Opinion
No. 64521-8-I.
November 15, 2010.
Appeal from a judgment of the Superior Court for Snohomish County, No. 84-3-02412-9, Kenneth L. Cowsert, J., entered October 28, 2009.
Reversed and remanded by unpublished opinion per Dwyer, C.J., concurred in by Ellington and Schindler, JJ.
Mark Wysling appeals the portion of a judgment for past due child support based on arrearages that accrued from 1984 through 1989. He contends the ten-year statute of limitations had run by the time his former wife, Bonnie Anderson, filed her petition regarding support in 2002. Following Valley v. Selfridge, 30 Wn. App. 908, 639 P.2d 225 (1982), we conclude the limitations period was not extended by a 1989 order that summarized support payments then past due. In addition, Wysling did not waive the statute of limitations by failing to plead it in his answer because Anderson did not seek the time-barred arrearages in her petition. Nor did Wysling waive the defense by dilatory conduct, because he asserted the limitations bar when Anderson first sought to recover those arrearages in a lien proceeding. Because the challenged claims were time-barred, we vacate the judgment and remand for entry of a judgment not including the claims for 1984 through 1989 back support and interest.
I
Anderson and Wysling dissolved their marriage in 1985. They entered an agreed decree of dissolution providing that their four-year old son would reside primarily with Anderson. The parties also agreed that Wysling would pay Anderson child support in the amount of $460 total per month.
The trial court ultimately determined that the $460 amount was comprised of $235 per month in actual support and $225 per month toward child care costs when they were incurred. This ruling is not challenged on appeal.
On July 28, 1989, the parties entered an agreed modification of the decree. They agreed their son would reside with Wysling for one year, that Wysling would not pay support for that year, and that when their son returned to reside with Anderson, Wysling's support obligation would resume at the prior amount. The order also explained that because there was an arrearage of approximately $3,400, Anderson would not pay Wysling any support while their son resided with him. The order granted no judgment against Wysling, but stated that Wysling should pay Anderson $200 per month for one year for the arrearage.
The parties' son thereafter resided with Wysling for eight years, not one. He returned to reside with Anderson in June 1997. Anderson did not pay Wysling support during that time.
Trial testimony established that Anderson's boyfriend, however, from time to time paid Wysling either $75 or $100 per month, amounting to a total over the years of approximately $5,200.
In October 2002, Anderson filed a pro se petition for modification, which originated the proceedings at issue here. She sought an order extending Wysling's child support obligation beyond their son's eighteenth birthday until he completed high school and was no longer dependent. She also requested that post-secondary educational support be ordered and that Wysling reimburse her for more than $8,000 in medical and legal expenses. The petition noted that there was a child support arrearage, but did not explain how it would be calculated and did not seek any judgment for past due child support or otherwise state a claim for any arrearage.
In Wysling's answer to the petition, he responded by, among other things, denying there was a substantial arrearage and asking the court to determine that he had no accrued support obligation.
In October 2003, Anderson sought and obtained a default judgment against Wysling. The judgment included an order that Wysling continue to pay support beyond the parties' son's eighteenth birthday, reserving the issue of post-secondary education, and ordering payment of unreimbursed special expenses. The order did not enter any judgment for past due child support, but indicated that the present judgment was in addition to any amounts that might be owing for past-due child support arrearages.
Wysling obtained an order vacating the default judgment in 2004. The order directed that all financial issues were referred to arbitration, including whether Wysling should be responsible for any accrued child support.
Meanwhile, Anderson had recorded a lien against property Wysling owned in Yakima County. Wysling subsequently moved to dismiss the lien. In her February 2008 memorandum opposing Wysling's motion, Anderson asserted, which she had not done in filing the initial lien, that the lien amount included the sum of $3,400 in arrearages due under the July 1989 modification order. In reply, Wysling argued, among other things, that the claim was barred by RCW 4.16.020, the ten-year statute of limitations in effect at the time the 1984 through 1989 support accrued.
