In the Matter of the Marriage of: Nicholaus Miley & Anna Pylypets ( 2020 )

FILED
SEPTEMBER 24, 2020
In the Office of the Clerk of Court
WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
In the Matter of the Marriage of: ) No. 36972-2-III
)
NICHOLAUS MILEY, )
)
Appellant, )
) UNPUBLISHED OPINION
and )
)
ANNA PYLYPETS, )
)
Respondent. )
PENNELL, C.J. — Nicholaus Miley has filed a pro se appeal of a trial court order
denying his motion to vacate a divorce decree and final judgment. We affirm the trial court’s
order and award Anna Pylypets reasonable attorney fees under RAP 18.9(a).
No. 36972-2-III
In re Marriage of Miley & Pylypets
FACTS
Anna Pylypets and Nicholaus Miley married in 2014. In 2017, Mr. Miley
petitioned to invalidate the marriage, alleging immigration fraud. Ms. Pylypets
counterclaimed for divorce. The morning of trial, Mr. Miley withdrew his petition after
the trial court denied his motion for continuance. Trial then proceeded on the
counterclaim, and the only evidence came from Ms. Pylypets’s uncross-examined
testimony. The trial court issued a divorce decree consistent with Ms. Pylypets’s
counterclaim. It also sanctioned Mr. Miley under CR 11 and RCW 4.84.185 for failing to
make a reasonable inquiry into the factual or legal basis of his petition, and granted Ms.
Pylypets reasonable attorney fees. Mr. Miley did not appeal from the divorce decree or
final judgment.
Approximately one year after the final judgment, Mr. Miley filed a motion to
vacate under RCW 4.72.010 and CR 60. Mr. Miley’s motion centered on the substance
of the trial court’s decree. He did not submit any new evidence in support of his motion.
Mr. Miley instead argued that the trial court made improper discovery rulings, Ms.
Pylypets failed to satisfy her discovery obligations, and Ms. Pylypets provided false
testimony at trial. The court denied Mr. Miley’s motion to vacate.
Mr. Miley appeals.
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No. 36972-2-III
In re Marriage of Miley & Pylypets
ANALYSIS
A motion for relief from judgment is reviewed for abuse of discretion. See Haley
v. Highland, 142 Wn.2d 135, 156, 12 P.3d 119 (2000). Review “is limited to the trial
court’s decision, not the underlying order the party seeks to vacate.” In re Marriage of
Persinger, 188 Wn. App. 606, 609, 355 P.3d 291 (2015).
No abuse of discretion occurred here. Mr. Miley’s arguments are that the trial
court’s judgment was erroneous as a matter of law. Such complaints should have been
asserted in a direct appeal, not in a motion for relief from judgment. See In re Marriage of
Tang, 57 Wn. App. 648, 654-56, 789 P.2d 118 (1990). The time for appealing from entry
of the divorce decree and final judgment has long since expired. See RAP 5.2. It is
improper to resurrect an untimely appeal under the guise of a motion for relief from
judgment.
ATTORNEY FEES
Ms. Pylypets requests attorney fees and costs under RAP 18.1(a), RCW 26.09.140,
and RAP 18.9(a). We award Ms. Pylypets fees and expenses under RAP 18.9(a), which
allows sanctions for a frivolous appeal. Mr. Miley’s appeal does not raise any debatable
legal issues. It is frivolous and an award of fees and expenses is appropriate as a sanction.
Mahoney v. Shinpoch, 107 Wn.2d 679, 691, 732 P.2d 510 (1987).
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No. 36972-2-III
In re Marriage of Miley & Pylypets
CONCLUSION
The order denying relief from judgment is affirmed. Ms. Pylypets is awarded
reasonable attorney fees and expenses under RAP 18.9(a), subject to compliance with
RAP 18.1(d).
A majority of the panel has determined this opinion will not be printed in
the Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
_________________________________
Pennell, C.J.
WE CONCUR:
______________________________
Siddoway, J.
______________________________
Lawrence-Berrey, J.
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