IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION ONE

JANET GOVEA,

 Appellant,

 v.

DSHS - DIVISION OF CHILD 

SUPPORT,

 Respondent.

No. 85491-7-I

UNPUBLISHED OPINION

BOWMAN, J. — Janet Govea appeals a final order of the Department of 

Social and Health Services Division of Child Support (Department) setting child 

support for her minor child, arguing the administrative law judge (ALJ) misapplied 

RCW 26.19.071(6)(a) in determining the amount of the father’s imputed income, 

erred in calculating her actual income, and erred in applying a residential credit. 

Because the Department’s order contravenes the statutory priorities under RCW 

26.19.071(6)(a)(i) to (vi), we reverse and remand for recalculation of the father’s 

imputed income, the parents’ combined income, and each parent’s proportionate 

share of the combined income. We otherwise affirm. 

FACTS

Govea and Miguel Wooten are the parents of J.W. J.W. was born in 2014, 

has special medical needs, and resides mostly with Govea. In 2018, the 

Department entered an agreed order that set Wooten’s monthly child support 

obligation at $254 based on his monthly income of $1,993. The order reflected 
No. 85491-7-I/2

2

the parties’ agreement to be jointly responsible for health care and other costs 

based on each party’s proportionate share of the combined income, which was 

43.8 percent for Wooten and 56.2 percent for Govea. According to a 2021 

modified parenting plan, Wooten has residential time with J.W. every weekend

and takes her to hippotherapy, or therapeutic horseback riding, once a week. 

In May 2022, Govea petitioned to modify child support.1 Govea sought to 

increase Wooten’s monthly child support to $474 for the increased costs of 

J.W.’s medical needs and living expenses. Govea pointed out that Wooten did 

not work full-time hours but had the ability to do so. On May 31, 2022, an ALJ 

held an evidentiary hearing on Govea’s petition. The ALJ heard the testimony of 

both parents and a Department representative and considered 19 exhibits 

submitted by the parties. 

On June 21, 2022, the ALJ entered a final order with findings of fact and 

conclusions of law, increasing Wooten’s monthly support obligation to $364.00. 

The ALJ found that Wooten works as a shuttle bus driver three days a week, 

which are all the hours available through his current employment, and that he

earns $17.00 an hour. The ALJ also determined that Wooten’s obligations under 

the parenting plan do not preclude full-time work, that he is “able-bodied,” and 

that there is “no reason why he cannot obtain another part-time job or a full-time 

job at 40 hours per week.” Based on these findings, the ALJ concluded that 

Wooten was voluntarily underemployed. The ALJ then imputed monthly income 

 

1 See RCW 74.20A.059 (grounds for modification of administrative child support 

orders); WAC 388-14A-3925 (process for petition to modify administrative support 

orders). 
No. 85491-7-I/3

3

to Wooten of $2,511.60 based on the 2022 Washington minimum wage of $14.49 

an hour and a 40-hour work week. After deductions, his net monthly income was 

$2,164.69. The ALJ also calculated net monthly income to Govea of $3,255.79 

based on her full-time employment as a bilingual paraeducator with a school 

district. 

Based on the parties’ combined monthly net income of $5,420.48, the ALJ 

determined that the total support obligation was $999.00, and Wooten’s 39.9 

percent share of that obligation was $398.60 a month.2 Then, as “residential 

credit” for the time J.W. spends with Wooten, the ALJ deviated $35.00 from the 

standard calculation, which reduced Wooten’s monthly support obligation to

$364.00.

3

 

Govea sought reconsideration, and after the ALJ denied her motion, she 

petitioned for review in superior court. On Govea’s unopposed motion, the 

superior court certified the case for direct review in this court.4 

ANALYSIS

Govea contends that the ALJ misapplied RCW 26.19.071(6)(a) in 

determining the amount of Wooten’s imputed income, erred in calculating her 

actual income, and erred in applying a residential credit to reduce Wooten’s 

 

2 See RCW 26.19.020 (child support economic table). 

3 See RCW 26.19.075(1)(d) (allowing deviation from standard calculation if child 

spends a significant amount of time with the parent obligated to pay support).

4 See RCW 34.05.518 (final decision of administrative agency in an adjudicative 

proceeding is directly reviewable by the court of appeals after superior court 

certification).
No. 85491-7-I/4

4

monthly child support payment.5 We address each argument in turn. 

We review an ALJ’s final order in a proceeding to set child support under 

the judicial review provisions of the Washington Administrative Procedure Act 

(WAPA), chapter 34.05 RCW. RCW 74.20A.055(1); WAC 388-14A-6120(6). On 

review, this court applies the standards of the WAPA directly to the record before 

the agency. Tapper v. Emp. Sec. Dep’t, 122 Wn.2d 397, 402, 858 P.2d 494 

(1993). We apply de novo review to questions of law and an agency’s 

application of the law. Cornelius v. Dep’t of Ecology, 182 Wn.2d 574, 585, 344 

P.3d 199 (2015).

