In the Matter of The Marriage of Douglas Kenneth Robinson

• Decision Date: 17 February 2011
• Docket Number: No. 27143–9–III.
• Citation: In the Matter of The Marriage of Douglas Kenneth Robinson, 159 Wash.App. 162, 248 P.3d 532 (Wash. App. 2011)
• Parties: In the Matter of the MARRIAGE OF Douglas Kenneth ROBINSON, Respondent,andJuraluck Robinson, Appellant.
• Court: Washington Court of Appeals

159 Wash.App. 162

248 P.3d 532

In the Matter of the MARRIAGE OF Douglas Kenneth ROBINSON, Respondent,andJuraluck Robinson, Appellant.

No. 27143–9–III.

Court of Appeals of Washington, Division 3.

Dec. 28, 2010.As Amended on Reconsideration Feb. 17, 2011.

Tami Michele Chavez, Chavez Law Office PS, Spokane, WA, for Appellant.Donald J. Richter, Richter Law Office PS, Spokane, WA, for Respondent.KULIK, C.J.

[159 Wash.App. 165] ¶ 1 Subject matter jurisdiction in dissolution proceedings exists if one of the parties is a resident of Washington during the proceedings. Residence is domicile in fact and intent to reside presently in Washington.

¶ 2 Here, by their own statements, neither Douglas nor Juraluck Robinson resided, or intended to reside, in Washington at the filing or during the pendency of the dissolution. Therefore, the trial court lacked subject matter jurisdiction. We reverse the denial of the motion to vacate the dissolution and vacate the dissolution decree.

FACTS

¶ 3 Douglas and Juraluck Robinson married on September 27, 1998, in Everett, Washington. When the couple married, Ms. Robinson left her life in Thailand and moved to the United States with her one-year-old son, Liew. Mr. Robinson, Ms. Robinson, and Liew moved to Connecticut in July 2004. Ms. Robinson testified that they sold their house before they moved. The couple purchased a home in Connecticut and enrolled Liew in school.

¶ 4 On January 31, 2005, Mr. Robinson filed a petition for dissolution in Lincoln County, Washington, listing Mr. Robinson's address as “3222 100th St. SE, Everett, WA 98208.” Clerk's Papers (CP) at 4. Ms. Robinson's address was listed as “640 Flanders Rd., Southington, CT 06450.” CP at 4. Ms. Robinson went to Thailand in March, returning to Connecticut at the end of the month. Ms. Robinson stated that Mr. Robinson locked her out of their Connecticut home. In April, Ms. Robinson drove to Washington to stay with friends. Ms. Robinson stayed with friends until August, when she and her son went to Thailand. Ms. Robinson and her son returned briefly to Washington, staying in a hotel, and then drove back to Connecticut in time for the start of school.

¶ 5 In June, Ms. Robinson filed divorce proceedings in Connecticut and incurred attorney fees of $3,000. Ms. Robinson testified that she was unaware of the proceedings in Washington because her signature on the joinder to the petition had been forged and she had never been served with the petition. On July 5, 2005, the trial court in Washington signed and entered findings of fact and conclusions of law, and a decree of dissolution. Ms. Robinson also states that in July, Mr. Robinson filed a motion to dismiss in Connecticut based on the decree entered in Washington.

¶ 6 Ms. Robinson remained in Connecticut during September and October. In November, Ms. Robinson drove back to her friends' home in Washington. Ms. Robinson has been in Washington ever since.

¶ 7 In November 2005, Ms. Robinson filed a motion to vacate the decree of dissolution in Lincoln County. Ms. Robinson alleged that her signature on a separation/divorce agreement was coerced and that her signature was forged on the joinder, agreed findings of fact and conclusions of law, and the agreed dissolution. She also filed a motion to change venue.

¶ 8 In response to Ms. Robinson's motions, Mr. Robinson filed his declaration of November 17, 2005, stating that: “I do not feel that the venue should be changed to Snohomish County as neither one of us were a resident of Washington State at the time the petition was filed, and [it] can be argued that Julie living temporarily at a [friend's] house has not established residency.” CP at 23. Mr. Robinson also stated that, “We moved to Connecticut,” and “[a]t no time during the proceedings were we permanent residents of Washington State.” CP at 23–24. Mr. Robinson also made the statement that: “We lived in Connecticut the entire time of the petition and 90 day waiting period and did not move from Washington to Connecticut.” CP at 24.

¶ 9 In her declaration, Ms. Robinson stated that: “Although at the time of filing of these documents, we were living in Connecticut, because I knew our marriage was over, it [has] always been my intention to return to Washington.” CP at 37.

¶ 10 The issue of whether the trial court had subject matter jurisdiction was considered during the hearing on the motion to vacate. The court denied Ms. Robinson's motion to vacate. In its findings and conclusions, the court determined that Ms. Robinson failed to show sufficient proof that jurisdiction was improper. The court also found that Ms. Robinson failed to provide sufficient evidence to prove the nine elements of fraud.

