                                                           FILED
                                                       JANUARY 31, 2019
                                                   In the Office of the Clerk of Court
                                                  WA State Court of Appeals, Division III




         IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                            DIVISION THREE

In the Matter of the Marriage of:             )          No. 28179-5-III
                                              )          (consolidated with
CATHERINE LYNN BAXTER,                        )          No. 29631-8-III,
                                              )          No. 29701-2-III,
                     Appellant,               )          No. 35205-6-III,
                                              )          No. 35413-0-III)
       and                                    )
                                              )
MICHAEL AARON BAXTER,                         )          UNPUBLISHED OPINION
                                              )
                     Respondent.              )

       PENNELL, J. — Michael Baxter and Catherine Baxter (now known as Catherine

Cook) separated in 2005 and entered into an agreed parenting plan and dissolution decree

in 2006. Since that time, the parties have litigated issues regarding credit card debt and

placement of their son. Both issues are now on appeal. We affirm.

                                          FACTS

Credit card debt

       In June 2006, after a settlement conference with the parties and their counsel,

the trial court went on the record to memorialize and confirm the agreement reached

between the parties. After summarizing the agreement, including the agreed parenting

plan entered in May 2006, the trial court addressed what it considered the “last issue”
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


regarding debt. Clerk’s Papers (CP) at 291. The court specifically stated: “The last issue

is $36,000.00 give or take a few thousand, we don’t have verification of the debts, but

assuming it’s around $36,000.00, the parties agree to split whatever that is 50/50. The

attorneys can work out the particulars.” Id. Both Ms. Cook and Mr. Baxter were sworn

and asked if they agreed to be bound by the terms and conditions of the agreement, and

sign the necessary documents to carry the agreement into effect, to which they both

responded affirmatively. After receiving the acknowledgment of the parties, the trial

court commented that the agreement was fair to both parties, despite “some missing

details,” and found there was “no hidden agendas here. Everything is out on the table.

Obviously if there’s something hidden and I’m not aware of it that would negate the

agreement anyway. Assuming these numbers are in the ball park, we’ve got I think an

equitable agreement.” Id. at 294-95.

       On August 18, 2006, a presentment hearing was held for entry of the agreed

dissolution decree. At the hearing, Mr. Baxter’s attorney addressed the issue of credit

card debt, stating:

       As to the debt, I am at a loss here. They represented at the settlement it was
       $36,000. I have a letter from them where then they represented it was
       $36,379 but they had a mathematical error of $2,800. Then in response to
       our proof of $31,742 they came back and told me . . . that it was actually
       $25. I said give me your proof. Now it is $3,000. Here is what I suggest
       we do to get these people divorced. I suggest consistent with the

                                             2
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


       agreement, we say that they are each responsible for one half of the
       community credit card debt associated with the Alaska property and strike
       the amounts. We can go ahead and argue that on another day and I will
       reserve the right to ask for fees, because here today there is a $30,000
       difference and their own figures are all off the board.
       ....
       I suggest that we just wipe out the figures and make it one half and strike
       out the blocking of the accounts and the security.

CP at 276-77. Ms. Cook’s counsel agreed with the foregoing plan. The trial court

approved the agreement, noting “when you can’t agree on the [debt] number obviously

you do it in the generic sense.” Id. at 277. Mr. Baxter’s counsel responded that another

issue arose then, and that “[i]f there is $31,000 out there, and the Alaskan debt then for

whatever reason is less than that, both of them are still going to be responsible on that

remaining debt.” Id. Ms. Cook’s counsel responded affirmatively and began to strike out

or cross out the provisions discussed, regarding the particular debt amounts, from the

final documents.

