In Re the Marriage of Maxfield

737 P.2d 671, 47 Wash. App. 699, 1987 Wash. App. LEXIS 3639

• Court: Court of Appeals of Washington
• Decided: May 19, 1987
• Docket: 7076-0-III
• Status: Published

Opinions

Thompson, J.

Robert Maxfield appeals a judgment entered March 22, 1985, granting Mrs. Maxfield $12,800 on her motion for summary judgment. He also appeals the trial court's denial of his motion to stay and set aside the contempt order and judgment that was the basis for granting Mrs. Maxfield the $12,800. Mrs. Maxfield cross-appeals, contending her motion for contribution for house payments, insurance and tax costs should have been granted. We affirm in part, reverse in part.

The 25-year marriage of Joann and Robert Maxfield ended October 28, 1981, by a decree of dissolution. The decree ordered the family home sold and the completion of certain necessary repairs. Testimony during trial estimated the cost of completing the repairs, if Mr. Maxfield did the work, at approximately $2,800. The decree failed to specify who was responsible for completion of the repair work.

In July 1982, Mr. Maxfield was served with an order to show cause which referred to willful disobedience of the decree of dissolution for failure to complete the home. However, no further action was taken on this order to show cause.

On May 24, 1983, a second show cause order was served on Mr. Maxfield, requiring him, among other things, to show cause why he should not be required to immediately complete construction of the family home. On the date set for hearing, neither Mr. Maxfield nor his attorney appeared. The affidavit from Mr. Maxfield's attorney states he did not communicate this hearing date to his client. Thereafter, on September 16, 1983, a presentment hearing was held attended by Mr. Maxfield's attorney, but not by Mr. Maxfield. His attorney approved without opposition a finding of contempt and order that Mr. Maxfield should complete the home by October 2. If the work was not completed, Mr. Maxfield was to be fined $100 per day until completion.

Mr. Maxfield commenced work, but did not finish the work by October 2. On January 20, 1984, another hearing was held. This was the first hearing with regard to the contempt proceeding at which Mr. Maxfield was personally present. Mr. Maxfield maintains it was at this hearing he first understood that $100 per day was being levied against him for his failure to comply with the September 16 order. His motion to vacate the contempt order was denied March 29, 1984. In the meantime, he completed the work in February 1984.

On May 16, 1984, Mrs. Maxfield moved for summary judgment asking the court to reduce the accumulated fine to judgment. Mr. Maxfield countered with a motion to stay and set aside and/or gain relief from the underlying contempt order. The trial court granted Mrs. Maxfield's motion for summary judgment, denied relief to Mr. Max-field, and also denied Mrs. Maxfield's motion to recover maintenance and obtain contribution for house payments and other expenses paid by her. Both parties appeal.

The first issue is whether this court has jurisdiction to hear Mr. Maxfield's appeal. Mrs. Maxfield contends Mr. Maxfield has not preserved his right to appeal the September 16, 1983 contempt order. She points out he failed to appeal the March 29, 1984 denial of his motion to vacate the order of contempt and judgment of September 16, 1983, within the 30 days required by RAP 5.2(a). Consequently, denial of his subsequent May 25, 1984 motion to stay and vacate the contempt order, she reasons, is not an appeal-able order, citing Wilson v. Katzer, 37 Wn.2d 944, 226 P.2d 910 (1951).

A defeated party may not extend the time for taking an appeal by having a subsequent judgment entered. Chilcott v. Globe Nav. Co., 49 Wash. 302, 95 P. 264 (1908). If notice of appeal is not filed within 30 days from entry of an appealable order, the Court of Appeals is without jurisdiction to consider that order. However, here, Mrs. Maxfield moved for summary judgment, seeking, among other things, to reduce the accumulated contempt fine to judgment in her favor.¹ In response, Mr. Maxfield was entitled to attack the validity of the underlying contempt order under CR 60(b)(5). Void orders and judgments may be vacated irrespective of lapse of time. John Hancock Mut. Life Ins. Co. v. Gooley, 196 Wash. 357, 370, 83 P.2d 221, 118 A.L.R. 1484 (1938); In re Marriage of Hardt, 39 Wn. App. 493, 496, 693 P.2d 1386 (1985). Judgment was subsequently entered upon Mrs. Maxfield's motion, and Mr. Maxfield's request that the underlying contempt order and judgment be held void was denied. Mrs. Maxfield is estopped to deny this was a final judgment and therefore appealable. Jemo v. Tourist Hotel Co., 55 Wash. 595, 104 P. 820 (1909); Herzog v. Palatine Ins. Co., 36 Wash. 611, 79 P. 287 (1905).

