Appeal from Superior Court of King County. Docket No: 88-5-02737-5. Date filed: 11/29/95.
PER CURIAM. -- Appellant Rodger Lee Noble appeals from an order denying his motion to terminate child support obligations. *fn1 He contends the order was void, arguing the court lacked jurisdiction to extend his support obligations past the age of his child's majority. We find the court had jurisdiction to consider the modification, but erroneously applied the law in granting it. But because the order was voidable, not void, Noble is not entitled to reimbursement for past support paid. We reverse in part and affirm in part.
In a stipulated parentage order entered in March 1989, Noble was directed to pay monthly child support of $490 for his daughter, Michelle, "until emancipation of the child or further order of the court." Michelle turned 18 on March 2, 1993. On March 4, 1993, Michelle's mother, respondent Cheryl Anderson, filed a petition for modification of child support pursuant to RCW 26.09.170 and .175. Anderson contended child support should be increased and extended beyond Michelle's majority.
Noble defaulted and, on April 23, 1993, the court granted the modification petition and ordered Noble to pay monthly child support of $719 until Michelle was capable of supporting herself and for postsecondary education.
On June 30, 1995, Noble filed a motion and declaration for a restraining order and for an order to show cause why his support obligations should not be terminated. He claimed the court's 1993 modification order was void because Anderson did not file the petition to modify until two days after Michelle had attained majority, thus depriving the court of jurisdiction to order modification. Noble asked for a judgment of $18,694, the sum of postmajority support he paid under the order. *fn2 The trial court denied his request.
Noble's contention the 1993 modification order is void is incorrect. A court enters a void order only when it lacks personal jurisdiction or subject matter jurisdiction over the claim. Marley v. Department of Labor & Indus., 125 Wash. 2d 533, 541, 886 P.2d 189 (1994). The modification court had subject matter jurisdiction to address the petition. In re Marriage of Major, 71 Wash. App. 531, 535-36, 859 P.2d 1262 (1993). Because the court had subject matter jurisdiction (personal jurisdiction is not at issue), its order was not void. The court properly addressed the merits of Anderson's petition.
Noble contends the court erred as a matter of law by granting the modification petition. We agree. RCW 26.09.170(3) provides as follows:
Unless otherwise agreed in writing or expressly provided in the decree, provisions for the support of a child are terminated by emancipation of the child or by the death of the parent obligated to support the child.
Emancipation occurs upon reaching the age of majority or emancipation in fact, whichever occurs first. In re Marriage of Main, 38 Wash. App. 351, 352, 684 P.2d 1381 (1984). The age of majority is 18. RCW 26.28.010. Therefore, unless the decree expressly provides otherwise, the obligation to pay child support terminates once the child reaches emancipation. Main, 38 Wash. App. at 353; Balch v. Balch, 75 Wash. App. 776, 778-79, 880 P.2d 78 (1994), review denied, 126 Wash. 2d 1003 (1995). Conversely, if a decree expressly provides for postmajority support, a court may modify the support provisions after the child attains majority so long as the movant files for modification before the termination of support. Balch, 75 Wash. App. at 779, citing In re Marriage of Crossland, 49 Wash. App. 874, 877-78, 746 P.2d 842 (1987).
Here, the stipulated parentage order expressly directed child support "until emancipation of the child or further order of the court." Therefore, Noble's obligation to pay child support ended when Michelle turned 18 on March 2, 1993. Because the order did not provide for postmajority support, any modification request would have had to occur before Michelle reached 18. Because the petition was filed two days after Michelle's 18th birthday, it was untimely and the court erred by granting the modification. In re Marriage of Gillespie, 77 Wash. App. 342, 890 P.2d 1083 (1995); Main, 38 Wash. App. at 353.
We now address Noble's final contention, that he is entitled to a judgment for reimbursement totaling $19,413 -- the support amount he paid after entry of the order. We disagree. Reimbursement is the proper remedy for payments made pursuant to a void order. But here, the court's order was not void. Where a court has jurisdiction over the person and the subject matter, its decision is voidable, not void, even if based on a fundamental error of law. In re Marriage of Ortiz, 108 Wash. 2d 643, 649-50, 740 P.2d 843 (1987). In Ortiz, the Court found a dissolution decree that included an improper child support escalation clause to be voidable, not void. 108 Wash. 2d at 650. As a result, Mr. Ortiz was not entitled to reimbursement for excess support paid as a result of the improper decree. 108 Wash. 2d at 650. And, because RCW 26.09.170(1) *fn3 prohibits retrospective modification of child support orders, Mr. Ortiz could not be reimbursed for support paid pursuant to the improper order. 108 Wash. 2d at 650.
We recognize courts have created an exception to the rule where equitable principles mitigate the harshness of claims for retroactive support, so long as such relief does not work an inJustice to the custodian or the child. Hartman v. Smith, 100 Wash. 2d 766, 769, 674 P.2d 176 (1984) (equitable estoppel barred the custodial parent's claim for more than $22,000 in past-due child support); Schafer v. Schafer, 95 Wash. 2d 78, 81-82, 621 P.2d 721 (1980) (credit against accrued support payments supported by special equitable circumstances, and no inJustice to the party to whom payments due); In re Marriage of Watkins, 42 Wash. App. 371, 374, 710 P.2d 819 (1985), review denied, 105 Wash. 2d 1010 (1986) (laches is equitable defense applicable to claims for past-due child support).
In In re Marriage of Shoemaker, 128 Wash. 2d 116, 904 P.2d 1150 (1995), the Court considered and rejected respondent's claim for an equitable exception. The Court distinguished the exception cases, which primarily involve granting relief from past-due support. In contrast, respondent was asking the court to use equitable powers to create a child support obligation. The Court held equitable principles did not justify the use of a procedural device -- vacation -- to retroactively adjust the obligations of the parties. 128 Wash. 2d at 123-24.
Shoemaker is analogous to Noble's case. By moving for termination of child support obligations modified more than two years earlier, Noble asked for retroactive vacation of the order. Retroactively terminating Noble's support obligation would burden Anderson with an "instant" obligation to reimburse Noble in the amount of more than $19,000, even though she had been receiving the support payments in good faith under a then-valid order. Not only do we find no equitable justification for granting Noble such retroactive relief, we find the equities favor Anderson and Michelle.
Although it is true Anderson filed her petition to modify two days late, Noble not only defaulted but implicitly acquiesced in the terms of the order by paying the modified amounts for more than two years. During this period, Noble neither moved to set aside the default judgment under CR 55 nor for relief from judgment pursuant to CR 60. Therefore, while it is true the court erred by granting the modification, we reject Noble's contention he is entitled to a judgment for back payments. *fn4 We reverse the trial court's order denying termination of child support. We remand to determine whether any of Noble's ...