In Re The Marriage Of: Patricia Mccarthy, Respondent V. Fearghal Mccarthy, Appellant (Majority)

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Fill COURT OF D11. A 11sloiN R 21115 SEEP _ AM 8: 40 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON S Ti DIVISION II BY In Re The Marriage of: No. 45956 -6 -II PATRICIA McCARTHY, Respondent, UNPUBLISHED OPINION FEARGHAL McCARTHY, SUTTON, J. — of child support Fearghal McCarthy appeals the trial court' s order modifying the 2009 order that he and Patricia McCarthy agreed to in their dissolution action.' Fearghal argues that the trial court erred by ( 1) modifying the original child support order when he petitioned for an adjustment, ( 2) miscalculating the child support, and ( 3) using an incorrect retroactive commencement date for the new child support amount. We hold that the trial court did not abuse its discretion. Therefore, we affirm the trial court' s modification of the child support order. FACTS Fearghal and Patricia have two children. In June 2009, as part of their dissolution action, they agreed to a child support order requiring Patricia to transfer $780 to Fearghal in child support each month until the older child changed age brackets in 2011, whenthe amount would increase to $ 857. The trial court entered the order and approved the child support worksheet. 1 We refer to the parties by their first names for clarity. We intend no disrespect. EALS No. 45956 -6 -II On May 29, 2013, Fearghal filed a motion to adjust child support due to a change in the incomes. parties' The court commissioner entered an order of adjustment of child support and order of child support on December 11,. which increased the transfer payment from Patricia to Fearghal to $ 1003 per month and modified several other provisions. Fearghafthen moved to revise the order, arguing that the court commissioner had erred in a number of ways, including imputing income to him greater than his actual earnings and erroneously modifying the 2009 child support order. On January 31, 2014, the trial court granted Fearghal' s motion in part to reflect his " actual income." Clerk' s Papers ( CP) transfer payment at 209. The final child support order increased Patricia' s required to $ 1, 107 per month and affirmed the modifications that Fearghal claimed were erroneous: The trial court ordered a retroactive start date of January 1, 2014.2 Fearghal appeals. ANALYSIS We.review claims of error on a child support order for abuse of discretion.3 In re Marriage of Choate, 143 Wn. App. 235, 240, 177 P. 3d 175 ( 2008). A trial court abuses its discretion when 2 On January 31, 2014, the trial court entered two orders that Fearghal now appeals, ( 1) " Order RE Motion for Modification]/ Adjustment of Order of Child Support" and ( 2) " Final Order of Child Support ( Revised)." CP at 209- 10. To distinguish between the 2009 child support order and the 2014 orders, we refer to these two 2014 orders collectively as the " modification of child support order." 3 Fearghal and Patricia dispute the proper standard of review. Fearghal argues that we should review his claims of error de novo because we have only documentary evidence to consider and the issues he raises are questions of law, which we review de novo. Because Fearghal and Patricia dispute issues of fact on appeal ( and did so below as well), Fearghal is incorrect that this case presents pure questions of law. Thus, the proper standard of review is abuse of discretion.. See In re Marriage ofLangham, 153 Wn.2d 553, 559, 106 P. 3d 212 ( 2005) ( de novo review is appropriate only where the trial court relied solely on documentary evidence and credibility is not an issue because the parties do not dispute underlying facts). 2 No. 45956 -6 -II the decision is manifestly unreasonable or rests on untenable grounds or reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46- 47, 940 P. 2d 1362 ( 1997). domestic relations decisions are ofdannot, App. best decisions because "` served We give deference to a trial court' s the emotional and financial interests affected by such by finality"' and de novo review may encourage appeals. In re Parentage 149 Wn.2d 123, 127, 65 P. 3d 664 ( 2003) ( 16, 21, 37 P. 3d 1265 ( 2002)). quoting In re Parentage ofdannot, 110 Wn. The party asserting error holds the burden of demonstrating that the trial court abused its discretion. In re Marriage ofSchumacher, 100 Wn. App. 208, 211, 997 P. 2d 399 ( 2000). I. THE TRIAL COURT DID NOT ERR IN MODIFYING THE 2009 ORDER OF CHILD SUPPORT Fearghal argues that the trial court erred in modifying multiple provisions of the 2009 child support order. He alleges the standard child support payment federal tax exemption postsecondary following for errors:: ( a child from the downward deviation from Patricia' s another from Fearghal to Patricia, educational 1) and ( relationship, ( 2) the reallocation of the 3) the modification of several of the provisions. He argues that the trial court incorrectly changed these provisions because he moved for a child support adjustment and not for a child support modification and the trial court did not make a finding of a " substantial change of circumstances" as required to modify a child support order in most cases. 