State Ex Rel. JVG v. Van Guilder

154 P.3d 243
CourtCourt of Appeals of Washington
DecidedMarch 5, 2007
Docket57490-6-I
StatusPublished
Cited by6 cases

This text of 154 P.3d 243 (State Ex Rel. JVG v. Van Guilder) 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
State Ex Rel. JVG v. Van Guilder, 154 P.3d 243 (Wash. Ct. App. 2007).

Opinion

154 P.3d 243 (2007)

STATE of Washington, on behalf of J.V.G., child, Petitioner,
v.
Jon F. VAN GUILDER, Appellant,
v.
Jennifer Ann Van Guilder, Respondent.

No. 57490-6-I.

Court of Appeals of Washington, Division 1.

March 5, 2007.

*244 Patricia S. Novotny, Attorney at Law, Seattle, WA, for Appellant.

H. Michael Fields, Attorney at Law, Seattle, WA, for Respondent.

AGID, J.

¶ 1 Jon and Jennifer Van Guilder are the divorced parents of J.V.G. Jon remarried and has four additional children. The State of Washington petitioned for modification of Jon's child support obligation to J.V.G. because he could not meet that obligation and the needs of his four other children from his second marriage. The State requested that Jon's monthly support obligation be reduced from $905 to $302. Jennifer opposed the downward deviation and petitioned for Jon to pay his proportional share of J.V.G.'s private school tuition and extracurricular activities in addition to his basic support obligation. The trial court found in favor of the mother and increased the father's monthly support payment to $1,216. We hold that the trial court abused its discretion by failing to consider the total financial circumstances of both households in denying the downward deviation and requiring the father to pay for private school without making a finding that he could afford to do so. We reverse and remand.

FACTS

Dissolution and Child Support Order

¶ 2 A California court dissolved Jon and Jennifer Van Guilder's marriage in 1995, when their son, J.V.G., was three years old. Under the 1995 order, the court gave Jennifer primary physical custody and visitation to Jon. The court ordered Jon to pay a total of $905 monthly in child support. His original monthly support payment was $655 plus an additional $250 for daycare expenses. Jon remarried and has four other children with his current wife, a stay-at-home mother. He and his second family live in Ohio.

2002 Parenting Plan

¶ 3 In 2002, Jennifer petitioned for modification of the 1995 parenting plan, alleging that Jon and his current wife abused J.V.G., causing him emotional harm. At the time, Jon was moving to the Midwest with his second family and did not appear at the hearing. The court heard testimony from Jennifer, J.V.G.'s therapist, and a family observer. It granted the modification, giving *245 Jennifer sole decision-making authority and requiring that Jon's visits be supervised until he and his wife submitted to an anger management and domestic violence assessment. Jennifer did not attempt to modify Jon's child support obligation at this hearing. Jon did not appeal the order. J.V.G. attends regular counseling sessions to deal with his emotional problems.

Private School Education

¶ 4 J.V.G. has always attended private school. Both parents chose to send him to Providence Classical Christian School (PCCS), a private school. After PCCS relocated from Bellevue to Bothell, Jennifer decided to move J.V.G. to a more expensive private school closer to her home. Apparently, J.V.G.'s counselor teaches at the new school and recommended it to Jennifer.[1] No court has ever required John to pay for J.V.G. to attend private school.[2]

Procedural History

¶ 5 At some point Jon fell behind in his child support payments for J.V.G., and the State began collecting his payments and arrearages. On June 24, 2005, the State filed a petition to modify Jon's child support obligation to J.V.G. based on his changed financial situation as a result of his four additional children. The State recommended a downward deviation from the standard obligation to $302 monthly based on the "whole family" formula. On June 29, 2005, Jennifer filed a motion for adjustment, seeking an increase in Jon's support payments to cover his proportional share of J.V.G.'s tuition and extracurricular activities. She failed to timely serve the State with her motion for adjustment. The family court commissioner dismissed the motion and directed the parties to deal with both the downward deviation and the request for private school tuition at the modification hearing in the form of trial by affidavit.

¶ 6 Jennifer submitted an affidavit asserting that Jon should contribute to J.V.G.'s private school tuition, counseling, and extracurricular activities because they were necessary given his history of participating in such activities and his emotional problems stemming from abuse by his father. Jon, appearing pro se telephonically from Ohio, opposed the increase and asked for a downward deviation based on his financial circumstances. The State presented its original request for a downward deviation based on Jon's additional four children but did not advocate on his behalf, choosing instead to defer to the court on all issues.

¶ 7 The commissioner pro tem denied Jon's request for a downward deviation because it "would leave insufficient funds in the custodial parent's household" and ordered him to pay $1,216 in monthly child support for J.V.G. The court based this $311 increase in the father's monthly support payments on his proportional half of J.V.G.'s private school tuition and extracurricular activities. The court calculated the father's basic monthly child support obligation at $666 and his proportional share of J.V.G.'s tuition and extracurricular activities at $550. The court found that this extra expense was justified by J.V.G.'s history of private school attendance, his mother's sole decision-making authority, and her affidavit stating that his counselor recommended the school. The court denied the mother's request that Jon contribute to J.V.G.'s counseling, stating that it is part of ordinary monthly health care.

¶ 8 While Jennifer supports herself and J.V.G. on $5,000 a month, Jon makes approximately $5,541 monthly and must support four other children and his wife on that salary. Jon submitted a number of financial documents to show the financial hardship the court's failure to grant a downward deviation would impose on his second family. The court made no findings about how these increased child support payments would affect Jon's other children or whether Jon could afford to pay for private school and extracurricular activities given his other obligations. The superior court denied Jon's motion seeking revision of the commissioner pro tem's ruling. Jon appeals.

*246 DISCUSSION

¶ 9 Generally, we review the superior court's ruling, not the commissioner's.[3] But when the superior court denies a motion for revision, it adopts the commissioner's findings, conclusions, and rulings as its own.[4] We review a trial court's child support determinations for abuse of discretion.[5] A trial court abuses its discretion by making a decision based on "`untenable grounds or for untenable reasons.'"[6] A trial court does not abuse its discretion where the record shows that it considered all the relevant factors and the child support award is not unreasonable under the circumstances.[7] Findings of fact supported by substantial evidence, i.e., evidence sufficient to persuade a rational person of the truth of the premise, will not be disturbed on appeal.[8]

I. Downward Deviation

¶ 10 A trial court may deviate from the standard child support calculation based on one parent's financial obligations to children from another relationship who live with him, provided he is fulfilling his obligations to them.[9]

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154 P.3d 243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-jvg-v-van-guilder-washctapp-2007.