                                                                           FILED 

                                                                         AUG. 11,2015 

                                                                 In the Office of the Clerk of Court 

                                                               W A State Court of Appeals, Division III 





              IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 

                                 DMSION THREE 


In re the Parentage of:                        )
                                               )        No. 32585-7-III
E.L.C.                                         )
                                               )
DEBRA A. CROMER,                               )
                                               )
                         Appellant,            )        UNPUBLISHED OPINION
                                               )
         v.                                    )
                                               )
THOMAS ALLAN THORN,                            )

                                               )

                         Respondent.           )


         FEARING, J. -    We address whether writing the right number on the wrong line

constitutes fraud in obtaining a judgment. When obtaining a default judgment against

Thomas Thorn for child support, Debra Cromer erroneously listed Thorn's last known

rate of pay under the "wages and salaries" line of the standard child support worksheet,

rather than on the "imputed income" line.

         One year and three months after entry of the default jUdgment, Thomas Thorn

moved to vacate the default judgment. The superior court granted the motion on the

ground that vacation of the default judgment was proper under CR 60(b)(4) because

Debra Cromer engaged in fraud when obtaining the judgment. We reverse and reinstate
No. 32585· 7-III
Cromer v. Thorn


the default judgment for child support.

                                      FACTS

       Debra Cromer and Thomas Thorn commenced a committed relationship in August

2008. Thorn is a physician. In March 2010, Cromer gave birth to the couple's daughter,

E.L.C. On July 16,2012, Debra Cromer suffered a black eye and head trauma during an

altercation with Thorn. On July 17, 2012, authorities arrested and charged Thorn with

domestic violence assault, felony harassment, and unlawful imprisonment. On July 19,

Cromer procured a protection order against Thorn.

                                      PROCEDURE

       On October 5, 2012, Debra Cromer filed a petition for a residential schedule,

parenting plan, and child support for E.L.C. She served Thomas Thorn, then residing in

jail, with the summons and petition through the Grant County Sheriff. On October 9,

Thorn left jail on bail. Thorn never responded to Cromer's petition.

      Debra Cromer moved for a default judgment against Thomas Thorn more than one

month after Thorn left jail. On November 16, 2012, a court commissioner approved

Cromer's proposed residential schedule and parenting plan. Due to Thorn's alleged

willful abandonment of the child, refusal to perform parenting functions, and a history of

acts of domestic violence, the commissioner limited Thorn's visitation to supervised

visitation with E.L.e. every other weekend.




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No. 32585-7-111
Cromer v. Thorn


         In a child support worksheet filed in support of her application for child support,

Debra Cromer listed Thomas Thorn's gross monthly income as $13,000. She inserted

this number, as being the wages and salary of Thorn, on line l.a. of the "Gross Monthly

Income" section of the worksheet. Clerk's Papers (CP) at 50. Cromer left blank line l.f.,

a line devoted to imputed income, in this same section. Cromer should have listed the

$13,000 figure as imputed income since she based the number on Thorn's past earnings

as a physician. Cromer did not then know Thorn's current income. Cromer, however,

declared, at the end of the worksheet, that she imputed Thorn's income because he was

voluntarily unemployed or his income was unknown.

         In the child support worksheet, Debra Cromer listed her own gross monthly

income as $3,039.83 on line l.c. under "Business Income." CP at 50. Cromer calculated

that Thorn would be responsible for $1,585.08 per month in child support payments. In a

section at the end of the worksheet titled "Other Factors for Consideration," Cromer

wrote:

                 The father's income is imputed as he is voluntarily unemployed
         and/or his income is unknown. He has been imputed based upon the last
         known rate of pay according to the petitioner which is at $75.00 per hour at
         full-time hours (40 hrs per week).

CP at 53.

         A court commissioner entered an order directing Thomas Thorn to pay $1,585.08

in child support each month. Section 3.2 of the child support order stated:


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No. 32585 7-111
            w



Cromer v. Thorn


                The net income of the obligor is imputed at $9558.61 because:

                      the obligor's income is unknown.
                      The obligor is voluntarily unemployed.

             The amount of imputed income is based on the following
       information in order of priority. The court has used the first option for
       which there is information:

                      Past earnings when there is incomplete or sporadic
                information of the parent's past earnings.

CP at 41.

       Debra Cromer served Thomas Thorn with all final orders, including the child

support order and order of default, on November 21,2012. On August 27,2013, ajury

acquitted Thorn of the criminal charges against him. The jury found that Thorn

employed lawful self-defense.

       On January 6, 2014, Debra Cromer filed a petition to relocate E.L.C. from Grant

County to Cheney, Washington, so that Cromer could attend Eastern Washington

University. E.L.C. then approached her second birthday. Thorn had not exercised any

visitation rights with E.L.C. and had only made one child support payment.

