Opinion
No. 53316-9-I
Filed: April 4, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No. 99-3-07309-0. Judgment or order under review. Date filed: 10/07/2003. Judge signing: Hon. John P. Erlick.
Counsel for Appellant(s), Dennis Lynn Potter, Union Bank of California, 900 4th Ave Ste 3250, Seattle, WA 98164-1072.
Daniel L Syhre, Gordon Polscer LLC, 1000 2nd Ave Ste 1500, Seattle, WA 98104.
Counsel for Respondent(s), Anna a Jancewicz, Barokas Martin Tomlinson, 1422 Bellevue Ave, Seattle, WA 98122.
Dennis John McGlothin, McGlothin Myhre PLLP, 1221 E Pike St Ste 205, Seattle, WA 98122-3930.
Nearly four years after the entry of a default judgment and decree of invalidity of marriage, the former husband moved to vacate the judgment. The trial court found that the former husband appeared informally and thus had been entitled to notice of the hearing on the motion for default. The court also concluded that service of the notice had not been sufficient. Accordingly, the court vacated the decree of invalidity of marriage and reinstated the action. Because the evidence in the record is not sufficient to support the finding that the former husband appeared informally, he was not entitled to notice of the hearing, and we do not need to address the remaining issues raised in this appeal. We reverse and remand for reinstatement of the order of default and the decree of invalidity of marriage.
FACTS
Pilar Cordero and Oscar Panganiban were childhood friends in the Philippines. Years after Cordero and her family immigrated to the United States, Cordero returned to the Philippines for a visit and became re-acquainted with Panganiban. The two maintained a long-distance relationship for some two years, until September 1999, when Panganiban entered the United States on a fiance visa that Cordero had obtained for him.
Panganiban lived with Cordero's brother, Isagani Cordero, until Panganiban and Cordero were married on September 10, 1999. The couple separated on September 29, 1999, 19 days later. According to Cordero, the marriage was never consummated, because Panganiban at first objected based on religious grounds — because she had not yet been baptized as a Jehovah's Witness as he was — and then admitted that he was impotent.
On October 7, 1999, Cordero filed a summons and petition for a declaration concerning the validity of the marriage, alleging fraud involving the essentials of marriage and that the marriage had not been ratified, and requesting a restraining order. The summons directed Panganiban to file the original of his response to the petition at the King County Courthouse, and to serve a copy on Cordero's attorney.
On November 2, 1999, Cordero filed a motion for entry of a decree of invalidity of marriage and a restraining order, along with her supporting declaration. Cordero filed proof of service in the form of a messenger declaration stating that the messenger personally delivered copies of the summons, petition, motion, supporting declaration, proposed findings and conclusions, proposed declaration concerning validity, and order setting case schedule to Panganiban at Isagani Cordero's address. On November 2, 1999, Cordero's attorney filed a notice scheduling a hearing for December 17, 1999, on the motion for entry of a decree declaring the marriage to be invalid, and for entry of a restraining order. A legal messenger filed a declaration stating that he delivered notice of the hearing by leaving a copy for Panganiban with Isagani Cordero on December 3, 1999.
On December 17, 1999, Cordero's counsel appeared but Panganiban did not appear. Following the hearing, the court found that "there was a fraud or misrepresentation after which disclosure there was no ratification by consummation of the marriage," Clerk's Papers at 17, granted Cordero's motion for decree of invalidity, signed findings of fact and conclusions of law, signed an order restraining Panganiban from contacting Cordero, and signed an order of default including a finding that "proper service has been effectuated," based on the messenger declaration. Clerk's Papers at 23.
Nearly four years later, on August 7, 2003, Panganiban filed a motion to vacate the order of default and the declaration of invalidity under CR 60(b)(4) (5), contending, inter alia, that the default judgment was void because Cordero failed to notify Panganiban of any request for an order of default, that the findings and conclusions and decree of invalidity were entered in violation of Panganiban's due process rights and are, therefore, void, that the default order and decree were entered based on Cordero's fraud or misrepresentation, and that Panganiban had a meritorious defense. In support of his motion to vacate, Panganiban filed a declaration stating that the couple consummated the marriage on the wedding night, but that Cordero soon became upset with him regarding religious differences, told him to leave her house, and sent his belongings back to her brother's house. According to Panganiban, Cordero repeatedly told him that she wanted to remain married to him but that her family was pressuring her to obtain an annulment. As an exhibit to his declaration, Panganiban attached a hand-written response to the summons explaining that he had delayed responding because he believed the matter was settled, and then he learned that Cordero "changed her mind again, and she want[ed] to go through with it," and stating that he "will appear on the said date or hearing as per schedule, and answer all her allegations." Clerk's Papers at 35.
Panganiban claims that he showed this response to Cordero's nephew, who told him that the response was not necessary because Cordero was dropping the petition. Panganiban said that he then decided not to send the response to the court, believing that Cordero was not pursuing the decree of invalidity.
Panganiban also stated in his declaration that Cordero called him on November 18, 1999, and told him that she was not pursuing the petition, would not attend any scheduled hearings, and that he should not attend either. According to Panganiban, he told Cordero that he was willing to fight to keep their marriage. He alleged that Cordero suggested that he move to another state so that she could eventually join him, away from her family. Based on this, Panganiban claimed that he moved to Alaska on November 28, 1999. According to Panganiban, on or about December 22, 1999, Cordero forwarded a letter from the Immigration and Naturalization Service (INS) and a roundtrip airplane ticket to Seattle to Panganiban, who flew to Seattle on December 30, attended an INS interview, and then flew back to Anchorage on January 1, 2000. Panganiban also attached a letter from Cordero addressed to him in Alaska dated January 8, 2000.
In his declaration, Panganiban states:
It was not until I retained counsel to file the Petition, and counsel requesting copies of the Order of Default, Declaration Concerning Validity, and the Finding of Fact and Conclusions of Law dated December 17, 1999 from this Court, did I review and understand what actually occurred in Court. I was not aware that an Order of Default and a Default Judgment was entered against me. I was not aware that Ms. Cordero served the documents to her brother's residence instead of forwarding them to me in Alaska, allowing me the opportunity to participate in the December 17, 1999 hearing.
Clerk's Papers at 32.
Cordero responded with a declaration stating in part:
Mr. Oscar Panganiban in his desperate attempt not to be deported (after hiding from the immigration for almost years) is trying to use me by filing this case. He knows that our former marriage was never consummated on our wedding night nor at any time at all during the 19 days we were together (from September 10-29, 1999). I don't know why he is lying now, and why he did not contest my claim when I filed for the annulment in October 25, 1999. He lived in my brother's house since he left my house on September 29, 1999 until he moved to Alaska in Nov 28, 1999. He is very well aware of the case in court because he talked to my lawyer. . . .
. . . He moved to Alaska because he is aware that he will be deported once the annulment is final. If I ever talked to him after that, is because I kept on telling him to just go home to the Philippines than be deported, I told him at least he can return legally in the future if he doesn't defy the INS. He kept pleading with me and even begged me because he said his children in Manila needs his financial help.
I filed my official notice to the INS about our situation because I do not want to be responsible for him anymore. . . . In December 1999 when he returned to Seattle about his work authorization from the INS, he called and begged me to accompany him, but I refused. He still went to apply it by himself and I don't know if ever he got one from the INS. He never contacted me since then.
Then on the first week of this month of August 2003, almost 4 years as passed, he called my place of work, but I hung up the phone on him. I know and he knows that he does not love me as he claimed to his lawyer but he is trying to do anything to use me again so he will not be deported.
Clerk's Papers at 69-70.
Following a court commissioner's denial of his motion to vacate, Panganiban moved for revision. The revision court granted Panganiban's motion to vacate the default judgment and signed an order stating:
Court finds: 1. Service of process of Summons Complaint was proper; 2. Former Husband appeared in the action; 3. Former Husband failed to answer Petition; 4. Court makes no conclusion on Former Wife's misrepresentations and misconduct; 5. Former Wife's service of December 17, 1999 Hearing on Motion to Declare Marriage Invalid was insufficient and in violation of Court Rules; 6. No Motion for Default or Notice of Motion for Default was filed with Court or served on Former Husband.
Clerk's Papers at 153.
Cordero appeals. Both parties request attorney fees.
ANALYSIS
The decision to set aside a default judgment rests within the discretion of the trial court and will not be disturbed on appeal unless it was manifestly unreasonable, based on untenable grounds, or based on untenable reasons. Batterman v. Red Lion Hotels, Inc., 106 Wn. App. 54, 58, 21 P.3d 1174 (2001). If a court enters an order of default where an appearing party lacks notice, the defaulting party is entitled to have the judgment set aside as a matter of right. CR 55(a)(3); Batterman, 106 Wn. App. at 58.
Although the trial court stated in its conclusions that the judgment was "void" based on improper notice, failure to give notice of a default hearing does not create a defect in personal jurisdiction and does not render the default judgment void. A judgment is "void" only when the issuing court lacks personal jurisdiction over the party or subject matter jurisdiction over the claim. Marley v. Dep't of Labor Indus., 125 Wn.2d 533, 539, 886 P.2d 189 (1994). The trial court found that Panganiban was properly served with the summons and petition, and it is undisputed on appeal that the court had personal jurisdiction over Panganiban and subject matter jurisdiction over the claim.
Although some cases describe a default judgment without such notice as "void", see, e.g., In re Marriage of Daley, 77 Wn. App. 29, 31, 888 P.2d 1194 (1994), the result is only that the default judgment is improper and will be "set aside." Batterman, 106 Wn. App. at 58-59.
Cordero challenges the trial court's finding that "former husband appeared in the action." We review a trial court's findings of fact and conclusions of law to determine whether substantial evidence in the record supports the findings and, if so, whether those findings support the conclusions.
Landmark Dev., Inc. v. City of Roy, 138 Wn.2d 561, 573, 980 P.2d 1234 (1999). Substantial evidence is a sufficient quantity of evidence to persuade a fair-minded, rational person of the truth of the allegation. Isla Verde Int'l Holdings, Inc. v. City of Camas, 146 Wn.2d 740, 751-52, 49 P.3d 867 (2002).
A review of the record reveals that Panganiban claimed that he spoke with Cordero on several occasions about reconciliation, and that he drafted a "response" to the summons and petition that he showed to Cordero's nephew — a person who had no connection with the lawsuit. There is no evidence in the record that Panganiban showed Cordero the response, or that he discussed it with her or her attorney, or that he made any attempt to file it in the trial court. Indeed, Panganiban states that he decided not to file the response based on the nephew's statement that he did not have to do so. Cordero denies that there were any discussions regarding reconciliation.
RCW 4.28.210 provides that a party appears when the party "answers, demurs, makes any application for an order therein, or gives the plaintiff written notice of his appearance." Informal acts may also constitute an appearance. Batterman, 106 Wn. App. at 59. "Our courts broadly construe the concept of appearance to accomplish its object, which is to apprise the plaintiff of the course the defendant intends to pursue, and whether the defendant intends to litigate the case." Id. at 61. Only when "the adversary process has been halted because of an essentially unresponsive party" are default judgments normally viewed as proper. Id. (citing Gage v. Boeing Co., 55 Wn. App. 157, 160-61, 776 P.2d 991 (1989)).
Batterman involved a personal injury claim against a hotel where the plaintiff engaged in negotiations with the hotel's agent regarding documentation of the claim and settlement for over a year, such that the plaintiff "should have entertained no illusions about [the defendant's] intention to defend the lawsuit." Id. at 62. "A defendant who is interested in reviewing records for the purpose of ascertaining the value of a claim is not an essentially unresponsive party and cannot be assumed to have abandoned the possibility of defense." Id.
Unlike the facts in Batterman, the record here indicates only that Panganiban may or may not have discussed reconciliation with Cordero over a period of a month, and that he drafted a response which he never filed or showed to Cordero or her lawyer and which he discussed only with a person wholly unconnected to the legal action, and that he then moved to Alaska and took no action in the suit for nearly four years. We think it safe to assume that many parties to marital dissolutions, annulments, and legal separations discuss the possibility of reconciliation sometime between commencement of the action and its completion — as well they probably should. We are willing to assume for purposes of this opinion that reconciliation discussions of some sort did take place. But reconciliation discussions between spouses cannot in and of themselves rise to the level of an informal appearance. A rule to the contrary could become a trap for the unwary and a tool for the manipulator. Such a rule probably would discourage reconciliation discussions. And such a rule would apply only in matrimonial litigation; we see no need for such a special rule in matrimonial cases, and particularly not a rule that would come down to "he-said-she-said" in virtually every case.
Neither can we countenance a rule basing an informal appearance on the conduct of Panganiban in this case — drafting a response to a petition, and then showing it to a relative who had no connection with the litigation, and then failing to show it to the opposing party or to counsel for that party — failing even to discuss its existence with the party or counsel — and finally failing to file it with the court. Standing alone or taken together with the alleged reconciliation discussions, we conclude as a matter of law that none of this rises to the level of an informal appearance. Accordingly, the trial court based its ruling on untenable grounds.
We note that the trial court was not persuaded by Panganiban's contentions that Cordero obtained the default judgment by fraud. At the hearing, the trial court stated:
The Court does not reach a conclusion with respect to misconduct or misrepresentation. The record here appears to be ambiguous on that. The burden is on the moving party to show by clear, cogent, and convincing evidence with respect to those bases. And it appears as though even though the wife allegedly tried to mislead former husband into not filing a response or answer, he did prepare a response. As a pro se he's held to the standard of care of an attorney. He should have filed a response because by Counsel's own admissions, this was kind of going back and forth as hot and cold. Under those circumstances a response should have been filed. Therefore, those are not the grounds for vacation.
Report of Proceedings 10/3/03 at 33-34. The trial court's determinations in this regard are not challenged in this appeal. We agree with the trial court's assessment of the evidence in any event; Panganiban failed to meet his burden to show misconduct or misrepresentation. As such, informal appearance was his only basis for attempting to establish that he was entitled to notice of the request for default judgment. Because we have concluded that Panganiban was not entitled to notice of the request for default, we do not need to address the trial court's ruling that the notice given was not sufficient. And neither do we need to address the remaining issues raised in the appeal.
Because Cordero's attorney fee request is not adequately briefed, we do not consider it. RAP 18.1(b); 10(3)(a)(5).
The trial court's order vacating the order of default and default judgment is reversed. We remand for reinstatement of the Order of Default and the Decree of Invalidity of Marriage.
AGID and BAKER, JJ., Concur.