Chai v. Kong

93 P.3d 936
CourtCourt of Appeals of Washington
DecidedAugust 30, 2004
Docket52379-1-I
StatusPublished
Cited by8 cases

This text of 93 P.3d 936 (Chai v. Kong) is published on Counsel Stack Legal Research, covering Court of Appeals of Washington primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chai v. Kong, 93 P.3d 936 (Wash. Ct. App. 2004).

Opinion

93 P.3d 936 (2004)
122 Wash.App. 247

In the Matter of the Marriage of Mu CHAI, Respondent,
v.
Yi KONG, Appellant.

No. 52379-1-I.

Court of Appeals of Washington, Division 1.

July 6, 2004.
As Amended August 30, 2004.

*937 Catherine W. Smith, Edwards, Sieh, Smith & Goodfriend, Seattle, WA, for Appellant.

Dennis J. McGlothin, Joaquin M. Hernandez, Barokas, Martin & Tominson, Seattle, WA, for Respondent.

ELLINGTON, Acting C.J.

A decree of legal separation may be converted to a decree of dissolution by motion of either party. We hold that due process does not require new original process for such a motion. The rule permits service by personal delivery or by mail to a last known address. But Mu Chai simply left a copy of his motion in a mailbox. This method of "service" did not comply with the rules, substantially or otherwise. Where the court has personal and subject matter jurisdiction, procedural irregularities render a judgment voidable, not void. Chai's decree of dissolution was thus voidable. Kong learned of the dissolution decree by 1998, but waited until 2002 before seeking to vacate the judgment under CR 60(b). Whether this was a timely challenge was not decided below. We therefore remand.

FACTS

Mu Chai and Yi Kong were married in China in 1988. Chai moved to Seattle to attend graduate school, and was joined here by Kong in 1991. Marital difficulties developed between them, allegedly including domestic violence. The parties separated in 1992.

Both parties applied for permanent residency under the Chinese Student Protection Act of 1992. This law, enacted after the Tiananmen Square massacre, provides protection for Chinese nationals and their dependents who were in the United States between June 5, 1989 and April 11, 1990 by allowing them to apply for permanent residency (adjustment of status or a green card). Chai was in the United States at the relevant time, but Kong was not. Kong was therefore eligible for permanent residency only as a dependent of her husband. Chai received permanent resident status in September 1993, but Kong's application was put on hold because the visa quota for that year had been reached.

In November, 1993, Chai prepared a petition for legal separation. Kong alleges Chai assured her that if she joined in the petition he would continue to assist in her pursuit of permanent residency, but threatened her with deportation and jail if she refused. She signed the joinder form. On the line for notice of further proceedings, she gave the *938 address of an apartment in the University District belonging to a university colleague of Chai; Kong never resided or worked there.

In January, 1994, Chai filed the separation petition, and the court entered a decree of legal separation.

Six months later, in July 1994, without notice to Kong, Chai appeared in the ex parte department in superior court and presented a motion to convert the decree of separation to a decree of dissolution. He was told he needed to give Kong at least five days' notice.

Chai put a copy of his motion in an envelope, went to the address Kong had listed on the joinder form, and placed the envelope in the postal mailbox. The motion did not list a time or place for hearing. Kong did not receive the motion.

Three business days later, Chai filed his motion, presented an order ex parte, and obtained a decree of dissolution. The decree did not grant relief different from that granted in the original decree of separation, except to change the parties' status.

By 1998, Kong learned of the dissolution. In 2002, she moved to vacate the dissolution decree under CR 60(b),[1] contending that Chai's failure to give her proper notice of the conversion motion violated due process. Chai, who had since remarried, sought an order converting the decree nunc pro tunc to the date of his original motion. Kong sought to restrain any such conversion, to allow sufficient time for her to obtain permanent residency.

The matter was set for trial. The parties were prepared to present evidence on several issues, including the timeliness of Kong's motion to vacate. At the parties' suggestion, the court agreed to consider, as a threshold issue, whether Chai's notice to Kong complied with the civil rules and satisfied due process, because if it did, the other issues would be moot. The parties stipulated to the facts surrounding Chai's attempted service of the conversion motion. After hearing argument, the court ruled that Chai had substantially complied with the rules governing service of motions, and that the minimum constitutional requirements of due process had been satisfied. The court denied Kong's motion to vacate, and dismissed the other motions as moot.

Kong appeals. She argues the court erred in holding that Chai substantially complied with the motion notice requirements of CR 5 and CR 6. She further contends that Chai's failure to serve her with his motion renders the subsequent decree void.

DISCUSSION

A decree of legal separation is final when entered, subject to the right of appeal.[2] RCW 26.09.150 allows a decree of separation to be converted to a decree of dissolution:

No earlier than six months after entry of a decree of legal separation, on motion of either party, the court shall convert the decree of legal separation to a decree of dissolution of marriage.

The statute requires only a motion. Service of motions is governed by CR 5(b)(1), which requires the moving party to serve the other[3] as follows:

[B]y delivering a copy to him or by mailing a copy to him at his last known address, or, if no address is known, filing with the clerk of the court an affidavit of attempt to serve. Delivery of a copy within this rule means: handing it to the attorney or to the party; or leaving it at his office with his clerk or other person in charge thereof; or, if there is no one in charge, leaving it in a conspicuous place therein; or, if the office is closed or the person to be served has no office, leaving it at his dwelling house or usual place of abode with some *939 person of suitable age and discretion then residing therein.

Five business days' notice is required.[4]

A number of errors occurred in Chai's attempted service on Kong. Chai did not attempt service at Kong's last known address.[5] Instead, he used the address she gave for notices in her joinder in the petition for separation. Assuming that the address was proper for service of notices after a decree of separation was entered,[6] service must be by mail or in person. The rule makes no provision for hand delivery to a residential mailbox. Chai's attempted service was also untimely; it occurred only three business days before Chai returned to court and obtained the decree. Finally, the motion papers contained no notice of any time or place for the hearing.

Substantial Compliance. The trial court ruled that when Chai delivered the motion to the mailbox at the address Kong listed on her joinder, he substantially complied with CR 5. The substantial compliance doctrine, however, applies only to personal service, not service by mail.[7] Further, the substantial compliance doctrine requires both actual notice, and service in a manner reasonably calculated to reach the party on whom the statute requires service.[8]

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Bluebook (online)
93 P.3d 936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chai-v-kong-washctapp-2004.