                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                         April 12, 2016
       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
    In the Matter of the Marriage of                                No. 46794-1-II

    RICHARD LEE MURSCH,
                                  Respondent,

    and

    AERAN HAN MURSCH,                                         UNPUBLISHED OPINION

                                  Appellant.

          WORSWICK, P.J. — Aeran Mursch appeals the superior court’s denial of her motion to

vacate a default decree of legal separation. She argues that the superior court erred by denying

her motion to vacate the order because (1) her ex-husband, Richard Mursch, fraudulently

prevented her from contesting the separation, and (2) extraordinary circumstances existed,

permitting the court to vacate the order. She also argues that (3) Richard’s1 behavior deprived

her of due process. We disagree and affirm the order denying the motion to vacate.

                                                FACTS

          Aeran was born and raised in Korea. She came to the United States as an adult and

married Richard. The couple married in 1992 and had two children.

          Richard petitioned for a legal separation on July 12, 2011. Aeran was served with a

summons informing her that Richard had filed for a legal separation. Aeran also received a




1
    We refer to Richard Mursch and Aeran Mursch by their first names. We intend no disrespect.
No. 46794-1-II


proposed order of legal separation. The summons informed Aeran to respond within 20 days to

avoid a default order. Aeran did not respond, nor did she take any action.

       On August 12, the superior court entered default orders of legal separation, child support,

and a final parenting plan. The child support order obligated Richard to pay $1,800 per month.

Although Aeran’s name appears at the bottom of the child support order, apparently requesting

the enforcement services of the Division of Child Support (DCS) to assist with the payment of

child support, Aeran was not present at the hearing. Instead, Richard’s attorney signed this

order, appearing to make the request as Aeran’s attorney. Aeran’s signature appears on a form

authorizing DCS to deposit the child support payments directly into the couple’s joint bank

account.2

       The decree of legal separation obligated Richard to pay Aeran $700 in spousal

maintenance per month for four years. It awarded the family home to Aeran, subject to the

remaining amount owing on the mortgage.

       Nearly two years later, on May 17, 2013, Richard moved to convert the decree of legal

separation into a decree of dissolution. Aeran, who was then represented by counsel, objected on

June 7. She argued that Richard had been paying child support payments to DCS, and she had

not received any of the child support payments. The superior court granted Richard’s motion,

thereby dissolving the marriage on June 11.3



2
  The parties agree Aeran’s signature appears on the form, but the authorization form is not in the
record on appeal.
3
  The superior court noted that a motion to convert a separation into a dissolution was an
inappropriate setting to bring up the child support issue.



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No. 46794-1-II


       By December, Aeran retained different counsel. On February 27, 2014, Aeran moved to

vacate the decree of legal separation because she “did not receive notice of the hearing on

[Richard’s] motion for default that was scheduled 30 days after personal service was completed.”

Clerk’s Papers (CP) at 144. She alleged for the first time that Richard had misrepresented the

consequences of the legal separation to her, causing her to fail to appear to contest the separation.

       The superior court set a hearing to resolve the factual allegations. Before that hearing,

Richard’s attorney provided a declaration explaining why he had signed for Aeran on the child

support order. He declared that this was merely a scrivener’s error, which he had offered to

correct shortly after learning he had made the mistake.

       The superior court took Aeran’s and Richard’s testimony. Aeran acknowledged that she

received the summons and petition for legal separation, as well as proposed final orders. She

testified that she read and disagreed with the separation document, but Richard did not give her

money to hire a lawyer and he forbade her from using the joint account money. She testified that

she believed she had to go to court to contest the separation, but immediately thereafter she said:

“I didn’t know I had to be in court.” Verbatim Report of Proceedings (VRP) at 27. She testified

that Richard told her the legal separation was “completed.” VRP at 28. She never received the

final default judgment of legal separation, and she believed the separation was not in effect

because she had not signed it. Richard continued to live in the family home and control the

finances. Aeran testified that she did not sign the direct deposit form authorizing DCS to deposit

funds into a joint bank account. She further testified that Richard paid her $1,100 per month,

rather than $1,800 as required by the order of child support.




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No. 46794-1-II


       Richard’s version of these events was different. He testified that Aeran had full access to

the couple’s joint bank account until March 2012, when he removed her from the account. He

testified that although Aeran was uncooperative with his attempts to set up the direct deposit

system, she eventually signed the form authorizing direct deposit into the joint account. Richard

paid Aeran $1,100 per month to discharge his obligation to pay her $700 per month in

maintenance, plus more. Thus, his testimony suggested that the $1,100 Aeran received every

month represented spousal maintenance plus extra money, and the child support was paid

separately through DCS. Richard paid the mortgage, although Aeran had the obligation to pay

the mortgage under the orders. Richard testified that he never misrepresented the nature of the

separation to Aeran.

       After considering this testimony, the superior court considered CR 60(b)(4)4 and (11).5

The court found that Aeran had not shown excusable neglect when she failed to respond to the

summons and when she waited nine months to move to vacate the separation. It found that

Richard’s attorney’s inadvertent signature “for” Aeran on the child support order was immaterial

and did not prejudice Aeran. CP at 213. The superior court noted that it was odd that Richard

paid the child support into a joint account to which he had access. But despite this odd

arrangement, the superior court noted that Richard had paid more than he owed under the orders:

he paid the mortgage, although Aeran owned the house under the separation decree, and Richard


4
  CR 60(b)(4) provides that the superior court may vacate a final order on the basis of fraud,
misrepresentation, or misconduct of the adverse party, so long as this motion is brought within
reasonable time.
5
 CR 60(b)(11) provides that the superior court may vacate a final order on the basis of “[a]ny
other reason justifying relief,” so long as this motion is brought within reasonable time.



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No. 46794-1-II


paid Aeran more than he owed her each month. The superior court concluded that, even though

the parties’ testimony differed, Aeran had not proved fraud, misrepresentation, or misconduct.

       Turning to CR 60(b)(11), the superior court noted that the distribution of property was

not substantially unequal. The court concluded that although the property could have been

distributed differently, it was not convinced that there were grounds to vacate the order. The

court noted that Aeran had received notice of all the important documents, and that Richard had

no obligation to provide her with final orders. The superior court found that Richard’s version of

events was plausible, and therefore it could not find that Aeran had proved fraud or

misrepresentation. Aeran appeals.

                                           ANALYSIS

                    I. DENIAL OF MOTION TO VACATE SEPARATION DECREE

       Aeran argues that the superior court erred by denying her motion to vacate the default

decree of legal separation. We disagree.

A.     Standard of Review

       We review a superior court’s decision on a motion to vacate a default judgment for an

abuse of discretion. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007). A superior

court abuses its discretion when it is exercised on untenable grounds or for untenable reasons.

Morin, 160 Wn.2d at 753. Our review is limited to the decision on the motion, not the

underlying judgment. Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980).

B.     CR 60(b)(4): Fraud, Misrepresentation, or Misconduct

       Aeran first argues that the superior court erred by denying her motion to vacate the

default order under CR 60(b)(4). We disagree.



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No. 46794-1-II


       Under CR 60(b)(4), the superior court may vacate a judgment due to fraud,

misrepresentation, or other misconduct of an adverse party. A party seeking relief under CR

60(b)(4) must establish fraud, misrepresentation, or misconduct by clear and convincing

evidence.6 Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990). Clear and

convincing evidence is that which shows the ultimate fact at issue to be highly probable. Dalton

v. State, 130 Wn. App. 653, 666, 124 P.3d 305 (2005). The fraud must cause the entry of the

judgment the party seeks to vacate. Lindgren, 58 Wn. App. at 596.

       Here, the trial court did not abuse its discretion by finding that Aeran had not proved

Richard’s fraud, misrepresentation, or misconduct. As the superior court acknowledged below,

Richard and Aeran each testified to different, but plausible, versions of the events that led Aeran

not to contest the decree of legal separation. Moreover, Richard properly served Aeran with the

summons, which explained that a default judgment was possible if Aeran failed to respond. The

superior court acknowledged that Richard ultimately paid Aeran more than the separation decree

and order of child support required.

       The court found plausible Richard’s testimony that Aeran was not cooperative with his

attempts to help her set up the direct deposit system. The superior court acknowledged that

while both parties’ stories could not be true, there was insufficient evidence that Richard

committed fraud, misrepresentation, or misconduct. Finally, the superior court considered the



6
  To establish fraud or intentional misrepresentation, Aeran had to prove (1) Richard represented
an existing fact, (2) its materiality, (3) its falsity, (4) Richard’s knowledge of its falsity, (5)
Richard’s intent that Aeran act upon the misrepresentation, (6) Aeran’s ignorance of the falsity
of the misrepresentation, (7) Aeran’s reliance on the truth of the representation, (8) Aeran’s right
to rely upon it, and (9) consequent damage. Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d
157, 166, 273 P.3d 965 (2012).


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No. 46794-1-II


allegation that Richard had defrauded Aeran when his attorney signed for her on the order

requesting child support. The superior court noted that the result of this error was merely that

DCS provided enforcement support, and no negative consequences resulted for Aeran.

Accordingly, the court found that this act was not fraudulent.

       We hold that the superior court had tenable grounds and reasons for finding that Aeran

had failed to prove fraud, misrepresentation, or misconduct by clear and convincing evidence.

