Opinion
No. 38399-3-II.
March 24, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 92-3-00065-3, Wm. Thomas McPhee, J., entered December 6, 2007.
Affirmed by unpublished opinion per Hunt, J., concurred in by Van Deren, C.J., and Arm-strong, J.
Thomas Travis Young appeals the trial court's denial of his motion to vacate a default order modifying child support. He argues that (1) defective service rendered the default order invalid because the child's mother, Marianne Remy, sent notice of her motion to modify the child support order to a post office box address rather than to a street or residential address; and (2) even if service were proper, the relief the default order granted was "in excess of the pleadings." We hold that: (1) Young fails to show that Remy's use of a post office box address was inadequate to establish service under RCW 26.09.175(2); and (2) the relief the trial court granted did not exceed the relief Remy requested. Accordingly, we affirm.
Young does not argue on appeal that the Ephrata post office box was not his address; nor does he argue that he did not receive the notice and summons mailed to that post office address. He argues only that Remy could not send notice to a post office box, regardless of whether it was where he normally got his mail or not.
In his statement of the issues pertaining to his assignments of error, Young appears to assert that the evidence does not support the default order. Young fails to present any argument related to this issue; therefore, we do not address it. RAP 10.3(a)(6); State v. Thomas, 150 Wn.2d 821, 868-69, 83 P.3d 970 (2004) ( citing State v. Johnson, 119 Wn.2d 167, 171, 829 P.2d 1082 (1992); State v. Olson, 126 Wn.2d 315, 321, 893 P.2d 629 (1995)).
FACTS I. Background A. Remy's Motion to Modify Child Support Order
On October 9, 2001, the Thurston County Superior Court entered an order requiring Young to pay $607.52 per month in child support for his and Remy's daughter. On March 20, 2006, a few months before their daughter's 18th birthday in July 2006, Remy filed a pro se petition to modify the October 2001 child support order seeking additional support for their daughter's post-secondary education.
The October 2001 child support order is not in the record on appeal.
On March 25, 2006, Remy mailed the required notice and supporting documentation to Young by certified mail, return receipt required, to a post office box in Ephrata, Washington. The Ephrata Post Office received this certified mail and forwarded it to Mattawa, Washington, 99349, where it was received. Young did not respond to Remy's summons and motion.
B. Default
On April 27, 2006, Remy moved for a default order. In support of her motion, Remy attached documentation supporting her claim that on March 25, 2006, she had mailed the required notice by certified mail, return receipt requested, to Young at P.O. Box 1136, Ephrata, Washington, 98823.
Remy also attached a printout from the United States Postal Service web site with the results of a "Track Confirm" search: The search results indicated that the certified mail had been delivered on March 30, 2006, in Mattawa, Washington, 99349, after the Ephrata Post Office had forwarded the certified mail to Mattawa. The search results did not reveal who had received the certified mail.
On May 8, 2006, a superior court commissioner found that Remy had served Young by mail, Young had failed to respond, and therefore Young was in default. The commissioner determined that Young should pay the exact amount of child support that Remy requested in her pleadings: The commissioner (1) imputed income to Young, (2) calculated his share of the daughter's post-secondary education support based on that imputed income, (3) modified the child support order to require Young to pay $680.63 per month to cover Young's proportional share of his daughter's post-secondary education costs, and (4) entered written findings of fact and conclusions of law supporting the modification.
The commissioner found that Remy reasonably believed that the Ephrata Post Office box, the most recent address Remy could discern from Young's correspondence, was the best address she had for him.
Because Remy did not have access to Young's financial information, she could not complete the portions of her worksheet that required this information and she left those areas blank. She appears to have estimated Young's new child support obligation by adding half of their daughter's estimated monthly college expenses to Young's preexisting child support obligation. The child support schedule worksheet that Remy submitted and the one that the commissioner adopted differed primarily with respect to the amount of income the commissioner imputed to Young and the calculations affected by that imputed income. Compare CP 10-15 with CP 47-51. Thus, the commissioner's child support order, differed from Remy's proposed order, primarily with regard to Young's imputed income and calculations based on the imputed income. Compare sections 3.2, 3.6, 3.7, 3.8, 3.13, 3.14, 3.17, 3.19.
II. Motion to Vacate Default Order
A year later, on May 8, 2007, Young moved to vacate the May 8, 2006 default order and to dismiss with prejudice Remy's motion to increase child support. He argued that (1) under In re Marriage of McLean, 132 Wn.2d 301, 937 P.2d 602 (1997), Remy's service on him was inadequate because sending notice to a post office box rather than a residential address was not reasonably calculated under all circumstances to apprise him of the pendency of Remy's motion; (2) RCW 4.28.080(15)'s use of the phrase "usual abode" required Remy to have mailed the notice to his residence; (3) Remy was required to send the notice to a "currently valid address"; and (4) the notice was inadequate because Remy did not send it to "his correct address." Remy opposed Young's motion.
