Opinion
No. 49774-0-I c/w 50378-2-I
Filed: October 6, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 94-3-00733-9 Judgment or order under review Date filed: 10/23/2001
Counsel for Appellant(s), Patricia S. Novotny, Attorney at Law, 3418 NE 65th St. Ste a, Seattle, WA 98115-7397.
Counsel for Respondent(s), Rachel Lee Felbeck, Law Office of Rachel L Felbeck, 10800 NE 8th St. Ste 300, Bellevue, WA 98004-4429.
Cheryll Diane Russell, Attorney at Law, 10800 NE 8th St. Ste 300, Bellevue, WA 98004-4429.
Frustrated by a mother's failure to pay court-ordered child support and aware that she had conveyed her house to her new husband as a gift, the trial court made the new husband a judgment debtor on the order of child support. This was not a proper way to reach the mother's interest, if any, in the house. The new spouse was not a party to the dissolution proceedings, and the court did not have personal jurisdiction as is required for the entry of a judgment. We hold the judgment purporting to bind the new spouse is void as to that spouse. The trial court erred in refusing to relieve him from it. Deborah Ericson (formerly Reeder) and Merle Reeder have two children together, aged 16 and 13. Deborah and Merle separated in 1993. They were divorced in 1995. In 1997, they negotiated an agreed final parenting plan in which they shared parenting responsibilities on a 50-50 basis.
To avoid confusion, we refer to each party by their first names.
In October 2000, Deborah gave notice that she intended to move to Virginia with her new husband, Clif Ericson. Merle petitioned to modify the parenting plan, and Deborah cross-petitioned. Both sought to be designated as the primary residential parent. After a four-day trial in August 2001, the court entered a modified parenting plan. In general terms, the parenting plan placed the children with Merle during the school year and with Deborah during part of the summer. Following this decision, the court entered several more judgments enforcing the parenting plan and Deborah's obligation to pay child support to Merle. This opinion addresses the consolidated appeals.
MOTIONS FOR RELIEF FROM JUDGMENT
After remarrying, Deborah conveyed her sole asset the house to her new husband, Clif Ericson, as his separate property. Clif was in the process of selling it during the modification proceedings in 2001.
When Merle succeeded in being designated the primary residential parent, he proposed an order of child support listing Deborah as the only judgment debtor. But Deborah was unemployed, and Merle doubted that she would pay child support. When presenting the final order, Merle requested that the court enter judgment against Clif as well as Deborah. His objective was to gain leverage in enforcing Deborah's child support obligation by obtaining a lien against Clif's house. In an order entered on October 23, 2001, the court without objection named Clif as a judgment debtor on Deborah's obligation to pay child support and her share of the fees for the guardian ad litem. Several months later, Deborah moved under CR 60(b)(5) for relief from judgment, arguing that the court lacked jurisdiction to name Clif as a judgment debtor. The court denied Deborah's motion for relief, finding that she did not have standing to challenge the judgments against Clif.
Clerk's Papers at 54.
Then Clif brought his own CR 60(b)(5) motion for relief. Clif raised the same argument that Deborah raised in her motion to vacate: that the judgments against him were void for lack of personal jurisdiction. The court denied Clif's motion, ruling that it was precluded under the doctrine of res judicata. Deborah and Clif, in separate appeals, respectively challenge the orders denying them the requested relief.
Merle incorrectly contends that Deborah's appeal is barred as an issue not timely raised below. Lack of jurisdiction is an exception to the rule requiring objection in the trial court. RAP 2.5(a). A motion to vacate a void judgment under CR 60(b)(5) may be brought at any time after judgment.
In re Marriage of Markowski, 50 Wn. App. 633, 635, 749 P.2d 754 (1988). A trial court has a nondiscretionary duty to grant relief from a void judgment. In re Marriage of Maxfield, 47 Wn. App. 699, 703, 737 P.2d 671 (1987). Decision on a motion to vacate a final order as void for lack of jurisdiction is reviewed de novo. In re Marriage of Wilson, 117 Wn. App. 40, 45, 68 P.3d 1121 (2003).
