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In re Parentage of A.L.

Court of Appeals of Washington, Division 3

December 23, 2014

In the Matter of the Parentage of A.L. the State of Washington, Respondent ,
v.
Erin Leigh Zasso, Appellant

Page 261

Appeal from Benton Superior Court. Docket No: 06-5-00041-1. Judge signing: Honorable Bruce a Spanner. Judgment or order under review. Date filed: 05/08/2013.

Benjamin W. Dow (of Dow Law Firm ), for appellant.

Robert W. Ferguson, Attorney General, and Lianne S. Malloy, Assistant ; and Andrew K. Miller, Prosecuting Attorney for Benton County, and Preston U. McCollam, Deputy, for respondent.

Concurring: Stephen M. Brown, Laurel H. Siddoway.

OPINION

Page 262

[185 Wn.App. 229] George B. Fearing

[¶1] Must a parent who equally shares residential placement of his child with the other parent be excused from paying child support when the parent earns more than the other parent and the other parent receives public assistance for the child? The trial court answered in the negative. We affirm.

[¶2] Erin Zasso, father of A.L., appeals the trial court's order directing him to pay $336 per month for child support. He claims he should pay no support since he shares residential placement of the child with the mother, Leticia Lopez, who agreed he need not pay support. The State of Washington provides Lopez with temporary assistance for needy families (TANF) to support A.L., and the State initiated this petition for modification of support.

FACTS

[¶3] On April 11, 2004, Leticia Lopez gave birth to A.L. For the first seven months of his life, A.L. lived in three different homes. He ultimately resided with his maternal grandmother after Erin Zasso, the father, assaulted Lopez, and Lopez served time in jail for drug crimes. Following the domestic violence incident, Zasso had no contact with A.L. for a year and a half, despite being permitted supervised visitation. Since being released from jail, Lopez has lived in a household with her mother and A.L.

[¶4] On February 27, 2006, the State of Washington, who provided TANF support to Leticia Lopez, filed a parentage action to establish Erin Zasso as A.L.'s father. A.L.'s maternal grandmother filed a third-party custody action, which the trial court consolidated with the parentage action. On February 23, 2007, the trial court granted summary judgment, finding that Zasso fathered A.L., ordering Zasso to make a support transfer payment, and ordering Zasso to pay back child support in the amount of $7,138.

[¶5] On March 2, 2007, the trial court entered a temporary parenting plan that awarded Erin Zasso residential time [185 Wn.App. 230] with A.L. three nights per week in an alternating pattern with A.L.'s maternal grandmother. The temporary plan afforded Zasso 43 percent of the residential time with A.L.

[¶6] On March 23, 2007, Erin Zasso filed a motion to terminate his support obligation. The State did not object to the termination because it no longer provided TANF support to Leticia Lopez. On April 13, 2007, the lower court terminated Zasso's support obligation. The temporary parenting plan remained in place. In January 2012, the State resumed TANF payments to Leticia Lopez.

PROCEDURE

[¶7] On April 25, 2012, based on Leticia Lopez's receipt of TANF funds, the State of Washington filed this petition to modify Erin Zasso's child support obligation. On July 31, 2012, after the filing of this petition to modify, Leticia Lopez and Erin Zasso entered an agreed parenting plan in a different case. The plan and attendant order equally allocated A.L.'s residential time between Zasso and Lopez.

[¶8] At the modification hearing in the present matter, Erin Zasso argued that his equal residential time with A.L. precluded the court from naming him as the obligor. He also complained that an imposition of a transfer payment would unfairly place the entire burden of supporting A.L. on him, particularly

Page 263

in light of shared custody of the child. He emphasized that Leticia Lopez had agreed that he owed no child support.

[¶9] On August 21, 2012, the trial court issued rulings imposing transfer payments on Erin Zasso as a result of the TANF payments by the State of Washington to Leticia Lopez. In its orders, the court adopted the child support worksheets provided by the State. The court determined Zasso's monthly net income at $1,911 and, because Lopez was voluntarily unemployed, imputed her income at $1,351 per month. The trial court determined Zasso's contribution for A.L.'s support at $336 and Lopez's contribution at $187 [185 Wn.App. 231] per month. The trial court ordered no deviation from the standard calculation because Zasso requested no deviation. The court ordered Zasso to make a support transfer payment to the Washington State Support Registry in the amount of $336 per month, effective May 1, 2012. The trial court later denied motions for revision and reconsideration.

LAW AND ANALYSIS

STATE AUTHORITY FOR MODIFICATION PETITION

[¶10] Erin Zasso first contends that the State of Washington lacks the prerogative to seek a modification of child support obligations because Leticia Lopez, the party receiving TANF benefits, is not the primary residential parent, since he equally shares custody of the minor child. We disagree.

[¶11] If the State pays public assistance for the care and maintenance of a child, the State may pursue a support action or a petition to modify support to obtain reimbursement of monies expended, in a process known as " subrogation." In re Parentage of I.A.D., 131 Wn.App. 207, 217, 126 P.3d 79 (2006). In what could be considered excess, at least seven statutes confirm this authority. RCW 74.20A.030 provides, in pertinent part:

(1) The [Department of Social & Health Services (DSHS)] shall be subrogated to the right of any dependent child or children or person having the care, custody, ...

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