Opinion
No. 30513-5-II
Filed: November 23, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 99-3-03622-0. Judgment or order under review. Date filed: 05/23/2003. Judge signing: Hon. Bryan E. Chushcoff.
Counsel for Appellant(s), Jeffrey Robert Pollock, Law Office of Jeffrey R. Pollock, PO Box 755, Myrtle Creek, OR 97457.
Counsel for Respondent(s), Daniel W. Smith, Campbell Dille Barnett Smith Wiley, 317 S Meridian, PO Box 488, Puyallup, WA 98371-0164.
Boyd Scott Wiley, Campbell Dille Barnett Smith Wiley, 317 S Meridian, PO Box 488, Puyallup, WA 98371-0164.
Albert W. Styers appeals from the trial court's refusal to overturn a default decree of dissolution from Ouida Madalyn Styers that awarded one-half of Mr. Styers's military pension to her. We hold that the trial court did not abuse its discretion. Mr. Styers brought his motion to vacate the default decree 10 months after the decree was entered. The motion was not brought within a reasonable time, i.e., Mr. Styers received the final decree that awarded half of his military pension to Mrs. Styers shortly after it was filed; Mrs. Styers demanded payment of the pension benefits after entry of the decree. We affirm.
The Styers were married in 1985; Mr. Styers retired from the United States military in 1993. Mrs. Styers filed a petition for dissolution of marriage requesting a 'fair and equitable division of all the property.' Clerk's Papers (CP) at 2. Mr. Styers did not respond to the petition. Mr. Styers filed an acceptance of service, acknowledging that he had been served with the summons and petition; and he personally appeared at the show cause hearing for temporary orders.
Mrs. Styers filed a motion and declaration for default. Additionally, she filed an affidavit of mailing, indicating that she had mailed Mr. Styers notice of the motion and hearing at both his residence and place of employment. The hearing was initially set for December 17, 1999. The following day, Mrs. Styers's attorney received a letter from the Pierce County Superior Court informing him that the motion was set over for hearing on January 7, 2000, and that he, as moving counsel, was to notify all other attorneys involved in the matter. The record is silent as to whether Mrs. Styers's counsel informed Mr. Styers that the motion had been set over; Mr. Styers alleges that, 'counsel for Albert has been unable to locate any subsequently filed 'Affidavit of Mailing' in the court file indicating that Albert has actually been advised that this hearing had been set over.' Br. of Appellant at 8. However, Mr. Styers does not allege that he was not informed of the set over, nor does he argue on appeal that he did not receive proper notice of default.
Mr. Styers did not respond to the motion or appear at the January 7 hearing, and the court entered an order of default against him. The following day, the order of default was mailed to Mr. Styers.
Mrs. Styers alleges that in late March, she presented Mr. Styers with her proposed final decree of dissolution and proposed asset and debt distribution. The proposed decree distributed 50 percent of Mr. Styers's military retirement pay to Mrs. Styers and awarded her maintenance of $200 per month. The asset and debt distribution drafts list both parties' assets and debts, but do not include Mr. Styers's military retirement. Mr. Styers interlineated several items on the asset and debt distribution drafts, but maintains that he never received the proposed final decree of dissolution. Mrs. Styers then mailed Mr. Styers a copy of the note for commissioner's calendar, informing him that the presentation of final papers would occur on May 24, 2000.
On May 24, the parenting plan, order of child support, findings of fact and conclusions of law, and decree of dissolution were entered. Mr. Styers did not appear at the hearing. Mrs. Styers was awarded one-half of Mr. Styers's military retirement and maintenance of $200 per month. The net distribution to the parties was 50/50 Mr. Styers received $180,026.63 and Mrs. Styers received $180,026.64. On May 30, Mr. Styers was mailed copies of the decree of dissolution and other final pleadings.