4 RCW 26. 09. 170( 1). On review, we hold that the trial court' s modifications of the 2009 child support order were not erroneous. 4 Fearghal also argues that these modifications prejudiced him by violating his due process rights, including his ability to conduct discovery. Fearghal does not explain what further discovery he could have done or what evidence he would have submitted but could not due to lack of discovery. Fearghal cannot demonstrate any prejudice simply because he was not served with a summons, the only procedural difference between modification and adjustment proceedings. RCW 26. 09. 170( 7)( a) -( b); RCW 26. 09. 175.. 3 No. 45956 -6 -II A trial court' s adjustment of a child support order and its modification of a child support follow two different statutory order processes. A party may initiate an adjustment proceeding based upon a change in income or change in the economic table in chapter 26. 19 RCW by filing a motion and child support worksheets, without a showing of a substantially changed circumstances, if 24 months have RCW 26. 09. 170( 7)( passed a) -( b). from the. entry the of previous child support order. A modification proceeding, in contrast, generally requires the moving party to demonstrate a substantial change of circumstances before the trial court may modify the previous child support order, and to initiate the proceeding, the party must serve on the opposing party a summons RCW 26. 09. 170( 1); and a petition along with its proposed child support worksheets. RCW 26. 09. 175. When a trial court modifies a child support order without finding a substantial change in circumstances, we must reverse and remand 109 Wn. App. 167, 174, 34 P. 3d 877 ( 2001). for entry of findings. In re Marriage of Scanlon, But this general rule requiring reversal is inapplicable when the first order of child support was not the product of a fully contested hearing where the trial court independently examined the evidence before entering its order. Schumacher, 100 Wn. . App. at 213. Where the parties come to their own agreement, we presume that the trial court did not examine the evidence, and the party arguing against the modified order must overcome the presumption with clear evidence. Schumacher, 100 Wn. App. at 213. Fearghal has not presented evidence to overcome this presumption. Thus, the trial court need not have found a substantial a No. 45956 -6 -II change of circumstances because the 2009 child support order was the product of uncontested proceedings.5 Schumacher, .100 Wn. App. at 313. Washington courts have general equitable power to , odify " any order pertaining to child m support payments when 100 Wn. App. at the child' s needs and parents' 213 ( emphasis added). financial ability so require." Schumacher, Under the modification statute, a trial court may modify a child support order without a showing of a substantial change of circumstances if the original order works a severe economic hardship on either party or the child. RCW 26. 09. 170( 6)( a). This is precisely the theory Fearghal argued in his motion to adjust. Because he faced financial hardship that impacted the children, he argued that he needed an increase in Patricia' s child support obligation. order in Additionally, Fearghal' s proposed order of child support modified the 2009 support several respects. ' The trial court appropriately modified the 2009 child support order pursuant to RCW 26. 09. 170( 6)( a) based upon Fearghal' s asserted financial hardship to him and the children. 5 Fearghal attempts to distinguish Schumacher and Pippins v. Jankelson, 110 Wn.2d 475, 754 P. 2d 105 ( 1988), the case that Schumacher relies on. He attempts to distinguish Pippins from this case because there the lower court found that the original child support order was not based upon the reasonable needs of the child. Pippins, 110 Wn.2d at 477. Notably, this court did not characterize that finding as a substantial change in circumstances finding, which is the error Fearghal claims the trial court made here. Thus, that distinguishing characteristic does not assist Fearghal' s argument. Further, contrary to Fearghal' s suggestion, the holdings in Schumacher and Pippins were not based on a " statutorily non- compliant prior support order." Reply Br. of Appellant at 9. These cases were premised on the fact that the original child support order was not the product of an uncontested proceeding. Pippins, 110 Wn.2d at 481- 82; Schumacher, 100 Wn. App. at 212- 13. Lastly, Fearghal argues that we should not apply Pippins because that decision preceded the legislature' s requirement of child support worksheets in 1989. He fails to mention'that our court decided Schumacher, which relied on Pippins, in 2000. No. 45956 -6 -II For these reasons, the trial court did not abuse its discretion in modifying provisions of the 2009 child support order without first