### FILED AUGUST 13, 2013 In the Office ofthe ClerkofCourt W A StateCourt ofAppeals, Division III

INTHE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE INRE THE MARRIAGE OF: ) DEBRA R. GORE, ) No. 30831-6-111 ) Respondent, ) ) and ) ) UNPUBLISHED OPINION JOHN E. JONES, ) ) 

## j Appellant. ) KORSMO, C. J.

- This appeal from a supportmodificationhearingprimarily 

## j presentsthe question ofwhethertheparties' respective incomes were correctly calculated 

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# I for purposes ofsetting child support. Wereject appellant's arguments and affirm. FACTS 

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# j Few facts are necessary to the resolution ofthis appeal and, where necessary, they 

# I J

.generally are discussed inthe course ofour analysis. The parties are bothphysicians practicing in Spokane. Respondent Debra Gore is a family practitioner employed by 

# I Group Health. Appellant John Jones is anemergency room physician whoworks under contract atboth Deaconess Hospital in Spokane and at the Colville Medical Center. 

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## I The couplehas three children, including a pair oftwins, who reside with Dr. Gore. 

# I Child support for Dr. Jones initially was set at $1,152.12 permonth. When the twins

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# 1 reached the age of 12, Dr. Gore movedtomodifythe existingpayment onthebasis ofthe 

## 1 INo. 30831-6-111 Marriage ofGore & Jones

two older children moving to a higher category in the support tables. Dr. Jones argued that changed financial circumstances supported a recalculation ofthe respective obligations ofthe parents. The matter was heard by a Spokane County Superior Court commissioner. No live**t~stimony** was taken, but the court considered declarations from the parties and heard argument from counsel. After deductions, the court found Dr. Jones's monthly income to be $16,037 and Dr. Gore's monthly income to be $9,031. Onthe basis ofthese respective income levels, Dr. Jones was orderedto pay a total of$2,208permonth. Dr. Jones's motionto reconsider was denied and his motion to revise the commissioner's ruling was rejected as untimely. Hethen timely appealed to this court. ANALYSIS The appeal presents several challenges to the process used by the commissionerto calculate the parties' respective incomes. The basic issues stem from the fact that while Dr. Gore is a salaried employee, Dr. Jones is self-employed and therefore different methodologies apply to the calculation oftheirrespective monthly income levels. We will considerthe challenges to the computation ofDr. Gore's income before considering the arguments relating to Dr. Jones's income. The standards governing our review ofthese matters are well settled. This court reviews child support orders for an abuse ofdiscretion. In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). Discretion is abused when it is exercised on 2No. 30831-6-111 Marriage ofGore & Jones
untenable grounds or for untenable reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). Substantial evidence must support the trial court's factual findings. In re Parentage of Goude, 152 Wn. App. 784, 790,219 P.3d 717 (2009). This courtwill not substitute itsjudgment for trial courtjudgments ifthe record shows the court considered all relevant factors and the award is not unreasonable under the circumstances. Griffin, 114 Wn.2d at 776. Generally, a trial court may modify a child support order "only upon a showing of
a substantial change ofcircumstances." RCW 26.09.170(1)(b). However, an order of child support may be modified one year or more after ithas been enteredwithout a . showing ofsubstantially changed circumstances "ifa party requests an adjustment in an order for child support which was based on guidelines which determined the amount of support according to the child's age, and the child is no longer in the age category on which the current support amount was based." RCW 26.09. 170(6)(b). Before modifying child support payments, the trial court must consider "all factors bearing upon the needs ofthe children and the parents' ability to pay." In re Marriage of Pollard, 99 Wn. App. 48, 52, 991 P.2d 1201 (2000). "[T]hetrial court applies the uniform child support schedule, basing the support obligation on the combined monthly incomes ofbothparents." Id. (citing RCW 26.19.020, .035(1)(c), .071(1».

