Marriage of Glass, Matter of

• Decision Date: 08 September 1992
• Docket Number: No. 25025-6-I
• Citation: Marriage of Glass, Matter of, 835 P.2d 1054, 67 Wn.App. 378 (Wash. App. 1992)
• Court: Washington Court of Appeals
• Parties: In the Matter of the MARRIAGE OF Barbara GLASS, Respondent, and Robert Glass, Appellant.

Page 378

67 Wn.App. 378

835 P.2d 1054

In the Matter of the MARRIAGE OF Barbara GLASS, Respondent and Robert Glass, Appellant.

No. 25025-6-I.

Court of Appeals of Washington Division 1.

Sept. 8, 1992.

Robert Glass, pro se.

H. Michael Fields, Wolfgang Anderson and Anderson & Fields, Seattle, for respondent.

KENNEDY, Judge.

Robert Glass appeals the trial court's order modifying his child support and spousal maintenance obligations, claiming that the court improperly deviated (upward) from the Washington State Child Support Schedule and that the court should have terminated or further greatly reduced his spousal maintenance obligation. ¹ Barbara Glass cross-appeals, claiming that the trial court improperly modified the spousal maintenance award which was by its terms non-modifiable; that the court erred by retroactively modifying the family support awards; and that the court erred by failing to award the full interest due on the overdue family support. ²

Finding no error in the court's decision to deviate from the presumptive schedule amount, we affirm the prospective modification of child support. Finding that the court erred by retroactively reducing the total accrued family support and that the court erred by failing to award the full amount of the interest due on the family support arrearages, we reverse and remand for entry of a correct judgment. Finding that the trial court did not err by granting Robert 1 year's grace in the payment of spousal maintenance but that the schedule for the resumed payments needs to be adjusted to ensure that Barbara will be entitled to receive the full amount of the non-modifiable maintenance award within the period of time required by the initial decree, we affirm in part, reverse in part and remand for a recalculation of the payment schedule and for entry of a corrected judgment.

FACTS

A decree of dissolution of marriage was entered dissolving the marriage of Robert and Barbara Glass on October 7, 1987. The decree required that Robert pay child support in the sum of $600 per month for each of the parties' three children, for a total of $1,800 per month; and that Robert pay spousal maintenance to Barbara by the following schedule: $1,125 per month for 19 months; $1,623 per month for the ensuing 18 months; and $625 per month for the ensuing 216 months. The decree provided that the spousal maintenance obligation would survive Barbara's remarriage and that "[s]aid maintenance obligation shall be non-modifiable by either party in duration or amount, except in the event of the premature death of [Barbara]." ³ (Italics ours.)

After entry of the decree, Robert met his court-ordered obligations to pay family support until June 1988, when he fell behind in both the child support and the spousal maintenance payments. In the meantime, Robert had remarried. In August 1988, Robert and his spouse Sherrie Clendenen jointly filed a petition in bankruptcy court. ⁴ Shortly thereafter, Barbara sought a contempt citation. Following a show cause hearing, Robert was found to be in contempt of court for failure to pay family support as required by the decree. An order fixing judgment of $6,200 in overdue family support was entered on October 7, 1988.

On November 23, 1988, Robert filed a petition seeking to modify the decree of dissolution, based on his changed financial circumstances. In an accompanying affidavit, Robert claimed his total gross income to be $2,000 permonth, derived solely from his employment at Glass & Associates, Inc. This corporation was formed by Robert and his spouse Sherrie Clendenen in July 1988, after the closure of RSG. ⁵

In her response to the petition for modification, Barbara claimed that her gross monthly income was $1,775 per month. She also alleged that Robert's income was far greater than he had claimed and that his lifestyle greatly exceeded his claimed income.

During the extensive discovery which thereafter ensued, Robert produced an affidavit from his CPA, indicating that the CPA expected Glass & Associates, Inc., to experience a modest loss for tax year 1989 and that the company should show a profit in 1990. The CPA verified that Robert was facing over $75,000 in unpaid tax liability and that Glass & Associates, Inc., currently could afford to pay only a modest monthly salary to Robert and to his wife Sherrie.

