In re Marriage of Lukoskie v. Kim, No. 52926-9-I (WA 12/13/2004)

• Decision Date: 13 December 2004
• Docket Number: No. 52926-9-I,52926-9-I
• Citation: In re Marriage of Lukoskie v. Kim, No. 52926-9-I (WA 12/13/2004), No. 52926-9-I (Wash. Dec 13, 2004)
• Court: Washington Supreme Court
• Parties: IN RE THE MARRIAGE OF: WILLIAM M. LUKOSKIE, JR., Appellant, v. SOON KIM, Respondent.

Page 1

Unpublished Opinion

IN RE THE MARRIAGE OF: WILLIAM M. LUKOSKIE, JR., Appellant, v.SOON KIM, Respondent.

No. 52926-9-I

Court of Appeals of Washington, Division One.

Filed: December 13, 2004

Appeal from Superior Court of King County.DocketNo. 99-3-06845-2.Judgment or order under review.Date filed: 07/23/2003.Judge signing: Hon. Richard D Eadie.

Counsel for Appellant(s), Jerry Richard Kimball, Attorney at Law, 900 Fourth Ave Ste 3250, Seattle, WA 98164-1005.

Counsel for Respondent(s), Wolfgang Richter Anderson, Attorney at Law, 207 E Edgar St, Seattle, WA 98102-3108.

H. Michael Fields, Attorney at Law, 207 E Edgar St, Seattle, WA 98102-3108.

SCHINDLER, J.

After this court affirmed the division of property and liabilities in William Lukoskie and Soon Kim's dissolution,¹the trial court granted Kim's motion under CR 60 to provide access to property awarded to Kim over an existing driveway on Lukoskie's adjacent property.Lukoskie challenges the trial court's decision and contends the court lacked authority to amend the decree of dissolution and the amendment was an abuse of discretion.The trial court had authority under CR60(a) to amend the decree and clarify its intent based on the record at trial.We affirm.

FACTS

During their 23-year marriage, Lukoskie and Kim acquired several parcels of real estate on Vashon Island.Two of the properties, `Suni's Home' and `the cabin,' are adjacent parcels that border Vashon Highway Southwest (the highway).A dirt road provides vehicle access from the highway to Suni's Home and the cabin and is used as the driveway for both properties.The dirt road traverses the Suni's Home property and leads to the cabin.The only other access from the highway to the cabin is a stairway and footpath on the steep slope from the highway up to the cabin.

As part of the dissolution proceedings, Lukoskie and Kim hired real estate appraiser Brenda Sestrap to determine the fair market value of their real estate, including Suni's Home and the cabin.Prior to the October 2001 dissolution trial, Lukoskie and Kim stipulated to Sestrap's appraisal and the fair market value of the properties.They presented no other evidence at trial regarding valuation.During trial, Kim and Lukoskie also stipulated to the admissibility of trial courtExhibitNo. 15(Exhibit 15).Exhibit 15 contains a 1997 letter from land surveyor Jerold O'Hare to Lukoskie with the legal description for the location of a `driveway easement' on the Suni's Home property, and a copy of a county records map for several lots including Suni's Home and the cabin property.<sup>2</sup>The map shows the location of the two properties and contains a dotted line labeled `driveway.'³The driveway shown on the map crosses the Suni's Home property from the highway to the cabin property.

The court awarded Lukoskie property worth $712,224 and awarded Kim property worth $707,241, and entered findings of fact and conclusions of law and the decree of dissolution.The trial court relied on the valuations stipulated to by the parties in awarding the Suni's Home property to Lukoskie and the cabin property to Kim, and in dividing the parties' other property and liabilities.Lukoskie appealed the trial court's division of property and liabilities.SeeIn re the Marriage of William M. `Luke' Lukoskie Jr. and Soon Kim, 114 Wn. App. 1015, No. 49544-5-I (Wash. Ct.App. Oct. 28, 2002).

While the appeal was pending, a dispute arose between Lukoskie and Kim regarding use of the driveway to access the cabin property.Because there was no recorded easement for the driveway, Lukoskie blocked Kim's access across his property.Kim filed a motion in the trial court for an order requiring Lukoskie to remove the barrier from the driveway and allow vehicle access to the cabin.In support of her motion, Kim submitted Exhibit 15 and the land surveyor's letter with the legal description for the location of a `driveway easement' on the Suni's Home property, together with a copy of a county records map with the dotted line labeled `driveway' crossing the Suni's Home property from the highway to the cabin property.⁴Kim also submitted a declaration from Sestrap stating that her appraisal and the stipulated valuation used at trial assumed an easement for vehicle access to the property.⁵The trial court ordered Lukoskie to remove the barrier blocking access from the driveway to the cabin property and reserved ruling on Kim's motion until this court decided Lukoskie's appeal.On October 28, 2002, this court affirmed the trial court's division of property and liabilities.⁶