Young also argued that the trial court should vacate the default order because: (1) Remy misrepresented the facts and had been aware that he had moved out of Washington before she sent the notice to him at an Ephrata post office box address, (2) Remy failed to submit a proper return of service, (3) there was no proof that he (Young) was actually served, (4) there was no court order allowing for service by mail even though the return of service indicated that there was such an order, and (5) he was out of state when Remy filed the motion and the commissioner entered the default order less than 60 days after Remy mailed the required notice. These issues are not relevant to this appeal.
On October 23, 2007, the superior court denied Young's motion to vacate the default order, incorporating its oral ruling into its written order. Finding Remy's and the daughter's testimonies more credible than Young's, the superior court found that (1) at one point Young had a post office box address in Ephrata; (2) although the existing child support order had required Young to update his address promptly, he had failed to do so; (3) Remy had reasonably believed that Young was still residing in Washington when she filed the motion to modify child support and when she sent the required notice to him at an Ephrata post office box address; (4) Remy made reasonable efforts to obtain an updated address for Young, but she was unable to obtain this address before filing the motion to modify child support as required before their daughter's 18th birthday, which was approaching; (5) Remy had mailed the required notice by certified mail, return receipt requested; and (6) the notice Remy had provided was reasonably calculated under the circumstances to inform Young of the pendency of the action when, acting on the best information available to her, she mailed the notice to him at the Ephrata post office box. Based on the facts, the superior court ruled that the default order was proper because Young had failed to respond to Remy's motion. The notice Remy had provided was reasonably calculated under the circumstances to inform Young of the pendency of the action when, acting on the best information available to her, she mailed the notice to his Ephrata post office box.
Young originally petitioned for direct review with the Washington State Supreme Court. The Supreme Court transferred the appeal to this court.
ANALYSIS I. Service
Young first contends that the trial court should have vacated the default order because Remy mailed notice of the child support modification proceedings to a post office box rather than to a residential address. He argues that (1) mailing notice to a post office box is insufficient to meet RCW 26.09.175(2) and RCW 4.28.080(16) personal service requirements, because the latter expressly prohibits service by mail to a post office box; and (2) a post office box is not a "valid" address under McLean. We disagree.
Based on the limited record before us on appeal, we cannot discern whether Young presented these specific arguments to the trial court. But the underlying service issue on appeal is the same issue that the trial court addressed below, and Young's trial court arguments are similar enough to his appellate arguments, we address his appellate arguments despite his arguable failure to raise them below. See RAP 2.5(a) (appellate court may refuse to review issues raised for the first time on appeal).
A. Standard of Review
Generally, we review a trial court's ruling on a motion to vacate a default order for abuse of discretion. In re Estate of Stevens, 94 Wn. App. 20, 29, 971 P.2d 58 (1999) ( citing Seek Systems, Inc. v. Lincoln Moving/Global Van Lines, Inc., 63 Wn. App. 266, 271, 818 P.2d 618 (1991); Lindgren v. Lindgren, 58 Wn. App. 588, 595, 794 P.2d 526 (1990), review denied, 116 Wn.2d 1009 (1991)). "Abuse of discretion means that the trial court exercised its discretion on untenable grounds or for untenable reasons, or that the discretionary act was manifestly unreasonable." Stevens, 94 Wn. App. at 29 (citing Lindgren, 58 Wn. App. at 595). We review questions of law de novo. In re Marriage of Flynn, 94 Wn. App. 185, 192, 972 P.2d 500 (1999).
B. Statutory Construction
The core issue here is whether RCW 26.09.175(2)'s service-by-mail requirement is met when a petitioner mails notice to a post office box rather than to a residential address. This issue involves statutory interpretation.
When interpreting a statute, our primary objectives are to ascertain and to carry out the Legislature's intent and purpose. Alpine Lakes Protection Soc. v. Dep't of Ecology, 135 Wn. App. 376, 390, 144 P.3d 385 (2006), review denied, 162 Wn.2d 1014 (2008). We look first to the statute's plain language. If the statute is unambiguous, we derive the statute's meaning from the statute's language alone. Alpine Lakes Protection Soc., 135 Wn. App. at 390 (citing Fraternal Order of Eagles, Tenino Aerie No. 564 v. Grand Aerie of Fraternal Order of Eagles, 148 Wn.2d 224, 242, 59 P.3d 655 (2002), cert. denied, 538 U.S. 1057 (2003)).
