                                                                                                SLED
                                                                                         COURT OF APPEA! S
                                                                                              DIVISfai 11 .-
                                                                                        2013 SEP -4 AM 10{ 21
     IN THE COURT OF APPEALS OF THE STATE O '} '
                                                                                                   r 6ON
                                                     DIVISION II                        f3Y
                                                                                               0"UTY
MATTHEW ANDERSON,                                                                 No. 43125 4 II
                                                                                            - -


                                     Appellant,



TAMRA ANDERSON,                                                            UNPUBLISHED OPINION




          PENOYAR J. —Matthew               Anderson appeals the superior court's denial of his motion to

revise the commissioner's ruling adjusting his child support obligation to his former wife, Tamra

Anderson. Matthew argues that (1)the commissioner did not have the authority to grant the

adjustment because the statutorily required 24 month waiting period had not passed since the
                                               -

superior court entered the child support order, and (2)the commissioner erred by failing to

continue his previously allowed deviation from the statutory child support schedule. We hold
that Matthew lost his right to object to the timeliness of the adjustment by affirmatively agreeing

that it was timely and by asking the commissioner to grant certain specific relief to him in ruling

on the motion. But we agree that the deviation that the arbitrator and the court previously ordered

was improperly revoked because Tamra did not plead or prove a substantial change in
circumstances.          Accordingly, we reverse the superior court's denial of Matthew's motion to

revise the commissioner's ruling adjusting the child support order.

                                                          FACTS


          In May 2009, Matthew and Tamra entered marital dissolution and child support

agreements through arbitration.                   But instead of immediately filing the child support and


1
    We   use   the   parties' first names   for   clarity; we   mean no   disrespect.
43125 4 II
      - -



dissolution agreements, Matthew and Tamra waited until September 10, 2010, ( oughly 16
                                                                           r

months) before filing these documents with Pierce County Superior Court.'Approximately 12

months later, Tamra filed a motion to adjust the child support order with a superior court

commissioner, stating:

       It [has been] more than 24 months since the [child support] order was entered by
       arbitration dated May 17, 2009 or since the last incremental change went into
       effect, whichever is later, and there have been changes in the economic table or
       standards in RCW 26. 9 as follows:... the amount of child support was
                             1                    Since
       arbitrated a new standard for the calculation of child support was adopted by the
       State.... is no longer any factual basis to allow Father a deviation in his
             There
       child support obligation.

Clerk's Papers (CP)at 113 14.
                          -

       Matthew filed a responsive declaration agreeing that "it had] been more than two years
                                                                [

since support was last ordered," requesting the court to enter an order that would continue to
                               but

permit his previously allowed deviation from the statutory child support schedule. CP at 157.
The commissioner granted Tamra's motion and adjusted Matthew's child support obligation

upward; the commissioner denied Matthew's request to continue his deviation, finding that " o
                                                                                          n

good reasons exist[ d]to justify the deviation."CP at 187.
                  e

       Following a substitution of counsel, Matthew moved the superior court to revise the

commissioner's ruling, arguing that Tamra's motion to adjust should have been denied because it

was premature under RCW 26. 9. also argued that the commissioner erred by
                        a);
                        170(
                           7 he
                           0 )(
terminating his previously allowed deviation. The superior court denied the motion. Matthew

appeals the superior court's denial.




                                               0
43125 4 II
      - -



                                            ANALYSIS


I.       TIMELINESS OF THE CHILD SUPPORT ADJUSTMENT


         Matthew argues that the superior court erred by denying his motion to revise because the

24 month waiting period in RCW 26. 9. clear and begins to run when the initial
   -                           a)
                               170(
                                  7 is
                                  0 )(

child support order is filed with the superior court. We conclude that Matthew waived this issue

by agreeing before   the commissioner that Tamra's     adjustment   action   was   timely.

         A.      Statutory Interpretation and Plain Meaning

         The interpretation and applicability of a statute presents questions of law that we review

de   novo.    Grey v. Leach, 158 Wn. App. 837, 844, 244 P. d 970 (2010). When interpreting a
                                                         3

statute, we seek to ascertain the legislature's intent. State v. Jacobs, 154 Wn. d 596, 600, 115
                                                                               2

P. d 281 ( 2005). Where
 3                           a statute's meaning is plain on its face, we must give effect to that

meaning as expressing the legislature's intent. Jacobs, 154 Wn. d at 600.
                                                              2

         Among other things, RCW 26. 9.governs a parent's ability to modify a child support
                                 170
                                   0

order; modifications generally are limited to situations where there has been a "substantial

change of circumstances."       RCW    26. 9. As an exception to this general. limitation,
                                       170(
                                          1
                                          0 ).

