No. 51339-7-I.The Court of Appeals of Washington, Division One.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 01-3-01147-4. Judgment or order under review. Date filed: 10/15/2002. Judge signing: Hon. Charles S French.
Counsel for Appellant(s), Kenneth T. Thibert (Appearing Pro Se), 2512 Dazi Drive, Camano Island, WA 98282.
Counsel for Respondent(s), Suzanna Thibert (Appearing Pro Se), 6325 W. Avenue, Apt. J-2, Lancaster, CA 93536.
PER CURIAM.
Kenneth Thibert seeks review of a dissolution decree and the trial court’s subsequent orders denying his CR 60(b) motion to vacate the decree and his motion for reconsideration. But Thibert did not appeal the dissolution decree, and an appeal from an order denying a CR 60(b) motion to vacate does not encompass the underlying final judgment. Accordingly, we do not review Thibert’s challenge to the dissolution decree. In addition, Thibert has failed to make any showing that the trial court abused its discretion in denying his motion to vacate or in denying the motion for reconsideration. We therefore affirm.
Respondent Suzanna Thibert petitioned for a dissolution of her marriage to appellant Kenneth Thibert. After a trial on July 16, 2002, the trial court entered findings of fact, conclusions of law, an order of child support, and a decree dissolving the marriage. Kenneth, who was in jail for a probation violation, did not appear for trial.
On August 8, 2002, Kenneth filed a motion `To Set Aside Final Divorce Papers (CR 60).’ Citing CR 60(b)(1), (4), (9), and (11), he argued that the decree should be set aside because, among other things, Suzanna had told him she would not be pursuing the dissolution, he had made every effort to attend trial despite being in jail, the trial court failed to follow local rules requiring Suzanna to complete a parenting seminar before entering the decree, and Suzanna wanted to attempt a reconciliation and would sign an agreed order vacating the decree. The trial court denied the motion to vacate on September 18, 2002, finding that despite being aware of the trial date, Kenneth had failed to take sufficient steps to attend and that he had failed to submit any evidence establishing that the property distribution was erroneous.
The trial court denied Kenneth’s motion for reconsideration of the order denying the motion to vacate on October 15, 2002. On November 6, 2002, Kenneth filed a notice of appeal, designating only the trial court’s order denying reconsideration.
On appeal, Kenneth devotes the majority of his briefing to allegations challenging the dissolution decree and parenting plan entered on July 16, 2002. Among other things, he contends that the trial court failed to make a fair and equitable distribution of the parties’ assets and liabilities, erred in characterizing and valuing certain items of property, including the parties’ home and vehicles, failed to award certain items of property, and erred in entering the parenting plan.
But Kenneth failed to appeal the dissolution decree. The trial court’s ruling on a motion to vacate is appealable. RAP 2.2(a)(10). But `[a]n appeal from denial of a CR 60(b) motion is limited to the propriety of the denial not the impropriety of the underlying judgment.’ Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618 P.2d 533 (1980). CR 60(b) is not a substitute for an appeal. Bjurstrom, 27 Wn. App. at 452. In order to challenge the underlying dissolution decree, Kenneth was therefore required to file a timely appeal, which he did not do. Accordingly, we do not consider Kenneth’s direct challenges to the dissolution decree and review only the trial court’s denial of the motion to vacate and the motion for reconsideration of the motion to vacate. See RAP 2.4(c) (scope of review of appeal from order denying motion for reconsideration).
We review the trial court’s rulings on a motion to vacate and a motion for reconsideration for a manifest abuse of discretion. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 1289 (1979) (motion to vacate); Lian v. Stalick, 106 Wn. App. 811, 823-24, 25 P.3d 467 (2001) (motion for reconsideration). A court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds. See Woodhead v. Discount Waterbeds, Inc., 78 Wn. App. 125, 131, 896 P.2d 66
(1995).
Kenneth first contends that the trial court failed to comply with a Snohomish County local rule that required Suzanna to complete a parenting seminar before entry of the decree. See SCLSPR 94.04(c)(5)(B). He argues that the trial court’s actions constituted an `irregularity’ warranting vacation of the decree under CR 60(b)(1). But the local rules authorize the trial court to waive this requirement. SCLSPR 94.04(c)(5)(C)(3). The record establishes that the trial court exercised this authority based on evidence that Suzanna was scheduled to participate in a parenting seminar four days after the trial date. Kenneth has failed to establish any error or irregularity.
Kenneth next contends that Suzanna committed numerous fraudulent acts that warranted vacation of the decree under CR (60)(b)(4). Among other things, he alleges that Suzanna repeatedly told him that they had reconciled and that she would not go through with the dissolution, that she misrepresented to the court his relationship with the children and the couple’s relationship, and that she concealed and mischaracterized assets. But the party attacking a judgment under CR 60(b)(4) must establish the alleged fraud or misrepresentation `by clear and convincing evidence.’ Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526
(1990). Kenneth relies primarily on conclusory, self-serving declarations to support the allegations of fraud. Accordingly, we cannot say that the trial court abused its discretion in declining to vacate the decree under CR 60(b)(4).
Kenneth next contends that because he was in jail, an `unavoidable casualty or misfortune’ prevented him from responding to Suzanna’s allegations in the dissolution trial and that the decree should be vacated under CR 60(b)(9). In support of the motion to vacate, Kenneth alleged that despite being told by Suzanna that she was not going forward with the trial, he made `every effort’ to be present at trial on July 16, 2002.
We recognize the practical difficulties that a civil litigant may encounter when attempting to arrange transport to a court proceeding while jailed on an unrelated matter. But as the trial court noted in denying the motion to vacate, Kenneth was aware well in advance that trial was scheduled for July 16, 2002. The materials submitted in support of the motion to vacate failed to establish that the circumstances prevented Kenneth from contacting the court directly and requesting a continuance or otherwise communicating his desire to appear at trial. Consequently, we cannot say that the trial court abused its discretion in concluding that Kenneth failed to demonstrate that an `unavoidable casualty’ prevented him from defending in the dissolution proceeding. Nor has Kenneth identified any legal authority or presented any meaningful legal argument to support the contention that his due process rights were violated.
In summary, Kenneth has failed to establish any circumstances warranting vacation of the dissolution decree under CR 60(b)(1), (4), or (9). Nor has he identified any `extraordinary circumstances’ justifying relief under CR 60(b)(11). See In re Marriage of Tang, 57 Wn. App. 648, 655, 789 P.2d 118 (1990). Consequently, the trial court did not abuse its discretion in denying the motion to vacate or the motion for reconsideration.
Affirmed.
COLEMAN and BAKER, JJ., concur.