The trial court denied the motion to vacate the lien but again directed that the correct amount of any arrearage would be determined in arbitration.
Arbitration commenced in July 2008. Anderson's counsel filed a prehearing statement of proof in which he stated: "Ms. Anderson has never asserted the arrearage accruing before July 28, 1989 in this litigation: She seeks recovery only for support arrearages and medical expense reimbursement since June 1997." The arbitration award, prepared jointly by counsel for the parties, did not include any award for arrearages from 1984 through 1989, or based on the $3,400 past due support referenced in the 1989 modification order.
Anderson requested a trial de novo, which occurred in March 2009. Following trial, the court issued a memorandum opinion that did not conclude Anderson was entitled to a judgment for any 1989 or earlier arrearage, granting only recovery for post-1997 arrearages and other costs and expenses. In preparing findings of fact and conclusions of law, however, Anderson included the 1984 through 1989 arrearages and accrued interest in the total amount of the judgment. Wysling objected to the findings by, again, raising the statute of limitations and other defenses, and pointing out that Anderson had expressly disclaimed seeking an award for those arrearages in the arbitration and had made no such claim during the trial proceedings until the conclusion of the case.
The trial court signed Anderson's proposed findings without comment, and similarly denied without comment Wysling's later motion for reconsideration in which he again raised the statute of limitations.
Wysling appeals.
II
We review statute of limitations rulings de novo. Washburn v. Beatt Equip. Co., 120 Wn.2d 246, 263, 840 P.2d 860 (1992). Here, the parties do not dispute that, as support payments came due in 1984 through 1989, each became a judgment for which the statute of limitations under RCW 4.16.020 at the time was ten years, which would normally bar Anderson's claim, filed in 2002. See Kruger v. Kruger, 37 Wn. App. 329, 332, 679 P.2d 961 (1984). They do, however, dispute the applicability here of the expanded statute of limitations provided by RCW 4.16.020(3), which became operative in 1989, just before the parties filed their 1989 agreed modification of the decree.
RCW 4.16.020(3) changed the pre-1989 manner of calculating the ten-year statute of limitations for past due child support by setting the start date for the running of the statute at ten years from
the eighteenth birthday of the youngest child named in the order for
whom support is ordered for an action to collect past due child support that has accrued under an order entered after July 23, 1989, by any of the above-named courts or that has accrued under an administrative order as defined in RCW 74.20A.020(6), which is issued after July 23, 1989.
Wysling takes the position that under Valley v. Selfridge, 30 Wn. App. 908, RCW 4.16.020(3) has no effect here. Despite the prominence of this case in Wysling's briefing, both here and in the trial court, Anderson makes no attempt to distinguish or even mention the case. Selfridge dictates the result we reach here.
In Selfridge, the mother divorced the father in 1969, and the terms of the decree ordered him to pay $200 per month in child support. He did not pay and she obtained a judgment against him in 1973 for $6,100 in delinquencies. The father paid only part of the delinquency. The mother later moved to another state and filed an action under the Uniform Reciprocal Enforcement of Support Act (URESA) to collect past and presently due support, and ultimately sought enforcement in a Spokane County Superior Court. In 1976, the Spokane court entered an agreed order that the father would pay $125 per month. The mother then made another claim in the Spokane court, this time specifically seeking all delinquent amounts dating back to 1969. The father answered that the then 6-year statute of limitations had run on any monthly arrearages accruing under the 1969 divorce decree, notwithstanding the 1973 order awarding a judgment for the accrued support. The Selfridge court agreed with the father:
Although a series of past-due support installments may be reduced to a judgment, it does not follow that this judgment is in lieu of the original judgment that vested on the date the support was due. Rather, the lumpsum judgment is an ancillary proceeding to clarify the amount where there is a question as to the amount of arrearage.
Selfridge, 30 Wn. App. at 914-15. The court accordingly held that a judgment determining arrearages is simply a means to clarify the amount owed and does not start a new, later date from which the statute of limitations will run. Selfridge, 30 Wn. App. at 915.
Preliminarily, we note that it does not appear that the 1989 order could come within the operation of RCW 4.16.020(3) in any event because it contained no judgment for support. But even assuming it did, under Selfridge, the 1989 order clearly did no more than clarify the amount owed and did not start a new date from which the limitations period would run. Selfridge, 30 Wn. App. at 915. As discussed above, Anderson does not cite or discuss Selfridge, much less provide any reasoned basis to distinguish it. And because we find no basis to distinguish Selfridge, we accordingly conclude that the 1989 order did not extend the operation of the statute of limitations for any 1984 through 1989 arrearages.
We note that Anderson actually cited one of the cases expressly following Selfridge on this point, see Kruger, 37 Wn. App. at 332 (applying Selfridge to the then-newly enacted ten year statute of limitations) for another proposition in her briefing for the trial court.
III
Anderson alternatively argues that Wysling waived the statute of limitations defense by failing to plead it as an affirmative defense in his answer as required by CR 8(c), and by dilatory conduct. We disagree.
CR 8(c) requires parties to plead affirmative defenses such as the statute of limitations in the answer to a pleading. Affirmative defenses that are not properly pleaded are generally deemed waived. Rainier Nat'l Bank v. Lewis, 30 Wn. App. 419, 422, 635 P.2d 153 (1981). Affirmative defenses may also be waived if the assertion of the defense is dilatory. King v. Snohomish County, 146 Wn.2d 420, 424, 47 P.3d 563 (2002) (citing Lybbert v. Grant County, 141 Wn.2d 29, 39, 1 P.3d 1124 (2000)).
CR 8(c) ("Affirmative Defenses. In pleading to a preceding pleading, a party shall set forth affirmatively . . . statute of limitation . . . and any other matter constituting an avoidance or affirmative defense.").
Anderson's waiver argument is based on a strict reading of CR 8(c) as set forth in our Supreme Court's 1955 decision in Boyle v. Clark, 47 Wn.2d 418, 287 P.2d 1006 (1955). But it is not consistent with more recent authority from that court and the Court of Appeals.
Twenty years after Boyle, our Supreme Court explicitly endorsed a more flexible reading of the CR 8(c) requirement in Mahoney v. Tingley, 85 Wn.2d 95, 529 P.2d 1068 (1975). There, the court explained that because the underlying policy of CR 8(c) is to avoid surprise, "federal courts have determined that the affirmative defense requirement is not absolute. Where a failure to plead a defense affirmatively does not affect the substantial rights of the parties, the noncompliance will be considered harmless." Mahoney, 85 Wn.2d at 100 (citing Tillman v. Nat'l City Bank, 118 F.2d 631, 635 (2nd Cir. 1941)).
Cases in this court have followed the more liberal interpretation of CR 8(c) set forth in Mahoney. In Bernsen v. Big Bend Electric Cooperative, Inc., 68 Wn. App. 427, 842 P.2d 1047 (1993), this court affirmed the trial court's decision that the defense of failure to mitigate had not been waived by the defendant even though it was not raised in the pleadings. Bernsen, 68 Wn. App. at 433-34 ("[I]f the substantial rights of a party have not been affected, noncompliance is considered harmless and the defense is not waived."). Likewise, in Hogan v. Sacred Heart Medical Center, 101 Wn. App. 43, 2 P.3d 968 (2000), the court concluded that the defendant had not waived its ability to assert release as an affirmative defense, despite failing to raise it in the pleadings. Hogan, 101 Wn. App. at 54-55. Because the plaintiff suffered from neither surprise nor prejudice as a result of the defendant's delay in asserting the defense, the court reasoned that "the failure to affirmatively plead release did not affect substantial rights of [the plaintiff]." Hogan, 101 Wn. App. at 55.
We follow the current, liberal interpretation articulated by the Washington courts and conclude here that Anderson's substantial rights were not affected by Wysling's failure to raise the statute of limitations as a defense in his answer to Anderson's 2002 petition to modify child support.
First, it cannot be said that Anderson's initial 2002 pleading put Wysling on notice that it would be necessary to establish a statute of limitations defense to any claim for past due child support because she stated no claim for past due child support. Only when Anderson sought to defend the Yakima County lien did she, for the first time, make a claim for the 1984 through 1989 delinquent payments. Wysling appropriately replied to that request by raising the statute of limitations along with laches and other defenses.
Thereafter, Wysling could have reasonably perceived Anderson's actions as abandoning any such claim. Anderson did not seek or obtain a judgment for the 1984 through 1989 delinquencies during arbitration. Nor did she state such a claim in her trial brief for the trial de novo. In addition, as Wysling contends, Anderson did not make it clear during her trial testimony that she was making any such claim. Rather, her testimony focused on special expenses and support owing after their son had returned to live with Anderson in 1997. We also agree with Wysling that the trial court's memorandum decision further suggests that it did not appear during trial that Anderson had changed her position to seek recovery of pre-1989 delinquencies. In its memorandum decision, the trial court laid out the way in which it believed arrearages should be calculated and made no provision for 1984 through 1989 arrearages, instead granting relief for the post-1997 period when the parties' son again resided with Anderson.
Indeed, during one portion of Anderson's testimony, while being questioned by the trial judge, she stated it was her intent and understanding that the past due support referenced in the 1989 order would have been reduced in some amount because she was not paying Wysling support during the time their son resided with Wysling.
While Anderson correctly argues that a memorandum decision, not incorporated into findings, conclusions or a judgment, does not possess final legal effect, we here consider the memorandum decision only as evidence of the nature of the proceedings pertinent to our de novo review of the statute of limitations issue.
Anderson has made no specific claim of prejudice in her briefing, and we conclude that the record shows neither surprise nor prejudice. Anderson's substantial rights were not affected by Wysling's failure to plead the statute of limitations in his response to the petition to modify support. Wysling's noncompliance with CR 8(c) is therefore harmless.
Anderson also argues that Wysling waived the statute of limitations by engaging in dilatory conduct. "Th[is] doctrine is designed to prevent a defendant from ambushing a plaintiff during litigation either through delay in asserting a defense or misdirecting the plaintiff away from a defense for tactical advantage." King, 146 Wn.2d at 424.
Anderson's argument is not supported by the record. There is no evidence that Wysling's delay in asserting the defense was dilatory. Wysling raised the defense well before trial during the lien proceedings, and for the reasons stated above, was justified in concluding, at least until the end of trial, that Anderson had dropped the claim from the overall relief she was seeking.
Anderson also suggests that Wysling should have been required to raise the defense earlier because his initial answer to the 2002 petition included a counterclaim that he be found to owe no arrearages. But even if Wysling's answer stated a counterclaim, Anderson cites no authority that failing to raise a statute of limitations defense becomes prejudicial merely because a party asserts a counterclaim. Moreover, available authority establishes that asserting a counterclaim does not generally waive a statute of limitations defense. See Taplett v. Khela, 60 Wn.App. 751, 760, 807 P.2d 885 (1991) ("Given the general policy considerations of CR 8(e), we refuse to hold that a party waives a statute of limitation defense to a claim by filing a counterclaim.") Finally, given the procedural history, we cannot find any prejudice to Anderson in any event because, as noted above, Wysling expressly asserted the statute of limitations defense the first time Anderson stated a claim for the 1984 through 1989 arrearages in the lien proceedings.
On our de novo review of the entire record, we conclude that the portion of the judgment based on the 1984 through 1989 delinquent payments and the 1989 order modifying the decree cannot stand, including the portion of the judgment assessing interest on those delinquencies. We accordingly vacate the current judgment and remand only for entry of a reduced judgment that does not include those amounts.
WE CONCUR: