By Melanie A. Maxwell and Megan Stanley
In Washington, child support and whether either parent of minor children in a family law proceeding should be ordered to pay a child support transfer payment is based upon the economic table established by the state and set forth at RCW 26.19.020. RCW 26.19.075 identifies a five-point, discretionary, non-exclusive list of reasons to justify a deviation from the basic or standard child support calculation:
(1) “Sources of income and tax planning” (RCW 26.19.075 (1)(a));
(2) “Nonrecurring income” (RCW 26.19.075(1)(b));
(3) “Debt and high expenses” (RCW 26.19.075(1)(c));
(4) “Residential schedule” (RCW 26.19.075(1)(d); and
(5) “Children from other relationships” (RCW 26.19.075(1)(e)).
Each of the above categories identifies several common scenarios that the court may consider. For instance, the “[e]xtraordinary income of a child” may qualify for a deviation under RCW 26.19.075(1)(a)(vii). “[N]onrecurring income may include overtime, contract-related benefits, bonuses, or income from second jobs”. RCW 26.19.075(1)(b). “Debt and high expenses” may include “[s]pecial needs of disabled children”. RCW 26.19.075(1)(c)(iii). The most common basis for deviation is the residential schedule for the children. “[I]f the child spends a significant amount of time” with the payor (the “obligor” parent), the court may account for that time with a relatively lower transfer payment. RCW 26.19.075(1)(d). The court may also deviate from the standard calculation on a case-by-case basis for support that the obligor pays for “[c]hildren from other relationships”. RCW 26.19.075(1)(e).
In a substantial number of cases in King County, because there is a high percentage of cases with parents agreeing to substantially equal parenting time, parents often also agree for neither parent to pay the other a monthly child support transfer payment. In this type of scenario, both parents may have sufficient resources in their households (for example, each parent earns close to or over $100,000) to support the children without the need for a transfer payment from the other parent. However, if the parents’ incomes are substantially different, it is appropriate for the higher earning parent to pay a monthly transfer payment so that the lower earning parent has sufficient resources in their household to support the children.
The child support schedules are archaic since they are still geared to the previous standard—every other weekend dad and one earner household scenarios. In the six amendments since its enactment in 1988, the economic table has seen no further refinement to guide practitioners who represent parties with combined, monthly net incomes that exceed $12,000. It is common knowledge that in King County, very few families can afford to live on incomes of less than six figures and, therefore, the majority of cases with child support orders that are reviewed by the court exceed combined net incomes of $12,000. The state economic tables have not been updated to account for this very common scenario in King County, other than to require that per RCW 26.19.020, the court make “written findings of fact” that a deviation from the standard child support transfer payment is appropriate and should be ordered.
It is unknown when or if the WA State Legislature will address this issue. Until such time as the Legislature does act, the following case authorities may provide guidance:
In a recent case involving a parent who had failed to exercise his residential time, Division Three of the Court of Appeals confirmed that, “[f]or a [combined] net monthly income that exceeds $12,000, the economic table is advisory and the court may exceed the presumptive amount of support on written findings of fact.”1 The court deviated upward from the presumptive amount for a reason that is not listed within RCW 26.19.075, namely: to account for the increased financial burden on the parent who is forced to care for the child full-time, due to the other parent’s failure to exercise his residential time.2 Selley affirmed that the court generally has the “discretion to deviate from the basic child support obligation based on the facts of a particular case.”3 There is no “specific formula” for such deviations. This approach could apply to practically any set of factual circumstances and is not limited to the facts of the Selley case.
Another case involved a parent who requested an advisory, upward deviation from the transfer amount to cover “school supplies, school trips, school-required computer software, entertainment, health club dues, health insurance copayments, nonprescription medicines, vacations, sports activities, music lessons, pets, birthday parties, and personal items such as clothing and haircuts.” The parents’ combined, monthly net incomes exceeded the support schedules’ upper income limit of $7,000 applicable at the time.
In the Matter of the Marriage of Krieger.4 The Krieger court ruled that the upward deviation should reflect that “the additional support . . . [is] necessary and reasonable, in light of the parents’ financial circumstances.”5 A non-exclusive list of basic factors for the court’s consideration includes “the children’s ‘special medical, educational or financial needs.’”6
In the Fiorito case where the parents’ combined incomes exceeded the existing high-income limit,7 the court held that in such circumstances, ‘the trial court must consider what additional amounts should be paid ‘commensurate with the parents’ income, resources, and standard of living’, in light of the totality of the circumstances.’” Fiorito is also an excellent, “cautionary tale” about avoiding evidentiary pitfalls, such as “overstating” and failing to provide sufficient evidence of the children’s additional needs (including but not limited to “private school costs”).8 Another factor that the Fiorito court found relevant was the children’s inheritance funds following the imminent death of their father from cancer. Those funds were deemed more than sufficient to account for the children’s needs going forward.
“[D]eviation from the standard support obligation remains the exception to the rule and should be used only where it would be inequitable not to do so.”9 In a more recent, unpublished Division I opinion, the court granted a deviation when the parents had a substantially equal parenting schedule and close to equal incomes. “The trial court acted within its discretion in finding that the father was entitled to a deviation from $1,254 to $300.”10
Unless and until the WA State Legislature updates the economic table, practitioners with high income clients should encourage the parties to make agreements that suit their families’ needs rather than risking the court making a discretionary finding that neither parent may consider fair and appropriate.
While this may seem like a period of continued ambiguity, so also is it a period of opportunity to “create” the law as the facts arise on a case-by-case basis when parents cannot agree regarding child support. The work that we do now may well inform future decisions in this important area of family law practice.
Melanie A. Maxwell is an associate attorney at Meridian Family Law, PLLC and practices in family, guardianship and conservatorship law. She may be reached at mmaxwell@meridianfamilylaw.com.
Megan Stanley is a senior partner at Meridian Family Law, PLLC. She represents clients in complex family law matters and provides mediation services in family law matters. She may be reached at mstanley@meridianfamilylaw.com.
1 In re Selley, 189 Wn.App. 957, 960 (2015), rev den 192 Wn.2d 1014 (2019).
2 Citing State ex rel. M.M.G. v. Graham, 159 Wn.2d 623, 636 (2007).
3 M.M.G. v. Graham at 636.
4 No. 61219-1, at 8 (2008).
5 Kreiger at 9.
6 Kreiger at 9 (citing In re Marriage of McCausland, 159 Wn.2d 607, 620 (2007).
7 In re Marriage of Fiorito,112 Wn.App. 657, 50 P.3d 298, 303 (2002); Division One of the Washington Court of Appeals approved Leslie v. Verhey, 90 Wn.App. 796, 954 P.2d 330 (1998), rev. den. 137 Wn.2d 1003, 972 P.2d 466 (1999).
8 Fiorito, 50 P.3d at p. 304.
9 In re Marriage of Burch, 81 Wn.App. 756, 760, 916 P.2d 443 (1996); see also Marriage of Goodell, 130 Wn.App. 381, 391 (Wash. Ct. App. 2005).
10 Nilsen v. Lowe (In re Devon), 1 Wn.App. 2d 1019 (Wash. Ct. App. 2017, unpublished).
