                                                                                                                  IL_ED
                                                                                                            hT OF APPEALS
                                                                                                            DIVISION,, TJ
                                                                                                    201t1 JUN 12     AJifl: 50
      IN THE COURT OF APPEALS OF THE STATE OF WASHINqQ

                                         DIVISION II'' --

In re Parentage of:                                                        No. 43849 -6 -II


JEB


SCOTT LESLIE BOOTH,


                              Respondent,                          UNPUBLISHED OPINION


       v.



VANESSA JANEA BARNETT (f k/ a Fallis),
                          /


                                Appellant.


       BJORGEN, A. C. J. —   Vanessa Barnett appeals the trial court' s denial of her motion to


vacate the final order modifying the parenting plan for JEB, her child with Scott Booth. Barnett

contends that she agreed to a temporary modification, not a permanent one, and that the trial

court erred in not vacating the modified plan based on her mistaken understanding of the plan' s

permanency. We affirm.

                                                FACTS


        Barnett gave birth to JEB in 2000. In 2002, Booth, who was not married to Barnett, filed

a parentage action to determine his rights with respect to JEB. The suit ultimately resulted in a

2006 parenting plan making Barnett JEB' s primary residential parent.

        In October 2011, the army transferred Barnett' s husband from Washington to Kentucky,

and Barnett moved with him. Before Barnett moved, she and Booth agreed to modify JEB' s

residential arrangements with   the entry of   a new   parenting   plan   drafted   by   Barnett   and   Booth.
No. 43849 -6 -1I



The   court   ultimately     adopted     this proposal as a new "[     f]inal [ o] rder" for JEB' s parenting plan.

Clerk' s Papers ( CP) at 9.


        The new plan made Booth JEB' s primary residential parent. JEB would reside with

Booth but have residential time with Barnett, although the plan suspended this residential time


after Barnett' s move. However, Barnett would again have residential time with JEB if she


 return[ ed]   to live     within   50   miles of'   Booth. CP   at   11.   The plan also set JEB' s future holiday

and vacation schedule. JEB would spend alternate winter vacations, spring break, and midwinter

breaks with Booth or Barnett. JEB would spend every Father' s Day with Booth and every

Mother' s Day with Barnett. Additionally, JEB would live with Booth at the end of the school

year, but she would spend at least five weeks during the summer of 2012 with Barnett. The

section of the plan describing JEB' s summer schedule allowed modification by the mutual

consent of Booth and Barnett if made before February 2012.

         Because the plan provided that JEB would reside the majority of the time with Booth, it

designated him as her custodian " for purposes of all other state and federal statutes which require


adesignation     or   determination ofcustody." CP at 13. However, Booth' s designation as-JEB' s


custodian did " not affect either parent' s rights and responsibilities under [ the] parenting plan."

CP at 13. Booth and Barnett " agree[ d] to readdress [ Booth' s designation as custodian] no later


than April 15th       of   2012."   CP at 13.


         At the end of the 2011 -12 school year, Barnett contacted Booth about allowing JEB to

move to reside with her in Tennessee. Booth denied Barnett' s request, telling her that JEB




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No. 43849 -6 -II



belonged in Washington and that he would not consent to allowing her to spend time with
                                                                                                    1
Barnett in Tennessee beyond the             visitation provided          in the parenting   plan.




            Barnett then moved to vacate the parenting plan, claiming that she had mistakenly

believed that the plan was only a stopgap to allow JEB to finish the school year in Washington.

She declared that she " didn' t know that by signing the previous document it would finalize

permanent changes into the parenting plan. If I did know this, there is NO chance I would have

signed this        allowing this   change   to be   permanent."          CP at 26.


            In addition to her own declaration, Barnett offered two other pieces of evidence in


support of her motion to vacate. First, Barnett submitted a declaration from her mother - -
                                                                                        in law.


The mother - -
           in law witnessed Barnett signing the parenting plan and declared that Booth had

assured Barnett that the modified plan was temporary and would not affect her rights beyond

allowing JEB to remain in Washington for the 2011 -12 school year. Barnett also submitted a

letter that she sent to the Division of Child Support of the Washington State Department of


Social      and    Health Services ( DSHS).         The letter, received around two weeks before the entry of

the new parenting plan, stated that Barnett " would like [her] child support to be stopped as of

November 2011, due to [ her] daughter staying with her father tell [ sic] the end of the school

year,      for 7   months until we   determin [ sic] her Permanent Resident [ sic]."                CP at 51.