On Deborah's motion to vacate, the court did not reach the merits of her contention that the court lacked personal jurisdiction over Clif, concluding that she was 'in no position' to ask to have her husband's name taken off the judgment. To have standing to bring a Rule 60(b) motion, one must be either the party affected by the challenged judgment or the party's legal representative. See Kem Mfg. Corp. v. Wilder, 817 F.2d 1517, 1520 (11th Cir. 1987). The term 'legal representative' was intended to reach only those individuals 'who were in a position tantamount to that of a party or whose legal rights were otherwise so intimately bound up with the parties that their rights were directly affected by the final judgment.' Kem Mfg., 817 F.2d at 1520. In this case, the judgment made Clif personally liable for Deborah's child support obligation. It was an attempt to subject Clif's separate property to that obligation. Because Deborah has not demonstrated that she was Clif's legal representative with respect to his separate property, we cannot conclude that the court erred in finding she lacked standing to vacate the judgment against Clif.
Clerk's Papers at 490.
Clif, on the other hand, clearly had standing to bring such a motion.
The trial court still did not reach the merits of the lack of jurisdiction argument on Clif's motion, however, instead finding his claim to be precluded as res judicata or by collateral estoppel.
The purpose of res judicata is to avoid relitigation of claims arising out of the same facts by the same parties. Hisle v. Todd Pac. Shipyards Corp., 113 Wn. App. 401, 410, 54 P.3d 687 (2002). Collateral estoppel applies only after the party against whom the doctrine is applied has had a full and fair opportunity to litigate his or her case. Spahi v. Hughes — Northwest, Inc., 107 Wn. App. 763, 774, 27 P.3d 1233, 33 P.3d 84 (2001). Clif was not a party to any prior action. He had no prior opportunity to litigate the issue of his liability for Deborah's child support obligation. Clif was not in privity with Deborah with respect to her parental rights and child support obligation, and the previous judgment on Deborah's motion to vacate was not a judgment on the merits, having been dismissed for lack of standing. Because Deborah's motion to vacate was dismissed on a procedural ground, that proceeding did not provide an opportunity to litigate the issue of lack of personal jurisdiction. Thus, the court erred in dismissing Clif's motion on the basis of res judicata and collateral estoppel. The motion should have been heard on the merits.
On the merits, the question is whether the trial court erred in entering judgment against Clif when he was not a party to the modification proceeding between Merle and Deborah.
'First and basic to any litigation is jurisdiction. First and basic to jurisdiction is service of process.' Painter v. Olney, 37 Wn. App. 424, 427, 680 P.2d 1066 (1984). Proper service of a summons and complaint is essential to invoke personal jurisdiction over a party. Allstate Ins. Co. v. Khani, 75 Wn. App. 317, 324, 877 P.2d 724 (1994). Notice without proper service is not enough to confer jurisdiction. In re Marriage of Logg, 74 Wn. App. 781, 784, 875 P.2d 647 (1994). Whenever a trial court lacks personal jurisdiction over a party, any judgment entered by the court against that party is void. Marley v. Dep't of Labor Indus., 125 Wn.2d 533, 541, 886 P.2d 189 (1994); Mid-City Materials, Inc. v. Heater Beaters Custom Fireplaces, 36 Wn. App. 480, 486, 674 P.2d 1271 (1984).
Merle does not come to grips with the fact that Clif was not a party to the divorce or modification proceedings, nor was he ever served with notice that the litigation could result in judgment against him personally. Merle's strategy of adding Clif's name to the judgment circumvented the necessity of establishing personal jurisdiction, as well as the laws generally applicable to enforcement of judgments.
In his defense of the judgment against Clif, Merle relies on the rule that a trial court may enter a valid judgment for child support against the new marital community of a remarried parent without joining the new spouse as a party to the action. Knittle v. Knittle, 2 Wn. App. 208, 213, 467 P.2d 200 (1970). However, by entering judgment against Clif, the trial court purported to make Deborah's child support obligation collectible not just from property belonging to the new marital community, but also from Clif's separate property. This is beyond the authority provided by Knittle. Nor is authority supplied by cases allowing a judgment creditor to reach the debtor's half interest in a marital community asset. See, e.g., Keene v. Edie, 131 Wn.2d 822, 833-35, 935 P.2d 588 (1997). Merle could potentially reach Clif's interest in the house if the conveyance to Clif was fraudulent, but this would require a formal adjudication with Clif as a party, and this did not occur in the context of the modification proceeding.
