Opinion
Nos. 60462-7-I; 61261-1-I.
November 17, 2008.
Appeals from a judgment of the Superior Court for Snohomish County, No. 01-3-02208-5, Bruce Weiss, J., entered August 15, 2007.
Affirmed by unpublished per curiam opinion.
Four years after dissolution of the marriage of Kristi Ewing and Brian Schreiner in 2002, the State filed a petition to modify child support at Ewing's request. The trial court rejected Schreiner's claim that the 2002 orders were void for lack of subject matter jurisdiction and referred the action to mandatory arbitration. Following an arbitration hearing where Schreiner refused to offer testimony or evidence and Schreiner's failure to timely file and serve his request for trial de novo, the trial court entered final orders modifying child support and temporarily restricting his visitation rights. Schreiner appeals, arguing that the 2002 orders are void, and that the trial court (1) lacked authority to send the matter to arbitration; (2) violated RAP 7.2 by entering final orders while his appeal of prior orders was pending; and (3) striking his request for trial de novo. Because Schreiner fails to demonstrate any error, we affirm.
FACTS
On March 22, 2002, Brian Schreiner and Kristi Ewing appeared for trial to dissolve their marriage and provide for the care and support of their two daughters aged 9 and 10 years old. Because Schreiner failed to complete a seminar as previously ordered by a commissioner, the trial court granted Ewing's motion to strike Schreiner's pleadings and preclude him from seeking affirmative relief in the matter. Based on Ewing's evidence and requested relief, the trial court signed a decree of dissolution, a parenting plan and an order of child support requiring Schreiner to pay $643.42 per month in child support to the Washington State Support Registry. Neither party appealed these orders.
Snohomish County Local Rule SCLSPR 94.04(c)(5)(D) provides: "[A] parent who fails to complete the parenting seminar, shall be precluded from confirming the case for trial or presenting any final order affecting the parenting/residential plan, and may be precluded from seeking affirmative relief in this or subsequent proceedings in this file, until the parenting seminar has been successfully completed. Refusal or delay by either parent may constitute contempt of court and result in sanctions imposed by the court, or may result in the imposition of monetary terms, default and/or striking of pleadings."
In July 2006, Ewing requested that the Washington State Department of Child Support seek an increase of support because she was working two jobs and paying for all the children's health care expenses. On November 1, 2006, the State filed a petition to modify support alleging the following reasons: 1) more than two years had passed since the prior child support order; (2) the parents' incomes had changed; (3) the children had moved to a new age category for support purposes; and (4) automatic adjustments and healthcare coverage had not been addressed. On December 20, the State requested a temporary order of support pending arbitration or trial, or alternatively, an order of summary judgment based on Schreiner's failure to respond.
On February 16, 2007, a commissioner denied the motion for summary judgment, but entered a temporary order of support directing Schreiner to pay $1,107.00 per month in child support and directing the State to set the matter for arbitration within 48 hours. On February 21, the State noted the matter for mandatory arbitration. Because the State failed to file the arbitration notice within 48 hours as ordered, the commissioner later struck the temporary support order. The court also stated that (1) the State had standing in the case; (2) the arbitrator "may set support back to the date of filing of the modification petition"; and (3) should Ewing want a new temporary order, "she may file a motion prior to the arbitration."
In July, Schreiner filed a number of motions including a motion to vacate the original support order based on an alleged lack of subject matter jurisdiction. On July 18, 2007, the trial court denied Schreiner's motions. Schreiner also filed a motion to vacate the arbitration claiming that the State failed to properly draft the order and that the arbitration was stricken when the commissioner struck the temporary support order. The commissioner denied the motion in an order filed August 15, 2007, stating, "The arbitration shall go forward." On August 15, Schreiner filed a notice of appeal designating the July 18 and August 15 orders for review.
A commissioner of this court determined that the additional orders listed in Schreiner's first notice of appeal were not appealable and we will not discuss them further.
At the arbitration hearing on August 21, 2007, Schreiner appeared pro se and presented legal arguments but refused to testify or to present any evidence or witnesses. The arbitrator determined Schreiner's income for the purposes of child support based on his actual total earnings during 2006 as his employer reported them to the Employment Security Department. Based on the income information presented for Schreiner and Ewing, the arbitrator used the standard calculation to determine that Schreiner should be ordered to make a monthly transfer payment of $1,141.26.
