The defendants' appeals from the denial of their motion to vacate and from the approval of the trustees' report were consolidated for determination. The Court of Appeals, at 15 Wn. App. 260, determined that the trial court's consideration of ex parte evidence denied the defendants procedural due process and dismissed the appeal, vacated the trial court's orders, and remanded the case to the trial court. Supreme Court: Granting discretionary review, the court holds that the question of procedural due process is reviewable even though not raised in the trial court and that both due process and the trustees' fiduciary duty were violated.
Citing Esmieu v. Schrag, 15 Wn. App. 260, 265, 548 P.2d 581 (1976), aff'd, 88 Wn.2d 490 (1977), Curtis argues that the trial court's judgment on the petition for interpleader and declaratory relief is void because it does not comport with procedural due process. As indicated above, however, because Curtis was already adjudged in default, she was not entitled to notice of the settlement agreement.
On June 27, 1974, the Superior Court issued a pretrial order which incorporated the provisions of both agreements. Subsequent orders which approved a specific exchange of property were vacated on due process grounds in Esmieu v. Schrag ( Esmieu I), 15 Wn. App. 260, 548 P.2d 581 (1976), aff'd, 88 Wn.2d 490, 563 P.2d 203 (1977). Neither the Court of Appeals nor this court discussed the validity of the June pretrial order which is the subject of this case.
Because the final approval order's viability rests on the ruling binding DRS to it, we reverse the final approval order in its entirety.Esmieu v. Schrag, 15 Wn.App. 260, 266, 548 P.2d 581 (1976), aff'd, 88 Wn.2d 490 (1977).
If procedural safeguards are inadequate, a court lacks jurisdiction over the defendant and cannot enter a valid order against him. Ware v. Phillips, 77 Wn.2d 879, 468 P.2d 444 (1970); Esmieu v. Schrag, 15 Wn. App. 260, 265, 548 P.2d 581 (1976), aff'd, 88 Wn.2d 490, 497, 563 P.2d 203 (1977); State ex rel. First Nat'l Bank v. Hastings, 120 Wn. 283, 207 P. 23 (1922). In a contempt proceeding, notice is sufficient if it informs the accused of the time and place of the hearing, and the nature of the charges pending.
Judgments entered in a proceeding failing to comply with the procedural due process requirements are void. In re Sumey, 94 Wn.2d 757, 762, 621 P.2d 108 (1980); Baxter v. Jones, 34 Wn. App. 1, 3, 658 P.2d 1274 (1983); Halsted v. Sallee, 31 Wn. App. 193, 195, 639 P.2d 877 (1982); In re Clark, 26 Wn. App. 832, 837, 611 P.2d 1343 (1980); Esmieu v. Schrag, 15 Wn. App. 260, 265, 548 P.2d 581 (1976). [2] It has long been recognized that the family entity is the fundamental element upon which modern civilization is founded.
Notice, open testimony, time to prepare and respond to charges, and a meaningful hearing before a competent tribunal in an orderly proceeding are all elements of civil due process. In re Myricks, 85 Wn.2d 252, 533 P.2d 841 (1975); Moore v. Burdman, 84 Wn.2d 408, 526 P.2d 893 (1974); In re Luscier, supra; In re Messmer, 52 Wn.2d 510, 326 P.2d 1004 (1958); In re Ross, 45 Wn.2d 654, 277 P.2d 335 (1954); In re Petrie, 40 Wn.2d 809, 246 P.2d 465 (1952); In re Darrow, 32 Wn. App. 803, 649 P.2d 858 (1982); Halsted v. Sallee, 31 Wn. App. 193, 639 P.2d 877 (1982); In re Akers, 22 Wn. App. 749, 592 P.2d 647 (1979); Esmieu v. Schrag, 15 Wn. App. 260, 548 P.2d 581 (1976), aff'd, 88 Wn.2d 490, 563 P.2d 203 (1977); In re Houts, 7 Wn. App. 476, 499 P.2d 1276 (1972); In re Martin, 3 Wn. App. 405, 476 P.2d 134 (1970). Under this test, if it appears from the record that an attorney was not effective in providing a meaningful hearing, due process guaranties have not been met. The burden of proof lies with the petitioner.
[6] In In re Akers, 22 Wn. App. 749, 753-57, 592 P.2d 647 (1979), the court reversed a child deprivation order because the judge had interviewed the children and taken testimony from a caseworker outside of court. In Esmieu v. Schrag, 15 Wn. App. 260, 265, 548 P.2d 581 (1976), the court set aside an exchange of property between a trust and the trustees. The court stated:
(Italics ours.) In Esmieu v. Schrag, 15 Wn. App. 260, 265, 548 P.2d 581 (1976), this court held that a trial court's ex parte consideration of one party's evidence which is presented without notice to the other party denies the other party's right to procedural due process. On page 265 of Esmieu, this court set aside an exchange of property between the trust and the trustees held on an ex parte record, and stated as follows:
It follows that a person who has acquired a valuable property right as a result of a favorable zoning administration decision must be given notice when judicial review of that decision is sought.Esmieu v. Schrag, 15 Wn. App. 260, 265, 548 P.2d 581 (1976), affirmed, 88 Wn.2d 490, 563 P.2d 203 (1978).Andrus v. County of Snohomish, 8 Wn. App. 502, 507, 507 P.2d 898 (1973); Hennigh v. Board of County Comm'rs, 168 Colo. 128, 450 P.2d 73 (1969); State ex rel. Vieux Carre Property Owners Assocs. v. Board of Zoning Adjustments, 197 So.2d 691 (La. Ct. App. 1967); Stokes v. Township of Lawrence, 111 N.J. Super. 134, 268 A.2d 10 (1970).