Buecking v. Buecking, 87680–1.

Citation179 Wash.2d 438,316 P.3d 999
Decision Date26 December 2013
Docket NumberNo. 87680–1.,87680–1.
CourtWashington Supreme Court
PartiesIn the Matter of the Marriage of Amy BUECKING, Respondent, v. Tim BUECKING, Petitioner.

OPINION TEXT STARTS HERE

David G. Porter, Attorney at Law, Bellingham, WA, for Petitioner.

Philip James Buri, Buri Funston Mumford PLLC, Bellingham, WA, for Respondent.

MADSEN, C.J.

¶ 1 Amy Westman 1 filed for legal separation from Tim Buecking. Over a year later, she filed an amended petition for dissolution of marriage. By statute, a court cannot enter a decree of dissolution of marriage until 90 days after the petition is filed. Here, the decree was entered 8 days too soon. Mr. Buecking appealed, raising for the first time on appeal his claim that the trial court lacked subject matter jurisdiction because it entered the decree before the 90–day period had elapsed.

¶ 2 We hold that the 90–day period commences when the petition for dissolution is filed and not when a petition for legal separation, if any, is filed. We further hold that the error of duration here is a legal error but not an error involving subject matter jurisdiction that may be raised at any time. We award attorney fees to Ms. Westman and affirm the Court of Appeals' award of attorney fees to her.

FACTS AND PROCEDURAL HISTORY

¶ 3 Amy Westman and Tim Buecking were married on August 14, 1999. On December 12, 2008, Ms. Westman filed a petition for legal separation. Over a year later, on April 2, 2010, Westman filed an amended petition for dissolution of marriage. Within the petition, Mr. Buecking signed a statement saying, “I, the respondent, agree to the filing of an Amended Petition for Dissolution of the marriage instead of legal separation.” Clerk's Papers at 90. This statement appeared just below a checked box labeled “Joinder.” Id. (bold omitted).

¶ 4 RCW 26.09.030 provides that a court may enter a decree of dissolution when “ninety days have elapsed since the petition was filed.” On June 23, 2010, following a trial that ended on June 15, the trial court entered a decree of dissolution 82 days after the petition for dissolution of marriage was filed.

¶ 5 Mr. Buecking did not object at the time to entry of the decree on the basis that the 90–day period required under the statute had not elapsed. However, he raised this issue on appeal, contending the trial court lacked subject matter jurisdiction to enter the decree before 90 days had elapsed. In an opinion published in part, the Court of Appeals held that if the trial court erred by entering a decree of dissolution before 90 days had passed, it was a legal error that did not involve the court's subject matter jurisdictionbecause the court had jurisdiction to hear the controversy. In re Marriage of Buecking, 167 Wash.App. 555, 559–60, 274 P.3d 390 (2012).2 The Court of Appeals awarded Ms. Westman attorney fees under RCW 26.09.140, subject to her compliance with RAP 18.1. 3

¶ 6 Mr. Buecldng moved for reconsideration of several issues, including the award of attorney fees to Westman. Buecldng asserted that Westman failed to strictly comply with RAP 18.1 because she filed an affidavit of financial need after oral argument rather than 10 days prior to oral argument as required under RAP 18.1(c). The Court of Appeals denied the motion and upheld the attorney fees under RAP 1.2(c).4

ANALYSIS

¶ 7 Mr. Buecldng contends that the superior court exceeded its subject matter jurisdiction by entering a dissolution before the statutory 90 days had elapsed from the date the dissolution petition was filed, as required under RCW 26.09.030. Ms. Westman responds that no error occurred, arguing that the 90–day period runs from the time she filed her petition for legal separation and that if the trial court erred in entering the petition on the 82nd day, the error did not result in a loss of subject matter jurisdiction.

¶ 8 Subject matter jurisdiction and questions of statutory construction are reviewed de novo. ZDI Gaming, Inc. v. State ex rel. Wash. State Gambling Comm'n, 173 Wash.2d 608, 624, 268 P.3d 929 (2012); In re Custody of Smith, 137 Wash.2d 1, 8, 969 P.2d 21 (1998).

1. 90–day period

¶ 9 RCW 26.09.030 states that when a party

petitions for a dissolution of marriage ... and alleges that the marriage ... is irretrievably broken and when ninety days have elapsed since the petition was filed and from the date when service of summons was made upon the respondent or the first publication of summons was made, the court shall proceed as follows: (a) If the other party joins in the petition or does not deny that the marriage ... is irretrievably broken, the court shall enter a decree of dissolution.

¶ 10 Here, the decree of dissolution was entered in June 2010, more than 90 days from the original petition for legal separation, but less than 90 days from the amended petition for dissolution.

