IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
In the Matter of the Marriage of No. 84850-0-I
NAIBA SADAT, DIVISION ONE Respondent,
v. UNPUBLISHED OPINION
SAYED INAYET SADAT,
Appellant.
CHUNG, J. — Sayed Sadat appeals the denial of his motion to vacate a default
parenting plan that restricts his parenting time and a default dissolution order that
awards Naiba Sadat half of a settlement the Sadats received during their marriage.
Finding no error, we affirm.
FACTS
Sayed and Naiba Sadat 1 were married in Pakistan on July 29, 1995. According to
Naiba, their marriage was an arranged one. She was 17 years old, and he was 15 years
older. The couple have two children: an adult son and a daughter who was 12 years old
when Naiba petitioned for divorce. Their daughter has “serious special needs,” including
a rare genetic metabolic disorder that can result in life-threatening hypoketotic
hypoglycemia and severe liver dysfunction, as well as autism.
1 Because the parties have the same last name, for clarity we refer to them here by their first names. We
mean no disrespect. No. 84850-0-I/2
On September 22, 2021, Naiba applied for a domestic violence protection order
(DVPO). Following a hearing at which both Naiba and Sayed testified, the court found
that a “preponderance of the evidence has not established that there is domestic
violence” and that Sayed was “more credible.” The court denied Naiba’s petition on
October 18.
In December 2021, Naiba applied for child support from the Department of Social
and Health Services’ Division of Child Support. Sayed was served notice on December
30, and he hired counsel to represent him in the matter. After telephonic hearings in
April and May 2022, in June 21, 2022, an administrative law judge ordered Sayed to
pay Naiba $651 monthly and awarded her back child support of $3,486.
While the child support proceedings were pending, on February 9, 2022, Naiba
petitioned for divorce. Sayed was served on February 15. His answer was due 20 days
later, on March 7. 2
On July 22, 137 days after Sayed’s answer was due, the court granted Naiba’s
motion for default. 3 It issued findings and conclusions about their marriage, a dissolution
decree, and a parenting plan for their daughter. The court found that the couple’s
community personal property consisted of three items: a 2007 Lexus van, a 2001 Lexus
IS 34D, and “50% of GNC Settlement ($100,000).” The court’s default dissolution
decree awarded the 2007 van to Naiba and the 2001 car to Sayed. It awarded each
“50% of GNC Settlement ($100,000)” but then ordered Sayed to pay Naiba “$100,000
(which is half of the GNC settlement).”
2 The regular civil rules apply to chapter 26.09 RCW proceedings. RCW 26.09.010. 3 Naiba’s motion for default is not in the record.
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In the parenting plan for their daughter entered by default, the court found that
Sayed had the following problems requiring limitations under RCW 26.09.191: neglect,
a history of domestic violence as defined in RCW 26.50.010, and the abusive use of
conflict, i.e., “he uses conflict in a way that may cause serious damage to the
psychological development” of his child. The court therefore limited Sayed’s time with
his daughter to one day per week. The plan also stated, however, that “[a]fter two
months of the father exercising his residential time, the father may petition the court for
up to 50% of residential time.” The court’s default orders were served on Sayed in
August 2022. 4
On September 2, 2022, Sayed responded to Naiba’s petition and moved to
vacate the default judgment and orders. The court ordered a show cause hearing.
At the show cause hearing on October 12, 2022, Sayed agreed he had been
properly served with Naiba’s dissolution petition. Naiba agreed there was a scrivener’s
error in the court’s default dissolution decree and agreed to an amendment changing
her award to $50,000 instead of $100,000. The court stated that while Sayed’s motion
to vacate was timely, Sayed had “acknowledged” there was a “tactical situation,” and he
thought he would have more time to respond even though “he was aware [that] he had
been properly served.”
The court’s written order “specifically finds that [Sayed’s] failure to participate
was a tactical decision, as acknowledged by the respondent and respondent’s counsel
in both in the pleadings and in argument.” It found there was no excusable neglect or
any other reason to justify relief from the court’s judgment. Finally, as Naiba conceded
4 By email on August 3 and by mail on August 12.
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the total pre-division settlement amount was $100,000, it amended the final divorce
order so that Naiba was awarded $50,000 instead of $100,000.
On December 5, the court denied Sayed’s motion to reconsider. Its order
specifically found that “based on Mr. Sadat’s own statements, . . . his failure to
participate in the dissolution was a decision. Both he and his attorney have
acknowledged this repeatedly.” Sayed timely appeals.
