Filed Washington State Court of Appeals Division Two

May 15, 2018 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of the Marriage of No. 50059-1-II

ROXANNE SHORTWAY,

Appellant,

and

WILLIAM SHORTWAY, UNPUBLISHED OPINION Respondent.

WORSWICK, J. — Roxanne Shortway appeals a superior court order that determined the

Department of Social and Health Services, Division of Child Support (Department) lacked

jurisdiction to enter an administrative order. The administrative order established the amount of

day care expense arrearages her ex-husband, William Shortway, owed and also fixed a monthly

dollar amount for ongoing day care expenses.1 Rather than seek review of the administrative

order, William filed a motion in superior court challenging the order. Roxanne argues that

because William did not seek proper review of the Department order and because the

Department had authority to enter the order, the doctrine of res judicata precludes William from

collaterally attacking the order in superior court.

We hold that the superior court abused its discretion by determining that the Department

lacked the jurisdiction to enter its order and erred by allowing William to collaterally attack the

1 Because Roxanne and William share the same last name, we refer to them by their first names for clarity. No disrespect is intended. No. 50059-1-II

valid Department order after the order became final. We also hold that the superior court erred

by entering a judgment against Roxanne based on the improper collateral attack. We, reverse the

superior court’s February 2017 order invalidating the Department’s final order.

FACTS

Roxanne and William Shortway were married and had one child together, S.S. The

couple divorced, and the Kitsap County Superior Court entered an order of child support and a

parenting plan in July 2012. The superior court ordered William to pay $400 in child support

plus 71 percent of all day care expenses each month. Roxanne and S.S. reside in Victoria,

British Columbia, Canada.

Litigation between William and Roxanne has been extensive. In 2015, William filed a

petition to modify the parenting plan. During the modification proceedings, William sent

interrogatories to Roxanne seeking information regarding a day care expense subsidy she may

have received from the Canadian government.

Around the same time, Roxanne initiated an action with the Department seeking to

recover unpaid day care expenses from William. In November 2015, the Department sent

William a Notice of Support Owed explaining that William owed $4,480 in day care expense

arrearages and also informed William that he would be required to pay $345 each month as a

fixed dollar amount for day care expenses.

William then filed a motion in the superior court seeking to restrain the Department from

garnishing his wages pending Roxanne’s answers to his interrogatories about receiving a subsidy

from the Canadian government for day care expenses. William also requested that the court

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compel Roxanne to the answer interrogatories. The court granted William’s motion and

restrained the Department from proceeding.

Roxanne eventually answered the interrogatories, revealing that she received a day care

expense subsidy from the Canadian government. Based on this information, William filed a

motion in superior court seeking to determine any day care expense arrearages or overpayments.

William argued that Roxanne’s government subsidy reduced her overall day care expenses, and

thus, William had overpaid Roxanne. William also argued that he should not be obligated to pay

for various camps that S.S. attended because the camps were “extra-curricular activities” and not

day care expenses. Clerk’s Papers (CP) at 12.

In January 2016, the superior court held a hearing on William’s earlier petition to modify

the parenting plan. The court entered a new final parenting plan reflecting the modifications.

Despite that the hearing was a parenting plan modification hearing, the court made a partial oral

ruling on the day care expense issue and stated that William was entitled to reimbursement for

the government day care subsidy that Roxanne received. However, the court allowed Roxanne

to submit supplemental information about the camps to prove that the camps were actually used

in lieu of day care and were not extracurricular in nature.

In April 2016, while William’s motion to determine arrearages and overpayment of day

care expenses was still pending, Roxanne filed numerous motions with the superior court. The

superior court held a hearing on her motions, denied some, and declined to rule on others

because the issues were scheduled to be heard by the court at a later date.2 Roxanne also filed a

2 These motions are not germane to this appeal.

3 No. 50059-1-II

petition to modify the July 2012 child support order, requesting that the court adjust William’s

child support obligation and order William to pay arrearages for any support amounts owed.3

On June 13, 2016 the superior court heard argument on William’s motion on day care

expense arrearages and overpayment. The court ruled that William was not obligated to pay for

the camps because they were not day care expenses. The court calculated that William had

overpaid Roxanne in day care expenses in the amount of $1,158.54 as of February 28, 2016. The

court also established a methodology for calculating the appropriate currency exchange rates for

determining the day care expenses and ordered that “the exchange rate shall be determined by

the day the purchase or original payment was made.” CP at 386-87. The court further reiterated

William’s obligation to pay 71 percent of total day care expenses as ordered under the existing

July 2012 order of child support. On August 29, 2016, the superior court entered an order

reflecting its rulings.