Among other things, we will grant relief from an agency decision if the ALJ 

erroneously interpreted or applied the law, if substantial evidence in the record 

does not support the decision, or if the decision is arbitrary and capricious. RCW 

34.05.570(3)(d), (e), (i). Evidence is substantial when it is sufficient to persuade 

a fair-minded person of the truth of the premise asserted. Cornelius, 182 Wn.2d 

at 607. We defer to the agency’s interpretation of the law when the statute is 

within the agency’s area of expertise. Crosswhite v. Dep’t of Soc. & Health 

Servs., 197 Wn. App. 539, 549, 389 P.3d 731 (2017) (quoting Cornelius, 182 

Wn.2d at 585). But “[d]eference ‘is inappropriate when the agency interpretation 

conflicts with the statute.’ ” Id. (quoting Brown v. Dep’t of Soc. & Health Servs., 

145 Wn. App. 177, 183, 185 P.3d 1210 (2008)). 

 

5

 The Department filed briefing in response to Govea’s appeal but “takes no 

position on the merits.” Wooten did not file a responsive brief. 
No. 85491-7-I/5

5

RCW 74.20A.055(1) allows the Department to seek child support when 

there is no court order setting support or relieving a parent from having to pay.6 

The uniform “child support schedule” applies in all judicial or administrative 

proceedings that determine or modify child support. RCW 26.19.035(1)(b), (c); In 

re Marriage of Brockopp, 78 Wn. App. 441, 445, 898 P.2d 849 (1995). RCW 

26.19.011(2) defines the “child support schedule” as “the standards, economic 

table, worksheets, and instructions” of chapter 26.19 RCW. The legislature 

adopted the uniform child support schedule as a means to equitably apportion 

child support between the parents, ensure that support is adequate to meet a 

child’s basic needs, and provide additional support commensurate with the 

parents’ income, resources, and standard of living. RCW 26.19.001. 

When setting child support, the Department or the court must base the

basic child support obligation on the statutory economic table. In re Marriage of 

McCausland, 159 Wn.2d 607, 611, 152 P.3d 1013 (2007); RCW 26.19.011(1), 

.020. The economic table is presumptive for combined monthly net incomes of 

up to $12,000. RCW 26.19.065(3). The Department or the court then allocates

the child support obligation between the parents based on each parent’s share of 

their combined monthly net incomes. RCW 26.19.080(1). RCW 26.19.075(1)

authorizes deviation from the standard calculation based on certain factors, 

including the residential schedule. See RCW 26.19.075(1)(d).

 

6

It appears that Govea filed an application with the Department in 2014 for 

assistance to secure child support for J.W. See WAC 388-14A-2010(1) (providing 

process to seek assistance from the Department to collect child support when applicant 

does not receive public assistance).
No. 85491-7-I/6

6

I. Wooten’s Imputed Income

Govea challenges the amount of Wooten’s imputed income. She

contends that the ALJ failed to adhere to RCW 26.19.071(6)(a)(i) by not imputing

income to Wooten based on his current rate of pay under the statute’s first 

priority. We agree. 

When a court or the Department is required to impute income, it 

establishes a rate of pay based on records that are statutorily prioritized under

RCW 26.19.071(6)(a) in the following order:

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

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

reliable information, such as employment security department data;

(iii) Full-time earnings at a past rate of pay where 

information is incomplete or sporadic;

(iv) Earnings of [32] hours per week at minimum wage in the 

jurisdiction where the parent resides if the parent is on or recently 

coming off temporary assistance for needy families or recently 

coming off aged, blind, or disabled assistance benefits, pregnant 

women assistance benefits, essential needs and housing support, 

supplemental security income, or disability, has recently been 

released from incarceration, or is a recent high school graduate. 

Imputation of earnings at [32] hours per week under this subsection 

is a rebuttable presumption;

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

where the parent resides if the parent has a recent history of 

minimum wage earnings, has never been employed and has no 

earnings history, or has no significant earnings history;

(vi) 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.