       From reviewing the transcript of the proceeding and the court record, it appears

Ms. Cook’s counsel may have crossed out or struck out more than was necessary on the

agreed dissolution decree. The findings of fact and conclusions of law regarding the

dissolution provide, under the community liabilities section, that: “a Visa credit card

account number [ending in 6256 with the account balance struck out] and a Visa credit

card account number [ending in 8897 with the account balance struck out] for a total debt

                                              3
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


regarding the Alaskan rental house.” CP at 17. The dissolution decree specifically

provides, under the liabilities to be paid by the parties, that each is responsible for “one

half of the [‘community credit card’ is struck out] debt associated with the property in

Alaska [specific amount struck out].” Id. at 24. In addition to these provisions, the

dissolution decree has a hold harmless provision and, where the decree discusses child

support, it provides that both parties agree “to drop their competing claims for back

reimbursement and have further agreed to call the competing claims a ‘wash’ for

purposes of resolution.” Id. at 25.

       On January 31, 2007, the trial court entered an order involving the proceeds

from the sale of the “family home,” and ordered that costs associated with the Alaska

property be determined within 30 days, along with clarification of the reimbursement

issue. Id. at 30. On March 16, an agreed order was entered resolving the issue of

reimbursement regarding the sale proceeds from the family home, however the Alaska

debt was not mentioned in that order.

       On August 4, 2008, Mr. Baxter filed a motion to compel Ms. Cook to comply

with the property settlement agreement, and he sought fees and sanctions. In support of

his motion, Mr. Baxter attached credit card statements and showed his attempt to trace all

of the debt from the credit cards associated with the Alaska property. Mr. Baxter’s


                                               4
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


declaration provided that in May 2006 the debt between the two involved credit cards was

$33,874.62, and on August 4, 2008, the remaining balance of the debt was $24,550.73.

This latest amount, for the total remaining debt, did not include interest, and Mr. Baxter

requested that Ms. Cook reimburse him half of what he had already paid toward the debt,

specifically $10,375.70, along with half of what was left remaining on the debt. Mr.

Baxter also explained that to reduce interest fees, and obtain a year’s free interest on one

of the credit cards, he had to make balance transfers from one credit card to another;

which is evidenced in his tracing documents.

       On February 11, 2009, the trial court heard argument from the parties regarding

Mr. Baxter’s motion to compel, as well as other pending motions. Ms. Cook asserted a

technical defense to Mr. Baxter’s motion. She claimed Mr. Baxter was not entitled to

enforce the debt agreement because the credit card particulars on the decree of dissolution

had been scratched out, and because Mr. Baxter had failed to supply information

regarding the debt within 30 days as required in the January 31, 2007 order. Six days

after this hearing, the trial court issued a letter ruling dealing with the various issues

presented at the hearing and, as to Mr. Baxter’s motion to compel compliance with the

property settlement agreement, it stated:

       Mr. Baxter asserts that [Ms. Cook] is responsible for one-half of a
       community debt of at least $33,874.62 that was established by an agreement

                                               5
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


       before Commissioner Royce Moe on June 29, 2006. The transcript of the
       hearing confirms this. It is worth noting that attorneys have come and gone
       since that hearing. Nevertheless, that finding remains the law of the case.
       Commissioner Moe took the sworn confirmations of both parties as to their
       assent. [Ms. Cook’s] response may argue the basis of the finding, but this
       court is firmly persuaded that an agreement was established per CR 2A.

       Mr. Baxter is entitled to the benefit of the bargain struck with the approval
       of the court. He is entitled to costs associated with the non-payment (fees,
       interest) of approximately $11,825 (one-half of $23,400). Attorney fees
       will be awarded upon a certificate showing properly segregated time related
       to this claim.

CP at 477. On May 11, 2009, the trial court entered an order regarding the hearing held

February 11, which incorporated the court’s letter ruling. The order specifically stated

that “[Mr. Baxter’s] Motion to Compel Compliance with Property Settlement Agreement

is granted. [Mr. Baxter] is entitled to costs associated with the non-payment (fees,

interest) of approximately $11,825 or one half of $23,400[,]” and awarded Mr. Baxter

attorney fees in the amount of $2,693.50. Id. at 486. Ms. Cook filed a notice of appeal as

to this order on June 10, 2009.