On August 30, 2016, the day after the superior court entered its order on day care expense

arrearages, a Department administrative law judge (ALJ) held a hearing on Roxanne’s 2015

Department action against William. On October 17, the ALJ issued an order requiring William

to pay Roxanne day care expense arrearages and setting a fixed dollar amount for future day care

expenses.

As a basis for the Department’s jurisdiction, the ALJ cited to RCW 74.20A.055 and

RCW 74.20A.059. RCW 74.20A.055 provides in part:

(1) The secretary may, if there is no order that establishes the responsible parent’s support obligation or specifically relieves the responsible parent of a support obligation . . . , serve on the responsible parent or parents and custodial parent a notice and finding of financial

3 Based on our record on appeal, it appears the superior court has not yet ruled on Roxanne’s petition to modify the child support order.

4 No. 50059-1-II

responsibility . . . . This notice and finding shall relate to the support debt accrued and/or accruing under this chapter and/or RCW 26.16.205, including periodic payments to be made in the future.

RCW 74.20A.059(1)(a) states that the Department has the authority to establish child support so

long as the Department order has “not been superseded by a superior court order.” The ALJ also

noted that WAC 388-14A-3320(6)(c) authorizes the Department to determine “the amount of

monthly support as a fixed dollar amount,” and further cited RCW 26.23.110(1)(a), which allows

the Department to act where a support order “[d]oes not state the current and future support

obligation as a fixed dollar amount.”

The ALJ concluded that because the superior court order did not address a time period

after February 28, 2016, the Department had the authority under RCW 74.20A.055 and RCW

74.20A.059 to determine the amount of day care expense arrearages William owed from March

2016 forward. The ALJ also concluded that because the superior court’s order did not express

the day care expense obligation as a fixed dollar amount, the Department had the authority under

WAC 388-14A-3320(6)(c) and RCW 26.23.110(1)(a) to set a fixed monthly dollar amount for

William to pay going forward.

In determining the arrearages and the fixed monthly dollar amount, the ALJ applied the

superior court’s order that William pay 71 percent of S.S.’s day care expenses. The ALJ

attempted to apply the superior court’s methodology of calculating the currency exchange rate as

set forth in the superior court’s August 2016 order, but the ALJ erroneously applied the wrong

currency exchange rate which resulted in an order requiring William to pay more than the ALJ

intended. The Department ultimately ordered William to pay $3,084.46 in day care arrearages

plus a fixed amount of $421.70 per month for day care expenses beginning October 2016.

5 No. 50059-1-II

William never sought administrative review of the Department order. Instead, after the

ALJ entered the order, William filed a motion in the superior court titled “Motion Regarding

Daycare Arrearages and the Administrative Ruling.” CP at 454. In the motion, William

requested an order from the court establishing a current day care expense arrearage amount, a

determination of an offset for amounts he had already paid, and challenged the Department’s

determination that he owed a fixed dollar amount for day care expenses. William argued that

Roxanne’s reliance on the Department order was improper because the superior court’s August

2016 order “controls” over the proceedings. CP at 455.

Roxanne responded that because William failed to properly and timely seek

administrative review of the Department order, his motion should be dismissed as an improper

petition for judicial review of an administrative hearing. Roxanne asserted that the Department

order was proper because it covered a different period of time than the period covered in the

superior court order.

On February 3, 2017, the superior court entered a written order containing findings of

fact and conclusions of law. The court concluded that the Department lacked jurisdiction to

enter an order regarding William’s day care expense obligation because the superior court’s July

2012 and August 2016 orders were preexisting and were not “silent.”4 CP at 527. The superior

court vacated the Department order and entered a judgment against Roxanne reflecting an

4 A court order is “silent” where the superior court order does not cover the same time period that is addressed in an administrative proceeding. See Dep’t of Soc. & Health Servs. v. Handy,

,

(1991). When a superior court order is silent, the Department has authority to proceed. Handy,

; RCW 74.20A.055.

6 No. 50059-1-II

amount she owed William after offsetting the amount it determined William had overpaid in day

care expenses.

Roxanne appeals the superior court’s February 2017 order.

ANALYSIS

Roxanne argues that the superior court erroneously invalidated the Department order for

lack of jurisdiction. Roxanne asserts that the Department had the authority to enter its order

because the existing superior court orders were “silent” as to the time period for which the

Department ordered covered. Br. of App. at 25. Roxanne also argues that the Department had

the authority to enter a fixed monthly amount for day care expenses. Roxanne further asserts

that because William failed to properly seek judicial review of the Department’s final

administrative order, the doctrine of res judicata bars William’s collateral attack of the

Department order in the superior court.

William argues that res judicata does not apply to this case because Roxanne initiated

concurrent litigation in both the superior court and in the Department. We hold that res judicata

bars Williams’s collateral attack of the Department order. Therefore, the superior court erred by

invalidating the Department’s final order and in entering a judgement against Roxanne.

I. STANDARD OF REVIEW

We review a trial court’s child support order for an abuse of discretion. In re Marriage of

Fiorito,

,

(2002). A court abuses its discretion if its decision

is manifestly unreasonable or based on untenable grounds or reasons. In re Marriage of Jess,

,

(2007). If a court’s ruling is based on an erroneous view

7 No. 50059-1-II

of the law, it is necessarily an abuse of discretion. In re Marriage of Herridge,

,

(2012).

Jurisdiction is the power to hear and determine a cause or proceeding. State v. Golden,

,

(2002). Jurisdictional challenges are questions of law that we

review de novo. Golden,

. Accordingly, although we review the superior

court’s February 2017 order for abuse of discretion, we review de novo the superior court’s

conclusion that the Department lacked jurisdiction.

II. AUTHORITY OF THE DEPARTMENT

Roxanne argues that the superior court erred when it ruled that the Department did not

have jurisdiction to enter its order. Roxanne specifically argues that because the superior court’s

August 2016 order did not address day care expense arrearages for the months of March through

September 2017, the superior court’s order was “silent” on that issue and the Department had the

authority to proceed administratively. Roxanne further argues that the superior court order also

did not address William’s future day care expense obligation as a fixed amount, and therefore,

the Department again had the authority to order William to pay a fixed monthly amount for day

care expenses. We agree and hold that the Department had jurisdiction to enter its order.

“[A]dministrative agencies, being ‘creatures of statute’, possess only such powers and

authority as are expressly granted by statute or necessarily implied therein.” In re Marriage of

Aldrich,

,

(1993) (alteration in original) (quoting Taylor

v. Morris,

,

(1977)). Various statutes grant the Department the

power to enforce a parent’s child support obligation judicially or administratively, regardless of

the existence of a superior court order. RCW 74.20A.040; RCW 74.20A.055. Additionally,

8 No. 50059-1-II

where a superior court order does not cover the same time period that is addressed in an

administrative proceeding, the superior court order is “silent” resulting in an “absence” of a

superior court order, and the Department has authority to proceed. Dep’t of Soc. & Health

Servs. v. Handy,

,

(1991); See RCW 74.20A.055(1).

However, the Department must compute support according to an existing court order’s

provisions. RCW 74.20A.030(1); RCW 74.20A.040(1), (3)(a).

A. Existing Superior Court Orders

Contrary to William’s assertions and the superior court’s conclusion, the existence of the

July 2012 and August 2016 superior court orders do not deprive the Department of the authority

to proceed administratively as to the day care expense arrearage calculations for March through

September 2016 and as to calculating a future fixed dollar amount for monthly day care

expenses.

Several cases address the interplay between existing superior court support orders and the

authority of the Department to establish and collect support obligations. See Handy,

; see also Robinette v. Harsin,

,

(2006); Brown v.

