* Thida Chea, Appellant V. Sophal Long, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
In the Matter of the Marriage of
THIDA CHEA,
Appellant,
and
SOPHAL LONG,
Respondent.
No. 85399-6-I
PUBLISHED IN PART OPINION
BOWMAN, A.C.J. — In 2023, Thida Chea and Sophal Long dissolved their
16-year marriage after a 4-day dissolution trial. Chea appeals the trial court’s
residential schedule and distribution of assets and argues the court erred by
entering supplemental findings under CR 60(a). We vacate the trial court’s
supplemental findings and reverse and remand for further proceedings consistent
with this opinion. We also award Chea attorney fees and costs on appeal.
FACTS
In 2004, Chea and Long had an arranged marriage ceremony in
Cambodia. The following year, they married in Washington, and later had three
children.1 In August 2021, Chea petitioned for divorce. In March 2023, the case
proceeded to a four-day trial.
In April 2023, the trial court entered its final orders, largely adopting Long’s
proposed orders. The court ordered a 50/50 residential schedule with joint
1 At the time of the dissolution trial, all three children were minors.
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No. 85399-6-I/2
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decision making and no RCW 26.09.191 restrictions. The court also adopted
Long’s proposed property distribution. It found the parties had two real property
assets—a house in Washington and a house in Cambodia. It found the market
value of the Washington house was $720,000, offset by a $224,928 mortgage. It
ordered the parties to sell the house, pay any outstanding community debt, and
split the remaining proceeds. As for the house in Cambodia, it awarded the
property to Chea at a fair market value of $115,000.
The court also divided the parties’ retirement and investment accounts.
Long had five accounts in his name at a community value of $302,903.2 And
Chea had one account in her name valued at $29,908. The community’s
accounts totaled $332,811. The court awarded Chea her account and half of
Long’s Boeing “Pension Value Plan” for a total market value of $61,840. It
awarded the remaining $270,971 in retirement and investment accounts to Long.
After distributing the community’s assets and debts, it awarded Long a gross total
of $533,449 and Chea a gross total of $421,996. Then, the court ordered Long
to make an equalization payment to Chea in the amount of $55,727, resulting in
final community property awards of $477,723 to each party.
The trial court also ordered child support. It determined Long’s net
monthly income is $8,273 and Chea’s is $3,412, resulting in a standard child
support calculation transfer of $1,917 per month from Long to Chea. But the
court deviated from the standard calculation based on the significant time the
2 The total market value of Long’s accounts was $313,518. But the trial court
characterized $10,615 of Long’s Boeing Company 401(K) as his separate property.
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No. 85399-6-I/3
3
children spend with Long and ordered that Long pay Chea $503 in child support
each month. It explained in its oral findings:
There is reason to deviate. Taking the total child support
number, dividing it by 2, then subtracting out — and this is the
same formula I have seen several times on these proposals —
subtracting out the petitioner’s portion, I am adopting the number. I
think it works out to $50[3] will be the new transfer payment.[3]
The court denied Chea’s request for spousal maintenance. It explained
that
there does not appear to be a reason or basis for maintenance as
the wife’s income is unclear due to large amounts of money
transfers into her accounts. These create similar incomes between
the parties, they have similar educations, and while wife has a
lower paying job, she is not without means.
Chea moved for reconsideration, asking the court to reconsider (1)
whether it should impose RCW 26.09.191 restrictions, (2) the calculation of her
income, (3) the general child support calculations, (4) the downward deviation
from the standard child support calculations, (5) the improper characterization of
some assets and debts as community property, including the Cambodia house,
which Chea argued belongs to her mother, (6) the distribution of community
assets, and (7) its refusal to award spousal maintenance. The court denied her
motion, reasoning it “made specific findings at trial related to all findings,” there is
3 We note that under RCW 26.19.075(1)(d), the court may not deviate from the
standard calculation based on the residential schedule if it results in “insufficient funds in
the household receiving the support to meet the basic needs of the child.” If the court
decides to deviate, it must consider evidence of
the increased expenses to a parent making support transfer payments
resulting from the significant amount of time spent with that parent and
. . . the decreased expenses, if any, to the party receiving the support
resulting from the significant amount of time the child spends with the
parent making the support transfer payment.
RCW 26.19.075(1)(d).
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No. 85399-6-I/4
4
“ample evidence to support the various findings,” and there “does not appear to
be any error.”
Long also moved for reconsideration and clarification of the court’s final
orders. The court granted Long’s motion. In doing so, it determined it used
incorrect income figures to determine the standard calculations for child support,
so it entered an amended order. The amended child support order determined
Long’s net monthly income is $9,048 and Chea’s is $2,995. And it found the
standard child support calculation resulted in a $2,067 transfer from Long to
Chea. The court again deviated from the standard calculation based on the
children spending significant time with Long and ordered Long to pay Chea $642
in child support each month.
In May 2023, Chea appealed the trial court’s final orders to this court. She
argued the trial court improperly applied a presumption of equal residential time,
considered extrajudicial information, and failed to consider the necessary
statutory factors when deciding the residential schedule. And she argued the
court erred by distributing her mother’s home in Cambodia and by inequitably
distributing the assets as a whole.
After Chea filed her opening brief, Long moved this court to stay the
appeal “while he seeks supplemental findings of fact in the trial court” under CR
60(a) and RAP 7.2(e). He argued that additional findings would “offer
permissible clarification of the trial court’s rulings” and “address the purported
shortcomings identified by . . . Chea on appeal.” Chea opposed the motion,
arguing, “CR 60(a) only remedies purely clerical errors,” which she did not raise
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No. 85399-6-I/5
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on appeal. A commissioner from our court granted Long’s motion, ruling, “I allow
a stay that is limited in scope to facilitate the resolution of the issues on appeal.
To the extent CR 60(a) does not apply, the Court may allow a stay to ensure
effective and equitable review. [See] RAP 8.3.”
Long then moved the trial court for supplemental findings under CR 60(a).
He argued that “[b]esides providing the written findings that . . . Chea claims are
missing, this Court also may clarify its reasoning and its decisions, as long as it
doesn’t modify its decree.” Chea objected, again arguing the court lacked
authority to enter supplemental findings because there are no clerical errors at
issue, and it cannot correct judicial errors under CR 60(a). Chea urged that
entering the proposed supplemental findings would amount to an “ ‘upside-down’
approach,” in which the court made its decision first and then entered findings
“tailored to fit the decision.”
In May 2024, the trial court granted Long’s motion and entered his
proposed supplemental findings. As for the residential schedule, the court said it
previously “considered the statutory factors set out in RCW 26.09.187(3)” and it
“hereby makes the following findings on each factor.” It then made findings of
fact under each RCW 26.09.187(3)(a) factor, considering the children’s
relationship with each parent, the parties’ parenting functions, their employment
schedules, and more. And it found that even if it improperly applied a
presumption or considered extrajudicial information when it determined the
residential schedule, it would have adopted the same residential schedule
without those considerations.
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No. 85399-6-I/6
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As for its property distribution, the court found that even if it
“mischaracterized” the house in Cambodia as property subject to distribution and
had not awarded Chea the house, its distribution of the parties’ assets and debt
would not have been different and would still be “just and equitable.” In making
those supplemental findings, the court considered the nature and extent of other
property, the duration of the marriage, and each party’s economic circumstances.
It also reconsidered the spousal maintenance factors and found that even if the
home in Cambodia was not distributable property, “spousal maintenance would
still not be just.”
After the stay lifted, Chea filed a supplemental brief in this court,
challenging the trial court’s supplemental findings.
ANALYSIS
Chea argues we should vacate the trial court’s supplemental findings
because the court had no authority to enter them under CR 60(a). She also
argues the trial court erred by entering a residential schedule without considering
the RCW 26.09.187(3)(a) factors, by distributing to her a property in Cambodia
that neither party owns, and by failing to make a just and equitable property
distribution overall. And she requests attorney fees and costs on appeal. We
address each argument in turn.
1. Supplemental Findings
As an initial matter, Chea argues we should vacate the trial court’s
supplemental findings because CR 60(a) provides for the correction of clerical
errors only, and the findings here substantively modify the court’s rulings. Long
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No. 85399-6-I/7
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argues the trial court had authority under CR 60(a) to enter the supplemental
findings because they “merely filled gaps” in the court’s findings “without altering
the substantive outcomes.”4 We agree with Chea.
We review a trial court’s amended order under CR 60 for abuse of
discretion. Presidential Ests Apt. Assocs. v. Barrett, 129 Wn.2d 320, 325-26, 917
P.2d 100 (1996). A ruling based on an erroneous view of the law amounts to an
abuse of discretion. In re Marriage of Niemi, 19 Wn. App. 2d 357, 362, 496 P.3d
305 (2021).
Under CR 60(a),
[c]lerical 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).
CR 60(a) “allows a trial court to grant relief from judgments only for clerical
mistakes. It does not permit correction of judicial errors.” Presidential Ests., 129
Wn.2d at 326. A clerical error is a “mistake or omission mechanical in nature
which is apparent on the record and which does not involve a legal decision or
judgment by an attorney.” In re Marriage of King, 66 Wn. App. 134, 138, 831
4 Long also argues our commissioner authorized the trial court’s supplemental
findings under RAP 8.3. We disagree. RAP 8.3 gives this court “authority to issue
orders, before or after acceptance of review . . . , to insure effective and equitable
review, including authority to grant injunctive or other relief to a party.” We interpret the
commissioner’s order under RAP 8.3 as allowing a stay in this court so Long could
obtain “effective and equitable review” of his CR 60(a) motion in the trial court. The
order was not a substitute for the trial court’s proper application of CR 60(a).
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No. 85399-6-I/8
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P.2d 1094 (1992). But a judicial error is one of substance. In re Marriage of
Stern, 68 Wn. App. 922, 927, 846 P.2d 1387 (1993).
To determine whether an error is “clerical” or “judicial,” we ask whether the
amended order “embodies the trial court’s intention, as expressed in the record
at trial.” Presidential Ests., 129 Wn.2d at 326. If it does, the error is clerical
because the amended order “merely corrects language that did not correctly
convey the intention of the court, or supplies language that was inadvertently
omitted from the original [order].” Id. If it does not embody the court’s intention,
the error is judicial and cannot be corrected under CR 60(a). Id. Once a court
“enters a written judgment, it cannot, under CR 60(a), go back, rethink the case,
and enter an amended judgment that does not find support in the trial court
record.” Id. Also, whether a court “intended that a judgment should have a
certain result is a matter involving legal analysis and is beyond the scope of CR
60(a).” Id. at n.5.
Here, the record shows that the trial court entered supplemental findings
that exceeded its analysis in its original orders and aimed to correct substantive
errors. In its supplemental findings about the residential schedule, the court did
not merely supply language inadvertently omitted from the original order.
Instead, it performed the legal analysis under RCW 26.09.187(3) that it first failed
to perform and that is otherwise absent from the record. And with regard to the
court’s supplemental findings about the house in Cambodia, the court effectively
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No. 85399-6-I/9
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conceded it erred and then redistributed the property without the house in
Cambodia.5
Still, Long argues the trial court’s supplemental findings were “precisely
the kind . . . approved” by Stern. In that case, the mother petitioned for
modification of a child support order. Stern, 68 Wn. App. at 925. The trial court
entered an amended order modifying the dissolution decree and, among other
modifications, increased the father’s child support obligation. Id. The court did
not enter written findings or conclusions of law with the order. Id. at 926. The
father appealed the trial court’s failure to enter written findings. Id. After
obtaining an extension from this court to file her brief, the mother moved the trial
court under CR 60(b)6 to enter findings of fact and conclusions of law, which the
trial court granted. Id. The father appealed the trial court’s amended order and
its belated findings and conclusions. Id. On appeal, we affirmed the amended
order, explaining that CR 60(a) authorized the amendment, not CR 60(b). Id. at
927-28. We reasoned that a trial court’s failure “to memorialize part of its
decision does not alter or amend the judgment. Rather, it is a clerical error of
omission correctable under CR 60(a).” Id. at 927.
Stern is different from this case. There, the trial court performed an
adequate legal analysis on the record but inadvertently failed to memorialize it in
5 For the trial court to modify its decision, a party must seek our permission to do
so under RAP 7.2(e). Long asks, alternatively, that we retroactively grant the trial court
permission to modify its decision and enter supplemental findings. We deny Long’s
request.
6 CR 60(b) provides that the trial court may relieve a party from a final judgment,
order, or proceeding for one of 11 stated reasons, including mistake, inadvertence,
excusable neglect, newly discovered evidence, and fraud.
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No. 85399-6-I/10
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writing. Stern, 68 Wn. App. at 927-28. As a result, it could correct the error
under CR 60(a). Id. But those facts are not before us. Here, the trial court failed
to engage in an adequate legal analysis on the record or in writing and
misapplied the law in its property distribution. It then tried to correct those errors
retroactively through supplemental findings. These substantive errors differ from
the clerical error in Stern.
Because the trial court abused its discretion by entering supplemental
findings under CR 60(a), we vacate the supplemental findings.
We have determined that the rest of this opinion has no precedential value
and should not be published under RCW 2.06.040.
2. Parenting Plan
Chea argues the trial court abused its discretion by failing to consider
RCW 26.09.187(3) when it determined the residential schedule in the original
parenting plan. We agree.7
We review a trial court’s parenting plan for abuse of discretion. In re
Marriage of Chandola, 180 Wn.2d 632, 642, 327 P.3d 644 (2014). A court
abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or reasons. In re Marriage of Littlefield, 133 Wn.2d 39, 46-47,
940 P.2d 1362 (1997). This includes a court’s failure to apply the correct legal
standard. Id. at 47.
7 Chea also argues the court erred by relying on an unknown extrajudicial source
when determining the residential schedule and by inappropriately presuming a 50/50
residential schedule. Because we remand for the trial court to reconsider the parenting
plan, we need not reach these issues.
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No. 85399-6-I/11
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Under RCW 26.09.187(3)(a), the court “shall consider” seven factors when
determining the residential provisions in a permanent parenting plan. Those
factors include the “relative strength, nature, and stability of the child’s
relationship with each parent,”8 each parent’s “past and potential for future
performance of parenting functions,” the child’s emotional needs and
developmental level, and the parents’ employment schedules. See RCW
26.09.187(3)(a). When the parties present evidence of the statutory factors and
the court’s “oral opinion and written findings reflect consideration of the statutory
elements, specific findings are not required on each factor.” In re Marriage of
Murray, 28 Wn. App. 187, 189, 622 P.2d 1288 (1981). But when the record does
not show the court made its determination by applying the statutory factors, we
remand for the court to consider them. See id. at 189-90.
Here, there is no evidence in the record that the trial court considered the
statutory factors as required under RCW 26.09.187(3)(a). The court’s written
parenting plan identifies the residential schedule without providing any legal
reasoning. And the court’s oral findings state only that Long’s proposals “are
absolutely in the best interest of the children as demonstrated at times by
unrebutted testimony.”
We reverse and remand for the trial court to consider and make findings
under RCW 26.09.187(3) when determining the residential schedule in the
parenting plan.
8 The court gives this factor the most weight. RCW 26.09.187(3)(a).
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No. 85399-6-I/12
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3. House in Cambodia
Chea argues the trial court abused its discretion under RCW 26.09.080 by
distributing a home in Cambodia that neither party owns. We agree.
The trial court has broad discretion in distributing marital property, and we
will reverse only if there is a manifest abuse of discretion. In re Marriage of
Rockwell, 141 Wn. App. 235, 242-43, 170 P.3d 572 (2007). Under RCW
26.09.080, the trial court must make a “disposition of the property and the
liabilities of the parties, either community or separate, as shall appear just and
equitable.”9 And to be community or separate property, one of the parties must
have acquired the asset. See In re Marriage of White, 105 Wn. App. 545, 550,
20 P.3d 481 (2001).
Here, the trial court awarded Chea the house in Cambodia at a market
value of $115,000. But the undisputed evidence presented at trial shows that
neither party owns the property. Both Chea and Long testified that they gave
Chea’s mother in Cambodia some money to build a house but agree that the
house is titled in only Chea’s mother’s name.10 Although the trial court has broad
discretion in the disposition of property, it can only distribute property belonging
to at least one of the parties. See RCW 26.09.080. Because the record shows
9 Emphasis added.
10 Long argues that the trial court made no determination about title to the
Cambodia house. He contends that instead, the court determined the marital community
“had a personal interest in, or beneficial ownership of,” the Cambodia property, and then
awarded the asset to Chea. But the trial court did not characterize the home as a
community equitable interest. It characterized the home as a real property asset of the
community and awarded it to Chea. The trial court cannot distribute an asset owned by
a third party. RCW 26.09.080.
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No. 85399-6-I/13
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neither party acquired the property in Cambodia, the court erred by awarding it to
Chea.
We vacate the trial court’s final divorce order and its findings and
conclusions about a marriage as they relate to distributing the parties’ property,
and remand for the court to redistribute the parties’ property in a manner
consistent with RCW 26.09.080. The court may also redistribute other assets or
liabilities necessary to achieve a just and equitable outcome.
4. Attorney Fees and Costs on Appeal
Chea asks for an award of attorney fees and costs on appeal under RCW
26.09.140. Under that statute, this court may, “in its discretion, order a party to
pay for the cost to the other party of maintaining the appeal and attorneys’ fees in
addition to statutory costs.” Id. When exercising that discretion, we consider the
parties’ financial resources. In re Marriage of Raskob, 183 Wn. App. 503, 520,
334 P.3d 30 (2014). We balance the needs of the requesting party against the
other party’s ability to pay. Leslie v. Verhey, 90 Wn. App. 796, 805, 954 P.2d
330 (1998). We also examine the arguable merit of the issues raised on appeal.
Id. at 807.
Chea and Long both filed affidavits of financial need. Their affidavits show
that payment would create a hardship for Chea and that Long is in a better
financial position than Chea. Long argues he cannot satisfy Chea’s request for
attorney fees and costs, but his financial affidavit shows he has $42,000 in liquid
assets. Given their financial disparity and that Chea presents meritorious
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No. 85399-6-I/14
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arguments on appeal, we award Chea attorney fees and costs subject to
compliance with RAP 18.1.
In sum, we vacate the trial court’s supplemental findings. And we reverse
and remand for the trial court to consider on the record the statutory residential
factors under RCW 26.09.187(3)(a) and any restrictions under RCW 26.09.191
when determining the permanent parenting plan.11 We also vacate the trial
court’s final divorce order and its findings and conclusions about a marriage as
they relate to distributing the parties’ property, and remand for the court to
redistribute the parties’ debts and assets and to make a just and equitable
disposition of their property. We authorize the court to reconsider its awards for
child support and spousal maintenance when distributing the property.12 We also
award Chea attorney fees and costs on appeal.
WE CONCUR:
11 The parties are free to present argument on these issues.
12 Chea asks for a different judge on remand. We deny Chea’s request because
she failed to move for recusal below, and reassignment is generally not available as an
appellate remedy when we offer “sufficient guidance to effectively limit trial court
discretion on remand,” as we do here. State v. Solis-Diaz, 187 Wn.2d 535, 540, 387
P.3d 703 (2017).
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