IN THE COURT OF APPEALS OF THE STATE OF WAS

DEON ANDREW LADSON, DIVISION II

Appellant,

v. PRISCILLA ELNORA MAXEY, Respondent. 

### IL EO 

# COURT OFAPPEALS DIVISION 11 20 PP.

### 10 

### AN 3: 40

No. 43733 -3 - II
UNPUBLISHED OPINION

BJORGEN, J. —Deon Andrew Ladson appeals the trial court' s denial of his motion for reconsideration of a final order of child support, which requires him to make payments to 

### Priscilla Elnora Maxey on behalfoftheir child, ORM - L. Ladson argues that the trial court erred 

### by (1) including certain payments Ladson receives fromthefederal government in his gross income for the purpose of calculating his child support obligation; (2) refusing to grant a deviation from the child support schedule due to Ladson' s obligation to support children from

other relationships; (3) misidentifying Ladson on the order as the respondent rather than the petitioner; (

### 4) including day care fees and private school tuition in Ladson's transfer payment to 

### Maxey ratherthan ordering the amounts paid directlyto the providers; and (5) failingto properly apportion certain extraordinary expenses between Ladson and Maxey. We reverse the trial 

### court's rulings on long distance transportation costs and on private . school tuition and remand for further proceedings not inconsistent with this opinion on those subjects. We affirm on all other issues.No. 43733 -3 - II FACTS



### Ladson petitioned the superior court for a residential schedule and parenting plan in August 2011 for ORM - L, a child he had fathered with Maxey. In her response, Maxey requested that the court also determine the parties' child support obligations. 

### Maxey and Ladson ultimately agreed to a final parenting plan. Because Ladson then resided in Georgia,the plan provided forvery limited visitation with ORM - L,who continued to 

### reside primarily with Maxey in Washington. The plan did not specifytransportation arrangements, however, stating instead that "[ t]ransportation costs are included in the Child Support Worksheets and / or the Order of Child Support and should not be included here." Clerk' s Papers (CP) at 97. The plan provided that majordecisions regarding ORM - L's health 

### care and religious upbringing would be madejointly,butthat Maxey had exclusive responsibility for major education decisions. 

### The court subsequently held a hearing on the child support issue. Ladson,then residing 

### in South Carolina, appeared telephonically and argued that he should not have any additional 

### supportobligationbecausetheSocial SecurityAdministrationpaysMaxey $234 permonthfor ORM - L' s support on Ladson's behalf. Maxeytestified that she had been paying for ORM - L to
attend private school since 2009, and that " Ladson did verbally agree to send her there," but Ladson immediately denied that he had so agreed. Verbatim Report of Proceedings (VRP) (May 3, 2012) at 6. 

### After considering additional financial information submitted by Ladson,the court entered

a final order of child support, directing Ladson to pay Maxey $1, 000 per month based on the 

### standard calculation. The order does not separately apportion responsibilityfor long distance

2raNo. 43733 - 3 -II 

### transportation expenses, stating that "all payments, except medical, are included in the transfer payment." CP at 114. The attached child support worksheet, however, shows that the court did 

### not include long distance transportation expenses in the calculation. The worksheet shows that the court did include $200 per month for 

### day care and $659 per month for "[ e] ducation
e] xpenses," the amount ofthe private school tuition, in the transfer payment calculation. CP at 124. 

### Ladson subsequently moved the court to reconsiderthe decision and requested a deviation from the standard calculation due to his dutyto support other children. In support of the motion, Ladson contended that the court should not have included his income from social 

### securityand veteran's affairs disability payments orthe private school tuition inthe calculation; that the court should have included uninsured medical and long distance transportation expenses in the calculation; and that the court should have ordered the day care expenses paid directlyto 

### the providers ratherthan including them in the transferpaymentto Maxey. The court denied Ladson' s motion for reconsideration, and Ladson appeals. ANALYSIS Ladson bases certain parts ofhis claims on clear misunderstandings ofthe governing law 

### andthe actions taken bythetrial court. He has failed to properly raise other claims by presenting neither argument nor authority in support ofthem and makes no showing that anotherclaimed 

