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   IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                                     DIVISION ONE

In the Matter of the Marriage of            )       No. 66268-6-I
                                            )
AMY BUECKING,                               )
n/k/a AMY WESTMAN,                          )
                                            )
              Respondent,                   )
                                            )
       and                                  )
                                            ) 
TIM BUECKING,                               )       PUBLISHED IN PART
                                            )
              Appellant.                    )       FILED: April 2, 2012
                                            )

       Ellington, J.  --     Petitions for marital dissolution are within the broad subject 

matter jurisdiction of the superior court.  Failure to adhere strictly to the statutory 

framework governing such actions, including the 90-day waiting period, does not 

cause the court to lose its constitutional powers or render its decree void.  Nor is 

such an error a manifest constitutional issue permitting review for the first time in this 

court.  

       The statutes require a 90-day "cooling off" period before the court may enter a 

decree of dissolution.  Here, more than 500 days had passed since the filing of a 

petition for legal separation, but only 82 days had passed since the petition was 

amended to seek dissolution. When a separation petition  is amended to seek 

dissolution, it is unclear whether the statutes contemplate a new waiting period.  It is  

No. 66268-6-I/2

also unclear whether it matters that the amended petition was jointly filed.

       In any case, the alleged error could easily have been avoided had the issue 

been timely raised below.  The decree is not void, the issue was not raised below, 

and this court can grant no effective relief.  

                                     BACKGROUND

       Tim Buecking and Amy Westman (formerly Buecking) were married for nine 

years and have three minor children.

       On December 12, 2008, Westman filed and properly served a petition for 

legal separation.  The court entered a temporary parenting plan and other orders in 

January 2009.  On April 2, 2010, Westman filed an amended petition for dissolution, 

replacing the October 2008 petition for legal separation.  Buecking signed the 

petition and marked the "joinder" box, stating, "I, the respondent, agree to the filing 
of an Amended Petition for Dissolution of the marriage instead of legal separation."1

       On May 19, 2010, the parties had a one-day bench trial.  Only Westman and 

Buecking testified.  On June 23, 2010, the court entered findings of fact and 

conclusions of law, an order of child support, a final parenting plan, and a decree of 

dissolution.  

       Disappointed in the results, Buecking appealed.  He now contends the court 

lacked authority to enter the decree. 

                                       DISCUSSION

       Whether a court has subject matter jurisdiction is a question of law.  Absent 

       1 Clerk's Papers at 90.

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No. 66268-6-I/3

such jurisdiction, the court's judgment is void.2  A void judgment may be challenged 

at any time.3 Review is de novo.4

       By statute, the court is empowered to act on a petition for dissolution only 

when certain requirements have been met. One of those is a cooling off period:

              When a party who (1) is a resident of this state, or (2) is a 
       member of the armed forces and is stationed in this state, or (3) is 
       married or in a domestic partnership to a party who is a resident of this 
       state or who is a member of the armed forces and is stationed in this 
       state, petitions for a dissolution of marriage or dissolution of domestic 
       partnership, and alleges that the marriage or domestic partnership is 
       irretrievably broken and when ninety days have elapsed since the 
       petition was filed and from the date when service of summons was 
       made upon the respondent or the first publication of summons was 
       made, the court shall proceed as follows.[5]  

       At issue here is the meaning of the language requiring that "ninety days have 
elapsed since the petition was filed"6 where there were actually two petitions.  If the 

time runs from the filing of the first petition, the statute is satisfied.7 If the time must 

       2 Cole v. Harveyland LLC, 163 Wn. App. 199, 205, 258 P.3d 70 (2011).

       3 Id.; RAP 2.5(a)(1).

       4 Cole, 163 Wn. App. at 205.

       5 RCW 26.09.030.

       6 Id. (emphasis added).

       7 Whether the statutory waiting period applies to a petition for legal separation 
appears to be an issue of first impression.  The parties cite no cases addressing the 
issue.  Although the authors of Washington Practice and the Family Law Deskbook
now agree that the waiting period applies to separations, neither cites authority for 
that proposition, and both note that the issue has been the subject of considerable 
debate.  See 20 Kenneth W. Weber, Washington Practice: Family and Community 
Property Law § 30.3, at 14 (1997); 21 Kenneth W. Weber, Washington Practice: 
Family and Community Property Law § 46.23, at 60 (1997); 1 Wash. State Bar Ass'n, 
Washington Family Law Deskbook § 11.5(1) cmt. at 11-28 (2d ed. & 2006 Supp.) 
("There has been considerable debate in the profession as to whether the 90-day 
waiting period applicable to dissolution actions is also applicable to an action for legal 
separation.  In fact, in the first edition of this deskbook, the authors of the chapters on 
Divisible Divorce and on Legal Separations, both of whom discussed this issue, 

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No. 66268-6-I/4

begin to run again when the petition is amended to seek dissolution, the statute was 

not satisfied.  Buecking points out that the 90-day requirement is triggered by the 

allegation that the marriage is irretrievably broken, which is the required allegation 

for a petition for dissolution.  He contends that because 90 days had not elapsed

from the petition containing that allegation and seeking dissolution, the court lacked 

subject matter jurisdiction and the decree is void.

       "'Subject matter jurisdiction' is 'the authority of the court to hear and determine 
the class of actions to which the case belongs.'"8 The classes of action over which 

the superior court has jurisdiction are defined by the state constitution.9  Under the 

Washington Constitution, superior courts have original jurisdiction in all cases 
involving dissolution or annulment of marriage.10  The petition for dissolution was 

within the subject matter jurisdiction of the superior court.

       "If the type of controversy is within the subject matter jurisdiction, then all 
other defects or errors go to something other than subject matter jurisdiction."11  A

court's alleged failure to operate within the statutory framework does not render its 

disagreed. . . . This author believes that the 90-day waiting period does apply to legal 
separations."); see also 1 Wash. State Bar Ass'n, supra, § 15.3(4)(a) at 15-13 (noting 
that "[i]t is also not clear that 90 days must elapse between the filing of a petition for 
legal separation and the entry of the decree, because only the decree of dissolution is 
specifically mentioned in RCW 26.09.030(1)-(3)").

       8 In re Guardianship of Wells, 150 Wn. App. 491, 499, 208 P.3d 1126 (2009) 
(quoting In re Adoption of Buehl, 87 Wn.2d 649, 655, 555 P.2d 1334 (1976)).

       9 Cole, 163 Wn. App. at 206.

       10 Wash. Const. art. IV, § 6 ("superior court shall have original jurisdiction in all 
cases at law which involve . . . all matters of probate, of divorce, and for annulment of 
marriage ").

       11 Cole, 163 Wn. App. at 209.

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No. 66268-6-I/5

judgment void.  Here, failure to observe a statutory waiting period may be a legal 

error, but it does not result in loss of jurisdiction.  Under RAP 2.5(a), Buecking may 

not raise the issue for the first time on appeal.  Accordingly, we decline to consider 
it.12

       Affirmed.

       The balance of this opinion having no precedential value, the panel has 

determined it should not be published in accordance with RCW 2.06.040.

       Buecking contends the court abused its discretion in its property division, 

calculation of child support, and by making reciprocal a restriction in the parenting 

plan.

                                DIVISION OF PROPERTY

       The couple owned four properties in Whatcom County:  a house at 3090 Mt. 

Vista Drive; a house at 2604 Lummi View Drive; a house at 2618 Michigan Street; 

and undeveloped property located at 3980 Pipeline Road.  They lived with their 

children in the Michigan Street home and rented out the houses on Mt. Vista Drive

and Lummi View Drive.  The pretrial orders required Buecking to pay the first and 

second mortgages on the Michigan Street property as maintenance and to "make 
sure that the mortgages on the home are current."13 The court also ordered 

       12 We note that any error easily could have been avoided had Buecking raised 
this issue with the trial court.  Further, even if we were to agree with Buecking that the 
90-day waiting period applies in the circumstances here presented, we can provide no 
effective relief.  The statute requires the time to elapse prior to entry of the decree, not 
prior to trial.  Remand on the waiting period issue would not permit relitigation of the 
property division and parenting plan; it would result merely in entry of a new decree, 
presumably nunc pro tunc to the 91st day, nine days after the divorce here was 
entered.

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No. 66268-6-I/6

Buecking to pay child support.

