Opinion
No. 30196-2-II consol. 31136-4-II
Filed: March 1, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No: 01-5-00389-1. Judgment or order under review. Date filed: 03/28/2003, Judge signing: Hon. R. Worswick Lisa.
Counsel for Appellant(s), Christopher Marti Constantine, of Counsel Inc PS, PO Box 7125, Tacoma, WA 98406-0125.
Counsel for Respondent(s), Andrew Robert Hay, Attorney at Law, 110 S 9th St, Tacoma, WA 98402-5102.
Counsel for Guardian(s) Ad Litem, Timothy Elliott Williams, Attorney at Law, 1101 S Fawcett Ste 100, Tacoma, WA 98402-2025.
Amy Leonard prevailed in this paternity action against Gorazd Wolf. Wolf appeals, claiming lack of subject matter jurisdiction, lack of personal jurisdiction, and incomplete child support worksheets. We affirm.
During the summer of 1998, Leonard and Wolf dated. In September 1998, Leonard told Wolf she was pregnant; in November 1998, they began living together; and on May 20, 1999, she gave birth to Taurin Wolf. Their relationship deteriorated, and in late 2000, they agreed to separate and share custody of Taurin.
Wolf did not actually move out until Friday, March 16, 2001. He was scheduled to have custody of Taurin that weekend, so he picked up Taurin at daycare. The next day, he took Taurin to Slovenia. Leonard learned of the trip when Wolf called her from Slovenia.
Although Leonard's knowledge was initially disputed, Wolf later testified that Leonard had not known about the trip. Report of Proceedings (RP) (11/18/02) at 285.
On March 23, 2001, Leonard filed a paternity action in Pierce County. Acting as her own attorney, she alleged that Wolf was Taurin's natural father, that Taurin was 'entitled to financial support pursuant to the Washington State Support Schedule,' that Taurin was entitled to 'health insurance coverage from any parent owing a duty of child support,' and that the court should determine Taurin's 'parentage and residential placement.' She prayed that the court declare Wolf to be Taurin's father, set child support 'pursuant to the Washington State Support Schedule,' order 'either or both parents . . . to maintain or provide health insurance coverage' for Taurin, order both parents to 'pay extraordinary uninsured costs proportionate to their income,' order Wolf to 'pay past support, medical, and other expenses incurred' on Taurin's behalf, adopt 'a residential plan or parenting plan . . . as proposed by the parents or as the court finds to be in the child's best interest,' and award reasonable attorney fees.
Clerk's Papers (CP) at 527.
CP at 528.
Although Leonard neglected to name Taurin as a party, she did move for the appointment of a guardian ad litem (GAL) to protect his interests. She also moved for a writ of habeas corpus and temporary orders granting her custody and awarding child support. Acting ex parte, the court granted her requests and ordered that Taurin be returned to the United States immediately.
On April 20, 2001, Leonard asked the United States Department of State, Office of Children's Issues, for assistance under the Hague Convention. On May 4, 2001, the Central Authority of Slovenia moved the District Court of Ljubljana for an order requiring Taurin's return. On July 6, 2001, the Slovenian District Court so ordered, and on July 7, 2001, Wolf received a copy of that order and of the Pierce County order directing Taurin's return. Wolf did not receive the Pierce County summons and petition at that time.
Wolf appealed to the Slovenian Supreme Court, which denied his appeal on July 25, 2001. On August 22, 2001, Slovenian authorities issued a compulsory execution order that gave the police the right to take Taurin by force. Wolf appealed that order to the Slovenian Supreme Court and the Constitutional Court of Slovenia, but by October 10, 2001, both courts had denied his appeals. On October 15, 2001, Wolf surrendered Taurin to Leonard at the United States Embassy in Slovenia.
Meanwhile, on August 15, 2001, Wolf appeared in the Pierce County action. In his notice of appearance, he recited that he was not waiving 'objections to proper service or jurisdiction.'
CP at 565.
On September 11, 2001, Wolf filed an answer in the Pierce County action. Acting through counsel, he 'admit[ted] that I am the father of the child' and affirmatively requested the court to grant '[a] parenting schedule which provides for the father's shared parenting of Taurin and protection for the child.' He did not allege lack of personal jurisdiction by motion or in his answer.