On August 24, 2007, the trial court filed an order finding adequate cause to restrict Schreiner's contact with the children to supervised visits based on the children's willingness until the guardian ad litem could determine whether their reluctance was based on Ewing's influence. On November 11, 2007, the trial court granted the State's motion to strike Schreiner's request for trial de novo and entered final orders on child support directing Schreiner to make monthly transfer payments of $1,41.26 for the two children, who were then ages 15 and 16. Schreiner filed a second notice of appeal requesting review of these orders. We have consolidated Schreiner's two appeals.
ANALYSIS
Schreiner first contends that the trial court erred in its July 18 order by failing to grant his motion to vacate the 2002 child support order as void for lack of subject matter jurisdiction. He claims that the trial court's decision to prevent him from participating in the March 2002 trial and the trial court's statements about the law at the hearing violated his right to due process and deprived the trial court of subject matter jurisdiction.
Schreiner correctly states that a court has a nondiscretionary duty to vacate a void judgment and that a void judgment can be vacated at any time. See, Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 323, 877 P.2d 724 (1994); In re Marriage of Leslie, 112 Wn.2d 612, 618-19, 772 P.2d 1013 (1989). A judgment is void if the court lacked either personal jurisdiction over the parties or subject matter jurisdiction over the claim. Marley v. Department of Labor and Industries, 125 Wn.2d 533, 539, 886 P.2d 189 (1994). Schreiner does not contest that the court had personal jurisdiction over him. Subject matter jurisdiction is the authority to adjudicate the type of controversy at issue. Marley, 125 Wn.2d at 539.
But Schreiner has confused authority to adjudicate a type of controversy with authority to rule in a particular manner. As noted in Marley, "Courts do not lose subject matter jurisdiction merely by interpreting the law erroneously." Marley, 125 W.2d at 539 (quoting In re Major, 71 Wn. App. 531, 534-35, 859 P.2d 1262 (1993)). Even if the trial court erred in 2002 by denying Schreiner an opportunity to seek affirmative relief in the dissolution trial, or by making incorrect statements regarding the law on the record, the court did not lack subject matter jurisdiction. At most, the trial court committed a legal error that would have been subject to review had Schreiner filed a timely appeal.
Schreiner does not question the superior court's subject matter jurisdiction in controversies over property division, residential arraignments for children or child support flowing from the dissolution of marriages. The trial court properly exercised its jurisdiction when it signed the orders in 2002 dissolving Schreiner's marriage to Ewing and providing for the care and support of their children. Those orders are not void. The trial court properly denied Schreiner's motion to vacate the judgment on July 18.
Schreiner also challenges the August 15 order denying his motion to vacate the arbitration. He argues that after striking the temporary support order, the trial court lacked authority to send the case to arbitration. But Snohomish County has adopted mandatory arbitration for child support modification proceedings under RCW 7.06.020 and SCLMAR 1.2. Because arbitration was required by statute and did not depend on the timeline stated in the temporary support order, the commissioner properly denied Schreiner's motion to vacate the arbitration.
RCW 7.06.020 provides:
"(2) If approved by majority vote of the superior court judges of a county which has authorized arbitration, all civil actions which are at issue in the superior court in which the sole relief sought is the establishment, termination or modification of maintenance or child support payments are subject to mandatory arbitration. The arbitrability of any such action shall not be affected by the amount or number of payments involved."
Snohomish County Mandatory Arbitration Rules (SCLMAR) provides in Rule 1.2 that a claim is subject to mandatory arbitration if it "involves solely the establishment, modification, or termination of child support."
Despite our commissioner's order directing the parties to address in briefing the appealability of the July 18 order, Schreiner failed to do so. But even assuming, without holding, that the order is appealable, Schreiner fails to demonstrate error.
Schreiner next argues that the trial court violated RAP 7.2(e) by modifying the parenting plan in the August 24 order and by striking his request for a trial de novo and entering final orders of child support on November 1, while his appeal was pending. RAP 7.2(e) provides that the trial court has authority to hear and determine "actions to change or modify a decision that is subject to modification by the court that initially made the decision." If such a determination "will change a decision then being reviewed by the appellate court, the permission of the appellate court must be obtained prior to the formal entry of the trial court decision." RAP 7.2(e).
