Washington Court of Appeals Reports

(Wash.App. 12-18-2006) In the Matter of the Marriage of
Appellant. No. 57215-6-I. The Court of Appeals of
Washington, Division One. Filed December 18, 2006.

Appeal from King County Superior Court Docket No:
99-3-07767-2 Judgment Or Order Under Review Date filed:
10/25/2005 Judge Signing: Honorable Leroy Mccullough.

Counsel for Appellant(s), Catherine Wright Smith Edwards
Sieh Smith & Goodfriend PS 1109 1st Ave Ste 500 Seattle,
WA, 98101-2988.

Devin T Theriot-orr Edwards Sieh Smith & Goodfriend 1109
1st Ave Ste 500 Seattle, WA, 98101-2988.

Counsel for Respondent(s), Patricia S. Novotny Attorney at
Law 3418 Ne 65th St Ste A Seattle, WA, 98115-7397


Rick Krell and his former wife Catherine entered a complete
agreed decree of dissolution, which did not incorporate by
reference or even mention any other document. The trial
court did not abuse its discretion in denying Rick’s CR
60(a) motion five years later to alter the decree’s
maintenance provision to conform to an alleged pretrial
agreement because the trial record does not show any
clerical error in the decree. We affirm.


In 2000, Catherine and Rick Krell dissolved their 24 year
marriage. Rick was a successful dentist, and Catherine had
not worked outside the home for many years. The agreed
findings of fact, decree of dissolution, and order of child
support valued and divided the marital property, provided
for support for the couple’s minor children, and ordered
$4,000 per month in nonmodifiable maintenance to Catherine
until she died or remarried.[fn1] The dissolution decree
was entered on an ex parte calendar before King County
Superior Court Commissioner Stephen Gaddis.

In 2004, Rick’s attorney contacted Catherine’s former
counsel. Referencing a document the parties and counsel had
signed in August 2000 entitled “CR 2A Stipulation of
Settlement and Agreement to Enforce,” which provided for a
maintenance award of 60 months, Rick’s counsel requested
assistance in amending the decree. Catherine’s former
counsel declined to cooperate, and Rick later filed a
motion under CR 60(a) to correct what he characterized as
the clerical error of omitting the 60 month limit. Court
Commissioner Leonid Ponomarchuk denied Rick’s motion, and
Superior Court Judge Leroy McCullough denied Rick’s motion
for revision. Rick appeals.


CR 60(a) provides:

Clerical Mistakes. Clerical mistakes in judgments, orders
or other parts of the record and errors therein arising
from oversight or omission may be corrected by the court
at any time of its own initiative or on the motion of
any party and after such notice, if any, as the court
orders. Such mistakes may be so corrected before review is
accepted by an appellate court, and thereafter may be
corrected pursuant to RAP 7.2(e).

This court reviews a trial court’s decision whether to
vacate or amend a judgment or order under CR 60 for an
abuse of discretion.[fn2] We will not overturn the decision
unless the trial court exercised its discretion on
untenable grounds or for untenable reasons.[fn3].

A court may use CR 60(a) to correct clerical errors.[fn4] A
clerical error is merely a mechanical mistake, contrasted
with a judicial error, which is one of substance.[fn5] The
test in determining whether an error is “clerical” or
“judicial” is whether the amended judgment reflects the
court’s intention as expressed in the trial record.[fn6] If
the corrected judgment embodies the court’s intentions, the
error may be considered “clerical” because “the amended
judgment merely corrects language that did not correctly
convey the intention of the court.”[fn7] But “[a] court
cannot use CR 60(a) to correct judicial error, i.e., error
that involves an intentional act of the court.”[fn8] CR
60(a) does not permit a court to rethink the case and enter
an amended judgment that conflicts with the judgment
announced earlier.[fn9]

Relying on the statement that “[t]he findings are based on
agreement” in the dissolution findings of fact, Rick
contends that Commissioner Gaddis’s intent was to implement
the parties’ CR 2A agreement and that granting his motion
was therefore appropriate under CR 60(a). The relevant
facts for CR 60(a) purposes, however, are those that were
before the trial court at the time of the judgment that a
litigant later seeks to correct.[fn10] Here, the record of
what was before Commissioner Gaddis is essentially limited
to the proposed language of the agreed findings and
decree.[fn11] That language does not refer to any agreement
other than to the one embodied in the decree itself, which
was comprehensive and clearly provided for maintenance that
“shall be terminated upon the death or remarriage of the
wife.”[fn12] Indeed, the court’s findings expressly recited
that “[t]here is no written separation contract or
prenuptial agreement.” As Rick acknowledges, there is no
evidence that Commissioner Gaddis had before him the CR 2A
agreement or even an indirect reference to its existence.