       Buecking raises several issues with respect to the court's distribution of the 

equity and lost rents in the couple's property on Mt. Vista Drive.  He argues the court 

erred by characterizing it as community property, awarding an offset of $25,000 to 

Westman for her share of the equity, and awarding Westman $2,250 in lost rent.  
We review these claims for abuse of discretion.14

                                Character of the Property

       The character of property as separate or community is determined at its date 
of acquisition.15 Once the separate character of property is established, there is a 

presumption that it remains separate absent clear and convincing evidence to the 
contrary.16 But the characterization of property as separate or community does not 

dictate the division of assets.17 The court must make a "just and equitable"

disposition of both separate and community property.18

       13 Clerk's Papers at 126.

       14 In re Marriage of Brewer, 137 Wn.2d 756, 769, 976 P.2d 102 (1999).

       15 In re Estate of Borghi, 167 Wn.2d 480, 484, 219 P.3d 932 (2009).

       16 Id. at 484-85 & n.4 ("[T]he evidence must show the intent of the spouse 
owning the separate property to change its character from separate to community 
property.  Where, as here, real property is at issue, an acknowledged writing is 
generally required [such as] a quit claim deed or other real property transfer, [or] a 
properly executed community property agreement." (citations omitted)). 

       17 Brewer, 137 Wn.2d at 766.

       18 RCW 26.09.080.

                                              6 

No. 66268-6-I/7

       Although Buecking purchased the property with his brother before the 

marriage, the record indicates that the equity in the property belonged to the 

community.  The evidence is that Buecking's brother gifted his interest to Buecking 

and Westman after they married.  Though her name did not originally appear on the 

deed, Westman testified that she was present at closing and contributed to the 

mortgage payments before marriage.  The parties later added her name to the deed 

and mortgage.  The parties both testified they considered the property "our house,"
and Westman signed rental agreements as "lessor."19 Additionally, there was 

evidence that adjacent neighbors gifted their property to the couple jointly, and that 

Buecking did not know the character of the property when he responded to an 

interrogatory about it.

       Thus, even if the court was technically incorrect in this characterization, it 
properly determined that the equity in the property belonged to the community.20  

The court did not abuse its discretion in dividing this equity equally.

                                        Lost Rents

       Buecking's failure to collect rent and pay the mortgage violated the pretrial 

orders and caused the property to fall into foreclosure. The court awarded Westman 

$2,250 "as Wife's community property share of lost rents on the 3090 Mt. Vista Drive 

property from December 2009 to May 2010 based on Husband's admission that the 
home sat empty and was not rented during this period of time."21  

       19 Clerk's Papers at 54-55.

       20 For the same reason, we reject Buecking's argument that the court erred in 
awarding Westman $2,250 in lost rents for the property because "[a] spouse who 
owns separate property is entitled to the rents therefrom." Br. of Appellant at 18-19,

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No. 66268-6-I/8

       Buecking also failed to pay the mortgages on the Michigan Street property in 

lieu of maintenance as required by pretrial orders, and this property also fell into 

foreclosure.  Buecking's conduct jeopardized Westman's ability to reside with the 
children in the family home, or any of the marital properties.22     The court did not 

abuse its discretion by recognizing Buecking's responsibility for this predicament in

providing an offset  to compensate Westman.

       Buecking contends the court should not have awarded Westman lost rents on 

the Mt. Vista and Lummi View Drive homes because none were collected.  He relies 

on In re Marriage of White for the proposition that the court may not distribute an 
asset that does not exist at the time of trial.23 But Buecking's failure to collect the 

rent is the express reason for the award.  Courts may properly consider a party's 
responsibility for wasting marital assets in the equitable distribution of property.24  

Buecking shows no abuse of discretion.

                                        Foreclosure

       Buecking next aruges the court erred in awarding Westman her share of the 

equity in the Mt. Vista Drive property because the home was in foreclosure at the 

time of trial.  He asserts that "[t]he property went into foreclosure in large part 

because Amy had no employment income and because of the cut back in Tim's 

       21 Clerk's Papers at 61.

       22 See RCW 26.09.080(4) (one factor for the court to consider in making an 
equitable distribution is "the desirability of awarding the family home or the right to live 
therein . . . to a spouse . . . with whom the children reside").

       23 105 Wn. App. 545, 20 P.3d 481 (2001).

       24 Id. at 551.

                                              8 

No. 66268-6-I/9

employment after the economy soured in 2008."25 He also contends the property 

was lost because Westman refused to participate in a loan modification that would 

have saved the property.  The evidence does not support these assertions.

