                                                                                           FILED
                                                                                 COURT 01* APPEALS
    IN THE COURT OF APPEALS OF THE STATE OF                                               WADS ikGTON
                                                                               7915 AUG 18 APS 9: 03
                                                  DIVISION II
                                                                               STATE OF WASHINGTGN
 In re the Marriage of:                                                               4o. 458 -      8- II
                                                                                B,
                                                                                          bEP TY
 TODD EVAN SCHNEIDERMAN,

                                        Appellant.


             and




 JULIE TERESA RODGERS,                                                   UNPUBLISHED OPINION




          MAxA, P. J. —       Todd Schneiderman appeals the trial court' s order vacating provisions of

Schneiderman         and   Julie Rogers' dissolution decree   under   CR 60( b)( 3)      and ( 4),   as well as the trial .



court' s award of attorney fees to Rogers.

          We hold that the trial court abused its discretion under CR 60( b)( 4) by vacating the

dissolution decree because ( 1) Rogers did not rely on Schneiderman' s misrepresentations

regarding the reliability       of   quarterly bonuses from his business, ( 2) the record does not support a


          that Schneiderman                                      regarding his       anticipated   2011 income, ( 3)
finding                              made misrepresentations




Schneiderman cannot be held responsible for his attorney' s misconduct regarding the attorney' s

trust   account, (   4) any misconduct Schneiderman committed regarding his attorney' s trust account

did not prevent Rogers from fully and fairly presenting her case, and ( 5) Schneiderman' s pretrial

discovery violations did not prevent Rogers, from fully and fairly presenting her case. We also

hold that the trial court erred in vacating the dissolution decree under CR 60( b)( 3) because

Rogers failed to file her amended motion to vacate based on that subsection within a year after


entry   of   the dissolution decree. However,        we affirm   the trial   court' s award of       attorney fees to
45874 -8 -II




Rogers does not challenge the trial court' s authority to award attorney fees or its express finding

that Schneiderman engaged in intransigent conduct.


              We reverse and vacate the trial court' s order vacating the spousal maintenance provisions

and asset/ liability division of the parties' dissolution decree of dissolution under CR 60( b)( 3) and

 4).        But we affirm the trial court' s order awarding Rogers attorney fees. We remand to the trial

court for proceedings consistent with this opinion.


                                                             FACTS


              Schneiderman and Rogers married in April 1990. The couple had two daughters. They

separated in October 2009, and Schneiderman filed for dissolution of the marriage in December

2009. The case was assigned to Judge Karlynn Haberly, who handled all pre-trial matters.

The case ultimately was tried in July 2011 before an agreed referee.

Schneiderman Income


               Schneiderman is an eye surgeon. He owns a surgical ophthalmology practice along with

a partner who         became     a   50   percent owner   in September 2008. Another doctor joined the practice


as     an    associate   in 2010.    Schneiderman also holds minority interests in two other entities that

apparently do not generate significant income.

               Since 2008, Schneiderman' s income from his ophthalmology practice has had two main

components: (            1) a $ 35, 000 monthly draw, which included a $ 5, 000 management fee and ( 2)
                                               which                            to          bonuses."   Clerk' s Papers ( CP)
quarterly distributions                                the
                                 of profits,                 parties referred        as "




 at    8.    Each partner' s quarterly bonuses were calculated by subtracting the practice' s overhead

 and expenses from gross revenue, splitting 30 percent of that amount between the two partners,

 and dividing the remaining 70 percent based on production. Schneiderman also received an

 income shift consisting of 10 percent of his partner' s income as a buy in to the practice.



                                                                  2
45874 -8 -II




        Throughout the dissolution proceedings, Schneiderman consistently stated that his

monthly salary was $ 35, 000 and argued that this was his only reliable source of income.

However, Schneiderman also disclosed to Judge Haberly and to Rogers that he received

quarterly bonuses. For instance, a week after Schneiderman filed the dissolution petition, Judge

Haberly entered a temporary order providing for the payment of various expenses from
Schneiderman'   s"   monthly income"    of $35,   000   per month.   CP   at   933. But the order further


stated that division or use of Schneiderman' s future quarterly bonus income would be based on

future court orders or agreements between the parties. And a subsequent order also addressed


allocation of Schneiderman' s quarterly bonuses.

        Rogers was informed of the amounts of Schneiderman' s bonuses for 2010 and the first

quarter of 2011 before trial. On January 7, 2011, Schneiderman filed a motion regarding

distribution of his 2010 bonuses, disclosing that the first quarter bonus totaled $70, 000 and the

unpaid bonuses for the other three quarters totaled $ 215, 000. 1 On April 8, 2011, Schneiderman

filed a motion regarding the distribution of his first quarter 2011 bonus, which he disclosed
totaled $ 61, 506.


        Rogers also was aware that Schneiderman' s annual income far exceeded the $420, 000 he

received in monthly draws from his practice. The parties' joint tax returns showed that

Schneiderman    earned   total income   of $1,   024, 295 for 2008   and $     1, 024, 356 for 2009.


Schneiderman' s draft 2010 tax return showed total income of $769, 147. This amount was

consistent with Schneiderman' s April 2011 motion regarding his first quarter 2011 bonus, in

which his business consultant stated that his income for 2010 ended up being around $730, 000.



 1 Schneiderman claimed that an accounting software problem had delayed the calculation and
payment of the last three bonuses in 2010.




                                                         3
45874 -8 - II



Attorney Trust Fund

         In December 2009, Judge Haberly ordered that the parties' current checking account be

held in the trust account of Schneiderman' s attorney, James Province, after certain disbursements

were made. The remaining funds were to be used only by agreement or court order. In March

2010, Judge Haberly ordered Schneiderman to pay $6, 000 from each quarterly bonus to Rogers

and to place the remainder into trust to be divided by agreement or further court order.

         In July 2010, Schneiderman acknowledged that he had not placed any amounts in trust

because both parties were paying necessary expenses from those funds. Rogers learned after

trial that Schneiderman did not transfer any funds into Province' s trust account until October.

