                                                                                                                           e 11- ED
                                                                                                                    Or.It,T O :
                                                                                                                                 fir PEALS
                                                                                                                        01, PS 0 4II

                                                                                                                2014 MAR i !      AM S: 140
                                                                                                                S




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                    DIVISION II

In   re   the Marriage     of
                                                                I                            No. 44296 -5 -II


ANN E. MILLS,


                                         Petitioner,


            and



PAUL WIERENGA,                                                      I                UNPUBLISHED OPINION




            JOHANSON, J. —            Ann E. Mills appeals the trial court' s denial of her CR 60 " Relief from


Judgment"         motion    in this dissolution    case.     She argues that the trial court erred in denying her

motion because she presented uncontroverted documentary evidence that her former husband,

Paul Wierenga, had              obtained   the property distribution "           by fraud, misrepresentation, or other

misconduct"         by failing   to   account   for funds he had         moved       in   and out of certain accounts.      Br. of


Appellant      at   6.   Because the trial court did not abuse its discretion in denying the CR 60 motion,

we affirm.



                                                             FACTS


            Mills filed for dissolution of her marriage to Wierenga in September 2009, after 15 years

of marriage.        On   February      16, 2011, the trial   court      issued   a   letter " decision" stating,
No. 44296 -5 -II



                   I am not going to attempt to divide out the various accounts as I believe
           the parties can do that with the guidance that I want the bottom line to be a 50150
           division of   marital         I recognize that each party argued for a greater
                                      assets.

           percentage share, but I am not going to give a greater percentage to either party.

                 I believe I have given you sufficient information above to mathematically
           work out an equal division of the assets of the marital community.

Clerk' s Papers ( CP) at 97 ( emphasis added).


           On November         10, 2011,        the trial   court    entered   a   dissolution decree.        This decree

                                                                                                                               I
reiterated   that the trial   court   intended the    parties   to   receive " equal"   shares of   the   couples'   assets,




referred to the exhibit that the parties had provided in which they divided the assets, advised the

parties that they could ask the court to make adjustments, and required that any motion to adjust

the property    division   was    due   by   December 31. 2          The trial court also acknowledged that before

the property could be divided, Wierenga was entitled to the return of $28, 149. 23 that he had

made to certain retirement accounts because he had made those deposits after the separation.

                                                                                                     3
The trial     court   awarded $    1, 363, 276 to Mills        and $    1, 256, 719 to Wierenga.          Based on these




1 Mills does not challenge the trial court' s decision to divide the assets equally.
2
    Specifically, the decree stated,
         The court intends to make an equal division ofthe assets ofthe parties. The court
         recognizes that the values set forth on the attached Exhibit A may not be current
         values for the various financial accounts and that growth or loss may have
           occurred therefore if either party believes there is a material difference in value
           he /she may by motion ask the court to make an adjustment in the division
           however the moving party must submit with the motion current statements for all
           accounts that he /she is receiving statements and the opposing party must do
           likewise. [ Any     motion shall        be filed   no    later than 12/ 31/ 11.]   The court retains

           jurisdiction to resolve any disputes as to the adjustments on motion of either
           party. See Order re Property Division in Decree.
CP at 8 ( emphasis added).

3
    Both   of these amounts were "       Tax Adjusted." CP at 9.


                                                                2
No. 44296 -5 -II



amounts, Mills received 52 percent of the total assets and Wierenga received 48 percent of the

                  4
total   assets.




            Mills     timely moved       to    amend    the decree.          On April 17, 2012, the trial court entered a


final order amending the decree that reduced the amount of one of the retirement accounts that

was awarded           to Mills   by $ 52, 347. 45.      The     recalculated      total   assets were $ 2, 567, 647. 55.    In light


of   this   reduction,    the trial    court reduced each            parry'   s award      by $ 26, 173. 73.    Ultimately, Mills

received $        1, 337, 102. 27 ( 52    percent      of   the     recalculated      total assets)       and Wierenga received


    1, 230, 545. 27 ( 48 percent of the recalculated total assets).


            On    July   11,     2012, Mills filed          a   CR    605 motion to vacate and modify the property
             6
division.        She    alleged   that Wierenga ( 1) had            improperly       withdrawn $     51, 331. 00 from retirement


accounts while the dissolution was pending and ( 2) had falsely represented to the trial court that

he had mistakenly deposited three                 separate      property      checks      totaling $ 28, 149. 23 into community

accounts.


                                                                                                      7
            On November 13, 2012, the trial                 court    denied the CR 60          motion.     Mills appeals.




4
    The total     assets were $ 2, 619, 995      ($ 1, 363, 276 + $ 1, 256, 719).

5
     Mills brought this          motion       under   CR 60( b)( 1) ( "      Mistakes, inadvertence, surprise, excusable
neglect  or irregularity in obtaining                   a   judgment         or   order. ");   CR 60( b)( 4) ( " Fraud (    whether

heretofore denominated intrinsic or                     extrinsic),        misrepresentation,      or   other   misconduct    of an

 adverse party. ");       and    CR 60( b)( 11) ( "    Any other reason justifying relief from the operation of the
judgment. ").


6 In her various declarations, Mills acknowledges that the trial court had intended to divide the
property equally between the parties.

7 The trial court' s order does not explain the trial court' s ruling. Nor can we examine the record
from the motion hearing because neither party has filed a verbatim report of proceedings.

                                                                      93
                                                                                                                    l




No. 44296 -5 -II



                                                         ANALYSIS


          We review a trial court' s decision on a motion to vacate under CR 60( b) for abuse of

discretion.    Mitchell v. Wash. State Inst. of Pub. Policy, 153 Wn. App. 803, 821, 225 P. 3d 280

 2009) ( citing Haller        v.   Wallis, 89 Wn.2d 539, 543, 573 P. 2d 1302 ( 1978)), review denied, 169


Wn.2d 1012 ( 2010). "          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 decision


is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in

the   record or was reached           by   applying the wrong legal           standard. "'      Mitchell, 153 Wn. App. at

821 -22 ( internal      quotation marks omitted) (           quoting State v. Rohrich, 149 Wn.2d 647, 654, 71

P. 3d 638 ( 2003)).


          The trial     court' s    November 2011 decree                ordered   an   equal   division   of   the property.   If


Mills' s CR 60 motion were successful, the total assets would have been valued at $ 2, 647, 127. 78;

 79, 480.
            238
                  more   than the     value when      the trial    court entered       the April 2012     order.    But even if


Mills' s share of the total assets remained at $ 1; 337, 102. 27, as awarded in-the April 2O12 order, -


she still received       SI   percent of     the total   assets.    The trial court repeatedly ordered the parties to

divide the assets equally, and Mills does not challenge this portion of the trial court' s decision.

Even accepting Mills' s allegations that the total asset value should have been higher, Mills still

received     slightly   more       than 50   percent of    the assets.      Because this award is consistent with the




8$
      51, 331. 00 + $ 28, 149. 23 = $ 79, 480.23.
                                                                   11
No. 44296 -5 -II



trial court' s requirement that the parties divide the assets equally, Mills does not show that the

trial court abused its discretion in denying Mills' s CR 60 motion. Accordingly, we affirm.

            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.


                                                                                           cc




                                                                  ON, J.
We concur:




WORSWICK. C. J.




L      J.




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