IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Marriage of ) No. 72964-1- o OOq o
FRANK J.B. D'ORR, ) -o
Respondent, ) oo cg-cr- is>m,~:
V. J zr
o«— OLGA V. MAKALOVA, ) UNPUBLISHED OPINION J 3C<
Appellant. ) FILED: April 18, 2016
Verellen, C.J. — Under CR 55, a party who appears in an action is entitled to
notice of a default hearing. Failure to provide notice of the hearing requires reversal of
a default order and judgment. Here, Frank D'orr filed a petition for modification of a
parenting plan in King County Superior Court. Olga Makalova filed and served a
response which included an address for notice of further proceedings. D'orr obtained a
default order without providing proper notice. We conclude this was error and reverse.
FACTS
Frank D'orr and Olga Makalova have been involved in extensive litigation
following their divorce in February 2003. The present appeal is based on D'orr's petition
to modify the existing parenting plan and child support order. Throughout the
proceedings below, D'orr and Makalova did not have attorneys. No. 72964-1-1/2
The record contains a return of service filed by D'orr stating that on May 6, 2014,
he served Makalova with a summons, parenting plan, and related exhibits. D'orr
asserts he served the documents on May 6, but never filed or pursued the matter.
Another return of service indicates D'orr served Makalova on June 16 with a
summons, parenting plan, petition for modification, and related exhibits. It appears he
did not file the June 16 materials until July 8.
On June 17, Makalova filed a "Response to Petition for Modification/Adjustment
of Custody Decree/Parenting Plan/Residential Schedule" in King County Superior
Court.1 Clerk's Papers (CP) at 221. Her response included admissions and denials.
She included a section entitled "Notice of Further Proceedings" listing an address in
Burien, Washington. Makalova submitted her own proposed parenting plan and asked
the court to approve that plan.
On July 8, the same day he filed his June 16 petition, D'orr also filed a "Motion
and Declaration for Default." CP at 20. D'orr stated he served Makalova with the
petition for modification and that more than 20 days had elapsed since the date of
service. D'orr acknowledged that Makalova "did respond to another prior summons,"
but claimed the summons was "stricken and NOT filed which cannot be considered an
answer to the filed summons served at hand." CP at 23.
The court entered a default order on July 8. Based on the default order, D'orr
obtained a "default judgment" in the form of orders modifying the parenting plan and
child support. CP at 31-36, 38-53, 54-69.
1 A certificate of e-service indicates this response was e-mailed to D'orr on June 16 at 8:38 p.m. -2- No. 72964-1-1/3
On November 4, Makalova filed a motion to vacate the default judgment on the
basis that she was not served with notice of the default hearing:
I was not present in court because I was not served with a date and time of appearance. I would have been available by phone too if I was reached by court. I have responded to a petition, e-filed and send copies to a Petitioner. I have affidavit of mailing. Working copies could not be filed because no date and time was set. Frank served me 2 different stacks of papers in June, [sic] None had a date/time.
CP at 99-100. Makalova included a declaration repeating her claim that she failed to
appear due to lack of notice.
On December 3, D'orr responded to Makalova's motion. Among other claims, he
asserted that Makalova's June 17 filing was in response to the (May 6) petition he did
not file.2
On December 5, the trial court heard oral argument and denied Makalova's
motion to vacate.
On December 26, the trial court denied Makalova's motion to reconsider.
Makalova appeals.
ANALYSIS
Makalova argues that the trial court erred by denying her motion to vacate the
default judgment and her motion to reconsider based on that motion. She claims her
2 D'orr further claimed that although entered by default, the parenting plan was an "'AGREED Parenting Plan', that just so happened origination was found in default, nevertheless Ms. Makalova agrees to it." CP at 246. The basis for this claim is a declaration filed by her attorney in a dependency action. But the dependency is a separate action and the record does not contain any suggestion that Makalova agreed to a modification including increased child support based upon income imputed to her. Makalova consistently took the position that D'orr's default orders in this action were obtained without proper service. No. 72964-1-1/4
response to D'orr's petition for modification constituted an appearance in the
proceedings entitling her to notice of the default hearing. We agree.
We review a trial court's decision on a motion to vacate a default judgment for an
abuse of discretion. Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007). Atrial
court abuses its discretion when its decision is manifestly unreasonable or is based on
untenable grounds or untenable reasons. Rush v. Blackburn, 190 Wn. App. 945, 956,
361 P.3d 217 (2015). We review questions of law de novo. Morin v. Burris, 160 Wn.2d
745,753, 161 P.3d 956 (2007).
CR 55 governs when a court may enter an order or judgment of default against a
party and when the order or judgment may be set aside. The rule allows a party to
move for default where "a party against whom a judgment for affirmative relief is sought
has failed to appear, plead, or otherwise defend." CR 55(a)(1). As a policy matter,
"[djefault judgments are generally disfavored in Washington. 'We prefer to give parties
their day in court and have controversies determined on their merits.'" Rush, 190 Wn.