We must also give effect to all of the statute's language so that "'no portion [is] rendered meaningless or superfluous.'" State v. J.P., 149 Wn.2d 444, 450, 69 P.3d 318 (2003) (quoting Davis v. Dep't of Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999)). We must construe a legislative act as a whole and, "[w]henever possible, a court should harmonize the provisions of an act to insure its proper construction." Alpine Lakes Protection Soc., 135 Wn. App. at 390 ( citing Nisqually Delta Ass'n v. City of DuPont, 103 Wn.2d 720, 730, 696 P.2d 1222 (1985)). We resolve any apparent conflict between the statutes by using the well established rule of statutory construction that favors specific statutory language over general provisions. See ETCO, Inc. v. Dep't of Labor Indus., 66 Wn. App. 302, 305-06, 831 P.2d 1133 (1992).
C. RCW 4.28.080(16) and RCW 26.09.175
RCW 26.09.175 provides in relevant part:
(1) A proceeding for the modification of an order of child support shall commence with the filing of a petition and worksheets. . . .
(2) The petitioner shall serve upon the other party the summons, a copy of the petition, and the worksheets in the form prescribed by the administrator for the courts. . . . If the decree to be modified was entered in this state, service shall be by personal service or by any form of mail requiring a return receipt. . . . Proof of service shall be filed with the court.
(Emphasis added).
Young argues that the trial court should have read RCW 26.09.175 in harmony with RCW 4.28.080(16) to conclude that mailing the required documents to a post office box is inadequate to establish service. We disagree.
RCW 4.28.080 provides multiple options for personal service, including:
Service made in the modes provided in this section shall be taken and held to be personal service. The summons shall be served by delivering a copy thereof, as follows:
. . . .
(15) In [cases not subject to specific service requirements stated in the previous subsections, none of which apply here], to the defendant personally, or by leaving a copy of the summons at the house of his or her usual abode with some person of suitable age and discretion then resident therein.
(16) In lieu of service under subsection (15) of this section, where the person cannot with reasonable diligence be served as described, the summons may be served as provided in this subsection, and shall be deemed complete on the tenth day after the required mailing: By leaving a copy at his or her usual mailing address with a person of suitable age and discretion who is a resident, proprietor, or agent thereof, and by thereafter mailing a copy by first-class mail, postage prepaid, to the person to be served at his or her usual mailing address. For the purposes of this subsection, "usual mailing address" shall not include a United States postal service post office box[.]
(Emphasis added). Young is correct insofar as RCW 4.28.080(16) provides that when service of a summons is by mail, delivery to a United States postal service post office box is not sufficient.
But RCW 26.09.175(2) does not require personal service of motions to modify child support orders. Instead, when, as here, the order to be modified was entered in this state, RCW 26.09.175(2) provides for service by "personal service or by any form of mail requiring a return receipt." (Emphasis added). Here, as allowed under RCW 26.09.175(2), Remy chose to serve Young by mail, not by personal service. Thus, RCW 4.28.080(16) did not apply.
Moreover, requiring Remy to comply with the RCW 4.28.080(16) personal service requirements when RCW 26.09.175(2) does not require personal service would render the remainder of RCW 26.09.175(2) meaningless. Such interpretation, as Young proposes, would be contrary to the directive that we must give effect to all of the statute's language so that "'no portion [is] rendered meaningless or superfluous.'" J.P., 149 Wn.2d at 450 (quoting Davis, 137 Wn.2d at 963).
Furthermore, the plain language of RCW 26.09.175(2) does not expressly restrict what type of address is sufficient for adequate service by mail when personal service is not required. The legislature's failure to impose the RCW 4.28.080(16) personal service restriction in RCW 26.09.175 shows that it did not intend any such personal service requirement for motions to modify child support; rather, the legislature expressly limited the post office box prohibition to RCW 4.28.080(16). Judicially extending this post office box prohibition beyond RCW 4.28.080(16) to a form of service distinct from personal service would be wholly inconsistent with the legislative limitation.
Young fails to show that the trial court erred when it declined to apply RCW 4.28.080(16)'s post office box exclusion to a form of service that is distinct from "personal service, expressly applicable to modifications of child support. In so doing, the superior court followed the rule of statutory interpretation that the specific controls over the general. See ETCO, 66 Wn. App. at 305-06
Young also appears to argue that RCW 4.28.080(16) required that Remy demonstrate that he (Young) could not be served in person or by leaving a copy of the summons at his house of usual abode before she could serve him by mail. Again, RCW 4.28.080's requirements relate to personal service. RCW 26.09.175(2) allows for service by mail or personal service, without first requiring a showing that Remy could not serve Young personally or by leaving the summons at his usual abode. Requiring Remy to comply with the requirements of personal service when RCW 26.09.175(2) does not require personal service would render the remainder of RCW 26.09.175(2) meaningless, contrary to the directive that we must give effect to all of the statute's language so that "'no portion [is] rendered meaningless or superfluous.'" J.P., 149 Wn.2d at 450 (quoting Davis, 137 Wn.2d at 963).
Similarly, citing RCW 4.28.100, Young appears to argue that Remy had to obtain a court order before she could attempt to serve him by mail. RCW 4.28.100 provides for service of summons by publication and does not apply here. Additionally, RCW 4.28.100(4) states that the statute applies to actions "for (a) establishment or modification of a parenting plan or residential schedule; or (b) dissolution of marriage, legal separation, or declaration of invalidity," it does not apply to modifications of child support orders, which fall, instead, under RCW 26.09.175.
D. In re Marriage of McLean
Young next argues that McLean "supports the view that service [to a post office box] is insufficient as a matter of law" because that case requires the modification petition and summons to be sent to a "valid" address. Again, we disagree.
In McLean, our Supreme Court held that RCW 26.09.175(2)'s service requirement and due process were satisfied when the party moving to modify a child support order sends the required notice by certified mail, return requested, even if the mailing is returned marked as unclaimed. McLean, 132 Wn.2d at 303. The issue in McLean was whether proof of actual receipt of the notice was required, not whether a post office box is an adequate address under RCW 26.09.175(2) or whether such service satisfies due process. After discussing how jurisdiction continues in child support modification proceedings and how a parent subject to a child support order should expect proceedings to modify that support "from time to time," the McLean court held:
We conclude that under all the circumstances, there is a reasonable probability that if a petitioning parent mails pleadings in child support modification proceedings to a valid address the nonpetitioning parent will receive them.
McLean, 132 Wn.2d at 313 (emphasis added).
Young argues that the McLean court's reference to a "valid address" supports his assertion that mailing notice to a post office box is insufficient to establish service under RCW 26.09.175(2). But the McLean court did not rule on what address the parent petitioning for support modification must use to comply with that statute's service requirement. Nor does Young persuade us that a post office box address is any less valid an address than a street or a residential address.
Due process requires notice that is "reasonably calculated under all the circumstances to apprise a party of the pendency of the action and provide an opportunity to be heard." McLean, 132 Wn.2d at 309. If a person directs that his or her mail be sent to a post office box, we see no reason to presume that that person is any less likely to receive notice than he or she would be if the notice is mailed to a street or residential address. Thus, Young's McLean argument fails.
We hold that Young fails to establish that the trial court erred when it denied his motion to vacate the default child support order.
Young also appears to argue that because his daughter is now over 18 years old and more than one year has passed since the trial court entered the modified child support order, Remy cannot renew her motion if we hold that service was legally insufficient. Because we conclude that the trial court did not err when it found that service was adequate, we do not address this issue.
II. No Relief in Excess of the Pleadings
Finally, Young directs us to several differences between (1) Remy's proposed order and the default order, and (2) Remy's child support schedule worksheet and the child support schedule worksheet supporting the default order. He argues that the commissioner granted relief beyond that which Remy had requested and that this excess relief is, therefore, "void." Even presuming, without deciding that Young preserved this error, his argument fails.
"It is a well-settled rule that 'one has a right to assume that the relief granted on default will not exceed or substantially differ from that described in the complaint and may safely allow a default to be taken in reliance upon this assumption.'" Columbia Val. Credit Exchange, Inc. v. Lampson, 12 Wn. App. 952, 954, 533 P.2d 152 (1975) ( quoting Sceva Steel Buildings, Inc. v. Weitz, 66 Wn.2d 260, 262, 401 P.2d 980 (1965)), rev. denied, 85 Wn.2d 1018 (1975). Although the commissioner may have filled in the child support schedule with Young's imputed income and other information that Remy did not include in her worksheets, the relief Remy requested was that Young pay $680.63 in child support; this is precisely the relief the commissioner granted. Thus, contrary to Young's assertion, the amount of child support in the default order did not exceed the amount that Remy had requested in her original petition to modify child support.
Furthermore, the commissioner's changes to Remy's proposed order and child support schedule worksheet were necessitated by Young's failure to participate in this action and to provide his actual income. Thus, Young's failure to participate required the commissioner to impute his income and to complete child support calculations based on that imputed income. The only relief Remy requested was that Young pay his proportional share of their daughter's college expenses. By imputing income to calculate Young's share of these expenses, the commissioner did not grant Remy relief in excess of her pleadings. Accordingly, this argument fails.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., VAN DEREN, C.J., concur.