IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON Inthe Matterofthe Marriage of, SUZUKO KOMI, Respondent,
and JOHN McKAY, 

### ) FILED: March 17,2014 u? Appellant. oi o§

»—« Appelwick, J. — Substantial evidence supports the trial court's determination 

### that McKay was voluntarily unemployed and the court's calculation of his imputed income. The record also establishes that the trial court considered the necessary 

### statutory factors in determining the residential provisions. Because McKay fails to demonstrate any prejudicial error or abuse ofdiscretion, we affirm the child support orderand thefinal parenting plan.
FACTS 

### Suzuko Komi and John McKay married in 1998 and divorced a short time 

### later. After Komi became pregnant with their daughter M., the parties remarried in 2000. Komi filed a dissolution petition on October 17, 2011. A four day trial began



### on September 24, 2012. The trial court's findings of fact and other evidence presented attrial supportthefollowing summary. 

### Before M.'s birth, McKay, withthe assistance of an attorney, prepared a "Sole 

### Parenting Agreement." On January 3, 2000, the parties signed the parenting 

### agreement, which provided thatMcKaywould have noresponsibilityfor the child. On No. 69631-9-1 

## DIVISIONONE S <f»S UNPUBLISHED OPINION s £o

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### FILED: March 17,2014 ,x> j§£No. 69631-9-1/2 the same day, the parties also executed a premarital agreement, providing, among otherthings, thatall income ofthe parties would remain separate property. McKay did not believe that the parenting agreement had any legal effect, but he never provided any financial support for M. or Komi. Komi paid for all housing 

### costs, including mortgage payments, food and clothing, day care and medical insurance for M., and all extracurricular expenses. The parenting agreement also specified that McKay and Komiresided at separate locations. In2004, inaccordance with the terms ofthe premarital agreement, McKay quitclaimed to Komi any interest that he had in her house. Although McKay claimed otherwise, substantial evidence 

### supports the trial court's finding that prior to June 2011, McKay had only sporadic contactwith M. and assumed no regularparental responsibilities. 

### McKay earned a Ph.D. in biology from the University ofWashington in 1981. From 1981 to about 1991, he participated in a series ofpost-doctorate fellowships at 

### Brown University, Fred Hutchinson Cancer Research Center, and University of 

### Washington. During this period, McKay'sannual income rangedfrom $0 to $27,996. In about 1991, McKay determined "that his research career in the highly 

### mobile filed of biology was stalled" and "made the rational decision to move into computers, hoping to develop a computerprogram with value." McKaybecame selfemployed as a computer consultant. From 1991 to 2007, his yearly income fluctuated between $560 and $28,885. McKay claimed that he voluntarily stopped working in2009.No. 69631-9-1/3 In June 2011, after spending the night at Komi's home, McKay refused to leave, despite Komi's repeated requests. His continued presence inthe homeforthe nextfour months had the effectofundermining the mother's authority overM. On October 4, 2011, McKay petitioned for a domestic violence protection 

### order, alleging that Komi was an abusive and violent parent. In support of the petition, McKayfalsely assertedthathe "share[d]" thefamily's homewithKomi. The court commissioner issued a temporary protection order, resulting in 

### Komi's exclusion from her home for a period of two months. The trial court later 

### dismissed the protection order on revision, subject to review following the guardian ad litem's (GAL) report. In reaching this decision, the court noted the conclusion in 

### the Family Court Services investigation that itwas likelythat McKay "has overstated his concerns and the child is not indangerfrom the mother." Carol Bailey-Medwell, the GAL,completed herreportin July 2012. 

### At trial, Bailey-Medwell testified that M. had confirmed one incident in which 

### Komi had slapped her. But, M. did not confirm most of McKay's accounts about Komi's alleged abusive behavior, including his description of the fudgsicle and dog vomit incidents. Bailey-Medwellexpressed concern that McKay's actions, including 

### bringingM. to three different mental health providers and refusal to supportM's long established structure and schedule, were inappropriately transmitting his negative 

### views about Komi to M. Bailey-Medwell did not observe anything in M.'s interactionNo. 69631-9-1/4 with Komi "that would indicate that there had been any serious incidents or some pattern there that interfered with [M.'s] ability to connectwith hermom." On October23, 2012, the courtentered findings offact and conclusions of law, the final parenting order, a child support order, and decree ofdissolution. The court found that although there was evidence that Komi "has thrown items, yelled and 