       Thomas Thorn objected to Debra Cromer's petition to relocate. On March 27,

2014, Thorn also moved to vacate the orders entered against him in November 2012.

Thorn alleged he defaulted on the initial petition because of a "state of duress"

engendered by the charge of domestic violence, and, therefore, his lack of response

constituted excusable neglect. CP at 181. Thorn offered no apologetic for why he failed

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No. 32585-7-II1
Cromer v. Thorn


move to vacate the default following his acquittal in August 2013. Thorn declared that he

was unemployed at the time of entry of the default orders. In his motion to vacate,

Thomas Thorn does not disclose the amount of child support he believes the court should

have ordered in November 2012. Thorn did not deny that, as of November 2012, his last

known rate of pay was $75.00 per hour as declared by Debra Cromer in her child support

worksheet filed in 2012.

       In a declaration in support of Thomas Thorn's assertion of duress, Dr. Steven

Juergens, a psychiatrist, stated that he had treated Thorn for major depression and

attention disorder since August 2008. Juergens saw Thorn for a regular checkup on July

16,2012, the date of Thorn and Debra Cromer's altercation, and, according to Juergens,

Thorn "was doing well overall." CP at 184. Dr. Juergens treated Thorn again on

November 29, 2012, a month after Thorn left jail. According to Juergens, Thorn, in late

November, was devastated and depressed about his circumstances.

      Dr. Steven Juergens continued in his declaration:

              I am writing because [Thorn] tells me that he is preparing a petition
      to address the default judgments that were granted to Debra Cromer on
      November 16,2012. He has described to me that when, he was released on
      bail on October 9,2012, after beingjaiIed on July 16,2012, that he was in a
      state of anguish and despair. He was not able to deal with his life
      circumstances, especially being served with child custody and support
      papers while he was in jail on October 5,2012. These papers alleged
      willful abandonment, extended neglect, nonperformance of parenting
      functions and the lack of existence of emotional ties between him and his
      daughter. He recounted that he was facing 10 years in prison and describes
      himself as "quite literally was traumatized and in a daze."

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No. 32585-7-111
Cromer v. Thorn



             Though[] 1 did not see him during that time, 1 do believe that it is
      credible that Dr. Thorn was not dealing with his circumstances in a very
      organized and competent manner because of the emotional crisis being
      brought on by his being jailed for three months and the threat of facing
      years of prison. He describes himself as being depressed, anxious, angry,
      withdrawn, indecisive, and feeling helpless. He iterates to me that he was
      facing prison for something he did not do, threatened with not seeing his
      daughter again, the potential loss of his medical license, and the possibility
      of not working as a physician again. 1 do not believe that he was acting
      effectively at that time, which 1 think is understandable from a psychiatric
      standpoint.

CP at 184-85.

       On April 18, 2014, a court commissioner denied Thomas Thorn's motion to vacate

the default child support order. The commissioner entered detailed findings of fact,

including:

              11. More than one year has passed between entry and service of the
      orders entered by the court on November 16,2012 and Respondent's
      Motion.
              12. Respondent had the ability to bring a motion to vacate the
      default at all times after entry of the default.
              13. Petitioner's allegations of domestic violence against Respondent
      did not prevent Respondent from answering the Summons and Petition.
              14. Respondent's arrest and incarceration in 2012 did not prevent
      the Respondent from appearing and responding to the Summons and
      Petition.
              15. Respondent's alleged "state of duress" did not prevent
      Respondent from appearing and responding to the Summons and Petition.

              18. Respondent did not file his Motion for an Order to Show Cause
      in this matter until after Petitioner filed her notice of relocation and motion
      for temporary orders.

CP at 234-35. The court commissioner also entered conclusions of law, including:

                                             6

No. 32585-7-III
Cromer v. Thorn



               3. Respondent's Motion fails to provide any evidence of fraud, let
       alone clear, cogent and convincing evidence.
               4. Respondent's Motion fails to establish fraudulent conduct on the
       part of the Petitioner.
               5. Respondent's Motion fails to establish any fraud or
       misrepresentation that caused the entry of the November 16, 2012 orders,
       or that prevented the Respondent from fully and fairly presenting his case
       or defense.

CP at 226. The court commissioner awarded Debra Cromer attorney fees and costs in the

amount of$2,619.

       Thomas Thorn moved the superior court to revise the court commissioner's

findings of fact, conclusions oflaw, and order denying his motion to vacate. Thorn

added the argument that vacation of the default judgment was proper under CR 60(b)(5)

or (11) because the judgment granted relief not requested in the petition, thereby

rendering the judgment void and capable of being vacated at any time.

