John Mason, V Tatyana Mason

• Court: Court of Appeals of Washington
• Decided: March 9, 2021
• Docket: 50009-4
• Status: Unpublished

Opinion

Filed Washington State Court of Appeals Division Two

March 9, 2021 IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II In the Matter of the Marriage of No. 50009-4-II

JOHN ARTHUR MASON,

Respondent,

and

TATYANA IVANOVNA MASON, Consolidated With Appellant. In the Matter of the Marriage of No. 52959-9-II

and UNPUBLISHED OPINION TATYANA IVANOVNA MASON,

Appellant.

WORSWICK, J. — In this consolidated case, Tatyana Mason appeals the trial court’s denial

of three different motions over two years, all relating to disputes with her husband John Mason

over a 2013 parenting plan. She appeals the trial court’s denial of her 2017 motion to compel

payment of funds held in a supersedeas bond, her 2017 CR 60 motion to vacate a 2013 parenting

plan, and a 2018 motion for the trial court to enter findings and conclusions from a prior trial that

was pending appeal. No. 50009-4-II; Cons. No. 52959-9-II

Tatyana1 argues that (1) the trial court did not properly consider her motion to release

funds in a supersedeas bond; (2) the trial court abused its discretion when it denied her motion to

vacate the parenting plan; (3) the trial court’s denial of her motion to vacate the parenting plan

infringes on her constitutional liberty interest in raising her children; (4) the trial court’s denial of

her motion to vacate the parenting plan violated federal immigration regulations; (5) the trial

court failed to consider the parties’ financial circumstances when it denied her motion to vacate

and during the 2013 trial that resulted in the parenting plan; (6) the trial court erred when it

denied her 2018 motion to enter new findings on an issue that was pending appeal; and (7) the

now-retired trial court judge who presided over her 2016 trial, the results of which we reviewed

in a 2018 appeal, should be ordered to appear as a judge pro tempore to enter findings on remand

from our 2018 decision. Tatyana requests sanctions and attorney fees under RAP 18.9. John

also requests attorney fees and costs under RAP 18.1 and 18.9.

We hold the following: (1) Tatyana’s argument that the trial court erred when it did not

release funds in the supersedeas bond is moot because we vacated those fees in a prior appeal,

(2) the trial court did not abuse its discretion when it denied Tatyana’s 2017 motion to vacate the

2013 parenting plan under CR 60, (3) Tatyana’s argument regarding her constitutional right to

raise children is barred by RAP 2.5, (4) Tatyana’s argument on federal immigration regulations

is barred by res judicata, (5) Tatyana’s argument that the trial court failed to consider financial

circumstances is barred by res judicata, (6) the trial court did not err when it denied her 2018

1 We refer to the Masons by their first names for clarity. No disrespect is intended.

2 No. 50009-4-II; Cons. No. 52959-9-II

motion to enter findings on an issue then pending appeal, (7) although a retired trial court judge

is authorized to sit as a judge pro tempore by statute, we have no authority to order him to come

out of retirement to preside over a case. We deny both parties’ requests for attorney fees.

Accordingly, we affirm the decisions of the trial court.

FACTS

This appeal is the fourth to arise from the dispute between Tatyana and John Mason

following their marital dissolution in 2008.2 Our two prior opinions provide necessary factual

background for this appeal. The procedure of the second appeal is a central issue in this case.

I. PROCEDURAL HISTORY

Tatyana and John married in 1999 and had two children. In re Marriage of Mason, No.

45835-7-II, slip op. at 2 (Wash. Ct. App. July 7, 2015) (unpublished),

https://www.courts.wa.gov/opinions/pdf/D2%2045835-7-

II%20%20Unpublished%20Opinion.pdf (Mason I). Tatyana came to the United States on

“fiancée visa” sponsored by John. In re Marriage of Mason, No. 49839-1-II, slip op. at 2 (Wash.

Ct. App. July 31, 2018) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%2049839-1-

II%20Unpublished%20Opinion.pdf, review denied, 192 Wn.2d 1024, (Mar. 6, 2019), cert.

denied, 140 S. Ct. 296, 205 L. Ed. 2d 177 (Oct. 7, 2019) (Mason II). John filed for divorce in

2007. Tatyana filed a petition for a domestic violence protection order, and a superior court

2 The third appeal was pending at the time this appeal was heard. See Mason v. Mason, No. 51642-0-II, (Wash. Ct. App. Mar. 21, 2018).

3 No. 50009-4-II; Cons. No. 52959-9-II

commissioner granted the petition. The trial court entered a dissolution decree and parenting

plan in 2008.

In 2011 John filed a petition to modify the parenting plan alleging that Tatyana was

abusing the children. John obtained an emergency order placing the children in his residential

care. The trial court ordered Tatyana’s visits be therapeutic in nature.

A. 2013 Trial

In 2013, the parties proceeded to trial on John’s modification petition. The trial court,

with Judge Anne Hirsch presiding, entered findings of abuse by Tatyana and found that Tatyana

was uncooperative in disclosing her finances and that she never arranged for any therapeutic

visits. The trial court also found that there were no concerns about future domestic violence

from John. The trial court entered a modified parenting plan and Tatyana appealed, but she did

not contest the trial court’s imputation of income or imposition of child support payments. In

July 2015, we affirmed the 2013 parenting plan, holding that the trial court did not abuse its

discretion when it entered the 2013 parenting plan. Neither Tatyana nor John appealed.

In September 2015, Tatyana filed a “motion to dismiss” the 2013 child support order (but

not the parenting plan). Supplemental Clerk’s Papers (Suppl. CP) at 333-39. A superior court

commissioner denied her motion that same month. Tatyana did not appeal or seek revision of

this decision. In late September or early October 2015, Tatyana filed a “motion for revision” of

the 2013 parenting plan, which a superior court commissioner denied on October 9, 2015. See

CP (49839-1-II) at 25. That same day, Tatyana filed a “Motion/Declaration to Modify/Dismissal

of Full Amount of Child Support.” Suppl. CP at 349. A superior court commissioner amended

4 No. 50009-4-II; Cons. No. 52959-9-II

the child support order and reduced Tatyana’s support to the statutory minimum, but denied her

motion to vacate the unpaid child support she had accrued. Neither party appealed this order.

B. 2016 Trial

In October 2015, Tatyana filed a petition to modify the parenting plan and a motion to

vacate the full amount of the child support order. Mason II opinion summarizes the relevant

facts.

The motion to vacate alleged various errors relating to the 2013 child support order. The motion also described Tatyana’s precarious economic situation, including the allegation that she was unable to obtain employment because of her immigration status and unpaid child support. . . .

A superior court commissioner denied Tatyana’s petition to modify the parenting plan and motion to vacate the child support order. Tatyana moved to revise the commissioner’s order. . . .

