In re the Marriage of Shoemaker , 128 Wash. 2d 116 ( 1995 )

Johnson, J.

— The trial court in this case vacated a child support order entered five years previously which modified the terms of the original dissolution decree. Under the vacated order, each parent had custody of one child and neither was obligated to pay child support. The effect of the court’s decision was to reinstate the child support obligation contained in the original decree requiring the father to pay support. Judgment was then entered against the father for past support. He appealed and the court of appeals affirmed. We reverse the trial court and the court of appeals.

John and Pamela Shoemaker were divorced in 1980 in Kitsap County Superior Court. They had two children, Lisa, then ten, and Annetra, then six. In the initial proceeding, Pamela was awarded custody of both children and John was ordered to pay child support of $165 per child per month.

The parties continued their legal sparring. John Shoemaker (Shoemaker) immediately filed a motion for reconsideration, followed over the next two years by a series of motions for contempt, alleging his ex-wife was not living up to the terms of the decree.

In 1982, Lisa decided'to live with her father, who was by this time remarried. At this time, Shoemaker apparently stopped paying child support for Lisa.¹ In 1983, he successfully sought modification orders with regard to both custody and child support. By the terms of a 1983 default order, Shoemaker was relieved of any child support obligations.

In July 1985, the parties entered into a stipulated order of modification. Under the terms of this second order, Shoemaker and Pamela Shoemaker Rushing (Rushing) were to have joint custody. The primary caretaker roles were to be switched, Lisa going to Rushing and Annetra to Shoemaker. Neither party was to pay child support.

This arrangement lasted one month. Rushing had recently remarried, and her husband had received a job assignment to the Philippines. The parties entered into an agreement voluntarily switching back to the 1983 arrangement for a one-year period. This agreement was never filed with the court.

Things apparently did not go well for Lisa and her father. According to him, he decided to send Lisa to her mother to get her away from her friends. According to Rushing, Shoemaker kicked Lisa out soon after she got there, and she went to live with friends. When the school year ended, she joined her mother. In June 1986, when Lisa arrived in the Philippines, her sister was due to return to her father. Rushing refused to return Annetra. Annetra talked by telephone with the guardian ad litem, who concluded it was Annetra’s desire to remain with her mother. Thus, beginning in June 1986, both girls resided with Rushing.

During the next couple years, Shoemaker visited his daughters once in the Philippines, and Annetra visited him on a vacation in the United States. In March 1988, Lisa turned eighteen, and in August, she joined the military. That same month, Rushing and her family moved back to Kitsap County. During this time Shoemaker paid no support. He did not take legal action to regain custody of either daughter, and Rushing did not seek modification of the child support order. Both parties assert the distance involved made legal proceedings difficult and expensive.

In November 1990, Rushing filed a petition for modification of custody to reflect that Annetra lived with her. She also asked for child support, including postmajority support so Annetra could attend college. In a separate motion Rushing asked for back child support for Lisa from June 1986 until August 1988 and for Annetra from June 1986 through 1990, based on the fact that both children had resided with her during this period.

In May 1991, a superior court commissioner ordered future child support for Annetra at $300 per. month, a downward deviation from the support schedule to account for the fact Shoemaker was supporting two adopted and two natural children from his current marriage. The question of post high school support was deferred. These decisions have not been appealed.

The commissioner also vacated the 1985 modification order, and reinstated the original decree terms calling for child support in the amount of $165 per child per month. He based his decision on his finding the parties had "never carried through” with their 1985 agreement, expressly relying on Foutch v. Foutch, 69 Wn.2d 595, 419 P.2d 318 (1966). He rejected Shoemaker’s assertion of laches and found it would be in the interest of justice to reinstate the original decree. A judgment was entered ordering Shoemaker to pay $13,800 in back support and $4,748.45 in prejudgment interest.

Shoemaker moved to revise the commissioner’s ruling. The Honorable Karen B. Conoley reversed the prejudgment interest award, but affirmed the back support order. Shoemaker appealed, and the Court of Appeals, Division II, in an unpublished opinion affirmed. Shoemaker v. Rushing, No. 15414-5-II, slip op. at 5 (June 13, 1994). Shoemaker appealed and we accepted review.

The issue before us is whether the trial court had authority to vacate a five-year-old modification order, based upon changed circumstances, when the effect was to retroactively create a back child support obligation. The appellant argues the court had no authority, under either Superior Court Civil Rule (CR) 60(b) or RCW 26.09.170, to vacate its prior modification order.

The doctrine of res judicata or claim preclusion ensures finality of judgments. Marino Property Co. v. Port Comm’rs, 97 Wn.2d 307, 312, 644 P.2d 1181 (1982). Once a judgment is final, a court may reopen it only when specifically authorized by statute or court rule. See Lejeune v. Clallam County, 64 Wn. App. 257, 269, 823 P.2d 1144, review denied, 119 Wn.2d 1005 (1992). CR 60 sets forth the general conditions under which a party may seek relief from judgment. RCW 26.09, which governs dissolution actions, sets forth additional grounds applying solely to such actions. See In re Timmons, 94 Wn.2d 594, 597-99, 617 P.2d 1032 (1980).

The application of CR 60 is within the discretion of the trial court, and we review only for abuse of discretion. In re Flannagan, 42 Wn. App. 214, 222, 709 P.2d 1247 (1985), review denied, 105 Wn.2d 1005 (1986). In this case, Rushing did not argue to the trial court that CR 60 applied nor did the court mention the rule in its oral ruling. Under these circumstances, we have nothing to review and therefore do not decide whether CR 60 could have formed a basis for the trial court’s decision.

Turning to the statute, we find no authority for the court’s action in vacating the modification. RCW 26.09.170 sets forth the conditions for modifying a child support order. In relevant part, it provides:

Except as otherwise provided . . . the provisions of any decree respecting maintenance or support may be modified: (a) Only as to installments accruing subsequent to the petition for modification ....

RCW 26.09.170(1). This section, enacted in 1973, reflects long-settled law in this state that a modification of child support may not operate retroactively. See Wilburn v. Wilburn, 59 Wn.2d 799, 801-02, 370 P.2d 968 (1962); Koon v. Koon, 50 Wn.2d 577, 579, 313 P.2d 369 (1957); Sanges v. Sanges, 44 Wn.2d 35, 38-39, 265 P.2d 278 (1953); McGrath v. Davis, 39 Wn.2d 487, 489, 236 P.2d 765 (1951); Kinne v. Kinne, 137 Wash. 284, 242 P. 388 (1926); Beers v. Beers, 74 Wash. 458, 133 P. 605 (1913).

When the trial court vacated the child support order in this case, it reinstated the applicable terms of the original divorce decree. Those terms called for a payment of $165 per child per month by Shoemaker to Rushing. Applying these terms over the previous five years instantly created a $13,800 back support obligation on the part of Shoemaker, despite the fact he had always been in compliance with then existing court support orders. Although here the court "vacated” one order and "reinstated” another, the effect was a retrospective modification and thus legally prohibited.

Rushing argues this court created an exception to the prohibition against retroactive modification in Foutch v. Foutch, 69 Wn.2d 595, 419 P.2d 318 (1966). In that case, the trial court had changed custody of the couple’s two children from the mother to the father and relieved the father from further support payments. The mother appealed. During pendency of the appeal, the children continued to live with their mother and the father did not contribute to their support. Because of additional changes during this period of time, we remanded, rather than affirming or reversing. Foutch, 69 Wn.2d at 601. We also vacated the modification order which had been appealed in order to reinstate the father’s child support obligation because the children’s mother had actually been the person supporting them during the appeal period. Foutch, 69 Wn.2d at 603.

Foutch does not provide trial courts with authority to vacate child support orders. The modification order in question was on appeal. It was not yet final for purposes of res judicata, and this court therefore had the power to vacate. In sending the case back to the trial court, we reversed a portion of the order which had excused past due child support. Foutch, 69 Wn.2d at 603. We specifically noted the trial court’s authority was limited to prospective modification. Foutch, 69 Wn.2d at 602-03.

Rushing also argues that, notwithstanding the statute, trial courts have equitable powers to make retrospective modifications when required to reach a just result, citing several prior cases of this court.

In Schafer v. Schafer, 95 Wn.2d 78, 621 P.2d 721 (1980), we held special circumstances of an equitable nature might justify crediting payments made directly to the children against the accrued support obligation, so long as it could be done without injustice to the one to whom the decree had ordered payment. Schafer, 95 Wn.2d at 81. The court followed closely its earlier decision in a similar case, Martin v. Martin, 59 Wn.2d 468, 473, 368 P.2d 170 (1962).

In Hartman v. Smith, 100 Wn.2d 766, 769, 674 P.2d 176 (1984), another child support case, we approved the application of "equitable principles to mitigate the harshness of some claims for retroactive support when it did not work an injustice to the custodian or to the child.” Accord In re Hunter, 52 Wn. App. 265, 270, 758 P.2d 1019 (1988), review denied, 112 Wn.2d 1006 (1989); In re Watkins, 42 Wn. App. 371, 710 P.2d 819 (1985), review denied, 105 Wn.2d 1010 (1986).

None of these cases, however, hold a trial court has unfettered discretion in the exercise of its equitable powers. We agree with the court of appeals in Hunter that the trial court’s power can only be exercised within the "framework of established 'equitable principles’.” Hunter, 52 Wn. App. at 269 (quoting Hartman, 100 Wn.2d at 769).

In each of the above cases, the person obligated to pay support sought relief from past due amounts. In Schafer, we allowed an equitable credit for payments made directly to the children. Schafer, 95 Wn.2d at 81-82. In Hartman, we permitted an equitable estoppel defense. Hartman, 100 Wn.2d at 769. In Watkins, the court of appeals extended the concept to laches. Watkins, 42 Wn. App. at 374. In each case, the court did no more than recognize the use of a traditional equitable defense in the context of child support.

In contrast, here the court is being asked to use its equitable powers to create a child support obligation five years after the need for support arose. Such a result has been allowed rarely and only in cases where the dissolution decree is silent as to support. See Scott v. Holcomb, 49 Wn.2d 387, 389, 301 P.2d 1068 (1956); Henry v. Russell, 19 Wn. App. 409, 412, 576 P.2d 908, review denied, 90 Wn.2d 1018 (1978); Penn v. Morgan, 7 Wn. App. 794, 797, 502 P.2d 1238 (1972). The right of equitable contribution defined in these cases was limited to an amount equal to one-half of the actual expenditures on behalf of the child. Henry, 19 Wn. App. at 412. Furthermore, the right existed only because the decree was silent. The court’s subsequent order in these cases was not a modification at all.

In summary, the use of a procedural device—vacation—to retroactively adjust the obligations of the parties violates the child support statute and cannot be justified by equitable principles. Therefore we reverse the trial court and vacate Shoemaker’s back support order.

Durham, C.J., and Dolliver, Smith, Guy, Madsen, and Pekelis, JJ., concur.

1 Shoemaker disputes this contention in one pleading, but his other pleadings talk only about continuing to pay child support for Annetra.