2010. However,    by   the time   of   trial there was $   125, 296 in the trust account.


Rogers' Discovery Requests


         The parties jointly retained certified public accountant ( CPA) Steve Kessler to value

Schneiderman' s business interests. In March 2010, Judge Haberly entered an order requiring

Schneiderman to provide to Rogers' counsel all documents necessary to value Schneiderman' s

practice, surgery, center, and other business interests. Counsel then could provide those

documents to Kessler.


         In May 2010, Rogers submitted to Schneiderman a set of 42 interrogatories and 76

requests for production. Schneiderman provided responses in July 2010. His response included

producing over 3, 0.00 pages of materials, primarily bank statements, general ledgers, and checks.
         In September 2010, Rogers filed a motion to compel answers to the interrogatories and

requests for production, claiming that Schneiderman' s responses were evasive or incomplete.

Rogers' attorney prepared a chart showing a detailed list of Schneiderman' s failure to answer

 interrogatories and to provide requested documents relating to his actual income. Rogers



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45874 -8 -II




claimed that many of Schneiderman' s responses were deficient because the responses simply

stated that the requested information had been provided to Kessler. In addition, Rogers argued


that Schneiderman failed to comply with an agreement to show specifically what documents in

Kessler' s possession corresponded to relevant requests for production.


           Judge Haberly denied Rogers' motion to compel. The trial court stated that

Schneiderman had answered and responded to the discovery requests. Rogers did not file any

additional discovery motions before trial.

Trial bReferee


           In July 2011, the parties stipulated to resolve all remaining dissolution issues in a trial

before a referee, pursuant to RCW 4.48. 130. Attorney Robert Beattie was selected as the referee.

Trial was held in July 2011.

           One issue at trial was the amount of Schneiderman' s past and future income, which

related to Rogers' claim for spousal maintenance. In her trial brief, Rogers requested spousal

maintenance of $         25, 000 based      on   Schneiderman'     s " enormous   income."   CP at 2770. Rogers


argued, "    The    court   is   reminded   that [ Rogers']     temporary order of maintenance was based only

on [ Schneiderman' s] base salary of roughly $40, 000 per month and did not fully recognize his

annual income which includes significant bonuses that generate a monthly income of $83, 300 a

month when averaged over              the year."     CP   at   2783- 84. Rogers based the $ 83, 300 figure on


Schneiderman'        s   income in 2008 ($ 1, 024, 295)         and   2009 ($ 1, 024, 356). She also argued that


   s]   imilar   earnings are anticipated        for 2011."     CP at 2784.


           Schneiderman' s 2008 and 2009 tax returns and his draft 2010 tax return were submitted


as joint trial exhibits. These tax returns showed that Schneiderman' s 2010 income had decreased

                                                          to $ 769, 147.   Schneiderman          testified regarding   his
significantly from the                      two
                                 previous         years                                   also
45874 -8 -II




anticipated 2011 income. He estimated that in addition to his base draw of $420, 000 annually,

he   expected   to   receive   quarterly bonuses   totaling $ 150, 000 to $ 200, 000 for the year. In total,

Schneiderman         estimated   that his total 2011 income      would    be $ 550, 000 to $ 600, 000.


         It appears that Province submitted a self -drafted ledger of his trust account to the referee,

which held the parties' marital funds. Neither Schneiderman nor Province submitted

authenticated bank statements for the trust account.


         Following trial, the referee issued an oral decision. With regard to Schneiderman' s

income, the referee found that Schneiderman' s 2010 income was most reflective of his future

income because it was the most recent income information and because it was consistent with

future income forecasts. The          referee stated, "   The dilemma always is to figure out what is future


income. And the only way to resolve that realistically is to look at the most recent years and

listen to the testimony." IV Report         of   Proceedings     at   715. The referee calculated that


Schneiderman earned approximately $55, 000 in monthly income.

         The referee awarded Rogers monthly maintenance of $11, 000 from August 2011 through

July   2018    and $   7, 000 from August 2018 to     July   2021.     The referee also awarded Rogers a


significant amount of community assets and all funds still held in Province' s trust account.

Rogers ended up receiving 53 percent of the community assets. On October 14, 2011, Judge

Haberly entered a decree of dissolution and findings of fact and conclusions of law based on the
referee' s decision.2




2 Rogers appealed the order, but the appeal was dismissed by this court in October 2012 after
Rogers failed to file an opening brief.



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CR 60( b) Motion to Vacate the Dissolution Decree


         On October 12, 2012, just less than a year after entry of the dissolution decree, Rogers

filed a motion to show cause why the dissolution decree should not be vacated under CR 60(b).

This motion was based on her claim that Schneiderman made false statements regarding his 2011

income that could not have been discovered before trial because of his false testimony and

failure to   respond   to   discovery.' Rogers produced a spreadsheet created by Joseph Forde,

Schneiderman'    s   CPA, purportedly    demonstrating    that Schneiderman   earned $   108, 686 per month


in the first six months of 2011.


         Schneiderman opposed the motion to show cause and made a motion requesting that


Judge Haberly hear the CR 60( b) motion before her retirement, or in the alternative, that the

motion be dismissed. A court commissioner referred the motion to show cause to Judge Haberly

for consideration. In December 2012, Judge Haberly ruled that that she did not need to be the

judge to hear the motion. Rogers' motion was dormant for the next eight months.

Attorney Misconduct

         In December 2012, Rogers filed a grievance with the Washington State Bar Association

 WSBA) alleging that Schneiderman' s lawyer, Province, had mishandled the trust funds

belonging to the marital community. Province did not cooperate with the WSBA' s investigation,
and Schneiderman also chose not to participate in the investigation.

         In March 2013, the WSBA mailed a report to Rogers and Province stating the WBSA' s

analysis and conclusion. The WSBA uncovered evidence that Province had mishandled funds

belonging the parties' marital community by transferring at least $ 14, 000 from his trust account


 Rogers also argued that the dissolution decree did not distribute a major asset and that she had
discovered an undisclosed trust and bank account. These claims were not pursued in the trial
court and have not been addressed in this appeal.


                                                      7
45874 -8 -II




into his general account between October and December 2010 and drawing $ 30,000 from the

parties' marital community to give to another client in December 2010. The report also

concluded that on June 15, 2011, Province had given a false accounting of this and other

transactions to Rogers and her lawyers. Finally, the report concluded that Province had

intentionally failed to disclose multiple transactions that he made with the marital community

funds in 2010     and   2011.   However, the WSBA was unable to determine if Rogers ultimately

received all money owed to her.

Amended Motion to Vacate


        In August 2013, Rogers filed an amended motion for an order to show cause to vacate the

decree of dissolution. Rogers asserted that ( 1) the dissolution decree should be vacated under

CR 60( b)( 3) because the WSBA report documenting Province' s misconduct regarding the trust

account and Forde' s spreadsheet constituted newly discovered evidence, and ( 2) the dissolution

decree should be vacated under CR 60( b)( 4) because Schneiderman engaged in fraud,

misrepresentation, and willful discovery violations regarding the amount of his income and the

trust account. Because Judge Haberly had retired, the case was assigned to a different judge.

         The trial   court   heard   argument on   the   motion   for   an order   to show   cause.   Schneiderman


argued that the evidence was insufficient for the issuance of the show cause order. The trial

court granted Rogers' motion for an order to show cause. The parties then submitted additional

briefing and declarations, which included extensive documents and transcripts. Rogers also

submitted new evidence: a chart showing monthly Medicare revenues for Schneiderman' s

practice from 2009 through 2012, obtained through a Freedom of Information Act request. The

 document showed that during the first seven months of 2011, the practice had received higher

 Medicare      revenues   than any   previous seven- month period.
45874 -8 -II




Vacation of Dissolution Decree


         In December 2013, the trial court issued an order vacating the spousal maintenance

provisions and asset/ liability division of the parties' dissolution decree under CR 60( b)( 3) and

4).   The trial court issued factual findings that ( 1) Schneiderman made deliberate, false

representations regarding his income; ( 2) Schneiderman was involved with Province' s trust


account misconduct and also engaged        in his   own misconduct      regarding the trust   account; (   3)


Schneiderman engaged in discovery violations regarding the failure to provide records relating to

his income and the trust account; and ( 4) the WSBA report, the Forde spreadsheet, and the


Medicare reimbursement summary sheet were newly discovered evidence that could not have

been discovered in time to move for a new trial. The trial court entered conclusions of law that

clear and convincing evidence supported vacation of the dissolution decree under both CR

60( b)( 3) and ( 4).


          The trial court awarded Rogers $ 58, 299 in attorney fees for the CR 60(b) proceedings.

after   finding   that Schneiderman   had " engaged in   a pattern of   intransigent   conduct."   CP at 2273.


          Schneiderman appeals.


                                                ANALYSIS


A.        VACATION UNDER CR 60( b)( 4)


          The trial court vacated the dissolution decree under CR 60( b)( 4) based on

Schneiderman' s misrepresentation and/ or misconduct relating to his income, the Province trust

account, and pretrial discovery. Schneiderman challenges many of the trial court' s factual




                                                         so
45874 -8 -II




findings and argues that the trial court erred in vacating the dissolution decree under CR

60( b)( 4). 4 We agree.

          l.'    Legal Principles


        CR 60( b)( 4)    authorizes a      trial   court   to   vacate a   judgment for "[ fJraud ( whether heretofore


denominated intrinsic        or extrinsic),   misrepresentation, or other misconduct of an adverse party."


However, vacation of a judgment is an extraordinary remedy. See Dalton v. State, 130 Wn. App.

653, 665, 124 P. 3d 305 ( 2005).        Therefore, there must clear and convincing evidence of fraud,

misrepresentation, .or misconduct in order to vacate a judgment. Id.

          In order to base vacation of a judgment on fraud, the trial court must make findings of

fact and conclusions of law regarding each of the nine elements of common law fraud. In re

                             41 Wn.           248, 252, 703 P. 2d 1062 ( 1985).          But because
Marriage        of Maddix,            App.

misrepresentation or other misconduct also are grounds for vacation of a judgment, the moving

party may not be required to prove all the elements of fraud to obtain relief under CR 60(b)( 4).
Mitchell    v.   Wash. State Inst. of Pub.         Policy,   153 Wn.   App.     803, 825, 225 P. 3d 280 ( 2009). For


instance, vacation may be appropriate even if the misrepresentation was innocent or negligent

rather than willful. Peoples State Bank v. Hickey, 55 Wn. App. 367, 371, 777 P. 2d 1056 ( 1989).

          Even if the, moving party demonstrates that the other party engaged in misrepresentation,

a trial court may grant relief under CR 60( b)( 4) only if the moving party presents clear and

convincing evidence of at least two additional elements. See id. at 371- 72. First, the moving


4 Schneiderman also argues that Rogers failed to file her motion to vacate within a reasonable
time asrequired by CR 60( b). However, the record clearly shows that Schneiderman never

argued before the trial court that either the original motion or the amended motion for relief
under   CR 60( b)( 4)    was not   filed   within a reasonable         time. Under RAP 2. 5( a), Schneiderman

cannot make this argument for the first time on appeal. Therefore, we do not address this
argument. Schneiderman did argue in the trial court that Rogers did not meet the one- year
deadline for      relief under   CR 60( b)( 3), which we discuss below.



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party must have relied on or been misled by the misrepresentation. See id. Reasonable reliance

is an element of actionable misrepresentation. See Dewar v. Smith, 185 Wn. App. 544, 561- 62,

342 P. 3d 328 ( 2015).


            Second, there must be some connection between the misrepresentation and obtaining the

judgment. See Hickey, 55 Wn. App. at 372. The rule is aimed at judgments that were unfairly

obtained.        Dalton, 130 Wn.        App.   at   668. Therefore, the wrongful conduct must have " prevented


a   full   and   fair   presentation"   of   the moving party'   s case.   Id. at 665, 668. Fraud or misconduct


that is harmless will not support a motion to vacate. 5 4 KARL B. TEGLAND, WASHINGTON

PRACTICE: RULES PRACTICE § 8, at 613 ( 6th.ed. 2013).


            The decision to grant or deny a motion to vacate a judgment under CR 60( b) is, within the

trial court' s discretion. Jones v. City ofSeattle, 179 Wn.2d 322, 360, 314 P. 3d 380 ( 2013).

Therefore, we review CR 60( b) orders for abuse of discretion.6 Tamosaitis v. Bechtel Nat' l, Inc.,

182 Wn.          App.    241, 254, 327 P. 3d 1309,      review   denied, 181 Wn.2d 1029 ( 2014). A trial court


abuses its discretion if its decision is based on untenable grounds or reasons. _Id.

            When the trial court makes findings of fact and credibility determinations based on

affidavits alone, we must determine whether substantial evidence supports those findings and

whether the findings support the conclusions of law. In re Marriage ofRideout, 150 Wn.2d 337,

350- 51, 77 P. 3d 1174 ( 2003).              However, because the standard of proof in CR 60( b)( 4) motion is




5 On the other hand, the moving party is not required to show that the misrepresentation
materially affected the outcome of the trial. Mitchell, 153 Wn. App. at 825.

6 Schneiderman argues that we should apply a de novo standard in reviewing the trial court' s CR
60( b) order because the trial court based its decision entirely on a review of affidavits and
documentary evidence. We disagree. Here, the trial court had to weigh the materials submitted
and resolve conflicts in the evidence. Under these circumstances, a de novo review is not
appropriate.            See In Re Marriage of Rideout, 150 Wn.2d 337, 350- 51, 77 P. 3d 1174 ( 2003); In Re

Parentage ofdannot, 149 Wn.2d 123, 128, 65 P. 3d 664 ( 2003).

                                                                 11
45874 -8 - II




clear and convincing evidence, the substantial evidence must be highly probable. Dalton, 130

Wn. App. at 666. Therefore, our review is limited to determining whether the evidence shows

that it was highly probable that Schneiderman engaged in misrepresentation or misconduct, that

Rogers relied on any misrepresentation, and that any misrepresentation or misconduct prevented

Rogers from fully and fairly presenting her case. Id. at 666, 668.

          2.     Misrepresentation Regarding Income

          The trial court found " clear and convincing evidence of [Schneiderman' s]

misrepresentation and misconduct regarding his income" throughout the dissolution case. 7 CP at
870. The trial         court   primarily based this     conclusion on    two findings: ( 1) "[   Schneiderman]


regularly indicated to the          court, [ Rogers],    and the referee that his income was $ 35, 000 per month


and that any additional distributions were not predictable or reliable, even though the evidence

shows    that [ Schneiderman] consistently            received   quarterly distributions," CP at 870; and ( 2)


   Schneiderman] testified during the trial by referee that his income was declining for 2011 at a

time when he knew or should have known that his 2011 income would be as high or higher than

previous years."          CP at 870.
                                                                                                                       l




          We hold        that the   evidence supported     the trial   court' s   finding   that Schneiderman   made




misrepresentations regarding the reliability of his quarterly distributions, but that these

misrepresentations do not support relief under CR 60( b)( 4) because there is no evidence that

Rogers or the referee reasonably relied on them or that they prevented a full and fair presentation

 of Rogers' case. We also hold that the evidence did not support the trial court' s finding that




  The trial court suggested that Schneiderman engaged in fraud regarding his expected income,
 but   also    found    misrepresentation "[ r] egardless of whether [ Schneiderman' s] statements regarding
 his income      rise   to the   level of common law fraud." CP at 871. On appeal, Rogers addressed

 only misrepresentation. As a result, we do not address fraud.

                                                               12
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Schneiderman made misrepresentations of existing facts regarding his 2011 income.

Accordingly, we hold that the trial court abused its discretion by vacating the dissolution decree

on these grounds.


                     a.     Statements Regarding Additional Distributions

           We agree with the trial court that Schneiderman or his counsel repeatedly told Rogers,

Judge Haberly,        and   the   referee   that his monthly income   was $   35, 000, and that his quarterly

distributions should not be counted as monthly income because they were unreliable. However,

the issue is whether these representations to the court amounted to misrepresentation or


misconduct sufficient to vacate the dissolution decree under CR 60( b)( 4).

            The threshold question is whether Schneiderman' s statements were misrepresentations;


i. e.,   false statements of an existing fact. Here, Schneiderman' s statements that his only

guaranteed income was $ 35, 000 per month were true. As Schneiderman points out, his

statements " reflected the undisputed fact that bonuses were not set in time or amount, because

they depended on a number of factors including hours worked, patients seen, and accounts

receivable."      Br. of Appellant at 27. His practice' s quarterly distributions involved a division of

net profits for the quarter. Whether or not a bonus was paid would depend on whether the

practice had any net profits. There is nothing in record suggesting that quarterly bonuses were

guaranteed, and in fact, Schneiderman testified that there had been times that quarterly bonuses

were not paid.




            Further, the implication of Schneiderman' s statements that his quarterly distributions

would not be a reliable source of his income in the future would not support a finding of

misrepresentation. Misrepresentation requires a false statement of an existing fact. Landstar

Inway, Inc.     v.   Samrow, 181 Wn.          App.   109, 124, 325 P. 3d 327 ( 2014). Whether or not quarterly




                                                              13
45874 -8 -II




distributions would be a reliable source of Schneiderman' s income in the future did not involve


an existing fact.

        However, Schneiderman' s repeated claim that the quarterly bonuses did not constitute

reliable income appears to be false based on the income information in the record. In both 2008


and 2009, Schneiderman earned approximately $600, 000 more than his guaranteed monthly

income. Even in 2010 Schneiderman earned over $250, 000 more than his guaranteed monthly

income. Therefore, in the recent past the quarterly distributions clearly had been a reliable

source of Schneiderman' s income. Accordingly, we hold that sufficient evidence supported the

trial court' s finding that Schneiderman' s statements that his quarterly distributions were not a

reliable source of his income were false statements of an existing fact.

        The next question is whether Rogers or the referee reasonably relied on the truth of

Schneiderman' s misrepresentation that his quarterly distributions were not a reliable source of

income or the misrepresentation prevented a full and fair presentation of Rogers' case. 8 Dalton,

130 Wn. App. at 668; Hickey, 55 Wn. App. at 372.

        The record is clear that Rogers did not accept Schneiderman' s representations about the


unreliability    of   the quarterly distributions. Schneiderman' s 2008, 2009, and 2010 tax returns


were submitted as trial exhibits, so both Rogers and the referee knew that in recent years

Schneiderman had received substantial income above his guaranteed monthly payments.

Further, Rogers expressly argued that Schneiderman' s 2008 and 2009 income should be used to

determine      spousal maintenance:    In her trial brief, Rogers   argued, "   The court is reminded that the


temporary order of maintenance was based only on his base salary of roughly $40, 000 per month




8 Because we conclude that Schneiderman' s testimony regarding his monthly income was not
false, we do not address whether Rogers reasonably relied on these statements.


                                                      14
45874 -8 -II




and did not fully recognize his annual income which includes significant bonuses that generate a

monthly income      of $83,   300    a month when averaged over              the   year."   CP at 2783- 84. Rogers


based the $ 83, 300 figure      on   Schneiderman'         s    income in 2008 ($ 1, 024, 295) and 2009


  1, 024, 356). She       also argued   that "[   s]   imilar   earnings are anticipated     for 2011."   CP at 2784.


         The referee also did not rely on Schneiderman' s statements that his only reliable income

was $ 35, 000 a month. Instead, the referee based his decision on a finding that Schneiderman' s

monthly income in the future would be approximately $55, 000. This necessarily included a

finding that in the future Schneiderman would receive quarterly distributions totaling $220, 000

per year.




         Finally, the ultimate question is whether Schneiderman' s misrepresentation regarding the

reliability of quarterly distributions in the past prevented a full and fair presentation of Rogers'
case.   See Dalton, 130 Wn.          App.   at   668. Here, Schneiderman' s misrepresentation did not


prevent Rogers from arguing that Schneiderman' s future income should be based on the

significant    quarterly distributions he         received       in 2008   and   2009.   Instead, it appears that Rogers


and the referee simply ignored them.

         Accordingly, we hold that although Schneiderman' s statements that his quarterly

distributions were not reliable constituted a misrepresentation, neither Rogers nor the referee


relied on them and they did not prevent Rogers from fully and fairly presenting her case.

Therefore, these misrepresentations do not support relief under CR 60( b)( 4).

                   b.      2011 Income


         Schneiderman testified at trial that in 2011 he only anticipated receiving quarterly

distributions amounting to $          150, 000 to $ 200, 000, and therefore his total 2011 income likely

would amount       to $   550, 000 to $600, 000, including his base draw of $420, 000. The trial court



                                                                   15
45874 -8 - II




found that this testimony constituted a misrepresentation because the Forde spreadsheet showed

that Schneiderman'       s   2011 income     was $   108, 686 per month for the first part of 2011 and that


another document showed that his practice' s Medicare revenues were higher in the first part of

2011 than in previous years. The trial court found that Schneiderman had not provided any

documentation to contradict his actual 2011 income through the trial by referee.

         The record shows that the trial court misinterpreted the Forde spreadsheet, overlooked


Schneiderman' s evidence regarding his actual income for the first half of 2011, and improperly

relied on a Medicare document that had dubious relevance. As a result, the evidence does not

support a finding that it was highly probable that Schneiderman misrepresented his 2011 income.
         First, Forde'       s spreadsheet showed      that Schneiderman'       s   2011 income   was $   1, 304, 233,


which derived from the ophthalmology practice' s K- 1 form, less certain expenses. The

spreadsheet      does   not state   that Schneiderman actually        received $     108, 686 in each month, nor does


Rogers provide any evidence that Schneiderman received those amounts each month. In fact, it
was undisputed throughout the dissolution proceedings that Schneiderman received $35, 000 per

month and quarterly bonuses. Given this evidence, the only reasonable interpretation of the

spreadsheet is that Forde divided Schneiderman' s 2011 annual income by 12, and allocated

  108, 686 to    each month       during   2011.    As a result, there is insufficient evidence to support the


trial court' s finding that Schneiderman had earned more in the first half of 2011 than the

  550, 000 to $ 600, 000 Schneiderman testified that he expected to receive for the entirety of 2011.

          Second, despite the trial court' s contrary finding, Schneiderman did produce evidence of

his   actual    income   during   the   first half of 2011.    Schneiderman submitted an exhibit showing his

actual   distributions through the         end of   July   2011,   which   totaled $ 356, 506.   The distributions


included his $ 35, 000        monthly income, a first quarter bonus of $61, 506, and an undated $ 50, 000



                                                               16
45874 -8 - II




payment    described only   as "   distribution."   CP   at   355.   Significantly, these distributions show that

Schneiderman' s monthly income through July 2011 was approximately $50, 930 per month or

approximately $611, 160 per year. This evidence is consistent with Schneiderman' s testimony

that he expected his total 2011 income to be $ 550, 000 to $ 600, 000. And Rogers never produced


any direct evidence that Schneiderman actually received more than $356, 506 during the first

seven months of 2011 or that he should have known that he would earn substantially more than

he estimated in the last five months of.the year.


         Third, the Medicare document that Rogers obtained pursuant to a Freedom of


Information Act request does show that the total Medicare payments that Schneiderman' s


practice received during the first seven months of 2011 were higher than the amounts received in

the last seven months of 2010 and significantly higher than the amounts received in 2009.

However, the relevance of this document with regard to potential misrepresentation is suspect.

Because the document    contains       2012   numbers,    it   was prepared sometime     in 2013. Rogers has


provided no evidence that this information was available to Schneiderman at the time of trial. In

addition, Schneiderman explained that the document showed Medicare payments for all three

doctors working at the practice, and Rogers provided no evidence regarding the impact of

Medicare payments to the entire practice on Schneiderman' s income. Finally, Rogers provided

no evidence regarding the practice' s non -Medicare income during the first half of 2011.

Presumably, increased Medicare payments during the first part of 2011 would not result in
increased income if non -Medicare payments had decreased.9




9 In addition, the practice' s Medicare payments for 2010 were significantly higher than Medicare
payments for 2009 even though Schneiderman' s 2010 income was significantly lower than his
2009 income. This calls into question the relationship between Medicare payments and
Schneiderman' s income.



                                                              17
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        At best, the evidence on which the trial court relied in finding misrepresentation gave rise

to an inference that Schneiderman knew or should have known at the time of trial that his 2011

income would be significantly greater than 2010. However, the legal standard is clear and

convincing     evidence —     whether the evidence in the record showed that it was highly probable

that Schneiderman          misrepresented   his 2011 income. Dalton, 130 Wn.   App.   at   666. We hold that


the evidence does not support a finding that it was highly probable that Schneiderman knew or

should have known at the time of trial that his 2011 income would be significantly higher than

the estimated amounts in his trial testimony.

        3.     Misconduct Regarding Trust Account

        The trial court found " significant misconduct, misrepresentation, and mismanagement of


the funds" that were held in Province' s trust account and that the referee ultimately awarded .to

Rogers. CP     at   871.    Schneiderman argues that the trial court erred in vacating the dissolution

decree on this basis because the finding was based only on Province' s misconduct, not on his

own misconduct. We hold that the trial court erred by vacating the dissolution decree on the

basis of Province' s misconduct, and also hold that the trial court' s findings were not supported


by evidence that it was highly probable that Schneiderman himself engaged in misconduct

regarding Province' s trust account.

                    a.     Province Misconduct


         As the trial court noted, the WSBA investigation concluded that Province had engaged in

serious criminal conduct involving fraud, theft, and dishonesty regarding the trust fund. The

WSBA investigation also concluded that Province provided a false accounting and ledger to

Rogers and to the referee when Province knew the information was false. However, the trial

court made no finding that Schneiderman was involved in this misconduct. In fact, the trial court



                                                        18
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expressly found that "[        i] t is unknown the extent to which [ Schneiderman] was involved in the

misconduct      regarding     the trust   account."       CP     at   873 (   emphasis added).          As a result, the issue here


is whether Schneiderman can be held responsible for Province' s misconduct under CR 60( b)( 4).

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

client. Rivers v. Wash. State Conference ofMason Contractors, 145 Wn.2d 674, 679, 41 P. 3d

1175 ( 2002).      However, the cases holding that the actions of an attorney are binding on the client

generally involve the attorney' s conduct in the course of litigation. See id. at 679- 80. Here,

Province' s role with regard to the trust account was different. In a sense, he was operating as an

officer of the court in holding funds in trust for the benefit of both parties and in providing an

accounting of those funds to Rogers and the referee. He technically was not acting as

Schneiderman' s attorney in this context. Rogers has cited no authority for the proposition that

the misconduct of an attorney regarding the misuse of trust account funds should be binding on

his client.


         Further, there are cases holding that a client will not be held responsible for certain

attorney misconduct committed without the client' s authorization. Demopolis v. Peoples Nat' l
Bank of Wash., 59 Wn.           App.   105, 117- 18, 796 P. 2d 426 ( 1990) (                 client not liable for attorney' s

unauthorized       defamatory     communications);           Fite v. Lee, 11 Wn. App. 21, 29, 521 P. 2d 964

 1974) (   client not   liable for attorney'       s abuse of process outside               the   scope of   agency). In Fite, we


stated, "[    b] y its very   nature, an abuse of        legal    process      by   an   attorney ...    violates an attorney' s


oath,   his   canons of ethics, and       his   duty    to the   public as an officer of          the court....    Accordingly,

the scope of the attorney' s implied authority as an agent should not, as a matter of law, extend to

acts which constitute an abuse of               legal   process."       11 Wn. App. at 28- 29.




                                                                      19
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        Here, Province' s misconduct was similar to that discussed in Fite in that Province

violated the canons of professional ethics and his duties to the public as an officer of the court.

And Rogers submitted no evidence that Schneiderman knew of or consented to Province' s

misconduct. Based on our discussion of agency principles in Fite, it necessarily follows that

Province' s misconduct was undertaken outside the scope of his agency to bind his client,

Schneiderman.


        We hold that for    purposes of   CR 60( b)( 4), Schneiderman is not responsible for


Province' s misconduct regarding his trust account. Therefore, we hold that the trial court abused

its discretion to the extent that it vacated the dissolution decree based on Province' s misconduct.

                 b.   Schneiderman Misconduct


        Apart from Province' s misconduct, the trial court found that Schneiderman engaged in

misconduct because he failed to deposit funds into a trust account as ordered in Judge Haberly' s

temporary order in December 2009. The trial court noted that Schneiderman did not deposit any
funds into the trust account until October 2010. Even then, the trial court noted that


Schneiderman did not comply with the court' s order requiring him to place all distributions

received from his business into the trust account. The trial court cited as an example the fact that

Schneiderman     used $   119, 000 of his 2010 distributions to pay taxes before Judge Haberly ruled

on the matter.


         However, the record shows that to the extent Schneiderman engaged in misconduct by

not depositing funds in the trust account before October 2010 and by not depositing certain funds
in the trust account as required, Rogers was aware of this misconduct long before trial. The

temporary order required that the parties' bank account be placed in a trust account. On July 8,
2010, Schneiderman filed a declaration.with the court acknowledging that funds had not yet been



                                                     FIX
45874 -8 -II




transferred to a trust account. Schneiderman explained that he had not transferred the funds

because both parties needed to access those funds to pay taxes and other expenses.

        With   regard   to the $   119, 000 tax payment, Schneiderman filed a motion asking that he be

allowed   to pay $ 119, 000   toward taxes from his $ 215, 000 bonus distribution for the last three


quarters of 2010. The trial court may have been referring to the fact that Schneiderman paid the

taxes before Judge Haberly ruled on the motion. However, in her order on the motion, Judge

Haberly did not question the payment of the taxes and instead entered an order regarding the

allocation of the remaining funds.

        As with misrepresentation, a party' s misconduct will support relief under CR 60(b)( 4)

only if that misconduct prevented the moving party from fully and fairly presenting his or her

case. See Dalton, 130 Wn. App. at 668. Here, because Rogers knew about Schneiderman' s

alleged misconduct, it could not have affected her ability to present her case at trial. The deposit

of funds into the trust account was an ongoing issue during the course of the litigation.

Therefore, Rogers had an opportunity before trial and at trial to explore whether Schneiderman

had deposited all the funds into the trust account that he was required to deposit.