Dep’t of Soc. & Health Servs.,

,

(2007). In Handy, the

court recognized that a holding that the existence of a superior court support order “vitiates all

authority of [the Department] to establish and collect a support obligation” would seriously

frustrate the purpose of the statutes authorizing the Department’s ability to act.

. Accordingly, the mere existence of the superior court’s July 2012 and August 2016 orders

does not divest the Department of the authority to act.

9 No. 50059-1-II

B. March through September Arrearages

The Department had the authority to order William to pay day care expense arrearages

not covered by an existing court order. RCW 74.20A.040 authorizes the Department to collect

child support arrearages and debts. The superior court’s August 2016 order addressed William’s

arrearages only through February 2016 and did not address day care expense arrearages for the

months of March through September 2016. Because the superior court order was silent by not

addressing the time periods of March through September 2016, the ALJ properly relied on RCW

74.20A.040 to enter an order on arrearages. Handy,

. Thus, the Department

had the authority to address the arrearages in its final order.

C. Monthly Fixed Dollar Amount

The Department similarly had the authority to order William to pay a fixed monthly

amount in day care expenses. RCW 26.23.110 allows the Department to state a fixed dollar

amount for support obligations when a superior court order does not state the obligation as a

fixed dollar amount. Both the superior court’s July 2012 of August 2016 orders required

William to pay 71 percent of day care expenses and did not state a monthly fixed dollar amount

of day care expenses. In its final order, citing RCW 26.23.110, the ALJ ordered William to pay

a fixed monthly amount of day care expenses. Therefore, the ALJ properly exercised its

authority under RCW 26.23.110 in ordering William to pay day care expenses as a fixed monthly

amount.

Because the existing superior court orders did not address day care expense arrearages

from March through September 2016 and did not state day care expenses as a fixed dollar

10 No. 50059-1-II

amount, the Department had the authority to address those issues. Accordingly, the superior

court abused its discretion concluding that the Department lacked authority in this case.

III. DEPARTMENT ERROR

Although the Department had the authority to act, the Department order was

mathematically incorrect. Where there is an existing court order, the Department must compute

child support according to the court order’s provisions. RCW 74.20A.030(1); RCW

74.20A.040(1).

Here, the ALJ applied the incorrect U.S. to Canadian currency rate. The August 2016

order stated that “the exchange rate shall be determined by the day the purchase or original

payment was made.” CP at 386-87. The ALJ appears to have applied the average currency rate

for each month rather than applying the currency rate in effect on the date of the purchase of day

care. The ALJ also applied the rate of conversion from Canadian dollars to U.S. dollars rather

than properly applying the rate of conversion from U.S. dollars to Canadian dollars, as required

under the superior court order. This error resulted in an erroneously increased U.S. dollar

amount owed for day care expenses. Because of these errors, the Department failed to compute

child support according to the provisions of the superior court order.

Additionally, the Department stated that the amount that Roxanne paid in day care for the

summer months of June through August totaled $600 Canadian dollars per month and the

amount she paid for the months of September through May totaled $400 Canadian dollars per

month. In its earlier ruling, the superior court ordered that William was entitled to

reimbursement for Roxanne’s use of government day care subsidy. There is no way to glean

from the Department order if the ALJ considered any offset for William due to Roxanne’s

11 No. 50059-1-II

receipt of the government subsidy when determining the fixed monthly rate for day care

expenses.

So, although the Department had the authority to enter an order on arrearages and to fix a

monthly amount, it erred when it failed to compute the amounts in accord with the superior

court’s order. However, because the Department did not lack authority over the issues, William

was required to seek proper review of the Department order to contest its conclusions.

IV. RES JUDICATA PRECLUDES ATTACK OF DEPARTMENT ORDER

Roxanne argues that because William failed to properly seek review of the Department’s

final administrative order, the doctrine of res judicata should have applied to bar his attack of the

Department order in the superior court. William argues, without citation to any authority, that

because Roxanne initiated concurrent litigation on the same issues in both the superior court and

in the Department, res judicata does not apply.5 We agree with Roxanne and hold that res

judicata bars William’s collateral attack of the Department order.

