Opinion
No. 61134-8-I.
November 17, 2008.
Appeal from a judgment of the Superior Court for King County, No. 03-3-10569-8, James A. Doerty, J., entered December 14, 2007.
Affirmed by unpublished per curiam opinion.
The trial court has broad discretion to grant relief under CR 60(b). In this case, the record supports the trial court's determination that Valoree Dowell did not establish fraud, misrepresentation, or misconduct by clear and convincing evidence or demonstrate any other extraordinary circumstances warranting relief. Nor did Valoree file her motion to vacate within a reasonable time. We therefore affirm the trial court's refusal to vacate separation and dissolution decrees under CR 60(b)(4) and 60(b)(11).
FACTS
Appellant Valoree Dowell and Respondent Stephen Dowell were married in 1972. For most of the marriage, Valoree worked full-time, while Stephen stayed at home to care for the couple's two sons. In 1985, Valoree began working for Immunex Corporation, where she eventually became Vice-President of Corporate Communications. Her yearly earnings at Immunex increased steadily, reaching $1,210,000 in 2001.
For purposes of clarity, we refer to the parties by their first names.
After Amgen acquired Immunex in July 2002, Valoree retired and exercised stock options that resulted in net proceeds of about $8,000,000. At least some of these funds were transferred into a Charles Schwab account that was in Stephen's name.
On October 13, 2003, Stephen returned home from a trip to Ireland. According to Valoree, his criticism of a chocolate cake that Valoree baked escalated into repeated allegations that she had been unfaithful throughout the marriage. "Blindsided" by the attack, Valoree felt "confused, frightened, and exhausted."
The following morning, Valoree claims, Stephen purported to visit an attorney and then presented Valoree with a "stack of papers," insisting that she sign them immediately. Valoree signed the documents, reassured by Stephen's explanation that they involved only a separation and that the parties could still try to work things out. Valoree maintains that Stephen did not discuss the proceeds of the stock sale or explain that the documents effected a final division of property. After Valoree signed the documents, Stephen took them away and delivered them to his attorney's office. Valoree also signed a quitclaim deed transferring the residence to Stephen.
On October 15, 2003, a joint petition for legal separation was filed in superior court. The petition requested that the parties be awarded their personal effects, investment accounts in their sole names, and any benefits derived from their employment. The petition further asked that Stephen be awarded the family home and two vehicles. Findings of fact, conclusions of law, and a decree of legal separation awarding property in accordance with the petition were entered on the same date.
The parties dispute the precise nature of their relationship after the separation decree was filed. Valoree and Stephen apparently lived together at times, made some trips together, and attended family events. In early 2004, Stephen purchased a house in Salt Lake City. At some point, Valoree moved to Salt Lake City to supervise the renovation. She now lives in the house, apparently rent-free.
Valoree claims that after the separation documents were filed, the couple resumed their normal life, although Stephen would interrogate her for hours each evening about her relationships with other men. On December 19, 2003, in the guise of a Christmas shopping trip, Stephen drove Valoree to a secluded area of a Bellevue park and begged her to sign "undated papers" that would finalize the dissolution. Once again feeling "blindsided" and "distraught," Valoree signed the papers in a "daze," believing Stephen's explanation that it was the only way to "save our marriage."
On April 16, 2004, the trial court entered a joint motion and agreed order converting the decree of legal separation to a decree of dissolution. Valoree signed the motion and order using her maiden name and indicated that she was waiving notice of presentation. Valoree alleges that she did not know the dissolution was final until April 2005, when Stephen gave her copies of the decree.
On November 13, 2007, Valoree moved to vacate the separation and dissolution decrees under CR 60(b)(4) and 60(b)(11). She alleged that Stephen had misrepresented the separation and dissolution documents and then coerced her into signing them. Valoree also alleged that she acted under duress, resulting from severe depression.
Stephen denied coercing Valoree into signing any of the documents or preventing her from seeking advice from counsel. He maintained that she was an "intelligent, independent, sophisticated businesswoman" who was fully aware of the couple's financial assets, understood the documents that she signed, and knew how to contact an attorney if she so desired. Stephen further claimed that the parties had mutually agreed to convert the separation into a dissolution and that he had mailed the conversion documents to Valoree in April 2004. According to Stephen, Valoree also understood that he was entitled to a greater share of the community assets, because of the disparity in the parties' earning capacities and retirement benefits.
On December 13, 2007, the trial court denied Valoree's motion to vacate. The court rejected her claim of duress as not credible, noting the absence of any corroborating evidence in the record supporting her characterization of Stephen as a paranoid bully:
It defies imagination that an individual with this kind of ability and achievement, a real professional powerhouse, somebody who, if nothing else, is very, very smart about business with lawyers and money. . . . I think the record supports that she was active in the financial planning.
But even so, for all of those individual's capabilities and talents to suddenly collapse in the face of an argument essentially triggered by his refusal to eat the chocolate cake is really, really beyond anything that even I can . . .
There's not a single bit of evidence by any collateral references that he is capable of, let alone has a history of, bullying her to the degree where all of a sudden over this one incident she is going to turn into an entirely different person, signs whatever he tells her, not talk to an attorney, not think about it. It's just unfortunately for the moving party not a believable scenario.
The court also concluded that Valoree had not filed the motion to vacate within a reasonable time.
DECISION
I. Standard of Review
A motion to vacate under CR 60(b) is necessarily directed to the trial court's broad discretionary judgment. See Lindgren v. Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990). We therefore review the trial court's decision for an abuse of discretion. In re Guardianship of Adamec, 100 Wn.2d 166, 178, 667 P.2d 1085 (1983).
Valoree invites this court to review the trial court's decision de novo, because the record is solely documentary. But the trial court's decision rested primarily on the credibility of Valoree's supporting declarations. Our Supreme Court has expressly rejected the propriety of de novo review "where competing documentary evidence had to be weighed and conflicts resolved." In re Marriage of Rideout, 150 Wn.2d 337, 351, 77 P.3d 1174 (2003); see also In re Parentage of Jannot, 149 Wn.2d 123, 126, 65 P.3d 664 (2003) (rejecting application of de novo review standard to denial of parenting plan modification based solely on affidavits). Valoree has not cited any relevant authority to the contrary.
Valoree argues that Rideout is distinguishable, because it involved contempt proceedings. But the court's analysis in Rideout rests on the significance of a credibility assessment to the trial court's decision, not on the specific type of proceeding. Although the trial court may, in some circumstances, conduct an evidentiary hearing to resolve credibility issues, Valoree did not request such a hearing and has not raised the issue on appeal. See Rideout, 150 Wn.2d at 352.
II. CR 60(b)(4)
Under CR 60(b)(4), the trial court may vacate a judgment procured by fraud, misrepresentation, or misconduct. 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).
Valoree contends that Stephen's misconduct warranted vacation of the separation and dissolution decrees. Among other things, she alleges that he violated his fiduciary duty by affirmatively misrepresenting the legal effect of the various documents, failing to explain the property distribution, coercing her into signing documents, depriving her of any opportunity to consult with independent counsel, and withholding notice of the conversion of the separation decree into a dissolution decree.
But Valoree's allegations of misconduct rest almost exclusively on her conclusory declarations, which the trial court found not credible. We do not review credibility determinations on appeal. See Rideout, 150 Wn.2d at 350. Valoree signed the separation and dissolution documents indicating that she was joining in the motions. She acknowledged that she was an experienced businesswoman employed in a high-level position with a major corporation, undermining her claim that she did not understand the nature of the documents. The record also indicates that Valoree was well aware of the extent and nature of the marital assets and participated in the parties' financial planning. See In re Marriage of Burkey, 36 Wn. App. 487, 490, 675 P.2d 619 (1984) (full disclosure required by fiduciary relationship assumes one party has information that the other needs to protect interests). Even Valoree's own declarations provide no meaningful support for her claim that Stephen prevented her from seeking independent legal advice, either before or after signing any of the documents.
The foregoing circumstances, coupled with the absence of any evidence corroborating Valoree's characterization of Stephen, support the trial court's determination that Valoree had the capacity to understand the documents that she signed and had an opportunity to consult with counsel. Because Valoree failed to submit clear and convincing evidence of Stephen's misconduct, the trial court did not abuse its discretion in refusing to vacate the separation and dissolution decrees under CR 60(b)(4).
III. CR 60(b)(11)
Valoree also contends that the trial court should have granted the motion to vacate under CR 60(b)(11), which permits relief for "[a]ny other reason justifying relief from the operation of the judgment." CR 60(b)(11) is confined to situations involving extraordinary circumstances not covered by any other section of CR 60(b). In re Marriage of Flannagan, 42 Wn. App. 214, 221, 709 P.2d 1247 (1985). "Such circumstances must relate to irregularities extraneous to the action of the court or questions concerning the regularity of the court's proceedings." In re Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985).
Valoree asserts that the unfairness of the property distribution warrants relief under CR 60(b)(11). But she does not identify any evidence in the record that establishes the amount and nature of the parties' property or that supports her claim that she received only one percent of the marital estate. This court is not obligated to search the record for evidence supporting a party's claim of error. See Heilman v. Wentworth, 18 Wn. App. 751, 754, 571 P.2d 963 (1977). Moreover, the alleged unfairness of the property distribution is a legal issue that must be raised on appeal, not in a motion to vacate. In re Marriage of Moody, 137 Wn.2d 979, 991, 976 P.2d 1240 (1999).
Valoree also suggests that her depression, caused by Stephen's conduct, rendered her incompetent at the time she signed the documents. But Valoree's self-serving declarations provide the only support for this assertion. Valoree's treating physician states that she was experiencing symptoms of depression in late 2005. Nothing in the physician's declaration indicates that Valoree's depression compromised her capacity to understand the documents that she signed or her ability to seek independent legal advice.
Neither the alleged unfairness of the property distribution nor Valoree's alleged emotional instability constituted extraordinary circumstances justifying relief. See Marriage of Yearout, 41 Wn. App. at 902. The trial court did not abuse its discretion in refusing to vacate the decrees under CR 60(b)(11).
IV. Timeliness
The record also supports the trial court's determination that Valoree's motion to vacate was not "made within a reasonable time" as required by CR 60(b). In making this determination, the court looks primarily to the period between when the moving party became aware of the challenged judgment and the filing of the motion. Luckett v. Boeing Co., 98 Wn. App. 307, 312, 989 P.2d 1144 (1999).
Valoree filed her motion to vacate on November 13, 2007, more than four years after the separation decree, and more than three years after the dissolution decree. Valoree claims that she did not know about the dissolution until April 2005. But even then, she waited more than two and one-half years before filing the motion to vacate. Because Valoree fails to identify any compelling reason justifying such a lengthy delay, the trial court did not err in determining that the motion to vacate was untimely.
Valoree's request for attorney fees on appeal is denied.
Affirmed.