Opinion
No. 52831-9-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Skagit County. Docket No: 97-3-00229-6. Judgment or order under review. Date filed: 07/08/2003. Judge signing: Hon. George N Bowden.
Counsel for Appellant(s), Dennis Michelson (Appearing Pro Se), 6322-146th Street SW, Edmonds, WA 98026.
Counsel for Respondent(s), Philip James Buri, Buri Funston PLLC, 1601 F Street, Bellingham, WA 98225-3011.
Kenneth J. Evans, Lewis, Evans Pollono, 506 Main St, Mount Vernon, WA 98273-3840.
Dennis Michelson appeals from the trial court's order granting summary judgment terminating his obligation for post-secondary support of his son, the court's denial of his motion to vacate his support obligation for his daughter, and the court's denial of his motion to unseal his dissolution file. Michelson's arguments are largely directed not at the orders he appeals, but rather previous orders of the trial court which he did not appeal. We affirm and award attorney fees to the respondent pursuant to RAP 18.9.
FACTS
Dennis and Elizabeth Michelson were married in 1972. Their daughter Stacey was born November 26, 1979, and their son Kenneth was born February 28, 1983. The decree of dissolution of Dennis and Elizabeth's marriage was entered on May 4, 1998. At the same time the court entered an order of support for the two children. The child support order required Dennis and Elizabeth to each pay 1/3 of their 18 year old daughter Stacey's college tuition at the University of Washington, beginning in the fall of 1998. Responsibility for 15 year old Kenneth's college expenses was reserved for future determination.
For the sake of clarity, the parties and their children are referred to by their first names.
Neither party appealed the child support order.
In 2001, when Kenneth was a senior in high school, Elizabeth filed a petition to modify the child support order to address the parties' responsibility for Kenneth's college expenses. Dennis filed a cross-petition seeking to discontinue support for Stacey on the grounds that she was no longer dependent pursuant to RCW 26.19.090(2). Specifically, Dennis alleged that Stacey had begun living with her boyfriend in the fall of 1999, and was engaged to be married in March 2001.
RCW 26.19.090(2) provides:
When considering whether to order support for postsecondary educational expenses, the court shall determine whether the child is in fact dependent and is relying upon the parents for the reasonable necessities of life. The court shall exercise its discretion when determining whether and for how long to award postsecondary educational support based upon consideration of factors that include but are not limited to the following: Age of the child; the child's needs; the expectations of the parties for their children when the parents were together; the child's prospects, desires, aptitudes, abilities or disabilities; the nature of the postsecondary education sought; and the parents' level of education, standard of living, and current and future resources. Also to be considered are the amount and type of support that the child would have been afforded if the parents had stayed together.
On December 7, 2001, the court entered an order modifying the parties' support obligations. The court ordered Elizabeth and Dennis to each pay 1/3 of Kenneth's college expenses. The court also modified the order as to Stacey's college expenses, ordering that Elizabeth and Dennis were to each pay 1/2 of Stacey's tuition, books, and necessary fees to complete her undergraduate degree, with Stacey being responsible for her own living expenses. The court awarded Elizabeth $1500 in attorney fees. Neither party appealed from this order.
On April 21, 2003, Dennis filed a petition for modification of child support as to Kenneth. Dennis argued that there had been a substantial change in circumstances because Kenneth had obtained a scholarship and was employed. The petition also claimed Elizabeth breached the court's 2001 child support order that awarded the 2001 dependent child tax credit to Dennis. Apparently, Dennis was unable to claim Kenneth as a dependent in 2001 because Kenneth claimed himself on his own tax return. Dennis alleged that Elizabeth had some role in this.
In response, Elizabeth filed a motion for summary judgment, and asked the court to terminate Dennis's support obligations as to Kenneth. Elizabeth's motion was an effort to put an end to the litigation. According to her declaration, Dennis did not pay for any of Kenneth's tuition, fees, or books in 2002. The court granted Elizabeth's motion for summary judgment. Kenneth appeals this order.
Thereafter, Dennis filed a motion for leave to amend his petition for modification of child support. He contended that the trial court's order on summary judgment did not address all the issues that he wanted to raise, or the issue of the tax credit for Kenneth in 2001. The trial court denied Dennis's motion to amend his petition.
As to Kenneth, Dennis has appealed the order granting summary judgment, but has not filed a notice of appeal from the denial of his motion seeking leave to amend his petition for modification of child support. As to Stacey, Dennis filed a motion to vacate the court's December 2001 order of child support, alleging that Stacey fraudulently failed to reveal that she had purchased a condominium on November 29, 2001. The trial court denied the motion to vacate the order of support as to Stacey. Dennis appeals the denial of this motion. Dennis also filed a motion to unseal the parties' dissolution file. That motion was likewise denied. This appeal follows.
ANALYSIS
Petition to Modify Child Support as to Kenneth
Dennis argues at length about why he was entitled to the 2001 dependent child tax credit for Kenneth, and how Elizabeth allegedly breached the court's support order. A petition to modify child support obligation under RCW 26.09.170 was not the proper means to seek to raise the issue of the 2001 tax credit. The issue before us is whether the trial court erred in granting Elizabeth's motion for summary judgment. It did not. Dennis filed his petition to modify support for Kenneth under RCW 26.09.170. RCW 26.09.170 provides that the provisions of an order for support may be modified only as to installments accruing subsequent to the petition for modification. In granting the motion for summary judgment, the court terminated Dennis's future support obligation as to Kenneth. Dennis received all the relief to which he was entitled in bringing a petition to modify under RCW 26.09.170. The trial court did not err in granting the motion for summary judgment.
Nor did the court err in denying Dennis's motion for leave to amend his petition for modification of child support. That motion came on before the court for hearing on August 8, 2003. Dennis filed his notice of appeal in this matter on August 6, 2003. The trial court properly found that it no longer had the authority to act on Dennis's motion because Dennis's appeal was already pending. RAP 7.2, RAP 6.1.
Motion To Vacate Award of Support as to Stacey
The bulk of Dennis's arguments as to child support for Stacey are based on facts that were known to the parties and to the trial court prior to the entry of the December 2001 order of child support. Dennis did not appeal from that order. The only issue properly before us is whether the trial court erred in denying Dennis's CR 60(b) motion to vacate the 2001 order of child support. The CR 60(b) motion was based on the fact that Stacey had purchased a condominium in November 2001, just shortly before the December 2001 order of child support was entered. Dennis contends that if Stacey could afford to purchase a condominium, she was not dependent, and he should not have been required to contribute to her college expenses.
Dennis brought his motion to vacate pursuant to CR 60(b)(3), (4), and (11). The standard of review for a decision granting or denying a motion to vacate under CR 60(b) is abuse of discretion. A court abuses its discretion when its decision is based on untenable grounds or reasoning. As the trial court properly found, CR 60(b)(3), relating to newly discovered evidence, was inapplicable because the motion to vacate was brought more than one year after entry of the order.
Lindgren v. Lindgren, 58 Wn. App. 588, 594-95, 794 P.2d 526 (1990).
In re Marriage of Tang, 57 Wn. App. 648, 653, 789 P.2d 118 (1990).
The trial court went on to note in its memorandum decision:
Civil Rule 60(b)(4) deals with fraud, misrepresentation or other misconduct of any adverse party. This argument fails, despite [Dennis's] unsupported arguments to the contrary, because Respondent has shown no evidence of any wrong doing by [Elizabeth]. In fact, if Stacey was not dependent, [Elizabeth] is equally defrauded since she was also required to pay one half of the education costs. Since Stacey Michelson is not a party to this action Civil rule 60(b)(4) does not apply to her conduct. As a side note, it should be pointed out that [Dennis's] request for discovery is not likely to aid his argument under this rule. If it were revealed that [Elizabeth] assisted in the purchase of the condominium it would only bolster Stacey's position of dependency. If Stacey made the purchase by herself, [Elizabeth] cannot be accused of fraud or misconduct.
[Dennis's] remaining argument is under CR 60(b)(11) which cites any other reason justifying relief from the operation of the judgment. This might be persuasive if no other options existed for [Dennis].
Stacey Michelson is not a party to this action. It is certainly possible that her determined status as legally dependent in November 2001 was inaccurate. It is equally possible that she still relied upon parental support to complete college despite her ability to provide housing independently. The condominium may have been a gift, which also would not affect her dependency. It is not beyond the realm of possibility that a student whose parents are very wealthy ([Dennis's] net worth was $900,000, and [Elizabeth] stipulated to a $2,000,000 net worth) would have comfortable housing while being assisted with tuition.