Res judicata is a doctrine that prevents relitigation of already determined causes. Richert

v. Tacoma Power Util.,

,

(2014). It applies to the

quasijudicial decision of an administrative tribunal as well as to the judicial decision of a court.

Aldrich,

. Res judicata precludes litigation by collateral attack, and generally

5 William asserts that Roxanne is precluded from arguing that res judicata applies to bar his attack of the Department order in the superior court because Roxanne initiated “concurrent litigation” in both the superior court and within the Department. William cites to no authority supporting his argument. There is support to the contrary however. Courts have already established that a party can have an ongoing superior court action in conjunction with an ongoing Department action. See Dep’t of Soc. & Health Servs. v. Handy,

(detailing that a petitioner properly initiated a Department support action while there was an ongoing superior court action).

12 No. 50059-1-II

speaking, a motion filed in a different action constitutes a collateral attack. Aldrich,

. Res judicata operates at such time as the decision in question becomes final.

Aldrich,

.

The doctrine of res judicata applies “where a prior final judgment is identical to the

challenged action in ‘(1) subject matter, (2) cause of action, (3) persons and parties, and (4) the

quality of the persons for or against whom the claim is made.’” Lynn v. Dep’t of Labor & Indus.,

,

(2005) (internal quotation marks omitted) (quoting

Loveridge v. Fred Meyer, Inc.,

,

(1995)). Whether an action is

barred by res judicata is a question of law we review de novo. Lynn,

.

The only res judicata element at issue here is whether a prior final judgment existed and

precluded William’s attack in superior court. The parties do not dispute any other elements of

res judicata and therefore we address only the disputed element.

The Department order states:

Superior Court Review: You also have the right to appeal this Final Order to superior court within thirty (30) calendar days of the mailing date of the Final Order. RCW 34.05.542(3) and WAC XXX-XX-XXXX. You do not need to file a request for reconsideration before requesting review in superior court. DSHS cannot request superior court review. Please refer to WAC XXX-XX-XXXX for information about how to serve your request for superior court review.

CP at 468. Additionally, WAC XXX-XX-XXXX(1) states:

You must file and serve the petition for judicial review of a final order within thirty days after the date it was mailed. You must file your petition for judicial review with the court. You must serve copies of your petition on DSHS, the office of the attorney general, and all other parties.

After the ALJ rendered its ruling on October 17, the Department order became final.

William never filed a petition for reconsideration nor a petition for judicial review. Although

13 No. 50059-1-II

William did file a motion in the superior court within 30 days of the mailing of the Department

order, William did not follow the procedures required to properly seek judicial review under

RCW 34.05.542(3) and WAC XXX-XX-XXXX. William failed to file a petition with the court

within 30 days, or serve copies of a petition on the Department, the attorney general, and

Roxanne.

Because William failed to properly seek judicial review of the final Department order

and, instead, improperly filed a motion in the superior court challenging the Department order,

res judicata applies to preclude William’s improper collateral attack of the order in superior

court.

CONCLUSION

We hold that the superior court abused its discretion by misapplying the law when it

ruled that the Department was without jurisdiction to enter its final order.6 Additionally, because

the Department had the authority to enter an order on arrearages and a fixed monthly amount, the

superior court abused its discretion in entering a judgment against Roxanne based on William’s

improper collateral attack. We hold that the Department order is binding unless and until a

superseding superior court order is entered or until the Department modifies its existing order.

We, therefore, reverse the superior court’s February 2017 order invalidating the Department’s

final order.

6 Nothing in this opinion should be taken to mean that William is not entitled to seek a new superior court child support order that would supersede that Department’s final order on a prospective basis. See RCW 74.20A.055(7). Additionally, it should be noted that Roxanne’s petition to modify the child support order is still pending with the superior court, the outcome of which may affect the Department’s final order. See RCW 74.20A.055(7).

14 No. 50059-1-II

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

2.06.040, it is so ordered.

Worswick, J. We concur:

Maxa, C.J.

Lee, J.

15