To determine Wooten’s income and presumptive share of the child 

support obligation, the ALJ imputed income to him after determining that he was 

voluntarily underemployed. See RCW 26.19.071(6) (income must be imputed to 

a parent who is voluntarily unemployed or underemployed). There was no 
No. 85491-7-I/7

7

dispute that Wooten worked part-time, and there was evidence to establish his 

current rate of pay at $17.00 an hour. But the ALJ did not use Wooten’s current 

rate of pay to impute his income under RCW 26.19.071(6)(a)(i). Instead, it

imputed full-time earnings at a lower rate of pay under the statute’s fifth priority—

the minimum wage of $14.49 an hour. See RCW 26.19.071(6)(a)(v). The ALJ 

explained that the minimum wage applied because there was no evidence that 

Wooten “previously worked full-time at his current wage of $17.00 per hour” or

that he could find employment offering 40 hours per week at his current hourly 

rate. 

But if there is a current rate of pay, RCW 26.19.071(6)(a)(i) requires the 

use of that rate to calculate full-time earnings, no matter if the parent has 

historically worked full-time at the current rate of pay.7 And nothing in the statute

requires evidence that full-time employment at the current rate of pay is 

available. Here, although Wooten testified that is it is “hard to find” employment 

that “pays well” and offers a schedule that can accommodate his parenting 

responsibilities, there was no evidence that Wooten would be unable to secure 

full-time employment or a second part-time position at his current rate of pay. 

Wooten testified that he had recently applied for positions with the Transportation 

 

7 Where there is a current rate of pay, the statute contemplates rejecting that rate

and proceeding to the second or third priority and imputing income based on historical or 

past earnings if there is a disparity between historical and current earnings that supports 

a finding that the parent has purposefully reduced their income to limit the child support 

obligation. See RCW 26.19.071(6). These circumstances are clearly not present here. 

First, there was no evidence that Wooten purposefully worked part-time to limit his child 

support obligation. Further, the ALJ found his current rate of pay was higher than his 

historical pay rate. 
No. 85491-7-I/8

8

Security Administration and the Port of Seattle, but he did not say whether those 

positions were full-time or part-time or mention the advertised pay rate. 

Further, to impute full-time earnings at minimum wage under RCW 

26.19.071(6)(a)(v), the statute requires that the parent “has a recent history of 

minimum wage earnings,” has never been employed, or has no “significant” 

earnings history. That is not the case here. Wooten testified that he had worked

for his current employer for about five years. And while there was no testimony 

specific to his historical rate of pay, other testimony and the “Employment 

Security Data” (ESD) report submitted as evidence showed that Wooten had a

significant earnings history and suggested that since 2018, his average pay rate 

was above minimum wage. 

Because Wooten was employed and the evidence established a current 

rate of pay, RCW 26.19.071(6)(a)(i) required the ALJ to use Wooten’s current 

pay rate to impute his income. We reverse and remand for the ALJ to recalculate 

Wooten’s imputed full-time earnings based on an hourly rate of pay of $17 and to 

recalculate the parites’ combined income and their proportional share of that 

income. 

Govea also contends that the evidence does not support the ALJ’s finding 

that Wooten’s current rate of pay is $17.00 an hour. Relying on the ESD report, 

Govea points out that based on 304 reported hours for the fourth quarter of 2021, 

Wooten earned $5,615.75, which equates to an hourly rate of $18.47. So, the 

ALJ should have calculated Wooten’s full-time income based on an hourly rate of 

$18.47. But Wooten’s testimony supports the ALJ’s finding that his current pay 
No. 85491-7-I/9

9

rate is $17.00 an hour. And while the ESD report provides his total quarterly 

earnings, it does not specify whether the same base rate of pay applied to some, 

or all, of the hours Wooten worked. Substantial evidence in the record supports 

the ALJ’s finding that Wooten’s current pay rate is $17.00 an hour. 

II. Govea’s Actual Income

Govea next contends that the ALJ miscalculated her income by using a 

formula based on the number of weeks, rather than days, she worked and by 

including nonrecurring overtime income. We disagree. 

RCW 26.19.071(1) requires the court to consider all income and resources 

from each parent when determining child support. Overtime income is 

presumptively included in setting child support unless there is a finding that it is a 

nonrecurring source of income based on a review of income over the past two 

calendar years. RCW 26.19.075(1)(b); In re Marriage of Newell, 117 Wn. App. 

711, 719 n.18, 72 P.3d 1130 (2003). 

The ALJ used two different methods to calculate Govea’s gross monthly 

income as a paraeducator. For the first method, the ALJ multiplied Govea’s

hourly pay rate of $28.36 by 40 hours per week to arrive at weekly earnings of 

$1,134.40. The ALJ then multiplied that figure by 43 to account for a 10-month 

school schedule (4.33 weeks per month times 10) for a total annual income of 

$48,779.20. The ALJ then divided that figure by 12 to yield Govea’s monthly 

gross income as $4,064.93. For the second method, the ALJ used the ESD 

report to add the total income Govea earned in the four most recent quarters (the 

second, third, and fourth quarters of 2021 plus the first quarter of 2022) to 
No. 85491-7-I/10

10

determine her annual gross income of $48,492.09 ($10,081.26 plus $15,622.20 

plus $11,278.53 plus $11,510.10). The ALJ then divided that figure by 12 to 

determine Govea’s average monthly gross income of $4,041.01. The ALJ gave 

Govea the benefit of the lower $4,041.01 figure to calculate the parties’ combined 

income. 