In addition, because the orders of contempt issued September 16, 1983 and March 29, 1984 prejudicially affect the final judgment and order entered March 22,1985, they may be reviewed. RAP 2.4(b); 2 Washington State Bar Ass'n, Appellate Practice Handbook, rule 2.4 comment, at 30-23 (Supp. 1984).

Finally, this appeal is from the order and judgment entered March 22, 1985, and not simply an appeal of the denial of Mr. Maxfield's CR 60(b)(5) motion to vacate, although that is included. Thus, the rule that the exclusive procedure to attack an allegedly defective judgment is by appeal from judgment, and not by appeal from a denial of the CR 60(b) motion, does not apply. See Bjurstrom v. Campbell, 27 Wn. App. 449, 618 P.2d 533 (1980). Review of a denial of a CR 60(b) motion is generally limited to the propriety of the denial, and is not a review of the original judgment. However, if questions are raised concerning lack of trial court jurisdiction and fundamental constitutional rights, these issues may be determined on appeal as justice may require. State v. Santos, 104 Wn.2d 142, 702 P.2d 1179 (1985).

There is no question of trial court discretion when a judgment is void, unlike attacks on judgments based on other grounds specified in CR 60(b). The court has a non-discretionary duty to grant relief. Kennedy v. Sundown Speed Marine, Inc., 97 Wn.2d 544, 549, 647 P.2d 30 (Utter, J., dissenting), cert. denied, 459 U.S. 1037 (1982); Brickum Inv. Co. v. Vernham Corp., 46 Wn. App. 517, 520, 731 P.2d 533 (1987); Jordon v. Gilligan, 500 F.2d 701, 710 (6th Cir. 1974), cert. denied, 421 U.S. 991, 44 L. Ed. 2d 481, 95 S. Ct. 1996 (1975); 11 C. Wright & A. Miller, Federal Practice § 2862, at 197 (1973). Here, the timely appeal of the final order and judgment entered March 22, 1985 necessarily brings up for review issues concerning whether procedural due process was afforded Mr. Maxfield before entry of the underlying contempt orders of September 16, 1983 and March 29, 1984. This court has jurisdiction to hear Mr. Maxfield's appeal.

Mr. Maxfield argues he was never given his constitutionally guaranteed right to adequate notice and opportunity to be heard before the court entered its $100 a day contempt order and judgment of September 16, 1983. It is fundamental that a person must receive adequate notice and opportunity to be heard before a judgment can be entered against him. If procedural safeguards are inadequate, a court lacks jurisdiction over the defendant and cannot enter a valid order against him. Ware v. Phillips, 77 Wn.2d 879, 468 P.2d 444 (1970); Esmieu v. Schrag, 15 Wn. App. 260, 265, 548 P.2d 581 (1976), aff'd, 88 Wn.2d 490, 497, 563 P.2d 203 (1977); State ex rel. First Nat’l Bank v. Hastings, 120 Wash. 283, 207 P. 23 (1922). In a contempt proceeding, notice is sufficient if it informs the accused of the time and place of the hearing, and the nature of the charges pending. Burlingame v. Consolidated Mines & Smelting Co., 106 Wn.2d 328, 335, 722 P.2d 67 (1986); see also RCW 7.20.040 (procedure for civil contempt proceeding). Here, the September 16, 1983 and March 29, 1984 contempt orders and judgments were based on the order to show cause entered May 24, 1983. That show cause order failed to specify the nature of the charges pending with regard to completion of the finish work on the family home. As pertinent to this appeal, the show cause order stated:

It is hereby ordered, adjudged and decreed that Respondent Robert Maxfield be and he is hereby ordered to appear before Judge William Luscher at the Spokane County Courthouse on May 31, 1983, at the hour of 3:30 P.M., then and there to show cause if any he has, . . . why he should not be required to immediately complete the construction of the family home . . .

