                                          The Court ofAppeals
                                                      of the                                     DIVISION I
                                                                                           One Union Square
RICHARD D. JOHNSON,                        State of Washington                           600 University Street
Court Administrator/Clerk
                                                     Seattle                                      98101-4170
                                                                                            (206) 464-7750
                                                                                       TDD: (206)587-5505
September 22, 2014

Stacey Lynne Smythe                           Linda Carol Moravec
Smythe Law Offices                            18617 8TH ST E
33507 9th Ave S Ste H-2                       BONNEY LAKE, WA, 98391
Federal Way, WA, 98003-6397
stacey@smythelawoffices. com

Leslie Elizabeth Gilbertson
Leslie Gilbertson, Attorney at Law
11033 NE 24th St Ste 200
Bellevue, WA, 98004-2971
leslie.e.gilbertson@gmail.com

CASE #: 70944-5-I
Richard Warnick. Appellant v. Linda C. Moravec. Respondent

King County, Cause No. 11-3-04716-8.KNT

Counsel:

Enclosed is a copy of the opinion filed in the above-referenced appeal which states in part:
                    "Affirmed."

Counsel may file a motion for reconsideration within 20 days offiling this opinion pursuant to RAP
12.4(b). If counsel does not wish to file a motion for reconsideration but does wish to seek review by
the Supreme Court, RAP 13.4(a) provides that if no motion for reconsideration is made, a petition for
review must be filed in this court within 30 days.

In accordance with RAP 14.4(a), a claim for costs by the prevailing party must be supported by a cost
bill filed and served within ten days after the filing ofthis opinion, or claim for costs will be deemed
waived.

Should counsel desire the opinion to be published by the Reporter of Decisions, a motion to publish
should be served and filed within 20 days of the date offiling the opinion, as provided by RAP 12.3 (e).

 Sincerely,




 Richard D. Johnson
 Court Administrator/Clerk

Jh

 Enclosure
 c:        The Honorable Regina Cahan
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                                                  20Ih SEP 22 Ai;i 9: U



     IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON



IN RE:                                           No. 70944-5-1


RICHARD WARNICK,
                                                 DIVISION ONE
                     Appellant,

         v.



LINDA MORAVEC,                                   UNPUBLISHED OPINION


                     Respondent.                 FILED: September 22, 2014

         Spearman, C.J. — During mediation, Richard Warnick and Linda Moravec

agreed to terms for orders dissolving their marriage and providing for the care

and support of their child. When the parties could not agree to the entry of final

orders after several months, the trial court advised Moravec to present orders

consistent with the initial agreement and then file a motion to modify the

parenting plan and child support order. Warnick appeals the trial court's order

vacating the parenting plan and child support order entered based on this

erroneous advice. Because Warnick fails to establish error, we affirm.

                                      FACTS

         Warnick and Moravec married in August 1994. The couple had one son,

K.W., on October 22, 1999, and then separated in January 2011. In July 2011,

Warnick filed a petition for legal separation. At a mediation in June 2012,
No. 70944-5-1/2



Warnick and Moravec signed a Civil Rule (CR)2A agreement on terms of a

decree of dissolution, a parenting plan, and a child support order. According to

the agreement, Moravec was to "prepare final papers." Clerk's Papers (CP) at 9.

       In March 2013, Moravec filed a motion to "enforce/modify" the terms of the

CR2A agreement. Moravec contended that when drafting disputes arose

following the mediation, Warnick refused to submit to arbitration by the mediator.

Moravec asked the trial court to take testimony, resolve the drafting disputes, and

enter final orders. In her supporting declaration, Moravec asserted that

circumstances had so changed since the mediation that she no longer agreed to

the terms of the parenting plan and child support order as described in the CR2A

agreement. In particular, she claimed the agreed parenting plan terms were no

longer in K.W.'s best interests because Warnick had spent only minimal
residential time with K.W. She also argued that Warnick should pay additional

child support because he had not been exercising the agreed level of residential
time or supplying sufficient food or clothing to K.W. since the time ofthe

agreement.

       After a hearing on April 19, 2013, the trial court entered findings offact

and conclusions of law, a dissolution decree, a parenting plan, and a child

support order. On April 26, 2013, Moravec filed a motion for an order
suspending K.W.'s overnight residential time with Warnick "to prevent...
[e]motional harm to [K.W.]." CP at 146. Moravec alleged, "The child is
emotionally upset and threatening to run away if forced to staywith his Father."
CP at 146. On May 16, 2013, Moravec filed a motion to modify the parenting
No. 70944-5-1/3



plan and support order. Finding that the parties were aware of the circumstances

described in the motion to modify at the time of the entry of the final orders, a

commissioner denied the motion for a lack of adequate cause. Moravec filed a

motion for revision.

