Opinion
No. 35236-2-II.
February 5, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 04-3-00255-0, Christine Schaller, J. Pro Tem., entered July 18, 2006.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Armstrong and Quinn-Brintnall, JJ.
One year after Robin and James Holbrook's marriage was dissolved, Robin moved to vacate the decree under CR 60(b) because she was unrepresented by counsel and under duress when she signed the decree, was the victim of domestic violence, and did not receive a share of James's military retirement. The trial court denied her motion and she now appeals, arguing (1) that the trial court abused its discretion by denying her motion to vacate and failing to award her attorney fees, (2) she received ineffective assistance of counsel, and (3) numerous other issues that are not properly before us on appeal. We affirm.
We refer to the parties by their first names to avoid confusion. We mean no disrespect.
FACTS
James asks us to strike most of the allegations contained in Robin's fact section of her appellant brief because these facts were not part of the trial court record. We conducted an independent review of the trial court record and relied only on those facts contained in that record. "[C]ases on appeal are decided only from the record, and '[i]f the evidence is not in the record it will not be considered.'" Grobe v. Valley Garbage Service, Inc., 87 Wn.2d 217, 228-29, 551 P.2d 748 (1976) (quoting State v. Wilson, 75 Wn.2d 329, 332, 450 P.2d 971 (1969)).
After approximately 13 years of marriage, Robin and James separated on November 23, 2003, and James petitioned to dissolve the marriage on March 9, 2004. The trial court signed the final dissolution decree on October 26, 2004, based on an agreement between Robin and James. The decree awarded Robin $5,000 cash, four years' spousal maintenance, the vehicles in her possession, and the bank accounts, retirement, social security and pension benefits in her name. The decree awarded James the vehicles in his possession, and the bank accounts, retirement, including military retirement, social security and pension benefits in his name. The decree stated that James and Robin would reach an agreement about the division of the household furniture and furnishings and that James would ship Robin's household items to her. The decree also ordered James to pay all of the community's credit card debt, totaling more than $21,000.
James was represented by counsel, but Robin was not.
On October 26, 2005, Robin moved to vacate the divorce decree under CR 60(b)(1), (3), (4), and (11) before a superior court commissioner. She based her motion on her claims that she (1) was not represented by counsel when she signed the divorce decree, (2) was the victim of domestic violence and under duress when she signed the final documents, and (3) did not receive a share of James's military retirement. In response to Robin's motion, James declared that Robin was not a domestic violence victim, under duress, or entitled to vacate their decree. His trial counsel, Clinton Morgan, also declared that he spoke with Robin many times and she did not raise the issue of domestic abuse, and neither he nor James pressured Robin during negotiations.
Legal counsel represented Robin on her motion to vacate.
James declared that, in 1992, while they were both intoxicated, they experienced their only incident of mutual domestic violence during their marriage. Robin did not refute his statement.
James also declared that he did not threaten Robin during the dissolution proceedings and he had not lived with her since November 2003, because either he was residing in Washington, while she was residing in California, or he was deployed to Iraq.
The commissioner denied Robin's motion to vacate. Robin did not move to revise that order and, thus, it became a final order of the superior court. RCW 2.24.050. Robin now appeals the trial court's denial of her motion.
RCW 2.24.050 provides:
All of the acts and proceedings of court commissioners hereunder shall be subject to revision by the superior court. . . . [U]nless a demand for revision is made within ten days from the entry of the order or judgment of the court commissioner, the orders and judgments shall be and become the orders and judgments of the superior court, and appellate review thereof may be sought in the same fashion as review of like orders and judgments entered by the judge.
Robin is not represented by counsel on appeal.
ANALYSIS
Robin argues that the trial court failed to consider her motion to vacate because she filed it one day late. Under CR 60(b) a motion filed under paragraphs (1) — (3) must be filed "not more than 1 year after the judgment . . . was entered." "In computing any period of time prescribed or allowed by these rules . . ., the day of the act . . . from which the designated period of time begins to run shall not be included." CR 6(a). Here, the dissolution decree was filed on Tuesday, October 26, 2004, and Robin moved to vacate the decree on Wednesday, October 26, 2005. Because we do not include the day the decree was filed in the limitations period, Robin timely moved to vacate it. The trial court considered Robin's arguments and denied Robin's motion to vacate on its merits under CR 60(1) and (3), even though it believed her motion was filed untimely. Thus, this argument on appeal fails.
Robin contends that the trial court abused its discretion in denying her motion to vacate the divorce decree based on her allegations and because it was required to conduct an evidentiary hearing to resolve the factual issues presented in their conflicting affidavits, citing In re Marriage of Maddix, 41 Wn. App. 248, 703 P.2d 1062 (1985).
CR 60(b) provides that "the court may relieve a party . . . from a final judgment, order, or proceeding" only for specific reasons. Robin moved to vacate the dissolution decree under CR 60(b)(1), (3), (4), and (11). These provisions provide for relief if the moving party can show:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;. . . .
(3) Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b);
(4) Fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party;. . . .
(11) Any other reason justifying relief from the operation of the judgment.
CR 60(b)(1), (3), (4), and (11). "CR 60(b)(11) applies sparingly to situations 'involving extraordinary circumstances not covered by any other section of the rules.'" In re Marriage of Knutson, 114 Wn. App. 866, 872, 60 P.3d 681 (2003) (internal quotation marks omitted) (quoting In re Marriage of Irwin, 64 Wn. App. 38, 63, 822 P.2d 797 (1992). "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)).
We will reverse the trial court's denial of a motion to vacate under CR 60(b) if "the court manifestly abused its discretion." Haley v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). "An abuse of discretion is present only if there is a clear showing that the exercise of discretion was manifestly unreasonable, based on untenable grounds, or based on untenable reasons." Moreman v. Butcher, 126 Wn.2d 36, 40, 891 P.2d 725 (1995). "[A] court should be extremely reluctant to vacate a decree of divorce. This is especially true when the parties have subsequently remarried in reliance upon a divorce which they both desired." Allen v. Allen, 12 Wn. App. 795, 798, 532 P.2d 623 (1975) (citation omitted).
James has subsequently remarried.
Although, generally, when a record consists solely of affidavits and other documentary evidence, we stand in the same position as the trial court and review the record de novo, our Supreme Court has held that, in the area of domestic relations, we give deference to the trial court's review of the affidavits. See In re the Marriage of Rideout, 150 Wn.2d 337, 350 — 352, 77 P.3d 1174 (2003); In re the Parentage of Jannot, 149 Wn.2d 123, 126-28, 65 P.3d 664 (2003). "[W]e recognize that a trial judge generally evaluates fact based domestic relations issues more frequently than an appellate judge and a trial judge's day-to-day experience warrants deference on review." Jannot, 149 Wn.2d at 127; see also Rideout, 150 Wn.2d at 351. And "a trial judge is in the best position to assign the proper weight to each of the varied factors raised by the submitted affidavits in a particular case." Jannot, 149 Wn.2d at 127 (emphasis omitted).
"Most importantly, in the area of domestic relations, the appellate courts have granted deference to the trial court because '[t]he emotional and financial interests affected by such decisions are best served by finality,' and de novo review may encourage appeals." Jannot, 149 Wn.2d at 127 (quoting In re Marriage of Landry, 103 Wn.2d 807, 809, 699 P.2d 214 (1985)). Thus, in a domestic relations case, we review the trial court's ruling under an abuse of discretion standard, even though it is based on affidavits alone, see Jannot, 149 Wn.2d at 128, and when the trial court makes findings of fact based on affidavits alone, we will determine whether substantial evidence supports those findings and whether the findings support the conclusions of law. Rideout, 150 Wn.2d at 351.
Here, the trial court did not, nor was it required to, make formal findings of fact and conclusions of law when ruling on Robin's CR 60 motion. In re Marriage of Hammack, 114 Wn. App. 805, 811-812, 60 P.3d 663 (2003) (Even though CR 52(a)(2)(B) requires the trial court to make specific findings and conclusions in all final divorce proceeding decisions, CR 60(b) does not have a similar requirement.).
First, James's absence from Robin's state of residence is compelling evidence that he was not in a position to place her under duress during negotiations and the signing of the decree. She provided the trial court with no specific evidence of domestic violence incidents, other than the one unspecified, earlier event described in her declaration, or of any other evidence affecting her ability to negotiate terms of the property division. She also failed to demonstrate that the property division is so patently unfair that it could only be the result of duress or the loss of her free will. See Retail Clerks Health Welfare Trust Funds v. Shopland Supermarket, Inc., 96 Wn.2d 939, 944-45, 640 P.2d 1051 (1982).
Furthermore, she did not provide the trial court with evidence demonstrating that once James paid her $5000.00 cash, paid to ship her personal goods to California, and assumed the entire community credit card debt of $21,000, that awarding his military pension soley to him constituted an unfair result. The record does not contain evidence of their relative ages, his years in service, or the value of his pension rights at the time of dissolution. Thus, her motion did not warrant relief and the trial court did not abuse its discretion in denying it. See Haley, 142 Wn.2d at 156.
Moreover, the trial court did not abuse its discretion by not conducting an evidentiary hearing to resolve James and Robin's conflicting assertions. In Maddix, the trial court was asked to vacate a dissolution decree based on the husband's fraud in valuing his business. 41 Wn. App. at 249-50. The husband contended that the trial court erroneously vacated the decree when it "failed to find nine elements of fraud with clear, cogent and convincing evidence." The trial court's "findings and conclusions [did] not make specific reference to fraud, but only state[d that the husband] failed to disclose the value of his business and vacate[d] the decree for the sole purpose of establishing that value." Maddix, 41 Wn. App. at 252. Division Three held that the husband disputed the facts alleged by the wife; no testimony was taken to resolve those facts; and the trial court "erred in vacating the judgment without first hearing and weighing testimony regarding fraud, misrepresentation or other misconduct." Maddix, 41 Wn. App. at 252.
But recent case law has distinguished Maddix and held that a CR 60 motion does not require live testimony. Roberson v. Perez, 123 Wn. App. 320, 331, 96 P.3d 420 (2004), review denied, 155 Wn.2d 1002 (2005); see Stoulil v. Edwin A. Epstein, Jr., Operating Co., 101 Wn. App. 294, 298, 3 P.3d 764 (2000); Irwin, 64 Wn. App. at 61-62.
Furthermore, CR 60(e) establishes the procedure for a motion to vacate. To initiate the motion, the moving party must state "the grounds upon which relief is asked, and support [the motion with an] affidavit of the applicant or his attorney setting forth a concise statement of the facts or errors upon which the motion is based." CR 60(e)(1). The trial court then provides notice of the hearing on the motion by entering "an order fixing the time and place of the hearing thereof and directing all parties to the action or proceeding who may be affected thereby to appear and show cause why the relief asked for should not be granted." CR 60(e)(2).
Here, the trial court accepted Robin's affidavit and her counsel argued at the scheduled hearing, which Robin chose not attend. Neither she nor her attorney requested an evidentiary hearing and they did not move for reconsideration to allow live testimony. Although the parties disagreed about whether the decree resulted from duress or fear, we are not persuaded that the decision to not vacate the decree was manifestly unreasonable, based on untenable grounds, or based on untenable reasons. See Moreman, 126 Wn.2d at 40.
Thus, the trial court did not abuse its discretion in failing to schedule an evidentiary hearing or in refusing to vacate the dissolution decree.
II. Ineffective Assistance of Counsel
Robin argues that her counsel was ineffective in representing her on her motion to vacate because he took too long to file and serve the three-page motion; he told the trial court that he wished he could have briefed issues more; he presented no proof that he had successfully represented clients with divorce and military benefit issues; he attempted to contact James on Robin's mobile phone; and he needlessly spent time and money on her motion.
Robin relies on Strickland in making this claim. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Thomas, 109 Wn.2d 222, 225-26, 743 P.2d 816 (1987). But Strickland generally applies in situations where a person has a statutory or constitutional right to effective assistance of counsel. See In re Detention of T.A.H.-L., 123 Wn. App. 172, 178-79, 97 P.3d 767 (2004).
"In civil cases, the constitutional right to legal representation is presumed to be limited to those cases in which the litigant's physical liberty is threatened, or where a fundamental liberty interest, similar to the parent-child relationship, is at risk." In re Dependency of Grove, 127 Wn.2d 221, 237, 897 P.2d 1252 (1995) (citations and footnote omitted); see also Nicholson v. Rushen, 767 F.2d 1426, 1427 (9th Cir. 1985); Tetro v. Tetro, 86 Wn.2d 252, 253-54, 544 P.2d 17 (1975). Here, Robin's stated interest is in the dissolution property division. This financial interest "is not considered 'fundamental' in a constitutional sense," and, thus, there is no constitutional right to counsel and Strickland does not apply. Grove, 127 Wn.2d at 238 (quoting United States v. Kras, 409 U.S. 434, 445, 93 S. Ct. 631, 34 L. Ed. 2d 626 (1973)).
