Marriage of Thurston, In re

• Decision Date: 28 September 1998
• Docket Number: No. 37749-3-I,37749-3-I
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE OF Martyna M. THURSTON, Respondent, and Robert H. Thurston, Appellant.

Page 494

92 Wn.App. 494

963 P.2d 947

In re the MARRIAGE OF Martyna M. THURSTON, Respondent and Robert H. Thurston, Appellant.

No. 37749-3-I.

Court of Appeals of Washington Division 1.

Sept. 28, 1998.

Randolph Ian Gordon, Casey & Gordon, Bellevue, A. Kyle Johnson, Chism, Jacobson & Johnson, Seattle, for Appellant.

Edward Robert Skone, Kinzel, Allen, Skone & Searing, Bellevue, William Robert Bishin, William R. Bishin Inc., P.S., Seattle, for Respondent.

COX, Judge.

Robert Thurston and Martyna Mandel, ¹ former spouses, each appeal a 1995 decree that was entered following a trial that was conducted after the court partially vacated a 1989 dissolution decree. Primarily at issue are the propriety of the trial court's partial vacation of the 1989 decree and the characterization and division of the parties' property in the 1995 decree.

Because a material condition of the parties' 1989 decree did not occur and the nonoccurrence of that condition constituted an extraordinary circumstance, the court did not abuse its discretion by granting the CR 60(b)(11) motion. Further, the trial court's characterization of assets as expressed in its findings of fact is supported by substantial evidence, and the findings support the conclusions of law. Finally, the property division is just and equitable, considering all the circumstances. Accordingly, we affirm.

Mandel and Thurston married in 1976 and separated in November 1985. Both parties brought substantial assets to the marriage. In December 1989, the trial court entered a decree of dissolution that, among other things, divided property between Thurston and Mandel. The property division was based on a settlement between the parties that had previously been read into the record. The property described in the decree that is relevant to this appeal relates to the development of the Bellevue Athletic Club (BAC). More specifically at issue are Westersun Corporation, Pacific Recreation Associates (PRA), and Pacific Recreation Corporation (PRC).

Some 19 months after the entry of the 1989 decree, Mandel moved, pursuant to CR 60(b)(11), to vacate the property disposition provisions of the decree. She argued that the decree expressly provided for transfer to her of two units of the limited partnership, PRA, that Westersun owns. She contended that the corporation had not cooperated in the transfer, that efforts to negotiate resolution of this problem had proven to be unsuccessful, and that Thurston was taking the position that the decree did not provide for immediate transfer to her of the two partnership units. According to her, these events frustrated the terms of the property settlement agreement and decree. The court agreed and granted the motion, subject to Mandel's payment of terms to Thurston.

Thereafter, following the parties' failure to settle on a new division of property, the court conducted a trial. Following entry of new findings of fact and conclusions of law and a new decree, each party moved for reconsideration. The court substantially denied these motions, and each party appeals.

Subject Matter Jurisdiction and CR 60(b)

Thurston argues that the trial court lacked subject matter jurisdiction to vacate the 1989 decree of dissolution. He bases this argument on RCW 26.09.170. Because this argument ignores the power of superior courts to hear dissolution matters and is based on a misreading of the cited statute, we reject it.

The question of subject matter jurisdiction is a question of law that we review de novo. ² Subject matter jurisdiction is "the authority of the court to hear and determine the class of actions to which the case belongs." ³ Superior courts are courts of general jurisdiction. ⁴ As such, they have "the power to hear and determine all matters, legal and equitable, ... except in so far as these powers have been expressly denied." ⁵ By statute, superior courts sit as family courts to resolve disputes under RCW Title 26. ⁶ Because superior courts enjoy a broad constitutional and statutory grant of subject matter jurisdiction in the area of marital dissolution, "courts may only find a lack of jurisdiction under compelling circumstances, such as when it is explicitly limited by the Legislature or Congress." ⁷

Thurston ignores the constitutional and statutory grant of power to the superior courts to hear and determine all dissolution matters. Instead, he argues that a superior court's subject matter jurisdiction is expressly limited by RCW 26.09.170(1), which provides that:

The provisions as to property disposition may not be revoked or modified, unless the court finds the existence of conditions that justify the reopening of a judgment under the laws of this state.[ ⁸

Thurston's argument is based on a misreading of the statute. The statute does not limit the subject matter jurisdiction of superior courts. Rather, the plain words of the statute describe the circumstances under which a court that has subject matter jurisdiction may revoke or modify the property division provisions of a dissolution decree. The trial court had subject matter jurisdiction to consider Mandel's CR 60(b) motion.

The more pertinent question that Thurston raises is whether the court abused its discretion in granting Mandel's CR 60(b) motion. ⁹ We hold that it did not.

CR 60(b) provides, in relevant part:

On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: ...

(11) Any other reason justifying relief from the operation of the judgment.

Application of this provision is limited to " 'situations involving extraordinary circumstances not covered by any other section of the rule.' " ¹⁰ Such circumstances normally involve " ' "irregularities which are extraneous to the action of the court or go to the question of the regularity of its proceedings." ' " ¹¹ Errors of law may not be corrected by a CR 60 motion, but must be raised on appeal. ¹² Unlike motions brought pursuant to CR 60(b)(1)-(3), which must be brought within one year after the order or judgment was entered, a CR 60(b)(11) motion must be brought within a "reasonable time." ¹³

Here, 19 months after entry of the 1989 decree, Mandel moved, under CR 60(b)(11), to vacate the provision of that decree dealing with two partnership units. These units were of substantial value and a significant part of the total settlement. Under these facts, both the timing and the merits of Mandel's motion are at issue.

Thurston first argues that Mandel failed to bring the motion within a "reasonable time" as required by CR 60(b). We cannot agree.

Courts have observed that what constitutes a reasonable time depends on the facts of the case. ¹⁴ The mere passage of time between the entry of the judgment and the motion to set it aside is not controlling. Rather, a triggering event for the motion may arise well after entry of the judgment that the moving party seeks to vacate. ¹⁵ Major considerations that may be relevant in determining timeliness are whether the nonmoving party is prejudiced by the delay and whether the moving party has a good reason for failing to take action sooner. ¹⁶

Here, the trial court was clearly troubled by the long delay between the entry of the decree and the filing of the motion. ¹⁷ The trial judge noted that Mandel learned soon after the entry of the 1989 decree that Thurston's brother, who was hostile to Thurston and who was not a party before the court, would not cooperate in the transfer of the two partnership units held in the name of Westersun. Thurston's brother had a significant interest in Westersun and had the ability to thwart transfer of the partnership units held by the corporation to Mandel. The trial court also noted Mandel's efforts, over time and before bringing the motion, to reach an alternate agreement with Thurston without court intervention. From our review of the record, it appears that the event that triggered the motion to vacate was Thurston's new statement of position shortly before that motion. He indicated that the 1989 decree was not intended to immediately convey any interest in the partnership units to Mandel. Rather, according to him, she was to receive those units at a future time. This statement appears to be at odds with the 1989 decree and the colloquy among counsel and the judge who entered that decree.

Thurston relies on Delzona Corp. v. Sacks ¹⁸ to support his claim that Mandel's motion was not timely. But that case is distinguishable.

There, in a Rule 60 motion brought more than two years after the entry of judgment, the defendants claimed that the Delzona Corporation lacked authority to sell certain realty to recover its judgment. But six months after the entry of judgment, the judgment debtors had cooperated in the very sale that was the subject of their Rule 60 motion. The court concluded that, because the judgment debtors knew all of the facts that formed the basis of their Rule 60 motion a year and a half before moving for vacation, the motion was untimely. Here, in contrast, Mandel did not learn of Thurston's new statement of position regarding the transfer of the units until shortly before she brought her CR 60(b)(11) motion.

Here, the trial court noted both in its oral and written decisions ¹⁹ that it was exercising its equitable power under the rule to grant the motion. There was no prejudice to Thurston by virtue of the delay between his new statement of position and the motion. To the extent that there was any inconvenience to Thurston, the trial court dealt with that by granting terms, a decision neither party to this appeal challenges. Moreover, the court could have reasonably concluded that Thurston's recently announced change of position regarding the transfer of the units justified the timing of Mandel's motion. On these particular facts, the court's decision is not untenable. ²⁰ The court did not abuse its discretion in...