                                                                           FILED
                                                                        JULY 10, 2018
                                                                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. 35090-8-III
LISA MARIE HERRMANN,                          )
                                              )
                      Respondent,             )
                                              )
       and                                    )         UNPUBLISHED OPINION
                                              )
PAUL ALAN HERRMANN, JR.,                      )
                                              )
                      Appellant.              )

       FEARING, J. — Former husband Paul Herrmann appeals the trial court’s order

vacating an earlier order that modified his obligation to pay child support and erased a

debt for past due support. Because the trial court did not abuse its discretion, we affirm

the vacation of the earlier order.

                                          FACTS

       Lisa Herrmann, now known as Lisa Morgan (Morgan), filed for divorce from Paul

Herrmann (Herrmann) in 2004. A parenting plan, entered two years later, granted

Morgan primary custody of the parties’ two children, age four and two at the time. A
No. 35090-8-III
In re Marriage of Herrmann


child support order, also entered in 2006, required Herrmann to pay a total of $1,000 per

month. In 2011, the trial court modified the child support order due to a decrease in

Herrmann’s income. The new order required Herrmann to pay $765 per month, which

amount would increase to $850 per month starting December 1, 2012.

       In October 2012, Lisa Morgan filed a petition to modify the parenting plan by

adding an antiharassment protection order suspending all contact between Paul Herrmann

and the two children. Morgan did not seek modification of the child support order.

Herrmann did not file an answer to the petition for a restraining order, nor did he file a

petition to modify child support.

       Both parties’ attorneys appeared in court on August 27, 2014, without their

respective clients present. Lisa Morgan had not seen a final agreement before the hearing

so, in advance of the hearing, she authorized her attorney to present her positions to Paul

Herrmann’s counsel and to gain clarification of Herrmann’s positions. Morgan expressly

instructed her attorney not to sign any final documents until he relayed to Morgan the

clarification she requested.

       The trial court entered a new parenting plan on August 27, 2014, which plan

reduced Paul Herrmann’s visitation with the children to one supervised visit per year,

lasting not longer than six hours. On August 27, the trial court also entered an order

modifying child support despite no pending motion or petition requesting modification.

Herrmann’s and Morgan’s attorneys completed a child support worksheet that imputed

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In re Marriage of Herrmann


$2,000 as monthly net income for Morgan and $3,000 as a monthly net income for

Herrmann. The attorneys, however, provided no evidence, such as tax returns or

paystubs, to the court to verify income. The standard calculation for child support for

Herrmann was then $850. Nevertheless, the order entered waived his monthly transfer

payment in its entirety. The only justification identified in the order for waiver of child

support declared that Herrmann, who lived in Texas, needed to pay all transportation

expenses, including lodging, rental fees, and meals, to exercise visitation in Washington

State.

         In addition to granting Paul Herrmann a downward deviation in child support, the

August 2014 modified support order required Lisa Morgan to pay all health insurance for

the children and awarded a dependency tax exemption to Herrmann. The order also

relieved Herrmann of $2,465 in back support owed by erroneously stating that “[n]o back

child support is owed at this time.” Clerk’s Papers at 346.

                                       PROCEDURE

         On September 18, 2015, Lisa Morgan moved the court to vacate the August 2014

order and reinstate the 2011 child support order. Morgan sought relief pursuant to

CR 60(b)(5) and (b)(11) because neither she nor Paul Herrmann had petitioned the court

to modify child support and Morgan never authorized her attorney to sign an order on her

behalf that would relieve Herrmann of his duty to pay child support. Morgan also argued

the order was void as against public policy because the order eliminated Herrmann’s duty

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In re Marriage of Herrmann


to pay child support. Finally, Morgan contended that the order was void for

noncompliance with Washington statutes regarding healthcare costs and the verification

of income required to deviate from a standard child support calculation. Among other

responses to the motion to vacate, Herrmann argued the order did not violate public

policy because it did not foreclose Morgan from modifying the order in the future.

       At a June 17, 2016 hearing on Lisa Morgan’s motion to vacate, the trial court

agreed many irregularities led to the entry of the August 2014 order. The court observed

that Morgan never asked for any changes to the preexisting child support order and that

the court never determined adequate cause before modifying the support order. Instead,

the 2014 trial court signed an order of adequate cause when it signed the modification

order. When addressing Herrmann’s response to Morgan’s public policy argument, the

trial court iterated that Morgan lacked the ability to indiscriminately modify the 2014

order at some indefinite time in the future. Instead, Morgan needed to show a change in

circumstances to modify the order.

       During the June 17, 2016 hearing, the trial court noted other irregularities in the

August 2014 modification of child support order. Paul Herrmann’s child support

obligation changed from $761 per month to nothing despite the order listing both parties

as garnering suitable incomes. The court observed the lack of a record to justify a zero

transfer payment. The 2014 order also extinguished back support owed without any

justification. The trial court concluded that unusual circumstances surrounded entry of

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In re Marriage of Herrmann


the August 2014 order and further concluded that the basis for vacating the order did not

neatly fit within any provision of CR 60(b)(1) through (10). Nevertheless, the trial court

vacated the order pursuant to CR 60(b)(1).

