IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Parentage of:
JOHN KARL FISCHER,
THERESA A. MCDONALD,
FILED: January 17, 2012
Dwyer, C.J. – Theresa McDonald appeals orders providing for the care
and support of her son A.M., claiming the trial court denied her a meaningful
opportunity to be heard and entered orders contrary to the parties’ agreements.
She also claims the trial court erred by refusing to impute income to A.M.’s father
and failing to award her the federal income tax exemption for the child. Because
McDonald fails to demonstrate error, we affirm. We also deny McDonald’s
request for attorney fees on appeal.
Following a brief dating relationship with Dr. John Fischer, Theresa
McDonald gave birth to their son, A.M., on February 13, 2008. Fischer is a
dentist with a practice in La Conner. McDonald lives in Seattle and works for
Nintendo as a Manager of Financial Systems. Fischer filed a petition for a
parenting plan and child support in December 2008. The trial court entered a
temporary parenting plan providing for A.M. to reside with McDonald a majority
of the time, appointing a parenting evaluator, and ordering Fischer to pay child
support to McDonald. In November 2009, the parenting evaluator filed a report
recommending designation of Fischer as primary residential parent, a gradual
increase of residential time with Fischer until the child resides with him a majority
of the time, designation of Fischer as sole decision making authority for nonemergency health care, and that McDonald participate in individual therapy to
address her psychological issues.
Following negotiations, the parties agreed that (1) they would have nearly
equal residential time; (2) Fischer would have sole decision making authority for
non-emergency health care; and (3) McDonald would commit to mental health
evaluation and treatment if covered by her insurance. The parties also agreed
to have the trial court decide the remaining disputed issues on affidavits and
argument. Prior to the hearing, McDonald filed a brief requesting that (1) neither
parent be designated as “custodian” or primary parent or that the designation
alternate between the two annually; (2) the court impute income to Fischer and
order Fischer to pay child support to McDonald; and (3) the court resolve
disputes on certain details of the residential schedule. In his brief, Fischer
asked the court to designate him as the primary or custodial parent and to order
no transfer payment of child support based on the shared residential schedule.
At a hearing on February 3, 2010, the trial court heard argument. On
March 19, 2010, the trial court filed findings of fact and conclusion of law
establishing parentage, a parenting plan, and a child support order. The trial
court designated Fischer as the primary parent, ordered McDonald to pay child
support to Fischer, and declined to impute income to Fischer. On May 17, 2010,
the trial court entered judgment against McDonald for sanctions previously
imposed, ordered McDonald to reimburse Fischer for half of the evaluator and
mediation fees, and denied McDonald’s motion for reconsideration.
McDonald contends that she was denied due process and an opportunity
to be heard when the trial court treated all matters as contested and resolved
matters differently than previously agreed by the parties. She claims she did not
expect the court to address such matters based solely on documentary evidence
and that she should have been allowed to present live testimony to rebut
Fischer’s evidence. But McDonald does not specifically identify in her argument
any particular issue which she believes the trial court resolved in a manner
contrary to the prior agreement of the parties. We will not comb the record to
determine what portions of the orders on appeal McDonald intended to
challenge or construct arguments for her. See In re Estate of Lint, 135 Wn.2d.
518, 532, 957 P.2d 755 (1998). It is undisputed that McDonald agreed to have
the trial court enter final orders based on affidavits and argument rather than
exercise her right to a trial. She fails to identify or establish any error resulting
from the procedure she requested.
Next, McDonald claims that the trial court erred by refusing to impute
income to Fischer and by awarding a federal income tax exemption to each
parent in alternating years. We review a child support order for abuse of
discretion. In re Marriage of Bell, 101 Wn. App. 366, 370-71, 4 P.3d 849 (2000).
If a parent is “gainfully employed on a full-time basis” the court may not
impute income to that parent “unless the court finds that the parent is voluntarily
underemployed and finds that the parent is purposely underemployed to reduce
the parent’s child support obligation.” RCW 26.19.071(6). McDonald claims
Fischer is underemployed because he works only four days per week. But
Fischer filed a declaration describing his employment as full time, in that he sees
patients four days per week, and spends at least part of the fifth day in the office
“running the business” or “doing paper work, conference calls, office repairs,
yard maintenance, etc.” Clerk’s Papers at 491. Because the trial court was
entitled to accept Fischer’s testimony to determine that Fischer is employed on a
full-time basis and nothing in the record requires a finding that Fischer is
voluntarily underemployed for the purpose of reducing his child support
obligation, there was no lawful basis to impute income to him. RCW
26.19.071(6); In re Marriage of Peterson, 80 Wn. App. 148, 155, 906 P.2d 1009
(1995). McDonald fails to establish error.
Under RCW 26.19.100, the trial court “may divide the exemptions
between the parties, alternate the exemptions between the parties, or both.”
McDonald argues that the trial court should have awarded her the exemption
because she would realize a significant benefit and because Fischer owns a
business and a home while she does not. The record establishes that the trial
court considered her request and her arguments and decided to alternate the
exemptions between the parties. Because this decision is clearly within the trial
court’s wide discretion under RCW 26.19.100, McDonald fails to establish error.
Finally, McDonald requests attorney fees on appeal under RCW
26.26.140 because she is struggling financially and recently filed for bankruptcy.
The record reflects that McDonald is gainfully employed, earning over $100,000
annually. We exercise our discretion and deny her request for an award of fees.