             Booth opposed the motion to vacate. He denied that the plan was temporary, declaring

that "[ t] he parenting     plan was   designated       as a `   final   order' and we meant    for it to be final." CP


at   31.    Booth contended that Barnett' s declaration supporting the original modification of the

parenting plan showed her intent for a permanent change. Booth also introduced a declaration


1
    Though Barnett' s husband is deployed to a base in Kentucky, he and Barnett live in Tennessee.
                                                                  3
No. 43849 -6 -II



from his sister - -
                in law, who had discussed the move with Barnett and declared that Barnett " never


stated or   implied that      she   intended to leave [ JEB] here only    temporarily." CP at 65.

          At the hearing for Barnett' s motion to vacate, Barnett referenced the letter she had sent to

DSHS and Booth objected that it was hearsay and that Barnett had not timely provided the letter

to him. The trial         court responded, "     I saw the notice. It' s basically a self -
                                                                                          serving hearsay that she

sent a   letter to DSHS."       Verbatim Report of Proceedings ( VRP) ( July         20, 2012) at 3. Despite

this statement, the trial court never ruled on Booth' s objection and never formally excluded the

letter from the record.


          Turning to Barnett' s claim of mistake in agreeing to the new parenting plan, the trial

court stated:



                     Let me just tell you what is troubling to me in this case is the parenting
          plan
                   they   entered   into talks   about mom' s summer visitation      for this   summer.   It
          doesn' t talk about the child going to go with mom permanently in the summer of
          2012. It wouldn' t seem to make a lot of sense to have them talking about summer
          visitation in 2012 if the intent was that the child was going to be living with mom
          on   a    permanent       basis.   There' s also language about if the mom moves to
          Kentucky and what would happen and also language regarding if the mom
          relocateslocally what would happen. Those would all seem to imply that there
          was discussion and agreement regarding a parenting plan that' s contrary to what
          she' s now asserting.


VRP (July 20, 2012) at 3 -4. Ultimately, the court stated:

                 All of the facts, and in particular the expressed language in the parenting
          plan and the language in her affidavit that she filed contemporaneously with that,
          she had it notarized. It says the agreement is the child is going to live with the dad
          and have summer visitations with me.      It didn' t say only for 2011 or 2012, and
          then there' s no language saying the child is going to revert to her primary
          residential placement, and so I' m going to dismiss the motion to vacate, deny it. I
          will award attorney fees of $750.

VRP (July 20, 2012) at 6. The trial court entered an order denying Barnett' s motion to vacate the

parenting plan, but no findings of fact or conclusions of law concerning its decision.

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No. 43849 -6 -II



                                                ANALYSIS


       Barnett raises two issues on appeal. First, she claims that the trial court erred in denying

her motion to vacate the final parenting plan. Second, she contends that the trial court erred in

excluding the letter she sent to DSHS as hearsay. We find no error and affirm.

                                    I. DENIAL OF THE CR 60(B) MOTION

        Barnett first seeks reversal of the trial court' s denial of her motion to vacate the final


parenting plan order. She contends that the trial court ignored various pieces of evidence

indicating that the plan was ambiguous, appearing to argue that this ambiguity supports her claim

of mistake. We affirm the trial court' s denial of Barnett' s motion to vacate.


        CR 60    provides   the   mechanism   for obtaining " relief from judgment         or order."   CR 60( b)


provides that



         o] n 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:

                1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in
        obtaining a judgment or order.

                   11) Any other reason justifying relief from the operation of the judgment.

A party' s misunderstanding as to the terms of a stipulated judgment can provide a ground for

relief under   CR 60( b)( 1).   Morgan v. Burks, 17 Wn. App. 193, 199, 563 P.2d 1260 ( 1977).

Barnett claims that she made a similar mistake, contending that she did not understand the final

nature of the parenting plan at issue when she agreed to modify the previous plan.

        When reviewing a trial court' s denial of a motion to vacate, we review only the trial

court' s decision, not the merits of the underlying judgment. Bjurston v. Campbell, 27 Wn. App.

449, 450 -51, 618 P. 2d 553 ( 1980).. Further, because     a   CR 60( b)   motion "   is   addressed    to the [ trial
No. 43849 -6 -II


court' s]     sound   discretion," we do not address arguments not made before the trial court. Jones v.