Ten months later, on March 29, 2001, Mr. Styers filed a petition to modify the parenting plan and, under CR60(b)(1), (5) and (11), to vacate paragraphs 3.2-3.5, 3.7, and 3.13 of the decree of dissolution. Paragraphs 3.2-3.5 of the decree determine the assets and liabilities awarded to each spouse, and paragraphs 3.7 and 3.13 respectively award Mrs. Styers maintenance of $200 per month and 50 percent of Mr. Styers's military retirement. A show cause hearing was set for April 17, 2001, but the parties instead agreed to attempt to resolve Mr. Styers's claims in mediation. The parties successfully mediated the issues involving the parenting plan, but did not reach agreement regarding Mr. Styers's claim to vacate portions of the dissolution decree. The parties agreed to 'continue negotiations' and return to mediation to resolve Mr. Styers's motion to vacate; however, communication between the parties apparently broke down and all negotiations ceased. CP at 135.
On January 24, 2002, Mrs. Styers's counsel filed a notice of intent to withdraw. In April, 2002, Mr. Styers's attorney filed an order amending case schedule, setting Mr. Styers's motion to vacate for trial on December 12. However, on May 9, 2002, Mr. Styers's counsel also filed a notice of intent to withdraw. In August 2002, counsel for Mrs. Styers re-appeared and filed a motion and declaration to strike the trial date, stating that there were 'no issues remaining' for trial. CP at 343. The court granted the motion.
On December 26, 2002, Mrs. Styers filed a motion and order to show cause, ordering Mr. Styers to appear on January 22, 2003, and show cause why he should not be found in contempt for failing to remit one-half of his military retirement to Mrs. Styers from June 2000 to December 2002. The court found Mr. Styers in contempt and ordered him to pay judgment in the principal amount of $16,003.74, together with interest, costs, and attorney fees.
On February 12, 2003, counsel for Mr. Styers re-appeared and filed a motion and order to show cause, arguing that the contempt judgment entered against him should be vacated. At the show cause hearing, Mr. Styers argued his underlying CR 60(b) motion to vacate portions of the dissolution decree. A court commissioner granted Mr. Styers's motion, vacating paragraphs 3.3-3.7, 3.11, and 3.13 of the decree of dissolution.
Mrs. Styers then filed a motion and declaration for revision of the court commissioner's ruling. In May 2003, the trial court granted Mrs. Styers's motion and reinstated the decree of dissolution. The court held that there was no irregularity or mistake in the entering of the final decree and that Mr. Styers did not bring his CR 60(b) motion within a reasonable time. Mr. Styers has timely appealed.
Mr. Styers contends that the trial court abused its discretion when it reinstated the decree of dissolution and refused to vacate the order of default entered against him under CR 60(b)(1), (5), and (11). Based on a review of the record, his claims must fail.
We review a decision on a CR 60(b) motion to vacate an order of default for an abuse of discretion. In re Estate of Stevens, 94 Wn. App. 20, 29, 971 P.2d 58 (1999). A trial court abuses its discretion when its decision is manifestly unreasonable, or is based upon untenable grounds or reasons. Stevens, 94 Wn. App. at 29. Default judgments are generally disfavored; however, this policy must be balanced against the necessity of having a 'responsive and responsible system which mandates compliance with judicial summons.' Shepard Ambulance, Inc. v. Helsell, Fetterman, Martin, Todd Hokanson, 95 Wn. App. 231, 237-38, 974 P.2d 1275 (1999), review denied, 140 Wn.2d 1007 (2000).
Mr. Styers first contends that this court should vacate paragraphs 3.3-3.7, 3.11, and 3.13 of the decree of dissolution under CR 60(b)(1). Mrs. Styers responds that this court should uphold the parties' dissolution decree because Mr. Styers did not timely bring his CR 60(b)(1) claim motion and he is erroneously arguing errors of law. Mrs. Styers is correct.
Under CR 60(b)(1), a party may move to vacate a final judgment, whether entered by default or otherwise, for '[m]istakes, inadvertence, surprise, excusable neglect or irregularity' in obtaining the judgment or order. However, CR 60(b) authorizes vacation of judgments only for reasons extraneous to the action of the court or for matters affecting the regularity of the proceedings; errors of law are not correctable through this rule. Burlingame v. Consol. Mines and Smelting Co., 106 Wn.2d 328, 336, 722 P.2d 67 (1986). A claim for relief under CR 60(b)(1) must be made within a reasonable time and not more than one year after the judgment or order was entered. CR 60(b).
Application of CR 60(b)(1) turns on the following four factors: (1) that there is substantial evidence extant to support, at least prima facie, a defense to the claim asserted by the opposing party; (2) that the moving party's failure to timely appear in the action and answer the opponent's claim was occasioned by mistake, inadvertence, surprise, or excusable neglect; (3) that the moving party acted with due diligence after notice of entry of the default judgment; and (4) that no substantial hardship will result to the opposing party. Pfaff v. State Farm Mut. Auto. Ins. Co., 103 Wn. App. 829, 832, 14 P.3d 837 (2000), review denied, 143 Wn.2d 1021 (2001); White v. Holm, 73 Wn.2d 348, 352, 438 P.2d 581 (1968).
Mr. Styers's argues for the first time on appeal that default judgment was obtained by 'mistake, inadvertence, surprise or irregularity' because he 'informally appeared' by appearing at the initial show cause hearing, filing an acceptance of service, and negotiating with Mrs. Styers regarding the final pleadings prior to entry of default. Br. of Appellant at 24. Because he failed to raise this issue below, we do not consider it. RAP 2.5(a).
Mr. Styers also argues that default judgment was entered improperly because the trial court did not apply the standard formula for dividing pensions, failed to properly characterize Mr. Styers's pension as separate property, and did not make an actuarial evaluation of the pension. These claims also fail because Mr. Styers is essentially arguing that the trial court committed errors of law, which we do not address under CR 60(b). Burlingame, 106 Wn.2d at 336. Rather, the proper avenue for raising these claims was a direct appeal, which Mr. Styers did not file.
Additionally, Mr. Styers's claim for relief under CR 60(b)(1) fails because he did not timely bring his motion to vacate. He argues that he properly brought the motion within one year under CR 60(b) and that in In Re Marriage of Hardt, 39 Wn. App. 493, 693 P.2d 1386 (1985), the court granted a motion to vacate even though five years had passed since the decree of dissolution was entered. But the decision in Hardt was based on the fact that the petitioner argued that the decree was void; the court held that '[v]oid judgments may be vacated irrespective of the lapse of time.' Hardt, 39 Wn. App. at 496. Thus, Hardt is inapplicable to Mr. Styers's CR 60(b)(1) claim. Although CR 60(b) states that claims pursuant to subsection (1) of the rule must be brought within one year, the rule also mandates that claims be brought within a reasonable period of time. CR 60(b). In order to set aside default judgments, due diligence must be shown by a prompt filing. See Shepard Ambulance, 95 Wn. App. at 243.
However, Mr. Styers's claim for relief under CR 60(b)(5) is proper under Hardt.
Mr. Styers waited 10 months after the entry of default to file his CR 60(b) motion to vacate. The motion was not argued at that time and the parties failed to resolve Mr. Styers's claims in mediation. Further, Mr. Styers did not argue his CR 60(b) motion until February 2003 almost three years after entry of the dissolution decree. He has not demonstrated that his failure to timely appear in the dissolution action was occasioned by mistake, inadvertence, surprise, or excusable neglect. Nor has he shown that he acted with due diligence after notice of entry of default. The trial court did not err when it revised the commissioner's order vacating the order of default against him.
Mr. Styers next contends that this court should vacate paragraphs 3.3-3.7, 3.11, and 3.13 under CR 60(b)(5) because these portions of the decree exceed the relief requested by Mrs. Styers's petition for dissolution. Specifically, he argues that he was denied sufficient notice of Mrs. Styers's claims because the petition did not specify how the court should divide the parties' property nor the amounts of maintenance and attorney's fees that she was seeking. And thus, he was not on notice that Mrs. Styers was 'pursuing a full 50% of his military retirement.' Br. of Appellant at 34.
Under CR 60(b)(5), a court may vacate a final judgment if it is void. In entering a default judgment, a court may not grant relief in excess of or substantially different from that described in the complaint. In Re Marriage of Leslie, 112 Wn.2d 612, 617, 772 P.2d 1013 (1989). Due process mandates that a defendant be given 'sufficient notice to make an intelligent decision to appear or default.' Johnson v. Johnson, 107 Wn. App. 500, 504, 27 P.3d 654 (2001) (quoting Conner v. Universal Utils., 105 Wn.2d 168, 172, 712 P.2d 849 (1986)). To the extent a default judgment exceeds the relief requested in the complaint, that portion of the judgment is void. Leslie, 112 Wn.2d at 618.
