Alina Farooq v. Azeem Khan

• Court: Court of Appeals of Washington
• Decided: March 2, 2020
• Docket: 77974-5
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

No. 77974-5-I ALINA FAROOQ, DIVISION ONE Respondent, UNPUBLISHED OPINION V.

AZEEM KHAN,

Appellant. FILED: March 2, 2020

CHUN, J. — In December 2016, the trial court ruled Alma Farooq could

relocate with her son D.K. from Washington State to Atlanta, Georgia. The trial

court entered a relocation order and a temporary parenting plan, and it scheduled

a review hearing for December 2017. At the review hearing, Azeem Khan, D.K.’s

father, claimed that Farooq had induced the trial court to enter the relocation

order by means of fraud, and he moved to vacate the order. The trial court

denied the request and entered a final parenting plan. Khan then appealed.

Because we conclude the trial court did not abuse its discretion by declining to

vacate the relocation order, we affirm.

I. BACKGROUND

In December 2016, the superior court held a trial to determine whether to

grant Farooq’s request to relocate with her son D.K. from Washington State to

Atlanta, Georgia. Khan opposed the request. On December 29, 2016, the trial No. 77974-5-1/2

court entered a final order allowing relocation and a temporary parenting plan.

In reaching its conclusion, the trial court weighed the statutory relocation factors

under ROW 26.09.520; and, in weighing those factors, noted, among other

things, that Farooq had better financial prospects in Atlanta. The trial court

additionally set a review hearing for December 26, 2017, and indicated that if

either party were not following the temporary parenting plan, it would revise the

parenting plan at that hearing. Khan did not move for reconsideration of the

relocation order or temporary parenting plan. Although he initially appealed the

temporary parenting plan, he abandoned that appeal. See Khan v. Faroog,

No. 76378-4 (Wash. Ct. App. dismissed May 3, 2017).

At the review hearing in December 2017, Khan claimed that, during the

relocation hearing, Farooq had misled the court about her ability to find work in

Washington State, and asked the court to vacate the relocation order on that

ground. Farooq conceded that she had worked as a short-term contractor in

Washington in 2016. In its oral ruling, the trial court indicated that, although

Farooq had misrepresented her financial circumstances during the relocation

hearing, it would not disturb the relocation order because allowing D.K. to remain

in Atlanta served his best interests. The court then entered a final parenting

plan.

On January 24, 2018, Khan purported to appeal the final parenting plan,

the 2016 relocation order, and the temporary parenting plan.

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II. ANALYSIS

Khan argues we should reverse the trial court’s relocation ruling because

it improperly weighed the factors for relocation, and because Farooq misled the

trial court as to her ability to find work in Washington State.1 Because we

determine the trial court did not abuse its discretion in denying Khan’s motion to

vacate the relocation order, we affirm.2

Khan argued to the trial court that Farooq had misled the court about her

ability to find work in Washington State and he requested vacatur of the final

relocation order on that ground. Essentially, his request constituted a CR 60(b)

motion. We review a trial court’s decision on a motion to vacate under CR 60(b)

for an abuse of discretion. Jones v. City of Seattle, 179 Wn.2d 322, 369, 314

P.3d 380 (2013). A trial court abuses its discretion where its decision is

manifestly unreasonable, or exercised on untenable grounds, or for untenable

reasons. In re Schuoler, 106 Wn.2d 500, 512, 723 P.2d 1103 (1986). A trial

court has “considerable discretion” in their disposition of motions under CR 60(b).

Jones, 179 Wn.2d at 361.

In his opening brief, Khan raised two additional issues regarding the constitutionality of RCW 26.09 and compensation for travel to Atlanta. Khan abandoned those two issues in his reply brief. 2 As discussed below, Khan’s request was essentially a CR 60(b) motion. “An

appeal from the denial of a CR 60(b) motion is not a substitute for an appeal and is limited to the propriety of the denial, not the impropriety of the underlying order.” Inre Dependency of J.M.R., 160 Wn. App. 929, 938 n.4, 249 P.3d 193 (2011). Thus, only the trial court’s denial of Khan’s CR 60(b) motion, and not Khan’s appeal of the trial court’s weighing of the statutory relocation factors, is properly before the court.

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For a court to relieve a party from final judgment or order on the basis of

fraud, misrepresentation, or misconduct of an adverse party, the moving party

must establish such by clear and convincing evidence. Lindqren v. Lindqren,

58 Wn. App. 588, 596, 794 P.2d 526 (1990); CR 60(b)(4). Relief under CR

60(b)(4) is authorized only if the alleged fraud actually caused the entry of

judgment “such that the losing party was prevented from fully and fairly

presenting its case or defense.” Lindqren, 58 Wn. App. at 596.

At the review hearing, Farooq conceded that, contrary to what she had

said at the relocation hearing, she worked as a short-term contractor in

Washington State in 2016. But in its oral ruling at the relocation hearing, the trial

court emphasized that it was not just Farooq’s inability to find work in Washington

State that led it to enter the relocation order. The trial court, at the review

hearing, accepted Khan’s contention that Farooq had misrepresented her

financial circumstances and the difficulties she had finding work in Washington

State. Nevertheless, the trial court further indicated that the task before it was to

determine whether allowing D.K. to remain in Atlanta served his best interests.

The court recognized the fact that D.K. would see his father less if he remained

in Atlanta. But it determined that allowing D.K. to remain served his best

interests, because Atlanta has a lower cost of living, he has a number of relatives

on Farooq’s side in Atlanta, and he has integrated into his school and social

setting in Atlanta. Thus, the trial court declined to vacate the relocation order.

The trial court’s determination that the evidence of fraud would not alter its

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determination of D.K.’s best interests fell within its “considerable discretion.” See

Jones, 179 Wn.2d at 361. We thus decline to vacate the relocation order.

Affirmed.

7 WE CONCUR:

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