Citations and pincites are based on the Westlaw online version of the cited material.

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

In the Matter of the Parentage of:

O.M-S.,

 Child,

ANDREW SUNWOO,

 Respondent,

 and

DIANA MCKUNE,

 Appellant.

No. 80256-9-I

DIVISION ONE

UNPUBLISHED OPINION

LEACH, J. — Diana McKune appeals several trial court decisions about child 

support. She claims the trial court abused its discretion by the way it used a fringe benefit 

for childcare in its child support calculations. We agree, reverse, and remand for further 

proceedings consistent with this opinion.

BACKGROUND

Andrew T. Sunwoo and Diana M. McKune are parents of O.M-S. On August 15, 

2018, the parties participated in a settlement conference with Cheryll Russell and agreed 

on a final parenting plan. They also agreed to submit all remaining issues including
No. 80256-9-I/2

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calculation of child support, development of all other provisions of a child support order, 

claims for reimbursements, and attorney fees and costs to a binding arbitration.

On March 5, 2019, Russell released her arbitration decision and award. Russell 

concluded that under RCW 26.19.071(3) the employment benefits McKune received, 

including both child care and pet insurance (fringe benefits), constitute income to McKune 

for purposes of income calculation. She also calculated McKune’s monthly gross income. 

For 2016, including a daycare benefit, her monthly gross income was $2,565.58. For

2017, she concluded that McKune’s monthly gross income increased to $5,212.66. She 

noted that “the taxes paid on these employment benefits are included in the tax deduction 

on the Child Support Worksheet.” Finally, for 2018 she calculated a monthly gross income 

of $5,226.05.

The arbitrator also found McKune had not incurred any work related child care 

expenses. She declined to find that the value of the fringe benefit she included in 

McKune’s income reflected an expense incurred by McKune. And, she therefore declined 

to require Sunwoo to reimburse her for his proportionate share of this amount.

The parties could not agree on final orders implementing the arbitration decision. 

McKune asked the trial court to modify the arbitrator’s child support decision. Sunwoo 

asked the court to enter his proposed final orders that “follow the CR 2(a), arbitration 

ruling, and the court’s prior orders regarding arbitration fees and child support.” On 
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June 17, 2019, the trial court signed these final orders with modifications that did not 

address the child care issue. These orders were filed the next day. McKune appeals. 

STANDARD OF REVIEW

We review a superior court's decision setting child support for abuse of discretion.

1

A superior court abuses its discretion if its decision is manifestly unreasonable or based 

on untenable grounds or untenable reasons.2 A 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 if the factual findings are unsupported by the 

record; it is based on untenable reasons if the court applied the incorrect legal standard 

or the facts do not meet the requirements of the correct standard.3

ANALYSIS

Income Calculation 

McKune first claims the trial court attributed too much income to her when 

calculating child support. She contends the court should not have included as part of her 

income the amount for the day care fringe benefit shown on her paystub. She notes the 

arbitrator found the same amount was shown as a deduction from her gross pay on her 

paystub. She asserts this shows the amount was never available to her for payment of 

support. 

RCW 26.19.171(1) requires that the court consider all income and resources of 

each parent’s household when establishing each parent’s child support obligation. 

RCW 26.19.071(3) states a parent’s gross income includes all income from any source, 

 1 In re Marriage of Booth, 114 Wn.2d 772, 776, 791 P.2d 519 (1990). 2 In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004).

3 Horner, 151 Wn.2d at 893-94.
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except those sources expressly excluded in subsection 4 of the statute. Subsection 4 

does not exclude child care payments made by an employer for the benefit of its 

employee. So, if the child care payments made by McKune’s employer are income, the 

trial court properly included them when making its child support calculation. 

No statute defines “income” for purposes of child support calculations. We look to 

a dictionary for common definitions: (1) “a gain or recurrent benefit that is usually 

measured in money” or (2) the “value of goods and services received.”4 The challenged 

day care payments meet these definitions. They were a recurrent benefit whose value 

was measured in money. And, McKune received the value of child care purchased by 

her employer for this amount. The trial court correctly included the amount of the child 

care payments as income to McKune.

McKune offers two arguments for a contrary result. First, she notes her employer 

deducted from her gross pay the full amount of the day care payment. From this fact, she 

asserts she did not have this amount available to pay child support, and it should not be 

included as income. As we discuss below, this deduction bears on whether McKune 

incurred any day care expense and not whether she received income. 

McKune also relies on an unpublished opinion from Division III of this court, Gore 

v. Jones.

5 There, the court considered whether deferred compensation and health 

insurance premiums paid by a physician’s employer should be included in the physician’s 

income when calculating child support. The court noted RCW 26.19.071(3) requires 

including income from deferred compensation and not deferred compensation itself as 

 4 WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1143 (2002).

5 No. 30831-6-I, slip op. (Wash. Ct. App. Aug. 13, 2013) (unpublished), 

https://www.courts.wa.gov/opinions/pdf/308316%20OPN.pdf.
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income. It observed that including the deferred compensation payment as income would 

result in counting the payment as income twice, once when paid by the employer and 

again when distributed at a later date to the employee. 

Neither of the reasons for the court’s exclusion of deferred compensation apply to 

a child care payment made by an employer for the benefit of its employee. No statutory 

language supports its exclusion and no risk of double counting exists. The Gore court 

noted that neither party cited any authority supporting a claim that an employer's payment 

of a health insurance premium was income to the employee. Indeed, the tax code 

contains an express provision allowing the employer a deduction for this expense and 

providing that it is not income to the employee.6 The court also noted the difficulty in 

determining the value of a premium payment to the employee. Here, the record shows 

the IRS code requires that McKune’s employer report its child care payment as income 

to McKune. Because the amount reported equals the amount paid for the day care 

provided on behalf of McKune, no problem exists determining the value of the benefit to 

McKune. So, Gore does not provide support for McKune’s position.

Child Care Expenses 

McKune next claims if the child care fringe benefit is income to her, then the trial 

court should have found she paid work related child care expenses and require Sunwoo 

to reimburse her his proportionate share. We agree.

RCW 26.19.080(3) provides that day care costs shall be shared by the parents in 

the same proportion as basic child support obligation. The arbitrator and the trial court 

 6 U.S. Internet Revenue Serv., Pub. 15-B, Employer’s Tax Guide to Fringe 

Benefits 5 (2020), https://www.irs.gov/pub/irs-pdf/p15b.pdf.
No. 80256-9-I/6

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accepted Sunwoo’s argument that the child care fringe benefit provided by McKune’s 

employer was “free” to McKune. As a result, he claims McKune paid no child care 

expense. This argument improperly exalts form over substance and ignores economic 

reality. 

McKune’s employer did not make a gift of child care services to her. “A fringe 

benefit is a form of pay for the performance of services.”7 McKune provided her services 

to her employer and received in return compensation that included a child care fringe 

benefit. As the provider of services, McKune is the recipient of the value of this fringe 

benefit even if her employer made a payment to a third party for the child care.8 

As between McKune and Sunwoo, the employer’s direct payment to the child care 

provider has no different economic impact than if the employer had paid McKune 

additional wages equal to the child care cost and McKune had paid the provider. Because 

of our complex tax code, the employer and McKune benefit from the employer paying the 

child care provider directly. Either way, Sunwoo receives exactly the same thing. His 

child receives child care that he did not help pay for. But, RCW 26.19.080(3) requires 

that he pay his proportionate share. So, the trial court should have found McKune 

incurred a work related child care expense, made appropriate support calculations 

incorporating this expense, and require Sunwoo to reimburse McKune for his share. To 

the extent the trial court’s order on motion to enforce and enter final orders and for fees, 

the child support order, the final parentage order, and the findings and conclusions about 

 7 Pub. 15-B, Employer’s Tax Guide to Fringe Benefits 2 (2020)

https://www.irs.gov/pub/irs-pdf/p15b.pdf. 8 Pub. 15-B, Employer’s Tax Guide to Fringe Benefits 2 (2020)

https://www.irs.gov/pub/irs-pdf/p15b.pdf.
No. 80256-9-I/7

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parentage provide otherwise. We reverse those decisions and remand for further 

proceedings consistent with this opinion.

Sunwoo asks this court to provide him a credit against any child care expenses he 

may owe from the judgments he recovered against McKune. The trial court is the 

appropriate place for him to first make this request.

Attorney Fees

McKune requests attorney fees and costs citing RCW 26.26B.060.9 She correctly 

notes this statute does not require consideration of either need or ability to pay.10 McKune 

has prevailed. We grant her request for attorney fees and costs subject to her compliance 

with RAP 18.1.

CONCLUSION

We reverse the trial court’s decisions as described above. The trial court properly 

included the employer paid child care fringe benefit in McKune’s income for child support 

calculation purposes. But, it erred when it did not find McKune incurred work related child 

care expenses for which she was entitled to proportionate reimbursement from Sunwoo.

WE CONCUR:

 9 The court may order reasonable fees of experts and the child's guardian ad litem, 

and other costs of the action, including blood or genetic test costs, to be paid by the 

parties in proportions and at times determined by the court. The court may order that all 

or a portion of a party's reasonable attorney's fees be paid by another party, except that 

an award of attorney's fees assessed against the state or any of its agencies or 

representatives shall be under RCW 4.84.185. 10 In re Marriage of Wendy M., 92 Wn. App. 430, 439, 962 P.2d 130 (1998).