DISCUSSION
Sayed claims the court erred by denying his motion to vacate. He argues the
court “disregard[ed]” substantial evidence that refutes the restrictions on his time with
his daughter; he contends that, considered “cumulatively,” his actions “amount to”
excusable neglect; and he argues the court’s dissolution decree exceeds the scope of
relief for which Naiba petitioned.
Proceedings to vacate a default judgment are equitable in character, and relief
should be “afforded in accordance with equitable principles.” Griggs v. Averbeck Realty,
Inc., 92 Wn.2d 576, 581, 599 P.2d 1289 (1979). “The trial court should exercise its
authority ‘liberally, as well as equitably, to the end that substantial rights be preserved
and justice between the parties be fairly and judiciously done.’ ” Id. at 582 (quoting
White v. Holm, 73 Wn.2d 348, 351, 438 P.2d 581 (1968)).
A motion to vacate is authorized only “for reasons extraneous to the action of the
court or for matters affecting the regularity of the proceedings.” Burlingame v. Consol.
Mines & Smelting Co., Ltd., 106 Wn.2d 328, 336, 722 P.2d 67 (1986) (“Errors of law are
not correctable through CR 60(b); rather, direct appeal is the proper means of
remedying legal errors.”). That is, “[o]n review of an order denying a motion to vacate,
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only ‘the propriety of the denial not the impropriety of the underlying judgment’ is before
the reviewing court.” State v. Gaut, 111 Wn. App. 875, 881, 46 P.3d 832 (2002)
(discussing CR 60(b)) (emphasis added) (quoting Bjurstrom v. Campbell, 27 Wn. App.
449, 450-51, 618 P.2d 533 (1980) (citing Browder v. Dep’t of Corr., 434 U.S. 257, 263
n.7, 98 S. Ct. 556, 54 L. Ed. 2d 521 (1978))).
We review a court’s decision regarding a motion to vacate for abuse of
discretion. Griggs, 92 Wn.2d at 582. “A trial court abuses its discretion if its decision is
manifestly unreasonable or based on untenable grounds or untenable reasons.” In re
Marriage of Littlefield, 133 Wn.2d 39, 46-47, 940 P.2d 1362 (1997).
I. CR 60(b)(1)
Dissolution proceedings are governed by the regular civil rules, including CR 60.
RCW 26.09.010. Under CR 60(b)(1), a court “may relieve a party . . . from a final
judgment [or] order . . . for the following reasons: (1) Mistakes, inadvertence, surprise,
excusable neglect or irregularity in obtaining a judgment or order.” A CR 60(b)(1)
moving party must be prepared to show
(1) that there is substantial evidence supporting a prima facie defense; (2) that the failure to timely appear and answer was due to mistake, inadvertence, surprise, or excusable neglect; (3) that the defendant acted with due diligence after notice of the default judgment; and (4) that the plaintiff will not suffer a substantial hardship if the default judgment is vacated.
Little v. King, 160 Wn.2d 696, 703-04, 161 P.3d 345 (2007) (citing White, 73 Wn.2d at
352). “Factors (1) and (2) are primary; factors (3) and (4) are secondary.” Id. The motion
“shall be . . . supported by the affidavit of the applicant or the applicant’s attorney setting forth a concise statement of the facts or errors upon which the motion is based, and if the moving party be a defendant, the facts constituting a defense to the action or proceeding.”
5 No. 84850-0-I/6
CR 60(e).
First, Sayed argues that the court “disregarded” the court order in the DVPO
proceeding denying Naiba’s petition and finding him, not Naiba, “more credible.” He
argues that “a court order stating that her testimony was not credible is the strongest
evidence [he] could have put forward to suggest a trial is necessary,” and “[f]or this
reason alone,” the trial court should have vacated the final parenting plan.
Naiba argues that the court did consider the order denying the DVPO she
sought, that restrictions on parenting plans do not require a DVPO, and that there were
other reasons for which the court placed RCW 26.09.191 restrictions on Sayed. We
agree with Naiba.
On a CR 60(b)(1) motion to vacate, the issue is not the credibility of the parties or
the propriety of the underlying judgment—here, the parenting plan ordered by the court
in the default judgment—but the propriety of the denial of the motion to vacate. See
Gaut, 111 Wn. App. at 881. Thus, as to the first factor, the issue is whether Sayed’s
motion to vacate showed “substantial evidence supporting a prima facie defense.” Little,
160 Wn.2d at 703-04. The court’s parenting plan placed limitations on Sayed’s
parenting time for three reasons: neglect, domestic violence, and the abusive use of
conflict. See RCW 26.09.191(3)(a), (e). Sayed challenges only one of these alternative
bases, the finding of domestic violence. The court did not disregard the order Sayed
attached, but rather, noted that “just because a petition for a domestic violence
protection order is not granted, does not mean domestic violence did not in fact occur.”
see RCW 26.09.191(2)(a). Sayed did not provide substantial evidence supporting a
prima facie defense to the limitations in the parenting plan.
