§69.03 Procedures

• Jurisdiction: Washington

§ 69.03 PROCEDURES

The courts have permitted a number of different procedural mechanisms allowing spouses to submit a claim for property undisposed by the decree, and in some of the cases, no distinction was drawn between an action in the original divorce versus an independent partition action. Further, it appears that many of the reported cases either overlooked a procedural deficit or chose not to make a procedural irregularity an issue in the case. See, e.g., In re Marriage of de Carteret, 26 Wn. App. 907, 908, 615 P.2d 513 (1980). However, submitting the incorrect procedural action may result in dismissal; for example, partition is available for real property only. Ch. 7.52 RCW.

When asking the court to dispose of property undivided in the decree, the procedural choices include filing an action in the original case pursuant to CR 60 or filing an independent action for partition or declaratory relief.

[1] In Original Action

[a] CR 60(a)

Pursuant to CR 60(a), a court has the ability to correct clerical errors in an order or judgment. However, a court cannot use CR 60(a) to correct a judicial error, i.e., an error that involves an intentional act of the court. In re Marriage of Getz, 57 Wn. App. 602, 789 P.2d 331 (1990); Pres. Estates Apt. Assocs. v. Barrett, 129 Wn.2d 320, 917 P.2d 100 (1996). The court in Marriage of Getz explained:

[I]f the trial judge signs a decree, through misplaced confidence in the attorney who presents it, or otherwise, which does not represent the court's intentions in the premises, an error contained therein may be corrected under Rule 60. The testimony of the trial judge signing the judgment or decree will be received in this connection.
A comparison of the clear evidence adduced on the trial and the findings of fact with the provisions of the judgment or decree entered may reveal that the error was clerical. But where there is no evidence of clerical error, and where the "correction" is contrary to the court's findings and contrary to . . . other clear evidence, Rule 60(a) may not be applied to correct the error.

57 Wn. App. at 604 (quoting 4 Lewis H. Orland, WASH. PRACTICE, RULES PRACTICE § 5712, at 540 (3d ed. 1981)). Therefore, the court in Getz upheld the trial court's ruling to grant wife's motion pursuant to CR 60(a) by including the division of both state and national pension plans instead of just one of the plans.

[b] CR 60(b)(4) and CR 60(e)(1)

When a spouse fails to disclose assets in the course of discovery and intentionally and fraudulently makes misrepresentations regarding the nature and value of property, a CR 60(b)(4) action to set aside the decree based on fraud and misrepresentation is appropriate. Seals v. Seals, 22 Wn. App. 652, 590 P.2d 1301 (1979). In Seals, the court stated:

In an action to partition a tenancy in common, the subject matter is not identical to the prior dissolution action. Since the property here was undisclosed, the partition action was necessary for its disposition. Under circumstances such as these, the partition action is simply a continuation of the dissolution proceeding. CR 60(b)(4) and CR 60(b)(1).

Id. at 655. The court further stated:

Mrs. Seals filed the partition action promptly after she inadvertently discovered the existence of corporate stock which had not been mentioned in the dissolution proceeding. The present action is a continuation of the original dissolution action. Her pleading and affidavit subsequent to the dissolution decree satisfied the requirements of CR 60(b)(4) and CR 60(e)(1) permitting relief from a final judgment. To hold otherwise would be to penalize Mrs. Seals for the fraudulent conduct of Mr. Seals. See In re Marriage of Mahalingam, 21 Wn. App. 228, 231, 584 P.2d 971 (1978).

Id. at 657.

[c] CR 60(b)(11) and CR 60(e)(1)

CR 60(b)(11) allows relief from a final order or judgment for "any other reason justifying relief from the operation of the judgment." This rule "vests power in courts adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice." Klapprott v. United States, 335 U.S. 601, 615, 69 S. Ct. 384, 93 L. Ed. 266 (1949). The standard set by CR 60(b)(11) is one of "extraordinary circumstances." Ackermann v. United States, 340 U.S. 193, 200, 71 S. Ct. 209, 95 L. Ed. 207 (1950); State v. Keller, 32 Wn. App. 135, 140, 647 P.2d 35 (1982). Therefore, a change in the law constitutes "extraordinary circumstances," and the court will apply the rule to divide a military pension undivided by the decree retroactively pursuant to CR 60(b)(11) in the interest of justice. Marriage of Flannagan, 42 Wn. App. 214, 709 P.2d 1247 (1985).

Situations that arise in which the decree is ambiguous as to whether the court divided the property may require a motion to clarify. Pursuant to RCW 26.09.170, a court does not have the ability to modify a decree in the absence of conditions justifying reopening of the judgment. Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811...