       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 TIMOTHY L. SAYLER,                         )         No. 79026-9-I

                      Appellant,            )         DIVISION ONE

               v.                           )         UNPUBLISHED OPINION
                                            )
 SUSAN L. YOUNG,                            )
                                            )
                       Respondent.          )
________________________________            )         FILED: January 13, 2020

       HAZELRIGG-HERNANDEZ, J.      —   Timothy Sayler seeks reversal of an order on

his motion to clarify and correct a clerical mistake entered after the decree of

dissolution. He contends that the order attempted to correct a judicial error, rather

than a clerical error, an action that is not authorized by CR 60(a). Because the

language of the decree evinced an intent for Saylerto be responsible for 50 percent

of the specified debts, the subsequent order making Sayler responsible for 100

percent of the debts was not authorized under CR 60(a). We reverse and remand.


                                        FACTS

       Timothy Sayler and Susan Young divorced in 2017.                Sayler was the

petitioner in the dissolution action. In his petition for dissolution of marriage, Sayler

requested that the debts be split equally between the parties and paid from the net

proceeds of the sale of the real property co-owned by the parties.
No. 79026-9-1/2

       In the decree of dissolution, the court awarded Sayler the business Eagle

Rock Landscaping with its premises, equipment, and all associated debt. The

court awarded Young $38,000 in spousal maintenance.            In the section of the

decree labeled “Petitioner’s Debt,” the order stated that “[tjhe Petitioner must pay

all debts listed below” and listed 16 debts. Underthe first item, a Chase mortgage,

the court drew a line and wrote “100%” above the line. The court wrote nothing

next to the second and third listed debts. Next to each of the debts numbered 4

through 15, the court wrote “50%.” Next to the last item, credit, debt, and/or debit

accounts in Sayler’s name post separation, the court wrote “100%.”

       Under the section labeled “Respondent’s Debt,” the court crossed out the

language saying she must pay the debts listed below as well as the first item and

listed two debts: “2. Credit, debt, and/or debit accounts in her name, including her

Chevon credit card [sic]” and “3. Liabilities associated with any of the property or

assets awarded to the petitioner.”

       In the court’s written findings and conclusions, the court stated that “[t}he

spouses’ community debt is listed in Exhibit 24 as modified by this court. This

Exhibit is attached and made part of these Findings.” The court also noted that

the petitioner’s and respondent’s separate debts were listed in “Exhibit 24.” From

the brief reference to exhibit 24 in the portion of the verbatim report of proceedings

that was designated as part of the record on appeal, it appears that the exhibit was

Sayler’s debt worksheet. Although the minute entry indicates that Exhibit 24 was

marked for identification during the trial, it does not appear to have been admitted,

was not attached to the dissolution decree, and is not part of the record on appeal.



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No. 79026-9-113

       Sayler filed a “motion to correct a clerical mistake pursuant to CR 60(a) and

to clarify the decree of dissolution.” He argued that the handwritten “50%” next to

some of the listed debts indicated that he would be responsible for only half of the

specified debts. He requested that the court clarify the sections of the decree

allocating the debts “to explicitly allocate the remaining 50% of the community

debts.” He argued that “it seem[ed] likely that the Court intended Respondent to

pay the remaining 50%.”

       The court conducted a hearing on the motion, at which Sayler requested

that the court clarify that the debts labeled “50%” would be allocated 50% to Sayler

and 50% to Young. Young objected to this proposed correction, stating:

             The petitioner was        awarded all property except for the
                                           .   .   .


       home that I’d owned for 32 years. That was the only asset that I was
       awarded. He was awarded the entire business, commercial property,
       another property, the sale and profit of another property that was built
       by one of our companies.

The court stated that it would “make the modification that Ms. Young is asking for

so that it’s crystal clear.   .   .   that it’s 100 percent [Sayler’s] debt.” On September

10, 2018, the court issued an “Order on Civil Motion CR 60(b),” which stated:

       The above-entitled Court, having heard a motion for 60(b)
       modification of clerical errors. Amendments are as follows:

       (2) Section 10 assignment of Respondent’s [sic] debt is changed to
       read 100%, not 50%.

Sayler appealed.




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                                     ANALYSIS

I.     CR 60(a)

       Sayler argues that the court did not have to authority to issue the order

stating that he owed 100 percent of the listed debts because the order did not

reflect the court’s original intention to split the debts equally between the parties.