In February 2003, Kim filed a motion under CR 60 to amend the decree to provide driveway access to the cabin property across the Suni's Home property.In her motion, Kim sought relief under CR60(b)(4) and (11).The trial court granted Kim's motion to amend the decree under CR60(a), and in the alternative under CR60(b)(11).Lukoskie appeals the trial court's order.⁷

ANALYSIS

Preliminarily, Lukoskie contends the trial court did not have authority to correct and amend the decree of dissolution after this court affirmed the trial court's decision in Lukoskie, 114 Wn. App. 1015.RAP 12.2 governs the trial court's authority after an appellate mandate has issued.⁸The rule provides `{a}fter the mandate has issued, the trial court may hear and decide postjudgment motions otherwise authorized by statute or court rule so long as those motions do not challenge issues already decided by the appellate court.'RAP 12.2.⁹

Lukoskie relies on Alpine Industries, Inc. v. Gohl, 101 Wn.2d 252, 676 P.2d 488(1984), to argue a trial court may modify a judgment after an appellate mandate only if the modification relates to later events that were not before the appellate court during the first appeal.He contends the modification was not related to later events and the trial court lacked authority to modify its earlier judgment.But Alpine Industries does not limit a trial court's authority to correct or modify a judgment under CR 60 after a mandate is issued.Alpine Industries holds only that `appellate leave is not required where a party seeks modification of a decision after issuance of the appellate mandate if the modification sought relates to later events not before the appellate court during the first appeal.'Alpine Industries, 101 Wn.2d at 256(emphasis added).The current dispute between Kim and Lukoskie about whether the trial court intended to provide access to the property awarded to Kim does not involve issues decided by this court in Lukoskie, 114 Wn. App. 1015.The trial court granted Kim's motion to amend the decree after the opinion in Lukoskie, 114 Wn. App. 1015, was issued.The trial court had authority to rule on Kim's motion under RAP 12.2.

In amending the decree, the court relied on CR60(a)andCR60(b)(11) to clarify its intent to provide a driveway easement over Lukoskie's property to access the adjacent property awarded to Kim.Lukoskie contends the trial court improperly sought to correct a judicial error under CR60(a).A court's decision under CR60(a) is reviewed for abuse of discretion.Shaw v. City of Des Moines, 109 Wn. App. 896, 900-01, 37 P.3d 1255(2002).The decision will not be overturned on appeal unless it plainly appears that the trial court exercised its discretion on untenable grounds or for untenable reasons.Id.

CR60(a) provides:

Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders.Such mistakes may be so corrected before review is accepted by an appellate court, and thereafter may be corrected pursuant to RAP 7.2(e).¹⁰

The purpose of CR60(a) is to permit correction of the original judgment or decree to reflect what was intended by the trial court at the time of trial.Presidential Estates Apt. Assoc. v. Barrett, 129 Wn.2d 320, 328-29, 917 P.2d 100(1996).CR60(a) allows a trial court to grant relief from judgments only for clerical mistakes and errors arising from oversight or omission; it does not permit correction of judicial errors.Presidential Estates, 129 Wn.2d at 326.

The Court in Presidential Estates addressed the requirements of CR60(a) and described the distinction between clerical mistakes and judicial errors.`In deciding whether an error is `judicial' or `clerical,' a reviewing court must ask itself whether the judgment, as amended, embodies the trial court's intention, as expressed in the record at trial.'Presidential Estates, 129 Wn.2d at 326.If the answer is yes, the error is clerical.Id.If the answer is no, the error is judicial and may not be corrected under CR60(a).Id.

In Presidential Estates, the owners of the Presidential Estates apartment complex sued the owners of the adjacent apartment complex, Colonial Commons II, to enjoin four encroachments by Colonial Commons II onto Presidential Estates' property.The four encroachments were (1) using 548 feet of the Presidential Estates' property for additional access, instead of the 390 feet authorized for an access and utility easement; (2) connecting the Colonial Commons II storm water system to Presidential Estates' storm water system; (3) using the easement for access for more living units than were authorized by the easement; and (4) using the access for storage units when none were authorized.The trial court agreed that Colonial Commons II had encroached on Presidential Estates' property and enjoined the encroachments.But as a matter of equity, the trial court gave Colonial Commons II the right to pay to use the easement for two additional units.

Under the terms of the court's order, Colonial Commons II paid to use the easement for the two additional units.Presidential Estates refused to allow Colonial Commons II to use the portion of the roadway that exceeded the...