       On October 10, 2016, both parties sought reconsideration of the trial court’s June

2016 ruling on the basis that the court lacked authority to vacate the 2014 order under

CR 60(b)(1) when Lisa Morgan had filed her motion more than one year after entry of the

order. Both parties also noted that Morgan never sought relief pursuant to CR 60(b)(1).

As she had in her original motion to vacate, Morgan again sought relief under

CR 60(b)(5) or CR 60(b)(11). The trial court issued another ruling on November 9, 2016.

The court conceded error because it lacked discretion to extend the time in which to bring

a motion to vacate under CR 60(b)(1). The court granted Morgan’s motion for

reconsideration and vacated the August 2014 order as void under both CR 60(b)(5) and

(b)(11). The trial court reinstated the 2011 child support order and entered judgment for

$22,015 in back child support: $19,550 from August 2014 through July 2016 in addition

to the $2,465 originally owed.

                                 LAW AND ANALYSIS

              2016 Order Vacating 2014 Child Support Modification Order

       On appeal, Paul Herrmann contends the trial court erred when it granted Lisa

Morgan’s 2016 motion to vacate portions of the August 27, 2014 order modifying child

support. He asks that the 2014 order be affirmed such that he is relieved of both past and

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No. 35090-8-III
In re Marriage of Herrmann


current child support obligations.

       The trial court holds discretion when granting or denying a motion to vacate, and

this court will not reverse the decision in the absence of a manifest abuse of discretion.

Gustafson v. Gustafson, 54 Wn. App. 66, 70, 772 P.2d 1031 (1989). A court abuses its

discretion when its decision is based on untenable grounds or reasoning. Barr v.

MacGugan, 119 Wn. App. 43, 46, 78 P.3d 660 (2003). Proceedings to vacate judgments

are equitable in nature, and the trial court is encouraged to exercise its authority liberally

to preserve substantial rights and do justice between the parties. In re Marriage of Hardt,

39 Wn. App. 493, 496, 693 P.2d 1386 (1985).

       Washington consistently holds that parents cannot agree to waive child support

obligations. In re Marriage of Fox, 58 Wn. App. 935, 937 n.3, 795 P.2d 1170 (1990); In

re Marriage of Pippins, 46 Wn. App. 805, 808, 732 P.2d 1005 (1987); In re Marriage of

Watkins, 42 Wn. App. 371, 373-74, 710 P.2d 819 (1985); State ex rel. Lucas v. Superior

Court, 193 Wash. 74, 78, 74 P.2d 888 (1937). Such agreements violate public policy and

are thereby void and unenforceable. In re Marriage of Hammack, 114 Wn. App. 805,

808, 810-11, 60 P.3d 663 (2003); In re Marriage of Pippins, 46 Wn. App. at 808.

CR 60(b)(5) allows a court to vacate a void order or judgment. The moving party must

file a motion for relief under CR 60(b)(5) within a reasonable time. CR 60(b).

       The trial court, in vacating the 2014 order, relied principally on In re Marriage of

Hammack, 114 Wn. App. 805 (2003), to find the August 2014 order void as against

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In re Marriage of Herrmann


public policy. Herrmann denies the relevance of the Hammack decision. He also argues

that agreements exempting a parent from paying child support violate public policy only

when the agreement seeks to foreclose the right of either party to seek modification in the

future. Herrmann emphasizes that the 2014 order did not preclude Lisa Morgan from

seeking modification in the future.

       In Marriage of Hammack, a husband and wife incorporated a provision in their

dissolution decree that awarded the husband property worth $362,000, while the wife

received property worth $15,000. The trial court approved the disparate division based

on an oral agreement exempting the wife from paying any future child support. Despite

the agreement and order, the husband later moved for an award of child support. The

trial court found the parties’ oral child support agreement invalid and ordered the wife to

pay support. The wife responded by moving to vacate the property settlement that the

court granted.

       On appeal, in Marriage of Hammack, this court affirmed the trial court’s vacation

of the agreement. This court held that, because the wife agreed to an inequitable division

of property in exchange for release from child support obligations, the entire agreement,

including the division of property, was void and unenforceable from its inception. The

court noted that a disparate division of property may satisfy one spouse’s child support

obligations when treated as an “advance payment” on support and if the parties followed

some procedural rules. In re Marriage of Hammack, 114 Wn. App. at 809. The parties

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No. 35090-8-III
In re Marriage of Herrmann


failed to calculate an appropriate child support sum, failed to quantify the value of the

property the wife relinquished in lieu of paying future support, and failed to preserve the

right for the husband to seek future child support.

       We distinguish Marriage of Hammack with Holaday v. Merceri, 49 Wn. App.

321, 742 P.2d 127 (1987), on which Paul Herrmann relies. Nevertheless, Holaday v.

