FILED
JUNE 9,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In re Parenting and Support of: )
) No. 31303-4-111
R.T.L., )
)
child. ) UNPUBLISHED OPINION
SIDDOWAY, C.J. - Nicholette Liedkie claims the trial court erred when it treated
Emilio Lopez's petition to establish a parenting plan for their child as an initial custody
proceeding rather than as a modification. An Idaho court had previously ordered Mr.
Lopez to pay child support; however, no custody order was ever entered. We conclude
that because the Idaho child support order was not a custody decree, the trial court did not
err in treating Mr. Lopez's petition as an initial custody proceeding. We further hold that
it was not error to impute income to Ms. Liedkie for a full 40-hour workweek. For these
reasons, we affirm.
FACTSANDPROCEDURALBACKGROlmD
R.T.L. was born to Ms. Liedkie and Mr. Lopez on March 22,2001, in Lewiston,
Idaho. Even though they were not married, Mr. Lopez filed an acknowledgment of
No. 31303-4-II1
In re Parenting & Support ofR. T.L.
paternity. In November 2002, the district court for Nez Perce County, Idaho, entered an
order requiring Mr. Lopez to make child support payments in the amount of $251.99 a
month and to obtain health insurance for R.T.L. The order did not discuss custody or
residential placement.
Initially Mr. Lopez made very few of these payments-the parties agree that Mr.
Lopez was not present early on in R.T.L's life.
In 2008, Mr. Lopez received treatment for drug and alcohol addiction. Ms.
Liedkie admits that after receiving treatment, Mr. Lopez began consistently making back
payments on his child support obligation. Although Ms. Liedkie retained physical
custody ofR.T.L., Mr. Lopez became actively involved in R.T.L.'s life.
One year later, the State of Idaho arrested and charged Ms. Liedkie with a drug
offense. She was bailed out ofjail within a day and the charges were dropped about three
months later. However, in February 2010 the federal government charged Ms. Liedkie
with possession of methamphetamine with intent to distribute. In March 2010, a federal
judge sentenced Ms. Liedkie to 30 months in prison. Upon her incarceration, Ms.
Liedkie's family began caring for R.T.L.
Promptly after learning of Ms. Liedkie's incarceration, Mr. Lopez filed a pro se
petition in the Superior Court for Asotin County asking the court to create a residential
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No. 31303-4-III
In re Parenting & Support ofR. T.L.
schedule placing R.T.L. with him. I Along with the petition, Mr. Lopez filed a summons,
a proposed parenting plan, a proposed child support order, a copy of the Idaho child
support order, and a copy of Ms. Liedkie's federal indictment. While in prison, Ms.
Liedkie filed a response contesting the proposed plan.
On August 9,2010, the superior court conducted a hearing on the petition for
residential placement ofR.T.L. The court inquired whether Ms. Liedkie was ever
granted legal custody. Mr. Lopez informed the court that there was a child support order,
but not a custody order. At a proceeding in September 2010, the court again asked
whether there was a custody order. For a second time, Mr. Lopez informed the court that
there was never a formal custody determination. The court reviewed the child support
order and confirmed that the order did not grant legal custody to anyone.
A temporary order establishing residential placement ofR.T.L. with Mr. Lopez
while Ms. Liedkie was incarcerated was entered two weeks later.
The trial to address a permanent parenting plan and residential schedule was set
for February 2011. Three continuances were granted, and finally, on September 7,2012,
the case was heard. In its oral ruling, the court granted primary residential placement of
IWashington has jurisdiction over this case because R.T.L. had been residing in
Clarkston, Washington at his mother's apartment. Upon her incarceration, R.T.L.
continued to reside in Clarkston with his maternal grandfather.
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In re Parenting & Support ofR. T.L.
R.T.L. to Mr. Lopez. Ms. Liedkie was granted visitation rights every other weekend
during the school year and every other week during the summer.
The trial court also asked each party to submit financial information in order to
determine their respective child support obligations. Ms. Liedkie provided the court with
pay stubs showing she worked anywhere between 14 to 40 hours a week at a rate of nine
dollars an hour. In ordering child support, the court imputed income to her at a rate of
nine dollars an hour for forty hours a week, resulting in her obligation to pay Mr. Lopez
$184.46 a month in child support.
Ms. Liedkie timely appealed the court's rulings.
ANALYSIS
Ms. Liedkie challenges the trial court's determination to treat Mr. Lopez's petition
as an initial custody determination rather than a custody modification. She further
assigns error to the trial court's imputation of income to her for a fu1l40-hour workweek.
We address these arguments in tum.
Initial petition for a parenting plan
Ms. Liedkie argues the court erred in allowing Mr. Lopez's petition to proceed as
a petition for an initial parenting plan rather than requiring the petition to meet the
heightened requirements for a modification. Mr. Lopez argues that no court had ever
entered a parenting plan or residential schedule, and as a result, the court did not err in
treating his petition as an initial petition.
