COURT OF APPEALS DIV 1 STATE OF WASHINGTON 

### 2013 APR 29 AHI0M7

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON ROBERT GUSTAVESON, Appellant,

v. AMINA BABAYEV, Respondent. DIVISION ONE
No. 69108-2-1 UNPUBLISHED OPINION FILED: April 29, 2013 Dwyer, J. — Robert Gustaveson appeals from the superior court's 

### revision of a commissioner's ruling on Gustaveson's petition formodification of 

### his child support obligation to hisfive-year-old daughter. He contends that the 

### superior court erredby calculating the amount oftheobligation based upon his historical rate ofpay, by notruling that the modified order be retroactive beyond the date offiling of the modification petition, and by not addressing his argument 

### regarding a deviation from the standard calculation ofchild support. We conclude that the superior court did not abuse its discretion by utilizing Gustaveson's historical rate of pay to determine the amount of his child support 

### obligation orby denying Gustaveson's request for retroactivity ofthemodified child support order. However, due to an inconsistency between the oral recordNo. 69108-2-1/2
and the superior court's written order, we remand regarding the issue ofdeviation
so that the court can either clarifythe inconsistency or make necessary findings. We also remand for correction of a scrivener's error in the written order. In all other respects, we affirm the superior court's order.
I On August 22, 2011, Gustaveson filed a petition for modification of the 

### child support order setting forth his child support obligation to his daughter, who was then fouryears old. Gustaveson asserted that a substantial change in circumstancesjustified the modification. Specifically, he contended that the recession had "all but eliminated" his previous work as a residential carpenter and that he had been unable to obtain employment. Gustaveson requested that 

### his child supportobligation be calculated by imputing his income at the rate ofthe minimum wage. He additionally requested a downward deviation from the 

### statutory child support schedule based upon a purported disparity between his 

## own cost ofliving and that ofAmina Babayev, the daughter's custodial parent.1 Thus, Gustaveson requested that his child supportobligation be reducedfrom $456.35 per month to $106 per month. 

### Atrial byaffidavit was held on December 8, 2011. A superior court commissioner determined that Gustaveson was involuntarily unemployed and 

### imputed income basedupon the minimum wage. Because thecommissioner determined that a deviation did not apply, Gustaveson's child support obligation 1Gustaveson asserted that hismortgage payment andutilities totaled $1,300 permonth. In contrast, he asserted, because Babayev received Section 8 housing assistance, herhousing and utility expenses totaled only $72 per month.No. 69108-2-1/3

was set at $166 per month. The commissioner explained that she did not have the authority to grant a retroactive modification beyond the date offiling of the petition for modification. Gustaveson thereafter filed a motion for revision ofthe commissioner's 

### ruling. He requested that the superior court revise the effective start date ofthe reduced child support obligation to April 2009. Gustaveson asserted that a 

### November 2008 superior court child support order improperly precluded annual review of an administrative child support order entered inApril 2008. Thus, he 

### asserted that the appropriate start date of the reduced child support obligation


### was April 2009,when, according to Gustaveson, the administrative child support order should have been reviewed. Gustaveson additionally requested that the 

### superior court consider a deviation from the standard child support calculation,
an issue that, he asserted, had not been addressed by the commissioner. 

### On January 27, 2012, the superior court held a hearing onGustaveson's motion forrevision. Gustaveson argued, as he had in his motion, that the 

### reduced child supportobligation should be retroactive to April 2009 and that a deviation from the standard child support calculation should be granted. 

### Gustaveson sought reduction ofthe child supportobligation from $166 per month, the amount set by the commissioner, to $106 per month. 

