Erickson v. Department of Labor and Industries, No. 54781-0-I (WA 5/31/2005)
| Decision Date | 31 May 2005 |
| Docket Number | No. 54781-0-I,54781-0-I |
| Court | Washington Supreme Court |
| Parties | GARY L. ERICKSON, Dec'd, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES OF THE STATE OF WASHINGTON, Respondent. |
Appeal from Superior Court of King County. Docket No: 03-2-08469-7. Judgment or order under review. Date filed: 07/14/2004. Judge signing: Hon. Deborah Fleck.
Counsel for Appellant(s), Carroll Guy Jr Rusk, Attorney at Law, 5031 N Whitman St, Tacoma, WA 98407-1336.
Philip Albert Talmadge, Talmadge Law Group PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Counsel for Respondent(s), David Ira Matlick, Attorney Generals Office, PO Box 2317, Tacoma, WA 98401.
Under former RCW 51.32.240(5), the Department of Labor and Industries may recover payments made under the Industrial Insurance Act if those payments were fraudulently induced. Here, Cherie Gutierrez-Erickson filed for benefits as the widow of Gary Erickson. Cherie's marriage to Erickson, however, was void because she was married to another man. We affirm the trial court's decision allowing the Department to recoup the fraudulently induced payments because the trial court did not abuse its discretion in admitting the affidavit of George Gutierrez, the Board of Industrial Appeals had jurisdiction to determine Cherie's eligibility under the Industrial Insurance Act, the Department was not barred from challenging Cherie's eligibility under the doctrine of res judicata, and the Department proved the elements of fraud.
Cherie Gutierrez-Erickson was married several times. At issue is Cherie's marriage to George Gutierrez in June 1984. In 1990, Cherie attempted to dissolve her marriage to Gutierrez. Cherie purchased a book on divorce and filed a dissolution petition with the court on February 13, 1990. On August 2, 1990, the trial court entered an order directing Cherie to serve Gutierrez and stating, the `Court shall review this matter on October 2nd of 1990.' Certified Board Record (CBR), Deposition at 33. Cherie unsuccessfully attempted to reach him by letters and phone calls. Cherie did not return to court regarding the dissolution. On October 22, 1990, the trial court issued an order dismissing Cherie's dissolution petition.
In 1993, Cherie filed child support paperwork with the Department of Social and Health Services (DSHS) Office of Support Enforcement. As part of the paperwork, Cherie was asked about her relationship to Gutierrez. She was presented with several boxes to check to describe her marital status. Cherie checked the box indicating that she was separated from Gutierrez. She did not check the box indicating that she was divorced from him or the box indicating that a divorce was pending.
In April 1996, Gary Erickson moved in with Cherie. The couple went through a marriage ceremony in July 1996 in Reno, Nevada.
Six months later, Cherie applied for benefits from DSHS under the name Cherie Gutierrez, characterizing her marital relationship as `separated' and listing Erickson as a `friend.'
In September 1997, Cherie filed more paperwork with DSHS under the name Cherie Gutierrez. Here, she listed Erickson as a `roommate.'
On March 20, 1998, Erickson died. On April 30, 1998, Cherie applied for widow's benefits under RCW 51.32.050(2). After initially rejecting the claim, for reasons not relevant here, the Department paid widow's benefits to Cherie. Later, the Department commenced proceedings against Cherie, alleging that she defrauded the Department. In April 2002, the Department issued two orders demanding that Cherie repay the amounts paid to her, along with statutory penalties. The Board affirmed the orders, finding that Cherie `fraudulently induced the Department to pay spousal time loss and pension benefits{.}' CBR at 3.
Cherie appealed to the King County Superior Court. The trial court found in favor of the Department and Cherie appeals.