Young avers that the court did not intend to assign 50 percent of the specified

debts to her, as evidenced by the fact that she did not receive any interest in the

business. Young further argues that:

               The handwritten 50% of the 12 enumerated debts in question
       were assigned ONLY to Mr. Sayler and was what the court expected
       him to pay upon signing of the decree. The handwritten 50% was not
       a division of debt, but a reduced amount to allow monies available•
       for payment of Spousal maintenance awarded to [Ms.] Young and
       due upon signing of decree.

       When entering a decree of dissolution of marriage, the court shall divide the

assets and debts of the parties, both community and separate, as appears just and

equitable after considering all relevant factors. RCW 26.09.050(1); RCW

26.09.080. The court has broad discretion over the disposition of property and

debts. In re Marriage of Thomas, 63 Wn. App. 658, 660, 821 P.2d 1227 (1991).

However, the court may only divide property and debts between the spouses.

Arneson v. Arneson, 38 Wn.2d 99, 101-02, 227 P.2d 1016 (1951). “It may not

adjudicate the rights of third parties who have an interest in any of the property at

issue,” including creditors. In re Marriage of Soriano, 44 Wn. App. 420, 420, 722

P.2d 132 (1986).

       Once entered, the court may not modify the division of property in a

dissolution decree unless it “finds the existence of conditions that justify the


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No. 79026-9-1/5

reopening of a judgment under the laws of this state.” RCW 26.08.170(1). It may,

however, correct “[c]lerical mistakes in judgments, orders or other parts of the

record and errors therein arising from oversight or omission” on the motion of a

party or on the court’s own initiative. CR 60(a). This rule does not allow trial courts

to correct “judicial errors.” Presidential Estates Apt. Assocs. v. Barrett, 129 Wn.2d

320, 326, 917 P.2d 100 (1996). The distinction between clerical and judicial error

turns on “whether the judgment, as amended, embodies the trial court’s intention,

as expressed in the record at trial.” ki. If so, the error was clerical because the

amended judgment “merely corrects language that did not correctly convey the

intention of the court, or supplies language that was inadvertently omitted from the

original judgment.” j4. Although the court may enter a judgment that differs from

its oral ruling, it may not use CR 60(a) to “enter an amended judgment that does

not find support in the trial court record.” ki. Put simply, “[a] judicial error involves

an issue of substance; whereas, a clerical error involves a mere mechanical

mistake.” Marchel v. Bunqer, 13 Wn. App. 81, 84, 533 P.2d 406 (1975).

       The trial court has discretion to enter an order amending a judgment to

correct a clerical error under CR 60(a). See Presidential Estates, 129 Wn.2d at

325—26.     “A trial court abuses its discretion if its decision is manifestly

unreasonable or based on untenable grounds or untenable reasons.” In re

Marriage of Littlefield, 133 Wn.2d 39, 46—47, 940 P.2d 1362 (1997). Using CR

60(a) to correct judicial error is an abuse of discretion because the rule does not

authorize this action. See Presidential Estates, 129 Wn.2d at 325—26.




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No. 79026-9-1/6

       To determine whether the error corrected by the trial court was clerical or

judicial, we examine the record and interpret the dissolution decree to discern the

court’s intention at the time it entered the original order. ~ j.~. at 326—27.

“Interpreting a dissolution decree involves a question of law reviewed de novo.”

Stokes v. P011ev, 145 Wn.2d 341, 346, 37 P.3d 1211 (2001). We use the general

rules of construction applicable to statutes and contracts to determine the superior

court’s intent. j.ç~ Therefore, we construe dissolution decrees as a whole, giving

meaning and effect to each word. ki. Words are given their ordinary meaning, and

we assume there is a difference in intent when language is used in one instance

but not in another. ki. at 347.

       Here, the court’s intention in the order amending the decree was clear: to

make Sayler responsible for 100 percent of the debts listed as “Respondent’s

Debts” in the dissolution decree. To determine whether this was a permissible

correction of a clerical error or an impermissible modification of a judicial error, we

must decide whether this same intention was present when the court entered the

original dissolution decree.

       The excerpt of the trial transcript in the record before us contains some of

Young’s testimony regarding her involvement in the business and use of the

business’s funds. However, the court’s oral comments following her testimony

seem to indicate that the court had not yet determined how to divide the property:

              What I expect is that you’re going to have [to] supplement the
       record with more documentation if you choose to do so. If you choose
       not to supplement it, then I’ll work with what I have, but I can’t say
       from what I’ve seen so far that it’s really adequate or complete in
       terms of a full picture of the status of the business nor any claims that
       the wife may have as partner, if those documents can be supportive.


