Opinion
No. 57215-6-I.
December 18, 2006.
Appeal from judgments of the Superior Court for King County, No. 99-3-07767-2, LeRoy McCullough, J., entered October 3 and 25, 2005.
Counsel for Appellant(s), Catherine Wright Smith Edwards Sieh Smith Goodfriend PS 1109 1st Ave Ste 500 Seattle, WA, 98101-2988.
Devin T Theriot-orr Edwards Sieh Smith Goodfriend 1109 1st Ave Ste 500 Seattle, WA, 98101-2988.
Counsel for Respondent(s), Patricia S. Novotny Attorney at Law 3418 Ne 65th St Ste A Seattle, WA, 98115-7397
Affirmed by unpublished per curiam opinion.
Rick Krell and his former wife Catherine entered a complete agreed decree of dissolution, which did not incorporate by reference or even mention any other document. The trial court did not abuse its discretion in denying Rick's CR 60(a) motion five years later to alter the decree's maintenance provision to conform to an alleged pretrial agreement because the trial record does not show any clerical error in the decree. We affirm.
FACTS
In 2000, Catherine and Rick Krell dissolved their 24 year marriage. Rick was a successful dentist, and Catherine had not worked outside the home for many years. The agreed findings of fact, decree of dissolution, and order of child support valued and divided the marital property, provided for support for the couple's minor children, and ordered $4,000 per month in nonmodifiable maintenance to Catherine until she died or remarried. The dissolution decree was entered on an ex parte calendar before King County Superior Court Commissioner Stephen Gaddis.
The parties' first names are used for the sake of clarity. No disrespect is intended.
In 2004, Rick's attorney contacted Catherine's former counsel. Referencing a document the parties and counsel had signed in August 2000 entitled "CR 2A Stipulation of Settlement and Agreement to Enforce," which provided for a maintenance award of 60 months, Rick's counsel requested assistance in amending the decree. Catherine's former counsel declined to cooperate, and Rick later filed a motion under CR 60(a) to correct what he characterized as the clerical error of omitting the 60 month limit. Court Commissioner Leonid Ponomarchuk denied Rick's motion, and Superior Court Judge Leroy McCullough denied Rick's motion for revision. Rick appeals.
DECISION
CR 60(a) provides:
Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. Such mistakes may be so corrected before review is accepted by an appellate court, and thereafter may be corrected pursuant to RAP 7.2(e).
This court reviews a trial court's decision whether to vacate or amend a judgment or order under CR 60 for an abuse of discretion. We will not overturn the decision unless the trial court exercised its discretion on untenable grounds or for untenable reasons.
Shaw v. City of Des Moines, 109 Wn. App. 896, 900, 37 P.3d 1255 (2002).
Id. at 901.
A court may use CR 60(a) to correct clerical errors. A clerical error is merely a mechanical mistake, contrasted with a judicial error, which is one of substance. The test in determining whether an error is "clerical" or "judicial" is whether the amended judgment reflects the court's intention as expressed in the trial record. If the corrected judgment embodies the court's intentions, the error may be considered "clerical" because "the amended judgment merely corrects language that did not correctly convey the intention of the court." But "[a] court cannot use CR 60(a) to correct judicial error, i.e., error that involves an intentional act of the court." CR 60(a) does not permit a court to rethink the case and enter an amended judgment that conflicts with the judgment announced earlier.
Id.; In re Marriage of Getz, 57 Wn. App. 602, 604, 789 P.2d 331 (1990).
Marchel v. Bunger, 13 Wn. App. 81, 84, 533 P.2d 406, review denied, 85 Wn.2d 1012 (1975).
Presidential Estates Apartment Assocs. v. Barrett, 129 Wn.2d 320, 326, 917 P.2d 100 (1996); Shaw, 109 Wn. App. at 901.
Presidential, 129 Wn.2d at 326.
Getz, 57 Wn. App. at 604.
Presidential, 129 Wn.2d at 326.
Relying on the statement that "[t]he findings are based on agreement" in the dissolution findings of fact, Rick contends that Commissioner Gaddis's intent was to implement the parties' CR 2A agreement and that granting his motion was therefore appropriate under CR 60(a). The relevant facts for CR 60(a) purposes, however, are those that were before the trial court at the time of the judgment that a litigant later seeks to correct. Here, the record of what was before Commissioner Gaddis is essentially limited to the proposed language of the agreed findings and decree. That language does not refer to any agreement other than to the one embodied in the decree itself, which was comprehensive and clearly provided for maintenance that "shall be terminated upon the death or remarriage of the wife." Indeed, the court's findings expressly recited that "[t]here is no written separation contract or prenuptial agreement." As Rick acknowledges, there is no evidence that Commissioner Gaddis had before him the CR 2A agreement or even an indirect reference to its existence.