Here, the petition stated that the parties owned both community and separate property and required that the court 'make a fair and equitable division of all the property.' CP at 2 (emphasis added). The petition also requested that the court make a fair and equitable division of all debts and liabilities and that it award Mrs. Styers maintenance and attorney fees. Thus, Mr. Styers was on notice that the court would be dividing all of the parties' community and separate property including his military pension. In addition, he knew that the court would be determining whether and in what amounts it should award Mrs. Styers maintenance and attorney fees. Mr. Styers points to no authority mandating that a petitioner specify exactly how a court should divide property and debts in a dissolution action or dollar amounts of maintenance and attorney fees. Indeed, Washington is a notice pleading state, and Mrs. Styers was permitted to plead generally. See CR 8(a).
Mr. Styers attempts to obfuscate the issue by arguing that Mrs. Styers did not present him with a copy of her final proposed decree of dissolution prior to entry of default and, as such, failed to notify him that she was seeking 50 percent of his military pension. He cites to the record at length, contending that it is 'extremely unlikely' that he received a copy of the decree because he interlineated Mrs. Styers's asset/debt distribution sheets in purple ink but the final decree contains no purple markings. Br. of Appellant at 9. These arguments are immaterial because at the time Mrs. Styers presented Mr. Styers with her proposed pleadings, a default judgment had already been entered against Mr. Styers and he had received sufficient notice in the petition that the court would be dividing his military pension.
In conclusion, the relief granted Mrs. Styers does not vary substantially from that requested in the petition. The petition requested that the court make a fair and equitable distribution of all of the parties' property and the court did. It distributed equal amounts of property and debt to both parties. The trial court did not err in finding that the entry of default was not void under CR 60(b)(5).
Finally, Mr. Styers contends that this court should vacate paragraphs 3.3-3.7, 3.11, and 3.13 under CR 60(b)(11) because the circumstances surrounding the entry of default were 'extraordinary' and were 'shockingly unfair.' Br. of Appellant at 36, 37. His claim is without merit.
CR 60(b)(11) grants the trial court discretion to vacate an order or final judgment for '[a]ny other reason justifying relief' from judgment. The operation of CR 60(b)(11) is confined to situations involving 'extraordinary circumstances' not covered by any other section of CR 60(b). Hammack v. Hammack, 114 Wn. App. 805, 809, 60 P.3d 663, review denied, 149 Wn.2d 1033 (2003). A dissolution decree may be vacated for extraordinary circumstances to overcome a manifest injustice. Hammack, 114 Wn. App. at 810.
In Hammack, this court found an extraordinary circumstance permitting vacation of a property settlement agreement because the agreement was void for violating public policy. Hammack, 114 Wn. App. at 811. Additionally, in In Re Marriage of Jennings, 138 Wn.2d 612, 980 P.2d 1248 (1999), our supreme court found extraordinary circumstances where a wife was awarded one-half of her former husband's military retirement pay, and he later received an increase in his military disability pay (which she was not awarded) and a decrease in his retirement pay. The court found that the result was fundamentally unfair because it deprived the wife of her entitlement to one-half of a substantial community asset. Jennings, 138 Wn.2d at 627.
Here, the circumstances surrounding the entry of default were anything but extraordinary. Mrs. Styers filed a petition for dissolution, informing Mr. Styers that she was seeking a 'fair and equitable' distribution of all of the parties' separate and community property; maintenance; and attorney fees. Mr. Styers failed to respond and the court entered default judgment against him. Mr. Styers then failed to appear at the presentation of final papers and based on Mrs. Styers's final pleadings, the court made an equal distribution of the parties' assets and liabilities. Nothing in these proceedings rises to the level of 'extraordinary circumstances' that courts have required in the past; neither party has suffered a manifest injustice. Moreover, any errors of law that the trial court might have committed in characterizing, valuing, and dividing Mr. Styers's military pension are not proper grounds for vacating the default judgment under CR 60(b)(11). Burlingame, 106 Wn.2d at 336. Thus, the trial court did not abuse its discretion by reinstating the parties' decree of dissolution and refusing to vacate the entry of default against Mr. Styers.
Affirmed.
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.
HOUGHTON, J. and QUINN-BRINTNALL, C.J., Concur.