### The superior court entered an orderregarding revision ofthe 

### commissioner's ruling onApril 26, 2012. Thecourt affirmed thecommissioner's determinations that Gustaveson's unemployment constituted a change in 

### circumstances, that the child support obligation should be recalculated, and that
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the modified order of child support "need not be applied retroactively beyond the date of filing." However, the court revised the commissioner's calculation of child support, which had imputed to Gustaveson income based upon the minimum wage. Instead, the court imputed income based upon full-time earnings at Gustaveson's historical rate of pay. The court ordered that Gustaveson pay $421.08 per month in support of his daughter. Gustaveson filed a motion for reconsideration of the superior court's order. He again requested that the modified order be made retroactive to April 2009. In addition, he asserted that the superior court erred by imputing income based upon earnings at his historical rate of pay. Finally, Gustaveson asserted that the superior court erred by not addressing his argument regarding deviation from the standard calculation of child support. On July 3, 2012, the superior court denied Gustaveson's motion for
reconsideration. Gustaveson appeals.
II Gustaveson first contends that the superior court erred by imputing income based upon full-time earnings at his historical rate of pay in order to determine his child support obligation. He asserts that the superior court did not 

### make a factual finding ofvoluntary unemployment and, thus, could not properly impute income based upon such earnings. Because the court did make such a finding, thus properlycomplying with the applicable statute, Gustaveson's
contention is without merit.
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We review the superior court's modification ofthe order of child support for abuse of discretion. In re Parentage of Goude, 152 Wn. App. 784, 790, 219 P.3d 717 (2009). "Acourt abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons." In re Marriage of Jess. 136 Wn. App. 922, 926, 151 P.3d 240 (2007). "Atrial court does not abuse its discretion where the record shows that it considered all the relevant factors and the child support award is not unreasonable under the circumstances." State
ex rel. J.V.G. v. Van Guilder. 137 Wn. App. 417, 423, 154 P.3d 243 (2007). 

### The superior court considers the income and resources ofeach parent's household in determining the child support obligation ofeach parent. RCW 

### 26.19.071(1). Where a parent is "voluntarily unemployed orvoluntarily 

### underemployed," the court imputes income to the parentin orderto determine his or herchild supportobligation. RCW 26.19.071(6). Ifthe parent is notcurrently employed—and, thus, income cannot be imputed based upon his or hercurrent 

### rate ofpay—the court, ifpossible, imputes income based upon full-time earnings 

### atthe parent's historical rate ofpay.2 RCW 26.19.071 (6)(b).

2RCW 26.19.071(6) provides: In the absence of records of a parent's actual earnings, the court shall impute a parent's income in the following order ofpriority: (a) Full-timeearnings 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 thejurisdiction where the parent resides iftheparent has a recent history ofminimum wage earnings, is recently coming offpublic assistance, aged, blind, or disabled assistance benefits, pregnantwomen assistance benefits, essential needs and housing support, supplemental security income, ordisability, has recently beenreleased from incarceration, or is a high school student;No. 69108-2-1/6 Here, Gustaveson contends that the superior court improperly applied RCW 26.19.071 in determining his child support obligation. Specifically, Gustaveson asserts that the court did not make a finding that he was voluntarily 

### unemployed or voluntarily underemployed. Thus, he argues, the superior court 

### could notproperly impute income pursuant to RCW 26.19.071(6). As relieffor this purported error, Gustaveson requests that we "revertthe base amount of [the] child support order back to the amount the commissioner had set." The superior courtdid, however, find that Gustaveson was voluntarily 

### unemployed. In the final order ofchild support, the courtexplicitly stated that 

### Gustaveson's supportobligation is based upon a net income imputed at $3,294 

### permonth because "the obligor isvoluntarily unemployed." The court further explained in its order: 

### Since the father is currently unemployed there is no current rate of 

### pay. Therefore, the court mustgo to the next statutorily prioritized factor which is "full-time earnings at the historical rate of pay based on reliable information, such as employment security department data." RCW 26.19.071 (6)(b). Here, the record shows that Petitioner's historical rate of pay was $39,529.51 annually, or $3,294.13 monthly. 

### Thus, Gustaveson's assertion that the superior courtdid notfind that he was voluntarilyunemployed is factually incorrect. 