City   of Seattle, 179 Wn.2d 322, 337 -38, 314 P. 3d 380 ( 2013) ( citing           Griggs v. Averbeck Realty,

Inc., 92 Wn. 2d 576, 580, 599 P. 2d 1289 ( 1979));            In re Marriage of Wherley, 34 Wn. App. 344,

348, 661 P. 2d 155 ( 1983). We review a trial court' s denial of a motion to vacate a judgment


under CR 60(b) for an abuse of discretion. Mitchell v. Wash. State Inst. of Pub. Policy, 153 Wn.

App. 803, 821, 225 P.3d 280 ( 2009).

              To determine that the trial   court abused    its discretion,   we must   find that the "`   exercise of




discretion was manifestly unreasonable, based on untenable grounds, or based on untenable

reasons. '       Mitchell, 153 Wn. App. 821 -22 ( quoting Moreman v. Butcher, 126 Wn.2d 36, 40, 891

P.2d 725 ( 1995)).       We may therefore overturn the trial court' s decision only if we find that it

  rests on facts unsupported in the record or was reached by applying the wrong legal standard '

or,   though using the correct legal standard, "` adopt[ ed] a view that no reasonable person would



take '    or "` arriv[ ed] at a   decision ` outside the   range of acceptable choices. '      Mitchell, 153 Wn.


App.     at   822 ( quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 638 ( 2003)).             As discussed


below, Barnett' s motion to vacate hinges on the trial court' s resolution of a question of fact,


meaning our review for an abuse of discretion turns on whether the trial court made a decision

supported by the record and whether its ultimate decision was reasonable or within the realm of

acceptable choices. Mitchell, 153 Wn. App. at 822.

              Both parties brief the issues before us as though we are interpreting ambiguity in the

parenting plan. We are not. We are reviewing whether the trial court abused its discretion in

denying Barnett' s motion to vacate. While CR 60(b)( 11) theoretically might allow relief from

judgment where the judgment was not intended as final, Barnett did not make that claim in the



                                                             6
No. 43849 -6 -II


                                                    2
trial   court and we cannot review       it here.       Wherley, 34 Wn. App. at 348. A fair reading of

Barnett' s motion to vacate indicates that she argued that she mistook the final parenting plan as a

temporary one and sought relief because of this mistake. The parties' argument before the trial

court confirmed this as Barnett' s attorney stated that she sought relief based on mistake. Our

review of the trial court' s denial of Barnett' s motion to vacate is limited to the challenges Barnett


raised before the trial court, in this case her claim of mistake, and we construe Barnett' s


arguments of ambiguity in the parenting plan as evidence she mistook the plan' s nature.

          Whether Barnett mistakenly agreed to the November 8, 2011 parenting plan is a question

of   fact. See Vermette     v.   Andersen, 16 Wn.        App. 466,      469 -70, 558 P. 2d 258 ( 1976) ( parties'


mistaken    beliefs   about the terms of an agreement             is   a question of   fact). We review a trial court' s


findings of fact for substantial supporting evidence. In re Marriage of Wilson, 165 Wn. App.

333, 340, 267 P. 3d 485 ( 2011).         Evidence is      substantial when present "`
                                                                                             in sufficient quantity to

persuade a    fair -
                   minded       person of   the truth of the declared        premise.'"
                                                                                           Wilson, 165 Wn. App. at

340 ( quoting     Bering   v.   SHARE, 106 Wn.2d 212, 220, 721 P. 2d 918 ( 1986)).                 In performing this

review, we    may ' not substitute [ our] judgment for the trial court' s, weigh the evidence, or


adjudge witness       credibility. "'   Wilson, 165 Wn. App. at 340 ( quoting In re Marriage of Greene,

97 Wn.     App.   708, 714, 986 P. 2d 144 ( 1999)).         Because the trial court here entered no findings of


2
  Even if we did reach the merits of this argument, we would still deny Barnett' s motion. The
intent of the trial court approving the final parenting plan order is the key, not the intent of the
parties. Kirshenbaum v. Kirshenbaum, 84 Wn. App. 798, 803, 929 P. 2d 1204 ( 1997). We limit

our review to the decree' s provisions in attempting to discern the issuing court' s intent..
Kirshenbaum, 84 Wn. App. at 803. The order is designated as a final order and it contains
provisions governing JEB' s residential time for the indefinite future. The provisions Barnett
points to as creating ambiguity speak to things Booth and Barnett might do; they do not require
further action by the trial court. All these provisions support the view that the trial court
intended its order approving the parenting plan to be final.


