                                                                          FILED
                                                                       AUGUST 29, 2019
                                                                  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
                               DIVISION THREE

In the Matter of the Marriage of,              )
                                               )           No. 36122-5-III
LORI VAN DE GRAAF,                             )
                                               )
                     Respondent,               )
                                               )
       v.                                      )           UNPUBLISHED OPINION
                                               )
ROD D. VAN DE GRAAF,                           )
                                               )
                     Appellant.                )

       KORSMO, J. — This is Van de Graaf III. See In re Marriage of Van de Graaf, no.

35133-5-III (Van de Graaf I), for details. This appeal from a CR 60 motion involves a

boundary description. We affirm, but remand for the trial court to correct the description.

                                PROCEDURAL HISTORY

       As stated in Van de Graaf II, the facts are known to the parties and will not be

recited here, although interested persons can find some of the information in our Van de

Graaf I opinion. After five years of litigation, the trial court entered a decree of

dissolution that is the primary topic of Van de Graaf I.
No. 36122-5-III
In re Marriage of Van de Graaf


       One piece of property awarded by the decree was the Ellensburg area grazing land

valued at $1.3 million. Appellant Rod Van de Graaf (Rod) owned the property in

partnership with his brother, Rick. The trial court awarded Rod’s one-half interest in the

property to respondent Lori Van de Graaf (Lori). This court upheld the award in Van de

Graaf I despite the trial court’s mischaracterization of the land as community rather than

separate property.

       The two men had purchased the property on contract from their parents prior to the

marriage between Rod and Lori. This land, originally about 343 acres in size, was known

as tax parcel 835436. A neighbor subsequently proposed a trade of a seven acre parcel of

his land for a ten acre part of the brothers’ grazing land in order to allow both parties to

consolidate their properties on separate sides of an irrigation ditch. The deal was

consummated and boundary adjustments were entered. The land acquired by the brothers

in the trade is tax parcel 20588.

       Trial testimony did not reveal that the Ellensburg property consisted of two

parcels, although the written appraisal of the property noted the existence of the two

parcels. The trial court directed that the “Ellensburg property” be given to Lori. The

decree awarded Lori parcel 835436. While Van de Graaf I was pending in this court,

Lori received a tax statement indicating that the property consisted of two tax parcels.

She filed a CR 60 motion to correct the decree to account for both parcels.



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In re Marriage of Van de Graaf


       Rod objected, contending that the trial court lacked authority to amend the decree

because of the pending appeal and arguing that parcel 20588 was never before the court

in the dissolution trial and was not awarded to Lori. The trial judge, the Honorable

Michael McCarthy, characterized the problem as a scrivener’s error and ordered that an

amended decree be entered accounting for both parcels. Clerk’s Papers (CP) at 27. The

court also denied Rod’s motion for reconsideration. CP at 36.

       The amended decree listed both parcel 835436 and 20588. However, the legal

description for parcel 20588 was erroneous. CP at 47. Rod timely appealed to this court.

In his reply brief, Rod argued that the description for parcel 20588 actually came from

parcel 20587, a parcel that Rod and Rick had transferred to their neighbor as part of the

trade. In response to a question from this court, Lori admitted that the description for

20588 in the amended decree was erroneous, but argued that it was not the description for

parcel 20587.

       The panel that heard the first two appeals considered this appeal without hearing

argument on June 10, 2019.

                                       ANALYSIS

       Rod argues that the trial court (1) erroneously granted relief under CR 60(a), (2)

lacked authority to act without this court’s prior permission pursuant to RAP 7.2(e), and

(3) erred in considering Lori’s CR 60 motion in violation of CR 7. Lori requests that we



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In re Marriage of Van de Graaf


impose attorney fees against Rod for frivolous and vexatious litigation. We consider the

contentions in the order listed.

       CR 60 Relief

       Rod argues that the trial court committed substantive error by amending the decree

to include omitted property that had not been before the court. However, we agree with

the trial judge that the omission of the second (and much smaller) parcel from the decree

of dissolution was a scrivener’s error that simply failed to fully describe the Ellensburg

property previously awarded to Lori.

       CR 60(a) authorizes a trial court to correct clerical mistakes in judgments or orders

at any time, either on the court’s own initiative or the motion of any party. In re

Marriage of Getz, 57 Wn. App. 602, 604, 789 P.2d 331 (1990). This court reviews a trial

court’s decision whether to vacate or amend a judgment or order under CR 60 for an

abuse of discretion. Shaw v. City of Des Moines, 109 Wn. App. 896, 900, 37 P.3d 1255

(2002). Discretion is abused when it is exercised on untenable grounds or untenable

reasons. State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

       In contrast, CR 60(b) allows a trial court acting on a timely motion to relieve a

party from a judgment or order based on a mistake, fraud, and other circumstances. The

essential difference in the two rules is whether the error was clerical (CR 60(a)) or

judicial (CR 60(b)). Marchel v. Bunger, 13 Wn. App. 81, 84, 533 P.2d 406 (1975). If the



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No. 36122-5-III
In re Marriage of Van de Graaf


erroneous judgment or order accurately reflects the court’s ruling, the error is judicial.

Id; Presidential Estates Apartment Assocs. v. Barrett, 129 Wn.2d 320, 326, 917 P.2d 100

(1996). If the ruling does not accurately reflect the ruling, the error is clerical. Id. CR

60(a) does not allow a judge to change his or her mind and reach a result contrary to the

original intent. Presidential Estates, 129 Wn.2d at 326; Getz, 57 Wn. App. at 604.

       There must be some support in the record for determining the judge’s original

intent. Presidential Estates, 129 Wn.2d at 326-327; Getz, 57 Wn. App. at 604; Marchel,

13 Wn. App. at 84. Nonetheless, the trial judge may draw on his or her recollection of

the proceedings in determining the court’s intentions at the time it entered the original

judgment. Getz, 57 Wn. App. at 604-606.

       The judge’s original intent is primarily a question of fact: what did the ruling

intend to accomplish? Here, that question is easily answered. Judge McCarthy noted that

his intent all along was to award the entirety of Rod’s share of the Kittitas County grazing

land to Lori. This intent also is objectively supported by the record. Throughout the trial

testimony, and in various writings, the property was consistently described as the

“Ellensburg property” by the judge and both parties. E.g., CP (No. 35133-5-III) at 703

(court’s letter decision awarding the property to Lori), 725 (Rod’s proposed findings of

fact), 769 (decree). This view is corroborated further by the fact that the property

appraisal from which the trial court drew its valuation correctly referenced both tax

parcels.

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No. 36122-5-III
In re Marriage of Van de Graaf


       There simply was no indication in the trial record that there were multiple

properties in Kittitas County owned by Rod and Rick Van de Graaf. Thus, there is no

basis for concluding that the references to, and the court’s award of, the “Ellensburg

property” was intended to encompass less than the entirety of Rod’s interest in the

Kittitas County land he held in partnership with his brother. The fact that the decree of

dissolution failed to properly describe the entire property was not the result of a

conscious judicial decision to silently withhold some of that land for Rod’s benefit.

       Accordingly, the trial court did not abuse its discretion by amending the property

description in the dissolution decree to reflect its original award of the entire Ellensburg

property to Lori. The record supports the view that the parties had always considered all

of the grazing land to constitute the “Ellensburg property.” The trial court’s use of that

same phraseology has consistently demonstrated the intent to encompass all of the

partnership land. The correction of the inadequately described property in the original

decree was proper under CR 60(a). This was a scrivener’s error, pure and simple.

       The order granting relief and amending the original decree is affirmed.

       RAP 7.2(e)

       Rod next argues that the trial court lacked authority to amend the dissolution

decree while that judgment was on appeal in Van de Graaf I. In light of our resolution of

the first issue, his argument fails.