### Moreover, we note that, in any event, the relief requested by Gustaveson is not available. On a motion for revision of a commissioner's ruling, the superior 

### courtjudge's review oftherecord is denovo where, as here, theevidence before (e) Median netmonthly income ofyear-round full-time workers as derived from the United States bureau of census, current population reports, or such replacement reportas published bythe bureau of census.
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the commissioner did not include livetestimony. In re Marriage of Moody, 137 Wn.2d 979, 993, 976 P.2d 1240 (1999). On appeal, we review the superior court's ruling, not the commissioner's. In re Marriage of Fairchild, 148 Wn. App. 828, 831, 207 P.3d 449 (2009); RCW 2.24.050. Accordingly, were we to conclude that the superior court erred in determining Gustaveson's child support 

### obligation—and we do not—the appropriate remedywould be reversal and remand to the superior court, not reinstatement of the commissioner's child support order. 

### Upon finding that Gustaveson was voluntarily unemployed, the superior 

### court properly applied the statutory order ofpriority for imputing income setforth in RCW 26.19.071 (6).3 Accordingly, Gustaveson'scontention that the court 

### erred by imputing income based upon his historical rate ofpay is without merit.
Ill Gustaveson next contends that the superior court erred by not ordering 

### that the modified child support order be retroactive beyond the date offiling ofthe 

### petition for modification. He asserts that RCW 26.09.170(1) supports his request for retroactivity ofthe modified order. We disagree. 

### "'[C]hild support payments become vestedjudgments as theinstallments
come due.'" In re Marriage of Watkins. 42 Wn. App. 371, 374, 710 P.2d 819 

### (1985) (alteration in original) (quoting Schaferv. Schafer, 95 Wn.2d 78, 80, 621 P.2d 721 (1980)). Accordingly, child support modifications aregenerally to be

3Gustaveson does not contend that the trial court'sfinding ofvoluntary unemployment is unsupported by the record.No! 69108-2-1/8 applied only to installments accruing subsequent to a petition for modification. RCW 26.09.170(1). "[Retroactive child support modification is highly disfavored except in unusual circumstances." Inre Marriage ofCummings, 101 Wn. App. 230, 234, 6 P.3d 19 (2000): see also Matter of Marriage of Olsen, 24 Wn. App. 292, 295, 600 P.2d 690 (1979) ("It is well settled that a court may not modify 

### maintenance and support payments retroactively. At most the court can only 

### modify maintenance and support provisions as of the date of the filing of the 

### modification petition." (citation omitted))4 However, a statutory exception exists for"motions to compel court-ordered adjustments" where a child support order 

### includes mandatory automatic adjustment provisions. In re Marriage ofAvvad, 110Wn. App. 462, 471, 38 P.3d 1033 (2002); see also RCW 26.09.170(1 )(a) 

### (providing that a maintenance orsupport decreemay be modified "[o]nly as to installments accruing subsequentto the petition for modification ormotion for 

## adjustmentexceptmotions to compel court-ordered adjustments").5 Gustaveson asserts on appeal that the superior court erred by notruling 

### that the modified child support order be retroactive beyond the date offiling ofthe 

### modification petition. He contends thatthecourt erred by denying his requestfor retroactivity oftheorderwithoutfinding that the"criteria" ofRCW 26.09.170(1) 4Although delinquent support payments become vestedjudgments when they become 

### due, "equitable principles may be applied to mitigate the harshness ofsome claims for past due child supportwhen their application does not work aninjustice to the custodial parent orto the child." In reMarriage ofBarone. 100Wn. App. 241, 245, 996 P.2d 654 (2000). Such reliefis "limited to those cases where enforcementwould create a severe hardship on the obligor-parent and where the facts supporttraditional equitable remedies." In reMarriage ofCapetillo, 85Wn. 

