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# I FILED OCTOBER 5, 2017 In the Office ofthe Clerk ofCourt WA State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE IN THEMATTEROF THEMARRIAGE ) No. 34799-1-111 OF ) ) KELLI BENJAMIN, ) ) Respondent, ) UNPUBLISHED OPINION ) and ) ) GREG BENJAMIN, ) ) Appellant. ) FEARING, C.J.

- Greg Benjamin appeals from the trial court's denial ofhis motionto vacate a dissolution decree andparentingplan entered in 2009. We affirm. PROCEDURE Only the facts transpiring after litigationbeganbearrelevance to this appeal. On September 3, 2008, Kelli Benjaminpetitioned for dissolution ofher marriage to Greg Benjamin and filed a proposedparentingplan for the care ofthe couple's six-year-old daughter. Onthe same day, Kelli requested an exparte restraining order against Greg. Kelli alleged she feared Greg'spresence due to his history ofviolence, pending assault charges, and verbal threats. The court granted the restraining order and scheduled a showNo. 34799-1-111 In re Marriage of Benjamin

cause hearing for September 16, 2008. The court continued the hearingtwice because Kelli was unable to serve Greg. On October 10, 2008, Kelli Benjamin sought a court orderpermitting service of GregBenjaminby mail at his last known address on East 8th Avenue, in Spokane. She requested service by mail because she could not locate Greg within Washington State and because he concealed himselfto avoid service ofprocess. In support ofher application, Kelli filed a sheriffs return ofservice, wherein Spokane County SheriffOzzie Knezovich certifiedthat, after three attempts, he was unable to serve Greg atthe 8th Avenue address. The trial court granted Kelli's request. The court's orderprovided that Kelli must complete a return ofservice form to confirmthe mailing. Ourrecord lacks any return of service. The trial court continued a hearing on Kelli Benjamin'spetition for dissolution of marriage and proposedparenting plan three more times because Greg Benjaminremained unserved. Based onboth parties' failure to respond to requests by the courtregarding the status ofthe pending dissolution case, the court ordered Kelli and Greg Benjaminto appear on January 22, 2009 and show cause why the case shouldnotbe dismissed. The court dismissed the case on January 23, 2009. The order ofdismissal confirmedthe court mailed a copy ofthe orderto Kelli. The order did not confirm its mailingto Greg. OnMarch 13, 2009, Kelli Benjamin moved the courtto vacate its dismissal. The court found good cause to granther motion and vacated the dismissal. 2No. 34799-1-111 In re Marriage of Benjamin

OnMay 7, 2009, Kelli Benjamin askedthe court for an order allowing service by publication. She again averred that she could not find Greg Benjamin in this state and he concealed himselfto avoid service ofsummons. Kelli declared that she "triedto serve [Greg] by payingpolice, certified mail and had other copies ofdivorce made for others to

serve [him] and cannot locate him." Clerk's Papers (CP) at 71. She also certifiedthat she mailed a copy ofthe summons in an envelope addressed to Greg's residence. Kelli did not disclose the identities ofthose individuals who attempted service on Greg. The court granted Kelli's motion to publish service. Kelli served Gregbypublication in theLibertyLake Splash on six consecutive weeks from May 14, 2009 through June 18, 2009. TheLibertyLake Splash is a weekly newspaper with general circulation in Liberty Lake and growing city's environs in Spokane County. In May 2001, Spokane County approved theLibertyLake Splash as a legal newspaper. Kelli submitted to the courtproofofservice by publication in the form ofa declaration from JoshuaJohnson, the publisher oftheLibertyLake Splash. On August 7, 2009, Kelli Benjamin filed a motion for defaultbased on Greg Benjamin's failure to appear. The trial court issued an order ofdefault onthe same day. On August 27, 2009, the court entered a decree ofdissolution. The decree continuedthe restraining order against Greg and prohibited him from enteringhis daughter's home or school or coming within two city blocks ofher. On August 27, the trial court also entered Kelli's proposedparentingplan. Theplanplacedthe daughter 3No. 34799-1-111 In re Marriage of Benjamin

with Kelli and restricted Greg's residential time with the daughter based on a history of acts ofdomestic violence. The parenting plan recorded that Greg's conduct might adversely affect his daughter because ofdomestic abuse that createdthe danger ofserious damage to the child's psychological development. The parentingplan, however, granted Greg residential time with his daughter every other Thanksgiving, every Christmas Eve, every Father's Day, and every other one ofherbirthdays. On October 10, 2009, Kelli Benjamin filed a petition to extend the domestic violence protection order. The Spokane Police Department attempted to serve Greg Benjamin with the petition on four occasions to no avail. A police officer attested that "[Greg's] truck was at the address every time I wentthere. The one time someone came to the door they were uncooperative. I sat at the address for 1 

