Full Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON In the Matter of the Marriage of DEBBIE L. EVANS (nka BUNNEY), No. 88562-6-I Respondent, DIVISION ONE and CALVIN H. EVANS, JR., UNPUBLISHED OPINION Appellant. CHUNG, J. — Calvin Evans, Jr. appeals the trial court’s denial of his motion to vacate two judgments entered in the 2011 dissolution of his marriage and a 2021 order extending those judgments. He contends the court erred by concluding that notice was not required before the judgments were extended, that his challenge to the original judgments was untimely, and that his failure to receive an anticipated inheritance did not constitute extraordinary circumstances under CR 60(b)(11). We affirm. BACKGROUND Deborah Evans, now known as Deborah Bunney, 1 and Calvin Evans, Jr. lived and worked on a ranch owned by Evans’s father during the latter part of their marriage. The community invested at least $174,000 in improvements to the property. Evans’s father’s 2006 will devised the ranch to Evans. Evans’s father died while the dissolution was pending, and the parties were unsure whether Evans would inherit the ranch. 1 After the dissolution of Deborah and Calvin’s marriage, Deborah married Craig Bunney. Although at the time of some of the actions discussed herein, Deborah’s last name was still Evans, for clarity, we refer to Deborah as “Bunney” in this opinion. No. 88562-6-I/2 Evans’s three siblings filed a petition under the Trust and Estate Disputed Resolution Act (TEDRA) seeking to invalidate the will for lack of testamentary capacity and undue influence and to have Evans declared an “abuser” under former RCW 11.84.010 (2009), which would preclude him from inheriting his father’s property. At the time of the dissolution, the TEDRA proceeding was ongoing. The dissolution court entered its decree on September 15, 2011. Based on its finding that Evans would retain more than $800,000 in the ranch property, the court awarded Bunney the entire $174,000 community investment in the property. The decree included two monetary judgments of $162,190.50 and $4,508 against Evans. The decree listed the ranch as Evans’s property “if inherited from his father,” subject to a $174,000 lien for Bunney. It further stated, ln the event the Husband is not successful in prosecuting his right under the Last Will of Calvin Evans, Sr. to the ‘ranch’ real property but shares in his father’s estate by way of intestate succession or other manner if the Will is not the basis of probate, this Court retains jurisdiction over this cause and may reconsider the distribution of assets and other financial aspects of this case. In the ensuing TEDRA proceedings, on May 31, 2012, the court found that Evans had financially abused his father. Evans therefore received nothing from his father’s estate, and the ranch passed to Evans’s four adult children. Two of the children, Cory and Jesse Evans, 2 later agreed to quitclaim their combined 50 percent interest in the ranch to Hidden River Ranch, LLC (HRR), of which Evans was the sole owner, 3 in 2 As Evans shares a last name with his children, for clarity, we refer to the children by their first names. 3 Cory disputed whether Evans was the sole owner of HRR. See Cory Evans v. Hidden River Ranch, LLC., No. 84985-9-I, slip op. at 17 (Wash. Ct. App. May 28, 2024) (unpublished), https://www.courts.wa.gov/opinions/pdf/849859.pdf (reversing default judgment in Cory’s favor because trial court failed to make the requisite finding to support striking Evans’s pleadings as a sanction for discovery violations). 2 No. 88562-6-I/3 exchange for Evans’s agreement to execute a will that leaves them each 50 percent of any interest he held in the ranch. Thus, although Evans did not inherit the ranch directly, HRR acquired half of it through his children. Following an unsuccessful appeal in the TEDRA action, 4 in May 2017, in the dissolution action, Evans moved under CR 60(b) to vacate both judgments against him and redistribute the parties’ property. Meanwhile, Bunney had filed a separate action against the estate claiming it and those ultimately inheriting the ranch were unjustly enriched by the community’s contributions to the property (“unjust enrichment lawsuit”). The dissolution court denied Evans’s CR 60(b) motion without prejudice, stating it needed additional information about the outcome of Bunney’s separate unjust enrichment lawsuit. In Bunney’s unjust enrichment lawsuit, HRR moved for summary judgment, arguing that Bunney had engaged in no transaction with the children or HRR and that the dissolution court lacked jurisdiction over the owner of the property (either Cal Sr. or the estate) and the ranch. On August 14, 2018, the court restrained HRR from transferring or encumbering its 50 percent interest in the ranch and granted HRR’s motion for summary judgment, but deferred entering a final order until “after dissolution court rules on additional relief.” Subsequently, in the dissolution action, Bunney moved for judgment against HRR’s interest in the property and requested that it constitute a lien on the property enforceable by judicial foreclosure or partition. On February 6, 2019, the dissolution court denied Bunney’s motion, reasoning that because HRR was not a party to the dissolution, the court lacked jurisdiction to grant the requested relief. The dissolution 4 In re Estate of Evans, No. 69214-3-I (Wash. Ct. App. Dec. 21, 2015) (unpublished) https://www.courts.wa.gov/opinions/pdf/692143.pdf. 3 No. 88562-6-I/4 court also noted it had “previously declined to change or vacate the judgment and distribution of assets . . . and maintains that position without prejudice to either party.” On March 20, 2019, in Bunney’s unjust enrichment lawsuit, the court lifted the injunction restraining HRR from alienating its 50 percent interest in the ranch and entered final summary judgment dismissing Bunney’s claims with prejudice. Subsequently, two of the Evans children commenced an action to partition the ranch (“partition action”). 5 On January 6, 2021, the court ruled that the ranch could not be effectively divided and ordered the real property to be sold for fee simple title, appointed a referee for the sale, and denied HRR’s request to reserve a life estate for Evans. 6 In July 2021, in the dissolution action, Bunney applied under RCW 6.17.020(3) 7 to extend the judgments for an additional 10 years. On July 16, 2021, the dissolution court ordered that the judgments entered September 15, 2011 “are hereby extended an additional ten (10) years during which an execution may be issued pursuant to RCW 6.17.020.” In the partition action, Bunney then sought a “charging lien” upon any portion of the proceeds of the sale of the ranch to which Evans would be entitled. On December 17, 2024, the partition court made findings that Bunney was the judgment creditor in the dissolution action; the principal amount of the judgments totaled $166,698.50; Evans had made no payments toward the judgments; and interest on the judgments accrued at 5 Lindsay filed the action, Cory intervened as a third-party plaintiff, and Evans was added as a third-party defendant. 6 See Hidden River Ranch, LLC v. Rodriguez, No. 82228-4-I, slip op. at 6-7 (Wash. Ct. App. Nov. 14, 2022) (unpublished), https://www.courts.wa.gov/opinions/pdf/822284.pdf (affirming order requiring partition of the ranch by sale). 7 RCW 6.17.020 has been amended since the events of this case transpired. Because these amendments do not impact the statutory language relied on by this court, we refer to the current statute. 4 No. 88562-6-I/5 12 percent per annum. The partition court granted Bunney’s motion and established a lien charged against HRR “to the extent of the transferral [sic] interest” of Evans in HRR or to Evans personally. On April 28, 2025, approximately five months after Evans claims he learned of the extension of the judgments in the dissolution action, 8 Evans moved to vacate the original 2011 judgments in the dissolution action under CR 60(b)(6) and (11) and to vacate the 2021 extension order under CR 60(b)(4). The dissolution court denied the motion, concluding that notice of the extension application was not required, that Evans had not moved for relief from the original judgments within a reasonable time, and that the circumstances were not extraordinary for purposes of CR 60(b)(11). Evans appeals. DISCUSSION On appeal, Evans raises several arguments under CR 60(b). First, he contends that the court erred by concluding that his motion to vacate the original judgments was not brought within a reasonable time under CR 60(b). 9 Second, Evans contends that the court erred by denying his CR 60(b)(4) challenge to the 2021 extension order because Bunney failed to provide notice for her application to extend the judgments. Third, Evans contends that the court erred in finding that his failure to inherit the ranch did not constitute extraordinary circumstances under CR 60(b)(11). We review a trial court’s decision on a CR 60(b) motion to vacate for an abuse of discretion. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 582, 599 P.2d 1289 (1979). 8 Evans claims he did not learn of the extension of the judgments until December 2024, when Bunney sought the charging lien in the partition action. 9 In his motion to vacate, Evans argued that he was entitled to relief under CR 60(b)(6), among other grounds. Although the trial court did not separately address that ground, it was encompassed in the court’s determination that the motion was untimely. Because we affirm the court’s denial on timeliness grounds, we do not reach Evans’s arguments under CR 60(b)(6). 5 No. 88562-6-I/6 I. Timeliness CR 60(b) states that a motion thereunder “shall be made within a reasonable time and for reasons [under CR 60(b)](1), (2), or (3) not more than 1 year after the judgment, order, or proceeding was entered or taken.” “What constitutes a reasonable time depends on the facts and circumstances of each case.” Luckett v. Boeing Co., 98 Wn. App. 307, 312, 989 P.2d 1144 (1999). “The critical period in the determination of whether a motion to vacate is brought within a reasonable time is the period between when the moving party became aware of the judgment and the filing of the motion.” Id. However, “[t]he mere passage of time between the entry of the judgment and the motion to set it aside is not controlling. Rather, a triggering event for the motion may arise well after entry of the judgment that the moving party seeks to vacate.” In re Marriage of Thurston, 92 Wn. App. 494, 500, 963 P.2d 947 (1998). “Major considerations in determining a motion’s timeliness are: (1) prejudice to the nonmoving party due to the delay; and (2) whether the moving party has good reasons for failing to take appropriate action sooner.” Luckett, 98 Wn. App. at 312. A motion to vacate is based on “equitable principles and terms,” and courts should “exercise [their] authority liberally to preserve substantial rights and do justice between the parties.” Haller v. Wallis, 89 Wn.2d 539, 543, 573 P.2d 1302 (1978). However, a trial court does not abuse its discretion for “refusing to excuse the lack of diligence demonstrated by [an] attorney where no valid reason for the delay was offered.” Luckett, 98 Wn. App. at 314. Evans identifies December 2024, when he claims he learned of the extension of the 2011 judgments, as the triggering event, i.e., the beginning of the “critical period,” 6 No. 88562-6-I/7 for his entire CR 60(b) motion. However, the original judgments that Evans seeks to vacate were entered in September 2011. Evans was aware that he had not inherited the ranch by May 31, 2012, when the trial court in the TEDRA proceeding found he had financially abused his father. 10 In May 2017, he moved to vacate the judgments, but the dissolution court denied that motion without prejudice, as it believed it needed information from Bunney’s then-pending unjust enrichment lawsuit against the estate about the marital community’s contribution to the property. In turn, on August 4, 2018, the court in the unjust enrichment lawsuit dismissed Bunney’s claims against the estate but deferred entering a final judgment until after the dissolution court ruled on any other relief. Then, in the dissolution proceeding, in February 2019, the court denied Bunney’s request for a lien on the property based on lack of jurisdiction over either HRR or the property, specifically noting it had “previously declined to change or vacate the judgment and distribution of assets . . . and maintains that position without prejudice to either party.” Finally, after the dissolution court had ruled on Bunney’s claims about the property, on March 20, 2019, the court in the unjust enrichment lawsuit dismissed Bunney’s claims against the estate with prejudice. Thus, at the latest, by March 2019, Evans possessed the information the court had initially requested about the marital community’s interest in the property in the estate and could have renewed his motion to vacate the judgments against him, as he did not inherit the ranch as he had expected. But he did not do so, even though the dissolution court expressly stated in March 2019 that it had previously declined to vacate the judgments without prejudice. 10 Evans, No. 69214-3-I, slip op. at 1-2. Evans appealed the TEDRA court’s decision, which this court affirmed. Id. 7 No. 88562-6-I/8 Evans argues that even if the critical period “began when Evans’s disinheritance was legally final, the court failed to recognize no prejudice to Bunney occurred.” However, an express finding of lack of prejudice is not required; failure to provide an adequate reason for the delay still makes the CR 60(b) motion untimely. Luckett, 98 Wn. App. at 313. Evans did not file the April 2025 motion within a reasonable time of the dissolution court’s February 2019 order or the March 2019 order in the unjust enrichment lawsuit dismissing the claims against the estate. Nor was Evans’s CR 60(b) motion timely to the extent it sought to vacate the dissolution court’s July 2021 order extending the judgments. The April 2025 motion was filed well over three years after entry of the extension order. Evans claims the critical period for the extension order began later, because he did not receive notice of it when it was entered and learned of it only in December 2024, when Bunney obtained a charging lien in the Evans children’s partition action. But even assuming that the critical period began in December 2024, Evans provides no justification for the nearly five-month delay before he filed the CR 60 motion in April 2025. By comparison, in Luckett, we held that even a four-month delay was unreasonable when the moving party supplied no adequate justification. 98 Wn. App. at 313. As in Luckett, here, the trial court did not abuse its discretion in ruling that his April 2025 CR 60 motion was untimely and “refusing to excuse the lack of diligence demonstrated by [an] attorney where no valid reason for the delay was offered.” Id. at 314. 8 No. 88562-6-I/9 II. Lack of Notice of Motion Extending Judgments Evans sought to vacate the 2021 order extending the judgments against him pursuant to CR 60(b)(4), based on Bunney’s failure to provide him with notice. As to this argument, the trial court stated that as an initial matter, “[h]aving reviewed the relevant statutes and law, the Court finds that notice was not required and denies any relief based upon that issue.” A court may vacate a final judgment for “[f]raud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party.” CR 60(b)(4). “The trial court may grant relief under CR 60(b)(4) without considering the probable effect of the misconduct on the trial’s outcome.” Mitchell v. Wash. Inst. of Pub. Pol’y, 153 Wn. App. 803, 825, 225 P.3d 280 (2009); see also Taylor v. Cessna Aircraft Co., Inc., 39 Wn. App. 828, 836, 696 P.2d 28 (1985) (CR 60(b)(4) “does not require a showing the new evidence would have materially affected the outcome of the first trial.”). “The moving party must prove the misconduct by clear and convincing evidence.” Mitchell, 153 Wn. App. at 836. Still, “[a] party seeking to vacate a judgment under CR 60(b)(4) must establish by clear and convincing evidence that the fraudulent conduct or misrepresentation caused the entry of the judgment such that the losing party was prevented from fully and fairly presenting its case or defense.” In re Vulnerable Adult Pet. for Winter, 12 Wn. App. 2d 815, 830, 460 P.3d 667 (2020). “Clear and convincing evidence is that which shows the ultimate fact in issue to be highly probable.” Id. Extension of a judgment “shall be granted as a matter of right.” RCW 6.17.020(3). Judicial considerations for an extension of a judgment are confined to the 9 No. 88562-6-I/10 application’s “timeliness, factual issues of full or partial satisfaction, or errors in calculating the judgment summary amounts.” Id. Evans argues that “Bunney’s failure to provide notice deprived him of any opportunity to raise the issues that RCW 6.17.020(3) itself identifies as subject to review—timeliness, partial satisfaction, and errors in calculating the judgment summary amounts.” Yet Evans does not explain what specific arguments he was unable to raise on these three topics, much less the requisite clear and convincing evidence of fraudulent conduct or misrepresentation. First, as to timeliness, Bunney filed her application as required by statute, in July 2021, within 90 days of the 10-year judgment expiration date of September 2021. Second, Evans identifies no partial satisfaction that was omitted from review. Third, he identifies no error in the judgment summary amounts. In short, Evans fails to demonstrate by clear and convincing evidence that Bunney’s alleged failure to provide him notice prevented him from fully and fairly presenting arguments in opposition to her extension request within the limited scope of review allowed by RCW 6.17.020(3). Cf. Taylor, 39 Wn. App. at 834-37 (Cessna’s failure to disclose fuel system testing during discovery supplied alternative theory of liability that plaintiff could not know existed and thus could not have litigated previously). The trial court did not abuse its discretion by denying Evans’s motion for relief under CR 60(b)(4). III. CR 60(b)(11) Finally, Evans also sought relief pursuant to CR 60(b)(11), contending that “a judgment based on a speculative asset that was entirely defeated by extraneous litigation, compounded by an ex parte judgment extension without notice . . . are, by their very nature, extraordinary.” Noting that the rule should be used only “in the most 10 No. 88562-6-I/11 extreme circumstances,” the trial court concluded that “[n]o such extraordinary circumstances exist in this matter” that justified relief under CR 60(b)(11). We hold that the trial court did not abuse its discretion in so concluding. CR 60(b)(11) provides relief for “[a]ny other reason justifying relief from the operation of the judgment.” Its application is limited to extraordinary circumstances not covered by another provision of CR 60(b). Thurston, 92 Wn. App. at 499. A subsequent change in a party’s financial circumstances, alone, does not justify vacating a dissolution decree. In re Marriage of Knutson, 114 Wn. App. 866, 873, 60 P.3d 681 (2003). Courts have found extraordinary circumstances when a material condition of a property settlement failed, or an unanticipated development defeated the decree’s intended award of a substantial asset. See Thurston, 92 Wn. App. at 503-04; In re Marriage of Jennings, 138 Wn.2d 612, 625-27, 980 P.2d 1248 (1999). In Thurston, the dissolution decree awarded the wife two partnership units held by a corporation in which the husband owned stock. 92 Wn. App at 502-03. The parties described the transfer of the husband’s present interest in the partnership as a “condition to this agreement” whose failure would “throw the whole settlement out.” Id. at 503. When the transfer did not occur due to a third-party, the court properly acted within its discretion by granting relief under CR 60(b)(11). Id. Similarly, in Jennings, an unanticipated reclassification of military retirement benefits substantially reduced the wife’s payments. 138 Wn.2d at 622. Our Supreme Court held that the trial court could reasonably find extraordinary circumstances where the reclassification and reduced monthly payments defeated the decree’s intended division of an existing community asset. Id. at 625. “Neither the court 11 No. 88562-6-I/12 nor the parties anticipated” that the retirement payments would be reduced in that manner, and the result was “fundamentally unfair” because it deprived the wife of the substantial community asset the decree awarded her. Id. at 627. Here, the expected inheritance was relevant to the dissolution court’s determination of the financial distribution, but the decree expressly acknowledged the uncertainty surrounding that inheritance and reserved the authority to “reconsider” it. That the court “may reconsider” did not require a different distribution if the inheritance failed. Nor did the decree make the continued validity of Bunney’s judgments contingent on Evans’s inheritance of the ranch. Rather, Evans’s noninheritance of an asset that was expressly recognized as uncertain was a trigger for possible judicial review, unlike in Thurston or Jennings, which involved assets not expected to change in value. Thurston, 92 Wn. App. at 502-03; Jennings, 138 Wn.2d at 627. The proceedings on Evans’s 2017 CR 60(b) motion confirm this distinction, as the trial court did not treat the noninheritance as automatically extinguishing the judgment against Evans. In fact, the court stated it was not inclined to “simply set aside the judgment.” Because the dissolution court anticipated the contingency and retained jurisdiction so Evans could raise it with the court, Evans cannot characterize the noninheritance as extraordinary when it was a foreseeable disruption. The case Knutson is more analogous to the facts here. 114 Wn. App. 866 (2003). There, the decree awarded the wife a specified amount from the husband’s 401(k) based on an agreed valuation date. Id. at 868. Before the parties completed the qualified domestic relations order required to divide the account, the account lost approximately $58,553. Id. at 869. Although the original distribution had been designed 12 No. 88562-6-I/13 to divide the marital estate equally, the Court of Appeals held that the later value change was “not an extraordinary event.” Id. at 873. The husband’s “failure to appreciate the [401(k)]’s vulnerability to market forces” did not constitute an extraordinary circumstance, and the interests of finality required enforcement of the original decree. Id. at 874. Like the account in Knutson that was vulnerable to market loss, here, the value of Evans’s interest in the ranch was not certain, and his noninheritance was a circumstance that the parties and the dissolution court anticipated. The fact that the dissolution court expressly reserved jurisdiction—both at the time it issued the judgments in 2011 and later, when it denied Bunney’s request to place a lien on the property in 2019—demonstrates that a change in the value of marital assets was contemplated and not extraordinary. The occurrence of a risk the decree expressly anticipated does not become extraordinary merely because the risk eventually materialized, as did the risk in Knutson when the husband’s 401(k) account dropped in value. Id. While the court denied Evans’s initial request to modify the judgment in 2017, it did so without prejudice while awaiting the outcome of Bunney’s unfair enrichment action. Once that action was dismissed in March 2019, Evans had the information the court had requested. After that, nothing occurred to transform the contemplated contingency that had in fact come to pass into an extraordinary circumstance that prevented seeking relief until six years later, in 2025. Nor was Bunney’s extension of the judgment extraordinary, especially when such extensions “shall be granted as a matter of right” under RCW 6.17.020(3). 13 No. 88562-6-I/14 Thus, we conclude the trial court acted within its discretion by declining to grant Evans’s CR 60(b)(11) motion to vacate. CONCLUSION We affirm. WE CONCUR: 14