IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IN THE MATTER OF THE No. 84720-1-I MARRIAGE OF, DIVISION ONE ROBERT W. COONEY,
Respondent, UNPUBLISHED OPINION and
HILLARY A. BROOKS,
Appellant.
SMITH, C.J. — Robert Cooney and Hillary Brooks were married in 1991
and separated in 2016. In June 2020, Cooney petitioned for dissolution. During
discovery, Brooks requested that Cooney produce documents relating to any
trusts that Cooney had established or of which he was a beneficiary. Cooney did
not produce any documents. Soon thereafter, Cooney revealed in a deposition
that he was trustee of his grandmother’s trust and Brooks moved to compel
production of the trust documents. But just days before the deadline for Cooney
to produce the documents, the parties settled, waiving their rights to additional
discovery. The court entered final orders a month later.
Over a year later, Cooney’s grandmother passed away and Brooks
discovered the trust and Cooney’s interest in it as a beneficiary via the probate
court filings. She subsequently moved to vacate the settlement agreement and
dissolution decree on the grounds that Cooney had misrepresented his assets, No. 84720-1-I/2
which the trial court denied. Brooks appeals, asserting that Cooney breached his
fiduciary duty to disclose all assets and arguing that the trial court abused its
discretion in denying her motion to vacate on those grounds. We disagree that
Cooney breached his fiduciary duty and affirm.
FACTS
Hillary Brooks and Robert Cooney were married in December 1991 and
separated in October 2016. In June 2020, Cooney petitioned for dissolution.
During dissolution proceedings, Brooks sought discovery from Cooney,
including a request for “[a]ll trusts [Cooney had] established and all documents
showing contributions [Cooney had] made to the trust, all trusts in which [Cooney
was] a beneficiary, and all documents showing any distributions [Cooney]
received . . . from January 1, 2016 to the present.” Cooney did not produce any
documents in response to this request.
Then, at his deposition in March 2021, Cooney disclosed that he was the
trustee for his grandmother’s trust, that he held her power of attorney for
finances, and that he was listed on his grandmother’s accounts. He denied
receiving any compensation as trustee.
In April 2021, Brooks moved to compel discovery, claiming that Cooney’s
discovery responses were evasive and nonresponsive. In her motion, Brooks
states that Cooney “testified trust documents exist but has not responded to the
request relating to the same or produced responsive documents. . . . Such
amounts potentially go to property distribution.” And in her reply on that motion,
Brooks claimed that Cooney was “a beneficiary of a trust involving Carmelina
2 No. 84720-1-I/3
Cooney and he needs to produce the trust documents immediately, and any
others that might exist for other individuals.”
On April 30, 2021, the trial court granted Brooks’s motion to compel and
ordered Cooney to produce responsive documents within 30 days. But on
May 25, just days before Cooney was required to produce documents, the
parties settled and signed a Civil Rule (CR) 2A separation contract and property
settlement agreement. The agreement awarded 93 percent of the parties’
community property to Brooks, totaling approximately $1.8 million. Under the
terms of the agreement, both parties “warrant[ed] and agree[d]” that the
agreement at the time of execution was “fair, just and equitable and that they
[were] affixing their signatures hereto freely, knowingly, and voluntarily without
duress or coercion of anyone.” Both parties also “acknowledge[d] that each has
an understanding of the nature and extent of their property and the benefits that
are derived from said property” and “that no reliance whatsoever [was] placed
upon representation[s] other than those expressly set forth” in the agreement.
Further, each party attested that they had been advised by counsel “of the right
to conduct legal discovery, obtain asset appraisals, and take other action to
determine the nature and extent of the assets, liabilities, income and expenses of
the Parties related to the awards” in the agreement. And they warranted that to
“the extent that a Party has not taken steps to determine the nature and extent of
the assets, liabilities, income and expenses of the Parties, that Party has willingly
chosen not to do so to avoid the expense and acrimony of litigation.” After they
signed the settlement agreement, Brooks and Cooney submitted a notice of
3 No. 84720-1-I/4
settlement of all claims to the court in early June 2021.
A few weeks later, in late June 2021, Cooney moved to enforce the CR 2A
agreement, claiming that Brooks had made material changes to the parties’ final
orders not agreed to by Cooney. Cooney claimed that Brooks added the
following additional reliances in violation of the CR 2A agreement: 9. Community Personal Property Respondent entered the Agreement in reliance on Petitioner’s statements, including those made under oath in the proceedings, that he is no longer employed by any Sound Physicians entity and has no financial interest in any Sound Physicians entity. Respondent entered the Agreement in further reliance on Petitioner’s statements that he will no longer work as a hospitalist physician and will work instead at 50% of his historical income as a primary care physician.
