Tamara L. Fleischer & Jay P. Fleischer, App's V. Lisa Carter

• Court: Court of Appeals of Washington
• Decided: November 14, 2022
• Docket: 83512-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

LISA S. CARTER, DIVISION ONE Respondent, No. 83512-2-I v. UNPUBLISHED OPINION TAMARA L. FLEISCHER and JAY P. FLEISCHER,

Appellants.

DWYER, J. — The homestead of judgment debtors Jay and Tamara

Fleischer was sold to judgment creditor Margaret Curtis1 in a sheriff’s sale. The

Fleischers did not object to the sale during the 20-day statutory objection period.

Upon Curtis’s motion, the superior court thereafter entered an order confirming

the sale. Nearly six months later, the Fleischers filed in the superior court a CR

60(b) motion to vacate the order. The superior court denied the Fleischers’

motion, and the Fleischers appealed.

On appeal, the Fleischers contend that they are entitled to the homestead

exemption amount set forth in the current version of the relevant statute, rather

than the amount set forth in the statute in effect when the sheriff’s sale occurred.

They assert that the order confirming the sheriff’s sale is void because they have

a constitutional right to the current homestead exemption amount. We disagree.

Although the right to a homestead exemption is constitutional, the specific

1 The original judgment creditor, Lisa Carter, assigned the judgment to Curtis prior to the

sale of the homestead. No. 83512-2-I/2

homestead exemption amount to which a judgment debtor is entitled is a matter

assigned to the legislature. The Fleischers have no constitutional right to receive

any specific homestead exemption amount.

Moreover, in contending that the superior court erred in confirming the

sheriff’s sale because the legislature amended the homestead exemption amount

subsequent to the sale, the Fleischers are asserting an error of law in the

underlying order confirming the sale. Such an error may not be corrected

pursuant to a CR 60(b) motion to vacate. Rather, errors of law must be raised on

appeal. Accordingly, we affirm the superior court’s order denying the Fleischers’

motion to vacate.

I

On December 30, 2020, the superior court entered an order directing a

sheriff’s sale of the Fleischers’ homestead in execution of a judgment. Based on

the report of a court-appointed appraiser, the superior court determined that the

value of the homestead exceeded the statutory homestead exemption amount,

which was then $125,000. See former RCW 6.13.030 (2007). As directed by

RCW 6.13.160, the superior court ordered that the “sheriff shall proceed with the

sale” and that, at the sale, “no bid may be received unless it exceeds the amount

of the $125,000 homestead exemption.”

On April 2, 2021, the sheriff sold the Fleischers’ homestead to Curtis for a

sum greater than the homestead exemption amount. The sheriff deposited

$125,000, the amount of the homestead exemption then in effect, into the court

registry to be paid to the Fleischers. See RCW 6.13.170. On April 5, 2021, the

2 No. 83512-2-I/3

superior court clerk filed a notice regarding the sale of the Fleischers’

homestead, which the clerk also mailed to the Fleischers. The notice informed

the Fleischers that the sale would be subject to confirmation by the court unless

they filed an objection within 20 days. See RCW 6.21.110(2) (providing that the

judgment creditor at a sheriff’s sale is entitled to an order confirming the sale “at

any time after twenty days have elapsed” from the mailing of the notice unless

the judgment debtor files an objection to confirmation within that period). The

Fleischers did not object to the sale.

On May 12, 2021, following the expiration of the 20-day objection period, a

bill passed by the legislature amending the statute setting forth the amount of a

homestead exemption became effective. RCW 6.13.030; ENGROSSED

SUBSTITUTE S.B. 5408, at 2, 67th Leg., Reg. Sess. (Wash. 2021).2 The following

day, Curtis filed a motion in the superior court to confirm the sheriff’s sale. On

May 24, 2021, finding “no substantial irregularities in the sale,” the court entered

an order confirming the sale.

Nearly six months later, on November 22, 2021, the Fleischers filed a

motion pursuant to CR 60(b) seeking to vacate the order confirming the sheriff’s

sale. In their motion, the Fleischers contended that the legislature’s amendment

of the homestead exemption amount either rendered the order “void” or caused

the order’s entry to be “a mistake of law” or an “irregularity.” On December 3,

2 The statute now provides that “[t]he homestead exemption amount is the greater of”

$125,000 or, as relevant here, “[t]he county median sale price of a single-family home in the preceding calendar year.” RCW 6.13.030(1)(b).

3 No. 83512-2-I/4

2021, the superior court denied the Fleischers’ motion to vacate the order

confirming the sheriff’s sale.

The Fleischers appeal.

II

On appeal, the Fleischers assert that the superior court erred by denying

their motion to vacate the order confirming the sheriff’s sale. According to the

Fleischers, the certificate of sale was rendered void by the legislature’s

subsequent amendment of the homestead exemption amount because the right

to a homestead exemption is constitutional. However, the Fleischers disregard

that they are not being denied a homestead exemption. Rather, they simply

dispute the proper calculation of the homestead exception amount, which is a

statutory—not a constitutional—question. Moreover, a CR 60(b) motion to

vacate is not a means of correcting errors of law. Rather, to assert such errors,

the Fleischers were required to appeal from the underlying order confirming the

sheriff’s sale. Because the Fleischers have demonstrated no error in the

superior court’s order denying their motion to vacate, we affirm.

Washington’s constitution directs the legislature to “protect by law from

forced sale a certain portion of the homestead and other property of all heads of

families.” W ASH. CONST. art. XIX, § 1. Pursuant to this mandate, our legislature

in 1895 enacted the homestead act, which “‘implements the policy that each

citizen have a home where [the] family may be sheltered and live beyond the

reach of financial misfortune.’” City of Seattle v. Long, 198 Wn.2d 136, 146, 493

P.3d 94 (2021) (alteration in original) (internal quotation marks omitted) (quoting

4 No. 83512-2-I/5

In re Dependency of Schermer, 161 Wn.2d 927, 953, 169 P.3d 452 (2007)). The

homestead act, chapter 6.13 RCW, sets forth the procedures governing the sale

of a homestead to satisfy a judgment. It further provides the homestead

exemption amount to which judgment debtors are entitled upon such sale. RCW

6.13.030. Thus, although the existence of a homestead exemption arises from

our state’s constitution, the proper homestead exemption amount is a matter

assigned to the legislature.

Civil Rule 60(b) provides, in specified circumstances, for relief from a

judgment or order. However, the rule “does not authorize vacation of judgments

except for reasons extraneous to the action of the court or for matters affecting

the regularity of the proceedings.” Burlingame v. Consol. Mines & Smelting Co.,

106 Wn.2d 328, 336, 722 P.2d 67 (1986). “Errors of law may not be corrected by

a motion pursuant to CR 60(b), but must be raised on appeal.” In re Marriage of

Tang, 57 Wn. App. 648, 654, 789 P.2d 118 (1990).3 Although review of a denial

of a CR 60(b) motion “is generally limited to the propriety of the denial,” “if

questions are raised concerning lack of trial court jurisdiction and fundamental

constitutional rights, these issues may be determined on appeal as justice may

require.” In re Marriage of Maxfield, 47 Wn. App. 699, 703, 737 P.2d 671 (1987)

(citing State v. Santos, 104 Wn.2d 142, 702 P.2d 1179 (1985)).

Generally, we review a trial court’s denial of a CR 60(b) motion to vacate

for a manifest abuse of discretion. Haley v. Highland, 142 Wn.2d 135, 156, 12

3 “‘An error of law is committed when the court . . . makes some erroneous order or ruling

on some question of law which is properly before it and within its jurisdiction to make.’” Port of Port Angeles v. CMC Real Est. Corp., 114 Wn.2d 670, 674, 790 P.2d 145 (1990) (quoting In re Ellern, 23 Wn.2d 219, 222, 160 P.2d 639 (1945)).

5 No. 83512-2-I/6

P.3d 119 (2000). “A trial court abuses its discretion when its order is manifestly

unreasonable or based on untenable grounds.” Gillett v. Conner, 132 Wn. App.

