In re Marriage of Bradley

• Decision Date: 21 February 2013
• Docket Number: 42645-5-II
• Parties: In re the Marriage of TRISHA ROBIN BRADLEY, Respondent, and FRANCIS THOMAS BRADLEY, Appellant.
• Court: Court of Appeals of Washington

In re the Marriage of TRISHA ROBIN BRADLEY, Respondent, and FRANCIS THOMAS BRADLEY, Appellant.

No. 42645-5-II

Court of Appeals of Washington, Division 2

February 21, 2013

UNPUBLISHED OPINION

QUINN-BRINTNALL, J.

Francis Bradley appeals the trial court's denial of his motion to reconsider a commissioner's order modifying his child support obligation. Bradley argues that the trial court erred by enforcing a provision (the recalculation provision) in the original dissolution decree that provided Bradley's child support obligation would be based on imputing the median net income schedule if Bradley continued to be voluntarily underemployed. Bradley argues the recalculation provision was an unenforceable automatic escalation clause and that RCW 26.19.071(6) requires that his income be imputed based on the priorities set forth in the statute. We hold that the recalculation provision of the original dissolution decree is enforceable and that the trial court did not abuse its discretion by enforcing this provision of the original order and we affirm.

FACTS

Bradley and Trisha Douay^[1] married in 1995. They separated in 2005. At the time of their dissolution, Bradley and Douay had three children: Z., age 5; L., age 3; and J., age 2. On February 29, 2008, the trial court entered an order of child support (February 29 order) requiring Bradley to pay $482 a month in child support. The initial child support order imputed Bradley's income by calculating full-time earnings at the minimum wage rate because the trial court found that Bradley was voluntarily underemployed. The February 29 order also included the following provision regarding recalculation of the child support obligation:

Commencing June 2010, child support shall be recalculated using [Bradley]'s actual income if employed full time (more than 35 hours per week) or if [Bradley] is unemployed or underemployed[,] income would be imputed to [Bradley] based upon the median net income schedule. If [Bradley] should attain full time employment prior to June 2010 he shall notify [Douay] of the same and child support shall be recomputed. In the event [Bradley] attains full time employment and fails to notify [Douay] of the same, any subsequent change in child support shall be retroactive to the date of [Bradley]'s employment

Clerk's Papers (CP) at 30. Neither Bradley nor Douay appealed the February 29 order.

More than two years later, on December 16, 2010, Douay filed a petition for modification of child support. In support of her petition, Douay alleged that "[a]t the time [the February 29] order was entered, [Bradley's] support was based on minimum wage levels. Instead of finding employment he chose to go to college and has now obtained his degree. Subsidizing [Bradley's] career is [no] longer just or reasonable at the expense of his children." CP at 32.

On May 11, 2011, a superior court commissioner held a hearing on Douay's petition to modify child support. Douay argued that Bradley continued to be voluntarily underemployed and, under the recalculation provision, Bradley's income should be imputed based on the median net income schedule. Bradley asserted that the recalculation provision was unenforceable because (1) the recalculation provision did not follow the current statute on imputing income, and (2) the recalculation provision did not allow the trial court to take into account his current situation. According to Bradley, his income should be imputed based solely on the priorities as set out in the current version of RCW 26.19.071(6) which, in this case, would result in Bradley's current rate of pay at his part-time job being imputed based on full-time (35 hours per week) employment.

The commissioner found that Bradley was voluntarily underemployed.^[2] The commissioner then applied the recalculation provision and imputed Bradley's income based on the median net income schedule. But the commissioner also agreed to continue the case for the parties to present argument on the enforceability of the recalculation provision.

On May 25, 2011, the commissioner heard argument on whether Bradley's income should be imputed based on the recalculation provision (the median net income schedule) or RCW 26.19.071(6) (full-time earnings at current rate of pay). Bradley argued that the recalculation provision was unenforceable because the trial court was required to follow the law at the time the motion for modification is made.^[3] He also argued that the recalculation provision was an unenforceable automatic escalation clause under In re Marriage of Edwards, 99 Wn.2d 913, 665 P.2d 883 (1983). The commissioner determined that the recalculation provision was not an automatic escalation clause and was enforceable. Accordingly, the commissioner enforced the recalculation provision and imputed Bradley's income based on the median net income schedule. The commissioner entered a final order on child support on July 6, 2011.

On July 7, 2011, Bradley filed a motion for revision. In it, Bradley alleged that the commissioner improperly relied on the incorrect law and that the recalculation provision was an automatic escalation clause. The judge who had initially entered the February 29 order, heard the motion for revision and ruled that the commissioner had properly applied the recalculation provision because

it was not an automatic escalation clause because it wasn't automatic. It was dependant on what [Bradley] did The median income, using the median income was the law of the case. That was what I ordered. . . .

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