COURT CF A^FlA! " n,v

STATE OF VVASMINGfov

2015 APR-6 AH 10: 29

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 71456-2-1

DIVISION ONE

In the Matter of the Parentage of

S.H.P.-A.,

A Minor Child,

EILEEN C. ACHESON,

Respondent,

v.

MARK E. PHILLIPS,

Appellant.

UNPUBLISHED OPINION

FILED: April 6, 2015

Schindler, J. — Mark E. Phillips appeals the child support order and parenting

plan restrictions imposed by the court in this parentage action. We affirm in all respects.

In 2005, Phillips founded a successful high-tech start-up company, MOD

Systems. Phillips served as the chief executive officer (CEO) of MOD Systems.

Phillips and Eileen C. Acheson began dating in January 2010. Around the same

time, the Federal Bureau of Investigation was conducting a fraud investigation of

Phillips. The investigation resulted in criminal charges against Phillips in March 2010

for wire fraud, mail fraud, money laundering, and attempted bank fraud. The federal

court allowed home monitoring for Phillips pending trial. In July or August, Acheson

became pregnant.
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In August, Phillips attended church with Acheson. When they returned home

from church, Acheson went to take a nap. Two hours later, Acheson found Phillips

unconscious on the floor of the upstairs bathroom surrounded by empty bottles of dust

cleaner. Acheson called 911. The next day, the federal court remanded Phillips into

custody.

In November, a psychiatrist diagnosed Acheson with acute anxiety and post

traumatic stress disorder (PTSD). Acheson took a medical leave of absence from her

job and received disability benefits.

In March 2011, a jury found Phillips guilty of wire fraud, mail fraud, and money

laundering. In April, Acheson gave birth to S.H.P.-A.

In July, the court sentenced Phillips to 48 months in prison followed by

supervised release for 3 years. In the fall of 2011, Acheson took S.H.P.-A. to visit

Phillips at the federal prison in Sheridan, Oregon. Shortly after the visit, Acheson

stopped communicating with Phillips.

Petition for Parenting Plan and Child Support

In February 2012, Acheson filed a "Petition for Residential Schedule/Parenting

Plan/Child Support." Phillips refused to sign the proposed parenting plan. The court

referred the case to King County Superior Court Family Court Services (FCS) to

conduct a parenting plan evaluation. FCS evaluator Jennifer Bercot interviewed

Acheson, Phillips, and a number offamily members and friends. Bercot also conducted

a home visit with Acheson and S.H.P.-A.

In September 2012, Phillips completed a substance abuse treatment program in

prison. On October 1, Phillips was released from prison to serve six months on work
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release at the Pioneer Fellowship House Residential Reentry Center on condition that

he obtained a job. Phillips made arrangements to work for a friend and former MOD

Systems client at the Battson Consulting Group (BCG). In late October, Phillips began

dating Jennifer Schweickert. Phillips's employment with BCG ended when he

completed the six-month work release sentence in 2013.

On April 19, 2013, Bercot filed a "Parenting Plan Evaluation." The Parenting

Plan Evaluation states Phillips "has not spent time with the child aside from one time

since the child's birth."

The four-day trial on the petition to establish a parenting plan, a residential

schedule, and child support began on August 12, 2013. A number of witnesses

testified, including Bercot, Acheson, Phillips, and Schweickert. The court admitted into

evidence a number of exhibits, including the Parenting Plan Evaluation, the paystubs

Phillips submitted while on work release beginning in October 2012, tax returns for

Acheson for 2010 through 2012, and bank statements.

Bercot testified that based on her observations during the home visit with

Acheson, "the mother and the child hav[e] a natural bond." Bercot testified that she was

concerned about "the absence of a relationship" between Phillips and S.H.P.-A. Bercot

said she "wasn't able to have a parent-child observation" with Phillips because "[t]he

father was not having contact with the child at that time." Bercot also described a

number of risk factors she identified during her evaluation of Phillips, including his

criminal conviction, lack of accountability, and history of substance abuse and unstable

mental health.
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Acheson testified that she was diagnosed with acute anxiety and PTSD while she

was pregnant with S.H.P.-A. Acheson said anxiety prevented her from returning to

work. Acheson testified she receives $3,440 per month in federal disability benefits.

Acheson stated she no longer receives disability payments from her previous employer

because "[t]he maximum period of benefits under th[at] contract has been exhausted."

Phillips submitted five paystubs showing he earned $2,500 per month working at

BCG while on work release. Phillips testified he has not been able to find a job since

his release because "it's difficult to get that level of trust just being released from

custody."

Schweickert testified that she supports Phillips financially and that they plan to

move to California "[a]ssoon as he's allowed to move and as soon as we get through

the bulk of the court visits."

