Opinion
No. 61813-0-I.
April 27, 2009.
Appeal from a judgment of the Superior Court for Snohomish County, No. 07-5-00100-9, Linda C. Krese, J., entered June 2, 2008.
Affirmed by unpublished opinion per Cox, J., concurred in by Schindler, C.J., and Ellington, J.
A trial court's denial of a motion to vacate under CR 60(b) will not be overturned on appeal unless the court manifestly abused its discretion. Because Kevlar Smith Wesson has neither shown extraordinary circumstances warranting relief under CR 60(b)(11), nor shown clear and convincing evidence of fraud, misrepresentation, or other misconduct warranting relief under CR 60(b)(4), we hold that the trial court did not abuse its discretion in denying Wesson's motion to vacate. Additionally, we conclude that the trial court's oral findings were adequate to support its imposition of CR 11 sanctions against Wesson. Finally, we award Michele Castillo reasonable attorney fees on appeal pursuant to RAP 18.9(a) because Wesson's appeal is frivolous.
Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000).
Kevlar Smith Wesson and Michele Castillo had a child together, B.W., in March 2006. The parties separated in November 2006, and Castillo filed a petition to establish paternity in March 2007.
On June 1, 2007, the trial court entered a temporary parenting plan. This plan provided for B.W. to reside with Castillo. The temporary plan provided Wesson two hours of visitation with B.W. every other Saturday at the Northshore YMCA, to be supervised by Castillo at Wesson's expense. The temporary plan also stated, "Should the father desire professionally supervised visitation he shall pay for the same."
The trial court apparently denied a motion to enter an agreed permanent parenting plan on August 10, 2007 after reviewing a Judicial Information System (JIS) background check, though the court's order does not appear in the record. The agreed parenting plan presented on August 10 "track[ed] closely the temporary parenting plan" of June 1.
Castillo moved to revise the August 10 order on August 13. The trial court denied the motion and ordered the guardian at litem (GAL) to "investigate the issues created by the conviction appearing on the JIS for [Wesson]." The court further ordered the GAL to report her findings before the parties resubmitted a final parenting plan for approval.
On October 18, 2007, the trial court entered a CR 2A stipulation and agreement by the parties. The trial court also entered the parenting plan — final order and findings of fact and conclusions of law. Wesson's signature appears on each of these documents.
Wesson moved to vacate the parenting plan pursuant to CR 60 on March 18, 2008. Castillo responded to this motion with a motion for CR 11 sanctions. The GAL also filed a declaration in response to Wesson's motion.
The court heard Wesson's and Castillo's motions on June 2, 2008. The court denied Wesson's motion to vacate and imposed $1,000 in CR 11 sanctions against Wesson. The court added the requirement that Wesson pay the sanctions before bringing any further proceedings in the case.
Wesson appeals.
MOTION TO VACATE
Wesson argues that the trial court abused its discretion in denying his motion to vacate the parenting plan entered October 18, 2007 because he did not agree to the plan knowingly and voluntarily. We disagree.
CR 60(b) provides, "On motion and upon such terms as are just, the court may relieve a party . . . from a final judgment, order, or proceeding" under specified circumstances.
Under CR 60(b)(4), the court may vacate an order on the basis of fraud, misrepresentation, or misconduct of an adverse party. The party challenging a judgment on these grounds must establish fraud, misrepresentation, or other misconduct by clear and convincing evidence.
Peoples State Bank v. Hickey, 55 Wn. App. 367, 372, 777 P.2d 1056 (1989).
Under CR 60(b)(11), the court may vacate an order for "[a]ny other reason justifying relief from the operation of the judgment." The "any other reason" language of CR 60(b)(11) is not a blanket provision authorizing reconsideration for all conceivable reasons. "Relief pursuant to CR 60(b)(11) should be confined to situations involving extraordinary circumstances not covered by any other section of the rule." The reasons permitted by the rule "must relate to `irregularities which are extraneous to the action of the court or go to the question of the regularity of its proceedings.'"
State v. Keller, 32 Wn. App. 135, 141, 647 P.2d 35 (1982).
Id. at 140.
Id. at 141 (citing Marie's Blue Cheese Dressing, Inc. v. Andre's Better Foods, Inc., 68 Wn.2d 756, 758, 415 P.2d 501 (1966)).
A trial court's denial of a motion to vacate under CR 60(b) will not be overturned on appeal unless the court manifestly abused its discretion. A trial court abuses its discretion only when its decision is manifestly unreasonable or based on untenable grounds.
Haley, 142 Wn.2d at 156.
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
Here, Wesson argues only that the trial court should have granted the motion to vacate under CR 60(b)(11). He asserts that he never would have agreed to "such a one-sided order" under which he had no visitation time with his son. He suggests that his lack of education and his mental health affected his ability to enter into the agreement knowingly and intelligently. But the only support for these assertions appears in his self-serving statements. A GAL report shows that Wesson had been "diagnosed as [b]i-polar." But nothing in the report indicates that Wesson's mental health compromised his capacity to understand the documents he signed or his ability to seek independent legal advice. Wesson has not shown extraordinary circumstances under which the trial court should have vacated the order.
To the extent Wesson's argument is more properly a motion for relief under CR 60(b)(4), the trial court stated that it was "not persuaded Mr. Wesson was misled upon signing the parent[ing] plan." Wesson contends that Castillo and her attorney misrepresented the legal effect of the documents, failing to explain that he would no longer have visitation rights with B.W. under the agreed parenting plan.
But Wesson's allegations of misconduct rest almost exclusively on his conclusory declarations, which the trial court found not credible. We do not review credibility determinations on appeal. Wesson signed the parenting plan documents indicating that he was joining in the motions. He acknowledged that he read the documents. A declaration from the GAL indicates that Wesson knew he was agreeing to a parenting plan under which he was given no visitation rights. These circumstances, together with the absence of any evidence corroborating Wesson's claims of fraud or misrepresentation, support the trial court's determination that Wesson was not misled before signing the documents. Because Wesson failed to submit clear and convincing evidence of any misconduct, the trial court did not abuse its discretion in refusing to vacate the final parenting plan under CR 60(b)(4).
See In re Marriage of Rideout, 150 Wn.2d 337, 350, 77 P.3d 1174 (2003).
Clerk's Papers at 49 ("I called Kevlar to ask about the Final Parenting Plan without visitation, because I was under the understanding that there would be professionally supervised visits. Kevlar said that professional visitation was too expensive, and he would rather not see [B.W.] if the visits were professionally supervised. . . . I suggested that he might want to talk with an attorney before signing this. Kevlar said he couldn't afford an attorney and this was the plan he wanted.").
See Peoples State Bank, 55 Wn. App. at 372 (party challenging a judgment under CR 60(b)(4) must establish fraud, misrepresentation, or misconduct by clear and convincing evidence).
CR 11 SANCTIONS
Wesson argues that the trial court erred in failing to make the appropriate findings to support its imposition of CR 11 sanctions against him. We agree, but do not reverse the sanctions because the record contains an adequate basis upon which to affirm the order.
CR 11 requires parties who are not represented by attorneys to sign and date every pleading, motion, and legal memorandum filed with the court, certifying the pleading, motion, or memoranda "is well grounded in fact[,] . . . is warranted by existing law or a good faith argument[,] . . . [and] is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation." If a party violates CR 11, the court may impose appropriate sanctions ordering that party to pay reasonable expenses incurred by the other party, including reasonable attorney fees. We review an award of sanctions under CR 11 for abuse of discretion.
CR 11; See also Just Dirt, Inc. v. Knight Excavating, Inc., 138 Wn. App. 409, 417, 157 P.3d 431 (2007).
CR 11.
Just Dirt, Inc., 138 Wn. App. at 417 (citing Biggs v. Vail, 124 Wn.2d 193, 197, 876 P.2d 448 (1994)).
When a trial court imposes CR 11 sanctions, it must specify the sanctionable conduct in its order. "`The court must make a finding that either the claim is not grounded in fact or law and the attorney or party failed to make a reasonable inquiry into the law or facts, or the paper was filed for an improper purpose." If an appellate court "cannot ascertain what reasons prompted a trial court's ruling, it is impossible to determine whether the ruling is based on tenable grounds or is manifestly unreasonable."
Id. at 417-18 (citing Biggs, 124 Wn.2d at 201).
Id. at 418 (citing Biggs, 124 Wn.2d at 201).
Dexter v. Spokane County Health Dist., 76 Wn. App. 372, 377, 884 P.2d 1353 (1994) (Reversed award of CR 11 sanctions because the order did not show the trial court's reasons for imposing them and neither party produced a transcript of proceedings for the appellate record.).
Here, Wesson argues that the trial court made no explicit findings in sanctioning him on June 2, 2008. It is true that the written order does not specify the sanctionable conduct beyond noting that the court was "not persuaded that Mr. Wesson was misled upon signing the parent[ing] plan."
But the report of proceedings from the motion hearing shows that the trial court made the necessary findings in entering sanctions. After hearing the parties' arguments, the court stated:
I do think that sanctions are appropriate, because I do not think there was a good faith basis for this motion, because Mr. Wesson is claiming he had no idea what he signed, even though he read it, even though it was explained to him by the commissioner. As best I can tell, I think what he's suggesting is that he had some side deal with [Castillo] to do something other than what was being ordered by the Court, at best. I think it was explained to him that what he was actually signing didn't give him any time with the child under the circumstances of that parenting plan. I'm going to award $1,000 in sanctions."
Report of Proceedings (June 2, 2008) at 15.
These oral findings are adequate to support the trial court's imposition of sanctions.
ATTORNEY FEES
Castillo seeks attorney fees and costs on appeal pursuant to RAP 18.9, arguing that Wesson's appeal is frivolous. Under RAP 18.9(a), an appellate court may impose sanctions for a frivolous appeal. An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there is no reasonable possibility of reversal. Here, given Wesson's failure to submit any supporting evidence of his claims of misrepresentation, there was no reasonable basis to challenge the trial court's order denying his motion to vacate. And the record is clear that the trial court made the requisite findings to support its imposition of CR 11 sanctions.
State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 905, 969 P.2d 64 (1998).
We affirm the trial court's order. Castillo's request for attorney fees on appeal is granted, subject to compliance with RAP 18.1(d).
WE CONCUR.