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No. 79026-9-1/7


The transcript does not contain any other statement from the court indicating its

intent to divide the property and debts. Further, there is nothing in the record from

the subsequent motion hearing to provide clarity on the court’s intent at the time of

entry of the original decree. Therefore, we must interpret the language of the

dissolution decree to determine whether the intent of the decree was the same as

that of the subsequent order.

       The plain language of the decree indicates that “[tjhe Petitioner must pay”

50 percent of the debts numbered 4 through 15. The decree does not indicate

who must pay the remaining half of those debts, although the court was only

authorized to apportion property and debts between the parties. There is nothing

in the record before us to indicate that the court’s intention at the time the original

decree was entered, was anything other than the logical assumption of the court’s

statutory duty to apportion the debts only between the parties to the dissolution.

Additionally, there is nothing apparent from the language of the decree to support

Young’s theory that the hand-written percentage indicated the portion of the debt

that Sayler was expected to pay at a particular time. Because it appears from the

language of the decree that the court intended for Sayler to be responsible for 50

percent of the specified debts, the order making Sayler responsible for 100 percent

of the debts evinced a different intention. The order was therefore attempting to

correct a judicial error, rather than a clerical error. The court lacked authority to

correct a judicial error under CR 60(a).




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No. 79026-9-1/8

II.       CR 60(b)

          Sayler also argues that the court lacked authority to enter an order under

CR 60(b) when his motion “discussed only CR 60(a) and requested only relief

appropriate under CR 60(a).” Although the order purports to be based on CR

60(b), it refers to the motion as a “motion for 60(b) modification of clerical errors.”

Because CR 60(a), rather than 60(b), is the appropriate rule governing correction

of clerical errors, the court’s reference to 60(b) appears to be, itself, a clerical error.

Nevertheless, we take this opportunity to clarify that the order was not authorized

by CR 60(b).

          Although CR 60(a) explicitly provides that a clerical mistake may be

corrected by the court “of its own initiative or on the motion of any party[,]” CR 60(b)

allows the court to grant relief from a final judgment, order or proceeding only “[o]n

motion” and in certain circumstances. The rule further states that “[t]he procedure

for obtaining any relief from a judgment shall be by motion as prescribed in these

rules,” and specifies that the procedure entails “[ajpplication     .   .   .   made by motion

filed in the cause stating the grounds upon which relief is asked, and supported by

the affidavit of the applicant or the applicant’s attorney.” CR 60(d), (e). Unlike a

correction of a clerical error under CR 60(a), a trial court does not have the

authority to vacate a judgment, other than one that is void on its face, on its own

motion. Krueger Eng’g., Inc. v. Sessums, 26 Wn. App. 721, 724, 615 P.2d 502

(1980).

       Moreover, CR 60(b) authorizes only a limited remedy.                     “Rule 60(b) is

available only to set aside a prior judgment or order; courts may not use Rule 60(b)



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No. 79026-9-119

to grant affirmative relief in addition to the relief contained in the prior order or

judgment.” Geonerco, Inc. v. Grand Ridge Prop’s. IV, LLC, 159 Wn. App. 536,

542, 248 P.3d 1047 (2011) (quoting Delay v. Gordon, 475 F.3d 1039, 1044—45

(9th Cir. 2007)).   Courts may not correct errors of law under CR 60(b). In re

Marriage of Thurston, 92 Wn. App. 494, 499, 963 P.2d 947 (1998).

       The record contains no evidence that a CR 60(b) motion was pending

before the trial court and shows only Sayler’s CR 60(a) motion. The court made

no indication that the dissolution decree was facially void and may not otherwise

grant relief under CR 60(b) on its own motion. Additionally, CR 60(b) would only

have authorized the court to set aside the prior order, rather than modify it.

Because CR 60(b) did not authorize this order, we interpret it as an order on a CR

60(a) motion and interpret the court’s reference to CR 60(b) as a clerical mistake.


Ill.   Remedy

       Sayler contends that the trial court was obligated to grant his CR 60(a)

motion below and requests that we remand this case with instructions to grant his

motion and specify that Young is responsible for the other 50 percent of the

specified debts. However, we do not review the merits of a CR 60(a) motion on

appeal. Foster v. Knutson, 10 Wn. App. 175, 176—77, 516 P.2d 786 (1973).

Because we have determined that the court abused its discretion in using CR 60(a)

to correct a judicial rather than clerical error, we vacate the order on Sayler’s CR

60(a) motion and remand for further proceedings consistent with this opinion.




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      Reversed and remanded.




WE CONCUR:




                   _____              C—




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