At the conclusion of trial, the court entered a final parenting plan, an order of

child support, child support schedule worksheets, and findings of fact and conclusions

of law.

The final parenting plan imposes restrictions under RCW 26.09.191 on Phillips's

residential time with the child based on finding that he engaged in "willful abandonment

that continues for an extended period of time," "substantial refusal to perform parenting

functions," neglect, and the absence of emotional ties with S.H.P.-A. that "may have an

adverse effect" on the best interests of the child. The final parenting plan requires

supervised visitation with S.H.P.-A. and eliminates mutual decision-making. The court

ordered Phillips to enroll in and complete a parenting class at Wellspring Family

Services and "remain[ ] abstinent from drugs and alcohol."
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In determining the amount of child support, the court found Phillips's income is

"unknown." Using the the "net monthly income table," the court imputed income to

Phillips in the amount of $3,448.00. The court used the "[ajctual monthly [n]et [ijncome"

of $3,033.74 from federal disability benefits for Acheson, as well as earned interest and

dividends. The combined monthly child support obligation was $924.00 and the

monthly day care expenses were $1,080.00. Based on the proportionate share of

income, the court ordered Phillips to pay $491.57 for basic child support plus $590.52

for day care expenses each month. The court ordered Acheson to pay $432.43 for child

support and $519.48 for day care expenses.

Phillips filed a motion for reconsideration of the decision to impute income and to

require him to pay day care expenses. Phillips also requested clarification as to

whether he could enroll in a parenting class with a different provider. The court denied

the motion for reconsideration but allowed Phillips to enroll in a parenting class with an

alternative provider. Phillips appeals the order of child support and the decision to

impose restrictions in the parenting plan.

Notice of Appeal

Preliminarily, Acheson asserts that Phillips cannot challenge the final parenting

plan because he did not comply with RAP 2.4(a) and 5.3(a). See RAP 2.4(a) (the

appellate court will review the decision designated in the notice of appeal); RAP 5.3(a)

("The party filing the notice of appeal should attach to the notice of appeal a copy of the

signed order or judgment from which the appeal is made."). Phillips did not attach a

copy of the final parenting plan to the notice of appeal. However, because Phillips

attached a copy of the findings of fact and conclusions of law that expressly
No. 71456-2-1/6

incorporates the final parenting plan by reference, we address his challenge to the final

parenting plan. See RAP 1.2(a) (We liberally interpret the rules of appellate procedure

"to promote justice and facilitate the decision of cases on the merits.").

Standard of Review

We review the trial court's decision in a parenting plan and child support action

for abuse of discretion. In re Marriage of Littlefield. 133 Wn.2d 39, 46, 940 P.2d 1362

(1997); In re Marriage of Griffin, 114 Wn.2d 772. 776. 791 P.2d 519 (1990). The court

abuses its discretion only ifthe decision is manifestly unreasonable or based on

untenable grounds or untenable reasons. Littlefield, 133 Wn.2d at 46-47.

We review the court's findings of fact for substantial evidence. In re Marriage of

Katare, 175 Wn.2d 23, 35, 283 P.3d 546 (2012). Substantial evidence is the quantum

of evidence sufficient to persuade a rational fair-minded person the premise is true.

Katare, 175 Wn.2d at 35. We defer to the court's determination on issues of credibility

and persuasiveness of the evidence. In re Marriage of Meredith, 148 Wn. App. 887,

891 n.1, 201 P.3d 1056 (2009). Credibilitydeterminations are the province of the trier of

fact and will not be disturbed on appeal. In re Marriage of Akon, 160 Wn. App. 48, 57,

248P.3d94(2011).

Final Parenting Plan

Phillips challenges the decision to impose restrictions in the final parenting plan

under RCW 26.09.191. RCW 26.09.191 mandates the imposition of restrictions on

decision-making authority and residential time with the child when the court finds willful

abandonment or substantial refusal to perform parenting functions. RCW
No. 71456-2-1/7

26.09.191(1)(a), (2)(a)(i). RCW 26.09.191(1) and (2)(a) state, in pertinent part:

(1) The permanent parenting plan shall not require mutual decision

making or designation of a dispute resolution process other than court

action if it is found that a parent has engaged in any of the following

conduct: (a) Willful abandonment that continues for an extended period of

time or substantial refusal to perform parenting functions ....

(2)(a) The parent's residential time with the child shall be limited if

it is found that the parent has engaged in any of the following conduct:

(i)Willful abandonment that continues for an extended period of time or

substantial refusal to perform parenting functions.111

Phillips argues the court improperly relied on the recommendation of FCS

evaluator Bercot to impose RCW 26.09.191 restrictions. Phillips asserts Bercot's

recommendation was based on unfounded allegations of domestic violence. The record

does not support his argument.

