Anderson v. Anderson
| Decision Date | 04 September 2013 |
| Docket Number | 43125-4-II |
| Court | Washington Court of Appeals |
| Parties | MATTHEW ANDERSON, Appellant, v. TAMRA ANDERSON, Respondent. |
UNPUBLISHED OPINION
Matthew Anderson appeals the superior court's denial of his motion to revise the commissioner's ruling adjusting his child support obligation to his former wife, Tamra Anderson. Matthew[1] argues that (1) the commissioner did not have the authority to grant the adjustment because the statutorily required 24-month waiting period had not passed since the superior court entered the child support order, and (2) the commissioner erred by failing to continue his previously allowed deviation from the statutory child support schedule. We hold that Matthew lost his right to object to the timeliness of the adjustment by affirmatively agreeing that it was timely and by asking the commissioner to grant certain specific relief to him in ruling on the motion. But we agree that the deviation that the arbitrator and the court previously ordered was improperly revoked because Tamra did not plead or prove a substantial change in circumstances. Accordingly, we reverse the superior court's denial of Matthew's motion to revise the commissioner's ruling adjusting the child support order.
In May 2009, Matthew and Tamra entered marital dissolution and child support agreements through arbitration. But instead of immediately filing the child support and dissolution agreements, Matthew and Tamra waited until September 10 2010, (roughly 16 months) before filing these documents with Pierce County Superior Court. Approximately 12 months later Tamra filed a motion to adjust the child support order with a superior court commissioner, stating:
It [has been] more than 24 months since the [child support] order was entered by arbitration dated May 17, 2009 or since the last incremental change went into effect, whichever is later, and there have been changes in the economic table or standards in RCW 26.19 as follows: . . . Since the amount of child support was arbitrated a new standard for the calculation of child support was adopted by the State. . . . There is no longer any factual basis to allow Father a deviation in his child support obligation.
Clerk's Papers (CP) at 113-14.
Matthew filed a responsive declaration agreeing that "it [had] been more than two years since support was last ordered " but requesting the court to enter an order that would continue to permit his previously allowed deviation from the statutory child support schedule. CP at 157. The commissioner granted Tamra's motion and adjusted Matthew's child support obligation upward; the commissioner denied Matthew's request to continue his deviation, finding that "no good reasons exist[ed] to justify the deviation." CP at 187.
Following a substitution of counsel, Matthew moved the superior court to revise the commissioner's ruling, arguing that Tamra's motion to adjust should have been denied because it was premature under RCW 26.09.170(7)(a); he also argued that the commissioner erred by terminating his previously allowed deviation. The superior court denied the motion. Matthew appeals the superior court's denial.
Matthew argues that the superior court erred by denying his motion to revise because the 24-month waiting period in RCW 26.09.170(7)(a) is clear and begins to run when the initial child support order is filed with the superior court. We conclude that Matthew waived this issue by agreeing before the commissioner that Tamra's adjustment action was timely.[2]
A. Statutory Interpretation and Plain Meaning
The interpretation and applicability of a statute presents questions of law that we review de novo. Grey v Leach, 158 Wn.App. 837, 844, 244 P.3d 970 (2010). When interpreting a statute, we seek to ascertain the legislature's intent. State v. Jacobs, 154 Wn.2d 596, 600, 115 P.3d 281 (2005). Where a statute's meaning is plain on its face, we must give effect to that meaning as expressing the legislature's intent. Jacobs, 154 Wn.2d at 600.
Neither party explains the lengthy delay in entering the child support agreement following arbitration. Br. of Appellant at 6; Br. of Resp't at 10. But there is no question that the adjustment was sought less than 24 months after the arbitrator's decision was filed with the court. RCW 26.09.170(7)(a) permits adjustments only "[i]f twenty-four months have passed from the date of the entry of the order." (Italics added). Thus, under the plain meaning of the statute, Tamra's motion was untimely.[4]
B. Waiver
We conclude, however, that Matthew waived the ability to raise the timeliness issue in his motion for revision and on appeal when he responded to Tamra's motion for adjustment by asserting before the commissioner that the 24-month period had run and by requesting substantive relief.
Waiver can occur if the defendant's assertion of a defense is inconsistent with his previous behavior. Haywood v. Aranda, 143 Wn.2d 231, 239, 19 P.3d 406 (2001). Although jurisdictional time limits cannot be waived, nonjurisdictional time periods are subject to waiver. See State v. Walker, 153 Wn.App. 701, 705 n.2, 224 P.3d 814 (2009) (). See also Hazel v. Van Beek, 135 Wn.2d 45, 61, 954 P.2d 1301 (1998) (); State v. Duvall, 86 Wn.App. 871, 874, 940 P.2d 671 (1997) ().
A court has jurisdiction after a party commences or institutes an action. Lewis County v. W. Wash. Growth Mgmt. Hearings Bd, 113 Wn.App. 142, 153-54, 53 P.3d 44 (2002). At issue here is a child support adjustment action brought well after the commencement of the initial dissolution action and the court's assumption of continuing jurisdiction over that action. As stated, RCW 26.09.170 outlines some of the procedures for modifying child support orders, and subsection (7) allows the parties to adjust a child support order every 24 months without showing a substantial change in circumstances. Kauzlarich v. Dep't of Soc. & Health Servs., 132 Wn.App. 868, 874, 134 P.3d 1183 (2006); In re Marriage of Scanlon, 109 Wn.App. 167, 173, 34 P.3d 877 (2001). A 24-month adjustment action under RCW 26.09.170(7) is a routine action that may be effected by moving for a hearing; no summons or trial is necessary. "An adjustment action therefore simply conforms existing provisions of a child support order to the parties' current circumstances." Scanlon, 109 Wn.App. at 173.
It is clear that the 24-month time period set forth in RCW 26.09.170(7) is nonjurisdictional in nature and may be waived. The civil rules support this conclusion, as CR 8(c) provides that a party "shall set forth" in an answer to a preceding pleading "any . . . matter constituting an avoidance or affirmative defense." Generally, affirmative defenses are waived unless they are affirmatively pleaded under CR 8, asserted in a motion under CR 12(b), or tried by the express or implied consent of the parties. Henderson v. Tyrrell, 80 Wn.App. 592, 624, 910 P.2d 522 (1996).
The doctrine of judicial estoppel also supports waiver in this case. '"Judicial estoppel is an equitable doctrine that precludes a party from asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position.'" Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007) (quoting Bartley-Williams v. Kendall, 134 Wn.App. 95, 98, 138 P.3d 1103 (2006)). In determining whether the doctrine applies, we consider (1) whether a party's later position is clearly inconsistent with its earlier position; (2) whether judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled, and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. Kellar v. Estate of Kellar, 172 Wn.App. 562, 580, 291 P.3d 906 (2012).
Matthew's assertion in the superior court that Tamra's adjustment motion was untimely was clearly inconsistent with his agreement on its timeliness before the commissioner. The commissioner was misled on that issue by the parties' agreement, and Tamra relied on that agreement in her appearances before both the commissioner and the superior court. Having lost on the merits in the adjustment proceeding, Matthew cannot have a second bite of the apple he has lost...
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