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Second, Sayed argues that, “taken cumulatively,” he can show reasons why his
failure to appear and answer Naiba’s petition were excusable neglect on his part, which
“is at bottom an equitable [determination], taking account of all relevant circumstances
surrounding the party’s omission.” Specifically, Sayed argues that he had representation
for the hearings regarding child support, and that he represented himself in the
domestic violence matter, so he was actively appearing in matters related to the
dissolution. He contends it was “reasonable that [he] wanted to wait for entry of the
administrative child support order prior to responding to the [divorce] petition” and that
“Naiba acted in bad faith when she motioned the court for default without providing me
notice.” Because “money has been tight,” he prioritized the matters with earlier hearing
dates. And at oral argument before the trial court, Sayed suggested that because he is
not a native English speaker, “communication may not be always clear.”
Sayed agrees he was properly served in the dissolution matter and he conceded
that his declaration did not state that he had any English language issues. The
summons Sayed acknowledged he received on February 15 instructs, “You must
respond in writing for the court to consider your side. Deadline! Your Response must
be served on Petitioner within 20 days of the date you were served this Summons.”
Further, the summons warns that the consequence of not filing and serving a response
or notice of appearance by the deadline is that the court may approve the Petitioner’s
request in a default judgment.
Here, Sayed’s belief that it would be “reasonable” for him not to respond and his
belief that Naiba “acted in bad faith,” despite the summons’s warning, were not mistakes
or excusable neglect. A party’s decision not to read a notice is not grounds for vacating
7 No. 84850-0-I/8
a default judgment. See, e.g., Hwang v. McMahill, 103 Wn. App. 945, 952, 15 P.3d 172
(2000) (no tenable basis for the court’s finding of mistake, surprise, or excusable
neglect under CR 60(b)(1) where the defaulting tenant “did not understand what was
happening and could not understand the words that were used [so she] read [the
eviction notice] no further” and failed to respond); Johnson v. Cash Store, 116 Wn. App.
833, 848, 68 P.3d 1099 (2003) (inexcusable neglect where summons and complaint
served on store manager, who thought documents were irrelevant to store’s business
and provided no explanation for failing to inform company’s administration or legal
counsel that she received them). Sayed chose not to respond or to seek legal counsel
on the dissolution matter. Thus, the court did not abuse its discretion by determining
there was no “inadvertence, excusable neglect, newly discovered evidence, or fraud,” or
any other reason to justify granting Sayed’s motion to vacate.
II. CR 60(b)(5)
Sayed argues that, because the court’s divorce decree awards Naiba $50,000
instead of half of their settlement for which she petitioned, the court’s decree is void.
Naiba argues that Sayed did not argue this point below so it is not before this court and,
even if it is before this court, the scrivener’s error the court corrected below solved any
problem with the court’s dissolution decree.
Under RAP 2.5(a), an appellate court “may” refuse to review any claim not raised
below. As the issues of the settlement’s initial value, its remaining amount, and the
share of it due to each party were raised below, even if not with citation to CR 60(b)(5),
we exercise our discretion to review this issue.
8 No. 84850-0-I/9
A judgment or decree entered by default “ ‘shall not be different in kind from or
exceed in amount that prayed for in the demand for judgment.’ ” Johnson v. Johnson,
107 Wn. App. 500, 503-04, 27 P.3d 654 (2001) (quoting CR 54(c)). The issue is one of
due process: due process permits the entry of a default judgment without further notice
to a properly served defendant because the service of process provides sufficient notice
to make an intelligent decision to appear or default. Id. (citing Conner v. Universal Utils,
105 Wn.2d 168, 172, 712 P.2d 849 (1986)).
But due process affords a defendant the right to assume that a default judgment
will not exceed or substantially differ from the demand stated in the complaint. Conner,
105 Wn.2d at 173 (citing State ex rel. Adams v. Superior Court, 36 Wn.2d 868, 872, 220
P.2d 1081 (1950); Allison v. Boondock’s, Sundecker’s & Greenthumb’s, Inc., 36 Wn.
App. 280, 282, 673 P.2d 634 (1983)). If a default judgment awards relief that is other
than or additional to what was requested in the complaint, then a defaulting defendant
was denied due process, Conner, 105 Wn.2d at 173, and the award “is void to the
extent it differs” from the complaint, Johnson, 107 Wn. App. at 504 (citing In the Matter
of the Marriage of Leslie, 112 Wn.2d 612, 618, 772 P.2d 1013 (1989) (other citations
omitted)). Whether a judgment is void under CR 60(b)(5) is reviewed for an abuse of
discretion. Kennedy v. Sundown Speed Marine, Inc., 97 Wn.2d 544, 548, 647 P.2d 30
(1982).
For example, in Leslie, the court held that a default dissolution decree was void
to the extent it awarded medical expenses to be paid by the respondent father where
neither the mother’s petition for dissolution nor the parties’ property settlement asked for
payment of medical expenses. 112 Wn.2d at 614, 620. In Johnson, the mother’s divorce
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petition asked the court to equally divide the value of the family home. 107 Wn. App. at
502. It did not ask the court to sell the home, convey the home to the respondent father,
require the father to execute a deed of trust, or pay the mother interest. Id. The court
held that the father’s “procedural due process rights were violated” because the
mother’s petition “provided inadequate notice,” so the trial court’s default decree
requiring the father to execute a mortgage at 12 percent interest to secure his debt to
her was void. Id. at 504-05.
Unlike in Leslie, where the court awarded medical expenses not included in the
mother’s petition, in the present case, Naiba’s petition did include a request to divide the
GNC settlement. In the section of the petition pertaining to personal property, Naiba
asked the court to give her one car and Sayed the other and to equitably divide the
couple’s other community asset, identified as “GNC Settlement Amount.” The summons
with which Sayed agrees he was properly served included Naiba’s petition for divorce,
so he had notice she was requesting half of the settlement. After Naiba moved for
default, the court’s findings and conclusions about their marriage stated that their
community personal property consisted of the cars and “50% of GNC Settlement
($100,000).” Unlike in Johnson, where the execution of a mortgage, as ordered by the
court, was not the same kind of award requested by the petitioner, who had asked the
court to equally divide their house’s value, here, the court’s award of 50 percent of the
GNC settlement to Naiba is the kind of award for which she petitioned when she asked
the court to equitably divide the settlement, and its amount does not exceed the initial
value of the settlement. However, the court’s default dissolution decree contained a
10 No. 84850-0-I/11
scrivener’s error that ordered Sayed to pay Naiba “$100,000 (which is half of the GNC
settlement).”
When Sayed moved to vacate, he also responded to her petition for divorce
using a form response and checked a box indicating he disagreed with the disposition of
their personal property. Sayed’s declaration in support of the motion to vacate states
that the GNC settlement was received “seven to ten years ago, but the money has been
gone for three or four years.” Sayed argued that “[e]ven if there was still money from the
settlement, which there is not, the total settlement was $100,000 [but] Naiba obtained
judg[]ment in the final orders against me for the entire amount of the settlement (not half
as she indicates), claiming $100,000 is 50% of the settlement.”
Naiba’s declaration for the show cause hearing states that “[t]o the best of my
knowledge, we have not spent the GNC settlement money.” To the extent that Sayed
challenges whether the settlement funds were still extant, on appeal of an order denying
a motion to vacate, we review only the propriety of the denial, not of underlying
judgment. Gaut, 111 Wn. App. at 881. But Naiba agreed that Sayed “is correct that the
full settlement amount was only $100,000, and therefore we should each should be
entitled to $50,000.” At the show cause hearing, the court asked if Naiba was “prepared
to enter an amendment on that point,” and she answered “yes . . . [a]bsolutely.” As a
result, the court’s order denying Sayed’s motion to vacate also amended the final
divorce decree, stating: “The parties agree that the GNC settlement was for $100,000
total, and that 50% of that amount is $50,000. Language in the final order that is
inconsistent with this is a scrivener’s error.”
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While Sayed may have believed he could afford not to reply to Naiba’s petition,
he had notice that the court would divide their GNC settlement into amounts to be
awarded to each of them. And Sayed and Naiba agree that the amount the court
awarded to her after the scrivener’s error was fixed, $50,000, does not exceed the
settlement’s total initial value of $100,000. Thus, the court’s order awarding Naiba
$50,000 is not an abuse of discretion because Naiba’s petition, which Sayed does not
dispute was properly served on him, gave him notice that the court would equitably
divide their settlement’s value into an amount for each of them.
Affirmed. 5
WE CONCUR:
5 To the extent Sayed argues the court also erred under CR 60(b)(11) regarding “[a]ny other reason justifying relief from the operation of the judgment,” he makes no separate argument for that error, and an assignment of error not briefed is waived. Kadoranian v. Bellingham Police Dep’t, 119 Wn.2d 178, 191, 829 P.2d 1061 (1992).