In Re The Marriage Of: Roxanne Shortway, V William Shortway , 423 P.3d 270 ( 2018 )

Filed
Washington State
Court of Appeals
Division Two
May 15, 2018
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
In the Matter of the Marriage of No. 50059-1-II
ROXANNE SHORTWAY,
Appellant,
and
WILLIAM SHORTWAY,
UNPUBLISHED OPINION
Respondent.
WORSWICK, J. — Roxanne Shortway appeals a superior court order that determined the
Department of Social and Health Services, Division of Child Support (Department) lacked
jurisdiction to enter an administrative order. The administrative order established the amount of
day care expense arrearages her ex-husband, William Shortway, owed and also fixed a monthly
dollar amount for ongoing day care expenses.1 Rather than seek review of the administrative
order, William filed a motion in superior court challenging the order. Roxanne argues that
because William did not seek proper review of the Department order and because the
Department had authority to enter the order, the doctrine of res judicata precludes William from
collaterally attacking the order in superior court.
We hold that the superior court abused its discretion by determining that the Department
lacked the jurisdiction to enter its order and erred by allowing William to collaterally attack the
1
Because Roxanne and William share the same last name, we refer to them by their first names
for clarity. No disrespect is intended.
No. 50059-1-II
valid Department order after the order became final. We also hold that the superior court erred
by entering a judgment against Roxanne based on the improper collateral attack. We, reverse the
superior court’s February 2017 order invalidating the Department’s final order.
FACTS
Roxanne and William Shortway were married and had one child together, S.S. The
couple divorced, and the Kitsap County Superior Court entered an order of child support and a
parenting plan in July 2012. The superior court ordered William to pay $400 in child support
plus 71 percent of all day care expenses each month. Roxanne and S.S. reside in Victoria,
British Columbia, Canada.
Litigation between William and Roxanne has been extensive. In 2015, William filed a
petition to modify the parenting plan. During the modification proceedings, William sent
interrogatories to Roxanne seeking information regarding a day care expense subsidy she may
have received from the Canadian government.
Around the same time, Roxanne initiated an action with the Department seeking to
recover unpaid day care expenses from William. In November 2015, the Department sent
William a Notice of Support Owed explaining that William owed $4,480 in day care expense
arrearages and also informed William that he would be required to pay $345 each month as a
fixed dollar amount for day care expenses.
William then filed a motion in the superior court seeking to restrain the Department from
garnishing his wages pending Roxanne’s answers to his interrogatories about receiving a subsidy
from the Canadian government for day care expenses. William also requested that the court
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compel Roxanne to the answer interrogatories. The court granted William’s motion and
restrained the Department from proceeding.
Roxanne eventually answered the interrogatories, revealing that she received a day care
expense subsidy from the Canadian government. Based on this information, William filed a
motion in superior court seeking to determine any day care expense arrearages or overpayments.
William argued that Roxanne’s government subsidy reduced her overall day care expenses, and
thus, William had overpaid Roxanne. William also argued that he should not be obligated to pay
for various camps that S.S. attended because the camps were “extra-curricular activities” and not
day care expenses. Clerk’s Papers (CP) at 12.
In January 2016, the superior court held a hearing on William’s earlier petition to modify
the parenting plan. The court entered a new final parenting plan reflecting the modifications.
Despite that the hearing was a parenting plan modification hearing, the court made a partial oral
ruling on the day care expense issue and stated that William was entitled to reimbursement for
the government day care subsidy that Roxanne received. However, the court allowed Roxanne
to submit supplemental information about the camps to prove that the camps were actually used
in lieu of day care and were not extracurricular in nature.
In April 2016, while William’s motion to determine arrearages and overpayment of day
care expenses was still pending, Roxanne filed numerous motions with the superior court. The
superior court held a hearing on her motions, denied some, and declined to rule on others
because the issues were scheduled to be heard by the court at a later date.2 Roxanne also filed a
2
These motions are not germane to this appeal.
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No. 50059-1-II
petition to modify the July 2012 child support order, requesting that the court adjust William’s
child support obligation and order William to pay arrearages for any support amounts owed.3
On June 13, 2016 the superior court heard argument on William’s motion on day care
expense arrearages and overpayment. The court ruled that William was not obligated to pay for
the camps because they were not day care expenses. The court calculated that William had
overpaid Roxanne in day care expenses in the amount of $1,158.54 as of February 28, 2016. The
court also established a methodology for calculating the appropriate currency exchange rates for
determining the day care expenses and ordered that “the exchange rate shall be determined by
the day the purchase or original payment was made.” CP at 386-87. The court further reiterated
William’s obligation to pay 71 percent of total day care expenses as ordered under the existing
July 2012 order of child support. On August 29, 2016, the superior court entered an order
reflecting its rulings.
On August 30, 2016, the day after the superior court entered its order on day care expense
arrearages, a Department administrative law judge (ALJ) held a hearing on Roxanne’s 2015
Department action against William. On October 17, the ALJ issued an order requiring William
to pay Roxanne day care expense arrearages and setting a fixed dollar amount for future day care
expenses.
As a basis for the Department’s jurisdiction, the ALJ cited to RCW 74.20A.055 and
RCW 74.20A.059. RCW 74.20A.055 provides in part:
(1) The secretary may, if there is no order that establishes the responsible parent’s support
obligation or specifically relieves the responsible parent of a support obligation . . . , serve
on the responsible parent or parents and custodial parent a notice and finding of financial
3
Based on our record on appeal, it appears the superior court has not yet ruled on Roxanne’s
petition to modify the child support order.
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No. 50059-1-II
responsibility . . . . This notice and finding shall relate to the support debt accrued and/or
accruing under this chapter and/or RCW 26.16.205, including periodic payments to be
made in the future.
RCW 74.20A.059(1)(a) states that the Department has the authority to establish child support so
long as the Department order has “not been superseded by a superior court order.” The ALJ also
noted that WAC 388-14A-3320(6)(c) authorizes the Department to determine “the amount of
monthly support as a fixed dollar amount,” and further cited RCW 26.23.110(1)(a), which allows
the Department to act where a support order “[d]oes not state the current and future support
obligation as a fixed dollar amount.”
The ALJ concluded that because the superior court order did not address a time period
after February 28, 2016, the Department had the authority under RCW 74.20A.055 and RCW
74.20A.059 to determine the amount of day care expense arrearages William owed from March
2016 forward. The ALJ also concluded that because the superior court’s order did not express
the day care expense obligation as a fixed dollar amount, the Department had the authority under
WAC 388-14A-3320(6)(c) and RCW 26.23.110(1)(a) to set a fixed monthly dollar amount for
William to pay going forward.
In determining the arrearages and the fixed monthly dollar amount, the ALJ applied the
superior court’s order that William pay 71 percent of S.S.’s day care expenses. The ALJ
attempted to apply the superior court’s methodology of calculating the currency exchange rate as
set forth in the superior court’s August 2016 order, but the ALJ erroneously applied the wrong
currency exchange rate which resulted in an order requiring William to pay more than the ALJ
intended. The Department ultimately ordered William to pay $3,084.46 in day care arrearages
plus a fixed amount of $421.70 per month for day care expenses beginning October 2016.
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No. 50059-1-II
William never sought administrative review of the Department order. Instead, after the
ALJ entered the order, William filed a motion in the superior court titled “Motion Regarding
Daycare Arrearages and the Administrative Ruling.” CP at 454. In the motion, William
requested an order from the court establishing a current day care expense arrearage amount, a
determination of an offset for amounts he had already paid, and challenged the Department’s
determination that he owed a fixed dollar amount for day care expenses. William argued that
Roxanne’s reliance on the Department order was improper because the superior court’s August
2016 order “controls” over the proceedings. CP at 455.
Roxanne responded that because William failed to properly and timely seek
administrative review of the Department order, his motion should be dismissed as an improper
petition for judicial review of an administrative hearing. Roxanne asserted that the Department
order was proper because it covered a different period of time than the period covered in the
superior court order.
On February 3, 2017, the superior court entered a written order containing findings of
fact and conclusions of law. The court concluded that the Department lacked jurisdiction to
enter an order regarding William’s day care expense obligation because the superior court’s July
2012 and August 2016 orders were preexisting and were not “silent.”4 CP at 527. The superior
court vacated the Department order and entered a judgment against Roxanne reflecting an
4
A court order is “silent” where the superior court order does not cover the same time period that
is addressed in an administrative proceeding. See Dep’t of Soc. & Health Servs. v. Handy, 62
Wash. App. 105, 110, 813 P.2d 610 (1991). When a superior court order is silent, the Department
has authority to proceed. Handy, 62 Wash. App. at 110; RCW 74.20A.055.
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No. 50059-1-II
amount she owed William after offsetting the amount it determined William had overpaid in day
care expenses.
Roxanne appeals the superior court’s February 2017 order.
ANALYSIS
Roxanne argues that the superior court erroneously invalidated the Department order for
lack of jurisdiction. Roxanne asserts that the Department had the authority to enter its order
because the existing superior court orders were “silent” as to the time period for which the
Department ordered covered. Br. of App. at 25. Roxanne also argues that the Department had
the authority to enter a fixed monthly amount for day care expenses. Roxanne further asserts
that because William failed to properly seek judicial review of the Department’s final
administrative order, the doctrine of res judicata bars William’s collateral attack of the
Department order in the superior court.
William argues that res judicata does not apply to this case because Roxanne initiated
concurrent litigation in both the superior court and in the Department. We hold that res judicata
bars Williams’s collateral attack of the Department order. Therefore, the superior court erred by
invalidating the Department’s final order and in entering a judgement against Roxanne.
I. STANDARD OF REVIEW
We review a trial court’s child support order for an abuse of discretion. In re Marriage of
Fiorito, 112 Wash. App. 657, 663, 50 P.3d 298 (2002). A court abuses its discretion if its decision
is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of Jess,
136 Wash. App. 922, 926, 151 P.3d 240 (2007). If a court’s ruling is based on an erroneous view
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No. 50059-1-II
of the law, it is necessarily an abuse of discretion. In re Marriage of Herridge, 169 Wash. App.
290, 296-97, 279 P.3d 956 (2012).
Jurisdiction is the power to hear and determine a cause or proceeding. State v. Golden,
112 Wash. App. 68, 72, 47 P.3d 587 (2002). Jurisdictional challenges are questions of law that we
review de novo. Golden, 112 Wash. App. at 72. Accordingly, although we review the superior
court’s February 2017 order for abuse of discretion, we review de novo the superior court’s
conclusion that the Department lacked jurisdiction.
II. AUTHORITY OF THE DEPARTMENT
Roxanne argues that the superior court erred when it ruled that the Department did not
have jurisdiction to enter its order. Roxanne specifically argues that because the superior court’s
August 2016 order did not address day care expense arrearages for the months of March through
September 2017, the superior court’s order was “silent” on that issue and the Department had the
authority to proceed administratively. Roxanne further argues that the superior court order also
did not address William’s future day care expense obligation as a fixed amount, and therefore,
the Department again had the authority to order William to pay a fixed monthly amount for day
care expenses. We agree and hold that the Department had jurisdiction to enter its order.
“[A]dministrative agencies, being ‘creatures of statute’, possess only such powers and
authority as are expressly granted by statute or necessarily implied therein.” In re Marriage of
Aldrich, 72 Wash. App. 132, 137-38, 864 P.2d 388 (1993) (alteration in original) (quoting Taylor
v. Morris, 88 Wash. 2d 586, 588, 564 P.2d 795 (1977)). Various statutes grant the Department the
power to enforce a parent’s child support obligation judicially or administratively, regardless of
the existence of a superior court order. RCW 74.20A.040; RCW 74.20A.055. Additionally,
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where a superior court order does not cover the same time period that is addressed in an
administrative proceeding, the superior court order is “silent” resulting in an “absence” of a
superior court order, and the Department has authority to proceed. Dep’t of Soc. & Health
Servs. v. Handy, 62 Wash. App. 105, 110, 813 P.2d 610 (1991); See RCW 74.20A.055(1).
However, the Department must compute support according to an existing court order’s
provisions. RCW 74.20A.030(1); RCW 74.20A.040(1), (3)(a).
A. Existing Superior Court Orders
Contrary to William’s assertions and the superior court’s conclusion, the existence of the
July 2012 and August 2016 superior court orders do not deprive the Department of the authority
to proceed administratively as to the day care expense arrearage calculations for March through
September 2016 and as to calculating a future fixed dollar amount for monthly day care
expenses.
Several cases address the interplay between existing superior court support orders and the
authority of the Department to establish and collect support obligations. See Handy, 62 Wn.
