                                                            COURi UF APPEA! S OIV 1
                                                             SWE OF WASHINGTON "

                                                             2015 AUG-3 AN 9:02




    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

 In the Matter of the Marriage of
                                                         No. 71994-7-1
 NADIA SHAFAPAY,
                                                         DIVISION ONE
                      Appellant,
                                                         UNPUBLISHED OPINION
               v.



 MEHRDAD SHAFAPAY,                                       FILED: August 3, 2015

                      Respondent.

      Appelwick, J. — Shafapay appeals the trial court's order denying her motion to

vacate the dissolution decree. She asserts that her husband misrepresented his assets

to the trial court during the dissolution proceedings and that the decree should be vacated

under CR 60(b). We affirm.

                                         FACTS


       Nadia and Mehrdad Shafapay married in 1985.1            Originally from Iran, they

ultimately immigrated to Washington State. During their marriage, they had four children.

They separated in 2010.




      1 As is our common practice, we refer to the parties by their first names for the
sake of clarity. We intend no disrespect.
No. 71994-7-1/2




       The dissolution trial took place from June 18 to June 20, 2012. The trial court

heard testimony from the parties and several other witnesses, reviewed exhibits, and

considered the legal briefing and closing arguments by counsel.2

       In its findings, the trial court stated,

       Both sides in this case accuse the other of having secreted away community
       assets. The husband argues that the wife has moved funds into bank
       accounts in Vancouver, London and Iran, placing them out of sight and
       reach of the court. Meanwhile, the wife argues that the husband has made
       phony transactions, temporarily placing properties and other assets in the
       hands of friends and thus also out of sight and reach of the court. Either or,
       quite possibly, both of them may well be right. The problem is that the court
       must make decisions based on the actual evidence put before it and not on
       suspicions.

The court further "observe[d] that the hit-and-miss quality of the financial records

produced by both sides, leaving many unanswered questions, has failed to bolster

confidence in the credibility of either party."

       The court found that the parties' only community asset with any appreciable value

was a piece of commercial property located at 3605 W. Nob Hill Boulevard in Yakima,

which the court concluded had approximately $100,000 of equity.            The court also

addressed several other pieces of real estate: the Kirkland residence where Nadia lived,

that was owned by Mehrdad's friend Mohammad Harandi and was in foreclosure; a

Yakima property at 8102-4 W. Nob Hill Boulevard, owned by Mehrdad but also in

foreclosure; a Yakima property at 9406 Occidental Road, that was titled in the name of

the parties' daughter, Natasha Shafapay, and also in foreclosure; and Mehrdad's



       2 The transcript, exhibits, and pleadings from the dissolution trial are not in the
record before us, nor were they before the trial court considering Nadia's motion to vacate.
However, the record does contain the trial court's findings of fact and conclusions of law,
which shed some light on the issues raised during the dissolution proceedings.
No. 71994-7-1/3




postseparation residence in Yakima at 5220 Norman Road, that was a rental property.

The court found that there was no community equity in these four properties.

       The court acknowledged that, typically, a wife in Nadia's position would be

awarded a disproportionate share of marital assets. But, it also noted that the "problem

here is that there is no list of community property waiting to be divided up. There is simply

a long list of community debts." To avoid burdening Nadia further with community debt,

the court awarded an "extremely disproportionate" share of community liabilities to

Mehrdad. Accordingly, to reach a fair and equitable distribution, the court also awarded

the commercial property to Mehrdad. On June 25, 2012, the trial court entered a decree

of dissolution reflecting this allocation.

       On April 4, 2014, Nadia moved to vacate the decree and reopen the property

division portion of the dissolution case. She submitted several declarations in support of

her motion.    These included her own declaration, in which she accused Mehrdad of

misleading the court as to his interest in various real properties and failing to disclose

other assets. Nadia also submitted a declaration from the parties' son, Jordan Shafapay,

who stated that his father lived a lifestyle inconsistent with someone who was mostly in

debt with few assets. In addition, Nadia submitted the declaration of a private investigator,

Benny Bridges, who looked into Mehrdad's financial circumstances and concluded "with

little to no doubt that [Mehrdad] grossly misled [Nadia] and this Court." Finally, Nadia

submitted an affidavit from an immigration attorney, Jay Gairson, who stated that

Mehrdad's visa status suggested that his businesses had substantial value.
No. 71994-7-1/4




       Mehrdad submitted a declaration in response, emphatically denying the

allegations and offering explanations to refute the negative inferences drawn in Nadia's

supporting declarations. In addition, Mehrdad noted that much of what was alleged had

already been raised in the dissolution proceedings.

       The trial court found that it could not conclude, based on the evidence presented,

that Mehrdad had committed fraud. Rather, the court noted, it must speculate or draw

inferences in order to reach the result Nadia requested. The court further stated that

Nadia did not demonstrate that the evidence presented was previously unavailable. The

court denied Nadia's motion to vacate.


       Nadia appeals.

                                       DISCUSSION


       Nadia argues that the trial court erred in denying her motion to vacate the

dissolution decree. She asserts that vacation is justified under CR 60(b), because she

presented    newly    discovered    evidence    that   Mehrdad   committed   fraud   and

misrepresentation in disclosing his assets to the trial court.

       We review a trial court's decision on a motion to vacate a default judgment for

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

court "should exercise its authority liberally, as well as equitably, to the end that

substantial rights be preserved and justice between the parties be fairly and judiciously

done." White v. Holm. 73 Wn.2d 348, 351, 438 P.2d 581 (1968). Atrial court abuses its

discretion when it is exercised on untenable grounds or for untenable reasons. Morin,

160Wn.2dat753.
No. 71994-7-1/5




       Nadia's argument implicates two provisions of CR 60(b). Under CR 60(b)(3), a

trial court may vacate a judgment where there is newly discovered evidence that, by the

exercise of due diligence, could not have been discovered before the trial. See also Jones

v. City of Seattle. 179 Wn.2d 322, 360, 314 P.3d 380 (2013). Under CR 60(b)(4), the trial

court may vacate a judgment due to fraud, misrepresentation, or other misconduct of an

adverse party.

       Under either provision, Nadia's argument fails. First, she has not shown that the

evidence presented could not have been discovered before trial. The majority of her

evidence involved transactions that took place prior to the June 2012 dissolution

proceedings.     In fact, many of these transactions were considered in the dissolution

proceedings. Therefore, Nadia did not meet the requirements of CR 60(b)(3).

      Second, the evidence presented was insufficient to demonstrate that Mehrdad

committed misconduct. A party seeking relief under CR 60(b)(4) must establish fraud,

misrepresentation, or misconduct by clear and convincing evidence.           Lindgren v.

Lindqren, 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. Douglas Nw„ Inc. v.

Bill O'Brien & Sons Constr.. Inc.. 64 Wn. App. 661, 678, 828 P.2d 565 (1992). Here, as

the trial court acknowledged below, one must speculate or make inferential leaps to

conclude that Mehrdad's financial representations were fraudulent.

      For example, although Nadia's private investigator, Bridges, addresses numerous

findings that he believes demonstrate Mehrdad's misconduct, none of them make it highly

probable that Mehrdad committed fraud.       For instance, to show that Mehrdad—not

Natasha—owned the Occidental Road property, Bridges notes that the property was
No. 71994-7-1/6




quitclaimed to Natasha for no money, that Mehrdad later took out a line of credit on the

house, and that Mehrdad paid the property taxes. But, an inference must still be drawn

to conclude from this that Mehrdad fraudulently placed the house in his daughter's name.

And, Mehrdad provided conflicting evidence, stating in his declaration that he and Nadia

agreed to purchase the home for Natasha as a gift, which he testified to at the dissolution

trial and Nadia did not deny at the time. Bridge's remaining allegations as to Mehrdad's

fraudulent behavior are likewise inferential.

       The same is true for immigration attorney Gairson's declaration as to Mehrdad's

visa status. Gairson explained that Mehrdad had an investor visa, a visa status which

requires that he show a substantial income derived from his business, above that

necessary to solely earn a living. As a result, Gairson concluded that it was "more likely

than not" that the value of Mehrdad's personal assets in his businesses exceeded

$100,000. But, Gairson admits that he did not have access to Mehrdad's visa application

and thus was "unable to ascertain the actual value of his investments in these companies

or the value of these companies."

       Nadia's declaration is similarly speculative.     For example, Nadia submitted

evidence that Mehrdad and Harandi—the owner of the Kirkland property—both list the

same home address. Nadia alleged this showed that Harandi kept the Kirkland property

in his name for Mehrdad's benefit. But, this fact raises only a suspicion of fraudulent

behavior. Nadia further asserts that Mehrdad failed to disclose his 401 (k) account to the

trial court. She submitted a 2001 account statement as proof. But, Mehrdad explained

that, by the early 2000's, the 401 (k) account had been liquidated to pay off debts.
No. 71994-7-1/7




       In Jordan's declaration, he alleged that his father misrepresented to the court that

his Harley Davidson motorcycle had been repossessed. Jordan further asserted that his

father had placed $60,000 in Natasha's bank account prior to the dissolution trial. There

was no proof to support these assertions. And, according to Mehrdad's declaration, these

allegations are "simply not correct."

       In sum, Nadia attacks Mehrdad's financial disclosures from a number of angles,

but raises only a suspicion that Mehrdad in fact made misrepresentations to the court.

She does not establish by clear and convincing evidence facts necessary to support

vacation of the decree under CR 60(b)(4).

       In the alternative, Nadia asserts that the decree should be vacated under CR

60(b)(1) due to her attorney's failure to discover evidence of Mehrdad's fraud and present

it to the trial court prior to entry of the decree. Under CR 60(b)(1), a trial court may vacate

a judgment where there were "[m]istakes, inadvertence, surprise, excusable neglect or

irregularity in obtaining a judgment or order." However, an attorney's negligence does

not constitute excusable neglect for the purposes of vacating a judgment on the merits

under CR 60(b)(1). Haller v. Wallis, 89 Wn.2d 539, 544, 573 P.2d 1302 (1978). "Absent

fraud, the actions of an attorney authorized to appear for a client are binding on the client

at law and in equity. The 'sins of the lawyer' are visited upon the client." Rivers v. Wash-

State Conference of Mason Contractors, 145 Wn.2d 674, 679, 41 P.3d 1175 (2002)

(footnotes omitted).
No. 71994-7-1/8




      The trial court did not abuse its discretion in denying Nadia's motion to vacate the

dissolution decree. We affirm.




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WE CONCUR:




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