3No. 30831-6-111 Marriage ofGore & Jones
Dr. Gore Dr. Jones argues that the commissioner erred by not considering the cost of employer-paid benefits as part ofDr. Gore's income and also by not imputing additional income to her based onherhours ofwork. Those complaints will be addressed inthe order stated. Benefits. Dr. Jones argues that Dr. Gore's annual income should reflect $40,000 worth ofemployer-paid benefits, primarily consisting ofthe employer's contribution toward herhealth care coverage and to her deferred compensation program. He contends that the statute mandates attribution ofthe cost ofthese benefits as income to Dr. Gore. We disagree. At issue is RCW 26.19.071(3), whichprovides in relevant part: (3) Income sources included in gross monthly income. Except as specifically excluded in subsection (4) ofthis section, monthly gross income shall include income from anysource, including: (a) Salaries; (b) Wages; (d) Deferred compensation; (t) Contract-relatedbenefits (Emphasis added.) Dr. Jones alleges boththat the statute defines contributions to the deferred compensationplan as income and that the employer's costs ofbenefits are "contractrelated benefits." His arguments misreadthe statute. As noted above, subsection (3) 4

### No. 30831-6-111 Marriage ofGore & Jones
defines "gross income" as "income from any source, including" deferred compensation. Key to this definition is the word "income." Only "income" from deferred compensation
or from the contract-relatedbenefits is to be considered. A contribution to a deferred compensation program is not income as itresults in no immediate payment to the employee. Indeed, consideringthe employer's contribution as income would result in a

. double counting-the contribution would be "income" when it was made by the

employer and would also be "income" again when the employee receives payment in the future. Dr. Jones also cites no relevant authority that suggests that the costs ofan employer's contributions to an employee's benefits are "income"to the employee. While the legislature is free to direct that some measure ofbenefit expenditure orreceiptbe included in evaluating a support obligation, it has not done so except to the extentthatthe benefit constitutes income to the employee. Itis understandable why. Payments toward the costs ofa future benefitpresent no liquid asset that the parent could currently use toward a support obligation, which, ofcourse, is the purpose ofthis statutory exercise. Measuring the value ofa benefit also could be very difficult. The value ofa benefitto the employee may be far greater (or lower) than the cost ofthe benefitto the employer. For instance, many group plans require an employer to make contributions on a per employee basis regardless ofwhetherthe employee uses the benefit or not. A family may have overlappingbenefits available from different employers and only use the benefit 5No.30831-6-III Marriage ofGore & Jones
that is most appropriate to them. Should the cost ofthe unused benefit be attributed as "income"to the employee eventhough it is ofno true value to the employee? What if, instead, Group Health provided a far better health benefit than Dr. Gore and her children needed or desired? Would the court be requiredto attribute the benefit atthe level ofits valueto her or at its value to someone else? Accepting Dr. Jones's argument here would have consequences across a wide variety offact patterns that are best addressed by the legislature. Fundamentally, this
case is resolved solely on the basis ofthe plain language ofthe statute. The statute does not define "income," but does explain various sources ofincome that either mustbe considered (RCW 26.19.071(3» or not considered (RCW 26.19.071(4». All ofthe listed
sources reference cash-typepayments to the recipient orthe equivalent ofcash such as food stamps. These listings all suggest the typical definitions of"income" found in the dictionary. Those include (1) "again orrecurrent benefit that is usu. measured in money" or(2) the "value ofgoods and services received." WEBSTER'S THIRD NEW INTERNATIONALDICTIONARY at 1143. We do not believe payments made by an employerto purchase a benefit are "income"to the employee. While not exclusive, the income sources listed in RCW 26.19.071(3) for consideration by the trial court are typically sources ofcash payments to the recipient such as dividends, interest, and unemployment compensation. The 

### 6No. 30831-6-111 Marriage ofGore & Jones legislature could easily have included commonbenefits such as health insurance ifit desired thatthey be included as "income." Instead, the legislature seemed more interested in capturing value received from active and passive sources rather than valuing benefits received. In this manner, itparallels the United States tax code in its broad definition ofincome. 26 U.S.C. 

### § 61. However, despite the broad definition, the federal tax code excludes health insurance from the definition of"income." 26 U.S.C. 

### § 106(a). Nothing in our statute indicates that Washington intends to treat employer-provided benefits differently than the federal governmenthas done. The legislature has not defined employer-paid benefits as income, nor has it provided any measure for valuing such benefits. As currently written, this aspect ofour child support schedules does nottreatthe employer's cost ofhealth insurance as income to the employeeparent. Instead, it simply treats cash-type income received from the various listed sources as income available for child support. The trial court correctly did not attribute Group Health's payments toward benefits as income to Dr. Gore.) ImputedIncome. Dr. Jones makes parallel arguments that the trial court erred by not imputing additional income to Dr. Gore and by treating his hours ofwork as similar

I Since the W-2 wages (box 1) for Dr. Gore are higher than her base salary, it would appear that some employer benefits were treated as income for federal reporting purposes. The W-2 wages were used both for her income tax return and to compute her monthly child support obligation. 7No. 30831-6-111 Marriage ofGore & Jones

to hers for purposes ofthis statute. We find no abuse ofdiscretion in treating the couple in the manner in which they have always worked. The trial court found that Dr. Gore was employed at 0.7 full-time employee (FTE) with a typical workweek of31 hours. She hadbeen employed at 0.6 FTE at the time of the dissolution. The trial court also found that Dr. Jones worked far less hours perweek than Dr. Gore, noting that he had only worked 86 hours (20.5 perweek) in January 2012. The court concluded thatneitherparty was employed full-time and that it was not appropriate to impute income to either side. RCW 26.19.071 states in relevantpart: (6) Imputation ofIncome. The court shall impute income to the parentwhen the parent is voluntarily unemployed orvoluntarily underemployed. The courtshall determine whether the parent is voluntarily underemployed orvoluntarily unemployed based upon that parent'swork history, education, health, and age, or any otherrelevant factors. A court shall not impute income to a parent who is employed on a full-time basis. "Voluntary underemployment" has not been defined in Washington, butwe believe that it should be treated similarly to voluntary unemployment that has been defined as "unemploymentthat is brought aboutby one's own free choice and is intentional rather than accidental." 

### In re Marriage ofBrockopp, 78 Wn. App. 441, 446 n.5, 898 P.2d 849 (1995). A court's decision on imputation ofincome due to voluntary underemployment is reviewed for abuse ofdiscretion. 

### In re Marriage of Wright, 78 Wn. App. 230,234,896 P.2d 735 (1995). 8No. 3083l-6-III Marriage ofGore & Jones
The court did not impute income to eitherparty. Thus, the refusal to consider Dr. Jones as a full-time worker is irrelevant to the determination ofhis income level and is only ofconsequence because it was a factor the court considered in refusing to impute additional income to Dr. Gore. We believe that the court properly considered the work history ofthe parties in its decision. Atthe time ofthe dissolution, Dr. Gore worked as a 0.6 FTE, and had increased that to .07 FTE atthe time ofthe modification hearing. Dr. Jones worked somewhere in the vicinity of20 to 25 hours perweek. No evidence was presented that showed what full-time hours would be for Dr. Gore in her family practice field or that Group Health
was willing to extend her to full-time. Dr. Jones provided a survey that suggested fulltime for his specialty was considered 30 to 35 hours. However, he never showed thathe worked that many hours or that his time in Colville should be treated the same as his time in Spokane for this purpose. On the whole, the record showed that the parties continued to earn in roughly the
same proportion that they had while married. Since neither appeared to be employed full-time within the meaning oftheirrespective specialties, the commissioner could-as she did--considertheir practice hours a "wash." Both were highly paidprofessionals who might have been able to work more, but there was no significant variance from their longstanding customary practices in terms ofhours ofemployment ortotal income. Instead, they were roughly maintaining theirpredissolution status quo. 

