In re Marriage of Brown, No. 32398-2-II (WA 9/15/2005)
| Decision Date | 15 September 2005 |
| Docket Number | No. 32398-2-II,32398-2-II |
| Parties | In re the Marriage of: KIPPIE KAY BROWN, Respondent, and ANTHONY BROWN, Appellant. |
| Court | Washington Supreme Court |
Appeal from Superior Court of Pierce County. Docket No. 00-3-00339-0. Judgment or order under review. Date filed: 09/17/2004. Judge signing: Hon. Kitty-Ann Van Doorninck.
Counsel for Appellant(s), Robert Helland, Attorney at Law, 960 Market St, Tacoma, WA 98402-3605.
Counsel for Respondent(s), Douglas N Kiger, Blado Stratton & Kiger PS, 3408 S 23rd St, Tacoma, WA 98405-1609.
Anthony Brown appeals the modification of a child support order and order on motion for revision requiring him to pay day care expenses related to his ex-wife's continuing education. He argues that such payments are not authorized and that, even if they were, the trial court's order was not properly supported. We hold that the trial court had the discretion to require Mr. Brown to pay day care costs related to his ex-wife's education. But, because the trial court did not support its order with the required findings of fact, we remand for entry of findings.
Anthony and Kippie Kay Brown divorced in 2000. At the time of the dissolution, the Browns both worked in full time managerial positions with different supermarket chains. Based on their proportional incomes, the trial court ordered Mr. Brown to pay 54 percent of the `work related day care expenses' Ms. Brown incurred. Clerk's Papers (CP) at 15.
In October 2003, Ms. Brown filed a request for review of the 2000 child support order. The State subsequently filed a petition for modification of child support, requesting a modification based on a change in parents' incomes and raising other issues not relevant to this appeal.1 In June 2004, a court commissioner heard the motion.
In the declarations supporting her motion, Ms. Brown stated that she had reduced her work hours and transferred to a checker position because her managerial position, which required that she work from 4:30 p.m. to 1:00 a.m, interfered with her ability to meet her responsibilities as primary residential parent. She also stated that a promotion and/or transfer was not a realistic solution and that Mr. Brown, despite his assertions otherwise, was generally not available to help care for the children to facilitate her prior work schedule. Ms. Brown also reported that she was taking steps to find different full time employment by enrolling in college and working toward an accounting degree so she could become a certified public accountant (CPA). She reported that her part-time checker position provided a net monthly income of $1,300.49.
Mr. Brown asked that the commissioner impute income to Ms. Brown based on her 2001 monthly income of $3,233, because she was voluntary underemployed and she could have resolved her scheduling problems by moving among stores or by pursuing other management training and positions. He also objected to paying non-work related day care expenses because the original order only required him to pay work related day care expenses.
In response, Ms. Brown asserted that all the day care expenses were work related except for two hours a day for the younger child who was not yet in school full time. She further asserted that the younger child would be starting school full time in the coming year, implying that all the day care expenses would then be work related.
In a July 14, 2004 letter, the commissioner found that Ms. Brown was voluntarily underemployed, `for the laudable purpose of seeking a degree in accounting.' CP at 162. The commissioner imputed a gross monthly income of $2,555.58 based on the pay Ms. Brown would have received if she had been a full time checker. The commissioner required Mr. Brown to pay his day care obligation directly to Ms. Brown but did not rule on whether this obligation included both school and work related day care.
After Ms. Brown submitted a proposed order based on the commissioner's July 14 letter, Mr. Brown filed a declaration asserting, for the first time, that the day care expenses were excessive and that they must, therefore, include non-work related day care costs. He requested that the new order specify that he would only be responsible for work related day care costs. He also asked for full access to day care records and Ms. Brown's work schedule to ensure he was only paying work related expenses.
At the presentment hearing, Mr. Brown again requested additional discovery and asserted that the court should limit his day care obligations to work related day care only. He argued that there were no statutes or cases requiring him to pay non-work related day care costs.
Noting that Ms. Brown was likely to complete her education in two or three years and that she could potentially double or triple her income by becoming a CPA, ultimately lowering Mr. Brown's child support obligation the commissioner held that `basic fairness' required Mr. Brown to contribute to any school related child care costs.2 Report of Proceedings (RP) (Sept. 2, 2004) at 5. Mr. Brown objected, arguing that Ms. Brown's decision to reduce her workload and return to school was entirely voluntary and that there was no guarantee she would complete her degree and obtain a better paying job within a reasonable time period.
After argument but before the commissioner entered the final order, Ms. Brown provided the commissioner with a copy of the child care agreement for day care starting September 1, 2004. The agreement stated that the day care was charging a flat monthly fee of $1,120. The agreement also provided that this care `does not cover {Ms. Brown} for school or personal time.' CP at 304. The record before this court does not contain any documentation related to the prior day care agreement.
The September 2, 2004 final order of child support imputed a net monthly income of $2,076.57 to Ms. Brown and established that Mr. Brown's monthly net income at $3,200. Accordingly, Mr. Brown's proportional share of income increased to 60.6 percent. The commissioner specifically found that although Ms. Brown was voluntarily underemployed `to obtain a degree in accounting,' she was not underemployed in an attempt to avoid paying child support. CP at 197. The final order did not distinguish work versus non-work related day care costs.
Mr. Brown moved to revise the commissioner's order. At the hearing on this motion, Mr. Brown's counsel stated that the primary issue was whether Mr. Brown's day care obligations included both work and school related day care and that he was not challenging the imputed income, the proportional percentages, or the basic child support amount. Rejecting Mr. Brown's arguments, the trial court revised the commissioner's order to provide that Mr. Brown was required to pay a proportionate share of both work and school related day care costs. Mr. Brown appeals the revised order.
Mr. Brown contends that neither statutes nor case law require him to pay non-work related day care expenses. He also contends that even if the court had the discretion to order him to make such payments, it failed to enter findings of fact stating that the expenses were necessary and reasonable and that the evidence presented would not have supported such findings.
In setting child support, the trial court must (1) compute the parents' total income, (2) determine the standard child support level from the economic table, (3) decide whether to deviate from the standard calculation based on specific statutory factors, and (4) 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). The trial court must support all orders of child support, including orders entered in a modification proceeding, with written findings of fact. RCW 26.19.035(2).3 We review child support modifications and adjustments for abuse of discretion, affirming the trial court's decision unless no reasonable judge would have reached the same conclusion. In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990); In re Marriage of Mattson, 95 Wn. App. 592, 599, 976 P.2d 157 (1999).
Although Mr. Brown asserts that there is no authority requiring him to pay non-work related day care expenses, we conclude that under RCW 26.19.0804 and Mattson, 95 Wn. App. at 599, the court could require Mr. Brown to contribute to such expenses.5 In Mattson, the court directly addressed the issue of allowable day care expenses, stating:
Basic child support does not generally include day-care expenses; but the court has discretion to order necessary and reasonable expenses, shared in the proportion otherwise applicable to the parties' child support order. {RCW 26.19.080(3)} does not define `day-care' expenses or provide guidelines for determining what types of expenses are `reasonable and necessary.' In the absence of such definition, we interpret the language consistently within the overall purpose of the statutory framework.
The Legislature explained its intent for child support statutes in RCW 26.19.001.6 Child support is designed with the primary goal of preventing a harmful reduction in a child's standard of living, in the best interests of children whose parents are divorced. In light of this important legislative goal, we interpret the terms `necessary and reasonable expenses' and `day care' in a manner that serves the best interests of children.
Mattson, 95 Wn. App. at 599 (footnote and citations omitted). Thus, if the trial court found that Ms. Brown's additional education was in the children's best interest, it properly ordered Mr. Brown to pay a proportionate share of the reasonable and necessary school related day care expenses.7
We agree, however, with Mr. Brown's assertion that the trial court did not enter any findings of fact supporting its decision. At best, the commissioner...
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