Appeal from Superior Court of King County. Docket No: 92-3-06821-8. Date filed: 11/22/95. Judge signing: Hon. Peter Jarvis.
Authored by Ann L. Ellington. Concurring: William W. Baker, Mary K. Becker.
The opinion of the court was delivered by: Ellington
ELLINGTON, J. -- Kelli Doran appeals an order that reduced Daniel Fenton's child support obligations, claiming that the court erred by reducing support without making a finding of severe economic hardship, by not finding that Fenton was voluntarily underemployed, by not awarding her attorney fees, and by denying her request for an upward deviation from the standard support calculation. We affirm, holding that the original child support order did not require a finding of severe economic hardship for modification, that substantial evidence supports the court's finding that Fenton was not underemployed, and that denial of fees was not an abuse of discretion. We remand the deviation issue, however, because findings required by statute were not made.
Doran and Fenton were married in December 1989 and had two children, now aged six and seven. The marriage was formally dissolved in June 1994. At the time of dissolution, the court ordered Fenton to pay $651.29 in monthly child support based on a finding that Fenton was voluntarily unemployed because he had quit his job as an aircraft painter at Heath Techna Aerospace Company. Beginning in July 1995, and each odd year thereafter, the order required adjustment of child support obligations based on financial circumstances, as demonstrated by the parties' "income tax returns and W-2 forms . . . from the previous year's employment[.]" *fn1
In August 1995, Fenton petitioned the court to reduce his obligations, alleging that the order caused him a severe economic hardship. Fenton submitted documents demonstrating income of approximately $12,000 in 1994. Roughly half of this income was from unemployment compensation, and the remainder from his work as an independent contractor, which was documented by an IRS 1099 form and by his 1994 tax return. Fenton continued contracting work into "early" 1995, but the compensation for this work is not in the record. Fenton explained this deficiency by stating that he had not received his most recent IRS 1099 form.
In June 1995, Fenton began working for Ellstrom Manufacturing, where he paints hydroplanes. An affidavit from Ellstrom's vice president, Erick Ellstrom, recited that Fenton was hired for two projects--the first paying $15 per hour, and the second paying $10 per hour. The first project began in June 1995, the second in September 5, 1995. Fenton was laid off after each project and was laid off at the time of Ellstrom's declaration. Ellstrom stated, however, that he would rehire Fenton should another suitable project arise. Fenton's declarations, dated more than one month after Ellstrom's, recited that he was "currently working again and making $10 per hour." Fenton asked the court to adjust his obligations, assuming that he was working full-time earning $10 per hour.
Doran asked the court to increase Fenton's child support. She alleged that he was voluntarily underemployed, referring to Fenton's past earning capacity and voluntary unemployment from Heath, which employed him from 1989 to 1993 and paid him an average yearly income of $33,565. His last hourly wage at Heath was $17.79. Fenton stated that changes in the aircraft industry since his layoff prevented him from obtaining a similarly paying job. Fenton did not, however, describe any efforts to obtain other employment. Instead, he asked the court to take judicial notice of the "changes in the airline industry."
Doran also sought deviation from the standard child support calculation because one of the children had extraordinary medical expenses. She testified that her wages were being garnished for medical expenses and asked the court to hold Fenton responsible for 100 percent of all uninsured medical expenses. Fenton conceded that he may have owed some medical expenses, but contended that he was never apprised of those expenses before this litigation.
The court granted Fenton's petition, finding that he was not voluntarily underemployed. Calculating on the basis of full-time employment at $10 per hour, the court reduced Fenton's monthly obligation from $651.29 to $440.37 and reduced his share of daycare and extraordinary medical expenses from 68 percent to 52 percent. The court did not deviate from the standard calculation in adjusting the parties' obligations. On the standard form order, where reasons for denying deviation are listed, the box checked is "does not apply." As to fees, the court awarded none.
Doran argues that the reduction was error because the trial court made no finding that the original order worked a severe economic hardship on Fenton. We find no error because despite Fenton's petition asserting such hardship, the original dissolution order authorized (in fact required) periodic adjustments based on changes in the parties' income, without a showing of severe economic hardship.
Doran is correct in noting that in some circumstances, the party seeking a reduction in child support bears the burden of proving severe economic hardship. See, e.g., In re Arvey, 77 Wash. App. 817, 820, 894 P.2d 1346 (1995.); see RCW 26.09.170(4)(a). But the Legislature has also authorized modifications based upon changes in income regardless of economic hardship, and the original order here required such periodic modifications. See RCW 26.09.170(8)(a); *fn2 RCW 26.09.100(2). *fn3 Doran has not responded to Fenton's argument that this provision is controlling, nor is any valid argument readily apparent. The provision is harmonious with the authorizing ...