Opinion
No. 67550-8-I
09-04-2012
In re the Marriage of MICHAEL D. LEVITZ, Appellant, v. INESA LEVITZ, Respondent.
UNPUBLISHED
Cox, J. — Michael Levitz appeals an order that substantially vacates the default dissolution decree that dissolves his marriage to Dr. Inesa Levitz. The order vacates the decree except for the portion dissolving the marriage of the parties. The order also completely vacates the parenting plan, order of child support, findings of fact and conclusions of law, order compelling discovery, order striking pleadings, and order on child support and granting other relief. We hold that the court properly exercised its discretion in granting the motion to vacate. We impose attorney fees for a frivolous appeal against Michael Levitz, subject to Dr. Levitz complying with the requirements of Rule of Appellate Procedure (RAP) 18.1.
Michael and Inesa married in 1993. In August 2009, Michael petitioned the court for dissolution. At that time, their son was two years old. The petition did not contain Michael's proposed parenting plan, but alleged one would be filed and served "at a later date."
We adopt the naming conventions of the parties to refer to each for the purpose of clarity.
Clerk's Papers at 3.
In December 2009, Inesa responded to the petition for dissolution and directed notice of all further proceedings be sent to her newly retained attorney. Throughout the proceeding, Inesa filed several proposed parenting plans. In February 2010, a trial court commissioner entered orders on a temporary parenting plan and temporary child support. These orders awarded child support and residential custody to Michael and visitation rights to Inesa. They also ordered Inesa to prepare an order appointing a parenting evaluator.
Id. at 272.
In April 2010, Inesa moved to Hawai'i for work.
Id. at 788.
In May 2010, Michael served interrogatories and requests for production. Inesa's attorney withdrew from the case in June 2010, shortly after a Local Rule (LR) 37 conference to discuss responses to this discovery. On September 23, 2010, Michael moved to compel answers to the discovery and for sanctions. Inesa, acting pro se, promptly responded. On October 1, 2010, Michael struck the hearing on the motion to compel.
On October 1, 2010, Michael's attorney e-mailed Inesa, stating that the interrogatories and requests for production that she submitted were incomplete. In what appears to be a typographical error, the e-mail requested an LR 37 conference on "Monday, September 4th at 10:00 am PDT."
On October 5, 2010, Michael's attorney again e-mailed Inesa, this time to conduct an LR 37 conference on October 6, 2010. Within an hour, Inesa responded to this e-mail, asking for Michael's interrogatories. She did not address the LR 37 conference. Michael's attorney replied to Inesa by e-mail later that afternoon, refusing to provide her with copies of Michael's interrogatories until she agreed to participate in the proposed LR 37 conference by telephone. The court later found that no such conference occurred.
Michael renewed his motion to compel answers to discovery, although the motion is not part of the record on appeal. In any event, the record reflects that the trial court judge entered an order compelling discovery on October 18, 2010. The order states, among other things, that Inesa shall provide answers to the discovery to the office of Michael's counsel by 5:00 p.m. on October 21, 2010, three days later. The order states further that Inesa's failure to comply by the deadline would result in striking of her pleadings and entitle Michael to an ex parte order of default against her. Finally, the order also provides that Michael could pursue further discovery until the close of business on October 29, 2010.
Nothing in the order states why the trial court judge gave only three days for Inesa to comply. The record reflects that the trial judge's bailiff transmitted a copy of the signed October 18, 2010, order as an attachment to an e-mail directed to Michael's counsel and Inesa. This appears to have been done on the afternoon of October 18. The amended case schedule indicates that trial was then scheduled for November 8, 2010.
We note that the order did not suspend CR 6(e), which allows an additional three days after service by mail to comply with a directive. Likewise, we note that the order did not suspend GR 30(b), which permits e-mail service of documents by parties only by agreement.
On the morning of October 22, 2010, the trial judge entered an order striking Inesa's pleadings, adjudicating her in default, and permitting ex parte entry of findings, conclusions, a dissolution decree and other orders. On that same date, correspondence from Inesa to the trial court judge was placed in the court file. The letter is dated September 27, 2010, and provides a Hilo, Hawai'i, address for Inesa. Among other things, that letter states that Inesa was not represented by an attorney.