. . . [T]he trial court stated that it would treat Tatyana’s motion to vacate the 2013 child support order as a motion to vacate under CR 60(b). In a subsequent letter ruling, the court explained that because the parties had raised credibility issues, a trial was necessary to allow the parties to present testimony.

Mason II, slip op. at 4-5. Judge Christopher Wickham presided over the November 2016 trial.

At trial, Tatyana represented herself. She offered the testimony of Jay Gairson, an immigration attorney, as an expert witness. The trial court ruled that it would allow Gairson’s testimony on immigration law to assist in understanding the issues and law in that area.

....

The trial court entered an order granting the motion to vacate and provided written findings of fact and conclusions of law. . . .

. . . [T]he court vacated the 2013 child support order as well as any remaining unpaid child support. The court stated that John could seek entry of a

5 No. 50009-4-II; Cons. No. 52959-9-II

new child support order, and that the court would consider a request for expert fees at a later hearing.

The court subsequently entered an order in December 2016 vacating the amended child support order the commissioner entered on October 13, 2015, which the court inadvertently failed to include in its previous order.

The trial court held a hearing on the issue of expert witness fees. Tatyana requested the costs of Gairson’s expert testimony, which he calculated to be $12,800, as well as sanctions under CR 11. The trial court awarded Tatyana costs equal to two-thirds of Gairson’s fee based on the parties’ relative financial positions.

The trial court awarded to Tatyana the remaining one-third of Gairson’s fee as CR 11 sanctions. . . .

. . . However, the court did not enter any written findings regarding CR 11 and did not include the basis of its award in the CR 11 order.

Based on its rulings, the trial court entered an order awarding Tatyana $8,533 in costs . . . and $4,267 in sanctions under CR 11.

John appeal[ed] the trial court’s order vacating the 2013 child support order and the order awarding expert fees and imposing CR 11 sanctions.

Mason II, slip op. at 5-7.

Although the record on appeal does not contain direct documentation, it is clear from

both parties’ filings that John filed a supersedeas bond with the trial court pending this appeal.3

John’s appeal is Mason II, decided in 2018.

3 Because the supersedeas bond was filed with the trial court in 2017, that filing does not appear in the record on appeal for either case here or the record for Mason II. However, based on Tatyana’s motion and John’s counsel’s statements in the record, it is apparent the bond was filed.

6 No. 50009-4-II; Cons. No. 52959-9-II

II. 2017 MOTIONS (NO. 50009-4-II)

A. Motion To Vacate Parenting Plan

In January 2017, the same day that John filed his appeal, Tatyana filed another CR 60

“Motion to Vacate 2013 and 2008 Parenting Plan” under CR 60(b)(1), (3), (4), and (11). In it,

she restated her grievances that were decided in the 2013 and 2016 trials or that were credibility

issues before the court in 2012. She made claims of misrepresentation against John and his trial

counsel and stated that the children were in an abusive environment with him.

B. Motion To Release Supersedeas Bond Funds

Later in January 2017, Tatyana filed a motion for the trial court to release funds from the

supersedeas bond John filed pending his appeal. Tatyana’s motion was entitled “Declaration to

Order Petitioner to pay $20,000 for Removal of Condition from My Green Card . . . $12,800

judgment Placed against Petitioner for ongoing abuse of CR ll(A) should NOT be hold [sic] or

depend on the Petitioner’s Appeal.” Suppl. CP at 785. She went on to request that the trial court

order John to “release [the money] from the bond and pay to Respondent.” Suppl. CP at 785.

C. January 2017 Hearing on Both Motions and Resulting Trial Court Order

In January 2017, the trial court held a single hearing on both motions. Judge Hirsch

again presided. On the motion to vacate the parenting plan, Tatyana repeated allegations of

fraud, misrepresentation, and misconduct that she raised in the November 2016 trial. The trial

court stated that Tatyana’s CR 60(b)(4) argument flowed from the November 2016 trial and that

the court would not address findings that were on appeal. The trial court also stated Tatyana had

7 No. 50009-4-II; Cons. No. 52959-9-II

not shown the “extraordinary circumstances” necessary to vacate under CR 60(b)(11). Verbatim

Report of Proceedings (VRP) (Jan. 25, 2017) at 31.

On the topic of supersedeas bonds, Tatyana argued, “I am asking to release from the bond

Mrs. Robertson [John’s attorney] placed against the appeal, $12,800.” VRP (Jan. 25, 2017) at

10. The trial court explained to Tatyana that under RAP 8.1(h), the proper procedure to

challenge the bonds was a motion to this court.

The trial court then denied Tatyana’s motions in a January 25, 2017 order. In its order,

the trial court found that RAP 8.1 controlled the trial court’s ability to order payment. The trial

court denied Tatyana’s request to release the funds held by the clerk and directed Tatyana to this

court to address that issue.

III. MASON II

In July 2018, we reversed the trial court’s 2016 order vacating the 2013 child support

order, and we also vacated the trial court’s imposition of CR 11 sanctions. Although we vacated

the sanctions, we affirmed the other fees. Tatyana appealed to our Supreme Court and also filed

a motion for certiorari in the United States Supreme Court. Both courts denied review. Mason

II, review denied, 192 Wn.2d 1024 (Mar. 6, 2019), cert. denied, 140 S. Ct. 296 (Oct. 7, 2019).

Because of this lengthy appeal process, we did not issue mandate on our 2018 decision until

October 2019.

IV. 2018 MOTION (NO. 52959-9-II)

Judge Wickham retired in 2016. In December 2018, Tatyana filed a motion in the trial

court entitled “Respondent’s Motion Moves this Court for an Order Entering the Trial Court’s

8 No. 50009-4-II; Cons. No. 52959-9-II

Findings and Conclusions; To Correct Clerical Mistake,” requesting the court enter CR 11

findings and award her the sanction fees. CP at 1-4. She asked the trial court, then presided over

by Judge Mary Sue Wilson, to enter what she had “cop[ied] and paste[d]” from Judge

Wickham’s oral ruling regarding sanctions from 2016. VRP (Dec. 14, 2018) at 5.

John’s response to Tatyana’s motion was late. John claimed the delay was due to an e-

mail he received from the court administration that the hearing might be stricken, and requested

the court accept the brief. John’s response included a copy of our July 2018 decision (Mason II)

that was still pending on appeal. Tatyana had not included that decision in her motion. The trial

court accepted John’s brief, finding the Mason II decision that he had included necessary to

make its decision.

In its December 2018 written order, the trial court explained that it was premature to rule

on Tatyana’s request because an appeal was pending on the issue (Mason II) and that we had not

yet issued a mandate. The trial court denied Tatyana’s motion.

Tatyana appeals the trial courts’ denial of all three motions.

ANALYSIS

Tatyana raises multiple arguments in two separate appeals. Throughout her briefs she

argues multiple issues not raised below, re-alleges statements from prior trials, makes numerous

credibility arguments, and blends arguments from different issues. From the first appeal (No.

50009-4-II), she argues the trial court erred when it denied her January 2017 motion to compel

payment of funds held in a supersedeas bond. In the same appeal, she argues the trial court

abused its discretion when it denied her January 2017 CR 60 motion to vacate the 2013 parenting

9 No. 50009-4-II; Cons. No. 52959-9-II

plan. In her second appeal (No. 52959-9-II), she argues the trial court erred when it denied her

2018 motion to enter findings on CR 11 sanctions that were pending appeal.

We vacated the trial court’s 2016 sanctions in Mason II, slip op. at 18, and her argument

related to the supersedeas bond is therefore moot. The trial court did not abuse its discretion

when it denied Tatyana’s CR 60 motion and the court properly acted within its authority when it

denied her motion to enter findings on an issue pending appeal.

I. 2017 MOTION TO COMPEL PAYMENT OF FUNDS IN SUPERSEDEAS BONDS

Tatyana argues that the trial court erred when it did not release to her funds held in a

supersedeas bond pending John’s appeal in case Mason II (No. 49839-1-II). She appears to

argue that the trial court did not properly consider her motion to release the funds and did not

modify the bond amount. We hold that this argument is moot.

“‘A case is technically moot if the court can no longer provide effective relief.’” Randy

Reynolds & Assocs., Inc. v. Harmon, 193 Wn.2d 143, 152, 437 P.3d 677 (2019) (internal

quotation marks omitted) (quoting State v. Hunley, 175 Wn.2d 901, 907, 287 P.3d 584 (2012)).

However, even if a case is moot, we have discretion to decide the issue if the question is of

continuing and substantial public interest. Randy Reynolds, 193 Wn.2d at 152. We consider the

following nonexclusive factors to determine whether a case presents an issue of continuing and

substantial public interest: (1) the public or private nature of issue, (2) the need for the future

guidance on the issue, (3) the likelihood of the question’s future recurrence, and (4) the level of

adversity between the parties and the quality of their advocacy on the issue. Randy Reynolds,

193 Wn.2d at 152-53.

10 No. 50009-4-II; Cons. No. 52959-9-II

Tatyana seeks the release of funds in a supersedeas bond. A party may stay enforcement

of a money judgment by filing a supersedeas bond with the trial court. RAP 8.1(b)(1). John

filed the supersedeas bond to prevent payment of the CR 11 sanctions pending the results of

Mason II. We vacated the sanctions for which the bond amount was held and awarded Tatyana

the other fees. We issued mandate on that case in October 2019. Thus, the judgment secured by

the supersedeas bond was vacated. Accordingly, we cannot provide Tatyana relief.

Additionally, this is not an issue of continuing and substantial public interest. The dispute is

private, requires no further guidance, and it is unlikely that the supersedeas issue will recur.

Neither party advocates that this is an issue of public interest. Therefore, we do not address

Tatyana’s argument. Although the argument Tatyana makes on appeal is moot, the issue of

whether she is entitled to such sanctions remains with the trial court.

II. 2017 MOTION TO VACATE PARENTING PLAN

Tatyana argues that the trial court erred when it denied her motion to vacate the “2013

and 2008” parenting plans under CR 60(b)(1), (3), (4), and (11). Suppl. CP at 1581. Tatyana

also argues that the trial court’s denial of her motion to vacate violated her constitutional right to

raising children without state interference, violated federal immigration regulations, failed to

consider her financial circumstances, and that we should assign a retired judge as a judge pro-

tempore on remand. Tatyana raises no convincing arguments, and her arguments fail.

A. Legal Principles

CR 60(b) provides that a trial court may relieve a party from final judgment, order, or

proceeding for eleven reasons. Tatyana’s motion implicated four subsections:

11 No. 50009-4-II; Cons. No. 52959-9-II

CR 60(b)(1): “Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;” CR 60(b)(3): “Newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under rule 59(b);” CR 60(b)(4): “Fraud . . . , misrepresentation, or other misconduct of an adverse party;” and CR 60(b)(11): “Any other reason justifying relief from the operation of the judgment.”

See Suppl. CP at 1590.

A CR 60 motion “shall be made within a reasonable time and for reasons (1), (2) or (3)

not more than 1 year after the judgment, order, or proceeding was entered or taken.” CR 60(b).

CR 60(b)(11) is “intended to serve the ends of justice in extreme, unexpected situations and

when no other subsection of CR 60(b) applies.” Shandola v. Henry, 198 Wn. App. 889, 895, 396

P.3d 395 (2017). This subsection applies where there are “extraordinary circumstances

involving irregularities extraneous to the proceeding.” Shandola, 198 Wn. App. at 895. An

unfair result even when caused by poor representation is insufficient grounds to vacate. See In re

Marriage of Burkey, 36 Wn. App. 487, 488-90, 675 P.2d 619 (1984). A reduction in income

does not generally qualify as an extraordinary circumstance. See In re Marriage of Yearout, 41

Wn. App. 897, 898, 902, 707 P.2d 1367 (1985).

We review CR 60(b) orders for abuse of discretion. Shandola, 198 Wn. App. at 896. A

trial court abuses its discretion when it bases its decision on untenable grounds for untenable

reasons. Shandola, 198 Wn. App. at 896. We do not weigh evidence or make credibility

determinations on appeal. State v. Davis, 176 Wn. App. 385, 396 n.10, 308 P.3d 807 (2013)

(citing State v. Thomas, 150 Wn.2d 821, 874-75, 83 P.3d 970 (2004)).

12 No. 50009-4-II; Cons. No. 52959-9-II

B. Abuse of Discretion

Tatyana argues that the trial court abused its discretion when it denied her 2017 motion to

vacate the parenting plan. Tatyana makes no legal argument that the trial court abused its

discretion or based its decision on untenable grounds for untenable reasons. Instead, she lays out

grievances and allegations arising out of her disputes with John, her immigration status, and her

financial situation since the divorce, arguing that the 2013 trial, and not the trial court’s decision

on her 2017 motion to vacate, was flawed. Her arguments raise issues of credibility and

evidentiary weight that we may not review.

Tatyana also appears to argue that we erred in vacating sanctions against John in Mason

II. Tatyana’s attempts to have our decision reversed failed. Ruling on Reconsideration, In re

Marriage of Mason, No. 52959-9-II (Wash. Ct. App. Dec. 16, 2019) (Mason II). Moreover, to

the extent that her brief alleges an abuse of discretion at all, her arguments are not apt.

1. CR 60(b)(1) and (3)

We affirmed the 2013 parenting plan in July 2015. Tatyana filed this CR 60 motion in

January 2017. Thus, her claims under CR 60(b)(1) and (3) are barred as untimely because they

were filed more than one year after the 2013 parenting plan was final. CR 60(b). Accordingly,

the trial court properly denied her motion on these claims.

2. CR 60(b)(4): Fraud, Misrepresentation, or Misconduct

Tatyana’s argument that the trial court abused its discretion when it denied her motion to

vacate the 2013 parenting plan based on CR 60(b)(4) also fails.

13 No. 50009-4-II; Cons. No. 52959-9-II

To find fraud, the trial court must make findings of fact and conclusions of law on the

nine elements of common law fraud. In re Marriage of Maddix, 41 Wn. App. 248, 252, 703 P.2d

1062 (1985).4 The moving party must prove misconduct by clear and convincing evidence.

Mitchell v. Wash. Inst. Pub. Policy, 153 Wn. App. 803, 825, 255 P.3d 280 (2009). To vacate for

misrepresentation, the moving party must have relied on or been misled by the representation.

See Smith v. Dewar, 185 Wn. App. 544, 562, 328 P.3d 328 (2015). The moving party must also

“show misconduct that prevented a full and fair presentation of its case.” Dalton v. State, 130

Wn. App. 653, 665, 124 P.3d 305 (2005).

The only allegations of fraud, misrepresentation, or misconduct that Tatyana raised in the

trial court were those arising out of arguments made in the November 2016 trial conducted by

Judge Wickham. At that trial, the court considered Tatyana’s motion to vacate the 2013 child

support order and any unpaid child support. The 2013 parenting plan was not at issue in that

trial. The 2016 trial court issued sanctions against John that were pending appeal at the time

Tatyana’s 2017 motion was filed and heard. At the November 2016 trial, Tatyana raised no new

evidence and made no arguments based on the 2013 parenting plan, or our mandate affirming

4 “In Washington, common law fraud has 9 essential elements, all of which must be established by clear, cogent, and convincing evidence:

(1) A representation of an existing fact; (2) its materiality; (3) its falsity; (4) the speaker’s knowledge of its falsity or ignorance of its truth; (5) his intent that it should be acted on by the person to whom it is made; (6) ignorance of its falsity on the part of the person to whom it is made; (7) the latter’s reliance on the truth of the representation; (8) his right to rely upon it; (9) his consequent damage.”

N. Pac. Plywood, Inc. v. Access Rd. Builders, Inc., 29 Wn. App. 228, 232, 628 P.2d 482 (1981).

14 No. 50009-4-II; Cons. No. 52959-9-II

that plan in 2015. She did not show any of the nine elements of fraud in the trial court, nor did

she show how any misconduct on John’s part prevented a presentation of her 2013 case. Thus,

the trial court properly determined that Tatyana’s CR 60(b)(4) argument flowed from the

November 2016 trial and that it could not address those findings that were on appeal.

Tatyana’s argument on appeal is similarly flawed. Instead of pointing to the trial court’s

error, she appears to accuse the attorney who represented her in 2013 of misrepresentation. The

only case she cites to is Liu v. Mund, 686 F.3d 418, 419-20 (7th Cir. 2012). That case involves

spousal support under immigration law and has nothing to do with fraud, misrepresentation, or

CR 60. Liu, 686 F.3d at 419-20. Because Tatyana did not show fraud, misconduct, or

misrepresentation, and because the issue of the propriety of the statements she relied on were

pending appeal, the trial court properly denied her motion to vacate under CR 60(b)(4).5

3. CR 60(b)(11): Extraordinary Circumstances

Tatyana argues that the trial court abused its discretion when it denied her motion to

vacate under CR 60(b)(11). We disagree.

CR 60(b)(11) is “intended to serve the ends of justice in extreme, unexpected situations

and when no other subsection of CR 60(b) applies.” Shandola v. Henry, 198 Wn. App. at 895.

5 In a footnote, John argues that Tatyana’s CR 60(b)(4) and (11) claims are also time barred. He appears to argue that because the trial on the parenting plan was in 2013, the January 2017 CR 60 motion was not filed within a reasonable time. However, Tatyana bases many of her arguments on incidents that occurred during the November 2016 trial that was pending appeal. “The critical period is the period between when the moving party became aware of the reason to vacate the judgment and when the moving party filed its motion.” Dalton, 130 Wn. App. at 663 (2005). Because of this timing irregularity, we resolve the CR 60(b)(4) and (11) issues on the merits.

15 No. 50009-4-II; Cons. No. 52959-9-II

This applies where there are “extraordinary circumstances involving irregularities extraneous to

the proceeding.” Shandola, 198 Wn. App. at 895.

The trial court determined there were no extraordinary circumstances. Tatyana’s motion

merely restated her grievances that were decided in the 2013 trial or were credibility issues

before the court in 2012. Her claims of extraordinary circumstances were that John and his trial

counsel lied to the court that the children were in an abusive environment with John. However,

in the 2013 parenting plan, the trial court (which had the same judge presiding for both the trial

resulting in Mason I and the 2017 motion) found that Tatyana was abusive toward the children.

The court had no concerns about future domestic violence from John. Tatyana presented no new

evidence to the trial court related to abuse allegations in her CR 60(b)(11) motion.6

On appeal, Tatyana cites In re Marriage of Jennings, 138 Wn.2d 612, 625-26, 980 P.2d

1248 (1999) without analysis. Jennings is factually distinguishable. Although Jennings was a

decision on a CR 60(b)(11) motion, it had nothing to do with a parenting plan. In Jennings, our

Supreme Court held that a decrease in military retirement benefits in the wake of a dissolution

decree was an exceptional circumstance warranting vacation or modification of the divorce

decree. 138 Wn.2d at 628-29. Accordingly, it is not apt.

Tatyana also relies on State v. Keller, 32 Wn. App. 135, 647 P.2d 35 (1982), without

analysis. Keller is also distinguishable because it was a criminal case involving dismissal of a

6 The trial court explained: “There were things that happened during the [2013] trial before me that were troublesome, and one of the things that was troublesome was the findings by CPS that Ms. Mason had physically abused the children, and those findings haven’t been changed. Those findings were one of the reasons the court ordered what it ordered.” VRP (Jan. 25, 2017) at 34.

16 No. 50009-4-II; Cons. No. 52959-9-II

juvenile prosecution. Keller, 32 Wn. App. at 136. At issue was a dispute over the proper

method for the State to reinstate charges after a trial court vacated them. Keller, 32 Wn. App. at

140-41. To the extent it applies at all, the Keller court’s analysis works against Tatyana; the

court noted that “[t]he ‘any other reason’ language of CR 60(b)(11) is thus not a blanket

provision authorizing reconsideration for all conceivable reasons.” Keller, 32 Wn. App. at 141.

The trial court did not abuse its discretion when it determined that Tatyana did not show

extraordinary circumstances. The trial court’s decision was based on the record before it, and

was reasonable. Thus, the trial court did not abuse its discretion when it dismissed Tatyana’s

motion to vacate under CR 60(b)(11).

C. Right To Raise Children Without State Interference

Tatyana argues for the first time on appeal that the trial court’s denial of her motion to

vacate the parenting plan prevents her from seeing her children and therefore violates her right to

raise her children without State interference. We do not consider this argument.

We generally will not review error not raised in the trial court. RAP 2.5; Sprute v.

Bradley, 186 Wn. App. 342, 358, 344 P.3d 730 (2015). However, a party may raise for the first

time on appeal (1) lack of trial court jurisdiction, (2) failure to establish facts upon which relief

can be granted, and (3) manifest error affecting a constitutional right. RAP 2.5(a). “An error is

manifest when the appellant shows actual prejudice.” In re Adoption of K.M.T., 195 Wn. App.

548, 567, 381 P.3d 1210 (2016). To establish prejudice, a party must show the error had

practical and identifiable consequences in the trial. Adoption of K.M.T., 195 Wn. App. at 567.

17 No. 50009-4-II; Cons. No. 52959-9-II

Where a party claims constitutional error, we preview the merits of the claim to determine

whether the argument is likely to succeed. State v. Walsh, 143 Wn.2d 1, 8, 17 P.3d 591 (2001).

“Parents have a fundamental liberty interest in the care, custody, and management of

their children” as protected by the Fourteenth Amendment. Adoption of K.M.T., 195 Wn. App. at

559; In re Welfare of H.Q., 182 Wn. App. 541, 550, 330 P.3d 195 (2014). Therefore, Tatyana

makes a colorable claim of constitutional magnitude. However, Tatyana must still show a

manifest error that involved actual prejudice.

Tatyana makes no showing of error. She does not credibly explain how the trial court

unconstitutionally interfered with her parental rights. She merely restates claims regarding

John’s credibility from the 2013 trial. She ignores the trial court’s 2013 findings of Tatyana’s

physical abuse against the children. She cites to no other case nor makes any argument that a

constitutional error affected the 2016 trial or the motion to vacate below. Accordingly, we do

not consider this issue. RAP 2.5.

D. Violations of Federal Immigration Regulations

Tatyana argues that the trial court’s denial of her 2017 motion to vacate the parenting

plan violated federal immigration regulations. She appears to argue that the denial tangentially

impacted her immigration status, which prevents her from gaining employment. To support this

argument, she recites portions of the record from the 2013 and 2016 trials. Crucially, she

challenges the 2013 trial court’s income imputation and how that created a barrier to her ability

to have therapeutic visits with the children. Thus, she argues again that the 2013 parenting plan

is invalid. This argument is barred by res judicata.

18 No. 50009-4-II; Cons. No. 52959-9-II

Res judicata is a question of law we review de novo. In re Marriage of Shortway, 4 Wn.

App. 2d 409, 423, 423 P.3d 270 (2018). Res judicata bars a party from relitigating actions a

court has already determined. Shortway, 4 Wn. App. 2d at 422. Res judicata also bars litigation

by collateral attack, which generally includes a motion filed in a different action. Shortway, 4

Wn. App. 2d at 422. “The doctrine of res judicata applies ‘where a prior final judgment is

identical to the challenged action in (1) subject matter, (2) cause of action, (3) persons and

parties, and (4) the quality of the persons for or against whom the claim is made.’” Shortway, 4

Wn. App. 2d at 423 (internal quotation marks omitted) (quoting Lynn v. Dep’t of Labor & Indus.,

130 Wn. App. 829, 836, 125 P.3d 202 (2005)).

The parenting plan issues Tatyana raises here were settled in the 2013 trial and affirmed

by this court in Mason I. The 2013 trial court found, and we explained in our affirming opinion,

that Tatyana was uncooperative in disclosing her finances and that she never organized any

therapeutic visits. Accordingly, we held that the 2013 trial court did not abuse its discretion

when it implemented the 2013 parenting plan.

Tatyana’s argument meets all four elements of res judicata. (1) Subject matter: The

challenged action is the 2013 parenting plan, which is identical in subject matter to the 2013 trial

and 2015 appeal. (2) Cause of action: Tatyana challenges the implementation of the 2013

parenting plan via collateral attack on her motion to vacate. (3) Persons and parties: John and

Tatyana are parties throughout this dispute. (4) Quality of the persons against whom claim is

made: John and Tatyana remain the parents in a dispute over a parenting plan. Thus, Tatyana’s

argument is barred by res judicata.

19 No. 50009-4-II; Cons. No. 52959-9-II

E. Consideration of Financial Circumstances

Tatyana argues that the trial court failed to consider the parties’ financial circumstances,

especially as related to her immigration status, when it denied her 2017 motion to vacate the

parenting plan. This argument is also barred by res judicata.

Tatyana does not argue that the trial court was required to consider financial

circumstances in her CR 60 motion and she again recites portions of the record from the 2013

and 2016 trials. Tatyana re-alleges the same arguments regarding immigration and income from

her argument above on immigration regulations that were settled in Mason I and Mason II.

Thus, for the reasons explained above, her argument is barred by res judicata.

F. Remand to Judge Wickham

Tatyana argues that we should remand to the trial court for “re-trial” in front of Judge

Wickham as a judge pro tempore. Tatyana makes an identical argument in her second brief.

This issue is tied to Tatyana’s 2018 motion to enter the 2016 trial court’s CR 11 findings, not to

her motion to vacate. Accordingly, it is discussed below.

III. 2018 MOTION TO ENTER TRIAL COURT’S FINDINGS AND CONCLUSIONS AND CORRECT MISTAKES

Tatyana argues that the trial court erred when it denied her 2018 motion to have the trial

court enter findings and conclusions arising from the 2016 trial. Tatyana makes multiple

arguments based on the credibility and character of John and his counsel, and restates facts from

her prior brief and earlier trials. Tatyana appears to assign error to the trial court’s denial of her

December 2018 motion to enter CR 11 findings from the 2016 trial, despite that the case was

pending appeal and we had not yet entered a mandate. Tatyana also requests that we order

20 No. 50009-4-II; Cons. No. 52959-9-II

retired Judge Christopher Wickham to be installed as a judge pro tempore so that he may enter

factual findings on whether or not CR 11 sanctions are appropriate after we vacated those

sanctions in 2018, and remanded for the trial court to enter findings or reconsider the imposition

of sanctions.

The trial court correctly denied Tatyana’s motion because the issue was pending appeal

and had not been mandated at the time of the motion. Additionally, the trial court had no

authority to enter findings for a trial heard by a predecessor judge. Although retired Judge

Wickham is authorized to act as a judge pro tempore by statute, we have no authority to require

him to hear the CR 11 issue on remand.

The Clerk of the Court of Appeals issues the mandate for our decisions when review is

terminated. RAP 12.5(b). “If a petition for review has been timely filed and denied by the

Supreme Court,” termination occurs “upon denial of the petition for review.” RAP 12.5(b)(3).

Our decision is effective only “[u]pon issuance of the mandate of the appellate court as provided

in rule 12.5.” RAP 12.2; see also RAP 12.7(a). Under RAP 7.2(e), a trial court has the authority

to hear and determine postjudgment motions, but “[i]f the trial court determination will change a

decision then being reviewed by the appellate court, the permission of the appellate court must

be obtained prior to the formal entry of the trial court decision.” RAP 7.2(e)(2). Where a trial

court does not seek permission from us before entering findings in a decision on review, it lacks

authority to enter those findings. State v. Friedlund, 182 Wn.2d 388, 395-96, 341 P.3d 280

(2015).

21 No. 50009-4-II; Cons. No. 52959-9-II

In Washington, a successor judge generally may not enter findings of fact based on

testimony heard by her predecessor. Tacoma Recycling, Inc. v. Capital Material Handling Co.,

42 Wn. App. 439, 441-42, 711 P.2d 388 (1985); In re Marriage of Crosetto, 101 Wn. App. 89,

95, 1 P.3d 1180 (2000). This rule applies even where the prior judge entered an oral decision or

memorandum. State v. Bryant, 65 Wn. App. 547, 549, 829 P.2d 209 (1992). A judge “shall not

act . . . [w]hen he or she was not present and sitting as a member of the court at the hearing of a

matter submitted for its decision.” RCW 2.28.030 (emphasis added). However, CR 63(b)

provides a limited exception to this rule:

If by reason of death, sickness, or other disability, a judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, then any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties; but if a new judge cannot perform those duties, the new judge has the discretion to grant a new trial.

(Emphasis added).

When read together, case law and civil rules “set forth the rule that a successor judge

only has the authority to do acts which do not require finding facts. Only the judge who has

heard evidence has the authority to find facts.” Crosetto, 101 Wn. App. at 96 (quoting Bryant,

65 Wn. App. at 550). Thus, a successor judge has the power to enter conclusions of law only;

any finding of fact must be made in a new trial. Tacoma Recycling, 42 Wn. App. at 442; In re

Welfare of Woods, 20 Wn. App. 515, 517, 581 P.2d 587 (1978) (holding that in a case where

termination of parental rights was remanded for entry of additional findings a new trial was

required where the trial judge had left the bench); Wold v. Wold, 7 Wn. App. 872, 877, 503 P.2d

118 (1972) (holding that a new trial is required in a dissolution action where the appellate court

22 No. 50009-4-II; Cons. No. 52959-9-II

concluded there were inadequate findings of fact and the trial judge who entered the deficient

findings had died).

A successor judge may make findings of fact based on evidence from an earlier trial only

where the parties agree to allow it. Crosetto, 101 Wn. App. at 96-97.

If an elected superior court judge retires leaving a pending case in which the judge has

made discretionary rulings, “the judge is entitled to hear the pending case as a judge pro tempore

without any written agreement.” RCW 2.08.180. But we have no authority to assign trial court

judges to a given case. Indeed, “[t]rial courts have inherent authority to control and manage their

calendars, proceedings, and parties.” State v. Gassman, 175 Wn.2d 208, 211, 283 P.3d 1113

(2012) (citing Cowles Publ’g Co. v. Murphy, 96 Wn.2d 584, 588, 637 P.2d 966 (1981)).

B. Judge’s Authority To Enter Findings on Issue Pending Appeal

Tatyana makes multiple arguments to support her contention that the trial court erred

when it denied her motion to enter findings. None are convincing. We first address Tatyana’s

arguments that directly apply to whether a judge has authority to enter findings regarding an

issue on appeal before turning to her supporting arguments.

1. Entering Findings on an Issue Pending Appeal

Tatyana argues that the trial court erred when it ruled her motion was premature and that

the trial court was barred from entering findings regarding an issue pending appeal. We

disagree.

Under RAP 7.2(e), the trial court has the authority to hear and determine postjudgment

motions. However, “[i]f the trial court determination will change a decision then being reviewed

23 No. 50009-4-II; Cons. No. 52959-9-II

by the appellate court, the permission of the appellate court must be obtained prior to the formal

entry of the trial court decision.” RAP 7.2(e)(2). Our decisions are effective only “[u]pon

issuance of the mandate of the appellate court as provided in rule 12.5.” RAP 12.2, see also

RAP 12.7(a).

Tatyana filed her motion in December 2018. We did not issue our mandate in Mason II

until October 2019. Mason II included the issue of whether to affirm or vacate the CR 11

sanctions against John. Thus, Tatyana was seeking to have the trial court change the decision

then being reviewed by the appellate court. RAP 7.2(e). To make such a decision, the trial court

would have had to seek permission from this court, which it did not. Accordingly, the trial court

did not err when it denied Tatyana’s motion to enter findings.

Tatyana argues that the 2016 trial court’s error in not entering findings on the CR 11

sanctions was merely a “clerical error” and that RAP 7.2(e) allows a trial court to correct clerical

errors at any time during an appeal. 2 Br. of Appellant (52959-9-II) at 44. She cites State v.

Vailencour, 81 Wn. App. 372, 378, 914 P.2d 767 (1996), for the statement that Division One of

this court has “previously held, in the civil context, that the trial court’s failure to enter findings

and conclusions is a clerical error which may be corrected any time during the appeal process

under CR 60(a) and RAP 7.2(e).” Vailencour, 81 Wn. App. at 378 (citing In re Marriage of

Stern, 68 Wn. App. 922, 927-28, 846 P.2d 1387 (1993)). She also cites to Stern.7

7 Tatyana’s remaining citation is to State v. Portomene, 79 Wn. App. 863, 865, 905 P.2d 1234 (1995), but that case was also a criminal case that regarded clerical errors that neither prejudiced the defendant nor were substantive errors.

24 No. 50009-4-II; Cons. No. 52959-9-II

But Tatyana’s reliance on Stern is misplaced. In Stern, the court held that the failure to

enter findings was an inadvertent oversight and not a substantive error. 68 Wn. App. at 927-28.

Moreover, even assuming, arguendo, that the 2016 trial court’s failure to enter proper findings

on CR 11 was a clerical error, it still has to meet the standard of CR 60(a). CR 60(a) requires

that clerical errors “may be so corrected before review is accepted by an appellate court, and

thereafter may be corrected pursuant to RAP 7.2(e).” The trial court would still be barred under

RAP 7.2(e) from entering findings on an issue before the court without first obtaining permission

from this court. Thus, the trial court was correct when it ruled Tatyana’s motion was premature.

2. John’s Untimely Response to Tatyana’s Motion

Tatyana argues that John’s response brief to the trial court was late and should have been

stricken. She argues that the trial court erred when it considered John’s response. We disagree.

The discretion whether to accept untimely documents rests with the trial court. O’Neill v.

Farmers Ins. Co., 124 Wn. App. 516, 521, 125 P.3d (2004). We review a motion to strike a

pleading for an abuse of discretion. King County Dep’t of Adult & Juv. Det. v. Parmelee, 162

Wn. App. 337, 360, 254 P.3d 927 (2011). A trial court abuses its discretion when it bases its

decision on untenable grounds for untenable reasons. Shandola, 198 Wn. App. at 896. When a

deadline for a filing has passed, a court may accept a late filing if the party files a motion

explaining excusable neglect. CR 6(b)(2).

Tatyana cites Pioneer Inv. Sers. Co. v. Brunswick Associates Ltd. P’ship, 507 U.S. 380,

385, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993), for eight factors a federal court may consider

25 No. 50009-4-II; Cons. No. 52959-9-II

when determining excusable neglect. But these factors do not apply to a state court procedure.

See Pioneer Inv. Servs., 507 U.S. at 395 (citing Fed. Bankr. R. 9006(b)(1)).

To the extent these factors are applicable, they favor John, and not Tatyana. Tatyana

shows no prejudice, there was no delay to judicial proceedings, and John explained to the trial

court that his delay was due to confusion over whether the court might strike the December 2018

hearing. Moreover, John included the Mason II opinion in his response and the trial court found

the opinion necessary in making its decision. Thus, the trial court did not abuse its discretion

when it considered John’s response to Tatyana’s motion.

3. Citations to Our Prior Opinion

Tatyana argues that the trial court should have entered findings on the CR 11 sanctions

because we ordered it to do so on remand in Mason II, slip op. at 18. She is mistaken.

We vacated the 2016 award of sanctions, and gave the trial court options as to how it

might proceed. We stated, “[W]e vacate the trial court’s order imposing CR 11 sanctions on

John and remand either for entry of specific findings supporting the award of CR 11 sanctions

that are included or incorporated in the court’s CR 11 order or a determination that CR 11

sanctions are not warranted.” Mason II, slip op. at 18. Accordingly, the trial court was not

required to enter new findings on remand, but could have determined that no sanctions were

warranted.

4. Tatyana Re-alleges Settled Issues

Tatyana argues that the trial court in 2016 approved the CR 11 sanctions and that those

sanctions should be maintained. She argues that the trial court’s ruling was correct under an

26 No. 50009-4-II; Cons. No. 52959-9-II

abuse of discretion standard—in other words, she argues that the 2016 trial court did not abuse

its discretion when it imposed CR 11 sanctions. This argument is barred by res judicata.

As discussed above, res judicata applies “where a prior final judgment is identical to the

challenged action in (1) subject matter, (2) cause of action, (3) persons and parties, and (4) the

quality of the persons for or against whom the claim is made.” Shortway, 4 Wn. App. 2d at 422-

23 (internal quotation marks omitted) (quoting Lynn, 130 Wn. App. at 836).

Tatyana’s argument is based on the same subject matter (the trial court’s CR 11

sanctions) that arose out of the same cause of action, (the 2016 trial) between the same parties

(Tatyana and John) and involving the same parties in interest. We vacated the CR 11 sanctions

in Mason II, slip op. at 18. The issue of sanctions was argued in the 2016 trial and we mandated

our decision to vacate. Res judicata bars this argument.

Moreover, Tatyana bases her argument on the false premise that we approved the CR 11

sanctions. To be clear, our decision did not address the issue of the sanctions on their merits; we

merely held that the trial court failed to make sufficient findings to support them. Tatyana’s

argument in this appeal that the trial court did not abuse its discretion in awarding sanctions

again suffers the same fate; without sufficient findings of fact, we are unable to consider the

appropriateness of the sanctions. Although the argument Tatyana makes on appeal is barred by

res judicata, the issue of whether she is entitled to such sanctions remains with the trial court.

27 No. 50009-4-II; Cons. No. 52959-9-II

C. Successor Judges and Judges Pro Tempore

1. Findings of Fact by a Successor Judge

Tatyana argues that the trial court should have entered the findings of fact because the

case that the court relied on in making its decision, Tacoma Recycling, 42 Wn. App. at 441-42, is

not apt. We disagree.

In Tacoma Recycling, Tacoma Recycling obtained a money judgement against the

defendant, CMH. 42 Wn. App. at 439. Division One of this court held that there were no

findings of fact and conclusions of law and vacated the trial court’s decision. Tacoma Recycling,

42 Wn. App. at 440. The trial court judge then retired. Tacoma Recycling, 42 Wn. App. at 440.

His replacement denied CMH’s motion for a new trial, adopted the original judge’s findings and

conclusions in toto, and entered judgment for Tacoma Recycling. Tacoma Recycling, 42 Wn.

App. at 440. On the second appeal, we held that the successor judge had no authority to enter

findings of fact. Tacoma Recycling, 42 Wn. App. at 442. The “vacation of those findings

rendered them completely nugatory; they must be treated as if they never had been entered.”

Tacoma Recycling, 42 Wn. App. at 442.

Tatyana argues that Tacoma Recycling is distinguishable because, she states, the judge

there died and because here, unlike in Tacoma Recycling, the prior appeal did not vacate the trial

court’s findings. Both of her arguments are factually inaccurate. The prior judge in Tacoma

Recycling retired. Tacoma Recycling, 42 Wn. App. at 440. And we vacated the CR 11

sanctions. Thus, Tacoma Recycling is on point and applies here.

28 No. 50009-4-II; Cons. No. 52959-9-II

Tacoma Recycling is part of well settled law that a successor judge has the power to enter

conclusions of law only; any finding of fact must be made in a new trial. Tacoma Recycling, 42

Wn. App. at 442; Welfare of Woods, 20 Wn. App. at 517 (holding that in a case where

termination of parental rights was remanded for entry of additional findings a new trial was

required where the trial judge had left the bench); Wold, 7 Wn. App. at 877 (holding that a new

trial is required in a dissolution action where the appellate court concluded there were inadequate

findings of fact and the trial judge who entered the deficient findings had died). Accordingly, the

trial court properly relied on Tacoma Recycling when it denied Tatyana’s motion.

2. Assignment of a Judge Pro Tempore

Tatyana argues that Judge Wickham has authority to preside over the case on remand as a

judge pro tempore, despite his retirement. In this she is correct. However, she goes further and

argues that we should appoint Judge Wickham as the judge pro tempore to enter CR 11 findings.

Her requested relief is beyond our authority.

A previously elected superior court judge who retires is entitled to hear a pending case as

a judge pro tempore. RCW 2.08.180. But the authority to assign or appoint a judge to a given

case is beyond our authority. Authority over trial court calendars and proceedings rests almost

entirely with the trial court. State v. Gassman, 175 Wn.2d at 211 (citing Cowles Publ’g Co., 96

Wn.2d at 588). And there is no guarantee that the trial court would ask Judge Wickham to come

out of retirement or that he would agree to do so.

Tatyana cites to no authority to support her argument that we may assign a trial court

judge to a case, let alone require a retired judge to return to the bench to hear a matter on remand.

29 No. 50009-4-II; Cons. No. 52959-9-II

Because she does not provide a citation to authority, we assume none exists. State v. K.A.B., 14

Wn. App. 2d 677, 703, 475 P.3d 216 (2020). Thus, it is outside our authority to assign a retired

judge as a judge pro tempore to hear an issue on remand.8

John argues that even if Tatyana could request that Judge Wickham preside, he would

have filed an affidavit of prejudice to ask the judge to recuse or be removed. John appears to

argue that he would be able to compel Judge Wickham to be removed for prejudice simply

because he entered findings adverse to John in a prior hearing. This is plainly wrong. Judge

Wickham has already made rulings on this case, so John is unable to file an affidavit of

prejudice. RCW 4.12.050(1)(a).

John also argues that he would file a successful motion requiring Judge Wickham to

recuse. We do not address this argument other than to say that on this record, we see no

behavior on the part of Judge Wickham that would warrant his removal. Judge Wickham’s

credibility determinations, sanctions, and rulings in a case do not result in the appearance of

“personal bias or prejudice” under the Code of Judicial Conduct as John contends. CJCR

2.11(A)(1); 2 Br. of Resp’t (52959-9) at 29. Instead, reviewing and revising cases on remand is

the day-to-day business of the trial court. John’s argument is deeply flawed.

8 Tatyana also cites to Zachman v. Whirlpool Fin. Corp., 123 Wn.2d 667, 869 P.2d 1078 (1994). There the trial court appointed a retired judge to come back and hear a remanded case on its own motion. Zachman, 123 Wn.2d at 669. Therefore Zachman supports the argument that Judge Wickham may be appointed, but does not support that it is within our authority to do so. Tatyana’s remaining arguments concern interpretation of ballot measures and are inapposite.

30 No. 50009-4-II; Cons. No. 52959-9-II

Because the trial court was correct to deny Tatyana’s motion to enter the CR 11 findings

and because we cannot compel Judge Wickham to return from retirement as a judge pro tempore,

the trial court is left with choices on how to resolve the CR 11 findings issue from Mason II on

remand. Among those choices are to recall Judge Wickham, if he is willing, to serve as judge

pro tempore to determine if sanctions are appropriate in the wake of Mason II and, if so, to enter

CR 11 findings. RCW 2.08.180. Or the trial court may hold a new trial or evidentiary hearing.

Tacoma Recycling, 42 Wn. App. at 442; Welfare of Woods, 20 Wn. App. at 517; Wold, 7 Wn.

App. at 877.

IV. CONCLUSION

The trial court properly denied Tatyana’s motion to release funds in a supersedeas bond.

Because the issue for which those funds were held has been vacated, her arguments to the

contrary are moot. The trial court did not abuse its discretion when it denied her motion to

vacate the 2013 parenting plan under CR 60. She raises only credibility arguments from the

prior trials. Her argument that her constitutional right to raise children was violated by the

parenting plan was raised for the first time on appeal and we do not consider it. Tatyana’s

argument on federal immigration regulations is barred by res judicata as is her argument that the

trial court failed to consider the parties’ financial circumstances. The trial court did not err when

it denied her 2018 motion to enter findings on an issue then pending appeal because her motion

was premature. Finally, although a retired trial court judge is authorized to sit as a judge pro

tempore by statute, we have no authority to order him to come out of retirement to preside over a

case. Thus, the trial court made no error, and we affirm.

31 No. 50009-4-II; Cons. No. 52959-9-II

ATTORNEY FEES

Tatyana argues that we should re-enter CR 11 sanctions against John. That decision is

left to the trial court, and is pending the remand of Mason II.

Tatyana argues that we should impose sanctions against John and his trial counsel under

RAP 18.9 for “multiple frivolous pleadings and misstatements of fact.” 2 Br. of Appellant

(52959-9-II) at 48. We disagree.

RAP 18.9 authorizes us to “award sanctions against a party who uses the Rules of

Appellate Procedure for the purposes of delay, files a frivolous appeal, or fails to comply with

the Rules of Appellate Procedure.” Schorno v. Kannada, 167 Wn. App. 895, 904, 276 P.3d 319

(2012).

“In determining whether an appeal is frivolous and was, therefore, brought for the purpose of delay, justifying the imposition of terms and compensatory damages, we are guided by the following considerations: (1) A civil appellant has a right to appeal under RAP 2.2; (2) all doubts as to whether the appeal is frivolous should be resolved in favor of the appellant; (3) the record should be considered as a whole; (4) an appeal that is affirmed simply because the arguments are rejected is not frivolous; (5) an appeal is frivolous if there are no debatable issues upon which reasonable minds might differ, and it is so totally devoid of merit that there was no reasonable possibility of reversal.”

Lee v. Kennard, 176 Wn. App. 678, 692, 310 P.3d 845 (2013) (quoting Tiffany Family Trust

Corp. v. City of Kent, 155 Wn.2d 225, 241, 119 P.3d 325 (2005).

Here, although John makes some improper arguments, there is nothing in the record on

appeal to suggest he filed any frivolous pleading or misstatement to us. The allegations of

misstatements that Tatyana raises against John concern his pleadings and performance at the

court below, not before us. Accordingly, we deny Tatyana’s request for sanctions against John.

32 No. 50009-4-II; Cons. No. 52959-9-II

John also argues that we should impose sanctions against Tatyana under RAP 18.9 for

Tatyana’s “scurrilous, impertinent, vexatious, intransigent, and frivolous appeal arguments.” 2

Br. of Resp’t (52959-9-II) at 32. Although Tatyana has filed multiple motions and this dispute

has gone on for years, this particular appeal does not meet the definition of frivolous as described

above. Viewing Tatyana’s appeal as a whole, there are issues she raises that are not totally

devoid of merit. Thus, we deny John’s request for sanctions under RAP 18.9.

We deny both parties’ requests for attorney fees. We affirm the decisions of the trial

court.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2.06.040, it is so ordered.

_____________________________ Worswick, J.

We concur:

__________________________________ Lee, C.J.

__________________________________ Veljacic, J.