Furthermore, our Supreme Court recently held that the Washington State Constitution's guarantee of open administration of justice under article I, section 10, did not guarantee publicly funded counsel in dissolution proceedings. In re Marriage of King, No. 79978-4, slip op. at 16 (Wash. Dec. 6, 2007). Thus, Robin does not have a constitutional right to effective assistance of counsel and we will not review her claim on appeal.
Article 1, section 10, of the Washington State Constitution provides that "[j]ustice in all cases shall be administered openly, and without unnecessary delay."
III. Non-Appealable Issues
Robin asks us to consider many issues that are not appropriate for appeal. Generally, a party may not raise an issue for the first time on appeal. RAP 2.5(a). "However, a party may raise the following claimed errors for the first time in the appellate court: (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief can be granted, and (3) manifest error affecting a constitutional right." RAP 2.5(a). Here, none of the issues Robin raises for the first time on appeal fall into one of the above three categories, and we, therefore, do not consider them.
IV. Attorney Fees
Robin also asks us to "refund [her] attorney fees," under RCW 26.09.140 because James had the ability to pay the fees and she did not. Br. of Appellant at 29. Robin requested that the trial court award her attorney fees on her motion to vacate. Because a CR 60(b) motion is a continuation of the original dissolution proceeding, the trial court may award fees under RCW 26.09.140. See In re Marriage of Moody, 137 Wn.2d 979, 994, 976 P.2d 1240 (1999); In re Marriage of Parks, 48 Wn. App. 166, 171-72, 737 P.2d 1316 (1987).
RCW 26.09.140 provides:
The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this chapter and for reasonable attorney's fees or other professional fees in connection therewith, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or enforcement or modification proceedings after entry of judgment.
"The decision to award fees under RCW 26.09.140 is discretionary and must be based upon a consideration that balances the needs of the spouse seeking fees against the ability of the other spouse to pay." Moody, 137 Wn.2d at 994. We review the trial court's award of attorney fees for an abuse of discretion and "[t]he party challenging the award must show that the court used its discretion in an untenable or manifestly unreasonable manner." In re Marriage of Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999).
Here, although Robin requested attorney fees when she moved to vacate the dissolution property division, her attorney did not argue that the trial court should award them. James requested attorney fees under CR 60 or CR 11 for responding to Robin's motion. The trial court denied attorney fees under CR 11 because it found the motion was not frivolous. And under CR 60, the trial court stated that it did not "know of the cases that [James's counsel is] referring to as it related to fees and I suppose that motion could be brought at the time of presentation of an order in this matter but I wouldn't rule on that today. Theirs [sic] is insufficient information before me as to whether or not fees are appropriate." Report of Proceedings (RP) at 5-6.
Under CR 11(b), when a party signs the a pleading, he or she certifies that:
(1) it is well grounded in fact, (2) it is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, (3) it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation, and (4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.
The order to show cause reserved the issue of attorney fees, but our record contains no documentation that either party asked the trial court to later rule on the issue. Moreover, the record indicates that the parties did not file affidavits demonstrating their ability to pay attorney fees. Without such records, the trial court could not consider Robin's request. Therefore, the trial court did not abuse its discretion in failing to award Robin attorney fees.
James asks us to award him attorney fees, costs and/or sanctions on appeal based on RAP 18.9 because Robin's appeal is frivolous and violated RAP 10.3(a)(5) (unfair statement of the case), 10.4(c) (improper citation), and 10.4(f) (lack of reference to the record). "An appeal is frivolous if the appellate court is convinced that the appeal presents no debatable issues upon which reasonable minds could differ and is so lacking in merit that there is no possibility of reversal." In re Marriage of Foley, 84 Wn. App. 839, 847, 930 P.2d 929 (1997). Robin's argument on her motion to vacate was not so lacking in merit that there was no possibility of reversal and her violations of the rules were not so egregious to warrant sanctions. Thus, we will not sanction her.
RAP 18.9(a) provides:
The appellate court . . . may order a party . . . who uses these rules for the purpose of delay, files a frivolous appeal, or fails to comply with these rules to pay terms or compensatory damages to any other party who has been harmed by the delay or the failure to comply or to pay sanctions to the court.
We affirm the trial court's denial of Robin's motion to vacate her dissolution decree and her other requests for relief. We deny both parties' requests for fees and costs on appeal.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
Armstrong, J. Quinn-Brintnall, J., concur.