In re C.T.

• Citation: 378 P.3d 183,193 Wash.App. 427
• Decision Date: 23 February 2016
• Docket Number: No. 46104–8–II.,46104–8–II.
• Parties: In re the Parenting and Support of C.T. Child. Andre Louis YOUNG, Respondent, and Cherry Kay THOMAS, Appellant.
• Court: Court of Appeals of Washington

193 Wash.App. 427

378 P.3d 183

In re the Parenting and Support of C.T. Child.

Andre Louis YOUNG, Respondent

and

Cherry Kay THOMAS, Appellant.

No. 46104–8–II.

Court of Appeals of Washington, Division 2.

Feb. 23, 2016.

Publication Ordered April 26, 2016.

Sophia May Palmer, Benjamin & Healy, PLLC, Tacoma, WA, for Appellant.

Andre Young (Appearing Pro Se), Tacoma, WA, for Respondent.

MELNICK

, J.

¶ 1 Cherry Kay Thomas appeals from the trial court's denial of her motion to vacate a permanent parenting plan that it entered after she did not appear for trial. She argues that the trial court abused its discretion by denying the motion to vacate the final order under CR 60(b)(1)

when (1) her attorney filed a notice of intent to withdraw four days before trial and did not serve her; (2) the trial court entered a permanent parenting plan without sending proper notice of the trial date to her; (3) she did not receive notice of a default judgment; and (4) the trial court erred in not obtaining more evidence at trial before entering the permanent parenting plan. We reverse, vacate the order, and remand for a trial on the merits.

FACTS

¶ 2 C.T. was born on March 9, 2010 to Andre Young and Thomas. Thomas is C.T.'s primary caretaker.

¶ 3 On May 31, 2013, Young filed a petition to establish residential schedule/parenting plan child support. On the same date, the trial court filed and sent a case scheduling order setting trial for February 10, 2014. The order does not specify to whom it was sent. Thomas filed a proposed parenting plan on June 12. On July 2, the trial court held a hearing and issued a temporary order granting Young visitation with C.T. two days a week, without any overnight visitation, and ordered the parties to schedule mediation to attempt to agree on a parenting plan.

¶ 4 On December 19, the trial court reassigned the case to a different judge and mailed the notice of the reassignment to Doris Walkins, Thomas's attorney of record at the time. On January 16, 2014, the trial court filed a pretrial order describing the requirements for trial and sent it to Walkins.

¶ 5 On February 6, Walkins filed a notice of intent to withdraw. The notice stated Walkins's withdrawal would be effective on the date of filing and contained the trial date: February 10, 2014. Walkins swore under penalty of perjury that she personally served a copy of her withdrawal to the attorneys and parties on February 6.

¶ 6 On February 10, neither Thomas nor Walkins appeared for trial. The trial court stated that it received

a notice of intent to withdraw submitted by Cherry Thomas' lawyer, but it was just submitted on February 6th, and the Court is not likely to let her withdraw from the case at this juncture. The problem is, based on this notice, I expect Ms. Thomas—well, Ms. Thomas should still be here in any event.... Even without a lawyer, the respondent still should be here.^{[1 ]}

Report of Proceedings (RP) at 3–4. The trial court continued the trial to February 14, hand-delivered notice of the trial continuance to Young, and mailed the notice to Thomas, but not Walkins.

¶ 7 On February 14, Thomas and Walkins again failed to appear for trial. After placing Young under oath, the trial court asked Young what he would like the parenting plan to include. The court repeatedly asked Young about each item of the proposed parenting plan and if he still wanted what he listed in his proposed plan. The trial court stated for the record “I have reviewed JIS information as to both parents here.” RP at 7. After receiving the information, the court entered a final order for a permanent parenting plan, the same as Young had proposed. The trial court entered findings of fact and conclusions of law on the petition.

¶ 8 On February 20, Thomas and her new counsel, Heather Swann, filed a motion for an order to stay the final parenting plan. On the same day, Thomas also filed a motion to vacate the final order and a motion for an order to show cause why Thomas's motion to vacate should not be granted. In support of her motions, Thomas submitted a declaration to the trial court that she did not know her trial date was February 10. This statement contradicted the declarations submitted by Walkins and Young in response to the motion to vacate. Young stated he spoke with Thomas about the trial date. On February 21, the trial court granted Thomas's motion for an order to stay.

¶ 9 On March 7, the trial court heard the motion to vacate the final parenting plan. Walkins submitted a declaration and admitted that she intended to file the notice of intent to withdraw in October 2013, but due to an oversight by her office it did not get filed. Walkins stated that, as a courtesy, she sent an e-mail to Thomas on December 4, 2013 and answered Thomas's questions, but that she had already withdrawn from the case. Nonetheless, she continued to communicate with Thomas about the case. Walkins stated that she did not send Thomas a copy of the notice of intent to withdraw on February 6, 2014 because she considered it to be “a formality of what she and I both already knew to be reality—in hindsight, I should have emailed a copy to her.” Clerk's Papers (CP) at 132.

¶ 10 Thomas filed a declaration stating she was unaware Walkins withdrew prior to February 18, 2014. While Walkins was the attorney of record, all proceedings were directed to be sent to Thomas through Walkins's office. In her motion, Thomas argued that irregularities at trial warranted vacating the parenting plan including the improper withdrawal by her attorney and the lack of proper notice about the continued trial date. Thomas argued that the parenting plan was not in C.T.'s best interests because he had never stayed with Young overnight and the plan provided for week long stays.

¶ 11 Young also stated that he spoke with Thomas about the continuance on February 11. The trial court considered the declarations and Young's criminal history. The trial court ultimately determined that Thomas's statement was not credible, and that she knew of the trial because Walkins explained to Thomas that February 10 was the trial date and it would proceed regardless of whether or not a guardian ad litem was appointed. The trial court stated, “I can understand that Ms. Thomas may have some issues with her former attorney, but that's not before this [c]ourt to decide.” CP at 170. The trial court denied Thomas's motion to vacate the final order, reasoning that based on the sworn statements and the evidence of record, that it

believe[d] that she knew about the 10th and she didn't come.

I further find that it is highly probable that the U.S. mail would have reached her home before the 14th.... I find Mr. Young's statement that he was at Ms. Thomas' home and that they specifically discussed Friday the 14th being a continued trial date, I find that statement credible.

It's my conclusion that Ms. Thomas chose not to come to not just one trial date but two.

CP at 167–68.

¶ 12 Thomas filed a motion for reconsideration of the denial of the motion to vacate. The trial court denied the motion.

¶ 13 Thomas appeals.

ANALYSIS

I. Denial of Motion to Vacate

¶ 14 Thomas argues that the trial court abused its discretion when it denied her motion to vacate the permanent parenting plan when she did not appear for trial because her attorney improperly withdrew, she did not receive proper notice of the continuance, and she did not receive notice of default, all irregularities that satisfy CR 60(b)(1)

.

A. Standards of Review

¶ 15 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 Wash.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 Wash.App. at 821, 225 P.3d 280

(quoting Moreman v. Butcher, 126 Wash.2d 36, 40, 891 P.2d 725 (1995) ). Therefore, we may overturn the trial court's decision only if the decision “ ‘rests on facts unsupported in the record or was reached by applying the wrong legal standard’ ” or even when using the correct legal standard, the trial court “ ‘adopt[ed] a view that no reasonable person would take’ ” or “ ‘ “arriv[ed] at a decision ‘outside the range of acceptable choices'.” ’ ” Mitchell, 153 Wash.App. at 822, 225 P.3d 280 (internal quotation marks omitted) (quoting State v. Rohrich, 149 Wash.2d 647, 654, 71 P.3d 638 (2003) ).

¶ 16 When reviewing a trial court's denial of a motion to vacate, we review only the trial court's decision. Bjurstrom v. Campbell, 27 Wash.App. 449, 450–51, 618 P.2d 533 (1980)

. In addition, because a CR 60(b) motion “is addressed to the [trial court's] sound discretion,” we do not address arguments not made before the trial court. Jones v. City of Seattle, 179 Wash.2d 322, 338, 314 P.3d 380 (2013) ; In re Marriage of Wherley, 34 Wash.App. 344, 348, 661 P.2d 155 (1983).

¶ 17 We review a trial court's interpretation of a civil rule de novo. Westberg v. All–Purpose Structures, Inc., 86 Wash.App. 405, 409, 936 P.2d 1175 (1997)

. “[J]ust as the construction of a statute is a matter of law requiring de novo review, so is the interpretation of a court rule.” Nevers v. Fireside, Inc., 133 Wash.2d 804, 809, 947 P.2d 721 (1997).

B. The Trial Court Abused Its Discretion

¶ 18 Thomas argues that the trial court abused its discretion in denying her motion to vacate the final order of the permanent parenting plan because there were irregularities in the proceedings that caused her absence from the trial and which resulted in a final order and judgment entered against her. We agree that there were irregularities in the proceedings that justify relief and that the trial court abused its discretion in denying the motion to vacate.

¶ 19 The vacation of a judgment under CR 60(b)

is within the trial court's discretion. Haller v. Wallis, 89 Wash.2d 539, 543, 573...