Opinion
No. 53564-5-II
06-08-2021
In the Matter of the Marriage of: David MILLER, Respondent, v. Wendy MILLER, Appellant.
Valerie A. Villacin Smith, Jonathan Collins, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, for Appellant. Lou M. Baran, Attorney at Law, 1014 Franklin St., Vancouver, WA, 98660-3040, Michelle Prosser, Stahancyk, Kent & Hook 400 W 11th St., Vancouver, WA, 98660-3148, for Respondent.
Valerie A. Villacin Smith, Jonathan Collins, Smith Goodfriend PS, 1619 8th Ave. N, Seattle, WA, 98109-3007, for Appellant.
Lou M. Baran, Attorney at Law, 1014 Franklin St., Vancouver, WA, 98660-3040, Michelle Prosser, Stahancyk, Kent & Hook 400 W 11th St., Vancouver, WA, 98660-3148, for Respondent.
PART-PUBLISHED OPINION
Lee, C.J.
¶1 Wendy Miller appeals the trial court's orders denying her motions for relief from judgment and for attorney fees and her motion for reconsideration relating to her attempt to vacate the final orders dissolving her marriage to David Miller. Wendy argues that because she was entitled to relief from the agreed dissolution orders under CR 60(b)(1), (2), (4), and (11), the trial court abused its discretion by not vacating the final orders dissolving her marriage to David and not awarding her attorney fees. Wendy also requests attorney fees on appeal.
The trial court's findings and conclusions, the final divorce order, and the child support order.
Because the parties have the same last name, we refer to them by their first names for clarity. We mean no disrespect.
¶2 We hold that the trial court did not abuse its discretion in denying Wendy's motion for relief from judgment and affirm the trial court's order denying Wendy's motion for relief from judgment. We also affirm the trial court's order denying Wendy's request for attorney fees, and we deny Wendy's request for attorney fees on appeal. In the published portion of this opinion, we address Wendy's arguments related to the motion to vacate under CR 60(b)(1). Wendy's remaining arguments are addressed in the unpublished portion of the opinion.
FACTS
¶3 Wendy and David were married on June 10, 2002. They had one child, D.K.M. On April 25, 2018, David filed a petition for dissolution of the marriage. The petition alleged that the marriage was irretrievably broken.
¶4 David served Wendy with the dissolution petition on April 25, 2018. On May 3, Wendy signed her response to the dissolution petition, which agreed with all provisions in the dissolution petition, including the provision asserting that maintenance was not necessary. On May 4, David and Wendy signed, and the trial court entered, a stipulated interim order. Wendy filed her response on May 8.
¶5 On May 14, both parties signed the findings and conclusions and the final dissolution order. Also on May 14, less than 30 days after the dissolution petition was filed, David signed a "Declaration in Support of Entry of Final Divorce Order Without a Hearing." Clerk's Papers (CP) at 57. David's declaration stated that "[Wendy] was served on April 25, 2018, and more than ninety (90) days have elapsed since the filing and service of the Petition." CP at 57. David also declared that the marriage was irretrievably broken and that the "division of property contained in the Findings and Conclusions about a Marriage is a fair and equitable division." CP at 58.
¶6 On July 25, 91 days after the dissolution petition was filed, the trial court entered findings and conclusion and the final dissolution order without a hearing.
¶7 On November 5, Wendy moved for relief of judgment and for attorney fees. Wendy argued that there was an irregularity under CR 60(b)(1) that justified vacating the orders because the declaration in lieu of testimony David filed was signed before the expiration of the 90 day waiting period. In response, David argued that there was no irregularity in obtaining the dissolution orders because his declaration in lieu of testimony was not presented to the trial court until after the 90 day waiting period.
Wendy also argued that there was an irregularity because the parenting plan was also entered before the expiration of the 90 day waiting period. However, at oral argument on the motion before the trial court, Wendy stated that she was not moving to vacate the final parenting plan because she agreed that the terms of the parenting plan were appropriate.
¶8 The trial court ruled that Wendy "failed to demonstrate an adequate basis to vacate final orders." CP at 384-85. As to Wendy's argument that the date the declaration was signed was an irregularity under CR 60(b)(1), the trial court ruled,
[Local Rule] 4.1(a) provides that "[t]he declaration in lieu of testimony must be made after the expiration of the ninety (90) day period." The waiting period had passed when final orders were entered and there is no dispute regarding the accuracy of the factual representations in the Declaration. While the term "made" provides some ambiguity regarding the timing of execution versus the timing of filing, because the Declaration was not filed until after the required waiting period[,] the Declaration does not constitute an irregularity with entry of the final orders sufficient to satisfy CR 60(b)(1).