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The court had tenable reasons to decline to impute "full-time"wages to either party. There was no abuse ofdiscretion. The trial court did not errin its calculation ofDr. Gore's monthly income for purposes ofthe child support schedules. Dr. Jones Dr. Jones also argues thatthe court erred in two respects with regard to its calculation ofhis income. First, he contends the court erred in treating a pay stub as evincing only 11 months ofemployment ratherthan 12 months. Second, he argues that the court should have granted more business expense deductions from his income than it did. Again, we will address these arguments in tum. Monthly Income. This issue turns upon the meaning ofa pay stub. That document, labeled "Printable Pay Stub" indicates that it is for the pay period ending November 30,2011. Clerk's Papers (CP) at 230. The payperiod is not further defined in the document, but the parties andthe court treated the document as ifit was a payment for the entire month ofNovember 2011. The pay stub lists the total gross earnings for "Yearto Date" as $246,430.2 The trial court divided this figure by 11 to establish Dr. Jones's monthly income at $22,403. Dr. Jones moved to reconsider on the basis thatthe

2 Thepay stub indicates that itis solely for work done thatyear at Deaconess Medical Center and does not reflect any payment for work done in Colville. No document establishes Dr. Jones's income from his employment at Colville. 10No. 30831-6-111 Marriage ofGore & Jones
pay stub actually reflected a 12-monthperiod from December2010 through November 2011 in accordance with a handprinted notation on the top ofthe stub, which would have resulted in monthly income of$20,535.83. The court denied reconsideration without comment. Dr. Jones repeats his reconsideration argument here, contending that the trial court clearly erred by nottreating this pay stub as reflecting a 12-monthperiod in accordance with the handwritten notation. We disagree. The typical meaning of"yearto date" is the calendaryear, Le., from January 1to the present date. IfDr. Jones used a different year for business and tax purposes, he was quite free to establish that fact via his declaration
orinformation from his accounting department and/or his tax forms. He did not present any such information otherthan the handwritten notation ofunknown origin. Underthe circumstances, we think the trial court understandably did not creditthe information. More critically, this court is not in a position to find facts or substitute its judgment ofthe meaning ofthe evidence for that ofthetrier offact. Quinn v. Cherry LaneAuto Plaza, Inc., 153 Wn. App. 710, 717, 225 P.3d 266 (2009). We also have no authority to make the trial court believe evidence it chose notto believe in the first instance. Id. The trial court did not errby giving "yearto date" its common meaning. BusinessDeductions. Dr. Jones also argues thatthe trial court erred by not deducting all ofhis claimed business expenses when it establishedhis monthly income 11No.30831-6-III Marriage ofGore & Jones
for supportpurposes. We conclude that the trial court acted within its authority in only partially accepting the claimed expenses. Dr. Jones claimed monthly business expenses of$969.75 related tohis work in Spokane3 and an additional $287.00 related solely to his work in Colville.4 In his child support worksheet filed the same day, he claimed business expenses ofonly $711.00 The trial court noted that before becoming self-employed, Dr. Jones claimed monthly business expenses ofonly $590.00 Since some ofthe requested expenses also would reduce his tax obligations, the court indicated it would only allow $800.00 for business expenses in the absence ofa tax return. To do otherwise would effectively allow double counting ofthe expenses. Given the varyingrequests, we do notbelieve the trial court erred in allotting $800.00 for the requested business expense deductions. The trial courtwas notrequired to accept the largestrequest ifit was not satisfied with the proof. Jd. That appears to be the situationhere. While the currentyear'stax return may have provided more information thatwould have clarifiedthe request, that information was notthen available

3These expenses also reflected his professional licensing requirements thatwould have application across bothjobs. 4Without having income from Colville to off-set, we question whether it would have been appropriate to considerthese claimed expenses. 12No. 30831-6-111 Marriage ofGore & Jones

tothe court orthe parties. Accordingly, we cannot say thatthe trial court erred in its assessment ofdeductible business expenses. 5 Dr. Jones has not establishedthat the trial court erred in determining his monthly income for child supportpurposes. Thejudgmentis affirmed. A majority ofthe panel has determinedthis opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.

Korsmo, C.J. WE CONCUR:

Brown, J.

5 Given the high earnings by the parties, it is unlikely that the deductions would have altered the ration oftheir respective contributions to the child support. 13