On October 27, 2010, a trial court commissioner entered findings of fact, conclusions of law, a parenting plan, decree of dissolution, and an order of child support. As of that date, Michael had still not filed a proposed parenting plan, as originally represented in his petition for dissolution and as required by statute. There is no indication in the record that this omission was disclosed to the court commissioner.
In May 2011, Inesa moved to vacate the dissolution decree and other final orders. The trial judge declined to consider the motion, permitting another judge to hear the motion.
The motion judge granted the motion. Specifically, the motion judge substantially vacated the default decree of dissolution, except for the portion dissolving the marriage of the parties. The court completely vacated the parenting plan, order of child support, findings of fact and conclusions of law, order compelling discovery, order striking pleadings, and order on child support and granting other relief.
Michael, acting pro se, timely filed his notice of appeal.
We note that Michael later retained appellate counsel who was not counsel below.
VACATION OF DEFAULT JUDGMENT
Michael argues that the motion judge abused her discretion in granting Inesa's motion to vacate the decree and other final orders. We hold that the motion judge properly exercised her discretion by granting the motion.
Default judgments are not favored in the law. The overriding policy is that controversies should be determined on their merits, not by default. But the need for a responsive and responsible legal system mandates that parties comply with a judicial summons. In deciding whether to vacate a default judgment, the court applies equitable principles to ensure that substantial rights are preserved and justice is done. Justice is not done if hurried defaults are allowed, but neither is it done if continuing delays are permitted. We may affirm on any ground supported by the record.
Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979).
Id. (quoting Dlouhy v. Dlouhy, 55 Wn.2d 718, 721, 349 P.2d 1073 (1960)).
Id.; Norton v. Brown, 99 Wn. App. 118, 123, 992 P.2d 1019 (1999).
Griggs, 92 Wn.2d at 581-82; Norton, 99 Wn. App. at 123.
Griggs, 92 Wn.2d at 582.
State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004) (citing In re Marriage of Rideout, 150 Wn.2d 337, 358, 77 P.3d 1174 (2003)).
A party may obtain relief from a default judgment based on Civil Rule (CR) 60(b). That rule states, in relevant part:
(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons:
(1) Mistakes, inadvertence, surprise, excusable neglect or irregularity in obtaining a judgment or order;
. . . .
(5) The judgment is void . . . .
CR 60 (emphasis added).
A decision on a motion to vacate a default judgment is discretionary and will not be disturbed unless the trial court abused its discretion. "A trial court abuses its discretion if its decision is manifestly unreasonable or based on untenable grounds or untenable reasons." Abuse of discretion is less likely to be found when a default judgment is set aside.
Griggs, 92 Wn.2d at 582.
In re Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
Griggs, 92 Wn.2d at 582.
Here, the motion judge based the decision to grant the motion on several bases. We need only consider some of them.
CR 60(b)(1)
CR 60(b)(1) allows the trial court to vacate a default judgment due to an "irregularity in obtaining a judgment or order . . . ." An irregularity is an action that does not follow a prescribed rule or mode of proceeding, including the failure to take an action that is necessary for the due and orderly conduct of a lawsuit or taking a necessary action in an improper manner.
Little v. King, 160 Wn.2d 696, 722-23, 161 P.3d 345 (2007) (citing Port of Port Angeles v. CMC Real Estate Corp., 114 Wn.2d 670, 674, 790 P.2d 145 (1990) (quoting In re Ellern, 23 Wn.2d 219, 222, 160 P.2d 639 (1945))).
Here, the failure to comply with CR 37(b) and other governing rules is an irregularity justifying vacation.
Under CR 37(b), entry of a default judgment may be a valid sanction for a discovery violation. A court may make "such orders in regard to the failure as are just," including, among other things, an order striking pleadings or rendering a judgment by default. But before a trial court imposes a harsh sanction, it must consider whether: (1) there was a willful violation of a discovery order, (2) the violation substantially prejudiced the moving party's ability to prepare for trial, and (3) a lesser sanction would be sufficient.
Smith v. Behr Process Corp., 113 Wn. App. 306, 324, 54 P.3d 665 (2002).
CR 37(b)(2).
Mayer v. Sto Indus., Inc., 156 Wn.2d 677, 688, 690, 132 P.3d 115 (2006).
