                                                                         FILED
                                                                       MAY 25, 2017
                                                                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

THOMAS THORN,                                )
                                             )         No. 34151-8-111
                     Appellant,              )
                                             )
       v.                                    )
                                             )
DEBRA CROMER,                                )         UNPUBLISHED OPINION
                                             )
                     Respondent.             )

       KORSMO, J. -Dr. Thomas Thom appeals from the trial court's dismissal of his

committed intimate relationship (CIR) action against Debra Cromer. Concluding that he

was estopped to claim the date of separation was other than what had been determined at

a child support enforcement hearing, we affirm the trial court's dismissal of the action on

statute of limitations grounds.

                                         FACTS

       Dr. Thom, although married to another woman until June 2015, moved into Ms.

Cromer's home in August 2008. The couple had a child together, a baby born March 17,

2010. In August 2011, Dr. Thom took a position in Salem, Oregon, and would return to

Ms. Cromer' s Grant County home on weekends. This created a strain in the relationship

and led to Ms. Cromer suing for child support.
No. 34151-8-III
Thorn v. Cromer


       Dr. Thom returned to live with Ms. Cromer, but she stopped holding themselves

out as being in a CIR. 1 Thom still lived at Cromer's house on July 16, 2012, but left that

day after an argument in which he assaulted her. He was arrested the following day on

assault charges and spent nearly three months in jail. He eventually was acquitted of the

charges on grounds of self-defense.

       The child support action proceeded to a hearing before an administrative law judge

(ALJ) on November 21, 2014. There, responding to questions from his attorney, Dr.

Thom told the hearing examiner that he was living at the house on July 16, 2012, and

separated then because of fighting. 2 His attorney argued to the ALJ that "one thing that is

absolutely clear is that these parties separated on July 16 of 2012, the day before ... Dr.

Thom was arrested." Clerk's Papers (CP) at 367. He also told the ALJ that "the only

solid date we have to go off here is July 16th of 2012 .... [T]here's a valid separation on

that date ... that I think, you know, we can really go off of here, for the separation." CP

at 371. The ALJ found that Dr. Thom resided with Ms. Cromer until July 16, 2012, and

that no support was owed for the period up to that date, but Dr. Thom would pay support        I
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after that date.                                                                               f
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       1
         Since this matter was decided on summary judgment, we state the facts of the          I
relationship as Dr. Thom contends they are, while recognizing that Ms. Cromer does not
agree.
       2
         Ms. Cromer denied that Dr. Thom was still staying at her house in July 2012.
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No. 34151-8-III
Thorn v. Cromer


       On July 17, 2015, Dr. Thom filed a complaint seeking to divide community assets

and debts accumulated during his relationship with Ms. Cromer. Ms. Cromer denied the

existence of a CIR and argued that the statute of limitations had expired because the

parties had separated in August 2011. In response, Dr. Thom asserted that the

relationship had ended on July 17, 2012, and noted that the ALJ had agreed with him,

even though the ALJ had found July 16 was the date of separation. Dr. Thom admitted

that July 16 was the last date he slept in the house.

       At summary judgment, the court declined to determine if a CIR actually existed. 3

The court ruled that Dr. Thom had filed one day after the statute of limitations had run

and dismissed the action. After reconsideration was denied, Dr. Thom timely appealed to

this court.

                                        ANALYSIS

       The dispositive issue is whether this action was timely filed. Because the

administrative findings were supported by Dr. Thom's own testimony and argument, he

is estopped from claiming that the couple separated on July 17, 2012. 4




       3
         Since Dr. Thom was still married, it is questionable that a community-like
relationship could be formed with another person while the marriage lasted.
       4 We do not independently consider the ruling on reconsideration since it is part

and parcel of the original summary judgment order.


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No. 34151-8-111
Thorn v. Cromer


       Three basic principles, all well settled, guide the resolution of this appeal. First,

summary judgment is appropriate when the pleadings, affidavits, depositions, and

admissions on file demonstrate there is no genuine issue of material fact and the moving

party is entitled to judgment as a matter of law. Berger v. Sonne land, 144 Wn.2d 91,

102, 26 P.3d 257 (2001). The moving party bears the burden of demonstrating there is no

genuine dispute as to any material fact. Id. This court engages in the same inquiry as the

trial court when reviewing an order for summary judgment. Id. All facts and reasonable

inferences are considered in a light most favorable to the nonmoving party. Id. at 102-

103. All questions of law are reviewed de novo. Id. at 103.

       Second, courts will equitably divide the "community-like property" of parties

involved in a committed intimate relationship. Soltero v. Wimer, 159 Wn.2d 428, 430,

435, 150 P.3d 552 (2007). However, it is only property that would be considered

community property if held by a married couple that is subject to division by the court.

Id. at 435. The separate property of the parties "is not subject to distribution." Id. at 430.