¶ 11 Mr. Buecking points out that RCW 26.09.030 requires that a dissolution petition must contain an allegation that the marriage is irretrievably broken, which is not required in a petition for legal separation. He contends that because a petition for legal separation seeks different relief from that sought by a petition for dissolution of marriage, filing a petition for legal separation does not start the 90–day period. Ms. Westman points out that the purpose of the 90–day period is to give the parties an opportunity to reconsider and reconcile and urges that this purpose is met when 90 days elapses from the time a petition for legal separation is filed.

¶ 12 This appears to be an issue of first impression. See 21 Kenneth W. Weber, Washington Practice: Family and Community Property Law § 46.23, at 60 (1997 & Supp.2012) (noting that no case has ruled whether the 90–day period applies to legal separations, nor has any statute or case addressed whether a new 90–day period must apply when a petition for legal separation is amended to a petition for dissolution).

¶ 13 When construing statutes, the goal is to ascertain and effectuate legislative intent. Bylsma v. Burger King Corp., 176 Wash.2d 555, 558, 293 P.3d 1168 (2013); Dep't of Ecology v. Campbell & Gwinn, LLC, 146 Wash.2d 1, 9, 43 P.3d 4 (2002). In determining legislative intent, we begin with the language used to determine if the statute's meaning is plain from the words used and if so we give effect to this plain meaning as the expression of legislative intent. Manary v. Anderson, 176 Wash.2d 342, 350, 292 P.3d 96 (2013); Campbell & Gwinn, 146 Wash.2d at 9, 43 P.3d 4. The plain meaning “is discerned from all that the Legislature has said in the statute and related statutes which disclose legislative intent about the provision in question.” Campbell & Gwinn, 146 Wash.2d at 11, 43 P.3d 4.

¶ 14 The relevant language is [w]hen a party ... petitions for a dissolution ... and when ninety days have elapsed since the petition was filed....” RCW 26.09.030 (emphasis added). The first use of the word “petitions” describes the action the party takes and obviously refers to filing a petition for dissolution. The second use of “petition” is a reference to the petition for dissolution that is filed to carry out this action. The use of the definite article “the” before the second “petition” refers back to use of the word “petitions” earlier in the sentence and has a specifying or particularizing effect. E.g., City of Olympia v. Drebick, 156 Wash.2d 289, 298, 126 P.3d 802 (2006); Alforde v. Dep't of Licensing, 115 Wash.App. 576, 582–83, 63 P.3d 170 (2003). Thus, “the petition” for which 90 days must have elapsed is the same petition that is filed by the party who petitions for dissolution.”

¶ 15 Under the plain language of RCW 26.09.030, the 90–day period runs from the time the petition for dissolution is filed. The trial court therefore erred by entering a decree of dissolution before 90 days had elapsed from the filing of the dissolution petition.

¶ 16 The purpose of the 90–day period is to provide a “cooling off” period. The 90–day period serves to “allow time for reflection and to act as a buffer against ‘spur of the moment’ arbitrary action.” 20 Kenneth W. Weber, Washington Practice: Family and Community Property Law § 43.5, at 567 (1997 & Supp.2012). The arbitrary action that the 90–day requirement seeks to avoid is a hasty end to the marriage without time for considering whether dissolution is truly what the parties want. In the case of a legal separation, an end to the marriage cannot be presumed to be the parties' goal.

¶ 17 Mr. Buecking urges an additional reason to conclude that the 90–day period runs from the date the petition for dissolution of marriage is filed. Buecking notes that a 90–day period also applies under RCW 26.09.181(7), which provides that [t]he final order or decree” of a permanent parenting plan “shall be entered not sooner than ninety days after filing and service.” He infers that the 90–day period for parenting plans must be for the same reason that there is a 90–day wait before entry of decrees of dissolution, i.e., to prevent rash actions in parenting plans. Mr. Buecking urges that because RCW 26.09.181(7) expressly “does not apply to decrees of legal separation,” the legislature similarly did not intend that the “cooling off” period under RCW 26.09.030 apply for purposes of legal separation. Pet. for Review at 12.

¶ 18 We do not agree with this argument. As the Court of Appeals observed in In re Marriage of Wilson, 117 Wash.App. 40, 47, 68 P.3d 1121 (2003), [w]hile a cooling off period may, for policy reasons, be required before dissolving the marital status, no similar logic dictates a cooling off period barring parents from reaching desirable agreements in parenting plans.” Because the policy underpinning of the 90–day period in RCW 26.09.030 is inapplicable to parenting plans under RCW 26.09.181, the latter statute does not provide an analogy for purposes of deciding whether the 90–day period in the former statute runs from a petition for dissolution or for legal...

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