Whether the trial court complied with RAP 7.2(e) depends on whether the August 24 and November 1 orders were determinations that affected the outcome under review. State ex rel. Shafer v. Bloomer, 94 Wn. App. 246, 250, 973 P.2d 1062 (1999). Schreiner's first appeal involved only two orders: (1) the July 18 order denying his motion to vacate the 2002 child support order; and (2) the August 15 order denying his motion to vacate the arbitration. None of the challenged orders changed the orders on appeal or somehow limited Schreiner's ability to present his arguments on appeal. Schreiner does not argue or demonstrate that his appeal of the July 18 and August 15 orders was in any way prejudiced by entry of the later orders. The trial court did not violate RAP 7.2(e). Schreiner also argues that the trial court violated his right to equal protection by denying one of his motions based on RAP 7.2(e) after entering orders requested by the State without reference to the same rule. But our review of the record indicates that the trial court viewed the motion as a renewed attempt to attack the 2002 order of child support as void for lack of subject matter jurisdiction. Because this issue was already on appeal in the July 18 order, the trial court properly denied the motion.
Schreiner assigns error to the trial court's November 11 order striking his request for trial de novo and makes the conclusory statement that his request was timely filed and served. Snohomish County Mandatory Arbitration Rules require service and filing of a request for trial de novo as provided in the State Superior Court Mandatory Arbitration Rules. SCLMAR 7.1(b)(3). MAR 7.1(a) requires service and filing of a request for a trial de novo within 20 days of the filing of the arbitration award. "The 20-day period within which to request a trial de novo may not be extended." MAR 7.1(a). It "is only when there has been timely service and filing of proof of that service, that the court may conduct a trial de novo." Nevers v. Fireside, Inc., 133 Wn.2d 804, 812, 947 P.2d 721 (1997). Where service is by mail, service has been accomplished on the third day after mailing. CR 5(b)(2)(A); Vanderpol v. Schotzko, 136 Wn. App. 504, 150 P.3d 120 (2007).
CR 5 (b)(2)(A) provides:
"If service is made by mail, . . . . The service shall be deemed complete upon the third day following the day upon which they are placed in the mail, unless the third day falls on a Saturday, Sunday or legal holiday, in which event service shall be deemed complete on the first day other than a Saturday, Sunday or legal holiday, following the third day."
The record demonstrates that the arbitrator filed the award on August 22. Thus, under MAR 7.1(a) Schreiner was required to file and serve his request for trial de novo by September 11. Schreiner filed his request on September 10 and stated in the certificate of mailing that he had mailed copies to Ewing and the State on September 10. Because his service by mail was not complete until September 13, his request for trial de novo was untimely and the trial court properly struck it.
Schreiner also complains that the August 24 order providing for a temporary restriction in his visitation constitutes a violation of his right to due process because no action had been taken to restore his visitation by the time he wrote his appellate brief. But Schreiner does not challenge the factual basis for the order or demonstrate any legal error justifying relief on appeal. His concerns regarding visitation issues after the August 24 order are not properly before this court. To the extent Schreiner is dissatisfied with the current situation, he may seek relief in the trial court.
Throughout his briefing, Schreiner presents various arguments and claims that do not reference any particular order before this court on appeal. Schreiner repeatedly argues that the State does not have standing to participate in the support modification action, although he did not challenge the trial court's June 1, 2007 order finding that the State has standing. But the State is allowed to bring child support actions "to augment remedies to enforce parents' obligations to their children." Parentage of I.A.D., 131 Wn. App. 207, 217, 126 P.3d 79 (2006) (citing Moore v. Moore, 20 Wn. App. 909, 913, 583 P.2d 1249 (1978)). RCW 74.20.220(3) authorizes the prosecuting attorney to "petition the court for modification of a superior court order when the office of support enforcement is providing support enforcement services."
Schreiner does not dispute that the office of support enforcement was providing Ewing with services. Nor does he demonstrate that any State official acted inappropriately or that he has suffered any prejudice from the State's involvement. Schreiner fails to demonstrate any error regarding the State's participation in the case.
Next, Schreiner argues that the trial court erred by failing to base its determination of the parties income for purposes of child support on income tax records. But the record demonstrates that Schreiner refused to produce any evidence at the arbitration. And he fails to argue or demonstrate that the arbitrator's use of Employment Security Department records in any way prejudiced him. Schreiner fails to establish grounds for relief.
Finally, Schreiner requests the return of all the child support he has paid in the past and make-up time with his children. Because he fails to demonstrate that such relief is required or justified, we deny these requests.
Similarly, Schreiner requests an award of attorney fees but he presents no argument or citation to authority regarding the grounds for fees. We therefore deny his request for attorney fees on appeal. Wilson Court Ltd. P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590 (1998).
Affirmed.