New court ruling - unpublished

[4honor]

Dad and mom divorce, Mom gets custody, but Dad ends up with custody and or shared custody. Mom agrees to no CS, but Dad fails to go get CS order dropped. Mom tells WA she does not want CS enforcement. Mom gets mad at Dad and takes him back to court for unpaid  CS - though Dad has physical custody at the time. Court says dad has to pay in excess of $65K in back support. Dad appeals. This is the ruling:

 
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   DO NOT CITE.  SEE RAP 10.4(h).

                          Court of Appeals Division II
                               State of Washington

                            Opinion Information Sheet

Docket Number:       32621-3-II
Title of Case:       Linda Marie Simpson, Respondent v. Adam Del
                     Wade Simpson, Appellant
File Date:           04/04/2006


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Pierce County
Docket No:      94-3-04334-9
Judgment or order under review
Date filed:     11/05/2004
Judge signing:  Hon. Stephanie a Arend


                                     JUDGES
                                     ------
Authored by Christine Quinn-Brintnall
Concurring: Marywave Van Deren
            J. Robin Hunt


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Timothy R. Gosselin
            Attorney at Law
            1145 Broadway Ste 400
            Tacoma, WA  98402-3584

Counsel for Respondent(s)
            John Theodore Jr Robson
            Attorney at Law
            2554 Locust Ave W Ste B
            University Place, WA  98466-3561


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION  II

In re the Marriage of            No.  32621-3-II

LINDA M. SIMPSON,

                    Respondent,

     v.

ADAM DEL WADE SIMPSON,           UNPUBLISHED OPINION

                    Appellant.

     QUINN-BRINTNALL, C.J.   Adam Del Wade Simpson appeals an order finding him in contempt for failure to pay back child support and entering judgment in favor of his former wife, Linda Simpson.  He argues that the court erred by (1) refusing to enforce the parties' alternative custody/support agreement as against public policy; and (2) failing to consider fully his laches argument.  We reverse and remand for additional proceedings.

FACTS
     Adam and Linda* divorced in April 1996.  At that time, the court
awarded primary custody of the couple's only child to Linda and ordered
Adam to pay $454 per month in child support.  Although it appears that Adam periodically assumed primary, if not exclusive, custody of the child,* neither party has ever asked the court to modify the 1996 order.

     Linda twice accused Adam of violating the parenting plan by failing to
return the child after scheduled visitation.  The state once charged Adam
with felony custodial interference, but the charge was dismissed when the jury was unable to reach a unanimous verdict at trial.  The state also
attempted to enforce the child support obligations, but Linda apparently
requested that the state terminate these enforcement proceedings.
In June 2004, Linda filed a contempt action asking that the court find Adam in contempt of the 1996 child support order for failure to pay support. She requested a judgment in her favor for back child support, prejudgment interest, and costs and fees.3  In her supporting declaration, she asserted that the 1996 order had not been modified; that Adam had made only 12 partial child support payments since the 1996 order was entered; that he never paid child support voluntarily; and that he was hiding his income in order to avoid making the child support payments.

     In response, Adam filed a pro se motion to dismiss, arguing
insufficiency of process and failure to state a claim on which relief can
be granted.  He also pleaded three 'affirmative defenses':  (1) prior
agreement of the parties; (2) collateral estoppel;4 and (3) laches.  In
support of his prior agreement defense, Adam argued that as early as 2000, he and Linda had agreed to share custody equally and to waive any child support.  In support of his laches argument, he asserted that Linda knew of the facts constituting the claim of action, that her delay in pursuing the claim was unreasonable, that she had led him to believe they had an operative alternative agreement about child support, and that her representations caused him to rely on this apparent agreement.  He also asserted that Linda's failure to participate in the earlier state enforcement actions supported his laches argument.

     In a supplemental declaration, Linda denied agreeing to modify the
parenting plan or child support obligation.  She asserted that Adam had
regularly interfered with the custody arrangements; that they had
consistently fought over custody issues; that she did not previously pursue enforcement through the courts because Adam was mentally unstable, abusive, and threatening and she was afraid of him; that Adam believed he was the custodial parent and claimed that Linda had to have his permission to contact the child; and that when she initiated the current proceedings he once again took the child.  She further stated that she had not attempted to recover the child through the courts 'because of expense and futility.' Clerk's Papers (CP) at 56.

     On October 12, 2004, a commissioner heard Linda's motion.  Adam's
recently retained counsel argued that Adam was not in contempt because the parties had reached an alternative agreement and laches applied.

Specifically, he asserted that Linda's refusal to pursue enforcement
through the State's earlier proceedings established unreasonable delay.
The commissioner, apparently addressing this specific argument, stated that the delay in bringing this particular action was 'not unusual.'  See Report of Proceedings (RP) (Oct. 12, 2004) at 15.