App. at 111; see also Robinette v. Harsin, 136 Wash. App. 67, 71, 147 P.3d 638 (2006); Brown v.
Dep’t of Soc. & Health Servs., 136 Wash. App. 895, 897-98, 151 P.3d 235 (2007). In Handy, the
court recognized that a holding that the existence of a superior court support order “vitiates all
authority of [the Department] to establish and collect a support obligation” would seriously
frustrate the purpose of the statutes authorizing the Department’s ability to act. 62 Wash. App. at
110. Accordingly, the mere existence of the superior court’s July 2012 and August 2016 orders
does not divest the Department of the authority to act.
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No. 50059-1-II
B. March through September Arrearages
The Department had the authority to order William to pay day care expense arrearages
not covered by an existing court order. RCW 74.20A.040 authorizes the Department to collect
child support arrearages and debts. The superior court’s August 2016 order addressed William’s
arrearages only through February 2016 and did not address day care expense arrearages for the
months of March through September 2016. Because the superior court order was silent by not
addressing the time periods of March through September 2016, the ALJ properly relied on RCW
74.20A.040 to enter an order on arrearages. Handy, 62 Wash. App. at 110. Thus, the Department
had the authority to address the arrearages in its final order.
C. Monthly Fixed Dollar Amount
The Department similarly had the authority to order William to pay a fixed monthly
amount in day care expenses. RCW 26.23.110 allows the Department to state a fixed dollar
amount for support obligations when a superior court order does not state the obligation as a
fixed dollar amount. Both the superior court’s July 2012 of August 2016 orders required
William to pay 71 percent of day care expenses and did not state a monthly fixed dollar amount
of day care expenses. In its final order, citing RCW 26.23.110, the ALJ ordered William to pay
a fixed monthly amount of day care expenses. Therefore, the ALJ properly exercised its
authority under RCW 26.23.110 in ordering William to pay day care expenses as a fixed monthly
amount.
Because the existing superior court orders did not address day care expense arrearages
from March through September 2016 and did not state day care expenses as a fixed dollar
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No. 50059-1-II
amount, the Department had the authority to address those issues. Accordingly, the superior
court abused its discretion concluding that the Department lacked authority in this case.
III. DEPARTMENT ERROR
Although the Department had the authority to act, the Department order was
mathematically incorrect. Where there is an existing court order, the Department must compute
child support according to the court order’s provisions. RCW 74.20A.030(1); RCW
74.20A.040(1).
Here, the ALJ applied the incorrect U.S. to Canadian currency rate. The August 2016
order stated that “the exchange rate shall be determined by the day the purchase or original
payment was made.” CP at 386-87. The ALJ appears to have applied the average currency rate
for each month rather than applying the currency rate in effect on the date of the purchase of day
care. The ALJ also applied the rate of conversion from Canadian dollars to U.S. dollars rather
than properly applying the rate of conversion from U.S. dollars to Canadian dollars, as required
under the superior court order. This error resulted in an erroneously increased U.S. dollar
amount owed for day care expenses. Because of these errors, the Department failed to compute
child support according to the provisions of the superior court order.
Additionally, the Department stated that the amount that Roxanne paid in day care for the
summer months of June through August totaled $600 Canadian dollars per month and the
amount she paid for the months of September through May totaled $400 Canadian dollars per
month. In its earlier ruling, the superior court ordered that William was entitled to
reimbursement for Roxanne’s use of government day care subsidy. There is no way to glean
from the Department order if the ALJ considered any offset for William due to Roxanne’s
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receipt of the government subsidy when determining the fixed monthly rate for day care
expenses.
So, although the Department had the authority to enter an order on arrearages and to fix a
monthly amount, it erred when it failed to compute the amounts in accord with the superior
court’s order. However, because the Department did not lack authority over the issues, William
was required to seek proper review of the Department order to contest its conclusions.
IV. RES JUDICATA PRECLUDES ATTACK OF DEPARTMENT ORDER
Roxanne argues that because William failed to properly seek review of the Department’s
final administrative order, the doctrine of res judicata should have applied to bar his attack of the
Department order in the superior court. William argues, without citation to any authority, that
because Roxanne initiated concurrent litigation on the same issues in both the superior court and
in the Department, res judicata does not apply.5 We agree with Roxanne and hold that res
judicata bars William’s collateral attack of the Department order.
Res judicata is a doctrine that prevents relitigation of already determined causes. Richert
v. Tacoma Power Util., 179 Wash. App. 694, 704, 319 P.3d 882 (2014). It applies to the
quasijudicial decision of an administrative tribunal as well as to the judicial decision of a court.
Aldrich, 72 Wash. App. at 138. Res judicata precludes litigation by collateral attack, and generally
5
William asserts that Roxanne is precluded from arguing that res judicata applies to bar his
attack of the Department order in the superior court because Roxanne initiated “concurrent
litigation” in both the superior court and within the Department. William cites to no authority
supporting his argument. There is support to the contrary however. Courts have already
established that a party can have an ongoing superior court action in conjunction with an ongoing
Department action. See Dep’t of Soc. & Health Servs. v. Handy, 62 Wash. App. at 111 (detailing
that a petitioner properly initiated a Department support action while there was an ongoing
superior court action).
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speaking, a motion filed in a different action constitutes a collateral attack. Aldrich, 72 Wn.
App. at 138. Res judicata operates at such time as the decision in question becomes final.
Aldrich, 72 Wash. App. at 138.
The doctrine of res judicata applies “where a prior final judgment is identical to the
challenged action in ‘(1) subject matter, (2) cause of action, (3) persons and parties, and (4) the
quality of the persons for or against whom the claim is made.’” Lynn v. Dep’t of Labor & Indus.,
130 Wash. App. 829, 836, 125 P.3d 202 (2005) (internal quotation marks omitted) (quoting
Loveridge v. Fred Meyer, Inc., 125 Wash. 2d 759, 763, 887 P.2d 898 (1995)). Whether an action is
barred by res judicata is a question of law we review de novo. Lynn, 130 Wash. App. at 837.
The only res judicata element at issue here is whether a prior final judgment existed and
precluded William’s attack in superior court. The parties do not dispute any other elements of
res judicata and therefore we address only the disputed element.
The Department order states:
Superior Court Review: You also have the right to appeal this Final Order
to superior court within thirty (30) calendar days of the mailing date of the Final
Order. RCW 34.05.542(3) and WAC XXX-XX-XXXX. You do not need to file a
request for reconsideration before requesting review in superior court. DSHS
cannot request superior court review. Please refer to WAC XXX-XX-XXXX for
information about how to serve your request for superior court review.
CP at 468. Additionally, WAC XXX-XX-XXXX(1) states:
You must file and serve the petition for judicial review of a final order
within thirty days after the date it was mailed. You must file your petition for
judicial review with the court. You must serve copies of your petition on DSHS,
the office of the attorney general, and all other parties.
After the ALJ rendered its ruling on October 17, the Department order became final.
William never filed a petition for reconsideration nor a petition for judicial review. Although
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No. 50059-1-II
William did file a motion in the superior court within 30 days of the mailing of the Department
order, William did not follow the procedures required to properly seek judicial review under
RCW 34.05.542(3) and WAC XXX-XX-XXXX. William failed to file a petition with the court
within 30 days, or serve copies of a petition on the Department, the attorney general, and
Roxanne.
Because William failed to properly seek judicial review of the final Department order
and, instead, improperly filed a motion in the superior court challenging the Department order,
res judicata applies to preclude William’s improper collateral attack of the order in superior
court.
CONCLUSION
We hold that the superior court abused its discretion by misapplying the law when it
ruled that the Department was without jurisdiction to enter its final order.6 Additionally, because
the Department had the authority to enter an order on arrearages and a fixed monthly amount, the
superior court abused its discretion in entering a judgment against Roxanne based on William’s
improper collateral attack. We hold that the Department order is binding unless and until a
superseding superior court order is entered or until the Department modifies its existing order.
We, therefore, reverse the superior court’s February 2017 order invalidating the Department’s
final order.
6
Nothing in this opinion should be taken to mean that William is not entitled to seek a new
superior court child support order that would supersede that Department’s final order on a
prospective basis. See RCW 74.20A.055(7). Additionally, it should be noted that Roxanne’s
petition to modify the child support order is still pending with the superior court, the outcome of
which may affect the Department’s final order. See RCW 74.20A.055(7).
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
Worswick, J.
We concur:
Maxa, C.J.
Lee, J.
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