Austin Ferguson, V. Office Of Admin Hearings/div Of Child Support, Et Ano

• Court: Court of Appeals of Washington
• Decided: April 1, 2024
• Docket: 85327-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

AUSTIN FERGUSON, No. 85327-9-I Respondent, DIVISION ONE v. UNPUBLISHED OPINION OFFICE OF ADMINISTRATIVE HEARINGS/DIVISION OF CHILD SUPPORT,

Appellant,

JAMIE STUBBS

Defendant.

BIRK, J. — After the Office of Administrative Hearings (OAH), for the

Department of Social and Health Services, Division of Child Support (DSHS),

sought to administratively establish a child support obligation to be paid by Austin

Ferguson, Ferguson filed this petition under the Administrative Procedure Act

(APA), chapter 34.05 RCW, arguing that DSHS lacked statutory authority to initiate

the administrative proceeding. The superior court agreed, dismissed the

proceeding, and awarded Ferguson attorney fees under the equal access to justice

act (EAJA), RCW 4.84.350. Because DSHS had authority to initiate the

administrative proceeding and Ferguson failed to exhaust his administrative

remedies, we reverse the dismissal and award of attorney fees and remand to

DSHS for further proceedings. No. 85327-9-I/2

I

Ferguson and Jaime Stubbs are the parents of A.F. On April 1, 2011, the

superior court entered a parenting plan and a child support order. The parenting

plan ordered that A.F. reside with Ferguson a majority of the time. The child

support order required Stubbs to pay Ferguson $222.77 a month. On March 29,

2013, the superior court modified the 2011 parenting plan and ordered that A.F.

reside an equal amount of time with each parent. The court revised the child

support order, set Stubbs’s child support obligation at $0.00, and entered a finding

that “[n]o transfer is necessary as both households have ample resources and the

child is spending near equal time with each parent by agreement of the parties.”

In January 2022, Stubbs received Temporary Assistance for Needy

Families (TANF) benefits. Stubbs stated she informed a DSHS representative that

she had A.F. with her more than 50 percent of the time, even though the parenting

plan outlined an equal time residential schedule. Application for or receipt of TANF

benefits authorizes DSHS to provide full support enforcement services. WAC 388-

14A-2005(1).

On March 5, 2022, DSHS served Ferguson a notice and finding of financial

responsibility, seeking to establish a monthly child support obligation for A.F. The

notice stated, “If you disagree with this notice, you must object and / or ask for a

hearing.” Ferguson requested a hearing, asserting the notice “falsely labels

[Stubbs] as the ‘custodial parent’ when she has never, in any court documents or

parenting plan, been designated as such.” Ferguson contended the order

“violate[d] and contradict[ed] the previous rulings naming ME as the custodian. . . .

2 No. 85327-9-I/3

It also is in contradiction to the support order stating $0 transfer payments and that

[Stubbs] was the ‘Obligor’ on that order.” OAH set a hearing date of June 8, 2022.

Ferguson, now represented by counsel, moved to continue the hearing,

asserting DSHS lacked jurisdiction to set a support obligation. On July 14, 2022,

Ferguson presented a “Motion to Dismiss” to OAH, arguing the notice and findings

of financial responsibility should not have been issued because there was an

existing child support order and parenting plan that designated Ferguson the

custodial parent. Ferguson sought fees and sanctions claiming Stubbs provided

“false information” to DSHS and DSHS proceeded even after learning of the

superior court orders.

On August 2, 2022, an administrative law judge entered an order denying

Ferguson’s motion because “the 2013 order did not obligate or specifically relieve

[Ferguson] from paying child support.” This language followed RCW

74.20A.055(1), which authorizes DSHS to serve a notice to show cause to

establish a support obligation “if there is no order that establishes a person’s

support obligation or specifically relieves the person required to pay support of a

support obligation.” The order continued, “Thus, the primary issue is whether

[Ferguson] is a noncustodial parent. If so, [DSHS] must pursue child support.”

The order reasoned that the determination of whether Ferguson was a

noncustodial parent for purposes of DSHS’s recovery of child support was not

controlled by the parenting plan designation, but by a factual determination of

A.F.’s actual residential status under WAC 388-14A-1020. The order directed that

3 No. 85327-9-I/4

a hearing be set to determine the residential status of A.F. OAH issued a notice

setting the hearing on September 12, 2022.