CRP at 570-71.
See CR 12(h)(1), discussed below.
On December 4, 2001, Wolf moved for an order 'authorizing supervised visitation,' 'appointing Sharon Klontz as supervisor,' and 'reviewing supervised visitation within 60 days.' He also asked for an 'order vacating Ex Parte orders entered on March 23, 2001.' About the same time, the record suggests but does not clearly show, Leonard moved for temporary orders granting child support, reimbursement of expenses incurred in retrieving Taurin from Slovenia, and reasonable attorney fees.
CP at 651-52.
CP at 652.
After a hearing held on December 10, 2001, a court commissioner again appointed a GAL to investigate and report on Taurin's best interests. The commissioner also entered temporary orders in which he regulated custody and visitation, directed Wolf to pay future and back child support pending trial, allocated Taurin's health insurance and health care costs between Wolf and Leonard, directed Wolf to reimburse Leonard for her Slovenia-related costs, and ordered Wolf to contribute to Leonard's reasonable attorney fees pending trial.
On December 20, 2001, Wolf, through counsel, moved to revise the commissioner's orders, 'with the exception of orders relating to the guardian ad litem and the order authorizing [him] to have two telephone calls per week with Taurin.' In a declaration supporting the motion, his attorney faulted the commissioner 'for not reserving the issues for trial of costs relating to [Leonard's] attempts to recover the child and attorney's fees.'
CP at 676.
CP at 682.
On January 14, 2002, Wolf filed a formal written acknowledgment that he is Taurin's father.
On January 25, 2002, the GAL filed a report in which he said that both parents were loving; that Wolf took Taurin to Slovenia without informing Leonard; that Wolf should be psychologically tested 'regarding his mental stability and his personal outlook towards authority'; and that Wolf should have supervised visitation. Also on January 25, 2002, a superior court judge revised the commissioner's December 10 rulings, though only by vacating the order granting child support and directing the GAL to investigate paternity before parenting and visitation.
CP at 32-36.
On July 24, 2002, Wolf filed a 'Motion for Summary Judgment on Parentage Determination of Child Support and Parenting Plan.' Listing the following issues for decision, Custody of the child Residential Provisions for the child Current Support Back Support Costs Health Insurance[,] he asked the court to: Establish that GORAZD WOLF is the biological father of the TAURIN A. WOLF.
CP at 683 (capitalization removed).
Order that an amended birth certificate be issued by the state registrar of vital statistics reflecting the parentage of the child if such certificate does not already reflect GORAZD WOLF as the father of the minor child.
Approve father's proposed parenting plan for the minor child.
Order support for the minor child based on the child support guidelines.
Order both parents to provide health insurance coverage for the child when such coverage is available through employment or is union related and the cost of such coverage does not exceed 25 percent of the obligated parent's basic child support obligation, and to pay (pro rata) any health care costs incurred on behalf of the child not covered by insurance.
CP at 683-84.
On September 11, 2002, the court held a hearing on Wolf's motion. It granted summary judgment on the issue of paternity and declared Wolf to be Taurin's father. It also set child support pending trial and allocated daycare costs, health insurance premiums, and uninsured medical expenses pending trial. On October 4, 2002, a superior court judge denied the parties' cross-motions for revision, subject to minor modifications not pertinent here.
On October 24, 2002, Wolf moved to strike the trial date, which apparently had been set for November 13, 2002. He asserted that Leonard had already received all the relief that she had requested in her petition. The trial court denied his motion.
Trial commenced as scheduled on November 13, 2002. Wolf represented himself, as his counsel had withdrawn effective October 28, 2002. On the first day of trial, he moved to dismiss for lack of service of process, and Leonard moved to amend her petition with respect to child support, parenting plan, permanent restraining order, visitation bond, GAL fees, and attorney fees. The trial court denied the motion to dismiss but granted the motion to amend.
During trial, Wolf testified about his income, his status as a tax protester, and his finances in general. Leonard testified about her income and finances, including a $10,000 gift she received annually from a great aunt. The GAL testified concerning Taurin's best interests. After considering the testimony and arguments, the trial court orally ruled that Wolf was Taurin's father; that Leonard should have custody; that Wolf should have supervised visitation; and that Wolf should pay child support of $916.74 per month.
