Opinion
No. 47305-1-I, 47305-1-I.
Filed: December 31, 2001. UNPUBLISHED OPINION
Appeal from Superior Court of King County, No. 99-3-04795-1, Hon. Peter Jarvis, August 30, 2000, Judgment or order under review.
Counsel for Appellant(s), James J. Jameson, 805 164th St S.E. #206, Mill Creek, WA 98012-6316.
Counsel for Respondent(s), Joel E. Bradshaw, Bradshaw Richards, 3302 Fuhrman Ave E #202, Seattle, WA 98102-3832.
Lemuel Mocan appeals a trial court's denial of his CR 60(b) motion to vacate final orders in a dissolution of marriage action. Because Lemuel produced no explanation for his three and a half month delay in filing his motion, we affirm.
I
After a 12 year marriage, Lidia Mocan petitioned for dissolution of her marriage to Lemuel Mocan. Lemuel has a history of depression, anxiety disorder, and obsessive-compulsive disorder.
When his second attorney withdrew, Lemuel proceeded in the case pro se. Lidia noted his deposition. Lemuel failed to appear, but he called to say that he was afraid of a deposition and that he did not want the divorce. Lemuel subsequently responded to neither Lidia's request for a discovery conference nor to her motion to compel discovery. In its order compelling discovery, the trial court ordered Lemuel to pay $1,800 in attorney fees and costs, struck Lemuel's answer to the petition, and authorized Lidia to enter by default findings of fact and conclusions of law, decree of dissolution, parenting plan, and order of child support. No findings of fact and conclusions of law supported the order of default. Two days later, Lemuel appeared at a pretrial conference where he was informed that an order of default had been entered. He was advised to seek an attorney. Several days after the hearing, Lemuel called counsel for Lidia to say that his prior attorney was uninterested in representing him again. Final orders were entered a week later, copies of which were sent to Lemuel. Lemuel did not appeal. Three and a half months passed before Lemuel retained a new attorney and moved to vacate the discovery order and the default entry of final orders.
The trial court denied the motion. Lemuel appeals.
II
Lemuel argues that the final orders should have been vacated on grounds of excusable neglect. He also argues that the underlying order of default should be vacated for the same reason. When a party appeals denial of a CR 60(b) motion, our review is generally limited to the propriety of the denial. We do not review the underlying order. This is because CR 60(b) is intended to correct something extraneous to the action of the court or any irregularity in the proceedings. It is not to be used as a means for the court to correct errors of law in entering the order. The appropriate course in that event is direct appeal.
State v. Santos, 104 Wn.2d 142, 145, 702 P.2d 1179 (1985).
In re Marriage of Maxfield, 47 Wn. App. 699, 703, 737 P.2d 671 (1987).
Bjurstrom v. Campbell, 27 Wn. App. 449, 451, 618 P.2d 533 (1980) (quoting State ex rel. Green v. Superior Court for King County, 58 Wn.2d 162, 164-65, 361 P.2d 643 (1961)).
Bjurstrom, 27 Wn. App. at 451 (quoting Green, 58 Wn.2d at 164-65).
Bjurstrom, 27 Wn. App. at 451.
In this case, Lemuel has raised no issue that an irregularity in the proceedings tainted the entry of the final orders. Accordingly, we do not review the order of default entered as a discovery sanction, but decide only whether the trial court abused its discretion in denying Lemuel's motion to vacate the findings of fact and conclusions of law, decree of dissolution, parenting plan, and order of child support. CR 60(b)(1) authorizes a trial court to vacate a final judgment, order, or proceeding because of mistake, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order. The court has broad discretion in granting or denying such a motion, which will only be reversed if the decision is manifestly unreasonable or based on untenable grounds.
Lindgren v. Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990).
Lemuel argues that because the final orders were entered on default, they should be vacated because he can show a meritorious defense and his neglectful conduct leading up to the entry of the discovery order of default is excusable. When considering whether a final order of default should be vacated on grounds of excusable neglect, a trial court considers whether the moving party has shown that:
(1) Substantial evidence supports a defense to the claim asserted by the opposing party;
(2) The moving party's failure to timely appear in the action, and answer the opponent's claim, was occasioned by excusable neglect;
(3) The moving party acted with due diligence after notice of entry of the default judgment; and
(4) No substantial hardship would result to the opposing party.
White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968).
But this analysis applies to cases where the moving party never appeared in the action and therefore presented no evidence of a defense. The factors have little applicability in Lemuel's case, where he had the opportunity to and did respond to Lidia's petition for dissolution of marriage. The default entry of final orders in this case was not a result of his failure to appear, but because an order of default was entered as a discovery sanction against him.
What constitutes excusable neglect under CR 60(b) is determined after considering the unique facts of each case. Neglect, as the term indicates, refers to negligence, carelessness, or inadvertent mistake. Whether the neglect is excusable is determined by (a) the danger of prejudice to the nonmoving party, (b) the length of delay and its potential impact on judicial proceedings, (c) the reason for the delay, and (d) whether the movant acted in good faith. In this case, we need not review Lemuel's contention that his failure to appear at his deposition or respond to Lidia's discovery motion was occasioned by excusable neglect. Lemuel was explicitly advised by the trial court that an order of default had been entered against him and that he should retain an attorney. He had an opportunity to reverse the consequences of his failure to respond to discovery, but did nothing. Instead, Lemuel waited three and a half months before filing a motion to vacate the final orders. When he did file the motion, he offered no explanation for his delay. We are mindful of Lemuel's history of depression, anxiety, and obsessive-compulsive disorder. But he offered no evidence that his mental illness was both present during the three and a half month delay and the direct cause of his delay. The trial court did not abuse its discretion in denying the motion. Lidia requests attorney fees on appeal. RCW 26.09.140 authorizes a discretionary award of attorney fees on appeal after consideration of the requesting party's need and the other party's ability to pay. The record reflects that Lidia's income is twice that of Lemuel, and that her income exceeds her expenses. We decline to award fees on this basis. Lidia also claims that she is entitled to fees because of Lemuel's intransigence. A court has discretion to award fees where the intransigence of one party increases the fees incurred by the other. But Lidia's allegations of misconduct occurred during the parties' dissolution of marriage proceeding where Lemuel was ordered to pay fees, or in actions extraneous to this appeal. Lemuel did not file a frivolous appeal or engage in any other conduct that would support an award of fees for intransigence. As the prevailing party, Lidia is entitled to her costs on appeal.
City of Goldendale v. Graves, 88 Wn.2d 417, 423, 562 P.2d 1272 (1977).
Briones v. Riviera Hotel Casino, 116 F.3d 379, 381 (9th Cir. 1997).
Briones, 116 F.3d at 381 (citing Pioneer Inv. Servs. Co.v. Brunswick Assocs. Ltd. Partnership, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993)).
In re Marriage of Lilly, 75 Wn. App. 715, 720, 880 P.2d 40 (1994).
In re Marriage of Morrow, 53 Wn. App. 579, 590, 770 P.2d 197 (1989).
RAP 14.2.
AFFIRMED.
AGID and ELLINGTON, concur.