Id. For that reason, Rick's citation to dicta in In re Marriage of Kelly-Hansen, 87 Wn. App. 320, 334, 941 P.2d 1108 (1997), suggesting a party might obtain relief under CR 60(a) by proving "that a final decree was mutually intended to reflect the terms of a separation agreement, but failed to do so due to scrivener's error," does not help him. As Catherine points out, considering the balance of the Kelly-Hansen opinion makes it clear that such proof would have to come from the record before the trial judge. In any event, we would be bound by our Supreme Court's language in Presidential over that of a panel from Division II of this court in Kelly-Hansen if there were a conflict. See State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227 (1984).
Apparently no verbatim record or recording of such proceedings is normally made.
Nor are the decree's provisions regarding maintenance unlawful or so unsuited to the parties' financial condition that we could say Commissioner Gaddis should have realized the agreed decree before him contained an error. See In re Marriage of Short, 125 Wn.2d 865, 876, 890 P.2d 12 (1995) (maintenance can be made nonmodifiable by agreement); In re Marriage of Sheffer, 60 Wn. App. 51, 57, 802 P.2d 817 (1990) (substantial maintenance proper when the marriage was long term, the community benefit from husband's career was made possible by the wife's forfeited economic opportunities, and the husband's superior earning capacity was one of the community's few assets); In re Marriage of Morrow, 53 Wn. App. 579, 587-88, 770 P.2d 197 (1989) (lifetime maintenance appropriate where wife was unable to work and had forfeited economic opportunities during the 22 year marriage while the husband had capitalized on them).
From the scant record, it is reasonable to conclude that Commissioner Gaddis believed the parties' agreement regarding maintenance was exactly what was expressed in the comprehensive agreed findings and decree before him. The trial court that denied Rick's motion thus had a tenable basis for its conclusion that the language of the agreed decree accurately embodied Commissioner Gaddis's intent regarding maintenance. And having reached that conclusion, the court did not err because CR 60(a) cannot be used to correct error arising from a court's "intentional act." Rick's reliance upon Marriage of Getz is misplaced. In Getz, this court found it significant that the judge that granted a motion under CR 60(a) to correct a clerical error of omitting one of two pension plans from a dissolution decree was the judge who had presided over the contested trial, because he was able to draw upon his recollection of the original proceeding. The court also was able to review the trial court's oral ruling and could determine it was consistent with the amended judgment. Those factors are not present here. More analogous to the present case are In re the Marriage of Kimpel, and In re the Estate of Harford. In each of these cases, the trial court erroneously attempted to correct, under CR 60(a), not its own error, but the parties' alleged error in a stipulated agreement they had placed before the court. The superior court here correctly recognized that Rick was requesting the same type of improper relief. We also understand Rick's failure to recognize the problem earlier because he expected to pay maintenance for five years under the agreement and did not sign the decree, apparently
Getz, 57 Wn. App. at 604.
57 Wn. App. 602, 789 P.2d 331 (1990).
Id. at 604-05 (distinguishing Barros v. Barros, 26 Wn. App. 363, 613 P.2d 547 (1980), for this reason).
Id. at 605 n. 3.
122 Wn. App. 729, 94 P.3d 1022 (2004).
86 Wn. App. 259, 936 P.2d 48 (1997), review denied, 135 Wn.2d 1011 (1998).
We are aware that affirming the trial court likely means a windfall for Catherine at Rick's expense because the parties probably did not intend this result. Not only did the CR 2A stipulation include the five year limit, but in 2004, Catherine's former counsel, who drafted and presented the decree, wrote to Rick's former counsel sure enough, it does not translate the 60 month maintenance provision into the Decree. This surprises me because we haggled over the wording for some time. It appears the Decree should be corrected, but I cannot help you. . . . (Emphasis added.).
The trial court denied Catherine's request for fees under RCW 26.09.140. Considering the parties' financial circumstances and the issues raised, we likewise deny her request for attorney fees on appeal.
Affirmed.
For the Court:
relying on his counsel who did sign it. And we recognize that when Rick discovered the problem, he may have believed he could not move for relief under rules like CR 60(b)(1), which require motions within a year of judgment. The only issue before us, however, is whether the trial court properly denied Rick's motion under CR 60(a). For the reasons stated above, we are compelled to affirm that order. We express no opinion about any other remedy Rick may have.