Christien Freeman v. Steven Wallace ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
CHRISTIEN FREEMAN, ) No. 75420-3-1
)
Appellant, )
)
v. )
)
STEVEN ALLEN WALLACE, ) UNPUBLISHED OPINION
)
Respondent. ) FILED: April 17, 2017
)
VERELLEN, C.J. — Christien Freeman appeals a 2016 King County Superior Court
order denying her CR 60(b) motion to vacate 2011 Tennessee court orders for support and
custody.
Because the Uniform Child Custody Jurisdiction and Enforcement Act(UCCJEA)1 is
not the source of a court's subject matter jurisdiction but merely authorizes a court to
exercise its jurisdiction, the Tennessee court orders are not void for lack of subject matter
jurisdiction. Freeman also failed to offer evidence that she was not provided notice and an
opportunity to be heard in the Tennessee court. Therefore, the superior court did not err in
denying Freeman's motion under CR 60(b)(5).
And because Freeman did not provide compelling evidence that the Tennessee
orders were no longer equitable or that there were irregularities extraneous to the action of
1 Ch. 26.27 RCW.
No. 75420-3-1/2
the court or questions concerning the regularity of the court's proceedings, her arguments
for relief under CR 60(b)(6) and (11) also fail.
We affirm.
FACTS
Christien Freeman (mother) and Steven Wallace (father) met in Washington and
had a child, L.W., in February 2009. After the mother and father ended their dating
relationship, the mother and L.W. moved in with the maternal grandmother in Auburn,
Washington. The Washington State Department of Health and Social Services(DSHS)
entered a consent order in December 2009 listing the mother as the custodial parent and
the father as the noncustodial parent. Under the order, the father owed $294 per month.
The father moved to Tennessee in 2010. It is undisputed that the mother, the
father, and L.W. were in Tennessee in February 2011. On February 22, 2011, the father
petitioned the Hickman County Juvenile Court in Tennessee for custody of L.W. The
Tennessee court entered a temporary order and set a hearing for March 3, 2011.
According to the father's affidavit, on February 15, the mother called him and said,
"[C]ome and pick up your daughter. I am having a breakdown and I'm freaking out and do
not know what to do."2 The father said the mother would not tell him where she was and
that he was "not allowed over there."3 The father then met the mother, and she left L.W.
with the father "without saying anything." She also "would not tell [the father] how long
2 Clerk's Papers(CP)at 75.
3 Id.
"Id.
2
No. 75420-3-1/3
she was staying or how long she would be in Tennessee."8 The father also said that on
February 18, he received information from the King County Sherriffs Office about an
outstanding warrant for the mother's arrest. The father said he was
fearful that[LW.] will be placed in foster care if the mother is arrested. The
mother does not have any visible means of support and does not have a
place to live. She came to Tennessee to meet with a man she met on-line
while living in Washington [s]tate with her mother.[81
The Tennessee court entered orders on March 3 and March 7, 2011, awarding the
father "exclusive custody" and financial support.7 The orders recite that the mother was
properly served, but she never appeared before the Tennessee court or responded to the
petition.
The mother, the father, and L.W. moved back to Washington "at the end of July or
early August" 2011.8 A brief reconciliation between the mother and the father was
unsuccessful. In September 2011, after "six to eight weeks" when LW.stayed with the
mother, the father "came and removed [L.W.]from [the mother's] home due to the custody
order from Tennessee."8
In 2012, the mother received a notice and finding of financial responsibility from
DSHS. The notice listed the mother as the noncustodial parent, the father as the custodial
parent, and included a current support responsibility and a past-due support amount.
5 Id.
6 Id.
7 CP at 65-69.
CP at 11.
9 Id.
3
No. 75420-3-1/4
On January 4, 2016, a King County Superior Court commissioner denied the
mother's motion for major modification of the Tennessee custody order, but the court did
find a basis for minor modification and allowed the mother residential time on alternating
weekends. A superior court judge denied the mother's subsequent motion for revision.