The record shows the mandatory restrictions under RCW 26.09.191(1) and (2)(a)

are based on the court's specific findings of willful abandonment, neglect, and

substantial refusal to perform parenting functions, not allegations of domestic violence.

In the Parenting Plan Evaluation, Bercot recommended the court impose

restrictions in the parenting plan based on "substantial nonperformance of parenting

functions and an absence of emotional ties between the father and the child." Finding

of fact 2.3 states, in pertinent part:

Ms. Bercot is an experienced Family court evaluator and has

provided the necessary testimony to support her recommendations for the

Parenting Plan for the minor child [S.H.P.-A.] The Father could have

started to begin a relationship with his son, has not ever asked to be the

primary residential parent and the testimony at trial was that he planned

on moving to Southern California.

1Phillips also challenges the findings that support the imposition of restrictions under RCW

26.09.191(3). Findings under RCW 26.09.191 (3) are discretionary. In re Marriage ofWatson, 132Wn.

App. 222, 231-32, 130 P.3d 915 (2006). Because the court was required to impose restrictions under

RCW 26.09.191 (1)(a) and (2)(a)(i) based on itsfindings ofwillful abandonment and substantial refusalto

perform parenting functions, we need notaddress Phillips's challenge to the findings underRCW

26.09.191(3).
No. 71456-2-1/8

The final parenting plan provides, in pertinent part:

II. Basis for Restrictions

2.1 Parental Conduct (RCW 26.09.191(1), (2))

Mark Phillips has engaged in willful abandonment that continues for

an extended period of time and a substantial refusal to perform

parenting functions.

Phillips next claims substantial evidence does not support finding willful

abandonment and substantial refusal to perform parenting functions under RCW

26.09.191 (1)(a) and (2)(a)(i). Substantial evidence supports finding willful abandonment

and substantial refusal to perform parenting functions and the imposition of restrictions

in the final parenting plan under RCW 26.09.191 (1)(a) and (2)(a)(i).

The testimony showed Phillips had played no role in S.H.P.-A.'s life and had not

demonstrated any interest in establishing a relationship with the child. Acheson testified

that when she brought S.H.P.-A. to Phillips's sentencing hearing, "he didn't even really

look" at his child. Acheson said when she visited Phillips in prison with S.H.P.-A.,

Phillips made no effort to pay attention to or talk about the child and seemed more

interested in getting food from the vending machine. The testimony showed that since

his release, Phillips made no effort to spend time with the child and planned to move to

California.

Imputing Income

Phillips contends the trial court erred by imputing income based on the median

net income for a year-round full time worker under RCW 26.19.071 (6)(e).
No. 71456-2-1/9

Under RCW 26.19.071(6), when a parent is voluntarily unemployed, and absent

documentation of actual earnings, the court must impute income according to a

statutory order of priority. RCW 26.19.071(6) states, in pertinent part:

Imputation of income. The court shall impute income to a parent when

the parent is voluntarily unemployed .... In the absence of records of a

parent's actual earnings, the court shall impute a parent's income in the

following order of priority:

(a) Full-time earnings at the current rate of pay;

(b) Full-time earnings at the historical rate of pay based on reliable

information, such as employment security department data;

(c) Full-time earnings at a past rate of pay where information is

incomplete or sporadic;

(d) Full-time earnings at minimum wage in the jurisdiction where

the parent resides ifthe parent. . . has recently been released from

incarceration, or is a high school student;

(e) Median net monthly income of year-round full-time workers as

derived from the United States bureau of census, current population

reports, or such replacement report as published by the bureau of census.

The legislature enacted the statutory order of priority to ensure that when a court

imputes income to a voluntarily unemployed parent, the amount reflects "the level at

which the parent is capable and qualified." In re Marriage of Sacco, 114 Wn.2d 1, 4,

784P.2d 1266(1990).

There is no dispute that Phillips is voluntarily unemployed and that he submitted

no documentation of actual earnings except the five paystubs while working at BCG

during his work release sentence. The court found that Phillips's income "is unknown,"

and that "the first option for which there is information" was the median monthly income

for a full time worker under RCW 26.19.071 (6)(e).

Phillips contends the court erred by imputing income based on the median net

income for a year-round full time worker under RCW 26.19.071 (6)(e) ratherthan "[fjulltime earnings at the historical rate of pay based on reliable information, such as security
No. 71456-2-1/10

employment department data," under RCW 26.19.071 (6)(b) or "[f]ull-time earnings at a

past rate of pay where information is incomplete or sporadic" under RCW

26.19.071 (6)(c). In the alternative, Phillips argues that because he has "recently been

released from incarceration," the court should have imputed income based on full time

earnings at "minimum wage" under RCW 26.19.071 (6)(d). The record does not support

Phillips's arguments.

