Opinion
No. 52427-5-I.
Filed: May 24, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-3-04946-7. Judgment or order under review. Date filed: 05/13/2003. Judge signing: Hon. Patricia H Clark.
Counsel for Appellant(s), Julie Dorsey (Appearing Pro Se), 15232 SE 272nd Street # 60, Kent, WA 98042.
Counsel for Respondent(s), Barry Dorsey (Appearing Pro Se), 13014 SE 206th Street, Kent, WA 98031.
Although CR 60(e)(2) appears to require a hearing before a court may decide a motion to vacate, a hearing is not required if the nonmoving party received notice of the motion and the moving party failed to allege facts that warrant relief. In this case, Julie Dorsey did not allege facts that entitled her to relief under CR 60(a) or (b), so the trial court did not abuse its discretion when it denied her motion to vacate the court's decisions. We therefore affirm the order denying the motion.
Statement Of Facts
The King County Superior Court dissolved the marriage of Julie and Barry Dorsey by a decree entered May 14, 2002. The court also entered a qualified domestic relations order (QDRO) and written findings of fact and conclusions of law. A month later, the court amended the QDRO.
Julie appealed, but nearly one year after the QDRO was amended, while the appeal was pending, Julie filed a motion asking the trial court to order Barry to appear and show cause why the amended QDRO, part of the findings of fact and conclusions of law, and part of the dissolution decree should not be vacated. The trial court refused to order a show cause hearing and denied the motion. Julie appeals.
We refer to the Dorseys by their first names to avoid confusion. No disrespect is intended.
Julie asked this court to consolidate her appeals, but her motion was denied. Later, this court affirmed the trial court's decision in the main appeal.
The Trial Court Did Not Abuse Its Discretion
This court reviews a trial court's decision whether to vacate a judgment or order under CR 60 for an abuse of discretion. Shaw v. City of Des Moines, 109 Wn. App. 896, 900, 37 P.3d 1255 (2002). We will not overturn the decision unless the trial court exercised its discretion on untenable grounds or for untenable reasons. Shaw, 109 Wn. App. at 901. Julie contends that the ex-parte court abused its discretion when it refused to order a hearing "to correct an error in calculating [her] portion of Boeing 401(k) Voluntary Investment Plan [VIP], per Civil Rule 60(e)(2)[.]" Brief of Appellant, at 1. We disagree.
Both parties were represented by counsel at trial, but represent themselves in this appeal.
Julie states that "(i)t is obvious no trial court abused its discretion, because it was not brought before the trial court. However, the ex-parte court abused its discretion[.]" Brief of Appellant, at 13. But whether the judge who presided at trial, or a different judge, denied Julie's motion, our analysis in this case is the same. And the term "trial court" refers to any judge of the lower court, regardless whether the judge actually presided at trial.
Under The Circumstances, No Hearing Was Required Before The Motion To Vacate Was Denied
CR 60 provides the means by which a judgment may be vacated. CR 60(e) sets forth the procedure that must be followed. A party must file a motion stating the grounds for the requested relief, supported by an affidavit, "setting forth a concise statement of the facts or errors upon which the motion is based[.]" CR 60(e)(1).
CR 60(e)(2) provides that, "[u]pon the filing of the motion and affidavit, the court shall enter an order fixing the time and place of the hearing thereof and directing all parties to the action or proceeding who may be affected thereby to appear and show cause why the relief asked for should not be granted." (Emphasis added.) Julie filed a motion and affidavit in support of her request that the trial court's decisions be vacated. Therefore, she argues, the trial court abused its discretion when it denied her motion for a show cause hearing. We disagree.
An earlier decision by this court is directly on point. See Stoulil v. Epstein, 101 Wn. App. 294, 298, 3 P.3d 764 (2000). In Stoulil, Epstein filed a CR 60(b) motion to vacate, which the trial court denied without scheduling a hearing or taking evidence. On appeal, this court held that the trial court did not err by ruling on the motion without a hearing. Stoulil, 101 Wn. App. at 298. Although CR 60(e)(2) indicates that the court "shall order" a hearing, the clear intent of the rule is to give parties who may be affected by a proposed vacation the opportunity to oppose it. Stoulil, 101 Wn. App. at 298; see also Allen v. Allen, 12 Wn. App. 795, 797, 532 P.2d 623 (1975). Because the nonmoving party received notice of the motion to vacate and had an opportunity to respond, the trial court did not err by issuing an order in favor of the nonmoving party without hearing oral argument. Stoulil, 101 Wn. App. at 298. Furthermore, the trial court did not err in denying Epstein's motion without a hearing because his CR 60 motion did not warrant relief. Stoulil, 101 Wn. App. at 298-99.
In this case, Barry had notice and an opportunity to respond to Julie's motion to vacate. Therefore, the trial court did not err when it denied the motion without a hearing.
Julie Did Not Show That She Was Entitled To Relief
Additionally, the trial court did not err by denying the motion because Julie's motion did not warrant relief. Julie based her motion to vacate upon CR 60(b)(1) and (11). On appeal, she contends that she was entitled to relief under CR 60(a). None of the facts and circumstances set forth in the affidavit in support of her motion satisfies the criteria of those CR 60 bases for relief.