The mother moved for relief from the Tennessee orders under CR 60(b) on May 16,
2016. The mother argued the Tennessee court lacked jurisdiction under the UCCJEA.1°
In the mother's declaration attached to her CR 60(b) motion, she said that she and L.W.
went to Tennessee to visit with the father and his family, along with the mother's
grandfather. The court denied her motion, and ruled:
The problem the Court has is that this order is from a different jurisdiction,
and is five years old, and is not—I mean,the Mother was aware of this order
at the time. [Looking] under CR 60, you're correct in one respect, the one
[year] time limit talks about, all subsections, 1, 2, and 3, but it also says the
motion [is] to be made within a reasonable time.
And I'm just not finding that five years is a reasonable time to address
it, but also, I don't think this Court has jurisdiction to undo Tennessee. I don't
know what happened in Tennessee. I don't know what record may be
contained there. I mean, you're asking me to put myself in the shoes of
another state and determine that they acted fraudulently under the UCCJEA.
I don't know what they considered.[11]
The mother appeals the order denying her CR 60(b) motion.12
10 CP at 52.
11 Report of Proceedings(June 6, 2016) at 8.
12 The limited record does not provide the complete context of the Tennessee court
or administrative agency analysis of the various support orders.
4
No. 75420-3-1/5
ANALYSIS
We review a ruling on a motion to vacate under CR 60(b)for abuse of discretion.13
A court abuses its discretion when its decision is based on untenable grounds or
reasoning.14 "The motion shall be made within a reasonable time."15 An appeal from the
denial of a CR 60(b) motion is not a substitute for an appeal and is limited to the propriety
of the denial, not the impropriety of the underlying order.16
I. CR 60(b)(5)
The mother contends the Tennessee order is void because the Tennessee court
lacked subject matter jurisdiction under the UCCJEA to enter a custody order.
The superior court may, upon a party's motion, relieve a party from an order if the
judgement is void.17 We review a CR 60(b)(5) motion to vacate a final order as void for
lack of jurisdiction de novo.15
The UCCJEA was promulgated to reduce the instances of"'competing jurisdictions
entering conflicting interstate child custody orders, forum shopping, and the drawn out and
complex child custody legal proceedings often encountered by parties where multiple
states are involved.'"19 Both Washington and Tennessee have adopted the UCCJEA.29
13 Barr v. MacGugan, 119 Wn. App. 43,46, 78 P.3d 660 (2003).
14 Id.
15 CR 60(b).
16 Bjurstrom v. Campbell, 27 Wash. App. 449, 450-51, 618 P.2d 533(1980).
17 CR 60(b)(5).
18 In re Marriage of Wilson, 117 Wash. App. 40, 45,68 P.3d 1121 (2003).
19 In re Marriage of McDermott, 175 Wash. App. 467, 483, 307 P.3d 717(2013)
(quoting In re Custody of A.C., 165 Wash. 2d 568, 574, 200 P.3d 689(2009)).
20 RCW 26.27.011; TENN. CODE ANN. 36-6-201.
5
No._75420-3-1/6
"The consequences of a court acting without subject matter jurisdiction are
'draconian and absolute."21 "The critical concept in determining whether a court has
subject matter jurisdiction is the type of controversy."22 "If the type of controversy is within
the subject matter jurisdiction, then all other defects or errors go to something other than
subject matter jurisdiction."23 It is critical to distinguish between the term "subject matter
jurisdiction" and a court's authority to rule in a particular matter.24 "The UCCJEA, as
adopted by the Washington legislature, does not—and cannot—divest a superior court of
subject matter jurisdiction" over custody matters.25
Contrary to the mother's assertion, the UCCJEA is not the source of, nor does it
impose limits on, a court's subject matter jurisdiction. As our Supreme Court has
acknowledged, subject matter jurisdiction arises from the constitution.26 The term
21 McDermott, 175 Wash. App. at 479(quoting Cole v. Harvevland, LLC, 163 Wn.
App. 199, 205, 258 P.3d 70(2011)).
22 Cole, 163 Wash. App. at 209.
23 Id.
24Marley, 125 Wn.2d 533, 539, 886 P.2d 189(1994); see In re Major, 71 Wash. App.
