In re Marriage Griswold, No. 22346-9-III (WA 1/13/2005)
| Decision Date | 13 January 2005 |
| Docket Number | No. 22346-9-III,22346-9-III |
| Court | United States State Supreme Court of Washington |
| Parties | In re the Marriage of: HELEN J. GRISWOLD, Respondent, and MICHAEL T. GRISWOLD, Appellant. |
Appeal from Superior Court of Spokane County. Docket No. 99-3-00246-4. Judgment or order under review. Date filed: 07/30/2003. Judge signing: Hon. Paul a Bastine.
Counsel for Appellant(s), Mary Elizabeth Schultz, Attorney at Law, 818 W Riverside Ave Ste 810, Spokane, WA 99201-0917.
Counsel for Respondent(s), Martin Louis Salina, Attorney at Law, 422 W Riverside Ave Ste 824, Spokane, WA 99201-0369.
This is the second time Michael and Helen Griswold have been before us on this dissolution action. See In re Marriage of Griswold, 112 Wn. App. 333, 48 P.3d 1018 (2002) (Griswold I), review denied, 148 Wn.2d 1023 (2003). Our decision in the first appeal resolved disputes over the characterization of various assets including Michael Griswold's bonuses and challenges by both husband and wife to the equity of the court's property distribution. We affirmed the distribution. Id. at 353-54.
The dispute in this second appeal centers on a $138,000 judgment the trial court awarded Helen Griswold instead of spousal maintenance. The court set an interest rate on the judgment of 9 percent (the statutory maximum on judgments is 12 percent). And it refused to give Mr. Griswold credit for spousal support he paid before the $138,000 account was set up— essentially because Mr. Griswold did not complain about it until almost three years after the judgment was entered. We conclude that the 9 percent interest rate is well within the trial judge's discretionary authority. And Mr. Griswold's attempts to set aside the court's judgment by way of a CR 60(b) motion came too late. We therefore affirm the judgment.
The judge first awarded maintenance to Ms. Griswold of $2,300 per month for five years beginning on January 1, 2001. And he ordered that the award of maintenance be `non-modifiable to the wife.' Clerk's Papers (CP) at 34. Both parties moved for reconsideration on a number of the court's rulings, including the award of spousal maintenance. The court agreed with their objections to the spousal maintenance, deleted the award, and instead awarded a lump sum of $138,000 (5 years x 12 months x $2,300) to Ms. Griswold from Mr. Griswold's separate property, by a memorandum decision dated February 5, 2001. The court's idea was to eliminate the need for maintenance.
An order and judgment summary showing the `{p}rincipal judgment amount' of $138,000 was signed by the court and filed on April 13, 2001. On June 14, 2001, Mr. Griswold's motion for reconsideration was denied and the motion to stay enforcement of the property distribution was granted. On May 24, 2001, the case came back before the trial court (before the appeal in Griswold I) on Mr. Griswold's motion to waive the supersedeas bond. Instead, the court ordered that $138,000 be placed in a `blocked account' and authorized Ms. Griswold to withdraw $2,300 per month from the account beginning on May 1, 2001. The court also directed that the funds be invested conservatively. Report of Proceedings (RP) at 947. It authorized the withdrawal of $2,300 per month at the same time recognizing that it was a partial property distribution, and the property distribution was being appealed. The court cited as authority for this its `equitable powers.' RP at 949. Ms. Griswold asked the court to impose an interest rate of 12 percent on the judgment award (the statutory maximum for judgments) while the case was on appeal. The court instead left it to the Court of Appeals to set the interest rate.
Following our decision in Griswold I, Ms. Griswold moved for an order to distribute the funds held in the blocked account. Mr. Griswold objected to an interest rate of 12 percent and requested that the interest be limited to that interest which actually accrued on the account while the appeal (Griswold I) was pending. On May 22, 2003, the court set the interest rate at 9 percent or about the rate `on an unsecured loan.' RP at 971. The order said the 9 percent rate was based on a `multitude of factors, including but not limited to current mortgage rates and current rate of return on various investment opportunities.' CP at 208. By order dated May 30, 2003, the court set the interest rate and ordered credit against the account for the $2,300 monthly payments to Ms. Griswold `from June 2001, through and including May of 2003.' CP at 208. This effectively gave Mr. Griswold credit for the payments to Ms. Griswold from the account, after the judgment was entered in June of 2001.