     After considering the pleadings and argument,5 the commissioner stated on the record that he found Adam in contempt and that he refused to consider the purported alternative agreement because such agreements were against public policy.6  In his written findings, the commissioner found that Adam 'intentionally failed to comply' with the 1996 order by failing to pay child support as ordered, CP at 59, and entered a judgment in favor of Linda for $44,961.63 for child support arrearages and $20,362.04 in prejudgment interest.  The commissioner's written findings of fact and conclusions of law did not address Adam's defenses or either party's compliance with the parenting plan's residential provisions.

     Adam moved pro se for revision of the commissioner's ruling.  The
superior court denied the motion for revision and adopted the
commissioner's decision.  Adam appeals.

ANALYSIS

     Adam challenges the contempt order on grounds that the court failed to properly consider his defenses.7  Specifically, he argues that (1) the
court erred in concluding that it could not consider the effect of the
purported alternative agreement between the parties because such agreements were void as against public policy, and (2) the court erred by not considering his laches defense.8

     When reviewing a commissioner's ruling on revision, the superior court examines all of the evidence and issues presented to the commissioner de novo.  It then applies a de novo review standard to the commissioner's findings of fact and conclusions.9  State v. Ramer, 151 Wn.2d 106, 113, 86 P.3d 132 (2004).  Once the superior court makes a decision on revision, any further appeal is from the superior court's decision, not the commissioner's ruling.  Ramer, 151 Wn.2d at 113.  On appeal, we review a superior court order denying a motion for revision to determine whether the superior court abused its discretion and authority under RCW 2.24.05010 when it denied the motion for revision.  In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990).  Under this standard, we do not substitute our judgment for that of the superior court unless its decision rests on unreasonable or untenable grounds.  Griffin, 114 Wn.2d at 779.

     Adam argues that it was error for the commissioner to refuse to
consider the purported alternate agreement between him and Linda and that the superior court should have granted his motion to revise the
commissioner's decision on that basis.  We agree.

     The commissioner's oral ruling indicates that he refused to consider
the purported alternate agreement because such agreements are against
public policy.  The commissioner was correct that prospective agreements to alter child support obligations are against public policy because child support is for the child's benefit and the custodial parent has no personal interest in the child support money.  Hartman v. Smith, 100 Wn.2d 766, 768, 674 P.2d 176 (1984); Ditmar v. Ditmar, 48 Wn.2d 373, 374, 293 P.2d 759 (1956); In re Marriage of Pippins, 46 Wn. App. 805, 808, 732 P.2d 1005 (1987).  But this prohibition on prospective enforcement of alternate child support agreements does not necessarily extend to prohibit the court from considering such agreements for any purpose, such as calculating the proper amount of any past due child support.

     Public policy does not bar agreements affecting retrospective child
support payments.  Because payment of past due support reimburses the custodial parent for moneys actually expended, a cause of action for past due support 'lies with the custodial parent--not with the child.'  Hartman, 100 Wn.2d at 768.  Although retrospective support payments are not generally subject to modification because each payment 'vests when due,' Hartman, 100 Wn.2d at 768, Washington courts will, under the proper circumstances, apply 'equitable principles to mitigate the harshness of particular claims for retrospective support if it will not work an injustice to the custodian or the child.'11  In re Marriage of Capetillo, 85 Wn. App. 311, 316-17, 932 P.2d 691, review denied, 132 Wn.2d 1011 (1997).

     To the extent the commissioner ruled that an agreement between Adam and Linda purporting to end or alter Adam's continuing child support obligation was void as against public policy, the commissioner did not err.

But the commissioner's refusal to consider any agreement between the
parties for any purpose was improper because the purported agreement was potentially relevant to equitable defenses that Adam was entitled to raise such as laches or equitable estoppel.  Adam clearly raised a laches defense and, although his pro se pleadings did not specifically state that he was raising an equitable estoppel argument, his 'prior agreement' argument could be construed as such an argument.  Because this error prevented the court from fully examining the merits of Adam's equitable arguments, remand is required.12  We note that on remand the trial court should also address when and to what extent each parent acted as the child's residential parent; whether they actually shared custody; and what effect, if any, the actual custody of the child should have on any child support obligations.

     Linda requests attorney fees on appeal under RCW 26.18.160.13  Because Linda is not the prevailing party at this time, her request for attorney fees under RCW 26.18.160 is denied.

     Accordingly, we reverse and remand for further proceedings consistent with this opinion.

     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 pursuant to RCW 2.06.040, it is so ordered.

                                 QUINN-BRINTNALL, C.J.
We concur:

HUNT, J.
VAN DEREN, J.