Following a "trial by affidavit" hearing and argument, the court rendered its decision. The court's written findings, conclusions and an order of modification were entered on October 2, 1989. ⁶

The trial court found that as of July 1989, the total amount of overdue child support and spousal maintenance was $32,640. The court found that each parent had monthly net earnings of approximately $1,300. The court ordered that, commencing in July 1989, Robert was to pay $500 in child support for July and $1,000 per month thereafter for the remainder of the duration of the child support obligation as required by the initial decree, unless the award were sooner otherwise modified by order of the court.

With respect to spousal maintenance, the court granted Robert 1 year's grace, from July 1989 through June 1990, during which he would not be required to pay spousal maintenance. Commencing July 1, 1991, Robert was ordered to pay $1000 per month for spousal maintenance for 1 year and $625 per month thereafter.

With respect to the aforementioned $32,640 in overdue family support, the court reduced that sum to $20,000, with no interest due until July 1990, and with interest due at the statutory rate thereafter. Barbara was enjoined from enforcing this judgment until July 1, 1990. The court also deferred Barbara's request to be awarded her attorney fees until July 1, 1990.

This appeal and cross-appeal followed.

DISCUSSION

1. Child Support

We first address Robert's contention that the court erred by deviating upward from the presumptive support amount as determined by the Child Support Schedule. In determining child support, a trial court is to utilize the Washington State Child Support Schedule, and must set forth written reasons supported by the evidence in order to deviate therefrom. RCW 26.19.035(1)(c); . 075. ⁷ The failure to set forth adequate reasons for deviation is an abuse of discretion and subjects a decision to reversal. See In re Marriage of Lee, 57 Wash.App. 268, 277, 788 P.2d 564 (1990). Written reasons were provided in this case, which Robert claims are not supported by substantial evidence. Accordingly, we have examined the written reasons and the record.

By way of summary of the trial court's findings, although each parent had net monthly earnings, as of the time of trial, of $1,300 per month, Robert historically had earned significantly more and he was capable of earning significantly more in the relatively near future. Robert's lifestyle was more commensurate with his previously demonstrated earning capability than with his earnings at the time of trial. Robert and his spouse Sherrie Clendenen jointly owned and operated Glass & Associates, Inc., and each derived an income therefrom. Robert enjoyed financial benefits from the operation of this business which were not reflected in his monthly earnings. Although Robert was in need of some temporary relief from a portion of his court-ordered family support obligations, he should, within 1 year of the trial, be able to significantly increase his earnings, either at Glass & Associates, Inc., or by means of alternative employment. We find substantial evidence in the record to support all of these findings. ⁸

The trial court also based its decision to deviate upward from the presumptive schedule amount on its observation that to set the modified child support based only on Robert's then current net earnings would result in an unrealistically low level of support in view of the needs of the children and in view of the expense of additional litigation to increase support after Robert was given an opportunity to recover financially. There was evidence before the court from which it could reasonably conclude that, if given some temporary relief in the terms of his family support obligations, Robert could recover faster than otherwise might be the case. From the record and from the findings as a whole, it appear that Barbara and the children were struggling to make ends meet, in view of Robert's failure to meet his court-ordered obligations for family support. Robert's lifestyle, on the other hand, remained relatively comfortable. Although this may reflect in part the assets which were acquired by Robert before his financial difficulties ensued, that Robert had been able to retain and maintain his own lifestyle may also indicate his own confidence in his ability to recover financially in the relatively near future, as opined by the trial court.

Although Robert has not directly challenged whether the trial court's findings, if supported by substantial evidence as we find them to be, can support the decision to deviate as a matter of law, because the monthly child support award exceeds 50 percent of Robert's net monthly earnings, we will exercise our equitable power to address this issue. See RAP 12.1, 12.2.

Under the Child Support Schedule as in effect at the time of this trial, ⁹ a parent's child support obligation could not exceed 50 percent of his or her net disposable income unless good cause were shown. Good cause could include but was not limited to the possession of substantial wealth. Standard 9, WSCSS/7-1-88. Reasons for deviation could include but were not limited to possession of wealth and shared living arrangements. Standard 12, WSCSS/7-1-88. The court was to consider all income and resources of each parent's household. Standard 16, WSCSS/7-1-88.

Under the current statute, effective September 1, 1991, a parent's child support obligation may not exceed 45 percent of his or her net disposable income except for good cause. Good cause may include but is not limited to...