On August 22, 2022, Ferguson petitioned for judicial review of the order

denying his motion to dismiss. Ferguson argued he was entitled to relief under the

APA, and argued he was not required to exhaust administrative remedies because

“[t]here were no remedies available in the administrative forum to correct the

agencies’ improper assertion of jurisdiction and refusal to follow the existing

superior court orders.” In its response, DSHS argued that judicial review was

premature because there was no final order for the superior court to review. On

Ferguson’s motion, OAH stayed its proceedings.

The superior court ruled that DSHS “acted contrary to statutory authority,

its own regulations, and to case law” because the “only clear reading of [the 2013

parenting plan and child support order] is that . . . neither party has an obligation

to the other in light of the fact that they had agreed at that time, and the court had

ordered, . . . that resources were . . . substantial on both sides.” The superior court

stated, “In the alternative, I’m finding if [DSHS] has jurisdiction, . . . any

requirement rather of exhaustion [of] Administrative remedies would be futile”

because DSHS “acted . . . contrary to its own Administrative rules, not to mention

the statute under which those rules were promulgated, as well as the case law

interpreting our system of parental and child support.” The superior court

dismissed the administrative proceeding and awarded Ferguson attorney fees and

costs. The superior court denied reconsideration. DSHS appeals.

4 No. 85327-9-I/5

II

RCW 74.20A.055(1) provides that DSHS may, “if there is no order that

establishes a person’s support obligation or specifically relieves the person

required to pay support of a support obligation . . . serve on the person . . . a notice

and finding of financial responsibility.” If a child support order does exist, DSHS

must compute child support according to its provisions. RCW 74.20A.030(1);

RCW 74.20A.040(1), (3)(a). “Read together, these statutes provide that a court

order affects the amount DSHS can collect, but not DSHS’s power to act in the first

instance.” In re Marriage of Aldrich, 72 Wn. App. 132, 137-38, 864 P.2d 388

(1993).

In Aldrich, each parent was given custody of one child, and the father was

ordered to make child support payments to the mother. Id. at 134. The order was

later modified to eliminate the father’s support obligation, stating, “The parties . . .

stipulate that [the father’s] payment of [the mother’s] debt taken together with the

fact that he supports one child is an adequate change of circumstances to

discharge [the father’s] one-half of the child support obligation.” Id. Ten years

later, both children were living with the mother and she began receiving public

assistance. Id. DSHS commenced an administrative child support proceeding

against the father. Id. The father requested a hearing, arguing DSHS was bound

by the stipulated order of modification entered by the superior court. Id. The

administrative law judge held that the order did not bind DSHS because it did not

contemplate the present situation. Id. We held the previous court order “did not

deprive DSHS of authority to act.” Id. at 138. We separately held DSHS erred in

5 No. 85327-9-I/6

its decision because it failed to adhere to the superior court order. Id. Aldrich was

decided under former RCW 74.20A.055(1) (1989), but the changes do not affect

this analysis.

In Brown v. Department of Social & Health Services, 136 Wn. App. 895,

898, 151 P.3d 235 (2007), we explained that DSHS may administratively establish

a support obligation when a superior court order is silent on the obligated parent’s

responsibility. There, the father was required to pay $805.00 in monthly child

support to the mother where all the children resided with her. Id. at 896. The order

“was silent on the mother’s financial obligation if custody changed to the father.”

Id. After one child moved in with the father, the court entered a modified parenting

plan but did not alter or amend the previous child support obligation. Id. at 896-

97. The father applied to DSHS for child support from the mother, and the mother

appealed, arguing DSHS did not have authority to decide the matter because there

was already a superior court order. Id. at 897. The mother relied on Aldrich “for

the proposition that once the courts assert jurisdiction on these questions of

support, [DSHS] cannot.” Id. This argument mistook Aldrich’s holding, because

Aldrich held the existence of an order did not affect DSHS’s authority to act. 72

Wn. App. at 137-38. Consistent with this, Brown affirmed the agency action

because there was no superior court order that imposed or relieved the mother of

a support obligation. 136 Wn. App. at 898.