### error amounts to an abuse ofdiscretion. Two claims that Ladson has properly preserved and argued, however, have merit and require remand. We first address those claims that clearly fail, then discuss Ladson' s meritorious claims.No. 43733 -3 - II I. STANDARD OF REVIEW



### We review atrial court's ruling on a motion for reconsideration for manifest abuse of discretion. Coggle v. Snow, 56 Wn.App. 499, 504, 784 P.2d 554 ( 1990). Appellate courts also 

### review child support orders for manifest abuse ofdiscretion, In re Marriage ofGriffin, 114 Wn.2d 772, 776, 791 P. 2d 519 ( 1990), 

### and will only reverse ifthe trial court's decision was 

### manifestly unreasonable or was based on untenable grounds or untenable reasons. In re Marriage ofLittlefield, 133 Wn.2d 39, 47, 940 P.2d 1362 ( 1997).

A court' s decision is manifestly unreasonable if it is outside the range of acceptable choices, given the facts and the applicable legal standard; it is based on 

### untenable grounds ifthe factual findings are unsupported by the record; it is based on untenable reasons if it is based on an incorrect standard or the facts do not meet the requirements of the correct standard. Littlefield, 133 Wn.2d at 47. Evidence suffices to support afinding offact ifit is of "sufficient
quantum to persuade a fair - minded, rational person ofthe truth of a declared premise." Helman 

### v. Sacred Heart Hosp., 62 Wn.2d 136, 147, 381 P.2d 605 ( 1963).

II. THE TRIAL COURT PROPERLY CALCULATED LADSON' S INCOME Ladson contends that all of his income qualifies as aged and disabled assistance benefits under RCW 26. 19.071( 4)( e) and (f)and argues that the trial court should therefore not have 

### included it when calculating his gross income for purposes ofdetermining his child support obligation. As the trial court pointed out to Ladson,the income at issue plainly does not fall 

### underthose statutory provisions, and Ladson's claim fails.

The relevant statute provides that "[ a] 11 income and resources of each parent' s household 

### shall be disclosed and considered by the court when the court determines the child support obligation of each parent." RCW 26. 19. 071( 1). The statute goes on to specify that "[ e] xcept as
4No. 43733 -3 -II



### specifically excluded in subsection (4) ofthis section, monthly gross income shall include income from any source" and gives a nonexclusive list of included types ofincome. RCW 26. 19. 071( 3). The examples include pension retirement benefits, workers' compensation, 

### unemployment benefits, social security benefits, and disability insurance benefits. RCW 26. 19. 071( 3)( n), ( o), ( p), ( s), ( t). Another provision specifically allows "[v]eterans' disability 

### pensions or regular compensation for disability incurred in or aggravated by service in the United States armed forces," to be considered " as disposable income for purposes ofcalculating the
child support obligation." RCW 26. 19. 045. The provision Ladson relies on specifies types of "income and resources [that] shall be disclosed but shall not be included in gross income." RCW 26. 19. 071( 4). The list includes s] uppleinental security income" and "[ a] ged, blind, or disabled assistance benefits." RCW 26. 19. 071( 4)( e), ( 1). Although the documents Ladson provided to the court concerning his financial situation are not in the record, it appears that his income of $ 6,316 per month derives from social security 

### benefits, retirement benefits, and disabilitybenefits from the DepartmentofVeterans' Affairs. Disability payments from insurance plans or other contribution - based compensation programs 

### qualify as gross income forpurposes ofcalculating child support obligations. See In re Marriage ofMaples, 78 Wn. App. 696, 701, 899 P. 2d 1 ( 1995), overruled in part on other grounds by In re Marriage ofMcCausland, 159 Wn.2d 607, 152 P. 3d 1013 ( 2007). Social security benefits for 

### persons with disabilities who paid into the social security system during theirworking careers do

not qualify as "` supplemental security income, "' a federally - funded, means -

tested program 

### equally available to all, regardless ofwhetherthey haveworked orpaid social securitytax. See
5No. 43733 - 3 -II Hammond v. Hammond, 26 Wn. App. 129, 131 -33, 611 P.2d 1352 ( 1980) (

### discussing the distinction between the two programs) (

### quoting Mathews v. De Castro, 429 U.S. 181, 186 n.6, 97 S. Ct. 431, 50 L. Ed. 2d 389 ( 1976)). Thus, under RCW 26. 19. 045, . 071( 3)( n), ( s) and (t), and 071( 4), 

### the trial court properly considered all ofthe disputed sources in calculating Ladson's gross income. III. THE TRIAL COURT DID NOTABUSE ITS DISCRETION IN REFUSING LADSON A DEVIATION Ladson argues that the trial court abused its discretion in denying his request for a deviation from the standard child support calculation due to his duty to support two children from other relationships. We disagree. 