### slapped," the incidents did not "rise to the level of abuse." The parenting plan provided that M. would live with Komi for a majority ofthe time and with McKay on alternate weekends and forthree weeks during the summer. The courtgranted Komi 

### sole decision-making authority. In setting McKay's child support obligation, the trial 

### court found that McKay had chosen not to work since about 2007 and was therefore 

### voluntarily unemployed. The court determined that the record was insufficient to determine McKay'spastfull-time earnings and rate of pay and imputed income based

on the median netmonthly incometable. See RCW 26.19.071(6)(e). DISCUSSION I. Imputation of Income 

### McKay contends that the trial court erred in finding him voluntarily unemployed. He argues that he quit working at the appropriate age of 62, that his computerskillsand biologydegree are obsolete, that he was nearly 65 atthetime of trial, and that his social security retirement income will be similar to his historical
income.No. 69631-9-1/5 RCW 26.19.071(6) directs the trial court to impute income to a parent when the parent is "voluntarily unemployed or voluntarily underemployed." The trial court determines voluntary unemployment "based upon that parent's work history, education, health, and age, or any other relevant factors." jd. "Voluntary unemployment" generally means "that the unemployment is brought about by one's

own free choice and is intentional rather than accidental." In re Marriage of Blickenstaff. 71 Wn. App. 489, 493, 859 P.2d 646 (1993). We review the trial court's 

### determination of voluntary unemploymentforsubstantial evidence. In re Marriage of Didier, 134Wn. App. 490, 497, 140 P.3d 607 (2006). 

### McKayacknowledged thathe voluntarilystoppedworking several years before the dissolution trial. He did not identify any health restrictions that prevented him 

### from working. Although he alleged thatthe age of his biologydegree and the nature of his computerconsulting specialty made newemploymentdifficultto find, there was


### no evidence suggesting that he was unemployable. See Blickenstaff. 71 Wn. App. at 495. Substantial evidence supports the trial court's finding that McKay was voluntarily unemployed. 

### McKay also contendsthat the trial courterred in imputing income based on the median net monthly income table. Under certain circumstances, RCW 26.19.071(6) requires thetrial courtto impute income based on historical data: 

### (b) Full-timeearnings atthe historical rate ofpaybased on reliable information, such as employmentsecuritydepartmentdata; 

### (c) Full-timeearnings at a pastrate of pay where information is incomplete orsporadic.No. 69631-9-1/6 McKay claims that a 2008 social security statement provided reliable historical evidence of his incomefrom 1980to 2007 on which to base imputed income. McKay 

### does not identifyany otherevidence inthe record supporting this contention. The 2008 social security statement provides only the total amount ofMcKay's 

### earnings during the specified years. Even coupled with McKay's conclusory assertions that he worked "full[-]time" during this period, the statement does not establish his "full-time earnings" or past "rate of pay." Id. Because there was no 

### reliable evidence of McKay's historical full-time earnings or past rate of pay, the trial 

### court properly imputed income based on the median net monthly incometable. RCW 26.19.071 (6)(e). 

### McKay contends that the trial court erred by including a $535 Social Security 

### payment for M. in his income calculation because "Social Security ceases this payment, and allpayments, when father is employed at the level imputed." But, in accordance with RCW 26.18.190(2), the trial court properly included the social 

### security payment on M.'s behalfin McKay's income forpurposes of calculating child support and also credited the payment toward his support obligation. See In re Marriage ofBriscoe. 134Wn.2d 344, 349, 949 P.2d 1388, 971 P.2d 500 (1998).