CP at 385.
¶9 Wendy moved for reconsideration of the trial court's ruling. The trial court denied Wendy's motion for reconsideration.
¶10 Wendy appeals.
ANALYSIS
¶11 Wendy argues that the trial court abused its discretion by denying her motion for relief from judgment seeking vacation of the dissolution orders under CR 60(b)(1). She contends that the signing of the dissolution orders and David's declaration before the statutory 90-day waiting period required under RCW 26.09.030 and LCR 4.1(a) was an irregularity in obtaining the dissolution orders. We disagree.
To the extent Wendy argues that the trial court abused its discretion because it deprived Wendy "of an opportunity to have the issues related to the dissolution of her marriage with David decided on the merits," this argument is misplaced. Br. of Appellant at 18. We often favor vacation of default judgments because a default judgment deprives the defaulted party of the opportunity to respond and defend the case. Morin v. Burris , 160 Wash.2d 745, 754, 161 P.3d 956 (2007). However, here, Wendy responded to the petition for dissolution and the dissolution orders were entered based on an agreed settlement, not default. Therefore, Wendy did have an opportunity to respond and defend.
A. LEGAL PRINCIPLES
¶12 We will not reverse a trial court's denial of a motion to vacate under CR 60(b) unless the court manifestly abused its discretion. Haley v. Highland , 142 Wash.2d 135, 156, 12 P.3d 119 (2000). The trial court abuses its discretion if it "exercised its discretion on untenable grounds or for untenable reasons." Lindgren v. Lindgren , 58 Wash. App. 588, 595, 794 P.2d 526 (1990), review denied , 116 Wash.2d 1009, 805 P.2d 813 (1991).
¶13 Under CR 60(b), "the court may relieve a party or the party's legal representative from a final judgment" under specified circumstances. CR 60(b)(1) allows for relief from judgment due to "[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order."
"An irregularity, within the meaning of this rule, has been defined as the want of adherence to some prescribed rule or mode of proceeding; and it consists either in the omitting to do something that is necessary for the due and orderly conducting of a suit, or in doing it in an unreasonable time or improper manner."
Young v. Thomas , 193 Wash. App. 427, 436, 378 P.3d 183 (2016) (quoting Haller v. Wallis , 89 Wash.2d 539, 543, 573 P.2d 1302 (1978) ).
B. IRREGULARITY UNDER RCW 26.09.030 AND LCR 4.1(a)
¶14 RCW 26.09.030 states, in relevant part,
When a party who (1) is a resident of this state ... petitions for dissolution of marriage or dissolution of domestic partnership,
and alleges that the marriage or domestic partnership is irretrievably broken and when ninety days have elapsed since the petition was filed and from the date when service of summons was made upon the respondent or the first publication of summons was made, the court shall proceed as follows ....
¶15 Clark County has a local court rule that allows the trial court to accept agreed dissolution orders based on a declaration rather than testimony. LCR 4.1(a). LCR 4.1(a) provides,
When a party is represented by an attorney, a declaration will be accepted in lieu of testimony in cases in which parties have stipulated to entry or in default cases in which the relief requested is the same as the relief requested in the Petition for dissolution. ... The declaration in lieu of testimony must be made after the expiration of the ninety (90) day period.
1. Irregularity under RCW 26.09.030
¶16 Wendy argues that signing the dissolution orders before the expiration of the 90-day waiting period stated in RCW 26.09.030 resulted in rushed, arbitrary, and unfair proceedings. Wendy also argues that signing the orders was improper because she disputed that the marriage was irretrievably broken at the time that the dissolution orders were signed. We are not persuaded by these arguments.
¶17 RCW 26.09.030 governs what the trial court is required to do after the 90-day waiting period has passed; it does not govern when the parties may or may not sign the relevant orders. See RCW 26.09.030 ("when ninety days have elapsed since the petition was filed ... the court shall proceed as follows ") (emphasis added). Because the trial court did not enter the dissolution orders until after the 90 days had passed there was no irregularity based on RCW 26.09.030.
