In re the Marriage of Shoemaker

128 Wash. 2d 116
CourtWashington Supreme Court
DecidedNovember 9, 1995
DocketNo. 62169-1
StatusPublished
Cited by31 cases

This text of 128 Wash. 2d 116 (In re the Marriage of Shoemaker) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

Opinions

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 [118]*118effect 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.

[119]*119Things 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.

[120]*120The 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 [121]*121trial 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

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128 Wash. 2d 116, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-marriage-of-shoemaker-wash-1995.