Below, both parties cited as authority for their respective positions the case of Stella Sales, Inc. v. Johnson, 97 Wn. App. 11, 985 P.2d 391 (1999). Stella Sales was a consolidated appeal arising from a dispute over commercial property leased to Stella Sales by Johnson. The trial court issued a decree of specific performance on summary judgment, ordering Johnson to sell the property to Stella Sales under an option contract. Johnson appealed. The Court of Appeals reversed the order of summary judgment and remanded for trial. At trial, Johnson's children were allowed to assist her because of her advanced age and the fact that they were about to succeed to her interest in the property. Stella Sales prevailed at trial, and the court orally ruled that the purchase contract would be enforced. Before findings could be entered, Johnson died. Shortly thereafter, Johnson's children began unlawful detainer proceedings. Stella Sales successfully moved to have them held in contempt, in part on the basis that they had violated the oral ruling given by the trial court at the end of the trial. Stella Sales also successfully moved to have them substituted as defendants in the original action and proceeded to have findings and judgment entered against them for specific performance of the contract.
On appeal, the Johnson children sought relief from both the contempt order and the judgment on the basis that they were not proper parties to the action. Because they had not been personally served with the notice of substitution, the court reversed the judgment. However, the finding of contempt against them was affirmed. The court rejected their argument that they were nonparties over whom the court did not have jurisdiction. 'In appropriate circumstances, a trial court may find a nonparty in contempt of court when the person has actual knowledge of the court order. In addition, persons in privity of estate may be found in contempt for violating an order adjudicating rights to property.' Stella Sales, 97 Wn. App. at 21 (citations omitted). Because the children were present in court to hear the decree of specific performance and were successors in interest to the property, they were bound by the court's oral ruling and properly held in contempt when they violated it.
Merle argues that the trial court here similarly had authority to enter a judgment against Clif because, although he was a nonparty, he was in privity with Deborah. However, it is clear that this part of Stella Sales' rationale was limited to the contempt order and flows from the unique nature of contempt proceedings. See Stella Sales, 97 Wn. App. at 20-21. More pertinent to Clif's motion is the portion of Stella Sales holding that the judgment against the children had to be vacated because they had not been properly served with the notice of substitution. Stella Sales supports Deborah's argument: Because Clif was not a party to the modification proceeding, he cannot be personally bound by the October 23 judgment for child support that names him as a judgment debtor. This judgment is void as to Clif, and the court erred in denying Clif's motion to vacate.
The same analysis would no doubt apply to the judgment requiring Clif to pay Deborah's share of the fees owing to guardian ad litem Maggie Lucas. However, Maggie Lucas was not named as a party to this appeal, despite having an obvious interest in the judgment from which Clif sought relief. Accordingly, we will not disturb that judgment in this appeal.
AWARD OF FEES ON MOTIONS TO VACATE
Following the court's denial of Deborah's motion, Merle filed a motion for attorney fees. Merle argued that Deborah's motion to vacate was brought for the purpose of delaying her child support obligations. He requested fees on the equitable ground of intransigence. Deborah responded that her motion was brought on a valid legal ground her contention that the court lacked jurisdiction to name Clif as a judgment debtor. The court found that Deborah's motion was part of a pattern of intransigence and ordered her to pay $4,355 in attorney fees. Deborah appeals.
We review an award of fees for an abuse of discretion. Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 148, 859 P.2d 1210 (1993). A court abuses its discretion when its decision rests on untenable grounds or untenable reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971). Deborah's motion to vacate was well grounded in legal authority. Her attempt to establish the court's lack of jurisdiction over Clif could not have been part of any pattern of intransigence. It did not attempt to delay the enforceability of the judgment against her only against Clif. We conclude that the award of fees against Deborah did not rest on tenable grounds, and reverse it.
The court ordered Clif to pay Merle $2,850 in attorney fees for being 'required to respond a second time' to the same arguments. This award of fees must also be reversed as lacking a tenable basis, in accordance with our conclusion that Clif's arguments should have been considered on the merits and should have been successful. CIVIL RULE 11 SANCTIONS
Clerk's Papers at 461.
In connection with her motion to vacate, Deborah requested that the court impose CR 11 sanctions against Merle's attorney, Cheryll Russell. She explained that listing Clif as a judgment debtor caused a lien to be placed against Clif's house just as he was about to close a sale. As a result, the sale did not go through. The court denied Deborah's request for sanctions.
After the court orally dismissed Deborah's motion to vacate, Merle presented his motion for an award of attorney fees, which included a request that CR 11 sanctions be imposed against Deborah's attorney, Patricia Novotny. The court granted Merle's request for sanctions in the order dated March 29, 2002, and ordered Ms. Novotny to pay $270 to Ms. Russell.
Deborah assigns error to the court's denial of her motion for sanctions and also to the granting of Merle's motion to impose sanctions against Ms. Novotny.
We review a trial court's decision regarding CR 11 sanctions for abuse of discretion. Washington State Physicians Ins. Exch. Ass'n v. Fisons Corp., 122 Wn.2d 299, 338, 858 P.2d 1054 (1993). This court gives deference to a CR 11 award and does not lightly overturn a trial court's decision to impose sanctions. Fisons, 122 Wn.2d at 339. Imposition of sanctions is permissive, not mandatory. Biggs v. Vail, 124 Wn.2d 193, 197 n. 1, 876 P.2d 448 (1994).
Civil Rule 11 requires attorneys to date and sign all pleadings, motions, and legal memoranda. Such signature constitutes the attorney's certification that: 'to the best of the . . . attorney's knowledge, information, and belief, formed after reasonable inquiry it [the pleading, motion, or memoranda] is well grounded in fact and is warranted by existing law or a good faith argument[.]' CR 11. The reasonableness of an attorney's inquiry is evaluated by an objective standard; specifically, sanctions may be awarded if no reasonable attorney would have made the allegations contained in the case. See Bryant v. Joseph Tree, Inc., 119 Wn.2d 210, 220, 829 P.2d 1099 (1992). Deborah contends that sanctions against Merle's attorney, Ms. Russell, were warranted because if Ms. Russell had sufficiently investigated the law before adding Clif to the judgment, she would have understood that such a judgment cannot be entered against a nonparty.
Ms. Russell did not fail to research the issue. She simply reached the wrong conclusion. The argument that she made, based on Deborah's transfer of her house to Clif, was novel but not so baseless or careless as to require CR 11 sanctions.
Deborah next contends that the court abused its discretion in imposing terms of $270 against Ms. Novotny. In imposing CR 11 sanctions, the court must find either that the claim is not grounded in fact or law and the attorney failed to make a reasonable inquiry into the law or facts or that the paper was filed for an improper purpose. Biggs, 124 Wn.2d at 201; see also Bryant, 119 Wn.2d at 219-20.
The court made three pertinent findings in support of the sanctions against Ms. Novotny. First, Ms. Novotny 'admitted during oral argument she had not read the trial record prior to drafting and filing the Motion or seeking the Order to Show Cause for Relief From Judgments.' This finding does not support CR 11 sanctions. Ms. Novotny declared that she had reviewed the court's orders naming Clif as a judgment debtor, reviewed the court documents to find that Clif had never been named as a party to the petition, and researched the law pertaining to judgments against nonparties in preparation of her pleadings. It was unnecessary for her to review the evidence at trial because she was raising a legal issue lack of personal jurisdiction and as our previous discussion shows, resolution of that issue did not depend on anything that occurred at trial. Second, the court found that 'Deborah Erickson moved to continue this motion to the 29th of March '02 which was granted and she failed still to respond to the motion, although her office was advised by telephone her continuance was granted.' However, the record demonstrates that Deborah (through Ms. Novotny) did respond. Ms. Novotny attached the response when she moved to continue. She moved to continue when she realized that the response would be filed late due to her error in calendaring. This isolated oversight is not the sort of conduct that warrants CR 11 sanctions.