Here, as the trial judge presumably knew, Inesa was living in Hawai'i when the judge entered the October 18 order to compel discovery. That order gave Inesa only three days to comply. Nevertheless, the order did not suspend the operation of CR 6(e), which provides:
(e) Additional Time After Service by Mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the prescribed period.
Likewise, the order did not suspend the operation of General Rule (GR) 30(b), which provides as follows:
(3) Electronic Transmission from the Court. The clerk may electronically transmit notices, orders, or other documents to a party who has filed electronically, or has agreed to accept electronic documents from the court, and has provided the clerk the address of the party's electronic mailbox. It is the responsibility of the filing or agreeing party to maintain an electronic mailbox sufficient to receive electronic transmissions of notices, orders, and other documents.
(4) Electronic Service by Parties. Parties may electronically serve documents on other parties of record only by agreement.
(Emphasis added.)
Assuming the order to compel was mailed to her on October 18, the date of its entry, Inesa would not have been properly served with it under CR 5(b)(2) until October 21, the "third day following the day" of mailing. Moreover, under CR 6(e), Inesa was entitled to an additional three days to comply with the order if served by mail. Thus, she should have had until October 24 to provide discovery to Michael, if she was served by mail with the October 18 order compelling discovery.
See CR 5(b)(2)(A) (service by mail "shall be deemed complete upon the third day following the day upon which they are placed in the mail . . . .").
See CR 6(e).
This record indicates that the trial court sent a copy of the October 18 order compelling discovery to Inesa as an attachment to an e-mail dated that same date. But there is nothing in the record showing her agreement to be served by e-mail, as GR 30(b) requires. That the parties had previously exchanged e-mails regarding certain communications does not, in our view, constitute an agreement by either party to service of pleadings by e-mail.
Given this record, we turn to the entry of the October 22 order striking Inesa's pleadings, adjudicating her in default, and permitting ex parte relief. The trial court judge entered this order on the morning following the October 21 deadline in the order to compel. This order was entered when, under CR 6(e) and the other Civil Rules for Superior Court, Inesa still had time to comply with the October 18 order to compel.
Thus, the question is whether Inesa's failure to comply with the October 18 order to compel was "willful," as the trial court judge stated in the October 22 order. We conclude that entry of the October 22 order was premature for two reasons.
First, Inesa was not afforded the full time specified by the rules to comply. As the rules above provide, she had until October 24 to reply, and was not afforded the opportunity to do so. Second, even if we assumed that service by e-mail of the order to compel was expressly authorized, it is unclear that Inesa could have timely served her responses to discovery within the three days afforded by CR 6(e). Accordingly, for both of these reasons, there were irregularities in obtaining the October 22 order that justify vacating that order, the decree, and other orders flowing from it.
The record does not reflect why the trial court judge gave Inesa only three days to comply with the October 18 order to compel discovery. We note that trial was then scheduled for November 8, which was three weeks away. The record reflects that Inesa, for reasons that are not completely clear, failed to attend by telephone a preconference ordered by the trial court judge. The record also reflects that Inesa failed to respond to telephonic communications from the court. Nevertheless, it is equally clear that she contested many of Michael's claims and actively sought to be heard on decisions affecting their child. Because striking of pleadings and permitting the entry of default under these circumstances was inappropriate, we agree with the motion judge that the October 18 and October 22 orders should be vacated.
Michael argues that the record shows that Inesa willfully failed to comply with the discovery order and that the trial judge considered whether a lesser sanction would be sufficient under CR 37. Nevertheless, for the reasons we explained, he does not persuasively explain how Inesa's failure to respond could have been willful as of the date of entry of the October 22 order. Accordingly, the motion judge did not abuse her discretion in vacating that order as well as the October 18 order to compel discovery.
Whether a violation of an order is willful is one of three criteria necessary to support a CR 37 sanction. Because the motion judge did not abuse her discretion in determining that Inesa's violation of the October 18 order to compel was not willful, we need not address the other two criteria.
Michael also argues that the motion judge abused her discretion in vacating the order of default under CR 55 because Inesa had actual notice of the proceedings through e-mail and simply ignored them. Because of our prior discussion regarding CR 37 and other governing rules, we need not address this argument.
Michael claims that Inesa's lack of an attorney and alleged inability to understand the process should not justify vacation of the order. But the motion judge's order was based, in part, upon the failure to comply with CR 37, not on Inesa's alleged failure to understand the process. Therefore, this argument has no bearing on our resolution of this issue.