Phillips did not submit "employment security department data" or other "reliable

information" to establish a historical rate of pay or full time earnings at a past rate of pay

where information is incomplete or sporadic. See RCW 26.19.071 (6)(b), (c). Phillips

testified he worked as the chief technology officer at Fullplay Media Systems Inc. before

founding MOD Systems in 2005 but did not submit any documentation of his income

from either company. As noted, the only documentation Phillips submitted consisted of

five paystubs while working at BCG while on work release beginning in October 2012.

Phillips testified that he has not worked since March 2013 and that to pay

expenses, his friends and Schweickert gave him "gifts" in the form of cash, checks, and

bank transfers. Phillips's financial declaration shows he received over $75,000 from

friends to pay his legal fees for the criminal and civil litigation. Phillips testified that

"more than $10,000" of the $75,000 came from the friend and former client who

employed him at BCG.

The trial court was entitled to reject Phillips's testimony about his finances and

his ability to earn income as not credible. The evidence showed that after Phillips

completed his work release sentence, he moved to a condominium in Belltown. Bank

records show that Phillips made a number of significant deposits during the next three

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No. 71456-2-1/11

months, including six deposits of $1,000 or more. Phillips testified that after obtaining a

degree in computer science and architecture, he was the chief technology officer at

Fullplay Media and served on the company's board of directors. Phillips testified he

developed the first portable digital media player and sold it to Microsoft. Phillips also

testified that as CEO of MOD Systems, he secured a contract with Starbucks to develop

a music downloading system. According to Phillips, he owned "super valuable" source

code and patents for the software he developed for MOD Systems that enabled him to

raise $35 million from investors. The court did not abuse its discretion by imputing

income to Phillips for purposes of child support that reflects the level at which he is

"capable and qualified" and using net monthly income for a year-round full time worker

under RCW 26.19.071 (6)(e).2 See Sacco, 114Wn.2dat4.

Day Care Expenses

Phillips next contends there is no evidence to support the finding that day care

expenses are either "reasonable and necessary" or that Acheson "actually incurred" the

expenses.

The trial court has authority to require a parent to pay day care expenses as part

of the parent's child support obligation. "The court may exercise its discretion to

determine the necessity for and the reasonableness of the amount of day care

expenses entered in the child support worksheets. RCW 26.19.080(4). "[W]e interpret

the terms 'necessary and reasonable expenses' and 'day care' in a manner that serves

2For the first time in his reply brief, Phillips challenges the court's finding that his income is

unknown. Phillips did not assign error to this finding in his opening brief as required by RAP 10.3(a)(4).

See Sacco, 114 Wn.2d at 5 ("This court does not consider issues raised for the first time in a reply brief.").

In any event, substantial evidence supports the court's finding that Phillips's income is unknown. The

only income evidence he submitted was related to the work he did at BCG while on work release.

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No. 71456-2-1/12

the best interests of children." In re Marriage of Mattson, 95 Wn. App. 592, 600, 976

P.2d 157(1999).

Substantial evidence supports the court's finding that monthly day care expenses

of $1,080 are necessary and reasonable. The record shows Acheson suffers from

acute anxiety and PTSD. In addition to attending regular support group meetings,

Acheson meets with an Al-Anon Family Groups counselor once a week, a family

therapist every other week, and a Jewish Family Service counselor twice a month.

Acheson testified that she pays a family friend $15 per hour, approximately 18 hours per

week, to help care for S.H.P.-A. The court did not abuse its discretion in requiring

Phillips to pay his proportional share of the day care expenses.

The case Phillips relies on, In re Marriage of Fairchild, 148 Wn. App. 828, 207

P.3d 449 (2009), is inapposite. In Fairchild, the court entered an order requiring the

father to pay his proportional share ofday care and medical expenses. Fairchild. 148

Wn. App. at 830. By 2007, the father owed the mother over$37,000 in past due child

support. The fatherfiled a motion asking the court to reduce the amount owed because

the mother did not actually incur day care expenses. Fairchild, 148Wn. App. at 830.

We held the mother's declaration alone was insufficient to establish day care expenses

were "actually incurred" and remanded to determine the "reimbursable expenses."

Fairchild, 148Wn. App. at 832-33. We declined to address the father's challenge to

future payments, stating that "it is premature for [the father] to complain about payments

he has yet to make." Fairchild, 148 Wn. App. at 833.

12
No. 71456-2-1/13

Here, the order of child support specifically states that once Phillips had paid his

proportional share of day care expenses, he "may be able to seek reimbursement for

day care or special child rearing expenses not actually incurred."

We affirm.3

•V^mpo,

WE CONCUR:

Ificka-i ,^ ^Jg*, J '

u

3We decline to award Acheson attorney fees on appeal under RCW 26.09.140 and RAP 18.9.

13