Under Aldrich, DSHS has statutory authority to act whether or not there is a

superior court order. 72 Wn. App. at 137-38. The question whether the superior

court order in this case “establishes a person’s support obligation or specifically

6 No. 85327-9-I/7

relieves the person required to pay support of a support obligation,” is properly

resolved at an administrative hearing and we therefore do not address it. RCW

74.20A.055(1). The existence of the superior court support order did not affect

DSHS’s authority to initiate proceedings against Ferguson.

III

Generally, a party must exhaust all available administrative remedies before

seeking relief in superior court. Citizens for Mount Vernon v. City of Mount Vernon,

133 Wn.2d 861, 866, 947 P.2d 1208 (1997). A court may relieve a party from

exhaustion if it is shown that the administrative remedies would be patently

inadequate, the exhaustion of remedies would be futile, or that requiring

exhaustion would cause grave, irreparable harm that would clearly outweigh the

public policy requiring exhaustion. RCW 34.05.534(3). This court reviews de novo

whether exhaustion of administrative remedies is required. Cost Mgmt. Servs.,

Inc. v. City of Lakewood, 178 Wn.2d 635, 641, 310 P.3d 804 (2013).

A court may excuse exhaustion of administrative remedies as futile when

“ ‘the available administrative remedies are inadequate, or if they are vain and

useless.’ ” Orion Corp. v. State, 103 Wn.2d 441, 458, 693 P.2d 1369 (1985)

(quoting 4 R. Anderson, Zoning § 26.10 (2d ed. 1977)). Speculation cannot show

futility. See Beard v. King County, 76 Wn. App. 863, 871, 889 P.2d 501 (1995)

(plaintiffs could not ask the court to excuse their failure to apply for promotion

based on speculation that decision maker was biased against them). Futility “goes

beyond legal adequacy and addresses factual adequacy.” Orion, 103 Wn.2d at

458. It may be satisfied, for instance, by a showing it is “quite evident” that

7 No. 85327-9-I/8

administrative agencies have “made a policy choice” to arrive at a particular

conclusion, such as in Orion to block a development. Id. at 460. Only “rare

circumstances” will allow a party to avoid available administrative remedies.

Bellevue 120th Assocs. v. City of Bellevue, 65 Wn. App. 594, 598, 829 P.2d 182

(1992).

RCW 74.20A.055(1) allows DSHS to initiate an inquiry by a notice “to

appear and show cause” why its determination of a support obligation is incorrect,

should not be ordered, or should be modified. A person who objects to the notice

and finding of financial responsibility may file an application for an adjudicative

proceeding within 20 days, after which collection of the amount claimed to be owed

is stayed pending the entry of a final administrative order. RCW 74.20A.055(4)(a).

The notice and finding of financial responsibility that DSHS sent Ferguson was not

a final determination of child support, but a notice to appear and show cause why

the finding of responsibility was incorrect. Ferguson could have pursued and may

still pursue a decision that he owes no support at an administrative hearing on the

merits. The administrative law judge’s denial of his motion to dismiss alone does

not show futility. The administrative remedy was adequate, and Ferguson was not

excused from exhausting administrative remedies.

We reverse the superior court’s order and judgment dismissing the

administrative proceeding. We further reverse the award of attorney fees. Under

the EAJA, a court shall award the prevailing party reasonable attorney fees unless

the court finds that the agency action was substantially justified. RCW 4.84.350(1).

An award of attorney fees under EAJA is reviewed for abuse of discretion. Raven

8 No. 85327-9-I/9

v. Dep’t of Soc. & Health Servs., 177 Wn.2d 804, 832, 306 P.3d 920 (2013). If a

court’s ruling is based on an erroneous view of the law, it is an abuse of discretion.

In re Marriage of Herridge, 169 Wn. App. 290, 296-97, 279 P.3d 956 (2012). DSHS

had authority to initiate the proceeding and afforded Ferguson a hearing on the

merits in compliance with RCW 74.20A.055. Its actions were substantially justified

and the award of attorney fees was based on an erroneous view of the law.

Because Ferguson is not the prevailing party, we deny his request for attorney fees

on appeal.

We reverse and remand to DSHS for further proceedings. Because we

remand for a merits hearing, it is not necessary to reach merits issues at this time.

WE CONCUR: