Christell Charity Krsak, V. Gregory Michael Krsak ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of:
No. 85948-0-I
CHRISTELL CHARITY KRSAK,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
v.
GREGORY MICHAEL KRSAK,
Appellant.
DÍAZ, J. — Gregory Krsak appeals from an order denying his CR 60(b)
motion for relief from judgment (“Motion”). Gregory 1 also challenges the court’s
award of fees to Christell Krsak and its underlying determination that his Motion
was without basis in law or fact. Finding no reversible error, we affirm.
I. BACKGROUND
Christell and Gregory Krsak were married in 2011. The parties have one
minor child, A.K. The parties separated on January 13, 2021, and Christell
petitioned for dissolution on January 29, 2021.
1 We refer to the parties by their first names to avoid confusion. No disrespect is
intended.
No. 85948-0-I/2
The trial lasted eight days, during which the trial court heard testimony from
14 witnesses. At the conclusion of the trial, on July 28, 2022, the court announced
its findings to the parties and directed Christell’s counsel to prepare final orders
consistent with its oral ruling. The trial court informed Gregory that he would have
one week from the date he received the proposed orders from Christell’s counsel
to review and comment on the orders for the court’s review. Christell’s counsel
provided the proposed orders to Gregory on August 9, 2022, at which time,
Gregory indicated that he would review the orders later that day. However, by
August 17, 2022, the court had not received any comments from Gregory.
The trial court entered final orders on August 17, 2022. In the parenting
plan, the trial court entered a finding that Gregory “has engaged in Domestic
Violence against Christell Krsak as defined by RCW 7.105.010(4)(a) . . . .” The
court further found that “[o]ften these events would occur in front of the child.”
Pursuant to RCW 26.09.191, the trial court entered a four-phase plan restricting
Gregory’s time with A.K., which provided for fewer restrictions as Gregory
completed designated amounts of domestic violence treatment.
Gregory filed a motion for reconsideration, asserting that the visitation
schedule contained an error that was inconsistent with the trial court’s oral ruling.
Gregory also requested that the trial court remove the descriptions of the domestic
violence and requested that the parenting plan should be amended to grant him
joint custody and decision-making over A.K., as he maintained that he had not
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committed domestic violence as defined by former RCW 26.50.010 (2019). 2 The
trial court denied the motion on September 2, 2022.
On August 14, 2023, Gregory filed pro se the Motion at issue here, viz.,
requesting that the final parenting plan and child support order be vacated
pursuant to CR 60(b)(1), (4), and (11). The trial court denied the Motion, both as
having been untimely filed and on the merits. The trial court additionally awarded
$4,283.50 in attorney fees to Christell, having determined that Gregory’s Motion
lacked both factual and legal merit. However, the trial court declined to find that
Gregory had engaged in abusive litigation pursuant to RCW 26.51.010.
Gregory timely appeals the denial of the Motion.
II. ANALYSIS
A. Whether the Trial Court Erred by Denying Gregory’s Motion
1. Standard of Review
We review a trial court’s decision on a CR 60 motion for an abuse of
discretion. In re Rapid Settlements, Ltd., 166 Wn. App. 683, 690, 271 P.3d 925(2012). “A court abuses its discretion only when its decision is manifestly
unreasonable, or exercised on untenable grounds or for untenable reasons.”
Barnett v. Dep’t of Corr., 24 Wn. App. 2d 961, 972, 522 P.3d 52 (2022), review
denied, 1 Wn.3d 1018, 532 P.3d 156 (2023). An appeal from the denial of a CR
60(b) motion is not a substitute for an appeal and is limited to the propriety of the
denial, not the impropriety of the underlying order. Bjurstrom v. Campbell, 27 Wn.
2 The legislature repealed this chapter effective July 1, 2022, as part of legislation
that reorganized various civil protection order statutes into a new RCW chapter.
See LAWS OF 2021, ch. 215, §§ 1, 170(94)-(126); see also chapter 7.105 RCW.
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App. 449, 450-51, 618 P.2d 533 (1980). The party seeking relief under CR 60(b)
bears the burden of showing relief is warranted. Fowler v. Johnson, 167 Wn. App.
596, 605, 273 P.3d 1042 (2012).
Gregory contends that the trial court applied the incorrect standard in
deciding his motion for relief from judgment, arguing that the court should have
evaluated whether he presented a meritorious defense. He is incorrect. A court
deciding a motion for relief from a default judgment must examine, among other
factors, whether “there is substantial evidence extant to support, at least prima
facie, a defense to the claim asserted by the opposing party.” Pfaff v. State Farm
Mut. Auto. Ins. Co., 103 Wn. App. 829, 832, 14 P.3d 837 (2000) (quoting White v.
Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968)). The court considers this factor
because the party moving to vacate a default judgment has not had the opportunity
to present their defense to the action. Pfaff, 103 Wn. App. at 834-35. Gregory had
such an opportunity at the trial of this matter.
Moreover, Gregory has not cited to any case in which this standard was
applied to a motion for relief from judgment brought post-trial. DeHeer v. Seattle
Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962) (“Where no authorities
are cited in support of a proposition, the court is not required to search out
authorities, but may assume that counsel, after diligent search, has found none.”).
Further, it is not appropriate for the trial court to consider the merits of a party’s
position where, as here, we are not examining “the impropriety of the underlying
judgement.” Bjurstrom, 27 Wn. App. at 450-51. The trial court did not apply an
incorrect standard in evaluating Gregory’s Motion.
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2. Timeliness of the Motion
Gregory next asserts that the trial court erred by determining that his Motion
was untimely filed, as he filed the Motion within one year of the entry of the
challenged order. We disagree.
CR 60(b) states that a motion for relief from judgment “shall be made within
a reasonable time and for reasons (1), (2), and (3) not more than 1 year after the
judgment, order, or proceeding was entered or taken.” (Emphasis added.)
Gregory reads this language as being disjunctive and that a motion brought under
CR 60(b)(1) need only adhere either to a reasonable time or to the one-year
deadline. However, as we have previously clearly held, “a motion brought under
CR60(b)(1), (2), or (3) is timely only if it meets both time requirements.” Luckett v.
Boeing Co., 98 Wn. App. 307, 311, 989 P.2d 1144 (1999). 3
Here, the trial court determined that Gregory’s Motion had not been brought
within a reasonable time, as he had waited nearly one year before filing it. In its
order denying the Motion, the trial court explained that
There is a minor child who has grown accustomed to the living
arrangement dictated by the Final Parenting Plan. The evidence
presented by Mr. Krsak was all, or substantially all, available to him
at the conclusion of trial and it is unclear how long and to the extent
he was injured following his work-place injury at the conclusion of
trial.
The trial court’s reasoning is supported by the record. As the trial court
noted in its oral ruling following trial, A.K. is a child who “hates transitions and
changes,” and by the time Gregory filed his motion for relief from judgment, she
3 CR 60(b) also supersedes RCW 4.72.020 in this regard. See CR 60(e)(4); CR
81(b).
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had been living with the current parenting plan for nearly a year. While Gregory
provided records to the trial court demonstrating that he had been injured at work,
the records did not state what limitations he had and how long any limitations
lasted. Finally, Gregory’s motion relied upon documentation that, for the most part,
was already part of the record, including, but not limited to, a previously filed
declaration, various discovery orders, the trial testimony of various witnesses, the
court’s oral ruling, and his request for an accommodation.
Gregory nevertheless contends that he filed his motion within a reasonable
amount of time because his autism spectrum disorder and his lack of knowledge
and legal training required him to have a full year to prepare his motion for relief
from judgment. While we are cognizant of his condition, this argument as
presented is unavailing.
Gregory provided no evidence to the court demonstrating how his autism
prevented him from filing his motion for nearly a year. Given the lack of evidence,
the trial court did not find Gregory’s explanation to be credible. We do not review
credibility determinations. State v. Living Essentials, LLC, 8 Wn. App. 2d 1, 15,
436 P.3d 857 (2019) (bench trial on a Consumer Protection Act case).
Furthermore, pro se litigants are held to the same standard as attorneys, so
Gregory’s unfamiliarity with the law is no excuse. See In re Vulnerable Adult Pet.
For Winter, 12 Wn. App. 2d 815, 844, 460 P.3d 667 (2020). The trial court did not
abuse its discretion by determining that Gregory’s motion was untimely.
Although the untimeliness of the motion could curtail our review of much, if
not all, of his appeal, see, e.g., Luckett, 98 Wn. App. at 314-15, we will address
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No. 85948-0-I/7
Gregory’s remaining assignments of error on the merits to clearly explain why he
still does not prevail, in the order more or less the issues are presented.
3. Whether the Trial Court Made a Clerical Mistake in Entering the Final
Parenting Plan
Gregory contends that the trial court made a clerical mistake in the final
parenting plan because the terms of the parenting plan do not accurately reflect its
oral ruling regarding the visitation schedule. We disagree.
CR 60(a) states that “[c]lerical mistakes in judgment, orders or other parts
of the record and errors therein arising from oversight or omission may be
corrected by the court … on the motion of any party.” This rule does not, however,
permit a trial court to correct a “judicial” error. In re Marriage of Stern, 68 Wn. App.
922, 927, 846 P.2d 1387 (1993). As our Supreme Court has held,
In deciding whether an error is “judicial” or “clerical,” a reviewing
court must ask itself whether the judgment, as amended, embodies
the trial court’s intention, as expressed in the record at trial. Marchel
v. Bunger, 13 Wn. App. 81, 84, 533 P.2d 406, review denied, 85
Wn.2d 1012 (1975). If the answer to that question is yes, it logically
follows that the error is clerical in that the amended judgment merely
corrects language that did not correctly convey the intention of the
court, or supplies language that was inadvertently omitted from the
original judgment. If the answer to that question is no, however, the
error is not clerical, and, therefore, must be judicial. Thus, even
though a trial court has the power to enter a judgment that differs
from its oral ruling, once it enters a written judgment, it cannot, under
CR 60(a), go back, rethink the case, and enter an amended judgment
that does not find support in the trial court record.
Presidential Ests. Apt. Assocs. v. Barrett, 129 Wn.2d 320, 326, 917 P.2d 100(1996).
The record here demonstrates that, regardless of any discrepancy between
the oral ruling and written orders, the trial court did not make a clerical error in
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No. 85948-0-I/8
entering the final parenting plan. Shortly after entry of final orders, Gregory filed a
motion for reconsideration in which he raised the same argument that he does on
appeal, namely, that the trial court had made a clerical error in the parenting plan
concerning the amount of visitation time allotted to him. The trial court denied the
motion outright. The trial court’s decision not to amend the parenting plan after
Gregory’s motion for reconsideration demonstrates that it entered the parenting
plan that it intended to, ending our review.
4. Whether the Final Orders were the Product of Mistakes,
Inadvertence, Surprise, Excusable Neglect or Irregularity
Gregory next asserts that the trial court should have vacated the final
parenting plan and child support order pursuant to CR 60(b)(1). We disagree.
CR 60(b)(1) permits the trial court to vacate a judgment or order when the
moving party demonstrates that there were “[m]istakes, inadvertence, surprise,
excusable neglect or irregularity in obtaining a judgment or order.” “Irregularities
pursuant to CR 60(b)(1) occur when there is a failure to adhere to some prescribed
rule or mode of proceeding, such as when a procedural matter that is necessary
for the orderly conduct of trial is omitted or done at an unseasonable time or in an
improper manner.” Mosbrucker v. Greenfield Implement, Inc., 54 Wn. App. 647,
652, 774 P.2d 1267 (1989).
Gregory asserts that an irregularity occurred when the trial court made a
finding of domestic violence under Chapter 7.105 RCW instead of former Chapter
26.50 RCW, as the two statutes incorporate different burdens of proof. Christell
responds, and the trial court agreed, that there was substantial evidence to support
the trial court’s finding of domestic violence under either Chapter 7.105 RCW or
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No. 85948-0-I/9
former Chapter 26.50 RCW. We need not resolve the issue of which statute
applied at time of trial, nor do we need to address whether substantial evidence
supported the trial court’s finding of domestic violence.
Gregory’s appeal concerns the denial of his motion for relief from judgment,
not the substance of the parenting plan itself. Stated differently, the irregularity
that Gregory alleges here is not a matter of procedure, but one concerning the
substantive law applicable at the time of trial. 4 “[E]rrors of law cannot be addressed
by a CR 60 motion.” In re Marriage of Adler, 131 Wn. App. 717, 728, 129 P.3d
293 (2006). CR 60(b) “is not intended to be used as a means for the court to
review or revise its own final judgments,” which is precisely what Gregory asked
the trial court to do. Kern v. Kern, 28 Wn.2d 617, 619, 183 P.2d 811 (1947).
Because Gregory asserts an error of law and not an irregularity “in some
prescribed rule or mode of proceeding,” the trial court did not abuse its discretion
by denying his Motion under CR 60(b)(1). Mosbrucker, 54 Wn. App. at 652.
Gregory further asserts that we should vacate the final parenting plan and
child support order for excusable neglect, as his work injury and disabilities
prevented him from reviewing the proposed final orders within the time limit
provided. In support of this assertion, Gregory relies upon In re Marriage of Gharst,
25 Wn. App. 2d 752, 525 P.3d 250 (2023).
4 Gregory contends that In re Parentage of T.M.L.T., No. 30617-8-III (Wash. Ct.
App. Apr. 11, 2013) (unpublished), http://www.courts.wa.gov/opinions/pdf/306178.pdf,
supports his assertion that application of the incorrect substantive law constitutes
an irregularity under CR 60(b)(1). Not only is T.M.L.T. unpublished and of no
precedential value, see GR 14.1(a), but the case concerned a motion for relief from
judgment brought under CR 60(b)(11), not (b)(1).
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No. 85948-0-I/10
In Gharst, the wife, then going by the surname Converse, filed a motion to
vacate the final orders in the parties’ dissolution, which had been entered after
Converse failed to appear for trial. 25 Wn. App. 2d at 755. Five years prior to trial,
Converse had sustained a debilitating stroke, “leaving her with partial paralysis
down the left side of her body and a brain injury that causes difficulties with
speech, concentration, and the ability to organize her thoughts.” Id. at 756. In
support of her motion, Converse submitted declarations from multiple friends and
family members that described the limitations the stroke had caused her. Id.
Division Three of this court determined that Converse had demonstrated
excusable neglect in light of the “difficulties in speaking, concentrating, and
organized thinking” that she experienced as the result of her stroke. Id. at 759.
Gharst presents in a very different procedural posture and, otherwise, is
readily distinguishable from this case. As the court in Gharst explained, “[r]elief
from judgment based on excusable neglect requires an analysis of not only a
litigant’s mental state but also other circumstances, including ‘the danger of
prejudice to the [opposing party], the length of the delay and its potential impact
on judicial proceedings, [and] the reason for the delay, including whether it was
within the reasonable control of the movant.’” 25 Wn. App. 2d at 759 (alterations
in original) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507
U.S. 380, 395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993)). In that case, not only
was Converse suffering from a significant mental disability, but she filed her motion
to vacate less than a month after final orders had been entered and the opposing
party suffered no prejudice as a result. Id. at 759-60.
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Gregory, however, has not satisfied any of the factors required to
demonstrate excusable neglect. First, unlike Converse, Gregory was present at
trial and fully participated in the proceedings. See Gharst, 25 Wn. App. 2d at 760
(“At the same time, the outcome of trial might have been different with Ms.
Converse’s participation, given the trial court granted all Mr. Gharst’s requests and
did not consider Ms. Converse’s disability and inability to work when dividing debt
and liabilities and denying spousal maintenance.”). Although Gregory asserts that
he did not receive a full and fair opportunity to present his case because the trial
court did not conduct oral argument on his motion for reconsideration, the parties
do not have a right to oral argument, particularly where the local rules do not call
for oral argument on the motion submitted. See Rivers v. Wash. State Conf. of
Mason Contractors, 145 Wn.2d 674, 697, 41 P.3d 1175 (2002). Gregory was able
to fully present his arguments to the court in his motion for reconsideration, both in
writing and at oral argument on the Motion itself. As such, there is no concern
about the fundamental fairness of proceedings, as was present in Gharst.
Second, Gregory does not present evidence that he suffered from a
significant mental disorder that would justify holding him to a lower standard than
other pro se litigants. Although Gregory submitted documentation documenting
his diagnoses, nothing on record speaks to the limitations his disabilities or
workplace injury caused him. Given the variant presentation of autism spectrum
disorder and ADHD, the court cannot conclude that either constitutes a “significant
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No. 85948-0-I/12
mental disorder” by virtue of simple diagnosis. 5 Unlike Converse, whose
limitations were attested to by numerous witnesses, Gregory presented no
evidence of his limitations at all.
Furthermore, Gregory did not file his Motion until nearly a year after the
entry of final orders. This delay is in stark contrast to Converse, who filed her
motion for relief from judgment within a month of final judgment, despite being a
pro se litigant with significant mental disorders. As we have already held,
Gregory’s year-long delay was unreasonable and, based on the record provided,
cannot be excused on account of his disabilities.
Finally, the potential prejudice to Christell – and A.K. – is great. Vacating
the parenting plan and child support order would require the parties to endure a
second trial, despite already having undergone a lengthy trial that was attended by
both parties. Additionally, vacation of the orders would create instability for a
young child who “hates transition and changes” and who has been living under the
parenting plan for a year.
Based on the record provided, Gregory does not show that his failure to
respond to the proposed final parenting plan and child support order in a timely
manner constitutes excusable neglect that would justify vacation of the orders.
The trial court did not abuse its discretion by denying Gregory’s Motion under CR
60(b)(1).
5 We note that many attorneys are able to practice law and adhere to court rules
after receiving a diagnosis of autism spectrum disorder, ADHD, or both. See Lee
Rawles, How Neurodiverse Lawyers Can Thrive in the Profession – And Change it for the Better,
AM. BAR ASS’N. (Aug. 11, 2021) https://www.americanbar.org/groups/journal/podcast/how-
neurodiverse-lawyers-can-thrive-in-the-profession-and-change/.
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No. 85948-0-I/13
5. Whether the Final Orders were the Product of Fraud,
Misrepresentation, or Other Misconduct of the Opposing Party
Gregory next asserts that the trial court should have vacated the final
parenting plan and child support order under CR 60(b)(4), because the orders were
the product of fraud and misrepresentation. We disagree.
CR 60(b)(4) permits the trial court to vacate a judgment or order that is the
product of “[f]raud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation, or other misconduct of an adverse witness.” The alleged fraud,
misrepresentation, or misconduct must have caused the entry of the judgment or
order, such that the moving party was prevented from fully and fairly presenting
his case. Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d 526 (1990). A
party seeking vacation of a judgment or order on this basis “must establish the
fraud, misrepresentation, or other misconduct by clear and convincing evidence.”
Id.Gregory contends that the trial court abused its discretion by finding that he
did not present evidence that the final orders were the product of fraud,
misrepresentation, or misconduct. He does not elaborate on this argument in
either his opening brief or his reply brief. “Passing treatment of an issue, lack of
reasoned argument, or conclusory arguments without citation to authority are not
sufficient to merit judicial consideration.” Winter, 12 Wn. App. 2d at 835.
Accordingly, we decline to consider this argument any further.
6. Whether There are Any Extraordinary Circumstances
Finally, Gregory asserts that the trial court should have granted his Motion
pursuant to CR 60(b)(11). Again, we disagree.
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CR 60(b)(11) permits the trial court to vacate a judgment or order for “any
other reason justifying relief from the operation of the judgment.” This rule “applies
only in extraordinary circumstances relating to irregularities which are extraneous
to the action of the court or go to the question of the regularity of its proceedings.”
Barr v. MacGugan, 119 Wn. App. 43, 48, 78 P.3d 660 (2003).
Gregory asserts that he is entitled to have the final orders vacated because
the trial court did not provide him an accommodation for his disabilities. His
assertion is belied by the record. Gregory submitted a request for an
accommodation to the trial court for his autism spectrum disorder. When asked to
describe the accommodation he was requesting, Gregory responded, “Patience
and understanding of an atypical communication style.” Gregory presented no
evidence that this request was denied or that he made a request for any another
accommodation. Although he asserts that the court should have offered him other
accommodations, he does not identify what these hypothetical accommodations
are. Because Gregory was not denied an accommodation, he has not
demonstrated any extraordinary circumstances that calls the regularity of
proceedings into question. The trial court, therefore, did not abuse its discretion
by denying Gregory’s Motion under CR 60(b)(11).
B. Whether Christell Krsak is Entitled to Attorney Fees
1. Attorney Fees Awarded by the Trial Court
Gregory asserts that the trial court should not have awarded Christell
attorney fees because his Motion was not without basis in fact or law. We
disagree.
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We apply a two-part standard when reviewing a trial court’s award of
attorney fees. Falcon Props., LLC v. Bowfits 1308 LLC, 16 Wn. App. 2d 1, 11, 478
P.3d 134 (2020). First, we review de novo whether there is a legal basis for the
award of fees. Id. Second, we apply an abuse of discretion standard to the trial
court’s decision to award fees and its determination of the amount awardable. Id.Gregory asserts that the trial court should not have awarded fees to Christell
because his entire action was not frivolous as required by RCW 4.84.185. The
trial court did not award fees under this statute. Although not cited directly, it is
evident that the trial court awarded fees under CR 11, which permits the court to
sanction a pro se litigant for filing a pleading “not grounded in fact or law.” In re
Recall of Lindquist, 172 Wn.2d 120, 136, 258 P.3d 9 (2011).
Gregory contends that his Motion was not without basis in fact or law.
However, the record supports the trial court’s finding. Gregory filed his Motion
almost one year after his motion for reconsideration was denied without a
reasonable explanation for the length of the delay, dooming his CR 60(b)(1)
argument. Many of the arguments Gregory raised in his Motion were the same
ones he asserted in his motion for reconsideration. He did not produce any
evidence to support his claims of fraud under CR 60(b)(4) or his denial of disability
accommodation under CR 60(b)(11). The trial court’s finding that Gregory’s Motion
was without basis in law or fact was supported by the record. Accordingly, the trial
court did not abuse its discretion by ordering Gregory to pay attorney fees and
costs to Christell for defending against the Motion.
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2. Attorney Fees on Appeal
Christell asks this court to award her attorney fees pursuant to RAP 18.9,
contending that Gregory’s appeal was frivolous. An appeal is frivolous if it
“presents no debatable issues and is so devoid of merit that there is no reasonable
possibility of reversal.” Streater v. White, 26 Wn. App. 430, 434, 613 P.2d 187(1980). “All doubts as to whether the appeal is frivolous should be resolved in
favor of the appellant” and “[a]n appeal that is affirmed simply because the
arguments are rejected is not frivolous.” In re Marriage of Schnurman, 178 Wn.
App. 634, 644, 316 P.3d 514 (2013).
Although we reject Gregory’s arguments and apply a deferential standard
of review to the trial court’s CR 11 findings, we do not view his appeal as so devoid
of debatable issues as to be frivolous. The request for fees is denied.
C. Whether this Court Should Direct a Finding of Abusive Use of Litigation
Christell additionally asks this court to direct the trial court to enter a finding
pursuant to RCW 26.51.010 that Gregory engaged in abusive litigation. Christell
also made this request to the trial court in response to Gregory’s Motion, which the
trial court denied. A respondent that seeks affirmative relief from this court must
file a notice of cross-appeal. RAP 2.4(a); Modumetal, Inc. v. Xtalic Corp., 4 Wn.
App. 2d 810, 834–35, 425 P.3d 871 (2018). Christell did not do so. We deny her
request for relief.
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III. CONCLUSION
We agree that Gregory’s Motion was both untimely and without merit. As
such, the trial court did not err by denying the Motion and awarding attorney fees
to Christell. We affirm.
WE CONCUR:
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