       The trial court held a hearing on Moravec's motion for revision on August

23, 2013. On August 28, the trial court entered an order denying the motion for

revision and vacating the final parenting plan and child support order entered

April 19. Referring to the April 19 hearing, the order states:

       Mother argued it was not in the best interest of the child to
       adopt the parenting plan and child support orders that
       correlated with the CR2A agreement based on allegations that
       father had not abided by the CR2A agreement and had gone
       five months without seeing his son. At that time, this court
       signed the final papers that corresponded to the CR2A and
       told the parties that the proper mechanism was to file for a
       modification. Upon reflection, this court recognizes that ruling
       was incorrect.
              In the CR2A agreement, later memorialized in the
       Parenting Plan signed by this court on 4/19/13, the son was to
       reside with his father every other weekend from Friday-
       Monday and alternating weeks Wednesday-Friday. This
       created a shared parenting plan. The parties had agreed to a
       deviation on the Child Support Order given the substantial
       residential time provided to the father. In the mother's
       declaration, she stated that in the ten months that transpired
       between the CR2A agreement and entering final papers, the
       father failed to abide by the agreement. The most concrete
       example was that there were no visits September- December
       2012 and March 2013 and limited visits the other five months.
       She stated that it is difficult for her to get her 13 year old son
       to see his father because he is hurt and angry. She
       recommends counseling for the two of them and every other
       weekend daytime visits.
            In his declaration, the father simply says that he denies
       the allegations made in Mother's declarations. Nevertheless,
       he acknowledges that his relationship with his teenage son is
       challenging and that his son does not want to see him
No. 70944-5-1/4



       consistently. He also concedes that professional counseling
       for the father and son would be beneficial.

               When reviewing a parenting plan, the overriding interest
       is the best interest of the child. It appears that the parenting
       plan the court signed on 4/19/13 is not in the best interest of
       the child. Therefore, the Court vacates the Parenting Plan and
       the corresponding Child Support Order entered on 4/19/13.
       The child support order included a deviation for residential
       time. All other orders entered on 4/19/13 remain in effect.

CP at 251-52.


       The trial court also entered a temporary parenting plan and a temporary

child support order, set a new trial date, and ordered the parties to engage in

alternative dispute resolution.

       Warnick appeals.

                                     ANALYSIS


       Warnick first contends the trial court violated RCW 26.09.260 by modifying

the parenting plan and child support order without a finding of a substantial

change in circumstances. But Warnick misapprehends the nature and effect of

the court's order, which vacated, rather than modified, the parenting plan and

child support order and set the matter for trial.

       CR 60(b)(11) allows a trial court to vacate an order for "[a]ny other reason

justifying relief from the operation of the judgment." CR 60(b)(11) is confined to

extraordinary circumstances when no other section of the rule applies. In re

Marriage of Furrow, 115 Wn. App. 661, 673, 63 P.3d 821 (2003). The

circumstances must relate to irregularities that are "extraneous to the action of

the court or questions concerning the regularity of the court's proceedings." In re

Marriage of Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985) (citing State v.
No. 70944-5-1/5



Keller. 32 Wn. App. 135, 141, 649 P.2d 35 (1982)). "'[Ujnusual circumstances'"

justify application of CR 60(b)(11). \±

       Here, Moravec argued at the April 19, 2013 hearing that circumstances

had so changed since the parties signed the CR2A agreement in June 2012 that

the trial court should enter a final parenting plan and child support order reflecting

those changes. But the trial court did not exercise its discretion to decide the

terms of the final parenting plan and child support order regardless of the prior

agreement of the parties. See RCW 26.09.070(3) (trial court is not bound by

separation contract terms "providing for a parenting plan" and must review

agreements as to child support for compliance with applicable statute). Instead,

the trial court apparently advised Moravec that her only remedy was to request a

modification after entry of final orders consistent with the previously agreed terms.

       As the trial court later recognized, its incorrect advice and simultaneous

failure to consider the change in circumstances between the parties' agreement

and the April 19 hearing resulted in the entry of a final parenting plan that was

not in K.W.'s best interests. The trial court properly determined that these

unusual circumstances created an irregularity justifying the vacation of the

parenting plan and child support order. See, e.g., In re Furrow, 115 Wn. App. at

674 (termination of parental rights in course of marital dissolution outside of

relevant statutory framework was "irregularity of egregious proportions").

Because the order on appeal properly remedies the irregularity by vacating the

prior orders and setting disputed matters for trial, Warnick fails to establish error.
No. 70944-5-1/6



       Warnick also claims the trial court abused its discretion by increasing his

child support obligation without notice and without allowing him to present

evidence of his current income. We disagree.

       RCW 26.09.060(6) authorizes the court to enter a temporary order of child

support "in such amounts and on such terms as are just and proper in the

circumstances." Here, the trial court stated that it determined the temporary child

support amount based on "the worksheets the parties had agreed to in the CR2A

... simply omitting the deviation for residential time." CP at 252. Warnick fails to

demonstrate any abuse of discretion in the trial court's consideration of the

circumstances here. And he will have an opportunity to present evidence of his

current income at trial.


       Affirmed.




WE CONCUR:
