In a Washington divorce, parents generally cannot escape child support obligations by being voluntarily underemployed. If the court finds the parent is underemployed for the purpose of reducing the child support obligation, the court can calculate child support based on imputed income. A Washington court recently considered whether a father was subject to imputed income because he stopped working overtime after the separation.
In her motion for child support, the wife alleged the husband was voluntarily underemployed. The trial court entered a child support order, imputing income to the husband based on past earnings. The husband appealed.
The husband argued the court erred in finding him voluntarily underemployed and in imputing his income. The husband owns and operates a commercial harvest diving business. He previously owned and operated as many as four commercial dive boats and worked as boat captain and diver until about six months before the separation. He stated he had previously worked over 80 hours per week and worked out of town for weeks at a time. He claimed he had been able to work so much during the marriage because the wife had been a stay-at-home mother and homemaker. He argued he was unable to maintain that schedule and care for his children on the shared schedule. His salary dropped from $146,884 in 2015 to $93,094 in 2016.
The husband submitted declarations of two other commercial fishermen, describing the customary hours and duties of workers in that field. The owner and operator of a commercial fishing boat stated he worked about 38 hours per week. The owner and operator of multiple commercial geoduck dive boats stated he worked about 50-60 hours each week.
The trial court had found that the husband was voluntarily underemployed, but did not make any credibility findings. Additionally, the court did not make a specific finding that the husband was purposely underemployed to reduce his child support obligation or check the box on the order indicating he was purposely underemployed for that reason. The trial court also denied the husband’s request for a deviation from the standard calculation, finding a deviation would leave the wife with insufficient funds.
The appeals court noted that RCW 26.19.071(6) provides that “[a] court shall not impute income to a parent who is gainfully employed on a full-time basis.” The husband had presented evidence of his employment, net income, and expanses. This evidence supported the husband’s position that he was gainfully employed. The court found he was not required to work overtime just because he could earn more money. The appeals court noted that case law has consistently held that gainful employment is determined by what is usual and customary for the particular job and did not have to be 40 hours per week. The declarations he provided supported his position, but the trial court did not make any findings regarding the usual and customary hours or salaries in the husband’s field. The trial court’s determination that he earned less than he did in previous years was not sufficient to support a finding that he was underemployed.
Under RCW 26.19.071(6), a court may only impute income to a parent who is gainfully employed on a full-time basis if the court finds the parent is voluntarily underemployed purposely to reduce the child support obligation. The court must evaluate work history, education, health, age and other relevant factors to determine if the parent is voluntarily employed. If the parent has gainful, full-time employment, the court must also determine whether the parent is purposely underemployed to reduce child support. The trial court did not make written factual findings on these issues.
The appeals court found the imputed income was an abuse of discretion. Evidence showed the husband had full-time, gainful employment. The trial court did not find he was underemployed to reduce his child support obligation.
The appeals court reversed the trial court’s order and remanded with instructions to the trial court to recalculate child support based on the husband’s current earnings. The appeals court also instructed the trial court to reconsider the husband’s request for a downward deviation from the standard calculation.
This case shows that a change in income alone is not sufficient to support a finding of voluntary underemployment or imputed income. Furthermore, a parent may not have to work overtime to maintain an income, as long as the parent is not voluntarily underemployed to reduce child support. If you are dealing with a child support issue, a skilled Washington family law attorney can help you protect your rights. Call Blair & Kim, PLLC at (206) 622-6562 or contact us online to discuss your case.
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