While the show cause order did mention contempt for his failure to pay maintenance as set forth in the decree of dissolution, it did not mention contempt with regard to completion of the construction of the family home. As such it failed to notify Mr. Maxfield of the nature of charges pending. Based on the notice received, Mr. Maxfield could have contemplated entry of an order to complete the home, but not coercive contempt penalties.

Mrs. Maxfield contends Mr. Maxfield was ordered by the final decree of dissolution to complete the home, and that he had actual notice of the court's intentions in this regard. The court, in its finding of fact 4, alludes to having advised the attorneys, at the oral presentment of the final decree of dissolution, that Mr. Maxfield would be responsible to complete the home. However, the record does not support either Mrs. Maxfield's argument, or the court's finding. The findings, conclusions, and decree of dissolution entered October 28, 1981 provided in part:

The Court finds that the home should be placed on the market immediately for sale and that the agent who appraised the home, Al Camerick, shall have the listing. The Court further finds that the home repairs should first be completed so that it is in first class condition.

. . . That repairs shall first be completed on the home forthwith so that it is in first class condition for sale.

. . . Necessary repairs to the home shall be completed forthwith.

As apparent, while the court made clear its intention that repairs be made, Mr. Maxfield was not ordered to make the necessary repairs. At the presentment hearing, explaining its final decree of dissolution, the court stated:

The Court: This was something that each party was going to discuss to see if Mrs. Maxfield's father would come forward with a loan of $3,000 so they can complete the property for sale. Inasmuch as no one has advised me in this regard, I am going to order that the property be put on the market forthwith for sale. I'm accepting the values that they have established and have agreed upon of $170,000.1 am going to condition this, however, if Mr. Maxfield can, and Mrs. Maxfield's parents will advance the money, that this property be completed so that it is in a salable first class value forthwith, it is to the advantage of both. However, I cannot order someone to advance money who is not a party of this action. But it certainly behooves both of them to do so.

(Italics ours.)

Again, the court did not make its intent clear in the oral presentation. It appeared to condition completion on an advance of money by Mrs. Maxfield's parents. In fact, this was Mr. Maxfield's understanding as well. The record does not disclose any order by the trial court requiring Mr. Maxfield to complete the home. It does reveal serious discrepancies as to the parties' understanding about preconditions for completion, such as return of personalty, and reveals serious gaps in communication between Mr. Maxfield and his attorney. Without an order regarding completion of the work by Mr. Maxfield, and without notice that he should show cause why he should not be held in contempt for failure to complete the work as ordered, the court's order of contempt and judgment of September 16, 1983 was void. Therefore, the subsequent order of contempt and judgment of March 29, 1984, and the entry of summary judgment reducing the contempt fine of $12,800 to judgment cannot stand. See Starkey v. Starkey, 40 Wn.2d 307, 312, 242 P.2d 1048 (1952); Schaefer v. Schaefer, 36 Wn.2d 514, 517, 219 P.2d 114 (1950).

Mrs. Maxfield further contends Mr. Maxfield was bound by his attorney's agreements and actions regarding the September 16, 1983 contempt order, citing Snyder v. Tompkins, 20 Wn. App. 167, 579 P.2d 994 (1978). Snyder is inapposite because there, the attorney stipulated to an in-court settlement. The case had nothing to do with the validity of an order and judgment made without proper notice. At presentment, Mr. Maxfield's attorney approved the void order and judgment without argument opposing it. His affidavit refers to a discussion with Mr. Maxfield on the morning of the presentment hearing. Based on this discussion, he did not feel there would be any problem in complying with the order. However, it is not apparent that he made clear this was a contempt order rather than an order to complete the work, nor does he indicate he told Mr. Maxfield of the contempt provisions, nor the importance of the $100 per day penalty. His affidavit also admits his failure to communicate with his client, supporting the assertions contained in Mr. Maxfield's affidavit. An attorney is without authority to surrender a substantial right of a client unless the client grants specific authority to do so. Graves v. P.J. Taggares Co., 94 Wn.2d 298, 303, 616 P.2d 1223 (1980). Agreeing to a $100 per day fine without adequate prior notice to the client is within this rule. Mr. Maxfield did not give his attorney authority to waive his right to adequate notice. We hold Mr. Maxfield's attorney was without authority to bind him to the void order of contempt.²

In her cross appeal, Mrs. Maxfield contends Mr. Maxfield should be required to pay one-half of the mortgage payments, taxes, and insurance costs incurred in maintaining the home until its eventual sale. We disagree.

Following dissolution of their marriage, Mr. and Mrs. Maxfield held the family home as tenants in common. Fritch v. Fritch, 53 Wn.2d 496, 502, 335 P.2d 43 (1959); Witzel v. Tena, 48 Wn.2d 628, 632, 295 P.2d 1115 (1956). In the absence of an agreement to pay rent, or limiting or assigning rights of occupancy, a cotenant in possession who has not ousted or actively excluded the cotenant out of possession is not liable for rent based upon her occupancy of the premises. Fulton v. Fulton, 57 Wn.2d 331, 357 P.2d 169 (1960). However, in this case, the court found the cost of house payments and utilities to be approximately $500 per month, and ordered Mr. Maxfield to pay that sum to his wife, up to $18,000 so that she might remain in exclusive possession of the home. Where the exclusive occupancy of the property by Mrs. Maxfield operated to exclude Mr. Maxfield, "ouster" had occurred. Cummings v. Anderson, 94 Wn.2d 135, 145, 614 P.2d 1283 (1980) recognized this theory in noting: "[W]here the property is not adaptable to double occupancy, the mere occupation of the property by one cotenant may operate to exclude the other". See also Annot., Accountability of Cotenants for Rents and Profits or Use and Occupation, 51 A.L.R.2d 388, 443 (1957); Palmer v. Protrka, 257 Or. 23, 476 P.2d 185, 190 (1970). Mrs. Maxfield is thus not entitled to reimbursement for one-half the mortgage, nor is she entitled to half the taxes and insurance. This is consistent with the general rule that where one cotenant's use of property in fact excludes others, the occupying cotenant will be required to reimburse the others for rental value of their property interest. Fulton. The court did not err when it denied Mrs. Maxfield's motion for contribution for one-half the mortgage payments, taxes, and insurance expenses incurred in maintaining the home.

Mrs. Maxfield's request for attorney fees on appeal is denied. Reversed as to Mr. Maxfield's appeal; affirmed as to Mrs. Maxfield's cross appeal.

McInturff, C.J., concurs.

1 No issue has been raised on appeal as to the appropriateness of awarding the fine to Mrs. Maxfield even though no hearing was held to determine the amount of her loss attributable to the delay in making repairs. See Annot., 85 A.L.R.3d 895 (1978).

2 The general rule that, once a party has designated an attorney to represent him, the court and other parties are entitled to rely upon that authority until the client's decision to terminate has been brought to their attention, Haller v. Wallis, 89 Wn.2d 539, 547, 573 P.2d 1302 (1978), does not apply in this instance. Graves, at 304, addresses this point. The dissent points out an attorney's signature approving a contempt order and judgment is not the same as a stipulation or agreement, and thus a refusal to sign would not affect the authority of the court to enter its order and judgment. We have no argument here. Our discussion of Mrs. Maxfield's argument that Mr. Maxfield was bound by his attorney proceeds from the premise the September 16 order and judgment were void, and that no amount of notice to the attorney, or agreement that there would be no problem completing the home, could alter this. The substantial right the attorney could not surrender by his actions was the right to adequate notice.