In re Herridge

• Decision Date: 02 July 2012
• Docket Number: No. 66525–1–I.,66525–1–I.
• Citation: 169 Wash.App. 290,279 P.3d 956
• Court: Washington Court of Appeals
• Parties: In the Matter of the MARRIAGE OF Cecil T. HERRIDGE, Appellant, and Stacey A. Herridge, Respondent.

169 Wash.App. 290

279 P.3d 956

In the Matter of the MARRIAGE OF Cecil T. HERRIDGE, Appellant,

and

Stacey A. Herridge, Respondent.

No. 66525–1–I.

Court of Appeals of Washington,

Division 1.

July 2, 2012.

Paula Plummer, Mount Vernon, WA, for Appellant.

Christopher T. Lyons, Oak Harbor, WA, for Respondent.

OPINION PUBLISHED IN PART

DWYER, J.

[169 Wash.App. 292]¶ 1 The Servicemembers Civil Relief Act ¹ (SCRA or Act) entitles a member of the United States armed services to a mandatory stay of court proceedings in circumstances where the servicemember is precluded from participating in such proceedings due to active military duty. However, in order to be entitled to such a stay, the servicemember must present to the court certain statutorily-specified information regarding his or her military duty. Where the servicemember fails to do so, the SCRA does not entitle the servicemember to this relief. Although the court may issue a stay of proceedings on its own motion, such a stay is discretionary.

¶ 2 Here, Cecil Herridge appeals from the trial court's denial of his motion to vacate a final order of child support. He asserts that the trial court was required to issue a stay of proceedings pursuant to the SCRA and that the child support order, issued in his absence, should have been subsequently vacated. However, because Cecil ² failed to provide to the trial court the statutorily-required information regarding his military duty, the court did not err by determining that he had not met the prerequisites for a mandatory stay. Nor did the trial court abuse its discretion by declining to issue a stay on its own motion. Accordingly, Cecil's motion to vacate on this basis was properly denied. Because Cecil's other contentions similarly lack merit, we affirm the trial court's order denying Cecil's motion to vacate the child support order.

I

¶ 3 Following the dissolution of the marriage of Stacey and Cecil Herridge, a final order of child support and a final parenting plan were entered in December 2004. In April 2008, Stacey, who was residing in Florida with their two children, filed a petition to modify both the parenting plan and the order of child support. The trial court subsequentlyissued a temporary order of child support and a temporary parenting plan.

¶ 4 Cecil, who is a member of the United States Navy, thereafter filed a motion requesting a deviation in the temporary order of child support. He additionally requested that the court disqualify Stacey's attorney based upon Cecil's prior consultation with that attorney regarding the calculation of child support payments. The court denied the motion for disqualification without written explanation but granted Cecil's request for a deviation in the temporary order of child support.³

¶ 5 In the months that followed, Cecil repeatedly failed to comply with Stacey's requests for discovery. He did not respond to her interrogatories or requests for production, failing to provide information regarding the income of his current wife or income derived from his military employment. Stacey thereafter filed a motion to compel discovery. In response to this motion, Cecil's wife filed a declaration indicating that her husband was deployed and requesting that the motion be denied due to his absence. Although Cecil had deployed well after his responses to discovery were due, Stacey voluntarily struck the motion to compel.

¶ 6 Cecil returned from deployment in March 2009. However, he did not thereafter respond to discovery or otherwise take action in the case. Instead, in November 2009, Stacey filed a motion for a final hearing on her petition to modify the final parenting plan and order of child support. The motion was noted for November 16, 2009.

¶ 7 Cecil received a copy of the motion on November 3, 2009. Three days later, he filed a response. In his declaration, Cecil stated that he would be unable to attend the hearing because he would “be deployed at that time over seas [ sic ].” He also attached a redacted letter from his commanding officer. The letter, dated October 30, 2009, stated: “A01 Herridge is an active member of the U.S. Navy and attached to [redacted]. He will be deployed November 2009 to June 2010.” The entire second paragraph of this letter was redacted.⁴ No other information was provided in the letter.

¶ 8 Cecil deployed to Iraq on November 13, 2009. Accordingly, he did not appear at the November 16 hearing. In his absence, Stacey delivered copies of Cecil's declaration and his commanding officer's letter to the trial court for evaluation. While recognizing that the SCRA requires a stay of proceedings upon the proper application of a servicemember, the trial court determined that Cecil had failed to comply with the relevant provisions of the Act. The court further noted: “It appears to me that Mr. Herridge is using his status as a military member to try to get out of his responsibilities.” The court then entered final orders modifying the child support order and the final parenting plan.