1 We use the parties' first names for clarity.

2 The record suggests that Adam may have had primary custody of the child as of the time of the contempt hearing in October 2004, but it is unclear whether his custody was exclusive or when it began.  Additionally, the record suggests that Adam may have had primary custody of the child (1) from sometime in December 1996, to at least February 12, 1997; and (2) from July 5, 1997, until at least mid-December 1997.

3 Linda also requested 'make up residential time, as may be appropriate.' Clerk's Papers (CP) at 4.  Nothing in the record shows that the commissioner considered any custody or visitation issues and neither party raises any custody or visitation issues on appeal.

4 Adam does not raise any issues related to his collateral estoppel
argument on appeal.

5 The commissioner did not hear any testimony.

6 The commissioner stated:
     As far as I'm concerned, there is a contempt finding in this case; and
I will enter the Judgment of $65,323.67 for unpaid support.  I think it's
consistent with (Decker v. Decker, 52 Wn.2d 456, 326 P.2d 332 (1958)),
(Corrigeux v. Corrigeux, 37 Wn.2d 403, 224 P.2d 343 (1950)), (In re
Marriage of Young, 26 Wn. App. 843, 615 P.2d 508 (1980)), State ex rel.
Foster v. Superior Court (for Yakima County, 193 Wash. 99, 74 P.2d 479
(1937), overruled in part on other grounds by Decker, 52 Wn.2d at 467)
. . . Certainly Decker is the first case when any child support or spousal-
support-related issues come before the Court on contempt.  They're subject to contempt, as such. . . .
     
     . . . And certainly, the Court can entertain that at a later date; but
the fee request of $350 at this point -- I'm not going to award the $1,500
that you're asking for, but I think there's been a lot of horsing around in
this case.  Certainly, the child -- those monies, quite frankly, are not
your client's.  They are held in trust for the child --
     . . . .
     -- and that child can enforce the collection of that in her own right,
and so that's what we have to deal with, but that's a significant amount of support, and I'm satisfied that it hasn't been paid unless you have proof that there has been payment.  I'm not accepting these agreements of the parties.  I don't think they're -- I think they're against public policy, as far as I'm concerned.  All right. RP (Oct. 12, 2004) at 22-24.

7 'Once the superior court makes a decision on revision, 'the appeal is
from the superior court's decision, not the commissioner's.''  State v.
Ramer, 151 Wn.2d 106, 113, 86 P.2d 132 (2004) (quoting State v. Hoffman, 115 Wn. App. 91, 101, 60 P.3d 1261 (2003)).  Thus, even though Adam's arguments on appeal focus on the commissioner's actions, he is only entitled to appeal the denial of his motion to revise the commissioner's decision.

8 Linda asserts that Adam also argues that the superior court made its
decision without reviewing the entire file or the report of proceedings.
Although Adam mentions the possible lack of record on review, he does not raise any arguments related to this alleged deficiency.  Furthermore, even if he did, the record does not support such an assertion.

9 Linda argues that Adam failed to present these arguments below and cannot now raise them on appeal.  Although Adam does not appear to have raised these same issues in his motion to revise the commissioner's ruling, the record shows that he presented and argued essentially these issues before the commissioner.  Given that the superior court reviews all the evidence and issues presented to the commissioner, Adam has not waived these arguments.  See Ramer, 151 Wn.2d at 113 (citing In re Marriage of Moody, 137 Wn.2d 979, 993, 976 P.2d 1240 (1999); State v. Wicker, 105 Wn. App. 428, 433, 20 P.3d 1007 (2001)).

10 RCW 2.24.050 provides:
All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court.  Any party in interest may have such revision upon demand made by written motion, filed with the clerk of the superior court, within ten days after the entry of any order or judgment of the court commissioner.  Such revision shall be upon the
records of the case, and the findings of fact and conclusions of law
entered by the court commissioner, and unless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.

11 We note that, in this context, the 'trial court does not have unfettered
discretion to relieve the payor from past due support payment.  Rather, it must identify an equitable principle that justifies departure from the
general rule that support obligations will not be modified
retrospectively.'  In re Marriage of Hunter, 52 Wn. App. 265, 269, 758 P.2d 1019 (1988), review denied, 112 Wn.2d 1006 (1989).

12 Because we conclude that the court must consider Adam's laches argument in light of this purported agreement, we need not reach Adam's argument asserting that the commissioner did not properly resolve his laches claim. 13 RCW 26.18.160 provides:

In any action to enforce a support or maintenance order under this chapter, the prevailing party is entitled to a recovery of costs, including an award for reasonable attorney fees.  An obligor may not be considered a prevailing party under this section unless the obligee has acted in bad faith in connection with the proceeding in question.