¶18 Furthermore, even if Wendy had doubts or did not believe the marriage was irretrievably broken, she does not dispute that she signed orders that stated the marriage was irretrievably broken. And she made no attempt to communicate to the trial court that she had changed her mind. Because the trial court had orders, signed by both parties, that stated the marriage was irretrievably broken, there was no irregularity in the trial court entering the orders. Therefore, Wendy has failed to establish there was any irregularity in entering the dissolution orders based on RCW 26.09.030.
2. Irregularity under LCR 4.1(a)
¶19 Wendy also argues that because David signed the declaration in lieu of testimony before the expiration of the 90 day period, there was an irregularity under LCR 4.1(a). But Wendy has not shown that the trial court abused its discretion by denying her motion to vacate the dissolution orders based on irregularities in David's declaration under LCR 4.1(a).
¶20 Wendy asserts that the rule requires that the declaration be signed after the expiration of the 90 day period. David argues that LCR 4.1(a) requires that the declaration not be filed until after the expiration of the 90 day period. LCR 4.1(a) actually requires that the declaration be "made after the expiration of the ninety (90) day period." (Emphasis added). The trial court found that there may be some ambiguity in the rule about whether the declaration was made when it was signed or when it was filed, but because the declaration was not filed until after the expiration of the 90 day period any irregularity in the date it was signed was not an irregularity that warranted vacating the dissolution orders.
¶21 We review interpretation of a court rule de novo. In re Marriage of McCann , 4 Wash. App. 2d 896, 908, 424 P.3d 234 (2018). And we review the interpretation of a court rule in the same manner as we review statutes. North Coast Elec. Co. v. Signal Elec., Inc. , 193 Wash. App. 566, 571, 373 P.3d 296 (2016). The primary purpose of statutory interpretation is to determine and enforce the drafter's intent. Winters v. Ingersoll , 11 Wash. App. 2d 935, 947, 456 P.3d 862 (2020). When the meaning of language is plain on its face, we must give effect to that plain meaning. Id . "We may use dictionaries to discern the plain meaning of terms with ‘well-accepted, ordinary’ meanings." Id. (quoting State v. Alvarado , 164 Wash.2d 556, 562, 192 P.3d 345 (2008) ).
¶22 "Made" is the past tense of "make." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1356 (1993). Some definitions of "make" include "to execute in an appropriate manner: draw up," "to bring about," and "to cause to exist, occur, or appear: bring to pass: create, cause." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY at 1363.
¶23 Based on the dictionary definitions, the declaration in lieu of testimony was "made" when David executed or created it. Because the declaration was prepared by David's attorney, it was "made" when David reviewed and signed it. Therefore, the declaration in lieu of testimony was "made" before the expiration of the 90-day period in violation of LCR 4.1(a). However, the trial court did not abuse its discretion by determining that this irregularity did not justify vacating the dissolution orders under CR 60(b)(1).
¶24 The trial court did not abuse its discretion by denying Wendy's CR 60(b)(1) motion because the fact that David made the declaration in lieu of testimony before the expiration of the 90-day period was not an irregularity sufficiently material to reverse. David's signing the declaration in lieu of testimony before the expiration of the 90-day period did not result in improperly entered dissolution orders because none of the dissolution orders were entered until after the expiration of the 90-day period as required by RCW 26.09.030. Also, Wendy presented no evidence that she did not understand the value of the parties’ assets or the consequences of the dissolution orders nor is there any evidence that David's signing the declaration before the 90 days caused Wendy to feel rushed. And, before entry of the dissolution orders, Wendy never contacted the court, an attorney, or David's attorneys to state that she changed her mind about the dissolution or the terms of the settlement. Therefore, Wendy has failed to establish that there was any irregularity warranting reversal of the dissolution orders based on LCR 4.1(a).
¶25 We hold that the trial court did not abuse it discretion by ruling that Wendy failed to establish an irregularity that warranted vacating the dissolution orders under CR 60(b)(1). Therefore, we affirm the trial court's denial of Wendy's motion to vacate the dissolution orders based on CR 60(b)(1).
¶26 A majority of the panel having determined that only the foregoing portion of this opinion will be printed in the Washington Appellate Reports and that the remainder shall be filed for public record pursuant to RCW 2.06.040, it is so ordered.
We concur:
Worswick, J.
Glasgow, J.