e 11- ED

Or.It,T O : firPEALS

01, PS 0 4II

2014 MAR i ! AM S: 140

S

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

In re the Marriage of I No. 44296 -5 -II

ANN E. MILLS, 

Petitioner, 

and

PAUL WIERENGA, I UNPUBLISHED OPINION

JOHANSON, J. — Ann E. Mills appeals the trial court' s denial of her CR 60 " Relief from

Judgment" motion in this dissolution case. She argues that the trial court erred in denying her

motion because she presented uncontroverted documentary evidence that her former husband, 

Paul Wierenga, had obtained the property distribution " by fraud, misrepresentation, or other

misconduct" by failing to account for funds he had moved in and out of certain accounts. Br. of

Appellant at 6. Because the trial court did not abuse its discretion in denying the CR 60 motion, 

we affirm. 

FACTS

Mills filed for dissolution of her marriage to Wierenga in September 2009, after 15 years

of marriage. On February 16, 2011, the trial court issued a letter " decision" stating, 
No. 44296 -5 -II

I am not going to attempt to divide out the various accounts as I believe

the parties can do that with the guidance that I want the bottom line to be a 50150

division of marital assets. I recognize that each party argued for a greater

percentage share, but I am not going to give a greater percentage to either party. 

I believe I have given you sufficient information above to mathematically

work out an equal division of the assets of the marital community. 

Clerk' s Papers ( CP) at 97 ( emphasis added). 

On November 10, 2011, the trial court entered a dissolution decree. This decree

reiterated that the trial court intended the parties to receive " equal" shares of the couples' assets,

I

referred to the exhibit that the parties had provided in which they divided the assets, advised the

parties that they could ask the court to make adjustments, and required that any motion to adjust

the property division was due by December 31. 2 The trial court also acknowledged that before

the property could be divided, Wierenga was entitled to the return of $28, 149. 23 that he had

made to certain retirement accounts because he had made those deposits after the separation. 

The trial court awarded $ 1, 363, 276 to Mills and $ 1, 256,719 to Wierenga.

3

Based on these

1 Mills does not challenge the trial court' s decision to divide the assets equally. 

2

Specifically, the decree stated, 

The court intends to make an equal division ofthe assets ofthe parties. The court

recognizes that the values set forth on the attached Exhibit A may not be current

values for the various financial accounts and that growth or loss may have

occurred therefore if either party believes there is a material difference in value

he /she may by motion ask the court to make an adjustment in the division

however the moving party must submit with the motion current statements for all

accounts that he /she is receiving statements and the opposing party must do

likewise. [ Any motion shall be filed no later than 12/ 31/ 11.] The court retains

jurisdiction to resolve any disputes as to the adjustments on motion of either

party. See Order re Property Division in Decree. 

CP at 8 ( emphasis added). 

3

Both ofthese amounts were " Tax Adjusted." CP at 9. 

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No. 44296 -5 -II

amounts, Mills received 52 percent of the total assets and Wierenga received 48 percent of the

total assets.

4

Mills timely moved to amend the decree. On April 17, 2012, the trial court entered a

final order amending the decree that reduced the amount of one of the retirement accounts that

was awarded to Mills by $ 52,347.45. The recalculated total assets were $ 2,567, 647.55. In light

of this reduction, the trial court reduced each parry' s award by $ 26, 173. 73. Ultimately, Mills

received $ 1, 337, 102. 27 ( 52 percent of the recalculated total assets) and Wierenga received

1, 230, 545. 27 ( 48 percent of the recalculated total assets). 

On July 11, 2012, Mills filed a CR 605 motion to vacate and modify the property

division.6

She alleged that Wierenga ( 1) had improperly withdrawn $51, 331. 00 from retirement

accounts while the dissolution was pending and ( 2) had falsely represented to the trial court that

he had mistakenly deposited three separate property checks totaling $28, 149. 23 into community

accounts. 

On November 13, 2012, the trial court denied the CR 60 motion.

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Mills appeals. 

4

The total assets were $2, 619, 995 ($ 1, 363, 276 + $ 1, 256,719). 

5 Mills brought this motion under CR 60( b)( 1) ( " Mistakes, inadvertence, surprise, excusable

neglect or irregularity in obtaining a judgment or order. "); CR 60(b)( 4) ( " Fraud ( whether

heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an

adverse party. "); and CR 60( b)( 11) ( " Any other reason justifying relief from the operation of the

judgment. "). 

6 In her various declarations, Mills acknowledges that the trial court had intended to divide the

property equally between the parties. 

7 The trial court' s order does not explain the trial court' s ruling. Nor can we examine the record

from the motion hearing because neither party has filed a verbatim report of proceedings. 

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No. 44296 -5 -II

ANALYSIS

l

We review a trial court' s decision on a motion to vacate under CR 60(b) for abuse of

discretion. Mitchell v. Wash. State Inst. ofPub. Policy, 153 Wn. App. 803, 821, 225 P. 3d 280

2009) ( citing Haller v. Wallis, 89 Wn.2d 539, 543, 573 P. 2d 1302 ( 1978)), review denied, 169

Wn.2d 1012 ( 2010). " An abuse of discretion is present only if there is a clear showing that the

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

untenable reasons." Moreman v. Butcher; 126 Wn.2d 36, 40, 891 P. 2d 725 ( 1995). "` A decision

is based on untenable grounds or made for untenable reasons if it rests on facts unsupported in

the record or was reached by applying the wrong legal standard. "' Mitchell, 153 Wn. App. at

821 -22 ( internal quotation marks omitted) ( quoting State v. Rohrich, 149 Wn.2d 647, 654, 71

P. 3d 638 ( 2003)). 

The trial court' s November 2011 decree ordered an equal division of the property. If

Mills' s CR 60 motion were successful, the total assets would have been valued at $2, 647, 127. 78; 

79,480. 238

more than the value when the trial court entered the April 2012 order. But even if

Mills' s share of the total assets remained at $ 1; 337, 102.27, as awarded in- the April 2O12 order, - 

she still received SI percent of the total assets. The trial court repeatedly ordered the parties to

divide the assets equally, and Mills does not challenge this portion of the trial court' s decision. 

Even accepting Mills' s allegations that the total asset value should have been higher, Mills still

received slightly more than 50 percent of the assets. Because this award is consistent with the

8 $

51, 331. 00 + $ 28, 149.23 = $ 79,480.23. 

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No. 44296 -5 -II

trial court' s requirement that the parties divide the assets equally, Mills does not show that the

trial court abused its discretion in denying Mills' s CR 60 motion. Accordingly, we affirm. 

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: 

WORSWICK. C. J. 

ON, J. 

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