IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
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In the Matter of the Marriage of: )
) DIVISION ONE
RYAN S. VATNE, )
) No. 75512-9-1 -•-•-• _...
Appellant, )
) UNPUBLISHED OPINION cprnn
.•-•
and )
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) cri
JULIET A. VATNE, ) c)
)
Respondent. ) FILED: January 16, 2018
)
DWYER, J. — Ryan Vatne appeals from the trial court's distribution of
property and order of child support entered in conjunction with a decree of
dissolution. He contends that the trial court erred in imputing income to him and
failing to impute income to his former wife, Juliet Vatne. Ryanl also challenges
the trial court's deviation from the standard calculation of child support, the
characterization of the parties' assets and liabilities, and the trial court's alleged
bias in favor of Juliet. We remand for the trial court to reconsider the manner in
which it attempted to deviate from the standard calculation. In all other respects,
we affirm.
1 For clarity we refer to the parties by their first names.
No. 75512-9-1
Ryan and Juliet were married on April 4, 2013 in Florida. On
October 27, 2013, Juliet gave birth to twins, A.V. and T.V. On February 25,
2014, when the children were approximately four months old, the family
relocated to Washington in order for Ryan to accept a job at Microsoft.
On July 19, 2014, the family flew to Florida to visit Juliet's family. A
few days later, on July 24, an altercation occurred at Juliet's mother's home
during which, Juliet later stated in court documents, Ryan emotionally and
physically threatened her.
On July 25, 2014, Juliet obtained an ex parte order for temporary
custody of the children in Miami-Dade County, Florida. Juliet informed
Ryan that she intended to stay in Florida with the children. On the same
day, Ryan filed a petition for dissolution in King County, Washington. Ryan
obtained an ex parte temporary order providing the children should reside
with him, prohibiting Juliet's contact with them, and ordering their return to
Washington.
Juliet filed a motion in King County requesting that Washington
relinquish jurisdiction of the portion of the dissolution proceeding relating to
the children to Florida pursuant to the Uniform Child Custody Jurisdiction
and Enforcement Act. On October 6, 2014, Judge Judith Ramseyer
granted Juliet's motion, ruling that Florida was the children's home state for
the purposes of establishing a parenting plan. Judge Ramseyer bifurcated
the proceeding and allowed matters related to the parties' dissolution,
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division of property, and child support to proceed in Washington. On
November 6, 2014, Judge Ramseyer denied Ryan's motion for
reconsideration. The order on reconsideration clarified that any
proceedings in Washington relative to parenting the children were
dismissed without prejudice.
On March 17, 2015, a King County Superior Court commissioner
entered temporary orders requiring Ryan to pay Juliet $1,400 per month in
maintenance and $1,326.81 in child support.
Trial on the dissolution began on August 31, 2015 before Judge
John Ruhl. Both Ryan and Juliet appeared pro se. Juliet participated
telephonically from Florida. Following nine days of trial broken up over the
course of several months, the trial court entered findings of fact and
conclusions of law, a decree of dissolution, and an order of child support.
Ryan appeals.
II
Ryan first contends that Judge Ramseyer erred in determining that
Florida was the children's home state. But Ryan did not timely appeal
Judge Ramseyer's order of dismissal. A notice of appeal must be filed
within 30 days after entry of the superior court's decision for which review
is sought, or within 30 days of the denial of a timely motion for
reconsideration. RAP 5.2(a). If a notice of appeal is not filed "within 30
days of entry of an appealable order, the appellate court is without
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jurisdiction to consider it." In re Marriage of Maxfield, 47 Wn. App. 699,
710, 737 P.2d 671 (1987). Thus, we do not address this claim.
III
Ryan contends that the superior court commissioner erred in failing
to impute income to Juliet in the March 17, 2015 temporary support order.
But because temporary support orders are not final judgments under RAP
2.2(a)(1), they are not appealable. Moreover, temporary support orders
terminate upon the entry of a final decree. RCW 26.09.060(10)(c).
Accordingly, we do not address the temporary orders in this appeal. Ryan
additionally contends that the trial court refused to hear his motion to
modify the temporary support order. Because Ryan did not designate the
motion, the record is inadequate for review of this claim. See RAP 9.1; In
re Marriage of Haugh, 58 Wn. App. 1, 6, 790 P.2d 1266(1990)(the
appellant has the burden of perfecting the record so that the court has
before it all the evidence relevant to the issue raised on appeal).
Ryan next argues that the trial court erred in imputing income to him.