### Yi hours with no luck." CP at 244. The trial court ordered that Kelli serve the extension request by mail. The court entered three ex parte orders for renewal ofthe order due to a lack ofservice on Greg. Then on November 5, 2009, the trial court dismissed Kelli's petition for renewal because Kelli did not attend court that day. On October 13, 2015, six years after entry ofthe dissolution decree andparenting plan, Greg Benjamin filed a petition to modify the parentingplan. OnDecember 8, 2015, the trial court found adequate cause for the petition and, as ofJune 29, 2016, trial was pending. With his petition, Greg averred that he had visited twice a week with his daughter at his home for eight to nine years. 4No. 34799-1-III In re Marriage of Benjamin

On May 23, 2016, Greg Benjamin filed a motion to vacate the August 27, 2009 dissolution order and parenting plan entered by default. In addition to noting clerical

errors in the documents, Greg argued that Kelli did not exercise reasonable diligence in attempting to personally serve him and that Kelli misled the courtregarding her ability to

serve him. In support ofhis contention, Greg attached an insurance check from 2010 addressed to both himselfand Kelli and a 2007 computer entry from OzFitness that indicated he remained on Kelli's account as her husband. Greg claimed he did not learn ofthe dissolution proceedings until October 5, 2015. In response to Greg Benjamin's motion to vacate, the court ordered a show cause hearing. Kelli Benjamin filed a counter-motion for attorney's fees due to Greg's bad faith and intransigence in bringing the motion to vacate without a legal basis. She contended that Greg did not file the motion within a reasonable time and not within a year. In a supporting declaration, Kelli denied that Greg lacked knowledge ofthe dissolution proceedings and cited to a declaration dated October 13, 2015 wherein Greg allegedly admitted that he knew aboutthe divorce and "'did not want to rockthe boat.'" CP at 131. Ourrecord lacks an October 13, 2015 declaration. During oral argument on Greg Benjamin's motion to vacate, Greg maintainedthat he knew not ofthe dissolution proceedings until October 15, 2015 when Kelli personally served him with the 2009 dissolution orders. Greg stated that he lacked any reason to believe Kelli attained a divorce. He emphasized a series ofalleged facts: (1) he remained 5No. 34799-1-III In re Marriage of Benjamin

in contact with Kelli by attending dinners and games with their children, (2) he remained

on Kelli's Oz Fitness account as herhusband until 2014, (3) he frequented OzFitness almost every day to exercise and Kelli worked at OzFitness, (4) his sisters worked with Kelli at Oz Fitness, but she never asked them to serve him, (5) until August 2010, he maintained the same permanentresidence on 8th Avenue, the home he shared with Kelli and their children, and (6) he never received the 2009 pleadings by mail. Atthe show cause hearing, Kelli Benjamin's counsel informedthe trial court that Greg Benjamin conceded, in a previous declaration, knowledge ofthe finality ofthe divorce as late as 2012. Counsel argued, based on this acknowledgment, thatthe passage oftime barred Greg from vacating the default because (i) he did not file his motion within

one year, and (ii) even ifKelli committed fraud, Greg did notbring his motion within a reasonable amount oftime. The trial court denied Greg Benjamin's motion to vacate because Greg failed to establish a basis for vacation under CR 60. In its written order denying the motion, the court found that (1) Kelli published service, during May and June 2009, in an approved newspaper for Spokane County, (2) Kelli oddly failed to file proofofmailing after obtaining two orders to serve by mail, but this failure likely does not showthat Kelli misled the court or committed fraud, (3) the sheriff's office and the police department similarly experienced difficulty in completing service ofprocess on Greg, and (4) in a domestic violence proceeding, Greg was personally served and did not appear. 6No. 34799-1-III In re Marriage of Benjamin