finding a substantial change in circumstances. We review Fearghal' s claims of error on these modifications for manifest abuse of discretion.. In re Marriage ofSprute, 186 Wn. App. 342, 357, 344 P. 3d 730 ( 2015). A. DEVIATION FOR PATRICIA' s THIRD CHILD Fearghal argues that the trial court erred in granting a downward deviation. for Patricia' s third child because that child was one year. old at the time of the 2009 child support order and the parties did not deviate in 2009 from the standard child support calculation. We disagree. The trial court has discretion to deviate from a standard calculation of child support when one of the parents has a child from another relationship. Choate, 143 Wn. App. at 241- 42. The trial court must base its deviation on the total circumstances of both households. Choate, 143 Wn. App. at 242. Here, the trial court found that a downward deviation was appropriate due to Patricia' s third child from another relationship and decreased her child support obligation accordingly. Fearghal argues that the trial court' s decision to order a downward deviation was erroneous because it did so without full disclosure of Patricia' s husband' s and stepdaughter' s incomes and without written findings ' on that income in the child support worksheet. The record contains evidence of Patricia' s husband' s income. The record also specifies that Patricia' s stepdaughter is a college student. Without evidence to the contrary, we presume that the trial court considered all the evidence before it in setting the support obligation in the child support order. In re Marriage of Kelly, 85 Wn. App. 785, 793, 934 P. 2d 1218 ( 1997). abuse of discretion. rei The trial court' s deviation was not an No. 45956 -6 -II B. REALLOCATION OF TAX EXEMPTION Fearghal argues that the trial court' s reallocation of the child tax exemption from him to Patricia was erroneous because the reallocation has a detrimental effect on him and is not in the best interests of the children. The record demonstrates that the trial court had before it Fearghal' s . tax returns for the businesses in which he is a shareholder at the time, his pay stubs, Patricia' s and her husband' s paystubs, and the information relating to Patricia' s bankruptcy proceeding. Again, we presume that the trial court considered this evidence in setting the child support obligation. Kelly, 85 Wn. App. at 793. Given this evidence, the trial court did not abuse its discretion in reallocating the child tax exemption from,Fearghal to Patricia. C. MODIFICATION OF TERMINATION AND POSTSECONDARY EDUCATIONAL PROVISIONS Fearghal argues that the trial court erred in modifying three provisions in the 2009 child support order related to postsecondary education. The modification order ( 1) provides that Patricia will pay child support for each child until both children reach the age of 18 or are enrolled in high school, whereas the 2009 child support order provided that she would pay child support in addition to 50 percent of all costs related to postsecondary educational support for each child as long as the child is enrolled in high school or an accredited postsecondary school, ( 2) provides that if the parents cannot agree on the amount that each would contribute to postsecondary education either of them could bring the issue to the trial court rather than' require a set percentage contribution for each parent, as in the 2009 child support order, and ( 3) changes several other provisions, such as due dates, for payment of postsecondary educational support from the 2009 child support order. None of these changes constitute an abuse of discretion. VA No. 45956 -6 -II The 2009 child support order required Patricia to double pay child support by imposing both her transfer payment and 50 percent of all costs relating to postsecondary education expenses, which expenses support is include child support." the " necessities of life." RCW 26. 19. 090. " Postsecondary educational In re Marriage ofDaubert, 124 Wn. App. 483, 502, 99 P. 3d 401 ( 2004), as amended on reconsideration ( Dec. 16, 2004) abrogated on other grounds by In re Marriage of McCausland, 159 Wn.2d 607, 152 P. 3d 1013 ( 2007) ( emphasis added). Thus, the trial court' s order that Patricia will pay child support for each child until the child reaches 18, or is no longer in high school, when she will then begin to pay postsecondary educational support, was not an abuse of discretion. Fearghal next argues that the trial court erred in adding a provision allowing the parties to return to court if they cannot agree on the contribution amounts for postsecondary educational support because the parties did not consider it in the 2009 child support order and the provision opens the door to future litigation. RCW 26. 19. 090( 1)-( 2) provides that postsecondary educational support schedules are advisory, not mandatory, and that the trial court shall consider if the child is actually dependent on the parents and shall exercise its discretion under the circumstances when deciding whether to order support for postsecondary education. The 2009 child support order also included a provision to allow a parent to recover the amount of an untimely payment for postsecondary educational support, plus interest, if the other parent failed to make that payment; this provision also allowed for future litigation. potential To achieve finality, the trial court' s continued jurisdiction to resolve a future dispute over postsecondary educational support is not an abuse of discretion. No. 45956 -6 -II Jannot, 149 Wn.2.d at 127 ( we give deference to the trial court' s decisions in domestic relations cases to achieve finality in emotional and financial issues). Fearghal' s remaining contentions about the postsecondary educational provisions relate to the trial court' s reasonable changes that conformed the provisions to Washington law, such as requiring the parents to make payments directly to the educational institution. RCW 26. 19. 090( 6). Lastly, as explained above, Fearghal' s primary argument that these changes are prohibited because he moved only for an adjustment of child support is incorrect. The trial court did not abuse its discretion in modifying the postsecondary educational support provisions ofthe 2009 child support order. II. TRIAL COURT' S CHILD SUPPORT WORKSHEET WAS NOT ERRONEOUS Fearghal argues that the trial court miscalculated the transfer payment due to errors in the child support worksheet. He argues that the evidence does not support the worksheet' s numbers for ( 1) Patricia' s federal income tax withholding, ( 2) withholdings, ( 3) Patricia' s health insurance Patricia' s Social Security and Medicare tax costs, and ( 4)' Fearghal' s health insurance costs.' . We disagree. RCW 26. 19. 035 requires the trial court to file with its child support order a completed child support worksheet, which is a standard form developed by the administrative office of the courts Fearghal by ( 1) excluding special expenses in the child support worksheet and ( 2) limiting expenses not included in the transfer payment, but he did not object not also argues that the trial court erred to these changes below. ( Fearghal mentions the changes in the statement of facts, but does explain why the error was unreasonable). Because these claims of error are not of constitutional magnitude, and we hold that the trial court did not err by modifying the 2009 child support order without finding a " substantial change in circumstances," we do not address them. RAP 2. 5( a). 0 No. 45956 -6 -II to calculate the proper amount of child support. The child support worksheet is signed by the parties and then reviewed and approved by the trial court at the time of entry of the child support order. RCW 26. 19. 035( 3)-( 4). The information contained in the approved child support worksheet constitutes findings of fact for the child support order. Daubert, 124 Wn. App. at 492. Substantial evidence must 152 Wn. App. the support trial court' s factual 784, 790, 219 P. 3d 717 ( 2009). findings. In re Parentage of Goude, Substantial evidence is evidence sufficient to persuade a fair-minded person of the truth of the declared premise. Goude, 152 Wn. App. at 790 A. TAX, SOCIAL SECURITY, AND MEDICARE WITHHOLDINGS Fearghal argues that the trial court' s child support worksheet incorrectly lists Patricia' s federal income tax withholding because it does not account for what he characterizes as Patricia' s ' 116 per month in an income tax return. He is incorrect. The trial court' s child support worksheet deducts $ 689 per month from Patricia' income for income taxes. s To prove that the worksheet incorrectly states Patricia' s income tax amount, Fearghal cites to her chapter 13 bankruptcy plan, which over provided 12 that months, she will "[r] etain [ the Fearghal arrives at first $ 1400 the $ 116 of each [ tax] refund." per month figure. CP at 111. Averaged The bankruptcy plan was not evidence of Patricia' s expected tax refund. Rather, it is the highest amount that she might receive under her bankruptcy plan because any amount above $ 1400 would be applied to her creditors. Thus, Fearghal' s argument fails because he does not adequately support it. Fearghal also argues that the trial court' s withholding of $ 542 for Patricia' s Social Security and Medicare taxes in the child support worksheet is erroneous, but he is incorrect. Fearghal provided this number in his proposed child support worksheet filed together with his motion for an adjustment of child support. To the extent that the trial court' s withholding amount may be U11] No. 45956 -6 -II incorrect, it was invited error. In re Marriage ofMorris, 176 Wn. App. 893, 900, 309 P. 3d 767 the doctrine of invited error prohibits a party from setting up an error below and then 2013) ( complaining of it on appeal). B. HEALTH INSURANCE COSTS Fearghal argues that the child support worksheet, approved by the trial court, incorrectly calculated two health herself .n the $ i care provisions for the children in ( 1) including Patricia' s cost to insure 333 calculation for Patricia' s cost to insure the children and ( 2) not including . Fearghal' s cost to insure the children even though the court found that he had available coverage. We disagree. The trial court set the amount of Patricia' s health care coverage at $ 333. 