Newell v. Newell

72 P.3d 1130
CourtCourt of Appeals of Washington
DecidedJuly 21, 2003
Docket49799-5-I
StatusPublished
Cited by16 cases

This text of 72 P.3d 1130 (Newell v. Newell) 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
Newell v. Newell, 72 P.3d 1130 (Wash. Ct. App. 2003).

Opinion

72 P.3d 1130 (2003)
117 Wash.App. 711

Joy NEWELL, n/k/a Joy Bailey, Appellant,
v.
LaFrank NEWELL, Respondent.

No. 49799-5-I.

Court of Appeals of Washington, Division 1.

July 21, 2003.

Robert Helland, Attorney at Law, Tacoma, WA, for Appellant.

Theresa Mary Ahern, Attorney at Law, Chad Horner, Curran Mendoza PS, Kent, WA, for Respondent.

SCHINDLER, J.

Joy Bailey (formerly Newell) appeals the trial court's postsecondary education support order for the parties' daughter. Bailey contends that the court abused its discretion in not accurately determining income for LaFrank Newell, her former spouse. Bailey also challenges the percentage allocation between the parents for postsecondary education expenses. She argues that the court should have included overtime pay in its calculation of Newell's income and based on this higher income, allocated more of the college expenses to Newell. Bailey also contends that when the trial court changed the income amount to be imputed to her, it should have changed the percentage share of income. *1131 We conclude that although the child support schedule for postsecondary education support is advisory and not mandatory, the trial court must accurately calculate the parties' incomes and the presumptive proportional percentage share of income before deciding how to allocate postsecondary education expenses between the parents. We reverse and remand.

FACTS

When the parties divorced in October 2000, their daughter was a senior in high school. Because their daughter's post-high school plans were uncertain, the parties reserved the issue of postsecondary support. The court's order of child support provides, in part:

3.14 Post Secondary Educational Support
The right to petition for post secondary support is reserved, provided that [t]he right is exercised before support termination as set forth in 3.13.[1]

On June 4, 2001, Bailey filed a petition and declaration for modification of the child support order on the grounds that her daughter "is in need of postsecondary educational support because the child is in fact dependent and is relying upon the parents for the reasonable necessities of life".[2] In her declaration, Bailey stated that her daughter had been accepted to the University of Montana for admission in September 2001 and submitted cost information for the University of Montana, her pay stubs, her 2000 federal income tax return, proposed child support worksheets and a financial declaration stating that her net monthly wages from her employment as a security guard were $1,335.69.

In response, Newell agreed to contribute to his daughter's college education but objected to paying out-of-state tuition. He offered to pay up to one-half of the tuition and fees at the University of Washington for an in-state student, plus one-half of the costs of books, room and board as estimated by the University of Montana, minus any student loans received by their daughter'.

In his declaration, Newell stated that he was employed by the Boeing Company as an operations manager and his gross monthly net income was $5,920 with a net monthly income of $3,581. Newell arrived at the calculation of his net monthly income of $3,581 by multiplying his hourly rate by the number of work days in an average month.[3] He submitted several recent pay stubs, 1999 and 2000 federal income tax returns, a financial declaration, and proposed child support worksheets. Because Bailey had by then moved to Montana and was unemployed, Newell requested that the court impute monthly income to her, based on the child support guidelines, of $2,051 in addition to the monthly spousal maintenance payments of $750.[4] According to the worksheets and income calculations used by Newell, his proportional share of the combined net income was .561 and Bailey's was .439.

In reply, Bailey submitted two additional declarations. In the first, she requested that the court award postsecondary support based on the actual cost for an out-of-state student at the University of Montana and divide that amount in proportion to the parties' incomes.[5] In the second declaration, Bailey claimed that Newell had improperly calculated his income because overtime pay was not included. Relying on the most recent pay stub submitted by Newell, and the year-to-date earnings recorded on that pay stub, she calculated Newell's income by including all the overtime Newell had earned during the first six months of 2001. By this method, Newell's monthly gross income was $9,122.40 and his net income was $5,755.19.[6] This calculation included all the overtime Newell had worked during the first six months of 2001.[7] Bailey explained that her financial *1132 circumstances had changed since filing the petition because she had moved to Montana and was looking for work, but she calculated her income based on the salary she had earned in Washington plus her maintenance payments. According to Bailey's calculations, her monthly gross income was $2,345 and monthly net income was $1,964.01.[8] Newell's proportional share of the combined income was .746, and her share was .254.[9]

On November 9, 2001, a pro tem court commissioner heard oral argument and entered an order of child support for postsecondary education support. The court determined that Newell's net monthly income was $3,627.[10] This figure is Newell's hourly rate of $34 .424 multiplied by 2080 hours (40 hours multiplied by 52 weeks per year), minus deductions; it does not include overtime. The court used the child support guidelines and imputed monthly net income of $2,900 to Bailey.[11] Based on these calculations according to the child support worksheets signed by the pro tem commissioner, Newell's proportional share of the combined net income was 55.5 percent, and Bailey's share was 44.5 percent. The court ordered that:

[a]s long as the father has a spousal maintenance obligation to the mother he shall pay 55% of the tuition and fees and of the room and board for [the parties' daughter], starting Fall 2001. Said expenses shall be the lesser of the actual expenses or the similar expenses at the University of Washington ...
When spousal maintenance terminates, father's percentage increases to 65%-mother 35%.[12]

Thus, the amount to be paid for the year 2001 was the University of Washington in-state tuition amount and the University of Montana room and board amount. The court also ordered that the parties' daughter would be responsible for her books, supplies and personal expenses, and that any student loans or other money received should be applied to those expenses.[13]

Bailey filed a motion to revise the pro tem commissioner's order. She asserted that the court erred in determining both parties' incomes, inequitably allocating the percentage of expenses between the mother and father, determining that extraordinary healthcare provisions did not apply, excluding books and personal expenses in its award, and improperly basing the award on the lesser costs as between the University of Washington and the University of Montana.[14]

After hearing oral argument, the trial court agreed that the mother's net imputed income should be $1,335 per month, not $2,900, and added a requirement that the parties' daughter maintain a "C" average in school as a condition of continued support.[15]

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Bluebook (online)
72 P.3d 1130, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newell-v-newell-washctapp-2003.