MORGAN, J.
James Zukowski filed a motion for reimbursement of child support. The trial court denied the motion. We affirm. Deborah Baker and James Zukowski were formerly married. They had a child, Douglas, born on June 25, 1988. In 1992, when their marriage ended, they agreed that Baker would have custody and that Zukowski would have visitation. Douglas' support required $427 per month, plus $425 per month for day care, of which Zukowski was to pay 60 percent and Baker 40 percent. Nonetheless, they agreed that Zukowski would pay $300 per month through September 1992, and $450 per month thereafter. On September 22, 2000, Baker filed a motion for contempt. She claimed that Zukowski had not paid child support from November 1999, through September 2000. She requested $4,500 in delinquent child support, $540 interest on delinquent support, and $250 in costs. Zukowski did not respond, so on November 13, 2000, the court granted Baker's motion. In addition to finding Zukowski in contempt, the court ordered him to pay $5,790 ($4500 in back support through September 2000, $540 interest, $500 attorney fees, and $250 costs). The court provided that he could purge his contempt by bringing his obligation current before December 22, 2000. On December 20, 2000, Zukowski filed a `Motion For Application of Overpayment of Day Care Expenses[.]' He claimed that Baker had not actually incurred day care expense since at least September 1994, and that he was entitled to be reimbursed for $15,810, representing his day care payments from September 1994 through October 1999. On December 22, 2000, Baker filed a `Petition for Support Modification[.]' She asked the court to find that Zukowski was voluntarily underemployed, and to impute to him $2610 per month in income. She asked that he henceforth be responsible for two-thirds (up from 60 percent) of Douglas' total support, with a monthly payment of $542 per month. She said she was currently spending $50 per month for day care. On January 12, 2001, Zukowski filed a financial declaration. He claimed a net monthly income of $1773 and estimated Baker's net monthly income at $1633. He asked that he be responsible for 52 percent of Douglas' support, and Baker be responsible for 48 percent As far as we can tell, he claimed that his child support obligation should be set at $302 per month. On February 5, 2001, the court entered `Findings and Conclusions on Modification of Child Support[.]' It ordered Zukowski to pay $1,800 in back child support from October 2000 through January 31, 2001, $45.46 in interest, and $2,000 in attorney's fees. With respect to current support, the court found that Zukowski was `chronically underemployed for the purposes of avoiding Child Support[,]' imputed income of $2610 per month, and ordered him to pay 62. percent of Douglas' support. On May 7, 2001, after some intervening proceedings not pertinent here, the court entered a written `Order on Modification of Child Support'fn5 that required Zukowski pay $462 per month in child support. The same day, the court also entered a written `Order Re: Respondent's Motion for Reimbursement of Past Day Care Payments[,]' supported by findings of fact. Based on these findings, the court ruled that '[r]espondent's petition for reimbursement for past day care payments is denied.' Zukowski then filed this appeal, in which he claims that the trial court erred by denying him reimbursement for child care expenses that he had paid but Baker had not incurred.
Supp. Clerk's Papers (CP) at 5.
CP at 11.
CP at 70.
CP at 80.
CP at 106.
CP at 114.
CP at 116.
RCW 26.19.080(3) is the controlling statute. Effective June 6, 1996, it provides:
Day care and special child rearing expenses, such as tuition and long-distance transportation costs to and from the parents for visitation purposes, are not included in the economic table. These expenses shall be shared by the parents in the same proportion as the basic child support obligation. If an obligor pays court or administratively ordered day care or special child rearing expenses that are not actually incurred, the obligee must reimburse the obligor for the overpayment if the overpayment amounts to at least twenty percent of the obligor's annual day care or special child rearing expenses. The obligor may institute an action in the superior court or file an application for an adjudicative hearing with the department of social and health services for reimbursement of day care and special child rearing expense overpayments that amount to twenty percent or more of the obligor's annual day care and special child rearing expenses. Any ordered overpayment reimbursement shall be applied first as an offset to child support arrearages of the obligor. If the obligor does not have child support arrearages, the reimbursement may be in the form of a direct reimbursement by the obligee or a credit against the obligor's future support payments. If the reimbursement is in the form of a credit against the obligor's future child support payments, the credit shall be spread equally over a twelve-month period. Absent agreement of the obligee, nothing in this section entitles an obligor to pay more than his or her proportionate share of day care or other special child rearing expenses in advance and then deduct the overpayment from future support transfer payments.
