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Buecking v. Buecking

Supreme Court of Washington, En Banc

December 26, 2013

In the Matter of the Marriage of Amy BUECKING, Respondent,
v.
Tim BUECKING, Petitioner.

Page 1000

David G. Porter, Attorney at Law, Bellingham, WA, for Petitioner.

Philip James Buri, Buri Funston Mumford PLLC, Bellingham, WA, for Respondent.

MADSEN, C.J.

[179 Wn.2d 441] ¶ 1 Amy Westman [1] filed for legal separation from Tim Buecking. Over a year later, she filed an amended petition for dissolution of marriage. By statute, a court cannot enter a decree of dissolution of marriage until 90 days after the petition is filed. Here, the decree was entered 8 days too soon. Mr. Buecking appealed, raising for the first time on appeal his claim tat the trial court lacked subject matter jurisdiction because it entered the decree before the 90-day period had elapsed.

¶ 2 We hold that the 90-day period commences when the petition for dissolution is filed and not when a petition for legal separation, if any, is filed. We further hold that the error of duration here is a legal error but not an error involving subject matter jurisdiction that may be raised at any time. We award attorney fees to Ms. Westman and affirm the Court of Appeals' award of attorney fees to her.

FACTS AND PROCEDURAL HISTORY

¶ 3 Amy Westman and Tim Buecking were married on August 14, 1999. On December 12, 2008, Ms. Westman filed a petition for legal separation. Over a year later, on April 2, 2010, Westman filed an amended petition for dissolution of marriage. Within the petition, Mr. Buecking signed a statement saying, " I, the respondent, agree to the filing of an Amended Petition for Dissolution of the marriage instead of legal separation." Clerk's Papers at 90. This statement appeared just below a checked box labeled " Joinder." Id. (bold omitted).

¶ 4 RCW 26.09.030 provides that a court may enter a decree of dissolution when " ninety days have elapsed since [179 Wn.2d 442] the petition was filed." On June 23, 2010, following a trial that ended on June 15, the trial court entered a decree of dissolution 82 days after the petition for dissolution of marriage was filed.

¶ 5 Mr. Buecking did not object at the time to entry of the decree on the basis that the 90-day period required under the statute had not elapsed. However, he raised this issue on appeal, contending the trial court lacked subject matter jurisdiction to enter the decree before 90 days had elapsed. In an opinion published in part, the Court of Appeals held that if the trial court erred by entering a decree of dissolution before 90 days had passed, it was a legal error that did not involve the court's subject matter jurisdiction

Page 1001

because the court had jurisdiction to hear the controversy. In re Marriage of Buecking, 167 Wash.App. 555, 559-60, 274 P.3d 390 (2012).[2] The Court of Appeals awarded Ms. Westman attorney fees under RCW 26.09.140, subject to her compliance with RAP 18.1. [3]

¶ 6 Mr. Buecldng moved for reconsideration of several issues, including the award of attorney fees to Westman. Buecldng asserted that Westman failed to strictly comply with RAP 18.1 because she filed an affidavit of financial need after oral argument rather than 10 days prior to oral argument as required under RAP 18.1(c). The Court of [179 Wn.2d 443] Appeals denied the motion and upheld the attorney fees under RAP 1.2(c).[4]

ANALYSIS

¶ 7 Mr. Buecldng contends that the superior court exceeded its subject matter jurisdiction by entering a dissolution before the statutory 90 days had elapsed from the date the dissolution petition was filed, as required under RCW 26.09.030. Ms. Westman responds that no error occurred, arguing that the 90-day period runs from the time she filed her petition for legal separation and that if the trial court erred in entering the petition on the 82nd day, the error did not result in a loss of subject matter jurisdiction.

¶ 8 Subject matter jurisdiction and questions of statutory construction are reviewed de novo. ZDI Gaming, Inc. v. State ex rel. Wash. State Gambling Comm'n, 173 Wash.2d 608, 624, 268 P.3d 929 (2012); In re Custody of Smith, 137 Wash.2d 1, 8, 969 P.2d 21 (1998).

1. 90-day period

¶ 9 RCW 26.09.030 states that when a party

petitions for a dissolution of marriage ... and alleges that the marriage ... 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: (a) If the other party joins in the petition or does not deny that the marriage ... is irretrievably broken, the court shall enter a decree of dissolution.

[179 Wn.2d 444] ¶ 10 Here, the decree of dissolution was entered in June 2010, more than 90 days from the original petition for legal separation, but less than 90 days from the amended petition for dissolution.

¶ 11 Mr. Buecking points out that RCW 26.09.030 requires that a dissolution petition must contain an allegation that the marriage is irretrievably broken, which is not required in a petition for legal separation. He contends that because a petition for legal separation seeks different relief from that sought by a petition for dissolution of marriage, filing a petition for legal separation does not start the 90-day period. Ms. Westman points out that the purpose of the 90-day period is to give the parties an opportunity to reconsider and reconcile and urges that this purpose is met when 90 days elapses from the time a petition for legal separation is filed.

¶ 12 This appears to be an issue of first impression. See 21 KENNETH W. WEBER, WASHINGTON PRACTICE: FAMILY AND COMMUNITY PROPERTY LAW § 46.23, at 60 (1997 & ...


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