II. Exclusion ofExpertWitness 

### On thefirstday of trial, McKaysoughtpermission to callpsychologist Dr. Gary Wiederas an expertwitness at trial. Afterthe GALissued her report, McKay took M. to Dr. Wieder. In his declaration, Dr. Wieder reported that M. had told him "'that her

-6-No. 69631-9-1/7 father told her that the GAL said that he did not tell the truth about certain events that occurred last summer.'" The trial court found that in doing so, McKay had inappropriately sought to draw M. into the litigation. Dr. Wieder also stated that his declaration about his meeting with M. was "'not meant to allege that reported acts have occurred and representfact.'" The trial court denied the motion and excluded Dr. Wieder as an expert witness. An appellate court reviews the trial court's decision to exclude expert testimonyfor an abuse ofdiscretion. See Statev. Kirkman. 159Wn.2d 918, 927, 155 P.3d 125 (2007). On appeal, McKay contends that the trial court erred in excluding the proposed expert witness as a discovery sanction without considering the factors set forth in Burnet v. Spokane Ambulance. 131 Wash.2d 484, 494, 933 P.2d 1036 

### (1997). See also Jones v. City ofSeattle Wn.2d , 314 P.3d 380 (2013). But McKay fails to analyze the Burnet factors in light of the specific facts of this case. The trialcourtconsidered the proposed testimony inextensive detail on at leastthree 

### separate occasions. McKay fails to identify oraddress the court's detailed discussion 

### and reasoning inreaching the decision, includingthe timing of McKay's request, his failure to adhere to discovery schedules and delay in retaining a new attorney, the substance ofthe proposed testimony, and the need to resolve the pending parenting 

### issues. Underthe circumstances, McKaymakes no showing thatthe trialcourterred 

### in excluding the proposed testimony. See Saunders v. Lloyd's of London. 113 Wn.2d

-7-No. 69631-9-1/8 330, 345, 779 P.2d 249 (1989) (appellate court will decline to consider issues unsupported by cogentlegal argument and citation to relevant authority). Moreover, the trial court repeatedly observed that the proposed testimony would notbe helpful to its assessmentofthe disputed issues attrial. The court noted that the primary issues, including McKay's challenge to the adequacy of the GAL report, involved factual disputes between Komi and McKay about the occurrence of certain events. Dr. Wieder did not purport to offer any assistance in resolving those critical factual disputes and his proposed testimony would have been cumulative of 

### certain issues. Consequently, even if McKay could demonstrate a Burnet violation, the error was harmless. See Jones. 314 P.3d at 397 (Burnet violation harmless where proposed testimonywas harmless or cumulative).

III. Parenting Plan 

### McKaycontendsthatthe trial courtdeterminedthe residential provisions of the parenting plan without considering the required statutory factors and relied on a deficient GAL report. We disagree. When the limitations of RCW 26.09.191 are not controlling, RCW 

### 26.09.187(3)(a) requires the trial court to consider the following factors when determining residential provisions: 

### (i)The relative strength, nature, and stability ofthe child's relationship with each parent; 

### (ii) The agreements ofthe parties, provided theywere entered into knowingly and voluntarily; 

### (iii) Each parent's pastand potentialforfuture performance of parenting functions ... including whethera parenthas taken greaterNo. 69631-9-1/9 responsibilityfor performing parenting functions relating to the daily needs ofthe child; (iv)Theemotional needs and developmental level ofthe child; 

### (v)The child's relationship withsiblings and withothersignificant adults, as well as the child's involvementwith his orherphysical surroundings, school, or othersignificantactivities; (vi)Thewishes ofthe parents and thewishes of a childwho is 

### sufficientlymatureto express reasoned and independentpreferences as to his or her residential schedule; and (vii) Each parent's employmentschedule, and shall make accommodations consistent with those schedules. The court shall accord the firstfactor the greatestweight. RCW 26.09.187(3)(a)(vii). 

### We review parenting plan provisions for an abuse of discretion. See In re Marriage ofLittlefield. 133Wn.2d 39, 46, 940 P.2d 1362 (1997). When evidence and 

### written findings of fact reflect consideration of the statutory factors, the trial court 

### need notenterspecific findings. Inre Marriage ofMurray. 28 Wn. App. 187, 189, 622 P.2d 1288(1981). 

### McKay contends that the trial court failed to consider M.'s emotional needs, her residential preferences, and the parents' employment schedules. But, McKay has not assigned error to or specifically challenged the trial court's parenting plan findings, primarilyfindings 2.21A-M. Thefindings are therefore verities on appeal, in

re Estate of Jones. 152 Wn.2d 1, 8, 93 P.3d 147 (2004). Moreover, substantial 

### evidence supports all ofthe court'sfindings of fact. 

### Among other things, the trial court flatly rejected McKay's claims of having played major or significant roles in M.'supbringing and allegations that Komi was an abusive parent. McKay saw M. only sporadically and had assumed no significant 