¶ 11 On appeal, Ms. Robinson contends the decree should be vacated because (1) the court lacked subject matter jurisdiction, (2) Mr. Robinson obtained her signature on the couple's separation agreement through fraud and forged her signature on the other documents filed in the dissolution action, (3) the distribution of assets was so grossly disproportionate as to be unfair, and (4) Mr. Robinson did not fully disclose the couple's property. Ms. Robinson also requests an award of fees on appeal.

ANALYSIS

¶ 12 Subject matter jurisdiction is the authority of the court to hear and determine the type of action before it. In re Adoption of Buehl, 87 Wash.2d 649, 655, 555 P.2d 1334 (1976). Although a court may ultimately decide that it lacks subject matter jurisdiction, a court always has the jurisdiction to determine whether subject matter jurisdiction is proper. In re Marriage of Kastanas, 78 Wash.App. 193, 201, 896 P.2d 726 (1995). A trial court's decision as to subject matter jurisdiction is a question of law that is reviewed de novo. Conom v. Snohomish County, 155 Wash.2d 154, 157, 118 P.3d 344 (2005).

¶ 13 A dissolution action is a statutory proceeding. A court has no jurisdiction except that which is conferred by the applicable statutes. Palmer v. Palmer, 42 Wash.2d 715, 716–17, 258 P.2d 475 (1953). RCW 26.09.030 determines subject matter jurisdiction ¹ in dissolution cases and provides that a party may file a petition to dissolve a marriage if he or she “(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 [ ] 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.” Jurisdiction to grant a divorce may be acquired after the action is commenced and need only exist by the time the decree is entered. In re Marriage of Ways, 85 Wash.2d 693, 700, 538 P.2d 1225 (1975). A judgment entered without subject matter jurisdiction is void. In re Marriage of Ortiz, 108 Wash.2d 643, 649, 740 P.2d 843 (1987).

¶ 14 Applying RCW 26.09.030, subject matter jurisdiction exists if either Mr. Robinson or Ms. Robinson was a resident of Washington during the pendency of the proceeding.

¶ 15 “Residence” in this context means “domicile.” In re Marriage of Strohmaier, 34 Wash.App. 14, 16, 659 P.2d 534 (1983). “The indispensable elements of domicile are residence in fact coupled with the intent to make a place of residence one's home.” Id. at 17, 659 P.2d 534. Simply stated, domicile has two aspects: physical presence and intent to reside. Id.; Stevens v. Stevens, 4 Wash.App. 79, 82, 480 P.2d 238 (1971). The intent to make a home must be an intent to make a home at the moment, not an intent to make a home in the future. Strohmaier, 34 Wash.App. at 17, 659 P.2d 534 (quoting In re Estate of Lassin, 33 Wash.2d 163, 167, 204 P.2d 1071 (1949)). “Once acquired, domicile is presumed to continue until changed.” Id. The burden of proving a change in domicile rests upon the one who asserts it, and the change in domicile must be shown by substantial evidence. Id.

¶ 16 Importantly, a decree of dissolution “ ‘is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicil is a jurisdictional fact.’ ” Mapes v. Mapes, 24 Wash.2d 743, 753, 167 P.2d 405 (1946) (quoting Williams v. North Carolina, 325 U.S. 226, 232, 65 S.Ct. 1092, 89 L.Ed. 1577 (1945)). Hence, we conduct a de novo review of the facts.

¶ 17 Proof of residence is essential to domicile. Id. at 748, 167 P.2d 405. Intent as to domicile may be shown by the testimony of the parties and by surrounding circumstances. Strohmaier, 34 Wash.App. at 17, 659 P.2d 534. “A proper subject of inquiry is whether the facts support the self-serving declaration of intent in such a way that the intent can be said to be genuine.” Id. The good faith of the party asserting the change in domicile should be considered, particularly in regard to the party's declaration of intent. Id.

¶ 18 We must assume that Mr. and Ms. Robinson were residents of Washington before they moved to Connecticut. Accordingly, it is Ms. Robinson who carries the burden of showing that she or Mr. Robinson changed their residency to Connecticut. The facts reveal that the parties sold their home in Washington, moved to Connecticut, and placed Liew in school. Mr. Robinson does not argue that he continued to reside in Washington, that he had a home in Washington, or that he intended to make Washington his home. Mr. Robinson admitted in his declaration that both he and Ms. Robinson moved to Connecticut in July 2004 and that both of them were not permanent residents of Washington.

¶ 19 While this statement is not a legal conclusion, this statement can be taken as genuine because it is not self-serving. Moreover, Mr. Robinson's statement that he and Ms. Robinson moved to Connecticut and were not residents of Washington was clearly against his interests with reference to the issue of jurisdiction. In short, considering the objective evidence, and Mr. Robinson's statements, Mr. Robinson changed his residence when he moved to Connecticut and did not reestablish residence in Washington.

¶ 20 Instead of arguing that he resided in Washington,...