A trial court calculates the child support obligation based on the combined
monthly income of both parents. In re Marriage of Pollard, 99 Wn. App. 48,
52, 991 P.2d 1201 (2000). In calculating income, a trial court must
determine whether a parent is voluntarily unemployed or underemployed
based on that parent's "work history, education, health, and age, or any
other relevant factors." RCW 26.19.071(6). A parent who is "purposely
underemployed to reduce the parent's child support obligation" will have
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income imputed to them. In re Marriage of Peterson, 80 Wn. App. 148,
153, 906 P.2d 1009(1995)(quoting RCW 26.19.071(6)). Under ROW
26.19.071(6), a trial court imputes income at a past rate of pay where
information on current or historical rates of pay is incomplete or sporadic.
We review an order of child support for an abuse of discretion. In re
Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). A trial court
abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons. In re Marriage of Littlefield, 133
Wn.2d 39, 46-47, 940 P.2d 1362(1997).
Here, the trial court found that Ryan, who was terminated from
Microsoft in September 2015, was voluntarily unemployed at the time the
findings were entered in April 2016.
Throughout the parties' marriage, the petitioner was employed at
Microsoft Corporation. His income consisted of wages, annual
bonus, and stock award. In 2013, his W-2 wages and other
compensation totaled $126,369 (Tr. Ex. 58). In 2014, his W-2
wages and other compensation totaled $129,767 (Tr. Ex. 59). In
September 2015, the petitioner was terminated from his position at
Microsoft, and he remained unemployed at the time of the trial.
The court is constrained to find that the petitioner was voluntarily
unemployed during this period.
Pursuant to RCW 26.19.071(6)(b), it is appropriate to impute
income to the petitioner based on his historical rate of pay during
2015, which is the most recent year during which the petitioner was
employed on a full-time basis.
Ryan asserts that the evidence was insufficient to support the
finding that he was voluntarily unemployed. But there was no evidence
showing that Ryan was unemployable. At the time of trial, Ryan was 37
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No. 75512-9-1
years old and had a history of high paying jobs in the tech industry. The
record is devoid of any factors that might have contributed to his alleged
inability to find work, such as health problems or the employment
conditions in his chosen field. Ryan testified only that he "very much
hope[d]" to have a job soon and that he had "been working on it." Under
the circumstances, substantial evidence supported the trial court's finding
that Ryan was voluntarily unemployed.
IV
Ryan next contends that the trial court erred in granting a deviation
from the standard calculation of child support. Because the trial court
lacked authority to deviate in the manner in which it did, we agree.
After determining the presumptive amount of child support owed, a
court may, in its discretion, deviate from the standard calculation. RCW
26.19.075(1)(a); Griffin 114 Wn.2d at 776. Expenses such as health care
and long-distance transportation for visitation are not included in the basic
child support obligation. RCW 26.19.080(3). A trial court has the
discretion to determine the necessity and reasonableness of these
expenses. RCW 26.19.080(4). However, if such expenses are awarded,
they must be shared by the parents "in the same proportion as the basic
child support obligation." RCW 26.19.080(3); In re Yeamans, 117 Wn.
App. 593, 599-600, 72 P.3d 775 (2003). This language is mandatory and
generally allows no room for the court's exercise of discretion. In re
Marriage of Scanlon, 109 Wn. App. 167, 181,34 P.3d 877(2001). If the
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trial court does not deviate from the basic child support obligation, then it
cannot deviate from that proportion when allocating the extraordinary
expenses. Yeamans 117 Wn. App. at 601.
Here, the trial court imputed monthly net income of $9,330.16 to
Ryan and $4,083.33 to Juliet. Ryan's proportional share of the combined
net income was 70 percent and Juliet's proportional share was 30 percent.
The trial court granted a deviation from the basic child support calculation
as follows:
Pursuant to RCW 26.19.075, the child support amount ordered in
paragraph 3.5 reflects offsetting deviations from the standard
calculation for the following reasons:
1. Upward Deviation to Account for Respondent's Court-Ordered
Obligations. The court finds credible the respondent's testimony
that at this time, she may incur lost wages and additional costs due
to the obligations that the Florida court is imposing upon her in the
currently pending dependency litigation, including orders requiring
her to:(a) go to her own therapy and counseling sessions;(b)take
the children to therapy and counseling sessions and other court-
ordered appointments; and (c) take the children to court-approved
locations so that the children can visit with the petitioner via Skype.
The court therefore finds that it is appropriate and equitable to
increase the petitioner's support obligation by 15%($243 per
month), to help compensate the respondent for potential work time
that the respondent loses due to her compliance with orders of the
Florida court. On or after the earlier of the date on which (a) the
Florida court terminates the Florida dependency proceedings, or(b)
the Florida court substantially increases or decreases the above-
described obligations of the respondent, either party may seek an
order modifying the amount of the temporary increase described in
this paragraph 3.7.1. This provision is subject to any future
adjustment or modification by this court or by the Florida court,
which for the time being has ceded jurisdiction to this court with
respect to child-support issues.