On February 11, 2003, the court held a hearing on findings and conclusions. The trial court accepted Wolf's testimony that his income was $4,150 per month, but Leonard asserted that his income was higher because he did not pay income tax. Wolf then responded: I personally find your original number an adequate or acceptable one. If we're going to go in and change what . . . the court ordered, . . . there's a lot of other numbers that are not involved there. So we can either accept the number as the court found during the trial, or in your oral decision, or we need to go through the whole list and address things and do the numbers correctly.
The record is unclear on whether this figure should be $4100 or $4150, but the difference is not significant.
RP (2/11/03) at 449 (emphasis added).
On March 7, 2003, the court held another hearing on findings and conclusions. Still representing himself, Wolf asserted that even though 'a large section of the worksheet is not completed,' 'I don't have an objection to the $916.74 figure that the court found based on the income I provided.' At the end of the hearing, the court entered its findings, conclusions, and decree.
RP (3/07/03) at 487, 489.
Ten days later, Wolf moved for reconsideration. He claimed that the court lacked subject matter jurisdiction because former RCW 26.26.040(1)(e)(2000) had stripped the court of jurisdiction once he acknowledged paternity, and because Taurin, age 3, had not been joined as a party. He also claimed that the court lacked personal jurisdiction because he, Wolf, had never been served with original process. The trial court denied reconsideration, and Wolf filed a notice of appeal.
More than six months later, on September 26, 2003, Wolf filed a CR 60 motion in which he again raised the same issues. The trial court denied the motion, and Wolf filed a second notice of appeal. We have consolidated his two notices, and we dispose of both in this opinion.
I.
Wolf argues that the trial court lacked subject matter jurisdiction. He reasons:
Former RCW 26.26.040(1)(e) provides, in pertinent part, that '[j]udicial and administrative proceedings are neither required nor PERMITTED to ratify an unchallenged acknowledgement of paternity filed after July 27, 1997 (emphasis added)'. On its face, former RCW 26.26.040(1)(e) deprives the court of subject matter jurisdiction where, as in this case, an affidavit of paternity has been properly executed and filed.
Br. of Appellant at 41-42.
Essentially then, he claims that under the former statute, a father who acknowledges paternity strips the court of jurisdiction to hear and decide custody, visitation, and the other issues commonly resolved in a paternity case.
See, e.g., RCW 26.26.130-.140.
While it was in effect, former RCW 26.26.040(1)(e) accelerated the process of establishing paternity by requiring that most challenges to an acknowledgment of paternity had to be brought within 60 days. The former statute dealt solely with the issue of paternity and did not affect the court's power to hear and decide other issues. The former statute was complied with here, where Wolf acknowledged paternity in mid-January 2002, sixty days elapsed in mid-March 2002, and the court granted summary judgment on paternity the next time the court was asked to address paternity. The former statute had nothing to do with the trial court's jurisdiction, and it has no bearing on this appeal.
II.
Wolf next argues that the trial court lacked subject matter jurisdiction because Taurin, age 3, was not formally made a party to the action. Former RCW 26.26.090(1) states that '[t]he child shall be made a party to the action.' But the child need not be named a party to participate as one. Included under the rubric of 'parties' are also those who, though not nominal parties to the action, could control the prosecution or defense in furtherance of their own interest and who enjoy, because of the factual setting, all the rights of an actual party.
State ex rel. Partlow v. Law, 39 Wn. App. 173, 175, 692 P.2d 863 (1984); see also Hayward v. Hansen, 97 Wn.2d 614, 619-20, 647 P.2d 1030 (1982) (active conduct by GAL may be sufficient to place child before court).
Such is the situation when a GAL is appointed to protect the child's best interests, and the GAL participates actively in the case. Such may also be the situation, under appropriate circumstances, even though the GAL's participation does not show on the record, as, for example, when the GAL acts but the case is resolved by default judgment.
Partlow, 39 Wn. App. at 176.
Hayward, 97 Wn.2d at 617-20; Miller v. Sybouts, 97 Wn.2d 445, 450-51, 645 P.2d 1082 (1982).
