IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of No. 83233-6-I JOHN FRANCIS LEHMANN, DIVISION ONE Respondent, UNPUBLISHED OPINION v.
LILLIAN LEHMANN,
Appellant.
BIRK, J. — Mother, Lillian Lehmann, and father, John Lehmann, share a
son, J.L. The mother gave notice of an intended relocation, in response to which
the father filed a petition to modify the parenting plan. The superior court held a
two-day trial and entered a final order modifying the parenting plan. The mother
did not disclose during trial that she and her husband had entered into a contract
to purchase a different home and were in the process of closing during trial. The
mother subsequently filed a second notice of an intended relocation to the new
home. The father filed a CR 60(b) motion for relief from the final order due to
misconduct by the mother at trial, which the trial court granted. The mother
appeals. We conclude the trial court acted within its discretion and affirm.
I
The father and mother were previously married. On January 10, 2017, the
parents entered into a final parenting plan by agreement. No. 83233-6-I/2
On January 10, 2020, the mother provided a statutory relocation notice that
she was seeking to relocate from Redmond to Bellevue, and stated in her notice
that she planned to remarry and live with her new husband, who rented a home
there. The move entailed a change of school for J.L. to Wilburton Elementary
School, which is in the Bellevue School District. The notice stated that J.L. would
begin at Wilburton in fall 2020. The new address stated in the notice was on NE
7th Place, Bellevue, Washington. This notice was signed under penalty of perjury,
and included an affirmation that the mother would update her address if more
information became available. The father did not object to this move, but on
February 14, 2020 filed a petition to change the parenting plan. This petition
requested minor changes to eliminate ambiguities and provisions that invited
conflict, and requested modifications to account for the distance created by the
mother’s proposed relocation. The father requested adjustments to dispute
resolution, decision-making, and transportation arrangements, among other
things. On June 22, 2020, the father filed an amended petition titled, “Objection
about Moving with Children and Petition about Changing a Parenting/Custody
Order” that stated, “I do not object to the child[] moving with the relocating person,
but I ask the court to approve my proposed parenting plan.”
On February 8, 2021, the mother and her new husband entered into a
contract to purchase a new home near Bridle Trails State Park in Bellevue (Bridle
Trails home). While still in the Bellevue School District, the new address for the
Bridle Trails home would require J.L. to attend a middle school and high school
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different from the ones to which Wilburton Elementary students would matriculate.
The mother did not inform the father or the court of this planned purchase.
A two-day trial was held on the father’s petition on March 15 and 16, 2021.
The mother’s purchase of the Bridle Trails home closed on March 26, 2021. The
mother did not disclose the pending purchase of the Bridle Trails home at any point
during the trial, despite future moves and concerns about J.L.’s emotional and
physical stability featuring prominently in the proceedings.
The trial court entered its final order and a modified parenting plan pursuant
to the trial on April 16, 2021. The final order included detailed analysis of the
transportation burdens on the father based on the originally disclosed Bellevue
address and J.L.’s associated school. The order included the trial court’s
assessment relying on the mother’s testimony that J.L. was “meeting kids in his
neighborhood” and noting the mother “testified credibly” that “she does not intend
to further relocate” and was “adamant she would not do so.” The new parenting
plan included a new condition on joint decision-making stating, “If the mother
violates the decision-making protocol in any respect, decision-making shall be
made solely by the father.” The decision-making protocol listed “[e]ducation (such
as where to attend . . . )” and [r]outine, non-emergency health care decisions” as
“Major Decisions.” (Boldface omitted.)
Following entry of the final order, in April and May 2021, the mother
participated in selecting elective courses for J.L. at Chinook Middle School, the
school he would have attended before the move to the Bridle Trails home.
3 No. 83233-6-I/4
On June 8, 2021, the mother gave notice of intent to relocate to the Bridle
Trails home. On June 9, 2021, the mother, without input from or including the
father, completed an address change form with the Bellevue School District, which
caused J.L. to be enrolled in Odle Middle School, instead of Chinook Middle
School, for the coming year. To support the change of address, the mother
provided utility bills for April 2021 and May 2021.
In response to the June 8 notice of intent to relocate, the father filed a motion
to vacate the final order under CR 60(b). The trial court held a hearing on the
motion on August 31, 2021, and entered a written order on September 1, 2021,
containing findings of fact and conclusions of law. The court vacated the final order
and parenting plan entered on April 16, 2021, ordered a new trial, granted the
father sole decision-making for major decisions regarding the child pending trial,
and awarded attorney fees to the father. In its oral ruling, the court had stated, “I
do think that there is more than enough here that qualifies for me to invoke the
provision in the parenting plan that I shift the decision-making over to the father.”
This decision was based in part on the mother’s failure to disclose that members
of her household had tested positive for COVID-19 until after she transferred J.L.
to the father’s care, which the trial court stated was “obviously a medical decision
that needed to be made jointly and transparently.”
The mother appeals.
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II
A decision to vacate a final judgment under CR 60(b) is reviewed for abuse
of discretion. Barr v. MacGugan, 119 Wn. App. 43, 46, 78 P.3d 660 (2003). A
court abuses its discretion when its decision is based on untenable grounds or
reasoning. Id. “ ‘The trial court is in the best position to most effectively determine
if . . . misconduct prejudiced a party’s right to a fair trial.’ ” Andren v. Dake, 14 Wn.
App. 2d 296, 305, 472 P.3d 1013 (2020) (concerning counsel’s violation of rulings
in limine) (internal quotation marks omitted) (quoting Spencer v. Badgley Mullins
Turner PLLC, 6 Wn. App. 2d 762, 790, 432 P.3d 821 (2018)). When a trial court
vacates its own decision and grants a new trial, an appellate court will give the trial
court “ ‘even greater discretion’ ” on review because trial courts have a strong
interest in preserving the finality of their judgments and preventing their dockets
from becoming overcrowded with meritless retrials. In re Marriage of Bresnahan,
21 Wn. App. 2d 385, 407, 505 P.3d 1218 (2022) (quoting State v. Hawkins, 181
Wn.2d 170, 179, 332 P.3d 408 (2014)). In reviewing the trial court’s exercise of
discretion, this court does not weigh the evidence or assess the credibility of
witnesses. Dalton v. State, 130 Wn. App. 653, 656, 124 P.3d 305 (2005).
CR 60(b)(4) authorizes a court to vacate a final judgment for fraud,
misrepresentation, or other misconduct of the adverse party. To obtain a new trial
under this rule, a party must show by clear and convincing evidence that the
fraudulent conduct or misrepresentation of the other party prevented the losing
party from fully and fairly presenting his case or defense. Bresnahan, 21 Wn. App.
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2d at 406. The clear and convincing standard is satisfied by showing that the
evidence of a fact is “highly probable.” Id. at 406. CR 60(b)(4) addresses
judgments that were “ ‘unfairly obtained,’ ” as opposed to “ ‘factually incorrect.’ ”
Id. at 406 (quoting In re Vulnerable Adult Pet. for Winter, 12 Wn. App. 2d 815, 830,
460 P.3d 667 (2020)). The misconduct or misrepresentation need not be
intentional, but may merely be careless. Hor v. City of Seattle, 18 Wn. App. 2d
900, 912, 493 P.3d 151 (2021), review denied, 198 Wn.2d 1038, 501 P.3d 142
(2022).
We conclude the trial court did not abuse its “even greater” discretion when
it found that the mother had engaged in misconduct and vacated the final order
under CR 60(b)(4).
A
The trial court concluded the mother’s failure to disclose the Bridle Trails
home prevented the father from fairly presenting his case. We agree. The mother
contends the court erred when it granted the father’s motion because she “did not
deny the father’s repeated claims that she will relocate again because she was
living in a rental, and testified truthfully that she intended to remain in Bellevue, her
failure to disclose that she was considering purchasing a home within Bellevue”
therefore could not have substantially interfered with the father’s ability to present
his case. However, the court relied on CR 60(b)(4) in its order which “is based on
the fairness of the process,” not on the outcome. As the trial court stated in its
order, “Under CR 60(b)(4), a trial court may vacate a judgment entered that was
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procured by fraud, misrepresentation, or misconduct. ‘The rule is aimed at
judgments unfairly obtained, not factually incorrect judgments.’ ” (quoting Hor, 18
Wn. App. 2d at 912.) The trial court concluded that “[w]hile [the mother]’s testimony
may have been true, it was also artful because there was an overarching concern
about future moves. These concerns at trial should have crystal[l]ized the duty [to]
disclose information about the Bridle Trail[s] home that had already attached by
February 8, 2021.” In response to the father’s CR 60 motion, the mother filed a
declaration testifying that she discussed the Bridle Trails home with her attorney,
but her attorney advised the purchase was “not relevant to the trial.” According to
the mother’s testimony, her attorney based this on characterizing the father’s
modification petition as being based on “my then move from Redmond in Lake
Washington School District to Bellevue in Bellevue School District.” As the trial
court appreciated both in its final order and its order granting the CR 60 motion,
the father’s petition was not so narrowly drawn. In her declaration, the mother
went on to state that the father was relying on her living in a rental home to “make
allegations of instability against me.” The mother offered this statement to defend
the Bridle Trails move as bringing stability, but what is relevant for purposes of
evaluating the CR 60 order is that, as this testimony implicitly acknowledges, the
location, nature, and timing of the mother’s living situation was being argued by
the parties in the underlying modification petition.
The trial court found the father relied on outdated information when
preparing for and arguing at trial, and the mother “allowed the entire trial to be
7 No. 83233-6-I/8
focused on at best incomplete, if not false information about where the child would
live and what schools he would attend.” “Because of [the mother’s] concealment
of the true address where she intended the child to live and the schools she
intended the child to attend, [the father] did not have the correct information upon
which to evaluate whether or not to object to the relocation.”
The trial court’s reasoning is supported by the record. At trial, the mother
testified that she planned to integrate J.L. into a community in 5th grade so that he
would have friends going into middle school, and high school, and the trial court
was convinced she would not disrupt J.L. again. Given the fact the mother and
her husband had entered into a contract for the Bridle Trails home over a month
before she gave this testimony, it was misleading of her to represent that J.L.’s
education and community would not be disrupted again. While she technically
testified that she intended to “stay in the Bellevue School District until [J.L.]finishes
his primary education in the school district,” the implication of her testimony was
that J.L. would continue in the same track with the same peers, not that he would
be moved to a new middle school with different peers. The mother testified she
had discussed the move with educators, and decided “if we were going to move .
. . it is actually more beneficial to do it now when he is still in fifth grade elementary
school so that he can actually go into middle school with the same Bellevue
community he was already in. . . . So we are going to . . . let him build . . . in fifth
grade and move him to Bellevue so that he has high school, middle school, you
know, all stay within the same school district.” The mother agreed when she was
8 No. 83233-6-I/9
specifically asked to clarify that J.L. was going to be in a new school the following
year, only because he is moving into middle school. This supports the trial court’s
finding that the mother “allowed the entire trial to be focused on at best incomplete,
if not false information about where the child would live and what schools he would
attend.” A considerable portion of the trial was devoted to testimony concerning
J.L’s educational and social stability.
The mother does not demonstrate the trial court abused its discretion by
basing its decision on untenable grounds or reasoning under CR 60(b)(4). Under
the even greater discretion standard of review, we do not disturb the trial court’s
finding that the mother’s failure to disclose the Bridle Trails home during trial
prevented the father from fairly presenting his case.
B
The trial court relied in part on the view that the mother had a duty to provide
updated information regarding the Bridle Trails home. Under RCW 26.09.430, the
parent with whom the child resides a majority of their time, here, the mother, is
required to provide notice of an intended relocation. Under RCW 26.09.440(3),
“[a] person required to give notice of an intended relocation of the child has a
continuing duty to promptly update the information required with the notice as that
new information becomes known.” The mother contends that any duty to update
information on an intended relocation under RCW 26.09.440(3) cannot extend past
the time period that the party receiving notice has to timely object. As a result, the
mother argues that by the time of the March 2021 trial, she had no duty under the
9 No. 83233-6-I/10
statute to update information in regard to her January 2020 notice, which to that
point was the only notice she had given. We do not decide the time period during
which the duty to update under RCW 26.09.440(3) persists, because we conclude
the mother had an independent duty not to mislead the court through her testimony
and arguments leading up to and during the March 2021 trial. We also do not
reach, but leave to exploration on retrial, the question whether the mother’s
January 2020 notice was false when made, and if so, the appropriate remedy if
any.
In family law proceedings, parties owe a duty of candor beyond that in
“arm’s-length” transactions to disclose information both to each other and to the
court. See Bresnahan, 21 Wn. App. 2d at 405 (husband owed a fiduciary duty in
a dissolution action to disclose all assets to both the wife and the court). The
mother’s contention that she had no duty to make any disclosure about the Bridle
Trails home depends on her position that she did not form the intent to move to
that home until June 8, 2021, and that at the time of the trial, the move was a “mere
possibility.” The trial court found that while there may have been contingencies
related to the purchase of the Bridle Trails home, “these were specific, concrete
scenarios known to [the mother]. . . . the information could have a bearing on the
approaching trial and [the father’s] positions, and she was obligated to pass on
that information ‘as [it became] known.’” The trial court was within its discretion to
conclude the mother’s testimony and arguments were misleading with respect to
her plans to move and constituted misconduct under CR 60(b)(4).
10 No. 83233-6-I/11
The authorities the mother cites to support her argument that she had no
duty to make disclosure about the Bridle Trails Home do not undermine the trial
court’s conclusion that a new trial is appropriate. The mother argues that once she
moved J.L. to the first residence in Bellevue, it was an “accomplished relocation,”
and that under In re Marriage of McDevitt, the only statutory duty she had was to
provide further notice under RCW 26.09.430 once her intent to relocate from the
Bellevue rental to the Bridle Trails home became reality. 181 Wn. App. 765, 772-
73, 326 P.3d 865 (2014). However, the facts in McDevitt are distinguishable.
In McDevitt, a mother filed a notice of intent to relocate the children from
Hawaii to Colorado, where her new husband would be employed. Id. at 767. The
father did not object to this move, and the mother and children relocated while trial
was pending on the relocation. After trial, the court announced its decision and
noted concern that the mother had not always been acting in good faith and
ordered that the father’s proposed parenting plan be adopted. Id. at 768. The
mother attempted to withdraw her notice of intent to relocate to Colorado and said
she intended to return with the children to Hawaii, arguing the court no longer had
authority to modify the parenting plan because she had withdrawn the notice. Id.
The trial court denied reconsideration and entered orders implementing the
decision and setting forth the new parenting plan. Id. On appeal, this court held
the trial court properly enforced its decision based on the mother’s relocation to
Colorado. Id. at 773. The mother had made two relocations since the dissolution
of the marriage, and “[u]nder these circumstances, we think the trial court properly
11 No. 83233-6-I/12
could act upon the actual factual circumstances before it rather than on the
anticipated future conduct of [the mother].” Id. at 772.
The father argues that because the mother here knew that the address she
provided during the modification hearing was only temporary, it was not in fact an
“accomplished” relocation like the one in McDevitt. In addition, the court in
McDevitt pointed out that “allowing [the mother] to withdraw her request at that
stage essentially gave her veto power over a decision she did not like. A parent,
rather than the trial judge, then would be the one who decided what was in the
current best interests of the children. Such an outcome is contrary to the legislative
intent of the parenting plan statute.” Id. at 772-73. McDevitt shows that the trial
court is expected to have complete information regarding the parties’ plans for the
children at the time of the modification hearing in order for the court to effectively
exercise its authority to determine what is in the best interests of the children. The
mother in this case deprived the trial court of information that it needed in order to
appreciate the reality of J.L.’s situation—that the mother planned another
potentially disruptive move in the near future. The mother concealed that fact at
the time of the modification trial.
The trial court was in the best position to assess the evidence of
misconduct, and we do not reweigh the evidence or reassess the credibility of
witnesses. Accordingly, under the even greater discretion standard of review, we
do not disturb the trial court’s conclusion that the mother relied on misleading
12 No. 83233-6-I/13
information about her plans that undermined the fairness of the modification trial
and that this constituted misconduct.
III
The trial court did not err when it granted the father sole decision-making
authority. A trial court’s order modifying a parenting plan is reviewed for an abuse
of discretion. In re Marriage of Kinnan, 131 Wn. App. 738, 746, 129 P.3d 807
(2006). An abuse of discretion occurs when a decision is manifestly unreasonable
or based on untenable grounds or untenable reasons. In re Marriage of Katare,
175 Wn.2d 23, 35, 283 P.3d 546 (2012).
Under RCW 26.09.187(2)(b)(iii), a trial court shall order sole decision-
making when it finds that “one parent is opposed to mutual decision making, and
such opposition is reasonable” based on the criteria in (c). Those criteria are: (i)
the existence of a limitation under RCW 26.09.191; (ii) the history of participation
of each parent in decision making in each of the areas in RCW 26.09.184(5)(a);
(iii) whether parents have a demonstrated ability and desire to cooperate with one
another in decision making in each of the areas in RCW 26.09.184(5)(a); and (iv)
the parents’ geographic proximity to one another, to the extent that it affects their
ability to make timely mutual decisions. While a trial court must consider all four
criteria, the language of the statute does not suggest it is required to make a
specific finding under each of the four criteria to order sole decision-making.
13 No. 83233-6-I/14
The mother argues the trial court erred when it granted the father sole
decision-making authority, she says, to punish her and, in doing so, did not
consider J.L.’s best interests. The mother’s arguments are not persuasive.
The final order was never challenged, including its provision that the court
would vest sole decision-making with the father if the mother violated the joint
decision-making protocol. That order was based on a finding that the mother did
not have a demonstrated ability and desire to cooperate. This was supported by
evidence presented at trial that included the mother’s decision to unilaterally enroll
J.L. in private school after the parties had agreed to transition him to public school,
which forced the father to file a motion for contempt and caused J.L.’s enrollment
at his new school to be delayed. The mother also omitted the father’s information
from enrollment forms, which inhibited the father’s ability to communicate with the
school and access J.L.’s school records. The mother also unilaterally removed
J.L. from childcare after the parties had gone through arbitration to select the child
care provider.
The change to sole decision-making was not a punishment for any actions
taken by the mother, but was the enforcement of an existing provision of the
parenting plan. The trial court stated it would order sole decision-making if the
mother violated the shared decision-making protocol. The mother violated that
protocol by enrolling J.L. in a different middle school after announcing the
relocation to the Bridle Trails home and by failing to disclose J.L.’s exposure to
COVID-19. The court acted in accordance with its previous order. Accordingly,
14 No. 83233-6-I/15
we conclude the trial court did not abuse its discretion when it granted sole
decision-making authority to the father.
IV
The trial court did not fail to act with the child’s best interests in mind when
ordering a new trial under CR 60(b)(4). The mother asserts that because extended
litigation can be harmful to children, the trial court abused its discretion by granting
a new trial. This argument is without merit.
The mother cites Schuster v. Schuster for the proposition that “children and
their parents should not be subjected to repeated relitigation of the custody issues
determined in the original action. Stability of the child’s environment is of utmost
concern.” 90 Wn.2d 626, 628, 585 P.2d 130 (1978). The mother argues that by
reopening the action the trial court put at risk the custodial continuity that the son
has enjoyed since the parents’ divorce and subjects J.L. to extended litigation over
his relocation.
However, while finality of judgments is an important value of the legal
system, “circumstances arise where finality must give way to the even more
important value that justice be done between the parties.” Suburban Janitorial
Servs. v. Clarke Am., 72 Wn. App. 302, 313, 863 P.2d 1377 (1993). CR 60(b) is
“the mechanism to guide the balancing between finality and fairness.” Id. The
mother contends that if the father’s requests are granted at the new trial, it will not
be in the child’s best interest. That is not an issue before this court. The question
before this court is whether the trial court acted appropriately when it granted a
15 No. 83233-6-I/16
new trial because it found that the first trial was undermined by the mother’s
misconduct. The appropriate balancing mechanism to determine whether a new
trial is warranted is CR 60(b).
V
We reject the mother’s assertion that this matter must be assigned to a
different judge on remand. “Reassignment is appropriate to avoid the appearance
of unfairness or bias.” Shrauner v. Olsen, 16 Wn. App. 2d 384, 421, 483 P.3d 815
(2020).
The mother argues the trial court judge has signaled views on the
disposition of the case, and speculates that “even if the trial court were to allow the
son’s relocation to the Bridle Trails house, it is likely that it will increase the father’s
residential time beyond what it already granted him at the conclusion of the earlier
trial to avoid any ‘future relocations’ by the mother.” The mother mischaracterizes
the trial court’s statements. The trial court interpreted the father’s request for
additional weekday residential time as a strategic move to prevent a future
relocation, rather than in J.L.’s best interests, and therefore denied it. However,
when the trial court learned that the mother had moved J.L. again after the hearing,
it vacated the final order and ordered a new trial. It did not grant any additional
time to the father. Nor does anything in the record support the suggestion that the
trial court judge had prejudged any issue.
The mother fails to show any bias, unfairness, or prejudgment of this matter
by the trial court judge. We decline to require remand to a new judge.
16 No. 83233-6-I/17
VI
We affirm the trial court’s decision to award attorney fees to the father and
award the father attorney fees on appeal.
This court applies a two-part standard of review to a trial court’s decision to
award attorney fees. Park Place Motors, Ltd. V. Elite Cornerstone Constr., LLC,
18 Wn. App. 2d 748, 753, 493 P.3d 136 (2021). First, the court reviews de novo
whether there is a legal basis for awarding attorney fees by statute, under contract,
or in equity. Id. Second, the court reviews a discretionary decision to award or
deny attorney fees and the reasonableness of any attorney fee award for an abuse
of discretion. Id. Here, the father cited a statutory basis for awarding attorney
fees. RCW 26.09.550 provides that “[t]he court may sanction a party if it finds that
a proposal to relocate the child or an objection to an intended relocation or
proposed revised residential schedule was made . . . to unnecessarily delay or
needlessly increase the cost of litigation.” In addition, case law supports an award
of fees when misconduct has been found under CR 60(b)(4). Andren, 14 Wn. App.
2d at 322 (awarding fees on appeal to “avoid incentivizing sanctioned parties from
appealing in order to exhaust the benefit of any sanctions award granted by the
trial court”). The trial court found that “[t]he costs of trial were substantially wasted
because neither [the father] nor the Court had before [them] the true facts of where
the child was proposed to live or where he was proposed to attend school.” Based
on the trial testimony and arguments of the mother at trial and the trial court’s
assessment of the failure to disclose the Bridle Trails home, the award of attorney
17 No. 83233-6-I/18
fees is supported by the record. The trial court did not abuse its discretion in
deciding to award attorney fees to the father.
We further award fees to the father on appeal under Andren because fees
were awarded based on the mother’s misconduct at trial. In Andren, a trial had to
be repeated because of a party’s misconduct. Id. Here, the trial court ordered the
mother “should be sanctioned $5,000 for allowing a trial to go forward on
incomplete information. This sanction compensates [the father] for the
unnecessary expenditure of some attorney’s fees.” The mother should
compensate the father for all of the costs of successfully remedying the harm
resulting from her misconduct at trial, including the cost of attorney fees incurred
while defending the new trial order on appeal.
We affirm the order granting a new trial and remand for proceedings not
inconsistent with this opinion.
WE CONCUR: