Marriage of Burkey, In re

• Decision Date: 19 January 1984
• Docket Number: No. 5935-III-9,5935-III-9
• Citation: 36 Wn.App. 487,675 P.2d 619
• Court: Washington Court of Appeals
• Parties: In re the MARRIAGE OF Lavonne BURKEY, Respondent, and Marvin Burkey, Appellant.

Page 487

36 Wn.App. 487

675 P.2d 619

In re the MARRIAGE OF Lavonne BURKEY, Respondent,

and

Marvin Burkey, Appellant.

No. 5935-III-9.

Court of Appeals of Washington,

Division 3, Panel Four.

Jan. 19, 1984.

Donald Hackney, Hackney Law Firm, Spokane, for appellant.

Douglas D. Lambarth, Lambarth & Geissler, Newport, for respondent.

McINTURFF, Judge.

Marvin Burkey appeals from an order vacating portions of the decree dissolving his marriage to Lavonne Burkey. We reverse.

The parties' dissolution decree incorporated the terms of a separation agreement which divided their property and provided for the care and support of their one minor child. The agreement was drawn by Mrs. Burkey's attorney and executed by both parties. It recited that its provisions were a full and complete settlement of all property rights and that its terms were just and equitable. Mrs. Burkey testified to the same in the hearing on the dissolution petition. Mr. Burkey was not represented during those proceedings.

Within 2 months of the entry of the decree of dissolution, Mrs. Burkey obtained new counsel and moved to vacate it on the grounds of fraud and manifest injustice. CR 60(b)(4) and (11). Although the Superior Court specifically found Mrs. Burkey had been represented by independent counsel and that all property of the parties was made known to each other prior to the decree, it granted Mrs. Burkey's motion to vacate. Its decision was based on its finding that Mrs. Burkey's divorce attorney provided her with inadequate representation and its conclusion that Mr. Burkey breached a fiduciary duty to make known to his wife the value of all of the property before the dissolution. We hold the Superior Court erred in vacating the prior decree.

CR 60(b) provides:

On motion and upon such terms as are just, the court may relieve a party ... from a final judgment, order, or proceeding for the following reasons:

* * *

(4) Fraud ..., misrepresentation, or other misconduct of an adverse party;

* * *

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

Such motions are addressed to the sound discretion of the trial court, whose judgment will not be disturbed absent a showing of a manifest abuse of discretion, i.e., only when no reasonable person would take the position adopted by the trial court. Griggs v. Averbeck Realty, Inc., 92 Wash.2d 576, 584, 599 P.2d 1289 (1979); Haller v. Wallis, 89 Wash.2d 539, 543, 573 P.2d 1302 (1978); Morgan v. Burks, 17 Wash.App. 193, 197-98, 563 P.2d 1260 (1977).

In reviewing the denial of a motion to vacate a consent decree, the court in Haller, at 544 quoted 3 E. Tuttle, A Treatise of the Law of Judgments § 1352, at 2776-77 (5th ed. rev. 1925):

If [the judgment] conforms to the agreement or stipulation, it cannot be ... set aside without the consent of the parties unless it is properly made to appear that it was obtained by fraud or mutual mistake or that consent was not in fact given, which is practically the same thing. It will not be set aside on the ground of surprise and excusable neglect. Neither is an error or misapprehension of the parties, nor of their counsel, any justification for vacating the judgment ... Erroneous advice of counsel, pursuant to which the consent judgment was entered is not ground for vacating it.

(Italics ours.) Policy reasons favoring the finality of divorce settlements were set forth in Peste v. Peste, 1 Wash.App. 19, 25, 459 P.2d 70 (1969):

To permit collateral attacks upon divorce proceedings without any more than a showing of a disparity in the award, would open a Pandora's Box, affecting subsequent marriages, real property titles and future business endeavors of both spouses.

Here, the Superior Court found no fraud, overreaching, or collusion between Mr. Burkey and the attorney Mrs. Burkey chose to represent her. The court also found that all of the parties' property was made known to each other before the final decree. The only conclusion which arguably might support vacating the decree on the basis of fraud is that Mr. Burkey breached a fiduciary duty owed his wife to make known the value of all the property owned by the community. However, the court's findings do not support this conclusion and the record contains no evidence to sustain it. ¹ Both Mr. and Mrs. Burkey were cognizant of the real and personal property owned by the community; there was no showing either had information regarding valuation which they kept from the other. Instead of securing expert appraisals of their property, they proceeded to estimate its value themselves. This situation is unlike that in Seals v. Seals, 22 Wash.App. 652, 590 P.2d 1301 (1979), where the court held the husband had breached his fiduciary duty by failing to disclose to his wife the existence of certain property prior to dissolution. The full disclosure mandated by the fiduciary relationship assumes that one party has information which the other needs to know to protect his interests.

Finally, the Superior Court's conclusion that the inadequate representation provided Mrs....