In this case, the GAL's participation shows clearly on the record. He was appointed on March 23, 2001, and again on December 10, 2001. He reported on Taurin's best interests on January 25, 2002, and he testified at trial in November 2002. He was present and available to protect Taurin's interests throughout the litigation. Despite Leonard's failure to formally name Taurin as a party, the trial court had jurisdiction.
III.
Wolf asserts that the trial court erred by ordering child support based on incomplete child support worksheets. Leonard responds that Wolf invited any error. Wolf replies that under RCW 26.19.035(3), such error cannot be waived.
RCW 26.19.035(3) states:
Worksheets in the form developed by the office of the administrator for the courts shall be completed under penalty of perjury and filed in every proceeding in which child support is determined. The court shall not accept incomplete worksheets or worksheets that vary from the worksheets developed by the office of the administrator for the courts.
Waiver and invited error are independent concepts. To waive is to intentionally relinquish a known right, but not necessarily lead the court into making an error. To invite error is to 'set up error in the trial court and then complain of it on appeal,' but not necessarily to relinquish a known right intentionally. Even assuming that a party cannot waive child support worksheets a matter we need not address here it would be intolerable to allow a party to wrongly tell the court that child support worksheets are adequate, then later seek to reverse the court's judgment on that basis. If Wolf invited error in the trial court, he may not now profit from that error in this court.
In re Marriage of Briscoe, 134 Wn.2d 344, 352, 949 P.2d 1388 (1998); State ex rel. Cornell v. Lane, 110 Wn. App. 328, 331, 41 P.3d 486 (2002) (quoting Henry v. Russell, 19 Wn. App. 409, 415, 576 P.2d 908, review denied, 90 Wn.2d 1018 (1978)).
State v. Young, 63 Wn. App. 324, 330, 818 P.2d 1375 (1991); accord State v. Henderson, 114 Wn.2d 867, 870, 792 P.2d 514 (1990).
See Henderson, 114 Wn.2d at 870-71; Young, 63 Wn. App. at 330.
On February 11, 2002, Wolf told the court that he was willing to 'accept' the child support 'number' that the court had announced at trial ($916.74 per month). On March 7, 2002, he told the court even though 'there are no numbers from the mother' in the child support worksheets, 'I don't have an objection to the $916.74 figure that the court found based on the income I provided.' Wolf invited the trial court to make the very error of which he now complains, and we decline to reverse on that ground.
RP (2/11/03) at 449.
RP (3/07/03) at 488-89.
IV.
Wolf claims that the trial court never acquired personal jurisdiction over him because he was not properly served. A party waives '[a] defense of lack of jurisdiction over the person' unless he or she includes that defense in a motion brought under CR 12 or in a responsive pleading. Moreover, a party waives a defense of lack of personal jurisdiction if 'he or she asks the court to grant affirmative relief.' Wolf failed to assert a lack of personal jurisdiction by motion or in his answer. He asked in his answer that the trial court award joint custody, and in his motion for summary judgment that the trial court declare him to be Taurin's father, approve his parenting plan, order child support, and allocate health insurance and other health-related costs. For at least these reasons, the trial court had personal jurisdiction over him.
CR 12(h)(1); see also In re Marriage of Steele, 90 Wn. App. 992, 997, 957 P.2d 247, review denied, 136 Wn.2d 1031 (1998) ('[i]n general, a party must assert lack of personal jurisdiction in his or her next responsive pleading, or by motion made before pleading') (citation omitted).
Steele, 90 Wn. App. at 997; see also In re Marriage of Parks, 48 Wn. App. 166, 170, 737 P.2d 1316, review denied, 109 Wn.2d 1006 (1987) (issue waived where party raised personal jurisdiction in responsive pleading but also requested affirmative relief).
V.
The last issue is reasonable attorney fees on appeal. They are permitted under RCW 26.26.140 without regard to need or ability to pay. Leonard has prevailed in this appeal. Accordingly, she shall receive reasonable attorney fees on appeal, provided that she complies with RAP 18.1.
In re Marriage of T, 68 Wn. App. 329, 334, 842 P.2d 1010 (1993).
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.
HOUGHTON, J. and HUNT, J., concur.