The court granted Cooney’s motion to enforce the CR 2A agreement, finding that
“[n]either party raised an issue with regard to execution of the Agreement or its
material terms” and that the additional findings proposed by Brooks “did not form
the basis of the Agreement as written and signed by the parties.” The court also
found that Brooks “specifically agreed in Section 2.3 of the Agreement that she
was not relying on any other representations that were not contained within the
Agreement.” The court then adopted Cooney’s proposed findings of fact and
entered final orders contemporaneously with the order to enforce.
Over a year after the court entered final orders, Brooks moved to vacate
the dissolution decree under CR 60(b)(4) and (b)(11), alleging that it was
procured by fraud, misrepresentation, or other misconduct because Cooney hid
4 No. 84720-1-I/5
that he was the “sole beneficiary” of his grandmother’s trust.1 Brooks asserted
that Cooney’s failure to divulge information about the trust was a violation of his
fiduciary duty to disclose all assets to her during dissolution proceedings. She
sought attorney fees, spousal support, and requested that the court compel
production of the trust documents. In her declaration in support of the motion,
Brooks claimed that she only signed the CR 2A agreement because Cooney sent
her an e-mail stating, “I will make $260,000 for the next four years and then have
to bust my a** to make that after.” Brooks did not provide a copy of the e-mail.
She also claimed that “[h]ad [she] known about the Joint Trust, the bank
accounts, and Robert’s status as sole beneficiary to the estates of his
grandmother and her companion, [she] would not have entered into the
Agreement.”
After a hearing, the court denied Brooks’s motion. It found that Brooks
failed to prove by clear, cogent, and convincing evidence that fraud,
misrepresentation, or other misconduct occurred. It then found that the record
clearly established that Brooks knew about the trust and Cooney’s status as
beneficiary before she signed the CR 2A agreement. The court also agreed with
Cooney that his contingent interest in a revocable trust was not an asset and
found that the fact that Cooney was a possible beneficiary to the trust was not
material to the outcome of the parties’ agreement. The court ordered Brooks to
pay Cooney’s attorney fees. Brooks appeals.
1 Cooney is not, in fact, the sole beneficiary of the trust.
5 No. 84720-1-I/6
ANALYSIS
CR 60(b) Motion to Vacate
Brooks asserts that the court made two legal errors when it denied her
CR 60(b)(4) motion to vacate that necessitate reversal. First, she contends the
court erroneously concluded that Cooney’s interest in the trust was not a
“property” interest. And second, she maintains that even if the interest was not a
property interest, the court erred in not considering it because it affected
Cooney’s economic circumstances. We disagree. Contrary to Brooks’s
contention, the trust created a “mere expectancy” rather than a property interest,
and therefore, Cooney did not breach his fiduciary duty by failing to disclose it.
Although Cooney should have disclosed the trust in the spirit of transparency—
and was required to disclose it in response to Brooks’s initial discovery
requests—Brooks’s knowledge of Cooney’s beneficiary status and her
subsequent signing of the CR 2A agreement days before Cooney’s deadline to
produce the trust documents eliminated the requirement that Cooney disclose his
interest in the trust. Moreover, the court did not err by not explicitly considering
whether the trust interest affected Cooney’s economic circumstances because
the court found that the interest was immaterial to the parties’ settlement
agreement.
1. Duty of Disclosure
Spouses owe each other the highest fiduciary duty. Peters v. Skalman, 27
Wn. App. 247, 251, 617 P.2d 448 (1980). This duty does not cease during
dissolution. Seals v. Seals, 22 Wn. App. 652, 655, 590 P.2d 1301 (1979). “The
6 No. 84720-1-I/7
full disclosure mandated by the fiduciary relationship assumes that one party has
information which the other needs to know to protect [their] interests.” In re
Marriage of Burkey, 36 Wn. App. 487, 490, 675 P.2d 619 (1984). Thus, spouses
have a specific fiduciary duty to disclose all community and separate property
before dissolution. Seals, 22 Wn. App. at 656. This duty to disclose does not
require spouses to make use of formal discovery or “resort to subpoenas to
discover these assets.” Seals, 22 Wn. App. at 655; see also In re Marriage of
Bresnahan, 21 Wn. App. 2d 385, 405, 505 P.3d 1218 (2022) (wife could rely on
husband’s asset disclosures without conducting discovery). But spouses are not
required to know the exact financial status of the other spouse. Friedlander v.