LAWAND ANALYSIS On appeal, Greg Benjamin contends that the trial court erred when denying his motion to vacate the court's August 27, 2009 dissolution order andparentingplan. He argues that Kelli Benjamin fraudulently obtained the defaultjudgmentandthat Kelli improperly served him suchthat the orders are void. Kelli rejects Greg's arguments on the merits. She also argues that, because Greg failed to personally serve herwiththe order to show cause to vacate the decree and because Greg untimely filed the motion to vacate, this court should not or cannothear the merits ofthe motion. This court reviews a trial court's decision on a motionto vacate an order ofdefault

or defaultjudgment for abuse ofdiscretion. Morin v. Burris, 160 Wn.2d 745, 753, 161 P.3d 956 (2007). Discretion is abused ifit is exercised on untenable grounds or for untenable reasons. Morin v. Burris, 160 Wn.2d at 753. A decision is based on untenable grounds ormade for untenable reasons ifit rests on facts unsupported in the record or

was reached by applying the wrong legal standard. Mitchell v. Washington State Institute of PublicPolicy, 153 Wn. App. 803, 821-22, 225 P.3d 280 (2009). CR 60, on which the trial court relied, applies to alljudgments, not onlyjudgments obtained by reason ofa default by the defendant. CR60(b) reads, in relevant part: Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as arejust, the court may relieve a party or his legal representative from a finaljudgment, order, orproceeding for the following reasons:

7No. 34799-1-111 In re Marriage of Benjamin (4) Fraud (whetherheretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct ofan adverse party; (5) Thejudgment is void; (7) Ifthe defendant was served by publication, reliefmay be granted as prescribed in RCW 4.28.200; The motion shall be made within a reasonable time and for reasons ( 1 ), (2) or (3) not more than 1year after thejudgment, order, orproceeding was entered ortaken. In total, CR 60(b) catalogs eleven grounds for vacation ofajudgment, the first three grounds ofwhich mustbe brought within one year ofthe entry ofthejudgmentor order. The remaining grounds mustbe broughtwithin a reasonable amount oftime, except under CR60(b)(5), which impliedly directs a courtto vacate a defaultjudgment that is voidregardless ifthe motion is not broughtwithin a reasonable amount oftime. Greg Benjaminrelies on CR60(b)(4), (5), and (7) in his appeal. Initially, Kelli Benjamin argues the motion is mootbecause Greg neverpersonally served her with the order to show cause. She emphasizes that Greg's return ofservice identifies service on Kelli's attorney's office, but she never agreed to service on her counsel. Nevertheless, Kelli did notraise this argument before the trial court. A party may not generally raise a new argument on appeal that the party did not present to the trial court. In re Detention of Ambers, 160 Wn.2d 543, 557 n.6, 158 P.3d 1144 (2007). A party must inform the trial court ofthe rules oflaw she wishes the court to apply and afford the trial court an opportunity to correct any error. Smith v. Shannon,

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100 Wn.2d 26, 37, 666 P.2d 351 (1983). This court may decline to consider an issue inadequately argued below. InternationalAssociation of Fire Fighters, Local46v. City of Everett, 146 Wn.2d 29, 37, 42 P.3d 1265 (2002); MidMountain Contractors, Inc. v. Department of Labor & Industries, 136 Wn. App. 1, 8, 146 P.3d 1212 (2006). We decline to address Kelli Benjamin's argument ofimproper service. In her appeal brief, she fleetingly mentions that Greg failed to follow the procedure to vacate thejudgmentbypersonally serving her with process and she contends such failure renders the motion moot. Kelli, however, does not cite any legal authority. Kelli also does not explain why she never raised this issue before the trial court. Kelli Benjamin next challenges the timeliness ofGreg Benjamin's motion to vacate. She contends that Greg did not file his motion within a reasonable time as required by CR 60(b). We note that the trial court did not address timeliness. CR 60(b) demands that the movant bring the motion within a reasonable time. What constitutes a reasonable time must be determined by the facts and circumstances ofthe case, butthe critical period is the time between when the party becomes aware ofthe order and when he or she filed the motion to vacate it. Luckett v. Boeing Co., 98 Wn. App. 307, 312, 989 P.2d 1144 (1999). Greg Benjamin filed his motion to vacate on May 23, 2016, more than six years after the dissolution decree. Greg claims that he did not know about the dissolution until October 2015. Atthe advice ofcounsel, he petitioned the court for modification ofthe 9No. 34799-1-111 In re Marriage of Benjamin parenting plan instead ofattempting to vacate the dissolution. At some pointthereafter, Greg parted ways with his counsel and then filed the motion to vacate, which is the

