[No. 66268-6-I. Division One. April 2, 2012.]
January 5, 2012, Oral Argument
David G. Porter, for appellant.
Philip J. Buri (of Buri Funston Mumford PLLC), for respondent.
Author: Anne Ellington, J.
We concur: Stephen J. Dwyer, C.J., Mary Kay Becker, J. ¶1 ELLINGTON, J. -- Petitions for marital dissolution are within the broad subject matter jurisdiction of the superior court. Failure to adhere strictly to the statutory framework governing such actions, including the 90-day waiting period, does not cause the court to lose its constitutional powers or render its decree void. Nor is such an error a manifest constitutional issue permitting review for the first time in this court. ¶2 The statutes require a 90-day "cooling off" period before the court may enter a decree of dissolution. Here, more than 500 days had passed since the filing of a petition for legal separation, but only 82 days had passed since the petition was amended to seek dissolution. When a separation petition is amended to seek dissolution, it is unclear whether the statutes contemplate a new waiting period. It is also unclear whether it matters that the amended petition was jointly filed. ¶3 In any case, the alleged error could easily have been avoided had the issue been timely raised below. The decree is not void, the issue was not raised below, and this court can grant no effective relief. BACKGROUND ¶4 Tim Buecking and Amy Westman (formerly Buecking) were married for nine years and have three minor children. ¶5 On December 12, 2008, Westman filed and properly served a petition for legal separation. The court entered a temporary parenting plan and other orders in January 2009. On April 2, 2010, Westman filed an amended petition for dissolution, replacing the October 2008 petition for legal separation. Buecking signed the petition and marked the "joinder" box, stating, "I, the respondent, agree to the filing of an Amended Petition for Dissolution of the marriage instead of legal separation." ¶6 On May 19, 2010, the parties had a one-day bench trial. Only Westman and Buecking testified. On June 23, 2010, the court entered findings of fact and conclusions of law, an order of child support, a final parenting plan, and a decree of dissolution. ¶7 Disappointed in the results, Buecking appealed. He now contends the court lacked authority to enter the decree. DISCUSSION [1-3] ¶8 Whether a court has subject matter jurisdiction is a question of law. Absent such jurisdiction, the court's judgment is void. [4-9] ¶9 By statute, the court is empowered to act on a petition for dissolution only when certain requirements have been met. One of those is a cooling off period: When a party who (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 or in a domestic partnership 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, petitions for a dissolution of marriage or dissolution of domestic partnership, and alleges that the marriage or domestic partnership is irretrievably broken and when ninety days have elapsed since the petition was filed and from the date when service of summons was made upon the respondent or the first publication of summons was made, the court shall proceed as follows. ¶10 At issue here is the meaning of the language requiring that "ninety days have elapsed since the petition was filed" ¶11 "'Subject matter jurisdiction' is 'the authority of the court to hear and determine the class of actions to which the case belongs.'" ¶12 "If the type of controversy is within the subject matter jurisdiction, then all other defects or errors go to something other than subject matter jurisdiction." ¶13 Affirmed. ¶14 The balance of this opinion having no precedential value, the panel has determined it should not be published in accordance with RCW 2.06.040. ¶15 Buecking contends the court abused its discretion in its property division, calculation of child support, and by making reciprocal a restriction in the parenting plan. DIVISION OF PROPERTY ¶16 The couple owned four properties in Whatcom County: a house at 3090 Mt. Vista Drive; a house at 2604 Lummi View Drive; a house at 2618 Michigan Street; and undeveloped property located at 3980 Pipeline Road. They lived with their children in the Michigan Street home and rented out the houses on Mt. Vista Drive and Lummi View Drive. The pretrial orders required Buecking to pay the first and second mortgages on the Michigan Street property as maintenance and to "make sure that the mortgages on the home are current." ¶17 Buecking raises several issues with respect to the court's distribution of the equity and lost rents in the couple's property on Mt. Vista Drive. He argues the court erred by characterizing it as community property, awarding an offset of $25,000 to Westman for her share of the equity, and awarding Westman $2,250 in lost rent. We review these claims for abuse of discretion. Character of the Property ¶18 The character of property as separate or community is determined at its date of acquisition. ¶19 Although Buecking purchased the property with his brother before the marriage, the record indicates that the equity in the property belonged to the community. The evidence is that Buecking's brother gifted his interest to Buecking and Westman after they married. Though her name did not originally appear on the deed, Westman testified that she was present at closing and contributed to the mortgage payments before marriage. The parties later added her name to the deed and mortgage. The parties both testified they considered the property "our house," and Westman signed rental agreements as "lessor." ¶20 Thus, even if the court was technically incorrect in this characterization, it properly determined that the equity in the property belonged to the community. Lost Rents ¶21 Buecking's failure to collect rent and pay the mortgage violated the pretrial orders and caused the property to fall into