IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
No. 77974-5-I
ALINA FAROOQ,
DIVISION ONE
Respondent,
UNPUBLISHED OPINION
V.
AZEEM KHAN,
Appellant. FILED: March 2, 2020
CHUN, J. — In December 2016, the trial court ruled Alma Farooq could
relocate with her son D.K. from Washington State to Atlanta, Georgia. The trial
court entered a relocation order and a temporary parenting plan, and it scheduled
a review hearing for December 2017. At the review hearing, Azeem Khan, D.K.’s
father, claimed that Farooq had induced the trial court to enter the relocation
order by means of fraud, and he moved to vacate the order. The trial court
denied the request and entered a final parenting plan. Khan then appealed.
Because we conclude the trial court did not abuse its discretion by declining to
vacate the relocation order, we affirm.
I. BACKGROUND
In December 2016, the superior court held a trial to determine whether to
grant Farooq’s request to relocate with her son D.K. from Washington State to
Atlanta, Georgia. Khan opposed the request. On December 29, 2016, the trial
No. 77974-5-1/2
court entered a final order allowing relocation and a temporary parenting plan.
In reaching its conclusion, the trial court weighed the statutory relocation factors
under ROW 26.09.520; and, in weighing those factors, noted, among other
things, that Farooq had better financial prospects in Atlanta. The trial court
additionally set a review hearing for December 26, 2017, and indicated that if
either party were not following the temporary parenting plan, it would revise the
parenting plan at that hearing. Khan did not move for reconsideration of the
relocation order or temporary parenting plan. Although he initially appealed the
temporary parenting plan, he abandoned that appeal. See Khan v. Faroog,
No. 76378-4 (Wash. Ct. App. dismissed May 3, 2017).
At the review hearing in December 2017, Khan claimed that, during the
relocation hearing, Farooq had misled the court about her ability to find work in
Washington State, and asked the court to vacate the relocation order on that
ground. Farooq conceded that she had worked as a short-term contractor in
Washington in 2016. In its oral ruling, the trial court indicated that, although
Farooq had misrepresented her financial circumstances during the relocation
hearing, it would not disturb the relocation order because allowing D.K. to remain
in Atlanta served his best interests. The court then entered a final parenting
plan.
On January 24, 2018, Khan purported to appeal the final parenting plan,
the 2016 relocation order, and the temporary parenting plan.
2
No. 77974-5-1/3
II. ANALYSIS
Khan argues we should reverse the trial court’s relocation ruling because
it improperly weighed the factors for relocation, and because Farooq misled the
trial court as to her ability to find work in Washington State.1 Because we
determine the trial court did not abuse its discretion in denying Khan’s motion to
vacate the relocation order, we affirm.2
Khan argued to the trial court that Farooq had misled the court about her
ability to find work in Washington State and he requested vacatur of the final
relocation order on that ground. Essentially, his request constituted a CR 60(b)
motion. We review a trial court’s decision on a motion to vacate under CR 60(b)
for an abuse of discretion. Jones v. City of Seattle, 179 Wn.2d 322, 369, 314
P.3d 380 (2013). A trial court abuses its discretion where its decision is
manifestly unreasonable, or exercised on untenable grounds, or for untenable
reasons. In re Schuoler, 106 Wn.2d 500, 512, 723 P.2d 1103 (1986). A trial
court has “considerable discretion” in their disposition of motions under CR 60(b).
Jones, 179 Wn.2d at 361.
In his opening brief, Khan raised two additional issues regarding the
constitutionality of RCW 26.09 and compensation for travel to Atlanta. Khan abandoned
those two issues in his reply brief.
2 As discussed below, Khan’s request was essentially a CR 60(b) motion. “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.” Inre
Dependency of J.M.R., 160 Wn. App. 929, 938 n.4, 249 P.3d 193 (2011). Thus, only the
trial court’s denial of Khan’s CR 60(b) motion, and not Khan’s appeal of the trial court’s
weighing of the statutory relocation factors, is properly before the court.
3
No. 77974-5-1/4
For a court to relieve a party from final judgment or order on the basis of
fraud, misrepresentation, or misconduct of an adverse party, the moving party
must establish such by clear and convincing evidence. Lindqren v. Lindqren,
58 Wn. App. 588, 596, 794 P.2d 526 (1990); CR 60(b)(4). Relief under CR
60(b)(4) is authorized only if the alleged fraud actually caused the entry of
judgment “such that the losing party was prevented from fully and fairly
presenting its case or defense.” Lindqren, 58 Wn. App. at 596.
At the review hearing, Farooq conceded that, contrary to what she had
said at the relocation hearing, she worked as a short-term contractor in
Washington State in 2016. But in its oral ruling at the relocation hearing, the trial
court emphasized that it was not just Farooq’s inability to find work in Washington
State that led it to enter the relocation order. The trial court, at the review
hearing, accepted Khan’s contention that Farooq had misrepresented her
financial circumstances and the difficulties she had finding work in Washington
State. Nevertheless, the trial court further indicated that the task before it was to
determine whether allowing D.K. to remain in Atlanta served his best interests.
The court recognized the fact that D.K. would see his father less if he remained
in Atlanta. But it determined that allowing D.K. to remain served his best
interests, because Atlanta has a lower cost of living, he has a number of relatives
on Farooq’s side in Atlanta, and he has integrated into his school and social
setting in Atlanta. Thus, the trial court declined to vacate the relocation order.
The trial court’s determination that the evidence of fraud would not alter its
4
No. 77974-5-115
determination of D.K.’s best interests fell within its “considerable discretion.” See
Jones, 179 Wn.2d at 361. We thus decline to vacate the relocation order.
Affirmed.
7
WE CONCUR:
-f
1’’