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In re Marriage of Esparza

May 19, 1997

IN RE THE MARRIAGE OF: BRIAN ALEXANDER ESPARZA, APPELLANT, AND MICHELE ANN ESPARZA, RESPONDENT.


Appeal from Superior Court of King County. Docket No: 93-3-01630-5. Date filed: 10/18/95. Judge signing: Hon. Jo Anne Alumbaugh.

PER CURIAM. In this dissolution action, Brian Esparza challenges the trial court's denial of his CR 60(b) motion to vacate the decree. Esparza's appeal implicates several aspects of CR 60: (1) irregularity resulting from insufficient notice of the hearing to present final orders; (2) voidness caused by terms that do not conform to the parties' settlement agreement; (3) improper modification of the orders to correct judicial errors; and (4) fraud and misrepresentation. He also argues the court erred by denying his motion for an evidentiary hearing. Finally, Esparza attacks the court's denial of his motion for sanctions under CR 11 and its award of attorney's fees to respondent, Michele Esparza.

Vacation of a judgment under CR 60(b) is within the trial court's discretion. We will overturn the trial court only if it plainly appears that its discretion has been abused. *fn1 An abuse of discretion occurs only where a trial court's decision is manifestly unreasonable or based on untenable grounds or reasons. *fn2 The court did not abuse its discretion here.

Insufficient notice and nonconforming terms

On June 6, 1994, the trial court accepted the parties' agreed settlement. Michele Esparza's attorney volunteered to prepare the orders. The parties were unable to reach agreement on the orders during a June 22 hearing. Counsel for Michele Esparza sent Brian Esparza a letter dated August 15, with copies of proposed orders for Esparza's review. With a letter dated August 16, counsel sent the court the proposed orders. In the letter, counsel wrote he had sent Brian Esparza the proposed orders but had not received Esparza's response. He also informed the court he had set a presentment hearing for September 2.

For reasons unexplained, the presentment hearing occurred on August 22, in Brian Esparza's absence. The court signed Michele Esparza's proposed orders.

The parties offered differing versions of what happened between August 16 and August 22. In his affidavit in support of the motion to vacate, Brian Esparza acknowledged that counsel left him a phone message on August 17, "suggesting that they intended to advance the September date of presentation." Being unable to contact counsel, Brian Esparza learned from court coordinator Beth Custer that counsel had prepared proposed orders and was seeking a date for presentment. Brian Esparza's affidavit then states the following: " third party spoke with Beth Custer on August 18, 1994, and relayed conflicting information of a vague character which put [Brian Esparza] on further inquiry, but lack of sufficient time to inquire, proved his efforts futile." *fn3 Michele Esparza's declaration in response to Brian's motion to vacate stated both her counsel and Custer spoke with Brian in advance of August 22 and notified him of the presentment date. Michele Esparza asserts Brian chose not to appear so he could later argue he was not sufficiently notified.

In his motion to vacate, as he does now, Esparza argued he did not receive 5 days notice of the August 22 hearing as required by CR 52(c) *fn4 and CR 54(f)(2). *fn5 After reviewing counsel's letters, the parties' affidavits, and their arguments, the court found Esparza received sufficient notice of presentment. In so doing, the court apparently *fn6 chose to believe Michele Esparza's direct representations and to glean from Brian Esparza's more vague statements evidence proving sufficient notice. The trial court's credibility determinations are not subject to review. *fn7 Unless it clearly appears the trial court exercised its discretion on untenable grounds or in a manifestly unreasonable manner, the Disposition of the court will not be disturbed. *fn8 On the record before us, we are unable to conclude the court abused its discretion by finding sufficient notice.

But even assuming the court entered the judgment without proper notice, Esparza must still establish he was prejudiced in order to have the judgment invalidated. *fn9 Because he has failed to show prejudice, we reject Esparza's contentions.

Esparza's theory is that his absence from the hearing caused the court to sign orders that did not conform to the parties' agreement. But he has been given ample opportunity -- which he had taken complete advantage of in his various motions -- to bring the alleged nonconformities to the attention of the trial court. *fn10 First, Esparza set forth his specific objections in a motion for reconsideration filed September 1, 1994. As a result of the motion, the court entered a corrected decree.

Second, Esparza alleged the same nonconformities and more in his affidavit in support of the motion to vacate, filed in July 1995. At the hearing on the motion to vacate, the trial court considered all the pleadings before denying the motion. In fact, although the court denied the motion, it again amended the judgment in Brian Esparza's favor.

In August 1995, Esparza filed a motion for reconsideration, which the court denied. In September, he filed a motion for revision, which was denied but resulted in clarification of the judgment. In both motions, Esparza reiterated the same arguments made in his motion to vacate. As a result of these proceedings, Esparza has had a full opportunity to raise all issues he now argues he could not raise at the presentment hearing. Therefore, he has not shown how any alleged lack of notice resulted in prejudice.

The lack of prejudice becomes even more evident when we examine Esparza's individual allegations of nonconformity. For example, Esparza asserts the judgment improperly restricted his rights to residential time with his daughter and applied the same restrictions to his decision-making authority. But in its order denying the motion to vacate, the court expressly removed those provisions from the final parenting plan, finding they were not part of the settlement.

Esparza also states the judgment failed to reflect the terms of the agreement by not obliging Michele Esparza to pay 60 percent of the outstanding community debt of $2,464. The court corrected this error more than 2 years ago.

Esparza also maintains the court ordered him to pay $150 per month toward community debt and $50 per month toward child support arrearages, contrary to the parties' agreement, which specified a $25 per month payment toward each debt. We disagree. The original final order specifies a monthly total debt payment of $50 per month; the corrected decree specifies payment in accord with the original agreement; and the order ...


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