CP at 181.
We agree with the trial court's analysis.
Under CR 60(b)(4), a court may grant a party relief from judgment for fraud when the party shows by clear, cogent, and convincing evidence that (1) the opposing party made a knowing and false representation of material fact; (2) the moving party was ignorant of that falsity; (3) the moving party reasonably relied on the representation; and (4) the moving party suffered damage. A party may also show that the opposing party's misrepresentation caused the entry of a judgment such that the losing party was prevented from fully and fairly presenting its case or defense. To prove a misrepresentation there must be 'specific knowledge and intent by the wrongdoer.'
Lindgren v. Lindgren, 58 Wn. App. at 596; North Pac. Plywood, Inc. v. Access Rd. Builders, Inc., 29 Wn. App. 228, 232, 628 P.2d 482 (1981).
Lindgren, 58 Wn. App. at 596.
Sarvis v. Land Res., Inc., 62 Wn. App. 888, 893, 815 P.2d 840 (1991).
As the trial court properly found, Stacey was not a 'party' to the action. CR 60(b)(4), dealing with fraud, misrepresentation, or other misconduct of an adverse party, therefore does not apply to the alleged wrongdoing on the part of Stacey. And the trial court's finding that Dennis had not shown any misconduct on the part of Elizabeth is amply supported by the record. Dennis's motion was based on allegations and conjecture, and he did not meet his burden of demonstrating fraud or misconduct by clear, cogent, and convincing evidence.
Dennis contends that the trial court erred in not permitting him to engage in further discovery in order to prove his allegations of fraud. But he points to no case law, statute, or court rule requiring the trial court to permit post-trial discovery under these circumstances. The trial court did not abuse its discretion in denying Dennis's motion to conduct further discovery.
The court likewise did not abuse its discretion in denying Dennis's motion to vacate under CR 60(b)(11). "The use of CR 60(b) (11) 'should be confined to situations involving extraordinary circumstances not covered by any other section of the rule." No such extraordinary circumstances exist here. The trial court did not abuse its discretion in denying Dennis's motion to vacate the order of child support as to Stacey's post-secondary education.
Gustafson v. Gustafson, 54 Wn. App. 66, 75, 772 P.2d 1031 (1989) (quoting In re Marriage of Flannagan, 42 Wn. App. at 221, 709 P.2d 1247 (1985)).
Dennis alleges that the trial court erred in not entering a formal order denying his motion to vacate. We conclude that the court's memorandum opinion dated July 23, 2003, set forth the trial court's findings and conclusions with sufficient particularity to enable adequate appellate review.
Motion To Unseal Dissolution File
Dennis also appeals from the denial of his motion to unseal the parties' dissolution file. Dennis's arguments are primarily directed at the propriety of the trial court's initial decision to grant the motion to seal the file. Dennis did not appeal from this order and these issues are not properly before us. In any event, GR 15(d)(2) provides that after entry of an order to seal all or part of a court file, the records shall be ordered unsealed only upon a showing of proof of compelling circumstances. Dennis has presented no such proof, and the trial court properly denied his motion to unseal.
See RAP 5.2(a), providing that a notice of appeal must be filed within 30 days after the entry of the decision of the trial court which the party filing the notice wants reviewed.
Dennis asks this court to reconsider its earlier ruling denying his motions to file an over length reply brief and to accept his reply brief as timely filed. We deny the motion to reconsider.
Attorney Fees
Elizabeth has requested attorney fees pursuant to RAP 18.9, which permits an award of sanctions against a party who uses the appellate rules for purposes of delay, or files a frivolous appeal. An appeal is frivolous under RAP 18.9 if it raises no debatable issues and is so devoid of merit that there is no reasonable possibility of reversal. We grant Elizabeth's request for reasonable attorney's fees on appeal for a frivolous appeal. Reasonable attorney's fees shall be determined by a commissioner of this court upon compliance with the provisions of RAP 18.1.
In re Marriage of Fiorito, 112 Wn.App. 657, 669-70, 50 P.3d 298 (2002).
SCHINDLER, J., APPELWICK, J., COX, CJ., concur.