### When aparent owes a duty to support children from other relationships, the relevant statute grants trial courts discretion as to whether or not to deviate from the standard calculation. RCW 26. 19. 075( 1)( e). A trial court, however, should deviate from the standard support amount only in exceptional circumstances " where it would be inequitable not to do so." Goodell v. Goodell, 130 Wn.App. 381, 391, 122 P. 3d 929 ( 2005). 

### A trial court may refuse to deviate from the standard calculation based on alackofinformationaboutthefinancial circumstances of- the children from other relationships. Goodell, 130 Wn.App. at 391 -92. 

### Ladson presented no evidence that any court or government agency had ordered him to make support payments on behalf ofother children or that he in fact makes such payments. Ladson merely asserts that " I actually send gifts when I can to all my children." Br. ofAppellant

at 16. The trial court considered Ladson' s arguments on this issue, and the evidence submitted in support of those arguments.

6No. 43733 -3 -II



### Ladson essentially argued thatthe payments the Social Security Administration makes on his behalfto the custodial parents ofhis other children qualify as child support payments, and that this should reduce his obligation to support ORM - L. While such payments would properly be deducted from his obligation ofsupport to those other children,the payments do not logically 

### bear on the question ofLadson' s dutyto support ORM - L. Maples, 78 Wn.App. at 700 - 04. In fact, under Maples, the trial court could have considered those payments as income to Ladson, 

### thus potentially increasing the amount ofhis support payments to Maxey. 78 Wn.App. at 700- 04. Underthese circumstances, Ladson' s claim that the court abused its discretion in refusing to deviate from the standard calculation has no merit. IV. LADSON WAIVED HIS CLAIMS THATTHE COURT ERRED BY NOT ORDERING PAYMENT DIRECTLY TO PROVIDERS AND BY DESIGNATING MAXEY AS THE PETITIONER ON THE ORDER 

### Ladson assigns error to the trial court's decision to include day care fees and private school tuition in the transfer payment to Maxey, ratherthan order Ladson to paythe providers 

### directly. Ladson presents no argument in support ofthis assignment oferror, however, and directs our attention to no authority requiring trial courts to do so. 

### We generally consider an assignment oferrorwaived ifthe party fails to present argument or authority on the issue in its brief. State v. Harris, 164 Wn.App. 377, 389 n.7, 263 P. 3d 1276 ( 2011) ( citing RAP 10. 3( a)(6); 

### Smith v. King, 106 Wn.2d 443, 451 -52, 722 P.2d 796 1986)). 

### Seeing no reason to varythis rule,we decline to reach the issue. Ladson also argues thatthe trial court erred by " misrepresenting the Petitioner by placing Ms[.] Maxey as such, when I am the Petitioner." Br. of Appellant at 1. Curiously, Ladson doesNo. 43733 -3 -II

not assign error to the trial court' s order on this ground. Neither does Ladson explain how this might prejudice him: indeed, Ladson presents no argument on this issue at all. 

### As an initial matter, the court' s designation is arguably correct: Ladson did not request a determination of child support in his petition. Rather, Maxey asked the court to address child 

### support in her response. Regardless, by failing to assign errorto the caption and to present 

### argument and authority in support ofthe claim, Ladson has waived the issue. We do not address it further.' V. THE TRIAL COURT ERRED BY NOTALLOCATING LONG DISTANCE TRANSPORTATION COSTS 

### Ladson argues thatthe trial court abused its discretion by failing to allocate expenses for 1) day care, (

### 2) extraordinaryhealth care, and (3) long distance transportation in the order, as 

### required by RCW 26.19.080. Ladson apparently bases his claim regarding the firsttwo expenses on amisunderstanding ofthe worksheet attached to the order,which does in fact allocatethose expenses. We agree, however, with Ladson' s claim regarding long distance transportation costs.