The statute of limitations for bringing a CIR claim is the three year statute governing

personal property. RCW 4.16.080(2). A party must establish that a CIR existed within

three years of bringing suit. In re Kelly & Moesslang, 170 Wn. App. 722, 736-737, 287

P.3d 12 (2012).

       Third, the doctrine of collateral estoppel serves to bar litigation where an issue of

ultimate fact has already been determined in previous litigation. State v. Mullin-Coston,
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No. 34151-8-111
Thorn v. Cromer


152 Wn.2d 107, 113, 95 P.3d 321 (2004). The party seeking to enforce collateral estoppel

must establish that (I) the issue previously decided is identical to the one presented, (2)

the prior adjudication ended in a final judgment on the merits, (3) the party against whom

collateral estoppel is asserted must be the same as the party in the prior litigation, and (4)

application of collateral estoppel does not work a substantial injustice. Id. at 114.

       When considering whether to apply collateral estoppel to an administrative action,

this court also should consider: (1) whether the agency, acting within its competence,

made a factual decision, (2) procedural differences between the agency and a court, and

(3) policy considerations. Shoemaker v. City ofBremerton, 109 Wn.2d 504,508, 745

P .2d 85.8 ( 1987). Applying these factors, Shoemaker concluded that civil service

commissions can resolve factual issues concerning termination and employment policies,

and that collateral estoppel could be applied to those findings. Id.

       With this background, we tum to the issue presented. Dr. Thom claims that the

trial court erred in using the July 16 date since he also had identified July 17 as a date of

separation in his testimony to the ALJ. However, the written findings from the

administrative hearing, which also were supported by Dr. Thom's testimony, identified

July 16 as the date of separation. We conclude that the trial court properly relied on the

written finding.

       It is well settled law that administrative determinations can be the subject of

estoppel in later legal proceedings. E.g, Reninger v. State Dep 't of Corrs., 134 Wn.2d

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No. 34151-8-III
Thorn v. Cromer


437, 449-450, 951 P.2d 782 (1998) (wrongful discharge action); Stevedoring Servs. of

Am. v. Eggert, 129 Wn.2d 17, 40, 914 P.2d 737 (1996) (action for overpayment);

Shoemaker, 109 Wn.2d at 507-513 (certified question from federal court concerning

effect of administrative findings); State v. Dupard, 93 Wn.2d 268, 274-275, 609 P.2d 961

(1980) (criminal prosecution). As noted, the Shoemaker test concerns both practical and

policy considerations before acceptance of administrative findings. For instance, in

Stevedoring Services, estoppel was not applied because the defendant had not had the

opportunity to fully develop its defense at the administrative hearing due to an error of

law made by the ALJ. 129 Wn.2d at 40-41. In Dupard, the court declined to give

conclusive effect to Parole Board rulings in a subsequent criminal prosecution due to

policy considerations. 93 Wn.2d at 274-277.

       Here, we believe that policy considerations favor application of collateral estoppel

to the ALJ's determination that July 16, 2012, was the date the couple separated. The

date was crucial to his future support obligation since, prior to that time, the couple

supposedly had been living together and supporting their child together. Determining the

date of separation was the primary issue in the support case and a matter well within the

ALJ's authority to resolve. Dr. Thorn himself asserted that dat~ (as well as the following

day) in his testimony, and his counsel asserted that date should be the basis for the ALJ's


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No. 34151-8-111
Thorn v. Cromer


decision. 5 Given all of these considerations, this is exactly the type of administrative

determination that should be subject to estoppel in a future proceeding. The trial court

correctly applied collateral estoppel to the ALJ's factual determination that July 16 was

the date the relationship ended.

       Accordingly, this action was untimely filed. Summary judgment therefore was

proper. The judgment is affirmed. 6

       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:.




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                                                         Lawrence-Berrey, J.

       5
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          In view of our conclusion, we do not independently consider whether judicial
estoppel would also apply to prevent Dr. Thorn from arguing a position here that is
inconsistent with the position he argued to the ALJ. See King v. Clodfelter, 10 Wn. App.
514, 519, 518 P .2d 206 (197 4) ("The purpose of judicial estoppel is to bar as evidence
statements and declarations by a party which would be contrary to sworn testimony the
party has given in the same or prior judicial proceedings."); Cunningham v. Reliable
Concrete Pumping, Inc., 126 Wn. App. 222, 224-225, 108 P.3d 147 (2005). A second
purpose of the doctrine is to "preserve respect for judicial proceedings." Arkison v. Ethan
Allen, Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007) (internal quotation marks omitted).
        6
          Although it is a close call, we decline Ms. Cromer's request that we award her
sanctions for responding to a frivolous appeal. Given that the statute of limitations was
only missed by one day, we do not think that the appeal, although without merit, was
necessarily frivolous.

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