No. 26111-5-III.The Court of Appeals of Washington, Division Three.
April 3, 2008.
Appeal from a judgment of the Superior Court for Spokane County, No. 05-2-04022-4, Salvatore F. Cozza, J., entered April 10, 2007.
Affirmed by unpublished opinion per Thompson, J. Pro Tem., concurred in by Sweeney, C.J., and Kulik, J.
THOMPSON, J.[*]
Sherry Roshon Gardner appeals the superior court’s denial of her petition for declaratory judgment to divide marital assets earned during her marriage to David Alan Roshon. She contends the court’s conclusions of law applying the doctrines of res judicata and collateral estoppel were erroneous. We affirm.
Ms. Gardner and Mr. Roshon were married on September 21, 1978. They divorced on January 11, 1990. The dissolution decree was filed in Thurston County. Because Ms. Gardner and Mr. Roshon agreed to divide the marital assets equitably between them, the dissolution decree stated that no property was to be divided between them.
On October 12, 2004, Ms. Gardner filed a CR 60 motion to vacate judgment. The purpose of the motion was to request division of the marital assets that had not been divided in the dissolution decree. The court denied Ms. Gardner’s motion.
On September 2, 2005, Ms. Gardner filed a petition in Spokane County seeking declaratory judgment to divide the marital assets. The court denied the petition. The court found that the doctrines of res judicata and collateral estoppel barred Ms. Gardner’s request, because there was a final judgment and adjudication of the issues pertaining to the marital property with Ms. Gardner’s CR 60 motion to vacate. Ms. Gardner appeals.
Ms. Gardner contends the court erred by denying her petition for declaratory judgment to divide marital assets not previously divided in the 1990 dissolution decree. She argues that her previous CR 60 motion to vacate does not bar her declaratory judgment action under the principles of res judicata and collateral estoppel.
Res judicata encompasses the concepts of both claim preclusion and issue preclusion. Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. 320, 327, 941 P.2d 1108 (1997). When res judicata is used to mean claim preclusion, it encompasses the idea that when the parties to two successive proceedings are the same, and the prior proceeding culminated in a final judgment, a matter may not be relitigated, or even litigated for the first time, if it could have been raised, and in the exercise of reasonable diligence should have been raised in the prior proceeding Id. at 329. Res judicata applies
“except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of the litigation, and which the parties, exercising reasonable diligence, might have brought forward at that time.”
Id. (quoting Golden v. McGill, 3 Wn.2d 708, 720, 102 P.2d 219 (1940)). Moreover, the application of res judicata requires identity between a prior judgment and a subsequent action as to (1) persons and parties, (2) cause of action, (3) subject matter, and (4) the quality of persons for or against whom the claim is made. Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 763, 887 P.2d 898 (1995).
Collateral estoppel precludes parties from relitigating issues after the parties have had a full and fair opportunity to present their case, even if the subsequent litigation is made in the form of a different claim or cause of action. In re Marriage of Mudgett, 41 Wn. App. 337, 342, 704 P.2d 169 (1985). Four elements must be satisfied for collateral estoppel to bar subsequent litigation: (1) the issue decided in the prior adjudication must have been identical to the issue presented in the subsequent litigation; (2) there must have been a prior final judgment on the merits; (3) the person against whom the plea is asserted must have been a party or be in privity with a party to the prior adjudication; and (4) application of the doctrine must not work an injustice on the party against whom the doctrine is applied. Id.
Here, Ms. Gardner only provides us with the order denying her CR 60 motion to vacate. There is nothing in the record to identify what arguments were raised with this motion or the court’s reasoning in denying the motion. See RAP 9.2(b) (stating “[a] party should arrange for the transcription of all those portions of the verbatim report of proceedings necessary to present the issues raised on review”). Nonetheless, neither party disputes the trial court’s finding of fact in the declaratory judgment action that the purpose of this motion was to divide the marital assets not previously disclosed in the dissolution decree. The CR 60 proceeding, therefore, would have given the parties an opportunity to fully litigate the issue. The purpose of res judicata and collateral estoppel is to prevent relitigation of the same subject matter by the same parties over the same cause of action. Meder v. CCME Corp., 7 Wn. App. 801, 803, 502 P.2d 1252 (1972), review denied, 81 Wn.2d 1011
(1973). The trial court did not err in denying Ms. Gardner declaratory judgment on the principles of res judicata and collateral estoppel based on the CR 60 order.
Mr. Roshon has requested attorney fees and costs on appeal under RCW 26.09.140 and RAP 14.3. RCW 26.09.140 provides that “[u]pon any appeal, the appellate court may, in its discretion, order a party to pay for the cost to the other party of maintaining the appeal and attorney’s fees in addition to statutory costs.” An award under this statute is discretionary, and neither party is entitled to attorney fees as a matter of right. In re Marriage of Leslie, 90 Wn. App. 796, 805, 954 P.2d 330
(1998), review denied, 137 Wn.2d 1003 (1999). In determining whether to make such an award, we must consider Mr. Roshon’s need, Ms. Gardner’s ability to pay, and the arguable merits of the issues on appeal. See In re Marriage of Griffin, 114 Wn.2d 772, 779, 791 P.2d 519 (1990).
Mr. Roshon has not provided us with any evidence as to the respective financial resources of the parties. See RAP 18.1(d). Moreover, based on the arguable merit of Ms. Gardner’s issues on appeal, we decline to award Mr. Roshon attorney fees and costs.
Affirmed.
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.
SWEENEY, C.J., KULIK, J., concur.