Clarke v. Clarke

48 P.3d 1032
CourtCourt of Appeals of Washington
DecidedJune 28, 2002
Docket27220-2-II
StatusPublished
Cited by10 cases

This text of 48 P.3d 1032 (Clarke v. Clarke) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Clarke v. Clarke, 48 P.3d 1032 (Wash. Ct. App. 2002).

Opinion

48 P.3d 1032 (2002)
112 Wash.App. 370

In re the Marriage of Wendy CLARKE, Respondent,
v.
Michael CLARKE, Appellant.

No. 27220-2-II.

Court of Appeals of Washington, Division 2.

June 28, 2002.

*1033 Stephen Frederick Frost, Bellevue, for Appellant.

Charles Creason, Michael Kirk, Poulsbo, for Respondent.

QUINN-BRINTNALL, J.

Michael Clarke appeals from an order increasing the child support obligation for his three children from $956 to $1,537 per month. Michael claims that the commissioner committed two errors during the modification hearing. First, he claims error in the court's ruling that Wendy Clarke was not voluntarily underemployed when she reduced her hours by 20 percent. Second, he claims that because the parents' combined income is greater than the $7,000 maximum computed on the child support schedule, the commissioner erred by extrapolating the child support calculation based on the actual total net income of $8,500. We hold that the commissioner's ruling that Wendy was not voluntarily underemployed was proper and that his decision to extrapolate the child support calculation to reflect the parents' actual income was a reasonable exercise of his discretion. Thus, we affirm.

*1034 FACTS

Wendy and Michael[1] divorced several years ago. They have three children, B.C., A.C., and H.C. At the time of the modification hearing, the children were ages 13, 9, and 7, respectively. When B.C. turned 12 years old, Wendy petitioned the court for an increase in child support under the statutory guidelines.[2] There were also additional childcare expenses at issue. Michael opposed the motion. He disputed Wendy's income and asked the court to use the lower presumptive amount of child support from the statutory schedule at the $5,000 level. On January 23, 2001, Michael submitted a follow-up declaration claiming that Wendy was voluntarily underemployed by 20 percent.

A Kitsap County Superior Court Commissioner conducted two hearings on the matter. The first was held on January 29, 2001; the second, on February 9, 2001.[3] He noted the combined total net income for the parties was more than $8,500 per month ($5,038.56 for Michael and $3,557.26 for Wendy), which is greater than the $7,000 maximum calculated in the advisory portion of the statutory child support schedule.

In calculating the appropriate support, the commissioner considered three options: (1) use the presumptive statutory child support amount at the $5,000 net income, as Michael requested; (2) use the advisory child support amount calculated at the $7,000 net income level; or (3) extrapolate the child support amount based on the parties' actual net monthly income of $8,500. The commissioner decided to extrapolate the child support to an amount appropriate for $8,500 unless Michael established that the resulting support was unduly burdensome.

My judgment on those types of issues is that a party seeking to have a variance from the indicated maximum advisory amount or the indicated extrapolated amount, must demonstrate some exceptional reason to vary from those amounts. In other words, I put the show ... the onerous on the party seeking to avoid the imposition of the amount indicated by the Commission's schedule.

Report of Proceedings (1/29/01) at 23. The Order of Child Support states, "The obligor has failed to demonstrate why the extrapolated amount should not be utilized." Clerk's Papers at 176. He also made oral findings to support the extrapolated amount.

That, which is offered today is ... it's always been a presumptive amount [$5,000], which is not persuasive to me and that we have a disparity in income and that we have a logistical change back and forth in terms of the cost associated with separate households and keeping the bedroom here and the bedroom there and so forth. Those are not persuasive as a basis upon which to avoid the imposition of the extrapolated amount and I will adopt the extrapolated amount.

Report of Proceedings (1/29/01) at 23-24. The parties dispute whether the commissioner's findings are sufficient.

The commissioner also addressed whether Wendy was voluntarily underemployed and whether additional income from her unworked hours and her new husband should be imputed to her. At the time of the hearing, Wendy was working as a nurse and had reduced her work hours by 20 percent to spend more time with her children (the three from her marriage to Michael and a newborn from her current marriage). Her attorney presented evidence that although she reduced the number of her working hours per week, her income was essentially the same because of night shift wage differentials.

*1035 The court made the following oral findings about Wendy's employment at the hearing:

Now, there's an argument that she is voluntarily under-employed. I don't find that to be the case. She has a highly skilled field for which her flexibility and in-flexibility, by reason of the employment, demands of the job are such she has this differential in shifts and I do not find that she is voluntarily under-employed as that term is defined by the statute. She's working to optimize both her income as well as her time with her kids, which is some ... sometimes problematic in view of her work schedule.

Report of Proceedings (1/29/01) at 21-22.

The commissioner concluded that Wendy was not voluntarily underemployed. He then calculated the child support by extrapolation, increasing the parents' support obligation by approximately $1,000 per month for all three children ($581 (Michael) and $545 (Wendy)).[4] The total of Michael's support obligation is $1,537, less than a third of his monthly net income.

Michael's appeal presents the following issues: (1) Did the court err by ruling that Wendy was not voluntarily underemployed? (2) Was the court required to include Wendy's husband's income in its calculation of child support for Wendy and Michael's three children? (3) Did the commissioner abuse his discretion by extrapolating from the presumptive and advisory guidelines to calculate child support? And (4) were the commissioner's findings sufficient to sustain the extrapolated support amount?

ANALYSIS

STANDARD OF REVIEW

This court reviews child support modifications and adjustments for abuse of discretion. In re Marriage of Griffin, 114 Wash.2d 772, 776, 791 P.2d 519 (1990). We will uphold the trial court's child support calculation unless there is a manifest abuse of discretion. In re Marriage of Mattson, 95 Wash.App. 592, 599, 976 P.2d 157 (1999).

IMPUTING INCOME

VOLUNTARY UNDEREMPLOYMENT

Voluntary unemployment or underemployment does not shield a parent from child support obligations. In re Marriage of Shellenberger, 80 Wash.App. 71, 81, 906 P.2d 968 (1995). Instead, the court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed and calculate the parent's support obligation accordingly. 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.

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Bluebook (online)
48 P.3d 1032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-clarke-washctapp-2002.