       Prior to Ms. Cook’s filing of her notice of appeal, Mr. Baxter filed a motion

to clarify the May 2009 order and for entry of judgment summary nunc pro tunc.

Mr. Baxter’s motion stated that the order required clarification, or a minor revision,

because “it failed to properly incorporate the court’s findings into the court’s order with

regard to [its] allocation of the credit card debt addressed in [its] written correspondence

                                              6
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


which was incorporated by reference into the court’s order.” Id. at 489. Mr. Baxter

requested that the following language be entered to clarify the current order: “It is ordered

that Mr. and Mrs. Baxter are responsible for one half of the credit card debt as set forth in

[Mr. Baxter’s] motion dated August 4, 2008 in the amount of $33,874.62 or $16,937.31

for each party.” Id.

       Ms. Cook opposed Mr. Baxter’s motion at a hearing on June 30, 2009, and argued

that this was not merely a clarification, it was instead a modification, and that because she

filed a notice of appeal Mr. Baxter’s counsel needed to request permission from the Court

of Appeals to change the order. Mr. Baxter’s counsel argued this was a drafting error,

similar to a scrivener’s error, which needed to be corrected so the order aligned with what

the court concluded in its letter ruling, which therefore does not constitute a modification

of the ultimate decision. The trial court agreed with Mr. Baxter’s counsel and stated it

was “clear that the intention of the Court didn’t end up in the final documents. That, I

think, falls within the realm of CR 60(a). I think [Mr. Baxter’s counsel] described it as a

scrivener’s error. I think that that is within the concept of either CR 60(a) or under [CR]

60(b)(11).” Report of Proceeding (RP) (June 30, 2009) at 7. The court concluded that

“[t]he substance of the order should reflect what the Court’s intention was,” and entered




                                              7
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


an amended order incorporating the language requested by Mr. Baxter along with an

updated judgment summary. Id. at 7-8; CP at 509-13.

Parenting plan

       On May 11, 2006, the trial court entered an agreed final parenting plan, the same

plan that was incorporated several months later into the parties’ dissolution decree. The

parenting plan established equal residential time for the parties with their son, but neither

parent was designated as the custodian of the child. By the time the parties’ final

dissolution decree was entered in August 2006, their son was four years old.

       Pertinent to this appeal, Ms. Cook filed a petition to modify the parenting plan

on September 30, 2009. At the time of the petition, the parties’ son was seven years old.

Ms. Cook’s petition was made pursuant to RCW 26.09.260(5) and (8) (pertaining to

minor modifications). Ms. Cook alleged there had been a substantial change of

circumstances due to her acceptance of employment in Wyoming. In support of her

motion, Ms. Cook filed a declaration setting forth the reasons why it would be in the best

interests of the parties’ son to move to Wyoming with Ms. Cook. Ms. Cook organized

her analysis under the factors set forth at RCW 26.09.187 (regarding criteria for

establishing a parenting plan).




                                              8
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


       The trial court found adequate cause to proceed on Ms. Cook’s petition and

ordered the matter scheduled for trial. A guardian ad litem (GAL) was eventually

appointed for the limited purpose of assessing the emotional impact that modification

would have on the parties’ son. Just over a month before trial, the GAL filed a report and

recommended that the trial court’s modification decision be guided by RCW 26.09.520.

       After the conclusion of trial, the court entered an order denying Ms. Cook’s

petition for modification and awarded primary residential placement to Mr. Baxter based

on the harm that would be caused to the parties’ son by moving him to Wyoming. The

court noted that the relocation statute, RCW 26.09.520, was technically not applicable.