Finding of fact 4, Clerk's Papers at 361.
Finding of fact 8, Clerk's Papers at 362.
The third basis was that the order to show cause drafted by Ms. Novotny in connection with the hearing on Deborah's CR 60 motion was directed not only to Merle, but also to Ms. Russell personally, and Ms. Russell incurred fees to retain counsel to respond. The order to show cause stated: 'Merle Reeder and Cheryll Russell shall appear in person before this court at the place and time below and show cause why the relief requested in the motion should not be granted.' Ms. Russell claims that this caused her to retain personal counsel, Stella Pitts, and that Ms. Pitts appeared at the hearing on behalf of Ms. Russell solely because Ms. Russell was named in the order to show cause. The sanctions awarded against Ms. Novotny were for $270, the amount billed to Ms. Russell by Ms. Pitts. Merle fails to show how this set of facts supports an award of CR 11 sanctions against Ms. Novotny. The court's finding does not explain what Ms. Novotny did that was wrong or how any improper conduct by Ms. Novotny necessitated the hiring of Ms. Pitts. Although we are ordinarily reluctant to disturb a trial court's exercise of discretion in awarding sanctions, this appears to be one of those contentious proceedings where the CR 11 artillery was rolled out unnecessarily by both sides with predictably negative consequences. We reverse the award of CR 11 sanctions against Ms. Novotny and affirm the denial of CR 11 sanctions against Ms. Russell.
Findings of fact 6, Clerk's Papers at 362.
Clerk's Papers at 1462.
TRAVEL EXPENSES
The modified order of child support entered on October 23, 2001, required Deborah to pay 100 percent of the travel expenses for the children to fly to and from Virginia. Deborah contends this is an error that must be corrected because it is impermissible to apportion travel costs differently from the basic child support obligation.
The pertinent statute requires that 'long-distance transportation costs . . . shall be shared by the parents in the same proportion as the basic child support obligation.' RCW 26.19.080(3); In re Marriage of Scanlon and Witrak, 109 Wn. App. 167, 181, 34 P.3d 877 (2001) (without a deviation, the statute allows no room for a court to exercise discretion in allocation of expenses); In re Marriage of Casey, 88 Wn. App. 662, 667, 967 P.2d 982 (1997) (if there are statutory grounds for deviation from the basic support obligation, the court may 'depart from the usual practice of allocating special child rearing expenses').
Because Deborah has not shown that she raised this issue below, it does not warrant review. RAP 2.5(a). And we would, in any event, be reluctant to disturb the provision ordering Deborah to pay 100 percent of the transportation costs because in the same order, the court required Merle to pay 100 percent of each child's special educational expenses and extracurricular expenses. Documents in the record show the order was originally drafted to have the parents equally split both categories of expense equally, but the change was made so that the parent who had the highest motivation to pay for the expense would bear 100 percent of the responsibility for it. It seems likely that the expenses are roughly the same in amount, and on that basis, the order would be consistent with the statutory concern for proportional allocation. Dividing responsibility for expenses in this fashion appears to be an eminently practical solution to the problem of getting the expenses paid. We would be reluctant to interpret the statute in a manner that would preclude a trial court from taking this approach.
Clerk's Papers at 58-59; Report of Proceedings at 33 (August 17, 2001).
DEFAULT ORDER OF CONTEMPT
On April 19, 2002, Merle brought a motion for an order to show cause why Deborah should not be held in contempt based on her nonpayment of back child support as ordered in the October 23, 2001 modified order of child support. The motion alleged that Deborah was $5,294.43 in arrears on that obligation. Another issue raised in Merle's motion was travel planning for the children. Under the parenting plan entered in October 2001, Deborah was required, 40 days in advance of travel, to provide Merle with proof that she had purchased plane tickets for the children to fly to and from Virginia for their scheduled visitation with her. Based on disputes that had already arisen concerning this obligation of Deborah's, Merle asked the court to clarify that if Deborah did not comply with this requirement, he could make other plans for the children during the visitation periods.
Merle noted the motion for hearing on May 9. Deborah was personally served and received actual notice of the motion on April 22, 2002.
On May 8, Deborah filed a motion to dismiss based on her assertion that as a nonresident of the state, she was due 60 days' notice of the contempt proceeding. She did not attend the hearing on May 9 and did not file a substantive response. On May 9, 2002, the trial court denied Deborah's motion and entered a default order of contempt against her. She was ordered to pay back support and attorney fees. On the issue of travel plans, the court ordered that if Deborah did not provide the flight schedule and proof of ticket purchase 40 days in advance, 'the children do not need to visit Mother.'
Clerk's Papers at 685.
On appeal, Deborah contends that the default judgment of contempt is void for lack of jurisdiction because the notice was not 'served in the same manner as original service of a summons,' as required by King County Local Rule 94.04(j)(4). The issue, however, is not jurisdiction. The court retains continuing jurisdiction in child support matters until all obligations have been satisfied. RCW 26.18.040(3). The issue is whether the court had authority to proceed on the motion for contempt given the amount of time approximately two weeks that intervened between service of the motion and the hearing. Deborah asserts that when the local rule refers to 'same manner of service,' it imposes a requirement to give 60 days' notice, because under Washington's long-arm statute, RCW 4.28.180, an out-of-state resident must be given 60 days to respond to original service of a summons.
'Civil Contempt Proceedings. Contempt proceedings shall be initiated by an Order to Show Cause which shall be served in the same manner as original service of a summons. If a warrant is issued, it shall be delivered to the King County Police. The Sheriff will arrange for out of county service, if necessary.' King County Local Rule 94.04(j)(4).
As this court recently explained, 'manner of service' refers to type of service, such as personal service or mailed notice. It does not refer to the amount of time required for service. Sammamish Pointe Homeowners Ass'n v. Sammamish Pointe L.L.C., 116 Wn. App. 117, 120-21, 64 P.3d 656 (2003). Merle's personal service of the motion upon Deborah satisfied the local rule as to manner of service.
Deborah also relies on In Re Marriage of Moore, 53 Wn. App. 687, 769 P.2d 881 (1989) for the proposition that even a motion for contempt, when served upon a nonresident, must give 60 days' advance notice of the hearing.
At issue in Moore was a petition brought under CR 60(b) to modify the property aspects of a decree of dissolution three years after the decree became final. The petitioner served her ex-spouse personally in California on May 9, 1986, with the petition, a regular 20-day summons, and an order to show cause bearing a return date of May 20. The ex-husband did not appear, although he wrote to petitioner's counsel explaining that he was trying to obtain counsel. The court entered a default order on May 20, modifying the decree as requested.
On appeal, it was held that the ex-husband's motion to vacate should have been granted. The court recognized that the superior court continued to have jurisdiction over the subject matter and the parties with respect to the later proceeding to modify. The court held, however, that in order to 'invoke' that jurisdiction, it was necessary to serve a 60-day summons as prescribed by the long-arm statute, RCW 4.28.180. Moore, 53 Wn. App. at 690. Because the ex-husband had been given inadequate time to respond to the motion, the trial court lacked authority to enter the default order.
While the order of events was similar to what happened in this case, Moore did not involve a contempt proceeding. That is a material difference. A contempt of court proceeding 'is unique, and it is the nature of a proceeding that determines what process is 'due." Burlingame v. Consol. Mines Smelting Co., 106 Wn.2d 328, 334, 722 P.2d 67 (1986).
The contempt of court power 'is available only against individuals who are already aware of the existence and nature of a proceeding. . . . Notice therefore is not as crucial as it is in the initiation of a civil proceeding.' Burlingame, 106 Wn.2d at 334-45. Based on this reasoning, the court affirmed a judgment for contempt entered against a California resident, rejecting the argument that the timing of the show cause motion nine days after the alleged contemnor was served with the notice was inadequate to satisfy due process. In a contempt proceeding, 'notice is sufficient as long as it informs the accused of the time and place of the hearing and the nature of the charges pending.' Burlingame, 106 Wn.2d at 335.
Deborah contends Burlingame does not adequately distinguish Moore because it does not appear that an argument based on the long-arm statute was raised in Burlingame. Nevertheless, Burlingame is the applicable precedent. Unlike the ex-husband in Moore who had no reason to know that he was about to face a show cause hearing on a petition to modify a three — year-old decree, Deborah was well aware that she had an unpaid child support obligation. Unlike the specific provisions for the timing of a summons discussed in Moore, the child support enforcement statute does not specify that notice of a contempt hearing must be 20 days, 60 days, or any other particular length of time. It states that when there is reasonable cause to believe an obligor has failed to comply with a support order, 'the court may issue an order to show cause requiring the obligor to appear at a certain time and place for a hearing ' RCW 26.18.050(1) (emphasis added). Burlingame holds that due process concerns are satisfied when an alleged contemnor is given notice of the time and place of the hearing and the nature of the charges, for the purpose of enabling that individual to prepare a defense. Burlingame, 106 Wn.2d at 333; see also State ex rel. Shafer v. Bloomer, 94 Wn. App. 246, 251, 973 P.2d 1062 (1999). The timing of service on an alleged contemnor of a show cause order under RCW 26.18.050 is flexible, depending on the exigencies of the situation. In this case, Deborah has not shown that she needed more time than she was given to respond to the motion; she relies solely on the argument that she was entitled, under the rules and Moore, to 60 days' notice. Because the unique nature of contempt proceedings distinguishes her situation from Moore, her argument fails. Deborah was properly served, and the default order of contempt will stand.
With respect to the issue of advance purchase of airline tickets, Deborah contends that the default order 'forfeits' her residential time with the children and is therefore a modification, rather than a clarification, of the parenting plan. A parenting plan is modified when rights given to one party are extended beyond the scope originally intended, or reduced; whereas a clarification is a definition of rights already given. Rivard v. Rivard, 75 Wn.2d 415, 418, 451 P.2d 677 (1969).
The order was entered by default when Deborah did not appear to contest the motion. The only basis on which she has argued for vacation of the default judgment is that she did not get 60 days' notice of the motion. As previously discussed, that argument is unsuccessful, and the default judgment will stand, including its provision regarding the airline tickets. And in any event, the order, on its face, does not forfeit Deborah's residential time. It merely clarifies that Deborah's right to have the children come to Virginia where she now lives is conditioned on advance planning and purchase of tickets as spelled out in the earlier court order.
The contempt order of May 9, 2002, is affirmed.
ATTORNEY FEES
Both parties request attorney fees on appeal. However, because neither party has filed a financial affidavit as required by RAP 18.1(c), neither party is entitled to fees based on financial need. And Deborah's arguments are neither frivolous nor intransigent. See Mattson v. Mattson, 95 Wn. App. 592, 605-06, 976 P.2d 157 (1999); In re Marriage of Anglin, 52 Wn. App. 317, 325-26, 759 P.2d 1224 (1988). Similarly, Merle's incorrect legal arguments, without a showing that he proffered the arguments for improper or delaying purposes, cannot support a finding of intransigence.
The parties' requests for attorney fees are denied.
We reverse the order entered on April 8, 2002, which denied Clif's motion to vacate the judgment of child support. The judgment of October 23, 2001, though void as to Clif, remains valid as to Deborah. We remand for entry of a corrected judgment of child support, without Clif as a judgment debtor. We reverse the awards of attorney fees entered against both Deborah and Clif for bringing their motions for relief from the judgment. We reverse the award of $270 in CR 11 sanctions against Ms. Novotny. The default order on Merle's motion for contempt and clarification entered on May 9, 2002, is affirmed, as is the denial of Deborah's motion to dismiss the contempt proceeding.
Deborah has filed a motion asking this court to take judicial notice that Merle's house was sold under foreclosure and all sale proceeds were disbursed to the three mortgage holders. The status of the house does not bear on this court's determination of the issues on appeal. Therefore, we deny the motion.
KENNEDY and AGID, JJ., concur.