Gloria Hensley Brinkley v. Robert Hensley

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
GLORIA HENSLEY nka BRINKLEY, No. 71525-9-1
Respondent, DIVISION ONE
v.
ROBERT HENSLEY, UNPUBLISHED
Appellant. FILED: November 24, 2014
Cox, J. - Motions for relief from a final judgment must be brought "within a
reasonable time."1 In this case, Robert Hensley seeks to collaterally attack the
Final Order of Child Support entered on January 31, 2003. Because he fails in
his burden to show that he brought his CR 60(b) motion within a reasonable time,
we hold that the trial court did not abuse its discretion in denying the motion. We
affirm.
On January 31, 2003, the trial court entered its final order of child support
in this dissolution proceeding. The order was a final judgment for monetary
amounts owed by Robert Hensley to Gloria Hensley (Brinkley).2 There was no
appeal from that order.
In 2013, Brinkley moved for an order assessing interest on past due child
support obligations that were imposed in the January 31, 2003 final order. A
court commissioner initially ruled that Brinkley could not collect the interest. On
1 CR 60(b).
2 Due to the similarity in names, for clarity, this opinion uses the name
"Brinkley" to refer to the respondent.
No. 71525-9-1/2
her motion to revise the commissioner's ruling, the superior court judge revised
the initial decision. Specifically, the court awarded delinquent interest and other
amounts.
Robert Hensley then moved for reconsideration pursuant to CR 59(1), CR
60(b)(4), and CR 60(b)(5). Specifically, he sought to attack the final order of
January 2003. The court denied the motion.
Robert Hensley appeals.
Robert Hensley primarily seeks to collaterally attack the 2003 final order of
child support as a defense to the November 6, 2013 order awarding interest. He
claims that the court's January 2003 final order of child support does not match
its verdict. He argues that he has three grounds to attack the order: CR 59(1),
CR 60(b)(4), "and CR 60(b)(5). None are persuasive.
CR 60(b)(4)
Robert Hensley argues that CR 60(b)(4) allows him to collaterally attack
the child support order and judgment entered in 2003. Because he fails to
persuasively argue why his motion is timely, we disagree.
CR 60 provides that "[o]n 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."3 Under CR 60(b)(4), a party may get relief ifthe order or final
judgment was obtained through fraud.4
3 CR 60(b).
4 CR 60(b)(4).
No. 71525-9-1/3
A motion under CR 60(b) must be "made within a reasonable time."5 What
is "reasonable" depends on the facts of the case.6 "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."7
This court has held that 10 years is an unreasonable amount of time to
bring a CR 60(b) motion when the moving party "has not stated any good reason
for failing to take appropriate action sooner."8
This court reviews a CR 60(b) motion for abuse of discretion.9 "A trial
court abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons."10 "An appeal from denial of a CR
60(b) motion is limited to the propriety of the denial not the impropriety of the
underlying judgment."11
Robert Hensley first raised CR 60(b)(4) as part of his motion for
reconsideration in late 2013, more than 10 years after the January 2003 final
5 CR 60(b).
6 In re Marriage of Thurston, 92 Wn. App. 494, 500, 963 P.2d 947 (1998).
7]o\
8 In re Detention of Ward. 125 Wn. App. 374, 380-81, 104P.3d751
(2005).
9 See Thurston, 92 Wn. App. at 499.
10 In re Marriage of Littlefield. 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
11 Biurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).
No. 71525-9-1/4
order of child support was entered. The two major considerations in timeliness
are the reasons for delay, and prejudice to the non-moving party.12
In this case, Robert Hensley offers no explanation why he failed to try to
correct the final order for more than 10 years. According to Robert Hensley, the
order overstates the amounts Robert Hensley owed by more than $10,000. This
represents more than half of the total back payments Robert Hensley owed
under the order. This alleged overstatement would have been apparent from the
face of the order since January 2003. He simply fails in his burden to show his
motion is timely.13 Thus, we need not address prejudice. Accordingly, the trial
court did not abuse its discretion by denying Robert Hensley's motion for
reconsideration.
CR 60(b)(5)
Robert Hensley next argues that CR 60(b)(5) allows him to collaterally
attack the judgment from 2003. Because he again fails to show that his motion is
timely, we disagree.
CR 60(b)(5) allows relief from void orders or final judgments.14 Motions
under CR 60(b)(5) are not subject to the "reasonable time" limitation in CR 60(b)
despite the plain language of the rule.15
12 Thurston, 92 Wn. App. at 500.
13 Pet, of Ward, 125 Wn. App. at 380-81.
14 CR 60(b)(5).
15 See Ellison v. Process Svs. Inc. Const. Co., 112 Wn. App. 636, 642, 50
P.3d 658 (2002); Brenner v. Port of Bellingham, 53 Wn. App. 182, 188, 765 P.2d
1333(1989).
No. 71525-9-1/5
"A judgment is void only if it is issued by a court which 'lacks jurisdiction of
the parties or of the subject matter, or which lacks the inherent power to make or
enter the particular order involved.'"16 "[A] court has no jurisdiction to grant relief
beyond that sought in the complaint."17 For example, in In re Marriage of Leslie,
the petitioner did not request that the respondent pay for medical expenses.18
Regardless, the court's judgment ordered the respondent to pay for medical
insurance and any uncovered medical costs.19 The supreme court held that the
portion of the judgment ordering the respondent to pay for medical costs was
void, because it exceeded the relief that the petitioner requested.20
Here, the trial court's January 2003 final order of child support is not void.
The court did not grant more relief than Brinkley requested.
Robert Hensley argues that the judgment awarded Brinkley $10,249.82
more than the court's verdict. The court's verdict stated that Robert Hensley
owed $8,555.95 in back child support, and was responsible for 65 percent of all
outstanding daycare expenses. The court's order awarded $8,555.95 in daycare
expenses (rather than back child support), and $10,285.13 in back child support.
16 Pet, of Ward. 125 Wn. App. at 379 (quoting Metro. Fed. Sav. & Loan
Ass'n of Seattle v. Greenacres Mem'l Ass'n, 7 Wn. App. 695, 699, 502 P.2d 476(1972)) (internal quotation marks omitted).
17 In re Marriage of Leslie, 112 Wn.2d 612, 617, 772 P.2d 1013 (1989).
18 112 Wn.2d 612, 614, 772 P.2d 1013 (1989).
19 Id, at 614.
20 Id. at 620.
No. 71525-9-1/6
Robert Hensley argues that 65 percent of all daycare expenses, the
amount that the verdict awarded, was actually $35.31. Because both the verdict
and the judgment award $8,555.95, the alleged windfall arises from the
difference between $10,285.13 and $35.31.
Robert Hensley argues that the Child Support Schedule Worksheets from
the trial show that Brinkley claimed only $67.90 in daycare expenses.
Robert Hensley is incorrect for two reasons. First, it is unclear whether
the worksheet reflects what Brinkley claimed at trial, as Brinkley did not sign the
copy Robert Hensley submitted. Second, the worksheet appears to be
prospective—it does not contain back expenses. For example, the section on
child support sets the prospective child support, but does not list any back child
support. Similarly, the section on daycare apportions 52 percent of the cost to
Robert Hensley, the same percentage used to calculate prospective child
support, while the court's verdict on back daycare apportioned 65 percent of the
cost to the father.
Thus, Robert Hensley's argument that 65 percent of back daycare
expenses is $35.31 is unpersuasive. And Robert Hensley has not shown that the
relief the court awarded exceeded the amount Brinkley claimed at trial.
Accordingly, the present case is distinguishable from In re Marriage of Leslie.
In sum, the court's January 2003 final order of child support is not void.
Because the judgment is not void, CR 60(b)(5) does not apply to this case. The
court did not abuse its discretion in denying the motion for reconsideration.
No. 71525-9-1/7
CR59(1)
Robert Hensley finally argues that CR 59(1) allows him to collaterally
attack the child support order entered in 2003. We disagree.
CR 59 allows a party to move for a new trial or for reconsideration.21 But,
"A motion for a new trial or for reconsideration shall be filed not later than 10
days after the entry of the judgment, order, or other decision."22 Thus, to
challenge the January 2003 final order of child support under CR 59, Robert
Hensley was required to file his motion no more than 10 days after the order was
entered. Clearly, he did not.
Thus, while CR 59 allowed him to move for reconsideration on the 2013
order, he cannot use it to collaterally attack the January 2003 order.
In sum, Robert Hensley has failed to show that he may collaterally attack
the 2003 child support order. Thus, the court did not err by awarding Brinkley
interest on past due obligations.
We affirm the trial court's order awarding Brinkley interest, and its ordee ^
denying Robert Hensley's motion for reconsideration.
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