531, 534-35, 859 P.2d 1262(1993).
25 McDermott, 175 Wash. App. at 479; see also In re S.L.M. & T.J.M., 207 S.W.3d
288, 296 (Tenn. Ct. App. 2006)("The UCCJEA does not confer subject matterjurisdiction
on juvenile courts to decide custody matters. By its own terms, the Act is a tool that is
available only to courts that are 'authorized under state law to establish, enforce, or modify
a child custody determination.")(emphasis added).
26 See In re Custody of A.C., 165 Wash. 2d 568, 582 n.3, 200 P.3d 689(2009)("The
UCCJEA uses the term 'subject matter jurisdiction,' and for consistency we use the
statutory language. However, Washington courts did, in fact, have subject matter
jurisdiction over the parties and the issues. See CONST. ART. IV, §6(describing general
jurisdiction of superior courts); Dougherty v. Dep't of Labor & Indus., 150 Wash. 2d 310, 316-
17, 76 P.3d 1183(2003)(subject matter jurisdiction concerns the type of controversy, not
the facts of an individual case). The statute might have more accurately used the term
'exclusive venue' instead of'subject matter jurisdiction.").
6
No. 75420-3-1/7
"jurisdiction" is used to be consistent with the UCCJEA's terminology.27 And as this court
has acknowledged, the UCCJEA uses the term "jurisdiction" but not "subject matter
jurisdiction" in its text.28 The mother makes no showing of a lack of subject matter
jurisdiction.
Further, whether a superior court has the authority to exercise its jurisdiction under
the UCCJEA is a mixed question of law and fact.29 The UCCJEA contains provisions
extending to emergency circumstances.39 Viewed in the light most favorable to the father,
the mother left L.W. with the father, not just for visitation. The mother does not establish
that the Tennessee court lacked authority to act.
The mother also argues the Tennessee court's order is void for lack of personal
jurisdiction because she did not receive notice that the father would be seeking support or
a modification of the DSHS order in the Tennessee court. And because the Tennessee
order was entered by default, the mother contends she was denied due process.
To grant relief beyond that sought in the complaint without notice and an opportunity
to be heard is a denial of procedural due process.31
But here, the mother admits in her declaration that she "received two or three days'
notice of the hearing."32 The Tennessee court order includes that "[the mother] was
27McDermott, 175 Wn. App. at 482("Nevertheless, for consistency, the court
decided to use the statutory language throughout its opinion.")(citing A.C., 165 Wash. 2d at
573 n.3.).
28 Id. at 482 n.6.
29 Id. at 483.
30 RCW 26.27.231; TENN. CODE ANN. 36-6-219(b).
31 In the Matter of Marriage of Leslie, 112 Wash. 2d 612, 617, 772 P.2d 1013(1989).
32 CP at 10.
No. 75420-3-1/8
properly serviced with notice of these proceedings" and that she did not appear.33 She did
not provide King County Superior Court with evidence to support her theory that she was
somehow unaware of the Tennessee orders while she remained in Tennessee, reconciled
with the father, and moved back to Washington with the father and L.W.
Alternatively, the mother points to the administrative order of support from DSHS in
December 2009. The mother argues, under the Uniform Interstate Family Support Act
(UIFSA),34 only Washington had "exclusive continuing jurisdiction to modify that order."35
She contends the Tennessee support order is void because the Tennessee court did not
meet the statutory requirements to modify another state's support order and therefore
"infringed on Washington's exclusive continuing jurisdiction over that issue."36
UIFSA merely limits a trial court's authority to modify another state's child support
order, not its jurisdiction. Our Supreme Court confronted a similar issue in In re
Schneider,37 and reasoned:
More properly read, RCW 26.21A.550(1) deprives the trial courts of the
authority to issue a particular form of relief—here, an order modifying child
support—when its conditions are not met. A court that grants relief beyond
the scope of its authority commits an error oflaw but does not exceed its
subject matterjurisdiction.r381
Here, the Tennessee order does not purport to modify a preexisting order. Even if
the Tennessee court granted relief beyond the scope of its authority under UIFSA, it would
33 CP at 65-66.
34 Ch. 26.21A RCW.
38 Appellant's Br. at 18.
36 id.
37 173 Wn.2d 353, 362, 268 P.3d 215(2011).
38 Id.(emphasis added).
8
No. 75420-3-1/9
amount to an error oflaw, not a lack of jurisdiction. Our courts have recognized, "'errors of
law are deemed to be adequately protected against by the availability of the appellate
process" by an appeal from the judgment, not by appeal of a CR 60(b) motion.39
We conclude the court did not err when it denied the mother's CR 60(b)(5) motion
because she did not establish the Tennessee court orders were void for lack of subject
matter or personal jurisdiction. At most, the mother alleges the Tennessee court granted
relief beyond its authority, but that should have been raised as an error of law in an appeal
from those orders, as opposed to an appeal from a CR 60(b)(5) motion.
II. CR 60(b)(6) and(11)
The mother argues the trial court abused its discretion when it denied her motion for
relief under CR 60(b)(6) and (11).
CR 60(b)(6) allows relief from judgment when it is no longer equitable that the
judgment should have prospective application. "This provision allows the trial court to
address problems arising under a judgment that has continuing effect'where a change in
circumstances after the judgment is rendered makes it inequitable to enforce the
judgment."4°
Here, the mother argues that the father obtained the Tennessee order of support
"by fraud and procedural irregularities" but she fails to point to evidence in the record to
39 In re Marriage of Furrow, 115 Wash. App. 661, 674, 63 P.3d 821 (2003)(quoting
Philip A. Trautman, Vacation and Correction of Judgments in Washington, 35 WASH. L.
REV. 505, 515 (1960)); see also Biurstrom, 27 Wash. App. at 451 ("The exclusive procedure
to attack an allegedly defective judgment is by appeal from the judgment, not by appeal
from a denial of a CR 60(b) motion.").
40 Pac. Sec. Companies v. Tanplewood, Inc., 57 Wash. App. 817, 820, 790 P.2d 643
(1990)(quoting Metropolitan Park Dist. v. Griffith, 106 Wash. 2d 425, 438, 723 P.2d 1093
(1986)).
9
No. 75420-3-I/10
support her claim.41 The mother also claims that she "accrued arrearages under two
competing orders."42 Again, she does not offer any compelling evidence in the record to
support her assertion.
Under CR 60(b)(11), the court has discretion to vacate an order for "[a]ny other
reason justifying relief from the operation of the judgment."43 But this subsection is
"reserved for situations involving extraordinary circumstances not covered by any other
section of CR 60(b)."44 Those situations "must relate to 'irregularities extraneous to the
action of the court or questions concerning the regularity of the court's proceedings."45
The mother does not establish such irregularities or extraordinary circumstances.
Notably, the court denied the mother CR 60(b)(6) and (11) relief, in part, because
she did not bring her motion within a reasonable time.46 In her declaration, she said L.W.
stayed with the father except for a "six to eight" week period in 2011 after the mother and
the father moved back to Washington.47 The mother also received a notice from DSHS in
late December 2012, yet did not move to modify the Tennessee orders until January 2016
and did not move to vacate the orders until May 2016. The mother failed to provide
evidence warranting such a delay in challenging the 2011 Tennessee orders.
41 Appellant's Br. at 19-20.
42 Id. at 20.
43 In re Marriag_e of Furrow, 115 Wash. App. 661, 673,63 P.3d 821 (2003).
44 Id.
45 Id.(quoting In re Marriage of Yearout, 41 Wash. App. 897, 902, 707 P.2d 1367
(1985)).
46 S In re Marriage of Thurston, 92 Wash. App. 494, 500, 963 P.2d 947(1998)("a
CR 60(b)(11) motion must be brought within a 'reasonable time.").
47 CP at 11.
10
No. 75420-3-1/11
CONCLUSION
The mother does not establish a void order or judgment as required under
CR 60(b)(5). She does not establish the trial court abused its discretion in denying her
relief under CR 60(b)(6) and (11).
We affirm.
WE CONCUR:
J'ce•i
11