IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

In the Matter of the Marriage of

LISA MARIE HERRMANN,

Respondent,

and

PAUL ALAN HERRMANN, JR.,

Appellant.

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No. 35090-8-III

UNPUBLISHED OPINION

FEARING, J. — Former husband Paul Herrmann appeals the trial court’s order 

vacating an earlier order that modified his obligation to pay child support and erased a 

debt for past due support. Because the trial court did not abuse its discretion, we affirm 

the vacation of the earlier order.

FACTS

Lisa Herrmann, now known as Lisa Morgan (Morgan), filed for divorce from Paul 

Herrmann (Herrmann) in 2004. A parenting plan, entered two years later, granted

Morgan primary custody of the parties’ two children, age four and two at the time. A 

FILED

JULY 10, 2018

In the Office of the Clerk of Court

WA State Court of Appeals, Division III
No. 35090-8-III

In re Marriage of Herrmann

2

child support order, also entered in 2006, required Herrmann to pay a total of $1,000 per 

month. In 2011, the trial court modified the child support order due to a decrease in 

Herrmann’s income. The new order required Herrmann to pay $765 per month, which 

amount would increase to $850 per month starting December 1, 2012. 

In October 2012, Lisa Morgan filed a petition to modify the parenting plan by 

adding an antiharassment protection order suspending all contact between Paul Herrmann 

and the two children. Morgan did not seek modification of the child support order. 

Herrmann did not file an answer to the petition for a restraining order, nor did he file a 

petition to modify child support. 

Both parties’ attorneys appeared in court on August 27, 2014, without their 

respective clients present. Lisa Morgan had not seen a final agreement before the hearing 

so, in advance of the hearing, she authorized her attorney to present her positions to Paul 

Herrmann’s counsel and to gain clarification of Herrmann’s positions. Morgan expressly 

instructed her attorney not to sign any final documents until he relayed to Morgan the 

clarification she requested. 

The trial court entered a new parenting plan on August 27, 2014, which plan 

reduced Paul Herrmann’s visitation with the children to one supervised visit per year, 

lasting not longer than six hours. On August 27, the trial court also entered an order 

modifying child support despite no pending motion or petition requesting modification. 

Herrmann’s and Morgan’s attorneys completed a child support worksheet that imputed 
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$2,000 as monthly net income for Morgan and $3,000 as a monthly net income for 

Herrmann. The attorneys, however, provided no evidence, such as tax returns or 

paystubs, to the court to verify income. The standard calculation for child support for 

Herrmann was then $850. Nevertheless, the order entered waived his monthly transfer 

payment in its entirety. The only justification identified in the order for waiver of child

support declared that Herrmann, who lived in Texas, needed to pay all transportation 

expenses, including lodging, rental fees, and meals, to exercise visitation in Washington

State. 

In addition to granting Paul Herrmann a downward deviation in child support, the 

August 2014 modified support order required Lisa Morgan to pay all health insurance for 

the children and awarded a dependency tax exemption to Herrmann. The order also 

relieved Herrmann of $2,465 in back support owed by erroneously stating that “[n]o back 

child support is owed at this time.” Clerk’s Papers at 346.

PROCEDURE

On September 18, 2015, Lisa Morgan moved the court to vacate the August 2014 

order and reinstate the 2011 child support order. Morgan sought relief pursuant to 

CR 60(b)(5) and (b)(11) because neither she nor Paul Herrmann had petitioned the court 

to modify child support and Morgan never authorized her attorney to sign an order on her 

behalf that would relieve Herrmann of his duty to pay child support. Morgan also argued 

the order was void as against public policy because the order eliminated Herrmann’s duty 
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to pay child support. Finally, Morgan contended that the order was void for 

noncompliance with Washington statutes regarding healthcare costs and the verification 

of income required to deviate from a standard child support calculation. Among other 

responses to the motion to vacate, Herrmann argued the order did not violate public 

policy because it did not foreclose Morgan from modifying the order in the future. 

At a June 17, 2016 hearing on Lisa Morgan’s motion to vacate, the trial court 

agreed many irregularities led to the entry of the August 2014 order. The court observed 

that Morgan never asked for any changes to the preexisting child support order and that 

the court never determined adequate cause before modifying the support order. Instead, 

the 2014 trial court signed an order of adequate cause when it signed the modification 

order. When addressing Herrmann’s response to Morgan’s public policy argument, the 

trial court iterated that Morgan lacked the ability to indiscriminately modify the 2014 

order at some indefinite time in the future. Instead, Morgan needed to show a change in 

circumstances to modify the order. 

During the June 17, 2016 hearing, the trial court noted other irregularities in the 

August 2014 modification of child support order. Paul Herrmann’s child support 

obligation changed from $761 per month to nothing despite the order listing both parties 

as garnering suitable incomes. The court observed the lack of a record to justify a zero 

transfer payment. The 2014 order also extinguished back support owed without any 

justification. The trial court concluded that unusual circumstances surrounded entry of 
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the August 2014 order and further concluded that the basis for vacating the order did not 

neatly fit within any provision of CR 60(b)(1) through (10). Nevertheless, the trial court 

vacated the order pursuant to CR 60(b)(1). 

On October 10, 2016, both parties sought reconsideration of the trial court’s June 

2016 ruling on the basis that the court lacked authority to vacate the 2014 order under 

CR 60(b)(1) when Lisa Morgan had filed her motion more than one year after entry of the 

order. Both parties also noted that Morgan never sought relief pursuant to CR 60(b)(1). 

As she had in her original motion to vacate, Morgan again sought relief under 

CR 60(b)(5) or CR 60(b)(11). The trial court issued another ruling on November 9, 2016. 

The court conceded error because it lacked discretion to extend the time in which to bring 

a motion to vacate under CR 60(b)(1). The court granted Morgan’s motion for 

reconsideration and vacated the August 2014 order as void under both CR 60(b)(5) and 

(b)(11). The trial court reinstated the 2011 child support order and entered judgment for 

$22,015 in back child support: $19,550 from August 2014 through July 2016 in addition 

to the $2,465 originally owed. 

LAW AND ANALYSIS

2016 Order Vacating 2014 Child Support Modification Order

On appeal, Paul Herrmann contends the trial court erred when it granted Lisa 

Morgan’s 2016 motion to vacate portions of the August 27, 2014 order modifying child 

support. He asks that the 2014 order be affirmed such that he is relieved of both past and 
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current child support obligations. 

The trial court holds discretion when granting or denying a motion to vacate, and 

this court will not reverse the decision in the absence of a manifest abuse of discretion. 

Gustafson v. Gustafson, 54 Wn. App. 66, 70, 772 P.2d 1031 (1989). A court abuses its

discretion when its decision is based on untenable grounds or reasoning. Barr v. 

MacGugan, 119 Wn. App. 43, 46, 78 P.3d 660 (2003). Proceedings to vacate judgments 

are equitable in nature, and the trial court is encouraged to exercise its authority liberally 

to preserve substantial rights and do justice between the parties. In re Marriage of Hardt, 

39 Wn. App. 493, 496, 693 P.2d 1386 (1985). 

Washington consistently holds that parents cannot agree to waive child support 

obligations. In re Marriage of Fox, 58 Wn. App. 935, 937 n.3, 795 P.2d 1170 (1990); In 

re Marriage of Pippins, 46 Wn. App. 805, 808, 732 P.2d 1005 (1987); In re Marriage of 

Watkins, 42 Wn. App. 371, 373-74, 710 P.2d 819 (1985); State ex rel. Lucas v. Superior 

Court, 193 Wash. 74, 78, 74 P.2d 888 (1937). Such agreements violate public policy and 

are thereby void and unenforceable. In re Marriage of Hammack, 114 Wn. App. 805, 

808, 810-11, 60 P.3d 663 (2003); In re Marriage of Pippins, 46 Wn. App. at 808. 

CR 60(b)(5) allows a court to vacate a void order or judgment. The moving party must 

file a motion for relief under CR 60(b)(5) within a reasonable time. CR 60(b). 

The trial court, in vacating the 2014 order, relied principally on In re Marriage of 

Hammack, 114 Wn. App. 805 (2003), to find the August 2014 order void as against 
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public policy. Herrmann denies the relevance of the Hammack decision. He also argues 

that agreements exempting a parent from paying child support violate public policy only 

when the agreement seeks to foreclose the right of either party to seek modification in the 

future. Herrmann emphasizes that the 2014 order did not preclude Lisa Morgan from 

seeking modification in the future. 

In Marriage of Hammack, a husband and wife incorporated a provision in their 

dissolution decree that awarded the husband property worth $362,000, while the wife 

received property worth $15,000. The trial court approved the disparate division based 

on an oral agreement exempting the wife from paying any future child support. Despite 

the agreement and order, the husband later moved for an award of child support. The 

trial court found the parties’ oral child support agreement invalid and ordered the wife to 

pay support. The wife responded by moving to vacate the property settlement that the 

court granted. 

On appeal, in Marriage of Hammack, this court affirmed the trial court’s vacation 

of the agreement. This court held that, because the wife agreed to an inequitable division 

of property in exchange for release from child support obligations, the entire agreement, 

including the division of property, was void and unenforceable from its inception. The 

court noted that a disparate division of property may satisfy one spouse’s child support 

obligations when treated as an “advance payment” on support and if the parties followed 

some procedural rules. In re Marriage of Hammack, 114 Wn. App. at 809. The parties 
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failed to calculate an appropriate child support sum, failed to quantify the value of the 

property the wife relinquished in lieu of paying future support, and failed to preserve the 

right for the husband to seek future child support. 

We distinguish Marriage of Hammack with Holaday v. Merceri, 49 Wn. App. 

321, 742 P.2d 127 (1987), on which Paul Herrmann relies. Nevertheless, Holaday v. 

Merceri does not stand for the proposition that a parent can forgo paying child support as 

long as the order waiving support does not foreclose an obligation in the future as 

Herrmann asserts. Similar to Hammack, Holaday involved a disparate division of 

property that functioned as an offset of child support payments the wife would otherwise 

pay. Yet, in Holaday, the court found the agreement valid despite the husband’s 

argument that a parent cannot agree to terminate support obligations. The court upheld 

the validity of the agreement because (1) the trial court found that the parties agreed to a 

disparate division of property in order to satisfy the wife’s portion of child support, (2) 

the trial court explained how the difference in the husband’s and wife’s equity in property 

substituted for child support when invested at a certain interest rate, (3) the trial court 

calculated the value of the property and found the amount of the waiver of child support 

to be reasonable, and (4) the trial court inferred in one of its findings that changed 

circumstances may require a support payment from the wife. 

The facts in Paul Herrmann’s appeal align with the circumstances in Marriage of 

Hammack, not with Holaday v. Merceri. The August 2014 order failed to calculate a 
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reasonable amount of support for the children. The order omitted any calculation of the 

costs of Herrmann’s yearly trip to visit his children, and the order failed to compare the 

two figures. Additionally, Paul Herrmann does not cite any authority that exempts a 

parent from paying child support due to costs related to exercising visitation rights. The 

only cases cited address disparate property divisions and how the division may function 

as an advance payment for child support. 

Our analysis does not change because Lisa Morgan could theoretically modify 

child support in the future since requesting such a modification would not reinstate the 

back child support obligation Paul Herrmann owed before the August 2014 order 

erroneously erased the obligation. Also, Morgan could not freely modify the 2014 order, 

but would need to show a substantial and uncontemplated change of circumstances. In re 

Marriage of Burch, 81 Wn. App. 756, 761, 916 P.2d 443 (1996). 

The August 2014 order also violated numerous Washington statutes. 

RCW 26.19.071(1) dictates that all income and resources of each parent’s household 

shall be disclosed and considered by the court when determining child support 

obligations for each parent. The statute also demands the provision of tax returns or 

current paystubs to verify income and deductions. RCW 26.19.071(2). Under a related 

statute, if the court deviates from the standard calculation of income, it shall enter 

findings that specify reasons for any deviation from the standard calculation. 
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RCW 26.19.075(3). RCW 26.19.080(2) demands that monthly health care costs be 

shared by the parents in the same proportion as the child support obligation. 

In short, many reasons support the trial court’s decision voiding the August 2014 

child support modification order. Also, in compliance with CR 60(b)(5), Lisa Morgan 

filed her motion to vacate in a reasonable amount of time. The trial court did not abuse 

its discretion in granting the motion to vacate. 

The trial court also held authority to vacate the August 2014 order under 

CR 60(b)(11) because the order provided greater relief than Lisa Morgan requested. In re 

Marriage of Hardt, 39 Wn. App. at 495-96 (1985). In Hardt, this court affirmed the 

lower court’s vacation of a five-year-old order under this reasoning. Our Supreme Court 

later adopted this rule in In re Marriage of Leslie, 112 Wn.2d 612, 772 P.2d 1013 (1989). 

In 2012, Morgan only requested to modify the parenting plan. Herrmann did not file an 

answer or any petition to modify child support. Thus, the 2014 order provided greater 

relief than requested.

Attorney Fees

Lisa Morgan asks this court to award her reasonable attorney fees on appeal 

pursuant to RAP 18.1(a) and RCW 26.09.140. The statute allows reasonable attorney 

fees to be ordered after considering the financial resources of both parties. 

RCW 26.09.140. Our record establishes that Paul Herrmann garners a higher income 
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than Morgan. Morgan also shows a need for recovery of fees as her monthly expenses 

exceed her income. 

Lisa Morgan also seeks attorney fees due to Paul Herrmann’s intransigence and 

harassing litigation techniques. A finding of intransigence renders irrelevant the financial 

resources of the spouse seeking the award. In re Marriage of Greenlee, 65 Wn. App. 

703, 708, 829 P.2d 1120 (1992); In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 

P.2d 197 (1989). Intransigence is a basis for attorney fees in dissolution proceedings and 

may involve foot-dragging, obstructing, filing unnecessary or frivolous motions, or any 

other conduct that renders the proceeding unduly difficult or costly. In re Marriage of 

Greenlee, 65 Wn. App. at 708. 

The trial court found that Paul Herrmann employs litigation as a “legal form of 

harassment” against Lisa Morgan and sanctioned Herrmann. Report of Proceedings at

24-25. The trial court also noted the marriage dissolution proceeding has lasted thirteen 

years and contains twenty-one volumes of over 1,200 pleadings. Based on this 

intransigence and the financial need of Morgan, this court awards her attorney fees.

CONCLUSION

We affirm the trial court’s vacation of the August 2014 child support modification 

order. We award Lisa Morgan reasonable attorney fees and costs on appeal against Paul 

Herrmann. 
No. 35090-8-111 

In re Marriage of Herrmann 

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. 

~ d 

Fearing,~ 1 

WE CONCUR: 

Pennell, A.CJ. 

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