Opinion Information Sheet

			

                                                                   FILED

                                                               MAR 15, 2012

                                                         In the Office of the Clerk of Court
                                                      WA State Court of Appeals, Division III

       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

In the Matter of the Marriage of:                         No.  29156-1-III
                                                )
DANIAL L. NEWLON,                               )
                                                )
                             Appellant,         )
                                                )         Division Three 
         v.                                     )
                                                )
NICOLE L. ALEXANDER                             )
(FKA NEWLON),                                   )
                                                )         PUBLISHED OPINION
                             Respondent.        )
                                                )

       Sweeney, J.  -- This appeal follows the tragic death of the parties' only child.  In

this postdissolution proceeding, the superior court exercised its jurisdiction based on its 

continuing authority to resolve postdissolution disputes and on the stipulation of the 

parties.  The court ordered burial of the child's remains in Spokane.  We conclude that 

the court had jurisdiction and that the order was a proper exercise of the court's 

constitutional authority to decide a matter in equity.  We therefore affirm the judgment of 

the court.  

No. 29156-1-III
Newlon v. Alexander

                                            FACTS

       Danial L. Newlon and Nicole L. Alexander (formerly Newlon) had a son, Trenton. 

He was born on January 12, 1995.  Trenton died on July 15, 2008.  The Newlons'

marriage had been dissolved by a Spokane County decree of dissolution in 2000.  The 

Honorable Linda Tompkins had presided over those dissolution proceedings.  Mr. 

Newlon had the primary residential placement.  

       The parties disagreed on what to do with their son's remains.  Counsel for both 

filed a joint "Stipulation Re Jurisdiction, Hearing and Judicial Assignment."  Clerk's 

Papers (CP) at 270.  And they stipulated to the jurisdiction of Spokane County Superior 

Court "for the purpose of determining the disposition of their son." CP at 270. They 

agreed to have a hearing:

       The Court has reserved July 30, 2008, at 1:30 p.m., to hear the parties'
       arguments in open court as to the disposition of Trenton's remains. . . .  The 
       parties shall prepare affidavits and/or declarations and briefs.  The parties 
       shall exchange their respective briefs and affidavits before 2:00 p.m. on 
       Monday, July 28, 2008.  . . .  Only the parties and their respective counsel 
       shall present testimony and argument at the hearing; there shall be no other 
       witnesses before the Court. 

CP at 271. They agreed that Mr. Newlon could move Trenton's remains to Tennessee, 

have a memorial service on July 31, 2008, and keep Trenton's remains until the court 

ruled on their motion.  And they agreed "to be bound by Judge Linda Tompkins ruling as 

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Newlon v. Alexander

to the final disposition of Trenton's remains; provided, Petitioner expressly reserves the 

right to appeal any decision that permits the cremation of Trenton's remains." CP at 271.

       The matter then proceeded to hearing pursuant to the stipulation and agreement on

July 30, 2008.  Judge Tompkins commented on the sensitive nature of the dispute, the 

stipulation of counsel to no oral arguments, and the equitable nature of the dispute:

"Because this matter is one essentially of almost pure equity I am prepared to provide a 

forum where the parties may be heard.  I will administer an oath and I will listen very 

carefully to the sworn statements of the parties."  Report of Proceedings (RP) (July 30, 

2008) at 2. Mr. Newlon and Ms. Alexander provided sworn statements.  Afterwards, the 

court spoke to the parties in camera and outside of each other's presence.  No one 

objected to this. Judge Tompkins then ruled that Trenton not be cremated and that he be 

buried in a public cemetery in Spokane.  

       On August 10, 2009, Mr. Newlon moved to vacate the court's August 11, 2008 

order.  Judge Tompkins stepped aside because of Mr. Newlon's allegations of 

impropriety.  And the Honorable Gregory Sypolt heard argument and denied the motion:

       [B]oth parties were represented by competent counsel at the time of the 
       entry of the stipulation and at the time of the hearing.  Well, at the time of 
       the stipulation.  And there additionally is the time factor the Court can't 
       overlook.  And it was just about a year after the order was signed when the 
       motion to vacate was filed.
              . . . .
              Here we do have a stipulation.  And I find very persuasive the fact 

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Newlon v. Alexander

       that this was initiated by Mr. Newlon.  And it's striking that Ms. Alexander 
       at the time herself had to scramble to get counsel to respond to this matter.  
       And, granted, I'm sure the parties felt, as might very reasonably be 
       expected, a lot of stress at that particular time.  Nonetheless, there was 
       advice and input from counsel. 

RP (June 18, 2010) at 25-26.  

                                        DISCUSSION

       Motions to vacate "are addressed to the sound discretion of the trial court, whose 

judgment will not be disturbed absent a showing of a manifest abuse of discretion."  In re 

Marriage of Burkey, 36 Wn. App. 487, 489, 675 P.2d 619 (1984).  Discretion is abused 

where it is exercised on untenable grounds or for untenable reasons.  In re Schuoler, 106 

Wn.2d 500, 512, 723 P.2d 1103 (1986).  We however review questions of law, including

whether the court had jurisdiction, de novo.  In re Marriage of Kastanas, 78 Wn. App. 

193, 197, 896 P.2d 726 (1995).  

       CR 60(b) provides:

       [T]he court may relieve a party . . . from a final judgment, order, or 
       proceeding for the following reasons:
              (1)     Mistakes, inadvertence, surprise, excusable neglect or 
       irregularity in obtaining a judgment or order;
              . . . . 
              (5)     The judgment is void;
              . . . . 
              (11)    Any other reason justifying relief from the operation of the 
       judgment.  

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Newlon v. Alexander

Mr. Newlon argues that the trial court did not have subject matter jurisdiction and the 

court's order was therefore void.  He also argues that the order should be set aside 

because of "irregularities."  Br. of Appellant at 41.

       Subject matter jurisdiction is "a tribunal's authority to adjudicate the type of 

controversy involved in the action."  Shoop v. Kittitas County, 108 Wn. App. 388, 393, 

30 P.3d 529 (2001), aff'd, 149 Wn.2d 29, 65 P.3d 1194 (2003).  

       RCW 68.50.010 recites that county coroners have "jurisdiction" over bodily 

remains under certain circumstances:

       The jurisdiction of bodies of all deceased persons who come to their death 
       suddenly when in apparent good health without medical attendance within 
       the thirty-six hours preceding death; or where the circumstances of death 
       indicate death was caused by unnatural or unlawful means; or where death 
       occurs under suspicious circumstances; or . . . where death apparently 
       results from drowning, . . . stabs or cuts . . . is hereby vested in the county 
       coroner, which bodies may be removed and placed in the morgue under 
       such rules as are adopted by the coroner with the approval of the county 
       commissioners, having jurisdiction, providing therein how the bodies shall 
       be brought to and cared for at the morgue and held for the proper 
       identification where necessary.

Mr. Newlon argues that this statute vests subject matter jurisdiction in coroners rather 

than the superior courts.  Br. of Appellant at 17-18.  Mr. Newlon's argument is premised 

on the proposition that the legislature must, or at least may, grant jurisdiction to the 

courts.  Br. of Appellant at 16 (citing Wash. Const. art. IV, § 1).  He is mistaken.  This is 

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Newlon v. Alexander

state court not federal court.   Compare U.S. Const. art. III, § 2, cl. 1, with Wash. Const.

art. IV, § 6; compare Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites des

Guinee, 456 U.S. 694, 701-02, 102 S. Ct. 2099, 72 L. Ed.2d 492 (1982) ("Federal courts 

are courts of limited jurisdiction."), with State ex rel. Martin v. Superior Court for King 

County, 101 Wash. 81, 93-94, 172 P. 257 (1918) ("The superior courts of this state are 

courts of general jurisdiction.").  

       The Washington State Constitution grants the courts of this state:  "The judicial 

power of the state shall be vested in a supreme court, superior courts, justices of the 

peace, and such inferior courts as the legislature may provide."  Const. art. IV, § 1.  The 

state constitution specifically vests superior courts with jurisdiction in cases in equity, 

cases of divorce, and "in all cases and of all proceedings in which jurisdiction shall not 

have been by law vested exclusively in some other court."  Const. art. IV, § 6.  Superior 

courts are courts of "general jurisdiction" and can therefore hear all legal and equitable 

matters unless those "'powers have been expressly denied.'"  In re Marriage of Major, 

71 Wn. App. 531, 533, 859 P.2d 1262 (1993) (quoting Martin, 101 Wash. at 94).

       The legislature may limit superior courts' jurisdiction in favor of other inferior 

courts.  Young v. Clark, 149 Wn.2d 130, 133-34, 65 P.3d 1192 (2003) (citing Moore v.

Perrott, 2 Wash. 1, 4, 25 P. 906 (1891)).  Section 6 provides that superior courts have 

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Newlon v. Alexander

judicial powers when those powers are not "vested exclusively in some other court."  

Sections 1 and 12 allow the legislature to create "inferior courts." Similarly, section 10 

allows the legislature to create justices of the peace, but "jurisdiction granted by the 

legislature shall not trench upon the jurisdiction of superior or other courts of record."  

There is no constitutional framework apart from sections 1, 6, 10, and 12 that would 

allow the legislature to create courts that are not inferior to superior courts.  "It is 

axiomatic that a judicial power vested in courts by the constitution may not be abrogated 

by statute."  James v. Kitsap County, 154 Wn.2d 574, 588, 115 P.3d 286 (2005).  

       This constitutional framework ensures that "subject matter jurisdiction . . . cannot 

be whittled away by statutes" and thus "provides the foundation for an independent and 

coequal branch of state government."  Shoop, 108 Wn. App. at 396.  Unless a coroner is 

"some other court" or an "inferior court," subject matter jurisdiction cannot be vested in it 

at the expense of superior court.  And, of course, it (the office of coroner) is not some 

other court. 

       RCW 68.50.010 recites that coroners have "jurisdiction of bodies of all deceased 

persons" who die under certain circumstances.  But the word "jurisdiction" can have 

more than one meaning.  And superior courts in this state have a specific and clear 

constitutional grant of authority -- jurisdiction -- over equitable disputes.  Wash. Const.

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Newlon v. Alexander

art. IV, § 6.  We will not read a legislative enactment as restricting that constitutional 

grant of authority because the legislature has no authority to do so.  Blanchard v. Golden 

Age Brewing Co., 188 Wash. 396, 415, 63 P.2d 397 (1936).  Nor does it appear that it

intended to do so.  The court here then clearly had jurisdiction of this equitable dispute 

and nothing in this legislative scheme of things changed that.  

       A "coroner" is not a judicial tribunal.  The chapter conferring "jurisdiction of all 

bodies of deceased persons" deals with human remains.  See ch. 68.50 RCW.  The 

chapter limits one's ability to move, hide, sell, keep for a debt, or otherwise dispose of 

human remains.  RCW 68.50.050, .140, .120, .130.  It requires that human remains be 

buried or cremated.  RCW 68.50.110.  The chapter also gives the decedent's parents the 

right to control disposition of remains when the decedent has not made 

"prearrangements." RCW 68.50.160(3)(d). A coroner may "hold an inquest upon a 

body" and may authorize dissection in those cases.  RCW 68.50.100.  The coroner must 

catalog personal effects belonging to decedents.  RCW 68.50.040.  He or she must meet 

with a decedent's family and discuss the findings upon the family's request.  RCW 

68.50.105.  And he or she must perform an autopsy at the written request of the 

department of labor and industries.  RCW 68.50.103.  The statutory scheme's only 

provisions relating to conflict resolution, however, involve the courts.  See RCW 

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Newlon v. Alexander

68.50.015 (providing that the accuracy of a coroner's findings can be challenged), 

68.50.102 (providing that a decedent's family may petition the court for an autopsy).  

Nothing in chapter 68.50 RCW suggests that coroners resolve disputes.  They do not. 
       Mr. Newlon cites to In re Boston1 to argue that coroners are a court and that courts 

do not have jurisdiction to resolve disputes over human remains.  Br. of Appellant at 21, 

28.  Boston merely holds that the Rules for Appeal of Decisions of Courts of Limited 

Jurisdiction do not allow appeal of an inquest decision where a district court judge is then 

appointed coroner.  112 Wn. App. at 122.  Boston supports the notion that superior 

courts, and not coroners, have jurisdiction to decide disputes regarding remains.  The 

court distinguished a coroner's inquest from a judicial proceeding.  See Boston, 112 Wn. 

App. at 118.  It explained that an inquest "is not meant to be an adversary proceeding"

and has results that "are not binding on anyone."  Boston, 112 Wn. App. at 118 (citing 

Miranda v. Sims, 98 Wn. App. 898, 903, 991 P.2d 681 (2000)).  Coroners are part of the 

executive branch and not judicial officers.  See Boston, 112 Wn. App. at 118, 122.  

       Mr. Newlon also contends that the superior court here, which was sitting as a 

family court, did not have subject matter jurisdiction because neither chapter 68.50 nor 

chapter 26.09 RCW (governing family court) gives family court the right to order 

disposition of human remains.  Br. of Appellant at 26.  And he argues that it did not have 

       1 In re Boston, 112 Wn. App. 114, 47 P.3d 956 (2002).

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Newlon v. Alexander

subject matter jurisdiction because no "petition, application, complaint or motion was 

ever filed to 'commence' any interment action." Br. of Appellant at 31.  We disagree.

       Even after a decree of dissolution, the superior court acting as family court has 

authority to resolve disputes between former spouses.  See In re Marriage of Langham, 

153 Wn.2d 553, 559-60, 106 P.3d 212 (2005) (addressing postdissolution motion to 

enforce property settlement based on a conversion theory); In re Marriage of Angelo, 142 

Wn. App. 622, 639, 640, 175 P.3d 1096 (2008) (addressing consolidation of tort action 

against ex-husband with dissolution action after a decree of dissolution was filed).

       Langham is helpful here.  There, a dissolution decree awarded stock options to the 

wife, but the husband was ordered to hold the options in trust for the wife because the 

nontransferable options were only in his name.  Langham, 153 Wn.2d at 556-59.  The 

husband exercised the options and the ex-wife moved for a judgment to be entered 

against him for conversion.  Id. at 558.  The court heard the motion on the family court 

motions docket and the court entered judgment against the ex-husband based on 

documents.  Id. at 560-61.  The ex-husband argued, like Mr. Newlon argues here, that the 

family court lacked subject matter jurisdiction to decide a tort action because he did not 

have time to answer a complaint, get discovery, or have a jury trial.  Id. at 599-60. The 

Supreme Court held that the family court had jurisdiction to enter judgment because it 

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Newlon v. Alexander

never lost jurisdiction:

              "Having before it at the outset a cause cognizable in equity, the court 
       retain[s] jurisdiction over the subject matter and the parties to be affected 
       by its decree for all purposes -- to administer justice among the parties 
       according to law or equity."  Yount v. Indianola Beach Estates, Inc., 63 
       Wn.2d 519, 524-25, 387 P.2d 975 (1964). . . . It . . . has the authority to use 
       "any suitable process or mode of proceeding" to settle disputes over which 
       it has jurisdiction, provided no specific procedure is set forth by statute and 
       the chosen procedure best conforms to the spirit of the law. . . . Indeed, 
       "[w]hen the equitable jurisdiction of the court is invoked . . . whatever 
       relief the facts warrant will be granted."

Id. at 560 (first, fifth and sixth alteration in original) (internal quotation marks omitted) 

(quoting Ronken v. Bd. of County Comm'rs, 89 Wn.2d 304, 313, 572 P.2d 1 (1977).  

       The procedural posture there is similar to what the court faced here.  In both cases, 

the superior court had entered a decree and the parties had a postdecree dispute not 

contemplated by statute.  Rather than filing a new action, they treated the dispute as a 

motion in the dissolution proceeding, as they were privileged to do. Langham, 153 

Wn.2d at 560-61. Mr. Newlon argues, nonetheless, that no action was filed.  None was 

necessary.  The court had continuing jurisdiction to resolve just this kind of dispute.  Id.

at 560. And, indeed, the parties stipulated as much: "The court has reserved July 30, 

2008, at 1:30 p.m., to hear the parties' arguments in open court as to the disposition of 

Trenton's remains." CP at 271.  

       No matter what the court's ruling on jurisdiction or the reasons therefore, 

jurisdiction remained a matter of law that

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Newlon v. Alexander

we are obligated to review de novo.  Kastanas, 78 Wn. App. at 197. The court had 

continuing jurisdiction in this postdissolution dispute and therefore properly denied Mr. 

Newlon's motion to vacate the order.  The court's judgment was neither void nor 

"irregular."  James, 154 Wn.2d at 588; Langham, 153 Wn.2d at 560; In re Marriage of 

Furrow, 115 Wn. App. 661, 673-74, 63 P.3d 821 (2003) (stating that the circumstances in 

which CR 60(b)(11) will grant relief must be "extraordinary" and "extraneous to the

action of the court or questions concerning the regularity of the court's proceedings").

       We deny any requests for attorney fees.  The stipulation of the parties does not 

provide for attorney fees and the proceedings including this appeal are neither frivolous 

nor advanced without reasonable cause.  RCW 4.84.185.  

       We affirm the judgment of the superior court.

                                                    _______________________________
                                                    Sweeney, J.
WE CONCUR:

________________________________
Kulik, C.J.

________________________________
Korsmo, J.

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