¶ 9 Cecil did not appeal from the trial court's final orders. Instead, in December 2009, he filed a motion to vacate the final orders. Because Cecil was still deployed, he did not appear at the hearing on this motion. Cecil's wife sought to argue on his behalf; however, the court denied this request. After noting that it had carefully considered the record, the trial court determined that the time for reconsideration had elapsed and that Cecil had failed to comply with the proper procedures for bringing a motion to vacate. The trial court further stated: “The Court was well within its authority and discretion to enter the previous order. Mr. Herridge did not comply with the Servicemembers Civil Relief Act in seeking the stay previously.” Moreover, because Cecil's motion was “not supported by any proper factual investigation,” the court awarded terms of $500 for attorney fees to Stacey pursuant to Civil Rule 11.

¶ 10 Cecil took no further action until September 2010 when he filed a motion to vacate the November 2009 final orders and the December2009 award of attorney fees.⁵ Following oral argument, the trial court issued a written order including findings of fact and conclusions of law. The court reiterated that, because Cecil had not complied with the provisions of the SCRA, he was not entitled to a mandatory stay of the November 2009 hearing. Moreover, the trial court determined that Cecil was not prejudiced by its previous decision to modify the child support order based only upon declarations—because Cecil had failed to timely request that oral testimony be heard, the petition for modification “was properly heard on affidavits only, pursuantto [former] RCW 26.09.175(5) [2002].” ⁶ Accordingly, the court denied the motion to vacate the final order modifying child support. The trial court likewise determined that the December 2009 judgment awarding attorney fees was proper, as the court in that proceeding had correctly determined that “there was no basis in law or fact to grant Mr. Herridge's motion.”

¶ 11 However, the trial court granted Cecil's motion to vacate the final parenting plan entered at the November 2009 hearing, explaining that “Mr. Herridge was entitled to an evidentiary hearing on the modification of the parenting plan.” Because Cecil was entitled to this partial relief, the trial court did not award the full amount of attorney fees requested by Stacey, instead limiting its award of such fees to $750.

¶ 12 Cecil appeals.

II

¶ 13 Cecil first asserts that the trial court was required to issue a stay of proceedings pursuant to the SCRA and, thus, that the trial court's subsequent orders, issued in his absence, should necessarily have been vacated. We disagree.

¶ 14 “A motion to vacate a judgment is to be considered and decided by the trial court in the exercise of its discretion, and its decision should be overturned on appeal only if it plainly appears that it has abused that discretion.” Haller v. Wallis, 89 Wash.2d 539, 543, 573 P.2d 1302 (1978). A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of Littlefield, 133 Wash.2d 39, 47, 940 P.2d 1362 (1997). Moreover, a court necessarily abuses its discretion where it bases its ruling “on an erroneous view of the law.” Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wash.2d 299, 339, 858 P.2d 1054 (1993). We review questions of law de novo. Anthis v. Copland, 173 Wash.2d 752, 755, 270 P.3d 574 (2012).

¶ 15 Here, the trial court's denial of Cecil's motion to vacate depended upon the court's previous interpretation and application of the SCRA. In interpreting a statute, “[c]ourts should assume [Congress] means exactly what it says.” State v. Keller, 143 Wash.2d 267, 276, 19 P.3d 1030 (2001) (citing W. Telepage, Inc. v. City of Tacoma Dep't of Fin., 140 Wash.2d 599, 609, 998 P.2d 884 (2000)). Plain words do not require construction. Keller, 143 Wash.2d at 276, 19 P.3d 1030. Moreover, meaning must be given to every word in a statute. In re Recall of Pearsall–Stipek, 141 Wash.2d 756, 767, 10 P.3d 1034 (2000).

¶ 16 The purpose of the SCRA “is to suspend enforcement of civil liabilities of persons in the military service of the United States in order to enable such persons to devote their entire energy to the defense needs of the Nation.” Engstrom v. First Nat'l Bank of Eagle Lake, 47 F.3d 1459, 1462 (5th Cir.1995); 50 U.S.C.App. § 502. The provisions of the Act are to be “liberally construed.” Engstrom, 47 F.3d at 1462. Nevertheless, the Act “is not to be used as a sword against persons with legitimate claims,” and a court must give “equitable consideration of the rights of parties to the end that their respective interests may be properly conserved.” Engstrom, 47 F.3d at 1462;see also Runge v. Fleming, 181 F.Supp. 224, 228 (D.C.Iowa 1960) (noting that the Act is not intended as an “ ‘instrument for the oppression of...