The worksheet the trial court used to calculate the transfer payment amount shows that 

### thecourt allocated boththeeducation and day careexpenses between Ladson and Maxey accordingto each one's proportional share oftheir combined net income. Ladson's briefdoes not make clearwhy he believes the court did not allocate these expenses. 

### Similarly,the child support order includes asection addressing uninsured health care expenses. Ladson points out that the court did not enter numbers in the blanks provided for the percentage ofsuch expenses each parent would have to pay. However,the order clearly states

1 We do note, however, that the court rules allow a litigant to move the trial courtto correct 

### clerical mistakes in an order at any time. CR 60. IfLadson thinks the caption erroneous, that procedure would seem a more appropriate avenue for relief. 8No. 43733 -3 -II



### that "unless stated otherwise" responsibility forthose expenses is allocated according to "the petitioner' s [ and respondent' s] proportional share of income from the Worksheet." CP at 119. As just discussed, the court completed the relevant portion ofthe worksheet and entered the proportional shares on the line referenced. Thus, we reject Ladson' s claim that the court did not 

### properly allocate the day care and uninsured health care expenses. The portion ofthe'order addressing long distance transportation expenses, on the other hand, merely states that " all payments ... are included in the transfer payment." CP at 114. The parenting plan,which clearly contemplates that the residential schedule and visitation arrangements will require long distance transportation, states that such transportation costs " are included in the Child Support Worksheets and / or the Order of Child Support." CP at 97. On the worksheet used to calculate the transfer payment amount, however, the trial court left the space 

### for long distance transportation costs blank.

The child support statute provides that 

### d]ay care and special child rearing expenses, such as tuition and long-distance transportation costs to and from the parents for visitation purposes, are not included in the economic table. 

### These expenses shall be shared bythe parents in the same proportion as the basic child support obligation. RCW 26. 19. 080(3). Thus, apportionment ofthese costs is mandatory. 

### Our decision in In re Paternity ofHewitt, 98 Wn.App. 85, 88 -90, 988 P.2d 496 ( 1999), controls. The Hewitt court interpreted the statutory language to also require apportionment of the travel costs a parent incurred due to the fact that the child could not travel alone, regardless 

### ofany difference inthe parents' financial circumstances, unless the court properlyfinds grounds for a deviation. 98 Wn.App. at 89 -90 (holdingthat,because the court did not deviate from the

9No. 43733 -3 -II



### standard calculation, it "abused its discretion in requiring [the father] to pay more than his proportional share ofthe travel expenses "). As discussed, the trial court did not purport to deviate from the standard calculation, nor did it allocate the costs oflong distance transportation in proportion to Ladson' s and Maxey' s respective shares oftheir combined income. This would leave Ladson responsible for all such

costs. Under RCW 26. 19. 080( 3), as interpreted in Hewitt,the trial court abused its discretion 

### when itfailed to allocate the long distance transportation costs in proportion to the basic child support obligations. VI. THE TRIAL COURT ERRED BY ORDERING LADSON TO PAY PRIVATE SCHOOL TUITION 

### Ladson argues that the trial court erred by ordering him to pay a share ofORM - L's private school tuition without entering any findings in support ofsuch an obligation. Because needed findings were not entered and, ifimplied,were not supported by substantial evidence in the record, Ladson' s argument has merit.

Although "[t]here is no per se prohibition against the award ofprivate school tuition for a minor child, we have held that _ w]here acceptable public schools are available, and there is no showing of special circumstances justifying the need for private school education, the 

### noncustodial parent should not be obligated to pay for the private education ofhis or her minor children. In re Marriage ofStern, 57 Wn.App. 707, 720, 789 P. 2d 807 ( 1990). Special circumstances that 

### could support imposing such an obligation include "familytradition, religion, and past
attendance at a private school." 

### Stern, 57 Wn.App. at 720. Furthermore, we have also held that, where a parent objects to paying private school tuition,the court must consider and make 

### findings as to the objecting parent' s ability to pay. State ex rel.J. VG.v. Van Guilder, 137 Wn. 10No. 43733 -3 -II

App. 417, 429 -

30, 154 P. 3d 243 ( 2007) (

### holding that "part ofdetermining which extraordinary expenses will be allowed must involve a determination ofthe objecting parent's ability to pay "). 

