                                                                                        FILED
                                                                                  COURT OF APPEALS
                                                                                      DIVISIOtl 11

                                                                                 2013 OCT - I          AM 9: 10

                                                                                 STATE OF WASHINGTON

                                                                                   Y
                                                                                                E   TY



      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                 DIVISION II


In the Matter of the Marriage of:

RICHARD B.FERGUSON,
                                       Respondent,                           No. 43303 6 II
                                                                                       - -


         V.                                                         UNPUBLISHED OPINION


PAMELA A.FERGUSON,
                                       Appellant.



         MAxA,J.      —Pamela     Ferguson appeals the trial court's denial of her motion to vacate a

dissolution decree entered after her default, claiming that the decree should be vacated as void

under CR 60( )(
         5)b because the property distribution provisions exceeded the relief requested in

her former husband's petition for dissolution. Specifically, she argues that the property division

was extremely one sided and therefore exceeded the petition's request that the trial court order a
                  -

fair and equitable"division. She also argues that the trial court abused its discretion in denying

her request for attorney fees. We disagree, and affirm.

                                               FACTS


         After 11 years of marriage, Richard and Pamela Ferguson separated in April 2004.
Richard filed a petition for dissolution of marriage in August. The petition alleged that the

parties owned community or separate property and requested that the trial court make a "fair and


1
    Because the   parties   have the   same   last name, we refer to them   by their   first   names   for   clarity.
No. 43303 6 II
          - -



equitable"division of all community and separate property and all the debts and liabilities.

Clerk's Papers (CP)at 2. The petition's relief requested"section asked for entry of a decree of
                                         "

dissolution and division of the parties' property and liabilities. CP at 4. Although Pamela was

served personally with the summons and petition for dissolution, she did not appear or answer.

The court entered an order of default on September 1, and a copy of the order was mailed to

Pamela.


        On December 14, 2004, Richard appeared before the court for a formal proof hearing.

Because she was in default, Pamela did not receive notice of this hearing and did not appear.

Richard presented a proposed division of property and liabilities. Richard's only testimony

regarding the parties' property and debts liabilities was that his proposed division was " air and
                                           /                                             f

equitable ". Report of Proceedings (RP)Dec. 14, 2004) at 4. He presented no other substantive
                                        (

evidence regarding the division.

        The trial court adopted Richard's proposed division of property and liabilities and

incorporated the division into written findings of fact conclusions of law and the dissolution
                                                        /

decree. The decree awarded the family home and significant other property, as well as most of

the community debts, to Richard. The decree awarded Pamela minimal property and debt. In a

written conclusion of law the trial court ruled that the division was fair and equitable. Richard

did not serve Pamela with a copy of this final decree.

        In late December 2004 or early January 2005, Pamela moved.back into the family home.

The parties dispute the nature of this arrangement and whether Pamela knew the dissolution was

final. The relationship eventually deteriorated, and in September 2011 Richard filed an unlawful



2
    Richard used the " hort form"mandatory dissolution form. RCW 26. 9.
                     s                                           006.
                                                                   0

                                                 2
No. 43303 6 II
          - -


detainer action to remove Pamela from the home. Pamela was evicted from the residence on

November 17.


       On December 16, 2011, Pamela moved the trial court to vacate the 2004 dissolution

decree under CR 60( ) also requested an award of attorney fees. The commissioner denied
                  b and

the motion to vacate, and the trial court denied Pamela's motion for revision and request for

attorney fees. Pamela moved for reconsideration, arguing that the trial court had erred in ruling

that vacating a void judgment was within the court's discretion. The trial court denied

reconsideration and clarified that its previous ruling did not rely on whether the decision to

vacate a void judgment was discretionary.

       Pamela appeals, arguing that the dissolution decree is void and should be vacated under

CR 60( )(
   5).
     b
                                       ANALYSIS


A.     MOTION To VACATE -      CR 60( )(
                                  5)b

        CR 60( )(
           5)b provides that a court may relieve a party from a final judgment if the

judgment is void. Pamela argues that the dissolution decree is void because the decree's

property division       extremely
                    was "           one -sided   ", and   therefore exceeded the petition's request that

the trial court order a fair and equitable property division. Br. of Appellant at 15. We disagree.

        1.   Standard of Review


        Generally, a decision to grant or deny a motion to vacate a judgment under CR 60( )
                                                                                        b is

within the trial court's sound discretion and will not be disturbed absent an abuse of discretion.




Pamela also sought to vacate the decree under CR 60( )( and (11)other).The
                                                  4) b fraud) (             (
commissioner denied relief on those grounds, and Pamela does not seek review of those portions
of the order.
No. 43303 6 II
          - -



In re Marriage ofHughes, 128 Wn. App. 650, 657, 16 P. d 1042 (2005).However, courts have
                                              1     3

a mandatory, nondiscretionary duty to grant relief from void judgments. Ahten v. Barnes, 158

Wn. App. 343, 350, 242 P. d 35 (2010).Therefore, we review de novo a trial court's decision to
                        3

grant or deny a CR 60( )( to vacate a void judgment. Ahten, 158 Wn. App. at 350.
                   5)b motion
       2.    Timeliness of Motion


       Pamela filed her motion to vacate under CR 60( )( years after the trial court
                                                  5)b seven

entered the dissolution decree. Notwithstanding the "reasonable time"requirement of CR 60( ),
                                                                                         b

motions to vacate void judgments under CR 60( )( be brought at any time. Ahten, 158
                                          5)b may

Wn. App. at 350. Accordingly, Pamela's CR 60( )( to vacate was timely.
                                          5)b motion
       3.    Mandatory Duty To Vacate Void Judgments .