       The Grant County Superior Court denied Thorn's request for relief under CR

60(b)(5) or (11). The trial court, nonetheless, vacated the default judgment under CR

60(b )(4) on the ground that Debra Cromer committed fraud in obtaining the judgment

since she imputed income on the "Wages and Salaries" line of the child support

worksheet instead of the "Imputed Income" line. In so ruling, the trial court noted that

the one year limitation for moving to vacate a default judgment did not apply because of

the fraud. The trial court upheld the default parenting plan.




                                             7

No. 32585·7-II1
Cromer v. Thorn


                                 LAW AND ANALYSIS

                                      Default Order

       Debra Cromer contends that the trial court erred in: (1) finding that Thomas Thorn

made a prima facie showing that she fraudulently obtained the default judgment and

order for child support, (2) failing to bar Thorn's motion to vacate as untimely, and (3)

failing to consider the factors in White v. Holm, 73 Wn.2d 348, 352,438 P.2d 581 (1968),

in determining whether vacation of the default judgment was proper. We agree with her

first assertion and so do not address the other two arguments.

       This court reviews a trial court's decision on a motion to vacate an order of default

or default judgment for abuse of discretion. Morin v. Burris, 160 Wn.2d 745, 753,161

P.3d 956 (2007); Yeckv. Dep'tofLabor & Indus., 27 Wn.2d 92,95,176 P.2d 359 (1947).

Discretion is abused if it is exercised on untenable grounds or for untenable reasons.

Morin, 160 Wn.2d at 753. A trial court that misunderstands or misapplies the law bases

its decision on untenable grounds. Little v. King, 160 Wn.2d 696, 703, 161 P.3d 345

(2007). We conclude that the trial court misapplied the law. The trial court based its

decision on Debra Cromer allegedly providing false information to the trial court, rather

than Cromer engaging in fraud to obtain the judgment, when a showing of procedural

fraud or misrepresentation is needed to vacate a judgment under CR 60(b)(4).

       Thomas Thorn contends that he provided sufficient evidence of fraud because

Cromer knew that Thorn did not earn $13,000 per month, never earned that income, and

                                             8

No. 32585-7-111
Cromer v. Thorn


was incapable of employment as a physician when the order of child support was entered

on November 16,2012. Thorn claims he was involuntarily unemployed due to the

actions of Cromer. We do not address these arguments because Thorn does not allege

that Cromer fraudulently prevented him from responding to the petition.

        CR 60, upon which the trial court relied, applies to all judgments, not only

judgments obtained by reason of a default by the defendant. CR 60 provides, in relevant

part:

              (b) Mistakes; Inadvertence; Excusable Neglect; Newly
        Discovered Evidence; Fraud; etc. On motion and upon such terms as are
        just, the court may relieve a party or his legal representative from a final
        judgment, order, or proceeding for the following reasons:

              (4) Fraud (whether heretofore denominated intrinsic or extrinsic),
        misrepresentation, or other misconduct of an adverse party;

               The motion shall be made within a reasonable time.

        A review of case law shows that CR 60(b )( 4) addresses fraud in procuring the

judgment rather than fraud or misrepresentation in providing false information to the

court at the time of entry of the judgment. Stated differently, CR 60(b)(4) concerns itself

with procedural, rather than substantive, fraud.

        CR 60(b)( 4) is aimed at judgments which were unfairly obtained, not at those

which are factually incorrect. Peoples State Bank v. Hickey, 55 Wn. App. 367, 372, 777

P.2d 1056 (1989). For this reason, a party seeking vacation of a judgment under CR

60(b)(4) must demonstrate that the fraud or misrepresentation caused the entry of the

                                               9

No. 32585-7-111
Cromer v. Thorn


jUdgment such that the losing party was prevented from fully and fairly presenting its

case or defense. Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990);

Peoples State Bank v. Hickey, 55 Wn. App. at 372; Toledo Scale Co. v. Computing Scale

Co., 261 U.S. 399, 421, 43 S. Ct. 458, 67 L. Ed. 719 (1923); Atchison, Topeka & Santa

Fe Ry. Corp. v. Barrett, 246 F.2d 846, 849 (9th Cir. 1957); Plattner v. Strick Corp., 102

F.R.D. 612,615-16 (N.D. Ill. 1984). The alleged fraud or misrepresentation must be

established by clear and convincing evidence. Peoples State Bank v. Hickey, 55 Wn.

App. at 372.

       Peoples State Bank v. Hickey, 55 Wn. App. 367 (1989) controls our decision.

Carol Hickey appealed the trial court's denial of her motion to set aside a default

judgment and a decree of foreclosure that were entered against her in favor of Peoples

State Bank. Over a strenuous dissent, this court affirmed the judgment. The bank

foreclosed on property owned by Hickey's former husband, but on which Hickey held a

lien superior in interest to the interest of the bank. In the complaint, Peoples State Bank

named Carol Hickey as a person claiming an interest in the mortgaged property. The

bank falsely alleged that the interest of Carol Hickey was inferior, subordinate and

subject to the lien of the bank. The bank then possessed a title report showing Hickey's

lien to hold priority of the bank's mortgage. The bank served Hickey with the summons

and complaint for mortgage foreclosure. Hickey failed to appear and an order of default

was entered against her. Thereafter, Hickey sought to vacate the default judgment. She

                                             10 

No. 32585-7-III
Cromer v. Thorn


averred that she possessed limited understanding of the law and that, when she received

the summons and complaint, she was unaware ofthe meaning of the word "subordinate."