Nevertheless, the court agreed with the GAL that review of the relocation factors set forth

in RCW 26.09.520, which were similar to the factors set forth at RCW 26.09.187, was

appropriate under the circumstances. In reviewing RCW 26.09.520, the trial court

specifically noted that because neither party previously had primary residential placement,

no presumption applied to either party’s request for placement.

                                       ANALYSIS

Credit card debt

       Ms. Cook argues the trial court erroneously enforced the parties’ settlement

agreement regarding credit card debt because (1) the original agreement was


                                             9
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


unenforceable as it was missing a material term, i.e., the amount of debt, (2) the

requirement to pay credit card debt was changed to a requirement to pay debt on the

Alaska property, (3) Mr. Baxter failed in his obligation to determine the amount of the

credit card debt in a timely manner, and (4) the trial court improperly amended its order

requiring payment of credit card debt after a notice of appeal had been filed.

       We are unpersuaded by Ms. Cook’s challenges:

   • The parties’ original credit card agreement was sufficiently specific to permit

       enforcement. Although no money amount was listed, the agreement referred to the

       account numbers at issue and specified an equal split of the debt. This information

       was sufficiently specific to permit enforcement.

   • Contrary to Ms. Cook’s suggestion, the trial court never altered the parties’

       agreement to pay one-half of the credit card debt. The credit card debt was

       referred to as debt regarding the parties’ “Alaskan rental house.” CP at 17. Thus,

       when the parties’ divorce decree specified that the parties were each responsible

       for one-half of the debt associated with property in Alaska, this reference pertained

       to the credit card debt.

   • While the January 31, 2007, order regarding proceeds of the sale of the parties’

       home directed that the costs regarding the Alaska property were to be determined


                                             10
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 35413-0-III
In re Marriage of Baxter


       within 30 days, the order never clarified which party was responsible for

       clarification or what the consequence would be for noncompliance. Thus, the

       failure to meet the terms of the January 31 order did not nullify the parties’ prior

       credit card agreement.

   • Finally, the trial court did not violate RAP 7.2(e) when it issued an amended order

       regarding the parties’ credit card debt. The amended order did not change the

       nature of the underlying order, it simply clarified that by owing one-half of the

       Alaska property credit card debt, Ms. Cook owed one-half of the amounts already

       paid by Mr. Baxter and one-half of the amounts yet to be paid. This type of

       clarification does not require leave of the appellate court under RAP 7.2(e). Olsen

       Media v. Energy Sciences, Inc., 32 Wn. App. 579, 587-88, 648 P.2d 493 (1982).

Parenting plan

       Ms. Cook argues that the trial court abused its discretion when it referenced the

relocation factors set forth in RCW 26.09.520 in determining placement of the parties’

child. We disagree with this assessment. The trial court recognized that RCW 26.09.520

was technically not applicable to the parties’ circumstances and that Ms. Cook’s petition

fell under RCW 26.09.260 (a modification based on substantial change of circumstances)

in that this was “not a clearcut relocation case.” RP (Oct. 20, 2010) at 484. The trial


                                             11
Nos. 28179-5-III; 29631-8-III; 29701-2-III; 35205-6-III; 3 5413-0-III
In re Marriage of Baxter


court merely referenced RCW 26.09.520 because, as suggested by the GAL, that statute

lists factors relevant to the best interests of the child when a parent has changed a

principal place of residence. Consistent with In re Marriage of Worthley, 198 Wn. App.

419, 430-31, 393 P.3d 859 (2017), the trial court did not consider the interests of the

parents in determining placement of the parties' child. Instead, the court looked to

RCW 26.09.520 only for guidance on what factors were relevant to the best interests of

the parties' child. This approach was fully appropriate. See In re Marriage of Murphy,

48 Wn. App. 196, 199-200, 737 P.2d 1319 (1987).

                                     CONCLUSION

       The orders on appeal are affirmed. We decline to award attorney fees.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to

RCW 2.06.040.




WE CONCUR:




Lawrence-Berrey, C.J.                      Fearing, J.    ~

                                             12