       Pamela argues that we must reverse because the trial court stated that its decision to

vacate a void judgment was discretionary. As we noted above, this statement was incorrect. See

Ahten, 158 Wn. App. at 350 (stating that courts must vacate void judgments).However, on

reconsideration the trial court clarified that because it did not declare the judgment void,its

denial of Pamela's motion did not depend on whether vacating a void judgment was

discretionary or mandatory. In any event, because our review is de novo the trial court's

erroneous statement is immaterial.


        4.   Validity of Decree

        The primary issue in this case is whether the trial court erred in not finding the

dissolution decree void. CR 54( )
                              c provides that a "udgment by default shall not be different in
                                                j

kind from or exceed in amount that prayed for in the demand for judgment."In other words, a

4
 Pamela alleges that the trial court denied her motion to vacate on the basis that it was untimely,
but we disagree. In its oral ruling the court discussed timeliness, but ultimately considered the
motion on its merits.
                                                  S
No. 43303 6 II
          - -



court may not enter a default judgment or decree that grants relief in excess of or substantially

different from that described in the complaint. Hughes, 128 Wn.App. at 658. A default

judgment or decree that grants such relief without notice and opportunity to be heard denies the

defaulting party procedural due process and is void. In re Marriage ofJohnson, 107 Wn. App.

500, 503 04,27 P. d 654 (2001).The key is that the complaint or petition must provide the
         -      3

defendant " `sufficient notice to make     an   intelligent decision to    appear   or   default.' " Johnson,


107 Wn. App. at 504 (quoting Conner v. Universal Utils., Wn. d 1.8, 172, 712 P. d 849
                                                       105 2    6             2

1986)).

          In this case, the dissolution petition gave Pamela notice that Richard was requesting a

division of all property and liabilities. The " elief requested"portion of the petition expressly
                                              r

asked for that division. This notice was sufficient to inform Pamela that she needed to appear in

order to have any input in that division. Pamela complains that the petition did not specify the

property being divided, but the broad petition language —calling for a division of all property —

should have provided an even greater incentive to appear and defend. Further,the decree of
dissolution in fact   provided the   exact relief requested    —a division of all property and

debts liabilities.
       /

          Pamela relies on Johnson, where the wife filed a dissolution petition alleging that the

family home was worth $ 80, 00 and that each party should receive one half its value. 107 Wn.
                      2 0                                             -

App. at   502.    She subsequently obtained an order of default and a final decree that awarded the

family home      to the   husband, made the wife   a " `   judgment   creditor' " and the husband a "


judgment     debtor' "    in the amount of 140, 00,and provided for interest to accrue on the
                                           $ 0

judgment"amount. Johnson, 107 Wn. App. at 502 03. The decree also ordered the husband to
                                              -

execute a deed of trust securing the wife's 140, 00 interest in the home. Johnson, 107 Wn.
                                             $0

                                                           5
No. 43303 6 II
          - -



App. at 503. We held that the decree was void because its terms varied substantially from the

relief requested in the petition. Johnson, 107 Wn. App. at 504 05.
                                                               -

         Johnson is distinguishable. The petition in Johnson put the husband on notice that only

the specified value of the family home would be divided equally between husband and wife. 107

Wn. App. at 502, 504. The additional provisions that the husband would owe the wife a

140, 00 debt, pay interest on that debt, secure the debt by executing a deed of trust on the
   0

home, and bear the entire risk of overvaluation of the home were substantially different than the

relief requested. Johnson, 107 Wn. App. at 504. In contrast, here the petition generally

requested a division of all property and debts liabilities. The decree provided that division and
                                                /

nothing more.

         The fact that Pamela now contends that the division was unfair does not mean that the

decree terms were substantially different than the notice she received of Richard's request for a

fair and equitable"division of property. The trial court has considerable discretion in

fashioning a property distribution that is equitable. In re Marriage ofFarmer, 172 Wn. d 616,
                                                                                     2

624, 259 P. d 256 (2011)citing RCW 26. 9.The entry of a decree and a conclusion of
          3              (         080).
                                     0

law   stating   that the property division   was   fair and   equitable —regardless of Pamela's opinion —

are sufficient to satisfy any due process concerns because Pamela was put on notice that the trial

court would be dividing the parties' property.

         A contrary rule would give the defaulting party greater rights to challenge a trial court's

judgment than a party who appeared and answered. A party cannot move to vacate a judgment

under CR 60( )( because it belatedly seems unfair. However, under the rule Pamela
         5)b merely

advocates, a defaulting party would be able to challenge a judgment's fairness under CR 60( )(
                                                                                        5)b



                                                         0
No. 43303 6 II
          - -



whenever a plaintiff requested fair relief in a petition or complaint. And there would be no time

limit on such a challenge. The law does not require such a result.

