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In re Marriage of Sherri L. Drury

May 5, 1997

IN RE THE MARRIAGE OF: SHERRI L. DRURY, APPELLANT, AND TRACY A. DRURY, RESPONDENT.


Appeal from Superior Court of Whatcom County. Docket No: 94-3-00479-4. Date filed: 07/21/95. Judge signing: Hon. Michael F. Moynihan.

Authored by C. Kenneth Grosse. Concurring: Susan R. Agid, H. Joseph Coleman.

The opinion of the court was delivered by: Grosse

GROSSE, J. -- In the course of the dissolution of the marriage of Tracy and Sherri Drury, Tracy's child support obligation was set at $25 per month for each of the parties' two children. Because this amount represents a substantial deviation from the presumptive obligation of $203.20 established by the child support schedule, and because the trial court's findings regarding Tracy's employment status and imputation of income are not adequate to support the deviation, we reverse and remand.

At the time of separation, and at trial, Tracy Drury was a full-time student. However, he had previously worked for an industrial painting company for over 10 years where his pay ranged from $13 to $18 per hour. He was fired from the company due to an accident and he was not eligible for rehire. He also had been employed as a painter at a university one summer, making $13.28 per hour. But, at the time of the hearing, Tracy was working 14-1/2 hours per week as an assistant in a computer laboratory earning $7.43 per hour. He earned approximately $400 per month there and received $200 per month in student grants, making his total monthly income $600. He had been accepted to the University of Washington to complete his engineering degree, requiring approximately three additional years of school. He listed his expenses as rent of $100 per month, his phone bill, and groceries.

The oral opinion of the trial court set Tracy's income at the level of his actual earnings and found that he was not voluntarily unemployed. The court made no specific ruling regarding underemployment, but rather discussed Tracy's success at his educational goals. The court divided the remaining assets of the parties after all community debts were paid. On appeal, Sherri's main complaint is the failure of the trial court to impute income.

The trial court has no discretion as to the factors it must consider in setting child support. *fn1 Earning capacity of the parties is one of the factors. *fn2 The statute, RCW 26.19.071(6), states as follows:

(6) Imputation of income. 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 underemployed or voluntarily unemployed based upon that parent's work history, education, health, and age, or any other relevant factors. A court shall not impute income to a parent who is gainfully employed on a full-time basis, unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent's child support obligation. Income shall not be imputed for an unemployable parent.

Income shall not be imputed to a parent to the extent the parent is unemployed or significantly underemployed due to the parent's efforts to comply with court-ordered reunification efforts under chapter 13.34 RCW or under a voluntary placement agreement with an agency supervising the child. 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, or such replacement report as published by the bureau of census. (Emphasis added.)

As to imputed income, this court has held that the child support statute directs a trial court to make two inquiries when considering whether to impute income.

First, the trial court evaluates the parent's work history, education, health, age, and any other relevant factor to determine whether that parent is voluntarily unemployed or underemployed. RCW 26.19.071(6).

If a parent is underemployed but also "gainfully employed on a full-time basis," the court must make a further determination as to whether the parent is "purposely underemployed to reduce the parent's child support obligation." If not underemployed for that reason, the parent may not have income imputed to him. RCW 26.19.071(6). In re Marriage of Peterson, 80 Wash. App. 148, 153, 906 P.2d 1009 (1995), review denied, 129 Wash. 2d 1014, 917 P.2d 575 (1996) (emphasis added; footnote omitted).

This case differs from the Peterson case in that Tracy was gainfully employed, but only on a part-time basis. However, neither voluntary unemployment nor underemployment shields a parent from child support obligations. *fn3 In the case of In re Marriage of Wright, Mrs. Wright appealed because the trial court imputed an additional $300 of income to her over her actual income of $1,400 per month. She earned that amount from two part-time nursing jobs, was the mother of five children, ages 9 through 12, and was in the National Guard. She argued that even though she was working part-time she was doing all she could do. The Wright court, while sympathetic to Mrs. Wright's plight as a single parent, held that voluntary underemployment will not shield either parent regardless of the reason because the record showed that Mrs. Wright could have obtained full-time employment. The imputation of the extra $300 was affirmed. *fn4

In the case of In re Marriage of Brockopp, *fn5 the court concluded that Mrs. Brockopp was voluntarily unemployed but made no finding in that regard and failed to impute any income to her. Instead, the court calculated the support obligation on the basis of her actual $515 monthly income. This court remanded the case for entry of findings regarding the mother's employment status and imputation of income and a recalculation of support if she was found to be voluntarily unemployed.

Here, Tracy was working part-time, not full-time. And, as in Brockopp, the trial court erred by failing to impute income under RCW 26.19.071(6). A court must impute income if a parent is only working on a part-time basis. *fn6 This principle applies with equal force to men and women regardless of the merits of the reason for the underemployment. *fn7 If income is to be imputed, it is imputed at the level "at which the parent is capable and qualified." *fn8 The trial court abused its discretion in failing to fully consider Tracy's underemployment status and ...


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