State ex rel. J.V.G. v. Van Guilder
State ex rel. J.V.G. v. Van Guilder
Opinion of the Court
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.
¶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 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.
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,
¶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.
f 7 The commissioner pro tempore 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
DISCUSSION
¶9 Generally, we review the superior court’s ruling, not the commissioner’s.
¶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.
¶11 Here, the trial court denied the father’s request for a downward deviation because it found that reducing his support payments from the standard calculation of $666 to the State’s proposed $302 “would leave insufficient funds in the custodial parent’s household.” The father challenges this ruling, arguing that its factual underpinnings are not based on substantial evidence and that the trial court abused its discretion by failing to consider the total circumstances of both households.
f 12 The father relies on our holding in In re Marriage of Bell that a court abuses its discretion when it allows earlier child support orders to determine the amount of support to which later-born children are entitled.*
¶13 It is clear from the record that the trial court did not consider the total circumstances of both households before denying the father’s request for a downward deviation. In fact, the court implied that the issue of how much support J.V.G. is entitled to is completely separate from the issue of how much support the other four children will receive. When the father tried to explain the hardship an increase in his support payments would work on his second family, the court replied:
Well, Mr. Van Guilder, both you and yoür current wife have an obligation to support the children you have, and you have ... an independent obligation to support the child you have with [J.V.GJ’s mother.
This statement runs contrary to the statute and our holding in Bell that courts must consider the needs of all the children to whom the parent seeking deviation owes a duty of support.
¶14 The court also appears to have based its finding that a downward deviation would leave insufficient funds in the
¶15 The trial court should have considered only whether the deviation would result in insufficient funds to meet J.V.G.’s basic needs. Instead, the court appears to have based its determination largely on J.V.G.’s extraordinary need to attend private school:
And that’s my finding today is that if I were to deviate, it would, uh? — it would leave insufficient funds. I did review the mother’s financial declaration.
Uhm, she does have a pretty significant cost for education expenses but, again, that was based on the parties having previously agreed and mother now having sole decision-making.
The mother’s private school tuition payments should not have been considered as part of the deviation determination because such payments are extraordinary expenses not considered part of the standard child support calculation.
II. Private School Tuition and Extracurricular Expenses
A. Effect of Father’s Request for a Downward Deviation
¶16 The father argues he should not be obligated to pay the extraordinary expenses of private school tuition and extracurricular activities when he is requesting a downward deviation because he cannot afford to meet even his basic child support obligations. Under RCW 26-.19.080(3), private school tuition and “special child rearing expenses” are extraordinary expenses not included in the basic child support calculation. The trial court has discretion to determine the “necessity for and reasonableness of” payments in excess of the basic child support obligation.
B. Ability To Pay
¶17 In In re Marriage of Stern, we held that a noncustodial parent should not be obligated to pay for private school when acceptable public schools are available unless there is a “showing of special circumstances justifying the need for private school education.”
fl8 The father contends that his ability to pay for private school and extracurricular activities must be taken
¶19 We have required consideration of a parent’s ability to pay in a similar context. In In re Marriage of Shellen-berger, we cited Stern and Vander Veen as support for the proposition that a “trial court should not require objecting parents of modest means to pay for private college where the child can obtain a degree in his or her chosen field at a publicly subsidized institution.”
¶20 Because Yeamans requires that extraordinary expenses be allocated in the same manner as the basic support obligation,
III. Attorney Fees
¶21 The father seeks attorney fees under RAP 18.1 and RCW 26.09.140, which authorizes the appellate court to order one party to pay the other’s reasonable attorney fees based on the requesting party’s demonstrated financial need and the other party’s ability to pay.
¶22 We reverse and remand. On remand, the trial court is to consider the total circumstances of both households in determining whether a downward deviation in the father’s basic support obligation is appropriate under RCW 26.19.075(l)(e)(iv). It must also determine whether he has the ability to pay for private school and extracurricular activities as part of deciding whether these extraordinary expenses are necessary and reasonable under RCW 26.19.080(4).
Grosse and Dwyer, JJ., concur.
Reconsideration granted and opinion modified May 29, 2007.
This is based solely on the mother’s affidavit.
Private school was not included in the original support order.
In re Marriage of Stewart, 133 Wn. App. 545, 550, 137 P.3d 25 (2006) (citing In re Marriage of Dodd, 120 Wn. App. 638, 644, 86 P.3d 801. (2004)).
RCW 2.24.050; In re Estate of Larson, 36 Wn. App. 196, 200, 674 P.2d 669 (1983), rev’d on other grounds, 103 Wn.2d 517, 694 P.2d 1051 (1985).
In re Marriage of Stern, 57 Wn. App. 707, 717, 789 P.2d 807 (citing In re Marriage of Nicholson, 17 Wn. App. 110, 119, 561 P.2d 1116 (1977)), review denied, 115 Wn.2d 1013 (1990).
In re Marriage of Vander Veen, 62 Wn. App. 861, 867, 815 P.2d 843 (1991) (quoting Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990)).
Stern, 57 Wn. App. at 717.
Fernando v. Nieswandt, 87 Wn. App. 103, 111, 940 P.2d 1380, review denied, 133 Wn.2d 1014 (1997).
In re Marriage of Bell, 101 Wn. App. 366, 371, 4 P.3d 849 (2000) (quoting RCW 26.19.075(2)).
101 Wn. App. 366, 373, 4 P.3d 849 (2000).
Id. at 371.
Fernando, 87 Wn. App. at 111.
RCW 26.19.075(l)(d) (emphasis added).
RCW 26.19.001.
RCW 26.19.080(3).
117 Wn. App. 593, 601, 72 P.3d 775 (2003).
RCW 26.19.080(4).
117 Wn. App. at 600 (quoting Murphy v. Miller, 85 Wn. App. 345, 349, 932 P.2d 722 (1977)).
Id. at 601.
Id. at 601-02.
57 Wn. App. 707, 720, 789 P.2d 807, review denied, 115 Wn.2d 1013 (1990).
Id.
62 Wn. App. 861, 866, 815 P.2d 843 (1991).
RCW 26.19.080(4).
Stern, 57 Wn. App. at 718-19 (citing Aylesworth, 106 Cal. App. 3d 869, 878, 165 Cal. Rptr. 389 (1980)).
80 Wn. App. 71, 85, 906 P.2d 968 (1995).
RCW 26.19.001.
In re Marriage of Kimpel, 122 Wn. App. 729, 735, 94 P.3d 1022 (2004), amended on recons., 2004 Wash. App. LEXIS 2939 (Dec. 2, 2004).
Reference
- Full Case Name
- The State of Washington on the Relation of J.V.G. v. Jon F. Van Guilder, Jennifer Ann Van Guilder
- Cited By
- 32 cases
- Status
- Published