Buecking v. Buecking, 66268–6–I.

• Decision Date: 02 April 2012
• Docket Number: No. 66268–6–I.,66268–6–I.
• Citation: 274 P.3d 390
• Court: Washington Court of Appeals
• Parties: In the Matter of the MARRIAGE OF Amy BUECKING, n/k/a Amy Westman, Respondent,andTim BUECKING, Appellant.

274 P.3d 390

In the Matter of the MARRIAGE OF Amy BUECKING, n/k/a Amy Westman, Respondent,andTim BUECKING, Appellant.

No. 66268–6–I.

Court of Appeals of Washington, Division 1.

April 2, 2012.

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

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

PUBLISHED IN PART

ELLINGTON, J.

¶ 1 Petitions for marital dissolution are within the broad subject matter jurisdiction of the superior court. Failure to adhere strictly to the statutory framework governing such actions, including the 90–day waiting period, does not cause the court to lose its constitutional powers or render its decree void. Nor is such an error a manifest constitutional issue permitting review for the first time in this court.

¶ 2 The statutes require a 90–day “cooling off” period before the court may enter a decree of dissolution. Here, more than 500 days had passed since the filing of a petition for legal separation, but only 82 days had passed since the petition was amended to seek dissolution. When a separation petition is amended to seek dissolution, it is unclear whether the statutes contemplate a new waiting period. It is also unclear whether it matters that the amended petition was jointly filed.

¶ 3 In any case, the alleged error could easily have been avoided had the issue been timely raised below. The decree is not void, the issue was not raised below, and this court can grant no effective relief.

BACKGROUND

¶ 4 Tim Buecking and Amy Westman (formerly Buecking) were married for nine years and have three minor children.

¶ 5 On December 12, 2008, Westman filed and properly served a petition for legal separation. The court entered a temporary parenting plan and other orders in January 2009. On April 2, 2010, Westman filed an amended petition for dissolution, replacing the October 2008 petition for legal separation. Buecking signed the petition and marked the “joinder” box, stating, “I, the respondent, agree to the filing of an Amended Petition for Dissolution of the marriage instead of legal separation.” ¹

¶ 6 On May 19, 2010, the parties had a one-day bench trial. Only Westman and Buecking testified. On June 23, 2010, the court entered findings of fact and conclusions of law, an order of child support, a final parenting plan, and a decree of dissolution.

¶ 7 Disappointed in the results, Buecking appealed. Me now contends the court lacked authority to enter the decree.

DISCUSSION

¶ 8 Whether a court has subject matter jurisdiction is a question of law. Absent such jurisdiction, the court's judgment is void. ² A void judgment may be challenged at any time.³ Review is de novo.⁴

¶ 9 By statute, the court is empowered to act on a petition for dissolution only when certain requirements have been met. One of those is a cooling off period:

When a party who (1) is a resident of this state, or (2) is a member of the armed forces and is stationed in this state, or (3) is married or in a domestic partnership to a party who is a resident of this state or who is a member of the armed forces and is stationed in this state, petitions for a dissolution of marriage or dissolution of domestic partnership, and alleges that the marriage or domestic partnership 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.⁵

¶ 10 At issue here is the meaning of the language requiring that “ninety days have elapsed since the petition was filed” ⁶ where there were actually two petitions. If the time runs from the filing of the first petition, the statute is satisfied.⁷ If the time must begin to run again when the petition is amended to seek dissolution, the statute was not satisfied. Buecking points out that the 90–day requirement is triggered by the allegation that the marriage is irretrievably broken, which is the required allegation for a petition for dissolution. He contends that because 90 days had not elapsed from the petition containing that allegation and seeking dissolution, the court lacked subject matter jurisdiction and the decree is void.

¶ 11 “ ‘Subject matter jurisdiction’ is ‘the authority of the court to hear and determine the class of actions to which the case belongs.’ ” ⁸ The classes of action over which the superior court has jurisdiction are defined by the state constitution.⁹ Under the Washington Constitution, superior courts have original jurisdiction in all cases involving dissolution or annulment of marriage.¹⁰ The petition for dissolution was within the subject matter jurisdiction of the superior court.