Mr. Griswold objected to the assessment of interest at 9 percent and moved for reconsideration pursuant to CR 59 (a motion that must be filed within 10 days of judgment). The court denied the motion for reconsideration by order dated July 30, 2003. It then entered an amended judgment and judgment summary on October 30, 2003, that reflected the accrued interest and the credits for payments made since entry of the judgment. On November 4, 2003, Mr. Griswold moved to vacate the court's judgment of May 30, 2003, and its order of October 30, 2003. His motion included the following declaration:
By April of 2001, I had already made April's payment on maintenance. Thus, when the court entered its judgment on April 13, 2001 in the amount of $138,000, it neglected to include the four months of maintenance that I had already paid at $2,300 per month, for a credit of $9,200. Thus, the actual amount owing on April 13, 2001 was $128,800.
CP at 274. He cited CR 60(b). The court denied the motion because it was not made within one year of the judgment complained of—April 13, 2001.
Mr. Griswold relies on the Washington case of In re Marriage of Davison and two out-of-state cases for the proposition that a court cannot charge an interest rate higher than that actually earned on an account when the funds have been deposited pursuant to a court order. In re Marriage of Davison, 112 Wn. App. 251, 259, 48 P.3d 358 (2002); Chase v. Skepner, 134 Cal. App. 453, 25 P.2d 471 (1933); Warren v. Banning, 140 N.Y. 227, 35 N.E. 428 (1893). He argues that the court's oral ruling directed him to place the money in an account using `conservative investment principles.' RP at 947. And conservative investments accrue modest interest. These funds were placed in a money market account generating 1 percent to 3.45 percent interest.
We review a trial judge's decision setting the interest rate on a judgment for abuse of discretion. In re Marriage of Knight, 75 Wn. App. 721, 731, 880 P.2d 71 (1994). A trial judge abuses his discretion when his decision is based on untenable grounds or untenable reasons. In re Marriage of Horner, 151 Wn.2d 884, 893, 93 P.3d 124 (2004).
The statutory rate of interest on judgments in this state is 12 percent. Former RCW 4.56.110(3) (1989); RCW 19.52.020(1). And the only case authority on this question requires a trial judge to supply reasons to go below this statutory rate. Davison, 112 Wn. App. at 259; In re Marriage of Harrington, 85 Wn. App. 613, 630, 935 P.2d 1357 (1997); Knight, 75 Wn. App. at 731. Specifically, a court may `in exercising its discretion in a dissolution case . . . `reduce the rate or eliminate interest entirely on deferred payments which are part of the adjudication of property rights.'' Davison, 112 Wn. App. at 259 (quoting Berol v. Berol, 37 Wn.2d 380, 383, 223 P.2d 1055 (1950)). But in using a lower rate the court must give some reason. Davison, 112 Wn. App. at 259. Accordingly, the presumptive rate is 12 percent. Ms. Griswold might well have demanded reasons for setting an interest rate less than 12 percent. Id. But Ms. Griswold does not object to the rate, at least not here on appeal.
Mr. Griswold advances solid reasons why the court might have exercised its discretion and imposed a lower interest rate: the account was blocked, the account earned only a modest interest rate because the court ordered a `conservative investment,' and the court's reliance on typical investments is nothing more than `guess and by golly.' But the trial judge was also within his discretion to reject those reasons and opt for the 9 percent rate.
We cannot say that to impose less than the full 12 percent interest on this judgment was an abuse of discretion. Harrington, 85 Wn. App. at 630-31.
Mr. Griswold argues that his November 4, 2003, CR 60(b) motion was for relief from the court's orders of May 30, 2003 and October 30, 2003. And it was, therefore, timely. But, he argues, even if his motion was untimely, the court should have entertained it under the provisions of CR 60(b)(11) (), which accommodates a motion within a `reasonable time.' In re Marriage of Thurston, 92 Wn. App. 494, 500, 963 P.2d 947 (1998).
To determine whether Mr. Griswold's motion to vacate was brought within one year of `the judgment,' as required by CR 60(b), we must identify the order objected to: Was he seeking vacation of the April 13, 2001 order awarding the lump sum payment of $138,000, or the order addressing credits for maintenance entered on May 30, 2003, following this court's decision in Griswold I?
The merits of a CR 60(b) motion for relief of judgment are addressed to the sound discretion of the trial judge. Hope v. Larry's Mkts., 108 Wn. App. 185, 197, 29 P.3d 1268 (2001). But here the judge disposed of the motion on procedural grounds—that the motion came too late since his judgment was entered in April 2001 and was not challenged until November 2003. And since that ruling was based on the court's determination as a matter of law of which judgment or order was being challenged by the CR 60(b) motion, our review is de novo. In re Marriage of Thompson, 97...
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