foreclosure. The court awarded Westman $2,250 "as Wife's community property share of lost rents on the 3090 Mt. Vista Drive property from December 2009 to May 2010 based on Husband's admission that the home sat empty and was not rented during this period of time." ¶22 Buecking also failed to pay the mortgages on the Michigan Street property in lieu of maintenance as required by pretrial orders, and this property also fell into foreclosure. Buecking's conduct jeopardized Westman's ability to reside with the children in the family home, or any of the marital properties. ¶23 Buecking contends the court should not have awarded Westman lost rents on the Mt. Vista and Lummi View Drive homes because none were collected. He relies on In re Marriage of White for the proposition that the court may not distribute an asset that does not exist at the time of trial. Foreclosure ¶24 Buecking next argues the court erred in awarding Westman her share of the equity in the Mt. Vista Drive property because the home was in foreclosure at the time of trial. He asserts that "[t]he property went into foreclosure in large part because Amy had no employment income and because of the cut back in Tim's employment after the economy soured in 2008." ¶25 First, the couple had been able to pay their mortgages during the marriage, even though Westman had no income. Second, there was no evidence that Buecking's employment suffered for any reason other than his own refusal to work to capacity. Third, Buecking admitted he had not completed his own portion of the loan modification paperwork, and had last communicated with Westman about a modification in early summer of 2009. Further, Westman testified Buecking "made several statements to me saying that he would rather let everything go to foreclosure, rather than let me have anything of his." ¶26 Buecking also suggests Westman waived her interest in the now-foreclosed properties. He cites In re Marriage of Kaseburg, which held that the trial court abused its discretion by awarding the wife her interest in foreclosed property when it no longer belonged to the community at the time of trial. ¶27 Finally, Buecking asks this court to "strike the maintenance arrears because Amy had the benefit of living in the Michigan Street property and the bank refused to accept partial payments during the foreclosure for Tim." CHILD SUPPORT ¶28 For the purposes of calculating child support, the court found Buecking was voluntarily underemployed and imputed income to him. Though Westman worked only part-time, the court found she was not voluntarily underemployed. Buecking challenges each decision. ¶29 We defer to the trial court's discretion in child support decisions unless that discretion is exercised in an untenable or unreasonable way. ¶30 A court will impute income to a parent for purposes of child support when the parent is voluntarily unemployed or underemployed. ¶31 Buecking contends it is standard in the refinery industry to work long hours for relatively short periods of time, followed by periods of unemployment. He argues the court therefore should not have found him voluntarily underemployed. But the court did not base its ruling on periodic unemployment. Rather, the evidence was that following their separation, Buecking declined to work at the same capacity as during the marriage. Before, he regularly traveled for work; thereafter, he refused to take jobs out of state. Before, he supplemented his refinery income with side businesses, including landscaping and commercial fishing. Thereafter, although he still owned the necessary equipment, Buecking testified he no longer took side jobs. Based on this evidence, the court reasonably found Buecking was "not working to capacity." ¶32 The court imputed to Buecking an income of $7,000 per month. Buecking contends that was too much. The evidence amply supports the court's decision. First, Buecking failed to provide the court with complete income information. ¶33 The court found that Buecking's representation of his income at trial was not credible, especially given that he does not keep accurate records, he failed to file tax returns, and he failed to produce financial information in discovery. Accordingly, the court concluded: "Taking into consideration his proven ability to earn $6,853 per month and $8,422 per month, it is reasonable to assess an earning capacity of $7,000 per month to Husband for purposes of calculating maintenance and child support." ¶34 Buecking next argues the court should have imputed income to Westman. Westman stopped working in October 1999 because the couple agreed she should stay home to raise their children. By the time they separated, Westman had been out of the work force for over 10 years. Though she had applied for several full-time jobs, PARENTING PLAN ¶35 During the separation, Westman dated a man who had once been charged with child molestation and child rape. ¶36 Buecking requested a similar provision in the parenting plan. Westman testified she had terminated her relationship with the man and did not intend to see him again. The court ordered that "[n]either parent shall allow the children to have any contact whatsoever with [the former boyfriend]." ¶37 Buecking argues the court erred by making this provision reciprocal "because there is no evidence that Tim wanted to allow any contact between [the former boyfriend] and the children." ¶38 Neither parent wished the children to have contact with this man. Based on its understanding of the facts, the court entered an order restricting all parties from doing so. Buecking fails to show the court abused its discretion. ATTORNEY FEES ¶39 Westman requests attorney fees under RCW 26.09.140. In exercising our discretion in making such an award, we consider the parties' relative ability to pay and the arguable merit of the issues raised on appeal. ¶40 Affirmed. BECKER and DWYER, JJ., concur.