Friedlander, 80 Wn.2d 293, 302, 494 P.2d 208 (1972). Rather, the requirement
that spouses have full knowledge of the other’s property interests functions to
ensure the parties “can intelligently determine” whether to enter into settlement
agreements and so that they will not be “prejudiced by the lack of information.”
In re Marriage of Cohn, 18 Wn. App. 502, 507, 569 P.2d 79 (1977).
“Spouses also have a duty to inform the court of their assets.” Bresnahan,
21 Wn. App. 2d at 404. In dissolution proceedings, the trial court has broad
discretion to make a “just and equitable” distribution of property based on the
factors set out in RCW 26.09.080. In re Marriage of Wright, 179 Wn. App. 257,
261, 319 P.3d 45 (2013). However, the court cannot make a fair allocation of
assets and debts without first gaining “thorough knowledge of the parties’
property and liabilities.” In re Marriage of Grant, 199 Wn. App. 119, 130, 397
P.3d 912 (2017). A settlement agreement or dissolution decree “must
7 No. 84720-1-I/8
adequately identify the assets so as to permit the court to approve the agreement
or make proper division.” Yeats v. Yeats’ Estate, 90 Wn.2d 201, 206, 580 P.2d
617 (1978). “At a minimum, the documents must put the parties and the court
upon notice that the assets exist.” Yeats, 90 Wn.2d at 206. If parties in a
dissolution enter into a separation contract, that contract “shall be binding upon
the court unless it finds, after considering the economic circumstances of the
parties . . . that the separation contract was unfair at the time of its execution.”
RCW 26.09.070(3).
a. Whether the Trust Created a Property Interest
In order to determine whether Cooney breached his fiduciary duty to
Brooks, we must first consider whether the trust created a property interest,
disclosure of which would affect the property distribution. We conclude that it did
not.
As a preliminary matter, we must establish whether California or
Washington law applies to this inquiry. The trust states that it shall be construed
in accordance with California law. Neither party appears to dispute that
California law applies.2 Absent a conflict between California and Washington
law, we defer to the trust’s choice-of-law clause. Erwin v. Cotter Health Ctrs.,
161 Wn.2d 676, 694-96, 167 P.3d 1112 (2007). Thus, we apply California law to
determine the trust interest.
Under California law, we interpret de novo a trust instrument, unless there
2 Cooney states that California law applies and cites to both California and Washington law to interpret the trust interest. Brooks claims that the interest created is the same under either California or Washington law.
8 No. 84720-1-I/9
is ambiguity and conflicting extrinsic evidence as to the meaning of the
ambiguous terms. Pena v. Dey, 39 Cal. App. 5th 546, 551, 252 Cal. Rptr. 3d 265
(2019). In interpreting a trust document, “the intent of the trustor prevails and it
must be ascertained from the whole of the trust instrument, not just separate
parts of it.” Scharlin v. Superior Court, 9 Cal. App. 4th 162, 168, 11 Cal. Rptr. 2d
448 (1992). “Ordinary words must be given their normal, popular meaning and
legal terms are presumed to be used in their legal sense.” Scharlin, 9 Cal. App.
4th at 168.
Trust instruments typically create either present interests, entitling a
beneficiary to immediate enjoyment of the trust property, or future interests,
giving a beneficiary rights to receive trust assets at a later time. GEORGE
GLEASON BOGERT & GEORGE TAYLOR BOGERT, LAW OF TRUSTS AND TRUSTEES
§ 181 (3d ed. 2012). These interests may be contingent or vested. A vested
interest is absolute—the occurrence of any future event will not diminish nor
destroy it. RESTATEMENT (THIRD) OF PROPERTY § 25.3 (2010).3 A contingent
interest is more fragile—it may be subject to a condition precedent and may not
take effect in possession or enjoyment. RESTATEMENT § 25.3. The determining
factor for a contingent interest “is the possibility, not the probability, that the
interest will not take effect in possession or enjoyment.” RESTATEMENT § 25.3. If
a gift depends on a future event, such as a beneficiary’s survival, it is usually
determined to be contingent. BOGERT & BOGERT, supra, § 182.
3California courts look to the Restatement (Third) of Property for guidance in interpreting trusts and the interests they create. Dudek v. Dudek, 34 Cal. App. 5th 154, 165-66, 246 Cal. Rptr. 3d 27 (2019).
9 No. 84720-1-I/10
Whether an interest is vested or contingent is not entirely determinative of
whether the interest is “property” subject to division in a dissolution action.
Contingent interests can be property interests, “no matter how improbable the
contingency.” In re Marriage of Brown, 15 Cal. 3d 838, 846 n.8, 544 P.2d 561
(1976). Contingent interests are property interests when they are derived from
an enforceable, contractual right. See, e.g., Brown, 15 Cal. 3d at 841-42
(unvested pension and contingent retirement benefits are property rights
because they represent a contractual right derived from an employment
contract); In re Marriage of Moore, 226 Cal. App. 4th 92, 102, 171 Cal. Rptr. 3d
762 (2014) (accrued vacation benefits are property interests that, if earned during
marriage and before separation, are divisible community property); In re Marriage
of Kilbourne, 232 Cal. App. 3d 1518, 1524, 284 Cal. Rptr. 201 (1991) (attorney’s
contractual right to receive legal fees for services rendered on contingency basis
is a property interest even if contingency does not ripen until after separation).
In contrast, “mere expectancies” are not interests of any kind. Brown, 15
Cal.3d at 844, 846 n.8. “The term expectancy describes the interest of a person
who merely foresees that [they] might receive a future beneficence, such as the
interest of an heir apparent . . . or of a beneficiary designated by a living insured
who has the right to change the beneficiary.” Brown, 15 Cal.3d at 844-45, n.6
(“ ‘The interest of a beneficiary designated by an insured who has the right to
change the beneficiary, is like that of a legatee under a will, a mere expectancy
of a gift.’ . . . But if the holder acquires a contractual right to be named as
beneficiary . . . [their] interest is no longer an expectancy, but a property right.”
10 No. 84720-1-I/11
(quoting Grimm v. Grimm, 26 Cal. 2d 173, 175-76, 157 P.2d 841 (1945))); see
also In re Estate of Giraldin, 55 Cal. 4th 1058, 1065-66, 290 P.3d 199 (2012)
(beneficiary’s interest in property transferred into a revocable trust is “‘merely
potential and can evaporate in a moment at the whim of the [settlor].’ ” (alteration
in original) (internal quotation marks omitted) (quoting Steinhart v. County of Los
Angeles, 47 Cal. 4th 1298, 1319, 223 P.3d 57 (2010))); Marriage of O’Connell, 8
Cal. App. 4th 565, 577, 579, 10 Cal. Rptr. 2d 334 (1992) (absent evidence that
beneficiary is an irrevocable beneficiary of the insurance policy, they have no
property interest in the proceeds until the insured’s death). “[T]he defining
characteristic of an expectancy is that its holder has no enforceable right to his
beneficence.” Brown, 15 Cal. 3d at 845 (emphasis omitted) (alteration in
original).
Here, the trust states in pertinent part: FIFTH AMENDMENT TO THE PETER F. HENNINGSEN AND CARMELINA COONEY 2004 REVOCABLE TRUST .... D: Distribution on Death—Property. On the death of the Surviving Settlor, any property not effectively appointed by the Surviving Settlor shall be distributed as follows: .... The residual Estate property is to be distributed to ROBERT W. COONEY, M.D. If DR. COONEY fails to survive the surviving settlor by 30 days, his gifts shall be distributed to his issue by right of representation.
11 No. 84720-1-I/12
This language creates a contingent interest.4 The trust is revocable and
Cooney’s right to receive the estate property hinges on a future event—the death
of his grandmother, Carmelina Cooney, and her partner, Peter Henningsen. This
characterization is also supported by the limitation in the last sentence—if
Cooney dies before the testators, his interests will pass to someone else. See
BOGERT & BOGERT, supra, § 182 (if beneficiary is required to survive, the gift is
subject to a condition precedent and therefore, contingent).
But the fact that Cooney’s interest is contingent does not mean that it is
automatically a “property” interest. Here, the interest created by the revocable
trust is analogous to that held by a legatee under a will or a beneficiary
designated by an insured who retains the right to change the beneficiary—both
are expectancies of a gift. Neither creates an enforceable right to the benefit—
both are “ ‘merely potential’ ” and “ ‘can evaporate in a moment at the whim of
the [settlor]’ ” or insured. Giraldin, 55 Cal. 4th at 1066 (alteration in original)
(quoting Steinhart, 47 Cal. 4th at 1319) (beneficiaries of trusts); O’Connell, 8 Cal.
App. 4th at 577, 579 (beneficiaries designated by insured). Likewise, Cooney’s
4 Brooks argues on appeal that Cooney’s interest had vested because he
later became sole trustee and “settlor.” Brooks appears to rely on a single sentence from an affidavit of change of trustee, which states, The name(s) of the settlor(s) of the Trust is (are): Robert W. Cooney, Successor Trustee But the document also refers to Carmelina and Peter as “previous trustees”—not “previous settlors”—and Brooks does not explain how Cooney could become a co-settlor of the trust without a modification of the trust instrument. We disagree with Brooks’s argument that a change in successor trustee resulted in a vested interest.
12 No. 84720-1-I/13
interest in the trust was “merely potential”; it could change at any moment on the
whim of his grandmother and her partner. And unlike retirement benefits, which
are property interests despite being unvested and contingent, Cooney possessed
no contractual right to enforce the benefit created by the trust.5 Only upon the
death of Carmelina and Peter would the trust become irrevocable and Cooney’s
rights enforceable. Because Cooney’s interest was uncertain to vest and he had
no contractual right to enforce it, we conclude that Cooney’s contingent interest
in the trust was an expectancy and not a property interest.6
b. Whether Cooney Breached his Fiduciary Duty
Even if Cooney’s interest in the trust was not “property,” Brooks still
contends that Cooney was required to disclose his interest because it affected
his economic circumstances, and thus, could affect the parties’ property
distribution or maintenance awards. We disagree. The interest did not affect the
parties’ economic circumstances because it was contingent. And because the
interest was not a property interest, Cooney did not breach his fiduciary duty to
5 This conclusion makes sense considering the lack of enforceable rights contingent beneficiaries have in other contexts. See, e.g., Babbitt v. Superior Court, 246 Cal. App. 4th 1135, 1143-44, 1146, 201 Cal. Rptr. 3d 353 (2016) (beneficiaries of revocable trusts lack standing to petition probate court for accounting of assets while settlors are alive; even upon death of co-settlor, beneficiary did not have any right to obtain information about disposition of assets while trust was revocable). 6 This outcome aligns with Washington law, too, which is important for
conflict-of-law purposes. Washington courts also do not treat potential inheritance as property to be divided or considered in dissolution proceedings. See In re Marriage of Hurd, 69 Wn. App. 38, 49, 848 P.2d 185 (1993) (concluding that anticipated inheritance is a mere expectancy); In re Matter of Marriage of Leland, 69 Wn. App. 57, 71, 847 P.2d 518 (1993) (approving of Brown and holding that mere expectancies are not divisible property).
13 No. 84720-1-I/14
Brooks.
Spouses in dissolution proceedings have “a specific fiduciary duty to
disclose all community and separate property before dissolution.” Bresnahan, 21
Wn. App. 2d at 403.
Here, Brooks’s actions terminated Cooney’s fiduciary duty. After Brooks
learned of the trust, she moved for an order compelling Cooney to produce the
relevant trust documents. She specifically stated in her motion that Cooney had
acknowledged the existence of a trust, for which he was the trustee, and that
Cooney was “a beneficiary of a trust involving Carmelina Cooney and he
need[ed] to produce the trust documents immediately.” The court granted her
motion and ordered Cooney to produce trust documents within 30 days of the
court’s order. Then, just days before Cooney’s deadline to produce documents,
and while she was represented by counsel, Brooks—who is a lawyer—voluntarily
chose to sign the settlement agreement. In doing so, Brooks warranted that she
had not been coerced into signing the agreement and that she was knowingly
waiving all rights to future discovery. Brooks’s voluntary actions before the
discovery deadline eliminated any further duty on Cooney’s part to produce the
trust documents. Because she had the opportunity to examine the trust
documents and chose to sign away her right to do so, Brooks cannot now argue
that she is entitled to discovery of those same trust documents. Similarly,
because Brooks expressly warranted that she was not coerced into signing the
agreement, she cannot now claim that she was coerced into signing the
agreement absent any evidence of coercion or force.
14 No. 84720-1-I/15
And in any event, the court did consider the interest’s potential impact on
the parties’ economic circumstances and their settlement agreement by finding
that the interest was “not material to the outcome of [the parties’] agreement.”
In supplemental briefing, Brooks contends that even if she had notice of
the trust, under Bresnahan, this notice did not impose upon her a duty of due
diligence to conduct further discovery. Though we agree that there is not a duty
of due diligence, Brooks’s reading of Bresnahan is overbroad. In Bresnahan, the
wife discovered a hidden bank account several months after the dissolution was
finalized and moved to vacate the dissolution decree. 21 Wn. App. 2d at 391-92.
The parties then stipulated that any previously undisclosed or omitted assets
discovered in the future would be divided following the division in the parties’
original settlement agreement. Bresnahan, 21 Wn. App. 2d at 393. A year later,
the wife discovered several other previously undisclosed accounts and again
moved to vacate. Bresnahan, 21 Wn. App. 2d at 393-95. On appeal, this court
rejected the husband’s argument that the wife should have exercised due
diligence in looking for other hidden assets because she was on notice that more
assets might exist after uncovering the first account. Bresnahan, 21 Wn. App. 2d
at 409.
The facts of Bresnahan are readily distinguishable from the present case.
Here, Brooks knew of the trust documents while the wife in Bresnahan had no
prior knowledge that other assets existed before she signed a settlement
agreement. 21 Wn. App. 2d at 390-95. And contrary to Brooks’s urging,
Bresnahan does not protect parties that willfully disregard information uncovered
15 No. 84720-1-I/16
in discovery when that information becomes useful later on.
We conclude that Cooney did not breach his fiduciary duty.
2. CR 60(b)(4)
Having determined that Cooney did not breach his fiduciary duty, we turn
now to whether the court abused its discretion in denying Brooks’s motion to
vacate on the basis of fraud. Brooks contends that the court erred in denying her
motion because the court’s findings are unsupported by substantial evidence.
She specifically challenges the court’s findings that (1) she knew of the trust
before signing the settlement agreement, and (2) that the trust interest was
immaterial to the parties’ settlement agreement. Cooney counters that Brooks is
estopped from arguing fraud on appeal because she did not appeal the court’s
final orders.
We disagree that Brooks is estopped from arguing fraud on appeal.
However, because the court’s findings are supported by substantial evidence and
because Brooks failed to meet her burden of proving by clear and convincing
evidence that Cooney committed misconduct, we conclude that the court did not
abuse its discretion in denying the motion to vacate.
a. Estoppel
We first address Cooney’s claim that Brooks is estopped from arguing
fraud on appeal because she should have appealed the final orders rather than
filing a motion to vacate. As Brooks raised the issue of fraud in her motion to
vacate, we disagree that she is precluded from arguing it on appeal.
CR 60(b)(4) does not allow a party “to relitigate an issue of fraud placed
16 No. 84720-1-I/17
squarely before and decided by the trial court.” Guardianship of Adamec, 100
Wn.2d 166, 178, 667 P.2d 1085 (1983). Thus, an appeal from a denial of a
CR 60(b) motion is “limited to the propriety of the denial not the impropriety of the
underlying judgment.” Bjurstrom v. Campbell, 27 Wn. App. 449, 450-51, 618
P.2d 533 (1980).
Contrary to Cooney’s assertions, Brooks did not argue fraud before the
final orders were entered. Her arguments in opposition to Cooney’s motion to
enforce the settlement agreement concerned Cooney’s representations about his
employment and future earning potential. Brooks first raised the possibility of
fraud in her motion to vacate and is not estopped from arguing it on appeal.
b. Denial of Motion and Challenged Factual Findings
We next turn to whether the court abused its discretion in denying
Brooks’s motion because its findings of fact are unsupported by substantial
evidence. We conclude that the court did not abuse its discretion.
We review a trial court’s decision on a CR 60(b)(4) motion for an abuse of
discretion. Lindgren v. Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990). A
court abuses its discretion if its decision is manifestly unreasonable or based on
untenable grounds or untenable reasons. Lindgren, 58 Wn. App. at 595. We do
not substitute our judgment for the trial court’s or weigh the evidence on
appeal. In re Marriage of Greene, 97 Wn. App. 708, 714, 986 P.2d 144 (1999).
CR 60(b)(4) permits a court to vacate a final judgment for fraud,
misrepresentation, or other misconduct of an adverse party. “The rule is aimed
at judgments unfairly obtained, not factually incorrect judgments.” Sutey v. T26
17 No. 84720-1-I/18
Corp., 13 Wn. App. 2d 737, 756, 466 P.3d 1096 (2020). To prevail on a
CR 60(b)(4) motion, the moving party must establish by clear and convincing
evidence that the adverse party’s fraudulent conduct or misrepresentations
caused the entry of the judgment. Bresnahan, 21 Wn. App. 2d at 406. “Clear
and convincing evidence is evidence showing that a fact is ‘highly probable.’ ”
Bresnahan, 21 Wn. App. 2d at 406 (quoting In re Vulnerable Adult Petition for
Winter, 12 Wn. App. 2d 815, 830, 460 P.3d 667 (2020)). “A trial court may
vacate a judgment based on fraud and enter findings and conclusions
establishing the nine elements of common law fraud” or it may vacate based on
misrepresentations or other misconduct without entering such findings.
Bresnahan, 21 Wn. App. 2d at 406. The misrepresentation or misconduct does
not need to be intentional, it may be merely careless. Hor v. City of Seattle, 18
Wn. App. 2d 900, 912, 493 P.3d 151 (2021).
We review the trial court’s factual findings for substantial evidence, which
is evidence “ ‘sufficient to persuade a rational fair-minded person the premise is
true.’ ” Winter, 12 Wn. App. 2d at 830 (quoting Sunnyside Valley Irrig. Dist. v.
Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)). Unchallenged findings of fact
are verities on appeal. In re Marriage of Akon, 160 Wn. App. 48, 57, 248 P.3d 94
(2011).
Brooks contends that the court’s finding that she had knowledge of the
trust is unsupported by substantial evidence because Cooney “did not say that
he had ever spoken with Brooks about the trust or his beneficiary interest in it.”
She also contends that the court’s finding that the interest was “immaterial” to the
18 No. 84720-1-I/19
settlement agreement is both unsupported by substantial evidence and an error
of law. We are unpersuaded.
Substantial evidence supports the court’s finding that Brooks knew about
the trust. Cooney testified in his deposition that he was a trustee and Brooks
relied on this disclosure when she moved to compel discovery of the trust
documents. Brooks also stated in her reply on that motion that Cooney “is a
beneficiary of a trust involving Carmelina Cooney and he needs to produce trust
documents immediately, and any other that might exist for other individuals.”
Given that Brooks explicitly asked about Cooney’s grandmother’s trust, a rational
fair-minded person would believe that she knew the trust existed.
Substantial evidence also supports the court’s finding that the trust interest
was immaterial to the parties’ settlement agreement. Cooney testified that his
grandmother was using the assets in the trust to pay for “her care, for
maintenance, for housing, insurance, taxes, et cetera.” There was no guarantee
that assets or funds would left in the trust when Cooney’s grandmother and her
life partner passed. The trust also provided that money was to go to other
individuals and that Cooney’s parents would have a life estate in one of the
properties. Above all, the trust was revocable—Cooney’s interest could have
been extinguished at any time. Given the nebulous nature of the trust, the fact
that Cooney’s interest was not a “property” interest under the law, and the
parties’ agreement that Brooks would receive 93 percent of their community
property, substantial evidence supported the court’s finding that the trust interest
was immaterial to the parties’ settlement agreement.
19 No. 84720-1-I/20
Because substantial evidence supported the court’s findings and Cooney
did not breach his fiduciary duty, we conclude that the court did not abuse its
discretion in denying Brooks’s motion to vacate.
3. CR 60(b)(11)
Brooks maintains that the court erred in denying her motion to vacate the
decree under CR 60(b)(11) because Cooney should not be permitted “to breach
his duties and his warranty in the agreement without consequences.” We
disagree that the facts of this case constitute the type of “extraordinary
circumstance” warranting vacation under CR 60(b)(11).
Under CR 60(b)(11), a court may vacate a judgment for “[a]ny other
reason justifying relief from the operation of the judgment.” But the rule is not a
“blanket provision” authorizing relief for all conceivable reasons. State v. Keller,
32 Wn. App. 135, 141, 647 P.2d 35 (1982). Rather, we apply CR 60(b)(11) only
“to serve the ends of justice in extreme, unexpected situations.” In re Det. of
Ward, 125 Wn. App. 374, 379, 104 P.3d 751 (2005); see, e.g., In re Marriage of
Flannagan, 42 Wn. App. 214, 222-23 709 P.2d 1247 (1985) (substantial change
in the law constituted extraordinary circumstances); cf., In re Marriage of
Yearout, 41 Wn. App. 897, 902, 707 P.2d 1367 (1985) (complaints about
separation agreement’s unfairness do not constitute extraordinary
circumstances). The reasons for vacation under CR 60(b)(4) must relate to
“irregularities which are extraneous to the action of the court or go to the question
of the regularity of its proceeding.” Marie’s Blue Cheese Dressing, Inc. v.
Andre’s Better Foods, Inc., 68 Wn.2d 756, 758, 415 P.2d 501 (1966).
20 No. 84720-1-I/21
As discussed, Cooney did not breach his fiduciary duty to Brooks during
the dissolution. Because Brooks’s CR 60(b)(11) argument rests wholly on this
premise, and she does not identify any irregularity on the part of the court, we
conclude that the court did not err in denying her motion to vacate.
Attorney Fees at Trial
Brooks contends that the trial court erred in awarding Cooney fees
because neither Cooney nor the court supplied a basis for doing so. She also
argues that she should be awarded attorney fees for Cooney’s alleged
intransigence. Cooney counters that the court properly awarded him fees
because, as the prevailing party, he was entitled to fees under the settlement
agreement. He also claims that the court correctly awarded him fees for
Brooks’s intransigence. We agree with Cooney that the settlement agreement
provides a basis for the court to award him fees but disagree that the court
awarded fees for intransigence.
Whether a party is entitled to attorney fees is a question of law that we
review de novo. Newport Yacht Basin Ass’n of Condo. Owners v. Supreme Nw.,
Inc., 168 Wn. App. 86, 104-05, 285 P.3d 70 (2012). “The general rule in
Washington is that attorney fees will not be awarded for costs of litigation unless
authorized by contract, statute, or recognized ground of equity.” Durland v. San
Juan County, 182 Wn.2d 55, 76, 340 P.3d 191 (2014). If attorney fees are
authorized, we will uphold an attorney fee award unless the court abused its
discretion. Workman v. Klinkenberg, 6 Wn. App. 2d 291, 305, 430 P.3d 716
(2018). “A trial court abuses its discretion if its decision is manifestly
21 No. 84720-1-I/22
unreasonable or based on untenable grounds or untenable reasons.” In re
Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997). We may
affirm on any basis supported by the record. Bavand v. OneWest Bank, 196 Wn.
App. 813, 825, 385 P.3d 233 (2016).
Here, the parties’ CR 2A agreement provides that “[i]n any action or
proceeding related to this Agreement, whether for specific enforcement,
damages or other remedy, the prevailing Party shall be entitled to an award of
reasonable attorney fees, expert fees, or other costs reasonably incurred in such
action or proceeding.” Because Cooney prevailed before the trial court on an
action to enforce the agreement, the court did not err in awarding him his
reasonable attorney fees on this basis. We note, though, that Cooney’s
argument that the fee award was based on intransigence is unsupported by the
record. The court did not mention intransigence, or anything similar to it in its
order denying the motion to vacate. Nor did Cooney request fees on the basis of
intransigence. Because the fee award is proper under the CR 2A agreement, we
affirm the award.
Attorney Fees on Appeal
Both parties warrant that they are entitled to attorney fees on appeal.
Brooks requests fees due to Cooney’s alleged intransigence and Cooney
requests fees under the parties’ settlement agreement. Because Cooney
prevails on appeal, we award him attorney fees on appeal.
RAP 18.1 permits a party to request attorney fees on appeal where
applicable law grants them that right. Intransigence on appeal or before the trial
22 No. 84720-1-I/23
court may support an award of attorney fees on appeal. In re Marriage of
Mattson, 95 Wn. App. 592, 604, 976 P.2d 157 (1999). “Intransigence includes
foot dragging and obstruction, filing repeated unnecessary motions, or making
the trial unduly difficult and costly by one’s actions.” In re Marriage of Bobbitt,
135 Wn. App. 8, 30, 144 P.3d 306 (2006). Willful misrepresentation or willful
mischaracterization of community property during dissolution proceedings may
constitute intransigence. Bresnahan, 21 Wn. App. 2d at 411-12.
Here, Brooks has not shown that Cooney’s actions rose to the level of
intransigence. Although Cooney should have been more forthcoming about his
interest in the trust, Brooks had the opportunity to discover the trust documents
before signing the settlement agreement and chose not to. Any additional cost of
litigation she occurred was thus self-inflicted. We therefore decline to award
Brooks fees on this ground. And because Cooney prevails on appeal and the
parties’ settlement agreement provides for fees for the prevailing party, we award
him his reasonable attorney fees.
Affirmed.
WE CONCUR: