§64.03 Vacation of Decrees (Cr 60)

• Jurisdiction: Washington

§ 64.03 VACATION OF DECREES (CR 60)

[1] In General

Once a decree has been entered by a court, that order remains in effect until modified or terminated. The doctrine of res judicata or claim preclusion ensures finality of judgments. Once a judgment is final, a court may reopen it only when specifically authorized by statute or court rule. In re Shoemaker, 128 Wn.2d 116, 120, 904 P.2d 1150 (1995). Under the provisions of RCW 26.09.170, the provisions as to property distribution may not be revoked or modified unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state. However, under certain limited circumstances, a motion to vacate the decree can be brought that will set aside the prior order.

Although a motion to vacate was once authorized by statute, that legislation has been superseded by CR 60. State v. Scott, 92 Wn.2d 209, 595 P.2d 549 (1979). Consideration must be given to CR 60 in any motion to vacate because its provisions control the action both substantively and procedurally.

A CR 60 motion is ancillary to, or a continuation of, the original suit. Hence, the court's jurisdiction continues for purposes of a CR 60 motion. In re Marriage of Parks, 48 Wn. App. 166, 172, 737 P.2d 1316, review denied, 109 Wn.2d 1006 (1987). In Parks, a divorced woman brought a CR 60(b) action to reopen a dissolution proceeding to divide a military pension previously unavailable to the court. The former husband argued that the court did not have jurisdiction in the matter, even though he had not objected to the court's jurisdiction in the original dissolution proceeding. Held: A CR 60 motion does not require an independent jurisdictional ground, and jurisdiction over the parties in an action extends to a proceeding for post-judgment relief under CR 60.

A nonresident party who has previously submitted to the jurisdiction of the court must be served under the provisions of RCW 4.28.180 (60-day summons) in any subsequent proceedings in the same case. In re Marriage of Moore, 53 Wn. App. 687, 769 P.2d 881 (1989). Additionally, because a challenge to a decree constitutes a continuation of the original dissolution action brought under Chapter 26.09 RCW, the court in the subsequent challenge has authority to award attorney fees based upon the authority of RCW 26.09.140, which grants the trial court the discretion to order the payment of attorney fees in a domestic relations action. In re Marriage of Knight, 75 Wn. App. 721, 729, 880 P.2d 71 (1994), review denied, 126 Wn.2d 1011 (1995).

An action to vacate must be initiated by motion, affidavit, and an order to show cause personally served on the parties. CR 60(e). Personal service must be in compliance with CR 5, and a failure to serve a party personally, when personal service is possible, defeats the proceedings. State ex rel. Gaupseth v. Superior Court, 24 Wn.2d 371, 164 P.2d 890 (1946).

The matter will be determined on the affidavits presented to the court at the show cause hearing unless the affidavits raise an issue of fact that cannot be resolved without the taking of testimony. In re Marriage of Maddix, 41 Wn. App. 248, 703 P.2d 1062 (1985). However, nothing in CR 60(e) indicates that live testimony is required. Rather, oral testimony is not the general rule and is discretionary. In re Marriage of Irwin, 64 Wn. App. 38, 61, 822 P.2d 797, review denied, 119 Wn.2d 1009 (1992). The affidavits filed to support the motion to vacate serve a twofold purpose: (1) they must establish that at least one of the grounds set forth in CR 60(a) or (b) is met in the case; and (2) if the moving party is a defendant, they must set forth a prima facie defense to the action. CR 60(e)(1); Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 599 P.2d 1289 (1979). The court may consider material outside of the affidavits that is contained in the file. Id. The better practice is to set out the facts in affidavit form.

The affidavits and argument must be complete, and a party seeking the vacation of a judgment may raise as many of the grounds set forth in CR 60 as is appropriate under the circumstances. A ground for vacating a judgment under CR 60 will not be considered on appeal unless it is raised below. Allison v. Boondock's, Sundecker's & Greenthumb's Inc., 36 Wn. App. 280, 673 P.2d 634 (1983), review denied, 103 Wn.2d 1024 (1984); In re Marriage of Wherley, 34 Wn. App. 344, 661 P.2d 155, review denied, 100 Wn.2d 1013 (1983). But see Smith v. Smith, 36 Wn.2d 164, 217 P.2d 307 (1950). Relief under CR 60 is addressed to the sound discretion of the trial court. Morgan v. Burks, 17 Wn. App. 193, 197, 563 P.2d 1260 (1977). The trial court's decision will be reversed only for a "manifest abuse of discretion, i.e., only when no reasonable person would take the position adopted by the trial court." In re Marriage of Burkey, 36 Wn. App. 487, 489, 675 P.2d 619 (1984). However, a ruling that sets aside a default will be reviewed more leniently than one that denies a trial on the merits. White v. Holm, 73 Wn.2d 348, 438 P.2d 581 (1968).

[2] Grounds for Relief

[a] CR 60(a)

CR 60(a) provides relief from judgments or orders that contain clerical mistakes. However, the scope of relief under this provision is limited. The test for distinguishing between "clerical" and "judicial" error is whether, based upon the record, the judgment embodies the trial court's intention. Marchel v. Bunger, 13 Wn. App. 81, 84, 533 P.2d 406, review denied, 85 Wn.2d 1012 (1975). A judicial error involves an issue of substance, whereas a clerical error involves a mere mechanical mistake. Id. The court may not use CR 60(a) to correct judicial error, i.e., error that involves an intentional act of the court. A judgment that, based on the record, does not embody the trial judge's intentions contains not a judicial error, but a clerical error that is subject to correction under CR 60(a). In re Marriage of Getz, 57 Wn. App. 602, 604, 789 P.2d 331 (1990). However, although a judicial error is considered an error of substance, the court in In re Marriage of Stern, 68 Wn. App. 922, 927, 846 P.2d 1387 (1993), found that the trial court's failure to enter findings of fact and conclusions of law was not an error of substance, but an inadvertent oversight constituting a clerical error of omission that was correctable under CR 60(a).

[b] CR 60(b)

Most motions to vacate are brought pursuant to CR 60(b), which enumerates 11 specific bases upon which relief may be sought from a judgment or order.

Under the provisions of CR 60(b), the motion must be made within a reasonable time. A determination of what constitutes a "reasonable time" depends on the facts and circumstances of each case. State ex rel. Campbell v. Cook, 86 Wn. App. 761, 766, 938 P.2d 345, review denied, 133 Wn.2d 1019 (1997).

Further, for the reasons enumerated in CR 60(b)(1), (2), and (3), set forth below, the motion must be made within one year after the judgment, order, or proceeding was entered or taken.

1. Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
2. For erroneous proceedings against a minor or person of unsound mind, when the condition of such defendant does not appear in the record, nor the error in the proceedings;
3. Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b).

CR 60(b)(1)-(3).

As stated earlier, a party seeking the vacation of a judgment may raise as many of the grounds set forth in CR 60(b) as are appropriate under the circumstances. The grounds for vacation listed in CR 60(b) are not mutually exclusive, except for CR 60(b)(11), which should be confined to situations involving extraordinary circumstances not covered by any other sections of the rule. Gustafson v. Gustafson, 54 Wn. App. 66, 772 P.2d 1031 (1989).

The motion to vacate a judgment may be granted "upon such terms as are just," and therefore may be made subject to conditions or terms. CR 60(b); Pamelin Indus, Inc. v. Sheen-U.S.A., 95 Wn.2d 398, 403, 22 P.2d 1270 (1981); Hendrix v. Hendrix, 101 Wash. 535, 172 P. 819 (1918). The trial court's discretion to impose terms as a condition of vacating a judgment is limited. In Knapp v. S. L. Savidge, Inc., 32 Wn. App. 754, 649 P.2d 175, review denied, 98 Wn.2d 1005 (1982), the trial court ordered the plaintiff to pay terms to the defendants to vacate a dismissal, which was entered when the plaintiff's attorney did not arrive for assignment to a courtroom at the scheduled time. The attorney did arrive 35 minutes late. The Court of Appeals held that the award of terms was an abuse of discretion.

When an order of default was obtained before the defendant's time to answer has expired, the disfavored party had the right to have it set aside unconditionally—without conditions or the imposition of terms. Kysar v. Lambert, 76 Wn. App. 470, 492, 887 P.2d 431, review denied, 126 Wn.2d 1019 (1995).

[i] CR 60(b)(1)—Mistakes and Irregularities

Irregularities that can be considered under CR 60(b)(1) are those relating to want of adherence to some prescribed rule or mode of proceeding. Cases relying on this ground typically involve procedural defects unrelated to the merits. In re Marriage of Tang, 57 Wn. App. 648, 789 P.2d 118 (1990). A failure to provide notice of default proceedings when required is generally regarded as a "serious procedural error" that justifies vacation. Gage v. Boeing Co., 55 Wn. App. 157, 164, 776 P.2d 991, review denied, 113 Wn.2d 1028 (1989).

As indicated above, lack of required notice would constitute a procedural irregularity under CR 60(b)(1). In addressing the issue of whether a particular defendant was entitled to notice of a default judgment, the courts have required the defendant seeking to set aside a default judgment on the basis of lack of required notice to establish that the parties actually appeared or substantially complied with the notice...