### parenting responsibilities for most of M's life, and the court was clearly aware that McKay had not worked for several years. The findings also reflect the court'sNo. 69631-9-1/10 determination that McKay had undermined Komi's long-exercised authority by refusing to leave her home for four months and then misrepresenting the nature of the parties' relationship in seeking a protection order. The court found that in his attempt to prove allegations of domestic abuse and violence, McKay had inappropriately drawn M. into the litigation. Finally, the GALtestified that M. should spend more time with McKay during the summer, and the trial court eventually extended the summervacation schedule from two weeks to three weeks. Viewed in light ofthe parties' arguments and the evidence at trial, the findings offact reflect the court's consideration ofthe child's emotional needs and residential preferences, the parties' employment schedules, and all of the remaining statutory factors. Thetrial courtdid not abuse its discretion insetting the residential schedule.

IV. Domestic Violence and Child Abuse Findings 

### McKay contends that the trial court erred by failing to enter findings of fact addressing whether Komi committed acts of domestic violence. See RCW 26.09.191. He further asserts thatthe trial courtfailed to enter "directfindings" on his allegations that Komi committed child abuse. Because he cites no authority to supportthese claims, we need not address them. We note, however, that the trial court expressly found that Komi's 

### acknowledgementofincidents involving a slap, the throwing of items, and yelling, did not "rise to the level of abuse." Moreover, to the extent that McKay was advocating 

### for findings ofdomestic violence and abuse, he bore the burden of proof at trial. The absence of a finding on a disputed issue is considered a finding against the party 

### having the burden of proof. Wallace Real Estate Inv.. Inc. v. Groves, 72 Wn. App.

-10-No. 69631-9-1/11 759, 773 n.9, 868 P.2d 149, affd, 124 Wn.2d 881, 881 P.2d 1010 (1994); In re Marriage ofWilliams. 156Wn. App. 22, 29, 232 P.3d 573 (2010).

V. GAL Report McKay contends that the trial court erred in relying on the GAL's report. Among other things, he alleges that the GAL ignored significant evidence, made various factual errors and erroneous assumptions, failed to investigate critical issues and contact important witnesses, reached unsupported conclusions, failed to list the materials she considered, and demonstrated bias and unfairness. But, the GAL testified at trial. McKay's counsel cross-examined her at great length about the bases for her various conclusions. McKay's arguments about the alleged deficiencies are properly directed to the trier of fact. To the extent that the trial courtfound the GAL's testimony and report credible, its decision is unreviewable. We must defer to the trier of fact on issues of conflicting testimony, credibility of witnesses, and the persuasiveness of the evidence. State v. Walton. 64 Wn. App. 410, 415-16, 824 P.2d 533 (1992). VI. GAL Fees McKay contends that the trial court erred in ordering him to pay two-thirds of the GALfees. Originally, thefamily law commissionerordered Komi to paytwo-thirds of the fees and McKay to pay one-third. On revision, the trial court reversed the allocation offees requiring McKay to pay two-thirds and Komi one-third, "subject to revision at trial." McKay argues that the trial court's failure to modify the allocation following trial violated RCW 26.12.175(1)(d), which permits the court to allocate the fees "according to [the parties'] ability to pay."

-11-No. 69631-9-1/12 Although McKay disputed the amount attrial, he submitted evidence indicating 

### that he had substantially more funds inbankaccounts than did Komi. Consequently,

even though Komi had a slightly higher net income, there was evidence inthe record 

### that McKay had significantly more liquidassets to pay the GALfees. McKay fails to demonstrate that the trial court failed to consider the parties' ability to pay when allocating the GALfees or otherwise erred in not modifying the allocation following trial. McKay's briefs contain numerous additional allegations of trial court error. Because McKay fails to support these conclusory allegations with legal argument, citation to relevant authority, or accurate references to the record, we decline to considerthem. VII. Attorney Fees on Appeal McKay, who has represented himself on appeal, has requested an award of costs and statutory attorney fees. See RAP 14.3. Because he is not the prevailing party on appeal, the request is denied. RAP 14.3. Komi's request for attorney fees based on a frivolous appeal is also denied. See RAP 18.9(a). Affirmed.

WE CONCUR:

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