2. Downward Deviation for Petitioner's Transportation Long-
Distance Transportation Expenses. Based upon the request of the
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No. 75512-9-1
respondent during trial, however, the court finds that it is
appropriate and equitable to reduce the petitioner's child support
obligation by allowing the petitioner a credit to satisfy the
respondent's obligation to pay her proportional share of the long-
distance transportation costs that the petitioner is expected to incur
in traveling between Washington and Florida for purposes of
visiting the children. The court finds that it is equitable to allow the
petitioner a credit in the amount of 15% per month ($243 per
month), which shall be taken in the form of a reduction of the
petitioner's child support payment. The petitioner shall provide the
respondent with documentation for all actual long-distance
transportation charges that he incurs. This provision is subject to
any future adjustment or modification by this court or by the Florida
court, which for the time being has ceded jurisdiction to this court
with respect to child-support issues.
These off-setting deviations result in a child support transfer
payment equal to the standard calculation as found on the child
support worksheets incorporated herein.
Here, the trial court appeared to acknowledge that each party bore a
unique financial burden — Juliet was responsible for transporting the
children to Skype visits and therapy appointments ordered by the Florida
court, while Ryan was responsible for traveling to and from Florida to see
the children. It appears that the trial court attempted to offset each of these
burdens while allowing Juliet and Ryan to avoid the reimbursement
provisions of RCW 26.19.080. But this was not within the trial court's
authority to do. A trial court has the discretion to award, or not award,
payment for long-distance transportation expenses. Here, the order of
child support does not reflect an award of transportation expenses; on the
worksheet used to calculate the transfer payment amount, the space for
long-distance transportation expenses is blank. Had the trial court chosen
to award transportation expenses, it was required by statute to apportion
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No. 75512-9-1
them in the same proportion as the basic child support obligation: 70
percent to Ryan and 30 percent to Juliet.
Moreover, Juliet's potential loss of income due to the time spent
transporting the children to visits and appointments is not a proper basis for
a deviation. If Juliet cannot work full time, the appropriate remedy is for the
trial court to impute her income at an adjusted level during the dependency
proceedings, resulting in a lower combined monthly net income and a
change in the relative percentage allocation. The trial court may then
consider a proper basis for deviation.
Accordingly, we remand to the trial court to clarify whether it
intended to award long-distance transportation expenses and to reconsider
its decision to grant any deviation in accordance with RCW 26.19.080.2
V
Ryan contends the trial court erred in distributing the parties' assets
and liabilities. In a dissolution proceeding, all property, both community
and separate, is before the court for distribution. In re Marriage of Brewer,
137 Wn.2d 756, 766, 976 P.2d 102(1999). The trial court has broad
discretion to make a just and equitable distribution of the property based on
the factors enumerated in RCW 26.09.080.3 In re Marriage of Rockwell,
2 It appears that the trial court did not actually intend to deviate from the basic child
support obligation, noting that the upward deviation and the downward deviation did not result in
a change in the transfer payment. Nothing in this opinion precludes the trial court from choosing
not to deviate from the basic child support obligation on remand.
3 This provision provides, in pertinent part, for the following:
In a proceeding for dissolution of the marriage... the court shall, without regard
to misconduct, make such disposition of the property and the liabilities of the
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141 Wn. App. 235, 242-43, 170 P.3d 572(2007). A division of property
need not be precisely equal; rather, it must be fair to both parties
depending on their circumstances at the time of dissolution. RCW
26.09.080. A trial court does not abuse its discretion by awarding the
separate property of one spouse to the other spouse, so long as the award
results in a just and equitable distribution of assets. In re Marriage of Irwin,
64 Wn. App. 38, 48, 822 P.2d 797(1992). Because the trial court is in the
best position to determine what is fair and equitable, its decision will be
reversed only upon a showing of a manifest abuse of discretion. In re
Marriage of Buchanan, 150 Wn. App. 730, 735, 207 P.3d 478 (2009).
Ryan first contends that the trial court erred in characterizing his
retirement accounts as community property.4 Here, the trial court found as
follows:
Fidelity 401k Account ****9766.(Ex. 307 [Interrogatory No. 38(d)&
(e)]). The court finds that this asset consists partly of community
property funds and partly of separate property funds. The
community property portion is $24,361, which is the difference
between the $75,771.52 balance on the Date of Separation (which
parties, either community or separate, as shall appear just and equitable after
considering all relevant factors including, but not limited to:
(1) The nature and extent of the community property;
(2)The nature and extent of the separate property;
(3) The duration of the marriage or domestic partnership; and
(4) The economic circumstances of each spouse or domestic partner at
the time the division of property is to become effective, including the desirability
of awarding the family home or the right to live therein for reasonable periods to a
spouse or domestic partner with whom the children reside the majority of the
time.
RCW 26.09.080.
4 Ryan also contends that the trial court erred in characterizing Juliet's retirement
accounts as separate property. It is unclear to what Ryan is referring, given that the trial court's
findings do not include any reference to Juliet's separate retirement accounts.
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No. 75512-9-1
is also the valuation date of this asset) and the $54,410.82 balance
on the Date of Marriage. The $24,361 community property portion
would be awardable equally to each spouse, but the court finds that
it is fair and equitable to award an additional $1,000 of the
petitioner's share of the community property portion of this asset to
the respondent as compensation for the petitioner's failure or
refusal to return the respondent's piano to her(See Paragraph
2.10, below). The community property portion of this asset
therefore is awarded and credited as follows: $11,181.00 to the
petitioner, and $13,180.00 to the respondent. The remainder of the
balance in the account is awarded and credited to the petitioner as
his separate property.
Fidelity Roth IRA Account ****4575.(Ex. 307 [Interrogatory No.
38(e)]). The court finds that this asset consists partly of community
property funds and partly of separate property funds. The
community property portion is $296, which is the difference
between the $10,043.83 balance on the Date of Separation (which
is also the valuation date of this asset) and the $9,747.40 balance
on the Date of Marriage. The $296 community property portion is
awarded and credited equally to each spouse. The remainder of
the balance in the account is awarded and credited to the husband
as his separate property.
Ryan asserts that the amount of contributions into the 401(k) account
during the marriage totaled only $10,430.09. He contends that the trial
court erred in characterizing gains on the premarital portion of the
investments as community property. But Ryan did not designate any of the
relevant trial exhibits to this court for consideration on appeal. His failure to
provide those exhibits precludes consideration of his claim.
Ryan also challenges the trial court's decision to award Juliet
compensation for her piano. Juliet testified that she owned an electric
piano that cost between $3,200 and $3,800 when she purchased it. She
asserted that Ryan did not return the piano to her after the couple
separated but instead donated it to the Salvation Army. The trial court
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No. 75512-9-1
found that the piano was Juliet's separate property and awarded Juliet an
additional $1,000 of Ryan's share of the 401(k) account. Ryan argues that
Juliet testified that she did not want reimbursement of the piano "because I
just want the divorce to be finalized." But the evidence was undisputed that
Juliet owned the piano and Ryan disposed of it after the separation. The
trial court was entitled to award Juliet the value of the piano as part of its
fair and equitable distribution of assets.
Ryan next contends that the trial court failed to include utility bills
and thousands of dollars in loans from family members in its calculation of
community liabilities. But Ryan did not designate any part of the record
relevant to this claim except for a copy of a check for $2,012.20 made out
to the City of Carnation and signed by his mother, Sharon Vatne. The trial
court found that "Mlle petitioner's proposed assets and liabilities worksheet
indicates that" all debts to Sharon Vatne were "his separate property debt."
Ryan fails to demonstrate that this was an abuse of discretion.
Ryan argues that the trial court failed to consider income that Juliet
received in the form of reimbursement for medical expenses as well as
Juliet's 2013 tax refund. But the trial court divided all the funds in the
couple's multiple bank accounts. The record before us on appeal does not
show that the trial court failed to consider this income.
Finally, Ryan contends that the trial court erred in calculating his
income based on an incorrect federal tax withholding. Ryan fails to support
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No. 75512-9-1
this assignment of error with any argument, authority or citation to the
record. No appellate relief is warranted.
VI
Ryan argues that the trial judge demonstrated bias by awarding
Juliet the value of the piano, permitting Juliet to call witnesses by telephone
when he was not allowed to do so, and restricting the amount of time for
Ryan's questioning of witnesses.
There is a presumption that a judge performs his or her functions
regularly and properly without bias or prejudice. Kay Corp. v. Anderson, 72
Wn.2d 879, 885, 436 P.2d 459(1967). A party seeking to overcome that
presumption must offer evidence of a judge's actual or potential bias. State
v. Dominguez, 81 Wn. App. 325, 329, 914 P.2d 141 (1996).
Here, Ryan produces no evidence of bias. As discussed above, the
trial court was well within its discretion to award Juliet the value of the
piano. As for Ryan's claims regarding the questioning of witnesses, the
trial court has broad discretion to control the admission and presentation of
evidence. State v. Rehak, 67 Wn. App. 157, 162, 834 P.2d 651 (1992).
Ryan neither requested the opportunity to call witnesses by telephone nor
made any arrangements to do so. And because Ryan continually
attempted to question witnesses on subjects that were not in front of the
trial court, such as the welfare of the children, the trial court was well within
its discretion to limit the length and scope of Ryan's questioning.
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No. 75512-9-1
Affirmed in part, and remanded.
We concur:
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