Carole Hoffman Laroche, Appellant V. Alan Lowell Hoffman, Respondent

IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
In the Matter of the Marriage of
CAROLE HOFFMAN,
Appellant,
and
ALAN LOWELL HOFFMAN,
Respondent.
No. 74207-8-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: October 3, 2016
a 	CO ""
CD
!
CO ^':
<^o 	:—.'...
Trickey, A.C.J. — Carole LaRoche, formerly known as Carole Hoffman,
moved to vacate her decree of dissolution. She claimed her former husband, Alan
Lowell 	Hoffman, fraudulently 	misled 	her and the court about the status of a
multimillion dollar trust that resulted in its exclusion from the trial court's division of
property. 	Because LaRoche has failed to establish that the court entered the
decree as a result of fraud, misrepresentation, or other misconduct, we affirm.
FACTS
Carole LaRoche and Alan Hoffman married 	in 2000. 	Both parties had
children from previous marriages and came to the relationship with the expectation
of significant separate assets. 	At the time they were married, Hoffman was the
beneficiary ofseveral multimillion dollar family trusts, while LaRoche anticipated a
$600,000 recovery from a pending lawsuit. 	The parties executed a prenuptial
agreement that protected these monies as each's separate property.

No. 74207-8-1 / 2
The parties separated on March 20, 2009, and LaRoche filed for dissolution.
After 	an 	acrimonious 	trial, 	the 	court 	upheld 	the 	prenuptial 	agreement 	and
distributed the parties' separate and community property. 	Hoffman was awarded
the parties' real property, which included the Redmond home and the Sun Valley
home, stock, individual retirement accounts (IRAs), investment accounts, trust
accounts, and 40 percent of the community portion of the retirement accounts.
LaRoche received 50 percent of the value of the Redmond home, reimbursement
for 	increase 	in 	value 	of 	the 	Woodinville 	Home 	sold 	during 	the 	marriage,
compensation for her labor in preparing the Woodinville home for sale, 60 percent
of retirement accounts, tax refund, and IRA accounts. 	On October 8, 2010, the
trial court entered a decree of dissolution reflecting this allocation.
Of particular interest to 	both parties was the Smith Barney Investment
Account titled, "'Dr. Alan Hoffman and Carole Mawson TTEE Hoffman Family Trust
DTD 1/1/06' (acct. ending in #5177) with a 4/30/2010 balance of $7,879,940" (the
5177 Trust).1 This trust account was awarded to Hoffman as his separate property,
pursuant to the prenuptial agreement.
Both parties appealed the decree. 	Hoffman assigned error to the trial
court's 	characterization 	and 	value 	of 	community 	property, 	while 	LaRoche
challenged 	the 	validity 	of 	the 	prenuptial 	agreement 	as 	substantively 	and
procedurally unfair. 	We concluded that there was no unfairness and affirmed the
validity of the prenuptial agreement.
Clerk's Papers (CP) at 214.

No. 74207-8-1 / 3
On August 7, 2015,2 LaRoche moved to vacate the decree and reopen the
property division portion of the dissolution. 	She submitted a declaration in support
of her motion, accusing Hoffman and his attorneys of misleading her and the court
as to his interest in the family trust. 	She declared that fraudulent evidence had
been 	submitted 	at trial, 	including 	false financial 	declarations, 	certified 	public
accountant (CPA) witness reports, a flowchart showing the tracing of accounts that
omitted relevant portions, and testimony about the trust being for his children and
not part of the property subject to distribution.
The 	basis 	of 	LaRoche's 	fraud 	claim 	is 	her 	contention 	that 	Hoffman
represented that the 5177 Trust was not his property. 	At trial, Hoffman testified
that 	he 	was 	under 	the 	impression 	that 	the 	trust 	was 	for 	his 	children 	and
grandchildren. 	According to LaRoche, the trial court therefore did not include it in
its distribution of property. 	She claims that Hoffman had actually appointed the
trust to his own estate three years earlier and concealed that fact from her and
from the trial court.
At the hearing on her motion to vacate, LaRoche argued that Hoffman's
attorneys submitted two fraudulent financial declarations. 	According to her, the
declarations did not list the correct amount of Hoffman's income or interest earned
and that the real number is "quite a bit more, like many times more than what he
2 Earlier in 2015, LaRoche filed a lawsuit in the Western District of Washington, cause No.
2:15-CV-01003-RAJ, against Hoffman, and the attorneys, 	expert and fact witnesses
involved in the dissolution, the appeal, and a malpractice action she filed against one of
her attorneys. 	In her amended complaint, she alleges claims for civil conspiracy,
conversion, negligence, and fraud.

No. 74207-8-1/4
claimed."3 	She argued that Hoffman misrepresented the value of the trust and
falsely claimed that everything belonged to his children, even though 	he had
transferred it to his own estate. 	LaRoche claimed that the CPA witness reports
were fraudulent, and that even if the accounts were Hoffman's separate property
originally, they had been commingled. 	She also "discovered . . . last year" that
Hoffman's counsel had submitted an incomplete exhibit designed to mislead both
her and the court.4
The trial court found no basis to undo the judgment and findings, and that it
"certainly d[id]n't see something by Dr. Hoffman, the respondent, or his attorney,
Mr. Eagle, that was false, intended to mislead the court, intended to mislead you."5
The trial court further found "no substantial facts warranting vacation of judgment
under CR 60" and that "there was no fraud perpetuated by Dr. Hoffman or his
representatives at time of trial."6 	LaRoche appeals.
ANALYSIS
LaRoche argues that the trial court erred when 	it denied her motion to
vacate the dissolution decree under CR 60(b)(4), because she presented evidence
establishing that Hoffman committed fraud, misrepresentation, and misconduct
when he characterized his assets to the trial court.7 	According to her, Hoffman
deceived the court by testifying that the 5177 Trust was for his children, when he
3 Report of Proceedings (RP) (Oct. 9, 2015) at 6.
4 RP at 22.
5RPat21.
6 CP at 358.
7 In her motion, LaRoche argued that Hoffman and his attorneys submitted fraudulent
evidence of Hoffman's income and value of the assets. She appears to have abandoned
those arguments on appeal.

No. 74207-8-1 / 5
had actually appointed the trust to his own estate three years earlier. 	She argues
that 	she 	relied 	on 	and 	was 	misled 	by 	Hoffman's 	misrepresentation, 	which
prevented 	her from 	presenting 	accurate 	proposed 	orders 	and 	arguing 	for a
disposition that took the multimillion dollar trust into account. 	Based on this
assumption, LaRoche also argues that the trial court should have determined that
she and Hoffman held the 5177 Trust as tenants in common.
Whether to grant a CR 60 motion to vacate is within the trial court's sound
discretion. 	Martin v. Pickering, 85 Wn.2d 241, 245, 533 P.2d 380 (1975); In re
Marriage of Knutson, 114 Wn. App. 866, 871, 60 P.3d 681 (2003). 	A trial court
manifestly abuses its discretion if its decision is based on untenable grounds or
untenable reasons. 	In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d
1362(1997).
Under CR 60(b)(4), a trial court may vacate a judgment procured by fraud,
misrepresentation, or misconduct. 	"The party attacking a judgment under CR
60(b)(4) must establish the fraud, misrepresentation, or other misconduct by clear
and convincing evidence." 	Lindgren v. Lindgren, 58 Wn. App. 588, 596, 794 P.2d
526 (1990). The focus of CR 60(b)(4) is on judgments that were unfairly obtained,
not those that may have been premised on incorrect facts. 	Peoples State Bank v.
Hickev, 55 Wn. App. 367, 371-72, 777 P.2d 1056 (1989). 	For this reason, the
conduct must cause the entry of the judgment such that the losing party was
prevented from fully and fairly presenting its case or defense. Hickev, 55 Wn. App.
at 372.

No. 74207-8-1 / 6
There is no indication in the record that the trial court entered the decree as
a 	result 	of 	fraud, 	misrepresentation, 	or 	misconduct 	by 	one 	of 	LaRoche's
adversaries. 	The trial court awarded Hoffman the 5177 Trust as his separate
property 	based 	on 	the 	terms 	of the 	prenuptial 	agreement, 	not 	because 	he
convinced the court that it was not part of his estate. 	Therefore, the record does
not support vacating the judgment on the grounds that it was procured by fraud,
misrepresentation, or other misconduct.
LaRoche next argues that under CR 60(e)(2), the trial court should have
held an evidentiary hearing. 	She contends that the affidavits and declarations she
submitted 	are 	sufficient 	to 	raise 	a 	factual 	issue 	with 	regard 	to 	fraud,
misrepresentation, or other misconduct. 	CR 60(e)(2) states:
Upon the filing of the motion and affidavit, the court shall enter an
order fixing the time and place of the hearing thereof and directing
all parties to the action or proceeding who may be affected thereby
to appear and show cause why the relief asked for should not be
granted.
Oral testimony, however, is not the rule and is up to the trial court's discretion. 	In
re Marriage of Irwin, 64 Wn. App. 38, 61, 822 P.2d 797 (1992).
LaRoche argues she raised an issue of fact that cannot be resolved without
the taking of testimony, citing In re Marriage of Maddix, 41 Wn. App. 248, 252, 703
P.2d 1062 (1985). 	In that case, the parties submitted conflicting affidavits disputing
the value of the husband's business but the trial court entered a final decree
without further investigation. 	Maddix. 41 Wn. App. at 249. 	Later, the wife moved
to 	vacate the 	dissolution 	decree, 	alleging 	fraud, 	misrepresentation, 	or 	other
misconduct under CR 60(b)(4). 	Maddix. 41 Wn. App. at 249. The trial court made
6

No. 74207-8-1 / 7
no finding of fraud but found that the husband had failed to disclose the value of
his business. Maddix. 41 Wn. App. at 249-50. On that basis it set aside the decree
and set for trial the sole issue of the business's value. 	Maddix. 41 Wn. App. at
250. 	On appeal, we reversed and remanded, finding that the trial court erred by
vacating the decree without first hearing and weighing testimony regarding fraud,
misrepresentation, or other misconduct. 	Maddix, 41 Wn. App. at 252.
Here, LaRoche has not submitted sufficient facts to meet her burden of
showing fraud, misrepresentation, or other misconduct. 	She claims that Hoffman
misrepresented the status of the 5177 Trust and therefore prevented the trial court
from including it in the distribution of property. 	Again, the record shows that the
5177 Trust was determined to be Hoffman's separate property under the prenuptial
agreement, not based on any representation made at trial.
Hoffman requests that the court assign "financial penalties" to LaRoche, "at
least equal to the $4500 in legal fees" that the trial court declined to award,
presumably for filing a frivolous appeal and to deter her from further litigation.8
Under RAP 18.9, an appellate court may order a party who files a frivolous appeal
to pay terms or compensatory damages to any other party for having to defend
against the appeal. 	"An appeal is frivolous if the appellate court is convinced that
the appeal presents no debatable issues upon which reasonable minds could differ
and is so lacking in merit that there is no possibility of reversal." 	In re Marriage of
Foley. 84 Wn. App. 839, 847, 930 P.2d 929 (1997).
Resp't's Br. at 10.

No. 74207-8-1 / 8
While the merit of LaRoche's appeal is certainly questionable, Hoffman's
request does not fall within the scope of RAP 18.9. 	He essentially asks this court
to compensate him for expenses he incurred at trial, not on appeal, and failed to
recover from the trial court. We decline to award attorney fees under RAP 18.9.
Affirmed.
^[7
WE CONCUR:
JULa*4M^. 	J.
8