When a claim for reimbursement is based on the common law, the person making it bears the burden of proving it. We see no reason to apply a different rule here. Accordingly, we hold that when a claim for reimbursement is based on RCW 26.19.080(3), the person making it bears the burden of proving the facts needed to support it.
Clark v. Luepke, 60 Wn. App. 848, 851-52, 809 P.2d 752 (1991), aff'd, 118 Wn.2d 577 (1992); 66 Am. Jur.2d Restitution and Implied Contracts sec. 97 (1973).
See In re Marriage of Mattson, 95 Wn. App. 592, 601-02, 976 P.2d 157 (1999).
Zukowski is the claimant here. He said in his December 20 motion: `No day care services have been engaged since September 1994, or earlier.' He offered no other testimony or evidence on the issue. He does not say that he had personal knowledge concerning day care, and he well may not have, given his repeated complaints about Baker's failure to provide him with documents regarding day care. Nonetheless, we will address two questions:
Supp. CP at 6.
(1) Assuming Zukowski lacks personal knowledge about day care, did the trial court err by ruling as it did? (2) Assuming that Zukowski has personal knowledge, did the trial court err by ruling as it did? The first question is easily answered. If Zukowski lacked personal knowledge about day care, he presented no competent evidence about day care, and he failed to bear his burden of proving his claim for reimbursement.
The second question requires us to recognize that a claim brought under RCW 26.19.080(3) is subject to equitable defenses. As we recently said in In re Marriage of Barber:
In summary, we hold that reimbursement of overpaid day care or special child rearing expenses pursuant to RCW 26.19.080(3) is generally mandatory for payments made after June 6, 1996. But nothing in RCW 26.19.080(3) prevents the party receiving the alleged overpayment from raising equitable defenses, including laches and equitable estoppel, as a bar to a request for mandatory reimbursement for overpaid day care costs under this statute.
Here, the trial court found in part as follows:
5. . . . [Zukowski] had the knowledge and the ability to seek relief from this obligation at any time in the past several years by bringing forth a motion to seek such relief as may have been available.
6. . . . [Zukowski] has brought his action after some several years when there is no way to reconstruct what was paid at what time for the alleged arrearage.
7. . . . [H]ad [Zukowski] brought such a motion it was equally as likely that [Zukowski] would have had his Child Support increased as a result of his income.
8. . . . [Zukowski's] motion is brought to seek a remedy for payment of Child Support obligations into the future and to defend against unpaid payments of child support accruing in the past. . . .
If Zukowski had personal knowledge about Baker not incurring day care expenses, it is reasonably inferable that he acquired that knowledge at the times she was not incurring them. Thus, Finding 5, and the others findings that follow from Finding 5, are all supported by substantial evidence. In other words, if Zukowski had personal knowledge between 1994 and 1999, he could have sought relief `any time in the past several years,' the court might have been able to reconstruct who had paid what amounts toward what expenses, and he likely would have had his support obligation increased at a much earlier time. Accordingly, we conclude that Zukowski has failed to prove his claim unless he has personal knowledge about the day care expenses that Baker was or was not incurring between 1994 and 1999; but if he has personal knowledge, he probably had it between 1994 and 1999, he delayed unreasonably and inequitably in seeking reimbursement, and the trial court had discretion to allow Baker's equitable defenses. Whether he lacked personal knowledge or had it, we should affirm.
CP at 115.
Affirmed.
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.
HUNT, C.J. and SEINFELD, J., concur.