RCW 26. 9.
    a)
    170(
       7)(
       0 provides,

         If twenty four months have passed from the date of the entry of the order or the
                    -
         last adjustment or modification, whichever is later, the order may be adjusted
         without a showing of substantially changed circumstances based upon: (i)


2
    Though Tamra does not argue waiver in any detail, she does rely on the fact that Matthew
agreed the 24 month period had run. See Casper v. Esteb Enters.,Inc., Wn. App. 759, 771,
              -                                                     119
82 P. d 1223 (2004)under invited error doctrine, party may not set up error at trial and then
    3               (
complain of it on appeal).Moreover, we may affirm on any basis the record supports. Truck
Ins. Exch. v. Vanport Homes, Inc., Wn. d 751, 766, 58 P. d 276 (2002).
                                 147 2                 3
3
    Neither parry in this case alleges substantially changed circumstances, so no claim exists under
RCW 26. 9.
    170(
       1
       0 ).
                                                   3
43125 4 II
      - -




         c] in the income of the parents; or (ii) [ hanges in the economic table or
          hanges                                 c]
         standards in chapter 26. 9 RCW.
                                1

         Neither party explains the lengthy delay in entering the child support agreement

following arbitration. Br. of Appellant at 6;Br. of Resp't at 10. But there is no question that the

adjustment was sought less than 24 months after the arbitrator's decision was filed with the
court.   RCW 26. 9.
             a) adjustments only "[
             170(
                7)(
                0  permits        iff twenty- our months have passed
                                            f

from the date of the entry ofthe order."Italics added). Thus, under the plain meaning of the
                                         (

statute, Tamra's motion   was   untimely.
         B.     Waiver


         We conclude, however, that Matthew waived the ability to raise the timeliness issue in

his motion for revision and on appeal when he responded to Tamra's motion for adjustment by

asserting before the commissioner that the 24 month period had run and by requesting
                                              -
substantive relief.


         Waiver can occur if the defendant's assertion of a defense is inconsistent with his

previous behavior. Haywood v. Aranda, 143 Wn. d 231, 239, 19 P. d 406 (2001). Although
                                            2                 3

jurisdictional time limits cannot be waived, nonjurisdictional time periods are subject to waiver.

See State v. Walker, 153 Wn. App. 701, 705 n. , 224 P. d 814 (2009) because criminal statute
                                            2        3               (

of limitations is jurisdictional, unlike civil statute of limitations, it cannot be waived). See also
Hazel v. Van Beek, 135 Wn. d 45,61,954 P. d 1301 (1998)ifjudgment life span was " ormal"
                         2              2               (              -        n

4 Tamra argues that the arbitrator's decision should be treated as filed with the court when it was
made, asserting that (1) arbitration statutes should be read together with title 26 RCW so that
                        the
arbitrators' decisions are treated like court orders and (2)the trial court here made the child
support order effective to the date the arbitrator entered it and thus it should be treated as though
filed with the court on that date. Though both lines of reasoning have arguable merit, we resolve
the issue on the legal consequences that flow from Matthew's affirmatively informing the
commissioner that the 24 month period had in fact elapsed and requesting that the commissioner
                         -
grant him affirmative relief.
                                                  4
43125 4 II
      - -



statute of limitations, petitioner could argue equitable tolling);
                                                                 State v. Duvall, 86 Wn. App. 871,

874, 940 P. d 671 (1997) ordinary"statutory time limitation, as opposed to jurisdictional limit,
          2              ("

may be waived).

         A court has jurisdiction after a party commences or institutes an action. Lewis County V.

W. Wash. Growth Mgmt..
                    Hearings Bd., Wn. App. 142, 153 54, 53 P. d 44 (2002).At issue
                                113                 -       3

here is a child support adjustment action brought well after the commencement of the initial
dissolution action and the court's           assumption    of   continuing jurisdiction     over   that action. As


stated, RCW 26. 9.outlines some of the procedures for modifying child support orders, and
            170
              0

subsection (7)allows the parties to adjust a child support order every 24 months without showing
a   substantial   change     in circumstances. Kauzlarich        v.   Dep't of Soc. & Health Servs.,132 Wn.

App. 868, 874, 134 P. d 1183 (2006); re Marriage of Scanlon, 109 Wn. App. 167, 173, 34
                    3              In
P. d 877 (2001). A 24 month adjustment action under RCW 26. 9.is a routine action
 3                    -                                 170(
                                                           7
                                                           0 )

that may be effected by moving for a hearing; no summons or trial is necessary. "An adjustment
action therefore simply conforms existing provisions of a child support order to the parties'
current circumstances."Scanlon, 109 Wn. App. at 173.