Julie Alleged Judicial, Not Clerical, Errors
A court may use CR 60(a) to correct clerical, not judicial, errors. Shaw v. City of Des Moines, 109 Wn. App. at 901. A judicial error is one of substance, while a clerical error is merely a mechanical mistake. Marchel v. Bunger, 13 Wn. App. 81, 84, 533 P.2d 406 (1975). To distinguish between "judicial" and "clerical" errors, the test is whether, based on the record, the judgment embodies the trial court's intention. Presidential Estates Apartment Assocs. v. Barrett, 129 Wn.2d 320, 326, 917 P.2d 100 (1996); Shaw, 109 Wn. App. at 901.
Julie argues that the trial court made clerical errors when it determined the value of Barry's separate interest in his Boeing VIP, ordered her to pay a disproportionate amount of the cost of a parenting evaluation, and did not account for funds from the VIP that Barry spent to acquire a robot for his collection. In support of her contention that the errors were merely clerical, Julie alleges that they were inconsistent with the court's oral ruling.
But a court's written order is considered to be its ultimate understanding of an issue. State v. Michielli, 132 Wn.2d 229, 242, 937 P.2d 587 (1997); Diel v. Beekman, 7 Wn. App. 139, 149, 499 P.2d 37 (1972). Moreover, when a court's written and oral decisions conflict, the oral opinion may not be used to impeach the court's written statements. Mairs v. Dep't of Licensing, 70 Wn. App. 541, 545, 854 P.2d 665 (1993); see also Jones v. Nat'l Bank of Commerce, 66 Wn.2d 341, 345, 402 P.2d 673 (1965) (error cannot be based upon an oral opinion).
Furthermore, only one of the court's alleged errors in this case is inconsistent with its oral ruling. The court orally ruled that the value of Barry's separate interest in his VIP was $23,463. But in its written orders, the court valued Barry's separate interest at $25,463, and the record supports that valuation. The discrepancy, therefore, does not warrant relief.
Nor do any of the other rulings that Julie complained about in her motion to vacate warrant relief under CR 60(a). The other alleged errors are substantive, not merely mechanical.
For example, Julie complains that she was "erroneously charg[ed]" a larger proportion of the parenting evaluator's fee than Barry was. But the allocation of the cost of the evaluator is a matter of substance, and it embodies the court's intention. As the court explained, the evaluator spent an inordinate amount of time, at Julie's behest, interviewing her and reviewing documents she provided. Even if the court unfairly held Julie responsible for a larger proportion of the evaluator's fee, the decision does not constitute a clerical error correctable under CR 60(a). Rather, it is the type of error that may be addressed only in an appeal.
The same is true of the other alleged errors. Essentially, Julie argues that the trial court made her pay too much of the parenting evaluator's fee, while ignoring Barry's dissipation of the marital assets. But the court offset Barry's proportion of the fee against other marital assets that Julie dissipated. Hence, the record shows that the division of property in the written decisions was what the court intended and was not the result of a clerical error.
Julie Was Not Entitled To Relief Under CR 60(b)(1) or (11) Finally, Julie based her motion to vacate below on CR 60(b)(1) and (11). Neither of those rules warranted vacating the judgment in this case. CR 60(b)(1) allows a court to relieve a party from a final judgment if it was entered by "[m]istake, inadvertence, surprise, excusable neglect or irregularity in obtaining" the judgment. But as was discussed above, the trial court did not enter the decisions that Julie complains about as the result of a mistake, inadvertence, or any of the other circumstances described in CR 60(b)(1). Rather, the court entered the decisions intentionally.
Under CR 60(b)(11), the court may vacate a judgment for "any other reason justifying relief from the operation of the judgment" not described elsewhere in CR 60(b). But CR 60(b)(11) applies to situations that involve extraordinary circumstances not covered by any other section of CR 60(b). In re Marriage of Furrow, 115 Wn. App. 661, 674, 63 P.2d 821 (2003). Irregularities that are extraneous to the court's action or that involve substantial deviations from a prescribed rule or mode of proceeding justify vacation under CR 60(b)(11), whereas errors of law do not. Furrow, 115 Wn. App. at 674; In re Marriage of Hammack, 114 Wn. App. 805, 60 P.3d 663, review denied, 149 Wn.2d 1033 (2003).
Julie did not base her motion to vacate on irregularities that were extraneous to the trial court's action or substantial deviations from procedure. Rather, she essentially alleged that the trial court unjustly disposed of the property and liabilities of the parties, which constitutes an error of law. See RCW 26.09.080 (in a proceeding for dissolution of marriage, the court shall "make such disposition of the property and the liabilities of the parties . . . as shall appear just and equitable[.]" Therefore, the trial court did not abuse its discretion when it denied Julie's motion to vacate the court's decisions.
The trial court did not abuse its discretion when it denied Julie's motion to vacate without hearing argument on the motion. Julie did not show that she was entitled to relief under CR 60. The decisions of the trial court are affirmed.
KENNEDY, ELLINGTON and BAKER, JJ.