### We generally construe the absence ofafinding in acourt order againstthe party having the burden ofproof on the relevant factual issue, unless undisputed evidence in the record compels otherwise. Mitchell v. Straith, 40 Wn.App. 405, 412, 698 P.2d 609 ( 1985); Lobdell v. Sugar `N Spice, Inc., 33 Wn. App. 881, 887, 658 P. 2d 1267 ( 1983). Where the trial court enters

no findings on a particular matter, however, " an appellate court may lookto the oral opinion to determine the basis for the trial court' s resolution ofthe issue. Griffin, 114 Wn.2d at 777. Although the trial court did grant Maxey sole authority to make major educational 

### decisions concerning ORM - L,the court entered no findings on the need for private schooling or on Ladson' s ability to pay. Even were we to imply such findings, substantial evidence does not appear in the record to support them. No evidence appears concerning the availability of acceptable public schools, otherthan the fact that Maxey and ORM - L reside in Tacoma. Maxey does not allege that ORM - L has unusual educational needs the public schools could not meet. 

### Nordoestherecord containanyevidence onLadson'sability topaythetuition costs otherthan the amount of his income itself and the fact that Ladson' s new wife has ajob. 

### The only evidence concerning the otherfactors consists ofthe following exchange between Maxey and Ladson atthe child support hearing: Maxey: 

### I do payfor [ORM - L]' s Christian private school. She' s been going there since 2009 which Mr. Ladson did agree to.No. 43733 -3 -II Ladson: I did not. That was your decision. VRP( May3, 2012) at6. The trial court did not explain its decision orally and entered no findings on the matter. 

### In a letter informing the parties of its decision,the trial court merely stated thatthe transfer
payment amount " includes the 

### day care and education cost." CP at 102. Thus, the evidence in the record is inadequate to persuade a rational, fair - minded person ofthe need for private 

### schooling, and thus fails to provide an adequate basis for a finding ofspecial circumstances 

### justifying an obligation to pay such expenses. See In re Marriage ofVander Veen, 62 Wn.App. 861, 865 -67, 815 P. 2d 843 ( 1991) ( 

### finding substantial evidence supporting the trial court's award 

### ofprivate school tuition based on extensive testimony concerning several ofthe Stern factors). 

### As the parent requesting assistance with private tuition costs, the burden plainly lay on Maxey to make a showingjustifying the imposition ofsuch an obligation on Ladson. Under Lobdell and Mitchell, we must therefore construe the absence offindings against Maxey. Under 

### Stern and J.

V.G., furthermore, a sufficient showing would include not only evidence ofspecial circumstances, but also evidence of a lack ofadequate public schoolsand evidencethat Ladson 

### has the abilityto pay. Thus, even were we to considerthe factthat ORM - L has apparently attended the school since 2009 as a special circumstance tending tojustify an obligation to pay 

### private school tuition,that circumstance would not by itselfsuffice because the record reveals 

### nothing aboutthe adequacy or availability ofpublic schools or about Ladson's ability to pay. The trial court erred in ordering Ladson to pay private school tuition without making 

### appropriate findings based on evidence in the record. The remedy, however, presents an interesting question. The Stern court simply reversed the relevant portion ofthe order without
12No. 43733- 3- 11



### further instructions, apparently precluding further consideration ofthe matter bythe trial court. 57 Wn.App. at 720. The J.V.G. court, however, ordered the trial court to reconsider the matter
and enter appropriate findings on remand. 137 Wn.App. at 431. Given the sparseness ofthe 

### record and the parties' obvious unfamiliarity with the law,we hold that remand for a hearing and 

### entry ofappropriate findings is the more appropriate remedy here. CONCLUSION 

### We reverse the trial court' s rulings on long distance transportation costs and on private school tuition and remand for further proceedings not inconsistent with this opinion on those subjects. We affirm on all other issues. On remand, the trial court must properly allocate the 

### long distance transportation costs, hold ahearing onthe issue ofLadson's obligationto payfor private school tuition, and enter an amended order with appropriate findings and conclusions. 

### A majority ofthe panel having determined thatthis opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it is so ordered.

We concur:

13