[No. 77858-2. En Banc.]
Argued October 24, 2006. Decided February 1, 2007.
THE STATE OF WASHINGTON , on the Relation of M.M.G. et al. , Respondent , v. RICHARD SCOTT GRAHAM , Petitioner , MICHELE LEANN CUNLIFFE , Respondent .
[1] Statutes - Construction - Question of Law or Fact - Review - Standard of Review. The meaning of a statute is a question of law that an appellate court reviews de novo.
[2] Statutes - Construction - Legislative Intent - In General. A court's primary goal in construing a statute is to determine and give effect to the legislature's intent.
[3] Statutes - Construction - Legislative Intent - Statutory Language - Unambiguous Language. A court's determination of the legislative intent of a statute begins with the text of the statute. If the text is clear and unambiguous on its face, the court will not resort to statutory construction principles, such as legislative history, even if it believes that the legislature intended something else but did not adequately express it. A statute is ambiguous only if it can reasonably be interpreted in more than one way. The court will not try to discern an ambiguity by imagining a variety of alternative interpretations.
[4] Divorce - Child Support - Modification - Changed Circumstances - Burden of Proof. A party moving to modify a child support obligation bears the burden of showing a substantial change in circumstances.
[5] Divorce - Child Support - Modification - Changed Circumstances - Review - Standard of Review. A trial court's determination as to whether there has been a substantial change in circumstances warranting modification of a child support obligation is reviewed for a manifest abuse of discretion. Under the manifest abuse of discretion standard, the reviewing court cannot substitute its judgment for that of the trial court unless the trial court's decision rests on unreasonable or untenable grounds.
[6] Statutes - Construction - Amendment - Judicial Amendment - Additional Language. A court will not read into a statute things that are not there.
[7] Divorce - Child Support - Child Support Schedule - Shared Residential Arrangement - Apportionment - Split-Custody Support Calculation Method - Applicability. The split residential formula for calculating a child support obligation, as established in In re Marriage of Arvey , 77 Wn. App. 817 (1995), does not apply in a shared residential situation in which the children spend equal amounts of residential time with each parent and each parent is responsible for the children's same needs.
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[8] Divorce - Child Support - Child Support Schedule - Income Exceeding Schedule - Higher Support Obligation - Extrapolated Obligation - Validity. A court may not extrapolate from the economic table set forth in RCW 26.19.020 when setting a basic child support obligation above the maximum established by the table for parents whose combined monthly net income exceeds the top amount of $7,000. Extrapolation is merely a mechanical extension of the economic table, and RCW 26.19.001 requires the support amount to be based on the child's or children's needs, and commensurate with the parents' income, resources, and standard of living.
[9] Costs - Attorney Fees - On Appeal - Court Rule - Effect. Under RAP 18.1, a party may recover reasonable attorney fees or expenses on appeal before the Court of Appeals or Supreme Court if a right to fees or expenses is granted by applicable law.
[10] Costs - Attorney Fees - On Appeal - Request - Court of Appeals - Carryover to Supreme Court. Under RAP 18.1(b), a request for attorney fees and costs on appeal made to the Court of Appeals is considered a continuing request before the Supreme Court.
[11] Costs - Attorney Fees - On Appeal - Basis for Award - Citation - Necessity. A party seeking an award of attorney fees on appeal must cite a basis for the request.
[12] Divorce - Attorney Fees - On Appeal - Discretion of Court - Substantially Prevailing Party. A court has discretion to award attorney fees to a party in a dissolution action under RCW 26.09.140 if the party substantially prevailed on appeal and showed need.
Nature of Action: The State, on behalf of two minor children, petitioned to modify the child support provisions of the parents' marriage dissolution decree.Superior Court: The Superior Court for King County, No. 93-3-09836-1, Ronald Kessler, J., on June 3, 2003, entered a judgment reducing the father's child support obligation to approximately half the prior obligation. In reaching its decision, the court first calculated a significant increase in the father's child support obligation and a slight decrease in the mother's obligation but declined to extrapolate from the child support schedule where the parties had a combined net monthly income that exceeded the top end of the schedule. The court, recognizing that the parties had an equally shared residential arrangement, applied by
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analogy a support calculation method applicable to split residential arrangements and reduced each parent's obligation by half, reduced the father's obligation further by the amount by which the mother was obligated, and ordered the father to pay the remainder to the mother.