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A parent who has acknowledged paternity may file a petition to establish a
parenting plan or residential schedule. RCW 26.26.375(1)(a). If a custody decree or
parenting plan has previously been entered by a court, the petitioning party must observe
additional formalities in order to obtain a modification of the existing order. RCW
26.09.260, .270. "[I]n order to secure a hearing, a party moving to modifY a custody
decree or parenting plan must submit with its motion, 'an affidavit setting forth facts
supporting the ... modification.'" Link v. Link, 165 Wn. App. 268, 275, 268 P.3d 963,
(2011) (alteration in original) (quoting RCW 26.09.270). "A court is required to deny the
motion unless it finds that' adequate cause for hearing the motion is established by the
affidavits.'" In re Parentage o/C.MF., 179 Wn.2d 411,419,314 P.3d 1109 (2013)
(quoting RCW 26.09.270). Even if a petitioning party demonstrates adequate cause
entitling the party to a hearing,
the court shall not modifY a prior custody decree or a parenting plan unless
it finds, upon the basis of facts that have arisen since the prior decree or
plan or that were unknown to the court at the time of the prior decree or
plan, that a substantial change has occurred in the circumstances of the
child or the nonmoving party and that the modification is in the best interest
of the child and is necessary to serve the best interests of the child.
RCW 26.09 .260( 1). "These procedures protect stability by making it more difficult to
challenge the status quo." C.MF., 179 Wn.2d at 419-20 (footnote omitted).
In C.MF. our Supreme Court was asked to determine whether an adjudicated
father was required to follow the procedure for modifYing an existing custody order
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No. 31303-4-111
In re Parenting & Support ofR. T.L.
where no parenting plan had ever been entered, but the court order establishing parentage
listed the mother as the "custodian ... solely for purposes of all other state and federal
statutes.,,2 179 Wn.2d at 416-17. The court defined "custody decree" for purposes of
RCW 26.09.260 as "an order that designates one parent a custodian." CMF 179 Wn.2d.
at 422. As a result, it held that the trial court erred by not following the statutory
requirements for modifying a decree. Id. at 432.
Here, the parties conceded at a pretrial hearing that no court had ever entered a
custody order-the same conclusion the court had reached in earlier hearings:
JUDGE: ... Has there ever been an official custody order in the past
with regards to R TL ?
LOPEZ: No.
[LIEDKIE'S COUNSEL]: No, Your Honor.
JUDGE: Okay. So we're starting from scratch.
[LIEDKIE'S COUNSEL]: Correct, Your Honor.
Report of Proceedings (RP) at 58. Unlike the parentage order in CMF., which made the
mother custodian solely for purposes of federal and other state statutes, the 2002 Idaho
child support order is entirely silent as to custody. Ms. Liedkie's earlier physical custody
ofR.T.L. as a practical matter, but not a legal matter, was not enough to require that Mr.
Lopez follow the procedure for modification. The trial court did not err in treating Mr.
Lopez's petition as an initial petition to establish a parenting plan.
2 In Washington, this is required by statute. The parent with whom the child
resides the majority of the time shall be designated in the parenting plan as the custodian
for purposes of state and federal statutes. RCW 26.09.285.
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In re Parenting & Support ofR. TL
Imputation ofincome
Next, Ms. Liedkie contends the court abused its discretion in imputing income to
her for purposes of calculating child support. RCW 26.19.071(6) provides that "[t]he
court shall impute income to a parent when the parent is voluntarily unemployed or
voluntarily underemployed." But if a parent is gainfully employed on a full-time basis, a
court shall not impute income "unless the court finds that the parent is voluntarily
underemployed and finds that the parent is purposely underemployed to reduce the
parent's child support obligation." Id. Ms. Liedkie contends that no evidence was
presented that she was voluntarily underemployed and purposely underemployed to
reduce her child support obligation.
We review an award of child support for abuse of discretion. In re Marriage of
Curran, 26 Wn. App. 108, 110,611 P.2d 1350 (1980). "An abuse of discretion occurs
when a judge exercises his discretion on 'a ground, or to an extent, [that is] clearly
untenable or manifestly unreasonable.'" Id. (alteration in original) (quoting In re
Marriage ofNicholson , 17 Wn. App. 110, 114,561 P.2d 1116 (1977».
Here, the court determined from reviewing Ms. Liedkie's pay stubs that she was
working less than full-time. It was only because she was working less than full-time that
the court concluded she was underemployed, and it merely imputed income for a 40-hour
workweek at her existing rate of pay. Accordingly, it was not necessary that the court
find that she was voluntarily underemployed and purposely underemployed to reduce her
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child support obligation. The court did not abuse its discretion in imputing full-time
income to Ms. Liedkie.
Attorney fees
Mr. Lopez requests fees and expenses under RAP 18.9(a). Because the appeal is
not frivolous, his request is denied. Mr. Lopez also asks that we exercise our discretion
to award fees under RAP 18.1 and RCW 26.09.140. We decline to do so.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to RCW
2.06.040.
WE CONCUR:
Korsmo, J. ?l
~~\{1.
Fearing, .J.
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