Merceri does not stand for the proposition that a parent can forgo paying child support as

long as the order waiving support does not foreclose an obligation in the future as

Herrmann asserts. Similar to Hammack, Holaday involved a disparate division of

property that functioned as an offset of child support payments the wife would otherwise

pay. Yet, in Holaday, the court found the agreement valid despite the husband’s

argument that a parent cannot agree to terminate support obligations. The court upheld

the validity of the agreement because (1) the trial court found that the parties agreed to a

disparate division of property in order to satisfy the wife’s portion of child support, (2)

the trial court explained how the difference in the husband’s and wife’s equity in property

substituted for child support when invested at a certain interest rate, (3) the trial court

calculated the value of the property and found the amount of the waiver of child support

to be reasonable, and (4) the trial court inferred in one of its findings that changed

circumstances may require a support payment from the wife.

       The facts in Paul Herrmann’s appeal align with the circumstances in Marriage of

Hammack, not with Holaday v. Merceri. The August 2014 order failed to calculate a

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No. 35090-8-III
In re Marriage of Herrmann


reasonable amount of support for the children. The order omitted any calculation of the

costs of Herrmann’s yearly trip to visit his children, and the order failed to compare the

two figures. Additionally, Paul Herrmann does not cite any authority that exempts a

parent from paying child support due to costs related to exercising visitation rights. The

only cases cited address disparate property divisions and how the division may function

as an advance payment for child support.

       Our analysis does not change because Lisa Morgan could theoretically modify

child support in the future since requesting such a modification would not reinstate the

back child support obligation Paul Herrmann owed before the August 2014 order

erroneously erased the obligation. Also, Morgan could not freely modify the 2014 order,

but would need to show a substantial and uncontemplated change of circumstances. In re

Marriage of Burch, 81 Wn. App. 756, 761, 916 P.2d 443 (1996).

       The August 2014 order also violated numerous Washington statutes.

RCW 26.19.071(1) dictates that all income and resources of each parent’s household

shall be disclosed and considered by the court when determining child support

obligations for each parent. The statute also demands the provision of tax returns or

current paystubs to verify income and deductions. RCW 26.19.071(2). Under a related

statute, if the court deviates from the standard calculation of income, it shall enter

findings that specify reasons for any deviation from the standard calculation.



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In re Marriage of Herrmann


RCW 26.19.075(3). RCW 26.19.080(2) demands that monthly health care costs be

shared by the parents in the same proportion as the child support obligation.

       In short, many reasons support the trial court’s decision voiding the August 2014

child support modification order. Also, in compliance with CR 60(b)(5), Lisa Morgan

filed her motion to vacate in a reasonable amount of time. The trial court did not abuse

its discretion in granting the motion to vacate.

       The trial court also held authority to vacate the August 2014 order under

CR 60(b)(11) because the order provided greater relief than Lisa Morgan requested. In re

Marriage of Hardt, 39 Wn. App. at 495-96 (1985). In Hardt, this court affirmed the

lower court’s vacation of a five-year-old order under this reasoning. Our Supreme Court

later adopted this rule in In re Marriage of Leslie, 112 Wn.2d 612, 772 P.2d 1013 (1989).

In 2012, Morgan only requested to modify the parenting plan. Herrmann did not file an

answer or any petition to modify child support. Thus, the 2014 order provided greater

relief than requested.

                                       Attorney Fees

       Lisa Morgan asks this court to award her reasonable attorney fees on appeal

pursuant to RAP 18.1(a) and RCW 26.09.140. The statute allows reasonable attorney

fees to be ordered after considering the financial resources of both parties.

RCW 26.09.140. Our record establishes that Paul Herrmann garners a higher income



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In re Marriage of Herrmann


than Morgan. Morgan also shows a need for recovery of fees as her monthly expenses

exceed her income.

       Lisa Morgan also seeks attorney fees due to Paul Herrmann’s intransigence and

harassing litigation techniques. A finding of intransigence renders irrelevant the financial

resources of the spouse seeking the award. In re Marriage of Greenlee, 65 Wn. App.

703, 708, 829 P.2d 1120 (1992); In re Marriage of Morrow, 53 Wn. App. 579, 590, 770

P.2d 197 (1989). Intransigence is a basis for attorney fees in dissolution proceedings and

may involve foot-dragging, obstructing, filing unnecessary or frivolous motions, or any

other conduct that renders the proceeding unduly difficult or costly. In re Marriage of

Greenlee, 65 Wn. App. at 708.

       The trial court found that Paul Herrmann employs litigation as a “legal form of

harassment” against Lisa Morgan and sanctioned Herrmann. Report of Proceedings at

24-25. The trial court also noted the marriage dissolution proceeding has lasted thirteen

years and contains twenty-one volumes of over 1,200 pleadings. Based on this

intransigence and the financial need of Morgan, this court awards her attorney fees.

                                     CONCLUSION

       We affirm the trial court’s vacation of the August 2014 child support modification

order. We award Lisa Morgan reasonable attorney fees and costs on appeal against Paul

Herrmann.



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No. 35090-8-111
In re Marriage of Herrmann


      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.


                                                  ~              1
                                                                  d
                                             Fearing,~

WE CONCUR:




Pennell, A.CJ.




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