Accordingly, the superior court did not err when it denied Aeran’s motion to vacate under this

subsection.

C.     CR 60(b)(11): Extraordinary Circumstances

       Aeran next argues that the superior court erred by denying her motion to vacate under CR

60(b)(11). We disagree.

       CR 60(b)(11) permits vacating a judgment for “[a]ny other reason justifying relief.” But

this rule is not a blanket provision authorizing relief from judgment for all conceivable reasons.

State v. Keller, 32 Wn. App. 135, 141, 647 P.2d 35 (1982). Instead, the rule 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) (quoting

Keller, 32 Wn. App. at 140). This court applies CR 60(b)(11) only “to serve the ends of justice

in extreme, unexpected situations.” In re Det. of Ward, 125 Wn. App. 374, 379, 104 P.3d 751

(2005). These situations must relate to irregularities extraneous to the court’s action 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).




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No. 46794-1-II


       Aeran’s brief combines argument regarding CR 60(b)(4) and (11), so it is unclear

precisely which extraordinary circumstances she argues are present. Her argument appears to

focus exclusively on fraud and misrepresentation. But because CR 60(b)(11) includes only

those circumstances “‘not covered by any other section of the rule,’” any fraud,

misrepresentation, and misconduct cannot be a basis to vacate under this section, because

CR60(b)(4) covers them. Flannagan, 42 Wn. App. at 221 (quoting Keller, 32 Wn. App. at 140).

Aeran provides no other reasons for vacating the orders; accordingly, her argument fails.

                                         II. DUE PROCESS

       Aeran further argues that her due process rights were violated. We decline to consider

this argument.

       RAP 2.5(a) provides that an appellate court will not consider an issue on appeal which

was not argued to the trial court. However, RAP 2.5(a)(3) permits a party to raise a claim of

“manifest error affecting a constitutional right” for the first time on appeal. The error must be

both (1) manifest and (2) truly of constitutional magnitude. In re Custody of T.L., 165 Wn. App.

268, 279, 268 P.3d 963 (2011). A claim is manifest if the facts in the record show that the

constitutional error prejudiced the party claiming error. T.L., 165 Wn. App. at 279.

       Aeran’s due process argument was not preserved for appeal. Aeran raises this claim for

the first time on appeal. Aeran appears to concede that this argument was not raised below.7 She

makes a passing reference to the fact that a manifest constitutional error may be raised for the



7
 The record below, including Aeran’s initial motion to vacate, includes passing references to due
process. However, she never argued the issue.




                                                 8
No. 46794-1-II


first time on appeal, but she neither clearly identifies how her due process rights were violated,

nor makes any argument about why this error is manifest. Accordingly, we decline to review

this argument.8 RAP 2.5(a).

                                        ATTORNEY FEES

       RAP 18.1(a) allows an award of attorney fees to a party entitled to them under

“applicable law.” In cases governed by chapter 26.09 RCW, we have discretion to grant attorney

fees on appeal. RCW 26.09.140. We consider the financial resources of the parties and the

arguable merit of the issues on appeal. In re Marriage of C.M.C., 87 Wn. App. 84, 89, 940 P.2d

669 (1997). A party must file a financial declaration with us at least 10 days before oral

argument for his or her financial resources to be considered. RAP 18.1(c).

       Aeran requests reasonable attorney fees and costs on appeal, citing RCW 26.09.140. She

did not file a financial declaration. Therefore, she is not entitled to attorney fees. RCW

26.09.140; RAP 18.1(c).9




8
  Moreover, a due process claim requires a person to identify a state action that deprived him or
her of a constitutionally protected interest in liberty or property. Bang Nguyen v. Dep’t of Health
Med. Quality Assurance Comm’n, 144 Wn.2d 516, 522-23, 29 P.3d 689 (2001). Aeran argues
that Richard deprived her of her due process rights.
9
  Aeran also assigns error to the superior court’s denial of attorney fees for Richard’s
intransigence, but fails to present any argument supporting her challenge. Therefore, we do not
address the issue. RAP 10.3(a)(6); DeHeer v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372
P.2d 193 (1962).




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No. 46794-1-II


       Richard requests attorney fees under RAP 18.9 for defending a frivolous appeal.10

Although we disagree with Aeran’s arguments, we hold that Aeran’s appeal is not so devoid of

merit as to be frivolous. Thus, we decline Richard’s request for attorney fees under RAP 18.9.

       Affirmed.

       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 in accordance with RCW

2.06.040, it is so ordered.



                                                                   Worswick, P.J.
 We concur:



 Johanson, J.




 Lee, J.




10
  Richard’s brief also quotes RCW 26.09.140, but he does not argue that he is entitled to
reasonable attorney fees under that section. His argument exclusively relates to frivolous
appeals.


                                               10