 Govea identified a lower monthly income figure of $3,630.08 in the 

documents she filed to support her motion to modify support, but she provided no 

explanation or evidence to support her calculation. Still, Govea claims that the 

ALJ should have calculated her monthly income by determining her daily income

and multiplying that amount by 192, the number of days she works in a school 

year. But she did not present a specific method of calculating her income or 

provide accurate information about the number of days she worked.

8

 And the 

ALJ ultimately used the lower figure that relied on the ESD report, not the figure 

based on her weekly income and number of weeks worked. In any event, the 

evidence supports both calculations. The testimony and evidence support the 

figures the ALJ used for Govea’s hourly pay rate, weekly hours worked, and the 

approximate length of the school year. Govea fails to establish error. 

Nor did the ALJ err by including overtime pay in calculating Govea’s 

income. Govea testified that she works overtime when it is available. 

Specifically, she earned overtime pay teaching summer school in 2021 and 

planned to do so again in 2022. Govea’s paystubs and her quarterly earnings 

 

8

In her testimony, Govea mentioned a school year of 102 days, but she did not 

explain how she calculated that figure or how it is consistent with her testimony that she 

works a 9- to 10-month schedule.
No. 85491-7-I/11

11

show that she regularly earned varying amounts of overtime income. Contrary to 

Govea’s argument, there was no basis for a finding that her overtime income was 

nonrecurring to overcome the presumption of inclusion. 

III. Residential Credit

Finally, Govea challenges the ALJ’s decision to apply a residential credit

reducing Wooten’s support obligation by $35 a month. Govea claims that the 

circumstances do not warrant a credit because none of the prior child support 

orders9 deviated from the standard calculation and J.W. resides with her most of

the time. The ALJ did not abuse her discretion. 

The ALJ deviated from the presumptive amount of child support under

RCW 26.19.075(1)(d), which provides:

The court may deviate from the standard calculation if the child 

spends a significant amount of time with the parent who is obligated 

to make a support transfer payment. The court may not deviate on 

that basis if the deviation will result in insufficient funds in the 

household receiving the support to meet the basic needs of the 

child or if the child is receiving temporary assistance for needy 

families. When determining the amount of the deviation, the court 

shall consider evidence concerning the increased expenses to a 

parent making support transfer payments resulting from the 

significant amount of time spent with that parent and shall consider 

the decreased expenses, if any, to the party receiving the support 

resulting from the significant amount of time the child spends with 

the parent making the support transfer payment.[10]

It is an abuse of discretion to deviate from the standard calculation without 

providing adequate reasons supported by the record. In re Marriage of Glass, 67 

 

9 The only child support order in the record predating the 2021 parenting plan is 

the 2018 agreed order. The record does not indicate what residential provisions were in 

place at the time of the 2018 order. 

10 Emphasis added. 
No. 85491-7-I/12

12

Wn. App. 378, 384, 835 P.2d 1054 (1992). 

Under the 2021 parenting plan, J.W. spends Friday evenings, Saturdays, 

and Sundays with Wooten (2 overnights every other weekend and 1 overnight on 

alternating weekends). Govea does not challenge the ALJ’s determination that 

J.W. spends 78 nights a year with Wooten. Along with weekend and holiday 

residential time, Wooten picks up J.W. from school at 2:00 p.m. every Tuesday

for hippotherapy and brings her home between 4:30 p.m. and 5:30 p.m. The 

court found that the parties have followed this schedule “consistent[ly].” Wooten 

also testified that he incurs additional expenses related to J.W.’s special needs

during his residential time. The court concluded that the amount of Wooten’s 

residential time was enough to support a modest deviation because he must 

provide meals and housing for J.W. during visitation. 

The record supports the ALJ’s determination that J.W. spends significant 

residential time with Wooten. Even assuming there was no deviation in any prior 

child support order, the ALJ’s decision to apply a modest deviation in light of the 

consistent schedule under the 2021 parenting plan was not an abuse of 

discretion, and the Department’s order is not arbitrary and capricious as a result 

of the deviation.
No. 85491-7-I/13

13

We reverse the final order modifying child support and remand for the ALJ 

to recalculate the amount of income imputed to Wooten and the corresponding 

combined income and the parties’ proportional share of the income. 

WE CONCUR: