Child Support Table May Be Used to Calculate Post-Secondary Support

A new decision from the state court of appeals, Division III, found that it was appropriate to use the child support schedule to determine post-secondary support.
In Goude v. Lieser, # 27753-4-III, the custodial parent filed a petition to modify child support and require the non-custodial parent to pay child support for an additional four years while the child was in college.
In determining whether to order post-secondary support, the court is required, per statute, to determine whether the child is dependent. If the answer is yes, then some level of post-secondary support is due. The amount and duration of support is then calculated based on a list of discretionary factors.
Those factors are: 1) the child’s age, 2) the child’s needs, 3) the expectations of the parties when the parents were together, 4) the child’s prospects and desires, 5) the nature of the post-secondary education sought, 6) the parent’s education, standard of living, and current and future resources, and 7) the amount / type of support that child would have received had the parent’s stayed together.
In this case, the child had graduated from high school and intended to live at home for two years while attending community college. The child then intended to transfer to Eastern Washington University.
To determine the amount of post-secondary support, the lower courts added the estimated cost of attending the community college (not including room and board), plus the basic child support obligation from the child support worksheet, minus the child’s anticipated earnings.
The appellate court affirmed.

Sovereign Immunity Does Not Apply to Quiet Title Action Regarding Real Property Subject to Continuing State Court Jurisdiction

A new case from division I, Stillaguamish Tribe of Indians v. Smale, docket # 6239-4, held that the state, not the tribe, had continuing jurisdiction over a piece of real property, even after the property was deeded to the tribe.
In this case, the plaintiffs filed a quiet title action in state court claiming they had acquired the property through adverse possession from the previous non-Indian owners.
The defendants then transferred ownership of the land to the Stillaguamish Tribe through a statutory warranty deed. The plaintiffs then joined the Tribe as a defendant. The defendants claimed sovereign immunity.
The doctrine of sovereign immunity states that an Indian tribe is immune from suit unless: 1) it has expressly waived its immunity; or 2) the US Congress has expressly abrogated the tribe’s sovereign immunity.
The Tribe argued that, because of the tribe’s sovereign immunity, the state court had no jurisdiction over the tribe, and therefore the tribe could not be sued.
The plaintiffs, on the other hand, argued that the basis of the state court’s jurisdiction over the matter was not personal, or in personam, jurisdiction over the tribe. Rather, it was in rem jurisdiction over the property. Sovereign immunity, therefore, did not apply.
The trial court found for the plaintiffs. The appellate court affirmed.

Ex-Husband Should Have Immediately Informed Ex-Wife that he was Receiving Retirement Benefits

A new case from Division III, In Re Marriage of Buchanan, awarded military benefits to the former spouse and reimbursement for health insurance costs that could have been covered by the military. It also awarded attorney’s fees based on intransigence.
The parties were married for twenty years, during which time the husband accrued medical and retirement benefits from the military. The decree of dissolution awarded the wife half the community interest in the husband’s military retirement.
About three years after the Husband retired, the now ex-wife learned that the now ex-husband was receiving the benefits. Litigation ensued. The trial court awarded the ex-wife the benefits and attorney’s fees.
Benefits included an annuity, payable upon the Husband’s death, and health insurance. To ensure that the ex-wife got the benefits, the trial court ordered the ex-husband to remove his current wife as the designated survivor and replace her with the ex-wife.
The trial court also ordered the ex-husband to reimburse the ex-wife the insurance premiums she paid during the three years she should have been insured by the military.
Finally, the trial court ordered the father to pay attorney’s fees based on intransigence – he should have notified the ex-wife as soon as he began receiving the benefits.
The appellate court affirmed.

In a Dependency, Absent a Showing of Actual Harm, DSHS Is Required to Provide Therapeutic Visitation Between the Children and the Mother

A new case from division three, in re Dependency of Tyler L. and Brenden B, No. 27033-5-III and No. 27034-3-III, found that the trial court’s failure to order therapeutic visitation between the children and their mother was an abuse of discretion.
Absent a showing of actual harm, the court reasoned, DSHS was required to provide therapeutic visitation services. Such services would assist with the child’s attachment disorder, help both children deal with stress generated by the visits, and help remedy parental deficiencies.

In a Custody Dispute Between a Parent and an Indian Custodian, the Child Shall Placed According to State Law

A recent case from division one, Custody of CCM, gives me the unique opportunity to blog my own case. I represented the appellants in this case. We won.

CCM pitted a non-Indian father against the Indian grandparents. I had the grandparents. Thus, the facts lay in the intersection between two sometimes contradictory statutes: the U.S. Indian Child Welfare Act and Washington’s third-party custody statute.

The case raised several issues: 1) Notice to the child’s Indian tribe, 2) Cure for defective notice, 3) The standard for determining where to place the child, and 4) Child support. We won on three of the four issues.

In terms of notice, the court held that ICWA requires that the child’s Indian tribe needs formal notice of any custody proceeding regarding the child. Formal notice means certified mail, return receipt requested, to the proper tribal authority. If the notice is defective in any way, the Tribe gets a new trial.

In terms of the placement standard, in a custody dispute between two parents, the state-law standard is best interest of the child. However, in a custody dispute between a parent and a non-parent, the standard for placing with the non-parent is much higher. The child is placed with the parent unless 1) the parent is unfit or 2) moving the child from the non-parent to the parent would cause the child actual detriment to his health and well-being.

I argued that this standard didn’t apply to the grandparents because they were the Indian custodians. Since ICWA treats parents and Indian custodians the same, the standard should be the same – best interest. I still think it is a good argument, but it lost. The court held that, where federal law – ICWA – treats the parties the same, the standard for which party gets the child is the state law standard.

Homestead Exemption Includes Contiguous Lot

A new case from the Court of Appeals, Division III, Marriage of Baker, docket # 27242-7 affirms and expands state law regarding the Homestead Act.

Over 100 years old, the Homestead Act was designed to protect the family home from creditors, regardless of financial misfortune. In its modern form, the act shields the first $125,000 of the home from levy and execution.

Thus, if you have a $400,000 home and someone files a lien, they can only expect to take $275,000 from the sale of the house, even if the lien is for more.

The issue here was whether the homestead included the house and the lot the house was built on, or, in addition, another contiguous lot owned by the same person. The creditor levied on the contiguous lot, but not the house and primary lot.

The trial court held that the homestead included the contiguous lot. The court of appeals affirmed.

Domestic Violence Statute Doesn't Apply to Persons in Dating Relationship Under Sixteen Years Old

A new case from the Court of Apeals, Neilson ex rel. Crump v. Blanchette, docket # 27066-1 (Division III), holds that the domestic violence statute does not cover acts between individuals in a dating relationship under the age of sixteen. The holding is based on the definition of “family or household members.”

“Family or household members” includes “persons sixteen years of age or older with whom a person sixteen years of age or older has or has had a dating relationship.”

Here, the alleged perpetrator was seventeen years old and the alleged victim was fourteen years old. The trial court overlooked this fact and entered a domestic violence protection order on behalf of the alleged victim. Among other restrictions, the order prevented the alleged perpetrator from attending the high school that he and the alleged victim both attended.

The court of appeals reversed, holding that the trial court lack authority to issue the order because the statute only applied to persons in a current or former dating relationship who were sixteen years old or older.

Gag Order on Domestic Violence Perpetrator Violates 1st Amendment

A new decision from the court of appeals, Division II, Meredith v. Muriel, Docket No. 37098-1, held that a permanent domestic violence protection order restraining the father from contacting the US Department of Homeland Security regarding the mother’s immigration status violated the first amendment.

The first amendment proscribes governmental prior restraint of protected speech. A prior restraint, or gag order, is an order that prevents the restrained person from saying something in the future. Protected speech is, essentially, anything that isn’t libelous, slanderous, or incendiary (e.g. shouting fire in a crowded theater).

In this case, the father, an assistant attorney general for the Commonwealth of Virginia, decided that he wanted an Internet bride. He then made contact with a 16-year-old from Colombia. When the girl turned 18, the father brought her over here, married her, and got her pregnant.

He also engaged in a pattern of domestic violence and abuse against her. The mother ended up in Pierce County and filed for dissolution. In the dissolution process, the father tried to intimidate witnesses and falsify evidence. He also tried to interfere with the mother’s immigration process.

Based on this past conduct, the court order restrained the father from contacting any government agency about the mother’s immigration status. The court of appeals remanded to the lower court with instructions to re-craft the restraining order so it didn’t restrain protected speech.

Mother Must Prove She Actually Incurred Daycare and Medicalcare Expenses

A new case from Division three, Fairchild v. Davis, Docket # 26818-6, ruled on the type of evidence necessary to prove that a parent actually incurred daycare and medical care expenses.

The child support statute provides that, where the transfer payment includes daycare and medical care costs, and those costs were not actually incurred, the person making the transfer payment is entitled to reimbursement if he has overpaid by at least twenty percent in a given year. RCW 26.19.080(3).

The statute doesn’t address what level of proof is required to establish that the expenses were actually incurred. This case addresses that issue.

Here, the mother, who was receiving support, submitted a declaration from herself, a statement of health insurance premiums, and a statement for orthodontia.

The commissioner concluded that the declaration was self-serving, and that the other “proof” was insufficient to establish that she actually incurred the expenses.

On revision, the court concluded that this level of proof was sufficient, because the mother was not required to keep detailed records of expenses over the years, reversing the commissioner.

The court of appeals reversed in turn, holding that more proof was required. In terms of daycare, the court held that “cancelled checks, prior tax returns, or declarations from childcare providers would have been more helpful.” In terms of medical expenses, details on co-payments, other medical expenses, and expenses actually incurred would have been more helpful.