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No. 36122-5-III
In re Marriage of Van de Graaf


       RAP 7.2(e) provides that while a trial court has authority to consider and

determine postjudgment motions while a case is on appeal, the court may not enter an

order that “will change a decision then being reviewed by the appellate court” without

first obtaining the permission of the reviewing court. In accordance with the plain

language of the rule, the typical practice is to present a motion to the trial court and, if the

court indicates its intent to enter an order changing the decision, the proponent of the

change then obtains the appellate court’s permission to have the order entered. E.g., State

v. Duncan, 111 Wn.2d 859, 865-866, 765 P.2d 1300 (1989).

       The correction of a clerical error by use of CR 60(a) normally will not change a

ruling under review by an appellate court. As just noted, a clerical error is not an

expression of the judge’s true intent. Thus, the correction of a clerical error does not alter

a trial judge’s ruling, but merely the expression of the ruling. Accordingly, use of CR

60(a) to correct a scrivener’s error will not necessarily require permission of the appellate

court under RAP 7.2(e). E.g., Marquis v. City of Spokane, 76 Wn. App. 853, 862, 888

P.2d 753 (1995), aff’d, 130 Wn.2d 97 (1996) ; Olsen Media v. Energy Sci. Inc., 32 Wn.

App. 579, 587-588, 648 P.2d 493 (1982) (entry of revised findings and conclusions does

not “change” a decision being reviewed so as to require approval of the Court of Appeals

pursuant to RAP 7.2(e) if the revision does not require additional evidence and does not

affect the judgment in a substantive manner).



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No. 36122-5-III
In re Marriage of Van de Graaf


       The correction to the judgment and sentence did not change the judgment under

review, but merely attempted (unsuccessfully) to more accurately express the description

of the property awarded to Lori. At issue in Van de Graaf I was the characterization of

the Ellensburg property as community or separate property, and the trial court’s award of

that property to Lori. The attempted correction of the property description simply did not

change the judgment under review.

       Under the facts of this case, Rod’s RAP 7.2(e) challenge is without merit.

       CR 7

       Rod also challenges the trial court’s failure to strike Lori’s original CR 60(b)

motion to correct the judgment, arguing that it was insufficient under CR 7. The trial

court’s conversion of the motion to a CR 60(a) proceeding moots this challenge.

       As noted previously, CR 60(a) permits the court itself to initiate the correction of a

scrivener’s error. Here, the original CR 60(b) motion called the matter of the incomplete

description in the decree to the attention of the trial judge. Recognizing the scrivener’s

error in the original decree, the judge ordered a correction. The adequacy of the original

CR 60(b) motion is a moot point in light of the trial court’s action to correct the error

under CR 60(a).




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No. 36122-5-III
In re Marriage of Van de Graaf


       Attorney Fees

       Lori seeks her attorney fees on appeal, arguing that this appeal was frivolous and a

further example of Rod’s demonstrated intransigence. While we have great sympathy for

both arguments, we decline to exercise our discretion in her favor in this instance.

       We previously have upheld the trial court’s intransigence finding in Van de Graaf

I and also awarded attorney fees to Lori on that basis in both that appeal and in Van de

Graaf II. Rod’s actions in fighting the correction of the decree and appealing that

decision despite the fact he would not realistically benefit from the challenge indicate the

frivolous nature of the appeal and further demonstrates the intransigent attitude that has

permeated this case for the better part of the past decade.

       Nonetheless, mistakes were made and still need to be corrected. Despite the fact

that the correct legal description was used in the transfer deed and the fact that the two

parcels were identified in the appraisal report, both the decree and the amended decree

have the wrong property description. While it appears to have been by accident, Rod’s

appeal did at least bring the latter error to light. We remand to the trial court to correct

the property description in the amended decree.

       Accordingly, we decline to award Lori her actual attorney fees related to this

appellate cause number.




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No. 36122-5-III
In re Marriage of Van de Graaf


                                        CONCLUSION

       We deem Lori the substantially prevailing party in this appeal. RAP 14.2. She is

entitled to her statutory costs and fees upon timely compliance with RAP 14.4. She is not

entitled to her actual attorney fees.

       The judgment is affirmed, but the case is remanded for further correction of the

scrivener's error, discussed above, in the amended decree.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




       Siddoway, J.




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