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In re Marriage of Foley

January 30, 1997

IN RE THE MARRIAGE OF: JANET L. FOLEY, RESPONDENT, AND DAVID M. FOLEY, APPELLANT.


Appeal from Superior Court of Whitman County. Docket No: 93-3-00073-3. Date filed: 02/27/95. Judge signing: Hon. Richard W. Miller.

Authored by Philip J. Thompson. Concurring: John A. Schultheis, Ray E. Munson.

The opinion of the court was delivered by: Thompson

THOMPSON, J. Mr. Foley appeals the court's child support order, the division of property and the failure to award him maintenance. He also appeals the court's order requiring him to pay $3,250 of Mrs. Foley's attorney fees. We affirm.

Janet and David Foley were married on May 23, 1981. Three children, Sarah, Katharine, and Joshua, were born during the marriage. Mr. and Mrs. Foley separated on August 11, 1993. On February 27, 1995, the court entered a decree of dissolution, findings of fact and Conclusions of law, a parenting plan, and an order of child support.

Mrs. Foley is a school counselor in Colfax, Washington. Her net monthly income is $2,648.63. Mr. Foley worked as a self-employed contractor up until May 1992. Mr. Foley declared his net monthly income as $850. He also receives $300 per month from his mother, and $200 per month from his brother, who live with him, as rental payments. The court imputed Mr. Foley's income at $1,600 for purposes of computing child support. The court based this on his actual income plus the fact he was returning to work.

The court divided the community property equally between the parties.

Each spouse received a distribution of $19,543. Mrs. Foley was ordered to assume a majority of the community debts. The court awarded the family home to Mr. Foley subject to its encumbrance. Mr. Foley was ordered to pay $18,344 to Mrs. Foley to equalize the property distribution. The court ordered Mr. Foley to refinance the home within four months, or sell it to make the equalization payment to Mrs. Foley, and awarded Mrs. Foley a secured lien on the property.

The court denied Mr. Foley's request for maintenance finding both parties capable of self-support.

Finally, the court ordered Mr. Foley to pay $3,250 of Mrs. Foley's attorney fees. Mr. Foley had been ordered to pay $250 in April of 1994, but had yet to comply with that order. The remaining $3,000 attorney fees was based on the court's finding that Mr. Foley engaged in tactics which complicated and lengthened the litigation. Mrs. Foley's total attorney fees and costs prior to trial exceeded $7,000.

Mr. Foley contends the court erred by imputing $1,600 in income to him for purposes of calculating child support. Child support orders are within the discretion of the trial court. In re Marriage of Healy, 35 Wash. App. 402, 404, 667 P.2d 114, review denied, 100 Wash. 2d 1023 (1983). Discretion is abused only when it is exercised upon an untenable ground or is manifestly unreasonable. Id.

A parent should not be allowed to avoid a child support obligation by voluntarily remaining in a low paying job, or by not working at all. In re Marriage of Curran, 26 Wash. App. 108, 110-11, 611 P.2d 1350 (1980). A court may impute income to a voluntarily underemployed parent. In re Marriage of Brockopp, 78 Wash. App. 441, 446, 898 P.2d 849 (1995). RCW 26.19.071(6) provides:

The court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed. The court shall determine whether the parent is voluntarily unemployed or voluntarily underemployed based upon that parent's work history, education, health, and age, or any other relevant factors. . . . Income shall not be imputed for an unemployable parent. . . . In the absence of information to the contrary, a parent's imputed income shall be based on the median income of year-round full-time workers as derived from the United States bureau of census, current populations reports . . . .

The evidence established that Mr. Foley was helping a friend repair a home and construct a home without any compensation. Mr. Foley also spent a great deal of time during the day involved in the sport of falconry. Mr. Foley reported income of $850 a month, and also stated he received around $300 a month from his mother in rent, and $200 a month from his brother. Thus, Mr. Foley received approximately $1,350 a month in income. The court imputed his income at $1,600. This amount is only $250 more than he actually received. The court could have imputed $2,118 under the census figures. The court considered all the relevant factors in imputing Mr. Foley's income and did not abuse its discretion.

Mr. Foley also contends the court erred in its division of the community property. In a dissolution proceeding, the court shall dispose of all the property and liabilities, both community and separate, in a just and equitable manner. RCW 26.09.080. The trial court has wide discretion in the division and distribution of the property of the parties. Toivonen v. Toivonen, 44 Wash. 2d 473, 474, 268 P.2d 456 (1954). In order to achieve an equitable property distribution between the parties, the trial court has the jurisdiction to order ...


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