App. at 956 (quoting Morin, 160 Wn.2d at 754). This policy is balanced against the
interest in an "organized, responsive, and responsible judicial system where litigants .. .
comply with court rules." Little. 160 Wn.2d at 703.
Under CR 55(a)(3), once a party appears in an action "for any purpose," the
moving party "shall" provide service "with a written notice of motion for default and the
supporting affidavit at least 5 days before the hearing on the motion."
Under RCW 4.28.210, a party appears in a proceeding where she gives the
plaintiff written notice of her appearance. Absent a formal notice of appearance under
RCW 4.28.210, a party may substantially comply with the appearance requirements.
-4- No. 72964-1-1/5
This generally requires a defendant to take some action, formal or informal, after the
litigation was commenced "acknowledging that the dispute is in court." Morin, 160
Wn.2d at 757.
Once a party appears in an action, a trial court lacks authority to enter a default
judgment without notice to that party. Housing Auth. of Grant County v.
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE
In the Matter of the Marriage of ) No. 72964-1- o OOq o
FRANK J.B. D'ORR, ) -o
Respondent, ) oo cg-cr- is>m,~:
V. J zr
o«— OLGA V. MAKALOVA, ) UNPUBLISHED OPINION J 3C<
Appellant. ) FILED: April 18, 2016
Verellen, C.J. — Under CR 55, a party who appears in an action is entitled to
notice of a default hearing. Failure to provide notice of the hearing requires reversal of
a default order and judgment. Here, Frank D'orr filed a petition for modification of a
parenting plan in King County Superior Court. Olga Makalova filed and served a
response which included an address for notice of further proceedings. D'orr obtained a
default order without providing proper notice. We conclude this was error and reverse.
FACTS
Frank D'orr and Olga Makalova have been involved in extensive litigation
following their divorce in February 2003. The present appeal is based on D'orr's petition
to modify the existing parenting plan and child support order. Throughout the
proceedings below, D'orr and Makalova did not have attorneys. No. 72964-1-1/2
The record contains a return of service filed by D'orr stating that on May 6, 2014,
he served Makalova with a summons, parenting plan, and related exhibits. D'orr
asserts he served the documents on May 6, but never filed or pursued the matter.
Another return of service indicates D'orr served Makalova on June 16 with a
summons, parenting plan, petition for modification, and related exhibits. It appears he
did not file the June 16 materials until July 8.
On June 17, Makalova filed a "Response to Petition for Modification/Adjustment
of Custody Decree/Parenting Plan/Residential Schedule" in King County Superior
Court.1 Clerk's Papers (CP) at 221. Her response included admissions and denials.
She included a section entitled "Notice of Further Proceedings" listing an address in
Burien, Washington. Makalova submitted her own proposed parenting plan and asked
the court to approve that plan.
On July 8, the same day he filed his June 16 petition, D'orr also filed a "Motion
and Declaration for Default." CP at 20. D'orr stated he served Makalova with the
petition for modification and that more than 20 days had elapsed since the date of
service. D'orr acknowledged that Makalova "did respond to another prior summons,"
but claimed the summons was "stricken and NOT filed which cannot be considered an
answer to the filed summons served at hand." CP at 23.
The court entered a default order on July 8. Based on the default order, D'orr
obtained a "default judgment" in the form of orders modifying the parenting plan and
child support. CP at 31-36, 38-53, 54-69.
1 A certificate of e-service indicates this response was e-mailed to D'orr on June 16 at 8:38 p.m. -2- No. 72964-1-1/3
On November 4, Makalova filed a motion to vacate the default judgment on the
basis that she was not served with notice of the default hearing:
I was not present in court because I was not served with a date and time of appearance. I would have been available by phone too if I was reached by court. I have responded to a petition, e-filed and send copies to a Petitioner. I have affidavit of mailing. Working copies could not be filed because no date and time was set. Frank served me 2 different stacks of papers in June, [sic] None had a date/time.
CP at 99-100. Makalova included a declaration repeating her claim that she failed to
appear due to lack of notice.
On December 3, D'orr responded to Makalova's motion. Among other claims, he
asserted that Makalova's June 17 filing was in response to the (May 6) petition he did
not file.2
On December 5, the trial court heard oral argument and denied Makalova's
motion to vacate.
On December 26, the trial court denied Makalova's motion to reconsider.
Makalova appeals.
ANALYSIS
Makalova argues that the trial court erred by denying her motion to vacate the
default judgment and her motion to reconsider based on that motion. She claims her
2 D'orr further claimed that although entered by default, the parenting plan was an "'AGREED Parenting Plan', that just so happened origination was found in default, nevertheless Ms. Makalova agrees to it." CP at 246. The basis for this claim is a declaration filed by her attorney in a dependency action. But the dependency is a separate action and the record does not contain any suggestion that Makalova agreed to a modification including increased child support based upon income imputed to her. Makalova consistently took the position that D'orr's default orders in this action were obtained without proper service. No. 72964-1-1/4
response to D'orr's petition for modification constituted an appearance in the
proceedings entitling her to notice of the default hearing. We agree.
We review a trial court's decision on a motion to vacate a default judgment for an
abuse of discretion. Little v. King, 160 Wn.2d 696, 702, 161 P.3d 345 (2007). Atrial
court abuses its discretion when its decision is manifestly unreasonable or is based on
untenable grounds or untenable reasons. Rush v. Blackburn, 190 Wn. App. 945, 956,
361 P.3d 217 (2015). We review questions of law de novo. Morin v. Burris, 160 Wn.2d
745,753, 161 P.3d 956 (2007).
CR 55 governs when a court may enter an order or judgment of default against a
party and when the order or judgment may be set aside. The rule allows a party to
move for default where "a party against whom a judgment for affirmative relief is sought
has failed to appear, plead, or otherwise defend." CR 55(a)(1). As a policy matter,
"[djefault judgments are generally disfavored in Washington. 'We prefer to give parties
their day in court and have controversies determined on their merits.'" Rush, 190 Wn.
App. at 956 (quoting Morin, 160 Wn.2d at 754). This policy is balanced against the
interest in an "organized, responsive, and responsible judicial system where litigants .. .
comply with court rules." Little. 160 Wn.2d at 703.
Under CR 55(a)(3), once a party appears in an action "for any purpose," the
moving party "shall" provide service "with a written notice of motion for default and the
supporting affidavit at least 5 days before the hearing on the motion."
Under RCW 4.28.210, a party appears in a proceeding where she gives the
plaintiff written notice of her appearance. Absent a formal notice of appearance under
RCW 4.28.210, a party may substantially comply with the appearance requirements.
-4- No. 72964-1-1/5
This generally requires a defendant to take some action, formal or informal, after the
litigation was commenced "acknowledging that the dispute is in court." Morin, 160
Wn.2d at 757.
Once a party appears in an action, a trial court lacks authority to enter a default
judgment without notice to that party. Housing Auth. of Grant County v. Newbigging,
105 Wn. App. 178, 190, 19 P.3d 1081 (2001). Thus, if a party is entitled to notice but
does not receive it, the party has a right to have the default judgment vacated. Housing
Auth. of Grant County, 105 Wn. App. at 190; Morin, 160 Wn.2d at 754.
D'orr makes no claim that he served Makalova with any notice of the default
hearing.3 He contends notice was not required because Makalova's June 17 response
did not address the petition he served on June 16. He argues her response must have
referred to materials he served in May but did not pursue. But D'orr misunderstands the
significance of an appearance "for any purpose" in a dissolution action.
Makalova did not formally call her response a "notice of appearance." But her
June 17 response expressly addresses D'orr's "Petition for Modification" under the
same cause number D'orr used to obtain the default and subsequent orders. CP at 20,
221. Her response expressly directs that notice of further proceedings should be
delivered to Makalova's address in Burien, Washington.
3 D'orr claims he notified Makalova by telephone and text messages that he would move for default if she failed to respond to his petition. But even if he made such general assertions, he was still required to give specific notice of the date he set for hearing on the motion for default. CR 55(a)(3). He also fails to cite any portion of our appellate record. We are limited to the record on review and the record reveals no support for this assertion. No. 72964-1-1/6
Makalova's June 17 response constituted written notice to D'orr of her
appearance in this dissolution cause number. The response clearly communicated
Makalova's intent to litigate any motion to modify. D'orr was required to give Makalova
notice of his motion for default.
D'orr makes several other arguments in his brief that do not appear relevant to
the issue before us on appeal.45 These include claims of Makalova's abusive use of
conflict, that Makalova improperly offers new information, and that we should not use
any order prepared by Makalova's attorney. These arguments do not address the
fundamental requirement for notice of a motion for default, and he provides no citation
to legal authority to support these claims. We generally do not consider arguments
without citations to the record and legal authority. RAP 10.3(a)(6); Cowiche Canyon
Conservancy v. Boslev, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
We confine our review to the formal record on appeal. To the extent D'orr claims
Makalova failed to raise the issue of improper service in her motion to vacate and her
motion to reconsider, he is mistaken. The record demonstrates Makalova clearly raised
this issue below.
4 We granted D'orr's motion to have his motion to dismiss treated as his respondent's brief. In granting the motion, we held that "[t]he panel that decides the appeal on the merits will consider the motion to dismiss as a respondent's brief and the transcript to the extent it deems appropriate." 5 D'orr's motion to dismiss included the claim that Makalova's appeal was untimely. A commissioner from this court considered the issue and found the appeal timely. -6- No. 72964-1-1/7
CONCLUSION
Makalova's appearance required D'orr to give her notice of a default hearing.
Because she did not receive this notice, Makalova is entitled to have the default
judgment set aside. Reversed and remanded.
WE CONCUR:
ir^ok^Y/ ftc^~
-7-