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In re Marriage of Saperstein

January 27, 1997

IN RE THE MARRIAGE OF: KRISTIE FLINDERS SAPERSTEIN, RESPONDENT, AND PAUL SAPERSTEIN, APPELLANT.


Appeal from Superior Court of King County. Docket No: 873085671. Date filed: 05/26/95. Judge signing: Hon. Michael J. Fox.

Authored by H. Joseph Coleman. Concurring: C. Kenneth Grosse, Mary K. Becker.

The opinion of the court was delivered by: Coleman

COLEMAN, J. -- Paul Saperstein argues that the court erred in requiring him to pay back child support to his ex-wife Kristie Flinders Dickins (formerly Saperstein), claiming she was equitably estopped from asserting this right. We reject this argument because Kristie did not waive this right or represent that Paul would not have to pay. Paul also argues that the court erred by failing to deduct business expenses from his income. We agree and thus reverse and remand on this issue. Paul further claims that the court erred by imputing his 1989 income and by failing to account for direct payments he made to his children. We find these arguments meritless because Paul agreed to the 1989 imputation of income and the direct payments cannot be substituted for child support. Paul also claims that the court failed to account for the disparity between his and Kristie's income and for the substantial time his son spent with him.

Because the court failed to make the required written findings for these issues, we reverse and remand for such findings. We also vacate the award of attorney fees to Kristie because the trial court had no basis to award them. Finally, we reject Kristie's cross appeal where she argues that the court should have awarded prejudgment interest. That decision is discretionary, and we find no abuse.

Facts

When Paul and Kristie divorced in 1989, they entered into a settlement agreement that provided for child support for their two children, Aliya and Jonathon. The children were to reside with Kristie primarily and with Paul on every other weekend, one midweek day during the school year, and half of all vacations. Kristie and Paul agreed to respect the children's wishes about visitation when each child turned fourteen.

The agreement also provided that Paul would pay $200 per month in child support based on Kristie's net income of $1,692.00 per month and imputing an equal income to Paul, who was self-employed. The agreement provided that the amount of child support would be recalculated yearly based on changes in the parties' income while Paul remained self-employed.

The agreement further required the parties to exchange income information annually. The parties, however, never exchanged this information, and the $200 a month payments continued without recalculation through 1993.

When Paul and Kristie disputed payment of certain medical expenses in 1993, Kristie moved for an order directing Paul to pay more child support.

The Commissioner determined that both parties willfully failed to comply with the 1989 order requiring them to exchange income documents. The Commissioner ordered them to provide this information and to calculate child support.

From 1989 to 1993, Kristie's income increased from $24,965 to $34,796.

While Paul developed his own consulting business, his income fluctuated greatly:

Year Paul's total IRS income

1989 $595.22

1990 $39,295.00

1991 $30,930.45

1992 $26,167.33

1993 $22,223.00

Paul presented evidence that in 1992 alone, he spent $3,033.55 on his children in out-of-pocket expenses, including clothing, school supplies, equipment, entertainment, and dining. From 1989 to 1993, Paul also depreciated over ten thousand dollars worth of office equipment for his business, as permitted by the tax code. 26 U.S.C. sec. 179. ...


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