          We hold that the trial court abused its discretion to the extent that it vacated the

dissolution decree based on Schneiderman' s misconduct regarding depositing funds into the trust

account because there is no evidence that Schneiderman' s misconduct prevented Rogers from

fully and fairly presenting her case.

          4.   Discovery Violations

          The trial court found that Schneiderman " willfully violated the discovery rules by failing

to supply complete and        accurate   information regarding his business income," CP at 874, which


constituted misconduct under CR 60( b)( 4) and was grounds for a new trial as a discovery




                                                       21
45874 -8 -II




sanction under      CR 37( b)( 2).    Specifically, the trial court found that many of Schneiderman' s

responses to interrogatories and requests for production regarding his income and businesses

stated, "   provided to Kessler" when in fact Kessler' s file showed that Schneiderman did not


actually provide him with the vast majority of the information labeled " provided to Kessler." 10
CP at 874- 75.


           A   willful   discovery   violation can constitute " misconduct" under      CR 60( b)( 4). See


Roberson v. Perez, 123 Wn. App. 320, 332- 33, 96 P. 3d 420 ( 2004). 11 One example of a

discovery violation is the failure to produce documents requested by the opposing party. Id. at

331- 33.


            Here, Rogers sent Schneiderman a lengthy set of interrogatories and requests for

production. Several of Schneiderman' s responses simply referred to information provided to

Kessler, the CPA jointly retained to value Schneiderman' s business interests. Rogers filed a

motion to compel discovery, arguing in part that the responses were deficient because

Schneiderman failed to show specifically what documents provided to Kessler corresponded to




10 The trial court also suggested that Schneiderman' s failure to provide records of the trust
account was a willful discovery violation. However, there is no evidence in the record that
Rogers made a discovery request for records regarding Province' s trust account. Rogers fails to
address this finding in her brief. As a result, we hold that Schneiderman' s failure to provide the
trust account records cannot be the grounds for CR 60( b)( 4) relief.

11 In Roberson, the trial court vacated two jury verdicts and ordered a new trial as a sanction for
discovery      violations.    123 Wn.    App.   at   333.   It appears that the basis for this ruling was CR
60( b)( 4). Id. at 331, 332- 33. However, the court' s analysis focused on a trial court' s authority to
provide sanctions for discovery violations under CR 37( b)( 2) rather than on a more traditional
CR 60( b)( 4) analysis. For instance, the court addressed the requirements for imposition of
discovery sanctions set forth in Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P. 2d 1036
 1997), including willful or deliberate conduct, substance prejudice, and the consideration of
lesser sanctions. Roberson, 123 Wn. App. at 333- 38.


                                                              22
45874 -8 -II



relevant requests for production. However, the trial court denied Rogers' s motion to compel,


stating that Schneiderman had answered the discovery requests.

        In conjunction with her CR 60( b) motion, Rogers prepared a chart analyzing the

discovery requests for which Schneiderman referred to materials provided to Kessler.. This,

analysis showed that Schneiderman had not actually provided to Kessler all the documents that

Rogers had requested. Schneiderman presents no evidence that he actually did produce all the

documents Rogers requested in discovery either directly to Rogers or to Kessler. Therefore, we

hold that the evidence is sufficient to show that it is highly probable that Schneiderman

committed discovery violations when he responded to discovery requests for documents by

stating that he was providing those documents to Kessler, when in fact he did not provide some

of those documents to Kessler.


        However, once again Rogers failed to show that.Schneiderman' s discovery violations

prevented her from fully and fairly presenting her case. First, Rogers knew that Schneiderman' s

discovery responses were deficient from her perspective because they did not identify what

documents had been provided to Kessler. That was one of the primary grounds for her motion to

compel.   Nothing   prevented   her from       doing      what she   did three         years   later —finding   out from

Kessler what documents Schneiderman had provided to him and comparing those documents

with Rogers' s discovery requests.

         In Roberson, Division Three          of   this   court stated   that "[   d] iligence is not a consideration in


                                trial   is                      remedy for         a   discovery   violation."   123 Wn.
determining    whether a new                 an appropriate




App. at 334. The court suggested that the use of discovery procedures constitutes the exercise of

appropriate diligence, and a party is justified in believing that the opposing party had fully and

completely responded to those requests. Id.



                                                              23
45874=8 -II




        However, the court in Roberson did not consider the requirement under CR 60( b)( 4) that


there be sufficient evidence to show that it was highly probable that the misconduct prevented

the moving party from fully and fairly presenting his or her case. Dalton, 130 Wn. App. at 668.

Here, Rogers was aware of a potential discrepancy between the documents requested and the

documents provided to Kessler. She had an opportunity to resolve that discrepancy by

investigating further, possibly propounding more discovery, and possibly bringing another

motion to compel discovery. The fact that she failed to take any of those steps eliminates the

necessary connection between Schneiderman' s discovery violations and the referee' s ruling.

         Second, even if we disregard Rogers' s failure to investigate further regarding

Schneiderman' s discovery responses, neither Rogers nor the trial court addressed whether any of

the documents Schneiderman failed to provide to Kessler were relevant to the dissolution trial.

A moving party under CR 60( b)( 4) must show some connection between the alleged misconduct

and entry -of the judgment. See Hickey, 55 Wn. App. at 372.

         Here, at the time of trial Rogers had Schneiderman' s personal income tax returns


showing his income for 2008, 2009, and 2010. Based on these tax returns, Rogers had the ability

to   argue —and   did         that Schneiderman' s future income likely would be similar to his
                        argue —



income in 2008 and 2009 and dissimilar to his income in 2010. There is no indication that any of

the other requested documents would have enabled Rogers to make a better argument.

