FEES ‑- JUDGMENT FEE TO BE PAID IN PROCEEDINGS TO MODIFY DIVORCE DECREE

FEES ‑- JUDGMENT FEE TO BE PAID IN PROCEEDINGS TO MODIFY DIVORCE DECREE

No additional fee can be charged for entry of modified divorce decree in proceedings under chapter 26.08 RCW.  Judgment fee, however, should be charged for entry of judgment denying or granting application to vacate or modify decree under chapter 4.72 RCW.

                                                                    - - - - - - - - - - - - -

                                                                    July 30, 1953

Honorable Don G. Abel
Prosecuting Attorney
Grays Harbor County
Becker Building
Aberdeen, Washington                                                                                                              Cite as:  AGO 53-55 No. 107

Dear Sir:

            This is in reply to your letter of July 6, 1953, requesting that we consider the extension of our opinion 51-53 No. 488 [[to J. J. O'Connell, Prosecuting Attorney, Pierce County on March 5, 1953]], to the modification of divorce actions.  The question raised by your letter is as follows:

            "The Clerk of our court frequently has a situation wherein a divorce proceeding had judgment entered by default and then a petition to modify the judgment by the defaulted party; such party then paying the regular appearance fee for a defendant.  When the default and judgment was originally entered the $3.00 default fee was paid.  Should the default and judgment be modified should an additional judgment fee be paid?  Should it then be $6.00 or should it be the difference between $3.00 and $6.00?  If there is no modification but rather an order denying the petition should there be any adjudgment fee?"

             [[Orig. Op. Page 2]]

            Our conclusions may be stated as follows:

            If the proceeding to modify the decree is based upon RCW 26.08.110, no further judgment fee may be required.  If, however, the proceeding is based upon RCW 4.72.010 et seq. an additional judgment fee may be required in the amount of $3.00, unless the adverse party has appeared, in which case the fee should be $6.00.  In the event the application to vacate or modify a judgment under the latter chapter is denied, similar judgment fees may be required.

                                                                     ANALYSIS

            The questions presented by your letter are not specific enough to allow a direct answer.  The fee to be charged under such circumstances would depend upon the nature of the petition for the modification of the judgment.  If in entering the judgment in the original divorce proceeding, the court retained jurisdiction for the purpose of making further orders with reference to the amount of the alimony and the care, custody, support and education of the children, and the petition filed was a petition in the original action for the purpose of having the divorce judgment modified concerning matters over which the court retained jurisdiction, no additional fee should be charged for entry of the modified judgment.

            We can find no statement or suggestion in RCW 36.18.020 to the effect that more than one judgment fee is required, and the amount of that fee depends upon the condition of the case at the time of the entry of the judgment.  Manifestly, only one judgment fee is required.  This is in accord with our opinion of October 7, 1936, to the county clerk of Benton County.  Ops. Atty. Gen. 1935-36, p. 187.

            Chapter 4.72 RCW of our code provides for the vacation and modification of judgments.  RCW 4.72.040 reads in part as follows:

            "In such proceedings the party shall be brought into court in the same way, on the same notice as to time, mode of service, and mode of return, and the pleadings shall be governed by the same principles, and issues be made up by the same form, and all the proceedings conducted in the same way, as near as can be, as in original action, * * *"

            If the petition to modify the judgment in the divorce action sought to modify it concerning matters over which the judgment was final and conclusive upon  [[Orig. Op. Page 3]] both parties as provided in RCW 26.08.110, the proceeding would necessarily fall under the provisions of chapter 4.72 RCW and the usual judgment fee prescribed by RCW 36.18.020 should be charged.  This is in accord with our opinion of November 10, 1913, to the Bureau of Inspection and Supervision of Public Offices, Ops. Atty. Gen. 1913-14, p. 291.  As such action is, in effect, a new proceeding, an entry of judgment therein would give rise to the imposition of a new judgment fee.  In fact, RCW 4.72.090 provides for entry of a judgment upon denial of application.

            It may be concluded, therefore, that a judgment entered under provisions of the latter chapter, whether it constitutes a denial of the application, or whether it operates to vacate or modify the divorce decree, constitutes, in effect, a new and separate judgment calling for the payment of the usual judgment fee.

Very truly yours,

DON EASTVOLD
Attorney General

ROBERT E. STOEVE
Assistant Attorney General