### App. 311, 319, 932 P.2d 691 (1997). Gustaveson does notcontend thatequitable principles should apply to reduce his past due child support; nordoes the record support such acontention. *Court-ordered adjustments are"effective as ofthe first date specified in the decree for implementing the adjustment." RCW 26.09.170(1)(a).
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did not compel such a ruling. Again, Gustaveson asserts that the modified order should be retroactive to April 2009, when, he argues, the April 2008 administrative child support order would have been reviewed but for the superior court's purportedly erroneous November 2008 order. The superior court did not err by denying Gustaveson's request for retroactivity of the modified order. The applicable statute explicitly provides that a child support order may be modified "[o]nly as to installments accruing subsequent to the petition for modification or motion for adjustment except motions to compel court-ordered adjustments." RCW 26.09.170(1 )(a) (emphasis added). Because Gustaveson filed a petition for modification—not a motion to 

### compel a court-ordered adjustment—the statutory exception does not apply. The trial court correctly determined: "It is clear that under RCW 26.09.170(1) a court 

### may not backdate child supportprior to the petition absent a motion to compel a court ordered automatic adjustment; here, there is/was no such provision." 

### Moreover, the court properly rejected Gustaveson's argument that retroactivity 

## wasjustified due to the court's purportedly erroneous November2008 order.6 However, notwithstanding the superior court's explicit determination that the modified order of childsupport would not be retroactive beyond the date of 

### filing, the courtindicated in itsApril 26, 2012 order that the starting date for the reduced child support obligation would be May 1, 2011—more than three months priorto the filing of the modification petition. Given this inconsistency, the

6The superior courtinformed Gustaveson that the November 2008 order was notbefore the court and, thus, could not be the basis for a determination of retroactivity.
-9-No. 69108-2-1/10 starting date indicated is clearly a scrivener's error. Because the superior court's order was entered on April 26, 2012, itappears that the court intended the 

### starting date of the reduced child support obligation to be May 1, 2012, when the next child support payment would become due. Accordingly, we remand to the superior court to correct this scrivener's error. 

### Contrary to Gustaveson's assertion, the superior courtproperly denied his 

### request to retroactively apply the modified order ofchild supportprior to the date 

### offiling ofthe modification petition. Thus, we affirm the court's decision denying his requestfor retroactivity ofthe modified child support order. We remand to the superior court, however, for correction ofthe scrivener's errorregarding the starting date of the modified child support obligation.
IV 

### Gustaveson finally contends that the superior court erred by not 

### addressing his requestfor adeviation from thestandard child support calculation. Although we do notfind support in therecord for a deviation, it is the role ofthe superior court, not ofthe appellate court, to make thatdetermination. 

### Accordingly, due to aninconsistency between theoral record and thecourt's written order, we remand to the superior courtfor clarification orfor the entry of necessary findings. 

### Where a party requests a deviation from the standard child support 

### calculation, the superior court "shall enterfindings thatspecify reasonsfor any 

### deviation orany denial ofa party's request for any deviation from thestandard calculation made by thecourt." RCW 26.19.075(3). Here, thecourt indicated at
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the motion hearing that Gustaveson's request for a deviation from the standard calculation was one ofthe issues presented on revision from the commissioner's ruling. Indeed, Gustaveson presented argument regarding the issue of deviation at the hearing. Nevertheless, the superior court's written order indicates that "[a] deviation was not requested." Due to this inconsistency, it is not clear from the record whether the superior court considered the issue to be properly raised or whether the court intended to deny the request for a deviation. Although we are skeptical that a deviation is supported by the record, we are not in a position to affirm a ruling that was never made. We therefore remand to the superior court for clarification 

### of the inconsistency or to enter the findings required in granting ordenying 

### Gustaveson's requestfor a deviation. The superior courtshall hold an additional 

### hearing in orderto resolve the inconsistency only if, in exercising its discretion, the court determines that such a hearing is necessary. 

### The superior court's order is affirmed as to the calculation ofGustaveson's child supportobligation and the denial of his requestfor retroactivity ofthe modified child support order. This matter is remanded to the superior for correction of the scrivener's errorregarding the starting date of the modified 

### orderofchild support. Weadditionally remand for clarification ortheentry of findings on the issue ofdeviation.

11No. 69108-2-1/12
Affirmed in part; remanded in part.


# ^ •Cvj.«i/> 

### y^t We concur:

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