818, 822, 133 P.3d 960 (2006). CR 60(b)(5), however, provides for the vacation

of a void judgment. “Because courts have a mandatory, nondiscretionary duty to

vacate void judgments,” we review de novo a trial court’s decision to grant or

deny a CR 60(b)(5) motion. Dobbins v. Mendoza, 88 Wn. App. 862, 871, 947

P.2d 1229 (1997).

Here, the Fleischers did not appeal from the superior court’s order

confirming the sheriff’s sale. Instead, nearly six months after the order was

entered, they filed a CR 60(b) motion to vacate the order. They assert on appeal

that vacation of the order confirming the sheriff’s sale is required because,

according to the Fleischers, the underlying order was rendered void when the

legislature amended the statutory homestead exemption amount subsequent to

the sheriff’s sale but prior to entry of the order confirming that sale. This is so,

the Fleischers contend, because their right to a homestead exemption is

conferred by our state’s constitution. Although this assertion is correct, the

implication assigned to it by the Fleischers is not.

Although the Fleischers are correct that the Washington constitution

mandates a homestead exemption, they are incorrect that the amount of that

exemption implicates a constitutional interest. Rather, the amount of the

homestead exemption to which a judgment debtor is entitled is set forth solely by

statute. RCW 6.13.030. The Fleischers do not contend that they were

improperly denied a homestead exemption. Instead, they assert that the superior

6 No. 83512-2-I/7

court inaccurately determined the amount of the exemption to which they are

entitled. As presented here, there is no constitutional question at issue. Thus,

the Fleischers are incorrect that the order confirming the sheriff’s sale is void,

and the superior court did not err by denying their motion to vacate on this basis.

Because the Fleischers have not demonstrated that the order confirming

the sheriff’s sale is constitutionally void, their appeal is confined to a challenge to

the propriety of the superior court’s denial of the motion to vacate. Maxfield, 47

Wn. App. at 703. In challenging the superior court’s determination of the proper

homestead exemption amount, the Fleischers assert an error of law. “Errors of

law are not correctable through CR 60(b); rather, direct appeal is the proper

means of remedying legal errors.” Burlingame, 106 Wn.2d at 336; see also In re

the Marriage of Persinger, 188 Wn. App. 606, 609, 355 P.3d 291 (2015) (“Our

review of a CR 60(b) decision is limited to the trial court’s decision, not the

underlying order the party seeks to vacate.”). The Fleischers neither objected to

the sheriff’s sale during the statutory 20-day objection period nor appealed from

the superior court’s order confirming the sheriff’s sale. We will not review on

appeal the underlying order sought to be vacated on a CR 60(b) motion.4

4 In the superior court, the Fleischers sought to vacate the order confirming the sheriff’s

sale on the basis of both CR 60(b)(5) and CR 60(b)(1). On appeal, they do not assert that the superior court erred in denying their motion on the basis of CR 60(b)(1), which provides for relief from judgment due to “[m]istakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order.” However, we note that, in asserting that vacation of the order was required by that rule, the Fleischers did not assert any “mistake” or “irregularity” pursuant to which an order may be vacated. Rather, they simply sought to challenge the underlying order confirming the sheriff’s sale. Again, the Fleischers cannot assert errors of law in the underlying order when appealing from an order on a motion to vacate.

7 No. 83512-2-I/8

Because the Fleischers have not demonstrated that the order confirming

the sheriff’s sale is void, the superior court did not err in denying their motion to

vacate the order pursuant to CR 60(b)(5). Moreover, in contending that the

homestead exemption amount determined by the superior court is incorrect, the

Fleischers assert an error of law in the underlying order. Such errors, even if

made, may not be remedied pursuant to a CR 60(b) motion to vacate.

Accordingly, we affirm the superior court’s order denying the Fleischers’

motion to vacate. We remand to the superior court for further proceedings,

including, when appropriate, the disbursement of the proper homestead

exemption amount.5,6

WE CONCUR:

5 The Fleischers assert on appeal that they should “immediately” receive the $125,000

homestead exemption. We do not view it as unusual that the homestead exemption remains in the court registry under the circumstances presented. 6 Prior to oral argument, respondent filed a motion to dismiss this appeal as frivolous. A

commissioner of this court referred the motion to the panel considering the merits of the appeal. Because we conclude that the appeal was not frivolous, we deny that motion.