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In re Marriage of Briscoe

filed: June 10, 1996.

IN RE THE MARRIAGE OF: PEGGY JO BRISCOE, RESPONDENT, AND DEWAYNE L. BRISCOE, APPELLANT


Superior Court County: King. Superior Court Cause No: 93-3-00664-4. Date filed in Superior Court: November 23, 1994. Superior Court Judge Signing: Norma Smith-Huggins.

Written by: Judge Kennedy, Concurred by: Judge Coleman; Judge Baker

Author: Kennedy

KENNEDY, A.C.J. -- Dewayne L. Briscoe appeals the trial court's post-decree order denying him an offset against his monthly child support obligation to account for social security disability payments paid directly to the children, and entering a judgment for back support in favor of Peggy Briscoe. Dr. Briscoe argues that he is entitled to the offset under RCW 26.18.190(2) because the parties' settlement contract at the time of entry of the decree of dissolution of marriage did not expressly provide that the offset would not be allowed. Dr. Briscoe also argues that In re Marriage of Maples, 78 Wash. App. 696, 899 P.2d 1 (1995) does not require a different result (even though the children's payments were not included in his income for purposes of computing child support), because he agreed to a deviation upward from the table amount, and because his monthly obligation would still be more than the table amount if the offset were given; thus, he concludes, he would not enjoy a windfall. Dr. Briscoe argues that we are required to reverse and direct the trial court to grant the statutory offset.

Mrs. Briscoe argues that substantial evidence supports the trial court's determination that the parties agreed that the offset would not be given, and that RCW 26.18.190(2) does not require a different result.*fn1 She asks to be awarded her reasonable attorney fees for responding to this appeal.

We conclude that RCW 26.18.190(2) does not entitle Dr. Briscoe to the offset, in that the amount of the payments to the children were not included in his income for purposes of the parties' settlement agreement. Accordingly, the statutory presumption is inapplicable in the instant case, and express decretal or contractual language was not required to overcome the presumption. Because substantial evidence supports the trial court's determination that the parties agreed that the offset would not be taken, their agreement governs the outcome. Accordingly, we affirm and award Mrs. Briscoe her reasonable attorneys fees for responding to this appeal.

FACTS

Dr. and Mrs. Briscoe were married in 1986 and had twins the following year. The Briscoe family became entitled to social security disability payments after Dr. Briscoe was injured in an automobile accident and could no longer practice oral surgery. The parties separated in 1992. Their marriage was dissolved on January 14, 1994.

The parties entered into a property settlement and child support agreement in January 1994, in which Dr. Briscoe agreed to pay $1700 per month for support of the twins. The order of child support entered at the time of decree shows the standard support calculation to be $1160 per month, orders Dr. Briscoe to pay $1700 per month ($850 per child), and states: "Deviation by agreement of father to facilitate settlement." Clerk's papers at 21.*fn2

From February through June 1994, Dr. Briscoe paid Mrs. Briscoe $1700 per month for support of the twins, as provided in the decree. Beginning in July 1994, Dr. Briscoe reduced his monthly payments by $382, that being the amount of social security payments the twins were receiving directly ($191 per child). The following month, Mrs. Briscoe brought a motion seeking back support for July and August and asked that Dr. Briscoe be ordered to pay $1700 per month without offset for the children's social security disability payments.

Dr. Briscoe claimed that the parties had agreed that he would not reduce the child support by the amount of the social security disability benefits being paid to the children until Mrs. Briscoe rented a small cabin located on property awarded to her. Dr. Briscoe produced several canceled child support checks showing notations that he was voluntarily overpaying monthly support prior to June 1994. Mrs. Briscoe claimed that Dr. Briscoe fabricated the story about the cabin agreement, and that he knew she had rented the cabin in April 1994, but still continued to pay the full amount of the support through June 1994. Mrs. Briscoe claimed that the parties had intended for the children to receive their social security disability payments in addition to the $1700 per month Dr. Briscoe agreed to pay. She claimed not to recall any notations being on the checks she received regarding voluntary overpayment, and that when she saw the notations on the canceled checks after Dr. Briscoe responded to her motion, she did not know what the notations referred to.

It was undisputed that the parties were aware of RCW 26.18.190(2) before they entered into the settlement agreement. In April 1993, a court commissioner entered a temporary order dividing the parties' total income equally between the two households and ordering that the children's social security disability payments be paid directly to Mrs. Briscoe. Dr. Briscoe sought revision of the temporary order, asking to have his child support obligation reduced by the amount of the children's social security disability payments. Judge Passette acknowledged the existence of RCW 26.18.190(2), but declined revision in that the temporary order divided the parties' total income between the two households in lieu of differentiated child support and spousal maintenance so that an offset to account for the children's social security benefits was not appropriate.

Sometime after the entry of temporary orders, Dr. Briscoe's attorney withdrew and Dr. Briscoe appeared pro se. Accordingly, Martin Godsil, Mrs. Briscoe's attorney, began to communicate directly with Dr. Briscoe. In a letter to Dr. Briscoe dated November 19, 1993, Mr. Godsil wrote:

The questions concerning child support and parenting should be addressed in a further meeting with you, Peggy and myself. We need to re-compute child support based on the Washington State Worksheets. I agree with you that we need to take the Social Security disability payments for the [two] children into consideration when calculating the support. The only way we could agree on child support would be to run the worksheets completely. We also need to make provisions for health and life insurance. The whole issue of support is too complex to draft something preliminary and hope that it could be agreed ...


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