       5.     Trial Court Evidence


       Pamela also argues that the trial court should have required more evidence at the formal

proof hearing besides Richard's testimony that the property division was fair and equitable. She

points out that RCW 26. 9.
                    080 requires the trial court to consider " ll relevant factors"when
                      0                                      a

making a property disposition, and argues that the trial court did not consider such factors. Br. of

Appellant at 16 (emphasis omitted):

       However, Pamela is seeking relief from a final judgment, not appealing as a matter of

right the trial court's original property division. Insufficiency of the evidence is not grounds for

vacating a judgment under     CR     b Burlingame
                                   60( ).               v.   Consol. Mines &   Smelting Co., Wn. d
                                                                                           106 2

328, 336, 722 P. d 67 (1986).The proper means for challenging sufficiency of evidence or other
               2

alleged errors of law is an immediate appeal of the judgment. Burlingame, 106 Wn. d at 336;In
                                                                                2

re Marriage of Tang, 57 Wn. App. 648, 654 56,789 P. d 118 (1990)applying rule to
                                          -       2              (

characterization and valuation of property in dissolution action).We reject this collateral attack

on the trial court's conclusion that the property division was fair and equitable.

          We hold that the trial court's property division did not substantially deviate from the

petition's request for a "fair and equitable"division, and therefore that the default decree is not

void under CR 60( )(
              5).
                b Accordingly, we affirm the trial court's denial of Pamela's motion to

vacate.


B.        ATTORNEY FEES


          Pamela alleges that the trial court abused its discretion by not awarding her attorney fees

under RCW 26. 9. And both parties request attorney fees and costs on appeal. We hold that
          140.
            0
                                                    7
No. 43303 6 II
          - -



the trial court did not abuse its discretion in denying Pamela's fee request. In addition, we deny

the parties' requests for fees and costs on appeal.

        1.   Trial Court Fees


       Under RCW 26. 9. trial court may award attorney fees "after considering the
                 140,
                   0 the

financial resources of both parties."The trial court must balance the needs of the requesting

parry against the other party's ability to pay. In re Custody ofBrown, 153 Wn. d 646, 656, 105
                                                                             2

P. d 991 (2005).A challenge to a decree entered under the dissolution statute is a continuation
 3

of the original action, and therefore fees may be awarded under RCW 26. 9.on a motion to
                                                                    140
                                                                      0
vacate. In re Marriage ofMoody, 137 Wn. d 979, 993 94,976 P. d 1240 (1999).
                                      2            -       2

        We review a trial court's decision to grant or deny a statutory attorney fee award for

abuse of discretion. In re Marriage of Coy, 160 Wn. App. 797, 807, 248 P. d 1101 (2011).A
                                                                        3

trial court abuses its discretion if its decision is based on untenable grounds or untenable reasons.

Farmer, 172 Wn. d at 625.
              2

        In its oral ruling denying Pamela's motion to revise, the trial court stated that "[ ach
                                                                                          e]

parry can pay their own"and declined to order fees. RP (Feb. 24, 2012)at 20. The parties'
financial information submitted for the trial court's consideration demonstrated that both parties'

monthly expenses exceeded their respective monthly incomes by approximately double. Both

parties had regular income and neither appeared well-
                                                    situated to pay the opposing party's costs

and fees. Accordingly, we hold that the trial court did not abuse its discretion in denying

Pamela's request for attorney fees.

        2.   Fees on Appeal

        Pamela now requests attorney fees and costs on appeal under RAP 18.1 and RCW

140.
26. 9. We have discretion to order a party to pay for the cost of maintaining the appeal and
  0

                                                  8
No. 43303 6 II
          - -



attorney fees in addition to statutory costs. RCW 26. 9. When awarding attorney fees, we
                                                  140.
                                                    0

examine the arguable merit of the issues and the parties' financial resources. Johnson, 107 Wn.

App. at 505. In order to receive attorney fees on appeal, a party must file a financial affidavit

with the court no later.than 10 days before oral argument. RAP 18. (
                                                               c). Pamela failed
                                                                 1 Because

to file an affidavit of need, she is not entitled to fees under RCW 26. 9.
                                                                    140.
                                                                      0

       Richard also requests fees and costs on.ppeal based on his allegation that the appeal is
                                              a

meritless and pursued in bad faith. However, Richard has not provided any citation to authority

to support his position, and therefore we deny his,
                                                  request for fees on appeal. RAP 18. (
                                                                                  b);
                                                                                    1 Stiles

v. Kearney, 168 Wn. App. 250, 267, 277 P. d 9,review denied, 175 Wn. d 1016 (2012).
                                        3                          2

       We affirm.


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

Washington Appellate Reports but will be filed for public record pursuant to RCW 2.6.it is
                                                                                 040,
                                                                                   0
so ordered.




                                                      MAxA,J.




                                                  9