       First, the couple had been able to pay their mortgages during the marriage, 

even though Westman had no income.  Second, there was no evidence that 

Buecking's employment suffered for any reason other than his own refusal to work to 

capacity.  Third, Buecking admitted he had not completed his own portion of the loan 

modification paperwork, and had last communicated with Westman about a 

modification in early summer of 2009.  Further, Westman testified Buecking "made 

several statements to me saying that he would rather let everything go to 
foreclosure, rather than let me have anything of his."26

       Buecking also suggests Westman waived her interest in the now-foreclosed 

properties.  He cites In re Marriage of Kaseburg, which held that the trial court 

abused its discretion by awarding the wife her interest in foreclosed property when it
no longer belonged to the community at the time of trial.27 But unlike Kaseburg, 

where the property was lost to foreclosure before the dissolution trial, none of the 

properties in this case had yet been lost.  Indeed, Buecking testified that he still 

intended to stop the foreclosure on the family home.  Further, in Kaseburg, it was 

undisputed that the wife knew about the foreclosure proceeding and chose not to 

contest it.  Here, Westman testified that mortgage statements were mailed to 

       25 Br. of Appellant at 19-20.

       26 Report of Proceedings (May 19, 2010) at 39.

       27 126 Wn. App. 546, 559,108 P.3d 1278 (2005).

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No. 66268-6-I/10

Buecking and she had been unaware the properties were headed into foreclosure.  

Kaseburg is inapposite.

       Finally, Buecking asks this court to "strike the maintenance arrears because 

Amy had the benefit of living in the Michigan Street property and the bank refused to 
accept partial payments during the foreclosure for Tim."28 The court awarded 

Westman $6,162 in past due spousal maintenance, an amount equal to the 

mortgage payments Buecking was ordered to but failed to make in lieu of 
maintenance.29 Buecking's suggestion that the court should not have made this 

award because Westman was permitted to stay in the home while he secretly 

defaulted on the mortgage, ultimately leading to foreclosure, is unsupported by 
argument, citation to the record, or citation to authority.  We decline to address it.30

                                    CHILD SUPPORT

       For the purposes of calculating child support, the court found Buecking was 

voluntarily underemployed and imputed income to him.  Though Westman worked 

only part-time, the court found she was not voluntarily underemployed.  Buecking 

challenges each decision.

       We defer to the trial court's discretion in child support decisions unless that 

       28 Brief of Appellant at 20-21.

       29 The court had previously held Buecking in contempt for failing to pay the 
mortgages on the Michigan Street family home.

       30 Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 
(1992) (arguments not supported by authority); Saunders v. Lloyd's of London, 113 
Wn.2d 330, 345, 779 P.2d 249 (1989) (issues unsupported by adequate argument 
and authority); In re Marriage of Arvey, 77 Wn. App. 817, 819 n.1, 894 P.2d 1346 
(1995) (assignments of error unsupported by argument and citation to authority).

                                             10 

No. 66268-6-I/11

discretion is exercised in an untenable or unreasonable way.31  "This court will not 

substitute its own judgment for that of the trial court where the record shows that the 

trial court considered all relevant factors and the award is not unreasonable under 
the circumstances."32 A court abuses its discretion if its decision is "based on an 

incorrect standard or the facts do not meet the requirements of the correct 
standard."33

       A court will impute income to a parent for purposes of child support when the 
parent is voluntarily unemployed or underemployed.34  "The court shall determine 

whether the parent is voluntarily underemployed or voluntarily unemployed based

upon that parent's work history, education, health, and age, or any other relevant 
factors."35

       Buecking contends it is standard in the refinery industry to work long hours for 

relatively short periods of time, followed by periods of unemployment.  He argues the 

court therefore should not have found him voluntarily underemployed.  But the court 

did not base its ruling on periodic unemployment.  Rather, the evidence was that 

following their separation, Buecking declined to work at the same capacity as during 

the marriage.  Before, he regularly traveled for work; thereafter, he refused to take 

jobs out of state.  Before, he supplemented his refinery income with side businesses,

       31 In re Marriage of Griffin, 114 Wn.2d 772, 776, 791 P.2d 519 (1990); In re
Marriage of Pollard, 99 Wn. App. 48, 52, 991 P.2d 1201 (2000). 

       32 In re Marriage of Fiorito, 112 Wn. App. 657, 664, 50 P.3d 298 (2002).

       33 Id.

       34 RCW 26.19.071(6).

       35 Id.

                                             11 

No. 66268-6-I/12

including landscaping and commercial fishing.  Thereafter, although he still owned 

the necessary equipment, Buecking testified he no longer took side jobs.  Based on 
this evidence, the court reasonably found Buecking was "not working to capacity."36

       The court imputed to Buecking an income of $7,000 per month.  Buecking 

contends that was too much.  The evidence amply supports the court's decision.  
First, Buecking failed to provide the court with complete income information.37  

Second, his sworn declaration claimed $5,363 per month in wages and salaries; 

$1,500 per month in business income; and $900 per month in "other income," for a 

total monthly income of $7,763.  Although Buecking testified he was unaware of the 

contents of the declaration when he signed it, the court was well within its discretion 

to consider that evidence.  Third, Westman produced one of Buecking's pay stubs 

from September 2008 showing a year-to-date income of $60,204, for an average 

monthly income of just under $7,000.  Fourth, at the time of trial, Buecking's most 

recent pay stubs indicated he earned more than $8,400 in March 2010.

       The court found that Buecking's representation of his income at trial was not 

credible, especially given that he does not keep accurate records, he failed to file tax 

returns, and he failed to produce financial information in discovery.  Accordingly, the 

court concluded:  "Taking into consideration his proven ability to earn $6,853 per 

       36 Clerk's Papers at 56.

       37 Buecking had not filed a tax return for 2008 or 2009, despite a temporary 
order requiring him to use the anticipated 2008 refund to pay community debts.  
Buecking ignored Westman's counsel's several requests for his financial records, 
even after the court ordered him to produce them.  At trial, Buecking variously claimed 
he did not have the records, that he had given them to his tax professional who could 
not be contacted, or that he did not know where they were.

                                             12 

No. 66268-6-I/13

month and $8,422 per month, it is reasonable to assess an earning capacity of 

$7,000 per month to Husband for purposes of calculating maintenance and child 
support."38 The evidence fully supports the court's conclusion.  There was no abuse 

of discretion.

       Buecking next argues the court should have imputed income to Westman.  

Westman stopped working in October 1999 because the couple agreed she should 

stay home to raise their children.  By the time they separated, Westman had been 

out of the work force for over 10 years.  Though she had applied for several full-time 
jobs,39 she was able to obtain only a part-time job earning $8.55 per hour.  Her 

monthly income is less than $500.  Taking into consideration Westman's "work 
history, education, health and age, or any other relevant factors,"40 the court 

reasonably found Westman was not voluntarily underemployed.

                                      Parenting Plan

       During the separation, Westman dated a man who had once been charged 
with child molestation and child rape.41 Buecking obtained a restraining order 

prohibiting Westman from allowing the children to have contact with the man.

       Buecking requested a similar provision in the parenting plan.  Westman 

testified she had terminated her relationship with the man and did not intend to see 

him again.  The court ordered that "[n]either parent shall allow the children to have 

       38 Clerk's Papers at 56. 

       39 Buecking asserts Westman applied for jobs for which she was not qualified.  
She testified the job postings did not specify minimum qualifications.

       40 RCW 26.19.071(6).

       41 He was ultimately convicted of fourth degree assault.

                                             13 

No. 66268-6-I/14

any contact whatsoever with [the former boyfriend]."42

       Buecking argues the court erred by making this provision reciprocal "because 

there is no evidence that Tim wanted to allow any contact between [the former 
boyfriend] and the children."43 We review parenting plan decisions for abuse of 

discretion.44

       Neither parent wished the children to have contact with this man.  Based on 

its understanding of the facts, the court entered an order restricting all parties from 

doing so.  Buecking fails to show the court abused its discretion.

                                    ATTORNEY FEES

       Westman requests attorney fees under RCW 26.09.140.  In exercising our 

discretion in making such an award, we consider the parties' relative ability to pay 
and the arguable merit of the issues raised on appeal.45 Considering the relevant 

factors, we award Westman fees on appeal, subject to her compliance with RAP 

18.1, in an amount to be determined by a commissioner of this court.

       Affirmed.

WE CONCUR:

       42 Clerk's Papers at 51.

       43 Br. of Appellant at 22.

       44 In re Marriage of Littlefield, 133 Wn.2d 39, 46, 940 P.2d 1362 (1997).

       45 In re Marriage of Muhammad, 153 Wn.2d 795, 807, 108 P.3d 779 (2005).

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No. 66268-6-I/15

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