IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of

SCOTT JAMES MCGOWAN,

Appellant,

and

YELENA MCGOWAN,

Respondent.

No. 72427-4-1

DIVISION ONE

UNPUBLISHED OPINION

FILED: November 23, 2015

Trickey, J. — Scott McGowan appeals the trial court's order of child

support following the dissolution of his marriage to Yelena McGowan. Because

Scott fails to demonstrate any reversible error or abuse of discretion, we affirm.

FACTS

Scott and Yelena1 married in July 1998 and separated on July 11, 2013.

They have two sons, born in August 2000 and April 2005. In August 2013, the

trial court entered a temporary order providing for the children to reside with Scott

a majority of the time and spend every other weekend with Yelena. The court

also imputed income to Yelena and ordered her to pay child support to Scott. In

November 2013, a family court commissioner ordered Scott to pay monthly

spousal maintenance in an amount to be reduced based on increases in

Yelena's gross earnings. Before trial, the parties agreed to a parenting plan with

an equally shared residential schedule. The remaining issues for trial included

child support and the division of marital assets and debts.

1We refer to the parties by their first names, no disrespect is intended.

No. 72427-4-1 / 2

On June 11, 2014, the first day of trial, the trial court signed the agreed

parenting plan. At trial, both Scott and Yelena offered testimony and

documentary evidence to establish their respective incomes and expenses in

their separate households. Yelena also testified that she expected her monthly

expenses to increase significantly under the new permanent parenting plan. She

intended to move to an apartment with a separate bedroom for the boys and in a

location close to one of their schools. Yelena testified to her estimation of

increased expenses in rent, food, transportation, and other costs.

Ultimately, the parties stipulated to their respective gross monthly income

figures of $9,823.23 for Scott and $6,000.00 for Yelena. During closing

arguments, the parties clarified that they also stipulated to the monthly net

income figures listed in Scott's proposed child support worksheet. Scott asked

the court for a deviation from the standard calculation of child support based on

the shared residential schedule under RCW 26.19.075(1 )(d).

Based on the income figures in the worksheet as stipulated by the parties,

the trial court determined the standard calculation for both children to be

$1,533.82 from Scott and $1,071.18 from Yelena. The trial court determined

Scott to be the obligor parent and ordered him to pay Yelena a monthly transfer

payment of $1,533.82. The court denied Scott's request for a deviation from the

standard calculation, stating the following reason: "A deviation would result in

insufficient funds to support the basic needs of the children in the recipient

household."2

2Clerk's Papers (CP) at 884.

No. 72427-4-1 / 3

Scott appeals.3

ANALYSIS

We review child support orders, including rulings on requests for deviation

from the standard calculation, for abuse of discretion. In re Marriage of Bell, 101

Wn. App. 366, 370-72, 4 P.3d 849 (2000). A trial court abuses its discretion by

basing its decision on unreasonable or untenable grounds or by applying an

erroneous view of the law or incorrect legal analysis. In re Marriage of

Schnurman, 178 Wn. App. 634, 638, 316 P.3d 514 (2013). "This court will not

substitute its own judgmentfor that of the trial court where the record shows that

the trial court considered all relevant factors and the award is not unreasonable

under the circumstances." In re Marriage of Fiorito, 112 Wn. App. 657, 664, 50

P.3d 298 (2002).

RCW 26.19.075(1)(d) permits trial courts to deviate from the standard

statutorily-imposed child support schedules:

Residential schedule. The court may deviate from the standard

calculation if the child spends a significant amount of time with the

parent who is obligated to make a support transfer payment. The

court may not deviate on that basis if the deviation will result in

insufficientfunds in the household receiving the support to meet the

basic needs of the child or if the child is receiving temporary

assistance for needy families. When determining the amount of the

deviation, the court shall consider evidence concerning the

increased expenses to a parent making support transfer payments

resulting from the significant amount of time spent with that parent

and shall consider the decreased expenses, if any, to the party

receiving the support resulting from the significant amount of time

3A commissioner of this court referred to the panel Yelena's motion to strike and request

for sanctions based on certain factual assertions in an appendix to Scott's opening brief.

The panel has the ability to review the record designated on appeal and to determine the

facts relevant to a fair resolution of the issues presented. Accordingly, we need not

decide Yelena's motion to strike and we deny her request for sanctions.

No. 72427-4-1/4

the child spends with the parent making the support transfer

payment.

This deviation is discretionary, however, and deviation from the standard child

support schedules "remains the exception to the rule," to "be used only where it

would be inequitable not to do so." In re Marriage of Burch, 81 Wn. App. 756,

760, 916 P.2d 443 (1996); see also, Schnurman, 178 Wn. App. at 641 (deviation

under RCW 26.19.075(1 )(d) could be warranted when children share residential

time equally between parents, but "would still be discretionary and should focus

on the legislature's primary intent to maintain reasonable support for the children

in each household"). "Unless specific reasons for deviation are set forth in the

written findings of fact and are supported by the evidence, the court shall order

each parent to pay the amount of support determined by using the standard

calculation." RCW 26.19.075(2).

Scottfirst assigns errorto the statement in the child support order that "the

support obligation is based upon" Yelena's monthly net income of $4,173.99,

when the parties stipulated to a monthly net income of $4,928.89.4 He claims

that the trial court erred "[t]o the extent [it] relied on this erroneous income figure

to conclude that a deviation would result in insufficient funds in the mother's

household."5

But Scott concedes that the trial court properly listed Yelena's monthly net

income as $4,928.89 on the worksheet, which was attached and incorporated by

reference to the support order, and used $4,928.89 as her net income for

4 CP at 882-83, 892.

5 Br. of Appellant at 9.

No. 72427-4-1 / 5

purposes of determining the standard child support calculation. We also note

that the child support order lists Scott's monthly net income as $7,039.25, while

the worksheet lists his monthly net income as $7,522.46. Similarly, the support

order lists the standard calculation as $1,558.07 with a reference to "Worksheet

line 17," which in turn lists the standard calculation as $1,533.82, consistent with

the trial court's handwritten and initialed statement of the transfer payment on the

order.6 The parties do not dispute that the trial court used the income numbers

listed in the worksheet to determine the standard calculation of $1,533.82 as

listed in the worksheet, rather than $1,558.07 as listed in the order.

Because the trial court's handwritten statement of the transfer payment is

consistent, as Scott concedes, with the standard calculation resulting from the

higher monthly net incomes as listed on the worksheet, it appearsthat the order

of child support contains scrivener's errors in its statements as to Yelena's

monthly net income, Scott's monthly net income, and the standard calculation.

Scott does not seek remand for correction of these errors. And contrary to

Scott's claim, it is also clear that the discrepancy in the numbers listed in the

order does not implicate the court's decision regarding deviation.

According to RCW 26.19.075(1 )(d), the court "may not deviate" based on

the residential schedule "if the deviation will result in insufficient funds in the

household receiving the support to meet the basic needs of the child." Scott

challenges the trial court's finding here that "[a] deviation would result in

insufficient funds to support the basic needs of the children in the recipient

6 CP at 883, 894.

No. 72427-4-1 / 6

household."7 But Scott concedes that Yelena testified at trial to an estimated

increase of $1,635.00 in monthly expenses based on her increased residential

time with the children under the new parenting plan, for a total of $5,578.00 in

monthly expenses. The trial court was entitled to rely on her testimony, and we

do not weigh the evidence or credibility of witnesses. In re Marriage of Rich, 80

Wn. App. 252, 259, 907 P.2d 1234 (1996). Because, as Scott concedes,

Yelena's expected monthly expenses of $5,578.00 exceeds her monthly net

income of $4,928.89, the trial court did not err in denying his request for a

deviation under RCW 26.19.075(1 )(d) for the reason stated.

In essence, Scott argues that RCW 26.19.075(1 )(d) required the trial court

to compare the impact of a deviation in some particular amount on the total

financial circumstances of each household. We disagree. RCW 26.19.075(1)(d)

expressly provides that the trial court is to consider evidence concerning

increased expenses to the obligor parent and other such factors "[w]hen

determining the amount ofthe deviation" after first determining whether deviation

from the standard calculation is appropriate, not when determining whether to

deviate in the first instance, which is what Scott seeks here.8 Cf. State ex rel.

J.V.G.v. Van Guilder. 137 Wn. App. 417, 424, 154 P.3d 243 (2007) (under RCW

26.19.075(1 )(e), when parent seeks deviation based on support of children from

another relationship, court must consider "total circumstances of both

households" in deciding "whether a deviation is appropriate").

7 CP at 884.

8 (Emphasis added.)

6

No. 72427-4-1/7

Given Scott's resources and his reduced residential time with the children

under the new parenting plan compared with Yelena's increasing expenses

under the new parenting plan, the trial court's decision to deny Scott's request for

a deviation from the standard statutory calculation was not "inequitable." See

Burch, 81 Wn. App. at 760.

Scott also contends that the trial court erred by allocating to him 62

percent of health care and special child rearing expenses, rather than 60.4

percent as indicated on the child support worksheet and required by RCW

26.19.080(2) and (3). He further contends the trial court failed to properly

apportion his support obligation between the two children. Because he fails to

contend or demonstrate that he raised these issues in the trial court, we decline

to consider them for the first time on appeal. RAP 2.5(a); see In re Marriage of

Wallace. 111 Wn. App. 697, 705, 45 P.3d 1131 (2002).

Yelena requests an award of attorney fees based on her need and Scott's

ability to pay, as well as the arguable lack of merit in his appeal. See RCW

26.09.140; In re Marriage of Leslie. 90 Wn. App. 796, 807, 954 P.2d 330 (1998).

Exercising our discretion, we deny Yelena's request.

Affirmed. s=

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