                                                              7
No. 43849 -6 -II



fact, we view its written order denying Barnett' s motion as implicitly embodying any findings

made by the court, and we look to its oral ruling, which was consistent with its written order, to

help interpret these implicit findings. In re Marriage of Kimpel, 122 Wn. App. 729, 735, 94 P. 3d

1022 ( 2004); State   v.   Kronich, 131 Wn.   App.   537, 543, 128 P. 3d 119 ( 2006),   overruled on other




grounds by State v. Jasper, 174 Wn.2d 96, 271 P.3d 876 ( 2012).

        The trial court, in its oral ruling, appeared to determine that Barnett made no mistake

based on provisions in the parenting plan.3 These provisions designated Booth as JEB' s

custodial parent and the parent that she would reside with, contained JEB' s holiday and vacation

schedules into the indefinite future, and provided that JEB would return to reside with Booth at


the end of a visit with Barnett after the 2011 -12 school year finished. This last provision is


bluntly inconsistent with the assumption that JEB was to live with Barnett after the school year' s

end. Further, the trial court' s order was designated a final order, and the court characterized its


substance as a final parenting plan, each contradicting Barnett' s argument that this was a

temporary measure. Because Barnett signed the parenting plan, we charge her with knowledge

of its contents.   See Recreational    Equip., rc. v.   World Wrapps Nw, Inc.,   165 Wn. App. 553, 568,

266 P. 3d 924 ( 2011).      Given Barnett' s knowledge of the terms and nature of the parenting plan,

we hold that substantial evidence supports the trial court' s finding that she made no mistake. See

Skagit State Bank     v.   Rasmussen, 109 Wn. 2d 377, 381, 745 P. 2d    37 ( 1987) ( quoting Johnston v.

Spokane & I.E.R. R., 104 Wash. 562, 569, 177 P. 2d 810 ( 1919)).         Because substantial evidence


supports the trial court' s decision, we cannot say that its denial of Barnett' s motion to vacate was



3 The trial court made no explicit finding that Barnett made no mistake, but its order denying
Barnett' s motion to vacate was essentially such a finding, especially when read in light of
Barnett' s claims and its oral ruling.
                                                        8
No. 43849- 6- 11



unsupported by the evidence or so unreasonable as to render it an abuse of discretion. For these

reasons, we affirm.



                                        II. BARNETT' S LETTER TO DSHS


         Barnett also introduced her letter to DSHS, which asked that it stop Booth' s child support

because JEB would reside with him until Barnett and Booth sorted out where JEB would reside


on a permanent basis at the end of the 2011 -12 school year. Booth objected to the trial court' s


consideration of this letter at the argument over Barnett' s motion. Barnett asserts that the trial


court erred by sustaining Booth' s objection and assigns error to this decision, but the record

reflects that the trial court never ruled on Booth' s objection. There is thus no evidence that the


trial court excluded the letter. Because Barnett fails to shoulder her " burden of


demonstrating ...      error,"   we must reject her claim. Kane v. Smith, 56 Wn.2d 799, 806, 355 P.2d

827 ( 1960).


                                                  III. ATTORNEY FEES


         Booth contends that Barnett' s appeal is frivolous and requests attorney fees under RAP

18. 9( a), which allows for an award of fees as sanctionfor frivolous appeal. We may award

fees   under   RAP 18. 9( a)   where   the appeal "`   is so totally devoid of merit that there [ is] no

reasonable     possibility   of reversal. "'    State ex rel. Quick - uben v. Verharen, 136 Wn.2d 888, 969
                                                                    R


P.2d 64 ( 1998) (    quoting Presidential Estates Apartment Assocs. v. Barrett, 129 Wn.2d 320, 330,

917 P. 2d 100 ( 1996)) (     alteration   in   original).   Barnett has introduced enough evidence that she


misunderstood the nature of the trial court' s parenting plan order that we cannot call her appeal

devoid of merit such that she had no reasonable possibility of success. We therefore deny

Booth'   s request   for fees.
No. 43849 -6 -II



                                           CONCLUSION


         We affirm the trial court' s denial of Barnett' s motion to vacate the final parenting plan

order.




         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.




We concur:




HUNT, J.




MAxA, J .




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