00 per month, which amount the record demonstrates was calculated based on the cost for Patricia' s own health insurance subtracted from the cost to insure herself and two children to arrive at $ 332. 58 per month. The trial court did not err. As to Fearghal' s healthcare costs, the 2009 child support order required Fearghal to pxovide insurance coverage for the children only if the cost did not exceed 25 percent of his child support obligation.' In the child support modification order, the trial court found that Fearghal' s cost of health insurance coverage was $ 260. 68, which is greater than 25 percent of his support obligation Fearghal assigns error to the trial court' s removal of the 2009 child support order requirement that both parents provide health insurance for the children as long as it does not exceed 25 percent of the care parent' s basic costs would support obligation. exceed the 25 percent First, by Fearghal' s own calculation, his current health limit. Second, we have already rejected Fearghal' s argument that the trial court was prohibited from modifying the support order under his adjustment motion. 11 No. 45956 -6 -II 411. of $ The 2009 child support order also provided that the parents would each maintain 00. coverage for the further children " until order of the court." CP at Thus, the trial court did not 5. abuse its discretion in relieving Fearghal ofthe requirement to cover the children' s health insurance under RCW 26. 09. 105. 8 III. THE TRIAL COURT' S RETROACTIVE COMMENCEMENT DATE WAS NOT ERROR Lastly, Fearghal argues that the trial court abused its discretion by setting January 1, 2014, as the retroactive commencement date on the modification order rather than May 29, 2013, the date he filed his children' s basic petition to adjust. He argues that the delay violated legislative intent to ensure needs are met commensurate with parents' income and standard of living. The record does not contain any indication that Fearghal objected to the commencement date or to any delay in the proceedings below. Fearghal cites no authority for the proposition that a trial court must order a retroactive commencement date. Thus, we decline to address this claim of error under RAP 2. 5( a) because Fearghal failed to raise it in the trial court.9 In any child support order or modification of child support, RCW 26. 09. 105 requires the trial court to order both parents to circumstances," 105( 1)( a)( the provide trial. court health insurance for the excuses one parent children unless, "[ u] nder appropriate from the responsibility. RCW 26. 09.- i), ( 1)( c). 9 This is not an error of constitutional magnitude that requires our review under RAP 2. 5( a). Although Fearghal cites two provisions of the Washington Constitution that prohibit the trial court from unnecessarily delaying resolution and require the trial court to rule within 90 days that a matter is submitted to it, those provisions do not apply here. 20. CONST. art. I, § 10; CONST. art. IV, After delays due to unavailability and evidence gathering, the trial court made its decision within 90 days after the hearing. 12 No. 45956 -6 -II IV. ATTORNEY FEES Fearghal requests statutory attorney fees and $600 of costs under RAP 14.2, RAP 18. 1, and RCW 26. 09. 140. Patricia requests reasonable attorney fees and costs under RAP 14. 2, RAP 18. 1,, and RCW 26. 09. 140. Both parties submitted timely financial affidavits. We deny both requests. RAP 14.2 provides that a party who substantially prevails on review will be awarded statutory attorney fees and reasonable expenses incurred on this court' s review. RAP 18. 1 provides that we will grant an award -of reasonable attorney fees if a statute so provides. RCW 26. 09. 140 allows for an award of attorney fees and statutory costs on appeal for proceedings under chapter 26. 09 RCW. Our decision to award attorney fees under RCW 26.09: 140 is discretionary based upon each parties' ability to pay and the merits of the issues raised on appeal. In re Marriage ofMuhammad; 153 Wn.2d 795, 807, 108 P. 3d 779 ( 2005). We deny Fearghal' s request because he is not the prevailing party on appeal. Fearghal asserts, and Patricia does not dispute, that he is currently unemployed. Thus, although Patricia' s arguments on appeal were meritorious, we do not grant her request for reasonable attorney fees and costs under RAP 18. 1 and RCW 26. 09. 140. 13 No. 45956 -6 -II CONCLUSION Because the trial court did not abuse its discretion on any of Fearghal' s claims of error, we affirm the trial court' s modification of the child support order. We deny both parties' request for costs and attorney fees. A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040, it is so ordered. AeHMd. ., SUTTON, J. We concur: Tr , HANSOM, C. J. 00 14

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