         Information regarding Schneiderman' s 2011 income is different. Apparently,

Schneiderman provided no 2011 financial information regarding his ophthalmology practice or

any information regarding his 2011 personal income. However, Rogers' interrogatories and

requests for production did not request this information. Rogers' discovery requests were

propounded in May 2010. All of the discovery requests regarding his ophthalmology practice' s



                                                   24
45874 -8 -II




financial information              referred   to the   previous   five   years.   Similarly, Rogers requested that

Schneiderman provide his share of the net profits of his businesses, but only over the previous

five years. And Rogers' discovery requested documentation regarding Schneiderman' s earned

income during the past six months and requested his personal income tax returns only through

2010. There were no specific discovery requests for 2011 income information.

             We hold that there is insufficient evidence to show a high probability that

Schneiderman' s discovery violations prevented Rogers from fully and fairly presenting her case

or had any effect on the judgment. Accordingly, we hold that the trial court abused its discretion

in vacating the dissolution decree on this basis.

B.           VACATION UNDER CR 60( b)( 3)


             The trial court found that newly discovered evidence was grounds to vacate the

dissolution decree               under   CR 60( b)( 3).   However, Schneiderman argues that the trial court should


not have considered the allegations in Rogers' amended motion to vacate because the allegations

were filed nearly two years after entry of the dissolution decree, and by rule CR 60( b)( 3) motions

must be filed within one year after judgment. We agree.

             1.         Failure to Make Argument at Trial Court


             Rogers initially argues that Schneiderman failed to make his one- year deadline argument

at the trial court. But in response to Rogers' amended motion to vacate, Schneiderman filed a

declaration that asserted that the trial courtcould only consider Rogers' original motion and

declaration filed in October 2012 —and                    could not consider       any    other   documents —because CR 60


 expressly limits the filing date for a motion for an order to show cause to within [one] year of

           of     the   order,   along   with a   supporting   affidavit."   CP    at   283.   Schneiderman asserted that
entry


                                                                     be disregarded."          CP        283. The trial court
     a]   nything filed      after   the   one year mark should                                     at




                                                                    25
45874 -8 -II




subsequently addressed CR 60( b)( 3)' s one- year deadline at oral argument of the show cause

motion. 12.

          The record shows that Schneiderman did argue that the one- year deadline for filing

motions under CR 60( b)( 3) applied to the amended' motion and supporting materials. Therefore,

we hold that Schneiderman can raise that issue on. appeal.

          2.    One -Year Deadline for CR 60( b)( 3) Motions


          CR 60( b)   states   that motions to     vacate    judgments   under   CR 60( b)( 1), (   2) and ( 3) must be


filed not more than one year after the judgment. CR 6( b) prohibits enlargement of time under

CR 60( b).     Therefore, this time limit must be strictly followed.

          Here, Rogers' original motion was filed before the one- year deadline, but that motion did

not seek relief under CR 60( b)( 3) based on newly discovered evidence. Rogers did not move for

relief under    CR 60( b)( 3)   until she   filed her   amended motion       to vacate in August 2013 — 22



months after the judgment was entered. And Rogers cites no authority for the proposition that

her CR 60( b)( 3) motion can " relate back" to her earlier CR 60( b)( 4) motion and thereby avoid

the one- year time limit. Therefore, we hold that Rogers' CR 60( b)( 3) motion was untimely.

          The trial court expressly concluded that the dissolution decree should be vacated under

CR 60( b)( 3) based on newly discovered evidence: the WSBA report regarding Province' s

misconduct, the Forde spreadsheet regarding Schneiderman' s 2011 income, and the Medicare

reimbursement summary sheet for 2009- 2012. Because Rogers' CR 60( b)( 3) motion was .

untimely, we hold that the trial court erred in vacating the dissolution decree based on newly

discovered evidence.




 12 At the hearing on the merits of Rogers' motion to vacate the dissolution decree in December,
neither   party   addressed     the   one- year   deadline   under   CR 60( b)( 3), nor did the trial court.



                                                              ast
45874 -8 -II



C.         ATTORNEY FEES


           1.       Fees in Trial Court


           Schneiderman argues that the trial court erred by awarding Rogers attorney fees incurred

regarding her CR 60( b) motion. His only claim is that because the trial court erred in vacating

the dissolution decree, it also erred in awarding attorney fees.

           However, the trial court did not award attorney fees to Rogers as the prevailing party

under    CR 60( b).      Instead, the trial court awarded attorney fees under the authority of RCW

26. 09. 140, which allows courts to award attorney fees in dissolution cases regardless of which

party prevails. Further, the trial court based its attorney fee award on an express finding that

Schneiderman engaged in intransigent conduct. A trial court has authority to award attorney fees

based on a party' s intransigence. In re Marriage ofBobbitt, 135 Wn. App. 8, 30, 144 P. 3d 306

 2006).


           Schneiderman does not challenge the trial court' s authority to award attorney fees and

does not assign error to or present any argument regarding the trial court' s finding of

intransigence. Therefore, without addressing the merits of the trial court' s attorney fee rulings,

we reject Schneiderman' s claim of error regarding the trial court' s award of attorney fees. See

Cowiche Canyon            Conservancy     v.   Bosley,   118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992) (         we need




not consider arguments not supported by meaningful analysis or citation to pertinent authority).

               We affirm the trial court' s award of attorney fees to Rogers.

               2.   Fees on Appeal


               Rogers   also requests an award of        attorney fees   on appeal   based   on "   CR 60( b), RAP


18. 1(   a),    intransigence,   misconduct, and relative need and          ability to pay."   Br. of Resp' t at 50.

However, rather than arguing the basis for the recovery of fees she simply incorporates the



                                                               27
45874 -8 -II




argument made in her trial brief. We decline to award Rogers attorney fees based on this

argument. See Gardner v. First Heritage Bank, 175 Wn. App. 650, 676- 777, 303 P. 3d 1065

 2013) (   refraining from granting attorney fees when a party failed to provide argument in support

of its fee request).


                                                  CONCLUSION


           Vacation of a judgment under CR 60( b) is an extraordinary remedy. See Dalton, 130

Wn.    App.   at   665.   The record here simply does not support this remedy. We reverse and vacate

the trial court' s order vacating the spousal maintenance provisions and asset/liability division of

the   parties'   dissolution decree   of   dissolution   under   CR 60( b)( 3)   and ( 4).   However, we affirm the


trial court' s order granting Rogers her attorney fees. We remand to the trial court for

proceedings consistent with this opinion.


           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.




                                                                 MAXA, r J.


 We concur:




 L' r, J.




 SUTTON, J.




                                                           28