manner in which he claims he originally wanted to proceed. Based on Greg's testimony, the trial court could reasonably conclude that seven months was a reasonable time between becoming aware ofthe final orders, coordinating with legal counsel, and filing the motion to vacate. Therefore, we affirm the motion to vacate on other grounds. Greg Benjamin first contends that the trial court erred in denying his motion to vacate under CR60(b)(4) because Kelli Benjamin obtainedthe defaultjudgmentdecree by fraudulently declaring that she exerted effort to, but could not, locate himto effectuate service. He argues that Kelli filed a false affidavit to obtain an orderto provide service by publication when she never mailed the pleadings to him. Under CR 60(b)(4), the trial court may vacate ajudgmentprocured by fraud, misrepresentation, or misconduct. CR 60(b)(4) targetsjudgments unfairly obtained, not factually incorrectjudgments. Peoples State Bankv. Hickey, 55 Wn. App. 367, 372, 777 P.2d 1056 (1989). Stated differently, CR 60(b)(4) concerns itselfwithprocedural, rather than substantive, fraud. Forthis reason, a party seeking vacation ofajudgmentunder CR 60(b)(4) must demonstrate that the fraud or misrepresentation caused the entry ofthe judgment such that the losing party was prevented from fully and fairly presenting its

case or defense. Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990); Peoples State Bankv. Hickey, 55 Wn. App. at 372. The alleged fraud or 10No. 34799-1-111 In re Marriage of Benjamin misrepresentation must be established by clear and convincing evidence. Peoples State Bankv. Hickey, 55 Wn. App. at 372. The record does not establish, by clear and convincing evidence let alone a preponderance ofevidence, that Kelli Benjamin committed fraud or misled the court. Greg Benjamin's allegations offraud or misrepresentation rest almost exclusively on his self-serving, conclusory declarations. Greg submitted a 2010 insurance checkpayable to himselfand Kelli and a 2007 computer entry for a fitness membership to OzFitness where Greg is listed as Kelli's husband. The computer entry comes from before the dissolution. The check established nothing about Kelli knowing the whereabouts ofGreg

or whether Greg evadedprocess services. The trial court rejected Greg Benjamin's contentionthat Kelli obtained the default judgmentby fraud. This rejection required the trial court to weigh the credibility ofthe. parties. This court does not review credibility determinations on appeal. In re Marriage of Rideout, 150 Wn.2d 337,350, 77 P.3d 1174 (2003). The trial court did not abuse its discretion in declining to vacate the decree under CR 60(b)(4). Greg Benjamin also contends that the trial court shouldhave granted his motion under CR 60(b)(5) because thejudgmentwas void. He argues service was ineffective, and the trial court violated his due process rights by upholding the 2009 orders. Ajudgment entered in a proceeding failing to comply withprocedural due process requirements is void. In re Marriage of Ebbighausen, 42 Wn. App. 99, 102, 708 P.2d 11No. 34799-1-III In re Marriage of Benjamin

1220 (1985). Ajudgmententered withoutjurisdiction over the parties is void. Marley v. Department of Labor& Industries, 125 Wn.2d 533, 539, 886 P.2d 189 (1994). Proper service ofthe summons and complaint is a prerequisite to the court obtainingjurisdiction

over aparty, and ajudgmententered without suchjurisdiction is void. Woodruff v. Spence, 76 Wn. App. 207, 209, 883 P.2d 936 (1994). Greg Benjamin first contends that Kelli failed to act with reasonable diligence in attempting to personally serve him and thus the trial court should not have permitted service by publication. Priorto serving Greg by publication, Kelli attempted to personally serve him through the sheriffs department and then by mail. CR4(c) permits service ofsummons to be completed by either (i) the sheriffofthe county wherein the service is made, or (ii) any person over eighteen years ofage who is not a party and is competentto be a witness in the action. Under CR4(g)(l), ifthe sheriffeffectuates service, proofofservice is satisfied on the return ofthe sheriffs endorsement. Kelli filed a sheriffsreturn ofservice wherein SheriffOzzie Knezovich attested that he attempted to serve Greg three times, but was unsuccessful. As a result, Kelli requested and the court ordered service by mail. Under CR4(d)(4), service by mail is permitted under "circumstancesjustifying service by publication" and ifthe serving party demonstrates, by affidavit, facts showing that service by mail isjust as likely to give actual service by publication. An affidavit filed in support ofservice by mail must contain every requirement found in RCW 12 

# lNo. 34799-1-III In re Marriage of Benjamin 4.28.100, except for the requirement that the plaintiffmust first mail a copy ofthe

summons and complaintto defendant priorto obtaining an order to allow service by mail. Jones v. Stebbens, 122 Wn.2d 471, 481, 860 P.2d 1009 (1993). An affidavit is sufficient where it clearly shows all the conditions required, although it does not literally follow the wording ofthe statute. Jones v. Stebbens, 122 Wn.2d at 482 (citingJesseph v. Carroll, 126 Wash. 661,666,219 P. 429 (1923)). FormerRCW4.28.100 (2005) provides in relevantpart: When the defendant cannotbe found within the state, and upon the filing ofan affidavit ofthe plaintiff, his agent, or attorney, with the clerk of the court, stating thathe believes the defendant is not a resident ofthe state, or cannot be found therein, that he has deposited a copy ofthe summons ... and complaint in the post office, directed to the defendant at his place of residence, unless it is stated in the affidavit that suchresidence is not known to the affiant, and stating the existence ofone ofthe cases hereinafter specified, the service may be made bypublication ofthe summons, by the plaintiffor his attorney in any ofthe following cases: (2) When the defendant, being a resident ofthis state, has departed therefrom with intent to defraud his creditors, orto avoid the service ofa summons, orkeeps himselfconcealed therein with like intent. Kelli Benjamin's declaration showed facts satisfying the requirements ofRCW 4.28.100. The facts demonstrated that Greg Benjamin, a Washington resident, concealed himselffor the purpose ofavoiding service and that Kelli exercised reasonable diligence to locate Greg by hiring the sheriffs office, who made three attempts at service. Greg Benjamin correctly notes that Kelli Benjamin never filed proofofservice by mail. Nonetheless, the lack ofa return ofservice is irrelevant. Under CR4, failure to 13No. 34799-1-111 In re Marriage of Benjamin

make proofofservice does not affect the validity ofthe service. CR4(g)(7); Jones v. Stebbens, 122 Wn.2d at 482 (1993). When the petitioner serves process bypublication or mailing, the failure to file proofofnotice amounts to a mere irregularity. Jones v. Stebbens, 122 Wn.2d at 482 (citing Crider v. Othello, 9 Wn. App. 536,538,513 P.2d 571 (1973)). The record demonstrates that, after Kelli Benjamin soughtto serve by mail, Greg Benjamin remained unserved. Accordingly, Kelli requested to serve Greg bypublication. We now evaluate the validity ofservice by publication. The trial court allowed service on Greg Benjaminby publication in accordance with former RCW 4.28.100. We already citedportions ofthe statute, but repeat some portions here:When the defendant cannot be found within the state, and upon the filing ofan affidavit ofthe plaintiff, his agent, or attorney, with the clerk of the court, stating that he believes that the defendant is not a resident ofthe state, or cannot be found therein, and that he has deposited a copy ofthe summons (substantially in the form prescribed in RCW 4.28.110) and complaint in the post office, directed to the defendant at his place of residence, unless it is stated in the affidavit that such residence is not known to the affiant, and stating the existence ofone ofthe cases hereinafter specified, the service may be made by publication ofthe summons, by the plaintiffor his or her attorney in any ofthe following cases: (2) When the defendant, being a resident ofthis state, has departed therefrom with intent to defraud his creditors, orto avoid the service ofa summons, or keeps himselfconcealed therein with like intent; (4) When the action is for (a) establishment or modification ofa 14No. 34799-1-III In re Marriage of Benjamin parenting plan orresidential schedule; or (b) dissolution ofmarriage, legal separation, or declaration ofinvalidity, in the cases prescribed by law. The court order authorizing publication did not identify any subsection ofthe statute. RCW 4.28.100(4) authorizes service by publication in dissolution proceedings. In re Marriage of Powell, 84 Wn. App. 432,437,927 P.2d 1154 (1996). Reliance on subsection (4), the pendency ofa dissolution action, however, does not secure personal jurisdiction such that the court could resolve all issues in a dissolution. In re Marriage of Logg, 74 Wn. App. 781, 786, 875 P.2d 647 (1994). Accordingly, Kelli must rely on RCW 4.28.100(2) to establish personaljurisdiction. In re Marriage of Logg, 74 Wn. App. at 786. RCW 4.28.100 permits summons by publication if(i) the defendant cannot be found in the.state, (ii) the plaintifffiles an affidavit stating that she believes the defendant cannot be found in the state, (iii) a copy ofthe summons has been mailed to the defendant's address, ifknown, and (iv) the plaintiffs affidavit declares thatthe defendant, being a resident ofthe state, departed therefrom with intent to defraud his creditors, to avoid the service ofa summons, orkeeps himselfconcealed therein with like intent. In re Marriage of Logg, 74 Wn. App. at 785. Kelli Benjamin averred that Greg Benjamin could not be found in the state and concealed himselfto avoid service ofthe

summons. Kelli stated she unsuccessfully attempted to locate Greg and serve him by "payingpolice, certified mail and had other copies of [the] divorce made for others to

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serve [him]." CP at 71. She also certified that she deposited a copy ofthe summons in the post office, directed to Greg's place ofresidence. Accordingly, Kelli complied with the dictates ofRCW4.28.100. Evidence supported Kelli Benjamin's declaration that Greg concealed himselfto avoid service by summons. In the related domestic violence proceeding, the Spokane Police Department attempted to serve Greg at his 8th Avenue address on four separate occasions with no luck. A sheriffdeputy attested that he saw Greg's truck on each occasion. On one occasion, someone answered the door butrefused to cooperate. On another occasion, the deputy sat at the address for one and one-halfhours. Greg Benjamin challenges Kelli's use ofthe LibertyLake Splash for publication. RCW 4.28.110 establishes the manner ofpublication and form ofsummons. Publication must be in a newspaper ofgeneral circulation in the county where the plaintifffiled suit. The LibertyLake Splash fulfilled this requirement. The newspaper's publisher declared that he published Kelli's summons for six consecutive weeks from May 14, 2009 through June 18, 2009, fulfilling another statutory dictate. Greg does not challenge the contents ofthe summons published. Therefore, Kelli satisfied the publication requirements. Greg Benjamin last assigns error to the trial court's denial ofhis motion to vacate under CR 60(b)(7). CR60(b)(7) allows a trial court to relieve a party from a final order ifthe defendant was served by publication as prescribed in RCW 4.28.200, but not in a dissolution action. Nevertheless, Greg fails to follow RAP 10.3(a)(6)'s requirement to 16No. 34799-1-III In re Marriage of Benjamin

include in his briefan argument in support ofthis final assignment oferror, together with citations to legal authority and references to relevantparts ofthe record. He omits any reference to RCW 4.28.200's exclusion ofmarriage dissolution actions. This court does not consider conclusory arguments that are unsupported by citation to authority. Joy v. Department of Labor & Industries, 170 Wn. App. 614,629,285 P.3d 187 (2012). Passing treatment ofan issue or lack ofreasoned argument is insufficient to meritjudicial consideration. West v. Thurston County, 168 Wn. App. 162, 187, 275 P.3d 1200 (2012); Hollandv. City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998). Therefore, we decline to review this issue.

brief: Kelli Benjamin requests attorney fees be awarded against Greg. She wrote in her

Ms. Benjamin requests pursuant to RAP 14 that her attorney fees be paid to her. Attorney fees are appropriate as this appeal presented no genuine issues ofmerit for review. Amended Resp't Br. at 10. RAP 14.3(a) only allows statutory attorney fees, not reasonable attorney fees, along with other costs. Since Kelli prevails on appeal, we grant her costs available under RAP 14.3(a). Our court commissioner will determine the amount ofcosts on the filing ofa cost bill. CONCLUSIONS We affirm the trial court's denial ofGreg Benjamin's request to vacate the 2009 dissolution decree and parentingplan. We grant Kelli Benjamin's request for costs on 17No. 34799-1-111 In re Marriage of Benjamin appeal. A majority ofthe panel has determined this opinion will notbeprinted in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW 2.06.040.

WE CONCUR:

Pennell, 

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