¶ 12 “If the type of controversy is within the subject matter jurisdiction, then all other defects or errors go to something other than subject matter jurisdiction.” ¹¹ A court's alleged failure to operate within the statutory framework does not render its judgment void. Here, failure to observe a statutory waiting period may be a legal error, but it does not result in loss of jurisdiction. Under RAP 2.5(a), Buecking may not raise the issue for the first time on appeal. Accordingly, we decline to consider it.¹²

¶ 13 Affirmed.

¶ 14 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040.

******UNPUBLISHED TEXT FOLLOWS******

¶ 15 Buecking contends the court abused its discretion in its property division, calculation of child support, and by making reciprocal a restriction in the parenting plan.

DIVISION OF PROPERTY

¶ 16 The couple owned four properties in Whatcom County: a house at 3090 Mt. Vista Drive; a house at 2604 Lummi View Drive; a house at 2618 Michigan Street; and undeveloped property located at 3980 Pipeline Road. They lived with their children in the Michigan Street home and rented out the houses on Mt. Vista Drive and Lummi View Drive. The pretrial orders required Buecking to pay the first and second mortgages on the Michigan Street property as maintenance and to “make sure that the mortgages on the home are current.” ¹³ The court also ordered Buecking to pay child support.

¶ 17 Buecking raises several issues with respect to the court's distribution of the equity and lost rents in the couple's property on Mt. Vista Drive. He argues the court erred by characterizing it as community property, awarding an offset of $25,000 to Westman for her share of the equity, and awarding Westman $2,250 in lost rent. We review these claims for abuse of discretion.¹⁴

Character of the Property

¶ 18 The character of property as separate or community is determined at its date of acquisition.¹⁵ Once the separate character of property is established, there is a presumption that it remains separate absent clear and convincing evidence to the contrary.¹⁶ But the characterization of property as separate or community does not dictate the division of assets. ¹⁷ The court must make a “just and equitable” disposition of both separate and community property.¹⁸

¶ 19 Although Buecking purchased the property with his brother before the marriage, the record indicates that the equity in the property belonged to the community. The evidence is that Buecking's brother gifted his interest to Buecking and Westman after they married. Though her name did not originally appear on the deed, Westman testified that she was present at closing and contributed to the mortgage payments before marriage. The parties later added her name to the deed and mortgage. The parties both testified they considered the property “our house,” and Westman signed rental agreements as “lessor.” ¹⁹ Additionally, there was evidence that adjacent neighbors gifted their property to the couple jointly, and that Buecking did not know the character of the property when he responded to an interrogatory about it.

¶ 20 Thus, even if the court was technically incorrect in this characterization, it properly determined that the equity in the property belonged to the community.²⁰ The court did not abuse its discretion in dividing this equity equally.

Lost Rents

¶ 21 Buecking's failure to collect rent and pay the mortgage violated the pretrial orders and caused the property to fall into foreclosure. The court awarded Westman $2,250 “as Wife's community property share of lost rents on the 3090 Mt. Vista Drive property from December 2009 to May 2010 based on Husband's admission that the home sat empty and was not rented during this period of time.” ²¹

¶ 22 Buecking also failed to pay the mortgages on the Michigan Street property in lieu of maintenance as required by pretrial orders, and this property also fell into foreclosure. Buecking's conduct jeopardized Westman's ability to reside with the children in the family home, or any of the marital properties. ²² The court did not abuse its discretion by recognizing Buecking's responsibility for this predicament in providing an offset to compensate Westman.

¶ 23 Buecking contends the court should not have awarded Westman lost rents on the Mt. Vista and Lummi View Drive homes because none were collected. He relies on In re Marriage of White for the proposition that the court may not distribute an asset that does not exist at the time of trial.²³ But Buecking's failure to collect the rent is the express reason for the award. Courts may properly consider a party's responsibility for wasting marital assets in the equitable distribution of property.²⁴ Buecking shows no abuse of discretion.

Foreclosure

¶ 24 Buecking next argues the court erred in awarding Westman her share of the equity in the Mt. Vista Drive property because the home was in foreclosure at the time of trial. He asserts that “[t]he property went into foreclosure in large part because Amy had no employment income and because of the cut back in Tim's employment after the economy soured in 2008.” ²⁵ He also contends the property was lost because...