The trial court denied Hickey's motion to set aside the judgment, emphasizing that she

had ample opportunity to challenge the position ofthe bank that her lien was inferior to

the bank's mortgage.

       In Peoples State Bank v. Hickey, this court noted that Carol Hickey established

that the bank misrepresented facts regarding Hickey's lien. We reasoned that it was

immaterial whether the bank's misrepresentation was innocent or willful. Although

default judgments are not preferred, balanced against that principle is the necessity of

having a responsive and responsible system that mandates compliance with judicial

process and is reasonably firm in bringing finality to judicial proceedings. We noted that

Fed. R. Civ. P. 60(b )(3) was the federal counterpart to CR 60(b )( 4) and we looked to

federal decisions to reach the correct conclusion. Courts interpreting the federal rule

stated that one who asserts that an adverse party has obtained a verdict through fraud,

misrepresentation or other misconduct has the burden of proving the assertion by clear

and convincing evidence. Thus, vacation of the default judgment was not warranted.

Although Peoples State Bank misrepresented the status of Hickey's lien, there was no

connection between the bank's misrepresentation and Hickey's failure to respond to the

complaint or employ an attorney. Hickey did not rely on the misrepresentation, nor was

she misled by the bank's statements in the complaint.

                                             11 

No. 32585-7-111
Cromer v. Thorn


       The trial court found that Thomas Thorn met his burden of proof under CR

60(b)(4) because Debra Cromer listed Thorn's gross monthly income as "wages and

salaries" rather than as "imputed income" on the child support schedule worksheet she

submitted to the court. We question whether Cromer misrepresented the facts when she

elsewhere disclosed to the court commissioner that she did not know Thorn's income but

was imputing income to him based on her latest information. We need not resolve,

however, whether Cromer misrepresented facts or even fraudulently stated facts. Thorn

did not rely on any misrepresentation .. Debra Cromer's imputation of Thomas Thorn's

income did not prevent him from appearing or fairly presenting his case.

       Thomas Thorn claims that he went temporarily to jail due to the conduct of Debra

Cromer and his jailing created duress that disabled him from answering the petition for

child support. Nevertheless, he does not argue that his residing in jail is the type of fraud

that qualifies for vacation under CR 60(b)(4). Anyway, Cromer did not seek the default

judgment until Thorn's release from jail.

                                  Attorney Fees and Costs

       Debra Cromer requests appellate attorney fees and costs under RCW 26.09.140.

That statute provides, in relevant part:

              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 attorneys' fees or other professional fees in
       connection therewith, including sums for legal services rendered and costs

                                             12
No. 32585-7-III
Cromer v. Thorn


       incurred prior to the commencement of the proceeding or enforcement or
       modification proceedings after entry ofjudgment.
              Upon any appeal, the appellate court may, in its discretion, order a
       party to pay for the cost to the other party of maintaining the appeal and
       attorneys' fees in addition to statutory costs.

       In determining whether to award fees under RCW 26.09.140, this court examines

the arguable merit of the issues on appeal, and the financial resources of the respective

parties. In re Marriage a/King, 66 Wn. App. 134,139,831 P.2d 1094 (1992). The party

seeking fees on appeal must serve on the other party and file a financial affidavit, no later

than ten days before the date the case is set for oral argument or consideration on the

merits. RAP 18.1 (c). Debra Cromer has fulfilled this requirement.

       Debra Cromer brings a meritorious appeal. She shows minimal income. Thomas

Thorn concedes in his response brief that he found employment in 2014. Therefore, he

should be able to pay some or all of Cromer's attorney fees. We grant Cromer's request

for attorney fees and costs in an amount to be determined by the commissioner of this

court pursuant to RAP 18.1 (d).

                                      CONCLUSION

       We reverse the trial court's vacation of the order of default for child support, as

well the findings of fact, conclusions of law, judgment, order for support/residential

schedule, order granting attorney fees, and order of child support signed by the court

commissioner in November 2012. We remand with instructions that the trial court

reinstate the original default judgment and orders entered on November 16,2012. We

                                             13 

I
I
    No. 32585-7-III 

    Cromer v. Thorn 



    award appellate attorney fees and costs to Debra Cromer to be determined by our court

    commissioner.

          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.


                                                         &
                                                         Fea~'
                                                                        J.

    WE CONCUR:




                                               14 