Court of Appeals: The court reversed the judgment and remanded the case for further proceedings at 123 Wn. App. 931 (2004), holding that the trial court erred by applying the support calculation method applicable to split residential arrangements to the parties' shared residential arrangement and that the trial court has the discretion to extrapolate from the child support schedule where the parents combined monthly net income exceeds the top amount of $7,000.
Supreme Court: Holding that the split residential formula does not apply in situations where parents equally share residential time with their children and that the trial court does not have the discretion to extrapolate from the statutory economic table in determining the parties' basic child support obligation, the court affirms the decision of the Court of Appeals in part and reverses it in part.
Catherine Wright Smith (of Edwards, Sieh, Smith & Goodfriend, P.S. ), for petitioner.
Norm Maleng , Prosecuting Attorney, and Jacqueline L. Jeske , Deputy, for respondent State.
Patricia S. Novotny , for respondent Cunliffe.
<<noticeofamendment>[As amended by order of the Supreme Court February 21, 2007.]
<</noticeofamendment>¶1 FAIRHURST, J. - Richard Scott Graham seeks review of a Court of Appeals opinion reversing the trial court's order
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modifying his child support transfer payment. He argues that the split residential formula used in In re Marriage of Arvey , 77 Wn. App. 817 , 894 P.2d 1346 (1995) applies in situations where parents equally share residential time with of their children. He also argues that the Court of Appeals erroneously held that RCW 26.19.020 creates a presumption that a trial court should extrapolate when it exceeds the economic table in determining the basic child support obligation and that the Court of Appeals decision in this case conflicts with previous Court of Appeals decisions. Michele Leann Cunliffe and the State argue that the Arvey formula is not appropriate in shared residential situations. The State also argues that the trial court has discretion to extrapolate when it exceeds the economic table and the Court of Appeals decision in this case does not conflict with other Court of Appeals decisions. Cunliffe requests attorney fees and costs on appeal. This case was heard as a companion case to In re Marriage of McCausland , 159 Wn.2d 607 , ___ P.3d ___ (2007), on the extrapolation issue.
¶2 We affirm the Court of Appeals in part and reverse in part. We affirm the court's holding that the Arvey formula does not apply in shared residential situations. However, in accordance with our reasoning in McCausland , we reverse the court's holding that the trial court has discretion to extrapolate when it exceeds the economic table in determining the basic child support obligation. Extrapolation is merely a mechanical extension of the economic table, and RCW 26.19.001 requires the amount of support to be based on the child's or children's needs, and commensurate with the parents' income, resources, and standard of living.
¶3 We grant Cunliffe's request and deny Graham's request for attorney fees and costs on appeal.
I. CHAPTER 26.19 RCW
¶4 The legislature's stated intent in enacting chapter 26.19 RCW, the child support schedule statute, was "to insure that child support orders are adequate to meet a
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child's basic needs and to provide additional child support commensurate with the parents' income, resources, and standard of living." RCW 26.19.001 (emphasis added). The legislature also intended the child support obligation to be " equitably apportioned between the parents." Id. (emphasis added).
¶5 When the trial court issues a child support order, it begins by setting the " '[b]asic child support obligation.' " RCW 26.19.011 (1). The basic child support obligation is generally determined from an economic table in the child support schedule and is based on the parents' combined monthly net income and the number and age of the children. Id. ; RCW 26.19.020 . The economic table is presumptive for a combined monthly net income of $5,000 or less, and advisory but not presumptive for a combined monthly net income of more than $5,000. RCW 26.19.020 , .065. However, the table ends at a combined monthly income level of $7,000. Id. If the parents' combined monthly net income is greater than $7,000, the court may set child support at an amount on the economic table for income between $5,000 and $7,000, or it may exceed the table based on written findings of fact. Id.
¶6 After the court determines the basic child support obligation, regardless of whether it applies an amount in the economic table or exceeds the table, it determines the " '[s]tandard calculation,' " which is the presumptive amount of child support owed by the obligor parent to the obligee parent. RCW 26.19.011 (8). The court next determines whether it is appropriate to deviate from the standard calculation. RCW 26.19.011 (4), (8). The court then orders the obligor parent to pay the resulting amount to the obligee parent - the " '[s]upport transfer payment.' " RCW 26.19.011 (9). The trial court has discretion to deviate from the standard calculation based on such factors as the parents' income and expenses, obligations to children from other relationships, and the children's residential schedule. RCW 26.19.075 . However, if it deviates from the standard calculation, the court must enter written findings of
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fact supporting the reasons for the deviation. RCW 26.19.075(3).
II. STATEMENT OF THE CASE
¶7 Graham and Cunliffe are divorced and have two daughters, ages 17 and 15. State ex rel. M.M.G. v. Graham , 123 Wn. App. 931 , 933, 99 P.3d 1248 (2004). Under the 1996 parenting plan (1996 Plan), the children spend equal amounts of time with their parents on alternating weeks. Because the parents' combined monthly net income did not exceed $7,000 at the time of the 1996 Plan, the court did not exceed the economic table in the child support schedule. However, it did deviate from the standard calculation because the children spend significant time with Graham and because it determined that the deviation did not leave Cunliffe with insufficient funds to meet the children's needs. After making adjustments for special expenses paid by Graham, each parent's share of extraordinary expenses, and child support credits, it determined that the standard calculation for Graham's support transfer payment was $872.33. However, after accounting for the deviations, the court reduced the support transfer payment to $300. The following table demonstrates the court's calculation. See Clerk's Papers (CP) at 131-33.
| Graham | Cunliffe | Combined | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Monthly net income | $4,624.80 | $1,538.00 | $6,162.80 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Proportional share of income | .75 | .25 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Basic child support obligation | $1,033.50 | $344.50 | $1,378.00 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Adjustments | +$276.83 | +$92.27 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Child support credits | $438.00 | $0 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Standard calculation | $872.33 | $436.77<< | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Support transfer payment | $300.00 | ¶8 In 2002, the State petitioned for modification of child support because the parents' incomes had changed, one of the children had moved into a new age category on the child support schedule, and the prior child support order was Feb. 2007 State ex rel. M.M.G. v. Graham 629 more than two years old.«1»In response, Graham asked the court to modify his support transfer payment by applying the formula used in Arvey , which involved an arrangement in which each parent had residential time with of one of the two children. 77 Wn. App. at 819 . Cunliffe argued that Arvey does not apply because that case involved splitting the children whereas this case involves splitting the residential time that both children spend with the parents. The State supported Cunliffe and further argued that the trial court should determine the basic child support obligation by extrapolating from the economic table. ¶9 The commissioner declined to apply Arvey to situations in which the parents equally share residential time with their children. He also concluded it was appropriate to extrapolate the basic child support obligation when it exceeds the economic table. The commissioner estimated the parents' 2002 combined monthly net income to be $8,801. He determined the basic child support obligation by extrapolation and, after making adjustments for special expenses paid by Graham, each parent's share of extraordinary expenses, and child support credits, arrived at a standard calculation of $1,629. He then deviated from the standard calculation by cutting it approximately in half. The commissioner justified the deviation on the grounds that the children spend half their residential time with Graham and the deviation downward did not leave Cunliffe's household with insufficient income to meet the children's basic needs. The following table demonstrates the commissioner's calculation. See CP at 213, 219-20. «1»Following oral argument, Cunliffe filed a motion for additional evidence and her declaration in support of the motion, citing RAP 9.11, requesting permission to submit evidence of her family's public assistance history and the history behind Graham's original child support obligation. She argued that the court should consider the evidence because members of the court had asked questions at oral argument regarding the State's authority to petition for modification of the child support order and the basis for Graham's original child support obligation. However, the additional evidence does not clarify the court's concerns regarding the State's authority to petition the court for modification of a child support order or address the substantive issue presented by the case regarding the method the trial court used to modify the child support obligation. Therefore, it is irrelevant to our decision and we deny the motion. Feb. 2007 State ex rel. M.M.G. v. Graham 630
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