         It is clear that the 24 month time period 'set forth in RCW 26. 9. is
                                 -                                   170(
                                                                        7
                                                                        0 )

nonjurisdictional in nature and may be waived. The civil rules support this conclusion, as CR
                  that             shall   set forth"in   an answer    to   a                      any ...
                                                                                preceding pleading "         matter
8( )provides
 c                       a   party "

constituting an avoidance or affirmative defense." Generally, affirmative defenses are waived

unless they are affirmatively pleaded under CR 8, asserted in a motion under CR 12( ), tried
                                                                                  b or
by the express or implied consent of the parties. Henderson v. Tyrrell, 80 Wn. App. 592, 624,
910 P. d 522 (1996).
     2



                                                            5
43125 4 II "
      - -




          The doctrine of judicial estoppel also supports waiver in this case. "` udicial estoppel is
                                                                                J

an equitable doctrine that precludes a party from asserting one position in a court proceeding and
later   seeking   an   advantage by taking   a   clearly   inconsistent   position. "' Arkison v. Ethan Allen,

Inc.,160 Wn. d 535, 538, 160 P. d 13 (2007) quoting Bartley-Williams v. Kendall, 134 Wn.
           2                  3             (

App. 95, 98, 138 P. d 1103 (2006)). determining whether the doctrine applies, we consider
                  3               In

1)whether a party's later position is clearly inconsistent with its earlier position; 2)whether
                                                                                      (

judicial acceptance of an inconsistent position in a later proceeding would create the perception
that either the first or the second court was misled, and (3)whether the party seeking to assert an

inconsistent position would derive an unfair advantage or impose an unfair detriment on the

opposing party if not estopped. Kellar v. Estate ofKellar, 172 Wn. App. 562, 580, 291 P. d 906
                                                                                       3
2012).

          Matthew's assertion in the superior court that Tamra's adjustment motion was untimely
                                                               its timeliness before the commissioner.    The
was     clearly inconsistent with his agreement        on




commissioner was misled on that issue by the parties' agreement, and Tamra relied on that

agreement in her appearances before both the commissioner and the superior court. Having lost
on the merits in the adjustment proceeding, Matthew cannot have a second bite of the apple; he

has lost the right to subsequently assert a procedural defense that he had formerly repudiated.
          C.       Deviation Revocation


          Despite our holding regarding Matthew's waiver of the timeliness issue, we conclude that
he is entitled to relief based on his additional challenge to the commissioner's deviation ruling.

By its nature, an adjustment action does not require the moving party to show a substantial

change in circumstances         to obtain relief.     1 WASH. STATE BAR ASSN, WASH. FAMILY LAW

DESKBOOK, §        3),
                   28. ( 28 73 (2nd ed. 2000 and Supp. 2012). RCW 26. 9.
                     7 at -             .                         170(
                                                                     7 allows an
                                                                     0 )
                                                           a
43125 4 II
      - -



adjustment of child support based on changes in the parties' incomes or changes in the economic
table or standards in chapter 26. 9 RCW. RCW 26. 9.
                                1            a)(
                                             170(
                                                i),
                                                7)( court's authority
                                                0 ii).
                                                     The                                               (

under this statute is limited to simply conforming existing calculations in a child support order to

the              current   circumstances   and the   current   statutory standards.   1   FAMILY LAW
      parties'

DESKBOOK, at 28 72. Absent a substantial change of circumstances, a court does not also have
                -

authority in an adjustment proceeding to modify a prior court's deviation decision. See In re

Marriage of Trichak, 72 Wn. App. 21, 23 24, 863 P. d 585 (1993)prior court's deviation may
                                        -        2             (
be modified where substantial change in circumstances is shown).

H.       ATTORNEY FEES


         Matthew has requested attorney fees on appeal; Tamra has not. The prevailing party is

entitled to an award of reasonable attorney fees on appeal if such recovery is allowed by statute,

rule, or contract, and if the party requests fees under RAP 18. ( Malted Mousse, Inc. v.
                                                            a).
                                                              1

Steinmetz, 150 Wn. d 518, 535, 79 P. d 1154 ( 2003). Where both parties prevail on major
                 2                 3


issues, however, neither is the prevailing party for the purpose of RAP 18. . Seashore Villa
                                                                          1


Ass'n v. Hugglund Family Ltd. P'hip, 163 Wn. App. 531, 547, 260 P. d 906 (2011),review
                               s                                 3

denied, 173 Wn. d 1036 (2012).We decline to award Matthew attorney fees on appeal because
              2

he prevailed only in part, noting in addition that he failed to cite to authority supporting his

request. Coballes v. Spokane County, 167 Wn. App. 857, 869, 274 P. d 1102 (2012).
                                                                 3




                                                     7
43125 4 II
      - -



       We reverse the superior court's denial of Matthew's motion to revise the commissioner's

ruling adjusting the child support order.

       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 in accordance with RCW

040,
2.6.it is so ordered.
 0




We concur:


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