An Agreed Order of Dependency Does Not Constitute a Voluntary Placement Under the Indian Child Welfare Act

A new case from the court of appeals, division II, In Re the Welfare of MG, # 36975-3, held that the initial involuntary foster-care placement of an Indian child per the Indian Child Welfare Act cannot be considered voluntary at a later date, even if the mother later agrees.

The purpose of the Indian Child Welfare Act is to prevent the break-up of Indian families by establishing minimum standards for the removal of Indian children from their homes. Different standards apply for involuntary removal versus voluntary placement.

In an involuntary proceeding, the tribe must be notified, the parents are entitled to appointed counsel, the state must offer remedial services to the parents, and the state must prove that failure to remove the child would result in serious physical or emotional damage to the child.

In a voluntary proceeding, however, the state need only ensure that the Indian parent is fully aware of the consequences of placing the child with others, and the parent can revoke permission in the future.

In this case, the mother had a serious problem with drug use. The child was born premature, underweight, and with symptoms of drug withdrawal. The mother signed an agreed dependency order, whereby the child could stay with the mother while the mother was in rehab., pending approval of the child’s medical care providers.

However, the child’s medical care provider did not approve because the child was too weak. The mother then attempted to revoke her consent. The court held that an agreed order of dependency was not a voluntary placement under ICWA.

Real Dad Must Pay Child Support

A new case from the court of appeals, In Re Parentage of M.K.R., 61138, division I, held that DCS has standing to file a petition challenging paternity whether or not there is a presumed father.

The ruling is a victory for the common-sense proposition that the actual father, as determined by DNA testing, ought to be liable for child support, as opposed to the presumed father, as determined by the person who was married to the mother at the time of the child’s birth.

The Washington Uniform Parentage Act, RCW 26.26 et. seq., makes a man the presumptive father of any child born to his spouse during marriage. That presumption becomes irrebuttable after two years, meaning that the husband becomes the legal father, even if he isn’t the biological father, if he fails to challenge paternity within two years.

However, at least four other parties have an interest in a given child’s paternity: the child, the state, the mother, and any other potential father. The child’s interest and the parent’s interests are fairly obvious. The state’s primary interest is the collection of child support so the child won’t go on welfare.

By statute, all these parties have standing to adjudicate their interests. This case clarifies that the state (DCS) has standing whether or not there is a presumed father. In this case, the presumed father neglected to deny paternity within the two year deadline. However, DCS did file within the two-year deadline.

The biological father, who did not want to be stuck with child support, argued that the presumed father’s failure to timely file was fatal and the presumed father was stuck with paying child support for someone else’s child.

The presumed father, on the other hand, argued that DCS’ timely filing of the petition effectively kept the window open for him, allowing him to avoid child support and make the biological father pay. The trial court agreed with the biological father.

The appellate court reversed.

New Case Undermines Predictability of Child Support Schedule

A new case from Division I, Marriage of Krieger and Walker, docket 01-3-02588-4, held that a court may order child support above the advisory amount established by the child support table without a showing of extraordinary need. This holding is consistent with the statute, which provides that a court has discretion to award child support in excess of the advisory amount upon written findings. (“Upon written findings” is a lower standard than “extraordinary need.”)

However, the holding is inconsistent with standard practice, and, at least in my view, case law. In my view, state law recognizes two categories of child-related expenses: 1) ordinary expenses / basic necessities, and 2) extraordinary expenses / other. Basic necessities includes food, clothing, shelter, utilities, diapers, school supplies, over the counter medicines, gas for driving to daycare, extracurricular fees, etc. Basic necessities are included in the presumptive transfer payment.

The other category includes everything else. In my opinion, it should be limited to identifiable, child-related services. Typically, these are paid to a third-party, such as a daycare provider, or a private school (tuition). If the parties live more than than, say, a two hour drive from each other, then long-distance educational expenses are generally in this category as well.

Typically, the extraordinary category is proportional – each party pays their proportional share, again based on the schedule. I think it should be paid directly to the service provider. I like this approach because it is “cookie cutter,” meaning that both attorneys are likely to agree to it and therefore child support can be established without much litigation expense.

Unfortunately, the new case casts considerable doubt on the cookie-cutter approach. In Krieger, the party receiving the transfer payment – Walker – submitted a budget for all her child-related expenses, which included: school supplies, school trips, school-required computer software, entertainment, health club dues, health insurance co-payments, non-prescription medicines, vacations, sports activities, music lessons, pets, birthday parties, and personal items such as clothing.
The Krieger court held that these expenses were not necessarily included in the transfer payment and that the support award should be based not on the children’s need as calculated by the child support table, but, rather, based on the actual expenses incurred by the mother.

Thus, at least in my view, Krieger defeats the purpose of the support table, which is to produce consistent and predictable results, and throws open the door to more litigation and therefore more acrimony and expense. Not a good result, in my opinion.