents.

RCW 26.19.001.

       We review a trial court's findings of fact following a trial by affidavit

to determine whether they are supported by substantial evidence. In re

Marriage of Shellenberger, 80 Wn. App. 71, 80-81, 906 P.2d 968 (1995).

We do not review the trial court's credibility determinations, nor do we

weigh conflicting evidence. In re Marriage of Rich, 80 Wn. App. 252, 259,

907 P.2d 1234 (1996). When a party fails to provide credible evidence of

income, the trial court may determine income by any rational means based

upon evidence in the record. See In re Marriage of Sievers, 78 Wn. App.

287, 305-06, 897 P.2d 388 (1995).

       We review a child support order for abuse of discretion. In re

Marriage of Bell, 101 Wn. App. 366, 370-71, 4 P.3d 849 (2000). A trial

court abuses its discretion if its decision is manifestly unreasonable or

based on untenable grounds. In re Marriage of Littlefield, 133 Wn.2d 39,

46-47, 940 P.2d 1362(1997).

       Here, the trial court's finding that Meas had understated his income

was supported by the record. It is clear that Meas's expenses far exceed

his claimed monthly earnings of $2,447. For example, Meas's June 2012

bank statement for his personal account shows that Meas made a monthly




                                           6
No. 73509-8-1/7


mortgage payment on his home of $2,711.08.5 As Palpong noted, this

alone would exceed Meas's claimed monthly earnings. And Meas's June

2012 bank statement for his business account shows approximately $2,800

in additional personal expenses, including groceries, clothing, utilities,

Meas's Lexus payment, and payments made on Meas's personal credit

cards.6 While Meas contended that he was able to maintain this standard

of living by drawing on a home equity line of credit, the trial court expressly

found that claim not credible. Credibility determinations are not reviewable

on appeal. In re Marriage of Rideout, 150 Wn.2d 337, 352, 77 P.3d 1174

(2003).

       Moreover, the trial court's determination of Meas's monthly net

income was within the range of the evidence presented. For example,

bank statements for Meas's personal account show cash deposits totaling

approximately $9,419.14 in June 2012 and $10,900 in July 2012. And the

trial court found that, in 2008, Meas reported monthly net income of $8,425

on a mortgage loan application, despite the fact that Meas has been in the




       5 We use June 2012 as an example because it was the only whole month for
which Meas provided statements from both his business and personal accounts.
       6 These calculations are made difficult by the confusing nature of Meas's
finances. Some payments made from his business account are clearly personal
expenses, such as Meas's Lexus, cell phone, restaurants, and personal credit cards.
Some payments are clearly business expenses, such as baking and food supplies.
Some payments, such as those for Internet services or to Costco and Fred Meyer, could
be either personal or business expenses. In making this calculation, we include
expenses that could only be characterized as personal.


                                          7
No. 73509-8-1/8


donut business since 2006.7 "If a trial court's finding is within the range of

the credible evidence, we defer." In re Marriage of Rockwell, 141 Wn. App.

235, 248, 170 P.3d 572 (2007).

                                        IV

       Meas contends that the trial court erred in denying his request for an

award of attorney fees. He argues that he was entitled to fees because he

was the prevailing party regarding the parenting plan. But "except in the

event of an award of attorney fees against the State, RCW 26.26.140 does

not require that attorney fees be awarded only to a prevailing party." State

v. Weston, 66 Wn. App. 140, 148, 831 P.2d 771 (1992).

       Meas also challenges the trial court's award of attorney fees for

intransigence.8 He contends there was insufficient evidence to support a

finding of intransigence and the court entered inadequate findings to

support the award.

       A trial court may award reasonable attorney fees if one party's

intransigence increased the other party's legal fees. In re MarriacLe of

Burrill, 113 Wn. App. 863, 873, 56 P.3d 993(2002). The determination of

intransigence rests on the specific facts of each case, but may involve

"foot-dragging," obstruction, the filing of unnecessary or frivolous motions,


       7 Meas does not expressly challenge this finding. It is a verity on appeal. Morris
v. Woodside, 101 Wn.2d 812, 815, 682 P.2d 905(1984).
       8 Meas does not challenge the amount of attorney fees awarded and we do not

address it.


                                             8
No. 73509-8-1/9


a refusal to cooperate with the opposing party, refusal to comply with

discovery requests, and any other conduct that makes the proceeding

unduly difficult or costly. In re Marriage of Greenlee, 65 Wn. App. 703,

708, 829 P.2d 1120 (1992). We review an award of attorney fees based on

intransigence for an abuse of discretion. In re Marriage of Bobbitt, 135 Wn.

App. 8, 29-30, 144 P.3d 306 (2006).

       Here, the trial court's order provided:

      Both parties have incurred substantial attorney fees, and both
      requested an award for attorney fees. I chose to award petitioner
      $25,000 in attorney fees, which is reflected in the judgment
      summary on the first page of the child support order. While both
      parties have the ability to pay their own attorney fees, and arguably
      both could afford to also pay the opposing party's fees as well, I
      intended by this award to address the respondent's
      intransigence in consistently failing to provide complete and
      accurate financial records which were clearly requested in
      discovery and in deliberately misrepresenting both his income and
      contributions toward the support of [L.P.].

      The trial court's finding of intransigence is supported by the record.

Meas did not provide financial records in response to discovery, requiring

Palpong to schedule a discovery conference. And the financial records

that Meas ultimately did provide were incomplete. For example, Meas only

provided bank statements for his business account from February to

December 2012 and July to September 2013. The only full month for

which Meas provided a bank statement for his personal account was June

2012. He also provided statements for parts of May, July, August and

September 2012 and for parts of April, May, June and July 2013. Meas did


                                          9
No. 73509-8-1/10


not provide any credit card statements or evidence of a credit line, nor did

he disclose the amount of rental income he received.

       Moreover, the trial court found that Meas misrepresented the

amount of child support he had paid. Though Meas contends that he was

simply unable to obtain copies of old checks from his bank, the trial court

specifically found this claim not credible. Under the circumstances, Meas

fails to demonstrate that the trial court abused its discretion in awarding

attorney fees for intransigence.

       Meas argues that the trial court erred in failing to segregate the fee

amounts due to intransigence. When awarding fees for intransigence, the

court should segregate the fees caused by the intransigence from those

incurred for other reasons. In re Marriage of Crosetto, 82 Wn. App. 545,

565, 918 P.2d 954 (1996). Segregation is not required, however, if

intransigence permeates the entire proceedings. Burrill, 113 Wn. App. at

873.

       Here, the trial court found that Meas was intransigent for

"consistently failing to provide complete and accurate financial records."

This is equivalent to a finding characterizing Meas's intransigence as

pervasive. Moreover, the sole issue addressed in the trial by affidavit was

child support. Meas's failure to provide complete and accurate financial

records fundamentally affected the trial court's ability to determine his net




                                         10
No. 73509-8-1/11


income. Because Meas's intransigence permeated the entire proceedings,

the trial court was not required to segregate the fees.

                                      V

       Both parties request attorney fees on appeal. Meas requests fees

based on RCW 26.26.140 and Palpong requests fees based on Meas's

intransigence during the appeal. We exercise our discretion and decline to

award either party attorney fees on appeal.

       We remand for the trial court to recalculate the award of back child

support. In all other respects, we affirm.




WE CONCUR:



                        cj.-




                                          11