From the scant record, it is reasonable to conclude that
Commissioner Gaddis believed the parties’ agreement
regarding maintenance was exactly what was expressed in the
comprehensive agreed findings and decree before him. The
trial court that denied Rick’s motion thus had a tenable
basis for its conclusion that the language of the agreed
decree accurately embodied Commissioner Gaddis’s intent
regarding maintenance. And having reached that conclusion,
the court did not err because CR 60(a) cannot be used to
correct error arising from a court’s “intentional
act.”[fn13] Rick’s reliance upon Marriage of Getz[fn14] is
misplaced. In Getz, this court found it significant that the
judge that granted a motion under CR 60(a) to correct a
clerical error of omitting one of two pension plans from a
dissolution decree was the judge who had presided over the
contested trial, because he was able to draw upon his
recollection of the original proceeding.[fn15] The court
also was able to review the trial court’s oral ruling and
could determine it was consistent with the amended
judgment.[fn16] Those factors are not present here. More
analogous to the present case are In re the Marriage of
Kimpel,[fn17] and In re the Estate of Harford.[fn18] In each
of these cases, the trial court erroneously attempted to
correct, under CR 60(a), not its own error, but the
parties’ alleged error in a stipulated agreement they had
placed before the court. The superior court here correctly
recognized that Rick was requesting the same type of
improper relief.[fn19] We also understand Rick’s failure to
recognize the problem earlier because he expected to pay
maintenance for five years under the agreement and did not
sign the decree, apparently

The trial court denied Catherine’s request for fees under
RCW 26.09.140. Considering the parties’ financial
circumstances and the issues raised, we likewise deny her
request for attorney fees on appeal.


For the Court:

relying on his counsel who did sign it. And we recognize
that when Rick discovered the problem, he may have believed
he could not move for relief under rules like CR 60(b)(1),
which require motions within a year of judgment. The only
issue before us, however, is whether the trial court
properly denied Rick’s motion under CR 60(a). For the
reasons stated above, we are compelled to affirm that
order. We express no opinion about any other remedy Rick
may have.

[fn1] The parties’ first names are used for the sake of
clarity. No disrespect is intended.

[fn2] Shaw v. City of Des Moines, 109 Wn. App. 896, 900, 37
P.3d 1255 (2002).

[fn3] Id. at 901.

[fn4] Id.; In re Marriage of Getz, 57 Wn. App. 602, 604, 789
P.2d 331 (1990).

[fn5] Marchel v. Bunger, 13 Wn. App. 81, 84, 533 P.2d 406,
review denied, 85 Wn.2d 1012 (1975).

[fn6] Presidential Estates Apartment Assocs. v. Barrett, 129
Wn.2d 320, 326, 917 P.2d 100 (1996); Shaw, 109 Wn. App. at

[fn7] Presidential, 129 Wn.2d at 326.

[fn8] Getz, 57 Wn. App. at 604.

[fn9] Presidential, 129 Wn.2d at 326.

[fn10] Id. For that reason, Rick’s citation to dicta in In
re Marriage of Kelly-Hansen, 87 Wn. App. 320, 334, 941 P.2d
1108 (1997), suggesting a party might obtain relief under
CR 60(a) by proving “that a final decree was mutually
intended to reflect the terms of a separation agreement,
but failed to do so due to scrivener’s error,” does not
help him. As Catherine points out, considering the balance
of the Kelly-Hansen opinion makes it clear that such proof
would have to come from the record before the trial judge.
In any event, we would be bound by our Supreme Court’s
language in Presidential over that of a panel from Division
II of this court in Kelly-Hansen if there were a conflict.
See State v. Gore, 101 Wn.2d 481, 486-87, 681 P.2d 227

[fn11] Apparently no verbatim record or recording of such
proceedings is normally made.

[fn12] Nor are the decree’s provisions regarding maintenance
unlawful or so unsuited to the parties’ financial condition
that we could say Commissioner Gaddis should have realized
the agreed decree before him contained an error. See In re
Marriage of Short, 125 Wn.2d 865, 876, 890 P.2d 12 (1995)
(maintenance can be made nonmodifiable by agreement); In re
Marriage of Sheffer, 60 Wn. App. 51, 57, 802 P.2d 817
(1990) (substantial maintenance proper when the marriage
was long term, the community benefit from husband’s career
was made possible by the wife’s forfeited economic
opportunities, and the husband’s superior earning capacity
was one of the community’s few assets); In re Marriage of
Morrow, 53 Wn. App. 579, 587-88, 770 P.2d 197 (1989)
(lifetime maintenance appropriate where wife was unable to
work and had forfeited economic opportunities during the 22
year marriage while the husband had capitalized on them).

[fn13] Getz, 57 Wn. App. at 604.

[fn14] 57 Wn. App. 602, 789 P.2d 331 (1990).

[fn15] Id. at 604-05 (distinguishing Barros v. Barros, 26
Wn. App. 363, 613 P.2d 547 (1980), for this reason).

[fn16] Id. at 605 n. 3.

[fn17] 122 Wn. App. 729, 94 P.3d 1022 (2004).

[fn18] 86 Wn. App. 259, 936 P.2d 48 (1997), review denied,
135 Wn.2d 1011 (1998).

[fn19] We are aware that affirming the trial court likely
means a windfall for Catherine at Rick’s expense because
the parties probably did not intend this result. Not only
did the CR 2A stipulation include the five year limit, but
in 2004, Catherine’s former counsel, who drafted and
presented the decree, wrote to Rick’s former counsel sure
enough, it does not translate the 60 month maintenance
provision into the Decree. This surprises me because we
haggled over the wording for some time. It appears the
Decree should be corrected, but I cannot help you. . . .
(Emphasis added.)