Before this court, "review is limited to examination of the record to see whether substantial evidence supports the findings made after the superior court's de novo review, and whether the court's conclusions of law flow from the findings." Young v. Dep't of Labor & Indus., 81 Wn. App. 123, 128, 913 P.2d 402 (1996)
The first issue we address is whether the trial court erred in refusing to exclude the affidavit of George Gutierrez. We review a trial court's decision to admit evidence for an abuse of discretion. Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994). Generally, out-of-court statements offered for the truth of the matter asserted are not admissible. ER 802. There are, however, several exceptions to the general rule. The Department argues that the Gutierrez affidavit falls under the hearsay exception in ER 804(b)(4). Under this exception, `{a} statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated,' is `not excluded by the hearsay rule if the declarant is unavailable as a witness.' ER 804(b)(4). A witness is `unavailable' for the purpose of this rule if, among other things, the witness `{i}s absent from the hearing and the proponent of the statement has been unable to procure the declarant's attendance . . . by process or other reasonable means.' ER 804(a)(5).
Cherie argues that the Department did not establish Gutierrez's unavailability. The Department provided an affidavit stating that Gutierrez initially agreed to participate in the hearing via telephone, but later changed his mind and refused to participate. The affidavit further stated that Gutierrez lived in Nevada and that the Department was unable to serve him while he was briefly in Washington. Cherie argues that this was not sufficient to show unavailability, in part because the Department did not subpoena Gutierrez. Because Gutierrez resides outside of Washington, neither the Department nor the court could, by subpoena, compel his attendance at the hearing. Young v. Key Pharmaceuticals, Inc., 63 Wn. App. 427, 432, 819 P.2d 814 (1991). While this fact alone does not render Gutierrez an unavailable witness, there are additional facts here supporting a finding of unavailability. See Young, 63 Wn. App. at 432.
Here, Gutierrez initially agreed to testify at the hearing. On January 15, 2003, Gutierrez told the Department that he would not participate in the January 28, 2003 hearing. He further refused to attend a deposition. Gutierrez told the Department that he was leaving Nevada and going to California and refused to give the Department an address or phone number to reach him. Thus, assuming that the Department could obtain the assistance of Nevada or California to issue an order compelling attendance at a deposition outside of Washington, the Department did not know where to reach Gutierrez. Under these circumstances, the trial court did not abuse its discretion in determining that Gutierrez was an unavailable witness.1
Additionally, Cherie argues that the affidavit was inadmissible because portions of the affidavit did not fall within the limited scope of the exception. The primary purpose of the affidavit, however, was to show that Gutierrez believed that he and Cherie were still married and was thus a statement about his personal history and falls within the hearsay exception. But even if we accept Cherie's argument that the affidavit was inadmissible, any error was harmless. The superior court dismissed Cherie's divorce petition because she failed to serve Gutierrez and did not return to court. This evidence was sufficient to show that Cherie was not legally divorced from Gutierrez.
Cherie also argues that the Board did not have the authority to determine the validity of her marriage to Erickson because that function is exclusively for the superior court, citing article IV, section 6 of the Washington Constitution and RCW 26.09.040. She also argues, citing RCW 26.09.040(1), that the Department did not have standing to attack the marriage because only the parties to the marriage, while they are both living, can attack the validity of the marriage. The Department, on the other hand, argues that the Board determination does not constitute a collateral attack on the Erickson marriage nor was it a `proceeding to declare a marriage invalid.' This is a worker's compensation case, and the Board's determination was regarding benefit eligibility. The determination by the Board does not invalidate the Erickson marriage; it simply determines whether Cherie is eligible for benefits under the Industrial Insurance Act. Thus, the Board had jurisdiction to determine Cherie's eligibility for benefits and the Department had standing to challenge her eligibility.
Additionally, Cherie argues that because the Department previously found that she was entitled to widow's benefits, it is now precluded from attacking the validity of the marriage. Cherie relies heavily on Marley v Dep't of Labor & Indus., 125 Wn.2d 533, 886 P.2d 189 (1994) and Weyerhaeuser Co. v. Bradshaw, 82 Wn. App. 277, 918 P.2d 933 (1996). In Marley, the Board determined that Marley was not entitled to widow's benefits because she was separated from her husband at the time of his death. Marley did not appeal this decision within the 60-day appeal period. Nearly seven years later, Marley attempted to appeal the decision, arguing that the decision was void and therefore not final and binding. The Supreme Court concluded that in order to show that an order is void, the party must show that the tribunal lacked jurisdiction over the party or the claim. Because the Department had jurisdiction over Marley's claim, the order was not void and therefore Marley could not challenge it outside the appeal period.
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