Finally, Michael argues that any "technical errors" in the entry of the October 22 order striking Inesa's pleadings, adjudicating her in default, and permitting ex parte relief and other orders were harmless. He claims this is so because the final orders entered did not differ materially from the temporary orders previously in place. We disagree.
First, the October 22 order should be set aside for the reasons we explained earlier in this opinion. Second, the decree and other orders that flow from that order were not harmless. For example, Michael's failure to file a proposed parenting plan, as the statute requires, is not harmless.
CR 60(b)(5)
Michael also challenges the substantial vacation of the dissolution decree based on CR 60(b)(5). We hold that the motion judge properly exercised her discretion by vacating the decree and related orders based on this rule.
In entering a default judgment, a court may not grant relief in excess of or substantially different from that described in the complaint. Further, a court has no authority to grant relief beyond that sought in the complaint. To grant such relief without notice and an opportunity to be heard denies procedural due process. To the extent a default judgment exceeds relief requested in the complaint, that portion of the judgment is void.
In re Marriage of Leslie, 112 Wn.2d 612, 617, 772 P.2d 1013 (1989).
Id.
Id.
Id. at 618.
Here, Michael's petition for dissolution stated that he would file a parenting plan at a later date. He never did. Accordingly, his petition did not specify the relief he sought regarding the parenting of the parties' child. Thus, any parenting plan approved after the order of default was beyond the relief he requested. For this reason, the motion judge did not abuse her discretion in vacating the parenting plan and associated orders, including the child support order.
This is no mere technicality. RCW 26.09.181 provides:
(1) SUBMISSION OF PROPOSED PLANS. (a) In any proceeding under this chapter, except a modification, each party shall file and serve a proposed permanent parenting plan on or before the earliest date of:
(i) Thirty days after filing and service by either party of a notice for trial; or
(ii) One hundred eighty days after commencement of the action which one hundred eighty day period may be extended by stipulation of the parties.
(Emphasis added.)
Michael argues that simply including a request for approval of a parenting plan in a petition for dissolution, without filing a plan, and litigating the temporary parenting plan support the entry of the final parenting plan. The mandatory word "shall" in the above statute makes clear that this argument is totally without merit. Furthermore, Michael cites no authority for this argument. Therefore, we need not address it any further.
See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Michael also implies that his failure to request specific relief was due to Inesa's failure to comply with his discovery requests. This argument has no merit.
RCW 26.09.181(1)(a)(ii) requires each party to file a proposed parenting plan within 180 days of the filing of the petition for dissolution. Michael does not explain how Inesa's allegedly inadequate discovery responses in September 2010 prevented him from filing a proposed parenting plan by February 2010, in accordance with the express terms of the statute.
Finally, Michael argues that the motion judge abused her discretion in vacating the decree and other orders under CR 60(b)(6) and (11). Because vacation was proper under CR 60(b)(1) and (5), we need not address these arguments.
See CR 60(b) ("(6) The judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application . . . . (11) Any other reason justifying relief from the operation of the judgment.").
ATTORNEY FEES
Both sides seek attorney fees. We award fees to Inesa against Michael because his appeal is frivolous.
A party may recover attorney fees only when they are authorized by a private agreement, statute, or recognized ground of equity. Under RAP 18.9, an appellate court may impose sanctions for a frivolous appeal. An appeal is frivolous if there are no debatable issues upon which reasonable minds might differ and it is so totally devoid of merit that there is no reasonable possibility of reversal.
Mellor v. Chamberlin, 100 Wn.2d 643, 649, 673 P.2d 610 (1983).
Carlile v. Harbour Homes, Inc., 147 Wn. App. 193, 217, 194 P.3d 280 (2008) (citing State ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 905, 969 P.2d 64 (1998)).
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Here, Michael, acting pro se, filed this appeal. While he later retained appellate counsel, there are no debatable issues upon which reasonable minds might differ: the order striking pleadings and permitting further ex parte relief was not properly entered. Moreover, Michael failed to comply with the clear command of the governing statute requiring him to file a parenting plan. For these reasons, we conclude that this appeal is frivolous. Attorney fees in favor of Inesa are proper, subject to her complying with the requirements of RAP 18.1.
We affirm the order vacating the decree and other orders.
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WE CONCUR:
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